Home About RSS

Law and Biosciences Blog

« Older Entries

John Doe DNA Warrants and the Statute of Limitations

February 7, 2010 • by Kelly Lowenberg • no comments »

Last month, the California Supreme Court reached a decision in People v. Robinson, a case which presented three issues involving DNA and criminal procedure:

(1)  Does an unknown suspect’s DNA profile satisfy the “particularity” requirement for an arrest warrant? (Yes.)
(2)  Does the issuance of a “John Doe” complaint and arrest warrant timely commence a criminal action and thereby satisfy the statute of limitations? (Yes.)
(3)  What remedy is there, if any, for the unlawful collection of genetic material under the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Pen. Code, section 295 et seq.)? (If, as in this case, the collection violates the statute but not the state or federal constitution, then the evidence will not be excluded.)

I do not have the space here to discuss the entire opinion, so this post will focus on the second issue – how John Doe DNA warrants affect the statute of limitations.  A John Doe DNA warrant is an arrest warrant that is issued for a suspect identified only by genetic information.  These warrants have been used when DNA is found at a crime scene and police have little to no other description of the offender.  Issuing a warrant for someone’s arrest typically begins the prosecution for that crime, and the prosecution of a crime must begin before the statute of limitations has expired.

Supporters of John Doe DNA warrants argue they are useful tools in solving crimes, and the genetic profile is particular enough to begin a criminal prosecution. Critics, however, point out that these warrants will “circumvent the statute of limitations in any criminal prosecution in California in which biological evidence is left at the crime scene from which DNA can be extracted” (Justice Moreno’s dissent in People v. Robinson).  Not every DNA sample will be a sufficient basis for probable cause to obtain an arrest warrant.  For example, DNA in semen found at a rape scene is more inculpating than a hair found at the scene of a burglary.  But if a warrant is obtained, the statute of limitations will be satisfied.  And a person could be prosecuted for the crime, regardless of how much time has passed, which may make preparing a defense more difficult.

In this case, police had only a very vague physical description of a rapist from his victim.  She identified her attacker as a man who was probably African-American, but may have been Hispanic.  The rape occurred in 1994, and at the time, the statute of limitations for rape was six years.  On August 21, 2000, four days before the statute of limitations for the crime would have expired, the Sacramento police created a DNA profile from the semen found on the victim, and charged a John Doe with that DNA profile for rape and four related sexual offenses and obtained an arrest warrant for that John Doe.

The complaint and the declaration in support of the arrest warrant read, “John Doe unknown male with Short Tandem Repeat (STR) Deoxyribonucleic Acid (DNA) Profile at the following Genetic Locations, using the Cofiler and Profiler Plus Polymerase Chain Reaction (PCR) amplification kits: D3S1358 (15,15), D16S539 (9,10), THO1 (7,7), TPOX(6,9), CSF1PO (10,11), D7S820 (8,11), vWa (18,19), FGA (22,24), D8S1179 (12,15), D21S11 (28,28), D18S5a (20,20), D5S818 (8,13), D13S317 (10,11), with said Genetic Profile being unique, occurring in approximately 1 in 21 sextillion of the Caucasian population, 1 in 650 quadrillion of the African American population, 1 in 420 sextillion of the Hispanic population.”

Three weeks later, on September 15, police were notified that the DNA profile in their warrant matched an existing DNA profile in the California Department of Justice Convicted Offender DNA Database for Paul Eugene Robinson. The warrant was amended to include Robinson’s name, and he was arrested and subsequently convicted.

The California Supreme Court affirmed his conviction and the Court of Appeal’s finding that a John Doe warrant with a DNA profile is sufficient to satisfy the statute of limitations.  The court reasoned that based on the plain language of the California Penal Code a prosecution commences when an arrest warrant is issued with the same degree of particularity required for a complaint or indictment, which is satisfied by the DNA profile.

Robinson, however, argued that the legislative intent of the penal code was to exclude John Doe warrants from satisfying the statute of limitations because they do not reasonably inform a person that he is being prosecuted.  If a person does not know his DNA profile, then a warrant to arrest a John Doe with his profile does not notify a person that he is wanted.  The majority disposed of this argument by distinguishing John Doe warrants from John Doe DNA warrants.  Although the California Law Revision Commission commented that a Doe warrant does not satisfy the statute of limitations, they did not address the precise issue of a Doe warrant coupled with the defendant’s DNA profile. Furthermore, the majority explained the constitutional right to notice is “not dependent on the subjective capacity of defendant to understand it. Just as defendant is not required to be literate for a written indictment to be valid, he is not required to be a geneticist to be subject to indictment by DNA profile” (Robinson majority opinion, citing New York v. Martinez, 855 N.Y.S.2d 522).

In dissent, Justice Carlos Moreno argues that the statute of limitations is not satisfied by a John Doe arrest warrant containing only a DNA profile because these warrants cannot actually be used to arrest anyone.  Referring to the importance the majority places on particularity, “the flaw here is not that the warrant authorized the arrest of too many people, but that it authorized the arrest of no one at all.”  The DNA profile alone was too little information, and the police could not follow standard procedure of executing a warrant by entering the warrant in a state or nationwide wanted persons system and assigning the warrant to a police officer.  Justice Moreno concluded that no criminal prosecution could begin based on this warrant; instead, the John Doe DNA warrant is a “shell, a clever artifice designed to satisfy the statute of limitations so the criminal investigation could continue indefinitely until the perpetrator was identified.”

Justice Moreno also points out that California law now brings cases like Robinson’s within the statutory time limit for prosecution, without relying on John Doe DNA warrants. California Penal Code Section 803 (g) (1) gives police one year from the date a DNA match is made to charge a person for certain sexual offenses, regardless of how long ago the crime was committed. Section 803 (g) (1) – enacted too late to affect the Robinson case – is specific to particular sex crimes and still enforces some time limit on prosecution, while the majority’s rule in Robinson broadly affects the statute of limitations for any type of crime.

