The Effects of Neuroscientific Framing on Legal Decision Making

By Corey H. Allen

Corey Allen is a graduate research fellow in the Georgia State University Neuroscience and Philosophy departments with a concentration in Neuroethics. He is a member of the Cooperation, Conflict, and Cognition Lab, and his research investigates (1) the ethical and legal implications of neuropredictive models of high-risk behavior, (2) the role of consciousness in attributions of moral agency, and (3) the impact of neurobiological explanations in legal and moral decision making.

More than ever, an extraordinary amount of up-and-coming companies are jumping to attach the prefix “neuro” to their products. In many cases, this ”neurobabble” is inadequate and irrelevant, serving only to take advantage of the public’s preconceptions about the term. This hasty neuroscientific framing doesn’t stop with marketing but instead creeps into public and legal discourse surrounding action and responsibility. This leads to the question: does the framing of an issue as “neuroscientific” change the perceptions of and reactions to that issue? This question, especially in the realm of legal decision making, is the focus of ongoing research by Eyal Aharoni, Jennifer Blumenthal-Barby, Gidon Felsen, Karina Vold, and myself, with the support of Duke University and the John Templeton Foundation. With backgrounds varying from psychology, philosophy, neuroscience, to neuroethics, our team employs a multi-disciplinary approach to probe the effects of neuroscientific framing on public perceptions of legal evidence as well as the ethical issues surrounding such effects.

The Power of “Neuro”

When it comes to public perception, neuroscientific information seems to play a stronger role in confusion than in clarification. For example, the inclusion of irrelevant neuroscientific information (such as complex-sounding brain areas) clouds a person’s ability to tell good explanations from bad explanations as well as increases people’s satisfaction with these bad explanations (1). Similarly, the inclusion of brain images alongside scientific argumentation increases perceptions of scientific reasoning above and beyond different graphical representations of the same data; though, it is worth noting that these results have been contested (2 & 3). Regardless, neuroscientific explanations seem to possess some sort of “seductive allure” that other modes of explanations lack (1). But, this seductive allure does not stop at our perceptions; it also extends to how people behave and react to these perceptions. Please also see previous posts on this topic here.

Image courtesy of Wikimedia Commons.

Typically, research on the behavioral implications of neuroscientific discourse focuses on an actor’s moral responsibility and individual control of his/her future actions. It is conjectured that these topics of interest are due to laypeople’s proclivity to make (potentially faulty) assumptions regarding what caused the act and how much control the actor had in that process (4). In other words, painting a picture in which the actor’s brain activity arises prior to “them” realizing it leads to assumptions that his/her actions are nothing more than middleman in a larger causal chain and are, therefore, events that “they” have no control over. For example, Vohs & Schooler (2008) found that when participants were exposed to a deterministic message (i.e. an argument that behavior is a direct result of genetic and environmental factors, and thus, unchangeable), they were more likely to cheat on a task, presumably because they saw themselves as unable to do otherwise (5). Furthermore, neuroscientific discourse can affect how individuals treat others. When exposed to neuroscientific information (whether it be an entire semester of an introductory course in neuroscience or just a magazine blurb), people are less likely to be overly punitive when deciding how to respond to an individual’s bad actions (6). Seemingly, due to assumptions about causality, we are more likely to see others’ actions as being caused by their brain instead of being caused by “them,” leading to the intuition that they are now less morally responsible for their bad action and therefore less deserving of punishment. 

Neuroscience and Criminal Sentencing

One realm in which this research is especially pertinent is in criminal sentencing in the courtroom. Given that the usage of neuroscientific explanations and evidence in criminal sentencing has been steadily rising, the question regarding the seductive allure of neuroscience in the courtroom has already been posed frequently in the literature (7, 8, & 9, & 10). In particular, there is a focus on what is commonly referred to as “the double-edged sword” of neuroscientific evidence; that is, neuroscientific evidence has both the ability to mitigate or aggravate punishments depending on how the argument is framed. For example, explaining away a criminal action by positing that it was the offender’s brain that made him/her do it has the potential to decrease punitive sentences based on that crime. On the other hand, by making the argument that an offender is “unable to do otherwise” because of their brain, a picture is painted of an offender who cannot control his/her actions. Offenders who are unable to control their actions pose a larger future danger to society. This increased future danger has the potential to bring with it intuitions that the offender needs to be incapacitated for a longer time in order to protect society. 

