*"My Brain Made Me Do It"

So it seems that more and more discussion has been happening about the place of neuroscience in law:

This article does a good job of outlining how neuroscience has been utilized in criminal law to reduce the sentencing of those with "abnormal brain scans" and the expressions of aggression. It further points out the shortcomings of the relationship between neuroscience and concepts of responsibility.

The article provides the example of an Italian woman who committed murder and burned the corpse and the house in attempt to also kill her parents. Her brain showed abnormality in the anterior cingulate gyrus. It also notes another case about a man with a tumour in his orbitofrontal cortex and pedophillic behaviour. Once the tumour was removed, the behaviour stopped. Tumour comes back, behaviour returns. Similar cases have been well documented.

Along the same lines, this article pronounces the limitations and use of brain scans in courts. They use the example of adolescent brains and how they are not fully developed as an adult's brain. It has been noted that the adolescent brain does not fully develope until the latter half of one's 20s. The argument in U.S. courts is that because the adolescent brain is not fully developed they were not competent to make any decisions and that the evidence they provide are not admissable. The article states:

"When lawyers turn to neuroscience, often what's at issue is a defendant's competency, Farahany says. So a defense lawyer might argue that "you weren't competent to have pled guilty because of some sort of brain injury," she says, or that you weren't competent to have confessed to a police officer after being arrested.

"And it worked," Farahany says. "The prosecution had to basically start over in developing evidence against the juvenile because they couldn't use his own statements against him."

As I raised in a previous post, should neuroscientific evidence be utilized in this way to determine competence, give impunity or absolve responsibility?

Part of this question deals with the law's understanding of self, agency and responsibility, i.e. legal ontology of persons, as well as the underpinning framework of biology and human nature which qualifies that legal ontology. That is, how the self is understood and appropriated within ethics, epistemology, and the philosophy of mind - particularly with respect to the mind-brain and mind-body relationship (or in theological terms issues about a "soul") - such that it has come to be operationalized in law.

Another dimension of this question is sociological and  relates to the social/societal inadequacies of the healthcare system and the criminal justice system. On one hand, the occurrence of such crimes and the retrospective evidence of neurological abnormality indicates an inadequate healthcare system. Most persons with abnormalities in the brain or a tumour will begin to express other behavioural indications prior to the commitment of the crime. If these persons went to doctors and these abnormalities were missed, that is one critique. The other critique lies in the tendency for persons to suffer the pain rather than incur the costs of seeing a physician. Many who do not have insurance and live paycheck to paycheck think about how much a visit to the doctor will cost and strain the family. In other words, money is a bigger concern than health.

Another area of sociological concern is with the criminal justic system itself. While there are many issues to discuss, what is particularly relevant to this discussion is the relationship between prison and mental health as well as the issues surrounding the responsibility of the state. Simply throwing somebody with a neurological concerns, or someone with a tumour putting pressure on certain areas of the brain associated with impulsiveness, into the criminal justice system is inadequate and ignores health issues for the facade of justice. The criminal justice system is antiquated. Putting people in prison is not always the best way to remove societies of its "ills". Foucault's critique of marginalization, normality and society comes to mind. In many ways, prisons are societies' toilets. We flush and it disappears. Out of sight, out of mind. This is a failure of the criminal justice system with the knowledge we have today.

There appears to be two tasks: the philosophical project and the institutional project: The first is the discussion between philosophy, theology, science (both social and hard) and ethics on the subject of responsibility and the body. Neuroscience and biology is revealing more and more details about the underlying neurobiology of our embodiment and development of habitus.  These discussions need to be taken further with the range of cultural variance, particular views of ethics, and how this relationship needs to be navigated and reappropriated with the operations of law.

The second project is to reform healthcare and the criminal justice system. These two institutions and their methodologies in which we marginalize and trivialize persons is outdated and their limitations are beginning to manifest themselves in ways the courts and servants of law are unable to address. Everyday we hear more and more about the increased racism that pervades the law enforcement regimes - who are empowered by law and the vale of protecting the people. Western societies that boast democratic values continue to discriminate with additional veneers of language. Ironically, the video surveillence system has backfired and more and more injustices are being caught on tape. Before, the officer's word would have stood and given more value than the suspect or "criminal". Persons are guilty until proven innocent. It is too easy to make people criminals and the standard by which society places people in prison needs to be reconsidered and re-evaluated. Overloading the prison-industrial complex is not a comment on how well the police and the state are doing in keeping people "safe".

Setting aside the second task of reform in which serious discussions and considerations of activism should take place, including a discussion of how to inject more intelligent and sensible debate into the political sphere of persons - who got there based on "popularity" and capital as opposed to any kind of merit. The philosophical task is re-engaging the discussion of society, law, and the academic disciplines. Part of this task has been taken up by contemporary scholars, see previous post : 'would we be better off without blame?'

A far more basic engagement that needs to begin happening is to see an impact of the neurosciences and basic understandings of biology in making bridges. Brain structures and functions, as I did somewhat crudely in a prior post with regard to language, need to be understood and discussed in much more depth. There are many philosophers today actively engaged with neuroscience and the cognitive sciences. It is my contention that we need more of that.

Here, Owen Jones - director of MacArthur research network on Law and Neuroscience - gives an interview on the developments and future of this interface between law and (neuro)science.