Criminal responsibility in the age of "mind-reading".

While academics debate whether advances in the neurosciences eviscerate notions of guilt and innocence precipitating the demise of the criminal justice system as we know it, in the courtroom practitioners on both sides are busy exploiting the novelty and ambiguities of emerging research to advance arguments the nascent data cannot now, and may never, support. This Article contends that the significance of the neurosciences to the criminal law can only be assessed in the context of a given theory of punishment. In other words, assumptions about what justifies who and how much we punish and, indeed, the very practice of punishment itself, must be made explicit. Yet, this essential threshold analysis is all but missing from the debate. This Article concludes that advances in the neurosciences have a limited but potentially critical role to play in the criminal courtroom. It reaches that conclusion, however, only after first articulating a mixed theory of punishment with expressionistic and retributivist elements that comports with our current criminal justice practices and has the capacity to accommodate emerging scientific knowledge.

 
INTRODUCTION 
 
I.    TOWARDS AN EXPRESSIVE THEORY OF PUNISHMENT 
      A. Insights from Evolutionary Biology 
      B. Emile Durkheim and the Social Function of Punishment 
      C. To Whom May Punishment Be Applied? 
      D. How Severely May We Punish? 
         1. Defining Desert 
         2. The Problem with Deontological Desert 
 
II.   THE EXPRESSIVE THEORY WITHSTANDS THE NEUROSCIENTIFIC 
      CHALLENGE TO ULTIMATE RESPONSIBILITY 
      A. Normative Free Will 
      B. Alternative Possibilities 
      C. Source (In)compatibilism 
      D. Folk Intuitions of Criminal Responsibility 
 
III.  DEFINING NORMATIVE COMPETENCE: WHAT CAN THE 
      NEUROSCIENCES TELL US? 
 
      A. Limitations 
      B. The Neurobiology of Social Cognition 
         1. Role of Emotions in Human Cognition 
         2. General Capacities Required for Social Cognition 
            a. Self-Representation 
            b. Perception of Others 
            c. Social Knowledge 
         3. The Neural Anatomy of Social Cognition 
            a. Prefrontal Cortex 
            b. Amygdala 
            c. Hippocampus 
            d. Anterior Cingulate and the Insula Cortex 
 
CONCLUSION 

INTRODUCTION

It seems that every other day the popular media is heralding what it perceives to be the latest neurological findings, which it invariably distills down to a story about mind-reading or biological determinism. In just the past two years, the cover of Time proclaimed "Science is Discovering" what makes us good and evil; (1) NBC's Today Show asked "Are Kids Born to Bully?"; (2) the CBS newsmagazine, 60 Minutes, suggested that in limited circumstances neuroscientists already have the ability to know what we are thinking; (3) Newsweek threw caution to the wind and boldly asserted "Mind Reading is Now Possible" (4) and, not to be outdone, a few weeks later Nature magazine summarized the findings of a study from U.C. Berkeley in an article headlined "Mind-Reading with a Brain Scan." (5)

The potential implications of these and other "pop" neuroscience reports have not been lost on the legal field. In March 2007, Jeffrey Rosen's "the Trials of Neurolaw" was splashed on the front page of The New York Times Magazine. (6) A year later, even the California Bar Journal entered the fray with a cover story entitled "Bridging the Worlds of Neuroscience and the Law." (7) And by donating ten million dollars in October 2007 to fund the newly created Law and Neuroscience Project, (8) the John D. and Catherine T. MacArthur Foundation lent its imprimatur to the interdisciplinary study of law and neuroscience.

With all the flurry surrounding recent neuroscientific advances it is important to step back and assess what we actually know about the human brain or are likely to learn in the not too distant future. First, scientists do not have the technology or a sufficiently sophisticated understanding of the human brain to meaningfully read minds, nor are they close to being able to do so. Second, while the debate over nature versus nurture rages on, it seems safe to say that our biology results from a complex interaction between our genetic inheritance and our environment that we are only at the nascent stages of exploring. (9)

More importantly, neither the neurosciences, nor any other science, can provide a causal explanation for crime. Legal responsibility is a normative judgment; as a society we decide what conduct when engaged under what circumstances should be prohibited and what minimal capacities an individual must possess at the time he engages in the proscribed conduct such that he can be condemned and punished for his actions.