Neurolaw: Advances in Neuroscience, Justice and Security

This edited book provides an in-depth examination of the implications of neuroscience for the criminal justice system. It draws together experts from across law, neuroscience, medicine, psychology, criminology, and ethics, and offers an important contribution to current debates at the intersection of these fields. It examines how neuroscience might contribute to fair and more effective criminal justice systems, and how neuroscientific insights and information can be integrated into criminal law in a way that respects fundamental rights and moral values. The book’s first part approaches these questions from a legal perspective, followed by ethical accounts in part two. Its authors address a wide range of topics and approaches: some more theoretical, like those regarding the foundations of punishment; others are more practical, like those concerning the use of brain scans in the courtroom. Together, they illustrate the thoroughly interdisciplinary nature of the debate, in which science, law and ethics are closely intertwined. It will appeal in particular to students and scholars of law, neuroscience, criminology, socio-legal studies and philosophy. Chapter 8 is available open access under a Creative Commons Attribution 4.0 International License via link.springer.com. Preface Contents Notes on Contributors Legal Perspectives Possibilities and Limitations of Neuroscience in the Legal Process Introduction Action Responsibility Mens Rea Capacity Responsibility Liability and Responsibility Prevention of Re-offending Summary and Conclusions References Νeuroscience and Dangerousness Evaluations: The Effect of Neuroscience Evidence on Judges. Findings from a Focus Group Study Introduction Neuroscience as a Better Tool for Evaluations of Future Dangerousness/recidivism Risk? Ethical and Legal Concerns: Neuroscience as a Risk for Offenders’ Individual Rights The Effect of Neurobiological Evidence on Judges and Jurors: Findings from Studies The Effect of Neuroscientific Evidence on Judges: First Findings of a Pilot Study from Focus Groups Selecting the Focus Groups’ Method Team Design and Composition Findings from the Focus Group Consisting of Judges and Lawyers Contribution of Neuroscientific Data to the Improvement of the Quality of Psychiatric Expert Opinions The Relationship Between an Expert Opinion Incorporating Neuroscientific Data as Means of Evidence and the Principle of Free Evaluation of Evidence The Issue of Dangerousness: Correlation Between Dangerousness, Mental Illness and Neurobiological Data Neurobiological Data as Evidence of Reduced Responsibility in the Context of a Defence Strategy Discussion Limitations Conclusion References The Need for a Partial Defence of Diminished Capacity and the Potential Role of the Cognitive Sciences in Helping Frame That Defence Introduction Responsibility, Culpability and Fair Fault Ascription Blameworthiness and Hard Determinism The Current Situation: Determinism v. Free Will, Responsibility, Rationality and Blame Lessons from Neuroscience Juveniles, Responsibility and Blame Mental Disorder, Responsibility and Blame The Need to Recognize Diminished Capacity Conclusion Bibliography Coercion and Control and Excusing Murder? Introduction Recognizing Behavioural Excuses? Difficulties: Recognizing the Effects of Coercion and Control in Criminal Defences Coercion and Control as a Defence? Reform of the Partial Defences to Murder—The New Partial Defences Problems with Mitigating Responsibility for Murder Is Neuroscience Helpful in Providing an Objective Viewpoint? Problems with the Development of the Law Conclusion References Reading the Sleeping Mind: Empirical and Legal Considerations Introduction Reading the Sleeping Mind: Empirical Considerations The Polygraph Memory Detection Memory Detection During Sleep Reading the Sleeping Mind: Legal Considerations Introduction Material that Exists (In)dependent of the Will of the Suspect The Categorization of the Sleeping Suspect’s Guilty Knowledge The Categorization of the Biological Trace The Categorization of the Cognitive Trace Conclusion References ‘Brain-Reading’ in Criminal Justice and Forensic Psychiatry: Towards an Integrative Legal-Ethical Approach Introduction The Relevance of Brain-Reading for Forensic Psychiatry and Criminal Proceedings Central Issues in the Ethical and Legal Debate: Learning from Each Other Autonomy Confidentiality Trust Conclusion References Ethical Perspectives A Biopsychosocial Approach to Idiopathic Versus Acquired Paedophilia: What Do We Know and How Do We Proceed Legally and Ethically? Introduction Aetiology Neural Correlates Modus Operandi Possible Treatments Legal Implications for Punishment Idiopathic Paedophilia Acquired Paedophilia Ethical Implications Related to Treatment in Offenders with Idiopathic Paedophilia Conclusion References Three Rationales for a Legal Right to Mental Integrity Introduction The Appeal to Intuition The Appeal to Justificatory Consistency The Appeal to Technological Development Concluding Thoughts References Neurointerventions and Crime Prevention: On Ideal and Non-ideal Considerations Introduction Ideal Penal Theory and Non-ideal Penal Practice Current Use of Neurointerventions The Significance of the Ideal/Non-ideal Distinction for Ethical Theorizing Conclusion Bibliography Neuroscience and the Moral Enhancement of Offenders: The Exceptionally ‘Good’ Brain as a Thought Experiment Introduction The Source of Intractability: Philosophy not Neuroscience An Alternative View The Good Person Slightly Less Intractable for the ‘Good Person’ Implications for Enhancement of Offenders Conclusion Bibliography Retributivism, Consequentialism, and the Role of Science Introduction: Science and the Law Consequentialism Naturalized Retributivism Naturalized Conclusion: The Middle Way of Neurolaw References Index This edited book provides an in-depth examination of the implications of neuroscience for the criminal justice system. It draws together experts from across law, neuroscience, medicine, psychology, criminology and ethics, and offers an important contribution to current debates at the intersection of these fields. The volume examines how neuroscience might contribute to fairer and more effective criminal justice systems, and how neuroscientific insights and information can be integrated into criminal law in a way that respects fundamental rights and moral values. The book's first part approaches these questions from a legal perspective, followed by ethical accounts in part two. The authors address a wide range of topics and approaches: some are more theoretical, like those regarding the foundations of punishment; others are more practical, like those concerning the use of brain scans in the courtroom. Together, they illustrate the thoroughly interdisciplinary nature of the debate, in which science, law and ethics are closely intertwined. This book will appeal in particular to students and scholars of law, neuroscience, criminology, socio-legal studies and philosophy. Chapter 8 is available open access under a Creative Commons Attribution 4.0 International License via link.springer.com. Sjors Ligthart is PhD candidate in Criminal Law at Tilburg University, the Netherlands. Dave van Toor is Assistant Professor of Criminal Law at Utrecht University, the Netherlands. Tijs Kooijmans is Professor of Criminal Law at Tilburg University, the Netherlands. Thomas Douglas is Professor of Applied Philosophy and Director of Research and Development at the Oxford Uehiro Centre of Practical Ethics, Faculty of Philosophy, and Senior Research Fellow at Jesus College, University of Oxford, UK. Gerben Meynen is Professor of Forensic Psychiatry at Utrecht University and Professor of Ethics and Psychiatry at Vrije Universiteit Amsterdam, the Netherlands This book aims to contribute to the ongoing debate on neuroscience, justice, and security, by examining how neuroscience could contribute to fair and more effective criminal justice systems, and how both neurosci entific insights and information can be integrated into criminal law in a way that respects fundamental rights and moral values. The first part approaches these questions from a legal perspective, followed by ethical accounts in part two