Behavioral & Neuroscience Law Committee (BNLC)

News and Research Blurb

Dear Readers,
I hope you enjoy reading the latest BNLC News and Research Blurb a digest of popular news and
research on the intersection of neuroscience, the behavioral sciences, and the law.
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Rachel Cannon
Eric Y. Drogin
BNLC Chair, Section of Science & Technology Law
Harvard Medical School
Boston, MA
877.877.6692
eyd@drogin.net
edrogin@bidmc.harvard.edu

Linda Berberoglu
BNLC Vice Chair, Section of Science & Technology Law
Fourth Judicial District Court,
Psychological Services Division
Minneapolis, MN
612.348.7182
linda.berberoglu@courts.state.mn.us
linda.berberoglu@wmitchell.edu

Rachel Cannon
Editor, BNLC News and Research Blurb
William & Mary Law School, 2014
Williamsburg, VA
845.820.8829
rmcannon@email.wm.edu

BNLC BlurbJune/July 2014

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JUVENILE ISSUES
Health Impact of Childhood Bullying Can Last a Lifetime. SCI. AM. It is still not clear how the experience
of being bullied in childhood translates into long-term health problems. A new study has found that
victims of bullying have high levels of a protein in their bloodstream that is associated with fighting
off an infection. This finding may help understand further the association between childhood
bullying victimization and poor health outcomes later. Research has consistently shown that young
victims of bullying show difficulties including symptoms of anxiety, depression and also conduct
problems and psychotic symptoms. Problems related to childrens mental health can persist even
after the bullying has stopped, sometimes up until mid-life. May 14, 2014.
http://tinyurl.com/qdjhzdx
DECISION-MAKING & RESPONSIBILITY
Free Will: Is Your Brain the Boss of You? Sci. Am. The free will debate has hit a very practical road in
the past decade: whether individuals who commit crimes are actually responsible for them. Lawyers
have argued in court that if the brain determines the mind, then defendants may not be responsible
for their transgressions. Michael Gazzaniga, director of the SAGE Center for the Study of Mind at
the University of California, Santa Barbara, is at the forefront of the research into free will, and its
implications in courtroom trials and in the expectations of different societies. His thoughts and
proclamations are captured in an engaging video called Free Will, the second in a series created
by Joseph LeDoux. June 30, 2014.
http://tinyurl.com/q6qfvzo
'Free Choice' in Primates Altered Through Brain Stimulation. Sci. Daily. When electrical pulses are applied
to the ventral tegmental area of their brain, macaques presented with two images change their
preference from one image to the other. The study is the first to confirm a causal link between
activity in the ventral tegmental area and choice behavior in primates. The ventral tegmental area is
located in the midbrain and helps regulate learning and reinforcement in the brain's reward system.
It produces dopamine, a neurotransmitter that plays an important role in positive feelings, such as
receiving a reward. Stimulating this region quickly changed primates preference, and permitted
researchers to also manipulate their altered preference back to the original favorite. May 29, 2014.
http://www.sciencedaily.com/releases/2014/05/140529142448.htm
What Happens to a Society That Does Not Believe in Free Will? SCI. AM. In July 2008 retired steelworker
Brian Thomas and his wife, Christine, drove their camper van to a small seaside village in Wales.
Disturbed by men on motorbikes performing loud stunts, the couple relocated to the parking lot of
a nearby inn. According to Thomas, later that night he dreamed that one of the bikers had broken
into the van. As he slept, he confused his wife with the imaginary biker and strangled her to death.
The next year a jury had to decide whether Thomas was guilty of murder. He had been prone to
sleepwalking since childhood, the jury learned. An expert psychiatrist explained that Thomas was
not aware of what he was doing when he choked his wife and that he had not consciously chosen to
attack her. Thomas went free. June 2014.
http://tinyurl.com/pldd2fh

