Journal of Criminal Justice xxx (xxxx) xxx–xxx

Contents lists available at ScienceDirect

Journal of Criminal Justice

journal homepage: www.elsevier.com/locate/jcrimjus

Neurobiology and crime: A neuro-ethical perspective

Farah Focquaert
Department of Philosophy and Moral Sciences, Bioethics Institute Ghent, Ghent University, Blandijnberg 2, 9000 Gent, Belgium

A R T I C L E I N F O A B S T R A C T

Keywords: Current neurobiological research in the field of criminology focuses on the neurobiological characteristics as-
Neuro-ethics sociated with antisocial behavior, the prediction of antisocial behavior later in life based on neurobiological risk
Ethics factors, and the ways in which neurobiological factors interact with psychological and environmental risk fac-
Neurocriminology tors. Although the use of neurobiological knowledge has the potential to make several criminal justice practices
Neurobiology
more objective and humane, it may involve practices that are challenging with respect to stigma, neuro-de-
Rehabilitation
Forensic psychiatry
terminism, autonomy and mental liberty. Four main areas of interest can be identified where neurobiology plays
or could play a role: (1) criminological research focused on understanding criminal behavior, (2) the (early)
detection/prediction of and intervention in deviant behavior, (3) criminal proceedings: to assess responsibility
and inform sentencing, and (4) forensic rehabilitation and treatment settings. In this paper, I discuss the main
ethical dilemmas that arise when considering the use of recent neurobiological advances in these areas.

1. Introduction Identifying neurobiological risk factors for criminal behavior does

not imply that criminal behavior is “hard-wired” in the brain or that
Decades of research on criminal behavior has shown that a multi- some individuals are irreversibly destined for a life of crime. All be-
tude of environmental factors contribute to criminal behavior (Caruso, havior, not just deviant behavior, is caused by a complex interplay
2017). In addition, a growing body of research shows that, on average, between our neurobiology (genes, brain, hormones, etc.), psychology
individuals who engage in deviant behavior demonstrate differences in (cognitive-emotional mechanisms such as empathy, inhibition, self-
brain structure and functioning (Glenn, Raine, & Schug, 2009; Yang & control or the lack thereof) and the environment (e.g., peers, socio-
Raine, 2009) and hormone and neurotransmitter levels (Glenn, Schug, economic status, access to healthcare, education). There is no one-to
Gao, & Granger, 2011; O'Leary, Taylor, & Eckel, 2010). Behavioral one relationship between biological factors and crime. Many in-
genetics studies also indicate that about 40–60% of the variance in dividuals with biological risk factors will not go on to commit crimes
criminal behavior is due to genetic influences (Raine, 2013). Moreover, and some individuals who do not exhibit a specific risk factor may
these environmental and biological factors that increase an individual's proceed to commit a crime (Glenn et al., 2015). A wide range of bio-
risk for criminal behavior are highly connected. Biological predisposi- logical, psychological and environmental factors, and the interactions
tions influence the ways in which individuals react to the environment. between them, may contribute to the risk for antisocial behavior. For
In turn, environmental factors can affect gene expression, hormone and example, the neurodevelopment of brain regions (e.g., anterior cingu-
neurotransmitter levels, and ultimately brain structure and functioning. late cortex, prefrontal cortex) involved in attentional control, inhibi-
Current neurobiological research in the field of criminology focuses tion, executive functioning and self-regulation can be compromised if
on the neurobiological characteristics associated with antisocial beha- children grow up in impoverished conditions.
vior (e.g., reduced physiological arousal, poor frontal brain functioning, “The chaotic and impoverished background of most offenders is
reduced volume in the amygdala, hormonal deficits and genetic risk unlikely to offer the neurological prerequisites desired to foster cogni-
factors), the prediction of antisocial behavior later in life based on tive, behavioural and interpersonal competencies. Sufficient nutrition,
neurobiological risk factors (e.g., low resting heart rate, poor fear rest, a stimulating and loving environment; ample opportunity to ob-
conditioning, increased testosterone levels, attenuated heart rate re- serve prosocial behaviour; consistent rewards for the incremental de-
sponse to stress, reduced amygdala volume, low activity in the anterior velopment of self-regulation and empathy for others; a childhood free
cingulate cortex), and the ways in which neurobiological risk factors from physical violence and access to toxic substances; are not the ty-
interact with psychological and environmental risk factors (Cornet, pical context of the child more likely to become an offender. These
2015: Glenn, Focquaert, & Raine, 2015). prerequisites of emotion regulation, impulse control and empathy are

E-mail address: [email protected].

https://doi.org/10.1016/j.jcrimjus.2018.01.001
Received 21 December 2017; Accepted 2 January 2018
0047-2352/ © 2018 Elsevier Ltd. All rights reserved.

Please cite this article as: Focquaert, F., Journal of Criminal Justice (2018), https://doi.org/10.1016/j.jcrimjus.2018.01.001
F. Focquaert Journal of Criminal Justice xxx (xxxx) xxx–xxx

