First big data dump from Human Connectome Project

Washington U at St. Louis published an article here about the release of the first large chunk of open data from the Connectome project, which consists of 2 TB of data derived from scanning 68 healthy volunteers using two different imaging techniques. The project itself is here, and if you have the sort of computing power to handle this sort of data, you can gain access by registering or by paying them to ship you an external drive with the data on it.

On its own this is of course a very exciting piece of news, because we can reasonably anticipate that institutions will find a lot of good uses for this data, and that its utility will prompt the creation of further data. I persist in thinking that researchers are being over-modest in their lists of possible uses, since in essence what we’re talking about is a functional model of the human brain. I know it’s gauche to point this out, but everything in a given economy is about the desires and decision-making of the human brain, and having a real model to replace sales voodoo with would be an incredible edge for early adopters.

In any event, it’s also exciting to see a focus on mapping the interactivity of healthy brains. A lot of neuroscience I’d consider foundational focuses on disorder, and follows older traditions like philosophy in assuming we know what a baseline brain looks like and does. Disorder studies are incredibly useful, of course, especially in patients with extremely discrete damage, but they’re necessarily hard to replicate. I’m in a minority in believing that animal models are not actually that useful here, since the differences in scale and complexity between species is so great, and obviously ethics preclude giving a large group of people identical brain damage to exclude epiphenomena. Studying  healthy model does more, I think, to get at the incredibly counter-intuitive ways that the brain actually works. I think that a lot of the more troubling implications of neuroscience get marginalized because they present in damaged individuals, and so the unpleasant conclusions can be in some sense limited to atypical populations. In fact, something like paralysis denial in an otherwise functional person blows a lot of the naive or traditional conceptions of mind out of the water, but it’s easier to ignore than a gigantic pile of data on healthy brains.

Having this much data exist open-source like this also increases the likelihood of getting an argument based on neuro evidence admitted. The law looks to how well accepted a novel scientific theory is, and the more institutions and researchers are working on a project  the sooner it will generate the sort of consensus capable of being admitted. My hope is that the Big Data/AI people will get interested in this, because technology often accelerates most rapidly under competitive market conditions. In any event, this is great news, and I applaud the teams working on this.

Brain mapping and big money

A friend sent me a link to an article in the Economist, here, about a couple of very large grants coming at the more high-profile efforts to map the connections of the brain. As the article mentions, and as previous work has made clear, it’s a ridiculously complicated problem, although this may be largely due to the absence of many well-understood organizing principles. At present we’re going through the brain piece by piece, even neuron by neuron, and my prediction is that the output from these projects will increase exponentially as they go along. Most organic systems grow from a few fairly simple rules, and if we can find the organizing rules of the brain, our process of understanding it will be much faster.

The stated aspirations of the project are rather modest, though, in comparison to its scope. Think of the beginning of cadaver dissection in the early Scientific Revolution: the goal was a better understanding of the medical understanding of the time, but instead the experiments helped fuel a revolution in medicine and beyond. The historical retreat of mysticism is most marked, I think, in biology, and dissection was a watershed moment. Instead of vague nonsense about humors combined with theological nostrums, we were able to give real, helpful, mechanistic explanations for not only disease, but health. Dissection spelled the end of vitalism, and I have similarly high hopes for brain mapping.

Unfortunately the mind has become a holdout of mystics in the ostensibly scientific fields. In law we’re extremely constrained in dealing with the mind, so much so that we can usually only grapple with obvious physical problems in the brain, like those resulting from traumatic injury. The mind, a slippery term that essentially means the software of thinking and being conscious, isn’t thought a proper subject for legal deliberation, and this is true for a variety of reasons. Some of them are legitimate, like our present inability to reliably model the workings of the mind in detail. Some of them are illegitimate, like the rear-guard actions being fought by religious-minded ‘philosophers’ and the Kantian branch of penal phil that desperately need the mind to remain a black box for their smoke and mirrors show to continue.

