 Hi, my name is Rachel Conrad and I'm really excited to welcome you to the first official event of the Harvard Neuroethics Hub. I'm co-chair of the Harvard Neuroethics Hub with Matt Baum, who you'll meet in a minute. Neuroethics is a highly interdisciplinary and burgeoning field. It breaks down traditional barriers to interrogate implications of new emerging brain science. Neuroethics brings together people from neuroscience, engineering, law, history, philosophy, sociology, nursing, neuropsychiatry, ethics, innovation, genetics, human rights, and many other fields. Boston has a wealth of academics and scholars exploring neuroethics, and the Harvard Neuroethics Hub was formed to catalyze interdisciplinary scholarship, teaching, mentorship, and community engagement. We're thrilled to announce our inaugural class of Harvard Neuroethics Fellows. The fellows work closely with mentors in neuroethics and we aspire to promote their career development as they become thought leaders in the field. We encountered enormous interest in our inaugural fellowship class and we're grateful to work with a brilliant cohort of students after a highly selective process. Our mentees range across training and education from recent undergraduates to postdocs to resident physicians. Our fellows are collaborating to organize events with interdisciplinary and diverse panels. Fellows are working with a team of experts in the field to support and guide this process. We're excited for today's event and grateful for the leadership of Qan and hosting our very first experience together. Today we'll learn about the intersectionality of patients with psychiatric illness and the criminal justice system. This is a personal experience for me as a medical director of a first episode psychosis clinic. We often take care of patients who receive legal charges for violent crimes that occurred during their first episode of psychosis. I'm grateful for the opportunity about how we might protect patients like mine and our criminal justice system, and now I'll turn it over to my co-chair, Matt Baum. Thank you. Hi everyone, I'm Matt Baum. I'm a resident psychiatrist, clinician, scientist, and neuroethicist at Brigham and Women's Hospital. I help lead the NeuroEthics Hub and it's my pleasure to introduce Ki-Huan Yeo. Ki-Huan is currently an LLM candidate at Harvard Law School and inaugural fellow of the Harvard NeuroEthics Hub, which is funded by the Harvard Mind, Brain, Behavior Interfaculty Initiative and with partners across the Harvard system, including the Harvard Center for Bioethics. She holds a BA in Jurisprudence from the University of Oxford. And I'm very excited today. She's shown such a fierce curiosity and intelligence as she's worked with her mentors myself and Dr. Francis Shen on her NeuroEthics Hub project, which is the subject of today's webinar. Even though I'm working the night shift in the hospital all week, I wouldn't miss this for the world. I'm a little sleep deprived and delirious, so apologies. But I hope you will also find this as engaging and worthwhile as I myself do, and I have no doubt that you will. Ki-Huan, take it away. Hi everyone, I'm to the panelists, the people in person and the people attending online. Thank you so much for your time today. Before we begin today's panel discussion, I will give you some brief context of the project. So just to set the understanding. So the US Supreme Court has said that a defendant's mental illness makes him or her less morally comparable. In the capital punishment context, the stakes are especially high. It becomes a question of whether a defendant's life should be spared. To start us off, we have to know what a mentally ill defendant faces when on trial for homicide. One point to note is that criminal law, especially the death penalty, is primarily implemented at the state level, resulting in significant substantive and procedural variations between jurisdictions. Hence, the discussion here can only take place at a level of generality as applied to most jurisdictions, though we remain conscious that the variations themselves raise ethical concerns. So the first way in which mental illness comes under consideration is during the determination of a defendant's competency to stand trial. There's deals with the defendant's capacity for rational understanding and communication at a time of trial, but the threshold for establishing competency is notoriously low. If found competent, the defendant might then choose to raise insanity's defence, which, distinct from competency, is about the defendant's state of mind at the time of offence. This has been decided on multiple tests and roles, most recently at the federal level, probably under the definition in the Comprehensive Crime Control Act, which requires an inability to appreciate the nature and quality or the wrongfulness of his acts on clear and convincing evidence. The model penal code acts that the defendant must be unable to act within the confines of the law, although this has been criticised because of acquittals that he has led to. If successful, defendants are typically rerouted into the custody of a psychiatric facility, but more often than not, the defence fails. In some states, like here, there is then the diminished capacity plea, which is not a full defence but can be used to negate the intent element. In others, like Michigan, there are alternatives such as the guilty but mentally ill or insane verdict if the defendant is deemed legally sane but has a condition that interferes with his ability to tell right for wrong and is also willing to plead guilty. If the defendant succeeds in none of this, his condition will then be raised during the sentencing phase for jury consideration of mitigation factors. While the Eighth Amendment mandates this, there remains a two-edged sword problem. In essence, the mitigating effect of a history or diagnosis of mental illness is greatly reduced, even overwhelmed by the perception of future dangerousness that it creates at the same time. If the defendant then ends up being sentenced to death, his last protection is a test of competency to be executed, but states have struggled with this determination even after the latest rulings that require a defendant's rational understanding of the state's rationale for execution. All this suggests that such