This question, asked by Senator Joseph Biden of Delaware at the hearing considering the nomination of John Roberts to be Chief Justice of the United States, illustrates the extent to which cognitive neuroscience—increasingly augmented by the growing powers of neuroimaging, the use of various technologies to directly or indirectly observe the structure and function of the brain—has captured the imagination of those who make, enforce, interpret, and study the law. Judges, both state and federal, have convened conferences to discuss the legal ramifications of developments in cognitive neuroscience. Numerous scholarly volumes have been devoted to the subject. The President's Council on Bioethics convened several sessions to discuss cognitive neuroscience and its potential impact on theories of moral and legal responsibility. Civil libertarians have expressed suspicion and concern that the United States government is using various neuroimaging techniques in the war on terrorism. Personal injury lawyers have urged the use of functional neuroimaging to make "mild to moderate brain [and nervous] injuries ... visible [to] jurors"—and members of the civil defense bar have, not surprisingly, published articles criticizing the reliability of such evidence and arguing that it should be inadmissible. Criminal defense attorneys have likewise expressed a strong interest in using neuroimaging evidence to help their clients.
The attraction of the legal community to cognitive neuroscience is by no means unreciprocated. Cognitive neuroscientists have expressed profound interest in how their work might impact the law. Michael Gazzaniga, one of the field's leading lights—and in fact the man who coined the term "cognitive neuroscience"—predicted in his 2005 book The Ethical Brain that advances in neuroscience will someday "dominate the entire legal system."
Practitioners of cognitive neuroscience seem particularly drawn to the criminal law; more specifically, they have evinced an interest in the death penalty. Indeed, a well-formed cognitive neuroscience project to reform capital sentencing has emerged from their work in the courtroom and their arguments in the public square. In the short term, cognitive neuroscientists seek to invoke cutting-edge brain imaging research to bolster defendants' claims that, although legally guilty, they do not deserve to die because brain abnormalities diminish their culpability. In the long term, cognitive neuroscientists aim to draw upon the tools of their discipline to embarrass, discredit, and ultimately overthrow retribution as a distributive justification for punishment. The architects of this effort regard retribution as the root cause of the brutality and inhumanity of the American criminal justice system, generally, and the institution of capital punishment, in particular. To replace retribution, they argue for the adoption of a criminal law regime animated solely by the forward-looking (consequentialist) aim of avoiding social harms. This new framework, they hope, will usher in a new era of what some have referred to as "therapeutic justice" for capital defendants, which is meant to be more humane and compassionate. But in fact, despite these humanitarian intentions, the project's aspirations for capital sentencing reform would more likely exacerbate the draconian and brutal features of the present capital sentencing regime.
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