July 4, 2022

NEUROSCIENCE COULD TRANSFORM CRIMINAL LAW

 In recent years, the burning issues of bioethical debate have been related to euthanasia and various aspects of procreation, like IVF and embryonic stem cell research. But the impact of medical science and technology upon human life is constantly expanding. One new frontier is neuroscience, which has opened up unprecedented possibilities for manipulating the brain. A gives an idea of its implications for criminal law.

Back in the early 1990s, a 65-year-old Manhattan executive, Herbert Weinstein, strangled his wife and threw her body out of the window of their apartment to make it appear a suicide. Although he apparently knew the difference between right and wrong — the only admissible insanity defence — his lawyer found a way out. A cyst had been discovered in his brain and it was suggested that this predisposed him to violence. He was charged only with manslaughter.

Thereafter, neuroscientific evidence has become very common in US courts. Lawyers routinely order brain scans for clients on death row to find defects which made them act upon an irresistible impulse. Legal theorists recognise that there is a danger of reducing all responsibility to brain activity. "To a neuroscientist, you are your brain; nothing causes your behaviour other than the operations of your brain," says Dr Joshua D. Greene, of Harvard. "If that’s right, it radically changes the way we think about the law." Stephen J. Morse, of the University of Pennsylvania suggests that "Your reasons for your actions [may be] post hoc rationalisations that somehow your brain generates to explain to you what your brain has already done," In other words, if the mind is purely material, there is no free will. If this is true, of course, the consequences for criminal law would be momentous.

There is more to come. "Neurolaw" proponents says that brain scans will be used to detect lies. Judges and juries could be required to have brain scans to detect possible bias. They could also predict future criminal activity, including screening people who might be attracted to terrorism. It might also be possible to cure "defective" brains — whatever they are. One scientist has already applied for a patent for a procedure which supposedly suppresses the area of the brain involved in lying, making it difficult for a person not to tell the truth.