Pain can be the most intimate, most uncalibrated, most driving force in an individual’s life.1 Its diagnosis and treatment can also be complicated, which has inspired a growing taxonomy of descriptors to pin it down.2 At the same time, advances in pain science and breakthroughs in imaging technologies hold the potential to educate judges and juries about the unseen and sometimes unprovable experience of pain.
Civil litigants have taken the lead in pursuing neuroimaging to make their case, but criminal law is in desperate need of this kind of evidence as well. The “pains of imprisonment”3 can directly influence cognitive function, which in turn affects decision-making and free will (voluntariness).4 One scholar has noted: “Chronic pain compromises the brain’s cognitive and affective functioning, creating cognitive and emotional difficulties as a side effect of the pain syndrome.”5 Neuroscience and studies in mental health generally are shedding light on the effects of incarceration as source and exasperator of illness, disorders, disabilities and syndromes, some of which originated in or are associated with chronic pain.
This article surveys legal scholarship and medical research concerning the study of pain and its significance for the administration of civil and criminal justice.
Classification of Chronic Pain (IASP rev. ed. 2012)
“Descriptions of Chronic Pain Syndromes and Definitions of Pain Terms–Note: The IASP Taxonomy (based on Part III) was updated in 2011 by the IASP Taxonomy Working Group. View the newest definitions and notes here.”
Pain: The Science of Suffering (Columb. U. Press 2000)
“Pain is one of medicine’s greatest mysteries. When farmer John Mitson caught his hand in a baler, he cut off his trapped hand and carried it to a neighbor. “Sheer survival and logic” was how he described it. “And strangely, I didn’t feel any pain.” How can this be? We’re taught that pain is a warning message to be heeded at all costs, yet it can switch off in the most agonizing circumstances or switch on for no apparent reason. Many scientists, philosophers, and laypeople imagine pain to operate like a rigid, simple signaling system, as if a particular injury generates a fixed amount of pain that simply gets transmitted to the brain; yet this mechanistic model is woefully lacking in the face of the surprising facts about what people and animals do and experience when their bodies are damaged.
Patrick Wall looks at these questions and sets his scientific account in a broad context, interweaving it with a wealth of fascinating and sometimes disturbing historical detail, such as famous characters who derived pleasure from pain, the unexpected reactions of injured people, the role of endorphins, and the power of placebo. He covers cures of pain, ranging from drugs and surgery, through relaxation techniques and exercise, to acupuncture, electrical nerve stimulation, and herbalism.
Pain involves our state of mind, our social mores and beliefs, and our personal experiences and expectations. Stepping beyond the famous neurologic gate-control theory for which he is known, Wall shows that pain is a matter of behavior and its manifestation differs among individuals, situations, and cultures. “The way we deal with pain is an expression of individuality.””
REPORTS AND GUIDES
“Current approaches to classification of chronic pain conditions suffer from the absence of a systematically implemented and evidence-based taxonomy. Moreover, existing diagnostic approaches typically fail to incorporate available knowledge regarding the biopsychosocial mechanisms contributing to pain conditions. To address these gaps, the Analgesic, Anesthetic, and Addiction Clinical Trial Translations Innovations Opportunities and Networks (ACTTION) public-private partnership with the US Food and Drug Administration and the American Pain Society (APS) have joined together to develop an evidence-based chronic pain classification system called the ACTTION-APS Pain Taxonomy (AAPT). This manuscript describes the outcome of an ACTTION-APS consensus meeting, at which experts agreed on a structure for this new taxonomy of chronic pain conditions. Several major issues around which discussion revolved are presented and summarized, and the structure of the taxonomy is presented. AAPT will include the following Dimensions: 1) Core Diagnostic Criteria, 2) Common Features, 3) Common Medical Comorbidities, 4) Neurobiological, Psychosocial and Functional Consequences, and 5) Putative Neurobiological and Psychosocial Mechanisms, Risk Factors & Protective Factors. In coming months, expert working groups will apply this taxonomy to clusters of chronic pain conditions, thereby developing a set of diagnostic criteria that have been consistently and systematically implemented across nearly all common chronic pain conditions. It is anticipated that the availability of this evidence-based and mechanistic approach to pain classification will be of substantial benefit to chronic pain research and treatment.”
