NEUROLAW: FAD OR FUTURE? Emma Chen

of these programs and to assess the capacity in which they will best fit into the current system across the U.S.. Neither restorative nor retributive justice on their own will adequately provide the structure needed to optimize the U.S. criminal justice system, but a combined symbiosis has the potential to address a greater majority of societal conflict. In order to achieve this, the narrative that these systems must be adversarial has to be eliminated along with the idea that civil punishment is a strong, American trait. Restorative justice has the potential to grow into a functioning relationship with retributive justice, bringing an aboriginal perspective back into the land of its origin.

Neurolaw: Fad or Future?

Emma Chen

Edited by Owen Lucas Agbayani

The intersection of neuroscience and the law – aptly coined “neurolaw” – is a burgeoning field that has generated new avenues of dialogue between legal scholars, philosophers, and scientists. Within this discourse, there are two questions that present themselves time and time again: can neuroscience inform the law, and should neuroscience inform the law? These questions are often invoked with respect to the application of neuroscience in criminal law, given that some opine (and others ardently disagree) that neuroscientific findings may bear on the nature of criminal responsibility. Here, I take and defend a stance of cautious optimism: while neuroscience could potentially shift our normative view on criminal responsibility in certain cases, such a shift should be limited and occur with prudence. Before neuroscience can become a worthwhile informantto criminal law, there is careful educational work that needs to be donetosafeguard against potential misuses of neuroscience.

I. INTRODUCTION

On March 30, 1981, John Hinckley Jr. attempted to assassinate U.S. President Ronald Reagan. Hinckley used a revolver to fire six shots, one of which ricocheted and struck the president, with the bullet stopping less than an inch short of Reagan’s heart.59 While speaking on his motive for his actions, Hinckley confessed that by assassinating the president, he had hoped to win the affections of actress Jodie Foster, whom he had developed a pathological obsession with.60 Along with descriptions of these admissions and the expert testimony of a forensic psychiatrist, Hinckley’s defense team supplied a computed tomography (CT) scan of his brain to support the claim that Hinckley had schizophrenia, a condition, they argued, that severely limited Hinckley’s ability to discern right from wrong.61 United States v. Hinckley (1981)62 marked the first time brain scans were used in a U.S. courtroom to support a psychiatric diagnosis;63 it remains to this day one of the most highly publicized criminal cases to involve some form of neuroscientific evidence. Ultimately, Hinckley was found not guilty due to reason of insanity; this ruling was met with instantaneous backlash.64 Specifically, criticism was directed towards the admission of Hinckley’s CT scan as evidence on the grounds that the image may have misled and biased the jury.65 Public outcry surrounding the verdict was so relentless that many states reacted by tightening the rules which governed their insanity defense.66 Neuroscientific evidence – defined as “expert testimony related to brain structure or function and/or neuroimages presented as evidence”67 – continues to be employed in the courtroom. In fact, as neuroimaging technology becomes increasingly accessible and affordable, there emerges an upward trend in the rate in which neuroscientific evidence is presented in criminal hearings. 68 Thus, the issue of neuroscience and its place in criminal law is certainly here to stay. The use of brain images in the courtroom represents one extension of the field of neurolaw, an interdisciplinary partnership of neuroscience with the law. Neurolaw has garnered an exponential increase in legal, scientific, and public attention within the 21st century.69 Furthermore, while neuroscience has been introduced into many law divisions, it has been under

59 Reagen Assassination Attempt Interview Reports, (2011), https://web.archive.org/web/20110721062148/https://www.secretservice.gov/Reagan%20Assassination%20Attempt %20Interview%20Reports.pdf.

60 LINCOLN CAPLAN, THE INSANITY DEFENSE AND THE TRIAL OF JOHN W. HINCKLEY, JR (1984). 61 Stuart Taylor, CAT scans said to show shrunken Hinckley brain, 2 N. Y. TIMES 1982 (1982). 62 United States v. Hinckley, 525 F. Supp. 1342 (1981).

