Neuroethics & Law Blog

Can Chimpanzees be Psychopaths? (Andrew Vierra)

Last week I wrote about the DSM-5’s criteria for diagnosing individuals with psychopathy (or ASPD). The key point was that the DSM-5 defined psychopathy in terms of behaviors. Individuals who had (e.g.) repeatedly broken the law and pathologically lied could be diagnosed as psychopaths, without the need for a personality inventory or fMRI scan.

One interesting consequence of defining psychopathy in terms of behavior is that it is at least theoretically possible for non-human animals (or perhaps extraterrestrial beings) to exhibit the requisite behaviors sufficient for a diagnosis.  So one might ask, “if a non-human exhibited similar behaviors, would they likewise be a psychopath?”

Robert Latzman et al. recently put forward a triarchic model of psychopathy for chimpanzees that could be used to make such a diagnosis (though, to be clear, making a clinical diagnosis of chimpanzees was not the goal of their research).

Their triarchic model frames psychopathy in terms of three dimensions: disinhibition, meanness, and boldness. A high level of expression of each of these dimensions suggests that a chimpanzee is a psychopath (or “well suited for investigations of basic biobehavioral dispositions relevant to psychopathology”).   

Disinhibition refers to impulse control problems, including “lack of foresight, impaired regulation of affect and urges, insistence on immediate gratification, and deficient behavioral constraint.”

Meanness encompasses “deficient empathy, disdain for and lack of close attachments with others, rebelliousness, excitement seeking, exploitativeness, and empowerment through cruelty.”

Finally, boldness “encompasses low levels of fear/avoidance, manifest as high self-assurance and social efficacy, capacities to remain calm in situations involving threat and to recover quickly from stressful events, and a tolerance for unfamiliarity and danger.”

Latzman et al. measured the degree of expression of disinhibition, meanness, and boldness in chimpanzees by observing their behaviors and scoring the chimpanzees on different items. Disinhibition, for example, was measured by noting if chimpanzees were impulsive (“displays some spontaneous or sudden behavior that could not have been anticipated”), irritable (“easily provoked”), excitable (“easily aroused to an emotional state”) socially inept (“acts inappropriately in social settings”), attention seeking (“troubled by others who are in a desirable or advantageous situation…”), and inventive (“more likely to engage in novel behaviors”).  

The researchers found that meanness and disinhibition were moderately positively correlated, as were boldness and meanness. Boldness and disinhibition, however, were insignificantly correlated.

One of the big takeaways from this research is that the triarchic model of psychopathy for chimpanzees may allow researchers to study psychopathy with non-human subjects. Chimpanzees are well suited for such investigations into psychopathy because they are so similar to humans. In addition to sharing an extremely high percentage of genes, chimpanzees also display complex socio-emotional and communicative traits. To give just a few examples, chimpanzees engage in reconciliation behavior, form coalitions with other chimpanzees, console other chimpanzees, and share food with non-kin.  

Ideally, further research into psychopathic chimpanzees will give us a better understanding of psychopathy in humans and perhaps lead to a safe and effective form of treatment.

Are Psychopaths Mad or Bad? (Andrew Vierra)

Imagine Robert is on trial for committing a series of gruesome murders. He tortured several people to death, and he shows no remorse for his actions. Neuroscientists scan his brain to determine the cause of Robert’s emotional deficits—e.g. his lack of empathy—and determine that the following regions of his brain are atypical: temporal poles, anterior cingulate cortex (ACC), posterior cingulate cortex (PCC), orbitofrontal cortex (OFC), parahippocampal regions, amygdala, and hippocampus. On the basis of their findings, Robert is diagnosed with psychopathy.

What should we make of these brain scans?

The defense may argue that they show that Robert is mad and therefore less legally responsible for his violent actions. The argument might go something like this: Robert has deficits in some of the mental capacities necessary for following the law. One is not fully culpable for what one cannot do. Robert is not fully culpable for his violent crimes.

Another interpretation is that the brain scans show that Robert is a bad person. Robert has no capacity for empathy, not because he is mad, but because he is bad. Being bad is not a legitimate excuse for committing a crime. Thus, Robert’s brain scans do not make him less culpable.  

I find both of these interpretations plausible. Perhaps when Robert was younger, his brain was fully typical. However, as he continued acting violently, he gradually lost the capacity for empathy. In this case, we might think that Robert is bad. On the other hand, perhaps Robert had these abnormalities from a young age, and they help explain his long standing pattern of violent behavior. In this case, we might think that he is mad.

Pretend that the bad interpretation is correct. Robert’s capacity for empathy has gradually diminished over time because of his bad choices. If this is the case, is he fully culpable for his violent crimes?

One possibility is that Robert is not fully culpable because when he committed the crimes, he did not have the mental capacities necessary for following the law (albeit as a result of his bad choices). Another possibility is that he is fully culpable in virtue of the decisions that led to his lack of empathy and subsequent crimes. In other words, Robert may be responsible for the person he is (a bad person) even if he currently lacks the important mental capacities cited by the defense.

I don’t have a satisfying answer to the mad or bad question, nor to the culpability question. But readers who are interested may find some closure in works by Nicole Vincent, Heidi Maibom, and Marga Reimer.

