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.

Neurolaw? Your brain is your best defense ... literally!

In “Why blame me? It was all my brain’s fault”, Raymond Tallis warns against “the dubious rise of neurolaw”. Essentially, this is an effort to calim that the defendant's "brain" did it (and therefore he himself didn't). He writes,

Those who blame the brain should be challenged as to why they stop at the brain when they seek the causes of bad behaviour. Since the brain is a physical object, it is wired into nature at large. “My brain made me do it” must mean (ultimately) that “The Big Bang” made me do it. Neuro-determinism quickly slides into determinism tout court.

And there is a contradiction built into the plea of neuromitigation. The claim “my brain made me do it” suggests that I am not my brain; even that my brain is some kind of alien force. One of the founding notions of neurolaw, however, is that the person is the brain. If I were my brain, then “My brain made me do it” would boil down to “I made me do it” and that would hardly get me off the hook. And yet, if I am not identical with my brain, why should a brain make me do anything? Why should this impersonal bit of matter single me out?

Of course, the underlying idea, as Mario Bearegard and I explain in Chapter 5 of The Spiritual Brain is that consciousness and free will really don't exist.

And sure enough, the comments to the article make that agenda perfectly clear:

... a central tenet of neuroscience (as distinct from both neurolaw and neuromythology) is that behavior is the result of neural activity -- there is nothing extra. While this conclusion may be debated, if it is true then the question is not to distinguish between acts caused by brain activity and those caused by persons, but to distinguish between pathological from normal neural activity,

writes Paul C. from Atlanta.

We, as a society, will need to come to terms with the fact that true free-will and genuine responsibility in the sense people want it to be true are not scientifically (or philosophially) viable. Instead, our apportioning of blame, or not, to individuals for their actions is based on a blend of culture and evolutionary traits.

chimes in Elan from Boca Raton.

Neither commenter explains how that has been demonstrated, and for a very good reason: It hasn't been demonstrated. Rather, it is a central tenet of materialism! If you are a materialist, you will believe that that is true and you will look for confirmation. You will ignore or treat as a problem any evidence that it is not true.

Read the Introduction to The Spiritual Brain here for a look at the actual state of the evidence, which is quite different from what the materialist implies. Note, for example, that a recent edition of Scientific American we read:

How Does Consciousness Happen

Two leading neuroscientists, Christof Koch and Susan Greenfield, disagree about the activity that takes place in the brain during subjective experience

By Christof Koch and Susan Greenfield

Well, if there is still debate even about what activity takes place (and this doesn't even address the "hard problems" of consciousness), you can be pretty sure that materialists have not made their case.

In the end, neurolaw is just another materialist fad like Freudianism or Marxism or Darwinism. My brain made me do it instead of my mother made me do it or my class position made me do it or my animal ancestors made me do it.

The best argument for the self ever devised is the strange fact that, whenever there's trouble, the only one who DIDN'T do it is me.

Neurolaw: Stephanie West Allen on its potential dangers

Stephanie West Allen of Brains on Purpose worries about "neurolaw" - a new specialty that attempts to fritz people's brains to discover the state of their responsibility in criminal cases:

As I have blogged before, neurolaw is fraught with danger and unsubstantiated promises. It overestimates what we can do, and learn about people, with the current state of neuroscience and leaves out some of the research that contradicts many of its assertions and predictions. Scary. I hope to promote critical thinking on the topic.

At the seminar on neuroscience and conflict resolution last week, I asked Dr. Jeffrey Schwartz to talk about the MacArthur Foundation grant to study neuroscience and law. He covered several of the problems that could result from research that leaves out much of the picture. (See my blog post for more.)

I think she is right to worry. With a $10 million dollar grant from the MacArthur Foundation, neurolaw promoters can connect up with zillions of defense lawyers who would like to get their client off - just this once.

Fair enough, but ... at the price of leading the client to believe that one cannot control one's behaviour? One is trapped in crime? That's just not true for most people, and it has never done any good for those who believed it.

Choosing short term gratification as opposed to long term welfare is NOT evidence that we cannot control our behaviour. It is a decision - nothing more and nothing less. Sometimes it is a decision that ends in a fine or jail time. Otherwise, loss of friends, lovers, jobs, health, or life.

Neurolaw: The new "Freudian psychology", but this time with expensive gadgets?

