And, does that matter?
There is a study looking at murderers with antisocial personality disorder that were either brought up in psychosocially deprived situations, or in benign environments. Deprived murderers showed fairly normal prefrontal functioning, while non-deprived murderers show reduced prefrontal functioning. This points to the possibility that some antisocial murderers are made biologically (i.e. 'my damaged brain made me do it') and some are made psychosocially (i.e. 'my poor environment and upbringing made me do it') (Raine et al., 1998). A question that the current legal system may have to deal with is, who's more to blame? Do one of these two populations deserve prison while the other should be given lighter sentencing in a forensic mental hospital? Or what about targeted sentencing? What if a drug were discovered that would almost completely reduce recidivism in those with poorly functioning prefrontal cortices? Should we then let them back on the streets as long as we can be certain they are taking their medications (e.g. through regular drug tests or possibly a surgically-implanted internal pump). Or what if it was found that those with bad upbringings, but properly functioning prefrontal cortices responded very well to cognitive therapy and group sessions, which greatly reduced their rate of recidivism? Could we then allow this group to go free, with strict parole and oversight by their psychologist? As of right now, there is no great treatment for antisocial personality disorders, either pharmacological or psychotherapeutic. But we do know that prison is not effective in reducing the rate of recidivism in those with antisocial personality disorders (Williams, 2006). In a population of criminals, all of which committed the same crime, all of which have the same psychological disorder, should we allow some to go free because they respond well to treatment, and continue to incarcerate the others just because they don't?
Raine A, Phil D, Stoddard J, Bihrle S, Buchsbaum M. Prefrontal glucose deficits in murderers lacking psychosocial deprivation. Neuropsychiatry Neuropsychol Behav Neurol. 1998 Jan;11(1):1-7.
Williams, D. Antisocial Personality Disorder. Peace and Healing. 2006. viewed 10Nov08 http://www.peaceandhealing.com/personality/antisocial.asp
Neuroscience entering the courtroom and affecting law is a multi-faceted issue. One of the most important aspects seems to be that making sweeping generalizations about people’s tendencies and personalities is easy to do, but potentially incorrect. For example, the issue of the frontal cortex not being fully developed in adolescents and therefore having a lower level of responsibility and maturity does not hold to be true for every adolescent. That being said, how is the law supposed to function if there are no boundaries set? And if there are boundaries set, how are they determined? In The Washington Post article, “5-4 Supreme Court Abolishes Juvenile Executions” by Charles Lane), this question is touched on by the Supreme Court case of Roper v. Simmons. The law was changed from the previous condition that 16-year-olds could be given capital punishment (the case Stanford v. Kentucky) to that only 18-year-olds and older can be given capital punishment now. The case demonstrates that the laws set can and should be questioned.
If a teenager really is less capable of making responsible decisions, then should this be reason to punish them less severely? Does this solve the problem and lessen crime rates? Because there is not enough information available yet about how to determine the exact maturity of every adolescent, rather than speculating if this decision is scientifically sound or not, it is important to ask how and why laws like this are created and amended. Is a person one day from his eighteenth birthday less capable of making decision than someone whose eighteenth birthday was one day before? This assertion is ludicrous, thus the lines of maturity and when to hold someone accountable blur.
Realistically, much of what determines the acceptability of a punishment involves societal standards and approval rather than actual success in lowering crime rates. The article mentions that “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty” (at the time of this court case), and this fact affected opinions about whether or not this punishment is reasonable and appropriate for the crime. So the next question to ask is what are societal standards on responsibility and punishment based on? Neuroscience is working to answer these questions, but until it is discovered, I think punishments and laws should be amended according to the success they have in lowering crime, regardless of societal expectations or past conventional laws.
Watching only a few episodes of Law & Order might convince you that the latest, high-tech neuroscience techniques are used in court as often as L&O reruns are on TV, but this won't be true until the use of these technologies becomes less expensive. No Lie MRI, which claims it can use fMRI as a more accurate polygraph, charges $30/min. Cephos, a similar company, doesn't give prices on its website, but does mention that there are additional costs for expert testimony. No Lie MRI's site claims the company's services could one day improve "investor confidence" and "how wars are fought," and individuals undoubtedly dream of a day they could scan a spouse's or teenager's brain, but for now, these companies' main customers seem to be defense attorneys desperate to keep their clients off death row. In addition to detecting lies, brain scans have been presented as evidence that a defendant cannot be held culpable for a crime due to neurological defects. This type of evidence has also mainly been used in death penalty cases and remains controversial.