vulnerable defendants are insufficiently protected in the status quo, but the US Supreme Court has no categorical exemptions from the death penalty for defendants that are severely mentally ill at a time of offense. And where abolition is simply not possible in certain jurisdictions at present, many have argued that this is the necessary step, especially since such defendants can suffer from at least the same level of impairment as intellectually disabled or juvenile defendants who are exempted for these very reasons. Which brings us to today's panel of discussion that will happen in two parts. Firstly and broadly, it is a discussion about whether severely mentally ill patients should be exempted from the death penalty at all and how neuroscience provides an answer to this question if possible. More narrowly, we are also looking at how such an exemption would work in practice. There are roughly ten states that have proposed bills to this effect to varying degrees of success and while they have been scrutinized through legal and political lenses, less thought has been given to the underlying signs and evidence and how decision makers interact with them. Therefore, the focus today will be on the role of neuroscientific evidence during the legislative process and if successful during criminal proceedings. Before we move on to the panel discussion, I want to give a brief introduction of today's panellists. Firstly, a judge gardener who is not currently visible is the senior lecturer of law at Harvard Law School and a former federal judge. She is also the managing director of the Mass Gen Centre for Law, Brain and Behaviour. Dr Ida Shahim is an assistant clinical professor of psychiatry at Harvard Medical School and an attending psychiatrist in the Department of Psychiatry at Mass Gen. She is also the co-founder and co-director of the Mass Gen Centre for Law, Brain and Behaviour. Dr Baskin Summers is a licensed clinical psychologist and an associate professor of psychology at Yale University. She also has secondary appointments to the Department of Psychiatry and the Yale Child Study Centre School of Medicine at Yale University. So moving on to today's discussion, with first start off with the first category of questions which is on the normative issue of whether such a categorical exemption is the right step forward. So the first question I would like to pose to the panellists would be what are the key points of disjunction between the law and neuroscience in this area? And what are the issues of introducing neuroscientific evidence in the criminal justice system and specifically with regards to capital sentencing proceedings? Judy, you should begin. Okay, let me first set a frame and I need to say that because this is a bioethics hub, the overarching principle for me at 1,000 feet is that I am not in favour of the death penalty. And so categorical exemptions make me happy. But using science in a way that is unjustified makes me unhappy and not just because it's theoretically wrong but because it leads to havoc. So I'm going to make a slightly long-winded frame here and explain what I mean. And Judge Gertner knows why and Dr. Best of Summers also knows why. So you went through very beautifully, Kiwon, the notion that one can mount an insanity defence and I'm going to speak in legal terms even though they're quite offensive to psychiatrists. We don't say insanity. So insanity defences have cognitive and volitional prongs. They are rarely successful, but when they are, it's an off-ramp. It's a not guilty verdict and you go into forensic psychiatric treatment. Okay, that's fine. If it fails, you are guilty and then you go in a capital trial into a sentencing phase. Now, what has happened in the last probably 25 years of Supreme Court jurisprudence is that the Supreme Court has allowed what I'm going to colloquially call two off-ramps. The first off-ramp would be Atkins versus Virginia, which said that if you are intellectually disabled, then you are not eligible for the death penalty. And that's a categorical exemption with a bright line. We can talk about lines later. And the second one in 2005 was Roper v. Simmons, a categorical exemption of those under 18 from the death penalty. And the proposition that severe mental illness should be the third off-ramp is really what we're talking about. And advocates have said, well, this is an analogous off-ramp because it mimics the factors of intellectual disability and of juvenile neuroscience, which is it's a class that we can identify of people who are less culpable. And in the case of juveniles, there is a rehabilitation potential. And there was also a sneaky little sixth amendment argument besides an eighth amendment argument that says also they won't be good witnesses, and they will be deprived of certain trial rights because they cannot participate in reason and community. Okay, so that sets the stage for this proposal, severe mental illness. And there was a, as everyone here knows, there was a big American Bar Association working group to put forth a proposal defining what this off-ramp would look like. And the definition was really a sort of a reinvention of the insanity defense later. What it said was, and then I'm going to be quiet and let other people jump in. What it says was, well, you shouldn't be executed if you have a severe mental disorder or disability that significantly impaired your capacity to appreciate nature consequences, wrongfulness, or exercise rational judgment in relation to conduct or conform conduct to the requirements of the law. And that would have to be individuated. After you have established what they call the DSM-5 disorder, then you would move to the individuated approach of seeing whether the severity of that illness was present at the time of the offense. And here is where I have a problem, and I can chime in later. Once you start using categories that are syndromic to decide who are the specific exemptions, I'm concerned about bias. I'm very concerned about racial bias and inequality and other phenomena that we see in diagnostic categories. And so I'm going to open that realm up and let other people talk about it. I'm going to cede to Arielle only because I'm having computer problems. As you can tell by my disappearance from the screen. Sure thing. I'm happy, happy to jump in. You