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Neurolaw: A revision of our justice system?

Written by Emil Koch


Legal decisions are tied to neurological issues. Civil law represents a codification of behavior deemed right and others regarded wrong. In nature, no such law exists; it is one human invention forming the cornerstone of civilized societies. The common goal of the law, be it civil or common law, originating in mainland Europe and medieval England, respectively, is to respect human dignity. A central inquiry within the emerging field of neurolaw revolves around the utilization of neuroscientific evidence and its implications for our justice systems. Can neuroscience bring about fairer justice systems?


To begin with, neuroimaging methods offer a new approach to psychiatry and neuropsychology. Scan the brain, and the imaging expert interprets it (Baskin, 2007). Neurocriminologists suggest neurodevelopmental properties can explain certain factors leading to crimes (Baskin & Hilborn, 2008). Does this evoke implications for moral responsibility, free will, and punishment? Given that free will is the centerpiece of criminal law, assuming humans, as individual agents capable of making their own decisions, what if that is compromised? Should human free will be questioned in the courtroom, the fundamental justice system crumbles away, as legal culpability couldn’t be justified. However, mental functions are not clearly related to specific brain areas (Mohr et al., 2010). Put differently, in the courtroom accurate evidence is crucial, which makes neurological and ambiguous evidence difficult to integrate. Stephen Morse, a professor of law and psychiatry, explained that neuroscience presently only confirms the behavior we already know. The behavior action rules, whereas neuroscience mitigates and transforms sentences to be more humane. He further contends that the complete mapping of the brain's connectome holds limited value unless it's linked to the realm of legal psychology. For legal purposes, mitigation or acquittal should only be considered if an individual's behavior at the time of the act was irrational. The question then arises: how can we substantiate this in a courtroom? Here, neuroscience and neuroimaging data might come into play, but not in the sense of revolutionizing the whole concept of law our society is based on. Additionally, brain-based evidence could help law enforcement by monitoring the effects of rehabilitation and imprisonment on the individual.


Some advocates of law revision, however, posit that neuroscience data demonstrates that free will is an illusion; therefore, no one should be held criminally responsible (Meynen, 2014). Along these lines, law revision advocates put forward that the retributive criminal justice system is failing to prevent future crime but rather perpetuates criminal vicious circles due to various factors, including societal stigma and harmed emotional well-being. Transformative justice, on the other hand, aims to build community resilience by targeting the root causes, such as drug criminalization. Nevertheless, most societies adhere to retributive justice, grounded in the principle of an eye for an eye. While sentences are unlikely to vanish in the foreseeable future, driven by a moral inclination to punish transgressors and the practical necessity of societal order, neuroimaging evidence might humanize sentencing practices. This shift could place a stronger emphasis on rehabilitation, ultimately enhancing the prospects of reducing recidivism and fostering successful crime reduction strategies.

Considering the persisting racial discrimination in jury selections in the US, according to the Washington Post, neuroscience techniques might help prevent biased prospective jurors. Although lawyers are not allowed to exclude jurors based on race, peremptory strikes often cover for racial bias. Indeed, potential Black jurors would be asked whether they have experiences with the police and then dismissed for perceived bias against police. Conventional lie detectors have come under criticism in recent years; therefore, the newly emerging "mind-reader" is hotly debated as an alternative that might detect lies more precisely and thus eliminate unjust practices in the courtroom (Greely, 2013). However, such attempts to use EEG to build predictive algorithms are not regarded as mature in their current state (Rusconi & Mitchener-Nissen, 2013). Furthermore, the reverse inference from a brain state to a mental state is difficult given that the mere activation of a brain area, the fusiform face area, associated with detecting faces, for instance, doesn’t mean that the person actually sees a face - it could be solely imagined (Poldrack, 2006). Nonetheless, as technology advances, neuroscience techniques have the potential to streamline court processes in three distinct ways. Firstly, they could simplify diagnostic procedures in psychiatry, especially concerning matters of insanity and assessing responsibility for one's actions. Secondly, these techniques may contribute to the prevention of future crimes by emphasizing re-education rather than punishment for past transgressions. Lastly, neuroscience can enhance the credibility of a defendant's danger assessments.


Where can we move from here? Will neuroscience only be a nice add-on to have or will it push philosophical debates for a revision of the law systems? The rest of the article explores conflicting philosophical views, takes empirical evidence, and outlines potential real-life applications.

Specifically, neuroscience evidence falsifies the retributivist argument that punishment is right in itself, as the agent can’t be considered truly free (Lavazza & Corso, 2021). Not only EEG recordings but also the deterministic model of the universe render the blameworthiness into an illusion. Free will is incompatible with the laws of physics. Does this mean murder should or can be justified? It does not. Murder produces strong moral intuitions of disgust, and has a fixed punishment, a life sentence, in most law systems in the world. What if the murder happened by accident? What if the defendant verifiably is mentally ill or genetically predisposed to executing such crimes? It hardly tells us to abolish sentences overall but calls for a more consequentialist law approach to crime prevention, both for society and the accused individual. In the murder example, this could mean applying a partial defense, that is, reducing a murder verdict to manslaughter (Claydon, 2021). Recidivism essentially highlights the unfairness of retributivism, given the various influences of genes, environment, society, and culture. As put forward by Greene and Cohen (2004), neuroscience may induce folk psychology of vindicating wrongdoers on the basis of their brains whilst interjecting its methods into the witness and defendant's trustworthiness. Now, naturalistically speaking, retributivism is unjustified. Conversely, a consequentialist approach would be founded on protecting the collective well-being not by punishment per se but by the means necessary to restore public order. That line of argument, however, reveals some ethical concerns about brain privacy and neurointervention. Serotonergic drugs are thought to reduce aggression in individuals. Is it then ethically tenable to require individuals to consume neuromodulatory drugs for the sake of social health? In addition, Vohs and Schooler (2008) demonstrated that the belief in determinism fosters irresponsible behavior. On the other hand, even if scientifically disproven, the feeling of free will promotes responsibility, as reported by Baumeister et al. (2009). Accordingly, pure consequentialism might involve unintended negative consequences, in particular, an attack on individual freedom and rights in the light of neurointervention technologies and attributes that can be regarded as retributivist.


As a matter of fact, punishment can enhance group cooperation by penalizing non-cooperative individuals (Fehr & Fischbacher, 2004). Research experiments also indicate that the tendency to administer punishment grows when a larger audience observes punitive actions, suggesting a socio-evolutionary origin (Kurzban et al., 2007). Keeping in mind the deep root of retributivism in the human brain, a scientifically informed criminal punishment should reconcile consequentialist or retributivist aspects to account for the latter’s pragmatic value in human societies and the former’s input from discoveries of gene and brain malfunctions responsible for deviant behavior. Neurolaw will remain a growing and important field that continues to bridge the gap between our evolving understanding of human behavior, neuroscience, and the complex dynamics of legal and moral philosophies in the pursuit of a more just and equitable legal system.


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