A recent CNN.com article , Minister shot dead, deacon wounded before funeral, forced me to re-examine and expand my position on tailoring a sentence according to an algorithmic prediction of probable recidivism. The November 1st report describes the murder and injury of a Missionary Baptist minister and deacon, respectively, by Frederick Davis, a man at odds with the minister. The timing of the crime is quite interesting given that in October 2007, Davis had been convicted of disorderly conduct towards the minister’s wife and had been sentenced to a year of probation and distance from the church and minister’s family. In fact, however, court documents report a year-long dispute between the gunman and the victim leading up to the incident. The angle that caught my eye about this case is that the offender’s initial crime was a sexual offense toward the minister’s wife but the second was manslaughter of her husband. I am extremely hesitant to say that the law would be doing enough by predicting recidivism of one certain type of crime when criminal intent is not limited to repeated theft, child molestation, etc. but is really open to a breadth of society-threatening activities, the extent of which cannot be fully assessed by any present-day algorithms (I assume). Hypothetically, if this were in the future and Davis could have had an fMRI ran to search for typical signatures of a sexually predatory brain after his first conviction these results may have come out negatively. But would they have looked for murderous tendencies as well given that he showed no such physical aggression in the earlier case? Then again, if he did have a case of hypersexuality, for example, he could have received treatment turning him away from repeating sexual offences but it is highly unlikely that they would have predicted Davis’s proclivity to commit murder.
Perhaps in the very act of committing a crime, one surrenders certain “given rights” and therefore can come under much higher legal scrutiny and observation. This could mean regular evaluations by certified psychologists and possible detainment in high threat periods; however, this idea this seems impossible to enforce and borders on inhumane. Previously, I was optimistic about the potential for tailored sentencing as a just method to punish but on the other hand to help rehabilitate previously convicted criminals back into functioning, non-threatening members of society. Given the complexity of the situation, however, now I believe such treatment would misappropriate resources and attention leaving behind lurking tendencies toward yet unidentified criminal acts.
Davis, the gunman who quickly surrendered to enforcement, is to appear in court today (Nov. 3, 2008) in Ohio. In the given case, according to current reports, the crime was clearly pre-meditated, but it will be interesting to see if the defense claims any neurological quirks in the defendant and what kind of weight, if any, is given to these considerations.
1. Minister shot dead, deacon wounded before funeral (CNN.com)
“The passage from the state of nature to the civil state produces a very remarkable change in man, by substituting justice for instinct in his conduct, and giving his actions the morality they had formerly lacked. Then only, when the voice of duty takes the place of physical impulses and right of appetite, does man, who so far had considered only himself, find that he is forced to act on different principles, and to consult his reason before listening to his inclinations.” The Social Contract, Jean-Jacques Rousseau
There are interesting implications for the man whose frontal lobe tumor was responsible for the onset of pedophilia.He had never before shown sexual inclinations toward children, but the growth of a tumor correlated with the onset of those desires.When the tumor was removed, the desires and inappropriate actions subsided, and then returned when it grew back1.
This man and his family were probably relieved to have a biological abnormality to explain these actions, but a disturbing thought is that the tumor simply uncovered what was already “present” in this man’s brain.The frontal lobe is known to be involved in mediating restraint and social inhibition among other functions2.It is perfectly logical to postulate that the tumor (which would cause necrosis and metabolic starvation to the neural tissue surrounding it) depressed the functioning of this inhibitory area, thus releasing inherent urges.Certainly not every person with a brain tumor in the prefrontal cortex experiences these same pedophilic consequences, which would indeed help this man’s case (in that it would imply causality rather than an uncovering mechanism).
This does raise an unsettling question:if frontal inhibition masks certain undesirable tendencies, how many of us are animals inside?How many of us are not noble savages, but ignoble ones?What is our frontal lobe concealing in each of us?One possibility is that this man had always been cognizant of his abnormal sexual feelings and simply learned to suppress them.Although he reported otherwise, no one would want to admit previous feelings if a scapegoat tumor were available.
Our large frontal lobes separate us from animals anatomically, but functionally serve as masks of wild origins.Civilization depends on our frontal lobes, and allowed that ‘passage from the state of nature to the civil state” Rousseau mentions.The archetypal story of Phineas Gage’s transformation confirms that our actions are quite different without frontal inhibition, but the perversion unveiled in this particular case inclines me to believe that the man already struggled with this abnormal sexual appetite- whether it was conscious or not.
If people serving on juries knew (and really internalized) that the only thing preventing them from acting irrationally was a chunk of grey matter in the front of their brains, how would this change the way sentences were levied?People naturally make judgments of the accused based on the fact that they believe they would never commit such a crime.Perhaps explaining the very small matter that keeps them civilized would create juries that decide with more rational techniques, rather than a self-righteous confidence that it could never be them on the stand.
