Genetics and Criminality: The Potential Misuse of Scientific Information in Court

As a means of ordering human affairs, law is in ongoing dialogue with the surrounding society and culture. Law is also in dialogue with social, behavioral, and medical science. The evolution of science—the rate of change in scientific concepts, methods, and theories—typically outpaces law and social policy. This is especially the case in the field of mental health law. For its part, law finds itself in a constant catch-up position in relationship to evolving scientific concepts. Nevertheless, unless law and social policy evolve in relation to changing knowledge and cultural circumstances, they gradually lose their effectiveness in ordering human affairs, and their perceived credibility and relevance to daily life become archaic or outmoded.

Criminal responsibility is based on notions of moral agency and responsibility and the assumption that human beings are reasoning beings and responsible for their choices. These notions of personal responsibility are rooted in the Greco-Roman and Judeo-Christian foundations of Western culture. In this context, actus non facit reum, nisi mens sit rea (a guilty act is not a crime without a guilty mind). Conversely, an individual may be excused or, better, his or her criminal responsibility reduced or exculpated if “guilty mind” is absent in the commission of a crime. This is the conceptual basis for the insanity defense.

Emergent models of mental functioning and psychopathology from the fields of neurobiology and genetics pose enormous challenges to basic assumptions concerning moral and legal conceptions of free will and responsibility. Are certain people genetically predisposed to crime or violence? How does this affect our understanding that individuals are responsible for their choices? Does a genetic predisposition constitute an underlying disease, disorder, or defect that would exculpate criminal acts? Could the state involuntarily commit individuals who show a genetic predisposition to violence? Is there genetic determinism, and how will this affect criminal prosecutions and defense?

Genetics and Criminality addresses these issues in a book funded by the Ethical, Legal, and Social Implications Branch of the National Human Genome Research Institute at the National Institutes of Health. The symposium brought together an interdisciplinary panel of experts in philosophy, behavioral genetics, and law to comment on the emergent knowledge and potential implications. The four-part book deals with 1) foundational concepts of mental health and disorder, free will and responsibility, and the insanity defense, 2) current behavioral genetic research, 3) potential applications and misuses of genetic information in legal contexts, and 4) a summary assessment of the current state of knowledge. Chapters such as “The Genetics of Behavior and the Concept of Free Will and Determinism,” “Genetic Research on Mental Disorders,” and “Criminal Responsibility and the ‘Genetics Defense’ ” introduce the reader to the state of the fundamental concepts and state of the knowledge.

The volume is rather technical and aimed at advanced readers such as advanced trainees and practitioners in forensic psychiatry or psychology. Most of the legal commentators conclude that increasing understanding of behavioral genetics is unlikely, at least in the short run, to cause major shifts in our current understanding of criminal responsibility. One comes away from reading the book aware of the early stage of certainty in this area, the still relatively weak status of behavioral genetics in psychopathology, the firm certainty of future challenges to Western moral and legal foundations of free will and responsibility with the maturation of this science, and some of the likely uses and misuses of this information in the criminal arena. The book—prescient in its outlook and truly the stuff of science fiction—is recommended to the student of moral responsibility and behavioral science.