Neurolaw, responsibility and religion

Imagine being a member of a jury. The defendant is accused of a horrible crime — the cold-blooded murder of … Continued

Imagine being a member of a jury. The defendant is accused of a horrible crime — the cold-blooded murder of a young woman during a robbery at the store where she worked. He shouldn’t be found guilty, he certainly shouldn’t be given the death penalty, his attorney argues, because his genes predisposed him do it.

The first defense using bio-determinism as an argument was made some 15 years ago. In that case the jurors were unswayed. But earlier this year, Bradley Waldroup was spared the death penalty, and found guilty of manslaughter not murder, at least in part on the basis of such genetic testimony. As DNA testing, brain scans, and our understanding of nurture vs. nature deepens, we are likely to see a surge in the genetic determinism defense strategy.

Neurolaw, and its basic premise that our genetic make up removes or at least mitigates personal responsibility, poses an ethical challenge to our legal system and to the ethical systems of many world religions. If we agree that a man with a MOA-A gene that limits his response to calming effects of serotonin, or whose DNA causes his brain to have lowered activity in the orbital complex (the portion of the brain that appears to be connected to moral decision making and impulse control), is less culpable than one whose genetic makeup is more “normal”, we are left with some thorny ethical issues.

Brad Waldroup’s jury decided that because of his genetic makeup he should receive a lesser punishment. They figured he was predestined to snap, sooner or later, not much he could do about it, thus he deserved a lighter jail term than someone who did have more control over themselves.

A different jury might see it in the opposite way, and decide that his genes necessitate a far stricter sentence — life imprisonment or even the death penalty — for the safety of society. After all, a man whose genes predispose him to violent crime, and who has actually committed such a crime, surely cannot be left running loose on the streets. Personally, I can see both approaches having validity, though I will sleep a lot sounder if the latter prevails.

Another question such differentiated sentencing raises is at what point do you draw the line. Does someone with 50% of “normal” function (however one might define normal, which is a sticky prospect in and of itself) deserve differential punishments? Or should it be at only 25%, or perhaps as high as 75%? These kinds of questions are tricky, and will surely be fought over in the court of law, as well as in the court of public opinion. Our courts currently treat mentally retarded individuals differently than they do people of normal IQ; someone had to draw the line in the IQ chart. If we accept the validity of neurolaw, we will have more lines to draw.

And is genetics sufficient to warrant differential treatment under the law, or do we need other mitigating factors, such as a childhood scarred by abuse? According to Kent Kiehl, a neuroscientist who has studied criminal brains, genetics alone is not a sufficient predictor, but the combination of genetics and childhood trauma corresponds to a 400% greater likelihood of being convicted of a violent crime. How complex a personality profile will we agree to demand for each defendant facing charges?

Perhaps most importantly, the use of genetics in legal arguments poses challenges to the notion that we are all equal before God and the law. Does limiting or augmenting culpability on the basis of differing genetics violate the principle that we are all equal, or does it actually represent a deeper understanding of that concept, allowing for an equalization of the playing field since no one has identical genetic potential? In Islam we are assured that God takes into account personal (and presumably this includes genetic) differences; that no one is charged with a burden more difficult than he or she can bear. In an ideal world, the law would do the same. Deciding how fine a comb to sift with though, is no easy task.

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  • WmarkW

    “According to Kent Kiehl, a neuroscientist who has studied criminal brains, genetics alone is not a sufficient predictor, but the combination of genetics and childhood trauma corresponds to a 400% greater likelihood of being convicted of a violent crime.”First thing we need to work on is single parenthood. It’s the number one cause of poverty and crime and is completely preventable.

  • lepidopteryx

    A rabid dog who bites someone did not act out of malice, but due to damage to his brain from a virus. Nonetheless, he must be destroyed.Those who commit murder, whether because of a mental deficit that caused them to not understand what they were doing, out of sheer malice, or for any other reason, must be removed from society.

  • wiccan

    Lepi,Several years ago in Northern Virginia a man known to be mentally ill killed an eight-year old boy who was playing in his own front yard. Our Commonwealth, who KNEW the man was mentally ill before he committed this crime, wanted to force him to take psychiatric drugs so he would be sane enough to try him for murder. Virginia couldn’t be bothered getting these drugs to him so he would be sane enough not to commit the crime, but had no problems with getting him sane enough to kill him. He was speedily found not guilty by reason of mental defect and committed to a psychiatric hospital, which was where he should have been all along.I am in perfect agreement with your last statement; just sometimes, these people need to be removed from society before they get the chance to commit murder.

