Criminal Law and Neuroscience: Hope or Hype?
Stephen J. Morse, J.D., Ph.D., is a lawyer and a psychologist. He is Ferdinand Wakeman Hubbell Professor of Law, Professor of Psychology and Law in Psychiatry, and Associate Director of the Center for Neuroscience & Society at the University of Pennsylvania. Professor Morse is also a Diplomate in Forensic Psychology of the American Board of Professional Psychology. He has been working on the relation of neuroscience to law, ethics and social policy for over two decades, has written numerous articles and book chapters on these topics and has edited A Primer on Neuroscience and Criminal Law (Oxford University Press, 2013, with Adina Roskies). He was previously Co-Director of the MacArthur Foundation Law and Neuroscience Project and was a member of the MacArthur Foundation Law and Neuroscience Research Network. Professor Morse is a recipient of the American Academy of Forensic Psychology’s Distinguished Contribution Award, and a recipient of the American Psychiatric Association’s Isaac Ray Award for distinguished contributions to forensic psychiatry and the psychiatric aspects of jurisprudence.
|Despite decades of research, the mind/action connection remains a black box.
Image courtesy of Pixabay.
The law’s culpability and responsibility criteria are all acts and mental states. Law is a thoroughly
folk psychological institution. In contrast, neuroscience, unlike psychology and psychiatry, is a completely mechanistic science. Neurons and even the connectome do not have aspirations, a sense of past, present and future, and intentions. These are mental states of human agents. Bridging the gap between folk psychology and mechanism is exceedingly difficult, especially as a result of some of the scientific and practical problems I will presently address. This problem cannot be avoided by claiming that the mind can be reduced to the brain. In addition to all the conceptual problems with the reductionist project, there has yet to be one successful demonstration of a reduction of mind and action to some allegedly more explanatory level of explanation. Failure to understand the relationship between neuroscience data and legal criteria has produced confused judicial decisions about whether proffered neuroscience evidence in criminal cases is genuinely relevant.
|Image courtesy of Wikimedia Commons.
Another conceptual problem is the mistaken belief that neuroscience proves that determinism is true and the ongoing debate about the relation of determinism to free will and responsibility. No science can prove that determinism is true, however. It is simply a working hypothesis of most scientists and materialists more generally that could only be proven if would could get outside the universe and look in. Even neuroscientists and lawyers can’t do that. Moreover, the dominant view in the philosophy of responsibility is compatibilism, which holds that normal human beings have enough freedom to be held robustly responsible even if determinism is true. Finally, free will is not a criterion of any criminal law doctrine and on a compatibilist reading of the determinism debate, it is not even foundational.
|Image courtesy of Flickr user SalFalko.
In 2013, an eminent neuroscientist, Bill Newsome of Stanford, and I published a review of the potentially legally-relevant neuroscience to all the doctrines of criminal law. We concluded that with the exception of a few well-characterized medically-recognized conditions, such as epilepsy, which are the old neurology, the new neuroscience had virtually nothing to contribute to the adjudication of criminal law or criminal justice policy. Nothing has changed since then.
Neuroscience may in the future help the criminal law become more just and efficient in modest ways. The validity of some doctrines may be confirmed or disconfirmed. For example, whether neuroscience can help understand whether there is an independent basis for the ability to control oneself may be very helpful. Most optimistically, the criminal law’s use of predictions for bail, diversion, probation, and parole may be enhanced by the use of neuro-variables. At present, there are some proof of concept studies that demonstrate that adding a neuro-variable to a prediction may enhance accuracy. They are not ready for prime time, but they are a positive step. Many civil libertarians fear we may become too accurate. I doubt it. But if we have already decided that predictions are normatively acceptable in the criminal justice process, as we have, what is the possible rational argument for predicting less rather than more accurately?
Want to cite this post?
Morse, S. (2017). Criminal Law and Neuroscience: Hope or Hype? The Neuroethics Blog. Retrieved on
, from http://www.theneuroethicsblog.com/2017/07/criminal-law-and-neuroscience-hope-or.html