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…
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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)
Italy? Lov 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? Turkey. Looks 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?
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.
"Weaving Functional Brain Imaging into the Tapestry of Evidence: A Case for Functional Neuroimaging in Federal Criminal Courts"
Lab Related Abstract:
Recent advances in brain imaging technologies allow researchers to “peer inside” a defendant’s brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. (…) Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without seriously considering whether they pass the relevant admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically reliable than much of the forensic science evidence currently admitted at trial. via. image
I’ve discussed the hypocrisy of allowing various types of evidence in criminal cases that have been found to be highly unreliable like eyewitness accounts or the ever popular slam dunk confession … but this paper underscores how judges should not only evaluate neuroimaging admissibility on its own scientific merits but compare it to other types of forensics already allowed in and moreover, the evidentiary standards that governed these decisions. 2 points!
The perfect lie detector may be closer to reality than you think. The opportunities for its misuse are many, but MRI and EEG-based lie detection science is on the brink of being able to detect lies with startling accuracy - sometimes before you even know you’re going to lie.
Where there are people, there are lies. The theory of Machiavellian intelligence claims that our capacity to deceive was developed by virtue of our distant ancestors’ way of life and refined as their primate brains grew and developed more complex structures. Our closest relatives indicate that, from an evolutionary point of view, it has to do with the youngest part of the brain, that outer layer of coiling tissue called the neocortex, which takes up nearly eighty percent of human brain volume. The Scottish primatologist Richard Byrne and his partner Nadia Corp of the University of St. Andrews have explored the brains and behaviors of eighteen species of primates, and they found a striking connection. The larger the animal’s neocortex, the better they were at deceiving their fellow primates in everyday situations.
Homo sapiens lies all the time. As individuals, we discover the nature of the lie at around the age of three or four and, from then on, it is a natural companion without which only very few can imagine living. You can’t really conceive of a modern, well-functioning society without the lie.
Read all the details on these technologies at Salon.
jtotheizzoe is on the one. I talked about this before, but it’s well worth repeating since ERPs are rarely mentioned in conjunction with lie detection given the glam factor of fMRIs. I venture EEG’s measuring Event Related Potentials is looking like a Preakness winner compared to fMRI scans for lie detection given the temporal (variation over time) vs spacial capabilities. It’s all about millisecond timing in deception.
I just sat down with Dr. Ray Johnson of Queens College yesterday and discussed his work in deception spanning over 10 years- which is fascinating and deserves to be brought up. It reveals self conflict in the executive processes of the brain during deception shown by timing & amplitudes as well as the neural networks underlying explicit & episodic memory.
That’s right, I’m doing interviews now. Booyah.
From the Archives: Neuroimaging techniques in modern forensic psychiatry.
Lab related abstract:
Due to the lack of available biological criteria, assessment, evaluation and therapy in forensic psychiatry have so far been restricted to psychosocial and mental criteria of offender personality. Recent advances in nuclear radiology such as brain imaging techniques (fMRI, DT-MRI, PET SPECT) allow a closer approach to the neural correlates of personality, moral judgments and decision-making. Introduction of neurobiological criteria (based on advanced neuroimaging techniques) in the field of forensic psychiatry and establishing the rules to what extent such biological criteria will be more reliable choice in evaluating mentally ill offenders would be of fundamental value in the modern forensic psychiatry. Psychosocial and subjective criteria in forensic evaluation will be more accomplished by biopsychosocial and objective criteria. Advances in the neuroimaging techniques bring specificity to the problems underlying the application of neuroscience to criminal law. via
My Freud < CBT < neurobio theory was grounded in such.
'Seduced by brain scan porn' and other broken records
Today, the BPS Research Digest posts about the well known/accepted reliability arguments against allowing brain scans as deception evidence in court.
Jarrett brings up a nice study that supports the claim that as long as you throw in lot of neuroscience jargon that a jury will side with whichever counsel spits it, and a newer study that says bringing in a fMRI scan will up your chances 76% (lab results, lab results). But as Jarrett reminds us, these results evened out a bit when an expert is introduced to the experiment and educated the jury a bit…as they do.
Duke philosopher, Walter Sinnott-Armstrong says:
A problem is, we force these techniques to make an absolute judgment in every case,” he says. “Instead, we could allow them only in courts where there’s a clear case, while 80 per cent of the time we don’t let them into courts.”
He adds: “It’s not as if every independent bit of evidence needs to be reliable to a very high degree in itself.” Via
In fact, the Innocence Project states that “Microscopic hair & fiber comparisons are used today but have never been subjected to rigorous scientific evaluation” and I’ve discussed evidence here as well.
What number is good enough?
Notwithstanding other types of evidence (eyewitnesses, fingerprints, polys, confessions) often not meeting this dreamy level of reliability, it is somehow expected that brain scans for lie detection should deliver the pinnacle of infallible results, when just as much is as stake with the other types and we accept them routinly.
The deal is, even though is this is just another tool to use in conjuction with other evidence -including DNA markers, etc.- researchers will want many more years of studies to protect themselves (naturally), and the courts will resist too, but I suspect if it’s good enough for the government to use, it could be admitted under those merits. How ‘bout that?
