Posts tagged law

Just picked out a crime (harassment), years on the X, rate on the Y, color of dismissals in green, looked up what caused the spike in the mid 90s (new harassment law) and they ya go. Crime reporting soared - but what’s that mean in terms of convictions?
We have 9.8 million crime records from NYC, and 3.1 from Houston…pick some crimes, set your parameters, see what you can find and let me know. You can do it here. 
We are processing 5.3 million data points from Miami, and the entire states of New Mexico and Alabama are up next.

Just picked out a crime (harassment), years on the X, rate on the Y, color of dismissals in green, looked up what caused the spike in the mid 90s (new harassment law) and they ya go. Crime reporting soared - but what’s that mean in terms of convictions?

We have 9.8 million crime records from NYC, and 3.1 from Houston…pick some crimes, set your parameters, see what you can find and let me know. You can do it here. 

We are processing 5.3 million data points from Miami, and the entire states of New Mexico and Alabama are up next.

The number of neurolaw cases rose from 100 to 250 a year over the eight-year survey. In 2005, neuroscience appeared in 30 felony cases that did not involve homicide. That number rose to more than 100 in 2012.
"Legal expert to Obama tells Society for Neuroscience meeting those on trial mounting ever more sophisticated defenses" via
Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists, including judges and jurors.

Neuroscientists in court

Like sands through the hourglass — back in the late 90’s/early 2000’s with the swing/swing door of the forensic psychology & law merge of linguistics, educating lawyers on psychological concepts and psychologists on legalese then translating expert witnesses to the jury — so are the days of our lives. 

Based upon the popular, but largely incorrect, belief that sex offenders have an abnormally high risk of recidivism, sex offenders represent an ideal population to target for preventive detention. (…)
These particular myths of extremely high recidivism rates and “stranger danger” have largely served to support various
restrictions on sex offenders as well as substantiate court opinions
upholding those restrictions.

SEX OFFENDER EXCEPTIONALISM AND PREVENTIVE DETENTION.

The more emotionally charged legislature based on inaccurate public perception & resulting panic happens…the more it stays the same: Jury Clears Pataki Over Post-Prison Detention of Sex Offenders.


JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question.
 (…) Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed. Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against selfincrimination in response to the officer’s question. 
It has long been settled that the privilege “generally is not selfexecuting” and that a witness who desires its protection “‘must claim it.’” Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U. S. 2 SALINAS v. TEXAS  [via]

It’s there you guys, just have to invoke it He-Man style…yea or nay, c-newt?  Someone? Get c-newt on the horn. I get excited about old news from time to time.

JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question.

 (…) Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed. Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against selfincrimination in response to the officer’s question.

It has long been settled that the privilege “generally is not selfexecuting” and that a witness who desires its protection “‘must claim it.’” Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U. S. 2 SALINAS v. TEXAS  [via]

It’s there you guys, just have to invoke it He-Man style…yea or nay, c-newt?  Someone? Get c-newt on the horn. I get excited about old news from time to time.

Neuroimages in court: not as bad as we thought
So what I usually get from the lawyers I corner speak with about using brain scans as evidence, it’s mostly hell to the no, because A) we’d need an expert B) experts are expensive C) client is broke. Another response is jurors won’t get it and it will just complicate things. The consensus is jurors can’t handle a brief fMRI lecture to understand it’s meaning and limitations so they’ll just figure it’s all hard science, self evident to the argument being made and treat it like photographic proof.  dun dun.
Until recently, a couple of really big studies supported this notion and everyone at the cool table got on board. Brain porn in the court became a thing and whispering sexy hard-sciencey neurobabble in your ear is what it did seducing you with its pretty colored blobs. Then it kinda fell into a place like tween technology can, where we can’t trust it running the streets alone without a decent explanation, some background and a curfew. But new research contradicts this concept “prompting a rethinking of the ‘threat’ of neuroscience in the courtroom”. dun dun. (ok I’ll stop.)
The deal is the initial studies didn’t look at the effect of using the images with mock jurors in. a. full. mock. trial. Srsly, methodologies? Anyway, this article (+1 for the multidisciplinary collabo) gives a detailed overview of 3 new studies that are show findings contradictory to the neurolaw safety dance that’s so trendy. No reason for that link except, it’s the only chance it will ever have. …k, moving on.
I’m all for being cautious, but we are tip toeing, slow poking and dumbing down when what we need is just a little explanation, insight and mostly more experiments designed to replicate a real world trial experience. Showing images and peppering it with a scientific summary is like convicting by confession alone without seeing the interrogation. It turns out:

