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Tuesday, August 19, 2014

Register Now for the International Neuroethics Society Conference!



November 13 & 14 in Washington, D.C. 





http://www.neuroethicssociety.org/




REGISTER before September 15 to receive a discount.

Learn more at www.neuroethicssociety.org





 The preliminary program can be found here.



Learn the latest on the United States National Institutes of Health BRAIN Initiative and the European Commission Human Brain Project. Hear about international case studies of neuroscience in the courtroom, discuss human rights in the neuroethics dialogue
AND engage in networking opportunities during breakfast, lunch and two receptions.



Speakers include NIH Directors, representatives from Congressman, co-director of the Human Brain Project and a representative from the US Presidential Commission for the Study of Bioethical Issues.






 



Public Event on November 13:
"Neuroscience Knowledge & the Robotic Mind."

We kick off our meeting with a thought-provoking public event on November 13 from 5 - 7 p.m. More details will be on the website soon.



All-day Annual Meeting on November 14: Confirmed speakers include




Check the website for updates www.neuroethicssociety.org 



Both events take place at the award-winning American Association for the Advancement of Science (AAAS) Building, 12th & H Streets, NW. Washington, D.C.

Space is limited!





**The Neuroethics Program will be offering a limited number of travel awards. Stay tuned for details!

Tuesday, August 12, 2014

Brain Imaging in the Courtroom: The Quest for Legal Relevance



By Stephen J. Morse, JD, PhD



Stephen J. Morse is Ferdinand Wakeman Hubbell Professor of Law, Professor of Psychology and Law in Psychiatry, and Associate Director of the Center for Neuroscience & Society at the University of Pennsylvania. He is also a board-certified forensic psychologist. His areas of expertise are criminal law, mental health law, and law and neuroscience. He is the recipient of the American Psychiatric Association’s 2014 Isaac Ray Award for distinguished contributions to forensic psychiatry and the psychiatric aspects of neuroscience. He is also a member of the AJOB Neuroscience editorial board.




What is the relevance to the law’s behavioral criteria of the “new” cognitive, affective and social neuroscience that has been fueled by non-invasive techniques for studying the brain? By behavioral criteria, I mean those that require evaluation of the subject’s acts and mental states. For example, did a defendant charged with homicide kill the victim intentionally? Brain imaging has always been admissible to answer questions about brain injuries and lesions that are medically well-characterized. In such cases, the image is directly relevant to the question of whether the plaintiff had an injury or lesion. In the behavioral cases, however, the imaging will be inferentially relevant and inherently more problematic.




The two basic questions about scientific or technical expert testimony are whether the testimony is scientifically or technically valid and even if so, whether it is legally relevant. In the rest of this blog, I will assume that any proffered expert testimony based on scanning is scientifically or technically valid. Also, I will use examples from the criminal law, but the analysis generalizes to behavioral criteria in the civil law, such as whether a person was competent to contract.




In short, the question is, “How, precisely, does the proffered scan or data based on scanning answer the specific legal question it supposedly helps answer?” I conclude that, at present, brain imaging has little relevance to behavioral legal criteria. The primary exception is cases in which the subject has a well-characterized brain abnormality, such as epilepsy, that may be probative of a legal question such as whether a criminal defendant’s harmful bodily movements were “acts” as the criminal law defines action.



The criteria for criminal responsibility are completely folk psychological—actions and mental states. Neuroscience is a completely mechanistic science. Neurons, neural networks, and the connectome do not have mental states such as intentions, they do not have a sense of past, present, and future, and they do not have aspirations. These are properties of persons. Is the apparent chasm between those two types of discourse bridgeable? Neuroscience eschews folk-psychological concepts and discourse (although, amusingly, much neuroscientific writing sounds very dualistic by suggesting that regions of the brain do things and that the brain and the self are often in a struggle). Thus, the task of translation from the science to the law’s folk psychological criteria will be hard.




