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3
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Library of Congress Cataloging-in-Publication Data

Bioprediction, biomarkers, and bad behavior : scientific, legal, and ethical challenges / edited
by Ilina Singh, Walter P. Sinnott-Armstrong.
pages cm. — (Oxford series in neuroscience, law, and philosophy)
Includes bibliographical references and index.
ISBN 978–0–19–984418–0 — ISBN 978–0–19–932144–5 — ISBN 978–0–19–932145–2
1. Criminal behavior—Genetic aspects. 2. Mental illness—Genetic aspects.
3. Genetic markers—Social aspects. 4. Psychology, Pathological.
I. Singh, Ilina. II. Sinnott-Armstrong, Walter, 1955–
HV6047.B56 2014
362.2′4—dc23
2013011019

9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
CONTENTS

Foreword vii
Philip Campbell

Contributors xi

1. Introduction: Deviance, Classification, and Bioprediction 1

Ilina Singh and Walter P. Sinnott-Armstrong

2. Behavioral Biomarkers: What Are They Good For? Toward the Ethical
Use of Biomarkers 12
Matthew Baum and Julian Savulescu

3. Bioprediction in Youth Justice 42

Charlotte K. Walsh

4. The Inclusion of Biological Risk Factors in Violence Risk Assessments 57

John Monahan

5. Bioprediction in Criminal Cases 77

Christopher Slobogin

6. The Limits of Legal Use of Neuroscience 91

Colin Campbell and Nigel Eastman

7. Rethinking the Implications of Discovering Biomarkers for Biologically

Based Criminality 118
Paul Root Wolpe

8. MAOA and the Bioprediction of Antisocial Behavior: Science Fact

and Science Fiction 131
Joshua W. Buckholtz and Andreas Meyer-Lindenberg
vi CONTENTS

9. Genetic Biomarker Research of Callous-Unemotional Traits in

Children: Implications for the Law and Policymaking 153
Essi Viding and Eamon McCrory

10. The Neural Code for Intentions in the Human Brain 173
John-Dylan Haynes

11. Biomarkers: Potential and Challenges 188

Michael Rutter

12. Neuroimaging-Based Automatic Classification of Schizophrenia 206

Vince D. Calhoun and Mohammad R. Arbabshirani

Index 231
FOREWORD

BIOPREDICTION HOPES AND HYPES

Each week, the journal Nature sends out press releases about its research
papers to hundreds of journalists around the world. Press releases include the
following preamble:

We take great care not to hype the papers mentioned on our press releases,
but are sometimes accused of doing so. If you ever consider that a story has
been hyped, please do not hesitate to contact us at [email protected], citing
the specific example.

Bioprediction is one topic around which there is recurring hype by scien-

tists and nonscientists alike. The present book represents an excellent compen-
dium of knowledge and research around bioprediction of forms of problematic
behavior. If there is one recurring motif it is, indeed, “don’t hype!”
Some of the hype to be found around bioprediction is blatant; some is more
subtle. In cutting through the hype, this book surely succeeds in its princi-
pal intention: to provide a timely overview of newly emerging knowledge
and uncertainties around the neuroscience, genetics, and psychology of ‘bad
behavior’, and of the manner in which those in society are approaching or
should be approaching such developments.
The end achievement is not to minimize or maximize the concerns about the
use of biomarkers to predict “bad” behavior, but rather to place these concerns
in their proper multidisciplinary context. And that multidisciplinarity is an
unusual strength of this collection.
For example, anyone reading this book will understand how, in the United
States at least, there is a likelihood that bioprediction techniques will be invoked
in legal frameworks despite strong warnings from scientists about the limita-
tions in our understanding of them. The grounding of this volume in that legal
context is one of its particular strengths. I would guess that few researchers
in psychology and in psychiatric biomarkers and perhaps even in bioethics
viii F OR EWOR D