Happily the cure to both well-meaning and treacherous obstructions to a legal reckoning of the mind is the same: discovery. Having solid, repeatable, reliable data about how the mind actually functions will chase away the centuries of ghosts that linger from previous attempts to understand the mind, and though law is inherently conservative, it does change over time in the face of sufficiently complete scientific knowledge. I’m hopeful that this project and the massive funding behind it can essentially leap-frog a lot of wrong-headed objections to neuroscience, and I think we’ll all be the better for it.

Hypnosis, and incidental brain data generally

The good folks at MedicalExpress published an article here on a study in which hypnotically induced paralysis was used in conjunction with imaging to study some proposed mechanisms of currently unexplained paralysis. Partial paralysis is a common side effect of brain injury, either injury caused by acute trauma or the more common strokes, and often the extent of paralysis has to be determined experimentally after the patient recovers. (More problematic is that sometimes the paralysis is masked by a patient’s inability to understand that they’re paralyzed  a condition called paralysis denial. This sort of conjunction is therapeutically challenging, and obviously gives the lie to a lot of the simpler theories of how the mind and body relate.)

In any event, the study is obviously ingenious in its combination of an extant neurological phenomenon, in this case hypnosis, and modern imagining and scientific methods, but it points to a wider possibility within neuroscience. A book by a couple of neuroscientists and amateur magicians called Sleights of Mind did an admirable job of tracing current knowledge of attention, vision, and cognition through the interpretation of stage magic tricks, and the advantage of this sort of study is that it operates on data we already feel is anomalous, like hypnosis. In short, we find hypnosis or stage magic to be surprising, and this is because the way we think of our own brains is wrong.

The mind is very good at making us think we see everything in front of our eyes, or that we have voluntary control over our own body, both of which are demonstrably false. We have similarly poor intuitions concerning the accuracy of our memory, or the eternal question of how many of our decisions result from any sort of conscious deliberation. I think the failing with most of the attempts to understand the brain previously has been the desire to work forward from a flawed, inborn idea of how the mind works, and so I find studies like this much more helpful, because they start with the flaws in our inherent perceptions.

The hope is that these sorts of studies provide new hypotheses about how important underlying structures in the brain work, and that these, in time, combine to form theorems about how things like cognition actually function. This becomes increasingly likely as scientists find neurologically relevant phenomena that already exist in the world, and investigate them scientifically.

the other advantage of this sort of thing is that it drafts in people who aren’t straight theorists. People with more of an engineering background or mentality are quicker to find and identify holes or problems in models of, among other things, the brain, and given that the history of attempts to understand the brain has been so unsuccessful, I would argue that the endeavor is desperately in need of some trouble-shooting. Lines of study that have more immediate accountability, and a focus on phenomena that are already fairly well-documented should, I believe, ignite in neuroscience the productive interplay between theorists and experimentalists that drives discovery in other fields.

Further, as far as law and neuroscience goes, the wide field of law is well-positioned to contribute to this transition. Law has an infinity of motives, which is to say that there is someone willing to pay fairly clever people to pursue almost any reasonable end. Accordingly, if a finding fron neuroscience seems useful and replicable, the odds are that some litigant somewhere will pay some attorney to develop a compelling case that the finding is correct, or incorrect. While certainly distinct from the process of peer review in science, the law’s process of adversarial argument is actually surprisingly good at winnowing out bad arguments. My hope is that the interplay here will be productive, and that, by and large, neuro advocacy groups in law will let go of the bizarre notion that neuro shouldn’t change how we feel about law, but that is admittedly a lot to hope for.

In sum, I like experiments like these because they do good work in taking notions of the mind away from mystics or philosophers. (With due respect to Prof. Dennett.) This has the pleasant secondary effect of decreasing the power of legal theorists to muse on the nature of man, which is a pernicious process that tends to entrench whatever misapprehensions about human nature the musing person began with. Reflect on the fact, for example, that all the different ideas on criminal and penal reform from 1960-now paled in comparison to the effects on crime of outlawing leaded gasoline, and you will see the futility if not the danger of letting people who have an intuitive understanding of the brain sculpt a society’s laws and penalties.

