GUILTY MINDS: NEUROSCIENCE & CRIMINAL LAW SYMPOSIUM Neuroscience and Sentencing Denver, Colorado March 3, 2011 Copyright 2011 Ken Murray.

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Transcript GUILTY MINDS: NEUROSCIENCE & CRIMINAL LAW SYMPOSIUM Neuroscience and Sentencing Denver, Colorado March 3, 2011 Copyright 2011 Ken Murray.

GUILTY MINDS: NEUROSCIENCE & CRIMINAL LAW SYMPOSIUM Neuroscience and Sentencing

Denver, Colorado March 3, 2011

The Brain In Capital Cases: What Color is Culpability on that Scan?

Are we our brai n Ken Murray, AFPD

Federal Public Defender, Capital Habeas Unit 850 W. Adams St. Suite 201 Phoenix, AZ 85007 602-382-2818 ken_murray@fd

org

Capital Case Sentencing

•

Lockett v. Ohio, 438 U.S. 586, 604 (1978)

– [W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a any of the

defendant's character

or record and

circumstances of the offense

that the defendant proffers as a basis for a sentence less than death.

–

But see Tennard v. Dretke

and

Smith v. Texas

cases re: mitigation and causal nexus

Capital Case Sentencing

•

Requires assessment of both:

–

the nature of the offense

•

harm to society

–

the individual involved

•

History of Mitigation in Capital Cases

• None, pleas for mercy, or evidence inconsistent with trial phase • Humanization of defendant – aka “Abuse Excuse” • Humanization with “scientific” explanation – Mental health professionals • Humanization with corroborating scientific evidence – PTSD, BWS, XYY Syndrome, Serotonin levels, Fetal Alcohol Syndrome • Modern Scientific Evidence – Behavioral genetics • Landrigan v. Stewart – Brain scan research re: psychopathy • Brian Dugan

Neuroscience in Capital Sentencing

• Should we use neuroscience evidence?

–

How

• Does it further the goal of individualized sentencing in capital cases?

• Is the science ready?

– Who is to decide?

– The scientists or the courts?

The Supreme Court and Science

• Hesitant to accept, unless it gets them where they want to go – Ex.

Witherspoon v. Illinois

(1968) and

Lockhart V. McCree

(1986) – death qualification of juries • • SCOTUS held DQ not prohibited by Constitution

See

Donald N. Bersoff,

Psychologist and the Judicial System: Broader Perspectives

, 10 L. & Hum. Behav. 151, (1986) •

Lockhart

suggests most Justices are hostile towards social psychology, do not understand it, believe empirical research . . . is no more reliable than intuition and anecdotal evidence, . . . and has no place in [the law].” – J. Alexander Tanford,

The Limits of Scientific Jurisprudence: The Supreme Court and Psychology

, 66 Ind. L.J. 137, 147 (1990)

Capital Case Sentencing

• The use of neuroscience evidence in these cases is a dual edged sword with tremendous risks • Law and Biosciences Daily Digest at lawandbiosciences.com

– Aggravation (the nature of the offense) – Mitigation (the nature of the individual) • Need to consider the differences between law and science

Science vs. Law

• “[W]hile science attempts to discover the universals hiding among the particulars, trial courts attempt to discover the particulars hiding among the universals.

” – David L Faigman,

Legal Alchemy: The Use and Misuse of Science in the Law

(1999) • Problem of distinguishing between general and specific causation; between group and individual data and assessments –

See

Francis X. Shen and Owen D. Jones,

Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons

, availabl;e through SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1736288

Poor Psychology Produces Poor Law

, Law and Human Behavior, Vol. 16, No. 2, 233 (1992) Both Psychology and Law are concerned with human behavior.

Law depends on what everyone knows and believes about human behavior, upon common knowledge .

distrusts common In contrast, knowledge and psychology substitutes knowledge based on empirical data systematically gathered and rationally analyzed. This conflict may cause misunderstanding between law and psychology.

