News and Commentary Archive

Explore recent scientific discoveries and news as well as CLBB events, commentary, and press.

Mission

The speed of technology in neuroscience as it impacts ethical and just decisions in the legal system needs to be understood by lawyers, judges, public policy makers, and the general public. The Massachusetts General Hospital Center for Law, Brain, and Behavior is an academic and professional resource for the education, research, and understanding of neuroscience and the law. Read more

A Court Put a 9-Year-Old in Shackles for Stealing Chewing Gum—an Outrage That Happens Every Single Day

By Brian Schatz | Mother Jones | 24 February 2015

The nine-year-old stole a 14-stick pack of Trident “Layers” chewing gum, Orchard Peach and Ripe Mango flavor, worth $1.48. He’d lingered by the beverage isle of the Super 1 Foods in Post Falls, Idaho, for a while before bailing out the front door. The theft led to a missed court appearance, which led to an arrest and a night spent in a juvenile jail. The next day, the third-grader appeared in court, chained and shackled.

At least 100,000 children are shackled in the US every year, according to estimates by David Shapiro, a campaign manager at the Campaign Against Indiscriminate Juvenile Shackling. (Formal data on numbers of shackled kids does not exist.) As juvenile justice practices have grown more punitive over the past several decades, shackling has become far more common. This month, the American Bar Association (ABA) passed a resolution calling for an end to this practice because it is harmful to juveniles, largely unnecessary for courtroom safety—and contradicts existing law. “We’re not just talking handcuffs here. These kids are virtually hog-tied,” says John D. Elliott, a South Carolina defense attorney who worked on the resolution. “The only difference is their hands are in front.” Continue reading »

A Boy Among Men

By Maurice Chammah | The Marshall Project | 24 February 2015

This story was produced in collaboration with The Atlantic.

Three years ago, the young man who would later be known as John Doe 1 shuffled into the Richard A. Handlon Correctional Facility in Ionia, Michigan. The town of 11,000 residents, which sits in the remote center of the state, houses five prisons, and over the years, it has earned the nickname “I Own Ya.” John, who was 17, had already gotten over the initial fear of going to an adult prison—he had spent several months at a county jail near Detroit and an intake facility in Jackson—but he also knew he would be spending longer at this lonely outpost, a minimum of three years for a couple of home invasions. It was still wintery in April, and his state-issued jacket was poor protection against the drafts coming through the broken windows, shattered by men who had passed through before. “It was pretty ragged,” he recalled recently, “a tear down.”

Continue reading »

Tune In, Turn On … and Train Your Brain?

By Michael N. Tennison, MA

In the early 1990s, visionary futurist Terence McKenna hypothesized that two seemingly disparate modalities of consciousness alteration and extension—drugs and computers—might ultimately converge.  If he were still alive today, even Terence might be surprised at the accuracy of his assessment.

As reported by the Boston Globe on February 8Thync, a company marketing a new neuro-enhancement device to be released later this year, purports to give users computerized control over fundamental elements of consciousness, including mood, cognitive capacities, and energy levels.  Enticing the potential consumer to “shift [one’s] state of mind” and “conquer life,” Thync claims its device can stimulate neural pathways with “intelligent waveforms,” or “vibes.”  Different “vibes,” they claim, produce results akin to a coffee-induced jolt on one hand or an alcohol-induced relaxation on the other.  The Thync prototype appears to rely on transcranial direct-current stimulation (tDCS), a mechanism that sends very low-level currents of electricity through the brain.  Scientists hypothesize that these low levels of electricity may produce subthreshold stimulation.  This means that the current gives neurons just enough of a boost to prime them to fire – without exciting them enough to cause firing.   Researchers believe that this may put neurons in a state of readiness to engage in neuroplasticity, enabling neurological changes that may be useful for patients and healthy consumers alike.

Reporters have been awed by the potential of consumer-grade brain stimulation to enhance all sorts of neurologically-mediated capacities, from learning and focus to attention and mood.  In 2012, one reporter stated that a 20 minute session of tDCS induced a Zen-like state of deep calm that facilitated the near-instant acquisition of new skill sets, lasting for several days until finally tapering off completely. Recent studies, on the other hand, suggest that single-session tDCS interventions may deliver little more than the placebo effect. In a review of 59 analyses, Australian researchers found tDCS to have no significant effect on executive function, memory, language, or other cognitive capacities.  Despite the data’s inconclusiveness—not to mention lack of FDA approval for therapeutic use—tDCS can be purchased online and even built in an afternoon with parts from a standard electronics store.

