The notion of intentionality has always been a central concept in legal discourse, from the Code of Hammurabi’s (The Avalon Project) implications on intent to current studies on brain imaging techniques like Churchland’s (2006) examination of the pattern of neurotransmitter secretion in relation to agency in moral decision making. Yet, dependency on intentionality alone may only reveal partial narratives as to the causality of an action. In the context of the legal system, this may affect the adjudication of criminal sentences and thus the human rights of the offender. Neurolaw is an interdisciplinary field that entered the discourse on intentionality and the legal system only a few decades ago. Whilst the highly complex discoveries of neuroscience cannot be summarised in a few short sentences, its overarching contribution to the legal system is that it demonstrates that an overreliance on intent to explain certain behavioral tendencies based on predetermined (or otherwise shaped during childhood) neural mechanisms should be challenged. This piece seeks to examine the effect of neuroscientific advancements on reforming our reliance on intent in the legal system. Famously, Jones and Marois’ Harm and Punishment experiment tests ‘how the human brain reacts when asked to impose various punishments’ (Rosen 2007, 2). Rosen, who attempted the test himself, based his judgments on the intent of the harm. Yet, consideration of perceived intent alone fails to consider stimuli of actions – had it been intended or was it perhaps an involuntary force out of one’s control? This opens an avenue for neural mechanisms to be integrated into the discourse of intentionality and personal agency in the legal system, particularly in the context of international human rights protections. To disregard the subjectivity of intentionality in trial settings is to violate the human right to an unbiased hearing and protection, protected under article ten of the Universal Declaration of Human Rights (UDHR) and to do so in cases where the defendant is unable to control their emotional responses and or moral reasoning disregards the protections set out for disabled peoples in the Convention on the Rights of Persons with Disabilities (CRPD).
Through neuroscientific discoveries, it has become clear that there is correlation between biological predisposition and the exhibition of certain behaviors. Different areas of the brain have specialised functions but integrate as a whole to achieve cognitive complexity. Hence, if an individual is born with or raised in an environment that develops what Goodenough and Prehn (2004) term brain ‘aberrations’ (1712) in areas that accommodate moral reasoning via emotional responses and self-control of actions, one particular fault affects the whole. In these instances, intent may not always precede action, countering the assumption of the stimulus-response behavioural mechanism that there is immediate unidirectionality from input to output. Such an account makes one reassess the common notion of free will, the voluntary choice to put an action into motion, as one that is not unconditionally present. Accordingly, there is inequity in judging an individual with full intellectual capacity and another with developmental complication on the same grounds.
Following on from this broader question of determinism (a predetermined system) versus indeterminism (a free willed system), neurolaw allows for a movement from a legal system that takes for granted the assumption of objective morality as a default, towards the integration of deterministic neurological potentials. Henceforth, as with the Harm and Punishment experiment (Rosen 2007), perhaps neither intent regarding consequential harm, nor underlying backgrounds should be isolated in the analysis. What should be taken into consideration is the weighing of these multidimensional factors according to different situations. If we conclude that our current assumptions of intent are flawed this necessitates that in order for a ‘fair hearing’ to take place the current unconditional reliance on intent must be adjusted.
Specifically, in the context of legal adjudication, the outlined flaws may result in lengthy and unsuitable sentences. Inclusion of this shifted perspective on intentionality mitigates for the bias of both the defenders and offenders, rightly normalising the practice of striving towards creating a more holistic account of an offence. Here it is crucial to understand that this does not take away any responsibility on the offender’s part but serves to contribute to a more overarching account of the crime. By understanding that intent is not always a given, it shifts the focus of a case from circumstantial evidence on the defendant’s intent to absolute evidence.
For instance, Kelkar (2012) discusses the Northington case where ‘homelessness, abuse, and prenatal exposure to drugs and alcohol’ hindered the normality of the defendant’s brain. He was later diagnosed with Paranoid Personality Disorder the first time he was sentenced to jail, but the psychiatrist did not recommend any treatment, an act of neglect which further denigrated his condition. Yet, it was ironically the psychiatrist and governing body that made the ‘free willed choice’ to adjudicate an unbalanced sentence out of deliberate indifference, and possibly even malicious intent.
Northington was sentenced to solitary confinement though most of the crimes were for nonviolent breaches and was later unjustly re-arrested for seven months due to the government’s error in believing that he was violating a nonexistent parole (ibid.). Evidently, these were violations of his rights as a human being, particularly as confinement must have done nothing but further deteriorate his mental and physical health – a clear breach to Article 7 of the ICCPR which states that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ (ICCPR 1966). Instead, the more appropriate measure would have been to impose rehabilitative measures from the beginning, which may have prevented further rearrests and an eventual murder.
Jurisprudence tends to misinterpret moral agency (Churchland 2005, 9) as a given, insisting that all humans have absolute control and free will on their spectrum of morality. Subsequently, analysis of an individual’s actions must change from merely viewing perceived cognition to also including volitional assumptions (Churchland 2005; Goodenough 2004), meaning the act and power of willing and whether one was capable of controlling an action. This provides a refined implication that such individuals may be aware of their immorality yet lack the ability to control their behavior. Neuroscience may indeed be interpreted as a mechanism for fairer ‘adjudication’ (Hart 2012, 97) and nondiscriminatory trials. This development is gradually fostering holistic evidence-based practice which can be used as evidence to tackle the human rights violations that occur due to the biases of the legal system.
We must be wary that such reasoning creates loopholes when humans detach themselves from moral responsibility. However, evidence such as the Northington case are, again, not intended to dismiss responsibility for unlawful actions. One should still be held accountable, but the degree of sentencing may differ according to a variety of factors, including intentionality and moral agency. Thus, whilst Northington’s actions should not be condoned, the better choice would have been to employ more appropriate remedies of rehabilitation, accommodating his particular circumstances and preparing him to one day return to public life. Northington’s sentencing and treatment during his incarceration were certainly not in line with the Convention on the Rights of Persons with Disabilities which emphasises the importance of ‘proportional’ legal safeguards that are ‘tailored to the [disabled] person’s circumstances’ (CRPD, Article 12) and thus violated his human rights.
It is certainly important to be aware that no matter how advanced technology becomes, it is highly unlikely that full integration between the legal system and neuroscience will be achieved considering the mass complexities of the neural mechanisms. Yet, neurolaw has begun to contribute to legal development by influencing institutions to shift the conventional moral outlook on free will and responsibility. It has been established that intention does not unconditionally correlate with action. It seems possible that our developing understanding of the brain will in the future lead to the reformation of the notion of intent, and the restructuring of fair trials will occur, bringing them in line with international human rights law.
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