Greely Farahany 2019 Neuroscience and The Criminal Justice System

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Annual Review of Criminology
Neuroscience and the Criminal

Justice System
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Henry T. Greely1 and Nita A. Farahany2

Annu. Rev. Criminol. 2019.2:451-471. Downloaded from www.annualreviews.org
1
Stanford Law School, Stanford University, Stanford, California 94305-8610, USA;
email: hgreely@stanford.edu
2
Duke University School of Law, Duke University, Durham, North Carolina 27708, USA
Annu. Rev. Criminol. 2019. 2:451–71 Keywords

First published as a Review in Advance on neuroscience, neuroimaging, evidence, prediction, recidivism, treatment
October 24, 2018
The Annual Review of Criminology is online at Abstract

criminol.annualreviews.org
The criminal justice system acts directly on bodies, but fundamentally it
https://doi.org/10.1146/annurev-criminol- cares about minds. As neuroscience progresses, it will increasingly be able to
011518-024433
probe the objective, physical organ of the brain and reveal secrets from the
Copyright c 2019 by Annual Reviews. subjective mind. This is already beginning to affect the criminal justice sys-
All rights reserved
tem, a trend that will only increase. This review article cannot begin even to
sketch the full scope of the new field of law and neuroscience. The first work-
shop on the subject was held in 2003 (Garland 2004), but the field already
has its own casebook ( Jones et al. 2014) and the MacArthur Foundation Re-
search Network on Law and Neuroscience (2018) shows more than 1,700
publications in the area between 1984 and 2017. Greely (2009) divided the
implications of law into five different categories: prediction, mind-reading,
responsibility, treatment, and enhancement. This article examines only three
points: the current use of neuroscience to understand and explain criminal
behavior, the possibilities of relevant neuroscience-based prediction, and
plausible future applications of neuroscience to the treatment of criminals.
But first, we discuss the human brain and how it works.
451
THE BRAIN
The human brain may be the most complicated physical object we know of in the universe (Greely
& Wagner 2011). It weighs about three pounds and contains roughly one trillion cells, approxi-
mately 85 to 90 billion neurons, and another 900 billion or more other cells, largely cells classified
as glia. The neurons communicate with each other through releasing and picking up molecules
of particular chemicals called neurotransmitters at the points, called synapses, where the neurons
(almost) meet. These neurotransmitters sometimes cause the receiving neuron to fire, sending an
electrical impulse down its length where it may or may not cause the release of another batch of
neurotransmitters.
At its simplest, the brain is divided into three parts: the brain stem, the cerebellum, and the
cerebrum. The cerebrum is greatly enlarged in humans compared to other animals and is respon-
sible for our greater intelligence. It is divided into a left and right hemisphere, each of which
has four lobes: frontal, temporal (side), parietal (top), and occipital (back). The brain has hun-
dreds of smaller subdivisions, each with its own idiosyncratic name. Some functions are highly
localized in one brain structure, others are distributed over the whole brain, and many structures
have more than one function. For example, the visual cortex is essential for vision, memories
seem to be spread over the entire cerebrum, and the amygdala (sometimes called the home of the
fight-or-flight response) reacts to, or possibly creates, many different strong emotions.
The current revolution in neuroscience is fundamentally the result of a revolution in tools.
For most of the history of brain science, the autopsy has been the most useful tool. Since the
1990s, magnetic resonance imaging (MRI) has allowed scientists to look inside a living human
brain without injuring it and both observe its individual structures, down to a several-millimeter
resolution, and use functional MRI (fMRI) to infer what areas of the brain have and have not worked
in response to particular stimuli. New tools are the main goal of the US BRAIN Initiative (2018;
Greely & Wagner 2011, pp. 761–76). The result is that we know roughly infinitely more about
how the human brain functions today than we did 30 years ago—and probably know effectively
nothing compared with what will be known in 30 more years. This sense of onrushing knowledge
largely drives the interest in law and neuroscience.
THE CURRENT USE OF NEUROSCIENCE TO UNDERSTAND

AND EXPLAIN CRIMINAL BEHAVIOR
In a state of inexplicable and uncontrollable rage, Sheila Berry picked up a large cinder block
during an argument with a friend and used it to bash her friend to death (Commonwealth v. Berry
2014). Eight months later, in March 2003, Berry had a brain tumor surgically removed. Hospital
records spanning from 1990 to 2003 showed that as the tumor had grown, Berry’s rage and
agitation grew increasingly worse. After the tumor was removed, Berry’s behavior drastically and
almost immediately went from erratic and uncontrollable to submissive and docile. Her tendency
to become enraged just went away.
Several years later, a Massachusetts jury found Berry guilty of first-degree murder on a theory
of extreme atrocity or cruelty. At trial, an expert testified that a midline tumor on the vernix,
where Berry’s tumor had been located, was most apt to cause problems with behavior, behavioral
dyscontrol, disinhibition, and aggression. On appeal, the Massachusetts Supreme Court reversed
her conviction, but a 2011 jury again convicted Berry of first-degree murder. Three years later, the
Massachusetts Supreme Court decided the case once and for all by holding that it was a miscarriage
of justice to hold Berry responsible for first-degree murder. The court was convinced that her
longstanding mental illnesses, combined with the tumor on her cerebellum, gave rise to unusual
circumstances that made a “verdict of murder in the second degree more consonant with justice.”
452 Greely · Farahany

The claims raised by Berry—that her brain tumor helped explain her behavior and reduced
her own moral culpability for her conduct—are no longer particularly unusual but are among the
many ways neuroscience is being used in the criminal justice system. Nor is the winding path of
her case, as courts and jurors grapple with the relevance of neuroscience to criminal responsibility
and punishment. Neuroscientists often decry the use of neuroscience in criminal law, with many
calling for an outright ban on its use (Reardon 2015). This is in part because neuroscientists are
concerned about the premature use of neuroscience in the courtroom to make grave decisions
about liberty and punishment based on nascent science. Furthermore, the complex behavioral
traits at issue are difficult to study and quantify and as a result difficult to replicate in other studies
(Kendler & Eaves 2005). Although it is certainly legitimate to worry that the premature use of
neuroscience could undermine the legitimacy of criminal trials and the progress of science itself
by its inappropriate application, the data below make plain that neuroscience is entrenched in the
US legal system. And often, the nature of the science being introduced and the context of its use
is not what many neuroscientists believe. Used appropriately, neuroscience holds the promise of
improving decision-making in law.

This discussion focuses on one particularly controversial use of neuroscience: to understand
and explain criminal behavior and, in particular, its use by criminal defendants to explain why they
committed a crime. We examine the extent of this use, the kinds of arguments neuroscience is
used to make, and, finally, the case outcomes.
First, though, it is worth noting that more than 90% of criminal cases in the United States
are resolved through plea bargaining between a prosecutor and criminal defendant and never
go to trial (Lynch 2003). To date, there is no evidence that neuroscience has been used in any
case during the pretrial plea-bargaining process, although it has been reported anecdotally to
sometime change the charges that prosecutors bring (Rosen 2007). Court-appointed financial re-
sources are necessary for most defendants to undertake neuropsychiatric testing, but these become
available only when a case is going to trial. Without the funds or resources for testing, many crim-
inal defendants may plea bargain unaware of the potential use of neuroscience in their defense.
The Extent of Criminal Defendants’ Use of Neuroscience

Over the past decade, hundreds of criminal defendants in the United States introduced a defense
best characterized as “their brains made them do it.” More than 2,800 judicial opinions from 2005
to 2015 (see Figure 1) discuss criminal defendants using neuroscience as part of their criminal
500
judicial opinions
400
Homicide (capital)
Number of
300 Homicide (noncapital)

