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November 12, 2013

Can and should brain science research become a regular (and regulated) part of sentencing decision-making?

Brainscans2The question in the title of this post is prompted by this notable new NPR segment (misleadingly?) headlined "The Case Against Brain Scans As Evidence In Court." Here are excerpts from the piece:

It's not just people who go on trial these days.  It's their brains.

More and more lawyers are arguing that some defendants deserve special consideration because they have brains that are immature or impaired, says Nita Farahany, a professor of law and philosophy at Duke University who has been studying the use of brain science in court.

About 5 percent of murder trials now involve some neuroscience, Farahany says. "There's a steady increase of defendants seeking to introduce neuroscience to try to reduce the extent to which they're responsible or the extent to which they're punished for a crime," she says.

Farahany was a featured speaker at the Society for Neuroscience meeting in San Diego this week.  Also featured were several brain scientists who are uncomfortable with the way courts are using brain research....

The approach has been most successful with cases involving teenagers, Farahany says. "It seems like judges are particularly enamored with the adolescent brain science," she says. "Large pieces of their opinions are dedicated to citing the neuroscientific studies, talking about brain development, and using that as a justification for treating juveniles differently."...

So judges and juries are being swayed by studies showing that adolescent brains don't function the same way adult brains do.  One study like that was presented at the neuroscience meeting by Kristina Caudle, a neuroscientist at Weill Cornell Medical College. The study, funded by the National Institutes of Health, used a technology called functional MRI to look at how the brains of people from 6 to 29 reacted to a threat.

"The typical response — and what you might think is a logical response — is to become less impulsive, to sort of withdraw, to not act when there is threat in the environment," Caudle says.  "But what we saw was that adolescents uniquely seemed to be more likely to act. So their performance on this task became more impulsive."  And Caudle found that in adolescents, an area of the brain involved in regulating emotional responses had to work much harder to prevent an impulsive response.  This sort of study is great for understanding adolescent brain development in a general way, Caudle says.

"What it doesn't do is allow us to predict, for example, whether one particular teenager might be likely to be impulsive or to commit criminal behavior," she says.  And Caudle worries that a study like hers could be used inappropriately in court.  "Jurors tend to really take things like MRI scans as fact, and that gives me great pause," she says.

When it comes to nature versus nurture, brain scientists think both matter.  A lot of the neuroscience presented in court is simply unnecessary, says Joshua Buckholtz, a psychologist at Harvard.  "Anyone who's every had a teenager would be able to tell you that their decision-making capacities are not comparable to adults," he says.

And relying on brain science to defend juveniles could have unexpected consequences, Buckholtz says.  For example, he says, if a prosecutor used an MRI scan to show that a 16-year-old who committed a capital crime had a very mature brain, "Would we then insist that we execute that juvenile?"

The task of integrating brain science into the judicial system will in large part be the responsibility of judges, Buckholtz says.  And how it works will depend on how well judges understand "what a scientific study is and what it says and what it doesn't say and can't say," he says.

I do not see anything in this piece which suggests that brain scans amount to "junk science," and thus I do not fully understand why NPR thinks this segment reveals a "case against" against brain science as evidence in legal proceedings. 

Of course, I fully understand concerns expressed by scientists about the potential misuse or misunderstanding of their nuanced brain scan research.  But juries and judges are drawn to scientific research largely because the decision-making alternative is to rely more on gut feelings, emotions, instincts or biases.  Unless brain scans provide a worse foundation for making judgments than gut feelings, emotions, instincts or biases, it seems to me they ought to have a role in legal decision-making.

As the question in the title of this post suggests, I think the really tough questions here are not whether brain science is worthy of consideration, but rather when and how brain science should be considered by judges and juries.  Indeed, the Supreme Court's Eighth Amendment rulings in Roper and Graham and Miller have already given brain science research some constitutional import, and thus I hope both scientists and law professors will now turn their attention to debating how the legal system might most fairly and effectively operationalize what the brain research is telling us about the scientific realities of human behaviors and personal development.

November 12, 2013 at 10:09 AM | Permalink


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Could the same neuroscience lead to a civil incarceration after service of the criminal sentence, as in sexually violent predators cases? The "SCAN" will one day be the crime or, at least, the trigger to argue that this person must be kept away to protect society. It seems like a slippery slope!

