Posts tagged neurolaw

My Case Against Einfühlung 

First, I’m with thoughtfulcynic. I’m not a fan of dichotomy when speaking about emotions/behaviors that pepper an entire spectrum. I suppose we can talk about social reluctance to do this another time, but investigating empathy, like other spectrumocities, (n. the state of being on a spectrum. K, I’m making up words, but I think I’ve earned that..I …I just think I’ve earned that.)

…LIKE other spectrumocities, our understanding of it may suffer if not investigated in a manner that allows us to look at multiple facetes under appropriate conditions. I can talk about this now since I’ve changed labs and not longer working under ridiculous oppressive secrecy… but how often are we hearing about the two types of empathy? Or potential 7 models of them? Not enough which leads most to think you have it or you don’t…so thoughtfulcynic hits the nail when she mentions critical thinking. What we have are cognitive and affective empathy or the capacity to perceive others’ thoughts and/or feelings, respectively. I always maintained these are 2 separately dynamic, systems that run via feedback from each other since neurally - they are independent but mutually supportive. As such, what we can have is a full matrix of varying degrees of the total possible experience of empathy at any given time. I never got to test it, but that’s my stamp. Anyhoo, and as a result, what’s driven my work for a while now is what Bloom refers to “being pulled in the wrong direction by empathy”:

This dynamic regularly plays out in the realm of criminal justice. In 1987, Willie Horton, a convicted murderer who had been released on furlough from the Northeastern Correctional Center, in Massachusetts, raped a woman after beating and tying up her fiancé. The furlough program came to be seen as a humiliating mistake on the part of Governor Michael Dukakis, and was used against him by his opponents during his run for President, the following year. Yet the program may have reduced the likelihood of such incidents. In fact, a 1987 report found that the recidivism rate in Massachusetts dropped in the eleven years after the program was introduced, and that convicts who were furloughed before being released were less likely to go on to commit a crime than those who were not. [via]

Obviously, not an isolated event. Altruistic punishment and manipulated empathy over data, tell me how that feels.

H/T@ thoughtfulcynic

Adrian Raine on Neurocriminology for the WSJ

The field of neurocriminology—using neuroscience to understand and prevent crime—is revolutionizing our understanding of what drives “bad” behavior.

If early biological and genetic factors beyond the individual’s control make some people more likely to become violent offenders than others, are these individuals fully blameworthy? And if they are not, how should they be punished?

A more profound understanding of the early biological causes of violence can help us take a more empathetic, understanding and merciful approach toward both the victims of violence and the prisoners themselves. It would be a step forward in a process that should express the highest values of our civilization.

Bonus video of Dr. Raine explaining the fMRI images above. Really glad to see his work out there. 

Criminal culpability of successful v. unsuccessful psychopaths

The psychological literature now differentiates between two types of psychopath: successful (with little or no criminal record) and unsuccessful (with a criminal record). Recent research indicates that earlier findings of reduced autonomic activity, reduced prefrontal grey matter, and compromised executive activity may only be true of unsuccessful psychopaths. In contrast, successful psychopaths actually show autonomic and executive function that exceeds that of normals, while having no difference in prefrontal volume from normals. We argue that many successful psychopaths are legally responsible for their actions, as they have the executive capacity to choose not to harm (and thus are legally rational). However, many unsuccessful psychopaths have a lack of executive function that should at least partially excuse them from criminal culpability. Although a successful psychopath’s increased executive function may occur in conflict with, rather than in consonance with their increased autonomic activity—producing a cognitive style characterized by selfdeception and articulate-sounding, but unsound reasoning—they may be capable of recognizing and correcting their lack of autonomic data, and thus can be held responsible. [via,img]

Fine tuning the punishment gage based on neural function underlying blameworthiness of specific neurotypes. I suspect we’d like to look at percentages of loss of function then correlate that to treatment, I mean punishment. Almost forgot where I was.

Brain Scanning for Recidivism

So, we all love the work that neuroscientist Kent Kiehl and his group does involving fMRI and incarcerated offenders, right? He’s the only guy I know out there workin’ the beat, going door to door (prison to prison), uphill both ways, not really. ok really (science drama), with a mobile scanner collecting brain scan data from prisoners. This week, his latest study is all over the place with headlines parading how this technique can predict who will reoffend. And it’s not way off. 

The idea: it’s all about impulsivity. The data links those with low activity in the ACC and poor impulse control…and:

Inmates with relatively low anterior cingulate activity were roughly twice as likely as inmates with high anterior cingulate activity to be rearrested for a felony offense within 4 years of their release, even after controlling for other behavioral and psychological risk factors.

Correlations are cool obvs, since they allow for predictions to be made, but this doen’t imply causality or tell us anything about the underlying factors that spur the relationship. Kiehl tells us this is not where near real world use, but it will be really interesting when the results from his entire group of 3000 inmates is processed, vs the 96 for this study (which is still a lot for fMRI work). We can talk about issues pertaining to beating the scanner then. Soon, we can compare old school nelly forensic psych assessment tools to the scans for risk assessment and seeing how these findings will effect sentencing (does this negate or reinforce mandatories?), probationary proceedings or even program development. I have a feeling a matrix design is coming on.

[via, img: mine]

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.

The Clinical Neuropsychologist previously published a case study about KT, a serial killer who murdered at least 5 people in order to shed light on the still poorly understood “characteristics and scientific markers of serial murdering”. Researchers measured impairment and social/emotional cognitive deficits of KT using a battery of neuro/psych tests. 

KT exhibited a striking dissociation between a high level of emotional detachment and a low score on the antisocial behavior scale on the PCL-R. The MMPI-2 showed a normal pattern with the psychotic triad at borderline level.

KT had a high intelligence score and showed almost no impairment in cognitive tests sensitive to frontal lobe dysfunction (Wisconsin Card Sorting Test, Theory of Mind, Tower of London, this latter evidenced a mild impairment in planning performance).

In the tests on moral, emotional and social cognition, his patterns of response differed from matched controls and from past reports on criminal psychopaths as, unlike these individuals, KT exhibited normal recognition of fear and a relatively intact knowledge of moral rules but he was impaired in the recognition of anger, embarrassment and conventional social rules.   [via: Cognitive, Emotional and Social Markers of Serial Murdering]

The results seem to high5 the spectrum babble that I babble about, probably shouldn’t do that anymore. Science-sigh. Anyway, how glad am I that they specified criminal psychopathy? Glad. What would I have liked to seen added? Empathy task, fMRI testing. Will I be able to shut up about this idea I have that might be not nothing? ugh.

“A neurolaw perspective on psychiatric assessments of criminal responsibility: Decision-making, mental disorder, and the brain”

From the abstract:

In some criminal law cases, the defendant is assessed by a forensic psychiatrist or psychologist within the context of an insanity defense. In this article I argue that specific neuroscientific research can be helpful in improving the quality of such a forensic psychiatric evaluation. This will be clarified in two ways. Firstly, we shall adopt the approach of understanding these forensic assessments as evaluations of the influence of a mental disorder on a defendant’s decision-making process. Secondly, I shall point to the fact that researchers in neuroscience have performed various studies over recent years on the influence of specific mental disorders on a patient’s decision-making. I argue that such research, especially if modified to decision-making in criminal scenarios, could be very helpful to forensic psychiatric assessments. This kind of research aims to provide insights not merely into the presence of a mental disorder, but also into the actual impact of mental disorders on the decisions defendants have made in regard to their actions.

The Dutch just get it.

“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.”