often sadly lacking” (Nee & Vernham, 2017). adequate safeguards becomes paramount: “Techniques for monitoring
The environment plays an important role in shaping brain devel- and manipulating brain functions are developing rapidly. Prudence and
opment and functioning, and due to ongoing brain plasticity, significant restraint in their application seem advisable” (Fuchs, 2006, 605;
changes may occur in adulthood as well. Studies suggest that cognitive- Specker et al., 2017).
emotional training can improve cognitive, emotional and interpersonal In this paper, I discuss some of the main ethical dilemmas that arise
competencies in children and adults (Cornet, de Kogel, Nijman, Raine, when considering the use of recent neurobiological advances to address
& van der Laan, 2015; Felmingham et al., 2007; Paquette et al., 2003; antisocial, violent behavior. Overall, four areas of interest can be
Ruedo, Posner, & Rothbart, 2005). identified where neurobiology plays or could play a role: (1) crimin-
Clinical guidelines support behavioral programs (e.g., parenting ological research focused on understanding criminal behavior, (2) the
programs and psycho-social interventions) as first-line treatment op- (early) detection/prediction of and intervention in deviant behavior,
tions for aggressive behavior problems in children and adolescents (3) criminal proceedings: to assess responsibility and inform senten-
(Scotto Rosato et al., 2012). A recent review study (Balia, Carucci, cing, (4) forensic rehabilitation and treatment settings. These areas of
Coghill, & Zuddas, 2017) concluded that their findings partially support interest face important ethical challenges with respect to stigma, neuro-
adding pharmacotherapy (e.g., stimulant medications and atypical an- determinism, autonomy and mental liberty.
tipsychotics) as a potentially useful therapeutic approach for aggressive
behavior in children with conduct disorder who do not respond to 2. Discussion
psycho-educational or psychological interventions. However, they also
report that there is very little good-quality evidence to support the ef- 2.1. Criminological research
ficacy, effectiveness and safety of pharmacological treatments for ag-
gression in conduct disorder. At present, researchers are looking for One of the most exciting areas where neurobiological measures and
molecular and neurobiological targets for pharmacological develop- data are useful is the field of criminological research. Thus far, research
ment that may provide greater control over self-regulation and ag- on human aggression has largely focused on the societal causes of
gressive behavior (Asherson & Cormand, 2016). violent behavior and relatively little on the underlying neurobiological
Non-invasive neuro-biological interventions may have the potential basis (Asherson & Cormand, 2016). If we want to increase our under-
to ameliorate current approaches to rehabilitation and treatment of standing of criminal behavior and develop better criminological the-
deviant behavior. Although a lot more research is needed, preliminary ories, then we need to incorporate the neurobiological influences on
research studies suggest that various non-invasive neuro-interventions antisocial behavior. As mentioned, all behavior is caused by a complex
can ameliorate cognitive-emotional difficulties (e.g., impulsivity, dis- interplay between our neurobiology, neuropsychology and the en-
inhibition, attention deficits, aggressive tendencies, addictive tenden- vironment. If we limit criminological research to the behavioral and
cies) by indirectly or directly rewiring the brain. Neuro-interventions environmental aspects underlying criminal behavior, this will provide
such as vitamin and omega 3 supplementation, cognitive-emotional only a partial understanding of what drives an individual to commit
training using computer tasks, EEG neurofeedback or real-time fMRI crimes. In fact, recent studies provide considerable evidence for phy-
biofeedback, and transcranial direct current stimulation may be used to siological, hormonal, neuroanatomical, neuro-functional, and genetic
help prevent future deviant behavior in at-risk children, adolescents risk factors for crime (Cornet, 2015).