HRT for autism

I was reading an article on the Smithsonian about a new study on oxytocin and fidelity, and there was a marginal comment about parents using oxytocin supplements to treat autistic children. Oxytocin, a hormone implicated in trust and social bonding between humans, has shown some promise in trials to treat autism, but I had never heard the claim that parents were having oxytocin prescriptions made and using them in an attempt to treat autistic children. A couple Australian sites mention it, after a warning from an Australian researcher, and I found a couple hits on autism forums about people trying to figure out how to get it. I found one supposedly reliable supplier, here, though obviously I don’t endorse them or the process of getting oxytocin and dosing yourself. Alarmingly there was some talk of oxytocin as a date rape drug, but fortunately the molecule it really unstable and at this point needs to be taken nasally. No word yet on whether it can be bonded to DMSO; hormones are pretty big molecules generally, so probably not.

At any rate, this brings up the interesting question of whether or not parents of autistic children should be able to buy oxytocin or related compounds over the net to treat (one hopes) otherwise intransigent cases. I happen to be a big proponent of HRT, hormone replacement therapy, which was originally developed for women but has of late been widely expanded and is used to treat hormonal deficiencies or super-abundances in most of the basic hormones.

However, one of the things that I’ve always been against is the casual prescription of hormones by people who don’t know what they’re doing. The endocrine system is incredibly complex, and a competent endocrinologist will admit, when pressed, that there’s a lot of art in getting the right outcome. This is important because hormones affect damn near everything in the human body, including behavior. Oxytocin is even harder than something like testosterone, because the full effect isn’t well understood and the potential for side-effects is huge. Think of the litany of side effects bodybuilders get from abusing testosterone products, and then remember that oxytocin is a behavioral hormone (we think) and that so far no one is sure what happens when a human overdoses.

So there are reasons to be concerned about layman application of oxytocin to children, but of course at the same time you can’t fault parents who are trying to get the latest benefits of behavioral science for kids who are clearly suffering. This is the same dilemma I have with HRT: I think it should be more widely used, but I want an infrastructure of intelligent people to administer it. With HRT for testosterone or estrogen, that field of people at least exists, and my complaints collapse down to screeds against MDs or, even worse, naturopaths mucking around in the endocrine system. With oxytocin, a substate of educated professionals doesn’t exist yet, and so the parents here are doing, in essence, blind balancing. Is the promise of some improvement in these kids worth the largely unknown risk? It’s not a problem that can be solved or really even meaningfully commented on at present, and so my modest hope is that any parents who are doing this are made to feel comfortable telling their doctor about it, and that we can at least track improvement rates and side effects.

This also prompts some reflection on the potential of personal, intentional modification of behavioral traits, on which more later.

A neuro article I actually don’t like

Lest I get accused of being a neuro cheerleader, there was an article published recently on MedXpress, PhysOrg’s sister site for medical news, that I think illustrates nicely the wrong way to draw conclusions from neuroscientific experiments. The header is that decisions made with intuition actually correlate with good outcomes, but the actual experiment involved people trying to guess which pair of numbers had a higher average after seeing those numbers only briefly. Obviously, you’d have thought, the fact that people are able to make decent guesses at the weighted average of two numbers without the intercession of the deliberative brain doesn’t suggest that people who make more intuitive decisions have better outcomes generally, as implied by the headline, and their metric for measuring risk-taking behaviors is, uh, unconvincing. Partially I point this out because I like Lehrer’s analysis much better; my review on his recent book should be up in a bit here. Suffice it to say, his basic point is that there are a couple of significantly different decision-making methods in the brain, roughly analogous to the deliberative/instinctive distinction, and they’re both good at different things, but not the things you’d think.