Other felony
200
100
0
2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Year
Figure 1
Judicial opinions discussing the use of neuroscience by a criminal defendant in a US criminal case between
2005–2015. The number of capital cases, noncapital homicide cases, and serious felony cases in which
neuroscience has been used by a criminal defendant has consistently increased over the study time period.
www.annualreviews.org • Neuroscience and Criminal Justice 453

defense. These opinions reveal some emerging trends about the growing use of neuroscience in
the criminal courtroom.
Farahany and her team selected the legal opinions coded for this study from the Westlaw
legal database. Westlaw’s inclusion criteria for judicial opinions are proprietary, unpublished, and
may have changed during the study time period. These variations may account for some of the
year-to-year differences in the number of opinions discovered. Furthermore, the cases contained
therein are primarily appellate opinions, as trial opinions at the state level are often jury verdicts
without a written judicial opinion. Consequently, the opinions coded may reflect defendants’
failed attempts at using neuroscientific evidence at trial, failure by defense counsel to investigate
or introduce neurobiological evidence at trial, or newly discovered evidence on appeal. The sample
may be skewed toward defendants who have already fared poorly in the criminal justice system
with their claims.

To better understand the claims at issue, consider an analogy. Some people, even knowing
the health risks associated with sugar, consume a significant amount of sugar per day (Frayling
et al. 2018). For some of these individuals, a genetic contribution from the FGF21 genes may help
explain this behavior, as they appear to be correlated with higher consumption of sugar intake
per day. Suppose then, some people go on a sugar binge and we discover they have the high-
sugar-consumption FGF21 variation. Are they responsible for their sugar binge? What if they are
also diabetic and therefore know there are significant and dangerous consequences to their sugar
binge? Can we say that their genes made them binge on sugar? Can the knowledge about the
consequences of their binge, i.e., it may lead to insulin shock or coma, deter their sugar binge?
Would we instead say that their genetic contribution to sugar consumption is just one of the
many influences on behavior, leaving robust room for free will? The neuroscience-based claims
offered by defendants in the criminal justice system present a similar conundrum. How should the
criminal justice system respond to neurological contributions to criminal behavior?
Genes, like variations in brains, correlate with behavior. But influences on the behavior, from
genetic or brain variations, are not the same as determinants of behavior. There are also other and
often competing internal and external influences on behavior. Different neurological variations
may have different implications for human behavior, but most do not rob an individual of their
capacity to choose their own actions. Nevertheless, how do we address the mounting evidence
that behavior, like nearly all other traits, distributes across a normal spectrum? Some people have
more constraints on their behavior and ability to conform their conduct to the law than others
do, and for many of these people, they have underlying genetic or neurological abnormalities that
contribute to those difficulties.
Year after year, more and more criminal defendants are using neuroscience to bolster their
claims of decreased responsibility for their criminal conduct and decreased moral culpability
relevant to their sentencing (see Figure 1) (For a detailed discussion of the methodology, see
Farahany 2016). In this discussion, neuroscience evidence includes medical history (such as the use
of past medical records or a medical history of head injuries or brain damage), neuropsychological
testing (through interviews, batteries of testing, or evaluation of the defendant), brain scanning of
the defendants, or claims that a defendant suffers from brain or head injury. In recent years, nearly
10–12% of all US murder trials and 25% of death penalty trials have featured criminal defendants
making a bid for lesser responsibility or lighter punishment using neurological evidence. What
started as a trend driven by the introduction of neuroscience in capital sentencing has progressed
over time across the board in serious felony cases. Although the trend still represents only a
narrow subset of criminal cases relative to the number of felony criminal charges and convictions
per year, from drug trafficking to fraud a substantial number of criminal defendants are relying on
neuroscience to try to mitigate their responsibility or punishment for their criminal wrongdoing.

judicial opinions 1000

900
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Number of
700
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Most serious charge in case
Figure 2
Most serious felony charge in a criminal case when neuroscience raised by a criminal defendant in 2005–2015. The range of felony
charges in which neuroscience is introduced in a criminal case is broader than first-degree (Murder 1) capital and noncapital cases,
second-degree (Murder 2) noncapital cases, and other forms of homicide. The most serious felony charge in many cases is child abuse,
kidnapping, fraud, drug possession, theft, assault, or other serious felony offenses.
Although these claims often overstate the science, used responsibly neurobiological evidence has
the potential to improve accuracy and decrease errors in the criminal justice system.
In the majority of these cases (roughly 60%), the most serious charge against a criminal defen-
dant is some degree of homicide (i.e., first-degree capital, first-degree noncapital, second-degree,
felony murder, all other homicide). Contrary to popular belief, the use of neuroscience in the
courtroom is far from limited to death penalty cases where the charge is first-degree deliberate
homicide. In 2015, those cases made up only about 20% of the opinions discussing the use of
neuroscience by a criminal defendant. In approximately 40% of cases, the most serious charge was
a felony other than homicide. There is a steadily increasing and diversifying trend of using neuro-
science in criminal cases when a criminal defendant is charged with a serious felony crime. In the
sample of opinions discussed here, 40% of judicial opinions now address the use of neuroscience
in serious felony cases across a range of felony charges (see Figure 2).
This sample likely underrepresents the prevalence of neuroscience-based evidence used in
criminal cases due to the methodological barriers of studying the use of neuroscience in the
criminal courtroom (for a detailed methodological discussion, see Farahany 2016).
Only approximately 10% of judicial opinions discuss the use of brain scanning by criminal
defendants. A large proportion of cases (nearly forty percent) do not discuss specific neurological
testing in the opinion but rather discuss the neuroscience claims in more general terms about brain
abnormalities or head injuries; however, even those defendants who do not introduce specific
neurological testing equally stake their defense in part on claims that their brain made them do it.
Context for the Introduction of Neuroscience Evidence

Looking at the nature of the claims raised when neuroscience is introduced by a criminal defendant
(see Figure 3), the majority of claims are brought on appeal in the guise of ineffective assistance of
counsel for failure to introduce neuroscience as mitigating evidence at trial. Another substantial
and growing portion of cases pertain to the defendant’s competency (e.g., to stand trial, to plead
guilty, to waive rights, etc.), challenge the defendant’s mental state at the time the crime was
committed, support an excuse (e.g., intoxication, insanity), or argue that the defendant acted
involuntarily at the time the crime was committed.

