Abstract
When does neuroimaging constitute a sufficiently developed technology to be put into use in the work of determining whether or not a defendant is guilty of crime? This question constitutes the starting point of the present paper. First, it is suggested that an overall answer is provided by what is referred to as the “ideal comparative view.” Secondly, it is—on the ground of this view—argued that the answer as to whether neuroimaging technology should be applied presupposes penal theoretical considerations. Thirdly, it is argued that the retributivist theory of punishment is not well-suited for delivering the sort of theoretical guidance that is required for assessing the desirability of using neuroimaging in the work of the criminal court.
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Notes
The number of articles on neurotechnological lie detection has been growing rapidly in recent years. However, for a collection of papers on this topic, see Buzzi (2009).
For a fine overview see, for instance, Greely (2013).
However, for an overview of how neuroscience has already been used in criminal courts in different countries, see Sprage (2012).
As mentioned, the question as to whether neuroimaging should be used in the the criminal court is quite complex. An adequate answer would presuppose engagement in several sorts of considerations. First and foremost, an answer would depend upon the develpment of the technology itself. However, it would also depend upon the extent to which the court is able to apply and understand the technology and its results. Moreover, an answer would require considerations on when the technology is used, that is, whether the court is able to distinguish between cases in which the use of the technology has probative value and cases in which there is no such value. However, since the purpose here is not to present an adequate picture of when neuroscientific knowlegde and technology should be used in the court, but rather to direct attention to a paticular (and ignored) aspect of the discussion, these more detailed issues will not be addressed in what follows.
For a parallel between neuroscience-based lie detection and the control and use of new drugs, see also Greely and J. Illes (2007: 414).
I am here assuming that the question of justified use of neurotechnology in a courtroom context should be taken as an overall decision. As I shall return to in Sect. 4 below, I believe there are strong reasons in favour of this assumption.
The only one—to my knowledge—who has directed attention to the significance of comparative considerations is F. Schauer (2009).
Strictly speaking, it is not sufficient only to compare a state in which the court relies on standard methods and a state in which it relies on standard methods in conjunction with the use of neuroimaging. In order to be plausible, one would also have to draw into the comparison any new alternative methods that could have been implemented had one decided not to implement neuroimaging technology. However, given the purpose of this paper, this detail is not important and will be ignored in the ensuing discussion.
Obviously, possible restrictions on the general use of neuroimaging could be based both on consequentialist considerations (proscribing certain types of use that would not have the most desirable consequences) and on deontological constraints proscribing ways of using neuroimaging irrespective of the overall balance of the consequences.
Obviously, this assumption becomes more controversial if we turn form the question of the use of neuroimaging (which I am considering here) to the use of neurointerventions that manipulate or modify the human brain.
As mentioned, much of the discussion has focussed on the much narrower question as to whether the use of neuroscientific evidence satisfies legal standards of admissibility.
What I am defending here is what could be called an “instrumentalist” justification of the trial according to which the trial is justified as an engine for getting at the truth and, thereby, for ensuring that the guilty are punished and the innocent is not. However, some might hold that there are non-instrumental reasons in favour of the trial. I do not here wish to reject the latter view. In order to justify the considerations presented here it is sufficient to accept that there are strong instrumental reasons in favour of the trail. See the discussion below (Sect. 4).
To avoid misunderstandings it should be underlined that the point here is not to suggest that this is the likely result of the utilitarian calculus, but merely to show that this result is a possibility.
Bentham (1843: 383). What he writes in this oft-quoted passage is that: “General prevention ought to be the chief end of punishment as it is its real justification. If we could consider an offence which has been committed as an isolated fact, the like of which would never recur, punishment would be useless. It would be only adding one evil to another”.
For instance, Singer has suggested that confinement should be reserved only for the most serious crimes and specifically underlines that retributivism is not a “throw away the key” approach to punishment [Singer (1979: 44)] Likewise, Murphy claims that if retributivism is followed consistently, one would probably punish less and more decently than one actually does [Murphy (1979: 230)]. And von Hirsch holds that the terms of imprisonment should seldom exceed five years even for the most serious crimes [von Hirsch (1993: Chapter 10)]. However, it should be underlined that the point here simply is to sustain the claim that it is not necessarily desirable from a retributivist point of view that more defendants are accurately convicted. Thus, the following considerations do not hinge on the assumption that criminals are currently being overpunished (a view which other retributivists might not be as willing to accept as those quoted here (see e.g. Corlett 2014).
As often described, there exists a number of relaxed versions of retributivism (e.g. negative retributivism, limiting retributivism, etc.) which in different ways deviate from the strict positive retributivist view that perpetrators should be punished in a way that is proportionate to the gravity of the crime committed. Though I cannot show this here, I believe these modified views do all face challenges analogous to those to which I shall direct attention in the following.
For instance, this could happen if, in some cases, neuroimaging is attributed an unvalidated credibility, that is, if people tend to believe brain scans to have more evidentiary value than they actually have. See Weisberg et al. (2008).
As mentioned, this includes both cases where innocents are being punished and cases in which those who are guilty do not get the punishment they deserve.
The view that there is an important moral difference between the two types of deviation is probably what has led some theorists to subscribe to negative retributivism, according to which there is a constraint against punishing too severely but not against punishing in a disproportionately lenient manner. See, for instance, Ryberg (2004: Chapter 6).
Obviously, I cannot establish that it is impossible for the retributivist to deal with the outlined challenges. However, as I have argued elsewhere (Ryberg 2004 and Ryberg 2010) the retributivist is already faced with a plethora of theoretical challenges when it comes to the ranking of crimes in gravity, the ranking of punishments in severity and, not least, the matching of the two scales. In this light, it is not hard to see that the comparison of states of injustice will be theoretically highly demanding.
It is worth underlining that in this paper I have only focused on some of the theoretical challenges that confront the retributive approach of punishment. But it is obvious that the question as to whether the ideal comparative view is satisfied if neuroimaging is put into practice gives rise to epistemological challenges as well. It will in many cases be very hard to make estimates on how many—and to what extent—people would have been unjustly punished had one chosen an alternative course of action; that is, to make the relevant type of comparison.
What I am suggesting is that there are several reasons in favour of making general overall decisions on whether it is at all acceptable to use a certain type of neurotechnology in the courtroom. However, this sort of overall decision—which may account for the broader consequences that the use of this technology will have for society—is fully compatible with a procedure according to which judges decide, in each individual case, whether the use of a neurotechnology (if it is accepted at the overall level) is relevant for the case. The overall decision on whether a certain type of neurotechnology should be accepted will of course be contingent on the sort of legislative framework that provides the guidelines for the decisions of judges in individual cases. In the present context, there is not sufficient space to elaborate any further on nature this sort of double decision procedure.
Recall, for instance, the number of cases of people who have been imprisoned for murder or rape and who have been cleared after the implementation of DNA tests. And even today, DNA tests have become one of the standard methods; it is also well-known that eyewitness testimonies are far from reliable (see e.g. Davis and Loftus 2012; or Garrett 2011). For a more general discussion presenting case studies on convictions that were wrongly obtained, see Westervelt and Humphrey (2001).
Even though the positive retributivist view, that there is not only a constraint against punishing too severely, but also against punishing too leniently, is probably more appropriately phrased in terms of a positive duty.
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Ryberg, J. When Should Neuroimaging Be Applied in the Criminal Court? On Ideal Comparison and the Shortcomings of Retributivism. J Ethics 18, 81–99 (2014). https://doi.org/10.1007/s10892-014-9166-1
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DOI: https://doi.org/10.1007/s10892-014-9166-1