This article, though, illustrates how people get excited about neuro results and run to unjustifiable conclusions. Asking whether we should make decisions with our gut or our head is a staple of bad dorm room conversations, and also a trope of vacuous self-help books, and so it’s not surprising that there’s a rush to try to prop up one side or another through over-extended neuro experiments, but it is a good reminder to be careful to see whether the paper supports the conclusions drawn from it.

An article from me on Being Human

The website and forum community Being Human tracks the importance of new and emerging fields for the human experience, and I was honored that they deicded to publish an article I wrote on the importance of neuroscience for the law. My article is here, and a general explanation of the Being Human goal and process is here. I will confess to being partial to the articles by Ms. Lindsay Starke, who I went to college with.

Bad arguments, and their presentation in law and neuro, part I

A friend recently pointed me towards an editorial in the Times about ‘whether or not neuroscience can overturn Roe v. Wade.’ I tend to think that you shouldn’t write an article on a subject if the answer is, simply, no, but the author’s approach to the questions presented by this non-issue are a good starting point for a taxonomy of some classical bad ideas that have come to prominence in the law and neuro scene.

First, the fact that many people don’t understand the naturalistic fallacy has more complicated consequences in hybrid debates. When people are mistaking ‘natural’ for ‘good’ in medicine or similar fields, the mistake is pretty clear, but in law and neuro we are perforce dealing with two (at least) different ideas of ‘good.’ This leads to a characteristic compound mistake of the following form: Science proves that X, and this compels the following result in the field of law. Neuroscience is a brand new field, and generally the first clause is wrong or misleading. People who think that neuroscience will trump Roe base their argument on the idea that neuroscience can tell us when the fetus can feel pain in its development, and they think this based on the idea that a creature avoiding certain stimuli suggests that those stimuli are painful. In fact amoeba avoid certain stimuli, and so while neuro will be able to make certain suggestions about the degree of perception at different stages of development, we’re not there yet. Also what they seem to actually care about is the nature of the perception of pain, which is an absurdly complicated question.

The second clause, the idea that this (generally wrong) conclusion from science compels a certain law or policy, is actually more pernicious because it misapprehends the idea of science, and because it skips the hard part of the argument. Scientific findings are always subject to revision, and even when an idea has gained general acceptance, the translation from a declarative fact to a normative opinion on how that fact should change complicated legal or social structures is and should be complicated. Even assuming that science showed that a fetus can feel pain in the first trimester, that hardly proves we should change the structure of abortion law, because the structure is based on history and a complicated weighing of competing factors. In essence this argument is the same as someone saying that neuroscience shows circles are the most pleasing shape to most humans, and suggesting that henceforth all buildings and art should be circular in form. It’s simple-minded and destructive.

Lest I seem biased, the editorial gets the science wrong too, but goes on to make the conjugate mistake in clause 2. This is the dreadfully popular line, sometimes propped up with a Clif-Notes reading of Kant, that Science Can’t Inform Moral Decisions. This sounds good, and the intuitive appeal distracts from the fact that it’s historically completely wrong and actually a terrifying proposition anyway. Consider the environmental movement: it’s largely if not completely a moral reaction to the gradual awareness that we live in a world of finite resources and extended consequences. That latter bit was a scientific discovery, and any recent moral position on an environmental question follows a new scientific discovery.

Moreover, parse out for a moment what someone is actually saying when they say that science can’t inform moral choices. Science is how we learn what the world is like, and someone who won’t let concrete, repeatable reality influence their moral choices is in effect saying that they don’t care how bad the consequences of their moral intuitions are. Kant, who law students still have to suffer through, famously urged that if an island people were facing extinction via a flood, they should first execute all the murderers in their jails. Someone willing to echo such a blase dismissal of the consequences of inflexible moral positions, someone unmoved by the futile cruelty of such a scenario, should be kept as far away as possible from legal systems. This is true for several reasons, but not the least because good laws and good rulings come from reasoned, sensible, realistic thinkers willing and able to weigh the costs and benefits in the world as it actually exists.

