Professor Nikolas Rose Professor of Sociology & Director of BIOS Research Centre; London School of Economics

Rising public concern about social implications of new brain sciences: Neuroethics Philosophical Transactions: Biological Sciences Issue: Volume 359, Number 1451 November 29, 2004 Law and the Brain

Genetics only one part of the picture (brain scans, neurochemistry, psychopharmacology) – but issues are not just ethical, but political, cultural, legal and economic Neuroscience and Neuroethics, Science, 306, 5695, 373, 15 October 04 Donald Kennedy, Editor-in-Chief Neuroethics, it appears, is a subject that has "arrived." The Dana Foundation is, for the second time since 2002, sponsoring a special lecture on this topic at this year's annual meeting of the Society for Neuroscience. AAAS, publisher of Science, also joined with Dana to produce a conference on "Neuroscience and the Law" earlier this year. The U.S. President's Council on Bioethics is now devoting serious attention to the topic. Companies are deploying functional magnetic resonance imaging (fMRI) to map brain activity as they assess the product preferences of prospective consumers (Coke or Pepsi?). There's even a new discipline called neuroeconomics. So something is going on here.

Scenarios often based on hype, scare and fantasy rather than realities of the science Fantasies of fMRI: What if they could read your mind? In the courtroom (witness statements) In the airport (dangerous thoughts) Neuro-marketing (responses to products) Fantasies of psychopharmacology What if we/they could manipulate our minds? What if they could control your behaviour/desires? Fantasies of neurochemistry and behavioural genomics. What if we could explain your impulses and your emotions? Would we move beyond free will in the law? What implications for ethics of morality and autonomy?

Beyond responsibility in the law? Some claim genomics and brain sciences will discover genetic and neurochemical bases of impulsive conduct. Such claims particularly controversial in US given over-representation of African Americans in CJS. Note that this is not gene for crime – that paradigm discredited – but on genomic susceptibilities in impulse control. Some findings much quoted e.g. Brunner on MAOA in Dutch lineage Caspi et al on interaction of MAOA variants and childhood maltreatment. Emphasis now is on developmental interaction of social, biographical, environmental factors with multiple genomic loci of susceptibility and protection Even in the best studies, predictive power of genetic information in relation to behaviour is low.

Is There a Genetic Susceptibility to Engage in Criminal Acts? Katherine I. Morley and Wayne D. Hall Genetic research is beginning to identify genetic variants that may have some bearing on an individuals liability to develop antisocial behavioural characteristics… This review of genetic research on antisocial behaviour has summarised growing evidence for a genetic contribution to antisocial behaviour but it has also indicated that is is highly unlikely that variants of single genes will be found that significantly increase the risk of engaging in violent behaviour. Instead it is much more likely that a large number of genetic variants will be identified that, in the presence of the necessary environmental factors, will increase the likelihood that some individuals will develop behavioural traits that will make them more likely to engage in criminal activities (emphasis added) Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice, 263, October 2003

Will the courts be moved by the new brain sciences? No evidence that courts in US or UK are accepting evidence (genetic, brain scan, neurochemical) as mitigation of responsibility. Neuroscientists and behavioural geneticists themselves argue that these kinds of accounts do not have implications for moral judgements in court. Courts have resisted other evidence with same kind of explanatory status – e.g. from sociology – to uphold legal fiction of responsibility and free will. BUT place where this might impact is after verdict, in sentence, treatment, release decisions.

Risk, susceptibility and control In post-genomic era, most recognise that predictive power of genetic tests for behavioural variations is very low But tests may play part given: Rise of the precautionary principle in politics The expanding empire of risk and the assessment and treatment of risk The routinization of screening for asymptomatic conditions The politics of prevention, especially using pharmaceuticals Problem is with prediction, prevention, pre-emption especially in control strategies, especially aimed at Children Delinquents Addicts Prisoners Psychiatric patients Progressive public policy would be wise to be very, very sceptical!

Thank you for your attention!