Recently, I noted here and here the growth of "neurolaw," the - in my view often misguided - attempt to apply neuroscience to crime and punishment. I've since had a chance to read the excellent article by Michael S. Pardo and Dennis Patterson, "Philosophical Foundations of Law and Neuroscience", to be published in the University of Illinois Law Review in 2010. It provides an overview and critique of this growing field (and explains why it should shrink instead).

On a personal note, all this reminds me so much of Freudianism. Once upon a time, many years ago during an argument, an amateur Freudian psychologist informed me that my problems - as he perceived them - were due to the fact that I hated my mother.

I had never imagined that. How could I hate my mother and not even know it? Well, he explained, the hatred was in my Unconscious ....

So I solved the problem immediately by just disbelieving in the Freudian Unconscious. I continued to disbelieve and to not hate my mother, so far as I know and my behaviour would suggest, for another 45 years. Of course, it is possible I have a Freudian Unconscious somewhere in which I hate my mother, but it has had no impact on my life.

Today, the same person would announce instead that he had found a "hate Mom circuit" in my hippocampal gyrus, or something.

So no, I don't think neurolaw is any more scientific than Freud's Unconscious. Finding someone's fingerprints - and only his fingerprints, not anyone else's - on the steak knife used to stab another patron in a bar plus a security videocam catching him stabbing that guy, now that's what I mean by "scientific." I don't mind paying taxes for a criminal justice system that deals in that sort of evidence, but I am very skeptical of this "neurolaw" craze.

I've always thought neuroscience should stay as close to medicine as possible. In medicine, as Sir William Osler put it, you cure sometimes, alleviate often, and comfort always. So neuroscience would never be a weapon against anyone; it might help or might not help, in cases of strokes or mental disorders, for example, but the first principle of medicine, as Hippocrates used to say, is "First, do no harm."

Neurolaw: The most sophisticated method of punishment ever?

At Medical Humanities blog, Daniel Goldberg offers resources for critiquing "neurolaw" (= you didn't do it, your ailing brain did. But then "you" don't exist anyway. That's just a harmful illusion.):

At the UCL Law & Neuroscience Colloquium, I had the pleasure of meeting Mike Pardo, a law professor at the University of Alabama who apparently shares some of my skepticism at the reductionist tendency to equate brain with mind. Pardo, along with one of preeminent American philosophers of law, Dennis Patterson, recently wrote an excellent rebuke to neuroreductionism that addresses and critiques many of the foundations of the conventional approaches to law & neuroscience. We covered the article at MH Blog here, and you can find further discussion of it here, at Adam Kolber's fine Neuroethics & Law Blog.

'Bout time someone did. This is probably the most sophisticated approach to punishment/capital punishment in all human history. Persuade the person that his mind is only an illusion, and that he has no control over what he does. He is "sick." Not wrong, not badly behaved, not mistaken, just plain "sick," like he had the flu or something.

No use raging against the machine; he is only a cog in the machine, and a badly functioning one at that.

He can be "cured" (maybe), but cannot decide to reform or make his peace with the world. He must be "fixed."

I am glad that most current prisoners are poorly educated. They will be unlikely to believe neuroreductionism.

You must be educated way beyond your intelligence to believe this stuff.

See also:

Neurolaw: Stephanie West Allen on its potential dangers

Neurolaw: Your brain is your best defense ... literally

Neurolaw: Confusing intent with motive is a threat to civil rights

Re the problem with "neurolaw" (the attempt to scan brains to identify criminal behaviour), I have said this before, but it is worth repeating in the context: Law is, or should be, concerned with "intent", not "motive."

Yes, yes, in detective fiction, everything hinges on motive: Cousin Harry murdered Aunt Sally to get her fortune; plain Jane murdered pretty Kitty because Kitty got the man; squadron leader Beeder murdered that guy because of a long ago wartime betrayal ....

However, real law depends in design inferences, not speculations about motive. Here is the story I sometimes tell to explain that:

Tom and Dick are enjoying beer and wings in a pub.

Suddenly, the conversation becomes loud and animated.

Tom seizes a dinner knife and tries to plunge it into Dick's chest. He is restrained by burly patron Harry and several others.

The whole thing is caught on videocam.

Mid-uproar, someone calls the police, and they charge Tom with attempted manslaughter.

The police need not know his motive, only his intent - which was pretty obvious. That's a design inference.

Later, the investigating officer learns how the quarrel began: Dick had informed Tom that he was seeing Tom's girlfriend, so Tom should just buzz off. Tom didn't like that idea.

Knowing a person's motive certainly helps us understand the story. But intent - the demonstrated attempt at murder in this case - is what matters in law.