Reevaluating Swinburne: Neuro-interventions and the Morality of Homosexuality (Andrew Vierra)

In a recent presentation at the Society for Christian Philosophers, Richard Swinburne (Oxford) argued that homosexuality—i.e. exclusive, erotic, attraction to members of the same-sex—is a disability that ought to be eliminated. Towards this end, he suggested that we should “encourage research into how the orientation can be cured” (see the full paper here). Not surprisingly, Swinburne has met harsh criticisms from philosophers, the mainstream media, and even the Society for Christian Philosophers.

One of these criticisms, raised by Rob Hughes, a young moral, political, and legal philosopher teaching in the Wharton School at the University of Pennsylvania, targets what Hughes takes to be Swinburne’s “false and unjustified empirical assertion” that sexual orientation is or could be “to a considerable extent reversible.” Hughes claims that there is no credible evidence (at least that Swinburne cites) that suggests that sexual orientation can be changed. Indeed, to the contrary, available evidence suggests that attempting to change one’s sexual orientation through so-called conversion therapies can actually be harmful. Hughes concludes that Swinburne’s argument is unsound.

I share Hughes’ conviction that something is wrong with Swinburne’s argument, but I don’t believe it is this premise, and I think his objection misses Swinburne’s larger conceptual point. Hughes is correct that given the current state of the relevant sciences, conversion therapies cannot reorient sexual orientations. But, as Swinburne points out, “medicine has made great strides in recent years. Diseases of mind or body hitherto believed incurable have proved curable; it would be odd if sexual orientation was the only incurable condition.”   

Though I don’t believe that being gay is a disease, I agree with Swinburne that one day sexual orientation may be reversible. Indeed, as Brian Earp and I have argued elsewhere, “based on current scientific research, it is not unlikely that medical researchers – in the not-too-distant future – will know enough about the genetic, epigenetic, neurochemical and other brain level factors that are involved in shaping sexual orientation that these variables could in fact be successfully modified.”

And here is the important point. If such neuro-interventions become available, Hughes’ objection will no longer be sound, and what happens then?  

I think a more promising approach is to object to the far weaker premise that homosexuality is a disability. If homosexuality is not a disability, and it is not morally wrong to have sex with members of the same sex, then it is not clear why we ought to invest in research on conversion therapy or encourage the use of such therapies if they become available. Without this weaker premise, Swinburne’s argument is not successful.

President Obama analyzes "Obamacare," some highlights and commentary

For those who are unaware, President Obama recently published an article at the Journal of the American Medical Association. If you follow academics on Twitter, you likely saw it. President Obama is the first sitting President to publish an academic journal article, which is kind of cool, but I don't want to dwell on that observation. The article is an analysis of the effectiveness of one of the President's signature policy initiative, the Affordable Care Act (generally called "Obamacare," a term I personally loathe... but that's another story) and associated healthcare expansions. It also includes further policy recommendations.

The article falls squarely into American healthcare policy, one of my areas of interest, so I wanted to offer a short summary of the major points of the article and some comments. The article is very short, only 7-pages, and it isn't paywalled. For those who are interested, I do suggest taking a look at the original.

The key points of the analysis are in the summary, but they are also well-chewed talking points you're likely to hear on the Sunday morning talk shows. (Well, you would hear them if the guests on such shows were inclined to indulge in arcane things like facts and statistics.) I present those claims in order of their credibility, and I dispense with some of the mushy, politically expedient anecdotes the President included that make the thing read less like a scholarly article and more like a policy speech.

1. The enactment of the Affordable Care Act, particularly the Medicaid expansion provision, is responsible for the largest decrease in the uninsured rate since the creation of medicare.

2. Predictions that the Affordable Care Act would have an adverse effects on employment seem not only unfounded, but outright mistaken.

3. The quality of care patients receive under the provisions of the Affordable Care Act is measurably better than what patients received, and various research initiatives put forward by the administration will improve that quality even further.

I take it that (1) is probably the most important claim in the article, and one of the most important claims in understanding the legacy of the Affordable Care Act. While the percentage of uninsured Americans had been decreasing since 2006 (it peaked at 15.8%; about 47 million Americans, according to the Census Bureau), the President's article shows a dramatic decrease of about 5 points during enacting the Affordable Care Act. This number is uncontroversial amongst reality-oriented people; the Census Bureau and the CDC have reported all-time lows of just under 10%.

For those who are skeptical of the causal responsibility of the Affordable Care Act initiative, President Obama's article provides a persuasive case (though hardly original) based on a few significant data-points. The most important is that there seems to be an enormous difference between states that adopted the Medicaid expansion provision and states that didn't. He provides the following graphic:

Now, for the skeptic, it is important to keep in mind that there are some pretty significant sociological differences between the states that are inclined to adopt Medicaid expansion (e.g. CA, CN, MA, NY, etc.) and those that aren't (e.g. FL, GA, SC, TX). See the current list of states that have adopted medicare expansion here to get the picture.

Still, that's not a particularly compelling argument against the ACA as much as an observation that states that aren't going to provide increased access to Medicaid are going to have fewer folks in their states who are insured. That seems basically tautological.

The more interesting version of the observation has been made by groups including the Kaiser Family Foundation, that about 11 million people gained access to Medicaid following the introduction of the expansion.

I am not sure how many hardline skeptics are going to be compelled by the data that the Affordable Care Act increased access to coverage; still, these statistics seem pretty hard to dispute and the dramatic swing following the introduction of Medicaid expansion seems to be largely facilitated by this work, given that the 11 million additions to Medicaid alone contribute to that reduction in the uninsured rate.