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Aggravation
Toll
Other
Mental
retardation
Type of claim
Insanity
Involuntary
Excuse
Mental
Competency
Ineffective assistance
of counsel
Mitigation
0 200 400 600 800 1000 1200 1400 1600

Number of unique opinions with claim raised
Figure 3
Type of claim raised when neuroscience evidence is introduced by a criminal defendant, 2005–2015. A claim
is the form the defense took, such as a request for equitable tolling; substantiation of mental retardation or
an insanity defense; arguing that the defendant acted involuntarily or without the necessary mental state, that
the defendant lacks competency, has a legal excuse, or was given ineffective assistance of counsel.
Neuroscience can also be used as mitigating evidence during sentencing.
Evidence from neuroscience is reinvigorating an academic, legal, and societal debate about
why we punish individuals who commit crimes. Do we punish because defendants deserve societal
condemnation and segregation for their acts of wrongdoing? Do we punish to protect society
against dangerous criminals? And if so, would this goal be better served by rehabilitating and
reintegrating into society those who commit crimes? Although neuroscience cannot answer these
philosophical questions for us, it can provide empirical evidence about human behaviors that are
relevant to these discussions (Greene & Cohen 2004). At issue is how we as a society view just
punishment and whether neuroscience may shed light on the moral blameworthiness of criminal
defendants.
Although neuroscience may help to inform normative discussions about the penological goals
of the criminal justice system and how to best realize them, neuroscience may tell us far less
about whether any individual defendant is deserving of punishment. Neuroscience may help us
understand the general predispositions and behavioral proclivities of a person, but it cannot yet
tell us what a person was thinking, feeling, intending, or experiencing at the time of the crime.
Many scientists object to the use of neuroscience in the courtroom because it cannot answer these
difficult questions about a suspect’s behavior at the time a crime was committed. In addition,
neuroscience cannot answer the legal question of whether a defendant is responsible for a crime.
Nevertheless, neuroscience is now deeply embedded in sentencing decisions.
Developmental neuroscience, which has shown that adolescents have developing brains that
make conforming with the law more difficult than it is for adults, has been the empirical basis for
recent constitutional prohibitions against the execution or life imprisonment of juveniles (Graham
v. Florida 2010, Miller v. Alabama 2012, Roper v. Simmons 2005). And the use of neuroscience in
sentencing in cases of adult criminals also continues to rise over time. The use of neuroscience as
part of the criminal trial has become such an integral part of serious felony offense cases that courts
have found trial counsel to have performed deficiently at trial because they failed to investigate a
defendant’s probable neurological abnormality, even though defendants rarely prevail otherwise
on such claims.

Approximately 25% of neuroscience-based claims discussed in judicial opinions from 2005–

2015 were attempts to mitigate sentencing. Because of the procedural posture of many of these
cases as appeals from an unfavorable ruling at the trial level against the criminal defendant, the
claims are often raised in the context of challenging the effectiveness of trial counsel for failing to
introduce neuroscience (at all or adequately) into the sentencing proceedings. For ineffective assis-
tance of counsel, a defendant must show that his trial counsel acted “below an objective standard of
reasonableness,” and there was a reasonable probability that, but for counsel’s unprofessional er-
rors, the outcome of the case would have been different (Strickland v. Washington 1984). Defendants
can rarely establish both prongs. But it is notable that judges have already found that failing to inves-
tigate a reasonable probability of a brain abnormality constitutes ineffective assistance of counsel.
For one example, Anthony Curtis Moore was convicted of two counts of murder in the first
degree after suffocating to death his two children (Moore v. Wallace 2013). After an initial failed
appeal, the defendant filed for a writ of habeas corpus, claiming (among other things) that he
received ineffective assistance of trial counsel because his trial counsel failed to call an expert
witness to testify that he had a bilateral frontal subdural hematoma, discovered via CT scanning
of his brain just after he committed the criminal acts. Had such testimony been introduced, he
argued, the neuroscience would have supported the psychiatric testimony introduced at trial that
he was suffering from a mental illness when he killed his children.
The court rejected Moore’s claim on appeal, finding that it failed to satisfy the constitutional
test for ineffective assistance of counsel. In particular, the court found that his trial counsel was not
deficient for failing to introduce the neuroscience-based evidence since his trial counsel introduced
other expert psychiatric testimony at trial. There was no prejudice because the defendant did not
produce evidence that a “neurologist would have testified that the hematoma, which apparently
did not appear on later performed CT scans, influenced either his mental state or his actions on
the day in question.”
Not all cases turn out this way. Quite a few cases have instead found trial counsel deficient
for failing to introduce evidence of relevant brain damage and cognitive disorders at trial. For
example, Jerry Ray Davidson was found to have raped and murdered a woman whom he offered
to give a ride home to from a bar (Davidson v. State 2014). Her body was found several weeks later
but her head was never recovered. Davidson was convicted of kidnapping and first-degree murder
and sentenced to death in Tennessee.
Before trial, Davidson spent 27 days in a mental health institution where he was psychologi-
cally observed, tested, and underwent brain-scanning that showed he suffered from brain atrophy,
and abnormal electrical activity in his brain, which interfered with his executive functioning and
ability to control his behavior. Despite this extensive testing, at trial and during capital sentencing,
Davidson’s trial counsel introduced limited mitigating evidence from his mother, coworkers, and
minister. The jury sentenced Davidson to death without the benefit of hearing any neuropsy-
chological testing results. Davidson filed a petition for postconviction relief arguing that he had
received ineffective assistance of counsel at trial. The Tennessee Supreme Court agreed, finding
that his trial counsel was ineffective for failing to give the jury any mitigating information regard-
ing Davidson’s intellectual and cognitive deficits. His death sentence was vacated and remanded to
the trial court for a new capital sentencing hearing. Outcomes like Davidson’s are putting defense
counsel on notice that they perhaps should introduce neuroscientific evidence at trial, lest their
performance be found lacking, leading to the wider introduction of neuroscience in sentencing.
Another growing area is the use of neuroscience in evaluations of whether a defendant has
the competency to understand the proceedings against him. This appears to be one of the more
successful uses of neurological evidence in criminal trials. Competency to stand trial is a constitu-
tional protection embedded in the US legal system to ensure that criminal defendants receive due

process of law and a fair trial. Fundamentally, competency evaluations are designed to ensure that
criminal defendants understand the criminal charges against them, appreciate the consequences of
a trial, including criminal punishments at stake, are able to communicate and assist their attorneys
in their defense, and understand the nature of the proceedings against them (Dusky v. United States
1960). If a defendant is found to be incompetent, proceedings are suspended while the defendant
is treated until (or if ) their competency is restored (Roesch et al. 1993).
Although competency to stand trial is most commonly argued, competency in the criminal
trial process encompasses all stages of participation in the legal process, including pretrial, trial,
sentencing, and appeals (Golding & Roesch 1988). The data here reveal the frequent use and rise
over time of neuroscience to challenge defendants’ competency during criminal proceedings. In
13% of neuroscience-based claims raised in the study sample, defendants argued that something
unique about their brains rendered them incompetent to proceed during the criminal case. Defen-
dants challenged their competency at all stages of the proceedings, including their competency to
have waived the right to counsel when questioned by the police, to have pleaded guilty to a crime,
to stand trial, and to be sentenced, and even as a basis for equitable tolling when they fail to file
their appeals in a timely manner. Of those claims, most challenged the defendants’ competency
to stand trial. A smaller but increasing proportion of claims challenge the defendant’s compe-
tency to have waived his rights, to plead guilty, or to have confessed to the crime or crimes at
issue.
In one illustrative case, US v. Stanford (2011), an expert witness testified during a pretrial
competency hearing that the defendant suffered from delirium—an organic brain syndrome—that
prevented him from adequately assisting his attorneys to prepare his defense. Additional expert
testimony opined that the defendant had some form of delirium caused by either the defendant’s
addiction to the medications he was taking or perhaps soft tissue damage, a result of an earlier
head injury. On the basis of this evidence, the defendant was found incompetent to stand trial
because of an inability to assist in his own defense.
In other cases, courts have set aside guilty pleas previously entered by defendants and remanded
cases for evidentiary hearings on claims of competency to enter a guilty plea (Arseneau v. State
2012). Claims to withdraw a guilty plea still largely fail, but it is interesting to note the extent
to which these claims about competency are being grounded in neurobiology. This is an area to
watch to see whether couching these issues as brain disorders will have a differential effect on case
outcomes.
Neuroscience evidence has been considerably less helpful in determining whether a defendant
has committed a crime, which turns on whether the defendant acted voluntarily and with the
requisite mental state for the crime. To convict someone of a criminal offense in the United
States, prosecutors have to prove defendants acted voluntarily, with a specified mental state (such as
purposely or with reckless disregard of the consequences) at the time they committed the criminal
offenses. Voluntariness has a very narrow meaning in US criminal law. The state is entitled to
a presumption that a criminal defendant acted voluntarily, and only when that presumption is
effectively challenged by the defense does it become a contested issue in law. There are extremely
narrow grounds upon which a defendant can challenge the presumption of voluntariness that are
generally limited to something akin to a reflex or a convulsion rather than an impairment on
voluntariness (Am. Law Inst. 1962a, Farahany 2016).
Mental state is more frequently challenged in criminal law, both with and without neuro-
science. Because the degree to which a criminal defendant acted purposely, knowingly, recklessly,
or negligently is often disputed in criminal cases, it is unsurprising that neuroscience is increas-
ingly introduced by criminal defendants to challenge the degree of intentionality with which the
defendant acted.