The brain does enable the mind (even if we do not know how this occurs). Facts we learn about brains in general or about a specific brain could in principle provide useful information about mental states and about human capacities in general and in specific cases. The question is whether some concededly valid neuroscience is legally relevant because it makes a proposition about responsibility more or less likely to be true. Biological variables, including abnormal biological variables, do not per se answer any legal question because the law’s criteria are not biological. Any legal criterion must be established independently, and biological evidence must be translated into the criminal law’s folk-psychological criteria. That is, the advocate for using the data must be able to explain precisely how the neurodata bear on whether the agent acted, formed a required mental state, or met the criteria for an excusing or mitigating condition. If the evidence is not directly relevant, the advocate should be able to explain the chain of inference from the indirect evidence to the law’s criteria. At present, few data exist that could be the basis of such an inferential chain of reasoning (Morse & Newsome, 2013), but neuroscience is advancing so rapidly that such data may exist in the near or medium term.







From clbb.mgh.harvard.edu



A pressing concern is the value-added of imaging. A scan is relatively expensive and somewhat time-consuming. It thus has the potential for waste and delay unless there is genuine value-added. More important, legally relevant neuroimages must be based on good prior behavioral science that identifies clearly the behavior to which the brain structure or function will be correlated. This raises the problem of cumulation, the danger of unnecessary additional evidence that clutters the courts. For example, the law has treated adolescents differently from adults for centuries based on undoubted average behavioral differences between them. What does scanning data about incomplete brain maturity among adolescents add to what we already knew beyond some potentially causal information? It is unsurprising in light of the behavioral differences that there are brain differences, but would we believe adolescents are not behaviorally different if the current brain imaging data did not show a difference?




In individual cases where the behavior is clear, the imaging data will be cumulative and unnecessary. But, might not neuroscience be especially helpful in cases in which the behavioral evidence is unclear? The answer in principle is that of course it would be helpful, but, as a practical matter it will not be because the neurodata is based on correlations with clear behavioral data, a problem I call the “clear cut” issue. Where the behavior is unclear, the neurodata will not be sufficiently sensitive to help resolve the behavioral issue even if the neurodata can distinguish the already behaviorally clear cases.




The generally pessimistic conclusions I have reached concerning the relevance of imaging to behavioral legal criteria is unsurprising. Cognitive, affective, and social neuroscience, the sub-disciplines most relevant to law, are in their infancy and they work on one of the hardest problems in science—the relationship of the brain to mental states and action. Most of what we know generally is correlational and coarse rather than causal and fine-grained (Miller, 2010). Replications are few, so the data-base necessary to reach firm conclusions simply does not exist. These problems may be substantially ameliorated by advances in neuroscience.







From nextnature.net



Actions almost always speak louder than images. If the finding of a scan is contradicted by actual behavioral evidence, then we must believe the behavioral evidence because it is more direct and probative of the law’s behavioral criteria. For example, if an agent behaves rationally in a wide variety of circumstances, the agent is rational even if his or her brain appears structurally or functionally abnormal. In contrast, if the agent is clearly psychotic, then a potentially legally-relevant rationality problem exists even if the agent’s brain looks entirely normal.




If a biomarker were virtually perfectly correlated with a legal criterion and it was less expensive to obtain than behavioral data, the biological variable might be a good proxy for the legal criterion. But this would be possible only with clear, legal rules and not with vaguer standards, such as whether a reasonable person would be aware of a particular circumstance. The latter have an inevitable normative component for the decision maker to assess. Moreover, such markers are beyond present neuroscientific expertise.




I believe that many of the claims for the relevance of neuroscience are best characterized as “rhetorically relevant” than genuinely relevant. For example, advocates in capital punishment proceedings hope that the fetching images produced by “real” neuroscience will be more persuasive to decision makers than evidence provided by apparently more suspect social and behavioral science, even if the advocate cannot say precisely how the neuroscience bears on a genuinely mitigating or aggravating condition. Having a brain lesion or injury is not a mitigating or aggravating condition per se. The actual relevance of such brain abnormality evidence therefore requires an account of why the brain evidence makes it more likely that a genuine legally-relevant condition obtains.




There are promising, potentially legally relevant advances in neuroscience, such as an objective neural measure for pain, but for the most part, neuroscience is not yet ready for prime time in the courtroom.






References



Miller, G. 2010. Mistreating psychology in the decades of the brain. Perspectives on Psychological Science 5(6): 716-743.



