Tuesday, November 12, 2013

The Future of Law and Neuroscience: An Interview with Owen Jones, The Director of the MacArthur Research Network on Law and Neuroscience

After watching the PBS “Brains on Trial” special that featured innovative brain imaging technologies and examined the subsequent implications for the legal field, I decided to take a deeper look at the status of current neuroscience research and the future ramifications for the emerging field of neurolaw. To that end, I interviewed Professor Owen Jones. Owen Jones currently directs the MacArthur Foundation Research Network on Law and Neuroscience taking the lead in crafting a conceptual framework, which seeks to define and outline many of the legal issues surrounding recent neuroscientific findings. Jones also designed, created, and now directs the Law and Neuroscience Research Network, an unprecedented interdisciplinary effort that has called upon scholars from a myriad of areas for the purpose of examining how neuroscience can inform legal decisions in criminal contexts.

The MacArthur Foundation has made great strides in helping to organize numerous neurolaw conferences as well as establishing a critical framework for evaluating neuroscientific evidence in the courtroom. What do you foresee as the biggest limitations as the research group moves forward into the second phase of research of the Law and Neuroscience program? 

The MacArthur Foundation has provided much-needed funding support to help the criminal justice system engage with rapid advances in the neuroscience of law-relevant decision-making.  The Law and Neuroscience Project (2007-2011), directed by neuroscientist Michael Gazzaniga, represented a very significant and large-scale effort to explore this interdisciplinary frontier, and to begin the important processes of separating wheat from chaff, navigating between the promise and the perils, and conducting cutting-edge research to define the boundaries of usefulness.  The  Research Network on Law and Neuroscience (2011- 2014), which I have the honor to direct, represents a related but distinct next step: to explore a narrower subset of issues in greater depth.  In both cases, Dr. Gazzaniga and I have had the good fortune to have terrifically smart and skilled colleagues – in both law and in neuroscience – working together to fulfill a common mission. Significant limitations include: the cultural differences between the two fields; the different knowledge bases, assumptions, and methods; and the challenges of navigating the fine line between undue hope and undue skepticism.  The apparent enthusiasm – of both lawyers and the general public – for using neuroscience in law provides its own challenges, as that enthusiasm is sometimes premature or misplaced.  Having said that, some at the opposite end of the spectrum are perhaps too pessimistic, either about what the technology can reveal or about society’s ability to draw legitimate and balanced conclusions.  Perhaps the biggest challenge, however, is endemic to all scientific work that has potentially important social implications: how do you do meticulously careful and scientifically valid work that will be properly interpreted and legitimately used?  In the Research Network, we ask ourselves this constantly.  And it informs our entire process – from identifying researchable questions to designing experiments with the best chances of providing useful information.

Some individuals question whether neuroscientific evidence will alter the way in which legal decisions are made. To help others understand how the emerging field of neurolaw may change legal practices, could you give a situation in which neuroscientific evidence may be critical to determining culpability or punishment?

That’s a good question.  I think the answer must be: there is no such thing as science that is critically important to any legal issue, all by itself.  Whether or not something can be and should be deemed critically important, in the context of criminal culpability and punishment, necessarily depends on social and legal values, not just on scientific facts.  Some see this initially as counter-intuitive.  But it’s a consequence of the fact that society assigns science and law very different roles to play.  Neuroscience – like any science – can often offer facts that the legal system may choose to consider relevant and important or not, depending on the net of the costs and benefits of using that information.  For example, science can sometimes help us understand whether a person who committed a violent crime was more likely to be violent than the average member of the population.  And that can be useful to know, when thinking about the probability of recidivism, for example.  But science cannot tell us whether or not the criminal justice system should punish a violence-prone person less (because he faces more trouble with self-control than others do, and therefore seems morally less culpable) or should instead punish such a person more (because he is more likely to be dangerous again in the future, putting the population at greater risk).  The key point is that new forms of knowledge – such as non-invasive, high-resolution brain images – do not and cannot come neatly packaged with instructions on what their legal significance is.  The significance of neuroscience to criminal justice depends not only on the specific context (liability versus sentencing phases, for example), but also on the nature of the inferences jurors and judges are asked to draw, on the nature of other available evidence, and the like.

Phase 1 did not attempt to provide prescriptive solutions to some pressing ethical questions regarding neurotechnologies. Do you foresee the MacArthur Project evolving its focus from discussing descriptive problems with neurotechnologies to researching ways in which lie detection could be admissible in a courtroom setting?

We are a diverse team of researchers, committed to remaining agenda-free.  We are not on a mission to increase or to decrease the use of neuroscience in any particular domain.  We are instead trying, among other things, to help the legal system decide how to weigh different forms of neuroscientific evidence, which can lead to a variety of possible conclusions, some more scientifically or legally sound than others.   
As a future law student interested in neuroscience, I was quite intrigued by Vanderbilt Law School’s classes focused on juvenile justice, neuroscience and law, and neuroimaging. Do you think that other law schools will begin to adapt similar curriculums?

I certainly hope so!  After co-teaching with neuroscientist Jeffrey Schall the interdepartmental course “Law and Neuroscience” several times, we, along with Francis Shen, have a forthcoming coursebook that we hope will inspire law colleagues and law students, as well as faculty and students in other graduate and undergraduate fields – such as neuroscience, philosophy, biology & society, and the like – to recognize key neurolaw issues and grapple with how best to understand and resolve them.  Although people tend to think first about the implications of neuroscience for culpability in the criminal context, there are in fact a wide variety of ways in which – for better or for worse – neuroscience and law currently intersect.  These include such things as: the use of neuroimaging in support of claims for disability benefits; invocations of neuroscience in policy debates over brain death or abortions; concerns over cognitive enhancement technologies (whether through drugs or brain-machine interfaces); debates over the potential for brain imaging techniques to identify lies; the use of drugs to dampen traumatic memories; understanding the behavioral effects of non-concussive head traumas; using neuroscientific techniques to understand how punishment decisions are made; using neuroscience to better understand and evaluate law-relevant memories and testimony; and the like. 

How can future law students immerse themselves in this material to prepare themselves for future infusion of neuroscience into the courtroom?

As you might expect, our first advice is: buy (or borrow) the book when it is published in early 2014.  (Interested students can learn more about the book online at http://www.vanderbilt.edu/lawbrain.)  Our hope is that the book not only informs, but also provokes serious reflection and critical thinking on what the limits of usefulness are, where the best opportunities lie, and how to know the difference.  We are altogether uncertain what the optimal amount of neuroscience in the courtroom is.  But we are certain that lawyers are increasingly offering neuroscientific evidence, for better or worse.  And therefore judges, lawyers, and policy-makers need to know enough about what neuroscience does and does not (and can and cannot) say to responsibly engage with the evidence – either by explaining why it may be useful, or by revealing where, and why, it isn’t.  We also encourage both students and anyone interested in these topics to join the Research Network’s “Neurolaw News” email listserv, through which we regularly announce new publications, job postings, conference listings, and the like. You can subscribe online through our Network website at: http://www.lawneuro.org/.

Want to cite this post?

Marshall, J. (2013). The Future of Law and Neuroscience: An Interview with Owen Jones, The Director of the MacArthur Research Network on Law and Neuroscience. The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2013/11/the-future-of-law-and-neuroscience.html

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