Neurolaw

Neurolaw is an emerging field of interdisciplinary study that explores the effects of discoveries in neuroscience on legal rules and standards. Drawing from neuroscience, philosophy, social psychology and cognitive neuroscience, neurolaw practitioners seek to address not only the descriptive and predictive issues of how neuroscience is and will be used in the legal system, but also the normative issues of how neuroscience should and should not be used within the legal system.The most prominent queries that have emerged out of this exploration are as follows: To what extent can a tumor or brain injury alleviate criminal punishment? Can sentencing or rehabilitation regulations be influenced by neuroscience? Who is permitted access to neuroimaging of a person’s brain? Neuroscience is beginning to address these questions in its effort to understand human behavior and will potentially shape future aspects of legal processes. New insights to the psychology and cognition of the brain were made available by functional magnetic resonance imaging (fMRI). These new technologies were a breach from the conventional and primitive views of the brain. For example, Descartes believed in a united self with the pituitary gland as the center of thought. Neuroimaging has provided a much deeper insight into the thought processes of the brain, and will have an affect on the law because it contests customary beliefs about mental development. Because the science is still developing and there is opportunity for misuse, the legal realm should proceed cautiously.

History of Neurolaw

Neuroscience and Law have interacted over a long history; however interests spiked in the late 1990s. Scholars from both fields networked through presentations and dialogs, which led to an increasing pull to publish books, articles, etc. The Gruter Institute for Law and Behavioral Research and the Dana Foundation were the first to provide funding for the new field. Parallel to the expansion of Neurolaw, an emergence of Neuro-ethics was developing as well. The recognition of the intersections Neurolaw would have with ethics was able to be better scrutinized by the initiation of Phase 1 from the Law and Neuroscience Project in 2007. The MacArthur Foundation launched the project through $10 million grant in hope of integrating the two fields. The project sustained forty projects addressing a multitude of pertaining issues including experimental and theoretical data that will provide further evidence as to how neuroscience will shape the law. Recently this new field of study has peaked the interests of several universities. Baylor Initiative on Neuroscience and the Law’s research is seeking to progress neuroimaging with the intention of improving methods for prediction of recidivism. In addition the program hopes to educate and expand outreach. As well as the University of Pennsylvania’s Center for Neuroscience and Society that began in July 2009 and confronts the social, legal, and ethical inferences of neuroscience.

Role in criminal law

The term Neurolaw was first used in practice by the neuro-attorney J. Sherrod Taylor in 1991. Taylor's book, Neurolaw: Brain and Spinal Cord Injury (1997), was used as a resource for attorneys to properly introduce medicolegal jargon and to further develop the area of neurolitigation. In addition, Taylor introduced the implications of Daubert v. Merrell Dow Pharmaceuticals. The Supreme court case resulted in what is now known as Daubert Standard, which incorporated scientific evidence into the courtroom as a witness.

Crime prediction

Behavioral testing combined with neuroimaging evidence offer a potentially accurate method of predicting human behavior. This advancement would be beneficial particularly for determining guilty criminal sentences or discerning which criminals deserve to be let out on parole or detained in jail due to the possibility of future offenses. Not only could it aid in the process of recidivism, it could also show an indication of the need for personal rehabilitation. In light of this information and its potential applications, the legal system must create a balance between just punishment and penalties based on the ability to predict additional criminal activity. University of Pennsylvania professor Richard Beck created a software program that developed an algorithm to better predict crime. It examines two dozen variables that lead to identifying eight murderers out of 100. The most predictive of these variables is the type of crime committed and what age it was committed. As of now, Baltimore and Philadelphia are using the technology in practice to determine how much supervision for parolees is necessary. Beck continues to do research in this field and Washington DC is using his algorithm in hopes of applying it to lesser crimes as well. If those tests return promising results, the technology could be potentially used to set back and aid in the sentencing process.

Insanity defense

The patterns of the United States Criminal Justice system has been to limit the degree to which one can claim innocence based on mental illness. During the middle of the 20th century, many courts, through the Durham Rules and the American Law Institute Model Penal Code, among others, had regarded impaired volition as legitimate grounds for the insanity defense. However, when John Hinckley was acquitted due to insanity, a reversal of opinion occurred, which then spurred a narrowing definition of mental illness. Decisions became more and more based on the M’Naghten Rules, which asserted that unless one was able to prove that a mental illness kept him or her from knowing that the act was wrong, or knowing the disposition of the criminal act, one would not be able to be tried as mentally handicapped. Contemporary research conducted on the prefrontal cortex has criticized this standpoint because it considers impaired volition as a factor. Many courts are now considering 'irresistible impulse' as legitimate grounds for mental illness.