…in experiments with crimes ranging from homicide to unintentional assault, the authors found no evidence that neuroimages influenced jurors’ decisions about criminal liability or sentences. Convictions and punishments were, however, related to the level of perceived control by the defendant, and this was affected by the presence and kind of expert testimony – but not by neuroimages. -Gurley and Marcus

The next study danced a similar jig when looking at the use of neuroimages in an insanity defense, “Gurley and Marcus did not dissociate the effects of the neuroimage from those of the neurological expert testimony. Schweitzer and Saks did, and found no impact of neuroimages over and above the effects of verbal neuroscience testimony.” Further work can go beyond culpability and look at sentencing as well.  
Three recent studies (the 3rd unpublished) have all suggested testimony weighed heavier in juror decision making (exculpatory fashions) than brain scans … and may have me thinking I’ll reopen my expert witness biz. Giddyup.

Neuroimages in court: not as bad as we thought

So what I usually get from the lawyers I corner speak with about using brain scans as evidence, it’s mostly hell to the no, because A) we’d need an expert B) experts are expensive C) client is broke. Another response is jurors won’t get it and it will just complicate things. The consensus is jurors can’t handle a brief fMRI lecture to understand it’s meaning and limitations so they’ll just figure it’s all hard science, self evident to the argument being made and treat it like photographic proof.  dun dun.

Until recently, a couple of really big studies supported this notion and everyone at the cool table got on board. Brain porn in the court became a thing and whispering sexy hard-sciencey neurobabble in your ear is what it did seducing you with its pretty colored blobs. Then it kinda fell into a place like tween technology can, where we can’t trust it running the streets alone without a decent explanation, some background and a curfew. But new research contradicts this concept “prompting a rethinking of the threat’ of neuroscience in the courtroom”. dun dun. (ok I’ll stop.)

The deal is the initial studies didn’t look at the effect of using the images with mock jurors in. a. full. mock. trial. Srsly, methodologies? Anyway, this article (+1 for the multidisciplinary collabo) gives a detailed overview of 3 new studies that are show findings contradictory to the neurolaw safety dance that’s so trendy. No reason for that link except, it’s the only chance it will ever have. …k, moving on.

I’m all for being cautious, but we are tip toeing, slow poking and dumbing down when what we need is just a little explanation, insight and mostly more experiments designed to replicate a real world trial experience. Showing images and peppering it with a scientific summary is like convicting by confession alone without seeing the interrogation. It turns out:

…in experiments with crimes ranging from homicide to unintentional assault, the authors found no evidence that neuroimages influenced jurors’ decisions about criminal liability or sentences. Convictions and punishments were, however, related to the level of perceived control by the defendant, and this was affected by the presence and kind of expert testimony – but not by neuroimages. -Gurley and Marcus

The next study danced a similar jig when looking at the use of neuroimages in an insanity defense, “Gurley and Marcus did not dissociate the effects of the neuroimage from those of the neurological expert testimony. Schweitzer and Saks did, and found no impact of neuroimages over and above the effects of verbal neuroscience testimony.” Further work can go beyond culpability and look at sentencing as well.  

Three recent studies (the 3rd unpublished) have all suggested testimony weighed heavier in juror decision making (exculpatory fashions) than brain scans … and may have me thinking I’ll reopen my expert witness biz. Giddyup.

