Psychosurgery, broadly defined as techniques for changing behavior by surgically altering the contents of the skull, historically has had a bad reputation. The widespread use of frontal lobotomies in the mid-20th century and the resulting damage to the personalities of those treated is the basis for much of the distrust of psychosurgical techniques. Recently, however, psychosurgery is making a comeback in the form of a new technology: deep brain stimulation (DBS).
Deep brain stimulation involves surgically implanting electrodes into specific areas of the brain. After a suitable recovery time, the electrodes are turned on, delivering controlled and adjustable pulses of electricity to adjacent brain regions. Unlike earlier forms of psychosurgery, which involved substantial and irreversible loss of brain tissue or connectivity, DBS is largely reversible and has far fewer side effects. DBS is currently used primarily to treat severe Parkinson's disease, most often by targeting part of the dopamine pathway known as the subthalamic nuclei, although other brain regions can be stimulated as well . Such treatment can reduce the tremors and other symptoms associated with the disease. DBS also shows promise in treatment of chronic pain and depression .
These initial successes suggest that DBS may also have a future in treating other brain conditions which affect behavior. One of the most interesting psychiatric conditions from a neurolaw perspective is sociopathy, in which the affected person engages in manipulative and impulsive behavior with little empathy or concern for the welfare of others. Evidence from neuroimaging studies indicates that sociopaths may have abnormal functioning in at least their amygdala and orbitofrontal cortex . Could deep brain stimulation of these regions improve the behavior of sociopaths? Such a treatment might allow these very troublesome individuals to reintegrate safely into society rather than need to be jailed for extended periods for the safety of those around them.
There are several large obstacles to experiments aimed at developing such a treatment. Most critically, sociopathy is a disease that primarily negatively affects those around the sociopath. The "psychiatric patient" usually lacks the empathy or guilt needed to care about the damage that their behavior causes. Convincing such an individual to voluntarily undergo major brain surgery would be quite difficult. Involuntarily forcing sociopaths to be treated, of course, creates all sorts of moral and civil liberty issues, even for convicted murderers on death row. Perhaps some kind of incentive could be offered to criminal sociopaths, in the style of the movie Clockwork Orange. Before experiments with using DBS to treat sociopathy can proceed, the legal framework involving patient consent will have to be analyzed very carefully.
In an article titled "Can Neuroscience Challenge Roe v. Wade?" William Egginton, professor in the Humanities at John Hopkins University, cautions us to be careful in how we use the natural sciences to shape public policy. In this case, abortion rights. Egginton writes about attorney Rick Hearn's suits against Idaho's Pain-Capable Unborn Child Protection Act "and others like it that cite neuroscientific findings of pain sentience on the part of fetuses as a basis for prohibiting abortions even prior to viability." The reason for this is because Hearn believes that the government is using results from the natural sciences "as a basis for expanding or contracting the rights of its citizens." The logic goes like this: if it can be proven that fetuses are capable of pain then they are conscious and thus a person deserving of their full rights under the constitution. This clearly has political overtones.
The turn to legislation based on alleged neuroscientific findings in search of an end-run around the protections provided by Roe v. Wade is popular among Republicans. Mitt Romney voiced his strong support for such legislation in 2011, when he wrote in a piece in National Review, “I will advocate for and support a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.” Since viability is, according to Roe v. Wade, the point at which the state’s interest in protecting “the potentiality of human life” becomes compelling enough to override its interest in protecting the right of a woman to make decisions regarding her body and its reproductive organs, Idaho’s statute and others like it would either be found unconstitutional or, if upheld, entail overturning a fundamental aspect of Roe v. Wade.
This is reasonable enough since the Republicans are simply trying to reinforce their philosophical arguments with evidence. If it is true that the fetus experiences pain (as we would conceive of it), that is a pretty strong argument in their corner. Unfortunately, when the Republicans refer to pain sentience there is the implication that these feelings arise from a primitive form of consciousness, which is debatable.
Current neuroscience distinguishes a spectrum of degrees of “consciousness” among organisms, ranging from basic perception of external stimuli to fully developed self-consciousness. ... The neuroscientist Antonio Damasio, for instance, distinguishes degrees of consciousness in terms of the kind of “self” wielding it: while nonhuman animals may exhibit the levels he calls proto-self and core-self, both necessary for conscious experience, he considers the autobiographical self, which provides the foundations of personal identity, to be an attribute largely limited to humans.