The second point is really just a jab, so far as I can tell, at those who said that increasing mandates on employers would lead to large scale layoffs and a dramatic increase in unemployment. There's not that much to say about those claims beyond the fact that unemployment has been dropping pretty steadily since 2010 (which, coincidentally, is when the Affordable Care Act was passed). There have been a number of claims about the "true unemployment rate" being far higher, but those claims are not supported by Census Bureau or Bureau of Labor Statistics data.

Now, no one should suggest that the Affordable Care Act improved unemployment numbers, though there have been jobs added in the healthcare industry over the last six years. (The health care and social assistance industry has been consistently adding jobs, including adding 58,000 jobs last month, June '16.) At the very least, this original objection to mandates on employer coverage seems not to have come true.

The third part of the article is the one that demands the most skepticism, and is not even really defended in the article. There is no information (so far as I can tell) that suggests qualitative healthcare outcomes have improved since the implementation of the Affordable Care Act. The Department of Health and Human Services differentiates qualitative metrics for healthcare, and while one of those metrics (namely access) has decidedly improved under the ACA, for all of the reasons sketched above, the other metrics have not followed.

It is hard to map things like patient outcomes over short periods of time, because the impact of access to healthcare in 2010 may not have a clear beneficial outcome for a patient until 2020 or 2030; this is especially true when it comes to talking about young people, who were one of the major targeted demographics in the ACA reform. It just isn't feasible to make a judgment about whether the quality of American healthcare has improved. In 15 or 20 years, when we have data done on these long term metrics, like patient outcomes in life expectancy and quality of life, we can make that judgment.

During the last few months, the President's administration has talked about the expansion of medical research in pursuit of treatments for, in particular, cancer. The goal is to improve patient outcomes through an increase in research spending, and the President acknowledges this effort in his article. This project, the "Moonshot" as they're pitching it, is not particularly well founded. Oncologist and (dare I label him as such?) sociologist of medicine Vinay Prasad has an op-ed on the scientific skepticism, there have been renewed discussions about if and how to share data, and (most cynically) it seems like a political stunt preying on the hope and naivety of those who don't understand how scientific research actually progresses. The increases in spending associated with the initiative are probably going to be good for a lot of cancer researchers, but (at a minimum) have blown expectations way out of proportion.

I'm reminded of an episode of the West Wing where President Bartlett overhears some oncologists talking about prospective treatments for cancer, and decides to announce in the State of the Union that they're going to cure cancer in a decade. (I wonder what White House aid was watching that episode, aired in 2002, and thought, "Hey, we should actually do that.")

I should say, there is no evidence that healthcare outcomes have gotten worse, and very little reason to suppose that initiatives like Moonshot will do any damage to medical research. (There are issues with apportionment and opportunity costs, but those are more technical worries than just the worry of, to quote a great philosopher, "mo' money, mo' problems.")

At best, though, there isn't adequate evidence that there have been significant improvement in patient outcomes as a result of changes in the Affordable Care Act. Those qualitative outcomes, while we might be cautiously optimistic and work hard to improve them, are something that has to be assessed more in the long term. For those who are interested in the studies on the ACA, though, President Obama's article does act as a good study of the improvements in coverage brought about by the marketplaces and Medicaid expansion, and shows that the legislation has accomplished several of its most important goals in increasing access to healthcare and decreasing the number of individuals without insurance.

Joshua Stein is a guest blogger at Neuroethics and Law. He has studied at the graduate level at New York University and is starting in the fall as a doctoral student at the University of Calgary.

Norms & Neurons (Amanda Pustilnik)

Michael Pardo and Dennis Patterson have written a Big Book, an ambitious book, on the relationship between neuroscience and law.  Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience is the book, or at least one of the books, that the field of law and neuroscience has needed.  To say that neuroscience is or even could be relevant to law rests on important presuppositions about the relationship between brain and mind, the nature of mind, the nature and purposes of law, and the relationship between mind and law.  The theoretical and epistemological underpinnings of these enterprises remain under-examined in law and neuroscience scholarship.  This is not because authors in the field are philosophically naïve – far from.  Rather, it is because of the richness of the material and the newness of the field.  There is much work to be done, and there will be for some time.

P&P great contribution with this work to law and neuroscience scholarship is to offer a non-reductionist argument for the possibility of a meaningful interrelationship between neuroscience and law.  While accepting the materialist premise (there is no ghost in the machine), P&P take aim at a form of reductionism, eliminative materialism, that lies at the heart of much law & neuroscience scholarship.  In so doing, they offer a strong case for the need to understand brains not as the fundamental unit of analysis and bearers of meaning but as components both in and shaped by an integrated system of signs and meanings.  To take possibly unjustified poetic license with their work: Our astrocytes are as stars that live as much in the nomos as in the cosmos.

As a materialist who instinctively struggles to resist the pull of reductionism (whether I will win remains to be seen), I find P&P’s approach sympathetic and appealing.  I also find some of their claims more convincing than others.  They do great work asserting the non-identity of natural facts and social facts.  Many social facts are real, yet they are not “things in the world” or “things in the brain.”  They cannot be located with a brain scanner.  Lying.  Love.  Violence.  Criminality.  These are meaningful concepts, meaningful experiences.  They are not things.  Efforts to find or measure the neural signatures of these states as if they were natural things – objects, no less – is a profound confusion.  I have written on the problems with trying to use neuroscience to find so-called criminally violent brains.  This is because criminal violence is a social category, not a natural category.  Whether any particular act counts as criminal violence rather than correct or even laudable social performance rests entirely on the context of the action and the norms of the culture.  We might find reliable markers that relate to some of these states, so that we can make an inference about a person’s subjective state, but we cannot find the thing because the thing does not exist as such to be found.