“This guideline provides recommendations for primary care clinicians who are prescribing opioids for chronic pain outside of active cancer treatment, palliative care, and end-of-life care. The guideline addresses 1) when to initiate or continue opioids for chronic pain; 2) opioid selection, dosage, duration, follow-up, and discontinuation; and 3) assessing risk and addressing harms of opioid use. CDC developed the guideline using the Grading of Recommendations Assessment, Development, and Evaluation(GRADE) framework, and recommendations are made on the basis of a systematic review of the scientific evidence while considering benefits and harms, values and preferences, and resource allocation. CDC obtained input from experts, stakeholders, the public, peer reviewers, and a federally chartered advisory committee. It is important that patients receive appropriate pain treatment with careful consideration of the benefits and risks of treatment options. This guideline is intended to improve communication between clinicians and patients about the risks and benefits of opioid therapy for chronic pain, improve the safety and effectiveness of pain treatment, and reduce the risks associated with long-term opioid therapy, including opioid use disorder, overdose, and death. CDC has provided a checklist for prescribing opioids for chronic pain (http://stacks.cdc.gov/view/cdc/38025) as well as a website (http://www.cdc.gov/drugoverdose/prescribingresources.html) with additional tools to guide clinicians in implementing the recommendations.” See also CDC Releases Guideline for Prescribing Opioids for Chronic Pain (CDC 2016) (“As part of the urgent response to the epidemic of overdose deaths, CDC issued new recommendations for prescribing opioid medications for chronic pain, excluding cancer, palliative, and end-of-life care. The CDC Guideline for Prescribing Opioids for Chronic Pain, United States, 2016 will help primary care providers ensure the safest and most effective treatment for their patients. . . . CDC developed user-friendly materials to assist providers with implementing the recommendations, including a decision checklist. These materials, as well as information for patients, are available at http://www.cdc.gov/drugoverdose/prescribing/resources.html.”)
“The following pain terminology is updated from “Part III: Pain Terms, A Current List with Definitions and Notes on Usage” (pp 209-214) Classification of Chronic Pain, Second Edition, IASP Task Force on Taxonomy, edited by H. Merskey and N. Bogduk, IASP Press, Seattle, 1994.”
“And, recognizing the intrinsic dignity of all persons and that withholding of pain treatment is profoundly wrong, leading to unnecessary suffering which is harmful; we declare that the following human rights must be recognized throughout the world: Article 1. The right of all people to have access to pain management without discrimination. Article 2. The right of people in pain to acknowledgment of their pain and to be informed about how it can be assessed and managed. Article 3. The right of all people with pain to have access to appropriate assessment and treatment of the pain by adequately trained health care professionals.”
Relieving Pain in America: A Blueprint for Transforming Prevention, Care, Education, and Research (NAS Institute of Medicine 2011)
“Chronic pain affects about 100 million American adults—more than the total affected by heart disease, cancer, and diabetes combined. Pain also costs the nation up to $635 billion each year in medical treatment and lost productivity. The 2010 Patient Protection and Affordable Care Act required the Department of Health and Human Services (HHS) to enlist the Institute of Medicine (IOM) in examining pain as a public health problem. Acting through the National Institutes of Health (NIH), HHS asked the IOM to assess the state of the science regarding pain research, care, and education and to make recommendations to advance the field. Relieving Pain in America: A Blueprint for Transforming Prevention, Care, Education, and Research presents the IOM study committee’s findings and recommendations.”
Anatomy of Suffering: Understanding the Relationship Between Nociceptive and Empathic Pain, 20(4) Trends Cogn. Sci. 249 (2016)
“Pain features centrally in numerous illnesses and generates enormous public health costs. Despite its ubiquity, the psychological and neurophysiological nature of pain remains controversial. Here, we survey one controversy in particular: the relation between nociceptive pain, which is somatic in origin, and empathic pain, which arises from observing others in pain. First, we review evidence for neural overlap between nociceptive and empathic pain and what this overlap implies about underlying mental representations. Then, we propose a framework for understanding the nature of the psychological and neurophysiological correspondence across these types of ‘pain’. This framework suggests new directions for research that can better identify shared and dissociable representations underlying different types of distress, and can inform theories about the nature of pain.”
Architectures of Incarceration: The Spatial Pains of Imprisonment, 13 Punishm. Soc. 611 (2011)
“This article considers the contribution that physical environment makes to the pains of imprisonment. Synthesizing concepts and theories from critical organization studies with those that have informed criminological studies of prison design and the lived experience of imprisonment, the article discusses the ways in which the architecture and aesthetics of penal environments might be better understood with reference to the restricted economies of space found in industrial and bureaucratic organizations. It is argued that a grasp of the limits historically placed on the subjective growth of individual workers (workspaces frequently being characterized as ‘iron cages’ or ‘psychic prisons’) can enhance our understanding of the physical and psychological confinement of those in custody. Moreover, critical organization studies can inform emerging debates about what future prisons should look like and alert us to the potential fallacy in assuming that ‘modern’ equates to ‘better’. While clean, humane and safe environments are unquestionably desirable for both prisoners and prison staff, and considerations such as natural daylight, access to outside space and aesthetic stimuli are increasingly being incorporated into penal environments around the world, this article will critically interrogate the value of such initiatives arguing that they may, in fact, represent a new and potentially more insidious form of control that bring their own distinctive ‘pains’.”