Much better is the only slightly longer statement that science can inform moral choices, but doesn’t generally dictate the result. We’re increasingly discovering more science that supports the common belief that women are more social than men and suffer more when deprived of a social group. Does that make solitary confinement more cruel to women? Probably, yeah, but would it be more or less fair to prohibit a certain type of punishment for one sex but not the other? And what would be the cost of implementing a change in already underfunded prisons? And what about criminals who are transgendered? All concerns that should be addressed before declaring an answer one way or the other.

I understand that people are looking to neuroscience to solve a lot of pending, perennial problems, and I am somewhat unique in thinking that it actually can, properly handled. I think we maximize our chances of getting good results if we recognize and discard some of the common bad arguments, as outlined here. This gives science the space it needs to advance, and holds the energy of the activist in reserve for the most important causes. Trying instead to bend science to support the cause that’s already been chosen results all too often in bad science propping up a bad argument, and quickly devolves into sloganeering. This makes for bad law in the real world, and while Immaneul Kant might have escaped entirely into his own world of categorical imperatives, those of us with enough sense and empathy to care about the real world can’t and shouldn’t follow.

Thoughts on “Brain Scans as Evidence,” Shen and Jones, 2011

The article, fully titled Brain Scans as Evidence, Truths, Proofs, Lies, and Lessons, was writted by Francis Shen and Owen Jones, published in the Mercer Law Review, Vol. 62, p. 861, 2011, and is available via SSRN here. It discusses the general concerns and proffers the authors’ conclusions about the state of brain scan evidence after US v. Semrau, in which brain scans were offered to show that the defendant was honest. The evidence was excluded, but the fact that an intense legal battle preceded the decision indicates a growing interest in and the growing legal relevance of brain-based evidence.

The authors survey some of the basic techniques that technicians hope will allow brain imaging to detect lies, including EEG and fMRI studies, and the limitations of those techniques at present. They also review the difference between the questions that neuro scientists tend to be asking, and the questions that the legal system asks, which will be familiar to readers here. 

 

There is also a brief run-down of the history of the case and the process that produced the evidence in question. There are no standardized procedures at present for determining whether someone is telling the truth on any neural imaging machine, which of course suggests a lack of scientific consensus. Notable, though, is that the person who ran and analyzed the tests, Dr. Laken, was offered as a witness who would state that the defendant did not think he was lying about the issue at contest, in this case Medicare billing. Traditionally witnesses are prohibited from testifying to issues of ultimate fact in a case, and as per the defense team here, the case largely boiled down to whether or not the defendant was lying. That a witness was offered and potentially could have testified so directly to the matter at hand is itself a significant break-through.

Legal readers will know what I mean when I report that the evidence failed the Daubert test, but for people not so afflicted, what it means is that the court didn’t believe that the state of scientific evidence from this field was yet concrete and reliable enough to be admitted in court. Notably a couple of contributors from the MacArthur Law and Neuroscience Project testified for the government, against the admission of the evidence, in accordance with that project’s general opposition to the introduction of neuro evidence in criminal law. Nevertheless, I agree that no scientific consensus has been reached, and that the evidence in this case was particularly dicey.

The evidence was also excluded because of the danger of unfair prejudice, which is independently interesting. In law, evidence may be excluded if the danger of unfair prejudice outweighs the probitive value, that is, the value a fact has in suggesting that the defendant is or isn’t guilty. For example, the fact that someone is a pedophile may suggest that they’re somewhat dishonest, which may suggest that they’re more likely to have cheated on their taxes, but the prejudice against pedophiles is so strong that such evidence should be excluded anyway, even if true and somewhat probitive. The concern was that the evidence of the defendant’s general truthfulness would be prejudicial when it couldn’t address the truthfulness of specific statements, and there was another argument here that ultimately, credibility is a question for the jury, not for expert testimony.