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MENTAL ILLNESS & TREATMENT

Myth vs. Fact: Violence and Mental Health. PROPUBLICA. After mass shootings, the national
conversation often focuses on mental illness. So what do we actually know about the connections
between mental illness, mass shootings and gun violence overall? To separate the facts from the
media hype, ProPublica talked to Dr. Jeffrey Swanson, a professor in psychiatry and behavioral
sciences at the Duke University School of Medicine, and one of the leading researchers on mental
health and violence. Swanson talked about the dangers of passing laws in the wake of tragedy and
which new violence-prevention strategies might actually work. June 10, 2014.
http://www.propublica.org/article/myth-vs-fact-violence-and-mental-health
Abnormal Brain Structure In Youth Who Commit Homicide. NEUROIMAGE: CLINICAL. Violence that leads
to homicide results in an extreme financial and emotional burden on society. Juveniles who commit
homicide are often tried in adult court and typically spend the majority of their lives in prison.
Despite the enormous costs associated with homicidal behavior, there have been no serious
neuroscientific studies examining youth who commit homicide. Compared with incarcerated
adolescents who did not commit homicide, incarcerated homicide offenders had reduced gray
matter volumes in the medial and lateral temporal lobes, including the hippocampus and posterior
insula. Feature selection and support vector machine learning classified offenders into the homicide
and non-homicide groups with 81% overall accuracy. The results indicate that brain structural
differences may help identify those at the highest risk for committing serious violent offenses.
http://www.sciencedirect.com/science/article/pii/S2213158214000588
The Divide Over Involuntary Mental Health Treatment. NPR. The attacks near the University of California,
Santa Barbara, are renewing focus on programs aimed at requiring treatment for people who are
mentally ill as a way to prevent mass shootings and other violence. In California, a 2002 law allows
authorities to require outpatient mental health care for people who have been refusing it.
Proponents argue that this kind of intervention could prevent violent acts. But counties within the
state have been slow to adopt the legislation, and mental health professionals are divided over its
effects. So far, only two California counties Nevada County and Orange County have gone
forward with implementing Laura's Law. And the state hasn't allocated any funding to it. The
legislation is controversial. There are concerns that involuntary treatment could make mentally ill
people vulnerable to civil rights abuses. May 29, 2014.
http://tinyurl.com/q3xdmg2
The Isla Vista Shooter: This is Not the Autism Spectrum. THE ATLANTIC. In the interest of prevention in
the aftermath of the horrific killing spree in Isla Vista, the public is again looking to mental health
experts for a window into the state of mind of a mass murderer. It is doubtful that his true diagnosis
was high-functioning Aspergers syndrome, (a diagnosis which has been phased out and is
subsumed under that of autism spectrum disorder (ASD)). His behaviors are much more consistent
with malignant narcissism. Making the case for the inappropriateness of an autism spectrum disorder
diagnosis in Elliott Rodgers case is critically important to address the public misconception that
autistic individuals have an unusually high potential for violence. One in 68 children currently has a
diagnosis of ASD, so the potential for misplaced fear is great. In fact, people afflicted with autism
spectrum disorder are less prone to engage in any criminal behavior compared with the general
population. May 29, 2014.
http://tinyurl.com/pzmcc98
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The Tragedy of Raising a Killer. WASH. POST. How do parents contend with their own grief, the loss of
their son, while coming to terms with who he really was and what he did to the innocent? The
answer is that they never do. They are not allowed to by a public that looks for someone to blame.
They are expected to express contrition, to open their most private experience to scrutiny and they
do so willingly in the hope that this will somehow make amends for what they didnt prevent from
happening. Trying to find a way to let someone grow up is a struggle for these families. They will be
second-guessed about how they made these judgments for the rest of their lives. And they will have
to live with the knowledge that someone they loved wreaked the same sorrow that they are
experiencing on families who have lost their children. May 29, 2014.
http://www.washingtonpost.com/posteverything/wp/2014/05/29/the-tragedy-of-raising-a-killer/
Why Cant Doctors Identify Killers? N.Y. TIMES. Mass killers teach society all the wrong lessons about
the connection between violence, mental illness and guns and what we should do about it. One
of the biggest misconceptions, pushed by our commentators and politicians, is that we can prevent
these tragedies if we improve our mental health care system. It is a comforting notion, but nothing
could be further from the truth. And although the intense media attention might suggest otherwise,
mass killings when four or more people are killed at once are very rare events. In 2012, they
accounted for only about 0.15 percent of all homicides in the United States. Because of their horrific
nature, however, they receive lurid media attention that distorts the publics perception about the
real risk posed by the mentally ill. May 27, 2014.
http://tinyurl.com/p7okmbt
Don Corleone: Not a Nice Guy but No Psychopath. SCI. AM. Researchers interviewed 30 Mafiosi
incarcerated in Italy, and another 39 prisoners who were not involved in organized crime. The
inmates responses were then rated against a standard psychological test, called the Psychopathy
Checklist-Revised. None of the Mafia members scored higher than a 30, the generally accepted
threshold for psychopathy, and only 10 percent had scores that would classify them as moderately
psychopathic. Meanwhile, more than half of the non-Mafia men rated as either moderately or
severely psychopathic. Mafia membership was also associated with low substance abuse and high
family commitment. The study appears in Criminal Behaviour and Mental Health. May 21, 2014.
http://tinyurl.com/p7l2vrp
CONFESSIONS & INTERROGATION
The Reykjavik Confessions. BBC. This article seeks to unravel why six people admitted roles in two
murders - when they couldn't remember anything about the crimes. The methods of the Icelandic
police werent unique. They convinced themselves that a group of petty criminals on the fringes of
society were a gang of hardened killers. But they didnt find the evidence to back up their hunch,
they were left with just the confessions that were extracted after months of solitude and mental
torture. But this isnt just a tale of forced confessions or police brutality. Its still not known why the
people who found themselves in the cells could not decide if they did or didnt commit the crimes.
The effects still linger. May 15, 2014.
http://www.bbc.co.uk/news/special/2014/newsspec_7617/index.html