Embodying Prison Pain: Women’s Experiences of Self-Injury in Prison and the Emotions of Punishment, 20(2) Theor. Criminol. 205 (2016)
“This paper explores the meanings and motivations of self-injury practices as disclosed in interviews with a small group of female former prisoners in England. In considering their testimonies through a feminist perspective, I [Anastasia Chamberlen] seek to illuminate aspects of their experiences of imprisonment that go beyond the ‘pains of imprisonment’ literature. Specifically, I examine their accounts of self-injury with a focus on the embodied aspects of their experiences. In so doing, I highlight the materiality of the emotional harms of their prison experiences. I suggest that the pains of imprisonment are still very much inscribed on and expressed through the prisoner’s body. This paper advances a more theoretically situated, interdisciplinary critique of punishment drawn from medical-sociological, phenomenological and feminist scholarship.”
Emerging Imaging Science of Chronic Pain: Objectifying the Subjective in The Legal Brain-scape: Neuroscience & the Law, 2011 Second Circuit Judicial Conference, June 10, 2011
“Today, pain is almost universally perceived and presented in the courtroom as a purely subjective mental phenomenon, distinct from actual provable body pathology or disease. Yet current neuroscience is increasingly dispelling this notion. Current neuroscience confirms that although chronic pain is indeed subjective, it is a subjective event involving brain activities that have the potential to be objectively shown. Its subjectivity makes it no less real; and increasingly, no less provable. As both a reaction, as well as a disease, chronic pain assumes a life of its own, with its own potentially somatic consequences parallel to other diseases whether they originate bacterially, virally, or malignantly.”
From Health to Humanity: Re-Reading Estelle v. Gamble after Brown v. Plata, 25 Fed. Sent. Rptr. 1 (2013)
“Formal recognition that the Eighth Amendment required prisons to provide adequate medical care to prisoners is generally traced to the Supreme Court’s 1976 Estelle v. Gamble decision. There, the Court squarely held that failure to provide medical care to an incarcerated person violated the Eighth Amendment. Justice Marshall explained that the denial of needed medical care might, in the most unfortunate cases, cause grave suffering akin to torture, and the infliction of such ”unnecessary suffering is inconsistent with contemporary standards of decency.” Moreover, the Court held that where prison officials are ”deliberately indifferent” to serious medical needs, they cause the kind of ”wanton infliction of pain” that gives rise to liability under federal civil rights statutes when done ”under color of law.” These points have been favorably cited by the Supreme Court repeatedly since 1976, and were never in dispute when the State of California appealed the injunction reducing prison population handed down by the special three-judge court in Coleman/Plata v. Schwarzenegger (now, Brown). As a legal matter, the Supreme Court’s 2011 Brown v. Plata decision seems to have added little to that precedent, making law instead on the interpretation of the statutory Prison Litigation Reform Act of 1995 (PLRA). This essay argues that nonetheless Brown takes the principles articulated in Estelle and reads them through the prism of the modern carceral context, a context described by criminologists and now even the New York Times as one of ”mass incarceration.” While the Supreme Court’s restatement of its central Eighth Amendment prison health care principles in Brown v. Plata did not necessarily change the doctrinal parameters of those principles, the Court signaled its willingness to support district courts in enforcing them in a more direct and consequential way. In doing so, the Court appeared to strengthen the principles of Estelle, linking them more closely to concepts of human dignity.”
From Painkiller to Empathy Killer: Acetaminophen (Paracetamol) Reduces Empathy for Pain, Soc. Cogn. Affect. Neurosci. (2016)
“Simulation theories of empathy hypothesize that empathizing with others’ pain shares some overlapping psychological computations with the processing of one’s own pain. Support for this perspective has largely relied on functional neuroimaging evidence of an overlap between activations during the experience of physical pain and empathy for other people’s pain. Here, we extend the functional overlap perspective to the neurochemical level and test whether a common physical painkiller, acetaminophen (paracetamol), can reduce empathy for another’s pain. In two double-blind placebo-controlled experiments, participants rated perceived pain, personal distress, and empathic concern in response to reading physical or social pain scenarios, witnessing ostracism in the lab, or visualizing another study participant receiving painful noise blasts. As hypothesized, acetaminophen reduced empathy in response to others’ pain. Acetaminophen also reduced the unpleasantness of noise blasts delivered to the participant, which mediated acetaminophen’s effects on empathy. Together, these findings suggest that the physical painkiller acetaminophen reduces empathy for pain and provide a new perspective on the neurochemical bases of empathy. Because empathy regulates prosocial and antisocial behavior, these drug-induced reductions in empathy raise concerns about the broader social side effects of acetaminophen, which is taken by almost a quarter of US adults each week.”
Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform the Law, 66 Ala. L. Rev. 1099 (2015)
“What would the law do differently if it could see into the black box of the mind? One of the most valuable things it might do is reform the ways it deals with pain. Pain is ubiquitous in law, from tort to torture, from ERISA to expert evidence. Yet legal doctrines grapple with pain poorly, embodying concepts that are generations out of date and that cast suspicion on pain sufferers as having a problem that is “all in their heads.” Now, brain-imaging technologies are allowing scientists to see the brain in pain — and to reconceive of many types of pain as neurodegenerative diseases. Brain imaging proves that the problem is in sufferers’ heads: Long-term pain shrinks the brain and changes the way it functions. This new science has immediate practical and theoretical applications for the law. This Article first proposes reforms to disability law doctrines and their judicial interpretation. It then proposes ways in which pain neuroimaging ought to be handled as a matter of expert evidence in state, federal, and administrative proceedings. Drawing on work in evidence theory, it considers black letter evidence law as well as normative practices that shape how decision makers weigh evidence and credibility. It also offers limits on the use of brain images. In opening a window into how the brain generates subjective experiences, neuroimaging should lead to doctrinal and practice-based revisions that increase law’s accuracy and fairness. So doing, brain imaging should change the law’s mind about the nature of pain and may require the law to rethink its dualism between body and mind.”
Juvenile Incarceration and the Pains of Imprisonment, 3 Duke F. L. & Soc. Change 29 (2011)
“The nationwide trend to criminalize juvenile delinquency in the 1980s and 1990s resulted in the placement of large numbers of adolescent criminal offenders in adult correctional facilities. Prior research has assessed the consequences of this practice through comparisons of youth in juvenile corrections with youths placed in adult prisons and jails. These studies minimized the pains of imprisonment for youth who continue to be placed in juvenile correctional facilities by comparing their conditions to the more violent and toxic conditions of confinement in adult institutions. In this article, we more carefully assess the conditions of confinement within a broader range of juvenile and adult correctional settings where juvenile courts place youths. We analyze data from interviews with matched samples of 188 young men ages 16-18 incarcerated in juvenile and adult facilities across two states. Our results show that although inmates in adult facilities (surprisingly) give better reports than youth in juvenile facilities on several domains of institutional climate including criminal activity and victimization, they also fare much worse on measures of social and psychological well-being. Importantly, the inmates in adult facilities report substantially and significantly greater rates of PTSD and mental illness symptoms, and are much more likely to fear for their safety, compared to those in juvenile facilities. Overall, conditions in adult facilities are harsher than conditions in juvenile facilities, but juvenile correctional facilities pose their own hazards. We argue that incarceration should be used only as a last resort for juveniles, regardless of institutional auspice, but that when it is deemed necessary, juvenile correctional facilities represent the lesser of two evils.”
Law and the Problem of Pain, 74 U. Cin. L. Rev. 285 (2005)
“This Article examines the problem of enigmatic chronic pain. The principal contention is that psychosomatic explanations of chronic pain are flawed, despite their inordinate popularity with social critics, expert witnesses, and a growing number of judges. There is little empirical evidence to support the view that chronic pain is principally a symptom of psychic conflict and distress, and much evidence to rebut it. Most compelling is the emerging biological evidence demonstrating that much chronic pain results from pathology in the central nervous system, rather than discrete injury or illness like that which produces acute pain.
The problem of chronic pain is examined by focusing on the most prevalent chronic pain syndrome found in litigation today, fibromyalgia. Fibromyalgia is nothing less than the widespread pain of rheumatism that has distressed humanity throughout recorded history. This pain syndrome has been described as one of the “most controversial conditions in the history of medicine,” and it is at the center of the debate about the nature of chronic pain. Part II begins by examining how chronic pain often straddles competing diagnoses in medicine and psychiatry, thus lending credibility to both organic and psychogenic concepts of pain. Part III then examines how the concept of psychosomatic pain or “somatization” has attained prominence in cultural history and critical medical literature. Although the concept of somatization does not intrinsically disparage chronic pain, it has acquired a distinct secondary meaning – that pain symptoms are exaggerated or feigned and, ultimately, within the control of the sufferer. Segments of the insurance and health care industries have now appropriated the theme of somatization to minimize the chronic pain experience and control health care costs.
Part IV next assesses empirical research concerning the role of psychological distress in the generation of chronic pain. As demonstrated, there is widespread acceptance that psychological factors play a role in the pain process. But research does not support the much broader claim that chronic pain syndromes are largely the consequence of psychological distress. The neo-Freudian concept of somatization has been greatly oversold and is driven more by theory than scientific evidence.
Finally, Part V examines the developing biological model of chronic pain. A compelling body of evidence now demonstrates that the acute-pain model still dominant in medical practice and the law is incomplete. There is growing recognition that the central nervous system is far more plastic than previously imagined. In an appreciable segment of the population the central mechanisms governing pain can be fundamentally altered, resulting in the persistent production of pain with no discernible relationship to bodily injury or illness. These central mechanisms, rather than mental disturbances, dispel the enigma of much chronic pain.
Part VI concludes that, somewhat remarkably, while a fundamental reassessment of chronic pain has occurred in the scientific literature, this reassessment has gone unnoticed in the law. Until courts rethink the prevailing model of pain and its mechanisms, chronic pain will remain a stubborn mystery, and its sufferers will remain under suspicion as latter-day hysterics and malingerers.”
