GUILTY MINDS: NEUROSCIENCE & CRIMINAL LAW SYMPOSIUM Neuroscience and Sentencing Denver, Colorado...

GUILTY MINDS: NEUROSCIENCE & CRIMINAL LAW SYMPOSIUM

Neuroscience and

Sentencing

Denver, Colorado March 3, 2011

Copyright 2011 Ken Murray

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

Scan?

Ken Murray, AFPDFederal Public Defender, Capital Habeas Unit

850 W. Adams St. Suite 201Phoenix, AZ 85007

[email protected]

Are we our brain


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 defendant's character or record and any of the 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



• Requires assessment of both:

– the nature of the offense• harm to society

– the individual involved• culpability or blameworthiness


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)



• 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


Both Psychology and Law are concerned with human behavior. Law depends on what everyone knows and believes about human behavior, upon common knowledge. In contrast, psychology distrusts common knowledge and substitutes knowledge based on empirical data systematically gathered and rationally analyzed. This conflict may cause misunderstanding between law and psychology.

Poor Psychology Produces Poor Law, Law and Human Behavior, Vol. 16, No. 2, 233 (1992)


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

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

or acticvity



• 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.”



• 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

APDPsycopathy

Brain Tumors

Frontal Lobe Epilepsy

PTSD

AddictionSevere Brain

Damage

B. Dugan? P. Martinelli ??? Chris Benoit Phineas Gage

Not Culpable

Corrupted Will

MITIGATING VALUE

?


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, Genetics, Neuroscience, and Criminal Responsibility (Chap. 7, THE IMPACT OF BEHAVIORAL SCIENCES ON CRIMINAL LAW)


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



Neuroscience and

Sentencing



Neuroscience and

Sentencing

Denver, Colorado March 3, 2011

Ken Murray, AFPDFederal Public Defender, Capital Habeas Unit

850 W. Adams St. Suite 201Phoenix, AZ 85007

[email protected]


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GUILTY MINDS: NEUROSCIENCE & CRIMINAL LAW SYMPOSIUM Neuroscience and Sentencing Denver, Colorado...

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