“Criminal Minds: Use of Neuroscience as a Defense Skyrockets”

According to Duke University researcher Nita Farahany, the number of cases in which judges have mentioned neuroscience evidence in their opinion increased from 112 in 2007 to more than 1,500 in 2011. The actual number of cases in which neuroscience evidence is presented is likely much higher because trial data is notoriously incomplete: Many criminal cases are settled outside of court, and the database that Farahany worked from, Westlaw, doesn’t contain every criminal case. [via]

You guys know how I feel about this. Although the legal standard (involving several valid scientific reasons) of using neuroimaging for lie detection has not been met, the most common use for brain scans has been for sentencing mitigation, which mainly relies on a more clinical diagnostic approach vs a theoretical one. Meaning one of the formidable tools a criminal attorney can have right now is an expert witness/neuroscientist who specializes in fMRI and the budget to have the client scanned. So farewell former psychologist associates!  jk, I stopped pimping experts a while ago. Sorta. 
Above: “This poster provided by Celia Gordon, the defense attorney for convicted sex offender and “fake firefighter” Peter Braunstein, shows a scan of Braunstein’s brain compared with that of a normal brain.” The problem, as the ever-great-in -my-book Stephen Morse says, is “that there are thousands of people with a “broken looking brain” who act rational.”

Criminal Minds: Use of Neuroscience as a Defense Skyrockets

According to Duke University researcher Nita Farahany, the number of cases in which judges have mentioned neuroscience evidence in their opinion increased from 112 in 2007 to more than 1,500 in 2011. The actual number of cases in which neuroscience evidence is presented is likely much higher because trial data is notoriously incomplete: Many criminal cases are settled outside of court, and the database that Farahany worked from, Westlaw, doesn’t contain every criminal case. [via]

You guys know how I feel about this. Although the legal standard (involving several valid scientific reasons) of using neuroimaging for lie detection has not been met, the most common use for brain scans has been for sentencing mitigation, which mainly relies on a more clinical diagnostic approach vs a theoretical one. Meaning one of the formidable tools a criminal attorney can have right now is an expert witness/neuroscientist who specializes in fMRI and the budget to have the client scanned. So farewell former psychologist associates!  jk, I stopped pimping experts a while ago. Sorta. 

Above: “This poster provided by Celia Gordon, the defense attorney for convicted sex offender and “fake firefighter” Peter Braunstein, shows a scan of Braunstein’s brain compared with that of a normal brain.” The problem, as the ever-great-in -my-book Stephen Morse says, is “that there are thousands of people with a “broken looking brain” who act rational.”

Research into the neural workings of the human brain—with the aid of sophisticated brain-imaging techniques such as fMRI—will, some predict, probably completely change nearly every area of law. Some believe that, in time, neuroscience will dominate the entire legal system (…) Indeed, one would be hard pressed to think of a single legal issue not potentially affected by the claims made on behalf of the influence of neuroscience on law.

Neurolaw conference announcement: Guess where I’ll be on Sept. 7th & 8th?  

At Rutgers School of Law-Camden. The line up: Debra Denno, Adam Kolber, John Mikhail, Michael Moore, Stephen Morse, Michael Pardo, Frederick Schauer and Nicole Vincent. If you’ve been around for a minute, these names should look very familiar. And exciting. 

"Supreme Court says states may not impose mandatory life sentences on juvenile murderers"

The divided SCOTUS (5-4 ruling) decided that mandatory life without parole sentences - or death in prison, is cruel and unusual punishment for juveniles, and as such, a violation of the 8th amendment.

“Our decisions rested not only on common sense — on what ‘any parent knows’ — but on science and social science as well,” Kagan wrote…

Although this is a step forward for officially recognizing the “unique status of children and their potential for change”, this decision only applied to mandatory life cases. 

There are 2,300 inmates serving life-without-parole sentences for murders committed before they were 18. But only 79 nationwide were 14 or younger at the time of their crimes, and about 90 percent of those are serving mandatory sentences. [via]

Earlier research I was involved in looked at the age of a juvenile offender, trying them as adults and how that effected sentencing. In an experiment we had 13, 15 and 17 year old kids as convicted murderers. Our mock jury (subject pool) was more likely to punish both the 13 and 17  much harsher -including the death penalty- than the 15 year old.