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TRIAL ISSUES
Can a Jury Believe What It Sees? N.Y. TIMES. LAST week the F.B.I., the Drug Enforcement
Administration and other federal law enforcement agencies instituted a policy of recording
interrogations of criminal suspects held in custody. Only a minority of states and local governments
have a similar requirement, but the new rule, which applies to nearly every federal interrogation, will
most likely spur more jurisdictions to follow suit. Its not far-fetched to think that such recordings
may soon become standard police practice nationwide. Supporters of the practice present recordings
as a solution for a host of problems, from police misconduct to false confessions. But while there
are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities
that make them useful their seeming vividness and objectivity also risk making them
misleading, and possibly even an inadvertent tool for injustice. July 13, 2014.
http://tinyurl.com/nbmsxvn
The Limitations and Potential of Neuroimaging in the Criminal Law. J. ETHICS. Neuroimaging is increasingly
being introduced in criminal court proceedings to argue that a defendant could not control his
behavior and should not be held responsible for it. But imaging has questionable probative value
because it does not directly capture brain function or a defendants mental states at the time of a
criminal act. Advanced techniques could transform imaging from a coarse-grained measure of
correlations between brain states and behavior to a fine-grained measure of causal connections
between them. Even if this occurs, bias and other attitudes may unduly influence jurors
interpretation of the data. Moreover, judges decisions about whether neuroimaging data is legally
relevant and admissible are normative decisions based on more than empirical evidence. Advanced
neuroimaging will better inform assessments of criminal responsibility but will not supplant or
explain away the psychological and normative foundation of the criminal law. June 2014.
http://link.springer.com/article/10.1007/s10892-014-9169-y
The Effect of Electrophysiological Neuroscientific Deception Detection Evidence on Juror Judgments in a Criminal
Trial. BASIC AND APPLIED SOC. PSYCHOL. There are concerns that if neuroscientific deception
detection evidence becomes admissible in court, jurors may weigh it inappropriately. We investigated
whether mock jurors were influenced more by electrophysiological than behavioral evidence that a
defendant in a criminal trial was lying. Participants perceptions of evidence quality predicted verdict
choice, and quality ratings were higher for neuroscientific than for behavioral evidence. However,
both types of evidence increased guilty verdicts similarly, and the inclusion of neuroimages had no
additional impact. These findings suggest that neuroscientific evidence may be processed differently
than other types of deception evidence, but it is not necessarily more persuasive. May 2014.
http://www.tandfonline.com/doi/abs/10.1080/01973533.2014.881288?journalCode=hbas20
SENTENCING & PUNISHMENT
Rikers: Where Mental Illness Meets Brutality in Jail. N.Y. TIMES. Brutal attacks by correction officers on
inmates particularly those with mental health issues are common occurrences inside Rikers,
the countrys second-largest jail, a four-month investigation by The New York Times found.
Reports of such abuses have seldom reached the outside world, even as alarm has grown this year
over conditions at the sprawling jail complex. A dearth of whistle-blowers, coupled with the
reluctance of the citys Department of Correction to acknowledge the problem and the fact that
guards are rarely punished, has kept the full extent of the violence hidden from public view. But The
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Times uncovered details on scores of assaults through interviews with current and former inmates,
correction officers and mental health clinicians at the jail, and by reviewing hundreds of pages of
legal, investigative and jail records. July 14, 2014.
http://tinyurl.com/q69acpz
Less Incarceration Could Lead to Less Crime. WASH. POST. More than 2 million American adults are
behind bars and nearly one of every 33 is under some form of correctional control either
incarcerated or supervised in the community. During Ronald Reagans presidency, the rate was one
in 77. Conservatives with backgrounds in law enforcement embraced the orthodoxy that more
incarceration invariably meant less crime, no matter the offense or the danger posed by its
perpetrator. But crime rates have been falling since the early 1990s, and a growing body of research
combined with the compelling results of reforms in many states prove it is time to adjust our
approach. June 19, 2014.
http://tinyurl.com/oluyduj
I.Q. Cutoff Ruling May Spare Some Inmates on Death Row. N.Y. TIMES. A Supreme Court ruling throwing
out Floridas strict I.Q. cutoff in death penalty cases could increase the number of inmates exempt
from execution because they are deemed mentally disabled. The decision, rejecting state policies that
make it possible to sentence prisoners to death even if their I.Q. scores fall one point above a
numerical cutoff, will require nine states to come up with new standards for determining which
inmates claiming mental disabilities can be sentenced to death. But, death penalty experts said, only a
small number of death row prisoners would qualify for new hearings. An estimated 10 to 20 inmates
could be eligible because an inflexible I.Q. test cutoff typically 70 was used to decide whether
they were too intellectually disabled to be executed. May 28, 2014.
http://tinyurl.com/ow3y473
Court Extends Curbs on the Death Penalty in a Florida Ruling. N.Y. TIMES. The Supreme Court has
continued a trend to limit capital punishment, ruling that Floridas I.Q. score cutoff was too rigid to
decide which mentally disabled individuals must be spared the death penalty. In the Hall decision,
Justice Kennedy said that closer supervision of the states was warranted given the nature of the
punishment. The death penalty is the gravest sentence our society may impose, he wrote.
Persons facing that most severe sanction must have a fair opportunity to show that the
Constitution prohibits their execution. Floridas law contravenes our nations commitment to dignity
and its duty to teach human decency as the mark of a civilized world. May 27, 2014.
http://tinyurl.com/nvxbg7z
Supreme Court Strikes Down Florida Law on Intellectually Disabled Death Row Inmates. Wash. Post. The
Supreme Court gave greater protection Tuesday to death row inmates seeking to prove they should
not be executed because they are intellectually disabled, and it ruled that laws such as those in
Florida and Virginia are too rigid. The court ruled 5 to 4 that state laws that draw a bright line on
IQ-test results are unconstitutional. Under those laws, an inmate who scores above 70 on the test
does not meet the first step of proving that he or she is intellectually disabled and thus ineligible for
the death penalty. Florida, Virginia and Kentucky have such laws, and a handful of others have
similar rules. May 27, 2014.
http://tinyurl.com/op5u589