The authors lay out some specific barriers to the introduction of neural imagining for the purpose of detecting lies. First, obviously, certain techniques may not be measuring anything we consider relevant to the legal definition of lying. There are some complicated semantics here that are unfortunately quite important in the legal field, such as the difference between intentional lying about a past event and honestly holding a mistaken belief about a past event. In my mind this highlights the fallacy of leaving lie-detection to a panel of laymen, necessarily untrained in both the legal definitions and the scientific ones, but it is admittedly a hurdle that neural imaging will have to overcome.

The authors specifically conclude that a study must be sufficiently realistic in order to be admissible, which I disagree with. It may end up being true that lying in a variety of situations activates the same part of the brain, and if so then a low-stakes relaxed lie in a neuro experiment would be sufficiently similar to a high-stakes lie in a difficult cross-examination, and evidence of the former should be as admissible as the latter. There are good reasons to think that this won’t be true, since lying is probably a distributed process, but requiring that much similarity between the laboratory process and the court analogue is unfair and not warranted by the state of scientific knowledge at present. Similarly, asking courts to consider the role and possibility of intentional fMRI counter-measures is ridiculous, in light of the fact that scientists who work in the field have no idea if specific countermeasures would be effective, or to what degree. This is just a general case of the more useful statement that more research needs to be done, easily countered with the observation that the quality of scientific testimony will improve as that work happens.

I have a similar analysis of the rest of the authors’ proffered elements that courts should consider when deciding to admit or not admit brain-based evidence. They are asking courts to take the place of peer review, and they are suggesting that evidence shouldn’t be admitted until it’s above a threshold of consensus and consistency that no other field of scientific evidence satisfies or can satisfy. They are moreover asking the court to make judgments about the weight of the evidence, which is for the jury, and to make expert conclusions which, one presumes, a judge will not be qualified to make. Applying the same sort of rigorous and unwieldy analysis would make it impossible to prove that cigarettes cause cancer, for example, because while there is a fairly firm scientific consensus that this is so, there are plenty of alternative theories, and it’s hard to extrapolate from population studies to an individual, and so on.

While their conclusion is hopeful, and while their concerns are valid, their paper suffers from a failure to compare even admittedly faulty neuroscience evidence to what we use now. Consider an analogy between psychology and the uninformed, intuitive approach to mental illness. As a proponent of neuroscience, I would be the first to criticize much of psychology as a vague and muddy process in which multiple contradictory ideas of the brain co-exist, and in which the legitimate data from behavioral psych is shoe-horned into hasty amalgamates of theory as is convenient. However, while the psychological approach to mental illness has obvious and continuing problems, it is vastly superior to, for example, theories of mental illness that equate it to the result of witchcraft. Requiring psychology to have become internally consistent, repeatable, and easily applied from the group to the individual before allowing it to make an appearance in the law would have prolonged the dark and inhumane time in which we treated mental illness with simple violence. A method of scientific investigation can be full of holes and still appreciably better than the often vicious natural approach, which is all that law has to use in the absence of an admittedly imperfect scientific approach.

In considering neuroscientific evidence on lying, we need to temper criticism and concern over new technologies with a frank understanding of the fact that people are exceptionally poor lie-detectors themselves. The law essentially ignores this by making the jury process a black box, but there is no excuse for commentators on the law, scientists included, not to consider that even a crude and defective scientific approach may be exponentially better than the status quo.

The Winding Path Neuroscience Will Take into the Law

While my writing focuses mostly on criminal law and the implications of neuroscience for that field, the truth is that new science generally gets to criminal law last. This is largely, I think, because the litigants in criminal law tend to be poor, either because they’re poor individuals or because they are the state, and don’t have the time or money to put towards new-fangled technology.

