Future Tense Event Recap: Will Neurolaw Change the Judicial System—and Does Free Will Exist?

Future Tense
The Citizen's Guide to the Future
Oct. 22 2012 6:34 PM

Future Tense Event Recap: Will Neurolaw Change the Judicial System—and Does Free Will Exist?

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Sally Satel, Kayla Pope, Kent Kiehl, and Laura Helmuth at "My Brain Made Me Do It."

Photograph by Eliza French/the New America Foundation.

What happens if every criminal can point to a brain scan or genetic test and say, “That’s the reason why I killed that person?”

Torie Bosch Torie Bosch

Torie Bosch is the editor of Future Tense, a project of Slate, the New America Foundation, and Arizona State that looks at the implications of new technologies. 

At “My Brain Made Me Do It,” a Future Tense event held at the New America Foundation on Monday, Oct. 22, scientists, lawyers, and journalists gathered to discuss the mounting use of brain imaging in the courtroom to determine biological origins for crime, to detect lies, to mitigate sentencing, and more. According to our panelists, neuroscience won’t yet—and maybe never will—completely upend the justice system as we know it. But it will only come into play more in the coming years.

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Where is the science now?: Stephen J. Morse, associate director of the University of Pennsylvania Law School’s Center for Neuroscience and Society, said that at the moment, the research is “rhetorically relevant”—it’s worth discussing—but not truly relevant in the real world. But Kent Kiehl, an associate professor of psychology at the University of New Mexico, believes that we are getting very close to real-world applications. In his research, Kiehl has scanned the brains of many prison inmates, even those on death row. He says that his scans can predict with startling accuracy who will be schizophrenic, for instance.

Abigail Marsh, an assistant professor of psychology at Georgetown University, explained that her research has shown psychopaths are more likely to have inactive amygdalae. Moreover, people who have damage to the amygdala show similar deficits to psychopaths—no fear, impaired recognition of fear in other people. This is intriguing, but it’s early days yet. Indeed, Kayla Pope, director of neurobehavioral research at Boys Town National Research Hospital, warned that while “most of it is … pretty good science … the legal system will distort or pervert” that research as it is used by people with different objectives, like defense attorneys or prosecutors.

When it comes to identifying liars, Hank Greely, director of Stanford’s Center for Law and the Biosciences, cautioned against getting too excited about studies suggesting fMRI can tell the difference between those telling the truth and those who are not. Greely pointed out that those studies, by definition, are done in lab settings, with subjects—primarily undergrads—who know they are being studied. Who knows how the results would be changed in the real world? And how could you study it while following ethical guidelines for research?

What should we do with those who might become criminals? Kiehl, Pope, and Gary Marchant—who is Lincoln professor of emerging technologies, law, and ethics at Arizona State University’s Sandra Day O’Connor School of Law—are all intrigued by the idea of developing treatment programs for those with brain scans and personal histories that suggest they are predisposed to criminal behavior. “The legal system and some of the tragedies you read about underscore importance of using this technology for prevention—not to put them in jail but to try to stop it from happening,” Marchant said, echoing an argument he made in a Slate piece recently. Sally Satel, a resident scholar at the American Enterprise Institute, pointed out that treatment could depend in part on whether there may be “an acquired psychopathy vs. an innate one”—but the panel wasn’t sure which “flavor” might be easier to remedy.

What about the law? Greely and Marchant, joined by moderator Jeff Rosen, the legal affairs editor of the New Republic, said that it is incredibly difficult to assess how frequently neuroscience evidence is being introduced in court, let alone how often it comes up as attorneys decide whether to make a plea deal. When does enter into the record, juries and judges can go either way. Sometimes, evidence that someone is a psychopath might prompt a longer sentence, as he is more likely to reoffend, or it could sway the jury to give a lesser sentence, as it’s not his fault. For the most part, it is used as mitigating evidence during sentencing, not to make the case that he should be found not guilty. Neurolaw can also come into play in appeals on the basis of ineffective counsel—the convicted could argue that his original lawyer should have tried to introduce a brain scan, for instance.

Down the road, said Greely and Marchant, the Supreme Court may have to weigh in on the issue of “cognitive liberty,” especially when it comes to lie detection or to remotely scanning someone’s brain. Right now, you essentially have to consent to an fMRI scan—you have to keep your head still. But what if a scan can be done from yards away, without your knowledge? Would scans be considered physical evidence or testimony—which amendment to the Constitution would cover them? Greely, for one, suspects that they will be considered “testimonial,” but it’s not yet clear.

Are psychopaths and others with damaged brains responsible for their crimes? Morse highlighted the example of “Mr. Oft,” a man who developed an interest in child pornography in middle age and then molested his stepdaughter. It turned out that Mr. Oft, a pseudonym, had a brain tumor. When the tumor was removed, his urges subsided; when it grew back, they returned. But it would still be wrong to think that the tumor “made him” do it, said Morse. All pedophiles are pedophiles for a reason—why would he be less responsible than any other?

Pope looks at it another way. Maybe we aren’t “victims of our neurocircuitry,” she said, but we “certainly are products of it.”

Morse, at least, thinks that the entire conversation is premised on the wrong idea. “Forget about free will,” he says. “Nobody has it. No one ever did have it. No one ever will have it.”

Future Tense is a partnership of Arizona State University, the New America Foundation, and Slate magazine. Watch “My Brain Made Me Do It” on the New America Foundation website. To learn more about neuroscience and how it is transforming (or not transforming) the law, read the related articles on Slate:

Will Neuroscience Radically Transform the Legal System? Brain scans may help us read minds and assign responsibility better,” by Henry T. Greely, Oct. 15, 2012.

Less Guilty by Reason of Neurological Defect: Should psychopaths serve more or less time in prison than other criminals?” by Abigail Marsh, Oct. 16, 2012.

Should We Screen Kids’ Brains and Genes To ID Future Criminals? Intervention might help save troubled kids. But the label could doom them,” by Gary Marchant, Oct. 17, 2012.

Neuroscientists: Mercenaries in the Courtroom. Using brain imaging to select jurors and more could have disastrous consequences,” by David DiSalvo, Oct. 18, 2012.

Future Tense is a partnership of SlateNew America, and Arizona State University.