Morse, S., and B. Newsome. 2013. Criminal responsibility, competence and prediction. In Primer on criminal law and neuroscience, ed. S. Morse and A. L. Roskies, 150-178. Oxford: Oxford University Press.






Want to cite this post?




Morse, S. (2014). Brain Imaging in the Courtroom: The Quest for Legal Relevance. The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2014/08/brain-imaging-in-courtroom-quest-for.html







Tuesday, August 5, 2014

Enhancement and Social Possibility

By Ross Gordon



In their recent paper on neuroenhancement, Brian Earp and his colleagues draw a distinction between “functional enhancement [and] enhancement of well-being,” arguing that the former, dominant construction cannot deal with the ways in which welfare is often enhanced by functional diminishment. On these grounds, the authors propose a “welfarist” paradigm, which defines enhancement as “any change in the biology or psychology of a person which increases the chances of leading a good life in a given set of circumstances.”



On one level, I think Earp's welfarist approach both clarifies debates about enhancement and usefully broadens the set of interventions that could be understood as “enhancing.” On another level, however, I think his discussion of welfare begs a set of far more crucial questions: namely, what does it mean to talk about a “good life,” what “given set of circumstances” exist, and what is the relationship between individual welfare and broader social structures?



In 2003, a controversial advertisement for cosmetic enhancement aired on Indian television. Depicting “a young, dark-skinned girl's father lamenting... his daughter's salary was not high enough,” the commercial suggests that the daughter “could neither get a better job or get married because of her dark skin.” The advertisement concludes with its recommended solution: Unilever's Fair & Lovely, a globally best-selling skin-whitening cream, will (the commercial suggests) increase the daughter's employability as well as her romantic success.



In this instance of purported non-neurological enhancement, the welfarist question appears as obscene. While it's certainly possible to imagine research into Unilever's claims – does Fair & Lovely really improve Indian women's employment prospects? Do Fair & Lovely consumers with newly lightened skin experience, on average, more romantic success? – what is crucial is not whether Fair & Lovely “really works,” but how such a commercial promotes a racial ideology1 that posits individuals with lighter skin as more beautiful, more credible, and more employable than individuals with darker skin. Suggesting a link between Fair & Lovely and increased individual welfare (e.g. employment) misses the point insofar as it isolates the question of “welfare” from this larger ideological structure.






From Brighter Brains

Enhancement and Welfare in Social Context 



What does this have to do with neurological enhancement? While neurological enhancement and (purported) cosmetic enhancement differ in significant ways, both are characterized by tension between short-term individual welfare and broader social structures and ideologies. In addition to the two questions that Earp considers in his paper – “does it enhance?” and “does it increase welfare?” – at least two more questions might help to address this tension. First, “what social conditions have led us to consider a particular intervention as enhancement?”; and second, “what social structures are enabled by the adoption of a given enhancement?”



These latter questions are deeply implicated in the the most popular forms of contemporary neuroenhancement: caffeine and alcohol consumption. On one hand, a general cultural emphasis on work and productivity incentivizes widespread caffeine usage as a means to increase focus and alleviate fatigue. On the other hand, the currently-existing social structure would not be possible without caffeine: coffee (and other stimulants) constitute a sort of invisible precondition for the everyday labor practices of finance professionals, medical school residents, academics, and oil rig workers. Similarly, alcohol use functions simultaneously as a ritualistic “unwinding” from stressful work environments and life situations, and as an enabling condition for social bonding rituals – office parties, fraternity pledging, military socialization, and so forth – that produce social arrangements which would not otherwise be possible.






From caffeineinformer.com



Conversely, substances which might conceivably be construed as “enhancement” are typically not discussed as such when their effects are inconsistent with dominant social values. Psilocybin mushrooms, peyote, ayahuasca, and ibogaine are variously used throughout world for their spiritual, religious, and community-enhancing properties. Ralph Metzner writes of the ceremonies surrounding such drug use:


“...folk religious ceremonies often involve fairly large groups of 20 to 40 participants, and in the case of the Brazilian hoasca churches several hundred... the primary focus is on group worship and celebration with singing and prayer... An important social function of these religious ceremonies is to strengthen community bonds and give members a sense of participation and belonging.”

