Neuroethics & Law Blog

"Neurofutures: Neuroscience and Responsibility" - 2019 Neuroscience and Society Conference

The 2019 Neuroscience and Society Conference will feature a wide range of exciting scientific, ethical, philosophical and legal lectures and discussions on the theme of  ‘Neuroscience and Responsibility’.

The conference program also includes a Poster Session, as well as Panels and Sessions on the following topics:

• • • Criminal responsibility
    • Moral responsibility
    • Neurointerventions in criminal contexts
    • Responsible research and innovation
    • Design and the environment
    • Individual and collective responsibility
    • Risk and responsibility

A free public  debate on the theme of Neuroscience and Responsibility will be held on the evening of December 4 at the State Library of Victoria and hosted by Jon Faine (ABC Radio Mornings). Please see the conference program page for details.

Here is the link for additional details:

https://neuroethicsconference.org.au

"Free Will and the Law: New Perspectives" by McCay

Allan McCay (University of Sydney Law School) has published "Free Will and the Law: New Perspectives" on Routledge. Here is the introduction:

The book begins with a comprehensive introduction, providing an overview of the intersection of theories of free will and philosophy of law over the last fifty years. The eleven chapters collected together divide into two groups: the first five address libertarianism within the free will debate, with particular attention to Hodgson’s theory, and in Part II, six contributors discuss Hodgson’s libertarianism in relation to issues not often pursued by free will scholars, such as mitigation of punishment, the responsibility of judges, the nature of judicial reasoning and the criminal law process more generally. Thus the volume’s importance lies not only in examining Hodgson’s distinctive libertarian theory from within the free will literature, but also in considering new directions for research in applying that theory to enduring questions about legal responsibility and punishment.　

"Drone Homicide, Jiggling Brains and Neurobionic Revenge Porn" by McCay

Allan McCay (University of Sydney Law School) has published "Drone Homicide, Jiggling Brains and Neurobionic Revenge Porn" on ABC Radio National (RN). Here is the link:

https://www.abc.net.au/radionational/programs/philosopherszone/drone-homicide-etc/11184940

 

"Recording the Pain of Others: Lethal Injection's Visibility Problem" by Hammock

Christen Hammock (Columbia University, Law School) has published "Recording the Pain of Others: Lethal Injection's Visibility Problem" on SSRN. Here is the abstract:  

In July 2011, Georgia executed Andrew DeYoung for murdering his parents and sister. Pursuant to a motion to preserve evidence brought by counsel for Gregory Walker, another man on Georgia’s Death Row, DeYoung’s execution produced the only existing video of a lethal injection in the United States, which remains under seal in a Georgia courthouse. This effort to record an execution reverses the historical trend of making executions less visible by bringing them inside prison walls and limiting eyewitnesses. Unlike similar cases, the successful motion to preserve DeYoung’s execution and autopsy on video did not litigate the public’s right to see executions, but instead argued that visual evidence of a botched execution was necessary to support another condemned man’s Eighth Amendment claim. This project evaluates this strategy’s assumption that video representation is less mediated and thus more effective and accurate as evidence than traditional eyewitness and expert testimony. This evaluation proceeds by examining the rhetorical strategies used in death penalty abolition litigation and judicial opinions that have, in turn, upheld and struck down methods of capital punishment. Part I examines lethal injection’s “invisibility problem” and argues that this problem stems from secrecy surrounding state execution protocols and the overwhelming metaphor of healing that lethal injection’s “weapons” project. Part II explores a potential solution to this problem — creating visual records of lethal injections — using the litigation surrounding DeYoung’s execution as an example.

Neuroscience, Justice and the 'Mental Causation' Fallacy" by Humbach

John A. Humbach (Pace University School of Law) has published "Neuroscience, Justice and the 'Mental Causation' Fallacy" on SSRN. Here is the abstract: 

This article takes direct aim at a foundational assumption of modern criminal justice, namely, that there is such a thing as “mental causation,” viz. that criminal acts are caused or influenced by mental states such as intentions or volitions. The pre-scientific supposition that mental states can cause criminal acts is the primary basis for holding that people “deserve” to suffer punishment and, as such, is the most serious barrier to acceptance of neuroscience in criminal justice reform. However, this key justification for modern criminal justice practices is premised on a logical fallacy and is ripe for review.

A growing body of neuroscience evidence shows that human behavior, like that of all other animals with brains, is produced by observable physiological activity in the brain and central nervous system — all in accordance with ordinary physical laws. Beyond these ordinary physiological interactions and processes, no hypothesis of mental causation is required to causally explain behavior. Everything a person does is the result of chains of causation originating outside the person’s body and far back in time.

Despite the evidence, neuroskeptics insist that intentions, reasons and other mental states can play a causal role in producing human behavior. The evidentiary case for mental causation turns out, however, to be premised on a well-known logical fallacy, post hoc ergo propter hoc. Meanwhile, based on the best explanation of all the evidence and data, mental causation almost certainly cannot and does not occur. Therefore, if mental causation is indeed the basis on which offenders are deemed to be responsible and to deserve suffering as punishment, the case for criminal responsibility and current punishment practices is fatally defective.

