Genetic & Environmental Influences on Criminal Behaviour

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CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36.

GENETIC & ENVIRONMENTAL INFLUENCES ON CRIMINAL BEHAVIOUR *Dr. Nirmal Kanti Chakraborty **Pratyush Nath Upreti ***Anoop Mishra KEYWORDS: heritability, criminal behaviour, gene-environment interaction, criminal testimony. _________________________________ ABSTRACT Several genetic research characterize at aiming the existence of genetic influence on criminal behaviour. Studies on twins also play a major role in determining the existence of such theories. Physical and mental disorders too contribute to such behaviours. Nonetheless researchers also prove the effect of environment on the criminal behaviour. In contrary to it researchers also prove that not in all cases that the relevant environmental factors do influence the criminal behaviour. The interaction of genetic-environment factors also contribute majorly to such criminal behaviour. The relevancy of such biological and environmental testimony can play a major role while dealing with criminal cases. INTRODUCTION The aim of this article is to demonstrate that both genetic and environmental influences contribute to criminal behaviour. In the past if we refer to certain theories then it seems to that criminality was a sickness or mental illness or it was due to some physical or biological disorder. Modern biologists consider that genes are relevant because they have a strong effect influence on brain function and therefore, it is believed, on behaviour and criminality. Since all human beings (except identical twins) are genetically unique this can help explain differences in behaviour by individuals who have been subjected to similar environmental and social influences. Modern biologists generally acknowledge the importance of environmental and social influences on criminal behaviour and suggest that they should be studied in parallel with genetics-they call this a biosocial perspective by which they recognize that biological characteristics will not determine whether an individual will take part in criminal behaviour but they may increase its likelihood. ___________________________________________________________________________ *Director, KIIT LAW SCHOOL, KIIT UNIVERSITY, BHUBANESWAR. ([email protected]) **B.SC.LLB. 3rd Year ([email protected]) ***B.SC.L.LB. 3rd Year ([email protected])

Electronic copy available at: http://ssrn.com/abstract=2188834

CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36. GENETIC INFLUENCES This is the concern of debate that whether both genes and environment do play a role in the criminality of an individual. This evidence has been generated from a number of twin, family, and adoption studies as well as laboratory experiments. Several researches have stated that it is more often an interaction of both, genes and the environment that contributes to criminal behaviour. Genetic theories of the origins of criminal behaviour have been a source of contention for over a century since Lombroso proposed quasi-biological explanations of criminal behaviour. Genetic theories of criminality have been especially controversial within the field of criminology because of the eugenic policies that they inspired that were implemented during the Nazi era. The knowledge and more prominent researches on the human genomic sequences have made it more interesting for the researchers to prove the contribution of genetics to anti social behaviour such as aggressiveness, addiction, mental disorders and criminal behaviour. These researches on the genetic and environment influence of criminal behaviour should be made more open to debate to criminologists, lawyers and policy makers in the criminal justice system. There is an understandable fear among criminologists that information on increased genetic risks of engaging in criminal acts may adversely affect strategies used to prevent and deal with people who commit crimes. Some commentators fear that genetic information on criminal predisposition may be used by policy makers to justify reduced funding for programs directed at environmental causes of crime. More speculatively, there is a concern that the identification of genetic susceptibility to criminality may lead to proposals for genetic screening of the population for susceptibility to criminal behaviour. Recent developments in behavioural genetics, neuroscience, neurology, neurosurgery, and psychiatry are converging on the following view: the structures in the brain and nervous system derive from particular gene products and all voluntary and involuntary behaviours originate or are mediated in these structures. DEFINING CRIMINAL BEHAVIOUR Antisocial acts that place the actor at risk of becoming the focus of the attention of the criminal and juvenile professionals. Criminal behaviour is defined by statute and as such is necessarily a social and legal concept rather than a biological one. In light of this fact, some researchers have argued that criminal behaviours should be examined within the wider context of antisocial behaviour. Three ways of defining antisocial behaviour can be distinguished. The first approach equates it with criminality and delinquency. Criminality is defined as engaging in activities that result in criminal prosecution or incarceration, while delinquency is defined as engagement in