know, I agree with everything that has been mentioned. I, you know, really agree with the approach broadly of a categorical exemption is the approach to go with because it, in my opinion, would remove the potential earlier stages of bias or individual consideration by really non-experts. You don't necessarily know that much about neuroscience or psychopathology and are trying to fit an understanding of behavior into the law and we could have a whole separate webinar on like the disconnect between what the law might say and actual behavior. What I would argue though is how do you define that categorical exemption is the biggest question in my mind and what I would argue is that we probably need to have multiple definitions for the categorical exemption. So one of the definitions is a clinical diagnosis that is clearly documented with impairment which should be embedded within the clinical diagnosis may be sufficient, and this might be really clear in cases of schizophrenia or other psychotic disorders, where the law has accepted a clear disconnect from reality. The problem is many other disorders particularly personality disorders or substance use disorders that often are excluded from these types of legal definitions of serious mental illness, don't have that clear disconnect of irrationality or, you know, a lack of awareness of rules and reality but what actually the science tells us is that they do just in a very different way. For example, some of the research that I do on individuals with psychopathy we can show that they actually process information at a different speed than other people without psychopathy. So you could argue that at any given moment in time, they don't have access to the full amount of information that someone without the disorder would have. And so that gets into nuance of the situation in which actually the neuroscience could potentially help us reframe the definition of what might be considered rational or what may be considered information or accessed information at the time of a particular cancer or behavior. But I would say that probably relying on neuroscience by itself is also problematic because we know there's a translational issue of a lot of our group effects to any given individual. And so, you know what a lot of researchers now are focusing on is developing these bio psycho social models of behavior can we combine the biological information with other psychological risk factors social risk factors. So it might not be an issue of just having some abnormality in the brain but if you also have other risk factors that might be considered mitigating in other instances that theoretically could be sufficient to qualify for the category. So, you know, again, I agree categorical is the way to go I worry with categorical being too narrow in the way that the insanity defense has been, and then basically, you know disqualifying some of the people who might be most at risk for this type of And I just want to jump into echo one thing and then see the Florida judge Gertner, which is so, for example, it's, it's prescient that Dr baston summers raises psychopathy, or what a psychiatrist calls anti social personality disorder, very poor and less into less validity to the category, but almost all of these proposals in every legislature and in the ABA proposal excludes anti social personality disorder from any consideration and substance use disorders we can talk about those later, but the notion that you're trying to fit a medical model into a moral category. The, the express reason that the ABA excluded anti social personality disorder was that it, it doesn't lessen culpability. And because it doesn't lessen deterability, meaning basically they should face they still can know better and know that we're going to execute you at the end so that should change your behavior. So, these moralisms that seat back into the medical categories really bother me, because I've seen them run amok and really be very destructive in the arena of juvenile justice, for example, the off ramp is being changed into an on ramp again, when judges are given the discretion to decide, based on medical notions of rehabilitation, who is incorrigible and irreparably corrupt versus who is redeemable. Those are not medical categories, those are not psychiatric categories that's not a thing. And this is the problem with making these lines that are not right lines. Well, again, I want to apologize. Every computer in my house has failed. Literally, except this one so I was crawling under the table to try to plug in a very old one and that's what we've done. Okay, I think part of the problem is that both the categories, the mental health categories are on a continuum. And the legal categories are on a continuum. And that's that is so that even if you wanted to create hard categories, the margins of those categories are very difficult and that's what Dr. Eddyshine was talking about with respect to, for example, juvenile neuro, the application of juvenile adolescent neuroscience to the death penalty or to life without parole. The court was unable to say no juvenile ever. And so said, man said, life without parole is available. If there is, in courage ability, which of course is not again is a continuum and not a state, not a fixed standard that neuroscience can identify. And it's the same thing with respect to mental health issues that meant that the, the neuroscience of mental illness is on a continuum, degrees of incapacity. And ultimately the legal definitions are also on a continuum. The legal definition of insanity makes it appear as if it's a switch that you can flip. And in fact, there are degrees of appreciation of right and wrong. There are degrees of impulsivity. And, you know, it may be that we are, this may not be helpful to this discussion where where Dr. Eddyshine started, which is the question of the death penalty for anyone as to whom these issues are prominent. I'm not sure what the definition would be, but it makes the incoherence of both the legal categories and the neuroscience categories may suggest that we want challenge to the death penalty in general, but may suggest that over broad categories are the only way to go here, as opposed to anything more subtle. And that would mean psychopathy and it would mean neuroscience, it would mean addiction. And