As brain scans become increasingly sophisticated, they are becoming de rigueur in death penalty trials, where defence lawyers routinely seek to introduce functional magnetic resonance imaging (fMRI) scans to prove that their clients were unable to control their violent impulses. Under the relaxed evidentiary standards for capital sentencing, this evidence is usually admitted, and lawyers predict that “neuro-law” evidence will increasingly transform the legal system, calling into question traditional ideas of moral responsibility.
If the war against terror escalates, the government may deploy even more controversial forms of electronic surveillance, such as neuro-imaging technologies that can detect the presence of electrochemical signals in the brain. The promoters of this “brain fingerprinting” say that it can detect brain waves that are consistent with particular kinds of recollection.
Imagine that police or counter-terror experts in the future decide to search suspects for brain waves that suggest a propensity toward violence—a sort of cognitive profiling. These neuro-imaging technologies scans can show that the parts of the brain responsible for impulse control and empathy are underactive and those responsible for aggression and more animalistic, violent activities are overactive. In the future, suspects who show a propensity for violence might be detained indefinitely as enemy combatants, even though they have committed no crimes.
Scientists are able to analyze the genetic makeup of embryos created through in vitro fertilisation, using that information to help aspiring parents implant in the woman’s womb only those embryos that display a specified range of desired characteristics— including not only sex but also, perhaps someday, intelligence, eye colour, and height.
Some scholars already claim that neuro-science should lead the legal system to jettison retribution as a goal of criminal punishment because it’s unfair to hold people responsible for actions that are predetermined by their brains rather than chosen by their free will. Alternatively, imagine that in the future, brain scans can predictably identify people with dangerous propensities to violence and imagine that a state predicates a civil commitment on the results of scans.
---------------- source:Privacy, Property, and Free Speech: Law and the Constitution in the 21st Century by Jeffrey Rosen