are aware of how the U.S. deployment of risk indicators for offending and
reoffending is structured and how it might variously develop in the different
states and then affect the law in other countries. Another context that is briefly
mentioned is the sheer cost of violence and therefore the power of the incentive
to reduce it. The economic impacts of mental illness, criminality, and violence
rightly have a place in discussions about the development of technologies to
reduce or to prevent these societal problems. The difficulty, of course, is when
economic projections are given overly much weight in calculations of the soci-
etal ‘burden’ of these issues, as compared to equally important understanding
of the social drivers that, along with biological risk factors, shape pathways to
mental illness, criminality, and violence.
Another value in this collection lies in the accounts of biomarker develop-
ment. Complementary accounts of genetics and imaging—some general, some
usefully focusing closely on case studies of particular biological clues—are
replete with due warnings of difficulties in replication and uncertain chains of
logic. Nevertheless, one can sense that the power seems to be potentially there
for biomarkers that will eventually sit alongside age and gender as risk factors
for violent behavior.
As a frequent reader of the ethical discussions that surround new technolo-
gies, and especially biomarkers, I am struck by how repeatedly concerns are
appropriately aired about future scenarios and yet how seldom these concerns
are elaborated and sharpened by active exploration. Perhaps philosophers and
ethicists are suspicious of focus groups and polls, dismissing them as mere
futurology. But imagine that one was to produce a serum biomarker that indi-
cated that a particular 13-year-old child has a 30 percent possibility of develop-
ing, say, a psychotic disorder that would lead to full-blown schizophrenia at
the age of 22. It would seem to me to be a worthwhile exercise to instigate a
workshop in which this scenario is discussed by a group of people for whom
children are a day-to-day professional preoccupation: parents, teachers, social
workers, police, physical and mental health services, technology regulators . . . .
And included in that room would be researchers into such biomarkers, so that
their perspective can influence and be influenced by these potential worlds
brought about by their interventions. And yet how often have such people been
brought together to discuss such a scenario? Illuminated by that discussion,
how might one sharpen ethical discussions, with the aim of broadening the
range of biomarker research and of anticipating regulatory needs? There have
been such participatory exercises in anticipatory governance, but such efforts
do not seem to have developed traction despite claims that they can generate
new perspectives (e.g., Guston, 2011).
Foreword ix

Support for such deliberations, and perhaps support for biomarker research
itself, can only be damaged by hype. So what are the various hypes one should
beware of? This book contains alerts about the following:

Hyping biomarker signatures as measured

Hyping the certainty of scientific papers
Hyping the chain of inference that leads (or usually doesn’t) from a statistical
assessment to considerations of an individual
Hyping the clarity (in fact absent) in the links from genes to endopheno-
types to phenotypes
Hyping the ethical concerns surrounding potential scientific and technolog-
ical developments by omitting discussions of the positive ethical benefits
Hyping the importance of biomarkers by neglecting to inclusively consider
other risk factors

No doubt some will plausibly argue that the competitive character of research
encourages such hype, and certainly high-impact journals such as Nature need
to be ever vigilant against overstated claims for the validity of biomarkers. What
is more, despite many claims that multidisciplinary research needs encourage-
ment, it has proved chronically difficult to bring the various disciplines together
in a way that received due funding and due credit.
With these challenges in mind, this volume represents a valuable outcome of
an admirably inclusive project.
Philip Campbell
Editor in Chief, Nature

REFERENCE
Guston, D. (2011). Participating despite questions: toward a more confident participa-
tory technology assessment. Science and Engineering Ethics, 17(4), 691–697.
This page intentionally left blank
CONTRIBUTORS

Mohammad R. Arbabshirani John-Dylan Haynes

The Mind Research Network, Bernstein Center for Computational
Albuquerque, NM, USA Neuroscience, Charité–
Department of ECE, University Universitätsmedizin, Berlin
of New Mexico, Albuquerque,
Nigel Eastman
NM, USA
Emeritus Professor of Law and
Matthew Baum Ethics in Psychiatry, St George’s,
Oxford Centre for Neuroethics and University of London, London, U.K.
Oxford Uehiro Centre for Practical
Eamon McCrory
Ethics, University of Oxford,
Reader in Developmental
Oxford UK
Psychopathology, Consultant
Joshua W. Buckholtz Clinical Psychologist
Department of Psychology, Harvard Division of Psychology and Language
University, Cambridge, MA, USA Sciences, University College,
London, UK
Vince D. Calhoun
The Mind Research Network, Andreas Meyer-Lindenberg
Albuquerque, NM, USA Central Institute of Mental Health,
Department of ECE, University Mannheim, Germany.
of New Mexico, Albuquerque, Department of Psychiatry and
NM, USA Psychotherapy, University of
Heidelberg, Germany
Colin Campbell
Department of Forensic and John Monahan
Neurodevelopmental Science, University of Virginia School of Law,
Institute of Psychiatry, King’s Charlottesville, VA, USA
College London, London, UK
Michael Rutter
Centre for the History of Medicine,
University College, London, UK
xii CONTRIBUTORS