McGill Pain Questionnaire: From Description to Measurement, 103 Anesth. 199 (2005)
“The purpose of this study was to develop new approaches to the problem of describing and measuring pain in human subjects. Words used to describe pain were brought together and categorized, and an attempt was made to scale them on a common intensity dimension. The data show that: 1) there are many words in the English language to describe the varieties of pain experience; 2) there is a high level of agreement that the words fall into classes and subclasses that represent particular dimensions or properties of pain experience; 3) substantial portions of the words have approximately the same relative positions on a common intensity scale for people who have widely divergent backgrounds. The word lists provide a basis for a questionnaire to study the effects of anesthetic and analgesic agents on the experience of pain.”
Multidimensionality of “Pains of Imprisonment” Among Incarcerated Women in Israel, 50(6) Women Health 491 (2010)
“This study re-examined Gresham Sykes’s initial conceptualization of “pains of imprisonment” as it applied to women inmates. It contextualized these pains within the women’s social experiences both inside and outside the only women’s prison in Israel. Semi-structured interviews with 42 female prisoners were conducted. Two counter-themes emerged from our analysis. The first one portrayed prison as punishment, a “painful condition,” a stressful event that included deprivation, negative meaning, suffering, and pain. The opposite—and more dominant—theme framed incarceration as a positive experience, during which the prisoners received nurturing, care, and treatment, which they had not been afforded in the outside world. We found that “pains of imprisonment” was a multidimensional and complex phenomena that included contradicting emotions, thoughts, and behaviors. “Pains of imprisonment” was part of a larger group of pains that extended beyond the time and place of prison.”
“Approximately 100 million Americans suffer from chronic pain. Currently, the most common way for physicians to test chronic pain is to ask patients to self report their pain from a scale of 1-10. However, there is much hope and promise that neuroimaging, specifically fMRI technology, will be able to use as an “objective” measure of pain. This objective approach to pain testing could change the landscape of pain medicine and lead to new treatments, as well as expose those misusing the medical system to obtain prescription drugs. There are already tort cases where plaintiffs are hiring private companies to do their brain scan to “prove” their pain in court successfully. In the near future, we can expect neuroimaging to be used by the Social Security Administration to adjudicate SSI Disability Benefits based on pain, by physicians to decide who deserves pain management medication, and by insurance companies for coverage determinations. In both the SSA context and physician treatment context, there is already a strong bias against women and minorities when it comes to pain. Studies have shown that women’s complaints of pain are more likely to be dismissed and their pain regarded as not real. One study demonstrated that female emergency room patients were less likely to be given strong pain medicine for abdominal pain than men. Other studies have shown similar results for racial minorities. There is distrust in the medical community of those who complain of chronic pain, and such distrust exacerbates when the patient is female or a racial minority.
There is much hope that the use of an objective measure of pain may have the effect of leveling the playing field, and allowing women and minorities to “prove” their pain. This Article, however, argues that the use of such objective testing could actually worsen the pain treatment disparities and disability status disparities by ignoring the subjective experience of pain, and how this varies by race and gender. Without large groups of women and minorities tested in the scientific research, the “objective” test may not truly measure pain in all populations. This Article will examine the state of the technology, and how it has been used in torts and criminal cases thus far. Then the Article will argue that the use of the test as a plaintiff friendly tool in the tort setting will not likely translate to a patient friendly tool in the health care and disability context. This section will review the studies related to pain treatment based on gender and race, in the physician and SSI disability environments. This Article argues that neuroimaging testing will likely be used to deny coverage and disability claims more often than in validating patient complaints of pain. Finally, this Article proposes that rather than relying on so-called “objective” measures of pain, addressing inherent bias and providing physician education may be more patient friendly for those suffering from pain related ailments.”
Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law, 97 Cornell L. Rev. 801 (2012)
“In legal domains ranging from tort to torture, the presence of pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. Yet, for all the work done by pain as a term in legal texts and practice, it has a confounding lack of external verifiability. Now, neuroimaging is rendering pain and myriad other subjective states at least partly ascertainable. This emerging ability to ascertain and quantify subjective states is prompting a “hedonic” or a “subjectivist” turn in legal scholarship, which has sparked a vigorous debate as to whether the quantification of subjective states might affect legal theory and practice. Subjectivists contend that much values-talk in law has been a necessary but poor substitute for quantitative determinations of subjective states — determinations that will be possible in the law’s “experiential future.” This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on interviews and laboratory visits with neuroimaging researchers, this Article shows current and in-principle limitations of pain quantification through neuroimaging. It then presents case studies on torture-murder, torture, the death penalty, and abortion to show the largely heuristic role of pain discourse in law. Introducing the theory of “embodied morality,” the Article describes how moral conceptions of rights and duties are informed by human physicality and constrained by the limits of empathic identification. Pain neuroimaging helps reveal this dual factual and heuristic nature of pain in the law, and thus itself points to the translational work required for neuroimaging to influence, much less transform, legal practice and doctrine.”