and adults (e.g., Batista, Klaus, Fregni, Nitsche, & Nakamura-Palacios, A lot more research is needed to fine-tune our understanding of the
2015; Dadds, Cauchi, Wimalaweera, & Brennan, 2012; Dambacher biological risk factors for crime and a lot is to be gained from such
et al., 2015; Dean, Bor, Adam, Bowling, & Bellgrove, 2014; Konicar knowledge. For example, in the US, developmental brain science has
et al., 2015; Micoulaud-Franchi et al., 2014; Raine, Portnoy, Liu, been used to argue against capital punishment and life imprisonment
Mahoomed, & Hibbeln, 2015; Sitaram et al., 2014; Soff, Sotnikova, for juveniles due to not fully developed brain areas in the frontal cortex
Christiansen, Becker, & Siniatchkin, 2017). making it harder for adolescents to resist deviant behavior and more
The use of neurobiological knowledge, measures and techniques has likely for them to indulge in risky behaviors (Cohen & Casey, 2014;
the potential to make several criminal justice practices more objective Steinberg, 2013). Neurobiological and neuropsychological measures
and humane. However, it may equally lead to the moral acceptance of can (potentially) be used in criminal justice settings as additional means
practices that are deemed controversial. In general, worries arise about to understand and predict criminal behavior, to inform forensic psy-
the difficulty to consistently define the scope and characteristics of chiatric reports, to assess competency to stand trial, to substantiate the
complex behaviors such as violence and aggression and to develop re- reliability of statements of witnesses, victims or defendants, and to
liable measures of such traits (Farahany, 2016; Sadler, 2013; Specker, ameliorate forensic mental health treatment (Chandler, 2016; de Kogel
Focquaert, Sterckx, & Schermer, 2017). Concepts such as deviance, & Westgeest, 2015; Meynen, 2013a; Roskies, Schweitzer, & Saks, 2013).
violence and aggression are normative concepts and run the risk of For example, such measures can reveal brain tumors (e.g., in case of
over-including normal variations in behavior as deviant or wrong be- acquired pedophilia), identify structural and functional brain abnorm-
havior due to societal, religious or other cultural preferences. The risk alities (e.g., in case of fronto-temporal dementia, traumatic brain in-
of false positives inherent to medical diagnoses in general and to psy- jury, abnormalities linked to schizophrenia), and in the future poten-
chiatric diagnoses in particular urges us to be very careful (Glenn et al., tially inform recidivism risk (e.g., as suggested by preliminary studies
2015; Wakefield, 2016). linking brain abnormalities to future crime) (Aharoni et al., 2014;
When mental health patterns become dysfunctional, clinical psy- Brown & Murphy, 2010; Elman, Borsook, & Volkow, 2013; Farah,
chiatric diagnoses are warranted and needed. However, scientific stu- Hutchinson, Phelps, & Wagner, 2014; Moriarty, 2008; Volkow & Baler,
dies do not back the categorization of mental health problems within 2014).
well-defined and well-delineated pathologies or the identification of Neurobiological measures provide new and often challenging ways
DSM or ICD10 disorders in terms of biological natural kinds. Complex to identify antisocial and psychopathic personality disorders, and to
mental health problems are linked to polygenetic gene profiles, diverse expand criminal profiling and behavioral prediction. Research in the
neurobiological underpinnings, and complex environmental influences, field of neurocriminology investigates which neurobiological features
and they reflect varying degrees of dysfunction. Most complex mental are associated with antisocial behavior in order to better understand,
health problems involve extremes of normal cognitive-emotional traits intervene in and predict criminal behavior (Cornet, 2015; Glenn &
and behavior that exist on a continuum in the normal population Raine, 2014; Sirgiovanni, Corbellini, & Caporale, 2016). A lot of this
(Livesly, 2012; Widiger, 2011). If we combine these concerns with the research focuses on at-risk youth and includes benign research inter-
risk of stigmatization and ‘neuro-determinism’, the need for caution and ventions such as measuring heart rate or skin conductance, taking

