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Legitimacy of Criminal Justice in the Eyes of Neuroscience

Updated: Aug 18, 2023

Written by Adanur Nas

Embarking itself as the age of innovation, the 21st century has led to various changes in humans’ life, from conducting lessons online with only a camera and microphone to decoding the nucleotide excision repair. Such revolutionizing changes belong to the field called neuroscience. In simpler words, neuroscience is the scientific study of the nervous system, its structure, and its function. It consists of many branches, such as cognitive and behavioral neuroscience. For neuroscience involves the study of how the human brain operates and what are the mysteries laying behind human actions, observing the established correlation between neuroscience and criminal justice is not surprising. Even before the birth of the founder of modern neuroscience, Cajal, many people had wondered why such atrocious crimes and their insufferable consequences were products of the human mind [1]. For instance, one of the most renowned philosophers of all times, Plato, believed that crimes originated from fallacies in education, and the criminals were sick people who needed treatment or severe punishment if they did not respond to treatments [2]. As it is clear, even more than a millennia before Cajal, many people had already started associating criminology with neuroscience. If neuroscience has such a significant role in answering the questions surrounding criminal justice and law, then, what does neuroscience tell us about criminal justice and its legitimacy in the 21st century?

Attaining a broader perspective on the relationship between criminal justice and neuroscience requires one to understand what neuroscience indicates about the human mind and its tendency to follow amygdala as if it is in a survival-of-the-fittest mode. Amygdala, one of the most debated and researched parts of the human brain, controls fear, aggression, and social interaction; thus, it is heavily involved in crime [3]. Amygdala is where the threatening and fearful stimuli is directed and processed; it might even be referred to as the animal instinct of humans. A damage to amygdala could result in the depletion of the feelings fear and aggression and ability to form social interactions — as in when criminals do not fear the authority, deliberately aggress the victims, and do not care for the beloved ones of the victims — or it could result in the increase of the aforementioned feelings and abilities — as in when criminals excessively fear the situation they are in or the people around them, involuntarily aggress the victims as self-defense on their ends, and cannot form any social interaction. Many attorneys, criminals, or even experts used this fact as a defense mechanism. To exemplify, in the case of Charles Whitman, known as the ‘Texas Tower Sniper’, his amygdala was the center of focus since it was revealed that Charles Whitman had a brain tumor pressing on his amygdala [4]. This discovery was enhanced when the letters written by Charles Whitman had “I don’t really understand myself these days. I am supposed to be an average, reasonable and intelligent young man. However, lately (I can’t recall when it started) I have been a victim of many unusual and irrational thoughts,” and “I have had some tremendous headaches in the past,” within the lines [5]. Therefore, according to some experts, the brain tumor pressing his amygdala was the only culprit, and this could be an indicator of how law should adapt itself to obey neuroscience.

Tackling different cases led scientists to deduce that amygdala was not the only region of human brain that evokes criminal actions, but rather there was a unique functionally connected neural signaling network consisting of different regions of human brain and involved in moral decision making [6]. This study, when mentioned with appropriate cases, signifies the necessity of looking into other regions in this neural signaling network to draw out more specific and comprehensible conceptions as to why criminal justice and its legitimacy are highly debated. One of those appropriate cases, the Stefania Albertani case, involves two of other regions, anterior cingulate gyrus and insula, and an inquisition on the legitimacy of criminal justice. Stefania Albertani pleaded guilty to murder of her sister, burning of her sister’s body, and attempted murder of her parents [7], [8]. Initially, she had been sentenced for life in prison; however, after an experiment conducted with 10 healthy subjects, it was revealed that Stefania Albertani had diminished grey matter in her anterior cingulate gyrus and insula — linked to diminished behavior inhibition and increased aggression, respectively [7]. Thus, her life-sentence was reduced to 20-year sentence, which sparked lots of controversies afterwards. For one, the judge who reduced the sentence stated that neurological approaches gave more reliable and evidence-based conclusions, such as in the case of Stefania Albertani when experts used Voxel Based Morphometry, a neuroimaging analysis technique, than the traditional clinical approaches. For two, the sudden appeal against the ruling left people who put their faith in law confused since this incident could be the precursor of decreasing legitimacy of criminal justice, which bases its rules on morality and greater good, instead of taking biological situations into consideration. This is where the term coined from ‘neurology’ and ‘law’ appears: neurolaw.

Referring to a field of interdisciplinary study discovering the effects of neuroscience on legal procedures, standards, and legitimacy, the term neurolaw was first used by the lawyer J. Sherrod Taylor in 1991, in a journal called Neuropsychology by American Psychology Association. Since it is a relatively new term, neurolaw is yet to be incorporated into modern-day traditional law, for its studies and examinations still yield many unanswered questions and uncontracted concerns. Within the years 1995 and 2015, there were approximately 800 neuroscience-involved cases in the United States of America according to an analysis conducted by Deborah W. Denno from Fordham University School of Law [9]. This analysis was backed up by another analysis conducted by Nita Farahany, a legal scholar and ethicist at Duke University, and Henry T. Greely, an American lawyer and professor at Stanford Law School, which showed that there had been approximately 2,800 legal opinions where criminals had used neuroscience as a defense mechanism between 2005 and 2015 [10]. These statistics, when combined with unresolved problems surrounding neurolaw, depicts a concerning picture. If it falls into the wrong hands, neurolaw could be a corruptive and destructive power to use when criminals try to plead not guilty and get away with what they have caused. These statistics also introduce an unresolved and highly debated question to the arguments surrounding neuroscience and criminal justice: Nature versus nurture?

