In my last post, I discussed how Dr. Kent Kiehl, a neuroscientist, is using fMRI technology to detect brain abnormalities in people with psychopathy. His participants are prison inmates who score high on the PCL-R, a psychodiagnostic measure used to assess psychopathy. Once he determines that the participant is, in fact, a psychopath based on their PCL-R score, he takes scans of their brains using an fMRI to determine if there are brain differences between psychopathic participants and normal controls. He has found defects in the paralimbic system that he believes relate to psychopathy.
Interestingly, Dr. Kiehl’s research is being used by perpetrators to avoid prison or to reduce sentencing. One such case has plagued the Chicago area for over two decades. Brian Dugan, a 52-year-old man with a 13-year crime spree, including murders, rapes, arson, and burglaries, spanning the 1970s and 80s finally went to trial for his crimes in late 2009. For those interested in death penalty laws, this case has a lot of history, and contributed to the moratorium on the death penalty in Illinois due to the wrongful conviction of three men for one of the murders (Jeanine Nicarico) that Dugan committed.
Fast forward to 2009; Dugan and his lawyers were preparing for his trial and stumbled upon the research of Dr. Kiehl who agreed to interview and complete an fMRI for Dugan. In September 2009, Dugan visited Northwestern Memorial Hospital in Chicago to meet with Dr. Kiehl. Dugan’s lawyers saw Dr. Kiehl’s research as opportunity that “could offer a persuasive argument that Dugan is a psychopath and could not control his killer impulses.”
Dugan’s case became the first known court case to use fMRI evidence. His lawyers hoped to use his brain scan images in an attempt to reduce sentencing from the death penalty to life in prison.
Use of fMRIs in criminal court cases for this purpose is controversial because the fMRI is not diagnostic by itself. It measures blood flow to the brain while a participant engages in a certain task (such as viewing a picture, or listening to words or phrases); however, it cannot tell how the person may have responded to these cues at the time of the crime. This is especially important, because it is the person’s mental state at the time of the crime that determines criminal responsibility, regardless of how the person may present at the time of the trial.
It seems as though Dr. Kiehl’s testimony in the Dugan case caused an outcry among neuroscientists and others in the legal and mental health professions who believe that brain images should not be used to lessen the punishments of psychopaths. However, as discussed in Part I of this post, Dr. Kiehl believes that psychopathy should be destigmatized and treated, just as we do with other mental illnesses that may contribute to a person’s dangerousness.
Although we don’t know what the future will bring when it comes to the use of fMRIs, and other brain scanning imagery, in the courtroom we are certain to see more cases like this one. There are many questions unanswered, the most significant to forensic psychology being, will psychopathy qualify as a mental illness, thereby allowing for the insanity plea? This would promote treatment of psychopathy, rather than imprisonment, but treatment for this phenomenon has been limited. Perhaps Dr. Kiehl’s research will begin to change all that.
But for now, criminal courts seem unfazed by this new technology—Brian Dugan was sentenced to death in November 2009, despite the fMRI evidence supporting his psychopathic tendencies that led him to torture, rape, and murder his victims. In a strange twist of fate, the moratorium on the death penalty in Illinois that came about, in part, as result of this case, will likely cause a delay, and perhaps avoidance entirely, of Dugan’s sentencing. Regardless, he will likely spend the rest of his life in prison unsure of his fate while Illinois decides their death penalty laws.