The use of neuroscience to challenge the voluntariness of conduct and the mental state with
which the criminal defendant acted remains deeply controversial. It is difficult, if not impossible,
to know from neurological testing whether a defendant was acting voluntarily or with the requisite
mental state at the time that they committed the crime. This is in part due to the retrospective na-
ture of neurological testing, often being conducted weeks, months, or years after a crime was com-
mitted. It is also a limitation of current neuroscience—it can give us general information about how
behavior varies across a population with particular types of brain abnormalities, but it cannot tell us
the extent to which one individual’s brain abnormalities explain some or all of his or her behavior.
Defendants argued their neurobiology made them act involuntarily in only about 4% of the
cases. Typically, this involved a claim of involuntary conduct following the voluntary ingestion of
drugs or alcohol. These claims largely fail. But quite a few criminal defendants argue that some
sort of brain abnormality or head injury prevented them from forming the necessary intent to have
committed a crime. Consider Eugene H. Ward, a criminal defendant, who was found guilty of
two counts of second-degree murder along with vehicular manslaughter (he had a blood alcohol
content of 0.08%), among other related charges (Ward v. Barnes 2014). His primary defense
was that a “significant preexisting brain injury, combined with alcohol, negated the mental state
required to convict him of second degree murder” (Ward v. Barnes 2014). In support of his claim,
he introduced expert testimony by a physician who described a positron emission tomography
(PET) scan of the defendant’s brain that revealed “‘a profound abnormality of the front lobe,’
which is the part of the brain involved in judgment, awareness of the consequences of one’s
actions and the ability to regulate improper impulses” (Ward v. Barnes 2014). The expert testified
that the abnormality, together with the alcohol that the defendant had consumed, “would result
in a profound inability or impairment to judge or weigh the consequences of one’s actions” (Ward
v. Barnes 2014). The jury returned a verdict of second-degree murder, thereby rejecting the claim
that Ward could not form the necessary intent for the crime. The appellate courts that reviewed
Ward’s claim agreed that the jury was free to reject the expert testimony and decide based on the
circumstantial evidence presented at trial that the defendant had the requisite state of mind to
commit second-degree murder.
More direct dialog between neuroscientists and legal professionals could better inform both
groups about how concepts like voluntariness and mental state differ in both law and science,
which could lead to more responsible testimony by neuroscientists in criminal cases about the
(ir)relevance of neurobiological evidence to these determinations. Greater engagement by leading
neuroscientists in the legal process would substantially improve both judges’ and jurors’ under-
standing of the promises and limitations of science in answering some of these vexing questions
in criminal law.
Case Outcomes When Neuroscience Evidence Is Introduced

Criminal defendants rarely succeed in appealing their conviction or sentence. During the years
2011–2015, only about 5–6% of criminal defendants succeeded in gaining a reversal of a trial
court decision in a US Federal Court of Appeals (US Courts 2016). Cases in which neuroscience
is discussed in a judicial opinion seem to fare better than that, although it is difficult to quantify
the extent to which neuroscience is impacting the outcome versus other evidence introduced on
appeal. Neuroscience is rarely the only evidence discussed as part of a criminal appeal, so the effect
of the neuroscience evidence compared to other evidence can be difficult to disaggregate. Never-
theless, across all cases in which neuroscience was discussed in a judicial opinion in 2005–2015,
approximately 20% of criminal defendants had some favorable outcome in the case—whether it
was, for example, a new evidentiary hearing, a reversal, or a granting of extension of time to file.

60
Cases with a favorable ruling

for criminal defendant (%)
50
40
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Figure 4
Case outcome for criminal defendants by nature of the neuroscience-based claim raised. The plus sign means
some positive outcome for the criminal defendant. The case outcome does not necessarily turn on the
neuroscience; the defendant could have achieved a favorable outcome based on some other claim introduced
during trial that was not neuroscience related.
In breaking down that data further by the nature of the claim raised when neuroscience was
introduced, and whether it was a capital or noncapital case, some interesting trends emerge (see
Figure 4). For most claims, whether a capital or noncapital case, the divide between favorable
and unfavorable outcomes is roughly 20% favorable to 80% unfavorable. But there are a few
exceptions. Capital defendants seem to fare better with claims of ineffective assistance of counsel
than noncapital defendants. This is driven by more successful claims by criminal defendants about
the deficiency of trial counsel to introduce neuroscience as part of their mitigation strategy for
capital sentencing. Criminal defendants are also far more likely to succeed on a claim for equitable
tolling in a capital case than in a noncapital case.
The use of neuroscience evidence in criminal cases is increasing steadily and has become a
mainstay of capital cases and other serious felony cases. This trend is likely to continue over
time as judges and lawyers become more sophisticated about the science and as the neurological
underpinnings of human behavior and mental illnesses continue to be discovered. With some
courts finding that it is ineffective assistance of counsel to fail to introduce relevant neuroscience
evidence during trial, it is clear that neurobiological evidence, in one form or another, is becoming
well established in our criminal justice system.
NEUROPREDICTION IN CRIMINAL JUSTICE

Neuroscience, often in tandem with genetics, offers the prospect of being able to diagnose or
predict a person’s brain-based states, whether neurological disease, mental illness, or behaviors.
Today, this promise remains largely but not entirely unfulfilled, but more research, and particularly
the development of new and better tools, should steadily and substantially improve the accuracy
of these efforts. These capabilities will affect criminology in two ways, both providing useful
general medical information about an individual and, more specifically, predicting future violent
or criminal behavior. Each raises important issues.

