Neuroethics & Law Blog

"How Should Justice Policy Treat Young Offenders?"

Recently published on SSRN:

"How Should Justice Policy Treat Young Offenders?"

BJ CASEY, Yale University - Department of Psychology
RICHARD J. BONNIE, University of Virginia - School of Law
ANDRE DAVIS, US Court of Appeals - Fourth Circuit
DAVID L. FAIGMAN, University of California Hastings College of the Law
MORRIS B. HOFFMAN, Second Judicial District Court Judge, State of Colorado
OWEN D. JONES, Vanderbilt University - Law School & Dept. of Biological Sciences
READ MONTAGUE, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
STEPHEN MORSE, University of Pennsylvania Law School
MARCUS E. RAICHLE, Washington University School of Medicine
JENNIFER A. RICHESON, Yale University - Department of Psychology
ELIZABETH S. SCOTT, Columbia University - Law School
LAURENCE STEINBERG, Temple University
KIM A. TAYLOR-THOMPSON, New York University School of Law
ANTHONY D. WAGNER, Stanford University - Psychology

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, not only in their behaviors, but also (and of course relatedly) in the ways their brains function. These findings have influenced a series of Supreme Court decisions relating to the treatment of adolescents, and have led legislators and other policymakers across the country to adopt a range of developmentally informed justice policies.

New research is showing distinct changes in the brains of young adults, ages 18 to 21, suggesting that they too may be immature in ways that are relevant to justice policy. This knowledge brief from the MacArthur Foundation Research Network on Law and Neuroscience considers the implications of this new research.

 

"Criminal Adjudication, Error Correction, and Hindsight Blind Spots"

 

Recently published on SSRN (and in 73 Wash. & Lee L. Rev. 165 (2016)):

 

"Criminal Adjudication, Error Correction, and Hindsight Blind Spots"

 

LISA KERN GRIFFIN, Duke University School of Law

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what a judge imagines would have happened at trial under different circumstances. The interactive nature of the fact-finding process, however, means that the effect of error can rarely be assessed with confidence. Moreover, changing paradigms in criminal procedure scholarship make accuracy and error correction newly paramount. The empirical evidence of known innocents found guilty in the criminal justice system is mounting, and many of those wrongful convictions endured because errors were reviewed under hindsight standards. New insights about the cognitive psychology of decision-making, taken together with this heightened awareness of error, suggest that it is time to reevaluate some thresholds for reversal. The problem of hindsight blindness is particularly evident in the rules concerning the discovery of exculpatory evidence, the adequacy of defense counsel, and the harmfulness of erroneous rulings at trial. The standards applied in each of those contexts share a common flaw: a barrier between the mechanism for evaluation and the source of error. This essay concludes that reviewing courts should consider the trial that actually occurred rather than what “might have been” in a different proceeding and proposes some new vocabulary for weighing error.

 

"Keynote: Law and the Brain -- Past, Present, and Future"

Recently published on SSRN (and in Arizona State Law Journal, Vol. 48, 2017):

"Keynote: Law and the Brain -- Past, Present, and Future"

 

OWEN D. JONES, Vanderbilt University - Law School & Dept. of Biological Sciences

This article surveys the past, present, and likely futures of the brain sciences – including particularly cognitive neuroscience, evolutionary biology, and behavioral genetics – as they intersect with law.

Based on a symposium keynote address, it discusses recent research findings in neurolaw (including those from the MacArthur Foundation Research Network on Law and Neuroscience) and the multiple ways in which brain sciences – despite some important limitations – can be useful to the development and progress of the legal system.

 

"Predicting the Knowledge-Recklessness Distinction in the Human Brain"

Recently Published on SSRN:

"Predicting the Knowledge-Recklessness Distinction in the Human Brain"

IRIS VILARES, University College London - Wellcome Trust Center for Neuroimaging
MICHAEL WESLEY, University of Kentucky - Behavioral Science
WOO-YOUNG AHN, Ohio State University (OSU) - Department of Psychology
RICHARD J. BONNIE, University of Virginia - School of Law
MORRIS B. HOFFMAN, Second Judicial District Court Judge, State of Colorado
OWEN D. JONES, Vanderbilt University - Law School & Dept. of Biological Sciences
STEPHEN MORSE, University of Pennsylvania Law School
GIDEON YAFFE, Yale Law School
TERRY LOHRENZ, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
READ MONTAGUE, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute

Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria.

We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those risks possessed by the participants. Our results provide neural evidence of a detectable difference in the mental state of knowledge in contrast to recklessness and suggest, as a proof of principle, the possibility of inferring from brain data in which legally relevant category a person belongs. Some potential legal implications of this result are discussed.

 

"Arkansas, Meet Tarasoff: The Question of Expanded Liability to Third Persons for Mental Health Professionals"

Recently published in Arkansas Law Review (69 Ark. L. Rev. 988 (2017)):

 

"Arkansas, Meet Tarasoff: The Question of Expanded Liability to Third Persons for Mental Health Professionals"

 

By J. Thomas Sullivan, Professor, University of Arkansas at Little Rock School of Law.