Posted by: Stanley Feldman | Nov 12, 2013 12:04:07 PM

One thing we should always remember is that Medical Professionals engage in the practice of medicine. It changes and evolves. Diagnostics and proceedures change. There is also a phrase that came into our vernacular through the climate change debate. That phrase is settled science. Scientists know there is no settled science - there is only science.

On the other hand, sentencing is definite.

Posted by: beth | Nov 12, 2013 12:11:26 PM

I am a student studying family law in New Westminster and I think that brain science should definitely be a factor in sentencing. I'm writing a research paper about it and this will be a great reference. Thank you for your blog, it really helps those of us trying to learn more about law.

Posted by: Abed Nadier | Nov 12, 2013 12:51:23 PM

This is the phrenology of our day. Like inspecting the defendant for the witch's teat. How many will suffer before it's debunked like all the ones before?

Remember the polygraph? Fiber and hair evidence? NFPA 921? The anal wink test? You'd be just as well to use a golf ball finder like they do in Iraq to detect bombs.

Posted by: Boffin | Nov 12, 2013 12:58:25 PM

I think it is important and should be a part of sentencing but I would agree that it opens the door to a slippery slope. There are a lot of details to be ironed out and science is always evolving. The screening helps you to understand the "why" or "how" in terms of the thought process for those who are not considered "normal". The sentencing should take into consideration what can be done to help that person overcome those thoughts or eliminate them altogether, otherwise, the screening is a waste of time.

Posted by: Daniel C. Miller | Nov 12, 2013 2:51:21 PM

As long as Buck v. Bell is still good law the slippery slope is slippery indeed. Already some support and some fear the neo-Buck v Bell. It will be more convincing and compelling when the dangerous brain scans can be linked to specific genes. And while that utopia may be appealing in the Dexter sense (great writing!) there is also a downside to putting out Touched With Fire.

But it is probably inevitable.

Posted by: George | Nov 12, 2013 7:49:52 PM

Neuroscience may soon play a key role in the defense of 48-year old Kentucky church pastor Kenneth Allen Keith, who is charged in Boyle County Circuit Court with murdering three people during a robbery at a Danville, Kentucky pawn shop on September 20, 2013. Rev. Keith is well-known in his home town of Somerset, Kentucky as a peaceful and kind man. None of his long-time friends thinks it possible that he could have committed these crimes, and he has no prior criminal history. To date, the evidence appears strong that Rev. Keith did in fact short and kill the three victims during a robbery. He may, however, present a defense of "not guilty by reason of insanity". In the past two years he has twice received radiation and chemotherapy to treat him for a brain tumor. As of July 2013, he is cancer-free. Because of its location, the tumor could not be surgically removed, and remains inside his brain. Any good neurologist will tell you that if a brain tumor presses on the right parts of the brain, it can make a naturally peaceful man become extremely violent, which is what may be argued in Rev. Keith's case. "Yes, I killed the victims, but my brain tumor made me do it." This case may set a precedent and will certainly make national news, whichever way it comes out.

Posted by: Jim Gormley | Nov 12, 2013 9:44:49 PM

JIm Gormley --

Did the brain tumor force him to plan the robbery, too?

Posted by: Bill Otis | Nov 12, 2013 11:42:03 PM

Jim: IN a similar vein, a Parkinson disease medication treats a 70 year old female patient. She becomes a gambling and sex addict. She sues and wins her $300,000 gambling debs from the maker of the medication.

Assume the validity of these claims, in he case of this patient, and of the Reverend.

Those are not excuses, they are aggravating factors. Tumor driven criminal career must be stopped by incapacitation. Gambling must be deterred by its natural consequences, and banning from all legal gambling sites.

I believe the more plausible scenario is that she was immobilized by Parkinson's. Set loose by treatment, she then did what she wanted to do all that time.

Posted by: Supremacy Claus | Nov 13, 2013 7:49:45 AM

@ Jim Gormley

lol That is a local case here, as Danville is about 20 minutes from me (a beautiful town, BTW, with a couple of nice colleges and one of them hosted the most recent VP debate).

You fail to provide all of the relevant information.

