Neuroimaging and the 'Complexity' of Capital Punishment

Abstract:     
The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over the longer term, these same experts (and their like-minded colleagues) appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short and long term efforts are meant ultimately to usher in a more compassionate and humane regime for capital defendants.

This article seeks to articulate, analyze, and provide a critique of the project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The article concludes that the project as currently conceived is internally inconsistent, and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more Draconian and less humane than the deeply flawed present framework.

Keywords: neuroscience, brain, bioethics, neuroimaging, neuroethics, brain scan, EEG, fMRI, CT, PET, capital punishment, death penalty, punishment theory, punishment, future dangerousness, jurisprudence, criminal law, criminal procedure, H.L.A Hart, retribution, deterrence, consequentialism, free will

JEL Classifications: K1,K10,K14,K19,K4,K40,K42,K41,K49

Working Paper Series