AuthorWaller, Bruce
PositionImagining the Future of Law and Neuroscience


Introduction. 1447 I. Existing Barriers to Neuroscientific Advancement 1450 A. Preventive Incarceration. 1450 B. Faulty Investigative Practices. 1453 C. Jailhouse Informants. 1455 D. Retributivism 1458 E. The Penal System. 1461 II. Opportunities for Reform 1465 A. Cultural Complacency. 1465 B. Individualism & Moral Responsibility 1467 C. The American Frontier 1473 D. The Neoliberal Obstacle. 1476 Conclusion. 1480 INTRODUCTION

Neuroscience research is fascinating, promising, and often enlightening. We are privileged to observe the research in its precocious infancy, look forward to its adolescent achievements, and dream of its amazing maturity. We are only beginning to consider how neuroscientific research might change our world. Descartes made the mind a radically different substance from the material body to protect our godlike minds from becoming objects of scientific determinism. (1) Not many years ago, the Nobel laureate of neuroscientific research, John Eccles, insisted on preserving the radical dualistic distinction between brain and mind in order to keep our cognitive processes free of physical forces. (2) Powerful vestiges of mind/body dualism flourish in popular belief (3) and subtly influence scientists, (4) philosophers, (5) and legal thought (6) (including intellectual property, (7) tort, (8) property, (9) and criminal (10) law). Neuroscientific research seems poised to demolish the last barrier between mind and brain, (11) and it is hardly surprising that this research holds amazing promise for some while terrifying others.

Neuroscientists have made remarkable discoveries about the operations of our brains, but there is still very limited understanding of how the brain interacts with the larger nervous system, how various activities of the brain work together, why the general results have noteworthy individual exceptions, and how the nervous system operates in various environments and under differing stimuli. (12) Still, with such an exciting area of research--a research program that even in its infancy has challenged many of our basic ideas and beliefs--it is worthwhile to explore the potential impact of neuroscience research on our lives and our institutions. Of those institutions, none are more important than our legal and criminal justice systems.

There are two distinctly different approaches to considering the influence of neuroscience on our justice system. One approach locks the basic assumptions and principles of our legal system in place and explores ways that neuroscience might influence and improve the operations of that given system. (13) The other approach examines the possibility of neuroscientific research replacing our current criminal justice system with something radically different. (14)

When examining the implications of neuroscience for change within a system, it is essential to specify the nature of the given cultural system. Some may claim that scientists should focus on the advancement of science, not on how its innovations will be used. But that is disingenuous: we know that when North Korea obtains facial recognition software, it will not be used to make iPhones more convenient. In like manner, neuroscience advances and neurointervention are not good or bad absolutely, but relative to the culture. Such advances might be quite beneficial in Norway but profoundly harmful in the United States and the United Kingdom. The focus here will be on U.S. culture and the benefits or detriments of neuroscience in that culture. U.S. culture is profoundly influential, and among Western cultures the United States marks one extreme. (15) The U.S. implications for neuroscience are very different from the cultural implications in places like Sweden, Norway, or Belgium. (16) What are the implications of applying neuroscientific advances within the existing U.S. judicial system? One of the most debated questions concerns using neuroscientific brain analyses to predict violent antisocial behavior. (17) There may be advantages to the use of such processes: if we could predict at a relatively early age who is likely to become a violent criminal, then we could kindly intervene in such a way as to prevent criminal violence. (18) That would not only reduce criminal violence against innocent victims, but also would rescue potential criminals from lives of violent crime, imprisonment, and misery. (19) Those are worthwhile aspirations, and most who champion such aspirations are sincerely devoted to reducing violence and improving lives. In some cultures, such programs might be genuinely beneficial--not in the United States.