Crucially, these ritual “enhancement” practices also invert the contemporary American dynamic; where stimulants produce effects consistent with high-productivity capitalist culture, hallucinogens are often deployed for precisely the opposite purpose:


“As has been noted by some anthropologists, a further societal function of these churches is to provide a protective shield of traditional lore against the encroachments of Christian missionaries and the seductions of Western consumer culture in general.”

Debates about enhancement, then, are not simply about – as Earp suggests – interventions which “increase the chances of leading a good life in a given set of circumstances.” Rather, neurological interventions, pharmacological or otherwise, simultaneously call into question what it means to live a “good life,” and influence this “set of circumstances” itself.



“Enhancement” or “productivity enhancement?”



 It is no coincidence that the productivity-enhancement and stress-reduction enhancements typically associated with coffee and alcohol consumption tend to underpin debates about neuroenhancement in general. In fact, nearly every example of enhancement in Earp's paper speaks to one of these values:


“...we see articles asking whether non-invasive brain stimulation should be used to enhance learning... students taking Ritalin to improve focus... ergogenic drugs to stay awake during late-night surgery... enhancements in executive function and self-control, concentration, or of our ability to cope with stressful situations...”

At the same time, even the (potentially) welfare-enhancing interventions characterized by Earp as diminishment (“diminishment of wartime memories; diminishment of harmful love; diminishment of ill-directed lust”) are categorized as such precisely because of their capacity to attenuate emotive threats to productivity. Such assumptions regarding what constitutes “the good life” are neither neutral nor insulated from more nefarious appropriations. There is a disturbingly straight line between some examples in Earp's paper and the stuff of dystopian fantasy. For instance, it is suggested that:


“...too much empathy might drive a person to prioritize attending to others' feelings over meeting her own basic needs... Williams (1989) has hypothesized that among helping professionals, high emotional empathizers may be disposed to earlier career burnout.”

Taken to its logical conclusion, this statement is as obscene as the injunction to increase one's employability via skin-whitening: there is a real danger that the “enhanced” individual coming into view is a light-skinned, non-empathetic, highly-productive Adderall user. Without an analysis of the social and cultural values that produce such ideologically-charged visions, “post-enhancement” humanity risks literally etching its contingent value system onto the materiality of the human brain.



Democratizing Enhancement 



Earp's discussion of welfarism is motivated, at least in part, by a desire to clarify the basis on which decisions about neuroenhancement can be made. A neuroethics which takes its ethical mandate seriously, however, should refuse this question: the more pertinent question is who makes decisions about which enhancements count as “welfare-enhancing,” and on what grounds these decisions are made. Neurological intervention holds the capacity to fundamentally alter both human self-understanding and human social and political possibility. For this reason, determinations of welfare should not be left to medical or policy experts any more than assessments of Fair & Lovely should be left to dermatologists and biochemists.



This is not to dispute that experts will inevitably reach provisional conclusions regarding which enhancements are acceptable and which are not, and that these conclusions will manifest in both a legal infrastructure and a set of social norms. The ethical response to such expert decisions, however, is not to accede to them, but to contest the authority of the decision-makers themselves while asserting alternative interpretations that stem from particular social positions and cultural analyses. Academics are always faced with a prior question: what kinds of problems should we investigate? To pursue questions about welfare “in a given set of circumstances” serves to both legitimate technocratic enhancement decisions and to obscure the larger social context in which they are made.



A democratized enhancement discourse would not insist on any final verdict regarding particular neuroenhancements, but recognize neural modifications as socially-embedded tools which open up certain social possibilities while constraining others. Drugs' capacity to open up the horizons of human possibility – from the Eleusinian Mysteries to the antidepressant revolution – have always factored crucially into their social use and social control. A democratic neuroethics should defend these open possibilities against attempts to subsume neurological modifications under a single interpretive lens.



[1] I don't mean to reduce racial ideology here to the issue of skin tone alone: clearly, such ideologies are both complex and diverse. Unilever's marketing strategy, however, as well as the commercial success of its product, evidence the way in which whit(er) skin tone is often associated with beauty and credibility.






R, Gordon. (2014). Enhancement and Social Possibility. The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2014/07/enhancement-and-social-possibility.html