Electronic copy available at: http://ssrn.com/abstract=2188834

CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36. unlawful activities while under the age of 18. Information on these types of antisocial behaviour can be collected either through police and court records of criminal offences or via anonymous self-reports of participation in activities that would be considered criminal if they had resulted in arrest and conviction. This categorization of criminal behaviours is problematic because it means that what constitutes criminal behaviour is defined by statute and therefore changes over time and varies between countries. The second approach that is often used in genetic studies is to use diagnostic criteria for various personality disorders that area associated with an increased risk of criminal activity, namely, Antisocial Personality Disorder (ASPD). ASPD is characterized by a persistent disregard for, and violation of, the rights of others. It can only be diagnosed in individuals over the age of 18. Three childhood disorders: Attention Deficit Hyperactivity Disorder (ADHD), Conduct Disorder (CD) and Oppositional Defiant Disorder (ODD), are also often assessed because they have been identified as risk factors for development of ASPD. ADHD is distinguished by frequent inattention and/or hyperactivity-impulsivity, while individuals with CD display behavioural characteristics that are comparable to ASPD (violation of societal norms or rules). ODD is similar to CD in that it involves disobedient or hostile behaviour, but if more serious forms of behaviour are present, the diagnosis of CD takes precedence. A third approach to antisocial behaviour has been to investigate personality traits that may be risk factors for engaging in criminal behaviour. Aggressiveness and impulsivity have been the most heavily researched traits, usually assessed by personality questionnaires. Adult hyperactivity, often appearing as ADHD, may also be of interest because individuals who exhibit both antisocial and hyperactive behaviour are more likely to engage in criminal behaviour. These three broad approaches to measurement overlap and are interrelated. For example, a prior diagnosis of CD is part of the criteria for ASPD and approximately half of all children clinically diagnosed with ADHD also have ODD or CD. Additionally, childhood aggression has been found to predict adult criminality, and criminality, aggressiveness and impulsivity are also part of the criteria for ASPD. CANDIDATE GENES Candidate genes are specific genes that are thought to contribute to an increased risk of engaging in antisocial behaviour. They are usually selected on the basis of information about the brain-related bases of behaviour and personality traits. Association’s studies are usually used to investigate candidate genes. These studies examine whether one variant of a candidate gene occurs more often in individuals who display antisocial behaviour than in some comparison group. As has been true in studies of many other personality traits, research on candidate genes for antisocial behaviour has primarily focused on genes that influence the ways in which nerve impulses are transmitted and received in the brain. Three such pathways have been investigated in relation to antisocial behaviours.

CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36. THE SEROTONERGIC PATHWAY The serotonergic pathway is involved in brain development and dysfunction in this system is thought to increase aggressiveness and impulsivity. Associations have been found between a number of genes involved in this pathway and antisocial behaviours, namely impulsivity, aggression and ADHD. THE DOPAMINERGIC PATHWAY The dopaminergic system is involved in “reward pathways” in the brain. Genes involved in this pathway have primarily been investigated for involvement in ADHD, although one study did find an association with impulsivity and ADHD-related symptoms in violent offenders. THE NORADRENERGIC PATHWAY The noradrenergic system functions as a central arousal system. Disruptions to the regulation of the noradrenergic pathway have been implicated in psychological disorders such as anxiety and depression. Only two genes involved in this pathway have been examined for a relationship with antisocial behaviours. They have been found to be associated with ADHD and also impulsivity and hostility. GENES INVOLVED IN TWO OR MORE PATHWAYS Dopa decarboxylase (DDC) is involved in both the serotonergic and dopaminergic systems. Two studies have provided evidence that suggests the involvement of this gene in ADHD. Monoamine oxidase A (MAOA) is involved in the serotonergic, dopaminergic and noradrenergic pathways. Although this relationship has not been confirmed outside the family examined in the original study, MAOA has been the focus of a number of studies, some of which suggest that the gene has some influence upon antisocial behaviours.

GENETIC INHERITANCE AND CRIMINALITY In the research done by Goring in 1913 over the prisoners he regarded the criminals as inferior to the non criminals both in terms of physical and mental ability. He found strong correlations between the criminality of children and of their parents, and between the criminality of brothers. He argued that such correlations were not explained by environmental factors. Goring also asserted that his findings could not be explained by learning from the example of other family members. To support that claim, Goring pointed out that the correlation coefficient for stealing was similar to that for sex offences. It was assumed that parents would be open about their dishonesty but not about their sexual offences. Also children those were separated from parents at an early age because the latter were imprisoned were as likely, or more likely, to become criminals, when compare with the other children not separated in this way. Thus contact with a criminal factor did not seem to be a factor associated with criminal conduct. Goring therefore claimed that the primary source of criminality was hereditary rather than environmental factors.

CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36. STUDIES OF TWINS There is a clear difference, in genetic terms, between identical twins and fraternal twins. Identical twins occur when a fertilized egg produces two embryos. They are genetically identical. Fraternal twins are the result of two eggs being fertilized at the same time. They do not have the same genetic identity and are similar to the offspring’s born after two pregnancies. The results of one of the better-known studies by Lange, are described in Crime as Destiny (1930). Lange identified a group of 30 men, comprised of 13 identical twins and 17 fraternal twins, all of whom had a record of being imprisoned. In checking the background of the men’s twin brothers, Lange found that in 77 percent of the cases for the identical twins, the other brother also had a record of imprisonment. However, for the fraternal twins, only 12 percent of the second twins had a prison record. This precentaged relationship is referred to as criminal concordance. More than 200 pairs of ordinary brothers, near to each other in age, were compared in a similar way. Where one brother had a record of being imprisoned, the same only applied to the second brother in only 8 percent of cases. Lange concluded from his findings that heredity played a major part in the causation of crime. ENVIRONMENTAL INFLUENCES Thus with several studies and researches it can be well established that genetics do influence criminal or antisocial behaviour. However, several researchers also agree to the environmental effect on the criminal behaviour. Many professionals argue that biological factors are not solely responsible for these behaviours. In fact, Dr. Lonnie Athens, a professor of criminology at Seton Hall University, has come up with his own representations for why individuals exhibit violent behaviour. He believes that violent individuals have encountered certain elements during their lifetimes that have contributed to their behaviour. The elements listed are: individuals have been violently violated, threatened, tortured or have watched other individuals in that position; they have been taught and encouraged to commit violence and thus proceeded to do so; they can manipulate respect from others by showing rage and committing violent acts; and finally that the mixture of intense feelings (such as rage) cause the individual to feel vulnerable and thus committing violent acts for self-preservation, to reduce frustration, and to reduce personal fears. As shown with this model, individuals are more prone to have criminal/violent behaviour that stems from societal/psychological factors rather than simply biological. In fact, research is showing that juvenile criminal behaviour is more closely linked to social elements rather than biological. These elements include factors such as socioeconomic status, the community one resides in, family structure, and school involvement. The family which cannot afford a good and economic life to the children and they suffer problem in maintaining the family, is likely to induce criminal behaviour in the children. Thus

CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36. in these situations it is obvious that there is going to be adverse effect of such conditions on the child. There are problems associated with a child who is diagnosed with ADHD and how that can influence antisocial or criminal behaviour. In relation to that, some researchers have claimed that it is the family environment that influences the hyperactivity of children. The researchers in this article specifically identify family risk factors as poverty, education, parenting practices, and family structure. Prior research on the relationship between family environment and child behaviour characterizes a child's well being with a positive and caring parent-child relationship, a stimulating home environment, and consistent disciplinary techniques. Families with poor communication and weak family bonds have been shown to have a correlation with children's development of aggressive/criminal behaviour. Therefore it seems obvious to conclude that those families who are less financially sound, perhaps have more children, and who are unable to consistently punish their children will have a greater likelihood of promoting an environment that will influence antisocial or delinquent behaviour. Another indicator of future antisocial or criminal behaviour is that of abuse or neglect in childhood. A statistic shows that children are at a fifty percent greater risk of engaging in criminal acts, if they were neglected or abused. This has been one of the most popular arguments as to why children develop antisocial or delinquent behaviours. One additional research finding in the debate between genetic and environmental influences on antisocial or criminal behaviour has to deal with the age of the individual. Research seems consistent in recognizing that heritability influences adult behaviour more than environmental influences, but that for children and adolescents the environment is the most significant factor influencing their behaviour. One of the most important environmental factors during childhood development is that of socialization or the way a child is ‘taught’ how to act. This refers to the period of childhood development when children learn the rules and values of their society. This model hypothesizes that initially children learn to merely obey the rules of their society. Certain actions are repeated because of directly correlated consequences. A child does not intuitively know that stealing is wrong; they have to be taught through negative consequences that this behaviour is not acceptable. They then internalize these rules and eventually believe them to be fundamentally correct. In other words, socialization refers to the developmental period where the ideals of morality and socially acceptable behaviour are instilled in a child. If a child is consistently taught how to act through both positive and negative reinforcement, the child will begin to exhibit certain characteristics because they believe them to be inherently correct. If a child is not taught how to properly act or inconsistently reinforced, clear-cut moral obligations may not be instilled leading to effected social judgment and a disposition towards criminal behaviour.