To be sure, society will likely always need to use coercive measures to deal with individuals who pose dangers and risks that are too socially intolerable to allow. The findings of neuroscience suggest, however, that these measures should be justified on bases that do not presuppose that offenders “deserve” suffering due to mental causation. Even while coercive measures to protect public safety are a practical and moral necessity, their nature and quality may be very different if they no longer are predicated on the premise that people “deserve” to suffer hardship, misery and deprivation purposely inflicted by the state.

"Subjective Well-Being and the Law" by Huang

Peter H. Huang (University of Colorado Law School) has published "Subjective Well-Being and the Law" on SSRN. Here is the abstract:  

This chapter analyzes legal implications of subjective well-being (SWB) research. Law can and should learn much from SWB research because the law can and should care about people’s SWB. An incomplete list of legal doctrinal and subject areas in which law professors have applied SWB research includes administrative law, alternative dispute resolution, business law, civil procedure, conflict resolution, contracts, constitutional law, corporate law, criminal law, development law, employment discrimination law, family law, immigration law, international law, negotiations, legal ethics, securities law, securities litigation and enforcement, tax law, tort law, and trusts and estates. Some legal scholars have repeated or contributed to existing concerns, debates, and disagreements among non-law scholars about how to measure SWB. For example, some law professors continue to assume that SWB is one-dimensional, despite the large amount of empirical psychological research finding that SWB is multi-dimensional and has distinct components. Some law professors also continue to ignore the conceptual difficulties with aggregation, interpersonal comparisons, and intertemporal comparisons of multi-dimensional SWB measures. In addition, law often requires societies to make contested normative value-judgments over which there lacks consensus. Some law professors and policy makers advocate using SWB metrics to evaluate legal policies, procedures, and regulations. Others argue that hedonic adaptation implies legal interventions have little, long-run SWB impact. This argument ignores short-run impacts which might be irreversible or have spillover effects, including changing individual preferences and social norms. The unique history and current sociology of the American legal academy has resulted in American legal scholarship applying SWB research focusing perhaps unexpectedly primarily on legal education and law practice. Perhaps quite surprisingly, at least to SWB researchers, is that law professors have applied SWB research most, and by a quite far margin, to analyze how to utilize SWB evidence-based research to sustainably improve the alarmingly, perennially, and persistently negative SWB of many law students and lawyers.

Promoting Equality Through Empirical Desert" by Rudyak

Ilya Rudyak (University of Pennsylvania Law School) has published "Promoting Equality Through Empirical Desert" on SSRN. Here is the abstract:  

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability. This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory. Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform. Chief among them: it draws from community intuitions, and community intuitions – as the theory acknowledges – are sometimes immoral. In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices.

This Article argues that these critiques are misplaced and overstated, and that empirical desert theory can be safely relied on in criminal justice – and beyond. Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology. Moreover, it can do even better. This Article presents an innovative proposal to reconceptualize the theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination. It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections. Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them. In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.

"The General versus Specific Deterrence Effects of Expungements: Experimental Evidence" by Espinosa, Deangelo, Deffains, Mungan & Romaniuc

Romain Espinosa (CREM - CNRS, Université Rennes 1), Gregory J. Deangelo (West Virginia University - Department of Economics), Bruno Deffains (Université Paris II - Panthéon-Assas, Institut Universitaire de France), Murat C. Mungan (George Mason University - Antonin Scalia Law School) & Rustam Romaniuc (Université de Montpellier - LAMETA, Università di Torino - IEL) have published  "The General versus Specific Deterrence Effects of Expungements: Experimental Evidence" on SSRN. Here is the abstract:

Expungement mechanisms allow first-time offenders to seal their criminal record. Theory predicts that the stigma of a criminal record can hinder the reintegration of criminals for whom legal activities are less lucrative. In theory, expungements priced at the reservation level can facilitate the reintegration of criminals without making first-time crime more attractive. This paper considers a behavioral perspective and offers experimental evidence about the impact of expungements priced either at the theoretically optimal level, above it or below it. To do this, we set up a laboratory experiment where subjects repeatedly face opportunities to commit crime (take money from another subject). In addition to stochastic formal sanctions – imposed by the experimenter – we introduce endogenously determined social sanctions. In our main treatments of interest, subjects who choose the wrongful action have the opportunity to expunge their record prior to the second stage, thus avoiding social sanctions as long as they do not recidivate. Overall, our experiment shows that, from a general deterrence perspective, it is better to implement expungements at very high prices. We offer an explanation for this result based on the idea that the price of expungements may signal the moral reprehensibility of the offense. There is no effect of expungements on specific deterrence.

