As I mentioned yesterday, I just presented at a two-day conference in New York City on Law and the Brain. My talk, which focused on the empirical use of behavioral genetics and cognitive neuroscience in U.S. criminal law, was followed by an interesting panel discussion with two fantastic speakers, Amanda Pustilnik and Ken Murray. Professor Pustilnik had some insightful and provocative claims about whether violence is a social construct and the consequent likelihood of finding neural correlates of violence. Ken Murray is a Federal Public Defender in Arizona, who has litigated many of the most high profile cases involved behavioral genetics and cognitive neuroscience. He provided important insights about the double-double-edged sword of behavioral science evidence, and the “CSI” effect that is of growing concern.

One issue that arose during the panel discussion and the question and answer session that followed is the extent to which cognitive neuroscience is relevant to the civil commitment of sexually violent predators. This is a topic that I have discussed previously on the blog, and one that arises in the case presented today. In many of these cases, the state, and not the criminal defendant, has introduced neurological evidence to substantiate a finding of future dangerousness to justify either new civil commitment or ongoing commitment. This case illustrates a defendant seeking to attribute his behavior to a brain injury rather than pedophilia, and that strategy failing if not backfiring.

SVP, Brain Injury, Future Dangerousness
People v. Chester, 2011 WL 782486 (Cal.App. 2 Dist. 2011)
Appellant was committed in 2009 as an sexually violent predator (SVP). One year later, he petitioned the court for conditional release by transfer to “an appropriate community treatment program,” on the ground that the state facility in which he was committed could not provide appropriate treatment. In support of the petition for conditional release, three psychologists declared that appellant suffered from a brain injury in the 1980’s for which the present facility could not provide appropriate treatment. They had examined appellant between 2004 and 2006. They declared that he did not suffer from pedophilia and that his inability to control his impulses resulted from his brain injury and other, non-qualifying, disorders. They did not offer any opinions on his dangerousness or the likelihood that he would reoffend, in any treatment setting. Shortly thereafter, the Department of Mental Health submitted an evaluation and report that concluded the appellant continued to suffer from pedophilia and that the community’s safety could not be assured if he were in a less restrictive treatment setting. The psychologist who examined him declared that his mental disorder continued to make him a danger to the health and safety of others and that it was likely he would engage in sexually violent criminal behavior. On appeal, the court found no abuse of discretion by the lower court when it denied a hearing because the petition was completely without merit. The petition did not address the central requirement for conditional release: absence of danger to others under supervision and treatment in the community. A court may grant conditional release only if it “determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision … in the community.” Appellant’s petition offered no proof that he would not be a danger to the health and safety of others or that he was unlikely to engage in sexually violent criminal behavior if he were under supervision and treatment in the community. Therefore, the denial of hearing for his petition for release was affirmed.