Racial disparities within the criminal justice system are widely known and criticized. Calls for the use of more “objective” approaches in the courtroom have been made as a way of trying to address these inequalities. But in a new article published in Policy insights from the behavioral and brain scienceswarn the authors that blindly introducing neuroscience technology into the criminal justice system could exacerbate systemic racism.
Looking closely at these technologies reveals subtle and inherent racial biases that could be overlooked in a criminal justice context. The authors conclude by calling for neuroscientific data to be held to a higher standard than other forms of evidence to prevent further racial discrimination against BIPOC individuals within the criminal justice system.
The authors, led by Emily R. Perkins of the Department of Psychology at the University of Pennsylvania, write:
“One well-intentioned way to reduce bias is to introduce supposedly ‘objective’ approaches and technologies that are more robust to the potential for racial biases of individual decision makers. In recent years, neuroscientific evidence has gained traction in the courtroom as a means of increasing ‘ objectivity’ of psychological explanations of behavior. But compelling evidence casts doubt that neuroscience will ultimately reduce racial biases in the criminal justice system as it currently exists. In some cases, it may even exacerbate injustice, as it may obscure those biases , inherent in the measurement and reporting of neuroscience data.”
Black individuals are disproportionately targeted by the criminal justice system. In 2019, black Americans made up 14% of the US population, but represented 33% of the prison population. These disparities are attributed to a number of reasons, including racial segregation, increased surveillance and profiling of black communities by the police; arrests, detentions, and charges of black youth at exorbitant rates; and discriminatory sentencing policies, among other factors.
The introduction of “objective” evidence and technologies, such as neuroscientific evidence, has been presented as a way to try to reduce inequalities within the criminal justice system. Neuroscientific evidence is implemented in criminal justice settings in a few ways.
Neuroscientific research literature is used in the courtroom to establish norms for a given population. For example, it was used in the 2005 Supreme Court case Roper v. Simmons to hold that the execution of minors because of their immaturity and vulnerability to peer influence is unconstitutional.
Neuroscientific evidence, such as brain imaging, collected from a person involved in a particular criminal case is also used in the courtroom, particularly during sentencing, to argue that brain damage or dysfunction is a mitigating factor. It was used in 25% of trials involving the death penalty as of the early 2010s.
But while proponents of the use of brain data in criminal justice argue that it is more objective than other psychological evidence, such as the testimony of psychiatric professionals or the results of risk assessments, others have suggested that the assumption of objectivity is not only wrong. but potentially dangerous.
Science as a whole is assumed to be inherently “objective”. Some have contested this belief and contested that the privilege of WHO is allowed to be a “knower” and what constitutes scientific knowledge and methods is largely controlled by the majority culture, leaving those in marginalized groups on the sidelines. Epistemic injustice, or injustice related to the production and distribution of knowledge, is a major issue in the medical and mental health fields and has been widely criticized.
In addition, the use of ostensibly objective non-neuroscientific forensic assessment tools has been shown to perpetuate racial biases. For example, tools that focus mainly on criminal history have been considered problematic, as people of color are more susceptible to over-policing. As such, they are more likely to have more police encounters, which can result in longer criminal histories than white individuals. When we operate under the assumption that such tools are fundamentally “objective,” we ignore contextual factors that may influence the results.
The authors draw attention to how similar problems can arise with neuroscientific evidence:
“For example, research into the ‘violent brain’ provides a basic framework that forensic psychologists rely on during expert testimony when providing general information about brain function and crime (ie, not referring to the defendant’s own brain scans). This information is drawn from neuroscientific studies with samples that were patrolled, arrested, and sentenced within a racially biased criminal justice system, rather than a representative group of people who engage in violent behavior. The bias in this area of research is obscured by the tendency to tout the data as ‘objective’ because it comes from neuroscience technology.”
Complicating this issue is the amount of influence neuroscientific evidence has on the public. Explanations of psychological phenomena that are grounded in neuroscience tend to be perceived as more satisfactory by the general public. In mock trials, neuroscientific evidence has been shown to influence mock jury verdicts and sentencing. Placing too much faith in neuroscientific data without examining it critically can perpetuate racial biases.