Of course, the death penalty itself is controversial as well. A July 2008 survey of registered voters showed that 63% of Americans are in favor of the death penalty while 29% oppose it. Since it seems that neurolaw currently mainly affects death penalty cases, could the use of neuroscience in the court change how Americans feel about the death penalty and how many defendants receive it?
fMRI lie detection is intended to provide evidence of guilt or innocence, so Americans who oppose the death penalty because they fear an innocent person may be put to death may find themselves less resistant to the death penalty when faced with this evidence. However, only 30% of respondents to one survey said they opposed the death penalty for this reason. Furthermore, fMRI lie detection will never be proven 100% accurate. Some opponents of the death penalty may be unpersuaded no matter how low the chance of error may one day be.
Support for the death penalty may decrease if fMRI lie detection becomes widespread because it would be easier to convince the public of an unfair conviction than an unfair exoneration. Even after a conviction based on fMRI evidence, evidence could turn up that proves a death row inmate's innocence (newly found DNA evidence or surveillance tapes, for instance). The public's support for fMRI use would surely decrease after such an incident, and because of double jeopardy, it is unlikely that someone found not guilty could later be shown to be guilty. This could lead the public to believe that such technology is more likely to inaccurately show guilt than innocence.
As for scans, a defense attorney could certainly argue that his or her client should not be held culpable because a brain defect "made" the defendent commit the crime. However, the jury might take this information to mean that the defendant has no control over his or her actions, is a danger to society, and should be put to death. Neuroscience will undoubtedly change the nature of the legal system, but how it will change perceptions of the death penalty remain to be seen. After all, the American Psychological Association reported in 2001 that attitudes toward the death penalty have a large genetic component, so American's attitudes may be fairly resistant to change.
The notion of assigning culpability in criminal cases that involve neurological disorders or abnormalities can quickly result in subjectivism, which is not only counterintuitive of the justice system but also inherently unfair to the victim. Because we are raised as individuals responsible for our own minds and actions, and responsible to reason in everyday situations, the justice system expects us to be accountable for what our minds tell us to do. What happens when our mind is altered by latent congenital effects or, even more obscure, trying circumstances? Is it still fair to hold us accountable for our actions?
The Battered Woman Syndrome is a psychosocial condition that has arisen in the criminal justice system frequently as of late. Living in a violent relationship has caused many women to suffer a great deal of emotional stress that, according to psychiatrists and neuroscientists, will indubitably lead to irrational actions, usually murder. What makes such cases particularly interesting is the question of such a syndrome’s validity. Can beating and abuse truly cause the mind, and therefore actions, to change? Many abused women who have murdered their husbands have claimed that they had no choice and began noticing different, more morbid, thinking patterns. Questions still exist as to the true neuroscientific foundation of the syndrome, which necessitates research in this yet unexplored area from an empirical perspective. As terrible as it may seem, it is not impossible that a woman who has truly not been affected by abuse kills her husband and uses Battered Woman Syndrome as a means of escaping a sentence. A neuroscientific study on this issue will mitigate the differences between severe disorder and acts of vengeance. This will reach the heart of the matter in neuroscience and law, which is not to exculpate but rather to seek reasonable truth.
Walker, Lenora. “The Battered Woman Syndrome.” 2nd. New York: Springer Publishing Company, 2000.
Although criminals are likely to claim more intensive or severe mental disorders as explanations for committing crimes, recent studies have suggested connections between violent or reckless criminal-like behavior and attention deficit/hyperactivity disorder (ADHD). This is interesting and significant in the area of neuroscience and law because ADHD is yet another neurologically-based disorder and individuals with ADHD are statistically more likely to be involved in criminal behavior than others. Perhaps the more important issue concerning ADHD is not its possible ties to crime and the law, but the fact that the disorder is not well-understood regardless of its potential links to criminal behavior.
According to Dr. Sam Goldstein, the criteria for defining ADHD are somewhat vague (http://www.fbi.gov/publications/leb/1997/june973.htm). One of the basic sympotoms of ADHD is when an individual intellectually knows what is right and wrong, but cannot control their immediate senses of volition and therefore commits acts that are deemed socially unrespectful or abnormal. I feel as though, given specific circumstances, this sort of spontaneous decision-making can occur in anyone. But then, could this mean that everyone has some level of ADHD? Technically, I guess not because there are many other symptoms of ADHD such as not paying attention in demanding situations, having excessively strong emotional reactions, and having a constant urge to seek stimulation. However, again, these all seem like qualities that everyone seems to express at times. Regardless, the bottom line is that there is evidence supporting the validity of the disorder (http://www.pbs.org/wgbh/pages/frontline/shows/medicating/adhd/nih.html).