you want an over broad category of exclusion, partly because as I said both sides are continuums, but also to deal with the resource question, which is, if there is an issue of mental health, no death penalty. Because the resources that poor people have make them unable to titrate where they are on this continuum in the way that someone with resources might have. And also following from a lot of the policy shifts are around juveniles I mean the, that is the appropriate way to use something like neuroscience or research more broadly it becomes then a policy decision rather than about any individual capacity or culpability. And I think that what the science or biopsychosocial models or anything has told us is that many forms of serious mental illness for people who are confronted with the legal system have difficulties with information processing emotion regulation any of the categories that theoretically could undermine their ability to appreciate in some way in the way judge Gertner saying you know there's a continuum but in some way. There's a kind of rational way to apply the sciences to say well we just need to broadly define serious mental illness and categorically have them be an excluded class from from the death penalty. I think if we can take a perfect example of that in terms of substance use disorder. So, if we were saying what do we have the best neuroscience evidence for, we know that almost every substance of abuse, every drug of abuse, alters dopaminergic transmission in the brain upstream or downstream. And then there's a whole series of neuro adaptations downstream that change memory and and cognitive, cognitive control and affect regulation and and we understand this cycle and we can visualize it on PET scans and all the data is there. So that's a good example for some of the most basic access one disorders, but that those are, because we're dealing with policy, because we're dealing with the fact that the roots of the death penalty are about blameworthiness and culpability. And this and ends up fighting the battle that psychiatrists and psychologists have been fighting for the last 100 years that substance use disorders are not character defects. They're medical illnesses that that are relapsing and remitting like hypertension and diabetes and heart disease, and that, and that they should be treated that way. In the public policy realm of understanding that substance use disorder and criminality are intricately linked, you're going to get these exclusions all the time, even in Massachusetts substance fallen voluntary substance use is excluded from all exculpatory realms. So as I understand most of the discussion is about how the science doesn't lend itself well to line drawing, but it's primarily what the law seems to want. So maybe a follow up question I would have is, as we previously discussed, do you think neuroscience is sort of the right way to introduce leniency or like, like personalized individualized sentencing to the law given the absence of say value space or norm space human right space doctrines in the current sort of sentencing procedure. Let me let me start that I mean that's the reason that that is the very reason why I became interested in neuroscience so I was a federal judge for 17 years under a regime that was all about rigid categories of what the offense was and who the criminal record of the offender, and most of the mitigating characteristics that judges had considered before this regime were gone because those were mitigating characteristics like addiction like mental health which introduced disparity into the system and basically the system chose a more or less fair method in order to eliminate disparity. The advantage of neuroscience to me is to individualized but individualized in a way that at least to the lay judge looks like fact. We talked about this in our class looks like fact, right. The DSM was a little bit more squishy and subject to interpretation. And now I'm overstating this, but a lot of FMRI looks like fact now we know it not to be fact. We know it to be averages we know it to be G. You know subject to interpretation. The average is created by whatever the population was that was studied. We know all of that, but it looks more fact based than the DSM three or four or five did. For me, again as a policy matter. If that's the way to individualize. So be it I will take the limitations of neuroscience although I know the next questions will be there are dangers of it but I'll take those limitations, because it takes. You know, the person that is vilified by the crime that's being charged and vilified by a criminal record which could have come about through policing in poor neighborhoods as much as someone being culpable. It is a way of piercing sort of peeling some of the layers to get to a more humane system with all its limitations. I agree in the sense that it appears to be more factual and provides I think what feels like more concrete evidence of problems with processing information or self regulation. Another piece that I think neuroscience can help with which is also the incorrigibility argument so increasingly, we see changes in the brain changes in psychological functioning following treatment and an understanding of brain and psychological understanding identifying targets for treatment, and even in somewhat consider like the most recalcitrant treatment populations. We see more and more development of effective treatments with a better understanding of what's happening neuro biologically not through psychological treatment but psychological treatments that understand the idiopathogenesis of these disorders so the neuroscience aspect is not just in something different is happening but also change is possible and I think we're seeing that science develop more and more. Which then puts the light in incorrigibility. Right, exactly. And that would be a wonderful I've just signed you up for the amicus brief, Dr basket summers, because you one has to take into account. And this is what is so hard bridging these divides, one has to speak in legal discourse and legal categories, if one wants to make a legal difference. And what the court in Atkins and roper wants wanted to see were reasons for their off ramp and one of the most persistent region reasons for the off ramp was rehabilitation potential. Not