"Study of Judges Finds Evidence From Brain Scans Led to Lighter Sentences," is the New York Times report by Benedict Carey. Here's an extended excerpt:
Judges who learned that a convicted assailant was genetically predisposed to violence imposed lighter sentences in a hypothetical case than they otherwise would have, researchers reported on Thursday, in the most rigorous study to date of how behavioral biology can sway judicial decisions.
The findings, published in the journal Science, are likely to accelerate the use of brain science in legal proceedings, experts said, and to intensify a long-running debate about its relevance. Courts have increasingly admitted such evidence — brain scans, mostly, as well as genetic analyses — though many experts say the science is still too primitive to inform legal decisions.
Defense lawyers now commonly introduce brain scans of convicted clients as mitigating evidence in appeals of death sentences, experts said.
Previous studies of how such evidence affects legal decisions are scarce and their results mixed. Some reports suggest that basic neurobiology affects juries’ verdicts, others that it does not. In the handful of real-life criminal cases in which brain science does seem to have had an effect, it has usually gone in favor of the defendant, reducing punishments, legal researchers said.
The new experiment focused on sentencing by judges, not jury verdicts. It found that neurobiological evidence reduced judges’ sentences by an average of about 7 percent for a fictional defendant convicted of battery and identified as a psychopath.
“What’s path-breaking about this paper is that it both isolates, as well as one can, the effects of biological testimony on outcomes and it also does this within a sample of the real-world decision makers, the judges themselves,” said Owen D. Jones, a professor of law at Vanderbilt University and director of the MacArthur Foundation Research Network on Law and Neuroscience. “This moves our understanding forward considerably.”
Dr. Jones and other experts cautioned that the effect might not apply broadly to other kinds of criminal defendants. It may also play out differently in jury trials. But they said that the findings were convincing and plausible.
In the study, three researchers at the University of Utah tracked down 181 state judges from 19 states who agreed to read a fictional case file and assign a sentence to an offender, “Jonathan Donahue,” convicted of beating a restaurant manager senseless with the butt of a gun. All of the judges learned in their files that Mr. Donahue had been identified as a psychopath based on a standard interview — that is, he had a history of aggressive acts without showing empathy.
The case files distributed to the judges were identical, except that half included testimony from a scientist described as “a neurobiologist and renowned expert on the causes of psychopathy,” who said that the defendant had inherited a gene linked to violent, aggressive behavior. This testimony described how the gene variant altered the development of brain areas that generate and manage emotion.
The account is an accurate description of one theory of how brain development may underlie aggressive behavior. Its applicability to any individual is unknown, however, given that many other factors could increase the likelihood of violence, researchers said.
The judges who read this testimony gave Mr. Donahue sentences that ranged from one to 41 years in prison, a number that varied with state guidelines. But the average was 13 years — a full year less than the average sentence issued by the judges who had not seen the testimony about genetics and the brain.
In interviews about their decisions, the judges said that a crime of aggravated battery like this one normally carried a sentence of 9 years, on average, and 15 years if the defendant was identified as a psychopath, the researchers found.
“But then those who read about the biological mechanism subtracted a year, as if to say, ‘This guy is really dangerous and scary, and we should treat him as such, but the biological evidence suggests that we can’t hold him as responsible for the behavior,’ ” said James Tabery, an assistant professor of philosophy at Utah.
He wrote the study with Lisa G. Aspinwall, a psychologist, and Teneille R. Brown, an associate professor in the university’s school of law. A research assistant, Gabriela Cash, recruited the judges by calling court administrators in every state.
NPR's Morning Edition reports, "Would Judge Give Psychopath With Genetic Defect Lighter Sentence?"
by Alix Spiegel. Audio is available at the link.
In 1991, a man named Stephen Mobley robbed a Domino's pizza in Hall County, Ga., and shot the restaurant manager dead.
Crimes like this happen all the time, but this particular case became a national story, in part because Mobley seemed so proud of his crime. After the robbery, he bragged about the killing and had the Domino's logo tattooed on his back.
But there was another reason Mobley's case became famous.
Right around the time Mobley went to trial, a study was published in a scientific journal about an extremely interesting gene called MAOA: monoamine oxidase A.
And:
In the U.S., the study got a lot of media attention. The press was giddy with the idea that a defect in a gene might, in a sense, cause criminality. And after hearing about the work, Mobley decided that he should be genetically screened for MAOA deficiency. After all, Mobley reasoned, if his crime was the product of biology and not his own choices, judges would have to be more forgiving, more lenient when it came time to dole out a punishment.
But here's the question: Would a biological explanation actually reduce Mobley's sentence? Or could it increase it?
"Psychopaths get a break from biology," is the University of Utah news release. Here's the full text of the release:
A University of Utah survey of judges in 19 states found that if a convicted criminal is a psychopath, judges consider it an aggravating factor in sentencing, but if judges also hear biological explanations for the disorder, they reduce the sentence by about a year on average.
The new study, published in the Aug. 17, 2012, issue of the journal Science, illustrates the “double-edged sword” faced by judges when they are given a “biomechanical” explanation for a criminal’s mental disorder:
If a criminal’s behavior has a biological basis, is that reason to reduce the sentence because defective genes or brain function leave the criminal with less self-control and ability to tell right from wrong? Or is it reason for a harsher sentence because the criminal likely will reoffend?
“In a nationwide sample of judges, we found that expert testimony concerning the biological causes of psychopathy significantly reduced sentencing of the psychopath” from almost 14 years to less than 13 years, says study coauthor James Tabery, an assistant professor of philosophy at the University of Utah.
However, the hypothetical psychopath in the study got a longer sentence than the average nine-year sentence judges usually impose for the same crime – aggravated battery – and there were state-to-state differences in whether judges reduced or increased the sentence when given information on the biological causes of psychopathy.
