1 Acting on Impulse: Using the Neuroscience of Impulse Control to Improve the Law by © Dylan Roskams-Edris submitted to the School of Graduate Studies in partial fulfillment of the requirements for the degree of Master of Health Ethics Division of Community Health and Humanities/Faculty of Medicine Memorial University of Newfoundland May 2016 Newfoundland and Labrador 2 Abstract This thesis investigates the potential legal utility of neurotechnologies which measure correlates of impulsive behaviors. Chapter 1 explains my philosophical position and how this position compares to others in the field. Chapter 2 explores some of the technical concepts which must be understood for the discussion of neurotechnologies and their applications to be fruitful. These chapters will be important for both explaining the capabilities of a neuroscientific approach to neural abnormalities as well as how they relate to the kind of regulation in which the law is engaged. The purpose of Chapter 3 will be a descriptive account of Canadian law where I will begin to explore how to apply ideas and experiments from neuroscience to specific areas of law. Chapter 3 will look at actual examples of Canadian criminal law and will span topics from the creation of law to the construction of appropriate sentences. Chapter 4 will debate if and how we should apply the neuroscientific perspective to the law given the ethical concerns surrounding the applications described in Chapter 3. The thrust of the chapter is that the development of the law does not occur in a vacuum and any alteration either to the laws themselves, how they are interpreted, or the technologies used to provide evidence, must have an ethical justification, that is, a way in which the proposed change will better meet the needs of society and the ethical objectives of the law. Sometimes these justifications can be drawn directly from constitutional documents, such as the Charter, or from the Criminal Code, while at other times these justifications depend upon arguments about furthering meaningful responsibility and therapeutic outcomes. 3 Acknowledgements: I suppose it is a cliché that you don't really know what you have until you have lost it, but it holds true now that I am writing these final words for my thesis. I have to thank everyone who made my position at Memorial possible. It has been the most fun and fulfilling academic environment I have ever encountered. By the grace of my professors, the university, and CIHR I was afforded the opportunity to follow my own intellectual interests at minimal cost to myself, and for that I will be eternally grateful. I would first like to thank my professors. Dr. Fern Brunger for teaching me how to be critical and compassionate (and for refusing to accept my occasional foray into bullshit). I want to thank Dr. Jennifer Flynn for ensuring that my respect and love for intellectual rigor combined with debate were kept alive and well through my two years. I want to thank Dr. Daryl Pullman for the way he was able to always draw a deeper analysis from my work and ideas, and to freely question my over-reliance on science to solve the problems of ethics. I want to thank in particular my supervisor, Dr. Chris Kaposy. I could not have asked for a better person to shepherd me through this writing experience. He was always critical and kind and many of the best ideas I have had in this work come as direct responses to his questions and concerns. He also served as the editor I so greatly need to make my work intelligible and brief. His values of deep investigation, compassion, love for the subject matter, and patience are the only reason I was able to produce this work in the time allotted to me. I especially thank him for his patience when I would once again rely on my common refrains of “I'll have it to you in a week”, “I just need a few more days”, and “I'll get it to you tomorrow (night)”. I want to thank my partner, Jessica Taubensee. She supported me in every way I could want, from questioning my ideas, to helping me unwind, to bringing me food when I forgot yet again to feed myself that day. Beyond any material contribution her presence as an always lovely, loving, practical and yet deeply emotional person reinforced those values in me and I am a better man for it. She has been the major source for my physical and spiritual development over the past year and a half and I am truly blessed to be with such an angel. I have many friends I would like to thank for their help but most of all I want to thank Russell Cochrane and Taylor Stocks for bringing their formidable intellect to bear to see if the tenement of my ideas could stand up to their critical onslaught. Many a time when I felt a dearth of inspiration a conversation with either of these