AJOB NEUROSCIENCE 25
ORCID
Walter Veit http://orcid.org/0000-0001-7701-8995
Heather Browning http://orcid.org/0000-0003-1554-7052
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Birch, J., and H. Browning. 2021. Neural organoids and the
precautionary principle. The American Journal of
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Dubljević, V., K. Trettenbach, and R. Ranisch. 2022. The
socio-political roles of neuroethics and the case of klotho.
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2021.1896597.
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London, UK: Cambridge University Press.
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https://doi.org/10.1080/21507740.2021.2001082
OPEN PEER COMMENTARIES
Continuums of Capacity, Binaries of Guilt: The Sociopolitical Role of
Neuroethics in Criminal Justice
Stacy S. Chena , Liam G. McCoya , Samuel Forsterb, Connor T. A. Brennaa
Dasa
a
University of Toronto; bIndependent Researcher
In 1966, Charles Whitman (the “Texas Tower
Sniper”) murdered his own wife and mother before
mounting a University of Texas tower to shoot indis-
criminately at passersby until he was killed by police
during the resulting shootout. It was, at the time, the
deadliest mass murder in the United States (Eagleman
2011). Whitman had previously sought help for inva-
sive, violent fantasies and impulsive violent behavior
and, in fact, even wrote a note requesting an autopsy
be performed to search for anomalies in his brain
(Eagleman 2011). The autopsy revealed a small tumor
compressing his amygdala, a structure charged with
emotional and behavioral regulation (Eagleman 2011).
CONTACT Stacy S. Chen stacysi.chen@mail.utoronto.ca University of Toronto, 170 St George St, Toronto, ON M5R 2M8, Canada.
†co-first authorship.
ß 2021 Taylor & Francis Group, LLC
Racine, E. 2010. Pragmatic neuroethics: Improving treatment
and understanding of the mind-brain. London: MIT
Press.
Veit, W. 2018a. Procreative beneficence and genetic
enhancement. KRITERION 32 (1):75–92. doi:10.13140/
RG.2.2.11026.89289.
Veit, W. 2018b. Enhancement technologies and inequality.
In Proceedings of the IX Conference of the Spanish Society
of Logic, Methodology and Philosophy of Science, ed. C.
Saborido, S. Oms, and J. Gonz
alez de Prado, 471–476.
doi:10.13140/RG.2.2.21932.08326.
Veit, W. 2018c. Cognitive enhancement and the threat of
inequality. Journal of Cognitive Enhancement 2 (4):
404–10. doi:10.1007/s41465-018-0108-x.
Veit, W., and H. Browning. 2020. Why socio-political
beliefs trump individual morality: An evolutionary per-
spective. AJOB Neuroscience 11 (4):290–2. doi:10.1080/
21507740.2020.1830879.
Veit, W., B. D. Earp, N. Faber, N. Bostrom, J. Caouette, A.
Mannino, L. Caviola, A. Sandberg, and J. Savulescu.
2020. Recognizing the diversity of cognitive enhance-
ments. AJOB Neuroscience 11 (4):250–3. doi:10.1080/
21507740.2020.1830878.
, Nir Lipsmana, and Sunit
If Whitman had been captured alive, and the mass
discovered on an imaging study of his brain, would
this finding have affected determinations of his cap-
acity for criminal responsibility?
As Dubljevi
c, Trettenbach, and Ranisch describe in
“The socio-political roles of Neuroethics and the case
of Klotho,” the development of neuroethics calls for
recognition of the discipline’s socio-political perspec-
tive owing to its capacity to offer insights on the intri-
cate relationship between the brain and human
behavior (Dubljevi
c et al. 2022). This relationship
inextricably implicates neuroscience in human agency
and responsibility and entangles neuroscience with the
26 OPEN PEER COMMENTARIES
legal sphere of the socio-political arena. Drawing on
the political philosophy of John Rawls, the authors
delineate a novel role for neuroethics in guiding
ongoing developments in neurotechnology (Dubljevic
et al. 2022). We extend this role to the emerging dis-
cipline of neurocriminology, in which determinations
of capacity for criminal responsibility have com-
pounding and consequential normative social
implications.