Image courtesy of Flickr.

While most experiments aiming to find the effects of neuroscientific explanations in courtroom settings have found modestly mitigating (if any) effects on punishment (8, & 9, & 10), two studies in particular, by Aspinwall (2012) and Fuss (2015), show reasons to think that the “double-edged sword” of neuroscientific evidence is more than just theoretical (11 & 12). These studies posed the question of the effect of neuroscientific explanations on judges, American and German, respectively. Both studies found similar mitigating effects – the inclusion of a biological defense in the trial decreased attributions of legal responsibility and, furthermore, decreased the punishment recommended. But, on the other hand, both studies also found potentially aggravating effects. Aspinwall, for example, found that as mitigating post-hoc rationalizations (such as decreases in perceived moral culpability) increased with the introduction of a biological defense, so did mentions of balancing this effect with similar aggravating rationalizations (taking into account the offender’s future danger to society). Comparably, Fuss also reported an increase in judges’ recommendations for involuntary civil commitment. Though these results are certainly indicative and supportive of the notion of the “double-edged sword,” these findings rely heavily on open-ended question analyses instead of on direct punitive and incapacitative measures. 

Our Research on the Double-Edge Effect 

Because of the mixed results in the literature, we wondered whether or not failures to detect the “double-edge” effect were due to how punishment was being measured. A key assumption of the “double-edge” effect seems to be that mitigation and aggravation are driven by very different motives— one concerned with the moral responsibility of the offender (mitigation) and the other more concerned with the future consequences of letting a potentially dangerous offender back into society (aggravation). Overall, we were worried that prison sentences confound these motives and mask the “double-edge” effect, so we aimed to test it by including multiple measurements. In this research, we utilized an experimental vignette method, in which participants read a case summary regarding an offender with an impulse control disorder who was found guilty of sexual assault. They were then asked to assume the role of the judge overseeing the case and recommend a prison sentence for the offender. Participants were also given the opportunity to recommend that the offender be involuntarily hospitalized instead of or in addition to their prison sentence. This measure served as a way to incapacitate the offender (due to his/her dangerousness) without necessarily doing so for punitive reasons. 

Within these experimental vignettes, we manipulated two main aspects of the offender’s story: 1) whether the offender’s impulse control disorder was caused by behavioral or neurobiological factors, and 2) whether this disorder was found to be treatable or untreatable. Alongside these manipulations, we also included a control condition in which the offender was completely healthy. In line with the notion of the double edged sword, we hypothesized that neurobiological evidence, compared to behavioral evidence, would serve to reduce recommended prison sentences, and inversely, increase recommended time in involuntary hospitalization. This is exactly what we found: neuroscientific evidence decreased prison sentences (Figure 1) and increased involuntary hospitalization (Figure 2). We also found that both prison sentence recommendations (Figure 1) and involuntary hospitalizations (Figure 2) were greater when the disorder was described as untreatable as opposed to treatable.

Figure 1. Neurobiological evidence mitigated sentences relative to behavioral evidence and no evidence. Similarly, treatable conditions evoked significantly shorter sentences than untreatable conditions.

Figure 2. Neurobiological evidence increased involuntary hospitalization terms relative to behavioral evidence and no evidence. Inversely, treatable conditions evoked significantly shorter involuntary hospitalization terms than untreatable conditions.

What do our results suggest? 

While neuroscientific evidence certainly has the capacity to be mitigating in criminal sentencing, as previous studies have shown, that may not be the whole story. Our research suggests that when people are given the option of involuntary hospitalization in addition to prison time, they are then able to manage the offender’s future dangerousness without resorting to the “one-stop-shop” of retributive prison sentencing. In other words, when prison time is the only option available, our pluralistic motivations, and thus the potentially mitigating influence of neuroscientific evidence, may be obscured. Only when individuals can choose among sentencing options with distinct functions may this sensitivity to neuroscientific framing arise. 