General Brain-Related Prediction

Knowledge of general brain problems, existing or likely, could be useful in criminal investigation,
prosecution, and sentencing. Either as a predictor of future behavior or as strong evidence for a
medical reason for present behavior, tests for the presence or likelihood of, for example, a dementia
or a motor disease, like Parkinson’s disease, might affect decisions about whether (and how) to
prosecute and what kind of sentence (or custodial facility) is appropriate.
Already, various forms of neuroscience-based methods can detect abnormalities in the brain
associated with a disease or predictive of its future occurrence. Brain conditions associated with
Alzheimer’s disease, frontotemporal dementia, and schizophrenia, for example, can already be
seen on neuroimaging. At this point, those brain abnormalities are not (yet) sufficiently strong
to make a diagnosis without behavioral confirmation, but they may still be useful, especially in
possibly identifying malingering, i.e., feigning that an illness is the cause of odd behaviors.
To some extent, these are the specific kinds of neuroscience evidence discussed in the previous
section as evidence of competence. Consider, for example, mafia boss Vincent “the Chin” Gigante,
who delayed his trial for years by feigning Alzheimer’s disease (Raab 2005). In Alzheimer’s disease,
a person has two different kinds of protein buildup in his or her brain: amyloid plaque and tau
tangles. Each can now be directly imaged using PET scans. A person acting demented but lacking
amyloid plaque or tau tangles might have another type of dementia but does not have Alzheimer’s
disease. But a person with plaques or tangles could be malingering, as some people with those
conditions maintain normal mental abilities.
Progress in this approach has been surprisingly slow. In the mid-1990s, as psychiatrists were
planning the fifth revision of the Diagnostic and Statistical Manual of Mental Disorders (DSM; Am.
Psychiatric Assoc. 2013), they expected to have brain-based, physical diagnostic indications for
most mental illness by its completion. Instead, when finally published in 2013, almost no such
markers had been confirmed (Am. Psychiatric Assoc. 2013, Rieger et al. 2011). Yet progress
seems inevitable. Almost anything medical researchers find to be connected to mental illness or
neurological disease might provide ways to improve prediction.
Predictions of Criminal Behavior

More obviously relevant to criminology is neuroscience that predicts future criminal behavior.
A few cases exist where these predictions can be strong. The best example is Brunner syndrome
(OMIM 2018). In this condition, affected individuals (always male) engage in criminal behavior,
including sexual aggression, violence, and arson and also have below average intelligence (OMIM
2018). It is caused by the absence of a functioning version of a particular gene, MAOA, found
on the X chromosome. The effect is strong, but the nonfunctioning gene version (or allele) is
extremely rare, and thus so is the syndrome. Cases have been identified only in four families: the
Dutch family that led to the discovery of the condition (Brunner et al. 1993a,b) and, several years
later, one family in France (Piton et al. 2014) and two in Australia (Palmer et al. 2016).
A much more common variation of the MAOA gene, one that has either a shorter or a longer
version of the promoter region of the gene, has also been linked to criminal behavior, but more
weakly. In a widely discussed 2002 paper, Avshalom Caspi, Terrie Moffitt, and others used a
long-term longitudinal study of approximately 1,000 men in New Zealand to see if these two
genetic variants correlated with violent behavior (Caspi et al. 2002, Fergusson et al. 2011). Men
with the lower activity variant (the shorter version) were more likely to have criminal records, but
only if they had suffered abuse as children. And even then, the differences, although statistically
significant, were small.

Where genetics has not been widely useful, neuroscience may be able to do better in two
specific ways. First, some researchers believe that neuroimaging can help identify individuals who
are psychopaths. Second, those researchers, and others, believe neuroimaging can improve the
prediction of recidivism.
Little if anything about psychopathy is not controversial, including whether to call it psychopa-
thy or sociopathy (Kiehl & Hoffman 2011). Psychopaths are noted for their lack of empathy for
or consideration of others as well as their grandiose self-image and easy and frequent lying. The
condition is not recognized in the DSM V (Am. Psychiatric Assoc. 2013) or its predecessors but has
been widely studied, particularly by Canadian scientist Robert Hare. Hare’s name is given to the
20-question, interview-based diagnostic test, the Hare Psychopathy Checklist-Revised (PCL-R)
(Hare 2003). Each question is worth zero, one, or two points, so the scores can range from zero
to 40. The normal range is in the upper single digits; there is no obvious cutoff in the smooth
tail at higher scores but various scores between 24 and 30 have been suggested as diagnostic of
psychopathy.
Convicts with a diagnosis of psychopathy are much more likely to recidivate than those without
(Gaudet et al. 2016, pp. 510–11).
Within one year of release from prison, high-PCL-R scorers are three times more likely to commit a
violent crime than are low scorers. Within ten years of release, over 70% of high-PCL-R scorers who
have a history of violence will commit another violent offense. Within twenty years of release, longitu-
dinal studies suggest that as many as 90% of high-PCL-R scorers who have a history of violence will be
rearrested for a violent crime. The recidivism rate for low-PCL-R violent offenders is approximately
40%.
One problem with using the PCL-R to judge recidivism risk is that some psychopaths learn
to lie on the test and thus can sometimes avoid being diagnosed. Researcher Kent Kiehl has
diligently looked for neuroimaging markers for psychopathy, largely to understand the condition
and possibly find ways to prevent or treat it. He believes he can detect signs of psychopathy in
a person’s fMRI tests. These may then serve simultaneously as markers of the current condition
of psychopathy as well as predictors of future crime. Kiehl’s assessment of the brain deficits and
imaging markers involved in psychopathy have been criticized in work by Joshua Buckholz and
others (Baskin-Sommers et al. 2016, Hosking et al. 2017).
The diagnosis of psychopathy is limited to adults, at least in part because younger people may
not have had the time to acquire some of the experiences, such as multiple marriages, that are
part of the PCL-R. Neuroscience evidence might be able to predict which adolescents, or even
children, will eventually be diagnosed with psychopathy and, in that way, perform a predictive
function that could be useful in the juvenile justice system.
Psychopathy, although not rare, is not common. About one percent of American males are
thought to be diagnosable as psychopaths (not all of whom will ever run afoul of the law) (Babiak
& Hare 2006). Approximately 16% to 20% of all male prisoners are thought to be diagnosable as
psychopaths based on the PCL-R (Kiehl & Hoffman 2011). More general systems of predicting
future criminal behavior, and especially recidivism, would be useful.
Individualized methods, ranging from a judge’s or juror’s prediction based on seeing and hear-
ing the defendant to complex clinical assessments by psychologists or psychiatrists, have long been
used with uncertain results. More recently, researchers have developed various actuarial systems.
These systems are based on long-term studies of actual offenders and use statistical methods to
develop risk predictions based on certain fixed factors. Those applying the systems cannot vary the
factors or their weighting for individual cases. Two decades of research have demonstrated that

these systems perform better than clinical assessments and individualized assessments by judges
or jurors (Monahan et al. 2001). Examples include the Classification of Violence Risk (COVR),
Violence Risk Appraisal Guide (VRAG), Oxford Risk of Recidivism (OxRec), and Oxford Men-
tal Illness and Violence (OxMIV) and, for recidivism risk among sexual offenders, Static-99 and
Static-2002. Some of them are now widely used in criminal justice systems. Clinical and actuarial
methods are combined in so-called structured clinical judgment tools, some of which, such as
HCR-20 (Historical Clinical Risk Management-20), have been shown to be useful.
In addition to these actuarial or hybrid clinical-actuarial systems, recent work, notably con-
ducted by Kiehl and his group, has shown that both structural MRI and fMRI can be used to predict
recidivism (Gaudet et al. 2016). Kiehl’s work has taken advantage of an unparalleled collection of
MRI scans of prisoners, mainly from prisons in New Mexico and Wisconsin. Scanning prisoners
for research purposes has long been expensive and difficult because it required transporting the
prisoner to a hospital or research facility with an MRI scanner. Kiehl, with the cooperation of the
New Mexico government, scanned prisoners throughout New Mexico in situ using a “portable”
MRI machine, which had to be moved in a semitruck and required days of intensive setup at each
location (Miller 2008).
Kiehl claims to be able to determine recidivism risk using both structural and fMRI to a degree
that is both statistically significant and, in an absolute sense, substantial (Aharoni et al. 2013). The
structural work has focused on brain areas that are known to change over time. The offender’s
age is a major component of the various actuarial systems. Kiehl and his group claim their work
shows that the brain age, as revealed by structural MRI, is an even better predictor than actual age
(Kiehl et al. 2018).
The fMRI studies focused on the regions of the brain known to control, and limit, impulsivity.
Kiehl’s group looked particularly at the activation of the anterior cingulate cortex (ACC), a large
brain region known to be importantly involved in human error monitoring and hence behavioral
regulation. They found that inmates with low ACC activation were four times more likely to be
rearrested for a (nonviolent) crime than inmates with high ACC activation (Aharoni et al. 2013).
What does this all mean for the role of neuroscience, and particularly of MRI and potentially
other forms of neuroimaging, in predicting various kinds of future criminal behavior in particular
populations? A group from the MacArthur Foundation Research Network on Law and Neuro-
science considered just that question in a recent publication: “Predicting Violent Behavior: What
Can Neuroscience Add?” (Poldrack et al. 2018). This piece concludes that neuroprediction could
play a useful role in assessing violence but warns of limitations in current research and sets out
some principles for future research in the area. These include preregistration of any studies, their
validation (not only in the abstract but when measured against existing behavior-based assess-
ments), and the use of large study populations. The authors note that two recent predictive tools,
OxRec and OxMIV, were validated using samples with 47,326 and 75,158 people, respectively.
Issues Arising from Neuroprediction

