People taking part in the "Lights4Liberty" protests against President Trump's planned ICE raids against immigrants and the detention centers along the southern border. The protestor is carrying a sign that reads, "Child detention camps destroy children."

Memory, Trauma, and Asylum Law: A Role for Neuroscience?

This post is part of our Eighth Annual Health Law Year in P/Review symposium. You can read all of the posts in the series here. Learn more about the event and stay tuned for video of each session on the Petrie-Flom Center’s website.

By Francis X. Shen and Aldis H. Petriceks

Today hundreds of thousands of asylum seekers await their hearings. Multiple studies conducted in 2019 confirmed that the conditions of detainment are often deplorable. The federal government recently acknowledged a lack of adequate medical and mental health care at the Southern Border, and the U.S. Civil Rights Commission issued a 200-page report documenting the Human Cost of Inhumane Immigration Policies, highlighting the severe damage to child and adult mental health at the border. All the while, despite public outrage and government claims to the contrary, family separation has remained prevalent.

Recent investigations into border detention facilities have revealed children sleeping in “cold cells without proper clothing or adequate food;” verbal abuse and emotional neglect; cells overcrowded with sick and unwashed children; and the constant, amplifying anxiety of children in fear of losing their parents. Beyond the border, in detention centers across the country, facilities are similarly deplorable.

According to recent studies, separately-detained immigrant children often suffer from anxiety, depression, post-traumatic stress disorder (PTSD), self-harm, and suicidal ideation. When these children are released, they are vulnerable to long-term separation anxiety, sleep disturbance, nightmares, and decreased academic capacity.

Common sense and compassion both suggest that these consequences are troubling and unethical. But legal advocates have found common sense and compassion in short supply.

Against this background, the Massachusetts General Hospital Center for Law, Brain and Behavior (CLBB) is asking a novel and important question: can neuroscientific evidence play a role in improving the conditions of confinement—and the courtroom outcomes—of asylum seekers?

The Center for Law, Brain and Behavior works at the vanguard of applied neuroscience: making neuroscience actionable for the legal community in order to ensure just and positive outcomes for all those affected by the law. We believe that better decisions, aligned with science, will produce better outcomes, aligned with justice.

We promote and enable the sound application of accurate neuroscience to critical areas of the legal process: criminal trials and sentencing, juvenile justice, elder protection, and immigration enforcement and asylum.

Our work in immigration justice began in 2019. As part of the Project on Law and Applied Neuroscience, a collaboration between the CLBB and Petrie-Flom Center, we held a kickoff event—Trauma at the Border—featuring Dr. Charles Nelson, III, Professor of Pediatrics at Harvard Medical School, and Attorney Cindy Zapata, Clinical Instructor in the Harvard Immigration and Refugee Clinical Program at Harvard Law School, together in dialogue surrounding the integration of science and law. Since then, we have been speaking with legal practitioners and scientists about whether—and how—neuroscience could play a larger role in promoting justice in immigration law.

Here’s what we’ve learned:

First, we are confident neuroscience offers valuable insight into the neurological harms inflicted on asylum seekers, especially children. The harms are extensive, with studies consistently demonstrating changes in brain structure, function, and connectivity resulting from childhood trauma. As just one example, childhood maltreatment—including physical, verbal, and non-verbal abuse and neglect—is associated with substantial reductions in grey matter in the hippocampus, a region of the brain tightly involved in memory and emotional regulation, and particularly susceptible to stress-related hormones.

Concurrent with these structural changes are shifts in specific neurological functions. Combined with the structural changes, these functional alterations may help explain why maltreated children—like those separately detained at the border—are more likely to suffer from PTSD, major depression, bipolar disorder, anxiety disorders, substance use disorders, personality disorders, and psychosis.

Second, the neuroscience of memory has important potential to help courts better understand that inconsistencies in narrative recall are not necessarily indicative of a lack of credibility in asylum seekers. Cognitive neuroscientists are beginning to uncover the underlying neurobiology of autobiographical recall among people with emotional disorders, showing how trauma can affect memory circuits.

Yet testimonial inconsistencies still play a very large role in negative credibility findings. This gap—between the neuroscientific and courtroom understandings of memory—is one more arena where the integration of neuroscience and law can provide fresh direction toward more just legal outcomes. Neuroscience may be powerful evidence if it allows judges and asylum officers to see individual trauma through a new, brain-based lens.

This is not an unfounded hope. In a series of landmark 8th Amendment cases restricting the use of the death penalty and life without parole for juvenile offenders, the United States Supreme Court cited that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” (Roper, Graham, Miller). After ten years of careful interdisciplinary collaboration between neuroscientists and lawyers, today juvenile justice litigators routinely cite neuroscientific findings in their briefs and arguments.

Our work in 2020 will further explore how attorneys representing asylum seekers may similarly find successful ways to integrate brain science into their work.

 

Francis X. Shen is the Senior Fellow in the Project on Law and Applied Neuroscience, a collaboration between the Massachusetts General Hospital Center for Law, Brain and Behavior (CLBB) and the Petrie-Flom Center.

Aldis H. Petriceks is an MD student at Harvard Medical School (HMS), fellow in the HMS Klingenstein Fellowship Program in Child and Adolescent Psychiatry, and research assistant at the CLBB.

Francis X. Shen

Francis X. Shen

Professor Shen is Associate Professor of Law and McKnight Land-Grant Professor at the University of Minnesota Law School, where he joined the faculty as an associate professor in 2012. In fall 2017, Francis X. Shen became the third Senior Fellow in Law and Neuroscience at the Project on Law and Applied Neuroscience, a collaboration between the Center for Law, Brain & Behavior at Massachusetts General Hospital and the Petrie-Flom Center. He was previously a Visiting Scholar at the Center in spring 2015.

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