P&P continue to emphasize the role of norms in their challenge to Patricia Churchland’s work on brains that are or are not “in control.”  Churchland asserts that neuroscience may help empirically address whether a person can be said to be “in control” and therefore an agent of the kind who can be criminally responsible for his or her conduct.  P&P contest this notion, arguing that “[i]ncreased knowledge of brain chemistry will not answer normative questions about responsibility.”  In some areas, they are doubtlessly correct.  Their example of the dog owner who inadvertently allows his dog to escape and bite a child illustrates nicely that social and legal assignments of responsibility may be independent of brain state. 

But other problems of brain state and responsibility may be more challenging, and may point toward a contribution for neuroscientific evidence and analysis.  It may be that if a brain is “in control,” we cannot know enough to ascribe responsibility (criminal or otherwise) to the actor who possesses that “in control” brain unless we also know a great deal about the factual and normative context.  This is P&P’s position, with which I wholly agree.  However, if a brain is “not in-control,” then that might illuminate whether we properly can ascribe criminal responsibility of the current, conventional kind to the actor who possesses the “not in-control” brain.  This is where some appreciation for Churchland’s contribution may come in.  Unless the notion of responsibility, as well as the notion of excuse defenses for diminished capacity and diminished responsibility, are shams, then the law does (and is supposed to) care about the edge cases in which an actor is suffering from a sufficiently serious impairment that he cannot function as a typical agent.  Whether the law *should* treat people with diminished capacities differently than typical actors is of course debatable; for today’s post, suffice it say that the law purports that it *does* make this distinction, at least in a limited fashion.  And if it does make this distinction, it should do it legitimately:  Doctrines that provide a degree of excuse for people with certain impairments should conform empirically to such impairments.  Psychology, psychiatry, and neuroscience ought to have some role in elucidating such impairments, as well as helping to inform lawmakers (and the culture more broadly) about the reasonable expectations one might have as to people with such impairments. 

To argue otherwise seems cynical, wasteful, or cruel.  Should the law purport to offer an insanity defense, while crafting a legal definition of insanity that misdecribes mental illnesses to the point that no mentally ill person fits the letter of the defense?  Cynical!  Should the law have expectations about the current and future behavior of addicts so unrealistic, like that of perfectly relapse-free sobriety, that it contributes to the mass incarceration of largely non-violent offenders?  Wasteful!  Should people with brain injuries or diseases like temporal dementias, which leave them rationally aware but disinhibited, be punished for transgressive behavior that is itself the symptom of a lethal disease?  Cruel!  In each of these areas, where we already have (or may have) a normative intuition that punishment would be unfair, a more robust understanding of the neuroscience of being “not in control” might help us engage in more precise and appropriate legal decision-making.  Over time, neuroscience might contribute to a more clearly delineated understanding of what “control” actually means, and what disorders impair this kind of control, that can inform our normative decisions about what, and how much, to punish.

Francis, Jane, Gabriel, Carter, and Nicole: What do you think?

Introduction - Guest Blogger (Greg Caramenico)

Hello Neuroethics and Law readers – I’m Greg Caramenico, guest blogging here for the next few weeks. Much thanks to Adam for the invitation.  

Among the topics I intend to post about here are strategies for reconciling phenomenal and folk psychological definitions of memory, agency, and personhood with the ones used by most neuroscientists and many who work in neuroethics; a look at the pros and cons of memory tampering and enhancement from a collective, social (as opposed to individual) perspective; and a historical perspective on the way that legal reasoning about persons/souls/minds has - and hasn't - been changed by scientific discovery. I'm concerned about the limits of knowledge in neuroscience and the possible consequences of such incomplete information for legal policy and ethics, so that concern underlies some of my writing and analysis here. 

A little background: While a graduate student at Vanderbilt University, I became interested in neuroscience and law as a research assistant to Owen Jones and then through nascent MacArthur Law and Neuroscience program in 2006-2008. As a student of the history and philosophy of science, I became interested in how divergent explanations of the mind and its functions could be reconciled in legally and socially coherent, practical ways.  After putting those questions aside while writing a book on neuroscience, humanism, and emergence, I recently returned to consider some aspects of neuroethics and law.

My first book – Coming to Mind, was recently published by the University of Chicago Press. Coauthored with philosopher L.E. Goodman, it offers a reassessment of ethical and epistemological assumptions widely held in contemporary neuroscience. The core argument frames debates about mind/soul, personhood, agency, and memory from the perspective of emergence, complex systems, embodiment, and top-down causality.   

My current research interests lie in the legal and cultural consequences of pharmacological modifications of memory and forgetting. Other interests include biotech and pharmaceutical IP law, behavioral biology, and pharmaceutical ethics.

 

How (not) to argue about cognitive enhancement (by Veljko Dubljevic)

 

In my paper “Principles of justice as the basis for public policy on psycho-pharmacological cognitive enhancement”, I analyzed the debate on cognitive enhancement drugs. The conclusion was that some arguments (e.g., authenticity, posthumanist, “playing God”, etc.) instead of being convincing merely lead to a strong disagreement. That is because they presuppose religious, ethical or metaphysical comprehensive doctrines. So what kind of argument could help us sort the disagreement? To answer that question, it is important to understand what the debate entails. Ultimately, it is about the regulation of cognitive enhancement (CE), not about what individuals might prefer, meaning that not every kind argument has equal weight. Only arguments that appeal to the interests and values of society as a whole (as opposed to only part) are strong enough. So what options for regulation are available?

