American Journal of Law & Medicine

Punishment, freedom, and the culture of control: the case of brain imaging and the law.(Brain Imaging and the Law)

I. INTRODUCTION

The centrality of freedom as a philosophical construct is often neglected in contemporary academic circles and popular media outlets when it comes to discussions of crime, criminals, and the criminal law. (1) This is surprising, especially since freedom--its absence or its presence--is an important ethical dimension underpinning all transgressive acts, including delinquency and crime. (2) More specifically, the notion of freedom problematizes wayward conduct because transgression can (and does) emerge from freedom's limits rather than its excesses. (3) What this suggests, then, is that criminality is not necessarily an artifact of one's autonomy gone awry or of making "bad" choices; rather, criminality may be a moment of self-discovery, transformation, and transcendence in which a "critical freedom" is borne. (4) This is a period marked by living life on the edge; of contesting thresholds and boundaries in which "a plethora of original ideas, thoughts, inventions, new forms of resistance, and so forth" emerge. (5)

Complicating this more visceral and cathartic experience of criminality qua critical freedom, is the increasing presence and deployment of state-sanctioned mechanisms of surveillance. (6) These techniques of containment extend throughout various facets of social life (e.g., relaxed civil commitment statutes; (7) city-wide sweeps for the homeless; (8) heightened border patrol efforts targeting illegal immigrants; (9) electronic home monitoring of paroled offenders; (10) surveillance of non-criminal suspects (11) and function to neutralize the presumed corrosive effects of a perceived expanding risk society. (12) In a more politically charged context, however, this culture of control aims to discipline the subject, (13) to territorialize knowledge, (14) and to promote automaton conformity, (15) all in the interest of preserving prevailing economic arrangements and status quo dynamics.

The question, then, is whether the new technologies--particularly those emanating from brain biology and cognitive neuroscience (16)--further relegate the individual to the status of a mere body of utility consistent with the culture of control and the political and economic interests of the state. (17) Moreover, the question is whether the sustained presence of a critical freedom--notwithstanding its active and deliberate engagement with new forms of pleasure, excess, resistance, and extremism--may be symbolic of the limits of personal and public autonomy traceable to an overly organized and largely scripted hyper-real society. (18) This particular issue draws attention to the use of functional magnetic resonance imaging (fMRI) (19) as a mechanism of surveillance that increasingly is deployed, marketed, and simulated, and as a sophisticated tool of cultural materialist society that produces a pseudo-reality. This is a virtual state of existence that, knowingly or otherwise, commodities, technologizes, and, eventually, re-ontologizes the individual. (20) If the above queries are answered in the affirmative, then a host of ethical concerns about the limits of these innovative technologies as appropriated in diverse societal contexts (especially their applications in the criminal law), emerge.

This Article examines these issues within the framework of critical social theory and philosophical criminology, (21) with particular focus on the use of fMRI brain-scanning technology as emblematic of the culture of control. For exemplification purposes, this Article showcases the application of this technology in the case of interrogating criminal suspects as well as offenders.

Section II presents background information on the deployment of this new technology in the domain of criminal justice. This commentary summarily describes the projected use, scope, and goals of relying on fMRI advances as developed in brain biology and cognitive neuroscience, particularly as an innovative tactic to illicit information from potential or actual trangressors. Section III presents selected insights from critical social theory and philosophical criminology. Foucault's assessment of power, Baudrillard's treatment of culture, and Fromm's examination of freedom inform the analysis. These observations constitute the theoretical lens through which the subsequent critique unfolds. Section IV features the relationship among punishment, freedom, and the culture of control. At issue here are the conceptual shortcomings of relying upon fMRI brain scanning technology as a novel strategy by which to extract information from criminals or suspects, and to police wayward (or potentially transgressive) conduct. These limitations return the discussion to the origins of criminality and to the punitive or harmful status of utilizing technology that effectively disciplines and undoes the subject while reifying circumscribed views on crime etiology. Section V describes the ethical implications of fMRI technology as appropriated in the criminal law. These implications address the hegemonic effects of the legal system's misplaced dependence on science and include: (1) territorializing the mind/body; (2) contributing to and legitimizing the cycle of transgression; and (3) promoting the "industry" of crime and its control. The significance of such ethical fall-out is reconsidered in light of the punishment-freedom relationship.

