Saturday, October 24, 2009

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.

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