In civil law, however, new technology can be introduced by relatively better-off litigants and arguments for its acceptance can be pitched intentionally to courts most likely to be receptive. Accordingly, examples of lawyers trying to convince courts to accept neuroscientific evidence in torts cases already abounds, though reception has been mixed. Take the limited example of an fMRI scan of the pain regions of the brain; a plaintiff claiming soft tissue damage has an obvious advantage in getting a dramatic positive scan admitted, since pain and suffering from soft tissue is very difficult to prove. An insurance company on the other side of the lawsuit has a correspondingly great interest in getting a negative scan admitted, though I haven’t heard of any defendants moving for admission of tests on the plaintiff yet. Presumably, though, if it becomes relatively easy for plaintiffs to introduce their own results, defendants will in time find their own consulting labs and start asking courts to direct plaintiffs claiming especial physical pain to undergo evaluation by their own experts. In this sense neuro evidence will be analogous to imaging or specialized medical expert opinion, but the implications are fairly profound.

First, once the law has accepted that something like pain can be quantified sufficiently precisely for legal purposes, it is only a matter of time before we accept that other mental states, like depression or anxiety, can be similarly detected. In fact there are already treatments based on inhibiting or exciting parts of the brain using tCMS, and so the science there is evolving rapidly. Someone asking for damages related to PTSD or a similar mental problem could very well seek to introduce a series of scans showing unusual activation or lack of activation in the associated brain regions, and again a defendant in a similar case could ask the court to order that the plaintiff undergo a series of tests by a preferred neuro lab.

This of course raises more profound issues than making someone who has a broken arm submit to an X-ray, insofar as people who suffer from mental illness are often dogged by allegations of malingering, which is the technical term for faking it. Unfortunately some people actually are faking it, but some people may have misdiagnoses that result in neuro imagers looking in the wrong place. While distressing, these are technical problems to be ironed out by disinterested researchers, and it can be safely assumed that those improvements and safeguards will in time be read backwards into the legal use of such evidence.

More challenging will be the use of neuroscientific evidence in cases of civil commitment. Generally people being forcibly interred in mental hospitals by the state are poor, and so this area of law will be slow to incorporate new discoveries, but every so often there’s a high-profile civil commitment brought against someone whose family has the means to explore new technological defenses. We already have some good preliminary neuro-typing of, for example, schizophrenia, and in my experience many mentally ill people can hold it together for about 15 minutes. Neural imaging taken during this interval would probably show less disturbed activity, which could help convince a court that the person was merely eccentric, not insane. Initially I would expect the court to counter with the same process the state generally uses now, that of keeping the allegedly mentally ill person in court or on the stand until their 15 minutes of seemingly normal behavior is up and their illness reasserts itself, but in an important and well-funded case the state might very well move to counter neuro evidence introduced by the party’s attorney with neuro evidence of their own.

This process nudges the institutions of the law that the brain is responsible, in a deterministic, predictable way, for behaviors as well as sensations. This is obvious in an intellectual sense to everyone who isn’t a Cartesian, but the implications are generally not appreciated, and of course law has a muddled and incoherent approach to human behavior anyway. What I’m proposing here is sort of a marketplace analogy: self-interested litigants will have more to gain from neural evidence as the technology and science improves, and by degrees will prompt the law to consider and then accept findings from a new and controversial field. My hope is that, having accepted the validity of neuroscientific evidence for wealthy people or cases involving large amounts of money, it will be easier to convince legal institutions to accept neuroscientific defenses or other evidence for the poor and less influential people that generally populate criminal law.

This is not to say that I don’t expect neuroscientific evidence to be introduced in the occasional high-profile criminal trial, I just don’t expect that the evidence will be received. The law is especially conservative when faced with high-profile, novel defenses, and unfortunately the majority of writing and directed research on legal aspects of neuroscience at presence is solidly against its use as a tool of criminal defense and penal reform. I expect that neuroscience will have to forsake the high road of appealing to justice and sense, and instead take what we could well consider the royal road of relying on the interests and influence of the well-moneyed. Fortunately the likely end result is the same.