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Gene environment interaction There are theories, however, concerning genetic and environmental influences, which seem to suggest an interaction between the two and one such theory is the general arousal theory of criminality. Personality psychologist Eysenck created a model based on three factors known as psychoticism, extraversion, and neuroticism, or what is referred to as the PEN model. Psychoticism was associated with the traits of aggressive, impersonal, impulsive, cold, antisocial, and un-empathetic. Extraversion was correlated with the traits of sociable, lively, active, sensation-seeking, carefree, dominant, and assertive. Finally, neuroticism was associated with anxious, depressed, low self-esteem, irrational, moody, emotional, and tense. Through research and surveys, Eysenck found that these three factors could be used as predictors of criminal behaviour. He believed this to be especially true of the psychoticism factor and that measuring it could predict the difference between criminals and non-criminals. Extraversion was a better predictor for young individuals, while neuroticism was a better predictor for older individuals. An important point about these factors and the personality traits associated with them is that most of them have already been found to be heritable. USE OF HUMAN BEHAVIOURAL GENETICS IN CRIMINAL CASES U.S. criminal justice system has introduced expert testimony regarding the biological predispositions of criminal defendants, thus far with limited success. With the scientific research still in its infancy, criminal defendants have encountered significant hurdles when introducing expert testimony into U.S. criminal courtrooms regarding behavioural genetics. These defendants have primarily failed in their attempts because of the inadequacy of the science, the theoretical incompatibility of the evidence with the claim advanced, or because of procedural issues in U.S. criminal law barring the introduction of such evidence. In several cases, criminal defendants have introduced biological predisposition testimony in an attempt to negate the presumption they acted voluntarily in the commission of the crime. The majority of defendants to advance such claims have done so in the context of drug or alcohol addiction. In Von Dohlen v. State, 602 S.E.2d 738, 743 (S.C. 2004), Von Dohlen the defendant argue that because of genetic predisposition the defendant was suffering from mental disease and severe depression and argued that homicide was product of that disease and it was not a voluntary criminal act. Court rejected the arguments and convicted him and sentenced to death for the armed robbery and murder of a dry-cleaning shop employee as he fatally shot in the back of the head. A psychologist testified was brought in front of court for post-conviction relief that as a result of ‘his altered mental state the murder was not a volitional thing but out of his conscious awareness or control. On appeal made by defendant the court reversed the earlier court’s denial of post-conviction relief, finding instead that the psychological testimony created a ‘reasonable probability the outcome of the trial might have been different had the jury heard the available information about the defendant’s mental condition.

CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36. In U.S. court only a few defendants have offered evidence of a behavioural predisposition. In one of the few recorded instances of such a claim is State v Davis (App 467, 46 P3d 229, 2002), in this case defendant argue that his mental condition, to which he was genetically predisposed, prevented him from forming the requisite intent to commit first-degree murder, reckless endangerment, or possession of a weapon on school property. For support of this, psychiatric testimony was brought in court mentioning that he had genetic predisposition for depression and mental illness, shown by the history of severe depression in his family. The jury rejected his claim, and the court affirmed on appeal, noting that the objective manifestations of Davis’s behaviour prior to and during the commission of the alleged crime properly informed the jury’s determination of his mental state. Although genetic predisposition testimony has likewise been introduced to establish the defendant acted in accordance with a mental disease or defect in support of an insanity defense, courts generally conclude the defendant could still appreciate the wrongfulness of his conduct and conform to the law. The majority of criminal defendants to have introduced expert testimony regarding their behavioural predisposition in U.S. criminal cases have done so in an attempt to mitigate their sentence, rather than to excuse or justify criminal conduct. When used as mitigating evidence, defendants argue that their genetic predispositions make them less culpable offenders because their behaviour arose not as a result of ‘bad character’ but from ‘bad genes. As the science develops, particularly in elucidating the relationship between specific genetic factors and behavioural outcomes, mitigation theories like this one will likely become more prevalent in U.S. criminal cases. Testimony regarding genetic influence in U.S. criminal cases has been quite limited. In May 2004, the faculty of Vanderbilt Forensic Psychiatry (a component of the Vanderbilt University School of Medicine Department of Psychiatry in Nashville, Tennessee) started to include genetic testing as part of their comprehensive pre-trial forensic psychiatric evaluation of defendants charged with homicide. THE IMPACT ON THE CRIMINAL JUSTICE SYSTEM There are three ways that information about genetic influences on behaviour could be used in the criminal justice system. 1. As an excuse Our legal system is based on the idea of personal responsibility. A person is answerable for their actions and so can be held legally responsible for a crime. There are some exceptions to this, for example, a person with a mental disorder may be said to have diminished responsibility and so may not be held responsible for their behaviour. Genetic information about a behavioural trait can be used to explain a crime, or even to excuse the offender. It has been argued that if genes influence behaviour and character, and we cannot choose our genes, then our behaviour is outside our control and we are not responsible. However, we take the view that genes are not deterministic, and that there is scope for an explanation of human behaviour that allows for genes to have some influence over our characteristics but also holds that we are responsible for our actions. So we conclude that genetic information

CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36. about behaviours within the normal range does not absolve an individual from responsibility for an offence. Research in behavioural genetics does not pose a fundamental challenge to our notions of responsibility. 2. When sentencing Genetic information affects the way in which we sentence convict. Judge already use additional information about offenders to help decide what sentence to hive, including the offender’s previous criminal record, the extent to which the crime was premeditated and any mitigating, or explanatory, factors. These can include information about environmental influences such as poverty or an abusive childhood, which may affect the likelihood of criminal behaviour. Thus we conclude that genetic information could be taken into account by judge when sentencing if the information is to be used in this way, it is vital that the genetic link is convincing, and that tests are accurate and reliable. 3. Prediction It is unlikely that genetic information will be accurate enough to justify using it in its own to predict antisocial behaviour. However, when combined with environmental information it might allow more accurate predictions to be made. This information could be used in two ways that is to detain someone as a precaution, or to target an intervention to help someone. Thus we conclude that, where a person has not yet been convicted of a crime, neither genetic nor non-genetic information should be used to predict future behaviour with a view to detaining an individual. However, if information could be used for the benefit of the individual, for example, as a reason for improving particular environmental conditions, this may be justified. FUTURE SCOPE AND DIRECTION We are not proposing that the science of behavioural genetics will favor either the defense or the prosecution in criminal trials. We are simply predicting that research in this area will flourish and will identify more interactions among specific genes and specific life experiences, which promote specific behavioural outcomes. Criminal defense attorneys, for example, may seek to present testimony regarding behavioural genetics in several circumstances:  As mitigating evidence during capital sentencing hearings.  To bolster the argument that a defendant may have been unable to subjectively form the metal state required for a particular crime, particularly with respect to premeditation for first degree murder.  In the juvenile justice system to demonstrate that the juvenile’s behaviour was partly determined by factors that were beyond his control (such as his genes and his history of child abuse) and that may be treatable, to support retaining the case in juvenile court rather than moving to criminal court. The future promises a deluge of gene-environment research on human behaviour, and such evidence has and will continue to be introduced in the criminal court room. Paul S.

CALCUTTA LAW TIMES, March Issue, 2011 Vol 1.Page 36. Appelbaum recently concluded that, recent research findings suggest that behavioural genetics may be the next frontier for the world of criminal justice, and mental health professionals are likely to play a critical role in helping the courts make sense of the new date. The recent use of such evidence in the criminal courtroom suggests that his prediction is beginning to be realized. GENE-ENVIRONMENT INFLUENCE CONCEPT: INDIAN PERSPECTIVE In India the concept of gene and environment influence on criminal behaviour has not been raised in court of law. But in future defendant can argue on the basis of gene and environment influence on accused in order to reduce the punishment. Section 45 of The Indian Evidence Act, 1872 define the expect which also include “science” “When the court has to form an opinion upon a point if foreign law or of science or art, as to identify of handwriting (or finger impressions), the opinions, upon that point of persons especially skilled in such foreign law, science, art, (or in questions as to identify of handwriting) (or finger impressions) are relevant fact. Thus we cannot say there is lacuna in the legislation as the word SCIENCE used in the provision has a wider scope which incorporates genetic evidence in the court. The problem is the defendant as well as a prosecution has not looked into this gene-environment influence on criminal behaviour so, court in India has not looked in this accept. Slowly court in India has been considering the forensic evidence so in the further future there are more possible changes that the concept of genetic evidence will be introduced frequently. CONCLUSION The Concept of Gene-Environment influence has not being frequently raised in court of law as the research is going on this issue, however there are possible chances that in future this issue may be used and court can look into as it was been considering forensic evidence. The goal of the judge is to find the appropriate balance between further advances in biotechnology and ensuring justice. Judges must decide in the reality of the moment and not simply in pursuit of some far off goal. And the reality is that biotechnology is advancing quickly, and not only in terms of scientific knowledge. The research is going on the concept of several genes and how it effect on criminal behaviour. The concept of Gene-Environment influence on criminal behaviour is on the phase of developing. "A judge is not a scientist and a courtroom is not a scientific laboratory" but that "to do our legal job properly we (need) to develop an informed, though necessarily approximate, understanding of the state of ...relevant scientific art." U.S. Supreme Court Justice Stephen Breyer.

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