Neurolaw: Your "flawed brain" takes the rap

Steven K. Erickson, J.D, LL.M., Ph.D., Visiting Associate Professor of Law at the University of Missouri School of Law writes to advise me of his new paper on neurolaw at the Social science Research Network. Here's the abstract:

Blaming the Brain

Steven K. Erickson
University of Missouri School of Law

September 12, 2009

Abstract:

Criminal law scholarship has recently become absorbed with the ideas of neuroscience in the emerging field of neurolaw. This mixture of cognitive neuroscience and law suggests that long established conceptions of human agency and responsibility are fundamentally at odds with the findings of science. Using sophisticated technology, cognitive neuroscience claims to be upon the threshold of unraveling the mysteries of the mind by elucidating the mechanical nature of the brain. Despite the limitations of that technology, neurolaw supporters eagerly suggest that those revelations entail that an inevitable and radical overhaul of our criminal justice system is soon at hand. What that enthusiasm hides, however, is a deeper ambition among those who desire an end to distributive punishment based on desert in favor of a prediction model heavily influenced by the behavioral sciences. That model rests squarely on the presumption that science should craft crime policy at the expense of the authority of common intuitions of justice. But that exchange has profound implications for how the law views criminal conduct and responsibility - and how it should be sanctioned under the law. Neurolaw promises a more humane and just criminal justice system, yet there is ample reason to believe otherwise.

"Neurolaw promises a more humane and just criminal justice system, yet there is ample reason to believe otherwise." Absolutely. For one thing, the very meaning of the terms becomes altered. If people were really just meat puppets iterating their evolutionary programs, "humane" would mean no more than it means for dogs. Jurisdictions that have abolished capital punishment will adopt euthanasia.

Similarly, the term "just" is meaningless if we do not assume free will and moral choice. If you can't be guilty, you can't be not guilty either. So justice hardly enters into it. In fact, it shouldn't even be called a "justice" system any more, because the question is not whether the justice system worked well or badly; the concept is meaningless.

And, as for predicting who is going to commit a crime, as above, that road leads straight to the criminalization of thought. At one of my other blogs, the Post-Darwinist, I often write about the criminalization of thought in Canada, under infamous Section 13 of our Canadian Human Rights Act, under which you can't not be guilty. See Ezra Levant's Shakedown for more on that or go here.

Now, I wouldn't be very surprised if a "neurolaw" specialist comes forward to sniffily announce that people like me have it all wrong. Not a chance. First, it's already happened. An acquaintance who is a psychiatrist pointed out to me years ago the sad fate of people who have committed a crime, who try to avoid a jail term by acting insane, therefore not criminally responsible. Some succeed in convincing a psychiatrist. They can then be committed to a mental home under a Lieutenant Governor's warrant.

But there is a catch ... unlike a prison, a mental home does not have fixed terms. See, if a guy stabs another guy in a knife fight in a bar, maybe he does two years less a day, but after that he is free to go. And he can apply for a Governor General's pardon after five years if he behaves himself in the meantime, in which case his criminal record is no longer available to the public. But he can't get out of a mental home unless he convinces a psychiatrist that he is sane, so - my acquaintance pointed out - many end up staying longer, and living under far more restrictions than in a prison. (Also, they are living with people who really are insane.) So the strategy usually turns out to be a poor idea.

Neurolaw would end up treating everyone like this, as sick patients, not errant citizens.