Is there science behind the observation that bullies take pleasure in other people’s pain?An fMRI study published in 2008 by scientists at the University of Chicago found abnormal empathetic responses in adolescents with aggressive conduct disorder (CD).In the study, adolescent boys with aggressive CD and eight normal peers watched video clips of individuals in pain and not in pain.While both groups exhibited strong neural responses in the "pain network" to the latter group of video clips, whereas the control group exhibited strong co-activation of the amygdala and prefrontal cortex (consistent with self-regulation and holding emotions at check), the boys with CD instead showed increased activity in the amygdala and ventral striatum, an area of the brain associated with pleasure and rewards.
The authors suggested that aggressive CD adolescents have a normal neural response to pain, but because of decreased prefrontal cortex (PFC) and amygdala connectivity, they may not be effectively regulate their aggressive behavior. The increased amygdala/ventral striatum activity could also explain why some bullies may seem to take pleasure out of seeing others in pain.
It would be interesting to see if these youth could somehow be trained to strengthen their amygdala and prefrontal cortex connections, and thus more effectively moderate their aggressive behavior. Either way, these findings are a great start for determining the neural underpinning of aggressive behavior and conduct disorder.
What would happen if policemen, lawyers and others involved in the business of justice had access to technology that could read the mind of a suspected criminal? What if they could not only determine that a suspected murderer hated the victim, but actually quantify the intensity of that hate? How could — and should — such information be used in the criminal justice system? These sorts of questions may have to be addressed in the not-too-distant future as scientists extend our understanding of how the brain works. For example, scientists at University College London recently published the results of a study that explored the Neural Correlates of Hate. The UCL team used fMRI to measure the brain activity of their subjects as they viewed faces of individuals they claimed to hate as well as individuals for whom they had neutral feelings. According to the investigators, the results point to several distinct brain regions that are activated in response to feelings of intense hatred (what some are calling the brain’s “hate circuit”) and suggest that “…there is a unique pattern of activity in the brain in the context of hate.” Professor Semir Zeki, a co-author of the report, is quoted as saying“The activity in some of these structures in response to viewing a hated face is proportional in strength to the declared intensity of hate, thus allowing the subjective state of hate to be objectively quantified. This finding may have legal implications in criminal cases, for example." One wonders whether Professor Zeki believes that evidence that a murderer hated his victim should be a mitigating or aggravating factor in sentencing.
The advent of neuroscience has given the scientific community at large biological explanations for every action, from control of motion to social and intellectual cognition. However, neuroscience is a still a developing field, and the extent and speed at which neuroscientific evidence is being routinely implemented into Western legal systems is worrisome to many scientists. Currently, there is an unfortunate dichotomy between the legal and scientific realms that forces judgments about issues such as future dangerousness and the likelihood of recidivism in sentencing hearings, and arguments regarding pleas and the reduction or dismissal of charges in trials, to be made by judges with little scientific training and with the aid of neuroscientific methodologies used “in applications for which they were not intended, and for which those methods are inadequately tested.”
A paper by Brent Garland and Paul Glimcher discusses that in a recent Supreme Court case, Roper v. Simmons (2005), neuroscience was used to prohibit capital punishments for juvenile offenders under the age of 18 on the grounds that there was a “‘lack of maturity and an underdeveloped sense of responsibility’ in the young”. Similarly, the issue of neuroscience-based lie detection, specifically neuroscientific techniques attempting to identify intentional deception, has recently been at the forefront of ethical and legal consideration. A 1998 Supreme Court case, U.S. v. Scheffer, attempted to resolve the debate of whether brain scans conducted without consent violate the protections of the Fifth Amendment against self-incrimination or are simply another form of physical evidence, similar to fingerprints or DNA. The resolution was that the use of polygraph-based lie detection was prohibited in court-martial proceedings due to concerns about the technique’s reliability. Currently, a new method of lie detection known as “brain fingerprinting” is under investigation. This technique involves the placement of electroencephalographic electrodes on the parietal cortex in order to detect negative voltages associated with hearing or seeing novel stimuli, thereby assessing lies from truths. The use of this technique, and others with similar diagnostic value, in courtrooms in the near future is very plausible. If history is to teach us about the future, I find it very critical that neuroscientists present their technological developments, and specifically, the degree to which the technology and its findings can be statistically significant, with extreme caution before exposing it to the world as the next diagnostic tool in court cases. As neuroscience continues to develop and yields more promising techniques for behavioral analysis, neuroscientists are strongly urged to “weight their words carefully” and understand the new, legal ramifications of their work in an attempt to ensure proper policy decisions are made in the burgeoning field of neurolaw.
Schizophrenia is a brain disease afflicting more than two million Americans a year. Characterized by “internal voices not heard by others” and “believing that other people are reading their minds, controlling their thoughts, or plotting to harm them,” this is a highly debilitating and terrifying disease that suspends the victim in a sense of perpetual fear. When the brain is damaged, resulting in “distorted perceptions of reality,” “hallucinations and illusions,” and “delusions,” it is understandable for patients with schizophrenia to suffer under the present legal system. Schizophrenia leads to a lower quality of life and often times results in homelessness, crime, and violence. How can the legal system equitably try individuals who violate the law? Schizophrenia patients are victims of their mental conditions, which leads to their environmental conditions. Are they truly responsible for their actions?