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hormonal measures from saliva, neuropsychological paper-pencil and/ & de Wert, 2014; Specker et al., 2017). For example, such undesirable
or computer tasks, or behavioral training programs for emotion re- consequences may result from labeling individuals who have never
cognition. Other research focuses on parent-infant dyads and how the committed a (violent) crime but may be more likely to commit crimes
development of the physiological stress-system and social behavior in- once identified as at risk. What can be easily forgotten within a criminal
teract and are affected by parent-infant bonding (for a review, see justice approach focused on safety and prevention is that we are dealing
Cornet et al., 2015). The current research field aims to integrate neu- with unique individuals in complex environmental settings whose be-
robiological, psychological and environmental risk factors for crime, havior is not reducible to mere neurobiological profiles. Moreover, re-
and highlights the importance of a multi-factorial approach to criminal ceiving a psychiatric label, especially when tied to a neurobiological
behavior. It is rightfully argued that “complementing traditional crim- profile, may prevent successful treatment outcomes or successful be-
inological measures with neurobiological methods potentially havior change in the long run due to prejudice and discrimination,
strengthens the empirical validity of criminological theories” (Cornet, stigmatization, fear of rejection and mistreatment, low self-esteem and
2015, 6). self-blame. Rather than lowering the risk of future deviant behavior,
Notwithstanding the huge benefits such neurobiological knowledge neurobiological profiling may be counterproductive and increase the
could entail, a sufficiently nuanced approach may be lost when neu- risk of future deviant behavior (Glenn et al., 2015). Similar worries
robiological knowledge is reflected on in the wider academic debate have been voiced by Fuchs (2006): “The possible benefit of predictive
and the wider public debate. Our growing knowledge on the neuro- imaging would have to be carefully weighed not only against possible
biological correlates of criminal behavior, in combination with the harm but also against the burden of knowledge and the possible dis-
political and societal desire for quick fixes when it comes to aggressive, criminations caused by being an at-risk patient” (601).
criminal behavior, may result in the mistaken view that antisocial be- Concerns about labelling, stigma and unnecessary interventions are
havior or antisocial personality disorders can be reduced to abnorm- especially important when thinking of early detection and prevention of
alities in the brain or genes of a given individual. This may further lead deviant behavior in children and adolescents. While early intervention
to false hopes about neurobiological interventions as ‘cures’ or ‘quick may be beneficial, especially in children with callous-unemotional
fixes’ for criminal behavior. Such a worrisome trend can be seen in the traits, it is important to recognize that early intervention in childhood
current academic debate on neuro-interventions for criminal behavior, and adolescence can be detrimental due to the negative effects of la-
as well as in the public debate (see, Specker, Focquaert, Raus, Sterckx, belling children who are biologically ‘at-risk’ (e.g., exhibit neurobio-
& Schermer, 2014). logical markers of reduced emotionality and reduced sensitivity to
False views on neuro-determinism neglect the importance of non- punishment) as ‘bad’ children. Although early screening and interven-
biological risk factors such as socio-economic and peer-related risk tion may benefit some children who are at risk of exhibiting violent,
factors, and psychological concepts such as self-control, agency and anti-social behaviors, there is a substantial risk of increasing anxiety,
motivation in trying to address recurrent deviant behavior. By merely stigma and falling prey to unnecessary interventions. The stigmatiza-
or overly focusing on the biological mechanisms involved in deviant tion, internalization and self-blame that results from such labels may
behavior, we may also neglect or underestimate the need for cognitive subsequently stimulate the development of maladaptive cognitions and
behavioral therapy, skills training and other kinds of support (e.g., narratives (Glenn et al., 2015; Specker et al., 2017).
education, housing, employment) in trying to lead a crime-free life. Glenn et al. (2015) have previously identified three areas of ethical
Researchers in the field of neuro-criminology have the very im- concern related to potential screening policies for mental disorders: (1)
portant role of explaining and communicating their research findings in the efficacy, cost-effectiveness, and likely ‘false alarm’ rate of popula-
the most nuanced way possible. It is pivotal to continuously identify the tion-based screening strategies, (2) anxiety and stigma, and (3) in-
limits of their research findings in their published research to avoid formed consent and the obligations between parents and children. I will
misinterpretation and misuse. There is a need to communicate such briefly apply these concerns to the early detection of biological risk
research findings to the wider public in a more detailed and careful factors for deviant behavior.
manner. This responsibility confers on researchers and journalists alike.
Scientific researchers are bound by the applicable ethical standards (1) Population-wide screening for biological markers (e.g., in all chil-
of research on humans provided by the World Medical Association dren at a certain age) is only justifiable if an efficacious and cost-
(Declaration of Helsinki, 2013), the Council of Europe (Oviedo effective intervention exists to prevent the development of the be-
Convention, 1997), the World Health Organization and the Council for havior in children who are identified as at-risk. We do not know
International Organizations of Medical Sciences (International Ethical whether it is more cost-effective to treat those children who already
Guidelines for Biomedical Research involving Human Subjects, 2002; engaged in violent, anti-social behavior rather than preventively
International Ethical Guidelines for Epidemiological Studies, 2009), screening all children. Moreover, even if we have or will have ef-
and other relevant institutions, as implemented by national law. Re- ficacious, cost-effective interventions available, it is unclear if
search involving humans needs to pass a REC (Research Ethics Com- knowledge about genetic or biological risk-factors will motivate
mittee) or IRB (Institutional Review Board) to check if the applicable parents to seek help. In fact, even if treatment is sought, the
guidelines are adequately taken into account. These minimum demands screening results might undermine the parents' hopes to effectively
need to be respected within all research, including criminological re- prevent such behavior in their child(ren). Furthermore, where do
search. This manuscript does not focus on the established guidelines, we draw the line between high risk and low risk and how do we
but discusses subtle and potentially underestimated ethical challenges determine if a child is at-risk? The answer to these questions in-
with respect to the use of neuro-tools and neuro-interventions. volves a normative judgment that will inevitably leave out children
who could also have benefited from preventive treatment either
2.2. Deviant behavior: (early) detection, prediction and intervention using because they fall just outside the at-risk cut-off line or because of
neurobiology false negatives inherent to population-wide screening and inter-
vention strategies. Similarly, false positives will lead to unnecessary
While a lot of hope is vested in the detection of neurobiological risk interventions that may be considered harmful to the child in
and protective factors and in the implementation of prevention mea- question (Holm, 2007). For these reasons, and the ethical demand
sures for antisocial and criminal behavior, we need to bear in mind that to address social inequities, screening and intervention strategies
practices of detection, prediction and prevention may unintentionally for biological risk-factors in childhood and adolescence should
result in undesirable ethical, social and legal consequences or be de- never substitute the implementation of prevention policies that
liberately misused for social control purposes (Hörskotter, Berghmans, reduce exposure to known common risk factors involved in the