    1. Preventive Incarceration

      Suppose that neuroscientists could predict, with impressive accuracy, who is likely to commit violent criminal acts. Neuroscientists cannot currently make such predictions, and such predictive success is unlikely in the near future. (2) " But neuroscience is advancing rapidly, and it is a prospect that some have embraced. We might discover problems early, find ways of correcting or ameliorating them, improve the lives of potential violent criminals, and avoid the suffering of their victims. And we would carefully regulate such testing and intervention to prevent abuse. However, in the United States, we would never allow imprisoning people based on a prediction of wrongful behavior; such measures can only be taken in response to proven criminal acts, any punitive measures must be proportionate to the wrong that has actually been committed, and any preventive interventions require the free and informed consent of the subject.

      That is a charming American myth, but equal in plausibility to the claim that the United States is a land of "liberty and justice for all." The sad, but obvious fact is that the United States already practices mass imprisonment based on the possibility of future criminal behavior. For instance, the draconian laws against sex offenders explicitly provide for continuing punitive "preventive" imprisonment after completion of the criminal sentence. (21) This continued "preventive" imprisonment may be called "regulatory" rather than punitive, but the prisoner often remains in the same prison cell under the same conditions. (22) There are currentl thousands of people who have been charged but not convicted of any crime who are incarcerated because they lack the funds to post a cash bail; or they are held without bail--out of fear that they might commit a future antisocial act, such as failing to appear for a scheduled court date. (23) The poor are held in jail, while the affluent post bail and proceed with their comfortable lives. (24) On a typical day in 2014, there were more than ten thousand people in New Jersey jails who had not been found guilty of anything. (25) They were awaiting trial, and their average wait was ten months. (26) Forty percent had the option of posting bail but lacked the funds. (27)

      As egregious as this practice is, it is not the largest or most obvious form of "preventive imprisonment." A few years ago--in a law and order frenzy--the United States adopted a policy that continues to this day: mass "incapacitation" (28) of those deemed likely to commit future crimes. (29) A young person shoplifts some expensive sunglasses (first offense), resists arrest (second offense), and when searched is found to possess a small amount of cocaine (third offense)--three strikes, and life imprisonment looms. (30) No one pretends that life imprisonment is a "proportionate" or "just" sentence for three minor felonies, but the goal of the program was not--and is not--justice for past offenses; rather, it is an excuse to "incapacitate repeat offenders" with long prison sentences on the assumption that repeat offenders are likely to commit future offenses. (31) The incapacitation policy has imprisoned tens of thousands on the basis of a crude prediction of future offenses; this is a policy that imprisons many people who would have never committed a future criminal act but instead would have matured, lived a crime-free life, and settled into a job, as well as relationship and family obligations.' (2) But neither the accuracy of the predictions nor the justice of the process was at issue. "Selective incapacitation" is half right: it certainly incapacitated many people, families, and communities, but it was far from selective. (33) A culture that embraces "preventive incarceration" on flimsy predictive grounds would be unlikely to resist the siren song of "preventive detention" based on impressive neuroscientific screening techniques.

      Currently employed methods of "selective incapacitation" are not very careful in their selection processes, especially when those selected are economically deprived persons of color. (34) Still, such "selective incapacitation" measures do require an initial felony conviction. (35) Neuroscience-based "preventive" measures would not meet that standard. It might be supposed that requiring a felony conviction would provide a safeguard against such measures--a vain hope. Requiring a felony conviction provides little protection because protection against unjust felony convictions is anemic at best; not only are the innocent routinely convicted of crimes they did not commit, (36) but that fact is well-known in the American culture and seemingly causes little concern. (37) To the contrary, measures that might reduce the number of false convictions are actively opposed as being "soft on crime." (38) And the enormous profits made by those supplying the massive prison system--and especially by the notorious "private prison" industry--provide a powerful incentive to pack the prisons, whether the "clients" are guilty or innocent.' (39)

    2. Faulty Investigative Practices

      Further, forensic science in the United States is deeply flawed. False forensic evidence has been found in city crime labs in Chicago, Cleveland, Detroit, Houston, Oklahoma...

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