Criminal responsibility in the age of "mind-reading".

AuthorSasso, Peggy

While academics debate whether advances in the neurosciences eviscerate notions of guilt and innocence precipitating the demise of the criminal justice system as we know it, in the courtroom practitioners on both sides are busy exploiting the novelty and ambiguities of emerging research to advance arguments the nascent data cannot now, and may never, support. This Article contends that the significance of the neurosciences to the criminal law can only be assessed in the context of a given theory of punishment. In other words, assumptions about what justifies who and how much we punish and, indeed, the very practice of punishment itself, must be made explicit. Yet, this essential threshold analysis is all but missing from the debate. This Article concludes that advances in the neurosciences have a limited but potentially critical role to play in the criminal courtroom. It reaches that conclusion, however, only after first articulating a mixed theory of punishment with expressionistic and retributivist elements that comports with our current criminal justice practices and has the capacity to accommodate emerging scientific knowledge.

INTRODUCTION I. TOWARDS AN EXPRESSIVE THEORY OF PUNISHMENT A. Insights from Evolutionary Biology B. Emile Durkheim and the Social Function of Punishment C. To Whom May Punishment Be Applied? D. How Severely May We Punish? 1. Defining Desert 2. The Problem with Deontological Desert II. THE EXPRESSIVE THEORY WITHSTANDS THE NEUROSCIENTIFIC CHALLENGE TO ULTIMATE RESPONSIBILITY A. Normative Free Will B. Alternative Possibilities C. Source (In)compatibilism D. Folk Intuitions of Criminal Responsibility III. DEFINING NORMATIVE COMPETENCE: WHAT CAN THE NEUROSCIENCES TELL US? A. Limitations B. The Neurobiology of Social Cognition 1. Role of Emotions in Human Cognition 2. General Capacities Required for Social Cognition a. Self-Representation b. Perception of Others c. Social Knowledge 3. The Neural Anatomy of Social Cognition a. Prefrontal Cortex b. Amygdala c. Hippocampus d. Anterior Cingulate and the Insula Cortex CONCLUSION INTRODUCTION

It seems that every other day the popular media is heralding what it perceives to be the latest neurological findings, which it invariably distills down to a story about mind-reading or biological determinism. In just the past two years, the cover of Time proclaimed "Science is Discovering" what makes us good and evil; (1) NBC's Today Show asked "Are Kids Born to Bully?"; (2) the CBS newsmagazine, 60 Minutes, suggested that in limited circumstances neuroscientists already have the ability to know what we are thinking; (3) Newsweek threw caution to the wind and boldly asserted "Mind Reading is Now Possible" (4) and, not to be outdone, a few weeks later Nature magazine summarized the findings of a study from U.C. Berkeley in an article headlined "Mind-Reading with a Brain Scan." (5)

The potential implications of these and other "pop" neuroscience reports have not been lost on the legal field. In March 2007, Jeffrey Rosen's "the Trials of Neurolaw" was splashed on the front page of The New York Times Magazine. (6) A year later, even the California Bar Journal entered the fray with a cover story entitled "Bridging the Worlds of Neuroscience and the Law." (7) And by donating ten million dollars in October 2007 to fund the newly created Law and Neuroscience Project, (8) the John D. and Catherine T. MacArthur Foundation lent its imprimatur to the interdisciplinary study of law and neuroscience.

With all the flurry surrounding recent neuroscientific advances it is important to step back and assess what we actually know about the human brain or are likely to learn in the not too distant future. First, scientists do not have the technology or a sufficiently sophisticated understanding of the human brain to meaningfully read minds, nor are they close to being able to do so. Second, while the debate over nature versus nurture rages on, it seems safe to say that our biology results from a complex interaction between our genetic inheritance and our environment that we are only at the nascent stages of exploring. (9)

More importantly, neither the neurosciences, nor any other science, can provide a causal explanation for crime. Legal responsibility is a normative judgment; as a society we decide what conduct when engaged under what circumstances should be prohibited and what minimal capacities an individual must possess at the time he engages in the proscribed conduct such that he can be condemned and punished for his actions.

