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Brains in the Dock

Scientists and legal scholars are trying to shape courtroom use of new brain-scanning technology.

The MacArthur Foundation will spend at least $10 million over the next several years to infuse the legal system with high-tech research from brain scientists.

MacArthur’s Law and Neuroscience Project, advocates say, will provide scientific, legal, and philosophical advice to judges now facing a wave of courtroom claims that are based on early, and often shaky, research into the workings of the human brain. Lawyers and academic advocates are citing brain research to validate witness statements, strengthen claims for injury and clemency, break contracts, bolster an Illinois curb on the sale of violent video games, and even shift the goal of sentencing away from retribution toward crime prevention.


The project began last October following a proposal from Stanford University neuroscientist Robert Sapolsky, said Jonathan Fanton, president of the John D. and Catherine T. MacArthur Foundation in Chicago, which annually gives more than $260 million to mostly liberal causes and is best known for its “genius grants” to individuals. The foundation had been looking for novel projects to fund, Fanton told National Journal, and Sapolsky’s proposal held out the promise of fundamentally changing criminal law and the justice system.

Critics contend that the project may prove counterproductive. If people believe that behavior and beliefs are controlled by brain physiology and chemistry rather than by the traditional notions of mind, soul, and character, that could boost the view that people can’t control their decisions and desires, said Yuval Levin. He is a fellow at the Ethics and Public Policy Center, a think tank dedicated to promoting traditional ethics in policy debates, and until last year served as a White House domestic policy adviser. “If you believe you can’t control your behavior, you don’t work at controlling your behavior,” he said. That belief, he said, could increase crime and prompt judges to regard some citizens as patients best treated by long-term confinement; it could even lead to more death-penalty sentences for people who have what are considered irredeemably damaged brains.

For decades, scientists have tried to peer inside the living brain. In recent years, they have developed technology that can detect the movement of oxygen-rich blood and track which parts of the brain are most active when a person is making a particular decision or reacting to a threat. Manufacturers and advocates of the technology are using these early results to sell lie-detection services, persuade juries, and sway politicians, even though the reliability and relevance of the devices are unproven.


The technology is most frequently used to show apparent damage to, or incomplete development of, a person’s brain. Attorneys are employing these high-tech images of brain problems, whether caused by genes, wounds, age, or early-childhood deprivation, to argue that their clients were not fully responsible for their actions and thus deserve clemency. Some attorneys have contended that the criminal justice system should treat teenage defendants leniently because the brain’s amygdala—which reacts strongly to perceived threats—is active in teenagers, but the frontal cortex—which is thought to restrain aggression—does not fully develop until ages 18 to 21.

These arguments fit uneasily with traditional standards of responsibility, which assume that young people gradually learn from their parents, community, and culture how to govern their behavior, and that when they are no longer children, they should be liable for their actions.

Yet the new views have won some arguments. Congress supplemented funding for early-childhood programs in the 1990s after hearing from Vice President Gore and others that brain scans show that the first few years of a child’s life deeply shape later educational achievement. Similarly, in 2005, the Supreme Court cited the new science in its 5-4 decision in Roper v. Simmons, which ruled that executing those convicted of committing murder before their 18th birthday is unconstitutional. During the oral argument, the justices focused 16 of their 20 questions to the condemned man’s attorney on scientific evidence concerning juvenile development. MacArthur can claim some credit for the Roper decision, Fanton said, because the foundation helped to focus attention on the limited competence of juveniles.

The honorary chairwoman of the Mac-Arthur project is Sandra Day O’Connor, a former Supreme Court justice who disagreed with the Roper decision. The six-year effort will include seminars for students, lawyers, judges, and politicians, and will also draft guideline for judges, Fanton said. “It is important to get the best neuroscience connected to the law,” he said, “so this is properly used and not misused.”