... For a fetus to be conscious in a sense that would establish it as a fully actualized human life, according both to current neuroscientific standards and to the philosophical tradition from which the concept stems, it would have to be capable of self-perception as well as simple perception of stimuli. ... By turning to consciousness in an attempt to push Roe’s line-in-the-sand back toward conception, in other words, abortion opponents would in effect be pushing it forward, toward the sort of self-differentiation that only occurs well after birth and the emergence of what the phenomenological tradition has called “world” [Emphasis mine].
Fortunately for infants everywhere, though, philosophy is always evolving and we can change our views in light of the evidence. Acknowledging neuroscience's views on consciousness does not suddenly mean that we need to allow abortions in the fourth trimester. Social policy is not strictly beholden to science. Instead, what we often do is use our experiences, intuitions, and philosophies to guide our research in a way that either reinforces or invalidates said experiences, intuitions, and philosophies, the latter of which we then amend accordingly. If our ideas on consciousness could, in theory, allow for the killing of babies, then let us change our philosophies to fit our intuition that killing babies is wrong. It is as simple as that. What our understanding of consciousness simply means (in this case) is that if the anti-abortion movement hopes to gain any traction it must discard the "pain sentience"/"consciousness" argument otherwise maybe we could justify abortion after-birth.
I am sure there are other arguments that can be made against abortion but citing pain sentience is not one of them.
Lastly, in this article I think Egginton places too much emphasis on what he calls the "hubris" of science to overreach into those fields he believes to be in the realm of philosophy. At face value I do not disagree but it is misleading for him to blame science's role in the pain sentience debate rather than the idealogues who are cherry-picking and misusing it to support their ends. It is true that the non-scientific community will often regard SCIENCE! as a beacon of infallibility (except when it challenges their intuitions) but that is not the problem of science it's the problem of society. This is just another example of how scientific illiteracy pollutes the discourse rather than science being "dictatorial."
A number of new technologies are being tested for their potential in lie detection. One of these, the autobiographical Implicit Association Test, is based on measuring the timing of responses to questions about a subjects memory of an event. It is a special case of the Implicit Association Test which measures differential associations of any two concepts. The original paper on the IAT noted that it may "reveal attitudes and other automatic associations even for subjects who prefer not to express those attitudes."
Following the initial publication of the aIAT, several papers were published identifying effective countermeasures to the technique. For example, by artificially slowing down responses, it is possible to mask the effect being measured. However, a 2010 follow-up from the aIAT authors notes that "countermeasures are now known for almost every lie detection technique" and describes a method for identifying fakers.
More research will be needed to clearly demonstrate whether the aIAT can be made effective for real world use. However, even if this proves successful there will still be significant delay before the the technique is widely considered accapted and suitable to be considered for admission in U.S. courtrooms.
1. "Measuring individual differences in implicit cognition: the implicit association test" http://faculty.fortlewis.edu/burke_b/Senior/BLINK%20replication/IAT.pdf
2. "Faking of the Implicit Association Test Is Statistically Detectable and Partly Correctable" http://ilabs.washington.edu/sites/default/files/Cvencek%26al.BASP_.2010.pdf
3. "Detecting Fakers of the autobiographical IAT" http://aiat.psy.unipd.it/uploads/pdf/ACP2010.pdf
According to the NIMH, as many as 7.3% of the adult population of the US suffers from a psychiatric condition known as Intermittent Explosive Disorder (IED). These individuals have episodes of uncontrolled rage and aggression which may lead to property damage and violence against self or others. These aggressive impulses are far out of proportion to any provocation, and often quite naturally land the person with the condition in jail. Since such individuals often feel remorse and humiliation soon after an incident of rage, they would seem to be ideal candidates for rehabilitation using techniques developed by psychiatry and neuroscience.
Several treatments have been developed for this condition, of which the most common are cognitive behavioral therapy, mood stabilizing drugs, and antidepressants.  Recently, the use of neurofeedback has been proposed to train people with poor impulse control to resist undesired impulses. One serious challenge with all such treatments is figuring out when someone with the condition has been stabilized or "cured." Parole boards have a duty to the public to ensure that a prisoner diagnosed with the condition is now safe to be released. A prisoner could look sane and stable for quite some time, and then snap when placed in the wrong environment or situation.