two over a beer would allow dormant concepts to suddenly snap awake and into place. Lastly, I want to thank my parents and my siblings. In the spirit that very little in me is self- created but is instead the collective work of everyone I've ever known, it is my family more than any others that inspire me to make the world just a little bit more fair. 4 Table of Contents: Abstract…………………………………………………………………………………………….........2 Acknowledgments………………………………………………………………………………………3 Table of Contents……………………………………………………………………………………….4 List of Abbreviations……………………………………………………………………………………6 Chapter 1: Philosophical Background………………………………………………………………...7 Section 1 – Philosophical Background and My Own Position………………………………………….7 Subsection 1 - Determinism, Neuroscience, and Responsibility……………………………….10 Subsection 2 – A Middle Position………………………………………………………………13 Chapter Conclusion……………………………………………………………………………………..13 Chapter 2: Introductory Concepts…………………………………………………………………...15 Section 1 – The Law as a Model Generating System………………………………………………….15 Subsection 1 - Components of the Legal Model………………………………………………..16 Section 2 – Making Neuroscience Useful to the Law…………………………………………………..18 Subsection 1 – Neurotechnologies as Novel Behavioural Outputs……………………………..19 Subsection 2 - Blood Typing, Genome Analysis, Neuroscience, and the Law…………………20 Section 4 – Impulse……………………………………………………………………………………..22 Subsection 1 - What Do We Mean By Impulse?..........................................................................22 Subsection 2 - The Anatomy of Impulse………………………………………………………..25 Chapter Conclusion……………………………………………………………………………………..28 Chapter 3: Applications Of Neuroscience To The Laws Concerning Impulse…………………….30 Section 1 – Introduction………………………………………………………………………………...30 Section 2 – Creation of Legislation……………………………………………………………………..30 Subsection 1 - Laws Concerning Controlled Substances……………………………………….30 Subsection 2 - Mental Disorder And Irresistible Impulse………………………………………35 Subsection 3 - Diminished Responsibility/Capacity Defenses…………………………………36 Section 3 – Impulse On Trial…………………………………………………………………………...38 Subsection 1 - Irresistible Impulse In A Trial Context………………………………………….39 Subsection 2 - Diminished Responsibility on Trial……………………………………………..45 Section 4 – Sentencing and Neuroscience……………………………………………………………...47 Subsection 1 - Sentencing and The Criminal Code of Canada…………………………………48 Chapter Conclusion……………………………………………………………………………………..53 Chapter 4: Ethics Of Using Neuroscience for Impulse Related Laws……………………………...55 Introduction……………………………………………………………………………………………..55 Section 1 - Should We Create Drug Laws Which Rely Centrally on Neuroscientific evidence ?...........59 Subsection 1 – The Status Quo………………………………………………………………….59 Subsection 2 – Issues With the Status Quo……………………………………………………..60 Subsection 3 – How Neuroscience Should Help……………………………………………….60 Subsection 4 - Ethics Analysis………………………………………………………………….67 5 Section 2: Should We Create an Irresistible Impulse Defense?...............................................................69 Subsection 1 - The Status Quo of Irresistible Impulse………………………………………….69 Subsection 2 - Issues With the Status Quo……………………………………………………...70 Subsection 3 - Changing the Law………………………………………………………………72 Subsection 4 - Ethics Analysis………………………………………………………………….74 Section 3 - Should We Create a Diminished Responsibility Defense?....................................................76 Subsection 1 - The Status Quo and Issues………………………………………........................77 Subsection 2 - What is Neuroscience Telling Us to Do?..............................................................78 Subsection 3 – Ethics Analysis………………………………………………………………….79 Section 5 - Should We Use Neurotechnologies in Sentencing?...............................................................81 Subsection 1 - The Status Quo………………………………………………………………….81 Subsection 2 - Issues With the Status Quo……………………………………………………...82 Subsection 3 – What Does Neuroscience Suggest?.....................................................................82 Subsection 4 – Ethics Analysis…………………………………………………………………83 Chapter Conclusion…………………………………………………………………………………….86 Thesis Conclusion……………………………………………………………………………………..86 Bibliography…………………………………………………………………………………………...88 6 List of Abbreviations: AA: Alcoholics Anonymous ADHD: Attention Deficit Hyperactivity Disorder CAT: Computer Axial Tomography CDSA: Controlled Drugs and Substances Act DNA: Deoxyribonucleic Acid DSM: Diagnostic and Statistical Manual of Mental Disorders DTI: Diffusion Tensor Imaging EEG: Electroencephalogram fMRI: functional Magnetic Resonance Imaging LSD: Lysergic Acit Diethylamide MEG: Magnetoencephalogram N. Acc: Nucleus Accumbens NCR: Not Criminally Responsible PFC: Pre-Frontal Cortex QEEG: