Born to be Bad: Neurolaw, Genetic Culpability and Early Intervention
The overlap of different disciplines . . .
. . . is a frequently fruitful area of investigation. But, just as the collision of two tectonic plates causes the violent emergence of fold mountains, so the butting together of different discursive systems can also be problematic. This is particularly likely when rapid advances in one discipline cause unforeseen complications in another. In few places is this more evident right now than in the new field of ‘neurolaw’.
First coined by Sherrod J. Taylor in 1991, the term neurolaw attempts to tackle the descriptive and predictive issues of modern neuroscience as it is and could be used in the legal system.i As understanding of the structure and function of the brain advances, scientists are gaining a greater understanding not only of personality traits but also of subsequent actions. It was only a matter of time before these new ways to interpret human behaviour were taken out of the laboratory and into the court room.
It’s not the first time that the law has had to grapple with nascent scientific disciplines. As Michel Foucault made clear in Abnormal, for example, a series of brilliant lectures given at the Collège de France between 1974 and ’75, the origins of psychiatry were inextricably linked with ideas around responsibility, and in particular criminal responsibility, in relation to the law. The discipline, he argues, grew out of a kind of power struggle caused by a gap in legal understanding with regards to madness and how it related to definitions of responsibility.
In recent years, the emergence of neuroscience as one of the most high-profile fields of scientific research has given rise to new legal definitions, and new ethical questions. Now, new discoveries in genetics and epigenetics are adding yet more dimensions to what is already a complicated issue: blame.
A “warrior” gene?
Much publicised in recent years has been the discovery of the MAO-A “warrior” gene, first linked to antisocial behaviour back in 2002. Generally speaking, behaviour is a complex interaction of genes and environment in an individual with a set of experiences in a particular circumstance. In most cases there are many genes all interacting with each other and the environment. However some single genes, like MAO-A, have been shown, in certain environment, to trigger anti-social behaviour.
Monoamine oxidase A is an enzyme that breaks down chemicals in the body which have been shown in high doses (in males) to lead to aggressive and antisocial behaviour.ii In initial studies it was shown that those with a malfunctioning MAO-A gene often expressed their aggression in arson attacks. The malformed MAO-A gene is effectively switched on by mistreatment and an abusive environment when the carrier of the gene is a child, leading to an increased likelihood of antisocial behaviour later in life.
One controversial incident occurred in 2009 during a criminal trial in the United States, when an argument based on a combination of "warrior gene" and history of child abuse was successfully used to avoid a conviction of first-degree murder and the death penalty. Nonetheless, the convicted criminal, Bradley Waldroup, was still sentenced to 32 years in jail. As William Bernet of Vanderbilt University, the forensic psychiatrist used by the defence, argued: “His [Waldroup’s] genetic make-up, combined with his history of child abuse, together created a vulnerability that he would be a violent adult.”
On the one hand then, this ruling suggests that the combination of a malfunctioning gene and an abusive upbringing does reduce culpability in the eyes of the law. On the other, such an individual is still a potential risk – probabilistic science overriding any professions of free will – and is therefore removed from any contact with society at large.
It proved that ‘ordinary’ people would obey an authority figure even when knowingly hurting another individual.
Prevention: better than a cure?
The law may be a never-ending search for culpability, but, as we can see, it has also positioned itself as an arbiter of future probability. This has always been the case to some extent, but is now more pronounced than ever. In 2003 the indeterminate sentence for Pubic Protection (Imprisonment for Public Protection) was introduced in the UK Criminal Justice Act, meaning, in effect, that suspects could be detained for a crime they may potentially commit in the future. Currently over 7,000 prisoners are being indeterminately detained in the UK due to a perceived risk of potential future crimes. Former Justice Secretary Ken Clarke has described it as “abhorrent” that the state may hold a person simply because they are deemed “dangerous.” But still the practice continues.