Eventually, the project will likely bring in politicians, said neuroscientist Michael Gazzaniga, director of the Sage Center for the Study of Mind at the University of California (Santa Barbara) and a co-director of the project. The 50 or so scientists, lawyers, judges, and academics working on the effort were chosen for the variety of their perspectives. The project has no agenda whatsoever, said Stephen Morse, a law professor at the University of Pennsylvania and a co-director of the project’s panel on addiction and antisocial behavior.

So far, the new science is being cited in a tiny fraction of legal proceedings, mostly death-penalty cases and civil lawsuits, said Hank Greely, a Stanford law professor who is involved in the MacArthur project. But over the next 10 or 20 years, the use of the technology will broaden, he said. Brain-scanning equipment might be used to detect the early signs of Alzheimer’s disease, Greely said, and the resulting information could impact the health insurance industry, spur states to cancel older peoples’ driver’s licenses, and guide investment by the nursing home industry. “The legal implications of this will be much broader than the courtroom,” he said.

One likely early use for the technology in the legal system, according to Greely, could be to tailor treatments for drug-addicted criminals or to measure pain in people claiming injury or disability. Some evidence indicates that today’s technology can detect brain patterns consistent with pain, and could help judges and juries to identify the “nontrivial chunk of those people [who] are exaggerating or flat-out lying,” he said. Lawyers could someday also employ the technology in civil disputes to argue that their clients were unable to understand a complex contract or were not competent to sign a will.

Attorneys are already citing the technology in seeking to protect convicted defendants from execution. “Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity,” the Supreme Court said in the Roper decision, which included four citations to a journal article about juveniles’ developmental immaturity that was written by a MacArthur-funded psychologist.

The new science is also shaping cultural attitudes toward personal responsibility, Gazzaniga said. “Neuroscience is oozing into the public consciousness,” especially through the universities, he said. The result, he argues, is that increasing numbers of people believe that free will is an illusion of brain mechanics, and that people can’t be blamed for doing what their brain determined that they would do. “That idea is around in every college bull session and every defense attorney’s ‘Can we try that out?’ ” he said.

Some experts in the MacArthur project—including Sapolsky, who serves on the governing board—hold that view, according to Gazzaniga. Greely says, “A lot of philosophers and neuroscientists say this [claim] will be revolutionary.” He added, “I’m skeptical because I don’t think the neuroscientists have convinced us there is no free will.”

“Everyone agrees that we should be locking up [convicted] people that are dangerous to other people,” said one of the determinists on the project, Joshua Greene, an assistant professor of psychology at Harvard University. If the technological advances persuade citizens and judges to embrace a new view of the brain, he said, they will be more likely to forgo their desire for retribution—inflicted in the form of long sentences in harsh prisons—and accept shorter sentences similar to those imposed in Europe.

The materialistic argument may lead to different results if it gains ground, said O. Carter Snead, an associate law professor at the University of Notre Dame. Judges and citizens could discard traditional notions of mercy, in his view, and support severe penalties for murderers who can’t show that their brain is damaged, as well as for criminals whose damaged brains make them more likely to commit crimes if they are released from prison.

Anthony Daniels, a former psychiatrist in British prisons, warned against any claim that people are wholly controlled by the biological workings of their brain. “If you take it seriously, it has the most illiberal consequences possible, at least as long as there is no cure [because each brain-damaged prisoner] needs to be locked up forever since he cannot control himself,” said Daniels, who has cited his prison experiences in books and articles under the pen name Theodore Dalrymple.

Morse responds that the deterministic view of the brain can be made compatible with traditional notions of responsibility. This view holds that even if brains are soulless machines, people can still distinguish between right and wrong, and what is legal and illegal. Science needn’t change the legal system, he argues. Plenty of room remains for advocates to persuade the public to accept or reject the contention that society could discard its claim to retribution for crimes, he said. “It’s up for grabs.”

And even if science eventually proves the determinists correct, the people and the politicians have the right and ability to reject scientists’ prescriptions, Greely said. “My doctor, every time I see him, tells me to lose weight, but I’d rather have the cheeseburger than the apple.”

This article appears in the April 12, 2008 edition of National Journal Magazine Contents.

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