Researchers at Mind Research Network (MRN), a nonprofit organization, have been conducting brain imaging on prisoners in Wisconsin and New Mexico since 2007. The goal of their research is to determine if MRIs can detect changes in brain activity that might indicate a person’s propensity for being a psychopath. Thousands of prisoners have thus far volunteered for the research; in exchange they receive a small hourly payment and a copy of their brain scan.
In a July 2013 article, Dr. Kent Kiehl, an executive science officer at Mind Research Network, told the Los Angeles Times, “The trove of data they have gathered has revealed telltale abnormalities in the structure and functioning of psychopaths’ brains. On the whole, they have less gray matter in the paralimbic system – believed to help regulate emotion – which may help account for their characteristic glibness, pathological lying, lack of empathy and tendency to act impulsively.”
Keihl cautioned in the Times article “that the new study merely averages test results from a large group and cannot at this point predict whether any particular individual will reoffend.” However, further refinement of MRI brain imaging may be useful in determining whether certain prisoners have an increased risk of recidivism. Such information would be relevant to parole hearings and civil commitment hearings for sex offenders. Therein lies one of the dilemmas of such research and the dual use of brain imaging technology in the criminal justice system: The ability to possibly determine future criminality and to deny freedoms based upon MRI brain images.
“Our studies lead us to believe psychopathic behavior results from disruptions to the parts of the brain that regulate emotion, attention, decision making and other cognitive functions,” Dr. Kiehl stated. “Once we understand what causes abnormal behaviors, we can then work to more effectively diagnose and treat these disorders.”
For prisoners, there are two particular concerns with such neuroscience research. The first, more procedural and regulatory, poses the question, does this research qualify as acceptable under current federal regulations, 45 CFR 46, Subpart C – “Additional Protections Pertaining to Biomedical and Behavioral Research Involving Prisoners as Subjects”? Within the framework of 45 CFR 46, Subpart C, these particular MRI studies appear to fit the criteria for acceptable research involving prisoners under the agency that oversees government research, the Office of Human Research Protections. [See: PLN, March 2008, p.1].
In a series of questions submitted to Dr. Kiehl regarding the MRI study, it was difficult to interpret his answer as to the use of a non-biased prisoner advocate by the study’s Institutional Review Board (IRB). When asked, “Did the IRB have a prisoner or prisoner representative when approving this protocol?” Dr. Kiehl responded, “Prisoner reps are required for any research involving incarcerated individuals – I’d refer you to the guidelines for ethical treatment of prisoners published by the Office of Human Research Protections (OHRP). All research and in particular all research with prisoners, is governed by OHRP.” It was unclear whether he was confirming the use of a prisoner advocate on the IRB over the brain imaging study, or simply reciting the applicable regulations without verifying that a prisoner advocate was on the IRB.
The second concern, more problematic and with longer-term implications and consequences, is the use of the MRI images and research findings as investigational or evidentiary materials in the judicial system. Research results from brain imaging studies may lead to misguided public policy, while dual use of the MRI technology creates the potential for abuse of the data and could result in adverse consequences for a prisoner or criminal defendant.
Dr. Kiehl responded to this observation by noting, “Research data from individuals cannot ever be used for any reason, positive or negative, in the legal system to impact that individual. All research data (including brain imaging data) from individuals is protected by a Certificate of Confidentiality from NIH [National Institutes of Health] – meaning that research data cannot be subject to court proceedings.” However, he also acknowledged that “Research data from peer-reviewed published studies may be used to shape policies and procedures.”
When asked if such data potentially could be used to deny a prisoner parole, Kiehl stated, “Many of the advances in cognitive behavioral therapy to reduce relapse to substance abuse are being tested in my lab. I do not believe that our research program will be used in any negative fashion and to my knowledge nobody has ever raised that issue.” The fact that no one has raised the issue in the research community is a matter of concern, as it indicates how little input such studies may be receiving from prisoner advocates on Institutional Review Boards.