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development of criminal behavior (e.g., prenatal and school-based demands and who does not, legal decisions easily lend themselves to
nutrition programs, programs against child abuse and maltreat- arbitrary distinctions between individuals that may have profound and
ment, etc.). unfair consequences. Forensic mental health assessments can be sub-
(2) It has been argued that genetic or biological screening and early jective and often differ depending on the forensic expert team in
intervention is only justifiable (a) for disorders with a high genetic question and their expected role (e.g., court-appointed team versus
determination, (b) in individuals that have a family history of defense-appointed team).
mental disease, and (c) if efficacious, cost-effective, low-risk inter- The Anders Breivik trial in 2012 in Norway provides a well-known
ventions exist to reduce the risk (Spriggs, Olsson, & Hall, 2008). At example of conflicting expert rapports (Melle, 2013). While the first
a minimum, we need to weigh the potential benefits in terms of expert team concluded that Breivik suffers from psychosis, a serious
public safety against the risks of stigma, anxiety and unnecessary mental health disorder that could result in a ‘not legally accountable’
interventions. According to Shickle and Chadwick (1994), there verdict by the judge, the second expert team concluded that Breivik did
should be room for a trade-off between the harm that results from not suffer from psychosis. The second team diagnosed Breivik with
screening and early intervention and the harm that is brought about narcissistic personality disorder and pathological lying. The latter di-
by the failure to screen (and prevent future crime). While we can agnosis does allow for Breivik to be held legally accountable. Similarly,
have legitimate reasons to opt for screening, we can also have le- Belgian Courts rigidly differentiate between individuals who suffer
gitimate reasons to refrain from screening. A careful assessment of from full-blown mental insanity (e.g., psychosis) and individuals who
the potential harms of screening versus forgoing to screen is para- merely suffer from personality disorders such as schizotypal personality
mount. According to Spriggs et al. (2008), due to the multi-factorial disorder (as assessed by forensic mental health experts) (e.g., Kim De
nature of complex behaviors such as violent, anti-social behavior, a Gelder case, 2013). A diagnosis of schizotypal personality disorder will
greater justification is needed when identifying bio-markers that result in a guilty verdict and a prison sentence whereas schizophrenia
carry a greater risk in terms of anxiety-inducement and stigmati- will most likely result in a not guilty for reasons of insanity verdict and
zation (Spriggs et al., 2008). (indefinite) civil commitment. At the same time, mental health research
(3) If a child who has never committed a crime is identified as at-risk to informs us that schizotypal personality disorder needs to be understood
develop deviant, anti-social behavior in later life based on neuro- as a precursor to full-blown schizophrenia or as conveying milder
biological screening, who should decide on treatment? Do the symptoms that can be placed on a continuum leading up to full-blown
parents have decision-making authority or should the child have a schizophrenia. Where we draw the line between both conditions and
veto right? A shared or dual decision-making process creates an why is a normative matter that is prone to subjectivity and uncertainty
environment in which the child's developing autonomy is maxi- due to a lack of clear diagnostic features.
mally respected and his/her decision-making skills and agency are According to some experts, neurobiological evidence has the po-
nurtured, while enabling the child to benefit from the knowledge tential to aid in resolving diagnostic disputes and providing a more
that their parents and the expert team provide. It also results in reliable psychiatric profile (Farahany, 2016; Savitz, Simpson, &
better treatment outcomes and coping. Successful treatment and Drevets, 2012; Sirgiovanni et al., 2016). Sirgiovanni et al. (2016)
intervention depends on the individual's willingness to participate welcome neuroscientific additions to the traditional psychiatric ap-
and therefore requires the child's involvement in the decision- proach of observational DSM-based diagnoses in the legal domain: “The
making process. poor quality of data collection and the controversial identification of
disorders within the DSM approach is due to the absence of objective
In general, a number of normative questions need to be addressed measurement procedures combined with DSM's vague and imprecise
on a case-by-case basis before neurobiological tools are implemented: definition of disorders”. Farahany (2016) similarly argues that re-
Should parents be persuaded to enroll their at-risk child in a treatment sponsible use of neurobiological evidence has the potential to reduce
program? Should the government provide incentives for parents to do errors and increase accuracy within the criminal justice system. Specific
so? Should child and family services be allowed to ask for neurobio- brain imaging tests and techniques such as diffusion tensor imaging
logical screening and early intervention? Should schools be allowed to (DTI), structural magnetic resonance imaging (sMRI) and functional
refuse at-risk children who do not enroll in a treatment program? magnetic resonance imaging (fMRI) may provide additional informa-
tion to support or question behavioral diagnoses. For example, whereas
2.3. Use of neurobiology to assign (degrees of) responsibility and inform dementia used to be diagnosed solely at the behavioral level, brain
sentencing scans are increasingly used to support clinical characterization and
differential diagnosis (Bonifacio & Zamboni, 2016).
While the current admissibility and reliability of neuroscientific As mentioned under Section 2.1, US Supreme Court cases involving
evidence data as evidence in courtrooms is limited and risks of neuro- juveniles (Miller v. Alabama and Jackson v. Hobbs) have led to the
determinism loom large, neurobiological research may be used in majority opinion that death sentences and mandatory life sentences
criminal justice settings in a variety of ways. Whether or not we wel- without parole for juveniles are unconstitutional. The Court referred to
come the upcoming era of neurolaw or not, according to some experts, neurobiological studies that indicate that the frontal brain regions of
it will be difficult to prevent it from booming: “…there may be a juveniles are not fully developed and make it more difficult for young
coming tsunami of neurobiological evidence-backed sentencing claims people to resist crime. The studies suggest that “in the heat of the
at trial” (Farahany, 2016, 20). Other experts question whether the use moment, as in the presence of peers, potential threat, or rewards,
of behavioral genetic evidence in courts will continue to grow in the emotional centers of the brain hijack less mature prefrontal control
foreseeable future and point to the many challenges that the effective circuits during adolescence, leading to poor choice behaviors” (Cohen &
use of such evidence faces (Scurich & Appelbaum, 2017). Casey, 2014, 65). Cohen and Casey (2014) conclude that juveniles are
Scientifically valid neuroscience data has the potential to make fundamentally different from adults and fairness demands that they are
certain aspects of criminal cases more objective and less prone to sub- sentenced differently.
jective interpretation. If the science is reliable, it opens up a range of The question remains however to what extent adult offenders may
new opportunities for the law (Greely, 2011). The US Supreme Court suffer from similar neurobiological impairments involving suboptimal
has acknowledged on several different occasions that psychiatry is not functioning of prefrontal cognitive-emotional brain regions and net-
an exact science and that there exists much dispute and disagreement works. Such atypical neurobiological functioning may similarly render
among different mental health professionals when it comes to diagnoses these individuals more prone to crime. Neuropsychological research
(Morse, 2011). In trying to establish who satisfies specific psychological indeed indicates that individuals with severe, impulsive antisocial