The reason? The 13 year old was “too damaged” and the 17 year old was “close enough to adulthood and should have known better”. Pretty interesting since all of them are legally minors and share similar developmental/rehabilitation potential.

Regarding trying juveniles as adults, unfair punishment and mitigating circumstances, Kagan goes on:

…in many states, prosecutors have the sole authority to decide when to bypass the juvenile justice system—and mandatory-sentencing schemes often result in “mismatches,” as Kagan put it, between the severity of the penalty and the offender’s culpability. “Under these schemes, every juvenile will receive the same sentence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.” [via]

I all too often suggest that the legal community ought to be aware of the limitations of neuroscience, but this doens’t imply it shouldn’t go the other way as well. Most of the expert witnesses I worked with were overly cautious since their opinion matters in not just the current case accepted, but possibly, in any case like it from that point forward. Opinions can be manipulated pretty easily, and the two evils you’re faced with is either a door too narrow or too wide. 

At the end of 2011 The Royal Society published a report stating that in the USA, neurological or behavioural genetics were used as evidence for 722 legal defences between 2005 and 2009. In Italy, a woman had her sentence for murdering her sister reduced after the defence lawyers presented genetic and imaging evidence that her brain’s anatomy was different to that of 10 normal women. On the other hand, in 2008 an Indian woman was convicted of poisoning her husband when a scan of brain activity allegedly revealed that she had knowledge of events surrounding her spouses death which could only have been gained through experience. Neuroscientists are now often called upon as expert witnesses and so should have a understanding of the legal and ethical implications of their testimonies. [-Natasha Bray, via]

I all too often suggest that the legal community ought to be aware of the limitations of neuroscience, but this doens’t imply it shouldn’t go the other way as well. Most of the expert witnesses I worked with were overly cautious since their opinion matters in not just the current case accepted, but possibly, in any case like it from that point forward. Opinions can be manipulated pretty easily, and the two evils you’re faced with is either a door too narrow or too wide. 

At the end of 2011 The Royal Society published a report stating that in the USA, neurological or behavioural genetics were used as evidence for 722 legal defences between 2005 and 2009. In Italy, a woman had her sentence for murdering her sister reduced after the defence lawyers presented genetic and imaging evidence that her brain’s anatomy was different to that of 10 normal women. On the other hand, in 2008 an Indian woman was convicted of poisoning her husband when a scan of brain activity allegedly revealed that she had knowledge of events surrounding her spouses death which could only have been gained through experience. Neuroscientists are now often called upon as expert witnesses and so should have a understanding of the legal and ethical implications of their testimonies. [-Natasha Bray, via]

Neuroscience, PTSD and Sentencing Mitigation

Abstract:      

Like other mental disorders, PTSD has been advanced in criminal law to support sentencing mitigation. Unlike other disorders, however, PTSD traces back to an event that is considered the cause of the disorder, known as the stressor. Stressors can range from car accidents to gang violence to the commission of a crime. This article examines whether lawmakers should consider the nature of the stressor when deciding whether to use PTSD as a mitigating factor in sentencing.   Courts and legislatures generally have not embraced use of PTSD in sentencing mitigation except in cases where it resulted from combat duty or domestic violence. This article questions that exceptionalism. In particular, limiting PTSD consideration to these contexts can no longer be justified by concerns that a defendant is faking the syndrome. Advances in neuroscience increasingly make it possible to measure the physiological changes that occur in a person’s brain after experiencing a trauma, raising the prospect of establishing the validity of a wider range of PTSD claims. In that event, the distinction between the combat and domestic violence stressors, as opposed to other causes of PTSD, is unwarranted in terms of the prevailing justifications for punishment. The issue, then, is whether other rationales can justify limiting PTSD consideration to certain stressors. Accordingly, lawmakers should acknowledge that other normative concerns may influence our treatment of PTSD in sentencing and develop more neutral limiting principles to determine when PTSD can mitigate a criminal sentence. -  Betsy Grey [via]

Neuroscientific evidence is increasingly reaching United States courtrooms in a number of legal contexts. And the emerging field of Law and Neuroscience is being built on a foundation that joins: a) rapidly developing technologies and techniques of neuroscience; b) quickly expanding legal scholarship on the implications of neuroscience; and c) neuroscientific research designed specifically to explore legally relevant topics.

