News and Commentary Archive

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


The Center for Law, Brain & Behavior puts the most accurate and actionable neuroscience in the hands of judges, lawyers, policymakers and journalists—people who shape the standards and practices of our legal system and affect its impact on people’s lives. We work to make the legal system more effective and more just for all those affected by the law.

Justices Hear Florida Case on Measuring Inmates’ Mental Disabilities

Justice Anthony M. Kennedy raised questions about how much the court deferred to psychiatrists, psychologists and economists.WASHINGTON — A majority of the Supreme Court seemed skeptical on Monday of how Florida decides who is eligible to be spared the death penalty on account of intellectual disabilities. The state uses an I.Q. of 70 as a rigid cutoff, and several justices suggested that it should take account of a standard margin of error or consider additional factors.

Other justices seemed inclined to allow Florida and other states to decide for themselves how to determine who is “mentally retarded” and so ineligible for execution under the court’s 2002 decision in Atkins v. Virginia.

The Atkins decision gave states substantial discretion and only general guidance. It said a finding of intellectual disability requires proof of three things: “subaverage intellectual functioning,” meaning low I.Q. scores; a lack of fundamental social and practical skills; and the presence of both conditions before age 18. The court said I.Q. scores under “approximately 70” typically indicate intellectual disability.

As Monday’s argument progressed, it became clear that what divided the two groups of justices was more than the particular case. Their disagreement was a larger one about the role of scholarly and professional expertise in the resolution of legal disputes.

Read the full article, Justices Hear Florida Case on Measuring Inmates’ Mental Disabilities, in New York Times. By Adam Liptak, March 3, 2014. See more coverage of this issue in the article, With Death Penalty, How Should States Define Mental Disability?, on NPR. By Nina Totenburg, March 3, 2014.

Watch: Capacity, Finances, and the Elderly: Brain Science Meets the Law

Capacity, Finances, and the Elderly

Click above to view the flyer for this event.

On December 12th, 2013, at Brigham and Women’s Hospital’s Bornstein Amphitheater, CLBB joined forces with the Boston Society of Neurology and Psychiatry to host a conversation among experts in neurology, psychiatry, and the law about how the science of aging could impact how we protect older adults from victimization and undue influence. Where do we draw the line between protection and paternalism?  What constitutes a bad financial decision?  Who needs additional protections?

Panelists included Bruce H. Price, MD, Chief of Neurology at McLean Hospital and Co-Director of CLBB;  Rebecca W. Brendel, MD, JD, Consultant to the Law & Psychiatry Service at MGH, Clinical Director of the Home Base Program,  Assistant Professor of Psychiatry, Harvard Medical School; Susan Stenger, Attorney with decades of experience handling probate litigation, including undue influence and lack of capacity cases; and Judge Susan Ricci, Associate Justice of the Massachusetts Probate and Family Court in Worcester.

Kay Lazar, Health Reporter at the Boston Globe with a focus on Aging, Sports Medicine and Public Health, moderated a panel discussion and Audience Q&A following the speaker remarks.

To watch video from this event, visit our Vimeo channel on Capacity, or watch individual segments below.

Also, read Kay Lazar’s story about this topic and CLBB’s role in the Boston Globe.

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Financial Fraud in Nursing Homes: States Need Better Screening for Office Workers

The states have long been concerned with caregiver qualifications for nursing home employees. The elderly, whose health is failing, are at high risk for abuse, neglect, maltreatment, and assault by staff and even other nursing home residents. Accordingly, each state has enacted screening procedure to conduct thorough background checks on staff, and in many cases residents, prior to granting them access to the facilities. Yet, as USA Today reports, this high degree of caution has failed to translate to office workers in nursing homes. Unfortunately, the lack of proper screening procedures, has resulted in thousands, if not millions of dollars, in fraud. Read the full story here.

This timely reminder of the vulnerability of elderly is just another reason that CLBB’s work on understanding decision-making by the elderly is essential. If you are interested in learning more, please attend our symposium on 12/12/13 on Capacity, Finances, and the Elderly: Brain Science Meets the Law.

Source: USA Today, December 1, 2013.

Cognitive Impairment and Decision Making in the Elderly at AAPL 2013

As the incidence of cognitive impairment increases with advancing age, a larger number of our elderly population will suffer some variety of dementing disorder.  Causes include Alzheimer’s disease, multi-infarct dementia, and a variety of other disease states.  Effects can vary to very subtle to severe.  At some point, cognitive impairment may limit an elder adult’s ability to make decisions.  These limits may be in specific domains, such as financial or medical.

Alternatively, cognitive limitations may be more global in nature.  Some elder adults had the foresight to record specific beliefs prior to any cognitive disease.  Health care proxies, living wills, or financial power of attorney document an individual’s choices at an earlier time point.

But many adults do not put their wishes in writing.  Also, adults are free to change their opinion at any point.  The question must then be asked: at what point does cognitive impairment limit a person’s capacity to make decisions?  There is not one simple answer.  The level of scrutiny varies with the task.  For example, making changes to a will generally only requires a low level understanding of one’s estate and heirs.  Other tasks, such as consenting to a complicated medical treatment, will require far more understanding.  Thus, the level of scrutiny is much higher. But where should society draw the line between protection and paternalism?

These and other issues were addressed by a panel at this year’s Annual Meeting of the American Academy of Psychiatry and the Law (AAPL), which took place in San Diego, California on October 24-27, 2013.  The panel, entitled “Impaired Medical Decision-Making in Older Patients,” included a lively discussion between Stephen Read, M.D. of the Department of Psychiatry and Biobehavioral Sciences at UCLA; Debra Pinals, M.D., the Assistant Commissioner of Forensic Services for the Massachusetts Department of Mental Health; Phillip Resnick, M.D., the Director of the Forensic Psychiatry Fellowship at Case Western Reserve; Sherif Soloman, M.D., an Assistant Professor of Psychiatry at Case Western Reserve; and Robert Weinstock, M.D., the Director of the UCLA Forensic Psychiatry Fellowship Program.

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Did Your Brain Make You Do It?

By John Monterosso and Barry Schwartz | The New York Times | July 27, 2012

Are you responsible for your behavior if your brain “made you do it”?

Often we think not. For example, research now suggests that the brain’s frontal lobes, which are crucial for self-control, are not yet mature in adolescents. This finding has helped shape attitudes about whether young people are fully responsible for their actions. In 2005, when the Supreme Court ruled that the death penalty for juveniles was unconstitutional, its decision explicitly took into consideration that “parts of the brain involved in behavior control continue to mature through late adolescence.”

Similar reasoning is often applied to behavior arising from chemical imbalances in the brain. It is possible, when the facts emerge, that the case of James E. Holmes, the suspect in the Colorado shootings, will spark debate about neurotransmitters and culpability.

Whatever the merit of such cases, it’s worth stressing an important point: as a general matter, it is always true that our brains “made us do it.” Each of our behaviors is always associated with a brain state. If we view every new scientific finding about brain involvement in human behavior as a sign that the behavior was not under the individual’s control, the very notion of responsibility will be threatened. So it is imperative that we think clearly about when brain science frees someone from blame — and when it doesn’t.

Read the full article here.