Here's the difficulty: Suppose Tom had just got up from the table and left, and spent three months fantasizing in the wee hours about killing Dick - without ever seeing either Dick or the former girlfriend again. He has plenty of motive, but the fact is, he never did anything.

Then Tom is of no interest to the law, as it now stands - though his family doctor should be concerned. Tom needs a more constructive way to deal with rejection. (He also needs a more faithful girlfriend, but all in good time.)

However, in a materialist environment, I would hardly be surprised to hear theories about Tom's violence genes and violence neurons, some based on neuroscience techniques - even if all the violence was inside his own head.

Some may argue for action against Tom "pre-crime". That's where the threat to civil liberties comes in.

Neurolaw seems like materialism applied to law, hence a threat to civil rights, because it can easily confuse motive with intent - overturning centuries of progress in justice.

Neuroscience and design: FMRI flops in first criminal trial

A friend notifies me to look here re neurolaw and the death penalty. He writes,

The threads of the Jeanine Nicarico murder case are too tangled to attempt even a summary. Suffice it to say that an innocent man was sent to death row, and before it was all sorted out police and prosecutors were charged with fabricating evidence and there hasn't been an execution in Illinois in over a decade. The final act played out last November in a suburban Chicago courtroom where the real killer, Brian Dugan, asked a jury to spare his life. To assist, his lawyers ... presented fMRI images -- a first in a U.S. criminal trial. The pictures revealed that parts of the brain that light up in normal people remained cold and dark in Dugan's brain. The defense expert described these areas as regulating impulse control and emotional reactions. In short, Dugan was a classic psychopath, and the fMRI helped to prove it.

Although prosecutors had tried to keep the evidence out by challenging the science behind it, the judge ruled that under the relaxed standards of mitigating evidence in a death penalty case, it should come in. Fearful of "The Christmas Tree Effect" dazzling jurors with colorful snapshots of Brian Dugan's grim interior life, the judge originally ruled no images could be admitted. Later he reversed himself, and Dr. Kiehl, a New Mexico researcher who hauls an fMRI trailer from prison to prison for grant-fueled research on criminals, was able to show the jury the cold, dark spaces that he claimed correlated to the brutal sexual assault and murder of a young girl. Brian Dugan's brain was to blame and they had the pictures to prove it.

Apparently the jury did not appreciate how being a psychopath worked in the defendant's favor. They sentenced Brian Dugan, broken brain and all, to death. .

The jury may or may not have discounted the science, but they probably bought it to the extent they understood it. The point is, they refused to split Brian Dugan into a legally responsible entity on one hand, and a broken brain on the other. They may have judged him to be a bad person, but they saw him as a package of damaged goods that was nonetheless a person, and one deserving of the ultimate penalty. Arguably, adding advanced neuroimaging to the proof that Dugan was a psychopath may have actually hurt Dugan more than helped him. There was no suggestion that he could not appreciate the wrongfulness of his acts or keep himself from doing them. Scientific proof that Dugan was a cold, remorseless killer is not considered to be the best mitigation, but the defense lawyers had been dealt a bad hand in a high stakes game and thought the broken brain card was worth playing. One of his lawyers said this case was "unique" and did not foresee frequent use of the technology.

Note that this worked out exactly as I predicted the last time I wrote you about the neurolaw fad in academia. In its first real test, jurors shrugged and voted for death. It will never play in Peoria.

My sense of the situation is as follows:

1. Advanced Western democracies do not need the death penalty because we can just keep people locked up until they are no longer dangerous. Dramatic strategies, such as the death penalty, tend to glamorize crime. By contrast, a guy who pounds out auto licence plates for 25 years to earn himself packs of smokes, to get him through the night in prison, is not glamorous.

2. I am not surprised that the jury didn't believe it. The key question is not "what is going on in that guy's brain" but "what steps could he have taken such that he would not have committed a fatal assault? If he did not take them, why not?"

3. I don't think "neurolaw" has anything to contribute. If adults are truly not responsible for their actions, they should be living in a supervised group home. At least, that is how we have usually done it here, and it works pretty well. I mean, if you go by the fact that my own country, Canada, is a low crime/low threat jurisdiction.

Neuroskepticism - a breath of fresh air from New Humanist - and maybe more legal safety too?

Neuroscience is, unfortunately, increasingly taken over by what I often describe as neurobullshipping. You know, neuroeconomics,, neurolaw ... It basically amounts to determining which regions of the brains of carefully chosen subjects light up when certain propositions are introduced.