 

CE: same as coffee or same as cocaine?

 

Proponents of enhancement insist that new substances offering enhancement are similar to old ones, and base their argument on the appeal to the fairness of treating like cases alike. Nevertheless, policy options in a democratic society are not limited to taking a laissez faire approach (like in the case of coffee), as pro-enhancement authors want, or to banning the technology (like in the case of cocaine), as opponents of enhancement want. There is also the option of regulating the technology so that individual use is encouraged via government incentives or discouraged via taxation. An additional option is to make the technology mandatory.

These policy options rest on the familiar distinctions in moral philosophy between actions that are a) morally required, b) morally desirable and permissible, c) morally neutral and permissible, d) bad but nevertheless still morally permissible, and e) morally impermissible. The fairness of treating like cases alike depends on defining sufficiently like cases. Are new cognitive enhancement drugs more like coffee or more like cocaine? That depends on the drug in question (and I'll have more to say about that in later posts), but it is also important to stress which principles should guide our arguments.

 

How not to argue

 

Why is coffee allowed and cocaine prohibited? Does that have something to do with authenticity, human nature or the good life? Not really, these are generally adequate criteria for individual choice, but not adequate for public policy. Furthermore appeals to comprehensive doctrines like some religious or political ideologies will not work, because they are not shared by everyone. Mid-level principles of beneficence, non-maleficence (i.e. non-harm), autonomy and justice show more promise.

 

How to argue

 

However, not all of them are strong enough to support a certain policy. Let's take beneficence for example. If something is good for you, perhaps this should be mandatory. Maybe coffee is good for concentration but we can't make coffee mandatory because that would conflict with the principle of autonomy – the right to choose. This is also the case with prohibited substances. The case must be very strong indeed to prohibit something, because that would infringe on the right to choose. So why is cocaine prohibited? With a measure of simplification, it is prohibited because it is very harmful (non-maleficence) and infringes on autonomy by itself (by causing unreal perceptions about one's abilities and addiction).

 

Is regulation of smoking hypocrisy? The rights of smokers and non-smokers

 

But what about smoking? That's harmful and can also cause addiction, right? Yes, but the picture is more complicated here. Again, to simplify things, tobacco is not a mind altering substance. It might be harmful in the long run and it might cause addiction, but a democratic state can only discourage its use with taxation and other measures, not prohibit it entirely. There is one other important issue: there is no injustice involved in smoking if you do it in your home and the rights of non-smokers are protected in public places.

 

How does this relate to CE?

 

All this has set the stage for the issue of regulating CE drugs, in both the relevant principles and policy options. I argued that justice is the relevant issue to have in mind for regulating use of CE drugs for the healthy. That does not mean that other issues are irrelevant – merely that justice is really important. The common claim of authors opposing enhancement is that treatments are obligatory and permissible while enhancements are not. The principle of justice explains why this is the case in CE. Using Ritalin (or some other drug) for enhancement is not an issue of providing basic necessities for those who are lacking, benefiting the least advantaged or restoring citizens to a position of equal opportunity and liberty, while in the case of citizens suffering from say ADHD it certainly is.

 

Justice anyone?

 

Furthermore, providing drugs as a means of enhancement to gain positional advantage could cause erosion in the fabric of society - people would see that medical resources are diverted into controversial enhancements, while clear cases of disease and impairment are left untreated. This means that justice could be used to draw the line between cases in which it is permissible and obligatory to provide drugs in private or public health insurance schemes and those that it is not. Moreover, as resources in most societies are too limited to meet all needs for the treatment of disease or impairment, justice requires that we meet most important medical needs first. Only if all medical needs are taken care of could any public finance for enhancements be allowed.

 

“Justice Trumps Beneficence”

 

This can be neatly summarized with the version of the “Justice Trumps Beneficence” Argument:

1. Enhancement is not required by justice but only by the value or principle of beneficence;

2. The widespread use of enhancement would create a serious risk of injustices to citizens choosing not to enhance due to their comprehensive doctrine;

3. Justice trumps beneficence (when the pursuit of beneficence creates a risk of serious injustice, the avoidance of injustice should take precedence);

4. Therefore, public funds should not be allocated to enhancement purposes, and/or measures should be taken to compensate those citizens likely to suffer injustices.

 

The rights of non-enhancers

 

As non-smokers are sometimes very upset about smoking, so non-enhancers are upset about the use of CE in certain contexts. The issue of justice explains what they are upset about – they might think CE is unjust because it undermines the equality of rights and liberties of citizens wishing to enhance and those that do not. Furthermore, they could claim that using CE is cheating in certain instances, such as exams, as it violates fair equality of opportunity, and that the use of drugs might be justified in instances of poor health, but not when seeking positional advantage. So far so good. But does this mean that CE must be entirely prohibited?

 

What kind of policy?

 

Not really. Like smokers, people that want to use CE have rights. Smoking is regulated in public spaces and discouraged with taxation and other measures. Some non-smokers call for a total ban, but that is overkill, and not really legitimate. Similarly to that, the analysis of requirements of justice points to a conclusion that discouraging the use of CE would be the most legitimate public policy. Taxation and other measures could appropriately protect the interests of all citizens and even generate funds for medical needs. So what might that look like? In another article I provide the answer. In the meantime, stay tuned for more...

