AAAS and the Dana Foundation join on "Neuroscience and the Law: Brain, Mind and the Scales of Justice"

The debate over free will in humans has engaged philosophers for two millennia, but with the emergence of neuroscience in the past 30 years, researchers have begun to develop tools that someday may be able to closely gauge the relationship between our intentions and our actions. Though the tools today are relatively primitive, some experts are already predicting that coming advances in neuroscience will bring a profound impact on our criminal justice system.

Now AAAS and the Dana Foundation are offering a new book, "Neuroscience and the Law: Brain, Mind and the Scales of Justice," a detailed survey of the issues that are beginning to occupy modern-day philosophers, medical researchers and legal experts. As science becomes adept at assessing the brain for signs of dishonesty, potential violence or addiction, they say, it is important that society begin to plan for the legal and ethical implications ahead. [Order the book here.]

"The law evolves slowly, but breakthroughs in science can develop more quickly. Beginning a dialogue now better prepares everyone—scientists, lawyers, and society as a whole—to understand and use coming advances in neuroscience in a responsible way," says attorney Brent Garland, editor of the book, and senior program associate in AAAS's Scientific Freedom, Responsibility and Law Program. "The book begins a public dialogue on this topic in a concrete, focused, and science-based way. While ethics issues and neuroscience had been discussed previously at some meetings both here and abroad, this is the first effort of which I am aware that focused specifically on legal aspects."

Garland attended a hearing of President George W. Bush's Council on Bioethics on 9 September, at which Chairman Leon R. Kass acknowledged the new book in his opening remarks and thanked AAAS and Dana for providing copies. Professor Stephen J. Morse, contributor to the book and an expert in psychology and the law at the University of Pennsylvania, made a presentation to the council on the topic of personal responsibility and neuroscience. Another contributor to the book, Michael S. Gazzaniga, director of the Center for Cognitive Neuroscience at Dartmouth University, currently sits on the council.

Neuroscience is the study of brain development and functioning, from cellular and molecular neurobiology to systems of sensation, perception and memory, and including various diseases and disorders of the brain and nervous system. In many ways, the study of neuroscience involves research into the nature of consciousness.

"Neuroscience and the Law" is the outgrowth of a September 2003 forum at the Dana Center in Washington D.C. Over a day and a half, a panel of 27 experts in science, medicine and law discussed how the emerging field of study might have an impact on criminal justice, the courts and ethics in decades ahead. [Garland's extensive summary of the forum can be viewed here.]

The panelists generally rejected the notion that developments in neuroscience would fundamentally reorder legal systems or the broader social fabric, as suggested in sci-fi novel-turned-movie "Minority Report." Still, they agreed that the impact could be significant.

One example given considerable scrutiny by the panel: How monitoring and imaging the brain may allow reasonably reliable predictions of behavior, or of the capacity for certain behaviors, such as violence or sex crimes.

Courts already use predictive studies in plea bargaining and sentencing. "In each of these examples," Garland wrote in his summary, "the courts must weigh future risks, including the likelihood of recidivism, against other societal and pragmatic concerns (such as prison overcrowding)." But what happens when advanced tests discover a person's predisposition to violence or sex crimes, but when the person has committed no crime?

Other issues will arise as neuroscience is used to detect the truthfulness of a suspect or a witness to a crime, or to detect bias in a witness or a juror. "To what extent do we, as a society, wish to judge people based on what we perceive they are thinking rather than what they say or do?" Garland writes. "This is not a trivial matter; it is near the core of our justice system that we reward people, punish them, or hold them responsible for their actions, not for their thoughts (or potential actions)."

Meanwhile, the panelists said, developments in neuroscience will teach us to enhance the function of our brains. But volatile social and ethical questions will emerge if only some people have access to those enhancements while others do not.

"Current neuroscience developments hold great promise for improving our understanding of disease and behavior and eventually reducing human suffering," writes Mark S. Frankel, director of AAAS's Scientific Freedom, Responsibility and Law Program, in the book's foreword. "But they also carry the danger that they will be misused in ways that may thwart human potential, unfairly deny benefits to those in need, or threaten long-standing legal rights."

"The Dana Foundation has a long standing interest in neuroscience and fosters its involvement through research grants and outreach programs which help the public understand what is happening in brain research," said foundation President Edward F. Rover. "We believe that neuroscientists should be part of the dialogue as society looks at the ethical questions being raised as new advances in brain research are brought forward. I believe that neuroscientists can help the legal system understand the facts and fantasies about the research. In other words, what is possible, what is probable, and what is unlikely. The foundation sees itself as a vehicle to foster interaction and to help experts become part of the process of informing the public."

In addition to a distillation of the forum written by Garland, the new book also features four papers written by panelists:

• "Free Will in the Twenty-first Century: A Discussion of Neuroscience and the Law," by Gazzaniga and Megan S. Steven, a neuroscientist at the University Laboratory of Physiology at the University of Oxford;
• "Neuroscience Developments and the Law," by Dr. Laurence R. Tancredi, an attorney, psychiatrist and clinical professor of psychiatry at the New York University of School of Medicine;
• "Prediction, Litigation, Privacy and Property: Some Possible Legal and Social Implications of Advances in Neuroscience," by Henry T. Greely, a lawyer, C. Wendell and Edith M. Carlsmith Professor of Law at Stanford School of Law, and co-director of the Program in Genomics, Ethics and Society at Stanford University; and
• "New Neuroscience, Old Problems," by Morse, a psychologist, lawyer and the Ferdinand Wakeman Hubbell Professor of Law at the University of Pennsylvania School of Law.

— Edward W. Lempinen

5 October 2004