63 KENT A.KIEHL, THE PSYCHOPATH WHISPERER:THE SCIENCE OF THOSE WITHOUT CONSCIENCE (2015). 64 Constance Holden, Insanity defense reexamined: The AMA board recommends its abolition but lawyers and psychiatrists say that would undermine the moral basis of criminal law, 222 SCIENCE 994–995 (1983). 65 Laura Stephens Khoshbin & Shahram Khoshbin, Imaging the mind, minding the image: An historical introduction to brain imaging and the law, 33 AM.J.LAW MED. 171–192 (2007). 66 Stephen Morse, Before and After Hinckley: Legal Insanity in the United States, UPENN LAW SCH.PUBLIC LAW RES.PAP. (2021). 67 Darby Aono, Gideon Yaffe & Hedy Kober, Neuroscientific evidence in the courtroom: a review, 4 COGN.RES. PRINC.IMPLIC. 1–20 (2019). 68 Nita A. Farahany, Neuroscience and behavioral genetics in US criminal law: an empirical analysis, 2 J.LAW BIOSCI. 485–509 (2016). 69 Francis X. Shen, The law and neuroscience bibliography: Navigating the emerging field of neurolaw, 38 INT.J. LEG.INF. 352–399 (2010).

the brightest spotlight with its entrance into criminal law. Just as in United States v. Hinckley, the context in which neuroscience often interacts with criminal law is often used to demonstrate some brain abnormality that impairs the defendant’s ability to act rationally or voluntarily, thereby limiting just how culpable the defendant may be for the crime in question. Yet there remains fervent debate concerning what exactly neuroscience has to offer the criminal justice system: can it help us achieve greater justice, or are we misconstruing this novel science for more than it is? In this paper, I contend that, while neuroscience can and should inform criminal law,70 one can expect the legal influence of neuroscience to be bound to a limited number of cases. Additionally, to prevent the misuse of neuroscientific evidence in the courtroom, I argue that special attention must be given to the matter of educating legal scholars on how to apply, interpret, and understand neuroscience. Section 1.1 provides a brief overview of how neuroscience has contributed to criminal law thus far. Section 1.2 then considers the types of cases in which neuroscience can offer valuable insight. Section 1.3 reviews some potential criticisms concerning the advent of neurolaw. Finally, Section 1.4 concludes with a cautious outlook on how neuroscience may be of service to criminal law in the near future.

II. THE CURRENT LANDSCAPE

Neurolaw is often characterized as a new and emerging field.71 Over 2,800 judicial opinions issued between 2005 and 2015 discussed the use of neuroscientific evidence by criminal defendants as a part of their defense.72 Research suggests that such evidence is typically employed during the sentencing phase of a criminal case, during which neuroscience is used to support the argument that the defendant should be seen as less culpable for their actions (or, in rare cases, more culpable). 73 In particular, the use of neuroscience in the courtroom appears to be increasingly common in high-stakes cases, i.e., cases involving serious felonies that may be punishable by a life sentence or death. In 2012, neuroscientific evidence was introduced in five percent of all murder trials and 25% of all death penalty trials.74 Parallel to its growing presence in the courtroom, neurolaw has also been the subject of great interest from research institutions keen on accomplishing a more systematic integration of neuroscience and law. In 2007, the MacArthur Foundation dedicated a $10 million grant towards the establishment of an interdisciplinary hub of neuroscientists and legal scholars, a group that would eventually develop into the Research Network on Law and Neuroscience.75 Under this organization, leading experts from both fields work in close collaboration with the shared goal of developing resources that would allow legal scholars to “constructively use findings from

70 Ariane Bigenwald & Valerian Chambon, Criminal responsibility and neuroscience: no revolution yet, 10 FRONT. PSYCHOL. 1406 (2019). 71 Francis X. Shen, The overlooked history of neurolaw, 85 FORDHAM REV 667 (2016). 72 Henry T. Greely & Nita A. Farahany, Neuroscience and the criminal justice system, ANNU.REV.CRIMINOL. (2019). 73 Deborah W. Denno, The myth of the double-edged sword: An empirical study of neuroscience evidence in criminal cases, 56 BCLREV 493 (2015); John B. Meixner, The use of neuroscience evidence in criminal proceedings, J.LAW BIOSCI. 330–335 (2016). 74 Farahany, supra note 10.