Furthermore, neuroscience is a complex field that requires a specialized level of knowledge and understanding, making it difficult for lay people, including legal decision makers, to critically assess. The public’s lack of understanding of how data is collected, processed and interpreted obscures any possible bias.
Furthermore, the current methods used in neuroscience have largely been developed by and for white people, and have been shown to be less valid and reliable with individuals who have characteristics associated with social constructions of blackness, such as darker skin or roughness /Curly Hair. Even the tools are designed in such a way that they make assumptions about the characteristics of the participants.
As an example, electroencephalograms (EEG) are common neuroscience tools and measure brain activity by connecting electrodes to the scalp. Anything that disrupts the contact between the electrode and the scalp can lead to electrical noise, which degrades the quality of data. Part of the protocol involves pushing the hair out of the way to guarantee a secure connection. However, this is not always possible, especially for people with curly, dense or tightly coiled hair, which is common among people of African and/or Caribbean ancestry, or with popular hairstyles in the black community, such as weaves or dreadlocks, that are not easy can be detached and moved out of the way.
Similar problems have been noted with other neuroscience tools, such as functional near-infrared spectroscopy (fNIRS), which uses near-infrared light to identify changes in brain activity through the skin and has been shown to have lower reliability and validity for individuals with higher concentrations of melanin or darker skin.
The design flaws and fundamental assumptions of neuroscience tools, which disproportionately affect people of color, result in the underrepresentation of Black individuals in neuroscience research. This in turn leads to “healthy control” comparison samples that are predominantly white.
Perkins and colleagues write:
“. . . a recent review found that black individuals are systemically underrepresented in clinical neuroscience research samples, meaning that much of what is thought to be known about the brain may be skewed.”
Legal interpretations of “normal” brain function are skewed by the comparison sample. Assuming that white-biased data will generalize to other populations is inappropriate and unethical without further testing and investigation to determine if this is actually the case.
Given the ethical concerns associated with accepting neuroscientific evidence uncritically, it is imperative that its use in criminal-legal settings proceed with extreme caution by legal decision-makers. The subtle biases and limitations of neuroscientific data should be made clear to those in positions of legal power, and this evidence should be held to a higher standard than other forms of evidence.
Despite ethical concerns, the authors argue that if used appropriately and with research support, neuroscientific evidence has the potential to be implemented ethically. If done right, using neuroscientific evidence in criminal justice settings can help reduce racial biases in the criminal justice system and contribute to the development of personalized rehabilitation that better suits the needs of individuals than standardized rehabilitation approaches.
The authors call for further exploration and understanding of the connections between the brain and behavior across populations, and how to most effectively communicate these nuances to legal decision makers. They also call for partnerships between neuroscientists, sociologists, other experts with knowledge of race and the brain, and individuals and communities affected by systemic racism to ensure that the sociocultural context is taken into account and that the voices of those most affected are represented in the research. , policymaking and privacy concerns regarding brain data.
Systemic racism is not only a problem in the criminal justice system, but in psychology and psychiatry. The American Psychological Association recently apologized for its contributions to systemic racism in the field. Despite this apology, mainstream psychology has been criticized for being slow to adopt the understanding that police brutality is a form of systemic racism.
Scholars have also criticized the APA for not making meaningful progress on its promise to dismantle systemic racism in the field since its apology. Clearly, there is a long way to go in making real changes across disciplines to guarantee the dignity, respect, and fair treatment of individuals across racial and ethnic backgrounds, but Perkins and colleagues offer good recommendations for how we can begin to work towards preventing further injustice.
Perkins, ER, Bradford, DE, Verona, E., Hamilton, RH, & Joyner, KJ, (2023). The intersection of racism and neuroscience technology: A cautionary tale for the criminal justice system. Policy insights from the behavioral and brain sciences, 10(2), 279-286. https://doi.org/10.1177/23727322231196299 (Link)