Despite the sharply increasing interest in neuroscientific evidence, it remains unclear how the legal system – at the courtroom, regulatory, and policy levels – will resolve the many challenges that new neuroscience applications raise.

Law and Neuroscience in the United States, Jones & Shen [via].

So maybe people “at the courtroom, regulatory, and policy levels” should be chiming in about how these challenges will be handled. If the science is not ready and evidentiary standards aren’t met because of that, is all we can do wait until the scientific community agrees (good-luck!) that whatever neuro evidence does meet the standard… and then address the backlog of how to deal with it? Believe it or not, some legal people disagree. I’ll get to that later. 

What I’m sayin’ is this integration should be talked about beyond the realms of neuroscientists and legal scholar’s offices and publications. Seeing how the whole forensic psych integration went down (in terms of culpability based on mental illness or forced medication and punishment issues), I have a bleak, but realistic (and secretly enthusiastic/optimistic) view of how this will pan out. 

This Jones & Shen paper is but one chapter in a series looking at neuroscience and law in 18 other countries. If you missed it, I gave a neurolaw play by play of how those countries…

249 plays

NEUROLAW Around the World   (w. Daft Punk)

Starting with Australia, thier legal system “has not been receptive to new neuroscientific technology. Current case law and legislative provisions demonstrate the hurdles imposed by the rigorous admissibility standards”. (via)

In Austria, there isn’t much research to pull from, so they take The Big Neurolaw Questions and apply them to Austrian law. (via) It’s a start.

Brazil is challenged by the divide between science and law, but recent cases and interest show promise in moving forward with the inevitable merge. (via

Canada talks about the ethics of neuroimaging in research, as they do. 

Most places do not have regulations in place for neuroscientific research so “legislation on medical research has been taken as a starting point for the legal analysis”, like in beautiful Finland! (via)

And check France out: “As a reaction to the rapid developments in modern neurosciences, the French legislator proposed the implementation of neuroscientific rules in the French Law on Bioethics in January 2010.” Neuroscientific research remains a hot button and all and the source of much debate, but, “Even if these procedures are not yet a daily occurrence in France, it is an important time to consider the civil, criminal, and constitutional consequences in a second step”. Real action. (via) OOh LA LA!

The Germans see no other way than to champion neuroscientific research. They will not be stopped! And that’s cool with me.  (via)

Greece, ever proud of the “innovative spirit” they have showed with revising the legislature when biomedical research calls for it, leads them to consider in this overview, that neuroscience research would follow the same form. (via)

ItalyLov u. Looking at deception and dipping into free will and neurotechnology, the Italian review discusses their case law on “the concept of “moral damage” and the opportunities that neurotechniques offer in order to have a more objective evaluation”. (via) Niiice. 

Guess who is talking about regulations for neuroethics and neurolaw? Japan. And it looks like bioethics stuff is a real sticky area, uh oh. (via)

You know my feelings for the Dutch (swoon).  This review talks about how neuroscientific evidence has been used in the courts in the Netherlands, 8 times so far for assessments of responsibility. Now gimme a smooch.

New Zealand's not having it. They allow that neuroscience can certainly inform them about the human condition, but they won't have it trying to replace their jury, i.e. neuroimaging for insanity pleas . Keeping that dividing line real clear….but fair enough. (via)

Switzerlandis the world’s skeptic when it comes to neurolaw, it’s too new and the methods can’t yet be trusted. (via) But they reserve a modest amount of optimism. whispery yay.

You know who’s not playing around? TurkeyLooks like they consider this topic to be held under general medical/ethics law. Here they focus on brain death and  ”how experimental treatments may be turned out to be a subject of hope trade”.  Fascinating! (via)

The UKis looking at something I always blab about: expert witnesses and how neuroscientific evidence may be used in court. Well done.  (via) I like that. 

