Foreword: the Brain Sciences and Criminal Law Norms - Theodore Y. Blumoff

• Jurisdiction: United States,Federal
• Publication year: 2011
• Citation: Vol. 62 No. 3

Foreword: The Brain Sciences and Criminal Law Norms

by Theodore Y. Blumoff

Few would dispute the proposition that. . . social cognition, emotion, and behavior (\|/) emanate from the brain ("I¹).¹

Introduction

In general, researchers hope to answer the same ontological question: "Who are we?" Practitioners address the question in their own unique ways, employing the rhetoric and idioms, and the agenda and metrics, that express their respective domains. Researchers in the various brain sciences work at the frontier of knowledge about our brains, the final material cause of all of our endeavors. They fully share the commitment to this fundamental question. From the perspective of the brain sciences, the answer to this question-though certainly not now and

* Professor of Law, Mercer University, Walter F. George School of Law. St. Louis University (B.S., 1969; M.A., 1971; Ph.D., 1976); Washington University (J.D., 1982). Many thanks to friends who have helped along the path to this manuscript, including Oliver Goodenough, Owen Jones, Karen Kovach, Harold Lewis, Stephen Morse, and Gary Simson for useful comments and suggestions on earlier parts of this Article. Special thanks to William Ezzell (Mercer University, Walter F. George School of Law, Class of 2011) for superb proof-reading. I have presented portions of this Article at the Annual Scholarship Meeting of the Society for the Evolutionary Analysis of Law (Vanderbilt Univ., Apr. 2009; College of William & Mary, 2010), the Annual Meeting of the Gruter Institute of Law and Behavioral Research (Squaw Valley, California, May 2009), and a Conference on Law and the Brain (Univ. College London, July 2009). I am always grateful for the ongoing financial support of Mercer University, Walter F. George School of Law.

1. John T. Cacioppo et al., Just Because You're Imaging the Brain Doesn't Mean You Can Stop Using Your Head: A Primer and Set of First Principles, 85 J. Personality & Soc. Psychol. 650, 650 (2003) (discussing the basics of imaging and summarizing the work of James, Spencer, and Gordon Allport that shifted the paradigm for thinking about the source of human behavior in many of its most important aspects).

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perhaps never fully elaborated-is nonetheless more widely understood than at any time in human history. We know at least this with certainty: Everything-eierythin,g-we perceive, know, feel, and sense emanates from the brain. Much ofthe new data affirm our sense ofself. But some do not. We should look into those matters and take seriously the observation of Robert Sapolsky, who notes that many of the findings from neuroscience "must challenge our sense of self."²

This Article, which introduces Mercer's 2010 Symposium edition, reports on some of the possibilities-and some of the dreams-from the research that supports the assertion that we should take cognizance of this new knowledge of ourselves. Others will share information about the admissibility ofimaging evidence, about its potential for teasing out invisible biases, about the use of fMRI technology to determine some of the neural correlates of behavior, about the potential of neuroscientific data to unlock some of the hidden bases of our norms, and, finally, about the tricky use of imaging evidence to mitigate punishment in the death penalty context. Other articles will try to bring us up to date on the many advances in the brain sciences and present a somewhat skeptical approach to the law and neuroscience projects.

This report is mostly descriptive, reflecting the basic nature of the brain sciences, but it is not entirely descriptive. The modest normative claim made is that we should review some of the new findings from the brain sciences with a willingness to ask whether they belong in discussions about the sources that inform our normative discussions about criminal law and punishment. This Symposium will bring some of these questions into greater public focus. I am, of course, convinced that findings from the brain sciences do belong in these conversations. Bringing this data into the discussion will require us to take into account more fully than we do now the limitations that many among us are condemned to suffer. This addition to our conversation should conduce to greater compassion in criminal law, which is, and will always be, good for us as a polity.

What neuroscience tells us, in the broadest terms, is that measurements taken by the best available technology on virtually every capacity and condition that our genotype is capable of expressing provide many

2. Robert M. Sapolsky, The Frontal Cortex and the Criminal Justice System, 359 Phil. Transactions Royal Soc'y London B. 1787, 1787 (2004) (emphasis added) (arguing that damage to the prefrontal cortext can produce individuals who know the difference between right and wrong and are, nonetheless, "organically incapable of appropriately regulating their behaviour").