THE BINARISATION OF CAPACITY FOR
CRIMINAL RESPONSIBILITY
Within contemporary common law criminal justice
structures, while sentencing demonstrates a consider-
able gradient of punishments, it is exercised only in
response to a delimited, binary determination of guilt.
This determination of guilt is, itself, dependent upon
a binary assessment of capacity for criminal responsi-
bility, which is reflected in the language surrounding
a major legal defense strategy that questions the cap-
acity of the accused: one may only be found not guilty
by reason of insanity under the Texas Penal Code if,
“as a result of severe mental disease or defect, [he]
did not know that his conduct was wrong” (General
Principles of Criminal Responsibility. Texas Penal
Code. § 8-8.01). There is no room to account for par-
tial moral knowledge or reasoning—one cannot be
found, for example, to be 27% guilty, 99% insane, or
72% capable of criminal responsibility.
This binary assessment of capacity demanded by
the criminal justice system exists in contrast to—and
in tension with—the continuum of neurological func-
tion. Determinations of capacity often hinge upon the
diagnosis of a forensic psychiatrist—despite the field’s
clear professional consensus that psychiatric diagnoses
are imperfect and rely on generalized labels for condi-
tions that are dynamic and spectral (Hengartner and
Lehmann 2017). Further, the binary of insanity
embedded in the law is rendered incomplete by the
complexity of overlapping neurological processes
underlying human behavior. Consider, for example,
an individual (analogous to Whitman) who may be
neurobiologically incapable of inhibiting impulsive
violent actions despite knowing that his conduct is
“wrong.” Such a case was documented in 2003, when
a 40-year-old man with a right orbitofrontal tumor
developed adult-onset pedophilia and an inability to
“inhibit sexual urges despite preserved moral knowl-
edge,” which resolved entirely following tumor resec-
tion (Burns and Swerdlow 2003).
THE POSSIBILITIES AND PITFALLS OF
NEUROTECHNOLOGIES
Modern neurotechnology has allowed for increasing
identification of minute structural and functional
changes in the brain, holding promise of providing
insight into the determinants of human behavior. The
nascent field of neurocriminology seeks to turn these
technologies toward questions of crime and its neuro-
biological determinants. As seminal research in the
field indicates, “rule-breaking behaviour common to
antisocial, violent and psychopathic individuals is in
part due to impairments in some [neural] structures
(dorsal and ventral PFC, amygdala and angular
gyrus)” (Raine and Yang 2006). Further studies have
demonstrated the presence of a brain network for
moral decision-making, including regions involved in
empathy, value judgment, theory of mind, and deci-
sion-making (Darby et al. 2018). Disruption to this
network through acquired lesions such as tumors or
strokes is heavily associated with sociopathic, impul-
sive, and/or criminal behavior (Darby et al. 2018).
Some neuroscientists in the materialist tradition
regard this increasing scientific clarity as reason to
question the doctrine of free will itself (Lavazza 2016).
Others put forth a conception of agency informed by
complex interactions between brain and environment,
and regard capacity as existing on an imprecise multi-
factorial continuum influenced by variance in neuro-
chemistry and neural circuitry. Answers with respect
to capacity for criminal responsibility seem clear at
the extremes of this continuum—for example some-
one striking a bystander while having a seizure could
not be considered capable of criminal responsibility
for such an action. Challenges arise, however, in
attempting to assert clear binary thresholds between
capacity and incapacity.
While neuroscience can provide increasingly
robust, replicable descriptions of brain functions rele-
vant to criminal responsibility, it cannot “objectively”
prescribe the location of the threshold between cap-
acity and incapacity. Neurotechnology may be able to
effectively subcategorize an individual’s, such as
Whitman’s, cognitive ability to comprehend, and
appropriately respond to, morally relevant informa-
tion. Assessment of the level of functional deterior-
ation at which one deems the individual incapable,
however, fundamentally embeds values, and in doing
so engages with domains beyond the realm of neuro-
science. In other words, this assessment and determin-
ation of a threshold level of “capability” takes what is
objective (the functional deterioration) and entails a
subjective judgment of whether it is moral and just to

deem an individual with such character-
istics incapable.
