Friday, March 22, 2019
Deborah W. Denno (Fordham University School of Law) has posted Neuroscience and the Personalization of Criminal Law (University of Chicago Law Review, Vol. 86, pp 359-401 (2019)) on SSRN. Here is the abstract:
While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. The data gathered from these cases suggest that simplistic views that regard neuroscience as either entirely exculpatory or solely indicative of future dangerousness are misinformed. Second, this Essay posits a probabilistic theory of analyzing evidence based on Bayes’s Theorem. Bayes’s Theorem offers a compelling model of human reasoning that comports with the process of assessing a defendant’s culpability in legal settings. Neuroscientific evidence can thus be understood as a means of modifying initial beliefs and mitigating implicit biases in criminal contexts. Employing these tools, I analyze the impact of personalized evidence on criminal defenses, which I argue are strongly motivated by probabilistic determinations of a defendant’s culpability. These determinations have significant impacts beyond individual cases and can contribute to trends in litigation funding. This Essay systematically argues that personalization, fueled by neuroscientific evidence, can provide gains in fairness and efficiency, especially when admitted in the context of criminal defenses, due to their emphasis on probabilistic determinations of culpability.