SEEING VOICES Potential Neuroscience Contributions to a Reconstruction

SEEING VOICES Potential Neuroscience Contributions to a Reconstruction of Legal Insanity Prof. Jane Campbell Moriarty Carol Los Mansmann Chair in Faculty Scholarship From Out of the Shadows: Illuminating the Intersection of Mental Health and Law Duquesne University, October 21, 2016

The Insanity Defense is Unraveling* Widespread Disagreement About the Defense: • Legal standards (cognitive, volitional, no defense) • Constitutional questions • Evidentiary concerns • Diagnostic shortcomings • Jurisprudential foundations * See generally, R. George Wright, Pulling on the Thread of the insanity Defense, 59 Vill. L. Rev. 221, 241 (2014), arguing that the defense is in danger of unravelling for myriad reasons; legal, scientific, and jurisprudential.

Is Legal Insanity a Unitary Concept? M’Naghten (Federal Law Version) (a) Affirmative defense. --It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. Model Penal Code (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

Pennsylvania Insanity Defense, 18 Pa. C. S. A. § 315 (a) General rule. --The mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of evidence that the actor was legally insane at the time of the commission of the offense. (b) Definition. --For purposes of this section, the phrase “legally insane” means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.

Insanity Defense, cont. More limited variations of M’Naghten (knowledge of wrongfulness only) The Product Test Elimination of the Insanity defense (~4 states) Various Burdens of Proof Evidence rules governing expert testimony Guilty But Mentally Ill Diminished Capacity Sentencing & Capital Phase

Legal Insanity and Public Opinion Many legitimate critiques of the defense disagreement between experts antiquated concepts of mental illness subjectivity of behavioral science Many mythic beliefs about the defense Many defendants raise insanity as a defense Allows defendants to “get away with murder” Defendants successfully fake mental illness Insane defendants quickly go free

Neuroscience Contributions to the Unraveling • Robust, interdisciplinary debate about: • Free Will---Determinism • Brain & Mind Relationship • “Folk” psychology to be replaced by reductionist materialism? • The legitimacy of the cognitive-volitional distinction

Will we simply give up on legal insanity? “Abolition of the insanity defense is simply unfair and there is no adequate substitute for it. Some people are so lacking in rational capacity through no fault of their own that it would be as unjust to blame them and punish them as it would be to blame and punish young children or people with dementia. ” Stephen J. Morse, 101 J. Crim. L. & Criminology 885, 932 (2011)

The Insanity Defense: Where Can Neuroscience Contribute to a Reconstruction? Moral Construction Legal Standards Science & Medical Knowledge

Case of the Terribly Disruptive Patient • • • Science-Based Understanding Moral & Legal Construction— Blameworthiness/Empathy Potentially Misleading? Causation/Correlation?

Structural and Functional Neuroimaging • Radiographic neuroimaging (e. g. , MRI, CT Scans, x-ray) • Useful to depict damage, impairment, disease • Functional magnetic resonance imaging (f. MRI) • Useful for showing task-related brain activity using a BOLD signal • Positron emission tomography (PET) • Useful for showing impaired metabolic activity in given regions by tracking glucose use in the brain (e. g. , diagnosing dementia)

Where neuroscience may not be useful in the foreseeable future to resolve debates about: Free will, compatibilism, and determinism Relationship of brain and mind Legally Responsible Not responsible Perhaps a more materialist explanation, with an assimilation of folk psychology

Three Places Where Neuroscience May Contribute • Understanding Severe Mental Illness: Schizophrenia as a Template • Illuminating the Divide Between Thoughts and Behaviors • Informing Our Concepts of Moral Blameworthiness

Primary Contribution: Improved Understanding of Mental Illness Schizophrenia: • Collaborative studies by neuroscientists, biologists, geneticists, research psychiatrists, and statisticians to understand schizophrenia. (Sekar, et al , 2016) • Improved prediction, diagnosis, disease progression, and efficacy of treatment (Koutsouleris, Meisenzahl, et al 2015), (Bendfeldt, Smieskova, et al 2015)(Mc. Guire, et al 2015)(Fusar-Poli, et al 2012)(Yung, et al 2003) In general: • Additional scientific support for clinical diagnoses and behavioral observations • Brain-based bio-markers of serious mental illnesses

Seeing Voices? “If functional neuroimaging could accurately visualize an auditory verbal hallucination that a person with schizophrenia endures, legal insanity might be a more understandable and, indeed, a more palatable concept. ” Moriarty, Seeing Voices, 2016.

f. MRI & Schizophrenia—Seeing Voices? Auditory Hallucinations Group brain activation during random sampling of hallucinations. . . The colored areas are regions that were activated during auditory hallucinations, with the foci of maximal significance shown in yellow. Sukhwinder S. et al, Mapping Auditory Hallucinations in Schizophrenia Using Functional Magnetic Resonance Imaging, Arch Gen Psychiatry. 2000; 57(11): 1033 -1038

Whitfield-Gabrieli, et al, Hyperactivity and hyperconnectivity of the default network in schizophrenia and in first-degree relatives of persons with schizophrenia, Vol. 106, no. 4, PNAS 1279 -1284 (2009)

Neuroscience Diagnoses Defense Insanity Neuroscience may respond to long-standing critiques of the defense: • Defining serious mental illness • Causes of aberrant behavior • Subjective and behavioral-based diagnoses • Jurisprudential goals related to criminal responsibility

Functional and Static Neuroimaging may also address temporal concerns related to the insanity defense Malingering, Neuroplasticity, and Permanence of injury

Assume a person with a psychotic episode Static neuroimaging as an example Differential Diagnosis for Cause of Psychotic Features: Systemic Lupus Erythematosus (bright spots) MR FLAIR Technology

Neuroimage that might provide evidence of past behavior Meningioma compressing frontal lobes can cause pseudodementia— 5 to 10 years to develop MR with a contrast-enhanced T 1 -weighted image

Hemorrhagic Contusion: now & four months later contralateral hemisphere While raising concerns about future behavior and dangerousness

But not yet. . “[N]o consistent reliable anatomical or functional alterations have been unequivocally associated with psychosis or schizophrenia and no clinical applications have been developed in psychiatric neuroimaging. ” (Borgwardt and Fusar-Poli, 2012)

Neuroscience and Volition

Possibly illuminate the relationship among brain lesion, cognition, and volition • Severe blast damage to combat Veterans’ brains • Chronic insults to athletes’ brains • Severe brain injury from accidents • See e. g. , Hollander-Blumoff, 2012; S. Penney, 2012; Farrell and Marceau, 2013; Hardcastle, 2014; Litton, 2014 (focusing on the significance of impaired volition).

The relationships between cognition and control Brain Lesion Impulsivity Cognition Behavioral Control

Phineas Gage: “Gage is not Gage”

“Half-headed Florida man charged with attempted murder after setting mattress on fire” NEW YORK DAILY NEWS Tuesday, October 18, 2016

Issues for Insanity Defense Legal Scholars Using Neuroscience • Treating the legally insane as a group or as individuals (Slobogin on Scientizing) • Atomistic v. holistic use of science; interdisciplinary approach (Mnookin, 2013, on Evidence)(Jones & Goldsmith, arguing for a ”synthesis” perspective, 2005) • Quality of the neuroscience—particularly functional neuroimaging (but as compared to what? Schauer, 2010) • Will law will lead or follow science—dangers of early legal use constantly) (Moriarty,

The Insanity Defense: Where Neuroscience Contributes Moral Construct Science & Medically-Based Knowledge Blameworthiness and Empathy Legal Rules