Whether a patient has schizophrenia cannot be scientifically confirmed, which makes it especially difficult to determine if a patient truly is suffering from the ailment. Because the judicial system would rather have a guilty man free than an innocent man incarcerated, it is importantto distinguish whether or not a violator has acted as a result of a brain he no longer controls or a licentious, but healthy, individual looking for a convenient excuse. When such a case reaches trial, it is important to determine if the offender truly has schizophrenia. A record of the individual’s personal history should be gathered, either through witness testimonies from family and friends, of the patient-in-question’s mannerisms.The judge and jury should look for antisocial behaviors and delusions. Until research can determine conclusively whether or not someone suffers from this disease, the best that can be done is look at the known symptoms and determine if the symptoms match with the disease. This is a particularly tricky situation that should be handled on a case-by-case basis.
"Schizophrenia." National Institute of Mental Health. 2008. National Institute of Health. 2 Nov 2008 <http://www.nimh.nih.gov/health/topics/schizophrenia/>.
Spearing, Melissa. "Overview of Schizophrenia." 2002. 2 Nov 2008 <http://www.schizophrenia.com/family/sz.overview.htm>.
Spearing, Melissa. "Schizophrenia and Poverty, Crime and Violence." 2002. 2 Nov 2008 <http://www.schizophrenia.com/family/sz.overview.htm>.
There are all kinds of legal and ethical implications that come with the advent of the completion of the Human Genome Project, which will map the entire human genome and give a specification to each gene. This information could be used in ways that are harmful or unfair. An insurance company that acquires this information about a potential person could deny them health coverage based on the high probability of that person contracting a disease later on in life. Or, a person could lose their job because the employer is worried that they have the gene for a certain type of terminal cancer and won't last more than another 10 years. Further, drug companies, having found out early on information regarding a person's probability for acquiring a mental disorder, could flood your mailbox and inbox with advertisements regarding new therapies they want to try out (1). The obvious and easy answer to prevent these cases would be to keep the information "private," but just like any other "private" information (credit card numbers, social security numbers, hospital records) there is always going to be a case in which information gets into the wrong hands. It would be so simple, it seems, for someone to get a strand of your hair or a sample of your saliva from a cup to then look up your genetic data in an online profile. And this would have huge consequences if this is information regarding the genes in your makeup - or, similarly, the map of your brain. Even if insurance and drug companies did use this information in this way, there is always the possibility that it could be outright wrong. Even if the Project is said to be 100% accurate, or likewise that brain scanners are said to be 100% accurate, people are always going to question human (or machine) ability to predict the future, basically. Just as colorful scans of the brain used in the courtroom are appealing to jury members, so too would easy-to-read genetic maps.
There is actually about 5% of the Project's funds that are devoted to looking into the social, legal and ethical problems that could potentially arise from such information (1). The committee's founders are devoted to predicting all of these problems and then coming up with potential solutions. Would we, as individuals, even want a map of our genetic makeup that will predict for us our future genetic disorders/diseases? Or on a lesser scale, our likelihood of getting wrinkles or white hair at a certain age? It would do away with the "fun" of not knowing - the surprise of what the future brings.
1. Raju Chebium
CNN Interactive Correspondent
2. Tim Williams
Science and Technology Division
26 July 2000
With advances in neuroimaging, not only can we imagine using techniques like functional magnetic resonance imaging (fMRI) to detect a lie, but we can now also possibly use them to detect pain. Such a possibility has significant implications for our legal system and the numerous amounts of “pain and suffering” claims made. Adam Kolber addresses this possibility in an article (Pain Detection and the Privacy of Subjective Experience) from the American Journal of Law & Medicine.
According to Kolber, when subjects are exposed to painful stimuli, particular regions of their brain’s cortex increases in activation, and the greater the pain intensity, the greater the activation increase. With neuroimaging techniques like fMRI, we can look at a brain image to see if a subject is “experiencing” pain. This ability to assess pain can prove valuable to tort law since there are currently very few methods to accurately do so. However, this by no means suggests the technology is able to evaluate pain claims confidently. Moreover, Kolber brings up two points that make the use of this technology controversial: 1) pain is a subjective experience and 2) subjective experiences are private.
Based off these points and the infancy of the technology, I feel the same way about using fMRI to assess pain as I do with using fMRI to detect a lie: there is a lot of potential for the technology, but currently, there are not enough studies in support of their use. In addition, even if this technology was almost perfect in detecting physical pain, I would still be skeptical. Since pain is subjective, it may be more psychological than physical for some people. Thus, for me to be comfortable with the use of neuroimaging techniques to assess pain, more studies addressing issues of this nature must be conducted.
This article goes to show that is that there is a lot of promise in the field of neuroimaging. At the same time though, much caution must be taken with this technology so as not to infringe on the rights of individuals.