Relief at last!

Here, at New Humanist, Raymond Tallis rallies the neuroskeptics ("Neurotrash", Volume 124, Issue 6, November/December 2009). 'Bout time someone did, I'd say. What's really good is that it comes from an unexpected quarter, at least for me.

He writes,

Hardly a day passes without yet another breathless declaration in the popular press about the relevance of neuroscientific findings to everyday life. The articles are usually accompanied by a picture of a brain scan in pixel-busting Technicolor and are frequently connected to references to new disciplines with the prefix “neuro-”. Neuro-jurisprudence, neuro-economics, neuro-aesthetics, neuro-theology are encroaching on what was previously the preserve of the humanities. Even philosophers – who should know better, being trained one hopes, in scepticism – have entered the field with the discipline of “Exp-phi” or experimental philosophy. Starry-eyed sages have embraced “neuro-ethics”, in which ethical principles are examined by using brain scans to determine people’s moral intuitions when they are asked to deliberate on the classic dilemmas. Benjamin Libet’s experiments on decisions to act and the work on mirror neurons (observed directly in monkeys but only inferred, and still contested, in humans) have been ludicrously over-interpreted to demonstrate respectively that our brains call the shots (and we do not have free will) and to point to a neural basis for empathy.

Yes, pop neuroscience is beginning to sound more like "evolutionary" psychology all the time.

Responding to Tallis's article's title, "Neurotrash", I wrote to friends to say, more or less,

What we need is a really big neuro-trash can.

The result of all this nonsense is that neuroscience gets discredited when it is, used appropriately, an immense help in medicine.

Remember, it was neuroscience that established that stroke victims were losing use of limbs through learned helplessness, not irreversible brain damage. Jeffrey Schwartz, Vince Paquette, Mario Beauregard and others have also demonstrated that non-drug, non-invasive treatments of mental disorders actually work - especially important for those disorders that cannot be effectively treated by drugs or surgery. (I am sure there are others whose work I do not know.)

Here's what I know for sure: I remember the rows on rows of beds in the chronic care hospital I used to volunteer at in the 1960s. Compare that to the much more favourable prospects brought about by the Decade of the Brain (1990s)! But it wasn't easy. One neuroscientist all but lost his career introducing the "learned helplessness" concept (why stroke patients, in many cases, lost the use of limbs through simple non-use). Only neuroscience could really have uncovered that.

That’s the real story, and Tallis talks about it. We should stick to it.

It’s also why I always say neuroscience should stay close to medicine and far from silliness - like which area of the brain lights up if a woman decides to buy the flaming yellow pants with movie star decals instead of the quiet brown pair*.

Seriously, however, in the justice system, neuroscience, inappropriately used, could be quite dangerous. Cf neurolaw.

If we can’t convict an alleged perpetrator of a crime on the external evidence, we should not be trying to scan his brain.

Who cares what that guy thinks anyway?

It’s not a crime around here to think, only to act in a way that is outside the law. If the prosecution can't prove he did it, then ... they can't make their case, and that's just too bad for them.

And, as I like to say, if you don't like English Common Law (= whose basic principle is that the accused is innocent unless proven guilty), please live in some jurisdiction where no one has ever heard of it. We like it here.

In the meantime, enough with this neurolaw stuff.

(*The Unforgivably Bad Taste region, maybe? Wonder where it is? Not many women could make that work.)

Neurolaw: Could capital punishment kill it?

I sure hope so. Recently, I have said that I don't believe in capital punishment; anyway, Canada does not have it any more.

Note: I am not in any way soft on crime or inclined to make excuses for serious perps. I've dealt with enough perps in my own life that I have zero interest in cutting them any slack.

That said: a key problem is the drama that usually unfolds around capital punishment.

A perp declaiming speeches at the foot of the scaffold sounds way more interesting than one who is merely disappearing into the pen system for yay years. = food, clothes, and board for life, freedom from vengeance of relatives of the deceased. Plus - to the best of my knowledge - we don't flog or torture here in Canada.

So he is there and not here. Hammering out licence plates somewhere in a guarded facility in exchange for smoke chits. Which is what most of us want. We don't want him in the parking lot across the street.