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useful insights into the answer to this basic ontological question.³ From this perspective-generously defined to include neuroscience, neuropsy-chology, behavioral genetics, evolutionary psychology, cognitive psychology, and genetic ecology-many traits are graphically distributed as a bell-shaped curve. The implications of that distribution, from a policy perspective, are not now fully satisfied in our criminal law.⁴

As a metaphor, the standard distribution graph is often associat-ed-and justly-with racial animus, and it is, for this reason, rightly derided. We have tended to politicize the questions we ask of our genotypes. My own view is to urge care in the short term, to be cautiously optimistic in the mid term, and very optimistic in the long run. The last part of our brain to develop-the cerebral cortex-is far more contemplative than the early parts-the mechanisms of our "fight or flight" survival ontogeny. And our commitment to compassion is a lagging development.

Although the phrase "bell-shaped curve" is initially off-putting, its misuse in the past is obviously not predictive. The standard distribution, when applied to the human genome, is shorthand for the dispersal of many varied mechanisms and processes that generate the many midpoints along continua that define our human capacities. It is especially explanatory for angry, heinous crimes. Differences in functions as widely varying as nano-quantities ofneurotransmitters and hormones that flow through our brains and blood streams seem to generate unwelcome conduct as a function of post-birth exposure to exceptionally harsh conditions.⁵ Thus, some among us will necessarily fail to meet our social norms. Vitally, though, we have the power to effect some shifts in the distributive midpoints ofour various capacities toward a more compassionate and progressive direction; this direction could raise the capacities of the least well-off among us, along with everyone else.⁶

3. For a useful discussion of behavioral genetics, one aspect of the brain sciences, see Owen D. Jones, Behavioral Genetics and Crime, in Context, 68 Law & Contemp. Probs. 81 (2006).

4. See generally Owen D. Jones & Timothy H. Goldsmith, Law and Behavioral Biology, 105 Colum. L. Rev. 405, 408 (2005) (suggesting the law's standard account of human behavior "overlooks essential components of causation that underlie [human] behaviors").

5. I have addressed this problem in How (Some) Criminals Are Made, in 13 Law and Neuroscience: Current Legal Issues 2010 171 (Michael Freeman ed., 2011). An earlier version of the article is available at http://ssrn.com/abstract=1421868 (posted June 18, 2009).

6. If this sounds like an effort to combine Rawlsian thinking with contemporary neuroscience, it does so because it is such an effort. See, e.g., Theodore Y. Blumoff, An Essay on Liberalism and Public Theology, 14 J.L. & Religion 229 (1999-2000).

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If this assessment is even approximately accurate, then we should think seriously about Sapolsky's observation and, when appropriate, propose challenging new ideas in response to it. Individuals who support the findings from the various disciplines that constitute the brain sciences seem to bear a burden of expression, one committed to refocusing public discourse. To that end, at least four basic questions merit our consideration. First-the principal subject of this Article-what do we know about the relationship between intentional harmful actions and genetic/neurobiological deficiencies? Second, if some among us are condemned to suffer neurobiological and behavioral deficits, are they also susceptible to socially desirable rehabilitative interventions? If so, what are those interventions, and what must we do to adopt them? And if not, then what? Third, what are the sources of our sometimes conflicting evolutionary urges? On the one hand, we know that some people who suffer neurobiological deficits that conduce to crime do commit crimes, and sometimes they are heinous. For those crimes, however, at least some actors may not bear responsibility. On the other hand-and equally urgent-we have a necessary adaptive need to constrain them and sometimes to forgive them (although the latter is another lagging indicator). Last, what adjustments can we make to change the norms we use in our criminal law to reflect the new knowledge gained in the brain sciences and to effect positive changes in human behavior? Some of these questions are addressed here.

This Article intends to develop a theme of compassionate progressiv-ism in the context of neuroscience and criminal law.⁷ This Article maintains that the brain sciences have added, and will continue to add, new and potentially useful sources of explanation for human behavior. Thus, the Article discusses the model of human behavior that our law now embraces, according to which virtually everyone possesses the capacity (gross and verifiable psychopathology excepted)⁸ to make

7. See generally Joshua Greene & Jonathan...