Vanderbilt Lawyer - Volume 37, Number 1

Professor Nita Farahany: Mind Games

by Grace Renshaw Professor Nita Farahany

Nita Farahany's recent column in the Washington Post, "The Government Is Trying to Wrap Its Mind Around Yours," addressed a fear that has thus far been limited to science fiction: the loss of privacy due to invasive technology.

Technology that identifies patterns of behavior deemed potentially "suspicious" - such as people loitering in a secure area or someone leaving a package unattended - is already in use, and current imaging technology can identify the areas of the brain activated by different types of thoughts or activities.

Farahany believes the line where an individual's right to privacy trumps society's right to protect itself is a debate Americans should engage in now, before "pre-crime" technology evolves to an intrusive level. "We postpone at our peril confronting the ethical and legal dilemmas [such technology] poses for a society that values not just personal safety but civil liberty as well," she writes.

Farahany is uniquely qualified to address the legal implications of technology developed for the express purpose of predicting criminal behavior. After earning her undergraduate degree in genetics, cell and developmental biology at Dartmouth, she earned a master's degree in biology from Harvard and a law degree, M.A., and Ph.D. in philosophy of biology and philosophy of law from Duke. Her doctoral dissertation, "Rediscovering Criminal Responsibility through Behavioral Genetics," explored the use of behavioral genetics in criminal law from both scientific and philosophical perspectives, and her master's thesis, "Prescribing Culpability," addressed the implications of using scientific criteria to define legal concepts.

Scientific developments inevitably have legal implications, and according to Farahany, issues often arise because policymakers understand either the science or the legal system, but rarely both. "Even when they do understand both, they often fail to address the ethical or philosophical issues at stake," she says. "We need to approach legal and policy decisions with a full understanding of all three perspectives, asking, 'What does the science tell us?' and 'Why is the law the way it is?', and only then "Should it be changed, and how?'"

In her dissertation, she raised questions about attempts by criminal defendants to use behavioral genetics and neuroscience to negate responsibility for criminal conduct or to mitigate their punishment. "Because of how little the science tells us about individuals, and the rationale for how we hold people responsible for their actions, behavioral science is unlikely to change who we hold criminally responsible," she says. "By the same token, we must ask whether behavioral predispositions to certain kinds of conduct make individuals less morally culpable. Or perhaps give us insight into predictions of future dangerousness. Every behavior has a genetic and an environmental component. Behavioral sciences will require that we decide: Are we going to treat people who express predispositions for criminal behavior more mercifully or harshly?"

Farahany joined Vanderbilt as an assistant professor of law and philosophy in 2006. She is the editor of a forthcoming book, Genes and Justice: The Impact of Behavioral Genetics and Neuroscience on Criminal Law.