A lawyer friend, Timothy Capps, who addresses death penalty cases, comments, specifically re neuroscience evidence in death penalty cases,

... if portable, relatively inexpensive neuroimaging devices filtered down to police agencies, they would definitely be used in the investigative process. Polygraphs have always been less about detecting lies than extracting confessions. They are the hardware version of the "evidence ploy," and are used to convince a person that he is hopelessly guilty. The National Academy of Science has declared polygraphs are humbug. It doesn't matter. They are used effectively every day to convince suspects that they had better confess and get the best deal they can get. A machine that produced a bright image of a brain with a red blot would be even more compelling to a suspect.

In the courtroom, neuroimaging will be tried by some mitigators in death penalty cases where many jurisdictions provide unlimited funding to the defense and lawyers are among the best and most highly motivated. Even here, the practical difficulties discussed in our little newsletter guarantee it will not see wide acceptance. While the courts might be willing to go along with the latest in science, it just won't work as mitigation. Future dangerousness is a huge factor in giving the death penalty, and having a broken brain is about as dangerous as it gets. More useful to the prosecution, who will not have the same access to the defendant.

Trust me on this one. Neurolaw is a lot more exciting to academics than it is to the real lawyers who would be the ones to use it. Illinois is a death penalty state with death penalty defense experts on the state payroll and unlimited funds for the defense. If I don't see it being used here, its future isn't very bright. This isn't even considering the problems with Frye and Daubert determinations about the scientific validity of the evidence.

Well, I don't think neurolaw should be used. The science base is just not clear enough. It reminds me of eugenics, a bogus science of the early twentieth century.

He also predicts,

Fewer states will have the death penalty as time goes on here. Too expensive, too messy. Ohio just halted executions after they could not get a needle in a guy despite sticking him in the arms, hands and feet for the better part of an hour. (Kind of completes the symbolism begun by the cruciform gurney.) The guy was even trying to help. They eventually took him back to his cell and that was that!

Wow. He may have needed treatment for injection wounds to various body parts. I hope he got it.

I replied to Capps:

I do keep boring people with this talking point: We Canadians are not nearly as soft as some right-wing American pundits make out.

We just don’t want all the horsing and fooling (and expense) around preventing an execution. So we don’t execute people.

Suddenly, no one cares what happens to the perp.

Look, if a guy is dangerous, he’s dangerous. Why spend a lot of money preventing his execution if he can disappear into the pen system – and half the time even he doesn’t care as much as you might think.

Eventually, he gets too old to be dangerous, and we let him out.

Why not? If some old feller tried whacking me with his cane on the street, I would grab the cane, ask for witnesses, and complain to the police.

He would likely get put away again, this time for senile dementia.

Note; One of my late uncles once did a private study of the people who hid out in the hills on our vast open prairie. Some, it turned out, were wanted for murder in various US states. Given the grim northern winters, they might have preferred life in a prison with central heating and regular meals.

It was the noose they feared. But that didn't help anyone solve any murder.

Neuroscience: "The Young and the Bureau"

Stephanie West Allen at Brains on Purpose draws my attention to her post on David Brooks's column, "The Young and the Neuro" (New York Times, October 12, 2009), extolling the eager young neuroscientists who - in my view - know just enough to get it all wrong, as follows:

Since I’m not an academic, I’m free to speculate that this work will someday give us new categories, which will replace misleading categories like ‘emotion’ and ‘reason.’ I suspect that the work will take us beyond the obsession with I.Q. and other conscious capacities and give us a firmer understanding of motivation, equilibrium, sensitivity and other unconscious capacities.

The hard sciences are interpenetrating the social sciences. This isn’t dehumanizing. ...

Oh yes it is, and it is intended to be.

Given the way things will go if pseudo-disciplines in neuroscience catch on with government - for example in the criminal justice system - (cf "neurolaw"), were I the headliner, I would be tempted to retitle Brooks's piece, "The Young and the Bureau."

Anyway, West Allen comments on the underlying assumption that the mind does not really exist.

As Dr. Jeffrey Schwartz has said, "The brain puts out the call, the mind decides whether to listen."

Many of the materialists do not believe in free will. (See, for example, the first link below.) This reductionist lens can be insulting to the human spirit. In the legal profession, it can be dangerous

She provides links at the above post to many excellent posts arguing the dangers of neurolaw.

As I always say, if the prosecution team cannot convict on the external evidence, it cannot convict, period. People are citizens with civil rights, not goats or beetles. A government that does not recognize that fact should not exist. If your government does not recognize it, please hold a revolution soon.

If everyone who thought about murder did it, half the bosses on the planet would be found dead on their coffee break - and scads of administrative assistants too.