75 History: Phase I (2007-2011), MACARTHUR FOUNDATION RESEARCH NETWORK ON LAW AND NEUROSCIENCE, https://www.lawneuro.org/history.php.

cognitive neuroscience to improve the administration of justice. ”76 Since its initial founding, the network has produced over 100 research papers,77 a neurolaw casebook,78 and a comprehensive bibliography which contains nearly all publications relevant to both disciplines ever released. 79 There are many specialized divisions within neurolaw research, with topics often being so narrow and varied that it becomes difficult to slot them into organized categories. From lie detection using functional magnetic resonance imaging (fMRI)80 to the study of cerebral atrophy caused by solitary confinement81 to the development of objective neural markers of pain, 82 the neurolaw landscape canvases all sorts of intriguing issues. Here, it is helpful to use our current legal framework for determining criminal responsibility to guide our analysis of the existing neuroscience literature that specifically concerns criminal law. The legal system considers persons to be criminally responsible for their behavior if they commit: 1) a guilty act, 2) with a guilty mind, and 3) while lacking affirmative defenses that diminish or negate their responsibility (e.g., insanity, self-defense, duress). 83 Thus, neurolaw research on criminal responsibility can largely be construed as falling into at least one of three categories: 1) research which sheds light on actus rea, or the physical act of a crime, 2) research on mens rea, the mental state of the offender at the time of the crime, and 3) research on the nature of affirmative defenses, which, within the context of neuroscience, often focuses on the insanity defense.84 Neuroscience has been able to contribute to our understanding of all three facets of criminal responsibility. With regards to actus rea, neuroscience research has helped us understand and identify atypical cases in which seemingly voluntary actions occurred in the absence of full consciousness. For example, in 2003, a jury convicted Yun Liao of attempted murder after Liao attacked his ex-partner’s son with a hammer, causing the victim to sustain severe but non-fatal injuries.85 Liao’s unsuccessful defense was that he had not been conscious during the attack: the man claimed that he had been sleepwalking and therefore had been neither awake nor aware. A large part of why this defense failed was the fact that Liao had never actually received an official diagnosis of sleepwalking by means of a sleep study. During a sleep study, the electrical activity of a sleeping individual’s brain is recorded using electrodes placed on the scalp; analyzing this activity can reveal whether the person exhibits a sleep-related disorder. Liao’s defense team had been mistakenly told that their request for a court order authorizing a sleep study had been denied. When this error was discovered, Liao filed a writ of habeas corpus, which was successfully granted, and completed a sleep test which confirmed a diagnosis of sleepwalking. An appeals court overturned Liao’s conviction, citing that if the results of Liao’s sleep study had been introduced in the original trial, there was good reason to believe that Liao would have been acquitted. In 2016,

76 Id. 77 Id.

78 OWEN D.JONES,JEFFREY D.SCHALL &FRANCIS X.SHEN, LAW AND NEUROSCIENCE (2015). 79 Shen, supra note 11. 80 Martha J. Farah et al., Functional MRI-based lie detection: scientific and societal challenges, 15 NAT.REV. NEUROSCI. 123–131 (2014). 81 Jules Lobel & Huda Akil, Law & neuroscience: The case of solitary confinement, 147 DAEDALUS 61–75 (2018). 82 Karen D. Davis et al., Brain imaging tests for chronic pain: medical, legal and ethical issues and recommendations, 13 NAT.REV.NEUROL. 624–638 (2017). 83 Uri Maoz & Gideon Yaffe, What does recent neuroscience tell us about criminal responsibility?, 3 J.LAW BIOSCI. 120–139 (2016). 84 Id. 85 Yun Hseng Liao v. Junious, 817 F 3d 678 (2016).

all charges against Liao were dropped.86 While sleep disorders serve as just one example of a type of condition relevant to actus rea, they effectively illustrate the powerful way in which neuroscience can be invoked to influence legal judgements. With regards to affirmative defenses, preliminary research suggests that the increase of neuroscientific evidence has played a part in instigating an overall decrease in the use of the insanity defense.87 Legal scholar Deborah Denno conducted a study analyzing over 800 criminal cases from 1992 to 2012 and found that prior to the early 20th century, if neuroscientific evidence was presented in court, it was typically used to support a “catch-all” insanity defense (as in the case of Hinckley) that covered a broad range of mental disorders. 88 However, beginning in the 1990s, neuroscience was used in the courtroom in a more tailored way; psychiatric expert testimony, brain images supporting mental disorder diagnoses, and background medical reports on the defendant all aimed to identify the exact neurological abnormality of the defendant.89 This mitigating evidence attempts to provide a more specific explanation for a defendant’s behavior in lieu of an overarching insanity defense.

90 Despite these notable contributions, neuroscience has arguably had the most success in impacting criminal law particularly through research that elucidates the factors which may affect mens rea. The impact of neuroscience on our understanding of the mental states which precede and influence criminal acts is explored in the following section.