Julian Savulescu Essi Viding

Oxford Centre for Neuroethics and Professor of Developmental
Oxford Uehiro Centre for Practical Psychopathology
Ethics, University of Oxford, Division of Psychology and Language
Oxford UK Sciences, University College,
London, UK
Ilina Singh
Department of Social Science, Charlotte K. Walsh
Health, and Medicine, School of Law, University of
King’s College, London, UK Leicester, UK
Walter P. Sinnott-Armstrong Paul Root Wolpe
Philosophy Department and Center for Ethics, Emory University,
Kenan Institute for Ethics, Duke Atlanta, GA, USA
University, Durham, NC, USA
Christopher Slobogin
Vanderbilt University Law School,
Nashville, TN, USA
1

Introduction: Deviance, Classification,

and Bioprediction

I L I NA S I N G H A N D WA LT E R P. S I N N OT T- A R M ST R O N G

In August 2011, a Norwegian man, Anders Breivik, systematically planned

attacks on government officials and a political youth group. He proceeded to
execute 77 people, many of them teenagers tracked down and murdered at
close range. Afterwards, there was much discussion of whether Breivik would
be ruled insane. In pretrial hearings his demeanor was chillingly calm, even
proud. He insisted that he was sane, and that his actions were intended.
Approximately 1 year later, a U.S. graduate student in neuroscience, James
Holmes, systematically planned an attack on a local movie theater. He attended
the midnight showing of a film, The Dark Knight, and opened fire from the
front of the theater on the audience. Twelve people died. Again, there was much
discussion afterwards about Holmes’ sanity. However, in this case, by the time
the court convened to set a trial date, there were already rumors of Holmes’
gradual mental decline in the months before his murderous attack. At the court
hearing, he looked bewildered and dazed.
After people do terrible things, energy focuses on post hoc explanations and
assessments of the individual for purposes of punishment. For the moment,
these assessments are still largely made using what some see as crude tools,
including interviews with the person and reports from witnesses who observed
the person’s behavior during the crime and before. Rarely, but increasingly,
scientific evidence in the form of biological assays, brain scans, and genet-
ics penetrates the landscape of psychiatric and legal assessments to diagnose
mental fitness, assess culpability, and ensure just punishment.
2 B I O P R E D I C T I O N , B I O M A R K E R S , A N D B A D B E H AV I O R

Now imagine that, instead of post hoc explanations, there was a robust and
reliable scientific way to predict bad behavior of the sort that seriously violates
social norms. If it were possible to take biological and social data points from
individuals and calculate a risk for future antisocial or violent behavior, would
it be a good idea to do so? In which cases? Who should be told about the risks?
Which interventions are justified to minimize the risk that individuals are
deemed to pose to society?
This book investigates how scientific evidence from brain scans, genetics, and
other biological assays is likely to be used to diagnose and predict ‘bad’ behavior.
We call this process ‘bioprediction.’ We focus on antisocial and violent behavior
that is likely to result in criminal prosecution, on its theoretical precursors, and
on a subset of mental disorders that can be—but are by no means inevitably—
associated with an increased tendency to antisocial, criminal, or violent behav-
ior. One set of chapters provides expert reviews of the state of the science in
bioprediction of antisocial behavior and in diagnosis of mental disorders such
as psychopathy and schizophrenia. Another set of chapters focuses on social,
legal, and ethical analyses of the implications of translating the science into
practice—in families, communities, clinics, schools, and courtrooms. These
chapters simultaneously celebrate and interrogate scientific developments in
bioprediction and serve as a reminder that these developments occur as part
of a reciprocal relationship between science and those social institutions vested
with the adjudication of morality and immorality, crime and punishment. It is
this relationship that gives bioprediction its creative, material, and ethical force.

CLASSIFICATION OF BAD BEHAVIOR

Not all behaviors identified as ‘bad’ are as unambiguously awful as premeditated
mass murder of innocent citizens. A book on bioprediction of bad behavior
ought to consider how bad behaviors are identified, classified, and targeted as
part of intersecting scientific, sociopolitical, and legal agendas. Indeed, a reader
may have a reasonable concern about our emphasis on “bad behavior.” This may
indicate skepticism about the classification of deviant behaviors (a longstanding
sociological concern) or a worry that biological evidence will be used to reify
problematic classifications. We consider these to be important and relevant issues.
Classification of behaviors as deviant or criminal has shifted markedly over
time and continues to vary significantly across different contexts. Marriage
between persons of different races was once considered criminal behavior in
the United States; sex acts associated with homosexuality are still outlawed in
some areas; smoking, once a highly promoted social activity, is now illegal in
public places in most Western countries.
Introduction: Deviance, Classification, and Bioprediction 3