In this case, without the John Doe DNA warrant, the statute of limitations on the 1994 rape would have expired three weeks before police identified Robinson. Satisfying the statute of limitations with a John Doe DNA warrant gave the state the opportunity to try Robinson for the rape. The California Supreme Court affirmed that this practice comports with California statutory law and due process.  It will be interesting to see whether Justice Moreno’s concerns about these warrants will be realized.  Will they negate the statute of limitations in all cases when DNA has been found, pushing the boundaries of probable cause that the DNA was left by the perpetrator?  Or will they be used only in cases where the DNA is overwhelming proof of guilt in a heinous crime, as in Robinson’s case?

category: Genetics

fMRI, Consciousness, and Vegetative States

February 6, 2010 • by hgreely • no comments »

In the 19th century, many people in the western world were terrified of the possibility that they might be buried alive, after physicians and family wrongly thought them dead. From Edgar Allen Poe’s story, Premature Burial, to the creation of the Society for the Prevention of Premature Burial, to the invention of various “safety coffins,” society played out this fear until improved medical knowledge (including, among other things, the invention of the stethoscope) led to the fear abating.

A modern version of this fear was perhaps seen in the Terri Schiavo saga, where the patients’ parents were insistent that their daughter was conscious in ways ignored by the medical staff and her husband – “buried alive” in a nursing home for those in a persistent vegetative state. The 19th century fear was fed by the occasional finding, when bodies were exhumed or graveyards moved, of a disturbed corpse, that had moved in the coffin or that had apparently damaged its hands in trying to escape or even of corpses altogether outside their coffins. Today’s fears may be fed by new functional magnetic resonance imaging (fMRI) studies.

Last week the New England Journal of Medicine published, on line, a fascinating, and disturbing, research report on the use of fMRI to detect – possibly – consciousness in people with profound brain damage.

This article builds on several years of research by two laboratories, those of Adrian Owen at Cambridge and Steven Laureys at Liege. Owen got attention a few years ago for a report in Science, showing that one woman, diagnosed as being in a vegetative state, had brain activation patterns in fMRI scans similar to those of healthy controls when asked to imagine herself walking through her home or playing tennis. Laureys has done a long series of studies of minimal consciousness and vegetative states. His work last garnered attention late last year when, as part of studying indicating a frighteningly high rate of patients in a minimally conscious state being diagnosed as being in the lower vegetative state, he showed that a man long thought to be in a vegetative state actually had moments of consciousness. (This story got some unwanted attention when others claimed that the man could actually communicate through “facilitated communication,” a controversial method where a third party helps “guide” the patient’s hand.)

Owen and Laureys worked together in this study and showed two different things of great interest.

First, they did fMRI studies of 54 patients (31 at Cambridge, 23 at Liege) who had been diagnosed as either in a vegetative state (23) or in a minimally conscious state (31). While these apparently unconscious and unresponsive were inside the scanner, they asked them both to think about hitting a tennis ball back and forth with an instructor and to think about walking through the rooms of their home or through the streets of a city they knew. In healthy people they would expect to see activation of the supplementary motor area in the first task and in the parahippocampal gyrus in the second. For five of the patients, they saw supplementary motor area activation during the tennis task; for four of those five (and no one else) they saw activation of the parahippocampal gyrus during the spatial task.

One of the five patients whose brains “responded” had been diagnosed as being in a minimally conscious state, but four of the five patients had been diagnosed as being in a vegetative state. On closer examination, the researchers decided that two of those four had been misdiagnosed and were actually in a minimally conscious state. The five responders had suffered their brain injuries 1.3 months, 2 months, 6 months, 30.2 months, and 60.8 months earlier. All five had had among the 32 subjects, out of 54, who had had traumatic brain injury. No one responded whose damage was caused by anoxic (lack of oxygen) brain injury (14), meningitis (3), cerebrovascular accident (2) brain stem stroke (1), or anoxic brain injury plus traumatic brain injury (1), or anoxic brain injury plus encephalitis (1).

Second, they took one of the five responders, a 22 year old man who had been diagnosed in a vegetative state (and who they agreed was appropriately so diagnosed) as a result of traumatic brain injury over 5 years earlier, and tried to communicate with him. Along with 16 healthy controls, he was asked yes and no questions, such as “Do you have any brothers?” All 17 subjects were told either to indicate yes by thinking about the tennis task or by thinking about the spatial task. (Which one was “yes” and which was “no” switched back and forth during each individual’s scan.) The healthy control subjects were able to “say” yes or no this way perfectly, based on looking for activations in either their supplemental motor areas (tennis) or their parahippocampal gyri (spatial). So was the man in a vegetative state. He answered the first five questions they asked him perfectly, although they got no response from him on the last question.

What does this mean?

Well, for the patient who was able to communicate “yes” or “no” it is very hard to see how this does indicate at least some consciousness. He not only processed the question but responded to it accurately. More trials will surely be useful to increase confidence in this result, but he surely seems “locked in” – conscious, at least occasionally, but with no power at the bedside to make an visible response.

We do not know whether the other four patients could communicate. At least as of the time this article was written, it hadn’t been tried. Their brains “responded” appropriately to the tasks they were given, while apparently unconscious, but it is not clear that they were actually conscious. We are confident, for example, that the brains of sleeping people (another form of unconsciousness) respond differently to some noises than to others, filtering out familiar and unimportant sounds while often waking us to urgent sounds – a child’s cries, a telephone, the alarm clock. We do know that they seem different from the other 49 (roughly 90 percent) of the subjects, but, then again, if Laureys and Owen had tested all 54 subjects again, on a different day, we do not know whether the results from either the responders or the non-responders would have stayed the same. For people diagnosed as in a minimally conscious state, responsiveness comes and goes quickly and sometimes appears only a few times a week.