Further, we must recognize the limitations inherent
in utilizing neurotechnological outputs as the primary
determinant of capacity for criminal responsibility.
While the perspective neurocriminology provides is of
relevance to the pursuit of criminal justice, it is funda-
mentally insufficient without an understanding of the
accused’s broader personal and sociopolitical context
(Fallin, Whooley, and Barker 2019). Returning to the
case of Whitman, we see that knowledge of the
tumor’s presence and location can and must inform a
full account of his criminal capacity, but it cannot
comprise the account in its entirety. Nor can it pro-
vide conclusive answers with respect to his capacity
for criminal responsibility, regardless of the granular-
ity with which its neurological consequences might
be assessed.
NEUROETHICS AS A GUIDING FORCE
The nature of the interconnection between the brain
and human agency provides neuroethics with an
expansive scope interacting, alongside neuroscience,
with numerous domains of human activity (McCoy
et al. 2020). As Dubljevic and colleagues describe,
neuroethics has a critical role to play in situating neu-
rotechnology in its social and political context, and in
guiding the ways in which neurotechnology is both
developed and deployed. In the context of neurocrimi-
nology, this role is clearly manifest in the task of iden-
tifying the value judgments inherent in translating
between data and labels of capacity. Neuroethics must
act to ensure that neurotechnology does not mischar-
acterize such judgments as “objective,” and in doing
so reduce complex and subjective moral decisions to
mere data-driven thresholds.
At the same time, neuroethics has a role to play in
explicating insights from neuroscience and highlight-
ing the ways in which they may challenge preexisting
moral intuitions and sociopolitical structures. There
would be an evident absurdity in, for example,
attempting to robustly deem individuals with 35%
reduction in blood flow to moral circuitry incapable,
while those with a 34% reduction remain fully cap-
able. Increasing understanding of the continuums of
human neurological function exists in inherent ten-
sion with the binary determinations that the criminal
justice system, as currently constructed, is called upon
to make. Neuroethics must act to identify these ten-
sions and their implications, and to advocate for
AJOB NEUROSCIENCE 27
sociopolitical moral structures that take into account
the emerging insights of neuroscience into account.
Neurocriminological determinations made by
forensic psychiatrist such as “capacity” are ultimately
value-laden because the very concept of “capacity for
criminal responsibility” embeds values. At the individ-
ual level, a forensic psychiatrist’s labeling of an
accused as “capable” embeds preconceived notions of
their responsibility and therefore their guilt, and thus,
these labels must be applied cautiously and with a
conscious recognition of their weight. At the broader
societal level, decisions regarding the identity of these
thresholds would have significant implications for the
proportion of accused deemed capable in ambiguous
cases. Moreover, establishing these thresholds may
enhance the reliability and impartiality of penal praxis
by reducing human approximation from the sentenc-
ing process. To inform such decisions with the most
advanced and best-validated neurotechnology is essen-
tial; yet to cede these decisions to such technology
altogether would be to abdicate moral responsibility
and hide beneath the obscurant veil of scien-
tific complexity.
The ability of neuroethics to highlight these
embedded value judgements is crucial to our naviga-
tion of the nebulous continuums of objective neuro-
criminological data analysis and the discrete realities
of practical penal decision-making. Neuroethics must
act to inform both the development and deployment
of these neurotechnologies in order to ensure that
they are able to guide the moral process of judging
capacity for criminal responsibility without supersed-
ing it.
FUNDING
The author(s) reported there is no funding associated with
the work featured in this article.
ORCID
Stacy S. Chen http://orcid.org/0000-0003-0827-5175
Liam G. McCoy http://orcid.org/0000-0002-4468-2256
Connor T. A. Brenna http://orcid.org/0000-0002-
6126-3897
Sunit Das http://orcid.org/0000-0002-2146-4168
REFERENCES
Burns, J. M., and R. H. Swerdlow. 2003. Right orbitofrontal
tumor with pedophilia symptom and constructional
apraxia sign. Archives of Neurology 60 (3):437–40. doi:10.
1001/archneur.60.3.437.
28 OPEN PEER COMMENTARIES
Darby, R. R., A. Horn, F. Cushman, and M. D. Fox. 2018.