Moreover, deviant behaviors are also symptoms in a mental illness classifi-

cation system, such as the Diagnostic and Statistical Manual of the American
Psychological Association (DSM) (APA, 2004). This method of classifying devi-
ant behaviors has been criticized as a “medicalization” of deviance. Addiction
serves as a useful current example. For a century or more, addicts were judged
in moral terms and behaviors were thought to result from personally mutable
traits, such as weak or bad character. In the intervening years, addictive behav-
iors have been increasingly linked to neuronal and genetic biomarkers. Today,
the U.S. National Institute of Drug Addiction (NIDA) classifies addiction as
a “chronic brain disease,” and “addiction” is the preferred terminology (over
“substance use disorder”) for DSM 5 (O’Brien, 2011). This epistemological
shift from “badness” to “sickness” has arisen in part from technological and
scientific developments in genetics and neuroscience, including research into
biomarkers.
These changing accounts of deviant behavior have significant social and
economic consequences. When deviant behavior is classified under a con-
temporary DSM label, a gradual shift in the etiological narrative occurs, from
an emphasis on the moral dimensions of the person to a focus on biological
mechanisms and structures. DSM diagnoses have global impact in a way that
moral accusations cannot: they inform public health models of well-being, in
which mental disorders are viewed as “burdens” that carry significant social
and economic costs. But a DSM diagnosis does not only provide a new means
of classifying behavior; it is also meant to predict illness course and responsive-
ness to treatment. In an important sense, then, psychiatric diagnosis could be a
useful form of bioprediction.
From this perspective, the classification of some deviant behaviors as mental
disorders on the basis of valid evidence, and research into predictive biomark-
ers to aid in the diagnosis, treatment, and prevention of mental disorders, could
be seen as straightforward goods. However, the significant scientific contesta-
tion over DSM classifications has recently come to a head in a statement by the
Director of the National Institutes of Mental Health (NIMH) which declares
that NIMH will move away from scientific research based on DSM categories,
given their problematic validity (Insel, 2013). Indeed, in practice, DSM diag-
nosis of conditions that predict violent behavior is often problematic. Many
of these conditions are ambiguously defined and differentiated and, hence,
overdiagnosed in certain regions and in certain people and underdiagnosed
in others. When this is coupled with the fact that violence statistics are often
biased toward the poor and toward ethnic minorities, it becomes clear that the
intersection of psychiatric classification and deviance does not make for mor-
ally neutral territory.
4 B I O P R E D I C T I O N , B I O M A R K E R S , A N D B A D B E H AV I O R

A further consequence of the move to classify deviant behaviors as psychiat-

ric disorders is that it has become increasingly common to associate mental dis-
order with violent behavior. As we see in the two cases that open this chapter,
the response to inexplicable violence by an individual is almost immediately to
question both the actor’s mental status at the time of the crime, and whether
or not there is a longstanding but unrecognized mental illness. This easy con-
nection between violent behavior and mental illness potentially increases the
stigma of certain mental disorders, and indeed, the connection is reinforced in
countless crime novels, films, and television shows. At the same time, it is in the
public interest to know whether anyone could have predicted criminal behavior
and prevented it. The “treatability” question—the extent to which the person’s
tendency to behave badly can be managed successfully with interventions—is
answered in part by a valid diagnosis. Ideally, when we know enough, the diag-
nosis is supposed to tell us how the individual is likely to behave and what we
can do about it.

CLASSIFICATION IN THE LAW

Some nonmedical classifications of ‘bad behavior,’ such as ‘criminality’ and
‘violence,’ are freed of these particular accusations. Criminal categories, such as
first-degree murder, do not pretend to be predictions of future behavior. Instead,
they are descriptions of past behavior. In addition, legal definitions of crimes refer
to the agent’s mental states but not to their biological features: the agent’s brain,
hormones, and heart rate are never mentioned in criminal codes. Thus, unlike
medical categories, legal categories cannot be seen as a form of bioprediction.
Nonetheless, the law can use bioprediction at various points. Consider, for
instance, sentencing (discussed by Slobogin in Chapter 5). If we could place
convicted criminals into categories that reliably predict future criminal behav-
ior, then we could prevent more crime at less cost by giving longer sentences to
the dangerous few and shorter sentences to those who are not dangerous. The
problem is to come up with such predictive categories. If such legal categories
are overly inclusive and underly inclusive as well as ambiguously defined in the
same way as psychiatric categories, then sentences based on such categories will
not achieve their goals and could do much more harm than good. It is not clear
whether science can help the law by constructing predictive categories that will
be reliable enough.

BIOMARKERS AND BIOPREDICTION

We are not classificatory nihilists. We believe that the solution is not no clas-
sification but better classification. To the extent that bioprediction is developed