Neuroplasticity and the law

I’ve been reading Dr. Doidge’s The Brain that Changes Itself, which has its own website here. The book is largely an exploration of the new developments in neuroplasticity, which is the study of how and to what degree the brain can change itself in reaction to new environments or stimuli. There are a lot of personal stories, but the science is well-developed and compelling presented. Doidge is clearly in favor of a less rigid view of the brain, and feels that the science is well developed enough at this point to start looking directly at the brain’s powers of recuperation and adaptation via self-propelled change. He manages to recruit Dr. Ramachandran, which is kind of surprising insofar as Ramachandran’s work on micro-tumors relies on a fairly doctrinaire locationalist perspective in order to generalize from one patient to the human brain, writ large. I expect Ramachandran himself would point to a distinction between what the brain does by default when faced with localized, discrete damage and what the brain can do to work around that damage, given the right input.

In fact the question of the right input is critical to the work as a whole. Doidge states and argues fairly convincingly that the brain is capable of repairing itself in remarkable ways if it has no other viable option. His (admittedly anecdotal) approaches to stroke rehab, for example, rely on things like immobilization of the good arm, or a refusal to invent compensatory mechanisms for a patient who may be able to recruit other areas of the brain to do the work done previously by the damaged region. Doidge’s best example is probably a woman who has literally half a brain, and yet manages to be normal in many ways. The point is convincingly made that the general details of brain anatomy and function are default blueprints only, and trauma or consistent, focused attention can shift brain maps in ways we haven’t appreciated in neuroscience previously.

As far as neuro and the law goes, the importance of this sort of work is that it helps underscore how lamentably poor our idea of the brain is now, and how absurd it is to base a system of justice on such an outdated model. The importance of plasticity generally, I think, is that the brain needs to be understood as a system, inherently conservative and plastic to a remarkable degree, but only when it has to be.

Recidivism is as good a topic as any to explore the importance of plasticity with. Extrapolating from what Doidge shows us about stroke recovery and about the inter-connectedness of, for example, audio skills and autism, we can come to the general conclusion, reached through other routes here and elsewhere, that rehabilitative methods can work. A change in the brain is what we want in a chronic criminal offender, and the magnitude of change would be much less than that seen in some of the catatonics or near-paralytics that Doidge shows regaining so much language and function. However, the catch is that rehabilitative efforts need to be consistent, well-informed, and will probably not involve the normally utilized, intuitive methods.

I’ve covered elsewhere my frustration with the base cruelty of running people through rehabilitative programs that have no scientific grounding other than a vague appeal to the sorts of fuzzy theories of human behavior that circulate through many of the social sciences. I think most modern commentators would agree that society is justified in putting dangerous criminals through some sort of educational or otherwise rehabilitative program, and I think that we are obliged to try to cobble together something that actually works. Neuroplasticity is an interesting avenue, and would benefit immensely from the coming advances in neural imagining technology. Fundamentally, though, the changes we want are behavioral, and so confirmation via imagining is not necessary once a program becomes established.

What I think we need from the field of neuroplasticity is an identification of the sorts of stimuli that will reliably change the brain, and a ballpark figure for how long a decent program will take. Doidge constantly impresses the need for focused attention or apparent necessity as spurs to neural change, and this dovetails nicely with the old refrain from psychology about the patient needing to want to change. In our example here, incentives are obviously important and some sort of benchmarking and accountability would be required to make sure the program wasn’t as futile as most we now employ, but we can mine the work of neural researchers to find particularly productive techniques.

I am aware of the constant trepidation when importing procedures from the real sciences to maladaptive, unpredictable, and corrupt institutions like prisons. I maintain that the greatest cruelty of prisons is that they do not work, and while I have no doubt that new techniques out of neuroscience will be abused, sometimes terribly so, I do not think that resting comfortably on the mediocrity of our present approaches is any sort of solution. I suspect that prisons will get less violent, less irrational, and less corrupt as they become more successful at the basic project of preventing people from coming back. I suspect as well that the noisome mouth-pieces of Retributivist thought will find less and less to talk about if crime falls and if more people are able to come out of prison and somehow come back into society. I think that more than justifies the risk of the misuse of newer and more effective rehabilitative strategies.