The criminal justice system wants to predict the future state of mind, or behavior, of people
caught up in it for many reasons, ranging from competence to stand trial to responsibility for
the crime and treatment upon conviction. Prediction is both necessary and ubiquitous for all but
most cut-and-dried systems. We are far from the science fiction future of predicting, with great
accuracy, specific crimes by specific people, but some broad predictions on the nature of risk
classification may be in sight. That kind of neuroprediction is at least somewhat different from
existing predictive methods in two ways: It is both novel and a black box, i.e., its results cannot be
readily intuited by criminal justice personnel.

These differences could lead some people, e.g., judges, jurors, and attorneys, to give too great
a weight to these “scientific” methods, making rigorous proof of accuracy especially important.
The evidence for overvaluation of neuroscience evidence by mock jurors is surprisingly mixed.
Some studies found a strong effect with mock jurors much more willing to believe as true anything
presented as neuroscience, but other careful studies have not found such an effect (Brown &
Murphy 2010, McCabe & Castel 2008, Weisberg et al. 2008; but see Schweitzer et al. 2011). It may
be appropriate in this kind of situation to abandon case-by-case consideration of the admissibility
of scientific evidence, under either the Daubert or Frye tests used for that purpose, in favor of
some broader national or state assessment, either government- or organization-sponsored, either
with legal force or as effective guidelines.
Apart from the general validity of any neuroscience prediction, care must always be taken to
determine whether the general test applies to the individual who is its subject. Age, disability, drug
use, and other factors need to be considered along with any neuroscience evidence, just the same
as they need to be considered when using the actuarial predictors, to ensure that the right test is
used for the right person (Whelan & Garavan 2014). One aspect of this that deserves attention is
whether the neuroscience methods inadvertently embed some improper racial or other categories.
Which uses of neuroprediction are appropriate must also be considered. Its use, if validated,
for things like prison assignment or probation decisions would seem uncontroversial. Its use as
(some) evidence of guilt or as a justification for some kind of preventive detention would raise very
strong concerns. Perhaps somewhere between would be its use for civil commitment of mentally ill
people predicted to be dangerous by these methods (almost certainly in conjunction with clinical
and actuarial methods).
DIRECT BRAIN INTERVENTIONS IN TREATING CRIMINALS

As we learn more about how the brain functions, it becomes more plausible to consider direct brain
interventions to treat criminals by reducing either their proclivities or their abilities to commit
future crimes. Consider this stark hypothetical. Assume a brain surgery has been shown to be safe
and to prevent certain criminal activity in 80% of its subjects compared with the more usual rate
of nonrecidivism of about 30%. Should a court (assuming legislative authorization) be able to
sentence a convicted defendant to brain surgery? Or to give the convict a “free choice” between
30 years in prison and brain surgery? This kind of scenario has received some but not much
examination (Berryessa et al. 2016, Chandler 2011, Douglas 2014, Douglas et al. 2013, Greely
2008, Greely 2012, Klag et al. 2005, Shaw 2012, Shniderman & Solberg 2015; the two Greely
articles form much of the basis for this discussion). And yet, as recently as July 2018, a report
of an experiment using transcranial direct current stimulation to lower aggressive intentions was
published (Choy et al. 2018) and received substantial press attention (Begley 2018, Morris 2018,
Nutt 2018).
Past Discussion of Direct Brain Interventions to Treat Criminal Behaviors

The first winner of the Hugo Award for best science fiction novel was The Demolished Man by
Alfred Bester (Bester 1953). In a world with mind-reading telepaths, crime was rare but serious
crime was punished, or treated, with “demolition.” This process reduced a person’s mentality to
that of a young child and then rebuilt it along more law-abiding paths.
The novel has no details about the process, but it was published in the heyday of American use
of the prefrontal lobotomy, a time, in the title of Elliot Valenstein’s (1986) excellent book on the
period, of Great and Desperate Cures. We have been able to find no record of a court ordering a

lobotomy as part of a criminal sentence but found one report of a case where a judge allowed a
lobotomy on a defendant before trial, at which the defendant was still convicted (Mayer 1948). It
seems likely that at some point a prosecutor told a defendant, or perhaps a defendants’ parents,
that charges would be dismissed if he received this “modern” treatment.
The lobotomy fell from grace in the 1950s, as its side effects became more widely noticed and,
perhaps more importantly, as the first generation of antipsychotic drugs offered alternatives for
the severely mentally ill. It fell into disgrace later, in the 1960s and 1970s, as part of a backlash
against many kinds of psychiatric interventions, exemplified by the novel (Kesey 1962), and its
film adaptation (Forman 1975), One Flew Over the Cuckoo’s Nest and the mental illness-denying
work of Dr. Thomas Szasz. The title of Szasz’s first book on the subject captured his views nicely:
The Myth of Mental Illness (Szasz 1961).
The late 1960s saw great discussion of controlling minds, either of individuals or groups,
through drugs, aversive therapies [made famous in another book and movie, A Clockwork Orange
(Burgess 1962, Kubrick 1972)], or the insertion of electrodes, most dramatically to divert a charging
bull (CNN 1985). Two federal appellate cases, both in 1973, concerned alleged use of aversive
therapy on prisoners (Knecht v. Gillman 1973, Mackey v. Procunier 1973). Valenstein describes
this era well in his 1973 book Brain Control (Valenstein 1973; see also Smith & Berlin 1978).
But this surge of interest and concern ultimately passed without any real impact, at least in part
because the methods proved neither safe nor effective. The possibility of unwilled criminal acts
being “forced” upon an unwilling subject through hypnosis was taken seriously enough that the
1962 Model Penal Code contains a section stating that conduct under hypnosis or resulting from
hypnotic suggestion are not voluntary acts and hence are not culpable (Am. Law Inst. 1962b).
These ideas of brain control then disappeared from mainstream discussion. The seventies left
behind some new laws to protect those with mental illness from involuntary “treatments,” such
as California’s landmark Lanterman-Petris-Short Act (Cal. Welf. Inst. Code §§ 5000, et seq.).
Psychosurgery was used to intervene in a reported handful of cases of severely violent and disturbed
individuals, mainly outside the United States (Fountas & Smith 2007), including researchers in
both China and Russia who experimented with psychosurgery to treat drug addiction (Hall 2006).
It may be worth noting that although the idea of this kind of control has receded from main-
stream discussion, it continues and perhaps grows as a subject of concern to people who believe
they are being controlled by various outside forces using mental weapons. At least some of them
have begun organizing under the term “targeted individuals” (McPhate 2016). That they are
delusional does not negate their very real unhappiness (Tan 2018).
Current, Less Direct Brain Intervention to Treat Criminal Behavior

