S2 Episode 18: Your Brain on Trial

Would a better understanding of the brain lead to better outcomes in court? Professor Francis X. Shen, neuroscientist and lawyer, has devoted his career to “neural law” – leveraging neuroscience to reduce injustice. Using what we know about addiction science, adolescent brain development, and traumatic injury could lead to better interventions to reduce recidivism and raise the bar on justice. Plus… why eyewitness memory is so very, very unreliable.

Phil Stieg: Hello. I’d like to welcome Dr. Francis Shen.

Dr. Shen is a Professor of Law and Faculty Member in the Graduate Program in Neuroscience at the University of Minnesota. He is also an instructor in psychology at Harvard Medical School, and the former Executive Director of the Massachusetts General Hospital Center of Law, Brain and Behavior.

Straddling multiple disciplines, Dr. Shen is addressing the question of “What role should neuroscience play in legal proceedings?” by translating advances in brain science into better law and policy.
Francis, thank you for being here with me…

Francis Shen: Oh, it’s a pleasure to be with you. Thanks for having me.

Phil Stieg:The Center for Law, Brain and Behavior is focusing on this concept of neuro law. What is that?

Francis Shen: The basic idea is really straightforward. And that is that better decisions aligned with science can produce better outcomes aligned with justice. And what that means in practice is sorting through the myriad of new and exciting and even if still incomplete findings and tools from neuroscience and finding ways that some of them, not all of them, but some of them might be useful for improving the things that we do in law, which are very different than what happens in medicine.

Phil Stieg:Did you start in this from the legal perspective or from the neuroscience perspective? How did you get to where you are now?

Francis Shen: I was grounded in the law, actually, law and Behavioral Sciences, J.D., Ph.D. And I was just curious in the deep why questions? Well, I can see the data. I can see what is happening. I can see inequities and I can see behavioral patterns. But why, why, why, why? And eventually that led me to the brain sciences, broadly defined, to include a number of different relevant disciplines. And I think for many of us, our journey to this intersection of neuroscience and law has come from someplace different. But what we share is a commitment to justice. And that’s what I think marks that the center’s work and really our work, which is we are driven from the start by how do we how do we advance justice?

Phil Stieg:One of the comments you made is that every brain has a story. How does that relate to neuro law?

Francis Shen: Every story is obviously not just a brain story. It is a story of environment and genetics and culture and race. I mean, this is so much packed in there. And it should be clear that, you know, the work in our center in my lab is not about pushing out other disciplines or saying that neuroscience is the discipline to pay attention to, but rather allowing brain science a seat at the table, along with many other voices that in law are already seated there to make these very difficult decisions.

In the criminal justice system in particular, there is a tendency to put individuals who are very unique into buckets. And as one colleague has described it, to then press the button on the conveyor belt of injustice. Eighty-five, ninety, ninety-five percent of these cases plea bargain out. It’s this routine. And we have a colleague who says, you know, the first question really should be asking is not “what did you do?”, but … what’s happened to you, … what’s your story?

To me, that’s really important. It will begin to address the sort of nature and the approach and the assumptions that the justice system makes and will lead, I think, to better outcomes, because our recidivism rate know in some parts of the justice system is upwards of 75 or 80 percent. And that to me is a massive failure. And I think one of the reasons we fail is that, you know, unlike the push towards precision medicine, where we begin to say, you know, what are the unique features about you that might make this treatment or intervention more or less palatable? We don’t do that nearly enough in the in the justice system.

Phil Stieg:Another area your center is involved with is defining the concept of “mental injury”. What kind of impact are you trying to have with this in legal systems?

Francis Shen: So the law has a long, problematic history between treating the things we can see like physical injuries and bruises and scar marks differently from the things we can’t see, like most mental injuries. And this is a real challenge in a number of areas of law. I think it is conceptually problematic because as every neuroscientist I know suggests, the mind is physically related to the physical brain. That is, it is enabled by this mysterious collection of 86 billion neurons connected and so forth. And yet the law is just completely separate. And I’ll give you a concrete example of where this comes up.