Incidentally, West Allen is not the only skeptic. As I reported earlier, a writer for New Humanist - not the source that would have immediately jumped out at me - has expressed similar, justifiable skepticism.

More on neurolaw: The brain as a cement cast?

Stephanie West Allen here summarizes a recent New York Times Magazine article about neurolaw, touching all the "you are just a meat puppet" bases. That's not true and it's not helpful either. She notes,

Curious omissions from the article were the phenomena of neuroplasticity and self-directed neuroplasticity. Rosen described the brain as if it is static and unchanging, as if we are stuck with the brain we have.

Well, not only is that not so, but the fact that it is not so is key to health care in an aging society (people must cope with strokes, Parkinson's, etc.), as well as rehabilitation for people addicted to substances (who have a high crime rate).

The article offers some strange stuff, for example

Rosen quotes Dr. Joshua D. Greene.

“To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,” Greene says.

But that's not true. I am not my brain. If I were, my brain could be sitting in a vat somewhere, and that would be me.

No chance. The picture you see at the top right is me. Even if I were a total materialist (I'm anything but), I would still need to recognize that lots of things influence my behaviour - including the weather, the economy, and the stupid hornet buzzing around my desk. My brain records these influences, to be sure, and helps me react to them - but it may not be the primary factor about me that they affect. If, due to weather conditions, I get the flu, for example, my brain is one of the few key organs that probably won't be much affected; it will only be monitoring and recording the distressing events, whether I like that or not.

No one is going to get far understanding human behaviour if they treat people as "brains in a vat."

Neurolaw: Mind readers bustle into the court room

I am sure glad someone is writing about this, though glad it isn't my own job.

The problem is that judges and jurors will mistakenly assume that technologies that are demonstrably valid medical diagnostic tools yield equally valid conclusions when they are used to map the neural correlates of deception and other forms of cognition.

I think what this person is trying to say is this (though he can't just come right out and say it): Neuroscience can tell you if an elderly person's brain problems are the likely cause of serious cognitive deficits. That's very useful; one can make better decisions for that person's care, decisions that respect his dignity too.

If neuroscience claims to tell us whether Jimmy "the jimslamm" is lying, well, yes of course he is.

If his lips are moving and intelligible sounds are coming out of his mouth, he is lying. I've dealt with lots of people like him so I can tell you for free and save you trouble.

But what is he lying about this time? I don't like this new neurolaw craze for a number of reasons. I think Jimmy should just take his chances with a skilled Crown*. A fair fight.

*In Canada, counsel for the prosecution

The Future of Neuroimaged Lie Detection and the Law

Joelle Anne Moreno
Florida International University College of Law

Akron Law Review, Vol. 42, pp. 717-734, 2009
Florida International University Legal Studies Research Paper No. 09-06

Abstract:
Neuroscience will certainly change law. In fact, neuroscience research has the potential to influence a vast range of legal decisions. To the extent that neuroscientists increasingly make claims that neuroimaging reveals cognition, even the most unimaginative prognosticator might predict: (1) the preliminary investigative use of neuroimages to enhance witness interviews and police interrogations (including but not limited to lie-detection), (2) jury selection based on neuroimages that appear to reveal jurors' unconscious stereotypes or biases, and (3) arguments about intent or sentencing based on neuroimage-enhanced explanations of behavior and predictions of dangerousness. In anticipation of a brave new world of neuroscience 'enhanced' law, this Article suggests that if we want to predict or control future social and legal responses to cognitive neuroscience research, we must carefully and explicitly consider two basic preexisting realities: (1) our shared assumptions about the validity of the medical field of neuroscience and the accuracy of diagnostic neuroimaging technologies; and (2) our increasingly frequent exposure (even within the mainstream media) to uncritical reports of cognitive neuroscience research that purports to correlate brain activity with cognition, deception,or social behavior. The risk, is that if we ignore these realities, judges, jurors, and the general public will likely view all or most neuroscience-based evidence as legitimate 'hard' science because researchers rely on technologically sophisticated neuroimaging tools of demonstrated accuracy. The problem is that judges and jurors will mistakenly assume that technologies that are demonstrably valid medical diagnostic tools yield equally valid conclusions when they are used to map the neural correlates of deception and other forms of cognition.
Accepted Paper Series

Neuroscience: Beware the moron neuron defense!

