August 16, 2011
"Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively"
The title of this post is the title of an important and exciting forthcoming book by Professor Deborah Denno; now posted at this SSRN link is a synopsis of the book's coverage and themes. Here is the posted SSRN abstract:
A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.
The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished. Based on this assessment, the book suggests ways in which the criminal law can change -- either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.
August 16, 2011 at 11:07 PM | Permalink
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Trying to shift blame from the criminal's will to his neurons is not only not "new and exciting," it's getting to be the oldest trick in the book (except maybe for excess Twinkie consumption). It's just another defense ploy parading under razzle-dazzle science jargon. Juries almost always know better.
See also, http://www.crimeandconsequences.com/crimblog/2011/08/druggies-rejoice.html
Posted by: Bill Otis | Aug 17, 2011 8:32:54 AM
Bill's predictable cynicism aside, the development of FMRIs has led to a revolution in neuroscience that will undoubtedly affect the law, sometimes in defendant's favor and sometimes in favor of the state. Eyewitness identification is a great example: Most of what we "see" comes from our memory so IDs of people we've met before are more accurate than IDing strangers.
For that matter, neuroscience has determined that even Bill's extraordinary certainty of his own position is actually an emotion with neurochemical (as opposed to purely logical) roots. Understanding how the brain functions will undermine and transform many assumptions about human behavior in an array of fields, from courts and corrections to business management, schooling and early childhood development. In 20 years as post-FMRI neuroscience matures, Bill's views will seem as antiquated and absurd as those of fundamentalists who don't want evolution taught in schools. Indeed, he's making the same error: Pretending he can ignore, marginalize or suppress science when it leads to conclusions contrary to his ideology.
Posted by: Gritsforbreakfast | Aug 17, 2011 10:33:47 AM
Wasn't this the premise of a movie?
A Clockwork Orange, anyone?
Posted by: Allan | Aug 17, 2011 10:40:05 AM
"In 20 years as post-FMRI neuroscience matures, Bill's views will seem as antiquated and absurd as those of fundamentalists who don't want evolution taught in schools."
I believe we should be generous in forgiving Grits's certainty that he knows what's going to happen in 20 years as being the product, not of his secret crystal ball, but of his neurochemistry.
Posted by: Bill Otis | Aug 17, 2011 2:52:12 PM
Grits stated: "In 20 years as post-FMRI neuroscience matures, Bill's views will seem as antiquated and absurd as those of fundamentalists who don't want evolution taught in schools."
I seem to remember the same comment being made 20 years ago. What happened? Did 20 years suddenly turn into 40?
Such comments are relegated to the annals of misinformation right along side:
"The Amazon rainforest will be completely deforested by the year 2000."
"We are all going to die because of "global cooling." (1970's)
"We are all going to die because of "global warming." (1990's)
"We are all going to die because of "climate change." (2010's)
Just like the above scientific theories never came to fruition so a new one had to be invented, I am sure you will have some other similarly academic egg-headed (and wrong)theory in 20 years.
It's ironic that those who put so much stock in "science" to prove their theories correct at some point in the future never seem to actually get the science right.
Posted by: TarlsQtr | Aug 17, 2011 4:13:09 PM
Thank goodness there are still people out there that are still willing to think out of the box and continue to push the envelope of scientific and social studies whether it ever makes it past the theoretical stage or not. I look forward to what's yet to come from the next generation. Considering the previous pessimistic viewpoints, it's surprising the last generation was able to get us to the moon as quickly as they did, but thankfully that generation also had its' forward thinking individuals who didn't let pre-conceived prejudices of the previous generation get in their way enabling it to happen.
Posted by: james | Aug 17, 2011 6:22:02 PM
If the scientists of 1920 had tried to put the "theory" of going to the moon into practice during their time, there would have been nothing but a great loss of life and treasure.
It is not that "Grits" is necessarily wrong. It is his cocksuredness that displays ignorance and arrogance rather than intelligence. He is ahead of the science. In fact, Grits' statement is more an article of faith than the strongest fundamentalist preaching creation that he criticizes. Like a 1920's astronaut, the faith Grits has in neuroscience is likely to cause nothing but mayhem and death, even if the overall premise does come to fruition decades down the road.
Ironically, Grits states: "Pretending [Bill] can ignore, marginalize or suppress science when it leads to conclusions contrary to his ideology" when he is doing nothing but "pretending" that the science supports his "ideology." At this point, it does not.
Posted by: TarlsQtr | Aug 17, 2011 7:25:05 PM
"I look forward to what's yet to come from the next generation."
As do we all, except for Grits, who thinks he already knows. One might be tempted to say here that Grits's certainty of his own prediction is actually an emotion with neurochemical (as opposed to purely logical) roots.
Posted by: Bill Otis | Aug 17, 2011 8:43:26 PM
" In 20 years as post-FMRI neuroscience matures, Bill's views will seem as antiquated and absurd as those of fundamentalists..."
I think Grits is clearly right on the cognitive science and philosophy of punishment, but probably wrong on the sociological prediction.
That brain structure and function determine personality has been well-understood since Phineas Gage. Yet most still persist in the belief that every person has "free will" and (note the conjunction) therefore bears sole and ultimate responsibility for his or her behavior. And many of these same folks will meet any nuanced denial of this dogma as tantamount to "shift[ing] the blame from criminals" - a response that by its own terms misunderstands just what's at stake.
In sum, then, and on present sociological evidence, I say it'll be 40 years at least!
Posted by: Michael Drake | Aug 17, 2011 9:55:39 PM
All behavior is brain based. All behavior comes from a coalescing of multiple factors, including luck.
Say we prove that legal scholarship comes from a brain region, in combination with hard work over many years, and that Prof. Berman meets all the criteria. When looking for a person for your endowed law school chair, would meeting all the criteria make it more certain or less certain that Prof. Berman will engage in legal scholarship? His FMRI reassures the selection committee that they are spending that high pay correctly. It does not mitigate but reinforces the consequence of legal scholarship which is the tenure of an endowed chair.
The finding of a reliable difference in the genes or a specific difference on brain scan makes the verdict more reliable, and the application of aggravation more justified. If it excuses crime, then it also justifies taking away the the judge's salary and powers based on his legal talent, the high salary of a someone pitching a ball at 90 mph, and the reward of everyone else with a talent.
Established brain differences increase the likelihood of repetition and should be used as aggravating factors, never as an excuse.
Posted by: Supremacy Claus | Aug 18, 2011 3:02:45 AM