Recent advances in genetics might seem to reinforce this preventative approach. Research by British neuroscientists (like Adrian Raine and others) suggests that it might be possible to predict criminality through the reading of neural circuits as reflectors of behavioural patterns. High resolution functional magnetic resonance imaging (fMRI) of the brain can identify anomalies in these circuits, which can then be compared to anomalies known to be found in the brain of clinical psychopaths. Since these circuits can be translated into behavioural tendencies, it can therefore be assumed that any behavioural tendencies may be shared by both parties.iii
However, just as with malfunctioning MAO-A variants, correlations do not prove causation. Moreover while we can clearly see activity in the brain pathways, we cannot accurately tell how this is a reflection of actual genes or a result of environmental influences, let alone how these will be translated into future actions. People have displayed such neural anomalies and have never committed an anti-social act in their life. Likewise there are ‘normal’ individuals who have been seen to commit terrible acts due to a wide variety of different circumstances. The Milgram Experiment famously proved that ‘ordinary’ people would obey an authority figure even when knowingly hurting another individual.iv
Finally there is the role of society itself. Karl Marx and Frederick Engels argued that the capitalist society encouraged crime as people competed for resources and wealth, whilst Emile Durkheim’s theory of Functionalism went as far as to state that criminals were necessary for society to help give moral and social guidelines for people to conform to. More recently, articles such as Jedidjah de Vries’s analysis of the French riots of 2005 have argued, following Giorgio Agamben, that rioting is tied up in the concept of “the state of exception” – “a new form of power which gives the state direct access to its subjects (on a biopolitical level)” – and the spread of this state from one of exception to one of normality. Clearly, culpability is a complex issue.
Intervention: even better?
Nonetheless, in the wake of rioting in London in 2011, there is now increasing pressure on the UK’s coalition government to be seen to act decisively. One of the possible solutions being looked at and explored is an increase in state involvement in the upbringing of young people. If the law is justified in imprisoning citizens on the basis of potential future activity, and science seems to offer us increasingly solid grounds on which to base our predictions, then it’s not a big leap to an increase in the frequency of early intervention programmes.
As with many things, America leads the way on this.v Their most extreme programme of research is at the Pediatric Brain Research And Intervention Center in Chicago. As their website declares, “We use innovative functional neuroimaging, diffusion tensor imaging, genetic and cellular genomic methods to understand brain function and find novel psychopharmacological, cognitive and psychotherapeutic models of intervention.”
What this means is that the institution works alongside the government to produce social programmes that use brain-imaging on children as young as eight who may be at risk of future anti-social behaviour. Those children that score highly on written anti-social behaviour tests are then put to further testing by fMRI. Currently parents can submit their children aged 7-18 for research trials if they display the following qualities: “moody, excitable, disruptive, inattentive, aggressive or depressed”vi – behaviours almost certainly demonstrated by all children at one time or another.
Once accepted onto the programme, children are subjected to fMRI scans to identify neuro-physiological anomalies that might indicate an increased probability of future anti-social behaviour. If anomalies are found, it is then justified for the government to provide social intervention. This intervention takes the form of a combination of drugs (“psychopharmacology”), therapy, and collaboration with schools and parents, knitted together under the acronym EPIC (Early Psychosis Intervention Clinic).
The theory is that by working with the parents, the school and the child, intervention of this nature can improve the future quality of the child’s life, the parents’ lives and society as a whole. It has also been calculated that such action could drastically cut the cost in future government spending on rehabilitation if the child ends committing future crimes.vii As western nations continue with programmes of austerity, the economics of criminality are an ever-increasing pressure, and any potential cost-cutting mechanism is eagerly embraced.
The age of criminal responsibility in the UK was lowered from 14 to 10 — much younger than most other Western countries.
The plastic brain
One obvious problem in comparing the brain activity of an eight year-old with that of an adult psychopath is that we do not yet know enough about brain development to state with any certainty whether similarities in brain activity must also reflect a similarity of behavioural tendencies, or have a genetic basis.
But it is in this direction that the research is going. Programmes at the PBRI Centre are already attempting to identify genes whose expression in the brain leads to certain neurological pathways being formed during a child’s development that could in turn produce problematic or antisocial behaviour. For example they are looking at the relationship between genes such as the SLC6A4 5HTTLPR and BDNF Val66Met, variants of which are thought to lead to cognitive ‘dysfunction’ and vulnerability towards depression.
Vivian Hill, of London's Institute of Education, points out that early adolescents do not have fully formed brains and cannot be held responsible for criminal behaviour in the same way that adults are. Research has shown that 10-14 is a period of huge development in the frontal lobe. This is the part of the brain linked with planning, decision-making, aggression control and how we interact with others. Whilst an adolescent may reasonably be attributed a degree of culpability, they cannot reason in the same way an adult can. viii
Throughout adolescence a child’s brain is still developing. Neuroplasticity is the proven effect that the emotional, social and physical environment can interact with genes to switch them on or off. This is epigenetics: the altered expression of these genes will affect cellular development and thus contribute to the determining of the eventual physiology and processing patterns of the brain. In terms of evolution, it is possibly part of our ability to develop survival strategies to a volatile environment, and while its effect is greatest in growing children it can still occur even in adult life.
