Reason, Law & Science

There’s an interesting article in the NY Times Magazine about the potential impact of neuroscience on criminal law and the whole business of intention. “The Brain on the Stand,” by Jeffrey Rosen, explains that in capital cases

[l]awyers routinely order scans of convicted defendants’ brains and argue that a neurological impairment prevented them from controlling themselves. The prosecution counters that the evidence shouldn’t be admitted, but under the relaxed standards for mitigating evidence during capital sentencing, it usually is.

Which is pretty much a matter of bad cases making hard law, because the notion of “intention” is and always has been a really elusive one, cashing out for the most part as a useful fiction. The current doctrine of “insanity” in criminal cases is clearly out of step with how we construct the mind-body-morality-action nexus nowadays; but if you release the pawl the ratchet might run free and who knows where it would stop. The very concept of identity might be in doubt — “He’s not the same man he was five years ago. Prison/medicine/love/aging/life has changed him.”

The article ranges over the whole field of anxieties, such as pre-emptive detention based on brain scans, the adolescent brain and deliquency, screening jurors for unconscious bias, and brain-healing therapeutic justice, all of which are meat and drink, apparently, for the new specialty of neurolaw.

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