 

Synopsis:

The seemingly increasing frequency of mass shootings in America has raised national conversations about the relationship between mental health and violence.  This article addresses the scope of the duty owed by Arkansas medical professionals to protect non-patient third parties from the violent or criminal behavior of their patients. The article begins with a broad survey of the Tarasoff doctrine and its acceptance, expansion, or rejection across different states. The article then focuses specifically on what, if any, duty is owed by medical professionals to third parties in the state of Arkansas after a recent and troubling decision by the Arkansas Court of Appeals which seems to have provided more questions than answers.  

 

"Technological Incarceration and the End of the Prison Crisis"

Recently published on SSRN (and forthcoming in the Journal or Criminal Law and Criminology, Vol. 108, No.1):

"Technological Incarceration and the End of the Prison Crisis"

MIRKO BAGARIC, Swinburne University Law School
DAN HUNTER, Swinburne Law Schoo
GABRIELLE WOLF, Deakin University, Geelong, Australia - Deakin Law School

The United States imprisons more of its people than any nation on Earth, and by a considerable margin. Criminals attract little empathy and have no political capital. Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens. No principled, wide-ranging solution has yet been advanced, however. To resolve the crisis, this Article proposes a major revolution to the prison sector that would see technology, for the first time, pervasively incorporated into the punishment of criminals and result in the closure of nearly all prisons in the United States.

The alternative to prison that we propose involves the fusion of three technological systems. First, offenders would be required to wear electronic ankle bracelets that monitor their location and ensure they do not move outside of the geographical areas to which they would be confined. Second, prisoners would be compelled to wear sensors so that unlawful or suspicious activity could be monitored remotely and by computers. Third, conducted energy devices would be used remotely to immobilize prisoners who attempt to escape their areas of confinement or commit other crimes.

The integrated systems described in this Article could lead to the closure of more than ninety-five percent of prisons in the United States. We demonstrate that the technological and surveillance devices can achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection.

In our proposal, only offenders who have committed capital offenses or their equivalents, or who attempt to escape from technological custody would remain in conventional bricks-and-mortar prisons. As a result, our proposal would convert prisons from a major societal industry to a curious societal anomaly. If these reforms are implemented, the United States would spend a fraction of the amount currently expended on conventional prisons on a normatively superior mechanism for dealing with society’s criminals.

 

"The Misjudgment of Criminal Responsibility"

Recently Published on SSRN: 

 

 

 

 

"The Misjudgment of Criminal Responsibility"

 

ROBERT A. BEATTEY, CUNY, John Jay College of Criminal Justice
MARK R. FONDACARO, J.D., PH.D., John Jay College - CUNY

Generally, a criminal statute must consist of two essential elements: a description of the forbidden act (actus reus) and a designation of a guilty mental state (mens rea). For a crime to be committed, an individual must commit the forbidden act with the culpable mental state. For any criminal act, both criminal liability and the possible punishment turn largely on retrospective judgments by legal decision-makers about what a defendant was or was not thinking at the time of committing the forbidden act. Given the central and foundational nature of this legal judgment, there is surprisingly little empirical study of how the mens rea construct functions. Shen and colleagues have studied the reliability of mock jurors’ ability to distinguish between the various mental state categories defined in the Model Penal Code and have identified some support for jurors’ ability to reliably sort “guilty minds” into their “correct” categories (Shen et al. 2011). The present study builds on this work by examining mock jurors’ ability to reliably and “accurately” judge a defendant’s mens rea at the time of an offense under conditions reflecting how criminal jurors are tasked with judging a defendant’s mens rea. It was hypothesized that folk psychology models of human behavior that generally presume a high degree of personal control and responsibility would bias individuals’ judgments of others’ criminal behavior as reflecting intentional and purposeful conduct. Overall, results demonstrate that in a surprisingly high percentage of cases across many conditions, individual decision-makers are indeed likely to attribute the most culpable mental state (purpose) to defendants, even when the facts on the record are judged by legal experts to depict no more than negligent or reckless conduct.

 

Some Challenges to the "Israeli Judge Lunch" Study

A famous study in 2011 suggested that Israeli judges become less lenient in granting parole as lunch approaches and then more lenient immediately after. 

Based on a quick look at this more recent study, it appears that, soon after the original study was published, some concerns were raised about whether the original authors properly controlled for whether potential parolees were represented by attorneys. Apparently, the original authors believe the general result remained even when the data are better controlled, though they may have overstated the effect size. The study I link to here raises additional concerns that might reduce effect size (suggesting, for example, that more difficult cases might be saved until after lunch in ways that might largely explain the purported results).

 

I haven't done my own careful examination of these issues, but it seems likely that the original study will propagate in the legal literature for a long time before any of these qualifications bubble up.