Neurolaw
Neurolaw is a field of interdisciplinary study that explores the effects of discoveries in neuroscience on legal rules and standards. Drawing from neuroscience, philosophy, social psychology, cognitive neuroscience, and criminology, neurolaw practitioners seek to address not only the descriptive and predictive issues of how neuroscience is and will be used in the legal system, but also the normative issues of how neuroscience should and should not be used.
The rapid growth of functional magnetic resonance imaging research has led to new insights on neuroanatomical structure and function, which has led to a greater understanding of human behavior and cognition. As a response, there has been an emergence of questions regarding how these findings can be applied to criminology and legal processes. Major areas of current neurolaw research include courtroom applications, legal implications of neuroscience findings, and how neuroscience-related jurisdiction can be created and applied.
Despite the growing interest in neurolaw and its potential applications, the legal realm recognizes the substantial opportunity for misuse and is proceeding cautiously with novel research outcomes.
History
The term neurolaw was first coined by J. Sherrod Taylor in 1991, in a Neuropsychology journal article analyzing the role of psychologists and lawyers in the criminal justice system. After this publication, scholars from both fields began to network through presentations and dialogs, and start to publish books, articles, and other literature about this intersection. Parallel to the expansion of neurolaw, an emergence of neuroethics was developing.The intersection of neurolaw and ethics was able to be better scrutinized by the initiation of the Law and Neuroscience Project by The MacArthur Foundation. Phase I of this project was launched in 2007 with a $10 million grant. The initiative sustained forty projects addressing a multitude of issues, including experimental and theoretical data that will provide further evidence as to how neuroscience may eventually shape the law. The Gruter Institute for Law and Behavioral Research and the Dana Foundation are some of the prominent institutions that receive grants and conduct neurolaw research under this initiative.
Neurolaw has also piqued the interests of several universities, such as Baylor College of Medicine's Initiative on Neuroscience and the Law, now known as the national nonprofit, called the Center for Science & Law. SciLaw, as the organization is known, seeks to leverage neuroscience, law, ethics, programming, and data science to analyze policies and develop solutions to advance the criminal justice system. Their stated goal is to 'steer social policy in an evidenced-based manner, thereby reducing rates of incarceration and providing innovative options for improving the criminal justice system in a cost effective and humane way'. The University of Pennsylvania’s Center for Neuroscience and Society began in July 2009, and is working towards confronting the social, legal, and ethical inferences of neuroscience. Vanderbilt University created the first dual J.D./PhD in the United States in 2010.
Neurocriminology
A few important sources have shaped the way that neuroscience is currently used in the courtroom. Primarily, J. Sherrod Taylor's book, Neurolaw: Brain and Spinal Cord Injury, which was used as a resource for attorneys to properly introduce medical jargon into the courtroom and to further develop the implications of neuroscience on litigation. In this book, Taylor also explained the consequences of Daubert v. Merrell Dow Pharmaceuticals. This United States Supreme Court case resulted in what is now known as Daubert Standard, which sets rules regarding the use of scientific evidence in the courtroom. This standard governs the way that neuroscience evidence can be presented during a court case.Criminal perception
Recently, Petoft and his colleagues introduced a newly coined term: "Criminal perception" "as an ability that makes it possible for a child to understand criminal situations and behave lawfully." The term encompasses two distinct intertwined characteristics of children mean Social and Moral Personalities. The former employs the areas of the brain which contribute to normative cognition and person perception; and the latter stems from the cognitive networks by which gut feeling, emotional awareness, and conscious deliberation are realized in a criminal situation.Crime prediction
and neuroimaging evidence offer potentially more accurate modalities for predicting human behavior. Developing these tools to be used in criminology would be beneficial particularly in determining criminal sentence length and in assessing risk for which criminals should remain in jail or be released based on prediction of future offenses. Not only could the adaptation of these tools aid in the process of recidivism, but they could also show indications for the need for personal rehabilitation. In light of this information and its potential applications, the legal system seeks to create a balance between punishment and penalties based on the ability to predict additional criminal activity.The Center for Science & Law has developed a suite of mobile and gamified NeuroCognitive Risk Assessments to help steer people to the proper post-conviction rehabilitation programs by harnessing what drives individual decision making. By understanding individual differences in aggression, empathy, decision making, and impulsivity -- without reference to race -- the group states they can build better and fairer inroads to rehabilitation. As a risk assessment, it was found to be as predictive or more so than risk assessments commonly used. Holding consistent with their mission to "advance justice", the NCRA does not collect race data making for a more fair and unbiased assessment.
