Around the middle of the twentieth century, B.F. Skinner defined the human "self" as an organized system of behavior and defined "behavior" as everything that an organism does including thinking, feeling, and acting. Law, as a human institution, is a system for governing human behavior-we must do or refrain from doing certain things or suffer socially-ordained and governmentally-administered consequences. The brain is the organ that governs individual behavior-all thinking, feeling and acting is derived from activity in the brain and nervous system. Thus, at their very core, law and neuroscience are intimately interwoven because they are concerned with human behavior.
Culpability
Of all the intersections between neuroscience and law, the issue of culpability, or the level of "intentionality" in criminal law (known as "mens rea") or in civil law (often called "scienter," especially in securities law) is one of the more difficult areas and relates to deep and fundamental questions of human behavior. In essence, the debate extends to the very beginning of human thought: Do we have free will (and, if so, to what extent?) or is our volition and intentionality an illusion (or, perhaps, is there some other alternative that we have not fully thought through yet)?
What do we know? A minor alteration in a chemical in the brain can drastically alter personality, behavior and subjective experience. A small tumor or minor damage to a brain area can have the same effect. This means that when the brain is physically altered, the person is mentally altered. Thus, the physical and the mental appear to be the same. Further, the brain is incredibly complex-it contains billions of neurons and trillions of interconnections between them and most of the brain's activity occurs below the level of conscious awareness. In other words, you are not aware of most of what is going on in your own head. Thus, your mind and your brain are the same thing, and you do not entirely consciously control or consciously know what you are doing or why.
If this is true, then to what extent is someone who "chooses" to commit a crime or "chooses" to enter into a fraudulent transaction culpable? The law assumes that people are conscious, intentional and rational actors and are practical reasoners-we can choose how we act. Yet, neuroscience can definitively show how pathologies-especially damage or underdevelopment-can drastically reduce the ability of a person to make decisions and control their impulses. What does this mean for our notions of culpability? We already adjust our assumptions about culpability dependent on mental and physical illness, age, or intoxication. In what ways does the neuroscience evidence indicate that we need to make further adjustments to our notions and assumptions about culpability? This is the first major area in which neuroscience and law intersect.
Competence
A very important concept in law, especially in civil law such as torts and contracts, is the notion of competence. Individuals must be competent to enter into agreements-they have the mental capacity to understand what they are doing. Just as with culpability, the law already recognizes that not everyone is competent. For example, minors, the mentally-handicapped, and people who are intoxicated, are recognized as lacking the competence to enter into many types of agreements; however, in many cases, competency is a core issue such as when an elderly person is duped into a secondary mortgage. Can neuroscience help make these competency evaluations? Further, can neuroscience evidence help inform the legal policies regarding competency in a more general way?
Prediction of Criminal Behavior
Currently, we use various methods for determining whether a criminal is likely to recidivate when they are being initially sentenced or being considered for parole. These methods range from advanced actuarial tests based upon psychological and behavioral assessments to the "gut feelings" of the men and women who make these decisions. The problem is that neither one seems to work very well. Thus, we are currently trying to predict criminal behavior with crude, ineffective tools. If we are going to try to predict criminal behavior, shouldn't we try to use the most advanced and accurate tools we have at our disposal in the interests of justice and fairness? Neuroscience may be able to serve as an addition to the tools we already use to help us refine our assessments of the probability of criminal recidivism.
Rehabilitation of Criminals
Many normal people experience impulses and urges: to binge drink and drive, to commit a violent act, to act out sexually in inappropriate ways, etc. Yet, most people who get these impulses do not act upon them. Criminals do. Why? Neuroscience evidence tends to indicate that some brains may be better than other brains at controlling impulses from the more emotional and reactive parts of the brain. Could neuroscience possibly develop techniques and tools that could actually assist people develop these neurological mechanisms for impulse control? If so, could these techniques and tools then be used to help criminals with such issues-for example, violent sex offenders-learn to control their impulses as normal people do?
Juror's Brains and Decision-Making
The American jury system is an established and venerable institution; however, it is also a highly structured group decision-making task involving individuals who, according to psychologists, may be hard-wired for retributivist tendencies, subject to conformity pressures, and may be making very grave and important decisions based upon emotion, bias, or outright prejudice. Can a scientific understanding of the juror decision-making process inform policy and help us understand this powerful legal institution?
Other areas
In the past, neuroscience and law intersected and dealt with many problematic issues including, among others, the definition of brain death and the admissibility of fMRI images in criminal trials. The fields continue to intersect in a variety of other developing areas as well--from the application of neuroscience technology to the problem of lie detection to the new "brain-enhancing" or "smart drugs" that will increasingly become misused and possibly illegally marketed.
Come back again because these are some of the fascinating areas that we will be exploring in future posts.