Lesion network localization of criminal behavior.
Proceedings of the National Academy of Sciences of the
United States of America 115 (3):601–6. doi:10.1073/pnas.
1706587115.
Dubljevic, V., K. Trettenbach, and R. Ranisch. 2022. The
socio-political roles of Neuroethics and the case of
Klotho. AJOB Neuroscience 13 (1):10–22.
Eagleman, D. 2011. The brain on trial. The Atlantic 7:
112–123.
Fallin, M., O. Whooley, and K. K. Barker. 2019.
Criminalizing the brain: Neurocriminology and the pro-
duction of strategic ignorance. BioSocieties 14 (3):438–62.
doi:10.1057/s41292-018-0135-y.
General Principles of Criminal Responsibility. Texas Penal
Code. § 8-8.01 1994. https://statutes.capitol.texas.gov/
Docs/PE/htm/PE.8.htm
AJOB NEUROSCIENCE
2021, VOL. 13, NO. 1, 28–30
https://doi.org/10.1080/21507740.2021.2001091
OPEN PEER COMMENTARIES
Eugenic Technologies Are Developed in Eugenic Eras: Why We Must Include
Historical Circumstances in Socio-Political Perspectives for Neuroethics
Sara M. Bergstressera
Columbia University
While I applaud this article’s (Dubljevic et al. 2022) com-
pelling arguments for the inclusion of a socio-political
perspective as central to neuroethics, I argue here that
they have not gone far enough. The historical circum-
stances of neurological developments are also an essential
part of understanding this socio-political perspective. In
addition, to understand the full socio-political context of
new technologies, it is also important to realize that every
technology emerges in a particular time and place, where
basic assumptions about humanity, the ideal society, gen-
etics, heredity, and desirable human characteristics may
starkly contrast with the prevailing attitudes that exist
today. The eugenic era, for example, did have particular
political neurodiscourses that were consistent with the
prevailing political discourses, emphasizing a hierarchy
among people. Certain types of people, with their corre-
sponding genes and brains, were seen as superior, and
those deemed inferior, with their inferior genes and
inferior brains, were subject to discrimination,
CONTACT Sara M. Bergstresser SB2715@columbia.edu Columbia University, Program in Bioethics, 2970 Broadway, 504 Lewisohn Hall, New York,
NY10027, USA
ß 2021 Taylor & Francis Group, LLC
Hengartner, M. P., and S. N. Lehmann. 2017. Why psychi-
atric research must abandon traditional diagnostic classi-
fication and adopt a fully dimensional scope: Two
solutions to a persistent problem. Frontiers in Psychiatry
8:101. doi:10.3389/fpsyt.2017.00101.
Lavazza, A. 2016. Free will and neuroscience: From explain-
ing freedom away to new ways of operationalizing and
measuring it. Frontiers in Human Neuroscience 10:262.
doi:10.3389/fnhum.2016.00262.
McCoy, L. G., C. Brenna, F. Morgado, S. Chen, and S. Das.
2020. Neuroethics, neuroscience, and the project of
human self-understanding. AJOB Neuroscience 11 (3):
207–9. doi:10.1080/21507740.2020.1778127.
Raine, A., and Y. Yang. 2006. Neural foundations to moral
reasoning and antisocial behavior. Social Cognitive and
Affective Neuroscience 1 (3):203–13. doi:10.1093/scan/
nsl033.
sterilization, and sometimes death. This eugenic dis-
course had many profound implications for technological
development; suppressive technologies were destined to
control supposed undesirables, and other technologies
were designed as a means to counter the violent politics
of the day.
Dubljevic et al. (2022) use the example of neurosci-
entist Jose M. R. Delgado, who developed a radio-con-
trolled brain implant meant for “Physical Control of
the Mind” in the mid-twentieth century. They point
out that Delgado was sensitive to ethical issues that
could arise from the use of his “mind control” tech-
nology, and he knew that regulation might eventually
be needed. While this shows a forward-thinking atti-
tude from Delgado, it does not mean that the design
and proposed usage of his technology were not funda-
mentally shaped by the socio-political contexts of the
day, potentially in some ways understood and others
unrecognized by the researchers involved.