The Brain on Trial

This reflective paper examines several of the legal consequences and social implications of revealing brain functions through magnetic resonance imaging (MRI), positron emission tomography (PET) and other technologies. The primary source for this paper is a New York Times Magazine article, “The Brain on the Stand” by Jeffrey Rosen (March 11, 2007)[1].

New technologies can identify when an intention is formed. They can reveal whether or not a place or a face is familiar. They can expose structural deformities that impede rational judgment. “Neuroscience, it seems, points two ways: it can absolve individuals of responsibility for acts they’ve committed, but it can also place individuals in jeopardy for acts they haven’t committed — but might someday (Rosen).” That is the most obvious dilemma. These same technologies also reveal that some (or many; or even perhaps most) of our laws themselves truly do not reflect how we actually judge moral responsibility. In addition, the machines that expose our thoughts are only more sophisticated polygraphs or electro-encephalographs. Neither of those comes with a legal mandate. Today’s courts do not compel you to take those tests. However, tomorrow’s courts may, on the same theory that says that you agreed to alcohol blood tests when you signed for your driver’s license. Elizabeth Phelps, an NYU psychologist whose work has enabled us to demonstrate that racially-based prejudice is structural to the brain, also denies vigorously that this technology can have legal standing, calling that “crazy.” Professor Philip Tetlock at the Haas School of Business at Berkeley says that the scientific literature provides no demonstrated causal link between racism and discrimination. That hair is not the only one to be split in these discussions.

Dr. Adrian Raine (Robert G. Wright Professor of Psychology in the Department of Psychology and Neuroscience Program, University of Southern California) studied PET scans of convicted murders and found that they “had 11% less graymatter in their profrontal cortexes than control groups of healthy subjects and substance abusers (Rosen).” According to Dr. Raine’s webpages (http://www-rcf.usc.edu/~raine/ ), his research also shows structural abnormalities in the corpus callosum and hippocampus for individuals who have been identified as being antisocial and psychopathic. New work will include fMRI (functional magnetic resonance imaging), MRS (magnetic resonance spectroscopy), and DTI (diffusion tensor imaging) technologies.

The statement that convicted murderers have 11% less graymatter is a statistical inference. Many were measured. Distributions were calculated. Yet, if convicted murders have 11% less prefrontal mass than the rest of us, then some of them have more than 11% less and others have less than 11% less, and we may not know what the critical mass is. These numbers say nothing about cause and effect relationships within the mind of one individual.

It is interesting that other measuring devices are being brought into play. Perhaps they will allow some kind of multi-dimensional view of an individual’s brain. What they say about the mind is another matter. If the outcome is an execution – or even life in prison – then the mind-brain dichotomy is much more than a philosopher’s conundrum. We know for a fact that Einstein's brain lacked its parietal operculum region (“Albert Einstein's brain,” from Wikipedia, the free encyclopedia). The 19^th century artist, Toulouse-Lautrec, had a small brain; Neanderthal people had brains larger than ours – again, statistically speaking. While it might well be argued that gross brain size or other gross anatomy is insufficient to know the mind, the question remains: “What is?”

Of deeper consequence is the measurement of how our brains act when making moral judgments. Apparently, not everyone who says that they favor harsh penalties actually feels that way – and we can measure the gap between feeling and intellect in such judgments. Rosen cites fMRI measurements made by Joshua D. Greene of Harvard while subjects decided “the trolley problem.”

Imagine a train heading toward five people who are going to die if you don’t do anything. If you hit a switch, the train veers onto a side track and kills another person. Most people confronted with this scenario say it’s O.K. to hit the switch. By contrast, imagine that you’re standing on a footbridge that spans the train tracks, and the only way you can save the five people is to push an obese man standing next to you off the footbridge so that his body stops the train. Under these circumstances, most people say it’s not O.K. to kill one person to save five.

