As has been stated many times in lectures this semester, neuroscience is an ever-evolving, ever-changing field. This has benefits as well as heavy costs—often full research labs lose funding even when close to completion of experiments because the subject of study has been deemed obsolete. However, neuroscience's fast-paced development means that as we move farther and faster with our research it bleeds more and more into the common world around us; the brain is becoming more of a concrete consideration in every part of our society. This includes, of course, our society's disciplinary functionalities—our judicial courts and field of law is becoming more intertwined with neuroscience every day. In Dr. Katrina Sifferd's talk on this subject on November 7th to our class, she focused on the general idea of brain anatomy being cited as a causal principle in unlawful behavior that could mean that said behavior was exculpatory. When discussing exculpatory neuroscientific evidence that could be presented in a courtroom like that of the emotional deficits associated with psychopathy, I asked Dr. Sifferd about whether or not temporary dysfunctional brain states could technically be described as exculpatory, and she pointed me in the direction of the case study on Swerdlow. In this blog post, I look to discuss the budding relationship between neuroscience and the courtroom that Sifferd discussed in her lecture and that is exemplified in the Swerdlow paper, as well as what consequences may arise from this pairing.
In her lecture, Dr. Sifferd indicated a general trend in cases where psychopathy was involved where the defendant used a PCL-R score that indicated psychopathy diagnosis and neuroscientific evidence for the presence of psychopathy as mitigating proof for diminished capacity at the sentencing phase of a trial. Interestingly, Dr. Sifferd discusses how using a diagnosis of psychopathy alone cannot be exculpatory because psychopaths are such a heterogeneous group that a diagnosis is "at best an indicator to the court that further psychological testing is required" (Sifferd & Jefferson, 2018). She also mentioned how this has almost never worked because of the societal perception of the disorder of psychopathy as an inherent evil. This is something interesting to bring into consideration—even when neuroscience and law seem to seamlessly integrate, there will always be confounding factors that come into play because such is the nature of the human condition. In this case, the human perception of psychopathy driven by the media we consume and the viewpoints we interact with proves to be one of those confounding factors. It doesn't matter if it is shown by the pieces of neuroscientific evidence presented that the brain is developed in a way that makes empathic feelings next-to-impossible as we understand them, it is connected to the word "psychopath" and that means that the perception by the judge + jury is shifted in the negative direction.
Psychopathy is a complex issue in the field of neurolaw, as it has an extremely negative public perception and a widely variable range of symptoms that could work for or against the consideration of responsibility. That doesn't even begin to get into the actual neuroanatomy changes that might be present in psychopaths that could be analyzed by a court to determine responsibility. Neuroanatomy and responsibility is something that Dr. Sifferd briefly touched on in her talk, but recommended a specific case to examine if we wanted to dive deeper into that area of neurolaw. In the Burns & Swerdlow case study from 2003, a case was examined where a schoolteacher was making advances towards his young stepdaughter and watching child pornography despite having never shown previous pedophilic inclinations or engaging in any dangerous behavior. It was later found that he had a brain tumor that was impeding on his right orbitofrontal lobe, an area of the brain known to be associated with sociopathy and impulse control (Burns & Swerdlow, 2003). According to Dr. Sifferd, this tumor was enough to serve as exculpatory evidence, and he faced very few charges after removal of the tumor as he returned to a normal life. However, the question Dr. Sifferd brought up was the idea that his impulse control was damaged, not his actual wants and desires. However unconscious the desires may have been, the subject of the case study still had pedophilic inclinations that were revealed by the eroding of his impulse control. Did this mark him as a responsible danger for the future? How do we differentiate between something purely existing in the person and something that purely exists in a disorder?
Neurolaw is a complex, thorny field because it deals with several central truths about the human condition and typically attacks them from different angles—one scientific, the other often appealing to the more humanistic side of our actions. I think that the discussions brought up by Swardlow & Burns as well as by Dr. Sifferd in our class lecture and her own publications raise interesting, philosophical questions. How do we remove human bias from the intersection of neuroscience and justice? Do we want to? Can behavior be explained by tumors on our brains, or was the behavior always there and the tumor just released it? This is a growing field that has to be treated with the utmost care, in my opinion, because decisions made in law have consequences reeling far beyond just the case they deal with. We are now invading people's minds with our judicial decisions, and we have to consider the weight of that every time we take a step forward into this new field.
Works Cited:
Burns, J. M., & Swerdlow, R. H. (2003). Right orbitofrontal tumor with pedophilia symptom and constructional apraxia sign. Archives of neurology, 60(3), 437–440. https://doi.org/10.1001/archneur.60.3.437
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