That does not mean, however, that our advancing neuroscientific knowledge does not have profound implications for the criminal law, both at the definitional stage as well as in the individual courtroom. By shedding light on the neural substrates of those capacities that we define as relevant to assessing an individual's blameworthiness, recent neurological research touches the heart of the criminal law. (10) We must, therefore, clearly identify those capacities that are relevant to criminal responsibility before we can properly evaluate the significance of the neurosciences to our criminal justice system. The relevant capacities are, in turn, informed by the theory of punishment that provides the moral justification for publicly condemning individuals and subjecting them to state imposed sanctions that typically result in a significant loss of individual liberty.

Borrowing from Emile Durkheim, I contend that punishment has an important expressive function. We punish individuals who we perceive as possessing certain minimal capacities, capacities we recognize in ourselves, to conform their conduct in accordance with certain minimal moral and social norms, but who fail to do so. (11) By punishing the offender, the community redefines the scope and depth of its commitment to these norms. Augmenting Durkheim's theory, I further contend that only an individual who possesses those minimal capacities to qualify as a moral agent (however the community defines those capacities) is capable of engaging in conduct that rejects the community's moral norms. Only when its norms have been rejected is a community justified in imposing punishment. (12)

It is in understanding and identifying those capacities that have bearing on an individual's status as a moral agent where I believe the neurosciences can be potentially informative. Admittedly, we are a long way from understanding the cognitive and affective neural processing systems underlying human behavior. (13) Indeed, most of what we now know about the functional brain has been discovered in the last few decades. That said, scientists have made tremendous strides identifying the neural processing systems, along with some of their constituent brain structures, that sustain an individual's capacity to, among other things: empathize, reflect upon the self as a member of a social community with certain duties and responsibilities, identify socially appropriate courses of actions and conform one's conduct accordingly. (14)

In attempting to evaluate the relevance of the neurosciences to the criminal law, this Article follows the structure outlined above. It begins by sketching a theory of punishment and then examines the ability of that theory to withstand potential challenges raised by emerging neuroscientific research. The Article concludes with a brief exploration of the implications of the neurosciences in defining and identifying those individuals who qualify as appropriate addressees of criminal sanctions.

Specifically, this Article is divided into three Parts. Part I sketches a mixed theory of punishment that is informed by the expressive function of punishment in the Durkheimian tradition. Part II examines the challenge to our notions of free will presented by our expanding neuroscientific knowledge, ultimately concluding that while such research may call into question metaphysical free will, we possess sufficient freedom of will to sustain our criminal justice practices assuming they are motivated by an expressive theory of punishment. Part m examines recent neuroscientific developments and their potential implications in understanding those capacities relevant to criminal responsibility under the expressive theory I have outlined. After defining the limited scope within which such evidence may be relevant and recognizing our current technological constraints, Part III explores the importance of emotions to human cognition generally before turning to a discussion of the specific capacities necessary for social cognition. By emphasizing the distributed nature of human cognition, with its complex integration of multiple neural processing systems, this concluding Part hopes to leave the reader with a greater appreciation of the potential relevance of contemporary neuroscientific research to the our criminal justice system and how such findings may be assimilated into an expressive theory of punishment.

  1. TOWARDS AN EXPRESSIVE THEORY OF PUNISHMENT

    In assessing the relevance of the neurosciences to the criminal law we must confront a host of challenging philosophical questions. For example: To what extent does our criminal justice system rest on an assumption that the healthy adult has free will, and do recent advances in the neurosciences undermine our conception of free will in relevant ways? To what extent must we be responsible for shaping our own desires, beliefs and values before we can be held accountable under the law for our actions? If all of our actions and thoughts are caused by antecedent events, which are in turn the product of an infinite causal chain of events, should we be held responsible for them? Are our criminal justice practices sustained merely by illusions of agency that we do not in fact possess? Is punishment, therefore, immoral? Does the criminal law need to abandon the concepts of guilt and punishment? Should those who transgress the minimal moral norms embodied in our...

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