Stephanie West Allen over at Idealawg has a great post on "Brain Overclaim Syndrome - expecting too much from neuroscience.
She quotes from a journal article, by University of Pennsylvania law prof Stephen Morse:

[I]nfected and inflamed by stunning advances in our understanding of the brain, advocates all too often make moral and legal claims that the new neuroscience does not entail and cannot sustain. Particular brain findings are thought to lead inevitably to moral or legal conclusions. Brains are blamed for offenses; agency and responsibility disappear from the legal landscape. For example, in Roper v. Simmons, advocates for abolition of the death penalty for adolescents who committed murder when they were sixteen or seventeen years old argued that the demonstrated lack of complete myelination of the cortical neurons of the adolescent brain was reason to believe that sixteen and seventeen year old murderers were insufficiently responsible to deserve capital punishment. ...

For the record, I oppose capital punishment and I am glad we do not use it in Canada.

But the worst reason for opposing capital punishment would be a belief that people are not responsible for their actions!

After all, dogs are not responsible for their actions, and we put down vicious dogs simply on the owner's consent.

Here in Toronto, if I recall correctly, the rule is that if a dog has injured someone, the city can get a court order to put down the dog. Then the owner will be convicted of keeping a vicious dog and fined. But if the owner just agrees to have the dog put down without forcing a trial, he can avoid charges and fines. (Of course, there may be civil liability for the damage, but that is a separate issue - often fought out between the lawyers for rival insurance companies, I suppose.)

For these reasons, I am worried about this "neurolaw" trend to find that people are not responsible for their actions.

First, it isn't true. Mario Beauregard's research and Jeff Schwartz's research, among others, as itemized in The Spiritual Brain: A neuroscientist's case for the existence of the soul, clearly shows that people can and do control their brain states when asked by an investigator to do so.

Second, it is a poisoned apple. People may be tempted by it because they see it as accomplishing some practical good - like getting someone into therapy instead of jail - but overall the price is too steep. The practical good can be, and should be, achieved by more normal means.

For example, there are perfectly good reasons for abolishing capital punishment, as many Western nations have done, that do NOT require us to believe that no one is really responsible for his or her actions.

Here in Canada, a number of people who served decades in prison were cleared by new techniques such as DNA evidence. Had they been hanged, they would not now enjoy a free middle age, with their name cleared.

To me, the problem of wrongful conviction is a far better argument against capital punishment than claiming that, if these people had indeed committed the murders, they weren't really responsible for their actions.

The point that the wrongfully convicted make is that they didn't do it at all, not that they did it but are not responsible for their actions.

Neuroscience: You can't have a second chance if you never had a first one

Here is a really interesting newsletter from the US state of Illinois where some lawyers battle to prevent poor wretches from execution. (We don't have the death penalty in Canada.) Some of the lawyers concerned are not happy with "neurolaw" theories, according to which the defendant had no free will and thus couldn't help it.

I'm on their side. When we abolished the death penalty in Canada, about forty years ago, it was NOT because we thought people couldn't help it. In those days, most people went to church, and we assumed that people could in fact help it.

But what did capital punishment contribute to our society, besides gruesome and distressful scenes, and terrible memories for the survivors? Most Canadian murder cases - quite rare - were just the sort where punishment as such is a meaningless deterrent. You know, the guy kills his girl (who is seeing another man) and then shoots himself, but misses. Or an old woman kills her demented husband and then attempts suicide but fails.

I sure won't vote to finish the job for them. I think it is better they spend some years in prayer and reflection.

Claiming that people can't help doing what they do just makes everything worse, because those who can't help their behaviour also cannot - by definition - reform later. So there is no such thing as a second chance, because there was never a first one.

How that helps a justice system, I will never know.

My latest MercatorNet story: Brain scans and neurotrash

It's the ultimate branding strategy. Just slap "neuro" before a word and the goofiest speculation becomes respectable science." Here:

Unfortunately, neurotrash may not always be harmless nonsense in marketing departments about what color of car people choose. Increasingly, in the form of neurolaw, it is catching on in the legal profession, in the same way that lie detector tests did decades ago. What happened there was that some people learned to fake results - people who may well have committed serious crimes. Who knows how many others were damaged by false results when they were innocent?

A serious ethical question also erupts as to why the accused's brain should be scanned anyway. It is not a crime to think about a crime, only to act outside the law. Even if a brain scan showed the accused was thinking about it, that would never prove he did it. Lots of employees hate their boss and wish the boss would just drop dead. If you scanned their brains... well, let's say it's better not to go there. Very few employees actually commit a violent crime against the boss, so the brain scan evidence -- even if reliable, which it probably isn't - is not worth gathering.