And in typical fashion, the US is busting at the seams. Literally. We are excited, a lot is going on, we have a lot to say, jazz hands. But we have no idea where it’s going. (via)

K. I feel like I just hosted the Miss World Neurolaw pageant. Scores are at the bottom of your screen. 

Adam Kolber’s  ”Unintentional Punishment”


Abstract:    Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally. Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment. In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen. Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct. Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration that almost always causes side effect harms. via

It’s no secret Kolber is one of my favs… and in this area, I know of no one who compares. His work is literally infested with brilliant ideas certainly related to my interests in neurolaw and ethics.  His latest piece re: punishment is no exception.  If we believe that punishment only exisats when it is intentional, we are naive and mistaken. He provides examples of the unintentional side effects of punishment -such as when solitary confinement for protection from other inmates has the same effects (extreme isolation, light/movement deprivation, etc) as if they were sent there as “purposeful inflictions of punishment”. Other examples are forced celibacy, severe depression, complete denial of family visitation and the time and type of prison (harshness) on individual sensitivities or biological differences.
Even when 2 people commit the same crime, receive the same punishment, no experience or perception of that is the same. Nonetheless, there should be an attempt to measure the projected experience. An interesting bit he brings up surrounds the story of “If a Siamese Twin Commits Murder, Does His Brother Get Punished Too?” Via .

One option is to incarcerate the pair but compensate the innocent twin, just as we would pay a prison guard. But if the innocent twin is confined for a very long time, he may not have good opportunities to spend money, and it is not obvious how we would determine an appropriate level of compensation.

Kolber’s “justification symmetry” principle says “that if you or I must have a justification for risking or causing some harm, then so must any person who risks or causes the same kind of harm in the name of punishment. In other words, a complete justification of punishment will tell us why, by virtue of being just punishment, some ordinarily impermissible behavior is made permissible (…) even a state actor like a prison guard or the police.” 
It all begs: retributivists.  How do they work?
image

Adam Kolber’s  ”Unintentional Punishment”

Abstract:    
Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally. Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment. 

In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen. Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct. Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration that almost always causes side effect harms. via

It’s no secret Kolber is one of my favs… and in this area, I know of no one who compares. His work is literally infested with brilliant ideas certainly related to my interests in neurolaw and ethics.  His latest piece re: punishment is no exception.  If we believe that punishment only exisats when it is intentional, we are naive and mistaken. He provides examples of the unintentional side effects of punishment -such as when solitary confinement for protection from other inmates has the same effects (extreme isolation, light/movement deprivation, etc) as if they were sent there as “purposeful inflictions of punishment”. Other examples are forced celibacy, severe depression, complete denial of family visitation and the time and type of prison (harshness) on individual sensitivities or biological differences.

Even when 2 people commit the same crime, receive the same punishment, no experience or perception of that is the same. Nonetheless, there should be an attempt to measure the projected experience. An interesting bit he brings up surrounds the story of “If a Siamese Twin Commits Murder, Does His Brother Get Punished Too?” Via .

One option is to incarcerate the pair but compensate the innocent twin, just as we would pay a prison guard. But if the innocent twin is confined for a very long time, he may not have good opportunities to spend money, and it is not obvious how we would determine an appropriate level of compensation.

Kolber’s “justification symmetry” principle says “that if you or I must have a justification for risking or causing some harm, then so must any person who risks or causes the same kind of harm in the name of punishment. In other words, a complete justification of punishment will tell us why, by virtue of being just punishment, some ordinarily impermissible behavior is made permissible (…) even a state actor like a prison guard or the police.”

It all begs: retributivists.  How do they work?

image

So today, an Italian court reduced the sentence of a murderer when the defence team used “neuroimaging and genetic tests proved the partial mental illness of the defendant” effectively mitigating a life sentence into just 20 years.
This makes some neuro-people go bananas since there are only a hand full of people that believe brain scan technology is appropriate for the courts at this time (especially if it will help mentally ill people get treatment)…notwithstanding, we use sketchy evidence that hasn’t been through the rigors and scrutiny of academic/scientific research all. the. time. 