If the MRI research and technology is to be used “in cognitive behavioral therapy to reduce relapse to substance abuse,” why the interest by Dr. Kiehl’s research team in using brain images to determine psychopathy? Usually, research is conducted if a market for the results is available or will become available. Also, the website of Mind Research Network lists this type of research as forensic. It states, “MRN’s forensic program continues to expand in both size and scope as investigators try to shed light on the underlying causes of anti-social behaviors. Crime is estimated to cost society more than $2.3 trillion a year, and MRN researchers are hoping to discover some of the neurobiological correlates of the behaviors that cause this huge economic and societal burden. MRN’s forensic research team now involves more than 40 investigators and staff. Through the use of a unique mobile MRI system, over 2,000 brain scans have been collected on location at adult and adolescent correctional facilities, representing the largest set of neuroimaging data ever collected from forensic populations.”
Why isn’t this research classified under Mind Research Network’s addiction research section on their website if the technology is in fact to be used “in cognitive behavioral therapy to reduce relapse to substance abuse”?
Owen D. Jones, a Vanderbilt University professor of law and biology, and director of the MacArthur Foundation Law and Neuroscience Project, which helped fund Dr. Kiehl’s study, has urged caution in the use of brain imaging research. In 2009, Jones and colleagues authored an article titled “Brain Imaging for Legal Thinkers: A Guide for the Perplexed,” published in the Stanford Technology Law Review, which noted many of the potential problems that may arise when society weighs evidence gleaned from brain images. They issued a cautious reminder to legal experts regarding the shortcomings of using brain imaging in the judicial process. Jones and colleagues noted that functional brain imaging is not mind reading and that MRI scanners do not create brain images; rather, human researchers create the images through analysis and processing.
Additionally, individual brain image responses and group averages of brain image responses are importantly different, and MRI brain images do not have self-evident significance on their own. Instead, images must have their import interpreted in context. Classification of an anatomical or behavioral feature of the brain as normal or abnormal is not a simple thing, and understanding the meaning of an atypical feature or function from a brain image is considerably complex. Finally, brain images still do not explain causation as to why certain people behave differently, and brain imaging scanners are built, programmed and calibrated by people and only detect what they are programmed and instructed to detect.
In “Brain Imaging for Legal Thinkers: A Guide for the Perplexed,” the authors offer this conclusion on the use of brain imaging in the legal and judicial system: “...brain imaging represents a perfect storm of power, to be used or abused. It combines the authoritative patina enjoyed by scientific evidence generally, and the allure of all modern brain science specifically, with the seductive power of visual images.”
Dr. Kiehl and other researchers in neuroscience may have benevolent and altruistic motives in conducting and presenting their findings from brain imaging studies. Their research may lead to better treatments and outcomes for prisoners who have various addictions and mental illnesses. Still, the concern for the future is the potential dual use of such research and how the resulting data will shape legal and judicial policy. If history is a teacher, we can learn from other technologies converted for dual use.
For example, consider the research findings of Ernest H. Volwiler and Donalee L. Tabern, who in 1939 discovered the general anesthetic sodium thiopental. Sodium thiopental, also known as Pentothal, became one of the most important agents in modern medicine as a surgical anesthesia. Created as a life-saving anesthetic, sodium thiopental has also gained recognition for its dual use role – as one of the drugs commonly used in executions by lethal injection.
Sources: Los Angeles Times; www.mrn.org; Jones, Owen D., et al., “Brain Imaging for Legal Thinkers: A Guide for the Perplexed,” 2009 Stan. Tech. L.Rev. 5
Greg Dober is a freelance writer in healthcare ethics. He obtained his Master of Arts in Bioethics and Health Policy from Loyola University of Chicago in Illinois, is a member of the American Society of Bioethics and Humanity (ASBH) and has been a contributing writer for PLN since 2007.
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