"Altering Moral Judgments with Magnetism" (Davenport)

"Research of the last couple decades has shown that injuries to a part of the brain called the right
temporoparietal junction (RTPJ), located at the brain’s surface above and behind the right ear, can change a patient’s moral judgments. When these patients are asked to answer morally challenging questions that weigh the life of one person against others, they consistently make utilitarian decisions without feeling the least bit uneasy. Their moral judgments about life and death, so vexing to most of us, become clinical and routine.

Researchers have recently found that they can induce a similar effect using magnetism (transcranial magnetic stimulation, or TMS) to disrupt RTPJ activity. When participants were exposed to magnetic “bursts” from a TMS device, their judgments about what is morally permissible significantly changed. For example, they were more likely to say that intending to harm another was morally permissible if the other person luckily avoided becoming a victim; they considered the intention of the first person to be irrelevant.  The effect was only temporary, but the implications are massive. Most of us consider moral judgment a higher order thought process, but this research shows that it can be tweaked by a weak magnetic field in a matter of minutes." - One of David DiSalvo's Five Big Developments in Neuroscience to Watch, via.  

Full article: Disruption of the right temporoparietal junction with transcranial magnetic stimulation reduces the role of beliefs in moral judgments by Liane Young, Joan Albert Camprodon, Marc Hauser, Alvaro Pascual-Leone and Rebecca Saxe, here. 

Image: my neurons.

Risk Assessment and "The Limits of Neurolaw" (Davenport)

"In my view, neuroscience does not offer us anything new that cannot be responsibly incorporated into existing substantive criminal law doctrine," says Steven K. Erickson in a new paper that largely questions fellow law professor, Adam Lamparello's effort in promoting neuroscience to aide in predicting future conduct or dangerousness of offenders, thereby supporting civil commitment terms (after prison terms) for offenders with neurobiological impairments which may cause them to re-offend.

Surprisingly, Erickson allows that neuroanatomical attributes impact behavior (which is interesting given "The idea that behavior is determined by physical causes is hard to reconcile with the intuitive notions of free will and moral agency on which our legal systems are based" via), even highlighting a few of congintive neuroscience's basic principles: "...all human experiences are reducible, machines such as fMRI can reveal human thought, and predictions about human behavior can be made from the knowledge gained through reduction and technology." But he calls out Professor Lamparello for confusing the relevancy and purpose of raising neuroscience's place in the law when dealing with neurologically impaired offenders, calling it "unwise and unnecessary" since "substantive criminal law in most jurisdictions already affords such agents a plea of non-responsibility that is harmonious with the principles of deterrence and deserved punishment". Erickson ties his argument neatly in a bow with, "Propensities are not destinies, and we are free to act against our urges, whatever biological liabilities may encumber us". Although I agree with many of Erickson's points, this last one is certainly a red flag for researchers.

*The exact paper(s) of which this paper critiques is not mentioned. From a quick search, I'm left to guess Erickson is responding to the paper(s) below.

Erickson, Steven K., The Limits of Neurolaw (June 4, 2011). Houston Journal of Health Law and Policy, Vol. 11, 2012. Available at SSRN: http://ssrn.com/abstract=1857971

Lamparello, Adam, Cognitive Neuroscience and Involuntary Confinement: The Model Statute (January 18, 2011). Available at SSRN: http://ssrn.com/abstract=1743179

Lamparello, Adam, Using Cognitive Neuroscience as a Method by Which to Involuntarily Confine Violent Offenders after Completion of Their Sentence (January 18, 2011). Available at SSRN: http://ssrn.com/abstract=1742940

Lamparello, Adam, Why Wait Until the Crime Happens? Providing for the Involuntary Commitment of Dangerous Individuals Without Requiring a Showing of Mental Illness (January 18, 2011). Available at SSRN: http://ssrn.com/abstract=1742933

"Criminal Minds: Adrian Raine thinks brain scans can identify children who may become killers" (Davenport)

In this article, Adrian Raine, Professor and Chair of the Department of Criminology at University of Pennsylvania, says brain scans may predict antisocial behavior before it happens, thereby possibly identify killers before they kill. When they are children. He is known for his pioneering work in the science of neurodevelopmental criminology.

"Society has always wondered about “bad seeds,” people who seem to be possessed by devils. But what is emerging from this research is a cluster of biological markers that plant the bad seed in the brain. More striking, they appear to predict antisocial behavior even before it happens.  (…)  In adult offenders, juvenile delinquents, and even younger children, dozens of studies have pointed to brain features that seem to reduce fear, impair decision making, and blunt emotional reactions to others’ distress." 

The features were several neuroanatomical abnormalities such as both orbitofrontal regions and the amygdala appearing smaller than normal, and a enlarged corpus callosum being present. Raine is quick to acknowledge the rather large amount of ethical questions involved here as well as environmental effects and neuroplasticity. He is the first to state, “…we don’t want to say that biology is destiny or put a label on anyone exhibiting these markers”, so it seems to be about early detection and possible/preventive treatment. He is now doing studies to “ …see if psychotherapy or a diet rich in brain-protective supplements can reduce chances of antisocial acts.”  Raine is well known for his longitudinal studies that trace “physical patterns in children to conduct problems in adulthood”.      He continues:

“I think there’s no longer any question, scientifically, that there’s an association between the brain and criminal behavior. We’re beyond the point of debating that,” says Raine. “Every study can be criticized on methodology. But when you look at the whole, at all the different designs, it’s just hard to deny there is something going on with biology.”

