Share Facebook

Twitter

Whatsapp

Mail

Whatsapp Could neurolaw change the way the justice system works?

Could mental impairment compel you to commit a crime? And if it could, would you then be responsible for your actions? 'Neurolaw' raises complex questions about the nature of guilt, free will and culpability. Lynne Malcolm and Olivia Willis report.

On 1 August 1966, 25-year-old engineering student Charles Whitman barricaded himself in the top of the clock tower at the University of Texas and began shooting.

He killed 14 people at random.

Behaviour is doing all the work for law. Neuroscience is nothing more than a handmaiden at present.

Earlier in the day, the former US Marine had shot and killed his wife and his mother.

In the weeks and months leading up to the mass murder, Whitman complained of headaches, 'irrational thoughts' and 'mental turmoil'.

The year before, he had begun a diary detailing his altered mental state: something inside him was changing, and he was subject to an extreme anger he had never felt before.

In Whitman's suicide note he asked that an autopsy be performed on his brain. Forensic pathologists found a brain tumour, which was thought to have affected his ability to regulate emotion.

Whitman's case was an unusual one, but it raised thorny questions about the nature of guilt, free will and criminal responsibility.

Was Whitman to blame for feelings and behaviours he seemingly couldn't control?

Share Facebook

Twitter

Whatsapp

Mail

Whatsapp In 1966, Charles Whitman murdered over a dozen people—but was he responsible?

Half a century later, these same questions are being raised within the emerging field of neurolaw.

An intersection of law and science, neurolaw involves the use of brain imaging and other neuroscientific techniques to determine the biological causes—or 'neural correlates'—of judgement and decision making.

Neurolaw is predominantly used to mitigate criminal sentencing, but has the potential to improve the effectiveness of rehabilitation and incarceration.

In response to the growth of neurolaw in Australian and US courts, Macquarie University's Centre for Agency, Values and Ethics joined forces with the University of Sydney to launch the Australian Neurolaw Database.

'With the increasing number of cases, we thought it would be good to see what's happening in the Australian context, good to have a look at the various kinds of predictions that have been made about the capacity of neuroscience to change the basis of the law,' says Professor Jeanette Kennett from Macquarie University.

The database, a publicly available collection of all Australian cases involving neuroscientific evidence, is being used to examine the extent to which these 'brain-based arguments' are changing the way we think about guilt and retribution.

'Evidence that is looking directly at the person's brain has been thought by some people, some philosophers, to pose a challenge to the very way the law operates, so that it wouldn't just provide evidence of exceptional circumstances, but by looking into the black box of the mind, it would be able to show that all of our actions are caused by brain mechanisms and prior events outside of our control.'

If this were the case, neuroscience 'would undermine the whole notion of responsibility, and undermine the attributive basis of the law', according to Kennett.

Share Facebook

Twitter

Whatsapp

Mail

Whatsapp Jeanette Kennett started Australia's only neurolaw database

While a number of cases in the database demonstrate the ethical and legal significance of brain-based evidence, it appears judges are still taking a reasonably cautious approach—traditional evidence remains the gold standard.

Stephen Morse, a professor of law and psychiatry at the University of Pennsylvania, says neuroscientific evidence is, at present, only really used to 'confirm what we already know behaviourally'.

'The United States Supreme Court from 2005 through 2012 decided three cases having to do with whether or not juveniles should be treated differently from adults for purposes of punishment under the Constitution of the United States.

'The real question in each of these cases was: are juveniles, on average, less criminally responsible than adults? The criteria for responsibility are things having to do with intention or rationality, or the ability to control yourself. Those are all behavioural questions.'

When seeking scientific evidence to substantiate the claim that teenagers are less criminally responsible than adults, Morse says neuroimaging confirmed what commonsense has always suggested: adolescents' brains are less mature than the brains of people in mid-twenties and onwards.

Share Facebook

Twitter

Whatsapp

Mail

Whatsapp Stephen Morse does not believe neurolaw will have a significant effect on the law

'Advocates for juveniles tried to introduce that evidence in the arguments in the Supreme Court. In one of the cases of the three, the Supreme Court didn't cite it. In the other two, they did, in a very general way. But even then the evidence from neuroscience was simply additive and confirmatory of what we already knew behaviourally. '

Morse says questions of neurolaw become increasingly complex when behavioural evidence and neuroscientific evidence are at odds with each other.

'Since the law's criteria are, roughly speaking, behavioural, we always have to believe the behavioural evidence because it's much more directly relevant.'

Morse says neuroscience remains limited in its ability to impact legal proceedings because of the difficulty that arises when attempting to translate a mechanical science into the 'psychology of the law'.

'The whole connectome doesn't have reasons, it doesn't have a sense of past, present, future, it doesn't care about things, it doesn't know that it's going to die. These are all properties of people, acting human beings. Until neuroscience can translate into that kind of psychology, it's going to have limited value for the law.'

In the case of Charles Whitman, Morse says whatever the reason for his mental deterioration, there's one question that remains paramount: Did this person, at the time of the crime, suffer from diminished rationality?

'If the answer is yes, [the person] deserves some kind of mitigation, or perhaps full excuse.'

According to Morse, society has recognised for thousands of years that people with major mental disorders may not be fully responsible for themselves or their actions.

'Previously, when we didn't have the technology, we might never know what the reason was. But we'd still recognise that they suffered from diminished rationality.

'If someone has a broken brain but they behave rationally, for legal purposes they are rational.

'If they have an absolutely normal-looking brain but they clearly are suffering from a rationality problem, no question of malingering, then they are irrational for legal purposes.

'Behaviour is doing all the work for law. Neuroscience is nothing more than a handmaiden at present.'

Read more: Mental illness and the criminal justice system

Morse doubts the ability of neurolaw to fundamentally change the legal system.

'Ultimately I think neuroscience is going to hit a wall, as it were, where there is only so much progress we can make, especially dealing with human behaviour which is so infinitely complex and is dependent on so many variables.'

He does believe that neuroscientific evidence could be a 'less expensive, more efficient proxy' for collecting behavioural evidence, though.

'I think neuroscience might make modest contributions to legal doctrine, practice and policy, but it's not going to revolutionise law.'

Jeanette Kennett is more optimistic, and believes neuroscience could challenge the idea of retribution.

'I think we live in a very retributive society. I think it would be perhaps good if we became a little calmer about criminal offending and really started to think about the causes of criminal offending that are outside the criminal's control.'

Kennett says brain-based evidence could also help law enforcement monitor the effects of a rehabilitation and imprisonment on an individual.

'Think about people who undergo sex offender programs in jail. Maybe you might see a difference, and that might assist them in parole applications. Or, it might assist people if we are thinking, "Do we need to detain them at the end of their sentence, are they still a danger to the community?"

'Perhaps if we became more aware of all of the things that affect criminal offending, then we might start to think that it's just as important to fix the environment as to fix the offender.'

Hear the full story Can problems in your brain make you commit a crime?

Subscribe to All in the Mind on iTunes, ABC Radio or your favourite podcasting app.