For those seeking refugee status here in the United States, (and similar if you’re seeking status in many other countries) you have to show a credible fear when if you were to return to your home country, you would be, facing serious potential for serious injury. And if someone shows up with physical marks of torture, that is evidence of broken bones or, you know, whip marks or burn marks, they are treated very differently than someone who has to rely on their testimony to talk about the mental anguish they have endured, which is a real evidentiary problem and is a real kind of conceptual problem because we just don’t treat them the same way.

So what we’re trying to do is to inform courts and litigants about ways to better understand the real-ness, the extent of those harms. Mental illness is physical illness, too. So let’s try and find a way to better respond to these real, even if difficult to see injuries.

Phil Stieg:Are there criminal cases where an “invisible” brain injury played a factor in the outcome?

Francis Shen: There are a couple of these cases. Let me just give you two really quickly. This was a case of Herbert Weinstein, New York City advertising executive. No history of any violence, comes home one day, strangles his wife and throws her out of the 13-story floor apartment building to make it look like a suicide. Turns out he’s got an arachnoid cyst pressing up in his frontal lobes. And he argues that the jury ought to be able to see the imaging, the PET imaging and the MRI imaging of this arachnoid cyst. He has to show the jury that he could not appreciate right from wrong at the time of the of the crime. And that was the first case in New York where the judge had to decide should a jury get to see this turn out. The judge said, you can admit it, but you can’t testify about causation because the big challenge and I’ve critiqued this, is that we don’t know how many individuals are walking around with a similar cyst not doing that. And is it really the cause of what he did? Unknown. But his point was I should at least be able to get it to the jury and they could make that decision. And we see a lot of those types of cases.

Let me give you one other, because you may say, well, does any of this stuff make any difference? And we often don’t know. But there is a case on the case of Grady Nelson in Florida where we know it made a difference. So Grady Nelson did a series of absolutely horrible things, including stabbing his wife 60 times and killed her and attempted to kill her stepchildren, just a litany of things. There was no question he was guilty. The only question at the death penalty phase – does he get life without parole or does he get the death penalty? And the key evidence presented to the sentencing jury was quantitative electroencephalography QEEG evidence that purported to be consistent with fetal alcohol syndrome and brain injury. And, you know, on down the line. The attorney said to the jury, “this doesn’t excuse his behavior, but it explains it. He had a broken brain”.

Three jurors talked to The Miami Herald afterwards. And I always hear the hear their quotes about what they said. Juror Delores Cannan, hospital secretary, quote, “When the brain evidence came in, the facts about the QEEG, some of us changed our mind”. Juror John Howard, airport fleet services worker; “The QEEG evidence turned my decision all the way around. The technology really swayed me. After seeing the brain scans, I was convinced this guy had some sort of brain problem.”

Now they didn’t all buy it. Juror Leon Benbow, (my favorite) retired mailman: “All that scientific testimony that was a waste of taxpayer money. That’s phony. There’s nothing wrong with that guy’s brain.” But that jury split six-six. Florida at the time needed a simple majority. If they had been seven – five, Grady Nelson loses his life and goes to death row. They split six-six. He’s in life without possibility of parole. I’m on record as saying that that evidence was very problematic. And yet it raises this ethical dilemma. If you’re the attorney in that situation or you’re just someone who doesn’t like the death penalty, but you like good scientific evidence, is that an appropriate use of the science or not? These are the sorts of cases that are now showing up again and again in our system. And it’s about trying to separate appropriate uses of the science from inappropriate uses. And I leave it at that.

Phil Stieg: Is every defendant going to have to get an MRI scan and a quantitative EEG so they make sure that there’s nothing going on in their brain?

Francis Shen: I don’t know about that, but I will say that there will be a lot more access to brain scans. And I think that increased access to imaging will make the question you raised much more pertinent in the years to come. It’ll be cheaper and easier to access.

Phil Stieg: Let’s face it, our understanding of brain function is imprecise,

Francis Shen: to say the least.

Phil Stieg: Yeah, yeah. I mean, we’re certainly learning a lot more with functional MRI. But listen, in your lifetime, in my lifetime, we’re never going to understand all of the neural networks that account for why I do something and you do something. You do the same thing, but you do it differently. So how are you going to apply that lack of precision, of knowledge that we have in neurosciences to legal proceedings?