The big 'IF'

Surely knowing this work may elicit a skeptic or negative type response, Raine phrases the question as if we are discussing the identification of any medical condition: “So if I could tell you, as a parent, that your child has a 75-percent chance of becoming a criminal, wouldn’t you want to know and maybe have the chance to do something about it?”   Via

Image, article, originally posted at neuropsydoctor8.

 

"Disentangling Structural Brain Alterations Associated With Violent Behavior From Those Associated With Substance Use Disorders" (Davenport)

Boris Schiffer, PhD; Bernhard W. Müller, PhD; Norbert Scherbaum, MD; Sheilagh Hodgins, PhD; Michael Forsting, MD; Jens Wiltfang, MD; Elke R. Gizewski, MD;Norbert Leygraf, MD - 2011 Jun 6. [Epub ahead of print] Arch Gen Psychiatry. Summary via.

Context  Studies aimed at identifying structural brain alterations associated with persistent violent behavior or psychopathy have not adequately accounted for a lifetime history of substance misuse. Thus, alterations in gray matter (GM) volume that have been reported to be correlates of violent behavior and/or psychopathy may instead be related to lifelong substance use disorders (SUDs).

Objective  To identify alterations in GM volume associated with violent behavior and those associated with lifelong SUDs.

Design  Cross-sectional study.

Setting  Participants were recruited from penitentiaries, forensic hospitals, psychiatric outpatient services, and communities in Germany. Structural magnetic resonance imaging was performed at a university hospital.

Participants  Four groups of men were compared: 12 men with SUDs who exhibited violent behavior (hereafter referred to as violent offenders), 12 violent offenders without SUDs, 13 men with SUDs who did not exhibit violent behavior (hereafter referred to as nonoffenders), and 14 nonoffenders without SUDs.

Main Outcome Measures  Voxel-based morphometry was used to analyze high-resolution magnetic resonance imaging scans. Assessments of mental disorders, psychopathy (using the Psychopathy Checklist–Screening Version), aggressive behavior, and impulsivity were conducted by trained clinicians.

Results  Compared with nonoffenders, violent offenders presented with a larger GM volume in the amygdala bilaterally, the left nucleus accumbens, and the right caudate head and with less GM volume in the left insula. Men with SUDs exhibited a smaller GM volume in the orbitofrontal cortex, ventromedial prefrontal cortex, and premotor cortex than did men without SUDs. Regression analyses indicated that the alterations in GM volume that distinguished the violent offenders from nonoffenders were associated with psychopathy scores and scores for lifelong aggressive behavior. The GM volumes of the orbitofrontal cortex and prefrontal cortex that distinguished the men with SUDs from the men without SUDs were correlated with scores for response inhibition.

Conclusions  These findings suggest that a greater GM volume in the mesolimbic reward system may be associated with violent behavior and that reduced GM volumes in the prefrontal cortex, orbitofrontal cortex, and premotor area characterize men with SUDs.

"Sorting Guilty Minds" (Davenport)

 

"Punishable guilt requires that bad thoughts accompany bad acts. For this reason, we regularly ask jurors to infer the past mental state of a person they do not know as he acted in ways they did not see. Although this is difficult enough, the heavily influential Model Penal Code (MPC) demands even more. It requires that jurors sort defendants’ mental states into one of four specific categories, which in turn can define the nature of both the crime and the punishment.  

The MPC therefore assumes that average people either naturally do – or at least can, when instructed – sort mental states into these four categories with reasonable accuracy. It also assumes that average people will rank order these categories of mental state, by increasing amount of punishment, in the same sequence that the MPC prescribes." - From the abstract, Sorting Guilty Minds, 2011.

So the question is: can the ordinary person accurately assess the difference between the narrow, but very distinct, choice of mental states when determining culpability. This paper represents the first time an experimental design has been applied to test the validity of culpability assumptions as laid out by the 50 year old Model Penal Code. The four mental states jurors are often called upon to determine are 1) purposeful; 2) knowing; 3) reckless; and 4) negligent. Researchers found that, "The bottom line is that in almost all of our experimental conditions our subjects robustly behaved just as the MPC assumes they would, with or without assisting jury instructions. The one exception is at the boundary between knowing and reckless conduct (see chart below), where subjects were profoundly unable to distinguish the categories, even with the benefit of jury instructions. Our results largely validate the MPC approach to culpability, although the difficulty at the knowing/reckless boundary suggests some reforms, either in redefining those categories or, more aggressively, in abandoning the distinction between them, at least in homicide cases, where the distinction can have such enormous consequences."

 

The authors finally suggest, "If the knowing/reckless findings reported here are confirmed in subsequent studies, and if we as a society value treating like defendants and mental states similarly (or at least nonarbitrarily), then we need to do a better job of defining these two categories, without introducing new confounds with the other categories. If better definitions don’t solve the problem we should seriously consider abandoning the distinction between knowing and reckless, at least in homicide cases, where that supposed distinction continues to have enormous legal impacts in most jurisdictions."  

The point is fair enough, though Thomas Naddlehoffer was swimming in the same pool in 2006, when he wrote Bad Acts, Blameworthy Agents, And Intentional Actions: Some Problems for Juror Impartiality highlighting Mark Alicke's affective model of blame attribution -the Culpable Control Model (CCM). In his work, Nadelhoffer offered that "...perhaps there is an even more basic sort of partiality that occurs when jurors are asked to make judgments concerning a defendant’s mental state—especially when the crime in question is a serious one". Shen et al. recognize the lack of research addressing juror decision making on mental states. For instance, I wonder if making such biased mistakes when sorting mental states is correlated to the seriousness of the crime?