We are not using direct brain interventions to treat criminal behavior but for the past two decades
we have, without paying it much attention, run an experiment with a less direct form of brain
intervention, so-called chemical castration. As discussed in John Stinneford’s (2006) excellent
article on the subject, California passed the first mandatory chemical castration act in 1996 (Calif.
Penal Code §6 45). Within a decade, seven more states had followed it or variations of it: Florida,
Georgia, Iowa, Louisiana, Montana, Oregon, and Wisconsin. No new states have been added to
that list in the last twelve years, although bills to require it are still introduced in state legislatures
from time to time (Murphy 2018). The method is also used in other countries, including the
Czech Republic, Belgium, Denmark, Germany, the Netherlands, Norway, Poland, Switzerland,
and, more recently, Moldova, Estonia, South Korea, and Indonesia (Cochrane 2016).
In the United States, chemical castration uses a female contraceptive called medroxyproges-
terone acetate (MPA), usually in its long-acting form, known commercially as Depo-Provera. This

drug inhibits the production and effects of testosterone (and for that reason is often used as part of
the treatment for hormone-responsive prostate cancer). It makes erections and ejaculation more
difficult but it also (usually) substantially reduces a man’s sex drive, as men’s brains contain re-
ceptors activated by testosterone. The drug does not physically change the brain but by changing
the amount of available testosterone, it changes the way the brain works. How well that actually
changes behavior is unclear. Studies of the effects of chemical castration on sex offender recidivism
are small and show widely varying results (Douglas et al. 2013, Stinneford 2006).
In spite of the mandatory nature of the treatment, very few convicted criminals, at least in the
United States, receive chemical castration. Coverage of the recent Oklahoma bill noted that only a
few people received the drug in California and only one each in several of the other states (Murphy
2018). Physicians are reluctant to prescribe the drug for this purpose. The Food and Drug Admin-
istration (FDA) has never approved it for such a use, but only as a female contraceptive and at much
lower doses. It can have serious side effects, including bone demineralization. And the American
Medical Association has opposed any physician participation in court-initiated treatments that are
a “form of punishment or solely a mechanism for social control” (Am. Med. Assoc. 1998).
Prospective Direct Brain Interventions to Treat Criminal Behavior

As brain research continues, the chances that it will lead to safe and effective treatments for at least
some criminal behaviors will increase. Researchers will continue to try to understand how the brain
works, largely for the purpose of preventing or treating some brain dysfunctions. New discoveries
with existing tools, and newer discoveries with still newer tools, will expand the treatable behaviors
to some kinds of criminal behavior. The temptation to use those tools may become quite strong.
Drugs, vaccines, neuromodulatory devices, and surgery are four possible applications, each the
subject of intense biomedical research. Drugs might be developed to allow people to, for example,
restrain impulsive behaviors, which could help people reduce their criminal actions. Vaccines
are being developed to prevent people from experiencing any attractive effects of drugs of abuse.
Neuromodulation to stimulate or repress neuron activity has been used for decades but has mainly
been effective when electrodes are implanted in the brain. Researchers are working on external
neuromodulation, using electricity, magnetism, ultrasound, and other methods that would almost
certainly be easier, cheaper, and safer than implanting electrodes. Surgical interventions could
also make a return through precise targeting of specific brain regions implicated in the unwanted
behavior. (Because destroying part of the brain seems irreversible, these interventions are likely
to require strong proof of effectiveness and safety before they are used.)
A fifth category deserves more attention: mind reading. Increasingly, scientists are able to
“decode” brain contents, using neuroimaging to correlate physical aspects of the brain with per-
ceptions, intentions, or even thoughts. Some of the most startling work comes from Jack Gallant, a
Berkeley professor whose group has used fMRI images to both recreate video images subjects were
watching (Bilenko & Savage 2016, Gallant 2011) and determine the categories of the subjects’
thoughts (Huth et al. 2016).
Current MRI-based approaches are not great threats to privacy because they require subjects
to lie very still and follow directions closely while spending an hour in an expensive machine. But
researchers are working on easier, cheaper, faster ways to do neuroimaging, from better use of
the cheap electroencephalograph to nanoparticle-sized neurodust. The possibility at some future
date of detecting deception, criminal intent, or, indeed, criminal thoughts cannot be dismissed.
All of the technologies discussed above feel like science fiction, but these possible new ways to
treat, or detect, or control criminal behavior would only be secondary uses of technologies being
driven by our powerful urge to prevent and treat brain diseases.

Issues Arising from Direct Brain Intervention to Treat Criminal Behavior

Assume that some of the above approaches come to seem plausible. What questions should worry
us? Two seem particularly important: Is an intervention effective and safe and what is the role of
consent?
Nothing justifies ineffective interventions. And even otherwise effective interventions could
well be inappropriate if they had serious safety problems. How would we know whether such
interventions are, in fact, effective or safe? Drugs, biological products, and medical devices usually
can only be marketed if they have been approved by the FDA as safe and effective for a particular
intended use. Once the FDA has approved such a product for any use, it is generally legal, under
federal drug and device law, for a physician to use it for any purpose, whether the one for which it
was approved (on-label use) or something entirely different (off-label use). This is true even though
FDA approval follows from weighing, based on clinical trial data produced by the company seeking
approval, the balance between benefit and risk for that product for the specific indication for which
approval was requested. But once approved for any indication, the off-label-use doctrine allows a
doctor to authorize its use for any purpose. The exact extent of off-label use in the United States
is not known but estimates for particular disease or patient groups range from more than 20% to
nearly 80% (Wittich et al. 2012). Medical procedures that are not using any novel products, which
includes most neurosurgery, do not require any FDA approval, although they may be limited by
medical malpractice concerns.
Some of the plausible interventions for criminal behavior may be off-label uses of FDA-
approved treatments (such as MPA for chemical castration or MRI for thought detection). These
could be used to treat criminal behavior without any further FDA action. Still other interven-
tions, such as brain surgery, would not normally involve the FDA at any stage. Those direct
brain interventions against criminal behaviors could be tried without any FDA assessment of their
safety or efficacy. And legislatures may not be particularly interested in the safety and efficacy of
interventions to reduce crime.
One other point is important to consider here. Efficacy and safety are always relative concepts—
safe and effective compared to what. We have a pretty good idea of the effectiveness and safety of
some of the common interventions used by the criminal justice system, such as prison. A direct
brain intervention would not need to be very effective or safe to be better at either or both for
many, if not most, prisoners.
This leads to the question of consent. Short of a cruel and unusual punishment, if a mentally
competent offender truly volunteers for a treatment to reduce criminal behavior, are there grounds
to object? One problem lies in the term “truly voluntary.” Would it be appropriate for a judge to
tell a convicted offender, “I am going to give you a free and fair choice between two sentences,
30 years in prison or brain surgery to reduce your criminal behavior followed by probation”? But
sentencing is an inherently coercive situation. Judges do not have to offer a choice; thus, should a
judge be able to sentence an individual to a direct brain intervention?
This raises the deep question of whether there is some special right to what Farahany (2012)
calls “cognitive liberty.” The inside of one’s skull seems as though it should be a specially protected
place, perhaps because, as a practical matter, it always has been. The state has never been able
(very effectively) to prevent you from lying or from thinking “illegal” thoughts. It could, in some
cases, punish you if it could prove that you had done so, but because it could not detect thoughts
or intentions directly, its ability was, as a practical matter, limited. Similarly, the state has not
been able to force you to think or intend differently. It can encourage it—presumably the point
of rehabilitation—but it has never been able to compel it, at least with a high degree of success.
What if it could? Should it be allowed to or is there a constitutionally protected sphere of mental