  • lepidopteryx

    Wiccan, good point. It amazes me that the same public health/legal system that prevents people from getting the medication that might have prevented their violent behavior will bend over backwards to get the same medication to the person in order to get him well enough to execute them for their violent behavior.

  • PSolus

    wiccan,”…just sometimes, these people need to be removed from society before they get the chance to commit murder.”Now it’s my turn; how do we remove mentally ill people from society before they commit murder, except by removing all mentally ill people from society?

  • WmarkW

    I agree with the posters below.I’d have a real problem if genetic proclivity could be used as a courtroom defense to avoid punishment, but not as a policing tool to protect people from crime.

  • PSolus

    WmarkW:”I’d have a real problem if genetic proclivity could be used as a courtroom defense to avoid punishment, but not as a policing tool to protect people from crime.”Somehow, I’m not suprised.

  • Jihadist

    If we agree that a man with a MOA-A gene that limits his response to calming effects of serotonin, or whose DNA causes his brain to have lowered activity in the orbital complex (the portion of the brain that appears to be connected to moral decision making and impulse control), is less culpable than one whose genetic makeup is more “normal”, we are left with some thorny ethical issues.- Pamela Taylor******************************************Should we should worry, if Hitler and Pol Pot got away, is excused, for what they have done because of their specific DNA component cuasing them to act they way they did? Should we worry if there be pre-required DNA tests for seekers of public office to ensure they have or don’t have specific “negative” genes affecting human behavior?

  • ThishowIseeit

    Ms Taylor,

  • Jihadist

    Ms Taylor,Posted by: ThishowIseeit******************************************Yes, we know that already what you think about God and religion, but not on how Muslims regard science. What do you think on what Ms. Taylor raised in her essay?

  • Secular

    Ms. Taylor wrote “In Islam we are assured that God takes into account personal (and presumably this includes genetic) differences; that no one is charged with a burden more difficult than he or she can bear. In an ideal world, the law would do the same. Deciding how fine a comb to sift with though, is no easy task”.Really Ms. Taylor, is that what Islam assures you? Yet at simultaneously, Islam also assures you that your god blinds the non-believers from becoming believers. Also it assures us that infidels should be butchered. And it also assures us that apostate would meet their just punishment of being scorched in eternal fires. I suppose all these is somehow mitigated by the earlier assurance. In that case why don’t to go tell your Wahabi brethren to rescind the death penalty against the apostates. Oh, you can’t because that is Sharia, isn’t it.Madam it is utterly despicable of you to shove this filth as part of a serious topic of genetics and justice. Your friends then accuse us of ridiculing religion. Can you no=good-doer Islamists keep from polluting every thing. When I read columns like this I cannot but agree 100% with Hitchens, when he says religion pollutes everything.

  • Arif2

    get that rag off then write to us. so, getting back to your prophet and his violent crimes against humanity; should we forgive him because he may have had this disorder?

  • abrahamhab1

    “In Islam we are assured that God takes into account personal (and presumably this includes genetic) differences.”Could that be why your God ordered that women be treated as second class and non-Muslims as a third class?

  • Jihadist

    When I read columns like this I cannot but agree 100% with Hitchens, when he says religion pollutes everything.- Secular*******************************************Hitchens said religion poisons everything, or pollutes everything? Non-Muslims are, collectively, the biggest polluters of the environment.

  • jontomus

    Even if these scum aren’t responsible for their atrocities … even if this neurolaw business has a point — we can still hold them responsible for what they have done.Murder is murder. Was the murderer able to help himself when he sliced up that little girl, shot that old lady in the store, raped and mauled that little boy in the church?WHO TF cares!

  • tojby_2000

    Attorneys argue that criminal behavior determined by genetics. Can this be God’s will? asketh PTaylor…1. An attorney can only make this case because expert witnesses in psychology and psychiatry so testify.2. Everything that occurs does so with the knowledge and permission of the omniscient and omnipresent deity- no exceptions. To argue otherwise is blasphemy.

