Two years ago, an Italian appellate court made the news by reducing the sentence of a murderer, Abdelmalek Bayout, based on brain scan evidence and on his possession of certain genetic variations, including the “low activity” version of the MAO-A gene.  Nature 2009.  The trial court had cut about three years off of what was expected to have been a 12 year sentence because of issues of mental illness; the appellate court, after getting a more detailed report, shortened the sentence by yet another year.

On September 1, Nature’s blog reported an even more extreme case from Italy.  Nature 2011.  In 2009 Stefania Albertani pleaded guilty to murdering her sister, burning her body, and attempting to murder her parents.  Two psychiatric reports reached opposite conclusions, so the defense brought in a new team, that added neuroimaging and genetic analyses.  They concluded, based on structural MRIs,  that the defendant had abnormalities in her anterior cingulate cortex and her amygdala, when compared to 10 healthy female controls.  They also found that she had the low activity version of MAO-A.  The trial court reduced her sentence from life in prison to 20 years, finding that this evidence proved partial mental illness. (See also the write-up in the New Scientist’s blog.  New Scientist 2011.)

I am certainly not an expert on the Italian criminal justice system –  the idea of sentence reductions for “partial mental illness” seems strange to me.  I do know that American academics who have looked at the issue are generally quite skeptical about the uses of brain imaging, or genetic status, to limit criminal responsibility or to mitigate punishment.  Stephen Morse, in particular, has been eloquent on this point.  I share that view, subject to only very, very limited exceptions (set out in my chapter in Law and Neuroscience, Current Legal Issues 2010, Vol. 13 (ed. Michael Freeman, Oxford University Press, 2011)).

That has not stopped American criminal defense lawyers from trying to use these techniques – several American law professors – Nita Farahany, Susan Wolf, and Deborah Denno – have been collecting decisions in such efforts – but so far with very little success.  It would be interesting to know what aspects of Italian law or culture have made at least two such efforts partially successful.

Thanks to Melina Uncapher, via Anthony Wagner,  for pointing out this story.

Hank Greely