Neuroscience, Brain Implants, Insurance, Artificial Intelligence & the questions of Criminal Responsibility

Neuroscience, Artificial Intelligence (AI), Brain Implants, Insurance and the questions of Criminal Responsibility.

Proposal for a New Standard Interpretations of Criteria of Criminal Responsibility.

Introduction

Science has been focusing on the computation of the brain for the last decades. Yet it truly did not move forward with its understanding of how a human brain works. The human brain is a largely fascinating mystery. [1] Meanwhile, science has been making a great progress in the development of artificial neural networks that are supposed to mirror the work of a real human brain. [2] This fascinating relationship between neuroscience and artificial intelligence (AI) both inspire and benefit each other. Interestingly, we can learn a lot about how the human brain works from the artificial models when applying the latter back to the former. There is much at stake thus the need for the development of the field of neuroscience, AI, ethics and law to come together and secure the future of the human rights and responsibilities.

Neuroscience, Artificial Intelligence (AI), Ethics and the questions of Criminal Responsibility

Neuroscience is merging with artificial intelligence in ways that will have a huge impact not only on the field of a human brain and artificial neural networks but on the field of human rights and responsibilities thus on the profound question such as, what it truly means to be a human? Currently and legally speaking to be a human it means to have legal rights and responsibilities. It indicates that humans are agents responsible for their own actions. They are responsible for taking a control of their own decisions and facing the consequences of their own actions. Yet artificial intelligence that may alter a human brain will most surely blur those lines. Imagine a situation when a human commits an out of character crime because his/her brain was stimulated artificially by a system of artificial neural networks being part of a brain implant fitted in his/her scull. Who will face the responsibility for that out of character crime? Do we need another set of answers than the one we already have for humans on medications or under hypnosis which also influence brain activity? Would the answers be any different for somebody using prosthetics, which also can affect brain activity? Would we have to create another legal terms for humans being connected to artificial systems altering their mental states? As an answer to the above questions it is argued here that brain implants that alter motor and mental functions should make legal systems reconsider standard interpretations of psychological and physical criteria of criminal responsibility.

Brain Implants and Criteria for Criminal Responsibility

In raising these issues, the point isn’t to question the value of brain stimulation by artificial devices which might bring a lot of positive results, like healing patients with currently incurable diseases. The point is that as the development of AI progresses, we must make sure that the ethical and legal guidelines keep pace. What are the current criteria of criminal responsibility? In the 1954 case of 'State v. White’ the court declared that:

“Assuming defendant's knowledge of the nature and quality of his act and his knowledge that the act is wrong, if, by reason of disease of the mind, defendant has been deprived of or has lost the power of his will which would enable him to prevent himself from doing the act, he can not be found guilty.”

According to the above ruling an accused is not criminally responsible if his/her unlawful act was the product of mental disease or mental defect. This declaration however presents very important difficulties namely, how to determine the meaning of the principles listed by the court? What does it mean a mental disease. The term has not been defined by the court’s opinion. It seams crucial to define this term especially when considering the actions of a brain altered by the fitting of a brain implant. Can the mental disease be caused by the brain implant? If the answer is ‘yes,’ under what circumstances?

Another court case for 1954 Stewart v. United States provides a narrow meaning of mental disease by stating:

”We use 'mental abnormality' as a general term to cover all forms of mental disease, mental deficiency and disorders of personality. (…) By 'mental disease' or 'disease of the mind,' we mean a pathological change arising de novo in the mind of an individual who has already progressed some way towards maturity or has attained it. We recognise that mental disease may occur in children, adolescents or adults, in persons of retarded or of normal intelligence, and in persons of normal or of psychopathic temperament. We conceive, however, that the implications of the word 'disease' are that a new element of mental deterioration or disorganisation is introduced, bringing with it a qualitative departure from the previously established norm. For us, therefore, mental disease is only one part of mental disorders of all kinds, and broadly corresponds to what are often called major diseases of the mind, or psychoses; although it may also arise in cases, such as those of epilepsy or cerebral tumor, which are not ordinarily regarded by doctors as psychotic. Among the psychoses are the conditions known as schizophrenia, manic-depressive psychoses, and organic disease of the brain. Other conditions, not included under this term, are the minor forms of mental disorder - the neurotic reactions such as neurasthenia, anxiety states and hysteria - and the disorders of development of the personality-psychopathic personality. We are aware that this classification will not be unconditionally endorsed by all psychiatrists, and that some would prefer to include under the term 'disease of the mind' even the minor abnormalities we have referred to. We believe, however, that the nature of the distinction we have drawn will be clear to them, and will be acceptable to them as the basis for a discussion of criminal responsibility."

According to the above criminal responsibility presuppose actions cannot result from sequences that bypass humans’ control of their mental states as the causes of their actions. Humans must act on their own, with their own initiative and cannot be influenced by medication, legal or illegal drugs, electrical stimulation of the brain, or other intervention. Criminal responsibility excludes all forms of brain interference because that may lead to default actions of that brain thus so called ‘a pathological change’. As such brain implants undermine the mental control necessary for criminal responsibility. Yet brain implants initially are created to improve the malfunctioning human brain. They can ensure that humans are the source of their own actions. That is the reason brain implants should make us reconsider the meaning of ‘autonomy,’ ‘independence’ and ‘personal control’ in discussions of criminal responsibility.

Brain Implants, Autonomy and Criminal Responsibility

‘One of the fundamental concepts involved in the justification of criminalisation is the principle of individual autonomy, and as far as criminalisation is concerned, a key concept here is that of individual rights.’ According to Downie and Calman an autonomous human is one who has the ability to choose, formulate and carry out their actions along with their ability to control their actions by ethical and legal means. In criminal law humans are autonomous if they have understanding of what they are doing, and are not made to do something but act within their own discretion. The question then arises what if a human with a brain implant which is designed to improve the originally malfunctioning brain instead of making it works properly causes deepening of its ‘mental disease’. Can we steal argue that the actions taken by the human are autonomous? If the answer is ‘no’. The next question would be who are legal systems supposed to make responsible for the criminal actions of that malfunctioning human brain?

Brain Implants and Insurance

One of the solutions could be obliging the brain implant to carry insurance. Actually, some US states have already moved in the suggested direction having passed legislation governing autonomous cars. That legislation treats each individual autonomous car as an insurable entity, which protects the car owner, producer and/or inventor when the liability is entirely held by the car. This is to argue that legislation requiring a brain implant to have its own insurance would prevent plaintiffs from suing the human owner of that implant. Thins in turn would incentives humans to have brain implants because they will not be personally liable for the accidents caused by their action under the influence of that implant. The brain implant would become a separate insurable entity that potentially would protect humans from frivolous lawsuits. This can be considered a logical and reasonable move when brain implants autonomously cause ‘devastating damage' and the agency principles for less advanced applications are not suitable. This is because the principal, such as the producer, designer or the human with the brain implant have no control over the actions of that device.

Conclusion

Obliging the autonomous cars to carry insurance was a victory for those who were seeking to reach and punish the real power, which was the self driving car itself hence introducing tools preventing a repetition of the offence. This provided the legal instruments regarding liability and compensation for the victims of this autonomous entities and their actions and other damage. This legal mean could be viewed as salutary development of legal systems and society as a whole. This is a legal instrument and a creation of a human mind designed for one purpose only, which is to make the entity in question recognisable to law in ways that enable to govern the outcomes of its relations. Consequently, it is argued here that the greater expansion to consider brain implants as able to carry insurance would be worthwhile.