Neuroscience and the Law
What do neuroscience and the law have in common, and why should we consider such a relationship so specific to grant it a whole chapter? The answer is probably to be seen in the fact that their relationship -with its limits and ongoing changes- is perfectly in line with trajectory of this module, with the willing spirit to do more and understand better how technology and ethics could and should interact in the future.
Two major points make the connection between the two fields inescapable. On the one hand, lawyers will always seek to bets represent their clients’ interests. Hence, any technological advancement that could help them support their arguments or provide proof against an accusation against their clients can only be seen positively.
On the other hand, legal systems tend to weigh evidence about why and how person X behaved in a certain given way when attempting to regulate society and apply a coherent code of justice.
Yet, the application of neuroscience to real case scenarios gives, or will give raise to a number of questions that need to be analyzed with attention, as their impact could lead to a drastic reshape of our society and our way of conceptualizing law and punishment. We shall look into some of those instances in what follows.
The concept of free will is fundamental in a retributivist legal system, as the possibility of having the choice to act otherwise is part of the assessment of the gravity of the crime in certain instances, and the evaluation of the punishment is defined to be “backward looking” -meaning to be taking into account the specific variables of that given individual for having broken the law.
Through a number of experiments (most notably Benjamin Libet’s https://www.youtube.com/watch?v=OjCt-L0Ph5o), in recent years, some neuroscientists and philosophers have questioned the legitimacy of this “illusion”, affirming that a “forward looking” punishing system -a purely consequentialist one- would guarantee much better outcomes for society both socially and politically.
Aside from the usual risks associated with some perhaps overoptimistic ways of portraying the results in our hands, one thing appears clear and beyond doubt: should authorities officially accept the absence of free will, we would most probably enter an era of chaos as no one will feel more guilty or culpable for their actions and their unethical behavior as we will all feel justified by the fact that the crime was bound to happen anyway and we could not have acted otherwise. Perhaps then, the only way to avoid such a dystopian future from occurring would be to morally enhance ourselves (not surprisingly, as mentioned in the chapter on enhancement, Posthumanists do share a consequentialist approach to life) prior to the official acceptance of the absence of free will?
Though not strictly concerning criminal law, it is certainly interesting to consider what theological implications would such a revolution have. After all, most religions in the world believe that each us should make an active effort to follow a certain -often challenging- path towards moral nobility. Should we put in a condition where our freedom to act otherwise would disappear, in which way could we prove our commitment to such a mission? And -probably more importantly- how could we continue to make sense of such religions that put us (single, free, autonomous individuals so central the specific ramification of a certain theology) in the hands of already events and choices? How could we be unlawful (morally speaking) sinners, if there would be no real sin to commit?
Reestablishing competence to ensure suffering
In October 2003 the Supreme Court of the United States allowed Arkansas officials to force Charles Laverne Singleton, a schizophrenic prisoner convicted of murder, to take drugs that would render him sane enough to be executed. On January 6 2004 he was killed by lethal injection, raising many ethical questions.
Among others, the most relevant one refers to the fact that he was forced to take some psychotropic drugs that would have “allowed” him to experience the execution with full competence.¹ This might well be an interpretation of the law that is sound (after all he was a fully competent individual at both the time of the crime and the time of the sentence), but this interchange of knowledge and vision between law and neuroscience is certainly controversial.
Why do we need him to suffer competently from his past actions? If that is the argument used to justify the enforced medication, should we expect an increase in case to case sentences based on the neurological map and history of each criminal? Neuroscience has already been used to reduce the sentence in many instances, perhaps in the future it will be used directly to shape the sentence.
Social duties and enhanced responsibilities
With the intention of providing useful groundwork for public policy, it recently been discussed by various scholars the challenge that performance enhancing drugs (PEDs) could pose to our concept of responsibility.
Particular attention has been given to the possible rise of new duties related to the sensitivity of certain professions and the expected socially beneficial impact that some PEDs could have in such contexts. By focusing on certain professions such as surgeons or pilots, some have adopted a “socially responsible innovation” approach that support the idea that, in the future, new duties may be expected for some professionals.
Within a more legally oriented and specific framework, some scholars have speculated over the legal obligations that surgeons might be expected to comply with. Their conclusion is that, at the moment, the use of PEDs cannot be imposed on surgeons because of the uncertain levels of safety related to their use. Should we manage to achieve PEDs with no side effects (as the IDF study tried to do) however, the legal scenario might change.
This approach, cannot push to question what such a change would imply for society at large. Will we eventually expect everyone to “hyper-perform”? To what end?
Thou Shalt Not Lie
Although other methods for extracting information from individuals (for example through the use of polygraphs) have been questioned, this has not stopped the neurobehavioral scientific community from continuing being engaged with this endeavor. Even if fascinating in many respects, the actual effect that such findings could imply for society should not go unquestioned.
One “historic urge” that scientist have had is that of discovering a reliable way to assess whether or not a person is lying. Aside from the fact that -as in other contexts where neuroscience is called into action- the interpretation of scientific data will require training and responsible behavior (the fact that I might be lying might not clearly state on what I am lying about, nor perhaps the intensity of my lie). Should we, as a society, not sufficiently stress this passage in the implementation of new technologies, we risk to create a dysfunctional future as a result of our misrepresentation of data.
In legal terms, the achievement of such technique would have direct consequences on some of our -normally guaranteed- rights. Most notably, how would such a scenario see our right to silence (or Fifth Amendment in the US context)? Will we be forced to undergo an interrogation while scrutinized by machines that will not allow us to remain silent to certain question? Or perhaps even extract information from our silence?
An even more intrusive way of dealing with this passive role of individuals, is represented by memories. MRI scans to extract memories that can help gathering sensitive information about a case have already been implemented in a number of courts across the globe, and this opens the door for many ethical questions concerning the use of this technology. Should we pose limits to its use?
As the accuracy is constantly improving, soon enough we will be able to extract the face of a third person from the memories an accused or prisoner -or even free man. Even against their will. Should we see this favorably as a way of ensuring truth under all circumstances, or should we grant the “right to cognitive liberty” and its deriving siblings to not enter certain spheres of our brain without explicit permission?
¹ Garasic, M. D. 2013. The Singleton case: enforcing medical treatment to put a person to death Medicine, Health Care and Philosophy 16(4), pp. 795-806.
De Caro, M. & A. Lavazza. 2014. Free Will as an Illusion: Ethical and Epistemological Consequences of an Alleged Revolutionary Truth Social Epistemology Review and Reply Collective 3(12), pp. 40-50.
Ienca, M. & R. Andorno. 2017. Towards new human rights in the age of neuroscience and neurotechnology Life Sciences, Society and Policy 13(5)
Langleben, D. D. & J. Campbell Moriarty. 2013. Using Brain Imaging for Lie Detection: Where Science, Law and Research Policy Collide Psychol Public Policy Law 19(2), pp. 222-234.
Santoni de Sio F., Faulmüller, N. & N. A. Vincent. 2014. How cognitive enhancement can change our duties Front. Syst. Neurosci. 8(131)