Taking a part in many different fields, from genetics to literature, ‘Nature versus nurture?’ question deeply affects neuroscience and law as well. This question’s basis revolves around the wondering whether one’s characteristics are reflections of their genetic inheritance or external factors that affect them. Since this question is pretty similar to other questions surrounding neuroscience and criminal justice, many experts have contemplated and researched the application of it. Aforementioned conditions and notions were solely focused on what neuroscience was indicating about criminal justice by putting external factors aside. Nonetheless, the legitimacy of modern-day criminal justice cannot be debated unless the ‘nurture’ side of the discussion is considered. Modern-day criminal justice is a reflection of what greater good perceives are within their moral borders or not. One of the best-known nature-nurture debaters of all times, Charles Darwin, had believed that one’s morality was innate [11], thereby undermining the impact of one’s own free will, while more recent studies suggested that although genes might predispose one’s future actions, it was still up to that person to make the final decision by working on monozygotic twins [12]. This is also where modern-day criminal justice enforces the law upon criminals; even if the culprit has a damage in their brain, provided that this damage is supported by appropriate scanning and imaging techniques, they should still be able to make a moral judgment. This rooted, rigid, and internalized belief arises a counter question: Has criminal justice always been all about ‘nature’ as advocated by neurolaw supporters?

Using the cases of Charles Whitman and Stefania Albertani, particularly the former one, is one of the most fundamental methods to justify the urgency of implementing neurolaw into the justice system. However, these cases have not always been all about the ‘nature’ side of the argument, contrary to how they are principally depicted. When Charles Whitman’s letter was promulgated to the public, given those times’ uncertainty and humankind’s raw desire to adapt themselves to the fast-changing world, many people only focused on the aforementioned lines. However, Charles Whitman was disclosing the influence of his father on his behaviors as much as he was talking about how he had been unconsciously aware that something physical had been wrong in his brain. "Similar reasons provoked me to take my mother’s life also. I don’t think the poor woman has ever enjoyed life as she is entitled to. She was a simple young woman who married a very possessive and dominating man. All my life as a boy until I ran away from home to join the Marine Corps…" these were written by Charles Whitman in his suicide letter as well, though they were overlooked [5]. Charles Whitman implicitly drew attention to his authoritarian and highly influential father figure in his life, which explicitly evinced that at the end, he, deliberately or involuntarily, treated his wife as how his father treated his mother. His actions toward his wife were manifestations of his experience from his parents’ relationship, thereby supporting the ‘nurture’ side of the argument. Furthermore, in the case of Stefania Albertani, although there were many neurological investigations and international and national attention on her case, with respect to this case’s likely after-effects on criminal justice, at the beginning, authorities focused on the ‘nurture’ side of her case — economic situations [13]. It was revealed later that her anterior cingulate gyrus and insula were damaged [7], [8]. Nevertheless, the problem with her case was that after her brain’s situation was analyzed, many authorities, including the judge, were quick to dismiss the ‘nurture’ side of her case, focusing solely on the ‘nature’ side, and attributing this case for justifications regarding the need of neurolaw for the ‘greater good’. This contradiction presents a final, but possibly the most crucial question to this discussion: How and when criminal justice should adapt itself to neuroscience, provided that the necessary precautions could be taken and the cost for this kind of adaptation could be calculated thoroughly?

Understanding the cost and necessary precautions for the implementation of neuroscience into criminal justice cannot be fulfilled unless an important question is answered: How will people answer to such a drastic alteration? As mentioned earlier, the case of Stefania Albertani caused national and international concerns, primarily regarding the possible abuse of neurolaw in criminal justice. Even some experts, such as Henry T. Greely, did not favor such an approach to law, stating that “the idea of sentence reductions for ‘partial mental illness’ seems strange to me,” [8]. Moreover, on the other hand, Dr. Kent Kiehl, a lead researcher at the Mind Research Network, saw the utilization of neuroscience in criminal justice as an opportunity to prevent possible violent actions from kids who possess tendency toward violence due to their genes, stating that “This will improve our ability to predict which kids are high-risk, and how to individually tailor treatment to help kids change,” [14]. However, such measurements could lead to an increase in genetic discrimination, being discriminated and marginalized owing to one’s genetic inheritance. Since there are scientific explanations behind why some races and/or ethnicities are more prone to be diagnosed with some particular mental disorders, neurolaw can be used as a justification to racially and ethnically discriminate communities. This possible adverse after-effect of such adaptation prevents people from giving countenance to it. Addedly, many criminals have already started utilizing neurolaw for their favor, in order to get away with what they have committed or receive a mitigated sentence. Thence, unless there is a sufficient and efficient counter measurement against such possible dangers, even the discussions regarding how and when neurolaw should be implemented cannot be finalized.

Concluding this discussion, neuroscience and criminal justice cannot be separated from each other, while they should not be combined into one field, such as neurolaw, for the time being, due to the controversies and detrimental effects this combination might bring to our society. Even though the utilization of neuroscience in criminal justice arises inquiries regarding the legitimacy of modern-day criminal justice, these inquiries cannot be utterly answered unless more pressing and controversial questions are answered before: If ‘nature’ plays such a significant role in one’s own judgment, then what about one’s own free-will? What will be the consequences of adaptation of neurolaw, such as possible rise in discrimination against certain communities? Is the modern-day criminal justice credible enough to make the utmost decision for its country’s citizens? What does neuroscience tell us about criminal justice and its legitimacy in the 21st century?

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