Next-Gen Crime and Punishment

What Science Says About Personal Responsibility, Jail Time, and More.

Nita A. Farahany, a scholar at the intersection of law, biosciences, and philosophy with particular interest in the ethical, legal and social implications of advances in genomics and neuroscience, joins the Duke Law faculty this fall with a joint appointment in the IGSP. She is a 2004 Duke Law graduate who also received her MA and PhD in philosophy from Duke. She returns to Duke from a faculty position at Vanderbilt University.

In a recent scholarly publication, entitled “Searching Secrets,” Farahany explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law and to predict how the Fourth Amendment will apply to emerging technology. In a companion article entitled “Incriminating Thoughts,” she demonstrates through modern neuroscience applications the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. She also is the editor of The Impact of Behavioral Sciences on Criminal Law, a book of essays from experts in science, law, philosophy, and policy.

A member of the Presidential Commission for the Study of Bioethical Issues, Farahany has taught classes and seminars relating to criminal law, criminal procedure, and other subjects at the junction of law and science. In the spring 2013 semester, she will teach Genetics and Reproductive Technology.

GenomeLIFE spoke to Farahany about what has inspired her return to Duke, how the rapid pace of scientific discovery is already influencing courtroom proceedings, and what she ultimately hopes to achieve through her work at the intersection of biology, philosophy and law.

GenomeLIFE: What brings you back to Duke?

Farahany: First and foremost, it’s the people. There is an incredible cross-section of people here interested in the intersection of law, science and society and I see tremendous opportunity to exchange ideas amongst a group that shares this common interest. This environment has been fostered by a really strong commitment to interdisciplinary work that was evident when I was a student here and since. Duke has done so much to lower the barriers to collaborative work across the university.

GenomeLIFE: How has Duke lowered those barriers, perhaps more than some other places?

Farahany: Part of it is places like the IGSP, which is designed to be interdisciplinary and is funded and celebrated as such. Other places often pay lip service to interdisciplinary work, but the institutional support and commitment isn’t there. There is often no reward for working at the intersection. You might be able to do interdisciplinary work on the side, but your primary work must be within a discipline. As a Duke student, I was able to create an interdisciplinary program relatively painlessly and to get credits recognized for a degree in philosophy based on coursework in philosophy, science and law. Lowering those barriers between disciplines and increasing funding at the support level makes a big difference.

GenomeLIFE: How did you find yourself on this interdisciplinary career path?

Farahany: I started out as many do with an interest in science at a young age. I pursued a premed track because I didn’t know of any other outlet to get involved in science, and especially in genetics. The natural path as far as I could tell was medical school. But in college and as through summer internships, I found I was more drawn to issues of policy and ethics, rather than clinical practice. Instead of medical school, after college I joined a strategy-consulting firm with a focus on healthcare and biotechnology and after a couple of years started looking for combined degree programs. A number of law schools offer a JD/MD or JD/MA in bioethics. Given Duke’s strengths in medicine, biology and genetics, I came here and continued on that path, delving deeper into my interests in philosophy, biology and ethics. At the same time, I also pursued a Master’s in biology to round out the scientific knowledge that I wanted to bring to bear on the issues.

GenomeLIFE: You’ve said that you “use bioscience as a lens to understand legal doctrine and normative commitments that we hold in social institutions such as criminal law.” Can you explain what that means?

Farahany: I view the world from the perspective of scientific discovery and advancement. When I consider questions about law – like why do we hold people responsible under a particular standard or why do we recognize a particular way of applying a constitutional principle – I often begin by wondering how novel scientific discoveries are being used or might be used in a legal setting. For example, there have been great scientific strides in genetics – and in particular in behavioral genetics – over the past decade. We’re learning more about the connections between our predispositions – genetic and environmental – and our behavior. How do those advances impact traditional notions of criminal responsibility? As we have better causal explanations or correlates to behavior, does it change the way we do things in law? The answer to those questions require an understanding of why we hold people responsible for their actions in the first place. Does new science challenge, change or reinforce existing norms? Those forays into legal questions start with my own curiosity about the ethical implications of new scientific discovery.

GenomeLIFE: To what extent are the kinds of scientific discoveries being made in the genome era already feeding into legal decisions?

Farahany: Especially in the area of criminal responsibility, the new science is already firmly rooted in the system. Evidence from genetics and neuroscience has taken a strong hold on legal decision-making about criminal responsibility, but we are still in the very early stages. Courts and jurors are still grappling with what this kind of evidence actually means. It is showing up in cases, especially criminal felony cases, in the form of expert testimony about genetic and environmental predisposition, but is that relevant? Is it mitigating or aggravating evidence? Does it support predictions of future dangerousness, vengeance, or punishment? Does it direct us to a more medicalized legal system? All of this is still at the most nascent stage. The precedent for its use is established, but we are still figuring out what it means and how it will impact the system.

GenomeLIFE: Where do you stand personally on questions of responsibility? How do you try to answer questions like these?

Farahany: I start with why we already do what we do. I believe that you need to understand the historical basis for legal rules and institutional norms and compare those to what the new evidence tells us. A lot of what we now do is done irrespective of the scientific reality of things. There is an efficient and independent justification to hold people responsible in order to have a society that functions and enforces rules. We treat people as responsible because it is useful to do so. Science doesn’t change that, at least not until we know a lot more than we now do. Some people may have trouble controlling impulses or they may be more likely to be violent, but that doesn’t fundamentally change why we hold people responsible for their actions. But I think there is a tipping point. Eventually, we may have so much information about behavior that it may no longer be useful to punish as we do now. There might be a better alternative or response to criminal wrongdoing than putting people in jail. As we understand more, early intervention may be more effective or medical treatment or preventive detention may even be preferable. That doesn’t impact and shouldn’t impact what we do right now, but as we learn more it may challenge our best models for responsibility.

GenomeLIFE: What do you ultimately hope to achieve by bringing an informed science perspective to the legal world?

Farahany: I want to serve as a translator to the legal world. I want to bring issues and help the field in understanding what they mean and in staying ahead of the curve. Misapplications can occur when legal practice gets ahead of ethical and legal decision-making about relevance, purpose and use. My hope is to be able to take new scientific discoveries, show what likely pressures they put on the legal system and – before that gets out of hand – to address what ethical uses and limitations might be.

GenomeLIFE: You are obviously coming in with a close connection to Duke based on your experiences as a student here. What are your hopes and plans when it comes to teaching at the undergraduate, graduate and/or professional levels?

Farahany: Over the next several years, I have committed to teaching two seminars or courses per year at the intersection of law, science, and society. My hope is that these courses will be cross-listed in multiple departments and that they will appeal to law students, graduate students, and undergraduate students alike. At Stanford, I taught a class on Current Topics in Bioethics, and one on Genetics and Reproductive Technologies, which had a mixture of students from the law school, medical school, several graduate departments, and undergraduates. This mix of perspectives and experience led to incredibly enriching class conversations, and I hope I’ll have the same opportunity at Duke.

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