In a Hammerschmidt Chapel classroom last spring, Katrina Sifferd was leading the seven students in her Philosophy of Law class through a discussion of Roper v. Simmons, the 2005 case in which the U.S. Supreme Court ruled that it was unconstitutional to impose capital punishment for crimes committed by a person under the age of 18. Sifferd, an assistant professor of philosophy, called her students’ attention to one particular kind of evidence considered by the court: neuroscientiﬁc studies about the development of the adolescent brain that account for the juvenile tendency to act recklessly, dangerously and on impulse.
“There’s science in there again, isn’t there?” Sifferd asked from the front of the room, as her students worked through the court’s ruling.
Over the last decade or so, the intersection of law and neuroscience has become a very busy place. Armed with new brain-scanning and visualization technologies that seem lifted from science ﬁction, scientists are peering into the working brain and unraveling our very decision-making processes. What they learn from those scans is heavy with implications for courts and for scholars like Sifferd. For better or worse, brain science promises to alter legal notions about when defendants are culpable for the things they do and how they should be punished or treated.
“These technologies give us insight into who we are,” Sifferd said in her faculty office after class. But they also pose thorny challenges for the legal system. When can brain scans be introduced as evidence? Do judicial applications of brain science violate personal privacy? Do they violate protections against self-incrimination? Should neurological “enhancements” or involuntary rehabilitations that aim to change an offender’s character be considered among the menu of sentencing options? “We’re reconceptualizing what it means to be human and responsible for our actions,” Sifferd said.
Neuroscience already is creating new kinds of evidence. A technology called “brain ﬁnger-printing,” based on electroencephalogram readings, is said to offer a new and improved version of lie detection by revealing “guilty knowledge,” memories that only a culpable person could possess.
Some of the possible applications of brain science evoke a future out of Minority Report. Consider neural implant devices that would permanently alter offenders’ desire structures, freeing the homicidal, for example, from their most violent impulses. Sifferd argues that applications like these “pose such a risk to personal autonomy that they can’t be justiﬁed.”
Fresh ethical dilemmas
At a conference on new technologies and the law in June, at the University of Pavia in Italy, Sifferd presented a paper that looked at how emerging neurotechnologies might change criminal sentencing. Traditionally, criminal law incapacitates offenders by altering their environment—that is, placing them in prison or under house arrest. But what if courts could alter offenders themselves: for example, through “neural castration” for convicted pedophiles?
Sifferd ﬁnds the prospect ethically troubling. “The use of these technologies in sentencing can be seen as starting down a slippery slope that will ultimately lead to serious violations of offenders’ agency,” she argued, “which translates into nothing less than treating offenders as though they are less than human.”
Indeed, each technological advance seems to bring with it fresh ethical dilemmas. The pace of change is rapid enough to keep philosophers busy; all the activity even has spawned a new academic subdiscipline called neuroethics. Sifferd is helping to deﬁne the ﬁeld. Her article on neuroethics appears in the forthcoming Encyclopedia of Human Behavior (Elsevier, 2011).
“The point of ethics is to think about these issues in advance,” she said. “Philosophers would like to think that they’re way out ahead, but actually we’re running in lockstep with science.”
Sifferd’s training provides her a unique perspective on neuroscience’s growing presence in the courts. She holds degrees in both philosophy and law (her philosophy Ph.D. is from the University of London and her J.D. from DePaul University). Before coming to Elmhurst she was a Rockefeller Fellow in Law and Public Policy at Dartmouth College.
"I’m lucky to be working right next door to someone who knows neuroscience so well,” Sifferd said. Her next-door neighbor in the suite of basement offices in the chapel is William Hirstein, the chair of the philosophy department, who has written extensively on brain science. (His 2009 book Confabulation, from Oxford University Press, was named one of the year’s best books by The New Scientist magazine.) In an article published in the journal Consciousness and Cognition, Sifferd and Hirstein argued that an area of the prefrontal lobe can be identiﬁed as “the legal self,” the part of the brain that makes us responsible in the legal sense. Sifferd also is developing a course in neuroethics, with Assistant Professor of Psychology Patrick Ackles, that will be offered for the ﬁrst time in spring 2012.
Philosophy always has reached across traditional academic boundaries. But the emerging debate on neuroethics is remarkable for the way it draws on the work of psychologists, physiologists, lawyers and philosophers. “Everyone wants to be interdisciplinary now,” Sifferd said, “but this really is one of the best examples of interdisciplinary cooperation in the modern age.”