Criminal Responsibility and Neuroscience: No Revolution Yet

Can neuroscience enlighten the philosophical debate about free will?

Free will has been at the heart of philosophical and scientific discussions for many years. However, recent advances in neuroscience have been perceived as a threat to the commonsense notion of free will as they challenge two core requirements for actions to be free. The first is the notion of determinism and free will, i.e., decisions and actions must not be entirely determined by antecedent causes. The second is the notion of mental causation, i.e., our mental state must have causal effects in the physical world, in other words, actions are caused by conscious intention. We present the classical philosophical positions related to determinism and mental causation, and discuss how neuroscience could shed a new light on the philosophical debate based on recent experimental findings. Overall, we conclude that the current evidence is insufficient to undermine free will.

The reliability of assistance systems modulates the sense of control and acceptability of human operators

Individuals are increasingly required to interact with complex and autonomous technologies, which often has a significant impact on the control they experience over their actions and choices. A better characterization of the factors responsible for modulating the control experience of human operators is therefore a major challenge to improve the quality of human-system interactions. Using a decision-making task performed in interaction with an automated system, we investigated the influence of two key properties of automated systems, their reliability and explicability, on participants' sense of agency (SoA), as well as the perceived acceptability of system choices. The results show an increase in SoA associated with the most explicable system. Importantly, the increase in system explicability influenced participants' ability to regulate the control resources they engaged in the current decision. In particular, we observed that participants' SoA varied with system reliability in the "explained" condition, whereas no variation was observed in the "non-explained" condition. Finally, we found that system reliability had a direct impact on system acceptability, such that the most reliable systems were also considered the most acceptable systems. These results highlight the importance of studying agency in human-computer interaction in order to define more acceptable automation technologies.

Biolegality: How Biology and Law Redefine Sociality

As an empirical concept, biolegality emerged at the height of biotechnological advances in Euro-American societies when rapid changes in the life sciences (including molecular biology, immunology, and the neurosciences) and their attendant techniques (including reproductive technologies and gene editing) started to challenge ethical norms, legal decisions, and legal forms. As a theoretical concept, biolegality deepens the Foucauldian notion of biopolitics with an operation of legality that emphasizes how biology and its attendant technologies alter legal form, knowledge, practice, and experience. These empirical and theoretical developments affect how we understand sociality. While public discourse remains preoccupied with the call for more regulation—thereby underscoring law's lag in its dealings with technology—the social science scholarship describes instead how bioscience and biotechnology are fragmenting and rearranging legal knowledge about property, personhood, parenthood, and collective identity. As it opens broader anthropological debates around exchange, self, kinship, and community, the study of biolegality brings a novel currency to the discipline, addressing how biology and law inform new ways of relating and knowing.

What is new with Artificial Intelligence? Human–agent interactions through the lens of social agency

In this article, we suggest that the study of social interactions and the development of a “sense of agency” in joint action can help determine the content of relevant explanations to be implemented in artificial systems to make them “explainable.” The introduction of automated systems, and more broadly of Artificial Intelligence (AI), into many domains has profoundly changed the nature of human activity, as well as the subjective experience that agents have of their own actions and their consequences – an experience that is commonly referred to as sense of agency. We propose to examine the empirical evidence supporting this impact of automation on individuals’ sense of agency, and hence on measures as diverse as operator performance, system explicability and acceptability. Because of some of its key characteristics, AI occupies a special status in the artificial systems landscape. We suggest that this status prompts us to reconsider human–AI interactions in the light of human–human relations. We approach the study of joint actions in human social interactions to deduce what key features are necessary for the development of a reliable sense of agency in a social context and suggest that such framework can help define what constitutes a good explanation. Finally, we propose possible directions to improve human–AI interactions and, in particular, to restore the sense of agency of human operators, improve their confidence in the decisions made by artificial agents, and increase the acceptability of such agents.

Never run a changing system: Action-effect contingency shapes prospective agency

Human action control is highly sensitive to action-effect contingencies in the agent's environment. Here we show that the subjective sense of agency (SoA) contributes to this sensitivity as a subjective counterpart to instrumental action decisions. Participants (N = 556) experienced varying reward probabilities and were prompted to give summary evaluations of their SoA after a series of action-effect episodes. Results first revealed a quadratic relation of contingency and SoA, driven by a disproportionally strong impact of perfect action-effect contingencies. In addition to this strong situational determinant of SoA, we observed small but reliable interindividual differences as a function of gender, assertiveness, and neuroticism that applied especially at imperfect action-effect contingencies. Crucially, SoA not only reflected the reward structure of the environment but was also associated with the agent's future action decisions across situational and personal factors. These findings call for a paradigm shift in research on perceived agency, away from the retrospective assessment of single behavioral episodes and towards a prospective view that draws on statistical regularities of an agent's environment.