The pastor had just been cut out of a deal to buy gold from the Hockesmiths, the owners of the store.

The third victim was the buyer of the gold and Mr. Hockesmith's brother.

The pastor had shown no signs of such behavior before this grisly murder according to people who knew him well. Do the symptoms of brain tumors come and go?

Dollars to doughnuts, this guy will be a MODEL inmate in county corrections. Again, he will somehow control it when in his best interest to.

This is typical lawyer talk. Find ANY reason, however implausible, that the defendant is not to blame and build a defense backwards. Sorry, but I will go with the most reasonable and obvious motive, greed.

Posted by: TarlsQtr1 | Nov 13, 2013 9:02:18 AM

Keith's Facebook page the day of the funerals:

“No sleep at all, I am just in shock right now over this loss of three great people. We never know what is coming on the next breeze so breath deep the breath God gives you now.”

Another comment from Keith below that post says, “Any of them would have give you the last dime they had if you needed it. no sense none at all. Dan had given money to support youth camp every year since I have known him. Mike and Angela were counselors. My heart is broken.”

Funny, but his tumor did not disrupt his ability to try to get away with it and blow smoke up the collective a$$e$ of the entire community.

Posted by: TarlsQtr1 | Nov 13, 2013 9:07:25 AM

My problem with the overemphasis on neuroscience is that the science isn't that much beyond stating the obvious.

Any parent with teenagers could tell you that many teenagers tend to be more impulsive and rebellious than a mature adult. Now neuroscience has shown that the brain is undergoing changes during that time explain what most people have already known. (Just like similar studies are explaining why some people suffer go through a "mid-life crisis" in which they revert back to impulsive behavior.) But it is still not to the point of explaining why some teens do not engage in extreme criminal behavior and others seem to still abide by the distinction between right and wrong.

Likewise, most people would understand that people -- whether from an accident or cancer or genetic disorder -- with an injured brain might act differently from how they would act if the brain was not injured. The neuroscience can detect the injury, but the science can't yet definitively state what behavioral changes are caused by the injury versus somebody using the injury as an excuse to do what they have always wanted to do (in other words, why do these conditions seem to cause some people to go completely off the rails while having relatively minor effects in other people).

Right now, it seems like the science is still at the correlation phase and not yet to the causation phase where we can say exactly how important and significant a factor the not yet fully developed or changing brain has in the decision to engage in criminal conduct. As some of the other posts have noted, do civil libertarians and the defense bar really want to get to the stage where we can positively determine the probability of criminal conduct based on an evaluation of a person's brain?

Posted by: tmm | Nov 13, 2013 9:59:57 AM

If adolescents cannot control themselves, why do they commit fewer crimes than adults?

Posted by: Supremacy Claus | Nov 14, 2013 7:43:08 AM

Bran scan status is an involuntary condition like race, gender, age, disability. It is logical that the different brain scan of a professional baseball player will justify ending the discriminatory practice of paying him $10 million, since he is less "culpable." How about no longer paying a beautiful model a $1000 an hour, because her face is an involuntary condition?

I agree that the abnormal brain scan implies a permanent handicap. The person has not and cannot learn from punishment, therefore it is really an aggravating factor requiring permanent incapacitation.

Posted by: Supremacy Claus | Nov 14, 2013 7:49:58 AM

One of the geniuses here, please, explain why these adolescents are less culpable, just immature, and why they should be kept alive, to do it again.


Posted by: Supremacy Claus | Nov 16, 2013 9:05:37 PM

I am had several brain scans as a result of a motorcycle and automobile crashes. One examination involved asking me stupid questions then they observed the activity of the brain. After a while I would lie or make up a BS story to get the examiner to comment.
after the examine I had in Ft.Pierce Fl. I questioned the examiner about the results of the test. He stated that I shouldn't teach or hang around small children and I ask why he answered that my brain would become excited and the adrenalen levels evevated and the fight or flight areas had similar active patterns of a murder or serial killer. I stopped going to the quack and fire the attorneys that sent me to him to support the lawsuit I had suing the asshole who rearend me and gave me whiplash and tramma to my arms and hand.

Posted by: James M. Head | Dec 7, 2013 5:21:46 AM

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