Francis Shen: I view it this way, that the law is in the business of making guesses. We make guesses all the time. And to prove beyond a reasonable doubt whether an individual was in a particular mental state is a guessing game. And neuroscience is not going to provide the answer. But there are other types of evidence that might inform us and help us make better guesses.

I’ll give you a concrete example, is around memory. So eyewitness memory is absolutely foundational and critical in so many cases. And yet memory science has taught us the many yet fallibilities of eyewitness memory. And empirically, it’s been found that there is a big discrepancy between the way that most folks, including most jurors, think about eyewitness memory. They tend to think of it as a digital recorder where you can just press rewind and get an exact replica of what happened versus what memory scientists do. And there is a mechanism in the law, it’s called jury instructions, where a jury where a judge can inform that jury and say, “you know what, as you deliberate, of course, it will be up to you and you can decide whether to believe this witness or not. But you ought to know the following things about the way that memory works.”

Our center was influential in a case in Massachusetts that changed the jury instructions that are now given to jury members. And that will happen every time there’s a case involving this certain type of eyewitness memory.

It doesn’t solve the issue for sure, but it begins to address it and really grounds it in science.

This Is Your Brain: The Guided Tour – Your Brain on Trial

Phil Stieg: Given neuroscience’s current understanding about judgement in the developing adolescent brain, do you think Neurolaw can have a role in crime prevention?

Francis Shen: Absolutely. There are effective means for positive youth development, for improving positive youth development, and that those mechanisms are going to be more effective when we asked the question of “what’s happened to you?”. So that we understand that a someone presenting with a history of trauma, that the intervention there might need to be different than simply a judge looking squarely in the offender’s eyes and saying, I don’t ever want to see you in my courtroom again.

Well, OK, that’s that works in the movies. It doesn’t work in real life. And it gets especially complicated when we talk about when we recognize that there may be a mental disorder and there may be a substance use disorder, which is I mean, which is shows up in the majority of individuals in certain, you know, pockets of the justice system. And so addressing those, we think involves an interdisciplinary response. And, you know, you’d harness the knowledge that’s been gained in 30 plus years of addiction science in 30 plus years of work on depression of adolescent development, because it really is for us a lot about that intervention in helping individuals make better decisions.

Phil Stieg: It seems to me that the laws regarding drug addiction are somewhat convoluted. They’re allowed out on probation and then they get caught back on drugs and they end up back in prison. I mean, what’s wrong with our thinking? And what do you or the Center for Law, Brain and Behavior believe should happen?

Francis Shen: So what’s fundamentally wrong with the law’s thinking about this is that it assumes some reasons for action and its assumptions are probably mistaken. That is, it assumes that after that first or second incident that the individual is making a choice to say, I know that there are these problematic outcomes, but I’m going to choose anyway a morally culpable choice to use these drugs and to violate my probation and so forth. And because the law assumes that then the law feels justified in further punishment. Baked into that are something called mandatory minimums. These are ways in which the legal system says to a judge, “even if you see reason to punish less, you can’t – you have to punish at really a quite high level.”

And just to give you a concrete example, there’s a young man named Chris Young. Mr. Young was 22 at the time of his latest offense and had been and had served over a decade at that point for a drug conspiracy case. The thing was he had a life prison sentence essentially for drug charges and some other things. It’s this mandatory minimum set of issues is really problematic because it flies in the face of what we know about what groups of individuals like this are most likely doing.

Phil Stieg: I’m fully sensitive to the mechanism of the addiction process. But where in neurolaw then can we draw a line between that and the addicted persons responsibility — and then also the responsibility of the legal system to protect the general public? We all know that there are individuals that will commit crimes in order to feed their drug habit. So, where’s the balance for us? What do you propose?