I propose that such prisoners could be tested by placing them in a very difficult situation for an extended period of time. Prisoners who can demonstrate their ability to control their temper under extreme circumstances logically should be safe when interacting with the general public, perhaps even more so than the average citizen.
Such tests of stability could take a number of forms. The simplest would be to house the prisoner with a group of other prisoners known to be unpleasant, irritating, and threatening. This would have to be done under very carefully controlled conditions to ensure the safety of the participants. Variations on this strategy could involve the use of actors or plants who pretended to be fellow prisoners in order to test the inmate's response to provocative situations. This strategy is analogous the military's use of "aggressor squadrons" to test how fighter pilots react to hostile situations.
An even more extreme test would be to expose the inmate to low levels of drugs that actually promote anger and compromise executive functioning. Such a strategy would serve two purposes: first, if the drugs are chosen correctly, the prisoner's neurology should adapt over time to compensate, thus causing him to be even more stable once the drugs are removed. Second, prisoners who can control themselves even when their brains have been compromised should logically be less likely to snap when they've been drinking or using drugs, a probable occurrence after release.
 DSM IV, referenced through BehaveNet: http://behavenet.com/intermittent-explosive-disorder
 "Incognito", by Dr. David Eagleman, page 277.
One determines the risk of Alzheimer’s and affects I.Q. only late in life; the other seems to build a bigger brain, but on average it raises I.Q. by all of 1.29 points.
Instead, there are a whole confluence of genes that can account for the variation in intelligence, and given our limited understanding of how these genes work together it seems as though Baby Geniuses will continue to always be a decade away (to the disappointment of dozens). Yet, instead of focusing on the genes that produce intelligence perhaps we should search for the mutations that inhibit it. As Dr. Kevin Mitchell writes at his blog Wiring the Brain:
That is true for individual proteins and it is true at a higher level, for organismal traits that affect fitness (the genetic components of which have presumably been optimised by millions of years of evolution). Mutations are much more likely to cause a decrement in such traits than to improve them. So maybe we’re thinking about the genetics of [the general intelligence factor] from the wrong perspective – maybe we should be looking for mutations that decrease intelligence from some Platonic ideal of a "wild-type" human. Thinking in this way – about “mutations that affect” a trait, rather than “genes for” the trait – changes our expectations about the type of variation that could be contributing to the heritability of the trait.
Now, even though Dr. Mitchell's approach may be the most reasonable way to study intelligence a few things need to be kept in mind: (1) Although we need some measure of intelligence, we must not forget that I.Q. tests measure whatever it is I.Q. tests measure, which may or may not be intelligence. There is, after all, a reason why Emotional Intelligence (E.I.) testing has been gaining traction for (supposedly) measuring a different form of intelligence. (2) We need to ask ourselves what standard brain are all of these mutations supposedly deviating from? When it is suggested that there is an evolutionary baseline evenly distributed across the population that is then mutated, it is reasonable to question what this standard brain (or piece of brain according to the mosaic model) is.
So what does this have to do with Neurolaw? Well, as I alluded to in a previous, poorly-written, last minute (whoops!) blog post on Neurofeminism: we must always be conscious of how we normalize the brain. Whether we are studying it or trying to rehabilitate it when it comes before the judge's bench, we sometimes must shine the light on the very brain we are comparing the rest to. More often than not we won't be surprised, but every once in a while we may learn a little bit more about ourselves as researchers and the institutions we conspire with.