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(Neuro)predictions, Dangerousness, and Retributivism. J. ETHICS. Through the criminal justice system socalled dangerous offenders are, besides the offence that they are being convicted of and sentenced
to, also punished for acts that they have not done but that they are believe to be likely to commit in
the future. The aim of this paper is to critically discuss whether some adherents of retributivism give a
plausible rationale for punishing offenders more harshly if they, all else being equal, by means of
predictions are believed to be more dangerous than other offenders. While consequentialism has no
problem, at least in principle, with this use of predictions most retributivists have been opponents of
punishing offenders on the basis of predictions. How can an offender deserve to be punished for
something that he has not done? April 30, 2014.
http://link.springer.com/article/10.1007/s10892-014-9167-0/fulltext.html
Criminal Rehabilitation Through Medical Intervention: Moral Liability and the Right to Bodily Integrity. J.
ETHICS. Criminal offenders are sometimes required, by the institutions of criminal justice, to
undergo medical interventions intended to promote rehabilitation. Ethical debate regarding this
practice has largely proceeded on the assumption that medical interventions may only permissibly be
administered to criminal offenders with their consent. In this article the author challenges this
assumption by suggesting that committing a crime might render one morally liable to certain forms
of medical intervention. He then considers whether it is possible to respond persuasively to this
challenge by invoking the right to bodily integrity. He argues that it is not. April 30, 2014.
http://link.springer.com/article/10.1007/s10892-014-9161-6/fulltext.html
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BNLC BlurbJune/July 2014

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