Lotus reads and I have had an exchange in her comments and mine since I wrote on Capgras syndrome and she on alexia - my how neuroscience is in the news! She brought up the case of comedian Tony Rosato (links here and here) who defended the charges of harrassment against his ex-wife and their child with his diagnosis of Capgras. That made me think of a New York Times Sunday Magazine article from a few months back - The Brain on the Stand, in which Jeffrey Rosen discusses how neuroscience and the law are becoming more and more frequently intertwined.
Herbert Weinstein, a 65-year-old ad executive who was charged with strangling his wife, Barbara, to death and then, in an effort to make the murder look like a suicide, throwing her body out the window of their 12th-floor apartment on East 72nd street in Manhattan. Before the trial began, Weinstein's laywer suggested that his client should not be held responsible for his actions because of a mental defect - namely, an abnormal cyst nestled in his arachnoid membrane, which surrounds the brain like a spider web.
The implications of the claim were considerable, American law holds people criminally responsible unless they act under duress (with a gun pointed at the head, for example) or if they suffer from a serious defect in rationality - like not being able to tell right from wrong. But if you suffer from such a serious defect, the law generally doesn't care why - whether it's an unhappy childhood or an arachnoid cyst or both. To suggest that criminals could be excused because their brains made them do it seems to imply that anyone whose brain isn't functioning properly could be absolved of responsibility. But should judges and juries really be in the business of defining the normal or properly working brain?
Insanity pleas have been around for a long time, in fact, 19th century French law allowed a crime passionel, a sudden jealous rage, as a valid defense for the charge of murder. But it seems we are now having courts judge not only whether someone's state of mind made them do it - which our legal system has long asked juries or judges to decide as it is an unanswerable question, as certainty resides only with the accused (and sometimes not even they could say) - but questions around science itself, i.e. could a cyst make him do it. Does a delusional syndrome, a cyst, or a truly rotten childhood make someone act? Can they truly not help it? If a cyst is responsible is the person with the cyst not responsible? Does the cyst eliminate free will altogether? Just some of it? Just at certain times?
the trouble is he's crazy, the trouble is he drinks, the trouble is he's lazy, the trouble is he stinks...
...gee Officer Krupke, it's just our bringin' up-kee...
And is a jury of our peers really qualified to say - especially in a climate in which people are poorly educated enough to legislate the teaching of "intelligent design" in a science class (I'm not discussing its legitimacy, mind you, just its place in a science class), when people believe that their thoughts can be "read" by the electrodes placed on the surface of their scalps or even worse, when they fear that we could plant thoughts into their brains by such a devise (They can't). Now don't get me wrong, I know that the branch of science I'm getting into is highly technical and difficult to understand and that our knowledge of science has been muddied by access to a lot of really cool science fiction - but that's my point. And, frankly, neuroscience is a burgeoning field- and those working in it would be the first to tell you how much we DO NOT understand, So, while I'm troubled by the fact that courts are being asked to decide upon someone's future by interpreting their will, I guess in some ways we are all equally ignorant when it comes to someone else's intent and therefore the courts have to decide, because laboratories cannot. I hope those decisions will be made with a more and more solid understanding of the science of the brain but that that will be coupled with a reasonable modesty about what we don't know.
However, I'm even more troubled when courts are being asked to decide what must be determined by scientific process - like whether childhood vaccines cause autism, see my post on Cedillo v. Department of Health and Human Services. Granted we can't even agree on what autism actually is, but the most recent scientific evidence has clearly pointed us away from that explanation with well designed studies. Scientific causality needs to be determined with double-blind studies, as a result of rigorous and repeated hypothesis testing in laboratories, so that belief about outcome (known as experimenter bias) is reduced as much as possible. Having nothing but the belief be the determining factor is a grave error, it demonstrates a sad lack of understanding about how conclusions regarding causality in science are reached. Courts cannot and should not carry out this work.
Anyway... lots to think about. And in my ramblings I discovered The Project on Law and Mind Sciences for those of you wanting to think further about culpability, cysts, and our bringing up-kee.