Insanity defense
The tendency of the United States criminal justice system has been to limit the degree to which one can claim innocence based on mental illness. During the middle of the 20th century many courts, through the Durham Rules and the American Law Institute Model Penal Code, regarded impaired volition as legitimate grounds for the insanity defense. However, when John Hinckley was acquitted due to insanity in 1982, a reversal of this opinion occurred, which spurred a narrowing definition of mental illness. Insanity decisions became increasingly based on the M’Naghten Rules, which asserted that unless one was able to prove that a mental illness kept him or her from knowing that their actions were wrong, or knowing the disposition of the criminal act, one would not be able to be tried as criminally insane.Contemporary research conducted on the prefrontal cortex has criticized this standpoint because it considers impaired volition as a factor. Many researchers and courts are beginning to consider "irresistible impulse" as legitimate grounds for mental illness. One of the factors neurosciences have added to the insanity defense is the claim that the brain “made someone do it.” In these cases, the argument is based on the notion that individuals' decisions are made for them, before they are able to consciously realize what they are doing.
Further research on control and inhibition mechanisms will allow for further modifications to the insanity defense. Impaired functioning of the PFC is evidence that a prime factor in mental illness is disrupted volition. Many experiments using fMRI show that one of the functions of the PFC is to bias a person towards taking the more difficult action. This action is representative of a long-term reward, and it is competing with an action that will lead to immediate satisfaction. It is responsible for moral reasoning, including regret. Individual variations that impair the PFC are extremely detrimental to the decision-making process and give an individual a greater likelihood in a committing a crime he or she would have otherwise not committed.
Brain death
Injuries or illnesses that lead to a persistent vegetative state have come to the forefront of many ethical, legal, and scientific issues regarding brain death. From the exterior, it is a difficult to know when a patient is beyond hope for recovery, as well as to decide who has the right to end life support.Research initiatives in cognition have helped to develop an understanding of the vegetative state. Research has shown that although a person can be awake and conscious, he or she may not show any signs of awareness or recognition to external stimulation. In 2005, research was conducted on a 23-year-old female who suffered traumatic brain injury from an automobile accident. The woman was declared to be in a vegetative state; after five months she continued to be unresponsive, but brain pattern measurements indicated normal sleep and wake cycles. Using fMRI technology, researchers concluded that she was able to understand external stimuli via activity in specific regions of the brain. Particularly, she exhibited increased activity in the middle and superior temporal gyri similar to the way that a healthy individual would. This positive response revealed potential for medical imaging to be used to understand the implications of brain death, and to help answer legal, scientific, and ethical questions pertaining to individuals in vegetative states.
Nootropics
Neurolaw also encompasses ethical questions regarding nootropics, or mind-enhancing drugs. Current research suggests that the future may hold powerful medications that can specifically target and alter brain function by bypassing the blood brain barrier. The potential to significantly improve one's concentration, memory, or cognition through drug-use has raised numerous questions on the legality of these substances, and their appropriateness in everyday life. Analogous to the controversy over the use of anabolic steroids in professional sports, many high schools and universities are wary of students eventually using nootropics to artificially boost academic performance.Some of the questions raised regarding the use of nootropics include:
- How will these enhancers affect performance gaps between family income classes?
- Will it become necessary to use an enhancing drug simply to remain competitive in society?
- How does society distinguish between what is an acceptable substance and an unacceptable substance to alter one's mind?
- Do people have the right to experiment with substances to modify their own cognition?
It is ethically debatable whether individuals who do not need nootropics should use them, and mostly unknown how continued usage could impact the brain chemistry of someone who is using nootropics for nonprescriptive reasons.