Punishment, Freedom, and the Culture of Control: The Case of Brain Imaging and the Law

I. INTRODUCTION The centrality of freedom as a philosophical construct is often neglected in contemporary academic circles and popular media outlets when it comes to discussions of crime, criminals, and the criminal law.1 This is surprising, especially since freedom-its absence or its presence-is an important ethical dimension underpinning all transgressive acts, including delinquency and crime.2 More specifically, the notion of freedom problematizes wayward conduct because transgression can (and does) emerge from freedom's limits rather than its excesses.3 What this suggests, then, is that criminality is not necessarily an artifact of one's autonomy gone awry or of making "bad" choices; rather, criminality may be a moment of self-discovery, transformation, and transcendence in which a "critical freedom" is borne.4 This is a period marked by living life on the edge; of contesting thresholds and boundaries in which "a plethora of original ideas, thoughts, inventions, new forms of resistance, and so forth" emerge.5 Complicating this more visceral and cathartic experience of criminality qua critical freedom, is the increasing presence and deployment of statesanctioned mechanisms of surveillance.6 These techniques of containment extend throughout various facets of social life (e.g., relaxed civil commitment statutes;7 city-wide sweeps for the homeless;8 heightened border patrol efforts targeting illegal immigrants;9 electronic home monitoring of paroled offenders;10 surveillance of non-criminal suspects11) and function to neutralize the presumed corrosive effects of a perceived expanding risk society.12 In a more politically charged context, however, this culture of control aims to discipline the subject,13 to territorialize knowledge,14 and to promote automaton conformity,15 all in the interest of preserving prevailing economic arrangements and status quo dynamics. The question, then, is whether the new technologies-particularly those emanating from brain biology and cognitive neuroscience16-further relegate the individual to the status of a mere body of utility consistent with the culture of control and the political and economic interests of the state.17 Moreover, the question is whether the sustained presence of a critical freedom-notwithstanding its active and deliberate engagement with new forms of pleasure, excess, resistance, and extremism-may be symbolic of the limits of personal and public autonomy traceable to an overly organized and largely scripted hyper-real society.18 This particular issue draws attention to the use of functional magnetic resonance imaging (fMRI)19 as a mechanism of surveillance that increasingly is deployed, marketed, and simulated, and as a sophisticated tool of cultural materialist society that produces a pseudoreality. This is a virtual state of existence that, knowingly or otherwise, commodities, technologizes, and, eventually, re-ontologizes the individual.20 If the above queries are answered in the affirmative, then a host of ethical concerns about the limits of these innovative technologies as appropriated in diverse societal contexts (especially their applications in the criminal law), emerge. This Article examines these issues within the framework of critical social theory and philosophical criminology,21 with particular focus on the use of fMRI brain-scanning technology as emblematic of the culture of control. For exemplification purposes, this Article showcases the application of this technology in the case of interrogating criminal suspects as well as offenders. Section II presents background information on the deployment of this new technology in the domain of criminal justice. This commentary summarily describes the projected use, scope, and goals of relying on fMRI advances as developed in brain biology and cognitive neuroscience, particularly as an innovative tactic to illicit information from potential or actual trangressors. Section III presents selected insights from critical social theory and philosophical criminology. …