III. THE CASE FOR NEUROLAW

In their 2016 paper “What does recent neuroscience tell us about criminal responsibility?”, neuroscientist Uri Maoz and philosopher Gideon Yaffe opine, “an area where the law could particularly use assistance from neuroscience concerns the impact of mental disorders on mental states crucial to criminal responsibility.”91 The law already recognizes that mental states can act as mitigating or aggravating factors during sentencing. Being consciously aware of the risks of one’s actions, as an example, separates criminal recklessness from negligence. Neuroscience offers a unique ability to illuminate atypical mental states that may be of important legal consideration. In fact, neuroscience has already begun to demonstrate its value in this regard. Below are three areas in which neuroscience has provided evidence for thinking that underdeveloped or deficient brain faculties reduce responsibility in ways that are relevant to criminal law.

A. Adolescence

In 2012, the U.S. Supreme Court ruled that juveniles could not be given a life sentence without parole, stating that such a punishment would be cruel and unjust.92 This decision fits into

86 Sleepwalking murder conviction overturned over lack of sleep test, LOS ANGELES TIMES (2016), https://www.latimes.com/local/lanow/la-me-ln-sleepwalking-murder-conviction-overturned-over-lack-of-sleep-test20160129-story.html. 87 Denno, supra note 15. 88 WMLAWCOMMUNICATIONS, Imagining the Future of Law & Neuroscience: Panel 2, (2021), https://www.youtube.com/watch?v=Up7flFMAsao. 89 Denno, supra note 15.

90 WMLAWCOMMUNICATIONS, supra note 30. 91 Maoz and Yaffe, supra note 25. 92 Miller v. Alabama, 567 US 460 (2012).

a pattern of other recent Supreme Court rulings in which less severe punishments were deemed appropriate for adolescent offenders.93 In the 2012 case (Roper v. Simmons), the Court was provided with neuroscientific evidence supporting the neurobiological immaturity of adolescents in comparison with adults. The area of the brain responsible for a host of executive functions, the prefrontal cortex, does not reach full development until around 25 years of age.94 This developmental immaturity, supported by a host of neuroimaging studies, causes adolescents to be distinct from adults in three important ways.95 First, relative to adults, juveniles exhibit a diminished capacity to regulate their emotional responses to provoking stimuli; thus, they possess a decreased ability to inhibit impulses. Second, they are more sensitive to social influences, making them more malleable to external factors like peer pressure. Third, they demonstrate stunted risk assessment capacities; consequently, adolescents frequently fail to consider the distal consequences of their actions (as opposed to more proximal outcomes). Furthermore, different brain systems develop at different rates, such that the system thought to be responsible for promoting pleasure-seeking behavior and emotional reactivity matures faster than the system which regulates self-control.96 Taken together, these developmental characteristics have been invoked to support the claim that juvenile offenders are less blameworthy for their actions in comparison to adults. As described by neuroendocrinologist Robert Sapolsky, these abnormalities “produce an individual capable of differentiating right from wrong but who, nonetheless, is organically incapable of appropriately regulating their behavior.”97 In the case of adolescence, neuroscience has contributed to the view that minors cannot be held to the same degree of responsibility as fully matured individuals, a view that appears to be becoming more readily accepted in criminal law.

B. Psychopathy

Psychopathy is a disorder marked by severe emotional and behavioral defects, including callousness, pathological lying, manipulative tendencies, and a lack of guilt and remorse.98 Due to these traits, psychopaths are more likely to commit a criminal offense than non-psychopaths; psychopaths are estimated to constitute around 20% of the total prison population. 99 Recent neuroscience research on psychopathy demonstrates that, on average, psychopaths exhibit reduced gray matter volume in areas of the brain that form the limbic system, the network responsible for emotion regulation. In one seminal fMRI study, adult psychopaths were found to exhibit significantly less activity in the amygdala, hippocampus, and ventral striatum – i.e., limbic system structures – when completing an emotion-based memory task in comparison to nonpsychopaths.

100

93 Roper v. Simmons, 543 US 551 (2005); Graham v. Florida, 560 US 48 (2010). 94 Mariam Arain et al., Maturation of the adolescent brain, 9 NEUROPSYCHIATR.DIS.TREAT. 449 (2013).