The study was conducted by Tabery; Lisa Aspinwall, a University of Utah associate professor of psychology; and Teneille Brown, an associate professor at the university’s S.J. Quinney College of Law.
The researchers say that so far as they know, their study – funded by a University of Utah grant to promote interdisciplinary research – is the first to examine the effect of the biological causes of criminal behavior on real judges’ reasoning during sentencing.
Biological Explanation of Psychopathy Helps Defendant
The anonymous online survey – distributed with the help of 19 of 50 state court administrators who were approached – involved 181 participating judges reading a scenario, based on a real Georgia case, about a psychopath convicted of aggravated battery for savagely beating a store clerk with a gun during a robbery attempt.
The judges then answered a series of questions, including whether they consider scientific evidence of psychopathy to be an aggravating or mitigating factor that would increase or decrease the sentence, respectively, and what sentence they would impose. They were told psychopathy is incurable and treatment isn’t now an option.
While psychopathy isn’t yet a formal diagnosis in the manual used by psychiatrists, it soon may be added as a category of antisocial personality disorder, Tabery says. The study cited an expert definition of psychopathy as “a clinical diagnosis defined by impulsivity; irresponsibility; shallow emotions; lack of empathy, guilt or remorse; pathological lying; manipulation; superficial charm; and the persistent violation of social norms and expectations.”
The researchers recruited 207 state trial court judges for the study. Six dropped out. Twenty others were excluded because they incorrectly identified the defendant’s diagnosis. That left 181 judges who correctly identified the defendant as a psychopath, including 164 who gave complete data on their sentencing decisions.
The judges were randomly divided into four groups. All the judges read scientific evidence that the convicted criminal was a psychopath and what that means, but only half were given evidence about the genetic and neurobiological causes of the condition. Half the judges in each group got the scientific evidence from the defense, which argued it should mitigate or reduce the sentence, and half the judges got the evidence from the prosecution, which argued it should aggravate or increase the sentence.
Judges who were given a biological explanation for the convict’s psychopathy imposed sentences averaging 12.83 years, or about a year less than the 13.93-year average sentence imposed by judges who were told only that the defendant was a psychopath, but didn’t receive a biological explanation for the condition. In both cases, however, sentencing for the psychopath was longer than the judges’ normal nine-year average sentence for aggravated battery.
Even though the year reduction in sentence may not seem like much, “we were amazed the sentence was reduced at all given that we’re dealing with psychopaths, who are very unsympathetic,” Brown says.
Aspinwall notes: “The judges did not let the defendant off, they just reduced the sentence and showed major changes in the quality of their reasoning.”
The study found that although 87 percent of the judges listed at least one aggravating factor in explaining their decision, when the judges heard evidence about the biomechanical causes of psychopathy from the defense, the proportion of judges who also listed mitigating factors rose from about 30 percent to 66 percent.
Psychopathy was seen as an aggravating factor no matter which side presented the evidence, but it was viewed by the judges as less aggravating when presented by the defense than when presented by the prosecution.
A Disconnect between Sentencing and Criminal Responsibility
One surprising and paradoxical finding of the study was that even though the judges tended to reduce the sentence when given a biological explanation for the defendant’s psychopathy, the judges – when asked explicitly – did not rate the defendant as having less free will or as being less legally or morally responsible for the crime.
“The thought is that responsibility and punishment go hand in hand, so if we see reduced punishment, we would expect to see the judges feel the defendants are less responsible,” Tabery says. “So it is surprising that we got the former, not the latter.”
The researchers also counted explicit mentions by the judges of balancing or weighing factors that increase or reduce sentencing. When evidence of a biological cause of the defendant’s psychopathy was presented by the defense, the judges were about 2.5 times more likely to mention weighing aggravating and mitigating factors than when it was presented by the prosecution or when no biological evidence was presented.
The data show that “the introduction of expert testimony concerning a biological mechanism for psychopathy significantly increased the number of judges invoking mitigating factors in their reasoning and balancing them with aggravating factors,” the researchers conclude. “These findings suggest that the biomechanism did invoke such concepts as reduced culpability due to lack of impulse control, even if these concepts did not affect the ratings of free will and responsibility.”
Brown adds: “In the coming years, we are likely to find out about all kinds of biological causes of criminal behavior, so the question is, why does the law care if most behavior is biologically caused? That’s what is so striking about finding these results in psychopaths, because we’re likely to see an even sharper reduction in sentencing of defendants with a more sympathetic diagnosis, such as mental retardation.”
State Variations in Sentencing
While the overall results showed a reduction in sentencing when judges read biological evidence about the cause of psychopathy, the reduction was greater in some of the 19 states surveyed and nonexistent in others. That is not surprising due to variations in sentencing guidelines, rules of evidence and the extent of judges’ discretion.
There were too few responses from eight states to analyze them individually. In three states – Colorado, New York and Tennessee – biological evidence of psychopathy actually increased the sentence, although the findings weren’t statistically significant.
In eight other states – Alabama, Maryland, Missouri, Nebraska, New Mexico, Oklahoma, Utah and Washington state – biological evidence of psychopathy reduced the sentence or had no effect, and the reduction was statistically significant in two of those states: Utah and Maryland. When just those eight states were examined, the defendant received an average sentence of 10.7 years if evidence was introduced that psychopathy has a biological cause, versus 13.9 years without such evidence.
“We saw sentencing go up in a few states and down in most, and that’s just evidence that it [the double-edge sword] could cut either way,” Brown says.
Aspinwall adds: “When you look at the reasons the judges provide, what is striking to us is the vast majority found the psychopathy diagnosis to be aggravating and, with the presentation of the biological mechanism, also mitigating. So both things are happening.”
The release also links to a Science podcast and a video on the topic.