II. fMRI TECHNOLOGY: CRIMINAL JUSTICE APPLICATIONS

The science of fMRI represents a type of "psychiatric neuroimaging." (22) As a form of technology, snapshots or "movies of brain activity" are produced. (23) In other words, fMRI scanning provides "near-real time, ultra-high resolution, computer-generated models" of brain behavior and processes. (24) These structural scans of the brain permit the operator of this instrument to observe "a subject's neural response to cognitive or sensory-motor tasks." (25) These tasks are linked to how the brain reacts when presented with a series of questions, (26) and these reactions themselves constitute what is measured. (27) Thus, the operator of an fMRI device can, quite literally speaking, view how "the subject's brain thinks." (28)

In the context of several neurological diseases or afflictions such as Alzheimer's, epilepsy, schizophrenia, insomnia, and dyslexia, the painless and non-invasive exposure of patients to fMRI technology facilitates prudent and efficacious decisions about drug therapy and other forms of palliative treatment. (29) However, in the case of interrogating suspects of criminal wrongdoing or extracting information from actual violators of the law, the impact of using fMRI neuroscience is considerably more debatable. (30) Some investigators suggest, however, that the future of psychiatric neuroimaging portends worthwhile applications in such practice fields as lie detection (or polygraph) technology, (31) counterterrorism or counter-insurgency surveillance strategies, (32) interrogation efforts of U.S. detainees held in custody either domestically or internationally, (33) and capital punishment determinations for juveniles under the age of 18 convicted of capital crimes. (34) These and other criminal justice applications represent a burgeoning trend in cognitive neuroscience to pinpoint, with increasing levels of scientific and objectivist precision, how the activities of the brain underscore the thoughts and actions of the individual, making determinations of criminal culpability a matter of understanding the fundamentals laws of human biology. (35) Thus, questions of free will and personal responsibility are rendered artifacts of presumably obsolete philosophical speculation; speculation that lacks the requisite scientific guidance that is traceable to the "rules of the physical world." (36)

In each of the above-referenced criminal justice examples, the mechanism of interest-balancing typically guides the jurisprudential analyses as the legal community endeavors to weigh the security demands of the state against the privacy rights of the individual. (37) The dual role of the forensic neuropsychiatrist to maintain, in the name of justice, responsibilities to clinical science and necessary commitments to patient care, contributes to the complexities of this decision-making process. (38) Moreover, in the instance of fMRI technology, these values of promoting the common good versus preserving personal autonomy--at times cast as seemingly incommensurable (39)--hinge on a number of thorny ethical concerns that are only now beginning to receive much needed critical attention.

Of these concerns, the most difficult to answer (though most pressing for present purposes) is whether the use of fMRI brain-scanning technology represents a form of coercion, particularly when its purpose is to extract information from criminal suspects or actual offenders against their volition. (40) This issue draws attention to the nature of coercion in ultramodern society; (41) that is, in a mass-mediated, materialist age of conspicuous sign-exchange consumerism. (42) This matter implicates the delicate relationship among punishment, freedom, and the culture of control. (43) However, before these topics can be systematically examined, background on the theoretical lens through which the subsequent analysis will unfold is warranted.

III. CRITICAL SOCIAL THEORY AND PHILOSOPHICAL CRIMINOLOGY

A. FOUCAULT ON POWER, KNOWLEDGE, AND THE BODY

Michael Foucault, a philosopher and historian, revisited the trajectory of his disputation on power time and again throughout his intellectual life. (44) His conviction that "power [expressed through words] produces; it produces reality, it produces domains of objects and rituals of truth" was at the center of this exploration. (45) It is in this context that his critique of power--particularly as a discursive mechanism for social control, surveillance, and disciplining (i.e., punishment)--becomes most germane to the present inquiry. (46)