95 NATIONAL RESEARCH COUNCIL, REFORMING JUVENILE JUSTICE:A DEVELOPMENTAL APPROACH (2013). 96 Id. 97 Robert M Sapolsky, The frontal cortex and the criminal justice system., 359 PHILOS.TRANS.R.SOC.BBIOL.SCI. 1787–1796 (2004).s 98 Kent A. Kiehl, A cognitive neuroscience perspective on psychopathy: Evidence for paralimbic system dysfunction, 142 PSYCHIATRY RES. 107–128 (2006). 99 Robert D. Hare, Manual for the hare psychopathy checklist, 2nd edn, revised, TOR.MULTI-HEALTH SYST. (2003). 100 Kent A. Kiehl et al., Limbic abnormalities in affective processing by criminal psychopaths as revealed by functional magnetic resonance imaging, 50 BIOL.PSYCHIATRY 677–684 (2001).

Here, it is important to note that these findings do not establish a direction of cause and effect. It is unclear whether these functional deficiencies generate a developmental predisposition to psychopathy or if psychopathic tendencies are what lead to impaired limbic function over time (perhaps from underuse of such limbic regions). However, preliminary research suggests that the limbic defects found in adult psychopaths are also present in incarcerated youth who demonstrate psychopathic tendencies.101 Some have interpreted these findings as evidence against the impairment-from-misuse hypothesis and in favor of one that posits a genetic predisposition to psychopathy.102 While neuroscience research illuminating the cognitive defects of psychopath has not caused psychopathy to be generally accepted as a mitigating factor for culpability (and whether it should be is contentious), such research has had success in informing the development of innovative treatments for the disorder. Psychopathy has long been thought to be a permanent condition resistant to most forms of treatment. 103 However, in 2001, Michael Caldwell and colleagues at the Mendota Juvenile Treatment Center in Madison, Wisconsin made breakthrough strides in psychopathy treatment by developing a new intervention known as decompression therapy.104 Decompression therapy focuses on strengthening the brain circuits that regulates prosocial behavior by rewarding any and all such behaviors demonstrated by a psychopathic individual, thereby positively reinforcing prosocial conduct. In an initial study assessing the intervention’s effect on juvenile psychopaths, 10% of those who received the decompression therapy reoffended within two years following their release. In contrast, 70% of those who had received no treatment reoffended within the same time span. 105 While less effective in swaying views of culpability, neuroscience has contributed to our understanding of psychopathy as a brainbased disorder, thereby ushering in new and effective strategies for the way we deal with psychopathic criminal offenders.

C. Addiction

Addiction is a disorder deeply intertwined with the criminal justice system. Estimates suggest that, in 2006, approximately 85% of all incarcerated individuals in the United States had abused at least one type of substance in their lifetime. 106 Within the 21st century, a subject of debate among both academics and the general public has been how to go about properly characterizing addiction. On one end of the spectrum, some argue that addiction is a disease; on the other end is the argument that addiction is a choice. Separate from these personal convictions, research on the neurobiology of addiction demonstrates that addiction alters a host of different brain regions; these changes affect the way the brain responds to reward, stress, and situations that require executive

101 Brandi C. Fink et al., Assessment of psychopathic traits in an incarcerated adolescent sample: A methodological comparison, 40 J.ABNORM.CHILD PSYCHOL. 971–986 (2012). 102 KIEHL, supra note 5. 103 Kent A. Kiehl & Morris B. Hoffman, The criminal psychopath: History, neuroscience, treatment, and economics, 51 JURIMETRICS 355 (2011). 104 Michael F. Caldwell & Gregory J. Van Rybroek, Efficacy of a decompression treatment model in the clinical management of violent juvenile offenders, 45 INT.J.OFFENDER THER.COMP.CRIMINOL. 469–477 (2001). 105 Id. 106 I. I. Behind Bars, Substance abuse and America’s prison population, N.Y.NYCOLUMBIA UNIV.NATL.CENT.

ADDICT.SUBST.ABUSE (2010).

decision-making.

