At Mind Hacks we find an interesting link to a piece on “neurolaw” and the times it’s reasonable and times it’s not. I would note again that this can cut against offenders as well as for offenders once we start developing neural profiles of what a “violent” brain or “addictive” brain or “littering” brain looks like, so it’s not a defense attorney’s dream, even if they should probably be reading all these articles for ideas. Fortunately Adam Kolber at Neuroethics & Law is starting a journal on Neuroethics that sounds like it will provide a nice forum for these issues to be hashed out in. Here’s some of the good stuff from the Mind Hacks post:
Gerontologist and all-round skeptic Raymond Tallis has written an article for The Times where he laments the rise of 'neurolaw' where brain scan evidence is used in court in an attempt to show that the accused was not responsible for their actions.
Tallis cites the example of the trial of Bobby Joe Long where his lawyers tried to argue (unsuccessfully as it turned out) that he wasn't responsible for his crimes because brain scan evidence showed that he had an overactive amygdala (supposedly suggesting increased aggression) and underactive frontal lobes (supposedly suggesting reduced ability to inhibit aggression).
This, Tallis argues, is hardly evidence for diminished responsibility because it assumes that our brain is some sort of separate 'alien force' that is somehow not 'us', when we generally think of the brain as being synonymous with the self.
However, he goes on to cite the example of an epileptic seizure and argues that this is an example where we definitely can't say the person is responsible for twitching or losing consciousness.
One way of looking at the question is 'how responsible is the person for their actions', but another is 'what strength of urge do we think it is reasonable for a person to inhibit'.
Life experience, genetic factors, brain injury or any forms of neurological disturbance may make urges stronger or reduce our ability to inhibit them.
A serial killer may genuinely have reduced ability to inhibit violence urges, but at what point do we say that the effort they would have to make to stop them reacting violently is beyond what is considered reasonable or possible.