As of now, the disease has not been rendered strong enough to excuse criminal conduct. However, in at least one case invloving an attorney misusing client funds, the court considered the attorney's ADHD diagnosis as a mitigating factor during sentencing (http://www.aopc.org/OpPosting/disciplinaryboard/dboardopinions/55DB2003-Durney.pdf). I think this decision to use the mental condition of ADHD as a mitigating factor is unfortunate, as it may serve as a precedent for similar cases. It simply doesn't make sense to use ADHD as a mitigating factor to reduce penalties involved in law inforcement. Not only is the disease itself not yet completely scientifically understood, it is also not yet socially accepted. Even if ADHD is indeed a valid disorder (and I am in no way doubting that it is), many individuals who have ADHD are not aware of their condition, and many people who claim to have ADHD do not actually have it. The reason for this is because there is no clear-cut diagnostic test for the disorder. This means that, if a person were to commit a crime, they could announce after the crime has been performed that they should not be held completely responsible because they may have ADHD. And, because not diagnostic test exists as of now, they could go to virtually any doctor and persuade them to beleive that their condition is real. There would be no way to no for sure whether or not one is telling the truth.
In the end, it has to be understood that, although our nation's courts want to be sympathetic to mentally diseased people and to put as few non-guilty people as possible in jail, we do not know enough about some of these mental conditions to start applying them to the world of law enforcement.
In light of all the newfound knowledge gained through neurobiological research, a proposal on reforming the criminal justice system and implementing a personalized therapy program makes sense, at least from a utilitarian point of view. After all, if the goal of the justice system is to maintain order in a society, then its sentencing system ought to be based on the probability of recidivism rather than on retribution for a criminal’s past actions.
The prospect of personalized therapy to help rehabilitate one’s brain is very interesting, but with this hypothetical treatment come new ethical dilemmas. Research in the field of neuroregenerative medicine (NRM) has traditionally been viewed as potentially treating diseases that cause neuronal deterioration, such as Parkinson’s disease, Alzheimer’s disease, and multiple schlerosis (1). The ability to stimulate neurogenesis in portions of one’s brain, however, need not be restricted to treating disease alone. If novel treatments could stimulate neuronal growth in areas of the brain, such as the prefrontal cortex, NRM could potentially be a method of rehabilitation for criminals that are deficient in this area.
However, some people fear that the use of NRM therapies, or specifically the stimulation of unnatural neuronal growth in areas of the brain “may fundamentally change the self: it’s not just a matter of enhancing an organ’s function. It’s potentially changing who we are” (1). This belief in our sense of “self” will always be an important topic when considering possible treatment regimes. Is it ethical to alter a criminal’s very identity and sense of self, in order to help them assimilate into society?
Grunwell, J., Illes, J., and K. Karkazis. 2008. Advancing Neuroregenerative Medicine: a Call for Expanded Collaboration Between Scientists and Ethicists. Neuroethics. (DOI 10.1007/s12152-008-9025-5)
Over the past few weeks, several mental health courts have held graduation ceremonies honoring individuals who completed the treatment programs designed to help them gain control of their lives. Participation in mental health court programs is offered as an alternative to jail time to some (generally nonviolent) offenders who have been diagnosed with a mental illness or substance abuse disorder. The programs are intended to help individuals with mental illness learn how to function in society and stay out of the criminal justice system. The Mental Health Court in Flint, Michigan, which was started in October of 2007, recently held its first graduation ceremony for four individuals who completed the year-long treatment program, the requirements of which include: staying on medications, getting jobs or volunteer work and having no further criminal activity. Similar requirements were met by the 17 individuals who were the first graduates of Mental Health Courts in Polk County, Florida and Tulsa County, Oklahoma. There are currently more than 40 people enrolled in each of these programs.
According to a 2007 report published in The American Journal of Psychiatry, an evaluation of the criminal justice outcomes of a San Francisco mental health court revealed that “a mental health court can reduce recidivism and violence by people with mental disorders who are involved in the criminal justice system.” As there currently are more than 150 mental health courts across the U.S., and more are being planned, it is likely that evidence of the efficacy of these programs will continue to accumulate in coming years.
Patients in a persistent vegetative state (PVS) are often kept on life support. PVS patients are considered to have permanent loss of consciousness. There have been studies showing that some PVS patients show activation when asked to imagine walking through their home or to play a favorite sport, such as tennis or golf. These recent studies lead us to question whether our definition of consciousness is appropriate, or whether our treatment of these PVS patients is appropriate. Are we obligated to keep these PVS patients alive? The New Jersey Supreme Court gave Karen Ann Quinlan’s guardian permission to disconnect her from a respirator (Beauchamp and Childress 160). Quinlan was still given medically administered nutrition and hydration. She lived for almost ten years after the respirator was removed. We have to wonder whether she was aware of her situation or was in pain since she could not communicate this.
If we do reevaluate our ideas about consciousness and decide that these PVS patients should be kept alive, are families or medical professionals held liable for withholding or withdrawing treatment? Will it be illegal for families and medical professionals to remove these PVS patients from life support? Individuals may not want to live in a persistent vegetative state, but their families and doctors would not be able to honor their advanced directives.
Beauchamp, T.L. & Childress, J.F. (2009). Principles of Biomedical Ethics (6th ed.). New York: Oxford University Press, Inc.