Translational Application of a Neuro-Scientific Multi-Modal Approach Into Forensic Psychiatric Evaluation: Why and How?

A prominent body of literature indicates that insanity evaluations, which are intended to provide influential expert reports for judges to reach a decision "beyond any reasonable doubt," suffer from a low inter-rater reliability. This paper reviews the limitations of the classical approach to insanity evaluation and the criticisms to the introduction of neuro-scientific approach in court. Here, we explain why in our opinion these criticisms, that seriously hamper the translational implementation of neuroscience into the forensic setting, do not survive scientific scrutiny. Moreover, we discuss how the neuro-scientific multimodal approach may improve the inter-rater reliability in insanity evaluation. Critically, neuroscience does not aim to introduce a brain-based concept of insanity. Indeed, criteria for responsibility and insanity are and should remain clinical. Rather, following the falsificationist approach and the convergence of evidence principle, the neuro-scientific multimodal approach is being proposed as a way to improve reliability of insanity evaluation and to mitigate the influence of cognitive biases on the formulation of insanity opinions, with the final aim to reduce errors and controversies.

A multidisciplinary approach to insanity assessment as a way to reduce cognitive biases

Insanity assessment requires the evaluation of the psychopathological condition that underlies the mens rea. Psychopathological evaluation may be quite challenging due to (i) absence of biomarkers; (ii) low inter-rater reliability; (iii) presence of cognitive bias. This intrinsic low reliability of forensic psychiatric diagnosis does impact on insanity assessment, leading to arbitrary and unjust legal outcomes for the examinee. Thus, strategies to improve the reliability of insanity evaluation are strongly needed. A multidisciplinary approach has been proposed as a way to enrich clinical diagnosis with reliable and biologically founded data, thus minimizing subjectivity, reducing controversies and increasing inter-subject concordance in insanity assessment. By discussing a real case, here we show how the convergence of multiple indices can produce evidence that cannot be denied without introducing logical fallacies. Applying this approach, the forensic discussion will move from the presence/absence of psychopathology to the impact of psychopathology on insanity. This article illustrates how a multidisciplinary evaluation, which integrates neuroscientific methods with the classical insanity assessment, may lead to a more accurate approach in insanity evaluation. Critically, this approach will minimize the impact of cognitive bias on insanity opinion and thus result in an improvement of the whole criminal justice process.

Real Neurolaw in the Netherlands: The Role of the Developing Brain in the New Adolescent Criminal Law

Previous publications discussed the conditions under which courts admitted or could admit neurotechnological evidence like brain scans. There were also first attempts to investigate legal decisions neuroscientifically. The present paper analyzes a different way in which neuroscience already influenced the law: The legal justification of the new Dutch adolescent criminal law explicitly mentions findings on brain development to justify a higher maximum age for the application of juvenile criminal law than before. The lawmaker’s reasoning is compared with the neuroscientific studies on which it is based. In particular, three neurodevelopmental publications quoted by the Dutch Council for the Administration of Criminal Justice and Protection of Juveniles to justify that adolescents can be legally less responsible are analyzed in detail. The paper also addresses possibilities under which brain research could improve legal decision-making in the future. One important aspect turns out to be that neuroscience should not only matter on the level of justification, but also provide better instruments on the individual level of application.

Re-wiring Guilt: How Advancing Neuroscience Encourages Strategic Interventions Over Retributive Justice

The increasing visibility of neuroscience employed in legal contexts has rightfully prompted critical discourse regarding the boundaries of its utility. High profile debates include some extreme positions that either undermine the relevance of neuroscience or overstate its role in determining legal responsibility. Here we adopt a conciliatory attitude, reaffirming the current value of neuroscience in jurisprudence and addressing its role in shifting normative attitudes about culpability. Adopting a balanced perspective about the interaction between two dynamic fields (science and law) allows for more fruitful consideration of practical changes likely to improve the way we engage in legal decision-making. Neuroscience provides a useful platform for addressing nuanced and multifaceted deterministic factors promoting antisocial behavior. Ultimately, we suggest that shifting normative attitudes about culpability vis-à-vis advancing neuroscience are not likely to promote major changes in the way we assign legal responsibility. Rather, it helps us to shed our harshest retributivist instincts in favor of more pragmatic strategies for combating the most conspicuous patterns promoting mass incarceration and recidivism.