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behavior suffer from deficits in ‘executive functions’ (related to self- that neuroscientific or behavioral genetic information mitigates ac-
control, attention, long-term planning, learning, etc.). Impaired ex- countability assessments in most cases. Recent studies from the United
ecutive functions are associated with less optimal development of or States suggest a null effect regarding the impact of behavioral genetic
damage to prefrontal brain areas (de Kogel & Westgeest, 2015). Ab- evidence on criminal sentencing in courts and among lay persons:
normalities in brain anatomy or functioning that are visible on brain “Thus, for all the potential that some legal commentators and others
scans may therefore provide additional evidence to support or question have seen in the use of behavioural genetic evidence in support of ar-
a specific behavioral diagnosis in adolescents and adults alike. In fact, guments for diminished responsibility and thus mitigation of punish-
some cases may present a rather convincing correlative model, such as ment, such effects have been difficult to detect in actual cases – with
the case involving the school teacher who suffered from pedophilic rare exceptions – and are modest or entirely absent in the experimental
urges due to a (regrown) brain tumor (Burns & Swerdlow, 2003). Other data” (Berryessa, 2017; Scurich & Appelbaum, 2017). Scurich and Ap-
examples may involve patients with behavioral-variant frontotemporal pelbaum give several possible reasons for these results: (a) biogenetic
dementia who develop deviant behavior due to their disease despite explanations involve countervailing beliefs, both promoting the idea
being able to explicitly state that their behavior is wrong (Darby, that individuals with genetic risk factors should be regarded less
Edersheim, & Price, 2016). blameworthy and the idea that individuals with genetic risk factors are
With regard to current legal systems, it is morally desirable that more likely to recidivate; (b) lay persons do not comprehend the im-
relevant brain abnormalities are identified and taken seriously. For plications of such findings for behavior and choose to ignore the data,
example, in the Netherlands, it has been estimated that an MRI-scan is (c) lay persons do not see genes as one of the primary or even a major
made in about half of the criminal cases involving serious offences. The determinant of behavior and consider such evidence as largely irrele-
scan is typically combined with expert information from several other vant to decisions about culpability and punishment, or (d) lay persons
disciplines such as neuropsychology, psychiatry and probation services and judges alike consider genes as one factor among many factors
(de Kogel & Westgeest, 2015). Caution is needed as well. Fuchs (2006) driving behavior, and claim that this is not incompatible with ex-
highlights ethical concerns related to our individual rights on privacy, ercising control over one's behavior.
non-interference and inviolability. Brain imaging and other types of To maximally avoid misinterpretation and misuse, it is essential that
neurobiological monitoring could reveal personal information about judges, attorneys and other judicial experts are trained to correctly and
our identities, our inner thoughts and unconscious attitudes. Fuchs re- responsibly interpret neurobiological data if and when it is used within
fers to the concept of ‘cognitive liberty’ as “every person's fundamental criminal justice settings (Chandler, 2016; Farahany, 2016). Moreover,
right on autonomy over his or her own brain states” (Fuchs, 2006, 602). guidelines and protocols for the use of neuroscientific information in
Bublitz and Merkel (2014) similarly discuss the right to ‘mental in- criminal cases “could serve to articulate the state of knowledge, and the
tegrity’ and how this may become compromised when faced with brain ways in which neuroscientific information can and cannot be used” (de
monitoring and brain interventions. Respect for autonomy and in- Kogel & Westgeest, 2015, 591). Meynen (2013a) argues that a multi-
formed consent are therefore crucial to avoid misuse of neurobiological disciplinary team of experts involving lawyers, psychiatrists, ethicists
knowledge. and neuroscientists should asses and identify the “threshold for what
There is very little to no consensus as to what constitutes normal can be considered a morally as well as a legally significant impact” of
variation in the size of certain brain regions and no independent mea- neuroscientific findings on decision-making in order to assist forensic
sure on what constitutes pathology. It is important to recognize that mental health experts assigned to interpret this type of knowledge
“advances in the neuroscience of mental states do not necessarily mean (Meynen, 2013a, 98). Although each criminal case and the neurobio-
that associated brain regions are necessary for their normal functioning, logical information that is gathered needs to be assessed on a case by
and descriptions of abnormal brain activity do not necessarily imply case basis due to the specificity of each case, such protocols can provide
dysfunction” (Edersheim, Weintraub Brendel, & Price, 2012, 164). Also, an objective and uniform approach as to how such knowledge should be
“different brains may have different abilities to compensate for pa- obtained and interpreted (e.g., about pre-frontal brain damage, about
thology” (Edersheim et al., 2012, 164). Moreover, theoretical per- the neurobiology of schizophrenia, about the brain mechanisms in-
spectives influence the methodology and the interpretation of the re- volved in sleepwalking), and to what extent such findings impact of-
sults. Objectivity is an aspiration and should be the ideal, but this is far fenders' decision-making and may therefore be relevant for responsi-
from always the case in practice. The same neurobiological evidence bility assessments. At the same time, it is remains debatable to what
can lead either to mitigation or to harsher sentencing depending on the extent forensic mental health experts should make claims about (di-
way the evidence is invoked. It can lead to the conclusion that the minished) responsibility, and whether or not such decisions should be
criminal defendant had less control over his actions due to brain im- made exclusively by judges (Meynen, 2013b, 2016).
pairments and thus deserves a lesser sentence, or that his brain im-
pairments signal irreversibility and chronic dangerousness and there- 2.4. Neurobiological measures and interventions in forensic mental health
fore the need for longer sentences or (indefinite) civil commitment.
Some experts raise concerns about the potential for prejudice or The importance of accurate diagnostic tools for forensic psychiatry
undue influence of neurobiological information and brain images on lay is underscored by the current epidemiological data on the incidence of
persons, mental health experts, judges and jurors, and questions arise mental health problems in offenders. In the general population, 2–3%
on how to avoid neuro-determinism when presented with persuasive suffer from antisocial personality disorder and 1% from psychopathy. In
brain images (Specker et al., 2017; Weisberg, Keil, Goodstein, Rawson, stark contrast, 65% of male prisoners and 42% of female prisoners
& Gray, 2008). It has been argued that neurobiological assessments by suffer from personality disorders (with 47% antisocial personality dis-
experts are sensitive to the ‘pathology bias’, the ‘allegiance effect’ and order in men and 21% in women) (Fazel & Danesh, 2002). More than
malingering (Merckelbach & Merckelbach, 2014). Other experts nuance half of incarcerated individuals suffer from mental health and (co-
the seductive allure of neuro-images as no inordinate effects are found morbid) substance abuse disorders (James & Glaze, 2006). Moreover,
that go beyond conventional neuroscience expert testimony (Roskies 70%–100% of incarcerated youth suffer from at least one mental health
et al., 2013). disorder and 20% suffer from a serious mental health disorder (Odgers,
Recent studies have found either mitigating, aggravating or no Burnette, Chauhan, Moretti, & Reppucci, 2005). According to a Swedish
overall impact of neurobiological evidence on culpability and criminal population-based study, 1% of all offenders make up for 63.2% of all
sentencing (Berryessa, 2017; de Kogel & Westgeest, 2015; Scurich & violent crime convictions, and persistent violence was associated with
Appelbaum, 2016). de Kogel and Westgeest (2015) analyzed published personality disorders, substance abuse disorders and major mental
criminal cases in the Netherlands between 2000 and 2012 and found disorders (Falk et al., 2014). Moreover, a large retrospective cohort