107 These findings also highlight the fact that the changes induced by addiction tend to be long-lasting, which may explain why relapse is relatively common among long-time drug users, even after years of sobriety.108 Echoing the public discourse on the matter, academic scholars seem to be split on how addiction might mitigate culpability as well as how neuroscience might contribute to this discussion. Molecular neuroscientist Stephen Hyman posits that addiction leads to a situation in which one’s “neural circuits [are] hijacked by drugs” and that “apparently voluntary behaviors” performed by drug addicts “may not be as freely planned and executed as they first appear.”109 In contrast, law and psychology professor Stephen Morse argues that any neural deficits associated with addiction are irrelevant for determining the culpability of the offending addict: “…the question for the law and morals is behavioral, not brain states. People, not brains, are held responsible, are praised and blamed, rewarded and punished.”110 As demonstrated by this conflict, approaching addiction from the perspective of voluntary control is difficult. Thus, some have attempted to approach neuroscientific research on addiction from another route: namely, how addiction may affect our assessment of risk awareness. The law distinguishes between four levels of culpability based on mens rea, some of which are distinctly separated by how aware the offender was of the risk of their crimes.111 Namely, the law classifies that someone has acted recklessly when that person was aware of the riskiness of their act yet chose to act anyway, while the law classifies someone as having acted negligently when that person was unaware of any risk (but should have been). Thus, some have proposed that addiction should be studied from the perspective of how addiction might modulate one’s perception of risk awareness, although research on this topic has yet to be published. 112 In contrast to the neuroscience of adolescence or psychopathy, considerably less consensus has been achieved with the application of addiction research to the law. However, one can reasonably expect progress to be made in this realm within the near future. What is similar about the use of neuroscience in all three examples above? The answer is that neuroscience helps elucidate brain-based factors that may impose upon a person’s freedom to act in accordance with the law, limiting their capacity to be fully responsible agents. Here, the path to discussions on the broader implications of neuroscience on criminal responsibility can be explored. Could it be argued that all criminals are subject to similar limitations, albeit ones that are not so obvious? Indeed, this line of reasoning has already been spelled out and defended by a number of scientific scholars.113 For example, it is well-known that adverse childhood experiences, such as abuse, neglect, and exposure to substance abuse markedly increase one’s odds of criminality.114 If the likelihood of criminal behavior is substantially constrained by factors outside

107 George F. Koob & Nora D. Volkow, Neurobiology of addiction: a neurocircuitry analysis, 3 LANCET PSYCHIATRY 760–773 (2016). 108 Steven E. Hyman, The neurobiology of addiction: implications for voluntary control of behavior, 7 AM.J. BIOETH. 8–11 (2007). 109 Id. 110 Stephen J. Morse, Voluntary control of behavior and responsibility, 7 AM.J.BIOETH. 12–13 (2007). 111 Paul H. Robinson, Mens Rea (2002). 112 Maoz and Yaffe, supra note 25; LAWNEURO.ORG, Gideon Yaffe presents Criminal Responsibility & Neuroscience of Addiction. Stanford, March, 2013, (2014), https://www.youtube.com/watch?v=3Ri1a8mwfH8. 113 Semir Zeki et al., For the law, neuroscience changes nothing and everything, 359 PHILOS.TRANS.R.SOC.LOND. B.BIOL.SCI. 1775–1785 (2004); Robert M. Sapolsky, Neuroscience and the Law, 15 UST THOMAS JLPUB POL 138 (2021).

114 WMLAWCOMMUNICATIONS, supra note 30.

of the individual’s control, some argue that it seems cruel to assume full criminal responsibility to that individual and subsequently the full gauntlet of punishment.115 Taken together, if these arguments are accepted, they may have the potential to slowly shift our moral intuitions about what constitutes justice. Shifts in moral intuitions may subsequently lead to shifts in the way the law assigns criminal responsibility. As stated by Green and Cohen (2004), “the legitimacy of the law itself depends on its adequately reflecting the moral intuitions and commitments of society. If neuroscience can change those intuitions, then neuroscience can change the law.”116 Similarly, Cardoso (2021) states, “If neuroscience is set to change anything in the law and in the legal system itself, it will have to do it by changing people’s underlying beliefs about justice, responsibility, retributivism and so forth.”117 Whether or not these lines of arguments should be accepted is another matter altogether, and a discussion that is beyond the scope of this paper. For now, most remain ambivalent on the justification for any sort of neurolaw “revolution”; as exemplified by a substantial body of papers expressing dissenting opinions on the broader scope of neurolaw, there remains careful work to be done among legal and philosophical scholars with regards to these sorts of progressive interpretations of neuroscientific findings. 118 While these more abstract, overarching debates take place, we can still move forward with neurolaw by embracing neuroscience in legal contexts in its applications that are particularly insightful – namely, its ability to elucidate diagnosable disorders which diminish criminal responsibility and develop treatments to alleviate the symptoms of such disorders.