… the brain region associated with deliberate problem solving and self-control, the dorsolateral prefrontal cortex, was especially active when subjects … made a utilitarian judgment about how to save the greatest number of lives. By contrast, emotional centers in the brain were more active when subjects … tended to recoil at the idea of personally harming an individual…

The problem is that the law does not differentiate so finely. Duress – a gun to your head – must be just that. Legally, if someone threatened to kill your wife unless you kill someone else, she dies. The law does not balance lives. But we, the people, do.

Rosen brings up a hypothetical future in which attorneys for the state and the defense both try to get jurors whose brain scans show them to have certain measurements in certain areas, depending on the putative facts in the case. Whether that comes to pass or not depends on a wider issue: when can you be compelled to submit to a measurement? We accept breathalyzer[2] tests. If you try to fight it on the street, you will be taken to the police station where a court order will allow blood to be drawn for analysis. By contrast, Rosen’s article alludes to something even more invasive. “Unless courts found the tests to be shocking invasions of privacy, like stomach pumps, witnesses could even be compelled to have their brains scanned.” The case in question was Rochin v. California 342 U.S. 165 (1952). Writing for the majority, Justice Felix Frankfurter said:

“This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents - this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”

Will forced MRI or PET be considered the rack and screw of the future – even if breathylizers are not? The array of possible measurements gains new elements all the time. There is always a new technology to measure the brain.

Some researchers are less than sanguine about relying on technology alone to ferret out the truth. Rosen cites Paul Root Wolpe of the University of Pennsylvania School of Medicine. Wolpe is enthusiastic about the possibilities, yet sits on the board of the Center for Cognitive Liberty and Ethics. The CCLE “is a network of scholars elaborating the law, policy and ethics of freedom of thought. Our mission is to develop public polices that will preserve and enhance freedom of thought into the 21st Century (www.cognitiveliberty.org).” Rosen also quotes Amy Wax (University of Pennsylvania Law School) who calls inferences between brain chemistry and the law “piffle.” Elizabeth Phelps (New York University) developed the Implicit Association Test to measure how we react to pictures of strangers – especially those of different races. While her work does demonstrate that we fear those who are different from us, she calls it “crazy” to say these attitudes result in structural discrimination. Perhaps it is not so crazy, nor is it piffle.

Hannah Arendt’s study, Totalitarianism, warns of the banality of evil. We now live in the midst of a war on terror, in the wake of a cold war that ran 50 years. During World War II, America citizens were put in concentration camps. Unchecked, any government would make daily life a nightmare. Our own Constitution and Bill of Rights were new documents when the Alien and Sedition Acts of 1798 were passed. By then, the world had then seen the first Reign of Terror – as the government of France turned on its citizens, and then on itself. Depriving some new Americans of their liberties and shutting down some radical Republican newspapers might have prevented something worse – or perhaps it was that “worse” in its American disguise.

These issues are not new, having been argued for 150 years. Cesare Lombroso (1835-1909) is considered a pioneer in criminal justice and law enforcement for his theory of “anthropological criminology.” According to Lomboso, criminals are born. They are atavistic throwbacks, genetic miscreants, whose degenerative traits measurably differentiate them from us. Lombroso’s theories were the best of their time, founded on close measurement of many specimens, collected not only by Lombroso but by other scholars all over Europe. In Lombroso’s own words: “It has meant even more, namely that our theories are based on a mass of facts that are there for all to see; it has proved that despite the opposition from distinguished men, our school has attracted and convinced the best scientists in Europe who did not disdain to send us, as proof of their support, the most valuable documents in their collections.” [3]

Lombroso’s theories fell from the mainstream, but their legacy continues. Today, at the University of Minnesota, researchers[4] study twins, identical and fraternal, reared together and reared apart, hoping to map out the genetic roots of behavior. Such studies – especially of criminals – go back to the 1880s and were carried out in the Netherlands and the UK in the 1930s[5]. Rosen told of researchers who scan the brain with subatomic particles. In attempting to explain behavior in general and crime in particular sociologists consider the individual as a member of a group. We have dozens of theories – routine activities, differential association, structural functionalism, symbolic interaction, social conflict, social exchange, concentric neighborhoods, and more. None explains everything, nor can it. Yet, in every case – as in the Rosen article – the researchers are sure that they are on the path to the Holy Grail. They have not an answer, or a hint of the answer, but the answer.