for the categories in Atkins but for the categories in juveniles. And so if you were making the categorical argument for severe mentally ill people, the argument you just made would be. Severe impairment, blessings culpability, severe impairment is a sixth amendment violation as well because of participation in trial and how they would look as witnesses, and like roper. We now know that things can get better. And that would be a beautiful argument to make I think to make this more of a complete categorical is exemption, the way, the way we saw in roper, because the undoing of roper was Miller and Montgomery, those two cases which say, Okay, you scientists tell us who's really really bad forever, and who's really really not. And the, you know, there's always a funny thing about lawyers they talk funny things like the, the camel's nose in the tent, and those phrases, meaning that was the slippery to not making those findings on the record to arbitrary decisions about who is incorrigible and who is rehabilitatable. And those are the introduction of bias and I think that's, that's the problem if you don't have a scientific answer and you can actually building on the incorrigibility point, I think another concern that a lot of lawmakers have the reason why they oppose exemption is that they perceive that future dangerousness of mentally ill defendants and they find it difficult to overcome that barrier. So my question to you would be, how do you think it's possible to use neuroscience to either convince them that these conditions are not immutable and unchangeable, or in any case to show them that these are manageable and that the death penalty is not the only option open to them. I think the answer is that the death penalty is not the only option open to them. The difficulty of any discussion of the death penalty is that it legitimizes life without parole. In other words, the discussions about the limitations of the death penalty of the ultimate punishment and the limitations of either identifying the most incorrigible which we know you can't really identify the limitations of identifying the human being as without a promise and without the capacity to rehabilitate, led in part in most of the country, even the death penalty states to prevalence of life without parole. That seemed that in the United States that seemed to be the lenient alternative. Whereas in most of the industrialized world, it is not. I challenge the Center for bioethics and Harvard Medical School to come up with an analysis not just of the ultimate punishments death and life without parole, but to come up with an analysis about imprisonment. What's the point at which, what's the point at which somewhere. Can we come up with an analysis of what what some science one academic called scalable punishments. When, when is, when is imprisonment too much. When do you begin to adapt to your surroundings so essentially you're no longer. I mean you become an institutionalized person, rather than a free person who is punished. What's the point at which medical systems break down quite apart from neurological systems break down. And can we in a sense, come up with a neuro biological or medical definition of parsimony, the least, like the least, you know, aggressive punishment for this person. I don't agree it's easy to take out the extremes or not easy, but we have taken out the extremes. I'd like to see neuro biology and neuroscience deal with the intermediate categories. You know what's interesting there's so much interesting in what you just said. The first part is the sort of square peg round hole problem, which is, and we've discussed this personally and in class at Harvard Law. We are not a society that makes its decisions in the legal system based on morality and human rights. We sign on to none of the human rights treaties about how detainees should be treated and in other countries they talk about the right to hope. The right to a meaningful life outside of prison, the, the, the dignity of human beings, and we don't do that here. We talk in other ways, which is why science has been so useful. The neutrality of that has been a substitute for talking in moral discourse about what is just punishment and what is unjust. But we, it's so interesting because like, like the finding in Roper, where the court said, this is what every parent knows about teenagers. Well, this is also what every psychologist knows about the age crime curve, about when people desist spontaneously, whether you lock them in sing sing or you lock them in the attic at 25 years old you see precipitous drops. You know, the peak and drop, just correlating with crime, and you understand actually we have mountains of behavioral data, and then of understanding that what we're doing is creating a care home for people with neurodegenerative disorders if we leave this past 45 or 50, that almost all of these people who have deeply penetrated the justice system will spontaneously desist, and not in 50%. We're talking 85 to 90%. And so the sheer numbers alone, we know them and we can prove them, but that someone has to listen. So follow up, you know, of course, I'm a fan of neuroscience, I collect your science data, but we don't actually need the neuroscience to make the point that you were asking about Q1 earlier. We have tons of psychological longitudinal data that make the very point that was just made before that even without intervention, the traits that we associate typically with more severe or chronic antisocial behavior, desist, and decrease in the majority of individuals, that's without intervention. Then I've already made the point that we actually if we give appropriate interventions, we have interventions that can work for these individuals as well. And that's just from the basic behavioral and psychological longitudinal data, particularly in younger people, we also know that there's much more variability and development and personality in the 20s and 30s. That used to be believed like personality was just stable and fixed once you, you know, reach your 20s we know that that's not true anymore and so there's just heaps of data to suggest like without intervention things will get better for most people and with intervention, even the more severe types of offenders that we might be thinking about can improve. So that's one aspect