Pain Detection and the Privacy of Subjective Experience, 33 Am. J.L. & Med. 433 (2007)
“Pain is a fundamentally subjective experience. We have uniquely direct access to our own pain but can only make rough inferences about the pain of others. Nevertheless, such inferences are made all the time by doctors, insurers, judges, juries, and administrative agencies. Advances in brain imaging may someday improve our pain assessments by bolstering the claims of those genuinely experiencing pain while impugning the claims of those who are faking or exaggerating symptoms. These possibilities raise concerns about the privacy of our pain. I [Adam J. Kolber] suggest that while the use of neuroimaging to detect pain implicates significant privacy concerns, our interests in keeping pain private are likely to be weaker than our interests in keeping private certain other subjective experiences that permit more intrusive inferences about our thoughts and character.”
Pain Management: A Fundamental Human Right, 105(1) Anesth. Analg. 205 (2007)
“This article surveys worldwide medical, ethical, and legal trends and initiatives related to the concept of pain management as a human right. This concept recently gained momentum with the 2004 European Federation of International Association for the Study of Pain (IASP) Chapters-, International Association for the Study of Pain- and World Health Organization-sponsored “Global Day Against Pain,” where it was adopted as a central theme. We survey the scope of the problem of unrelieved pain in three areas, acute pain, chronic noncancer pain, and cancer pain, and outline the adverse physical and psychological effects and social and economic costs of untreated pain. Reasons for deficiencies in pain management include cultural, societal, religious, and political attitudes, including acceptance of torture. The biomedical model of disease, focused on pathophysiology rather than quality of life, reinforces entrenched attitudes that marginalize pain management as a priority. Strategies currently applied for improvement include framing pain management as an ethical issue; promoting pain management as a legal right, providing constitutional guarantees and statutory regulations that span negligence law, criminal law, and elder abuse; defining pain management as a fundamental human right, categorizing failure to provide pain management as professional misconduct, and issuing guidelines and standards of practice by professional bodies. The role of the World Health Organization is discussed, particularly with respect to opioid availability for pain management. We conclude that, because pain management is the subject of many initiatives within the disciplines of medicine, ethics and law, we are at an “inflection point” in which unreasonable failure to treat pain is viewed worldwide as poor medicine, unethical practice, and an abrogation of a fundamental human right.”
Painful Disparities, Painful Realities, SSRN (2014)
“Legal doctrines and decisional norms treat chronic claims pain differently than other kinds of disability or damages claims because of bias and confusion about whether chronic pain is real. This is law’s painful disparity. Now, breakthrough neuroimaging can make pain visible, shedding light on these mysterious ills. Neuroimaging shows these conditions are, as sufferers have known all along, painfully real. This Article is about where law ought to change because of innovations in structural and functional imaging of the brain in pain. It describes cutting-edge scientific developments and the impact they should make on evidence law and disability law, and, eventually the law’s norms about pain. It suggests that pain neuroimaging will solve current legal problems and also open the door to reconsiderations of law’s treatment of other subjective phenomena like mental states and emotions, going to the theoretical heart of legal doctrines about body and mind.”
“While the physical, psychological and social consequences of pain are measurable, the suffering caused by the pain is not. Yet, there can be little dispute about enormity of the misery it inflicts. People who experience severe but untreated pain often live in agony for much of the day and often for extended periods of time. Many people interviewed by Human Rights Watch who had experienced severe pain in India, expressed the exact same sentiment as torture survivors: all they wanted was for the pain to stop. Unable to sign a confession to make that happen, several people told us that they had wanted to commit suicide to end the pain, prayed to be taken away, or told doctors or relatives that they wanted to die.”
Prescription for the Pain: The Emerging Standard of Care for Pain Management, 26 Wm. Mitchell L. Rev. 1 (2000)
“During the last twenty-five years, the literature of the health care profession has documented a serious and persistent problem – the undertreatment of pain and the failure to effectively address suffering in the clinical setting. Generally speaking, clinicians have escaped both professional sanctions and malpractice liability for what would seem to be a serious dereliction of duty. There is a marked and curious disparity between the way in which patients and the lay public view the responsibility of caregivers to deal with pain and suffering, and the way in which the providers themselves view their responsibility. The argument of this article is that health care providers in general, and physicians in particular because of their control over prescription medications, have both an ethical and a legal duty to relieve the pain and suffering of their patients whenever possible. Health care providers also should not inflict unnecessary pain and suffering. Moreover, because of changing public and professional attitudes toward this duty, clinicians will not in the future, as they have in the past, be able to escape liability for failure to meet this duty to their patients.”
Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law, 3 Psych. Pub. Pol. and L. 499 (1997)
“This article examines the nexus between modern psychological theory (especially contextual or situational models of behavior), contemporary prison policy, and the legal concept of cruel and unusual punishment. It briefly reviews the history of imprisonment in the United States and the role of psychology in the development of prison punishment. An analysis of research on the psychological effects of imprisonment is presented, followed by a discussion of contemporary 8th Amendment law. Finally, modern psychological theory is used as the basis for a series of proposed correctional and legal reforms.”
Punishment, Justice, and Emotions, SSRN (2016)
“This essay discusses the relation among emotions, punishment, and justice. It reviews theoretical scholarship on the role of punishment in society and sociological research on emotions, including the “emotive turn” in criminal justice and scholarship on the painful experience of incarceration. It argues that although punishment has been justified as a rational response to the problem of crime, there are emotional dimensions to its practice and function that go beyond crime. The authors suggest that the phenomenon of punishment is inherently affective, and propose that scholars of criminal justice should pursue a more rigorous study of how emotions, subjectivity, and self-identities contribute to the existence and framework of punishment in late-modern societies, in order to properly examine its role and limitations.”
Raising the ‘Civilized Minimum’ of Pain Amelioration for Prisoners to Avoid Cruel and Unusual Punishment, 54 Rutgers L. Rev. 649 (2002)
“This Article addresses the problems with our nation’s cultural and legal prohibitions against certain pain management treatments. The practice of pain management has not kept pace with the many medical advances that have made it possible for physicians to ameliorate most pain. The Author notes that some patients are denied access to certain forms of treatments due to the mistaken belief that addiction may ensue. Additionally, some individuals are under-treated for their pain to a greater degree than are others. This is especially the case for our nation’s prisoners. The Author contends that prisoners are frequently denied effective pain amelioration. He notes, however, that there has been improvement in medical treatment in general for prisoners due to court challenges based on the Eighth Amendment’s prohibition against cruel and unusual punishment. Yet, due to the protection of qualified immunity given to jailers and prison health care providers, prisoners cannot bring a claim for negligence or medical malpractice, they must allege a violation of their constitutional rights, a significantly higher legal standard. Prisoners must meet a subjective test showing that there was a deliberate indifference to their medical needs that violates the protection of the Eighth Amendment. The Author contends that because medical advances have made it possible to alleviate most pain suffering, withholding pain treatment or providing a less effective treatment is tantamount to inflicting pain and should be viewed as a violation of the Eighth Amendment.”
Sentencing and the Salience of Pain and Hope, SSRN (2015)
“What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of the Supreme Court of Canada has nudged the law in precisely this direction, calling on judges to think about sentencing in ways better attuned to the lived experience of punishment. In judgments concerning police misconduct, collateral consequences of a sentence, and delayed parole, the Court has recognized the salience of pain and hope to the task of sentencing, firmly establishing that proportionality – the guiding measure of a fit sentence – is an indelibly individualized concept that must be calibrated to the real effects of the criminal process and proposed sentence on the life lived by the offender. With this, we can begin to imagine new possibilities in our sentencing practices and must conceive of the essential legal and ethical task of the sentencing judge in new terms: an imaginative engagement with the lives of those that they punish.”
Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009)
“Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I [Adam J. Kolber] argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences. I make two central claims: First, a successful justification of punishment must take account of offenders’ subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.”
Unintentional Punishment, 18 Legal Theory 1 (2015)
“Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of punishment must pay close attention to the unintentional burdens of punishment. In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete.”
Pain Cases May Usher Brain Scans into the Courtroom, Sci. Am., Mar. 2, 2015
“The approach is based on burgeoning research that uses fMRI to understand the nature of pain—a very subjective experience. Scientists hope that the scans can provide an objective measure of that experience, and they see potential applications, such as in testing painkillers. But many neuroscientists say that the techniques are still far from being accurate enough for the courtroom. Critics say that the companies using them have not validated their tests or proved that they are impervious to deception or bias. And whereas some think the technologies will have a place in legal settings, others worry that the practice will lead to misuse of the scans.”
Patients in Pain, and a Doctor Who Must Limit Drugs, N.Y. Times, Mar. 17, 2016, at A1
“A growing number of states are enacting measures to limit prescription opioids, highly addictive medicines that alleviate severe pain but have contributed to a surging epidemic of overdoses and deaths. This week the federal government issued the first national guidelines intended to reduce use of the drugs. . . . As politicians and policy makers decry the opioid crisis, the country’s success in confronting it may well depend on the ability of physicians like Dr. Wergin to reconcile their new role as enforcer with their mission of caring for patients. Collectively, primary care physicians write the greatest volume of opioid prescriptions — according to a recent study, 15.3 million prescriptions for Medicare patients alone in 2013. The burden of monitoring patients for potential abuse, while still treating pain that is chronic and real, falls largely on these front-line gatekeepers.”