  • PSolus

    “The devil is in us and when we act on it, society has a right to exact its due.”Where, exactly, is the devil in “us”?I’ve pretty much felt around all over, and I don’t feel a devil anywhere in me.

  • edbyronadams

    It is not often that someone sees the inability to self reflect taken as a point of pride.

  • morphex

    The writer and the commentators alike show little or only negligible regard for the criminal’s capacity for moral reflection and her ability to translate it into action. Yet several thousand years of law-making take motive and emotional capacity into account in sentencing and determining the agree of guilt, an acknowledgment that crimes have both subjective and objective sides to them, and that actions are sometimes qualified by the mental states that enable them, at least in civilized societies.

  • PSolus

    “It is not often that someone sees the inability to self reflect taken as a point of pride.”It’s not me; it’s the devil in me!

  • Navin1

    From a lawyer, I would expect better.There is perhaps purposeful confusion or perhaps just confused thinking.Justice, it seems to me, is served by taking in all the knowable variable that lead to an event and then deciding extent of moral agency and then extent of culpability. A child is not as culpable as an adult. Now if genetics teaches us that all human beings are not equal, which is not new knowledge just a repackaging of old (true in my opinion) ideas against simplistic egalitarianism, then justice must include those variables. Social jurisprudence, that attempts to approximate justice, is to weigh factors and make a decision. That decision, though, is of unclear meaning even in the best of terms. Do we punish someone to protect our selves – no moral lesson. Do we punish to guide and rehabilitate someone into our way of social activity – moral lessons. Do we punish out of vengence. etc. These two are not really directly connected though fall into the rubric of justice. A person prone to killing may well be killed to protect ourselves. A person who has not killed does not need rehabilitation nor does he warrant revenge. The Ramayana suggests a simple principle of justice: to treat equals equally and unequal unequally. Both within the actions of an individual or in the way of approaching social systems. It seems that science is reinventing the obvious wheel.As to God, in advaita, if there is only the Being of the Supreme, and we are manifestations of that being, then justice can only mean that we are absolutely equal in soul. Our condemnation and sense of justice in this world would not transcend into the permanent reality of Being (no eternal hell). Our sense of justice can not be condemnation, but it can be utilitarian, etc. Anyone who believes in duality, who believes in both god and non-god must then also believe in a finite god. And in doing so, in believing in that fundamental duality, has to then define how(or in what way), in this empirical world of diversity, a mohamed is the same as a handicapped child with hydrocephalus lying in his own stool. Does this dualistic god actually believe that an IQ of 10 is the same as an IQ of 100 – were these two persons created equally? And if the same dualistic god created the lower IQ, or even a finite mind incapable of grasping the full truth (which each of has a genetic predisposition for), then isn’t the finite god responsible for a failed creation of a failed moral agency? – thus not a god worthy of worship.hariaum

  • gannon_dick

    I have to stand up for Darwin here. Species extinction has nothing to do with predation or even time of death. Otherwise there would have been immoral Dinosaurs at your 4th of July picnic along with those moral Mosquitoes.Punishment is revenge, but more importantly it is swatting the slow Mosquitoes because that’s all you can do.

  • joy5

    I think the jury made the decision. The issue the prosecution might raise on appeal (I don’t know if a sentence can be appealed anyway) is that the judge even allowed the discussion of genetic culpability.In any case, given that judges might allow the argument or evidence of neurolaw (nice euphemism, beats astrology all to heck) the issue of uniform application is moot….there are so many other cases of various arguments being inequitably applied, not the least of which tend to result in men of color being convicted of capital crimes and put on death row.

  • robertajkaufman3

    you are assuming that courts of law are always fair and just not tainted not imperfect that because of genetics alone some just conclusion will inevitably be found I think the way we are heading are justice will best be served by a just god for perhaps Im filled with pessimism in thinking are court system is extremely broken there is choas and corruption rampant not only on our streets but within are justice system and this point will be just another conclusion that gets swallowed up in a damn that has been bursting for a very long time on death row they have murdered and murdered innocent people and will do so without ever caring about seratonin levels or human decency. and that will be judiciously defended time and time again