With new scientific discoveries come changes in the law, and changes in the way we understand and attribute culpability. But they’re not always logical, or scientifically sound. In the 1990s the age of criminal responsibility in the UK was lowered from 14 to just 10 – much younger than most other Western countries (in France, the age of criminal responsibility is 12, Germany 13 and Italy 15). Beyond this age a child is deemed responsible for any criminal act and so is, in the eyes of the law, accountable for his/her behaviour in more or less the same way as an adult. The child is deemed cognitively developed to stand trial and engage in the legal process. The Home Office claimed that the move (a political not a legal one) would prevent the all-too-common transition from petty crime to more serious offences: firstly, by allowing earlier state intervention, and, secondly (and possibly in direct contradiction to the first reason), through instilling personal responsibility in the individual at an earlier stage.
The language barrier
Part of the reason for the uneasy translation of scientific research into more public fields is that, whilst scientists – particularly those at the cutting edge of new research – are generally open to the tentative nature of their own conclusions, those involved in policy have different priorities. Decision-makers in the fields of politics and law are interested in clarity (believe it or not) and principles that can be applied universally, with certainty. Hence the degree to which conclusions are so often overstated; significance misrepresented.
Therefore, one of the first issues to address in any area of cross-disciplinary research is the language barrier. The term ‘reliable’, for example, differs in meaning and interpretation from the law court to the laboratory. In the courtroom ‘reliability’ is an assessment of the quality of evidence; how accurately the information represents what it purports to prove. It is often confused with credibility, which is how believable the evidence is. In science, by contrast, a reliable result is one that comes out of an experiment in which scientists have attempted to control any outside variables that may affect the results, repeats have been carried out, and a statistical analysis has taken place. Reliability in a scientific sense reflects the quality of the experiment itself.
No psychological organisation has sanctioned a diagnosis of ‘psychopathy.’
Because such experiments necessarily create an artificial (highly controlled) environment, scientists are also trained to understand that there will always be factors that cannot be controlled or accounted for, and therefore that any positive results may show a correlation, but very rarely prove causation conclusively. Specific brain patterns may be linked to erratic behaviour, but it is not yet conclusively proved that they cause them. This is something that is often not addressed once the information leaves the laboratory to be made use of in other fields of activity.
As a side note, it’s interesting to see that the PBRI Center are attempting to overcome this problem by making their experiments as ‘real’ as possible: “We actively implement novel fMRI paradigms in our laboratory,” they declare, “including film studio to tape on-site scenarios that mimic patients’ real life stresses, in order to examine changing brain function and gene expression.” One wonders quite what to make of this mimicry and the claims that might be made for it.
Back in the courts, and the term ‘psychopathy’ as used to denote psychopathic tendencies is a fabrication of the law and not a psychological or scientific term. It is used to denote a person who has behaved in an un-empathetic, anti-social way. Such persons are rarely actually ‘psychopathic’ and while there may be behavioural similarities, psychopathy and antisocial personality disorder are, at least according the Diagnostic and Statistical Manual of Mental Disorders, not synonymous. In fact, no psychological organisation has sanctioned a diagnosis of ‘psychopathy’.
There have been various attempts to address these language problems, including, a 2011 report entitled Brain Waves, published by the Royal Institute. Its main recommendations are an immediate need for dialogue and greater understanding between professionals in the legal system and neuroscientists. “Neuroscientists and legal professionals conduct their work in different surroundings, using different methodologies and language. There is currently no forum in the UK for bringing together the two groups to explore areas of mutual interest”. ix
Full steam ahead
Despite all the difficulties outlined above, developments still proceed apace. In January 2011 Graham Allen MP produced a government-commissioned report into the pros and cons of early intervention. Entitled Early Intervention – The Next Steps, the report was designed to establish “the good parents of tomorrow”x, and suggested that the most cost-effective and appropriate intervention programmes were needed as early as 0-3 years of age. It aimed to tackle the “root of anti-social behaviour” and not the symptoms. By root, Allen was referring to the negative environment of a child and its effect on neuro-development and, by implication, later behaviour in adult life.
