Scientific developments take place in a socio-political context but scientists often ignore the ways their innovations will be both interpreted by the media and used by policy makers. In the rush to neuroscientific discovery important questions are overlooked, such as the ways: (1) the brain, environment and behavior are related; (2) biological changes are mediated by social organization; (3) institutional bias in the application of technical procedures ignores race, class and gender dimensions of society; (4) knowledge is used to the advantage of the powerful; and (5) its applications may reinforce existing structures of power that pose ethical questions about distributive justice. The case of crime, deception and functional Magnetic Resonance Imaging (fMRI) shows the complexity, and the political and ethical challenges that confront those who seek to use neuroscience to explain the etiology of crime, and who base policy on its findings. An ethically grounded neuroscience needs to take account of existing structures of power and difference, and to develop a public neuropolitical consciousness that ensures that those subject to risk by the application of science and technology are participants in the decision-making processes involving the implementation of policies that affect them.
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Since 2008 the field has had its own journal Neuroethics. This growth is particularly acute for the use of fMRI in neuroscience. See, for example, the special issue of The American Journal of Bioethics in 2005, especially articles by Leshner (2005) and Illes and Racine (2005). As one indicator of this growth Illes and Racine report that research studies using fMRI grew from 15 in 1991 to 2,224 in 2003 or 56 % per year (2005).
See for example, Henry Greely's article “Prediction, litigation, privacy, and property: Some possible legal and social implications of advances in neuroscience” (2004) for an extensive review of legal issues of neuroscience and neuroimaging.
For an approach that integrates these different levels of crime causation see the work of Robinson and Beaver (2009).
See, for example, Biosocial theories of crime by Beaver and Walsh (2010) who argue that most are sociologists without any biological education or training.
An interesting article by Hackman et al. presents findings which “provide a unique opportunity for understanding how environmental factors can lead to individual differences in brain development, and for improving the programs and policies that are designed to alleviate SES[socio-economic status]-related disparities in mental health and academic achievement” (2010, p. 651).
Fishbein (2006) also provides an integrative perspective.
While neuroscientists generally recognize the difficulty of designing experiments to target those cognitive aspects with correlated brain areas, this does not seem to extend to criminologists advocating policy based on their research.
This is established from victimization surveys of the general population. The reported rate of crime victimization is found to vary by offense and is higher when injury or high value property is involved such as auto theft (92 % reported), compared with robbery (61 % reported), burglary (45 % reported), or low value personal larceny (15 % reported) (Lanier and Henry 2004).
The studies referred to here are based on a sample of 41, 39 men and 2 women (Raine et al. 1997).
The reasons for referral included: “schizophrenia (6 cases), history of head injury or organic brain damage (23), history of psychoactive substance abuse (3), affective disorder (2), epilepsy (2), history of hyperactivity and learning disability (3), and passive aggressive or paranoid personality disorder (2)” (Raine et al. 1997, p. 496).
While this would be difficult research to conduct, it might be possible to look at the neuropsychology of those convicted of murder, and then found to be innocent, although that adds the complication of the effects of imprisonment on their brain functioning.
This is the process of being socialized into prison life and culture and how this affects subsequent relationships once released.
fMRI currently has not been admitted as evidence since the evidence for research of its effectiveness has to be accepted by the scientific community and so far it has been ruled not to meet the Daubert standard; see the Lorne Semrau fraud case in which the court threw out the fMRI evidence in spite of expert testimony from Steven Laken, the C.E.O. of Cephos and researcher Andrew Kozel. For a summary see Discover Magazine (2010).
While it is possible that deception can produce different patterns of brain activity than simply showing an increase in one or more areas compared to truth telling, the evidence so far (Langleben et al. 2006; Mohamed et al. 2006) suggests only an increase in brain activity in certain areas is correlated with deception. So the potential for deception being associated with a decrease in some areas and an increase in others, makes it less easy to distinguish from truth telling. The same variable pattern would also be likely in truth tellers. Indeed, as indicated, those who genuinely believe in the truth of their deception would likely be indistinguishable from truth tellers, regardless of whether the deceivers’ brain activity went up in some areas and down in others.
The U.S. population as of 2010 comprised 16.3 % Hispanic, 12.6 % African American (US Census Bureau 2011). In contrast African Americans accounted for 39.4 % of the prison and jail population in 2009 and Hispanics accounted for 15.9 % of all those incarcerated (Bureau of Justice Statistics 2010). These data indicate that African Americans are disproportionately represented in the criminal justice system.
White collar offenders may be more representative of the subjects in the fMRI studies.
In fact, “No Lie MRI” is pitched toward corporate interests by suggesting that subjecting financial officers and Chief-Executive-Officers to testing in making earnings statements would improve investor trust, lower a company’s risk and increase its value: “Investors discount future cash flows, resulting in lower perceived net present values of possible investments due to the potential of deception from unverifiable claims made by corporate officers of potential investment. These corporate officers could receive higher valuation of the potential investment by lowering the risk to the potential investors. No lie MRI increases value by reducing risk through mental verification.” (No Lie MRI 2006). Similarly, the detection technology is also pitched at employers to improve employee dishonesty and fraud through effective honesty and drug use screening, arguing that there is no law against this practice, unlike the use of lie detector tests.
The authors included Steven Laken of Cephos whose corporation also helped to fund the study.
In addition, Greely and Illes (2007) call for regulations restricting use of neuroimaging lie detection technology outside of the research setting until it has proven to be safe and effective.
Research has shown that “neuroscientific evidence has an unusual persuasive power… that inspires a level of trust that is not warranted by the actual data behind it” (Robinson 2010) and that this effect is more persuasive on those least informed about the science (McCabe and Castel 2008; Robinson 2010; Weisberg et al. 2008).
For an overview of neutralization theory see “Excuses, excuses: What have we learned from five decades of neutralization research?” by Maruna and Copes (2004).
This relates to the wider debate in neuroscience about how long-standing cultural values and practices can shape and structure neural processes, including those involved in moral decision making, “perhaps leading not just to functional differences but to truly constitutional brain differences between cultures” (Keestra 2012, p. 238), groups, and subgroups. See also Park and Huang (2010); Han and Northoff (2008).
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We thank Machiel Keestra, Institute for Interdisciplinary Studies, University of Amsterdam, and several external reviewers for their constructive comments on an earlier version of this article.
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Henry, S., Plemmons, D. Neuroscience, Neuropolitics and Neuroethics: The Complex Case of Crime, Deception and fMRI. Sci Eng Ethics 18, 573–591 (2012). https://doi.org/10.1007/s11948-012-9393-4
- Biosocial theories of crime
- Brain and criminal behavior
- Criminal justice policy