Foucault systematically demonstrated that the nature of punishment in society represents "a system of power and regulation which is imposed upon a population." (47) In the modern era, this system of governmental or state-sponsored domination is built around regulatory institutions (e.g., the legal, the psychiatric, the penal, the medical), that promote particularized regimes of knowledge/truth whose effect is the panoptic inspection, disciplining, and normalization of the subject. (48) For Foucault, this condition of discursive power, as embedded in dominant discourses and as a form of knowledge/truth, was both pervasive and insidious, including its operation in the realm of medical justice. (49)

Foucault's treatment of power, mobilized and activated through speech codes or communicative systems, indicates that the symbiosis of language as power was itself a form of ideology. (50) Ideology or the regimes of knowledge/truth to which Foucault referred included "doctrinal texts" as well as "discursive practices" that reconstituted privileged standpoints into "lived experience." (51) These lived experiences, as "strategies of power" (52) or as expressions of ideology, seep unconsciously into the bodily core of the individual and signify a type of "biopower" or a "microphysics of power." (53) It is at this point that the mechanisms of power (e.g., the grand narrative of science as the arbiter of truth, reason, and justice) exert their material will and force on the subject's "soul." (54) Indeed, as Foucault, observed, "in thinking of the mechanisms of power, I am thinking rather of [their] capillary forms of existence, the point where power reaches into the very grain of individuals, touches their bodies, and inserts itself into their actions and attitudes, their discourse, learning processes, and everyday lives." (55)

For Foucault, whether exploring the genealogy of madness, (56) medicine/science, (57) sexuality, (58) or penology, (59) this emphasis on the techniques or strategies of institutional power not only defined the subject, but the structural relations and human actions of which subjects were a part. (60) These apparatuses, increasingly inventive, productive and technical, were themselves emblematic of a culture of "domination and subordination;" (61) a sort of internal political essentializing in which the organization of power and its concrete forms subjected the individual's soul to the unfettered and normalizing gaze of panoptic governmental authority. (62) Thus, Foucault's account of power as knowledge/truth, of the body as territorialized by the state, and of the instruments and techniques of control they entailed, represented "a prolonged assault" on what he took to be "the myths of the Enlightenment" and the development of Western civilization. (63) In both instances, the icons of modernist reasoning (e.g., positivist science, truth, progress) were all understood through the totalizing and oppressive exercise of power.

B. BAUDRILLARD ON SIMULATIONS, HYPER-REALITY, AND SIMULACRA

The ontological effects of Foucault's thesis on power, knowledge, and the body were critically embraced and radically explicated in the work of Jean Baudrillard, a sociologist whose theoretical work impacted the study of culture, the media, and contemporary society. (64) Much like Foucault, Baudrillard maintained that "social texts" (e.g., the discourses of science, law, fashion, and politics) were the locus of disciplinary control; (65) however, for Baudrillard, the ontological statuses of these texts were themselves the subject of considerable examination. (66)

For Baudrillard, social texts refer to the mass-mediated messages of our times; smartly crafted consumable images that signify "the passage out of the metallurgic into the semiurgic society." (67) These media-manufactured messages operate at the level of simulation; that is, they are efficacious discourses or stylized word and sound re-presentations of the 'real world' "dispersed in everyday life" that are taken to be more authentic, more factual, and, thus, more legitimate than the reality on which they are based. (68) This is because simulations as social texts possess sign-exchange value. (69) Sign-exchange value refers to "the process of symbolic exchange in a consumer-oriented society." (70) This is a world in which counterfeit realities or imitations of the authentic--replicated, reproduced, and circulated--are consumed and devoured for their representational, although temporary and conditional, meanings. (71)

As consumable symbolic meanings abound, these image objects and their corresponding sign-exchange values become hyper-real social texts. (72) But as these imitations of the real infiltrate "people's sentient environments," (73) the divide separating the reality and appearance-dichotomy vanishes, (74) creating the realm of "simulation proper." (75) During the stage of simulation proper, imitation models of the real "come to constitute the world, and overtake and finally 'devour' representation." (76) However, the grounding of the artificial, the counter-factual, and the replica is itself undone because these are "mere representations of an intangible, unreal existence. …

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