We do not know whether these signs of responsiveness are a good prognostic indicator. The subject Owen wrote about in 2006 had some significant recovery after the test. Will these patients also improve? Two of the five had been injured two months earlier or less, but one had been injured 2 ½ years ago and the communicating one had been injured over five years earlier.

We do not know whether the people whose brains responded, or the person who communicated, are feeling any sensations. Their brains responded to speech – do they respond to visual stimulation? Do they feel pain? Do they have emotions?

We do not know whether the people whose brains responded do well with rehabilitation efforts and, if so, what of rehabilitation.

We do not know whether the person who communicated was, in any sense, “competent.” He could say, accurately, whether or not he had brothers. If he said he wanted to have life support withdrawn – or that he didn’t want to have life support withdrawn – how could we know whether he understood the question, his answer, or the consequences? Should we act on that kind of communication? We don’t know.

And, finally, we do not know how this paper will – or should ¬– affect the care of patients in vegetative or minimally conscious states. Will family members (or courts) demand fMRI scans? Should they? And what will, or should, we do differently if those scans provide signs of responsiveness, or of an ability to communicate?

One thing we do know – the issues swirling around these patients have just gotten a lot more interesting, and difficult, as neuroscience has, in yet another context, helped us “read minds.”

category: Medicine, Neuroscience

Three Studies of American Prescribing Patterns

January 25, 2010 • by cmurdoch • no comments »

In a study in the January issue of the Archives of General Psychiatry, researchers found increasing a trend of psychotropic polypharmacy in office-based psychiatry prescription patterns.  Visits with 2 or more prescriptions increased by nearly a third from 1996 to 2006, while visits with 3 or more prescriptions nearly doubled in the same period.  This trend was largely similar across visits by different patient groups and persisted after controlling for background characteristics. The authors noted in press that while some of these polypharmeceutical combinations are supported by clinical trials, many are of unproven efficacy. Accordingly, a trend towards increasing psychotropic polypharmacy puts patients at increased risk of drug-drug interactions with uncertain gains for quality of care and clinical outcomes.

A study in the January issue of the Journal of the American Academy of Child & Adolescent Psychiatry found that from 1999 to 2007, the rate of children aged 2 to 5 who are prescribed antipsychotic medications has doubled.  Lead author and Professor of Psychiatry Mark Olfson of Columbia University notes that this is a “worrisome trend, partly because very little is known about the short-term, let alone the long-term, safety of these drugs in this age group”. He suggests that for 4-5 year olds, antipsychotic medications should be used only as a last resort for treatment, while in 2-3 year olds, it is debatable whether antipsychotics should be used at all.

A recent study in Health Affairs found that children in the Medicaid programs of a number of states (including New York, Texas, and California) were prescribed antipsychotics at four times the rate that kids whose parents have private insurance (a rate of 4% as compared to 1%). Many of these prescriptions were found to be for off-label indications, and many were for indications less severe than those for which their privately insured counterparts were prescribed anti-psychotics.  Some doctors have suggested that the increase in prescriptions may even indicate that Medicaid children are receiving superior treatment, while others are starkly in disagreement.

All of these studies in some respect or another appear to suggest that many popular American prescribing habits are at a disconnect in some respect from evidence-based medicine.  By the metric of these studies, prescriptions are not infrequently issued in the absence of evidence of clinical efficacy, for unindicated conditions and under-researched age groups, and disproportionately to certain groups for reasons which are ostensibly non-medical. These studies focus on psychotropic medications.  Would similar results be found in other areas of medicine popularly treated with pharmaceuticals? Why or why not? Are these prescriptions patterns indicative of a common underlying problematic mechanism, multiple heteregeneous mechanisms, or are they in fact not to be interpreted pejoratively in the first place?

- CJ Murdoch

category: Medicine, Neuroscience

DNA Collection After Arrest

January 6, 2010 • by Kelly Lowenberg • no comments »

On December 4, the ACLU, representing the plaintiffs in Haskell v. Brown with co-counsel from Paul Hastings, argued for a preliminary injunction to stop the government from warrantless and suspicionless collection of DNA from people who have been arrested for a felony.  Before 2009, California only collected DNA from people who had been convicted.  Starting last year, it began collecting DNA from people after arrest, pursuant to a law enacted in 2004 by Proposition 69.

The ACLU argued that the statute violates the Fourth Amendment guarantees of privacy and freedom from unreasonable search and seizure.  They point out that these suspicionless, warrantless searches, are distinct from DNA testing programs for persons convicted of felonies, because people who are merely arrested are legally presumed innocent.  The law requires DNA collection, not just from persons arrested for violent crimes, but also for non-violent felonies, like writing a bad check.  For example, one of the plaintiffs in this case was arrested at a protest against the Iraq War when she allegedly tried to free another protester who was being arrested.  Many of those arrested will never be convicted.  According to the plaintiffs’ complaint, about one-third of the people arrested for a felony in 2007 were never convicted of any crime, meaning 101,000 people who were convicted of nothing would be included in the DNA database.

This issue, whether collecting DNA from arrestees violates the Fourth Amendment, has been decided by at least four other courts.  The Virginia Supreme Court upheld the testing (Anderson v. Commonwealth).  But it was found unconstitutional in the Minnesota Court of Appeals (In re Welfare of C.T.L), a federal trial court in Nebraska (United States v. Purdy), and a federal trial court in Pennsylvania (United States v. Mitchell). This case, Haskell v. Brown, challenges the practice in California. The arguments and questions at the Haskell v. Brown preliminary injunction hearing focused on what information would be revealed through the DNA testing and how that information would be used.

