New ways for criminals to avoid responsibilty

Robbie Gonzales reports at Wired,

...lawyers are introducing so-called neurobiological evidence into court more than ever.

...1,600 court cases examined in a recent analysis of neurobiological evidence in the US criminal justice system. The study, by Duke University bioethicist Nita Farahany, found that the number of judicial opinions mentioning neuroscience or behavioral genetics more than doubled between 2005 and 2012, and that roughly 25 percent of death penalty trials employ neurobiological data in pursuit of a lighter sentence.

...Farahany's findings also suggest defense attorneys are applying neuroscientific findings to more than capital murder cases; lawyers are increasingly introducing neuroscientific evidence in cases ranging from burglary and robbery to kidnapping and rape.

"Neuro cases without a doubt are increasing, and they're likely to continue increasing over time" says Farahany, who adds that people appear to be particularly enamored of brain-based explanations. "It’s a much simpler sell to jurors. They seem to believe that it’s much more individualized than population genetics. Also, they can see it, right? You can show somebody a brain scan and say: There. See that? That big thing, in this person’s brain? You don’t have that. I don’t have that. And it affects how this person behaves.”

And courts seem to be buying it. Farahany found that between 20 and 30 percent of defendants who invoke neuroscientific evidence get some kind of break on appeal—a higher success rate than one sees in criminal appeals, in general. (A 2010 analysis of nearly 70,000 US criminal appeals found that only about 12 percent of cases wound up being reversed, remanded, or modified.) At least in the instances Farahany investigated (a small sample, she notes, of criminal cases, 90 percent of which never go to trial), neurobiological evidence seemed to have a small but positive impact on defendants' outcomes.

...your neurobiological state cannot predict that you will engage in violent, criminal, or otherwise antisocial activity, as any researcher will tell you.

..."What they’re doing is making what I call the fundamental psycho-legal error. This is the belief that once you have found a partially causal explanation for a behavior, then the behavior must be excused altogether. All behavior has causes, including causes at the biological, psychological, and sociological level. But causation is not an excusing condition." If it were, Morse says, no one would be responsible for any behavior.

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