Online forums dedicated to personal tDCS use have sprung up across the internet, typically encouraging the use of studied protocols with respect to electrode placement, duration of application, and level of current. Many intrepid users freely experiment, seeking to probe the edges of consciousness not unlike psychedelic explorers of yesteryear.  This, of course, raises the chief concern about tDCS: regardless of whether or not the device can bring about the desired mental states, users place themselves at risk of harm either by mistake or misadventure.

When administered by trained scientists in a research setting, tDCS appears to have few, if any, negative effects.  The most serious reported negative effects pertain to skin irritation caused by electrodes.  Little to no evidence is available, however, about long-term risks.  One can certainly imagine a situation in which tDCS does bring about the desired results, to which users habituate or addict, either requiring ever-greater doses of electricity or otherwise interfering with their lives.  In addition, the risks of novel parameter configurations employed by home users, such as placement of the electrodes—selected either intentionally or by mistake—may not have been studied, and new risks could emerge.

Companies like Thync and others could mitigate some of these risks.  By programming parameter limitations into its device’s operating software, foc.us limits the duration and intensity of the electricity it produces.  Yet, just as tinkerers have been able to “jailbreak” their smartphones, such a practice may be possible with tDCS devices.

How much protection should consumers have at this point from commercial tDCS devices and their own experimentation?  In a counterintuitive twist, tDCS must be approved by FDA if it is marketed “therapeutically” – that is, to treat or cure any medical condition.  Yet, when marketed for private, non-therapeutic use the same device escapes FDA’s regulatory authority.  Whether the device is used therapeutically or recreationally could boil down to different semantic characterizations of exactly the same thing.  And is enhancement – helping junior learn his multiplication tables faster, for example – “therapeutic” or “recreational”?  So far, the FDA has not explicitly weighed in, but it recently released a draft guidance exempting “low risk general wellness products” from regulation as medical devices; whether this applies to tDCS, however, is unclear.

Should this apparent regulatory loophole be of concern?  After all, as a society we not only permit but encourage all sorts of activities that carry substantial risks for the participants, such as sky diving, motorcycle riding, and football.  This deference to rugged individualism and autonomy is deeply embedded in American culture.  But when it comes to risks associated specifically with alterations of consciousness, the government tends to be more paternalistic, if not consistent, in its approach to individual liberty.  Recreational drug use is prohibited unless it involves only our society’s politically-sanctioned drugs of choice—caffeine, tobacco, and alcohol.

This bifurcation has little to do with safety: tobacco contributes to more deaths per year than all illegal drugs combined. What is, or is not, permitted is a fundamentally political choice.  Thus, the emergence of commercial tDCS can and should prompt a new discussion about the regulation of consciousness alteration, whether performed by chemical or technological means.

Michael Tennison is a JD candidate (’15) at the University of Maryland.

CLBB Brief changes Mass. Eyewitness Testimony Law

Harnessing the current scientific consensus on the neuroscience of memory, CLBB recently contributed to a fundamental shift in the treatment of eyewitness identifications in Massachusetts courtrooms. CLBB partnered with the American Psychological Association to submit an Amicus Brief to the Massachusetts Supreme Judicial Court which outlined the latest neuroscientific understanding of eyewitness memory.

The brief addressed the misconception that human memory may work like a video camera and rejected the notion that witnesses who are highly confident in their identifications are therefore necessarily reliable. It outlined research demonstrating that a witness’s viewing of the same suspect in multiple identification procedures lowers the reliability of subsequent identifications and research regarding the effect of stress on the ability to recall past events. The Court embraced the core arguments presented in the Amicus brief, namely that these scientific principles regarding the limits of eyewitness identification are so well established that in appropriate cases, juries should be explicitly instructed about these limitations. Continue reading »

Red States, Blue States, and Brain States: Issue Framing, Partisanship, and the Future of Neurolaw in the United States

By Francis X. Shen and Dena M. Gromet | The Annals of the American Academy of Political and Social Science | March 2015

Abstract:

Advances in neuroscience are beginning to shape law and public policy, giving rise to the field of “neurolaw.” The impact of neuroscientific evidence on how laws are written and interpreted in practice will depend in part on how neurolaw is understood by the public. Drawing on a nationally representative telephone survey experiment, this article presents the first evidence on public approval of neurolaw. We find that the public is generally neutral in its support for neuroscience-based legal reforms. However, how neurolaw is framed affects support based on partisanship: Republicans’ approval of neurolaw decreases when neuroscience is seen as primarily serving to reduce offender culpability, whereas Democrats’ approval is unaffected by how neurolaw is framed. These results suggest that both framing and partisanship may shape the future of neuroscience-based reforms in law and policy.

Read the full paper here.