Impaired functioning of the PFC is evidence proving that a prime factor in mental illness is an issue of volition. Many experiments using Magnetic Resonance Imaging shows that one of the functions of the PFC is to bias a person towards taking the more difficult action. This action is representative of a long-term reward and it is competing with an action that will lead to immediate satisfaction. It is responsible for moral reasoning, including regret. Individual variations that impair the PFC are extremely detrimental to the decision making process and gives the individual a greater likelihood in a committing a crime, he or she would have otherwise not committed.

Brain death

Injuries or illnesses that lead to a persistent vegetative state have come to the forefront of many ethical, legal, and scientific issues regarding brain death. It is a legal grey area because there is a lack of legal clarity regarding death of someone in this state. It is a difficult subject to know when someone is beyond hope for recovery and it is difficult to decide who has the right to make the decision of when death is most appropriate. Research to determine a person’s cognitive state has developed the understanding of the vegetative state. While a person can be awake and conscience, he or she does not show any sign of awareness or recognition to external stimulation. Recently, research was conducted on a 23-year-old female that had suffered from head trauma and was diagnosed to be in the vegetative state. Using fMRI technology, it was determined that the female was able to understand external stimuli and respond through activity in the brain. This positive response reveals a way in which medical imaging can be used to better understand the implications of brain death and help to answer legal, scientific, and ethical questions pertaining to brain death.

Nootropics

In addition to questions involving how neuroscience should influence criminal and civil law, neurolaw also encompasses ethical questions regarding nootropics, more commonly known as mind-enhancing drugs. The brain has long been known to react to certain chemicals, such as the stimulatory effects of caffeine. Similarly, current research suggests that the future may hold even more powerful medications that can specifically target and alter brain function. The potential to significantly improve one's concentration, memory, or cognition has raised numerous questions on the legality of these substances, and their appropriateness for various uses, such as studying for an exam. Analogous to the controversy over the use of anabolic steroids in professional sports, many schools are wary of students using nootropics to artificially boost academic performance.

Some of the questions raised regarding the use of nootropics include:

• How will these enhancers affect performance gaps between income classes?
• Will it become necessary to use an enhancing drug simply to remain competitive?
• How does society distinguish between what is an acceptable substance (e.g. caffeine) and unacceptable substance to alter one's mind?
• Do people have the right to experiment with substances to modify their own cognition?

Scientists and ethicists have attempted to answer these questions while analyzing the overall effect on society. It is largely accepted that mind-enhancing drugs are acceptable for use with patients facing cognitive disorders, as in the case with prescribing Adderall for children and adults with ADHD. Alternatively, Adderall and Ritalin have become popular black-market drugs, most notably on college campuses. Students often use them to maintain focus when struggling to complete large amounts of schoolwork.

Underlying technology

Much of neurolaw depends on state-of-the-art medical technology that has been adapted to a new role in the legal system. Among the most prominent technologies and disciplines are functional magnetic resonance imaging (fMRI), positron emission tomography (PET scan), magnetic resonance imaging (MRI), and epigenetics. fMRI and MRI are particularly important because they allow detailed mapping of the human brain, potentially allowing technicians to visualize another person's thoughts. fMRI, a derivative of MRI, allows for oxygen specific mapping to view the most active areas of a brain at a specific moment. Combined with the knowledge of how the brain works in different situations (lying, remembering, etc.), there is the potential to use functional neuroimaging evidence as a modern form of lie detection. Similarly, PET scans use a radioactive tracer injected into the body to analyze brain tissue.

An example of the fMRI method of neuroimaging. fMRI statistics (yellow) are overlaid on an average of the brain anatomies of several humans (gray) Similar images are used in a variety of applications, now including law.

Ongoing research

The Stanford Center for Biomedical Ethics (SCBE) specifically analyzes the contribution of functional Magnetic Resonance Imaging to legal, ethical, and social challenges so that their conclusions may offer a liable transfer of fMRI information to policy recommendations and the clinical atmosphere. The research will focus on identifying emerging trends of emotion, moral judgment, and other complex human behaviors. With the information that the researchers obtain, an advisory board will compile a list of guidelines to interpret the results. In analyzing the use of fMRI’s, they will assess the risks and accuracy of using these machines to quantitatively detect mental illness. The Major Depressive Disorder will be used as their main experimental model.

Criticism

The use of neuroimaging in the legal system creates a very divided critical audience; many arguing for it’s potential, while others arguing it will not accurately replace human investigations to verify criminal decision-making processes. Neuroimaging is inadequately understood; the multiple variables it displays, including medication, nutrition, hormones, etc., create an image that is very difficult and many times impossible to interpret accurately. Other critics highlight that the image derived from the technology does not display the brain’s intentionality during the illegal act. Functional neuroimaging was not intended to calculate volition and while it may offer insight into the processes that cause behavior, it is debated whether or not the images can objectively narrow in on human reason.