The California Attorney General’s office argued that because an arrested person has no reasonable expectation of privacy in their identity, DNA can be taken to identify the person, similar to fingerprinting. Upon arrest, a person’s DNA is collected, and a profile is created from a limited set of DNA markers (CODIS markers) that are sufficiently unique to the individual. The state argued even a arrest changes a person’s expectation of privacy in their DNA when used for identification.  The ACLU countered that the DNA sample is not, in fact, being used for identification.  The DNA sample is processed only after the person has been identified through fingerprinting.  At that point, their identity is no longer in question; the DNA profile is, at best, cumulative evidence of identity, and the state’s interest in identification is less compelling.

The ACLU argued that, in assessing the intrusion to the person’s privacy interest, the court could not limit its analysis only to the state’s professed use to establish identity. Rather the court should consider how the individual’s privacy interest will be affected by other, law enforcement uses made of that DNA.  When DNA is found at a crime scene, it can be compared to the profiles in the database, and the police can determine whose DNA was left at (and presumably who was at) the crime scene.  Also, by lowering the threshold on the database search, the police can (and have begun to) determine whether a person in the database is related to a person at the crime scene.  The state claims that arrestee DNA testing will prevent future crimes, but the ACLU argued that it adds no significant benefit to the investigative process beyond what can already be accomplished by testing convicted persons. The ACLU also pointed out that using the DNA in this way reveals more information about a person than their identity; it reveals where a person has been and to whom she is related.  One could argue that if DNA can legally be tested to establish identity, than the government-generated DNA profile is not private and can be put to reasonable use.  It would be troubling, however, for the court to permit the search without considering how the individual’s privacy will be affected by other known uses of the DNA profile.

The parties also disagreed about what information in the DNA should be considered when assessing the individual’s privacy interests. The CODIS markers in the DNA profile (currently) do not indicate genetic predispositions.  The state analogized the profile to a fingerprint in the amount of information it reveals and how it will be used.  The ACLU, however, argued that because DNA can be analyzed to reveal a large body of personal, private information, including disease risk and certain behavioral characteristics, DNA collection is a much more serious intrusion into the individual’s privacy than a fingerprint.  This part of the analysis seems to hinge on how the police are allowed to analyze the DNA after they have collected it.  The ACLU, citing Justice Scalia’s dissent in Ferguson v. City of Charleston, seemed to take the position that after material has been seized it is unclear how its analysis is limited. And practically, there is little opportunity for a person to learn of and challenge subsequent analysis of her DNA.  In line with the ACLU’s argument, in US v. Mitchell, when assessing the degree to which DNA testing intrudes on the individual’s privacy, the judge considered “the significant need to protect the complex and comprehensive information contained in a DNA specimen,” not solely the information included in the DNA profile.

Whether collecting DNA from persons after arrest is a reasonable search depends on how the court evaluates the state’s purpose and interests and the degree of intrusion to the individual’s privacy.  Is this case analogous to collecting fingerprints upon arrest for identification and cataloging them?  Or is the state using identification as an excuse to search a large volume of sensitive, private information in the hopes of implicating the person in other crimes?

category: Genetics

Biosciences in Society During the Last Decade

January 3, 2010 • by hgreely • no comments »

This decade is now over.* Not soon enough, most of us say. The decade is passing away unmourned and still unnamed. (Personally, I’m rooting for “The Zeros”.) But what did the decade mean for Biosciences in Society?

Everything.

As I discussed in an earlier post, we need a name for a new area of academic inquiry, one that overlaps many other fields, but has distinctive characteristics. I call it Biosciences in Society. It grows out of bioethics, but it is not primarily about clinical decisions or about the treatment of research subjects. It addresses ethical questions, but also legal, policy, and social issues. And it covers the breadth of the biosciences. I think it is largely a product of the last decade. This blog post is a first, quick, and unresearched effort to explain its origins. I apologize for any oversights (particularly involving work done by the first two U.S. presidential bioethics committees) and look forward to comments and criticism.

Of course, since the inception of bioethics, advances in the biosciences have been among that field’s crucial subjects. The prospects of cloning and of prenatal genetic selection of children were major topics for discussion in the late 1960s and early 1970s, around the time of the birth of the Hastings Institute. But those were discussions well ahead of their time. Exciting, titillating, good for fund raising, but not yet grounded in any serious reality. There were biosciences advances that were having real effects, such as organ transplantation, kidney dialysis, and long-term ventilator support, but those fell largely if not entirely within the realm of clinical bioethics.

Recombinant DNA provided the first real subject for Biosciences in Society. The early 1970s discovery of how to move genes between organisms raised both safety and moral concerns, concerns that were assuaged (or managed) in the United States by the February 1975 Asilomar conference, the proposed limited moratorium on experiments, and the eventual creation by the NIH (under Congressional pressure) of the Recombinant Activities Committee, or RAC. That discovery also gave birth to the modern biotechnology industry with its consequences for everything from patent law to university operations. From then until now, the ethical, legal, and social implications of genetics (or ELSI, as it came to be known in the late 1980s) have been a major subject of interest – in academia, in courtrooms, in legislatures, and elsewhere.

But until the last decade, genetics has been nearly alone in sparking great concern – and academic interest – in Biosciences in Society. In vitro fertilization and other new forms of assisted reproduction, a reality since the birth of Louise Brown in 1978, have garnered attention, some in conjunction with genetics and some independent of genetics, but, at least in the United States, the legal and regulatory sides of this revolution have been stunted, I think as one consequence of our peculiarly difficult abortion politics.