to the argument of what incarceration does to the brain and this is where I think the neuroscience becomes a really important legal argument. You could imagine taking someone with serious mental illness who might have some of the kind of abnormalities or atypicalities that we've been talking about in terms of the brain. Making this kind of fragile neural system and putting it in an environment that is assaultative basically that, you know, we know leads to further neurodegeneration, even after just one week of being incarcerated we see shifts in EG or electrical problems in people's brains so you know it's it's it becomes then this eighth amendment issue of just like incarcerating people in these types of environments where there's noise overcrowding lack of access to resources led in most of the world and so this becomes I think a kind of further aspect to the argument of where neuroscience can become an important piece of evidence for the incarceration phase of people with serious mental illness. Because up until now imprisonment, putting aside life without parole and the death penalty where these discussions have taken place imprisonment is a science free zone. The sense of imprisonment is a complete science free zone. And that means that judges and legislators can legislators can just make up numbers, or sentencing commissions can just make up numbers. So, along those lines Dr vasten summers and it's fascinating. He won you made it, you might have developed an entire collaboration with this one webinar. And the center for low brain behavior filed amicus brief in a in a federal solitary confinement case. So the, this is again the same dynamic the psychology of solitary confinement, and it's destructive potential for human interaction for for sanity intact brain functioning has long been known before neuro imaging and before any sophisticated instrumentation was present. But we worked with an MIT scientist a wonderful MIT scientist, Adam or wits, and filed a brief, which was complementing, there's a well known psychological talking about the psychological destruction brought by long term solitary confinement, but we added a neuroscience piece a legitimate appropriate neuroscience piece on what the new neuroscience of solitary confinement has to add to instantiate that in the brain. So I'm hearing that like the neuroscience can play a big role in how we understand sort of like different parts of the criminal proceedings. One last question I have an implementation before we open up to the floor would be, then during the trial process, given sort of like the subjectivity of assessment and also the heterogeneity of symptoms under the broad categories which as you've talked about are problematic themselves. Maybe do you have any experiences about having sort of like conflicting but equally compelling diagnosis and like how do you navigate this area and do you think that subjectivity itself sort of affects the credibility or implementation of neuroscience and psychiatry in the criminal justice proceedings. So subjectivity in here is in the proceeding it we call it judgment. We call it judgment, and it doesn't map directly on science but it's really, it's what we regard as legitimate it's the just it's the judgment of a jury, which is, you know, some small part of the evidence and the rest is lay decision making whatever that means, which then gets back to your first point is that if you want a rational system there has to be categorical exceptions, not subject to anyone's judgment, and that the we reserve the criminal sanction only for those as to whom we are, you know, more probable than not or likely clear and convincing or beyond a reasonable doubt maybe we put it in terms of the actual terms, we reserve the criminal sanction for those for whom they're beyond a reasonable doubt are deserving of it whatever that means. And then we mitigate the criminal sanction based on whatever scientific evidence we can provide but if subjectivity we're disqualifying we wouldn't have trials. And he won you should know that and you do know that in the in in civil law systems as opposed to common law systems. There are panels of experts for example forensic psychiatric experts that advise judges and come to a joint conclusion there may be three to have to agree. There is a pitched battle adversarial system, and in a field where the line drawing is where reasonable people can disagree in some cases. In some cases, it's clearer than others, but when you get to very, very close gradations you will have adversarial opinions. Finally, I have one more foreign to put in the side of all of you bioethicists, because no, no good webinar goes unpunished. You, you need to think about one aspect of this capital punishment scheme that the ABA resolution has proposed the severe mental illness plus significant impairment due to that illness. We're going to evaluate that severe mental illness, due to with an individuated approach. Physicians are not permitted to assist in the death penalty. And there's a big long am a statement. Would this be considered participating because it's an on off switch for the death penalty. I can't give a forensic opinion in mitigation and aggravation, because it's not the switch, but with a categorical exemption does this come the position participating in death, because with the categorical exemption that doesn't then go to the jury to determine whose mitigation and whose aggravations at stake. It's, it's an opinion as to whether this person is going to have life without the possibility of parole, or is going to be put to death because they don't qualify for the exemption. But it's the opinion of the judge. Based on the man. So it's not it's not a one to one correlation in other words experts would speak to the judge who's making the decision with that implicate the kind of issues you're talking about. And that's my wondering, I'm wondering if we're edging really really close to, I, I can't remember what the ABA is language, what the, what the AMA is language was but it is like actions that would directly cause death actions would, but it doesn't include determining competence to be executed, or, you know, but, or. So it's a very elaborate framework, but this is setting off alarm bells for me that we're getting very close to, to, to being the decision maker who