“The decision was made ​​not only on the basis of psychiatric assessments, but also morphological analysis and neuroscience on the brain and its genetic heritage.” via

Questions:
1. Is this a correct translation of the quote? *paging SciPsy* Cause if it is, it’s really not entirely justifiable to focus our attention solely on the brain scan, is it? What type of psychiatric assessments were used? What did they find? What type of expert did the prosecution counter with? And the MAOA gene tests, amirite?
2. Is it customary in Italy for an offender to receive psychiatric treatment in a case where psychiatric/neurological evidence was successful in showing diminished capacity? Or do they receive just incarceration?
3. Bueller?
I get that the last thing we need is another type of unreliable evidence allowed in court, but guess what neuroscientists?
Taking your kickball, going home and leaving the lawyers to play with themselves won’t make it go away. To be clear, what I mean is: discussing the flaws of applying fMRI scans to criminal behavior or aggression among scientists is super…but your not accomplishing the moratorium you so desperately want. They aren’t readying your articles, huh. So why aren’t more scientists who are concerned with this area reaching out to educate lawyers on why certain brain scans are not appropriate?  You know what’s easier than waiting for research to happen and to be published and then to be accepted in to social consciousness decades later? (I’m looking at you eyewitness identification) Writing a note and publishing it in a law journal. 
Here is a forum where you have the attention of lawyers, legal scholars and law students. Here is a place where you can continue the dialogue with those who intend to use these tools, instead of huffing at the absurdity of it on twitter. Here is a place where lawyers/judges can get an intro on how to digest/interpret this type of evidence when it is introduced…or at the least, find a godforsaken expert to explain it. 
Yes- this has been done to an extent, and this is probably a moot point suggestion, but if setting a dangerous precedent is the main concern (and not just protecting your own academic integrity), then clearly it’s not been done enough.

So today, an Italian court reduced the sentence of a murderer when the defence team used “neuroimaging and genetic tests proved the partial mental illness of the defendant” effectively mitigating a life sentence into just 20 years.

This makes some neuro-people go bananas since there are only a hand full of people that believe brain scan technology is appropriate for the courts at this time (especially if it will help mentally ill people get treatment)…notwithstanding, we use sketchy evidence that hasn’t been through the rigors and scrutiny of academic/scientific research all. the. time

The decision was made ​​not only on the basis of psychiatric assessments, but also morphological analysis and neuroscience on the brain and its genetic heritage.” via

Questions:

1. Is this a correct translation of the quote? *paging SciPsy* Cause if it is, it’s really not entirely justifiable to focus our attention solely on the brain scan, is it? What type of psychiatric assessments were used? What did they find? What type of expert did the prosecution counter with? And the MAOA gene tests, amirite?

2. Is it customary in Italy for an offender to receive psychiatric treatment in a case where psychiatric/neurological evidence was successful in showing diminished capacity? Or do they receive just incarceration?

3. Bueller?

I get that the last thing we need is another type of unreliable evidence allowed in court, but guess what neuroscientists?

Taking your kickball, going home and leaving the lawyers to play with themselves won’t make it go away. To be clear, what I mean is: discussing the flaws of applying fMRI scans to criminal behavior or aggression among scientists is super…but your not accomplishing the moratorium you so desperately want. They aren’t readying your articles, huh. So why aren’t more scientists who are concerned with this area reaching out to educate lawyers on why certain brain scans are not appropriate?  You know what’s easier than waiting for research to happen and to be published and then to be accepted in to social consciousness decades later? (I’m looking at you eyewitness identification) Writing a note and publishing it in a law journal. 

Here is a forum where you have the attention of lawyers, legal scholars and law students. Here is a place where you can continue the dialogue with those who intend to use these tools, instead of huffing at the absurdity of it on twitter. Here is a place where lawyers/judges can get an intro on how to digest/interpret this type of evidence when it is introduced…or at the least, find a godforsaken expert to explain it. 

Yes- this has been done to an extent, and this is probably a moot point suggestion, but if setting a dangerous precedent is the main concern (and not just protecting your own academic integrity), then clearly it’s not been done enough.