In 1989 James Watson, newly appointed to head the American side of the Human Genome Project, promised to spend 3 percent of the total research funding on ethical, legal, and social issues arising from genetics. That funding was, undoubtedly, a result of the social concerns about genetics – I suspect that Watson saw it, correctly, as an essential tax to be paid to allow the research to go forward – but it was also the birth of increased attention and increased concerns. The ELSI programs (mainly in NIH but also, to a small extent, in the Department of Energy) have paid not just for research projects but, effectively, for researchers, many living on soft money from ELSI, enabling both the university-based and independent bioethics centers to expand by attracting and training new researchers from many different disciplines. Biosciences in Society is an immediate product of ELSI.

But until this past decade, Biosciences in Society was, effectively, only ELSI, and limited to genetics. The announcement in February 1997 of the birth of Dolly the sheep generated some interest, but cloning was at least as much a genetics story (the perfect genetic copy) as it was a story of embryonic development. The first real turning point, whose social consequences were not much recognized at the time, was the announcement in November 1998 by James Thomson that he had successfully isolated and maintained human embryonic stem cells. The federal government and several states had begun to consider regulating human cloning, but embryonic stem cells held out the hope, or threat, of somatic cell nuclear transfer, possibly with widespread medical applications.

Of course, there had been earlier discussions of the use of “prebirth” tissues in research and medicine, first with fetal tissue in the late 1980s and then with embryonic research in the 1990s. (My own first foray into what I would now call Biosciences in Society was as lead author of a committee report on the clinical and research uses of human fetal tissue in 1989.) In particular, the NIH Human Embryonic Research Panel and its 1994 report were important steps. But that bioethics work was somewhat limited – its focus was on federal funding. The important players were the federal Administration and Congress; there just wasn’t enough diversity or change to keep up a major research commitment to social issues.

Human embryonic stem cells (hESCs) changed that, particularly after President George W. Bush’s August 2001 decision to limit federal funding for their research uses. This time, mainly because of the perception of enormous medical and economic advances but also because of the political opportunities the research presented for party differentiation, in the U.S. and elsewhere, the issue exploded into many venues, with many legal variations and many forms of implementation, all of which called out for analysis and discussion by philosophers, physicians, scientists, theologians, social scientists, lawyers, and others. And the ELSI program had created a host of people from those fields who were comfortable talking, writing, and submitting grant applications on these kinds of topics.

The second big change was the new surge of interest in neuroethics. Again, there had been past periods of great interest in neuroscience, including the mind control issues that arose in the last 1960s and early 1970s, but, as with genetics and embryo research, new techniques created new possibilities and new interest. For neuroethics, I think the main player was functional magnetic resonance imaging (fMRI), which made it possible to see, in detail, inside a living brain. Starting about 2002, shortly after the late 1990s surge in scientific publications on human fMRI, conferences, workshops, articles, and books about neuroethics began to proliferate. As with embryo researchers, some of the researchers in neuroethics had been trained in ELSI. And interest in neuroethics continues.

So, in my view, the past decade started with ELSI researchers in genetics but added serious research interest in embryonic stem cells (and some related side-lines, like human/non-human chimeras) and in neuroethics. Some excellent researchers work only in one of these fields, but many work across the fields, combining some genetics work with some hESC work or neuroethics work. And, we hope, bringing useful insights from one area of biosciences to another. The fields have coalesced into something bigger, the thing I call Biosciences in Society.

Of course, funding, at least in the United States, is still most generous for genetics. Whether funding sources will expand to support substantial research into the ethical, legal, and social implications of other areas of the biosciences remains to be seen. Also open is the question whether there will be more biosciences exciting this kind of research interest. Some contenders include synthetic biology, nanotechnology, possibly immunology, and who knows what else. Typically the topics that have generated Biosciences and Society interest have not just been biosciences areas that have shown signs of becoming regular features of our societies, but ones that have seemed, somehow, to implicate questions of our human identity – our genetic identity, our developmental identity, and our mental identity. Will other bioscience areas, with social importance but without these kinds of philosophical or religious overtones, be equally interesting? Time will tell.

Hank Greely

* Pedants might want to end the decade on December 31, 2010, in keeping with the pedantic (and logically correct) dating of the start of the millennium to January 1, 2001. Yet “decade”, “century,” and “millennium” are words and, at least in English, their meanings are ultimately defined by usage, not by dictionaries or an Academy. Besides, we needed to get this decade over with.

category: Genetics, Medicine, Neuroscience

Rent vs. Buy: Compensation Related to Womb and Organ Donation

December 29, 2009 • by Brenda Simon • comment [1]

Why is that we permit financial compensation related to renting a womb, but not for donating organs?  A recent article from the New York Times touched on this issue in discussing the insufficient regulation of surrogate parenting relationships.  A few days after the surrogacy article, an essay proposed that the government provide incentives for organ donation, such as a program for providing a tax credit or for contributing to a retirement account in exchange for such donations.  The answer for treating womb and organ donation differently can’t solely be the differential risk to life or health, as pregnancy and delivery, particularly by cesarean section, entail significant risks.  It also doesn’t seem to be that organ donation is less socially valuable than surrogate parenthood. Further, both types of compensated altruism seem just as likely to take advantage of a donor’s economic distress.

Perhaps, in part, it’s the difference between owning and leasing.  We tolerate financial compensation related to surrogate parenting, including sperm and egg donation, as the burden on the donor’s’ body is temporary.  While the ability to replenish and temporal limits on pregnancy reduce the biological impact on the donor in surrogacy, they don’t really alleviate the economic inducement to donate.  Margaret Atwood, in A Handmaid’s Tale, envisioned a future in which the poor would gestate the children of the rich.  While her work of fiction was
rich in hyperbole, the underlying cautionary note is clear:  those in economic distress might be induced to donate in a way that is socially and ethically troubling.