privacy or cognitive liberty? Is the right to cognitive liberty fundamental to freedom of thought,
which may be a prerequisite to all other liberties?
Clearly, no such express protections appear explicitly in the Bill of Rights; as to whether the
Supreme Court would find that such a right exists, no confident prediction seems possible. And,
remember, prison will make changes in a person’s brain. Does the directness of the action on the
tissue of the brain make a constitutional—or ethical or moral—difference in the appropriateness
of the intervention?
CONCLUSION
Brain research is advancing rapidly. Indeed, given the vast extent of human suffering caused by
diseases of the brain, whether mental illness or neurological diseases, that research is an ethical
imperative. But a deeper understanding of human brain function, even if sought for purely medical
purposes, will certainly have secondary uses. Some of those will be in criminology. We make
no pretense of having covered all the possible uses of neuroscience in criminology in this brief
review. We suspect we have overlooked some things, and certainly we offer no guarantees that the
issues we have discussed will play out as we suggest. We are, however, confident that advances in
neuroscience will have important implications for criminal justice systems.
DISCLOSURE STATEMENT
The authors are not aware of any affiliations, memberships, funding, or financial holdings they
have that might be perceived as affecting the objectivity of this review.
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CR02-TOC ARI 1 December 2018 8:25
Annual Review
of Criminology
Volume 2, 2019
Contents
The Discipline
Crime and the Life-Course, Prevention, Experiments, and Truth

Seeking: Joan McCord’s Pioneering Contributions to Criminology
Richard E. Tremblay, Brandon C. Welsh, and Geoffrey Sayre-McCord p p p p p p p p p p p p p p p p p p p p 1
Theory and Method

Hot Potato Criminology: Ethnographers and the Shame of Poor
People’s Crimes
Jack Katz p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p21
Looking Through Broken Windows: The Impact of Neighborhood
Disorder on Aggression and Fear of Crime Is an Artifact
of Research Design
Daniel T. O’Brien, Chelsea Farrell, and Brandon C. Welsh p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p53
Methodological Challenges and Opportunities in Testing for Racial
Discrimination in Policing
Roland Neil and Christopher Winship p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p73
Social Networks and Crime: Pitfalls and Promises for Advancing
the Field
Katherine Faust and George E. Tita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p99
The Real Gold Standard: Measuring Counterfactual Worlds That
Matter Most to Social Science and Policy
Daniel S. Nagin and Robert J. Sampson p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 123
Crime and Victimization

Crime and Safety in Suburbia
Simon I. Singer and Kevin Drakulich p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 147
Girls’ and Women’s Violence: The Question of General Versus

Uniquely Gendered Causes
Peggy C. Giordano and Jennifer E. Copp p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 167
Cyber-Dependent Crimes: An Interdisciplinary Review
David Maimon and Eric R. Louderback p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 191
Crime Victims’ Decisions to Call the Police: Past Research
and New Directions
Min Xie and Eric P. Baumer p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 217
Peer Influence and Delinquency
Jean Marie McGloin and Kyle J. Thomas p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 241

Criminal Justice Contact

Jail Incarceration: A Common and Consequential Form of Criminal
Justice Contact
Kristin Turney and Emma Conner p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 265
Cumulative Disadvantage in the American Criminal Justice System
Megan C. Kurlychek and Brian D. Johnson p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 291
Taking the “Girl” Out of Gender-Responsive Programming in the
Juvenile Justice System
Angela Irvine-Baker, Nikki Jones, and Aisha Canfield p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 321
Criminal Justice in Indian Country: A Theoretical and Empirical
Agenda
Jeffery T. Ulmer and Mindy S. Bradley p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 337
Indigenous Peoples, Criminology, and Criminal Justice
Chris Cunneen and Juan Marcellus Tauri p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 359
Policy
Government Policies for Counteracting Violent Extremism
Gary LaFree and Joshua D. Freilich p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 383
Public Opinion and Criminal Justice Policy: Theory and Research
Justin T. Pickett p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 405
The Rise and Restraint of the Preventive State
Lucia Zedner and Andrew Ashworth p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 429
Neuroscience and the Criminal Justice System
Henry T. Greely and Nita A. Farahany p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 451
Keeping Score: Predictive Analytics in Policing
Dylan J. Fitzpatrick, Wilpen L. Gorr, and Daniel B. Neill p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 473
Assessing the Power of Prostitution Policies to Shift Markets,

Attitudes, and Ideologies
May-Len Skilbrei p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 493
Errata
An online log of corrections to Annual Review of Criminology articles may be found at
http://www.annualreviews.org/errata/criminol

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CR02CH20-Greely ARI 29 November 2018 10:19

Annual Review of Criminology

Neuroscience and the Criminal

Henry T. Greely1 and Nita A. Farahany2

Annu. Rev. Criminol. 2019. 2:451–71 Keywords

The Annual Review of Criminology is online at Abstract

THE CURRENT USE OF NEUROSCIENCE TO UNDERSTAND

452 Greely · Farahany

improving decision-making in law.

The Extent of Criminal Defendants’ Use of Neuroscience

300 Homicide (noncapital)

www.annualreviews.org • Neuroscience and Criminal Justice 453

with their claims.

454 Greely · Farahany

judicial opinions 1000

Context for the Introduction of Neuroscience Evidence

www.annualreviews.org • Neuroscience and Criminal Justice 455

0 200 400 600 800 1000 1200 1400 1600

Number of unique opinions with claim raised

456 Greely · Farahany

Approximately 25% of neuroscience-based claims discussed in judicial opinions from 2005–

www.annualreviews.org • Neuroscience and Criminal Justice 457

458 Greely · Farahany

Case Outcomes When Neuroscience Evidence Is Introduced

www.annualreviews.org • Neuroscience and Criminal Justice 459

Cases with a favorable ruling

Nature of claim raised

NEUROPREDICTION IN CRIMINAL JUSTICE

460 Greely · Farahany

General Brain-Related Prediction

Predictions of Criminal Behavior

www.annualreviews.org • Neuroscience and Criminal Justice 461

462 Greely · Farahany

Issues Arising from Neuroprediction

www.annualreviews.org • Neuroscience and Criminal Justice 463

DIRECT BRAIN INTERVENTIONS IN TREATING CRIMINALS

Past Discussion of Direct Brain Interventions to Treat Criminal Behaviors

464 Greely · Farahany

Current, Less Direct Brain Intervention to Treat Criminal Behavior

www.annualreviews.org • Neuroscience and Criminal Justice 465

Prospective Direct Brain Interventions to Treat Criminal Behavior

466 Greely · Farahany

Issues Arising from Direct Brain Intervention to Treat Criminal Behavior

www.annualreviews.org • Neuroscience and Criminal Justice 467

468 Greely · Farahany

www.annualreviews.org • Neuroscience and Criminal Justice 469

470 Greely · Farahany

vism through cognitive intervention. Neuroethics 8(3):315–26

www.annualreviews.org • Neuroscience and Criminal Justice 471

Crime and the Life-Course, Prevention, Experiments, and Truth

Theory and Method

Crime and Victimization

Girls’ and Women’s Violence: The Question of General Versus

Jean Marie McGloin and Kyle J. Thomas p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 241

Criminal Justice Contact

Assessing the Power of Prostitution Policies to Shift Markets,

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