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Courting the Mind

January 17, 2005 | A version of this story appeared in Volume 83, Issue 3

Be sure to have a warm sweater handy when you pick up "Neuroscience and the Law: Brain, Mind, and the Scales of Justice," for it's a chilling read about how future developments in neuroscience could do more harm than good. You may also want to wait until you're by yourself before you delve into this collection of essays to avoid startling your companions with involuntary exclamations: "Oh my God!" or "I totally disagree!" or "They're right--that's probably going to happen."

NEUROSCIENCE AND THE LAW: Brain, Mind, and the Scales of Justice, edited by Brent Garland, Dana Press, 2004, 229 pages, $8.95 (ISBN 1-932594-04-3)

Take this passage concerning the potential threat of neuroscientific investigative techniques to civil liberties: "The use of techniques that permit genuinely accurate lie detection and other valuable ends may be so alluring that the temptation to use them will be great. One need only think about our nation's legal response to the war on terror to recognize that justifying the use of privacy-invasive techniques may not be so difficult after all. ...

"Neuroscientific techniques might also increase the ability to make accurate predictions about various forms of future behavior. ... There will be a temptation to use such techniques for screening and intervention, which would also pose a civil liberties threat."

These quotes are drawn from a chapter written by Stephen J. Morse, a professor of law and professor of psychology and law in psychiatry at the University of Pennsylvania.

Laurence R. Tancredi, a clinical professor of psychiatry at New York University School of Medicine and an attorney, contributed an equally provocative chapter that, among many other topics, discusses the potential of improving neurological fitness. In some distant age, this worthy goal could potentially be accomplished by downloading the content of a person's brain into a computer, editing that content, and uploading the revised material back into the person's brain.

If this seemingly unlikely procedure ever becomes possible, it too could be abused. Tancredi warns: "Where improvement to the norm ... is possible through computer programs, the downloading may empower social institutions to insist that the individual accept corrections and additions to his intelligence and personality, which can be achieved through uploading of altered material. This would be tampering with the individual's very identity."

The Tancredi and Morse chapters, along with two other chapters in the book, are based on commissioned papers that the authors prepared for an invited workshop convened by the American Association for the Advancement of Science (AAAS) and the Dana Foundation, which supports neuroscience research. The September 2003 meeting drew together representatives from the legal and neuroscience communities to examine how developments in neuroscience might interact with the law. The four papers are preceded by introductory chapters that summarize the main ideas and concerns that came up in discussion among the meeting's participants.

The book delves unblinkingly into such fraught subjects as free will; the effect of income on access to treatment; involuntary subjection to neurological techniques; medications to enhance cognition or personality; discrimination and privacy issues, arenas in which parallels can be drawn with developments in the field of genetics; legal competency; and brain death.

In terms of neurological techniques, the book covers both monitoring and imaging technology as well as treatment and enhancement procedures, including such methods as positron emission tomography, functional magnetic resonance imaging, and transcranial magnetic stimulation. As indicated by the brain-downloading example, the book gives serious consideration to concepts long familiar to science fiction fans. Although the technology described in several of the resulting scenarios may seem laughably far-fetched in 2005, some of the developments may ultimately be realized. The authors believe it's better to tackle the sociological implications in advance rather than face them unprepared.

The book presents many of these implications as negative. Indeed, Henry T. Greely, a law professor at Stanford University, acknowledges that his chapter "may appear to paint a gloomy picture of future threats and abuses." But the truth is that the technologies discussed will likely have benefits far outweighing their harm, he adds.

In the book's foreword, Mark S. Frankel, director of AAAS's Program on Scientific Freedom, Responsibility & Law, writes that neuroscience developments "hold great promise for improving our understanding of disease and behavior and eventually reducing human suffering. But they also carry the danger that they will be misused in ways that may thwart human potential, unfairly deny benefits to those in need, or threaten long-standing legal rights."

For instance, neuroscience may be able to uncover an individual's predisposition to violence. Brent Garland, the book's editor and an attorney and senior program associate with Frankel's program, writes in the introductory section that such a revelation "would pose a host of controversial questions." These include whether preemptive treatment is desirable, whether a person might be "marked" for increased surveillance by authorities and whether there would be an increased risk for discrimination against such a person, and whether substantial changes might occur in how society approaches the punishment and rehabilitation of criminals.

Garland adds that "generally, in the legal system, we punish people based on behavior, not on thoughts or 'tendencies.' The idea of imposing treatment, or even making decisions regarding employment, based on some test results, and in the absence of prior violent behavior, is deeply disconcerting."

Of course, the U.S. legal system provides safeguards that might protect citizens from the downside of invasive neurological procedures. For example, the Fourth Amendment of the Constitution forbids unwarranted searches and seizures. The Fifth Amendment protects defendants and witnesses against self-incrimination. Conceivably, the scope of both of these protections could be stretched to include a person's mind.

The relation between neuroscience and the law is a subject of widespread interest. A particularly hot topic deals with the legal implications of insights provided by neuroscience into the bases for violent behavior. President George W. Bush's Council on Bioethics took up this issue at a meeting in September during which Morse made a presentation.

The subject is of immediate importance because neuroimaging data are already finding their way into criminal trials, notes the council's chairman, Leon R. Kass, a biochemist turned sociologist. One example includes brain scans that show how a neurological condition might affect behavior. Given the current state of the science, such data are still open to interpretation, much like the traditional evaluations of defendants that are provided by mental health professionals. Yet the more scientific trappings of neurological scans may prove more persuasive to a jury--even though the jurors' faith may be unwarranted--and hence the potential impact of these scans on a jury may affect prosecutors' tactics.

Morse describes a case in which a defendant claimed that he had killed his wife because of a cyst in his brain. According to the defense, the cyst pressed on the defendant's brain and impaired his ability to differentiate right from wrong. The defendant had been charged with second-degree (intentional but unplanned) murder. But after the judge ruled that PET images of the defendant's brain were admissible evidence, the prosecution settled for a plea agreement to involuntary manslaughter on the eve of the trial.

As neuroscience develops, it's likely that the interpretation of such neurological data in terms of their relationship to a person's mental capacities will become more accurate. Nevertheless, Morse emphasizes that questions such as how rational a defendant must be in order to be held legally responsible for his actions will continue to be answered on moral rather than scientific grounds.

Society's stance on the source of behavior will affect such decisions. At one extreme, it can be argued that an individual's actions are controlled by free will. At the other extreme, it can be postulated that a person's neurochemistry fully determines behavior, that a person is at the mercy of his or her biochemistry. One scientist quoted in the AAAS book carries that thought to its logical conclusion: "Is the free will we seem to experience just an illusion, and if the free will is an illusion, must we revise our concept of what it means to be personally responsible for our actions?"

In other words, Morse asks, "Is it possible we're all just automatons?" He doesn't believe that's likely. Nor does he believe that neuroscience will let the average person off the hook of responsibility. But he does believe that advances in science will reveal the ways in which different brain states and disorders curtail an individual's capacity for rationality and, by extension, legal responsibility for his actions.

With its combination of science, the law, and philosophy, the book is, on occasion, heavy going. You may find yourself skipping the details in some sections to get to the meat. But in total, "Neuroscience and the Law" provides a fascinating and frightening glimpse at our possible future and a guide to the issues we should consider as that future grows closer.

As Tancredi puts it: "Neuroscience advances have far outstripped the ability of social institutions, especially the law, to accommodate their principles. ... It may not be long before technologies will provide a window not only into the process but the very content of the functioning brain."

Sophie L. Rovner is a Washington, D.C.-based senior editor for C&EN who writes about developments in neurochemistry and human health, among other topics.


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