The first report contained “no requests for legislation and no requests for immediate public spending”, but promised a second report that would “[explore] the use of new private sector financial instruments to fund the local roll-out of proven Early Intervention programmes”. This was duly published in July 2011 and, in line with recent Coalition policies, Allen (a Labour MP) stresses his desire “to create a new market in early intervention and social investment products.” Cue much talk of “clients”, “demand”, and “investor confidence”: not exactly the kind of language you necessarily want to hear in this kind of context.
Trial programmes are already in place. The Tower Hamlets Social Inclusion Panel in east London, for example, aims to identify the 80 young children deemed most “at risk”. They are then assigned a lead professional from within the panel to co-ordinate “coherent package” of “multi-agency support”xi xii. Unlike the American versions, risk here is determined just by psychological tests and social assessment rather than physiological assessment. A similar initiative in Croydon plans to extend screening to detect problems with attachment, motor skills and speech and language difficulties, as well as emotional and behavioural issues.
There could be no greater goal for criminal law than to understand how the brain contributes to human action.
Other possible futures
It’s at this point we see that it’s almost impossible to avoid the overlap of different disciplines. Genetics, neuroscience, politics, sociology, the law, and market economics: all must have their say in the fraught realm of blame and responsibility. And the consequences are critical.
At the moment the research is ‘upstream’ of current social policy. Yet soon there will need to be integration, for which increased understanding is of paramount importance. Brain-imaging technology and the understanding of how the environment affects genetic expression are increasing rapidly. Further and perhaps more frightening are developments in neuropsychopharmacology which uses drugs to create functional effects by modulating neural activity.xiii Modern pharmaceuticals can now go beyond simply being mood enhancers and become cognitive enhancers. Are we in danger of fulfilling Aldous Huxley's prophecy of a world medicated for moral enhancement and social control?
But there are positive signs. In 2009 Oxford University established a Centre for Neuroethics – one of its major aims is to assess how neuro-scientific knowledge can increase our ability to attribute moral and criminal responsibility. Funded by the Wellcome Trust, the programme aims to “develop a systematic account of the ways in which neuro-scientific research bears on the practice and substance of applied ethics. We shall identify methods for reducing moral bias and assess the implications for policy.xiv” The establishing of such institutes not only shows a greater awareness of the need to proceed with caution, but also reminds us of the huge potential that research in these areas could provide to social wellbeing.xv What recommendations they make, and whether they are heeded; only time will tell.
As Adam Lamparello put it in 2011: “There could be no greater goal for criminal law, and law generally, than to understand how the brain contributes to human action, because our system of criminal justice relies on the premise that individual choices are the subject of free will and autonomy. If this were not the case, even to a limited extent, the criminal law must re-think the justifications for punishing those convicted of crimes, how we treat such individuals, and what specific reforms are necessary to reflect the true nature of human behaviour.” xvi
But, as we have seen, this is not just a question for lawyers or legal theorists, but for a whole host of experts in a wide range of different fields. Because, as Lamparello continues, “cognitive neuroscience has tremendous potential to challenge our most basic assumptions about what it means to be moral agents,” – and, indeed, we might add, what it means to be human.
KATHERINE TEMPLAR LEWIS is a scientific researcher, presenter, writer — and also an accomplished actor.
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(viii) 9 MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice. (2006, September). Less guilty by reason of adolescence (Issue Brief No. 3, p. 2).
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(x) Allen G, (2011) Early Intervention: The Next Steps. Independent Report to Her Majesty’s Government.
(xi) Kratochwill TR, McDonald L, Levin JR, Scalia PA and Coover G (2009) Families and schools together: an experimental study of multi-family support groups for children at risk. Journal of School Psychology 47: 245–265.
(xiii) Stahl S (2008) Stahl’s Essential Psychopharmacology: Neuroscientific basis and practical application. 3rd edition. Cambridge: Cambridge University Press.
(xv) Levy, N. (2006), 'Cognitive Scientific Challenges to Morality,' Philosophical Psychology, 19: 567-587.
(xvi) Lamparello, Adam, Using Cognitive Neuroscience as a Method by Which to Involuntarily Confine Violent Offenders after Completion of Their Sentence (January 18, 2011).