Neurolaw in Latin America: Current Status and Challenges

Abstract

Despite several decades of growing interest in the concept of neurolaw in English-speaking countries, it is only a recent area of focus in Latin America. The objective of this article was to facilitate evidence-informed public policy by examining the current state of neurolaw in Latin America. To achieve this goal, this systematic review summarizes published articles, books, and book chapters, and discusses seminal legal cases in order to identify the current state of neurolaw in Spanish-speaking Latin American countries. In total, 61 publications were identified, with the majority coming from Mexico (n = 17), Argentina (n = 15), and Colombia (n = 12). None of the published work identified presented empirical research, but many publications discussed complex topics such as criminal responsibility, free will, and neuroethics. The scant literature base and high concentration of publications emanating from three countries suggest that despite its growing impact abroad, more work is needed in this area in order to influence Latin America legislation and on the development of public policies. Future areas of research and policy related implications are discussed.

Keywords:

• Neurolaw
• Latin America
• neuroscience
• criminal law

Notes

1  There are several interesting forensic neuropsychology studies produced out of Latin American research programs, including studies that examined the attention, memory, and executive functions of forensic populations, such as prisoners (Arias & Ostrosky, 2010), empathy levels of violent psychopathic offenders (Díaz, Ostrosky, & Romero, 2015), orbitofrontal functioning among psychopaths (Díaz, Ostrosky, Ortega, & Pérez, 2013), serial murderers (Ardila & Ostrosky, 2009), and the neurobiology of morality (Ostrosky & Vélez, 2008). However, these studies do not specifically analyze the relationship between neuroscience and law. Instead, they concentrate their efforts on neuropsychological evaluation, and their conclusions are closer to forensic neuropsychology than to neurolaw. In the realm of Philosophy of Law, research from Mexico addresses mental models of judicial reasoning (Cáceres, 2011; 2012; 2017) which is more related to neuroethics than to neurolaw.

2  Consequently, the defendant in this case was absolved under the benefit of the doubt for several incidents that included different thefts and threats made in the context of a severe substance use disorder.

3  From Mexico, published in England.

4  From Costa Rica, published in Germany.

5  From Spain, published in Argentina.

6  From Mexico, published in Spain.

7  From Argentina, published in Spain.

8  For example, in 2009, the Mexican Supreme Court of Justice of the Nation resolved two appeals. The first case involved the analysis of epilepsy as a cause for military retirement under “bar from military service,” and whether removal due to epilepsy or other forms of seizures would violate the equality and non-discrimination principle of the Federal Constitution. One of the Ministries of Court requested advice from the Instituto Nacional de Neurología in order to inform his judiciary reasoning for these cases (Cossío, 2011). Although four Supreme Court Ministers ruled that the provision was constitutional, Justice Cossío (2011) dissented and opined that the aforementioned provision was unconstitutional, since its excessively wide and undetermined language opened the door to declarations of “uselessness for the service” without ensuring this rests in every case in a genuine incapacity to develop a job in the Army (p. 362).

9  The department of forensic psychology was founded in 2002 (PGR, 2013).