Post-traumatic stress disorder is an anxiety disorder that can follow after traumatic events involving the threat of injury or death. Among other symptoms, those with PTSD may be irritable and have sudden outbursts of anger. (1) Neuroimaging based research into PTSD has found results "consistent with a neuroanatomic model of PTSD that posits a failure of medial prefrontal cortex to inhibit a hyperresponsive amygdala" (2)
In some cases, sufferers of PTSD have been found not guilty by reason of insanity. For example, in the attempted murder case People v. Wood, (Illinois 1982) Wood was found not guilty by reason of insanity after it was shown that sounds in the factory where he worked resembled noises heard during combat in Vietnam. (3) PTSD may also be considered as a mitigating factor, as in the 2009 Supreme Court ruling which overturned the sentence of George Porter, a Korean War veteran who was sentenced to the death penalty for shooting his ex-girlfriend and her new boyfriend at her home in Florida. (4)
Following the wars in Iraq and Afghanistan, the number of criminal cases involving PTSD is expected to increase with over 170,000 such veterans having recieved a PTSD diagnosis. (5) The use of the insanity defense in these cases is controversial, but at least one study failed to find that PTSD is abused as a claim for the insanity defense as compared to other forms of mental illness. (6)
1. PubMed page on PTSD http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001923/
2. "An fMRI study of anterior cingulate function in posttraumatic stress disorder" http://ase.tufts.edu/psychology/documents/pubsShinfMRIStudy.pdf
If a fundamental question in neurolaw is how the legal system should move forward with the specific brain on trial, then the major role neuroscience can play in the courtroom is in the sentencing process. In fact, after identifying the biology that may have predisposed an individual to criminal behavior, attention must be paid to how sentencing - the rehabilitation process - can effectively be carried out. For example, if it was a malformed frontal lobe that unfairly led an individual to give in to an irresistable impulse, neuroscience plays the dual role of identifying this malformity and how best to correct it.
This can take many forms (including basic conditioning) but one promising field is neuromodulation.
As we are still living in a period where our understanding of the brain is in its infancy, neuromodulation still has ways to go but is promising in its ambitions. Much of it is focused on the treatment of disease such as depression, eating disorders, and damage to one's motor control, but if we are able to produce devices that can effectively give Parkinson's patients a new lease on life (like the example of this man who was diagnosed in 1998 and now feels "like a newborn baby"), what else could we do? As the author Douglas Coupland once famously remarked, "Where does personality end and brain damage begin?" why could we not develop a piece of technology that, when attached to those parts of the prefrontal cortex responsible for decision making, maintains a steady stimulation that allows us to, say, rationally assess the relationship between our long- and short-term self-interests? After all, why would we ever let the better angels of our nature flitter away?
Of course, I understand this could be the fodder for a Huxleyan dystopian novel but this is not science fiction and these are the major ethical and social questions we will soon need to answer. It's clear that neuromodulation opens many doors in the medical world, but it does the same for both the legal world (rehabilitation) while opening hundreds more in the socio-political world (for example, what constitutes "neural rights"?). These are issues that we cannot avoid, and even though I cannot claim to have any answers it's about time every science lab hired a philosopher.
Anencephaly is a condition which leads to the failure to develop a forebrain. (1) It occurs in approximately 1 in 10,000 births. (2) The condition does not preclude the operation of basic bodily functions souch as respiration and circulation. However, perception, personality, memory, and emotion would be absent in anencephaly. As such, medical professions are likely to consider anencephaly a sufficient criteria for medical futility.
Currently state laws in this area on are commonly based on the Uniform Determination of Death Act which states that the "irreversible cessation of all functioning of the brain, including the brain stem" (3) is death. This specifically does not include cases of anencephaly where the brain stem is still active.
One such case was that of one Baby K, born in October 1992. (4) The mother of Baby K sought to force the hospital to provide treatment for respiratory distress. The courts were reluctant to go against the existing definition of death and found that the hospital had an obligation to provide care. (5)
Although neuroscience cannot yet definitively demonstrate that consciousness is isolated to the forebrain, it does appear likely that this is the case and that legal codes should be updated to reflect the principle our ethical obligations to something born without one are similar to our ethical obligations to the placenta.
1. http://www.ninds.nih.gov/disorders/anencephaly/anencephaly.htm NINDS Anencephaly Information Page
2. http://ghr.nlm.nih.gov/condition/anencephaly Anencephaly - Genetics Home Reference
3. http://uniformlaws.org/ActSummary.aspx?title=Determination%20of%20Death%20Act Uniforn Law Commission - Determination of Death Act Summary
4. http://www.ascensionhealth.org/index.php?option=com_content&view=article&id=237&Itemid=173 Ascension Health - Healthcare Ethics - Baby K
5. http://www.nejm.org/doi/full/10.1056/NEJM199405263302120 Annas, George J - Asking the Courts to Set the Standard of Emergency Care, New England Journal of Medicine vol 330 no 21 pg 1542-1545