Assumptions, Myths, and Fictions

• Law likes, so must create, order – Individuals are practical reasoners (free will) – Individual brains are equal on average – The Reasonable Person standard does exist •

, impact of science on criminal justice system: – Judging based on “known” reasonable person, or – Judging unknown or speculative brain deficiencies or acticvity

Capital Case Sentencing

•

Penry v. Lynaugh, 492 U.S. 302, 324 (1989)

– The Court characterized the evidence of Penry's mental retardation and history of childhood abuse as a “

two-edged sword

,” because “it

may diminish his blameworthiness

for his crime even as it indicates that there is a probability that he will be

dangerous in the future

”

Capital Case Sentencing

•

Tison v. Arizona, 481 U.S. 137, 156 (1987)

– A

critical facet

of the individualized determination of culpability required in capital cases is the

mental state

with which the defendant commits the crime. Deeply ingrained in our legal tradition is the idea that

the more purposeful is the criminal conduct, the more serious is the offense

, and, therefore, the more severely it ought to be punished.

Neuroscience Defining Culpability?

Culpable Free Will Diminished Culpability Burdened Will Not Culpable Corrupted Will APD Psycopathy B. Dugan?

Brain Tumors P. Martinelli

Frontal Lobe Epilepsy PTSD ???

MITIGATING VALUE

Addiction Chris Benoit Severe Brain Damage Phineas Gage

FEEDING THE HUNGRY BEAST (2/26/11)

Syndey Morning Herald "There is now a lot of biological evidence from brain scans, PET scans, genetic studies and so forth that show that pathological gamblers have similar profiles to other addictions in their brain chemistry, brain reactivity and so forth."

ALTON COLEMAN

• Multistate serial killer • Aggravation and high publicity • Mitigation not effectively presented at trial • 2 Sixth Circuit opinions • Clemency • RESULT?

LANDRIGAN

• Genetic predisposition • “The prospect was chilling; before he was 30 years of age, Landrigan had murdered one man, repeatedly stabbed another one, escaped from prison, and within two months murdered still another man. As the Arizona Supreme Court so aptly put it when dealing with one of Landrigan's other claims, ‘[i]n his comments [to the sentencing judge], defendant not only failed to show remorse or offer mitigating evidence, but he flaunted his menacing behavior.’ On this record, assuring the court that genetics made him the way he is could not have been very helpful. There was no prejudice.”

Role of Neuroscience

• Promoting a Disease Based Theory of Crime – Jeffrey Kirchmeier,

A tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Theory of Criminal Justice

, 83 Or. L. Rev. 631 (2004) • Challenging legitimacy of retribution in sentencing equation – O. Carter Snead,

Neuroimaging and the “Complexity” of Capital; Punishment

, 82 N.Y.U. L. Rev. 1265 (2007) • Looking toward enhanced ability to predict recidivism and individualized sentencing – David Eagleman,

Neuroscience and the Law

, 45 Hous. Lawyer 36 (April 2008)

Role of Neuroscience

• Questioning how fact-finders will deal with neuroscience evidence that conflicts with their “common sense” beliefs – Michael L. Perlin,

She Breaks Just Like a Little Girl: Neoanticide

the Insanity Defense, and the Irrelevance of Ordinary Common Sense

, 10 Wm. & Mary J. Women & L. 1 (2003) • Noting the long history of the law seeking “biology based” explanations of criminal behavior, opining that we are at “a moment of renewed infatuation,” and warning about the use of “well intentioned but inadequately reasoned research.” – Amanda Pustilnik,

Violence on the Brain: A Critique of Neuroscience in Criminal Law

, available at http://digitalcommons.law.umaryland.edu/fac_pubs/1035/

Role of Neuroscience

• [S]ome defense counsel will

refuse to offer evidence of defendant’s predisposition

to violence, aggression, and related behavioral traits in fear that the evidence will backfire against the defendant. Unless such evidence can be used in a way that avoids the double edge,

refusing

to use it

may be a prudent choice: a judge and a jury are much more likely to be influenced by the defendant’s antisocial conduct and the suggestion of his continued dangerousness than by a possible biological explanation

– N. Farahany and J. Coleman,

Criminal Responsibility Genetics, Neuroscience, and

(Chap.

7, THE IMPACT BEHAVIORAL SCIENCES ON CRIMINAL LAW) OF

The Brain In Capital Cases: Are we our Brain?

Capital Sentencing Blues

• Neuroscience is here to stay – Both sides will offer and fight – The Courts will struggle – The Fact-finders may be confused, mislead, or helped • Key is to use neuroscience as a single piece of the puzzle • It is part of a complex explanation of behavior – there are no shortcuts!

– It is NOT

per se

exculpation

Capital Sentencing Blues

• Questions asked: – Will use of neuroscience further the goal of individualized sentencing in capital cases?

• Maybe – Will it enhance reliability and accuracy in capital sentencing?

• No – Will it result in less arbitrary sentencing?

• No