Diagnostic tests for judges to measure bias? Cruel solitary confinement for mentally challenged inmates? Psychological exams for individuals applying for gun permits?
These issues and more were discussed by Senior U.S. District Judge Jed S. Rakoff in “Neuroscience and the Law: Strange Bedfellows,” the Dialogues Between Neuroscience and Society lecture at the Society for Neuroscience (SfN) annual meeting in Chicago. The session, moderated by SfN President and Dana board member Steven Hyman, featured a 30-minute talk and more than an hour of questions from Hyman and an audience of a few thousand in the McCormick Center’s main lecture hall.
Rakoff, a founding member of the MacArthur Foundation Project on Law and Neuroscience, began with a self-deprecating approach: “My science background largely consists of me being an English major in college,” he began. While he was precluded from discussing particular cases, he began with what he called “considerable ambivalence and even skepticism by judges toward neuroscience.”
One reason, he said, is that most judges suffer from a lack of exposure to neuroscience in their education. They think, he pointed out, that a hippocampus is part of a zoo and frontal lobes are what Hollywood starlets seek to get artificially enlarged.
In reaction to this lack of knowledge, Rakoff and cognitive neuroscientist Michael Gazzaniga, a Dana Alliance member, collaborated on a neuroscience pamphlet that was distributed to several hundred federal judges—and received a mixed reaction: fascination and skepticism. Rakoff blamed the latter on “over a century’s worth of too many instances where the brain science of the time was too readily accepted by the courts and then proved to be much less useful—and even dangerous.” At one time or another, sterilization laws due to eugenics, court-induced lobotomies (severing of the pre-frontal cortex), Freudian psychoanalysis, and a misguided acceptance of recovered memories all contributed to the negative view of neuroscience.
But science can play an absolutely fantastic role in the courts, he said, using the example of DNA as a forensic advancement that has revolutionized the legal system. “Neuroscience is still not at the point where it can be introduced in individual cases with much scientific validity, he said. “But conversely, neuroscience has gotten to the point where it can make generalizations that will be, and are, important to the legal system in determining overall approaches and policy.”
Rakoff contrasted lie detection as an area where neuroscience has proved unreliable with drug addiction as another area where it has proved enormously beneficial. Crime rates have steadily declined, he said, but recidivism for drug use and incarceration rates have consistently risen among African-American males and other minorities. Solid neuroscience studies on impulse control and craving have repeatedly shown properly administered drug programs is a better deterrent to drug addiction than prison. “If we took even a small fraction of the amount of money that we now use to house people in prison and apply it to long-term programs, we would see a very significant reduction in drug addition. This is not just my thought; it’s a thought that has begun to penetrate judges nationwide; even legislators.”
Rakoff ended by telling the audience that “you are dually responsible to promote good neuroscience and effect public policy; not just limit yourselves to your own wonderful work. See your work’s great implications for the betterment of society. On the other hand, you have an obligation to make sure that questionable, or not yet fully developed neuroscience, does not enter its way into the courts,” he said. Because neuroscience has historically had a dubious impact on the legal system, he repeated, let’s learn from our mistakes and use some of the more recent, remarkable advances in imaging and other areas to turn things around.
— Bill Glovin