IV. THE CASE AGAINST NEUROLAW

Despite its potential in certain areas of criminal law, a number of concerns have been raised in regard to the legitimacy of neuroscience’s relevance to criminal justice. Here, I outline two of the more common lines of attack and provide reasons for thinking that these criticisms are largely unsuccessful. In response to the second criticism, which focuses on the pragmatic implications of neurolaw, I emphasize the importance of outreach and education as fundamental to the success of neurolaw, as these measures will prevent against potential abuses of neuroscientific evidence in legal contexts.

A. The criminal law system is immune to the discoveries neuroscience is making

Several scholars from legal backgrounds argue that neuroscience can only make a limited impact, if any impact at all, on the criminal law system. In his 2011 paper titled “Avoiding irrational neurolaw exuberance: a plea for neuromodesty,” Morse posits that neuroscience “does not pose a genuinely radical challenge to the law's concepts of the person and responsibility. "119 Morse’s view is primarily concerned with whether neuroscience can thoroughly revolutionize criminal law, rather than with the more modest contributions outlined in the previous section. He

115 Id. 116 Zeki et al., supra note 55. 117 Renato César Cardoso, Neurolaw and the neuroscience of free will: an overview, SCIO 55–81 (2021). 118 Stephen Morse, Lost in translation?: An essay on law and neuroscience, 13 ESSAY LAW NEUROSCI.AUGUST 3 2011LAWNEUROSCI.CURR.LEG.ISSUES 529 (2011); Adina Roskies, Neuroscientific challenges to free will and responsibility, 10 TRENDS COGN.SCI. 419–423 (2006). 119 Stephen Morse, Avoiding irrational neurolaw exuberance: a plea for neuromodesty, 3 LAW INNOV.TECHNOL. 209–228 (2011).

argues that the criminal law system is set up in a way that makes it fundamentally immune to any grand discoveries that neuroscience might make with regards to abstract concepts like moral responsibility or free will. Even if neuroscience were to discover that humans were somehow without free will, our concept of criminal responsibility would still be conserved. Morse notes that, for an agent to be generally viewed as having legal responsibility, the law simply requires agents to be guided by reasons and that one’s mental states are the cause of one’s behavior. Given that these two conditions would remain true in a world without free will, neuroscience does not threaten our normative approach to criminal responsibility. This argument assumes that these two conditions are immutable. This assumption is questionable given that the law is a dynamic, rather than a static, system, and it can change based on what the folk conceptions of concepts such as freedom and responsibility are. As previously discussed, there have been efforts to push for paradigmatic shifts in the way we conceive of such notions by appealing to neuroscience. Novel frameworks of criminal responsibility, drawing from neurophilosophical research, have been proposed and which suggest a radical transformation in the way we respond to criminal behavior.120 Some of these models posit that all criminal behavior is a result of factors beyond the criminal’s control, and this precludes criminals from ever being truly deserving of blame or punishment. Thus, these models push for preventative and rehabilitative measures in response to criminal behavior as opposed to retribution-based practices. If these transformative efforts are even just partially successful, they can, in fact, undermine the basic understanding that we have of what constitutes freedom and responsibility, consequently shifting our normative approaches for dealing with criminal offenders.

B. The current criminal law system is not ready to accept neuroscience

Rather than take an abstract approach, some skeptics of neurolaw adopt a more pragmatic line of reasoning, arguing that there is a considerable risk of neuroscientific evidence being misused in the courtroom.121 Numerous scholars have voiced concern that neuroscientific evidence may confuse or bias courtroom members; this concern was amplified when a study published in 2008 seemingly confirmed the presence of a biasing effect with the presentation of neuroimages. 122 The colorful brain scans, technical jargon, and expert witness testimony may certainly be compelling to some jury members. However, several more recent studies, including one that sampled over 1,000 subjects, found that there was no evidence to suggest that neuroimages impact jurors’ judgments of culpability any more than simple verbal evidence. 123 Thus, preliminary research on the biasing effects of neuroimages in the courtroom does not draw any clear consensus.