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study revealed that offenders with serious psychiatric disorders (major appear to increase public support for psychiatric treatment
depressive disorder, bipolar disorders, schizophrenia and non-schizo- (Angermeyer, van der Auwera, Carta, & Schomerus, 2017; Pescosolido
phrenic psychotic disorders) have a substantially increased risk of et al., 2010). Although the public now appears to “reject old etiological
multiple incarcerations over a 6-year follow-up (Baillargeon et al., notions of individual weakness, secrecy, and moral failure” with respect
2009). to mental illnesses, the stigma remains despite increased awareness of
More reliable diagnoses are needed to inform treatment programs the biological correlates of mental illnesses (Pescosolido, Medina,
and achieve effective rehabilitation. Based on current findings, ade- Martin, & Long, 2013, 857).
quate forensic treatment holds promise to more effectively address re- Self-stigma decreases the likelihood of help-seeking behavior in
cidivism. A systematic review of reoffending rates shows that these are individuals experiencing mental health problems. It is considered the
higher for prisoners than for forensic psychiatric patients (for a dis- primary barrier to mental health treatment and recovery by experts
cussion of UK, US and Swedish studies, see Fazel, Fiminska, Cocks, & (HHS, 1999), and needs to be avoided and addressed.
Coid, 2016). Although individual characteristics such as criminal career “Deeply embedded in social and cultural norms, stigma includes
and seriousness of offences may (partially) explain the difference, it is prejudicial attitudes that discredit individuals, marking them as tainted
probable that forensic psychiatric treatment and provision of suppor- and devalued. For individuals, stigma produces discrimination in em-
tive aftercare contributed to the reduced recidivism. For example, ployment, housing, medical care, and social relationships. Individuals
Jeandarme, Habets, Oei, and Bogaerts (2016) found a significant de- with mental illness may be subjected to prejudice and discrimination
crease in offences between pre-treatment and post-treatment periods in from others (i.e., received stigma), and they may internalize feelings of
patients from a medium security forensic hospital, suggesting that devaluation (i.e., self-stigma). On a societal level, stigma has been im-
forensic psychiatric treatment is effective. A meta-analysis on re- plicated in low service use, inadequate funding for mental health re-
habilitation interventions for offenders with serious psychiatric dis- search and treatment (i.e., institutional stigma), and the “courtesy”
orders reports a positive effect of interventions in reducing continued stigma attached to families, providers, and mental health treatment
involvement with the criminal justice system (Martin, Dorken, systems and research.” (Pescosolido et al., 2010, 1321–22).
Wamboldt, & Wootten, 2012). Providing effective treatment and re- Pickard (2011, 2014) has argued that taking responsibility for one's
habilitation options for prisoners and forensic patients are therefore actions may be necessary for the success of therapy as it provides a
extremely important. sense of agency. Individuals may not be able to learn to change their
Despite its obvious shortcomings, the DSM has its merits as a di- behavior if they and those who work with them do not believe it is in
agnostic tool that allows for interdisciplinary communication and gui- their power to do so. Individuals need to be supported and empowered
dance in providing appropriate and effective treatment options. If we to make different choices. They need to be seen as responsible agents in
consider the risk of false positives inherent to medical diagnoses in order to help them change. While blame and stigma are counter-
general and to psychiatric diagnoses in particular, and the number of productive, holding individuals responsible is seen as essential for ef-
individuals within the criminal justice system who suffer from mental fective rehabilitation (Pickard, 2017; Pickard & Pearce, 2013).
illnesses, it could be very valuable to be able to corroborate psychiatric Fuchs (2006) expresses concern about the over-application and
diagnoses based on neuroscientific markers (Wakefield, 2016). For ex- over-simplification of our concepts of mental illness if we focus too
ample, there is a growing body of field research that shows that the narrowly on the neurobiological aspects of our mental life and beha-
high reliability and the predictive validity of the PCL-R (Psychopathy vior, resulting in the medicalization and over-medication of normal
Checklist-Revised) in controlled studies does not translate to the field behaviors. Atypical brain functioning does not necessarily translate into
(i.e., in prisons and forensic hospitals, real world settings with real dysfunctional or problematic behavior, and neuro-reductionist accounts
world raters instead of academic researchers) (Jeandarme et al., 2017). of human behavior negate the causal complexity of mental health
As the PCL-R is used both to inform diagnoses and to predict recidivism problems. Current research suggests that attention for both risk and
risk (e.g., a high score may prevent re-entrance in society) these finding protective factors is important to achieve effective rehabilitation and
are very problematic. recidivism. Much more effort and resources needs to be devoted to
At the same time, biological explanations for mental health dis- enabling offenders to resist future crime, such as investing in practical
orders and substance abuse disorders may promote false claims of skills training, education, housing, access to healthcare and employ-
neuro-determinism and potentially undermine successful treatment. ment (Ward, Mann, & Gannon, 2007). Too much focus on neurobiolo-
Neurobiological explanations “seem to encourage the belief that gical impairments and treatments runs the risk of neglecting the sys-
symptoms are immutable” and may lead to “prognostic pessimism and a temic causes of crime such as poverty, unemployment, health care
reduced sense among patients of personal ability to regulate symptoms, inequities and childhood maltreatment, as well as the protective factors
raising the risk of self-fulfilling beliefs in the immutability of mental that may enable a crime-free life. Exclusively or overly focusing on
illness” (Chandler, 2016). Biological explanations increase public per- neurobiological risk factors needs to be avoided.
ceptions of dangerousness and induce avoidance towards individuals Forensic psychiatric treatment can be focused on offenders with
with mental disorders, and may decrease caregivers empathy towards mental health needs, forensic patients serving a prison sentence, or
patients (Chandler, 2016). Although the realization that mental health civilly committed patients in secure forensic treatment centers.
disorders such as schizophrenia, anti-social personality disorder and Although a combined behavioral and neurobiological approach to de-
substance abuse disorders can be understood as brain diseases could viant antisocial behavior could prove extremely beneficial for the do-
help address some of the stigma, blame and discrimination that ac- main of forensic psychiatry and psychology, little to no scientific re-
companies these mental health problems, it also has the potential to search studies on neurobiological treatments for offenders are
increase stigma by assuming that these diseases are ‘hard-wired’ in the conducted. Hardly any systematic research is available and randomized
brain and therefore difficult to change or overcome. It can increase the controlled trials are almost completely absent (Audenaert, Wittouck, &
false belief that mental disorders are necessarily untreatable or chronic, Berckmoes, 2015; Khalifa et al., 2010; Meynen, 2014; Morgan et al.,
and that individuals with such disorders are ‘dangerous’ and should be 2012). Moreover, existing research studies often suffer from methodo-
avoided at all times. logical shortcomings. According to a 2010 Cochrane systematic review,
A vignette study found that neurobiological conceptions of mental the evidence base for pharmacological interventions for antisocial
illness were either unrelated to stigma or increased the likelihood of a personality disorders is weak (Khalifa et al., 2010). A recent follow-up
stigmatizing reaction, and supporting mixed results were found in si- further reveals that not a single pharmacological intervention has been
milar international studies (see, Pescosolido et al., 2010). Increased sufficiently tested to merit the label of evidence-based treatment in
awareness concerning the biological correlates of mental illness does individuals with antisocial personality disorders and/or psychopathy