ends someone's life. So this would provide a good transition to our Q&A session then because there's one question in the chat that is quite related to Judge Gretner's point about judgment but before that just some housekeeping matters. Any of the online participants would like to pose a question feel free to type it in the chat and we'll also be taking questions from the floor if anyone's interested in posing them. So going to the point about judgment, someone asked a question about, since judges being, are being increasingly required to grapple with issues about the intersection of law and moralism, which we talk about might be problematic. From a judicial training perspective, what are the key priorities of balancing this like law, moralism, medical science, and what kind of training would best equip judges to grapple with these issues. Training with us. The Center for Law, Brain and Behavior, the Flaschner Institute which trains state judges and federal judicial center have tried to introduce judges to neuroscience and the application of neuroscience to law. The problem is that that is episodic. In other words, only those judges that choose to get the training get the training. It's not a requirement. It's not baked in. So you have the phenomenon of the judges that are already interested in this and already curious about it will get the training, and others will will stick to the old tropes and the old generalization about culpability and addiction that that that Dr. is talking about. I think that but I think people are thinking generally that some judges, judges need more general training as lawyers do in how to how to critically evaluate data and how to critically evaluate science. Are there any questions from the floor at this moment. I have a question. Thank you so much. This is really interesting. I just wanted to springboard on some of what was was talked about. You know, we mentioned, you know, these brain changes and, you know, psychometric changes with severe mental illness but it was also raised about, you know, lower socioeconomic status as well as like, you know, changes in prison that, you know, we have neuroscience along the same lines we have you know psychological assessments along the lines that there are differences impairments. So, you know, when it comes to policy and considering these exemptions like where do we stop with these categories. And beyond that what differences, you know, as scientists we can point the whole point is like getting categories pointing out differences what differences are really morally and legally important and substantially impairing in a way that's relevant to these decisions. Or are we really getting to the point of like we just need to abandon categorical categories in law and move towards a more quantitative solution. The law is about categories. The crime is defined in terms of categories. Sentencing standards are defined in terms of categories. We have a fully discretionary system that would allow expert judgments would be a very different system that we have. So, the problem of fitting neuroscience and psychology into legal boxes is is endemic to the system. We've talked a great deal in our law neuroscience class about how they don't match. And we've talked about it today the legal boxes don't match the other boxes doesn't don't match the neuroscience so I don't. I mean you're proposing is very interesting but I but it will be. It's a different system. One could do one could create an entire juvenile justice system where we'd say everyone goes through something like the juvenile justice system no one is identified as culpable of anything everyone is treated. You know, for a period of time, everyone we recognize everyone is perfectable. I mean, that would be very interesting. It's just not America at this time. And that's what I was thinking about during the question of like, well, if we really want to talk policy, and how to address issues of crime or anti social behavior. We should be addressing things like poverty, and then actually see how much crime and anti social behavior we really have. When you kind of create an equal footing. It's never going to happen in the United States are probably not in our lifetime but we've seen some nudges and some shifts and what, for example, certain studies have shown that have given people vouchers to move to different neighborhoods or to help take them out of certain aspects of poverty is that yet there are still some people even when you fix some of the structural issues that are going to engage in illegal behavior. What it seems to suggest is that the people who are more severe and more chronically exposed to violence engaging in these types of any social behaviors are the ones who are at highest risk for mental illness and including personality disorders and substance use disorders. And so I would say like from a policy perspective would be great if we could have like kind of two levels let's address the kind of masses through policies that actually help reduce some of the environmental difficulties that we know contribute from a structural individual perspective to anti social behavior or criminal behavior. And then that will leave us a small portion of people left who are continuing to persistently engage in these behaviors and then that's where the psychology and neuroscience can come in to actually come up with pathways for how to manage and treat these individuals, but I think that first prong is so unlikely at this point in time that the second one is probably more feasible which is we should come up with a better sense of the risk factors because actually it's about timing chronic city and severity that would help us identify subsets of individuals who are most at risk, but also most in need. Just just saying there's actually a third possibility which is one talking about sort of dealing with, we used to call the underlying conditions of crime and the conditions. The markers of that lead to the risk of crime, and then you're talking about, you know, the existing criminal justice system to some degree if the neuroscience becomes an a way of arguing for shrinking the footprint of the criminal justice system as a policy, that would be interesting. Reserving it then with the way it was, you know, the principle of parsimony was suggesting it was supposed