Furthermore, neuroscience is a complex field and one not well understood by the general public. Although experts recognize the possibilities and drawbacks of brain imaging relatively well, others may be either over-confident in or completely reject the science. Judges must decide on the validity of various neurological evidence so it can enter the court room, and juries must not be too willing to place all faith in neuroscience. Due to glorified depictions of forensics labs on popular television shows, brain imaging has faced criticism for the CSI effect. Jurors may develop a false sense of what is possible with contemporary technologies, and may not understand the value of evidence being presented.

Examples of neurolaw in practice

Neurolaw has already been applied to various situations throughout the United States and other countries. The companies No Lie MRI and Cephos Corp, founded in 2006 and 2008, both offer lie-detection services using functional magnetic resonance imaging. Advertising to lawyers, prosecutors, and firms, they attempt to provide a twenty-first century version of the traditional polygraph.

Relevance to criminal law

In Mumbai, India, the legal system has taken a more rapid approach to using neuroscience, and has already incorporated neurolaw into criminal convictions. In 2008, a woman there was convicted for murder based on circumstantial evidence, including a brain scan that suggested her guilt. This conviction was sharply criticized by Hank Greely, a professor of law at Stanford University. Greely contested the scan, based on evidence produced by a Brain Electrical Oscillations Signature profiling test (BEOS). No scientific peer-review studies had ever been published demonstrating the efficacy of BEOS, raising questions about its reliability in such an important decision.

In the United States, convicts have used introduced brain scan results during the sentencing phase of their trial. Because the court system allows nearly any mitigating evidence during sentencing, neurolaw has not faced as many hurdles for this application. In two instances occurring in California and New York, defendants were able to reduce their sentence of first-degree murder to manslaughter. Each presented brain scans suggeting hindered neurological function hoping to mitigate their responsibility in the crime.

Relevance to the military

The United States Military has become increasingly interested in the possibilities made available by neuroscience. In an effort to combat terrorism, officials hope to use modern technologies for a variety of purposes. Brain imaging may help to distinguish between enemy combatants and those who pose no risk. Similarly, officials can help determine the mental stability of their own soldiers. Nootropic drugs may also be used to enhance the focus and memories of soldiers, allowing for better recognition of dangers and improved performance. However, this has led to questions regarding the personal privacy of soldiers and detainees. While the general population generally has the right to refuse medication, soldiers may eventually face compulsory medication to benefit the group. Additionally, questions regarding the accuracy of brain imaging arise when testing detainees for concealed information. Although the civilian court system is reluctant to use unproven technologies, the military's reliance on them may generate controversy on the innocence or guilt of enemy combatants.

With the advent of novel technological innovations and information in the field of neuroscience, the military has begun to anticipate specific uses for such neuroscience research. However, these approaches, which can alter human cognitive abilities as well as impinge on an individual’s right to the privacy of his or her own thoughts, are still innovatory and early in development, so the precise effects and potential influence are yet to be well elucidated. Thus, it has become increasingly pressing to address the regulations needed for controlling the extent to which neuroscience research can be employed in military functions.

In neuropharmacology, the effects of specific drugs and chemicals are investigated in how they can manipulate synaptic activity in the brain and nervous system. More specifically, military interest in drug development for use in warfare is concentrated in the production of calmatives and performance-enhancing drugs. For instance, in the 2002 Moscow theater hostage crisis, Russian forces used a chemical derivative of fentanyl against Chechens, killing innocent lives in the process. Due to this tragedy, the ethicality of using this was questioned, as well as its adherence to the regulations of the Chemical Weapons Convention (CWC).

Another area of interest to the military is the use of human enhancement drugs. DARPA (Defense Advanced Research Projects Agency), a Pentagon branch of the United States Department of Defense, is often perceived to be responsible for military research and development of technology. A current operation of DARPA is named the Preventing Sleep Deprivation Program, which conducts research on the molecular processes and changes in the brain involved with sleep deprivation, with the ultimate purpose to maximize warfighters’ cognitive abilities even with sleep deprivation during warfare. As a result of this research, sleep deprivation preventative drugs such as Modafinil and Ampakine CX717 have increased in significance. However, because these chemical drugs directly affect natural chemical reactions and receptors in the body, their ethicality of use as well as safety are in question.

Further reading

• Rosen, Jeffrey (2007-03-11). "The Brain on the Stand". New York Times Magazine. Retrieved 2011-03-22. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)

External links

• The MacArthur Foundation Law and Neuroscience Project homepage
• Baylor College of Medicine's Initiative on Neuroscience and Law
• Neurolaw: The Scales of Justice
• NPR: Jeffrey Rosen on 'Neurolaw' in the Courtroom