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(Audenaert et al., 2015). A limited number of small-scale research treatment outcomes focusing on changing behavior are usually better
studies investigating biological interventions (dietary, tDCS, neuro- when individuals are motivated to undergo treatment (Simpson, Joe, &
feedback, etc.) targeting aggressive, hostile and impulsive traits in Rowan-Szal, 1997).
children and adolescents with conduct disorders and in offenders have If such interventions are included in a prevention or treatment
recently been published (Audenaert et al., 2015; Dadds et al., 2012; program, adequate ethical safeguards need to be in place. At a
Dean et al., 2014; Wilson, 2015). Several of these studies report pro- minimum, forensic experts need to respect the deontological codes and
mising findings and highlight the need to investigate the effectiveness regulations of their profession, which generally include consideration
and safety of neurobiological interventions in forensic psychiatric and for the prima facie medical ethical principles of autonomy, beneficence
offender populations. (‘do good’), non-maleficence (‘do no harm’) and justice. In forensic
When considering the use of neurobiological interventions within mental health settings, these principles necessitate informed consent,
the criminal justice system, we need to consider the possibility that adequate respect for an individual's privacy and mental integrity, and
disguised attempts at mere behavioral control will flourish under the concern for the well-being of the individual in question. Concern for the
umbrella of neurobiological rehabilitation. As mentioned, Bublitz and well-being of forensic patients minimally implies that the least invasive
Merkel (2014) argue that all individuals, including offenders, have a option is considered first, that the intervention is psychologically or
right to mental integrity. Such a right is violated if offenders are semi- clinically indicated, and that it offers a good risk-to-benefit ratio in and
coerced to undergo neuro-interventions that impact their cognitive, of itself.
affective and motivational capacities. Freedom of thought refers (in
part) to our ability to rationally reflect on the many influences that 3. Conclusion
impact us, and our ability to endorse, reject or object to these influ-
ences. If proper informed consent is lost, this removes the ability to If neurobiological knowledge can aid in successfully preventing
endorse, reject or object to the psychological and personality changes future crime while respecting the rights of all parties involved, in-
that are brought about by neuro-interventions (Focquaert & Schermer, cluding the right to be treated with human dignity and the right to
2015). autonomy and mental integrity, both offenders and the wider society
Certain forensic patients may benefit from incorporating (new) can benefit. The biggest gains for neurobiology in the criminal justice
neurobiological interventions in their treatment program (Audenaert systems are most likely to be found in the domains of neurocrimino-
et al., 2015). In fact, offering biomedical treatments under the right logical research and forensic psychiatric treatment and prevention.
circumstances can increase the autonomy and well-being of offenders Gaining knowledge on the neurobiological risk factors for deviant be-
(Bomann-Larsen, 2013; Caplan, 2006; Douglas, Bonte, Focquaert, havior and fine-tuning forensic treatment and rehabilitation to meet
Devolder, & Sterckx, 2013; Focquaert, 2014; Focquaert & Raine, 2012; those needs, including the development of safe neuro-interventions for
Rosati, 1994; Thibaut et al., 2010). Desires, cravings and habits that therapy-refractory mental health and addiction problems, can result in
motivate criminal behavior can be experienced as impediments to greater recidivism reduction compared to incarceration without treat-
making autonomous choices. Neurobiological treatments that reduce ment.
the internal coercion that such desires and cravings produce have the One of the most exciting areas where neurobiological measures are
potential to increase an individual's autonomy and ability to lead a useful is the field of criminological research. Research on human ag-
crime-free life. For example, Caplan (2006) argues that temporarily gression and antisocial behavior has largely focused on the societal
infringing upon autonomy by offering medical treatment (e.g., nal- causes of violent behavior and relatively little on the underlying neu-
trexone for drug addiction) can restore and increase autonomy in the robiological correlates. If we want to increase our understanding of
long run. Thibaut et al. (2010) similarly argue that androgen depriva- criminal behavior and develop better criminological theories, then we
tion therapy can reduce deviant sexual fantasies or urges (e.g., para- need to incorporate the neurobiological influences on violent, antisocial
philic urges). behavior. If we limit criminological research to the behavioral and
While mental health disorders and substance abuse disorders can environmental aspects underlying such behavior, we are left with a
compromise the capacity to be autonomous to varying degrees either partial understanding of what drives an individual to commit crimes.
acutely, chronic, short term or long term, having a mental health dis- Neurobiological research therefore provides a valuable additive ap-
order and/or substance abuse disorder does not necessarily imply in- proach.
competency or a complete inability to make rational choices: “Very few When neurobiological knowledge, measures and techniques are
medical conditions permanently and completely abolish the capacity to used within criminal justice settings, it is recommended that sufficient
make choices, and psychiatry is no exception. Even if patients are de- attention is directed at preventing stigma and neuro-determinism,
tained and have limited choices, mental health professionals have a protecting autonomy, non-interference and mental liberty, and safe-
duty to help service users exercise what autonomy they have and guarding privacy. A nuanced and detailed understanding of the ways in
pursue their own choices as best they can” (Adshead & Davies, 2016, which neurobiological markers may or may not influence behavior is
76). To maximally respect the well-being and dignity of forensic pa- needed, and scientists in the field of neurocriminology have the re-
tients, forensic mental health experts should always strive for active sponsibility to disseminate and communicate their findings accord-
cooperation on behalf of forensic patients and maximally respect their ingly. Individuals with mental health and addiction problems are al-
remaining autonomy. ready facing stigma in our society. Adding a neurobiological profile
Non-invasive neuro-biological interventions may have the potential may exacerbate this. Scientists, legal scholars, forensic mental health
to ameliorate current approaches to rehabilitation and treatment of experts and journalists need to be aware of this and address mis-
deviant behavior. Non-invasive, reversible neuro-interventions include, interpretation and misuse of neurobiological findings appropriately.
among others, vitamin and diet supplements, cognitive-emotional Although early screening and intervention may benefit some chil-
training using virtual reality, videogames or neurofeedback, and tran- dren and adolescents who are at risk of exhibiting violent, anti-social
scranial magnetic or direct current stimulation. If and when neuro-in- behaviors, there is a substantial risk of increasing anxiety, stigma and
terventions such as virtual reality therapy, neurofeedback and tran- unnecessary interventions. Moreover, the stigmatization, internaliza-
scranial direct current stimulation, become part of forensic tion and self-blame that results from such labels may stimulate the
rehabilitation and treatment programs, the effective use of such neuro- development of maladaptive cognitions and narratives. While we can
interventions will depend on the willingness of the individual or patient have legitimate reasons to opt for screening, we can also have legit-
in question to participate. Several of these interventions require the imate reasons to refrain from screening. A careful assessment of the
active participation of the individual to exert their effects. Moreover, potential harms of screening versus forgoing to screen is therefore

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paramount. Journal of Substance Abuse Treatment, 31, 117–120.

If and when neurobiological knowledge is gathered for detection Caruso, G. D. (2017). Public health and safety: The social determinants of health and criminal
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privacy and mental integrity, and concern for the well-being of the Neurobiological changes after intervention in individuals with anti-social behaviour.
individual in question. The latter minimally implies that the least in- A literature review. Criminal Behaviour and Mental Health, 25, 10–27.
vasive option is considered first, that the intervention is psychologically Council of Europe (1997). The convention for the protection of human rights and dignity
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