Francis Shen: It’s a great, great question. So the first thing to say is that I don’t think there’s anything that would suggest a lack of responsibility in the “hard determinist “sense. I think it’s really about individualizing that assessment of risk and goes back to what I was saying before asking: All right, where are you coming from? How is your brain operating given the context that you’re operating in? And there will be some for whom, whether it’s a substance use disorder or a different type of mental illness or something beyond that, all where we say, “look, as a matter of protecting society – and you – from yourself, there just simply aren’t any better options than incarceration.”

And I think that answer also varies a lot with age and on a lot more comfortable offering that answer for someone much later in life. For those, again, just on average, you know, from, say, 16 to 21, the evidence to me suggests that there ought to be a presumption, just given the empirical data, that there will be desistance, not for all, but for most. And is there a way to monitor that more effectively?

Phil Stieg: Let’s touch on another controversial subject – the concept of solitary confinement. Perhaps you can define that for me. Tell me why it’s used, and from a neurological standpoint, is it justified?

Francis Shen: Well, there are multiple reasons that the current justice system here in the United States and others from in other countries use solitary confinement. Some are probably more justified than others. That is, sometimes it is used as a safety precaution. That is, the individual might be at risk from the rest of the population in the prison. Another might be that they’re taken out for medical or some other reasons that they sort of need this separation.

But there’s also punitive segregation, which is that it is used as a punishment. If you break the rules, you’re going to solitary. That seems to me it’s at least justified. And the primary way that I come to this from a neuroscience perspective is what are the effects of being in solitary confinement, taking the most social creature that we know on the face of the Earth, and putting that human into these Draconian, very challenging conditions. The legal hook is this. There is an Eighth Amendment prohibition against cruel and unusual punishment. Now, it’s never been held that simply incarcerating someone is cruel and unusual, though it’s very difficult, right, to be incarcerated. That’s not cruel and unusual. But there are a lot of things that are. For instance, you can’t incarcerate someone and not give them their medications that they need. You can’t withhold food and water from someone while they’re incarcerated. So the critical question from a legal perspective is, does extended solitary confinement, especially for punitive reasons, violate the Eighth Amendment?

Phil Stieg: Since I’m not a lawyer, what’s the Eighth Amendment? Can you briefly explain that?

Francis Shen: Oh, yes. So eight amendment, among other things, is a prohibition against cruel and unusual punishment, it is the lever by which the Supreme Court has ruled the death penalty unconstitutional for those under age 18 and a whole bunch of other litany of things that the government can’t do to its citizens in the name of justice.

And so the question is whether certain forms of solitary confinement, especially extended solitary confinement, are cruel and unusual, at least as they’re currently carried out. There’s a bunch of litigation surrounding this. And increasingly, neuroscientists are getting involved to think about, again, those invisible harms. So it would be very different, and I think there’s clearly an Eighth Amendment violation if in solitary confinement if every day the warden showed up and took a whip and whipped the individual. But what about the mental torture as it’s been described? And that’s where I think this is headed. It’s why we have an interest in it. It’ll be a long and circuitous route on the legal side. But I think that the neuroscience will increasingly, you know, contribute even if it has to be marginally because, you know, we don’t have actual data from those individuals who’ve been confined about changes in their particular circuitry. But we take nonhuman animal models. We look at other things we know behaviorally, and we begin to paint a picture to make a better guess.

Phil Stieg: We could go on forever talking about examples where, you know, the brain is involved and then how neuroscience is going to affect the way an individual should be treated within the legal system. Where do you think this is going? What’s the next big hurdle in your mind?

Francis Shen: So to me the big question are going to be a number of threshold questions. When do we know enough? When do we know enough to put certain evidence in front of a jury? When do we know enough to, as a constitutional matter, rule something unconstitutional? When do we know enough to change practice, you know, to change the types of interventions we use for those with substance use disorder. There will never be THE study that suddenly changes the field. But I think that as a number of these thresholds are crossed in different areas, we’re going to begin to see a legal system that’s much more amenable to being in conversation with neuroscience.

Phil Stieg: Frances Shen JD, PhD – It’s been fascinating talking with you about neuroscience, the brain, and the legal system. We’ve got a long way to go. We’ve got an innumerable number of subjects that we can discuss. It’s been great fun. Thank you for being with me.

Francis Shen: Thanks for having us