Also, we must consider traditional principles of law. Under English common law, if a person cannot be convicted on the external evidence of their intent and actions, that person cannot be convicted. Period. It is too bad if the prosecution team loses, even when morally certain that the accused is guilty. But that is an incentive to improve their procedures in normal ways.

Yes, it matters. Your family doctor should be reading this.

Go here for more.

Neuroscience and criminal justice: Voodoo, for example ...

A friend draws my attention to the attempt to incorporate brain scanning into criminal justice.

Neurolaw and Criminal Justice

By Ken Strutin, Published on December 28, 2008

Rapid advancements in forensic neuroscience are having an impact on criminal justice. The use of neuroimaging has emerged from medical analysis identifying abnormalities and dysfunctions to delving into lie detection and decision making. The courts are facing evidence about what the brain's form and function can reveal about human behavior and knowledge.

Currently the application and validity of neuroscience in criminal cases is being debated, particularly as a basis for prosecution. See, e.g., Judges Junk Bogus Neuroscience, New Scientist, December 21, 2008 (Judge John "Kennedy's gathering, at the New Jersey Judicial College in Teaneck, agreed that brain scans, if accompanied by the opinion of a medical professional, can reveal if a person is in pain or mentally competent to stand trial, but cannot be used to determine a state of guilt."); India’s Novel Use of Brain Scans in Courts Is Debated, New York Times, September 14, 2008 ("Now, well before any consensus on the technology’s readiness, India has become the first country to convict someone of a crime relying on evidence from this controversial machine: a brain scanner that produces images of the human mind in action and is said to reveal signs that a suspect remembers details of the crime in question."

I am deeply skeptical of this trend, and glad if it is being treated with an appropriate amount of distrust (= a lot of distrust). This is really no different in principle from the "recovered memories" fad - an effort to use occult systems of knowledge to discover what cannot be learned by conventional methods.

My own view is that whatever cannot be learned by conventional methods should just be considered inaccessible for present purposes. There is otherwise a vast scope for well-intentioned abuse. And well-intentioned abuse is often the worst kind, because it tends to be widely accepted.

How much better is this really than "If the Sacred Chicken pecks in your direction, you must be guilty ... "?

Neurolaw: Simulated study stirs debate

In "True Lies" (ABA Journal "Law News Now", October 2009 issue), Mark Hansen reports on a controlled experiment that used neuroscience to determine in a simulation who was "telling the truth" and who was "lying." No surprise this might work in a controlled experiment, but applying it to the real world courtroom poses serious challenges. A key problem is that unless you already know for sure what happened, you don't even know what evidence you should be asking about.

Also, in real life, false positives would be common for other reasons, for example:

The fact that somebody “recognizes” something doesn’t necessarily mean he’s guilty of anything, they point out.

“Just because you recognize Osama bin Laden doesn’t mean you spent time in an al-Qaida training camp with him,” Greely says. “Maybe you just saw his picture on TV or the cover of a magazine.”

Not only that, but some people might be secretly obsessed with bin Laden, and unwilling to admit it. They might have a high level of knowledge and interest in his activities without ever having met him or played a role in the activities. Some of those people might delude themselves that they did. So they falsely confess.

By the same token, he adds, a suspect might recognize a crime scene because he committed the crime in question or because the crime took place at a Starbucks, the inside of which all tend to look alike.

The EEG-based approach also appears to misunderstand the nature of memory, which does not record and recall information like a videotape recorder but changes and adapts over time, other experts caution.

.“Every time a memory is recalled, it is altered,” says University of Akron law professor Jane Moriarty, an expert on scientific evidence.

Experts also say the credibility of this line of research has been undercut somewhat by the hype given to it by Lawrence Farwell, one of its leading proponents.

Neuroscience risks disrepute due to hype about its potential in areas for which it was never designed.

A lawyer friend who addresses serious violence cases pointed out to me recently that, not only is it not always clear what the accused/convicted was thinking at the time of the offence, it is not always clear whether he even was thinking much. If he is a drug addict or serious alcoholic, a blood sample might be more useful than a neuroscience scan for figuring out his probable state of mind (or lack thereof) at the time. He may not remember what he did accurately, which doesn't mean he didn't do it or wouldn't do it again.

If the accused has a mental disorder or is developmentally delayed, neuroscience might help determine whether he is fit to stand trial. But that is medicine, whose results may assist law. I think neuroscience is best to stay close to medicine.

Hat tip: Stephanie West Allen at Brains on Purpose