  • ShorinBJ

    We are all genetically programmed to kill. This was reality for our ancestors. If we wanted to eat it, we killed it. If it wanted to eat us, we killed it. If it wanted to eat the same thing we wanted to eat, we killed it.That’s something that is often overlooked about our rise to become the dominant species on the planet, that we got there by killing the competition. Our large brains and other attributes are why we were so good at killing. But to survive natural selection any animal had to have something of that killer instinct.Humans had to compete with each other, too. For food, mates, and all kinds of resources. So humans who were willing to kill each other were genetically successful.Back on point, I am genetically inclined to kill. That this man was born with a stronger inclination doesn’t mitigate his responsibility to resist that inclination. If he truly couldn’t, he ought never to breathe free air again unless his genes can be switched off. Then we can talk about how much punishment he “deserves.”

  • agapn9

    I know that Muslims used to had a great respect for Aristotle. Aristotle would make the following distinction two classes of men: a. the Morally weakThe morally weak believe in the good but fall from time to time. The self-indulgent live in a hell of their own choosing – whatever they do is good because they say it is.The first group can be punished and they can reform and overcome their weakness if willing to endure great effort – the second group need to be controlled or done away with depending on the nature of their offenses.Now Aristotle also made the distinction between the barbaric and the civilized when he talked about temperment.Pamela – you are talking about a barbaric person committing an atrocity. The person lacks the ability to see clearly the destructive nature of his behavior. Now there are always extremes – a wild animal has no moral soul – it is not evil when it kills a backpacker in the woods. But we kill the animal because it is dangerous – because it has shown a lack of fear – it is now a predator in our midst. It is killed because it was hungry it will be hungry again. Terrorists kill because they get angry and they will get angry again.Yet if we discover the animal was a mother protecting its young or was wounded and lashed out in pain we might not necessarily kill the creature but relocate it away from human beings if possible. For even a dog might attack its master if it feels its pups are in danger or if its in great pain.So it isn’t really the IQ that’s so critical rather the general intention. And if the person was capable of killing another its likely they were capable of forming a general intention – that’s why the temporary insanity plea is so often overused and misunderstood. So was the killing accidental or not? How cupable was the accidental killing. (Run a red light?)Now we take the case of the murder of Sean Taylor – we have young men who worked for Mr. Taylor but who wanted more money. They all were greedy. The planner of the theft no doubt put the gun in the hand of the individual who was intellectually handicapped so that if things went bad he ,the planner, wouldn’t be executed for first degree murder. That’s shows good basic intelligence and planning (first degree murder planning).The young man who pulled the trigger had a general intention but whether he clearly understood that he would or could end up murdering Sean is debatable. Because the young man who pulled the trigger had diminished capacity but still had some discretion he served as a buffer between the planner and the execution of the plan. But Sean is still dead and all those young men are still guilty including the young man with the below average IQ but especially the one who planned it – he may have been given too gentle a sentence.

  • PSolus

    This is simply a case of the law attempting to keep up with science.No need to inject magic into the discussion.

  • Jihadist

    This is simply a case of the law attempting to keep up with science.No need to inject magic into the discussion.- PSOLUS*******************************************Surely not in denial are you, or the reality religious values and belief do affect the formulation of laws on development in the science field – stem cell research and cloning comes to mind.

  • PSolus

    “Surely not in denial are you, or the reality religious values and belief do affect the formulation of laws on development in the science field – stem cell research and cloning comes to mind.”No, I am not in denial; I am fully aware of the intrusion of various people’s various religious values and beliefs in all aspects of science, law, medicine, education, commerce, etc.If I were in denial, I might not be as annoyed by it as I currently am.

  • Elisa2

    It is a door that should not have been opened and it is one that must be closed.Inevitably it will lead to separate justice systems based on race as testosterone level is well documented and established as an indicator of the capacity to commit violence.People of dark African descent have the highest levels of testosterone.People of light Indo/Euro/Middle Eastern descent have the next highest levels.People of Asian descent have the lowest levels of testosterone.If they create these separate judicial systems it will by necessity force segregation of the three different peoples in order to have justice and security. People can only live together if they have the safety and security of knowing they all live together under One Law that is applied equally to all of them.

  • schnauzer2

    Posted by: edbyronadams “From a purely secular point of view, what determines identity more than genetics. The identity that is punished for committing bad acts is, in large part, defined by that DNA. The devil is in us and when we act on it, society has a right to exact its due.”