aTypical Joe: a gay New Yorker living in the rural South

Sunday, March 11, 2007

Neuroscience law and cognitive liberty

Jeffrey Rosen looks at Neuroscience Law in The Brain on the Stand in today’s NYTimes Magazine:

[T]he influence of what some call neurolaw is clearly growing. Neuroscientific evidence has persuaded jurors to sentence defendants to life imprisonment rather than to death; courts have also admitted brain-imaging evidence during criminal trials to support claims that defendants like John W. Hinckley Jr., who tried to assassinate President Reagan, are insane. Carter Snead, a law professor at Notre Dame, drafted a staff working paper on the impact of neuroscientific evidence in criminal law for President Bush’s Council on Bioethics. The report concludes that neuroimaging evidence is of mixed reliability but “the large number of cases in which such evidence is presented is striking.” That number will no doubt increase substantially. Proponents of neurolaw say that neuroscientific evidence will have a large impact not only on questions of guilt and punishment but also on the detection of lies and hidden bias, and on the prediction of future criminal behavior. At the same time, skeptics fear that the use of brain-scanning technology as a kind of super mind-reading device will threaten our privacy and mental freedom, leading some to call for the legal system to respond with a new concept of “cognitive liberty.”

One of the most enthusiastic proponents of neurolaw is Owen Jones, a professor of law and biology at Vanderbilt. Jones (who happens to have been one of my law-school classmates) has joined a group of prominent neuroscientists and law professors who have applied for a large MacArthur Foundation grant; they hope to study a wide range of neurolaw questions, like: Do sexual offenders and violent teenagers show unusual patterns of brain activity? Is it possible to capture brain images of chronic neck pain when someone claims to have suffered whiplash? In the meantime, Jones is turning Vanderbilt into a kind of Los Alamos for neurolaw. The university has just opened a $27 million neuroimaging center and has poached leading neuroscientists from around the world; soon, Jones hopes to enroll students in the nation’s first program in law and neuroscience. “It’s breathlessly exciting,” he says. “This is the new frontier in law and science - we’re peering into the black box to see how the brain is actually working, that hidden place in the dark quiet, where we have our private thoughts and private reactions - and the law will inevitably have to decide how to deal with this new technology.”

Neuroscience law advocates argue that the legal system should be radically refocused on deterrence rather than on retribution, something I wholeheartedly agree with. Getting there from here will be a long and torturous ride, no doubt. Especially given the imagined challenges to the whole notion of “freedom of thought.” The article is long and fascinating; this is the concluding paragraph:

As the new technologies proliferate, even the neurolaw experts themselves have only begun to think about the questions that lie ahead. Can the police get a search warrant for someone’s brain? Should the Fourth Amendment protect our minds in the same way that it protects our houses? Can courts order tests of suspects’ memories to determine whether they are gang members or police informers, or would this violate the Fifth Amendment’s ban on compulsory self-incrimination? Would punishing people for their thoughts rather than for their actions violate the Eighth Amendment’s ban on cruel and unusual punishment? However astonishing our machines may become, they cannot tell us how to answer these perplexing questions. We must instead look to our own powers of reasoning and intuition, relatively primitive as they may be. As Stephen Morse puts it, neuroscience itself can never identify the mysterious point at which people should be excused from responsibility for their actions because they are not able, in some sense, to control themselves. That question, he suggests, is “moral and ultimately legal,” and it must be answered not in laboratories but in courtrooms and legislatures. In other words, we must answer it ourselves.