With a hat tip to our Uncle Ralph, here’s a link to yet another fMRI study bearing on criminal law. Makiko Yamada and colleagues have published in Nature Communications their study “Neural Circuits in the Brain that are Activated when Mitigating Criminal Sentences.”
The researchers asked people to review the facts underlying 32 hypothetical murder convictions. Half of them were designed to elicit sympathy for the convicted murderer, the other half to elicit no sympathy. The test subjects were told that each murderer had been given a 20-year sentence, and they were asked to modify the sentences. Unlike previous studies, there was no question as to guilt or innocence — the only issue was whether the sentence should be more or less than 20 years under the circumstances. A functional MRI scanned their brains to see what neurons were firing as they made their decisions.
The question intrigued the researchers because such decisions are not only high-stakes, but also because one must first have an emotional reaction, and then convert it into a cold quantification — the number of years of the sentence.
After crunching all the numbers, there appeared to be a strong correlation between activity in the portions of the brain highlighted in the image above, and reduced sentences.
To their credit, the researchers really don’t conclude any more than that — that certain brain areas seem to be involved in decisionmaking influenced by sympathy. And someone who’s more likely to be sympathetic is also more likely to have more activity in those neurons.
But they do note that this raises other questions — such as to what extent neurology may cause deviations from an objectively “correct” sentence, either from someone who was too sympathetic or not sympathetic enough. Flights of fancy about brain scans as part of voir dire or appeals, however, are best left to places like MSNBC.
A more useful conclusion is hinted at by the study, however: Those with a more active dorsomedial prefrontal cortex may indeed be more likely to let someone off easy, if their circumstances are sympathetic. But they are also more likely to throw the book at someone whose crime is more viscerally offensive.
In other words, your touchy-feely juror may be great if your client has had a rough life, but that same juror is also the one who’s going to demand the harshest sentence for a client who did something particularly cruel. The sympathy thing goes both ways.