For both organ donation as well as surrogacy arrangements, perhaps financial compensation should be limited to reasonable medical expenses to prevent this harm?  The challenge would be in determining what is “reasonable” and monitoring such compensation arrangements. While limiting financial compensation might prevent a market for wombs or organs, it also raises concerns about paternalism and autonomy. Similarly, requiring informed consent and showing lack of financial duress might address the economic coercion issue. But, such requirements would deny compensation only to those that might benefit most from it.  Is the distinction between renting and owning sufficient to permit compensation for the donation of wombs, but not organs?  Should we reconsider regulations on compensation related to donation in these areas?

- Brenda Simon

category: Medicine

Autism Identification Rates Continue to Rise

December 29, 2009 • by cmurdoch • comments [3]

A CDC report issued shortly before Christmas found that autism rates surged 56% between 2002 and 2006. Coincidentally, 2006 is also the year in which the first drug approval was issued for a pharmaceutical used in the treatment of autism: namely, Risperdal.  This timing suggests that the increase in autism identification over this period was not straightforwardly related to pharmaceutical marketing (potentially excepting off-label marketing during this period). It is also important to note that this latest surge is part of an ongoing increase in the rate of autism diagnosis cast longitudinally over several decades.

The study’s lead author noted in the press that it is difficult to determine how much of the increase is attributable to an actual increase in autism among children, and how much is due to increased rates of detection.  This uncertainty, however, did not preclude speculation about some of the potential environmental causes of the condition presently under investigation, such as “exposure to hazardous pollutants and the added risk of parents giving birth at older ages”.

In the CDC study, children met the case definition for an Autistic Spectrum Disorder if their medical records documented behaviors consistent with DSM-IV-TR criteria for autistic disorder, pervasive developmental disorder–not otherwise specified (PDD NOS), or Asperger disorder. Children were classified as having a previously documented ASD classification if they had 1) received a diagnosis of autistic disorder, PDD-NOS, Asperger syndrome, PDD, or ASD by a qualified professional that was documented in an evaluation record or 2) had received special education services under an autism eligibility category. Reliability of previously documented ASD classifications is not discussed at any length in the report.

What is the social significance of increasing rates of autism identification?  Is this significance affected by whether or not these rates reflect an actual increase in true positives?  Is this trend likely to continue?  And finally, how is this trend likely to be affected by proposed changes to the Autism Spectrum currently under consideration for inclusion in the DSM-V?

- CJ Murdoch

category: Medicine, Neuroscience

Name this Academic Area!

December 21, 2009 • by hgreely • no comments »

I sat down to write a blog post about this last decade in my field of work, but I was distracted with the renewed realization that my area of work – like the decade – has no generally accepted name.   So herewith follow some musings, on names and fields.

I work on the implications for society of advances in the biosciences.  Some of those implications are legal – should fMRI-based lie detection be admitted in court?  Some of them are ethical – should we destroy human embryos for research?  Some are cultural – how will the story of human genealogy told by DNA influences cultural perceptions of human history and diversity? Some of them, for want of a better term, I call “social” – how would cheap and easy prenatal genetic testing change our society?   A few (in my work) are philosophical or even theological – what does a mechanistic understanding of the brain, and the mind it creates, say about what it means to be human?

In short, I work on the implications of the biosciences for our human cultures and societies.  The borders are a bit fuzzy – I’m not sure I would count the direct medical consequences of biomedical advances (how might successful stem cell research affect mortality rates?) but I would certainly count some of the implications of those medical advances (if life expectancy increased by 20 years on average because of biomedical advances, how would society change?).

Of course, the borders of “the biosciences” are also somewhat fuzzy.  My own work focuses on neuroscience, genetics, assisted reproduction, and stem cell research, with a foray or two into human/non-human chimeras.  Certainly synthetic biology, developmental biology, and “bio” aspects of nanotechnology would fit easily in the area I think I work in.  Ecology, evolutionary biology, and other more “environmental” fields seem to me to fit as well, though there seems to be little overlap so far.

It seems to me that this is more than just my area of work.  Many people I know, from many different disciplines, work on these kinds of issues and, more importantly from my perspective, they often work on several of them.  People who work on issues arising from the human genome also write about stem cells; people who are deeply engaged with assisted reproduction also work on neuroscience.  I think there is an academic “area” here.

Please note – I am not claiming that there is an academic “discipline” here.  I view this area as akin to, say, Latin American Studies.  Historians, economics, political scientists, linguists, literature scholars, and others who study Latin America have different intellectual approaches and methods – they are in different disciplines – but they share a common area of study.  So it is with this – scientists, lawyers, philosophers, anthropologists, physicians, scholars of religion, and others all work in this area, but without losing their old discipline, or attempting to form a new one.

So, if you have agreed with me so far, we reach the question – what should we name this area?  There are some existing contenders.

Much of it is currently referred to as “bioethics” and is done in bioethics centers, sometimes by people who call themselves, or are called by others, bioethicists.  I am not happy with that term.  It seems to me both too broad and too narrow.  I see “bioethics” as having at least three main branches, only one of which overlaps substantially with my area.  Bioethics is about medical, or, more broadly, health-related practices, such as organ transplantation or care at the end of life.  Bioethics is about the treatment of human research subjects, such the borders of research informed consent or the treatment of incidental findings in research.  And bioethics is about some of the consequences for society of advances in the biosciences.  To that extent, the area I am describing overlaps substantially with bioethics, but the part that overlaps is a subset of bioethics without a descriptive name.  I have heard it referred to as “research bioethics,” but that encompasses both human research subjects and the consequences of current (or recent) research.