120 Gregg D. Caruso, Free will skepticism and criminal behavior: A public health-quarantine model, 32 SOUTHWEST PHILOS.REV. 25–48 (2016); Derk Pereboom & Gregg Caruso, Hard-incompatibilist existentialism: Neuroscience, punishment, and meaning in life, NEUROEXISTENTIALISM MEAN.MORALS PURP.AGE NEUROSCI.OUPED.GREGG CARUSO OWEN FLANAGAN FORTHCOM. (2002). 121 Professor Warns of Improper Use of Neuroscience in Courtroom, FORDHAM NEWSROOM (2019), https://news.fordham.edu/law/professor-warns-of-improper-use-of-neuroscience-in-courtroom/ (last visited Apr 24, 2022). 122 Jessica R. Gurley & David K. Marcus, The effects of neuroimaging and brain injury on insanity defenses, 26 BEHAV.SCI.LAW 85–97 (2008). 123 Adina L. Roskies, Nicholas J. Schweitzer & Michael J. Saks, Neuroimages in court: less biasing than feared, 17 TRENDS COGN.SCI. 99–101 (2013); Nicholas J. Schweitzer et al., Neuroimages as evidence in a mens rea defense: No impact., 17 PSYCHOL.PUBLIC POLICY LAW 357 (2011).

Despite very little research suggesting this to be the case, it is still entirely possible that neuroscientific evidence can be misinterpreted or distorted in a way that can mislead judges and jurors. In scenarios like these, neuroscience might serve as a detriment to the serving of justice. A sort of “neurolaw exuberance,” as coined by Morse, could inadvertently encourage the misuse of neuroscientific evidence in criminal proceedings. 124 Fortunately, this concern can be dealt with through efforts to educate legal scholars on how to go about navigating neuroscientific evidence. Such efforts, in fact, have already begun to take place. Courses on neurolaw are being developed and taught at a number of prominent law schools, guides for judges have been published concerning how to regulate courtroom presentations of neuroscientific evidence, and conferences in which neuroscientists and legal scholars collaborate and discuss topical issues are being held.125 A number of joint Ph.D./J.D. programs have cropped up at some of the leading law schools across the United States, aiming to produce legal scholars who are proficient at applying scientific findings to the law.126 Such outreach and educational efforts are paramount to ensuring the responsible use of neuroscience in criminal law in a way that neither discounts the value of neuroscientific evidence nor overexaggerates neuroscientific findings. The success of work that aims to integrate neuroscience into criminal law education, as well as regulate the use of neuroscience in the courtroom, is what will ultimately determine the success of neurolaw as a burgeoning field.

V. CONCLUSION

Revisiting the case of John Hinckley, had he been found guilty despite the evidence of his insanity, he would have almost certainly failed to receive adequate mental health treatment for his schizophrenia. His condition would have continued to deteriorate, and he would have likely been the target of prison violence due to the nature of his crime. These factors practically guarantee that Hinckley would have been killed within the first few years of his prison sentence. Instead, as a result of his insanity ruling, he was sent to a psychiatric facility, where he received treatment and rehabilitation and, eventually, largely recovered from his disorder. 127 Despite the positive outcome of Hinckley in the long-term, Hinckley’s case should serve as a cautionary tale against the presentation of neuroscientific evidence in the courtroom without adequate educatory measures. Anger surrounding Hinckley’s verdict set off a chain reaction of restrictive legal change that altogether made it less likely for those with impaired mental capacities to be treated fairly under the law. Perhaps if the neuroscientific evidence used in Hinckley’s trial had been explained more clearly and its limitations been more explicitly addressed, greater understanding concerning the trial’s verdict would have been achieved, preventing the severe reactions to the case. If neuroscientific evidence is misconstrued, overexaggerated, or

124 Morse, supra note 61. 125 MacArthur Foundation Research Network on Law and Neuroscience | Vanderbilt University, https://www.lawneuro.org/ (last visited Apr 24, 2022). 126 Dual Degree Programs | Prospective Students | Law School | Vanderbilt University, https://law.vanderbilt.edu/prospective-students/dual-degree-programs.php; Stanford Law School, Law Neurosciences IDP, School of Medicine, NEURS, STANFORD LAW SCHOOL, https://law.stanford.edu/education/degrees/joint-degrees-within-stanford-university/law-neurosciences-idp-schoolmedicine-neurs/. 127 Carrie Johnson, John Hinckley, Who Shot President Reagan, Wins Unconditional Release, NPR, September 27, 2021, https://www.npr.org/2021/09/27/1040872498/john-hinckley-unconditional-release.