Yet, the future does not have to be bleak and scary. Rosen mentions Stanford law professor Hank Greely who points to community corrections alternatives. If we can identify potential harm before it happens, then with GPS, tethers, and other tools, we can isolate the potential offender before the offense and begin treatment.

That still leaves nagging questions. One experiment from the University of Zürich relies on transcranial magnetic stimulation to inhibit specific regions of the brain. Researchers Ernst Fehr and Daria Knoch temporarily disrupted the right prefrontal cortexes of subjects who were involved in a bartering game.

One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money. Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair. But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.

But that is exactly the response of a rational, market-oriented person, the routine decision found on stock markets and commodities trading pits all over the world – to say nothing of millions of independent, small businesses – every day. In other words, the basis for this experiment was the assumption that trading behavior is abnormal, but it can be forced into most people. As an ethical egoist myself, a conscious believer in “the trading ethic,” I am not sure how I react to either side of that coin.

Rosen cites the works of Benjamin Libet (who measured people’s brain activity while telling them to move their fingers whenever they felt like it) and neuroscientist Vilayanur S. Ramachandran[6], to suggest that we have not free will but “free won’t.” We know that impulse control is a critical factor in crime. Statistically, most crimes are committed by juveniles[7]. On behalf of the majority in Roper v. Simmons, 543 U.S. 551 (2005), the politically conservative Justice Anthony Kennedy wrote:

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. Juveniles' susceptibility to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." Thompson v. Oklahoma, 487 U. S. 815, 835. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, supra, at 395. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character[8].

The Supreme Court that made this decision was nominally conservative. It is critical to understand that among the majority justices was Ruth Bader Ginsburg, appointed by President Bill Clinton. Dissent came from Sandra Day O’Connor, who was appointed by President Ronald Reagan. As near as can be ascertained, this decision reflects not just the opinion of the Court, but the mood of the nation. According to Rosen: “Although Kennedy did not cite the neuroscience evidence specifically, his indirect reference to the scientific studies in the briefs led some supporters and critics to view the decision as the Brown v. Board of Education of neurolaw.”

[1] Rosen, Jeffrey, “The Brain on the Stand,” New York Times Magazine, March 11, 2007.

http://www.nytimes.com/2007/03/11/magazine/11Neurolaw.t.html?

[2] Breathalyzer® is a trademark of Dräger Safety Luebeck, Germany. The National Highway Traffic Safety Administration maintains a "Conforming Products List" of breath alcohol devices approved for law enforcement use.

[3] Museum of Criminology, “Cesare Lombroso the Inventor of Criminal Anthropology”, Il Museo Crimninologico, Ministry of Justice, Department of Prisons, Rome: http://www.museocriminologico.it/lombroso_1_uk.htm.

[4] Minnesota Twin Family Study, Minnesota Twin Registry, etc., Dr. Matt McGue, Director.

http://www.psych.umn.edu/psylabs/mtfs/

[5] See, for instance, Rosanoff, Aaron and Leva H, Handy findings published in the Journal of Criminal Law and Criminality (Vol. 24. No.5, Jan-Feb 1934, pp. 923-934).

[6] V.S. Ramachandran is Director of the Center for Brain and Cognition and professor with the Psychology Department and the Neurosciences Program at the University of California, San Diego, and Adjunct Professor of Biology at the Salk Institute. (http://psy.ucsd.edu/chip/ramabio.html)

[7] White collar crime is a notable exception. The typical perpetrator seems to be a middle aged white male, though evidence also provides statistical condemnation of married women under 35 years of age.

[8] ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER v. SIMMONS. Certiorari to the Supreme Court of Cissouri. No. 03-633.Argued October 13, 2004--Decided March 1, 2005.

http://caselaw.lp.findlaw.com/