But bioethics is also too narrow a term.  The “bio” is fine; it’s the “ethics” that is too restrictive.  Whether the results of fMRI-based lie detection could meet the requirements of the rules of evidence and be admitted as evidence is an interesting and potentially important question.  It is not, except by a stretching the meaning of the term so wide as to make it vacuous, an “ethical” question.  The effects of the Bayh-Dole Act on universities is another interesting question, but also one that goes well beyond issues of “ethics.”

My first post on this blog, in September 2008, was about another term, explaining why the center that generates the blog is called the Center for Law and the Biosciences.  I like the term Law and the Biosciences – not just as the name for this center but for the title of a course and a term for a subfield . . . but a subfield of law. BioLaw has also been used to describe roughly the same space, but, like Law and the Biosciences, it requires a meaningful connection to “the Law.”

What else is out there?  “Science, Technology, and Society” or “Science and Technology Studies,” might qualify, at least something that could encompass this area along with other parts of science.  STS has its own departments, degree-granting programs, and centers, but it also has its own history and culture.  Without having studied it carefully, it seems to me that STS is and has been too strongly rooted in the physical sciences, particularly in atomic physics and in computer science, to be the right home for this area.  And it has drawn people – based on my limited knowledge – predominantly from sociology and other social sciences.

History and Philosophy of Science is another fascinating field with some overlap with this area, but it really is about history and philosophy – and is dominated by historians and philosophers.  There’s nothing wrong with that, but that does not make it a good home for this area.

So what should we call this?  I suppose the most descriptive name would be something like “Ethical, Legal, and Social Implications of the Biosciences.”  This obviously would be a steal from the genetics world, which has had a “Ethical, Legal, and Social Implications (or Issues),” or “ELSI” program since the launch of the Human Genome Project.  ELSI, though, seems too connected to genetics to be divorced and ELSIB (ELSI in the Biosciences) is not attractive.

Interestingly, the American program took the name from a Canadian predecessor, MELSI.  The Canadians included “Moral,” which the Americans dropped.  The Canadians then dropped the whole thing and went still broader with “GE3LS”:  Genomics and its Ethical, Economic, Environmental, Legal, and Social Aspects.  This has the virtue of being comprehensive but the disadvantage (with all due respect to my friends among the subjects of Elizabeth II, Queen in Right of Canada) of being terminally clunky – not to mention the problem of how to show the “3” in superscript.

Before ELSI, another American contender had been “Genethics,” apparently coined by then-Representative Al Gore.  (Honest.)  This did not catch on in genetics (perhaps it sounded too similar and thus too cute), but has clearly won the day with neuroethics, nanoethics, and, increasingly, roboethics.  This usage is short and very catchy – I was one of the founders of the Neuroethics Society and, although I really didn’t like the narrowing I perceive in using “ethics” in the title, the term, popularized by the late William Safire, was just too magnetic to avoid.  But “Bio-ethics” is, as discussed above, already taken.

So what’s left?  Well, I’m open to reader suggestions, but here’s my current contender – Biosciences in Society, or BiS.  It has the broad term “biosciences” and the broad term “society,” which can encompass ethical, legal, social, moral, economic, cultural, environmental, and just about anything else involving humans.  And I like the preposition  “in”.  It is about the effects of the biosciences inside society and not, as “and” would imply, all the intersections between the two.  Although there are some other BIS or BiS or bis usages around, none of is terribly common:  The Bank for International Settlements is probably the most important, though I am partial to the Benevolent Irish Society, the Bismarck (North Dakota) Municipal Airport, and “Best in Show.”

Of course, the “i” is likely to drop out, leaving BS, but a bit of self-deprecatory humor is not the worst attribute for an academic area.  “Biosciences in Society.”  Think about it. Let it roll around on your tongue.  And let me know how you like it – but no denunciations without an alternative proposal that is at least equally good!

Next up:  BiS During the Decade that Still Does Not Have a Name.

Hank Greely

category: Genetics, Medicine, Neuroscience

Neuroscience and Sentencing: Diminished culpability and capacity for change

December 14, 2009 • by Kelly Lowenberg • comment [1]

I originally wrote this post on the Legal Aggregate on December 1, 2009:

The latest edition of the Stanford Lawyer magazine features an article on neuroscience and law, focusing on the likelihood and implications of admitting evidence about a defendant’s brain function. Although it is uncertain whether brain imaging data will ever be admitted as a tool in assessing the guilt of a defendant, such data has already found its way into the sentencing phase of death penalty cases. As Stanford Law School Professor Robert Weisberg says in the Stanford Lawyer article, the defendant has “a constitutional right to offer just about anything that could be characterized as mitigating evidence.”

For example, neuroscientist Kent Kiehl recently testified as an expert witness for the defense in the sentencing hearing for Brian Dugan, a man who pled guilty to the 1983 rape and murder of a ten-year old girl. The defense argued that Dugan suffers from psychopathy, a psychiatric disorder typified by antisocial behavior, impulsivity, and lack of remorse, which made it difficult for him to control his behavior. As a result, the defense argued, Dugan is less culpable for his criminal behavior, and his disorder should be considered a mitigating factor. Kiehl testified that based on functional magnetic resonance imaging (fMRI) tests and a diagnostic checklist, Dugan showed abnormal brain functioning and responses similar to other psychopaths Kiehl has tested. Although data from other brain imaging techniques, such as PET and SPECT, have been used in court previously, Kiehl’s testimony may be the first instance in which fMRI data was admitted in a criminal case.