"Attempted Justice: Misunderstanding and Bias in Psychological Constructions of Criminal Attempt" by Sood

Avani Mehta Sold (University of California, Berkeley School of Law) has published "Attempted Justice: Misunderstanding and Bias in Psychological Constructions of Criminal Attempt" on SSRN. Here is the abstract: 

How do jurors construe and apply facts and law to decide the point at which a defendant’s thoughts and actions cross the line from being legally innocent to criminal? And under what doctrinal circumstances are such lay constructions of criminality vulnerable to legal misunderstanding and bias? Although these are high-stakes questions, the black box of the jury room leaves the legal system largely in the dark about the answers.

Shining an empirical light on this domain, this Article employs tools of psychology to investigate how lay decisionmakers construe and apply legal standards for criminal attempt — a doctrine that imposes liability when a defendant intends and initiates a crime but does not successfully complete it. There are two dominant standards for the act element of attempt, but both are vague and ambiguous in defining the point at which liability attaches. Jurors are thus implicitly required to determine not only whether the defendant’s conduct has met the threshold for criminal attempt, but also where that legal threshold lies. The fundamental question of how lay decisionmakers without legal training are likely to execute this cognitively challenging task has never been empirically tested.

To fill this practical and methodological gap, I present the results of three original experimental studies on lay constructions of attempt law. My findings uncover striking disconnects between legal expectations and lay determinations of criminal attempt. Contrary to legislative design, the common law’s theoretically more defense-friendly “proximity” test (which draws the line of attempt liability closer to completion of the intended crime) emerges as more prosecution-friendly in lay applications than the Model Penal Code’s “substantial step” test (which theoretically seeks to expand attempt liability). The proximity test also appears to be more susceptible to bidirectional biases that lead to discriminatory legal outcomes.

Drawing upon psychology theory to explain these findings, I propose that the linguistic framing of the proximity test may unconsciously activate a sense of criminal “nearness” that anchors decisionmakers to harsher outcomes. The language of the proximity test may also be more likely to invoke a sense of threat, which can activate stereotypes that bias decisionmaking based on legally extrinsic factors, such as the defendant’s implied religion and the type of crime he is charged with attempting.

This Article’s findings challenge the legal community’s established understandings of attempt law, and also speak to lay constructions of criminal liability more broadly by providing new insights into how jurors may interpret the act requirement of a criminal offense in light of its mental state requirement. Furthermore, by illustrating how lay-legal disconnects can inadvertently undermine legislative intent and how the language of the law itself can trigger unfair prejudice, the results bear implications for any area of law in which jurors are tasked with applying opaquely defined legal standards.

Having empirically identified potential doctrinal and cognitive entry points for legal misunderstanding and bias in lay adjudication, I then suggest some novel steps that the legal system could consider taking to address these risks. My proposals entail rethinking how legislatures formulate legal standards, how courts convey these standards to jurors, and how jurors deliver their verdicts. I conclude by highlighting some key psychological and doctrinal directions for future research. Empirically unveiling the psychology of how lay decisionmakers construct legal liability, and drawing upon these insights to help jurors better understand the law, could unfurl promising new pathways toward more informed and fair decisionmaking in the justice system.

"The Invisible Prison: Pathways and Prevention" by Bring

Margaret F. Brinig (Notre Dame Law School) has published  "The Invisible Prison: Pathways and Prevention" on SSRN. Here is the abstract:

In this paper, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multi-generational sample of unmarried fathers from a rust-belt region of the United States as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: The Court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children (the oldest in the family), their siblings, half-siblings, and all parents who grew up in the relevant county. Using other data sources, we were also able to obtain reliable information about adult crime and other high-risk behaviors. Very few crime researchers have had access to data this comprehensive.

Our research findings show the incarcerative state in action. Close to a third (31.7%) of sample fathers had been incarcerated, at least once, as adults, and almost half (49.5%) of those who lived, as teenagers, in the county we investigated had at least one juvenile arrest.

Our findings support recent nonpartisan reforms, such as the federal First Step Act, that reduce mandatory sentences and place increased emphasis on substance-abuse treatment. The vast majority of offenders in our sample committed nonviolent offenses and posed no serious public-safety risk. Seventy per cent of those with felony convictions also had a known history of substance abuse.

However, our data show that current reforms are incapable of significantly reducing criminal misconduct or the disproportionate impact of incarceration on African-Americans and the poor. In our sample, adult paternal crime was linked to other high-risk behaviors, significantly correlated with several of the father’s adverse childhood experiences (ACEs), and predicted a number of adverse outcomes in his children. Our data thus contribute to a growing body of research showing that high ACE levels, levels that are typically linked with and reinforced by poverty, significantly increase the risk of criminal behavior as well as physical and mental health problems, educational and occupational deficits, high-risk behavior, and early death.

To successfully reduce the costs of crime, we argue that policy makers must develop a public-health approach. We also argue that, as with virtually all successful public-health campaigns, public policy should focus on prevention programs that reduce risks and shift away from costly and largely ineffective rehabilitation strategies.