Our results imply that sentencing decisions may be susceptible to how the evidence is framed. If this framing effect does turn out to be both prominent and replicable, then many ethical and legal issues arise with it. Though it is not my intention to address these issues here in the depth they warrant, it is worth mentioning two in particular: 1) more empirical research is needed to bolster the theoretical claims regarding ethical and legal issues of neuroscientific evidence in the courtroom, and 2) this type of research can play an important role in educating judges about the influences of framing, as well as address misconceptions about what neuroscience can and cannot tell us with respect to questions of causation and control. 

By applying the experimental method to the theoretical claims that have arisen in the popular media regarding the potential effects of neuroscientific evidence and framing within the courtroom, this line of research serves to substantiate, dispel, and scrutinize these claims. In doing so, both the accuracy and the precision of these concerns increase, leaving the public, future researchers, and legal scholars better suited to address certain susceptibilities within the sentencing process. For example, if this framing effect is truly only present when punitive motives are separated out and represented as different sentencing options, then concerns of framing might be ill-placed when the judge is only able to consider time in prison. On the other hand, if a judge is considering civil commitment, involuntary hospitalization, or supervised probation, these framing effects become incredibly important and pertinent. In this case, the framing of the offender’s offense can potentially alter not only his or her quality of life, but also his/her access to resources necessary for successful rehabilitation. 

Image courtesy of Wikimedia Commons.

Further down the line, this research can also educate the judges making these decisions about how certain framing effects might alter their recommended sentences. It is important to note that this education doesn’t stop solely with the effect of framing of sentencing but also includes more fine grained effects on notions of moral and legal responsibility, causation, and culpability. Though the jury is out on how this education would curb these certain framing susceptibilities, an increased recognition of, and interest in, these effects have the potential to inform the creation of additional safeguards within the legal system– safeguards designed to better protect the inherent tension between offender rights and public safety. 

References 

(1) Weisberg, D. S., Keil, F. C., Goodstein, J., Rawson, E., & Gray, J. R. (2008). The seductive allure of neuroscience explanations. Journal of Cognitive Neuroscience, 20(3), 470–477. 

(2) McCabe, D. P., & Castel, A. D. (2008). Seeing is believing: The effect of brain images on judgments of scientific reasoning. Cognition, 107(1), 343–352. 

(3) Farah, M. J.; Hook, C. J. The Seductive Allure of “Seductive Allure.” Perspect. Psychol. Sci. 2013, 8, 88–90. 

(4) Nahmias, E. (2011). Intuitions about Free Will, Determinism, and Bypassing. The Oxford Handbook on Free Will 2nd Edition, 555–575.  

(5) Vohs, K. D., & Schooler, J. W. (2008). The value of believing in free will: Encouraging a belief in determinism increases cheating. Psychological Science, 19(1), 49–54. 

(6) Shariff, A. F., Greene, J. D., Karremans, J. C., Luguri, J. B., Clark, C. J., Schooler, J. W., ... & Vohs, K. D. (2014). Free will and punishment: A mechanistic view of human nature reduces retribution. Psychological science, 25(8), 1563-1570. 

(7) Farahany, N. A. (2016). Neuroscience and behavioral genetics in US criminal law: an empirical analysis. Journal of Law and the Biosciences, 2(3), 485-509. 

(8) Greene, E., & B. S. Cahill (2011). Effects of Neuroimaging Evidence on Mock Juror Decision Making. Behavioral Sciences & the Law, 30(3), 280-96. 

(9) Saks, M. J., Schweitzer, N. J., Aharoni, E., & Kiehl, K. A. (2014). The Impact of Neuroimages in the Sentencing Phase of Capital trials. Journal of Empirical Legal Studies, 11(1), 105-131. 

(10) Schweitzer, N. J., & Saks, M. J. (2011). Neuroimage evidence and the insanity defense. Behavioral sciences & the law, 29(4), 592-607. 

(11) Aspinwall, L. G., Teneille R. B., & J. Tabery (2012). The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges' Sentencing of Psychopaths? Science, 337(6096), 846-849. 

(12) Fuss, J., Dressing, H., & Briken, P. (2015). Neurogenetic evidence in the courtroom: a randomised controlled trial with German judges. Journal of medical genetics, jmedgenet-2015.

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Allen, C. (2018). The Effects of Neuroscientific Framing on Legal Decision Making. The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2018/04/the-effects-of-neuroscientific-framing.html