The stroke that made an arsonist
“An unusual case of random fire-setting behavior associated with lacunar stroke”
Abstract: A case of a 47-year-old man with a sudden onset of a bizarre and random fire-setting behavior is reported. The man, who had been arrested on felony arson charges, complained of difficulties concentrating and of recent memory impairment. Axial T1-weighted magnetic resonance imaging showed a low intensity lacunar lesion in the genu and anterior limb of the left internal capsule. A neuropsychological test battery revealed lower than normal scores for executive functions, attention and memory, consistent with frontal lobe dysfunction. The recent onset of fire-setting behavior and the chronic nature of the lacunar lesion, together with an unremarkable performance on tests measuring executive functions two years prior, suggested a causal relationship between this organic brain lesion and the fire-setting behavior. The present case describes a rare and as yet unreported association between random impulse-driven fire-setting behavior and damage to the left internal capsule and suggests a disconnection of frontal lobe structures as a possible pathogenic mechanism.
Reminded me how new impulsive behaviors after brain injuries or sudden imbalances due to medications, can venture into “gambling, compulsive eating, excessive alcohol consumption, and hypersexuality”. Via. How should we determine the culpability level and punishment of an offender for criminal behaviors that have a causal relationship with a biological defect, such as brain lesions from a stroke?
Bosshart H, & Capek S (2011). An unusual case of random fire-setting behavior associated with lacunar stroke. Forensic science international, 209 (1-3) PMID: 21489732
It was after much thought that I decided to kill my wife, Kathy, tonight … I love her dearly, and she has been as fine a wife to me as any man could ever hope to have. I cannot rationa[l]ly pinpoint any specific reason for doing this (…) I talked with a Doctor once for about two hours and tried to convey to him my fears that I felt [overcome by] overwhelming violent impulses. After one session I never saw the Doctor again, and since then I have been fighting my mental turmoil alone, and seemingly to no avail.
- David Eagleman referencing Charles Whitman’s suicide note - in the new Atlantic article The Brain on Trial where he discusses neurolaw, brain damage, free will and customizable/rehabilitative strategies in lieu of a ‘one-size fits all’ punishment. He suggests by making several utilitarian modifications to the criminal justice system, a more “biologically informed jurisprudence” could emerge.
If I seem to be heading in an uncomfortable direction—toward letting criminals off the hook—please read on, because I’m going to show the logic of a new argument, piece by piece. The upshot is that we can build a legal system more deeply informed by science, in which we will continue to take criminals off the streets, but we will customize sentencing, leverage new opportunities for rehabilitation, and structure better incentives for good behavior. Discoveries in neuroscience suggest a new way forward for law and order—one that will lead to a more cost-effective, humane, and flexible system than the one we have today. When modern brain science is laid out clearly, it is difficult to justify how our legal system can continue to function without taking what we’ve learned into account.
In this article, Adrian Raine, Professor and Chair of the Department of Criminology at University of Pennsylvania, says brain scans may predict antisocial behavior before it happens, thereby possibly identify killers before they kill. When they are children. He is known for his pioneering work in the science of neurodevelopmental criminology.
“Society has always wondered about “bad seeds,” people who seem to be possessed by devils. But what is emerging from this research is a cluster of biological markers that plant the bad seed in the brain. More striking, they appear to predict antisocial behavior even before it happens. (…) In adult offenders, juvenile delinquents, and even younger children, dozens of studies have pointed to brain features that seem to reduce fear, impair decision making, and blunt emotional reactions to others’ distress.”
The features were several neuroanatomical abnormalities such as both orbitofrontal regions and the amygdala appearing smaller than normal, and a enlarged corpus callosum being present. Raine is quick to acknowledge the rather large amount of ethical questions involved here as well as environmental effects and neuroplasticity. He is the first to state, “…we don’t want to say that biology is destiny or put a label on anyone exhibiting these markers”, so it seems to be about early detection and possible/preventive treatment. He is now doing studies to “ …see if psychotherapy or a diet rich in brain-protective supplements can reduce chances of antisocial acts.” Raine is well known for his longitudinal studies that trace “physical patterns in children to conduct problems in adulthood”. He continues:
“I think there’s no longer any question, scientifically, that there’s an association between the brain and criminal behavior. We’re beyond the point of debating that,” says Raine. “Every study can be criticized on methodology. But when you look at the whole, at all the different designs, it’s just hard to deny there is something going on with biology.”
The big ‘IF’
Surely knowing this work may elicit a skeptic or negative type response, Raine phrases the question as if we are discussing the identification of any medical condition: “So if I could tell you, as a parent, that your child has a 75-percent chance of becoming a criminal, wouldn’t you want to know and maybe have the chance to do something about it?”
“Of course, all of this brings up tremendously difficult ethical questions,” he says. “But I don’t think I’d be doing my job unless I said that we need to start talking about them. It’s time we start this discussion, before we start labeling people.” Via
Image, article. Also published on the Neuroethics & Law Blog.
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Audio for Terry’s interview with neuroscientist David Eagleman about decisions, consciousness, religion, stress, crime and time is now up. Enjoy!
Of course, if you follow Eagleman’s work, this interview gives few surprises since most of these topics are covered in his talks, and in the plethora of interviews he’s done lately promoting Incognito. But it’s worth a listen if nothing else just to appreciate the “lazy susan” of ideas this man gets to play with all day. I’m both totally inspired and a wee bit jealous…I can’t wait to trade up from my sandbox.