to be reserved, only for the worst of the worst, and not as a mechanism of general social control which is what we have now. And I think I want to add and met such a big important topic that you're raised. I want to go big picture and then little picture. So, in terms of big picture. And of course I'm waving the CLBB flag I'm literally waving the CLBB flag, my logo mugs, which can be purchased for $5,000 at an office near you. Dr. Robert Kinsher, who is the Executive Director of the Center for Law, Brain and Behavior. Robert and I are engaging in discussions right now, I'm going to not mention jurisdictions but in state and out of state to devise a different kind of off ramp, if you will. The off ramp is a pre arraignment and sometimes post arraignment diversion program, which will provide these services along the theory of better late than never, meaning one can still intervene it's better to intervene when someone is for. I cannot intervene when therefore 16 is good to, and if that doesn't work 19 still counts for young adult diversion and emerging adult diversion so I think the off ramp can be a little earlier than by the time we're at a capital trial that's the first issue and we are using the neuroscience of juvenile development to both increase the willingness to participate in these programs and, and the psychology of everything we've known about positive youth development to structure these programs so that's that's the high ground and want you to feel a little optimistic about that the low ground is that if we are using categories. Some of the categories that we use and I don't mean to disparage psychiatry I spend my life in it, but some of the categories that we use actually criminalize the conditions that the deprivation conditions that are in these communities. There is good sound emerging evidence, for example, I keep talking about antisocial personality disorder because it's written out of almost every statute. That if you are, if, if you are in a community of color, an underprivileged community boys who are black and Hispanic are much more likely to be diagnosed with a conduct disorder, which is the required precursor to antisocial personality disorder than they are to be diagnosed with ADHD, which is the diagnosis that that that white children get more frequently than black children and Hispanic children for the same syndromic presentation. I didn't make that up there you can go and Google scholar and find the four papers on that issue. And they're not, those studies are not easy to do, but these are really good studies and you know why, because kids acting out in classrooms that are under resources, get labeled, and kids who are from the black and Latinx communities, get labeled more frequently than white kids, and the resources to treat them are also different. So if you have, if you're diagnosed with a conduct disorder you get suspended. If you get diagnosed with ADHD, you get treated with a psychostimulant, but that's only if you're in a community that has the resources to provide child psychiatric care. So this is why I'm worried about using this late these little individuated diagnoses, instead of the big categorical exemptions. Hi, thanks so much. This has been just fascinating. And so I'm sorry this is a basic question, but I'm just kind of wondering, because the prevalence of all these prior experiences and substance use and personality disorders among these populations, if we had a broad category of exemption that included substance use, PTC from childhood sexual trauma, history of product disorder if we had such a broad categorical exemption what proportion of the people who are convicted of crime would actually be left. That's a great question. I'm not sure I have a data answer but I have an experience answer. Very few. 100% of the individuals that I sentenced for drug charges from the poor neighborhoods of Boston which was the overwhelming population had aces scores had adverse childhood experience had PTSD, had addiction, and you're right I mean that there would be two people left, and then that would be another way of shrinking the criminal justice system. But I think I mean I think you're quite right. And that gets the point I made at the beginning which is to some degree the, the impairments are on a continuum, and the legal categories are on a continuum we have to make choices within that. There's just one last question in the chat that I'm anonymizing because everyone's on record, but just an interesting point because if we have to deal with this issue legally so by categories and by some of the exemption in a bill. How would you convey all like this information that you have about misconceptions about disorders and about these defendants to say a politically conservative legislature and convince them to sort of treat defendants the way you see them. I don't know if they're conservative I go the financial argument. No no I 100% agree. Juan, we, the prison project initiative. There's a lot of data from the Marshall project for example and other data gathering groups that show. Why would you spend $75,000 a year incarcerating an 18 year old whom you know will will will learn from anti social peers if you leave him and cost you $75,000 a year forever. When you can spend $30,000 on him in the community which is likely never been spent on him in an entire lifetime to provide housing, education, job possibility pro social adults. Cognitive and behavioral therapy or CBT or dbt. And that is the argument that may actually sway conservative and that has actually been working. Some of the most conservative, actually philanthropists in the country have endorsed juvenile justice reform for just this reason, you are wasting the young. They are our most precious resource, they will all get better. If you treat them properly, almost everyone will there be 5% that don't 8% that don't probably that you don't, you don't throw away all those lives because you can't tell 10% you do your best with everybody. So on that very positive note that there might be some hope we one day pass more of these exemptions. We like to thank all the panelists for your time and also for all the online attendees and people in person. We hope that you had some good takeaways and that this field would change soon. Thank you very much. Thank you. Thank you everyone.