Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, and Law

Abstract

I INTRODUCTION As the poet Mark Strand said, "The future is always beginning now." (1) When considering the social impact that neuroscience and behavioral genetics will have on the criminal justice system, scientists, lawyers, courts, and policymakers might do well to keep Strand's words in mind. Too often it is assumed that for developments in science and technology, there is time to start the policy dialogue in "the future." Those who would address the issues later typically assert that the science in question is too immature, that it is too early, that the discussion is too speculative. While such objections sometimes have merit, it seems society is most often too slow in promoting a public dialogue. Open public dialogue is an important tool in considering and weighing public reaction, in informing the public and policymakers, and in building public consensus about appropriate and responsible uses of science and technology. Scientific advancements can result in strong, negative public reactions, as with nuclear power in the United States, genetically modified food crops in the European Union, and human research cloning in a variety of nations. This negative backlash can in turn influence scientists and science policy and slow the progress of socially valuable research. When the social risks are great, it may be prudent to slow the pace of research. However, when the risks are minimal, and the negative reaction is based on incomplete or inaccurate information about the science, then restraints on research serve little purpose. Now is the time to call on scientists, lawyers, courts, and lawmakers to begin a sustained dialogue focused on the impact that scientific discoveries and technological advances might have on the criminal law. The dialogue should focus on developing appropriate policies to address the legal and social issues raised by such advances. Such a dialogue is necessary, in particular, concerning the focus of this essay: the impact of neuroscience and behavioral genetics on criminal law. This article first briefly considers some of the commonalities and differences between behavioral genetics and neuroscience as they relate to the criminal law, including topics addressed by both fields, as well as how each field might be applied in criminal proceedings. The article then focuses on a common concern raised by both fields in this context--the possible misuse of science in the criminal law. It concludes with a proposal to address the need for a continuing policy dialogue about the law and scientific developments in neuroscience and behavioral genetics. II A POLICY PERSPECTIVE The American Association for the Advancement of Science (AAAS) (2) has sought to advance the public and policy dialogues in both behavioral genetics and neuroscience in the past few years. (3) It is reasonable to ask why anyone would consider the effect on the criminal law of two broad scientific fields, rather than deal with each separately. It seems increasingly clear, though, that when describing, predicting, and understanding human behavior, numerous scientific discussions may be considered part of one larger discussion: various scientific fields converge in their exploration and explanation of human actions. It makes some scientific sense to talk about neuroscience and behavioral genetics together; indeed, the disciplines overlap and interact--for example, a person's genes affect how his brain develops. (4) It similarly makes legal sense to consider a larger behavioral biology, and it makes sense to consider the two fields together from a policy perspective. Moreover, public dialogues at AAAS and elsewhere on behavioral genetics and neuroscience suggest that both disciplines are ripe for further discussion about their nexus with criminal law and policy. III COMMON ISSUES OF INTEREST Behavioral genetics and neuroscience converge on a number of scientific, legal, social, and ethical issues--in particular, on two areas of interest to the criminal justice system: the prediction of behavior and the use of behavioral information in the preliminary stages of criminal processes. …