Prosecution witness, psychiatrist Jonathan Brodie, criticized the defense’s use of brain imaging. Brodie argued that it was not possible to draw conclusions about psychopathic behavior based on fMRI data, much less about behavior that took place 26 years ago. Brodie and Kiehl’s different interpretations of the fMRI data reflect widespread disagreement about the degree to which one can draw conclusions about behavior based on neuroimaging, which is complicated for a number of reasons. Behaviors performed at the behest of a researcher during fMRI tests are necessarily artificial, and it is a challenge to show that a functional abnormality measured during the scan is related to complex behavioral traits, like psychopathy. Furthermore, it is difficult to determine whether any supposed brain abnormalities preceded behavior, or whether the reverse is true. For example, living a life congruent with the hallmarks of psychopathy and being incarcerated for much of the last 26 years might have produced the altered brain function. After the jury deliberated for ten hours, Dugan was sentenced to death. For Dugan, evidence of abnormal brain functioning was not sufficient to reduce his sentence.

In this case, the defense admitted fMRI evidence of psychopathy to show diminished culpability, but the same evidence could cast doubt on a defendant’s capacity to change his behavior. There is no known treatment for psychopathy, and psychopaths are highly likely to recidivate. According to Kiehl in a 2008 Science Magazine article, “psychopathy is the single best predictor of violent recidivism.” The article cites the statistic that “more than 80% of incarcerated psychopaths who are released from prison commit another crime, usually a violent one, within three years, compared with 50% for the overall prison population.” Notably, this statistic is less relevant to jurors deciding between the death penalty and life without parole, where either way the defendant will never be released and future dangerousness should be assessed in the context of a prison environment. Evidence that a defendant is a psychopath and has difficulty resisting his antisocial impulses may help the jury understand that he is ill and his crime should be evaluated differently; however, it may also convince the jury that he is still dangerous. Presented with evidence that a defendant is a psychopath, a juror could reasonably conclude that the evidence calls for a more severe penalty, rather than a lesser one.

Evidence of some neurological conditions, like psychopathy, may weaken one justification for sentencing – culpability – only to bolster another – future dangerousness – but there need not always be a tradeoff. In fact, the existence of data on abnormal brain functioning does not imply the associated behaviors are permanent. For example, consider Graham v. Florida and Sullivan v. Florida, in which the U.S. Supreme Court will determine whether juveniles can be sentenced to life imprisonment without parole for committing non-homicide offenses. In addition to petitioners’ claims that juveniles have diminished culpability, they argue that research on brain development indicates juveniles, as a class, are more likely than adults to change their bad behavior. As medical science develops better treatments for conditions that often underlie criminal behavior, such as addiction or mental illness, a greater number of defendants may seek to use evidence of their neurological condition to argue they can be rehabilitated.

Although scientists disagree about what behavioral conclusions can be drawn from brain imaging tests, neuroimaging evidence will continue to be admitted in cases like Brian Dugan’s, because the bar for admissibility is lower for mitigating evidence during the penalty phase of capital cases. Additionally, neuroscience research is being used to challenge the constitutionality of existing sentencing practices, demonstrated most recently by Graham and Sullivan. As a result, neuroscience evidence may have a greater impact on how a defendant is sentenced than on whether a defendant is convicted. How large that impact will be remains to be seen, but as Justice O’Connor said to the Stanford Lawyer magazine, “If we can better evaluate what the problem is and what the chances are of controlling the defendant’s behavior in the future, we’re going to be better off.”

- Kelly Lowenberg

category: Neuroscience

Mistaken Comas and The Problem of Consciousness

November 29, 2009 • by cmurdoch • comment [1]

To much international fanfare, news emerged this week that Steven Laureys, a coma researcher at the University of Liège in Belgium appears to have demonstrated that a man believed for 23 years to be in a vegetative state was in fact minimally conscious, presumably for the entire period. Laureys discovered Rom Houben was conscious when his brain was scanned using fMRI imaging, which revealed that it was “functioning almost normally”.

Earlier this year, Laureys, together with other researchers, conducted a study in which he re-diagnosed 44 patients thought to be in a vegetative state and found that 18, or 41 per cent were “minimally conscious”, a liminal zone between consciousness and unconsciousness, in which pain can be felt, some emotion can be experienced, a certain measure of communication is possible and recovery to full consciousness is more likely. By contrast, In a vegetative state (VS), reflexes are intact and the patient can breathe unaided, but there is no awareness.

Although the extent to which these 41% are conscious will surely vary, these results appear significant, as they suggest that many people currently presumed to be in a coma, may, like Houben, have residual or even full consciousness.

Houben’s work and this anecdotal rescue’s savvy public airing are interesting not only because of the deeply personal issues involved in thinking about loved ones at the brink of engagement with the world, but also because they touch on a deep-seated problem fundamental to neuroethics and the philosophy of mind: namely, the causes or correlates of consciousness, full stop. Where to draw the physiological threshold of consciousness continues to be a hotly debated issue because it involves the tense interplay of phenomenological subjectivity and intersubjective scientific practice. The problem is essentially that phenomenological consciousness, which is generally presumed to be only subjectively accessible, needs to be inferred from intersubjectively accessible markers (e.g. communication, fMRI data), which are gathered more or less rigorously, but are nevertheless not strictly isomorphic to what is commonly taken to be phenomenological consciousness.

An example of this problem tending towards the less rigorous end of evidence for consciousness was illustrated by controversy surrounding Houben’s means of communication, called “facilitated communication”, in which Houban communicates himself with assistance from an aide who helps guide his finger to the letters on a touchscreen. Some of the news footage of Houben appears to show him and his therapist typing on his computer screen with his eyes closed. Art Caplan has likened this method to a Ouija board, and famous skeptic James Randi has also expressed skepticism, although he maintains that the more rigorously collected fMRI data suggests his diagnosis as minimally conscious is correct.

- CJ Murdoch

category: Neuroscience