 

Shen, Francis X., Hoffman, Morris B., Jones, Owen D., Greene, Joshua D. and Marois, Rene, Sorting Guilty Minds (February 23, 2011). New York University Law Review, Vol. 86, 2011; Vanderbilt Public Law Research Paper No. 11-3. Available at SSRN: http://ssrn.com/abstract=1746107 (Click-thru for full article.)

 

 

"Emotion, Neuroscience, and Law: A Comment on Darwin and Greene" (Davenport)

Josh Greene sure does get a lot of mileage in law reviews. In this comment examining the role of emotion in moral judgment, John Mikhail pivots two theories against each other: 1) Darwin: "emotions respond to independent moral appraisals." and 2) Greene and Huebner: "moral judgments are driven by emotions or a correlational product of unconscious computations."

Whereas Mikhail sides with the Darwin (cozy enough for the last 140 years) if it must be between the two, I would lean towards the Greene/Huebner camp who seem to clarify Darwin by saying:

 

"...that the source of moral judgments lies in our causal-intentional psychology; emotion often follows from these judgments, serving a primary role in motivating morally relevant action." Via. 

So instead of critiquing Greene's experimental methods and his "pseudo-problems" of emotion v. reason in the brain, I might question pitting these particular theories against each other when the latter seems born of the former, and therefore an extension of it, echoing the chicken or the egg solution.  I do agree with Mikhail that at some level of neurobiology, the differences blur, or disappear. However it is this fact, that if given a  proper amount of attention, would surpass the two positions presented here. The idea of being hardwired by evolution to have emotions not just respond to, but also drive and be correlative with moral judgment depending on where you place the fulcrum, may be a theory all on its own. (Is it?)

 

 

Mikhail, John, Emotion, Neuroscience, and Law: A Comment on Darwin and Greene (February 14, 2011). Emotion Review, Forthcoming; Georgetown Public Law Research Paper No. 11-26. Available at SSRN: http://ssrn.com/abstract=1761295. Image: a blurry rep. from The Guardian article x.

"Where in the brain is morality? Everywhere and maybe Nowhere" (Davenport)

Abstract: The neuroscience of morality has focused on how morality works and where it is in the brain. In tackling these questions, researchers have taken both domain-specific and domain-general approaches—searching for neural substrates and systems dedicated to moral cognition versus characterizing the contributions of domain-general processes. Where in the brain is morality? On one hand, morality is made up of complex cognitive processes, deployed across many domains and housed all over the brain. On the other hand, no neural substrate or system that uniquely supports moral cognition has been found. In this review, we will discuss early assumptions of domain-specificity in moral neuroscience as well as subsequent investigations of domain-general contributions, taking emotion and social cognition (i.e., theory of mind) as case studies. Finally, we will consider possible cognitive accounts of a domain-specific morality: Does uniquely moral cognition exist?

Neuroimaging studies often attempt to connect behavior with physical characteristics of the brain in terms of identifying neuroanatomical aspects of psychological conditions (e.g., aggression to psychopathy). This paper tries to connect cognitive processes with structure asking where is morality located? Researchers examined the literature answering that it was found all over the brain; ventromedial prefrontal cortex (VMPC), the left medial orbitofrontal cortex and medial Brodmann area 10 (ed. see comments), when moral situation statements were used. These are areas associated with risk, fear and  cognitive processing of decision-making, respectively. The other locations were the right medial orbitofrontal cortex and medial frontal gyrus, and lower medial Brodmann area - when visual stimulus was used. These areas of the limbic system are involved in emotion, reward, behavior and memory.

As such, the researchers define morality as a combination of characteristics such as emotion and theory of mind, which encompasses a full range of mental states (beliefs, desires, intentions and imagination) that cause action. This paper finds ..."not necessarily the moral brain, but the engagement of the emotional brain and the social brain during moral cognition”. So, the end suggestion seems to better define precisely what we are looking for in terms of morality, then we can better hone in on where “it” may be.

 

Where in the brain is morality? Everywhere and maybe nowhere. (May 2011) Young, L., Dungan, J.,  Soc Neurosci. P.1-10. [Epub ahead of print] DOI: 10.1080/17470919.2011.569146 

"Neuroethics and fMRI: Mapping a Fledgling Relationship" (Davenport)

Despite cries from traditionalists in the legal field cautioning to resist neuroscience in the court room, interest in neurolaw research continues to grow. As a result, philosophical and ethical concerns surrounding the real life applications of neuroscience and fMRI use in the legal arena are proving impossible to ignore for all sides. However, in terms of the dearth of research that exists combining all of these issues (see graph below), this paper finds "...there are few articles that discuss both fMRI and ethical, legal, or social implications, and even fewer direct citations between the two literatures". 

Content analysis of neuroethics publications and citation contexts.

 For a current analysis of the "extension of ethics into published fMRI research, and the locus of fMRI in ethical, legal, and social commentary" this article is not only a climate report but a directional call for much needed collaboration between disciplines.

PLoS One. 2011; 6(4): e18537.

Published online 2011 April 22. doi: 10.1371/journal.pone.0018537

 

Sasha Davenport is a graduate student in behavioral neuroscience with a background in forensic psychology, who blogs about neurolaw related topics at NueroPsyDoctor8. She will be guest blogger for the next month.