This afternoon, the Presidential Commission for the Study of Bioethical Issues (Bioethics Commission) turned its attention to law and neuroscience as part of its deliberations on potential recommendations related to neuroscience that it may offer to the President.
Bioethics Commission Chair Amy Gutmann, Ph.D., began by focusing discussion questions around whether and how to use neuroscience technologies in the courtroom.
“What can neuroscience in its current capacity tell us about whether any individual is legally blameworthy for his or her actions?” Gutmann asked. “What is the potential for neuroscience to answer this question? What can it tell us about moral responsibility and blameworthiness, as distinct from legal responsibility and blameworthiness?”
Commission Member Nita A. Farahany, J.D., Ph.D., framed the discussion by noting the different legal contexts in which neuroscience research is being cited. For example, lawyers are bringing neuroscience research into the courtroom to substantiate claims about defendants’ competency to stand trial, as well as to challenge traditional notions about what a mental state is and how it should be measured. Neuroscience has also come up in sentencing as a way of determining the degree to which a person is morally responsible because of diminished capacity, and whether sentencing for such an individual should be weighted more toward retribution or toward rehabilitation. Finally, criminal courts have also looked to neuroscience as a predictor of a defendant’s future dangerousness.
Farahany said she has also seen neuroscience research cited in in certain civil cases. In the past, it has been difficult to prove whether a person is suffering pain from exposure to a toxic substance. Now, some civil plaintiffs are using neuroscience to do just that. In the arena of constitutional law, the U.S. Supreme Court has cited neuroscience research with regard to the culpability of juvenile defendants accused of capital crimes. Farahany noted that neuroscience is also beginning to highlight gaps in certain constitutional protections, such as freedom of speech and new technologies that reveal the brain’s visual imagery.
Farahany cautioned about overstating the capacity of neuroscience to inform law. “When we start using a science like neuroscience to predict behavior before it can do so, it can derail the credibility of science as a whole,” she said, citing “a duty to tread carefully in an area of nascent science.”
Commission Member John D. Arras, Ph.D., observed that some legal experts have questioned whether neuroscience upends the legal notion of people as ‘agents of action’ capable of making decisions in accordance with society’s rules and laws. This argument, he said, “strips people of their personhood and views them as things to be moved around and not responsible for their actions. That is something to worry about.”
Tomorrow the Bioethics Commission will shift its focus from neuroscience and related ethical issues to deliberation and bioethics education. The discussion will include a panel examining a case study of public health emergency response featuring Anthony S. Fauci, M.D., of the National lnstitutes of Health and Lawrence O. Gostin of the World Health Organization Collaborating Center on Public Health Law and Human Rights.