Personal Injury Lawyers Turn to Neuroscience to Back Claims of Chronic Pain, ABA J, Mar. 1, 2016
“Functional magnetic resonance imaging is used to measure activity in the brain by detecting blood flow. When certain parts of the brain are active, blood flows to those regions and can be detected by the scanner through a complex process in which the scanner’s powerful magnet tracks blood oxygen levels. Researchers have been using fMRI to test theories that they could pinpoint locations in the brain that become active with pain.”
Scientists Have Been Using a Flawed Method to Diagnose Pain, Gizmodo, Apr. 25, 2016
“For many years, neuroscientists believed they had identified a specific pattern of brain activity acting as a kind of “signature” for pain in the brain. Recently this so-called “pain matrix” has been called into question, and a new study by British researchers may have shattered the myth once and for all.
The pain matrix is actually a cluster of regions in the brain that prior imaging studies indicated are involved in processing pain perception, including the posterior insula and the anterior cingulate cortex. This has been so broadly accepted that the signature pattern has been used to declare that emotional pain (like social rejection) and physical pain are the same thing, as far as the brain is concerned. The argument goes that something like a bad romantic breakup has the same effect on brain activity as spilling a hot cup of coffee on your shirt.
More recent studies have cast doubt on those conclusions, however. And now researchers at the University of Reading and University College London have concluded that this cluster of regions in brain is not specific to pain. It also responds to loud noises, bright lights, a strong non-painful touch (like a firm handshake), and yes, social rejection. They describe their findings in a new paper published today in JAMA Neurology.”
AMERICAN LAW REPORTS
Admissibility in Civil Action, Apart from Res Gestae, of Lay Testimony as to Another’s Expressions of Pain, 90 A.L.R.2d 1071 (1963)
“In civil actions where pain and suffering are relevant to the damages or other issues, attempts have often been made to put in testimony that the lay witness observed complaints or other oral manifestations of pain by the party whose suffering is at issue, made at a time sufficiently separated from the occasion of injury as not to be part of the res gestae. This annotation discusses the cases which have considered the question whether such testimony is admissible, when met with the objection that it constitutes hearsay.”
Admissibility, in Civil Case, of Expert Evidence as to Existence or Nonexistence, or Severity, of Pain, 11 A.L.R.3d 1249 (1967)
“This annotation deals with the question of when, in a civil case, an expert witness, usually a member of the medical profession, may be properly introduced to express an opinion as to the existence or nonexistence of another person’s pain, either past, present, or future, or as to the degree or severity of such pain. It is assumed that the person whose pain is in question is still alive, and the use of expert evidence to establish the decedent’s pain and suffering in an action for death is not examined.”
Admissibility of Expressions of Pain or Suffering by Person Injured, 64 A.L.R. 557 (1930)
“”The question as to the circumstances under which expressions of declarations of pain and suffering are admissible in evidence in behalf of the person making them is one of much importance, especially in view of the rapid growth of personal-injury suits, and the increased frequency with which physicians are called as expert witnesses. At the outset it is necessary to note the distinction, often overlooked, between mere descriptive statements of pain, or other subjective symptoms of a malady which furnish no intrinsic evidence of their existence, and those exclamations or complaints which are the spontaneous manifestations of distress, and which naturally and instinctively accompany and furnish evidence of existing suffering. Exclamations and expressions of the latter kind are the natural language of pain, and … are in the nature of verbal acts.” Williams v. Great Northern R. Co. (1897) 68 Minn. 55, 37 L.R.A. 199, 70 N.W. 860, 2 Am. Neg. Rep. 385. It is the purpose of this annotation to discuss the question of the admissibility of exclamations and expressions of the kind last mentioned in the extract quoted.”
Instructions Regarding Measurement of Damages for Pain and Suffering, 85 A.L.R. 1010 (1933)
“This annotation, as the title indicates, is concerned only with instructions. It assumes that pain and suffering, both past and future, are proper elements of damages, and it relates merely to the way of measuring damages on that account. Cases involving mental pain and suffering are not included, except where otherwise in point, which, however, is the case in many instances, the courts usually giving joint instructions on physical and mental pain and suffering.”
Necessity of Expert Testimony on Issue of Permanence of Injury and Future Pain and Suffering, 20 A.L.R.5th 1 (1994)
“Injured parties may substantially increase the amount of damages awarded by establishing that their injuries are permanent or likely to cause future pain and suffering. The task of proving the permanence of an injury or the likelihood of future pain, however, is often a difficult one, and expert testimony may be required to provide such proof. In Reed v Scott (1991, Okla) 820 P2d 445, 20 ALR5th 913, for example, the court held that expert testimony was necessary to support recovery for permanent injury and future pain and suffering, finding that the injured party’s lay testimony was not competent to establish with reasonable certainty whether her two broken toes would result in future pain and suffering or permanent injury, where she had experienced pain for approximately 5 months prior to the trial. Examining the cases discussing whether the introduction of expert testimony is necessary to support an award based on future pain and suffering or the permanency of a personal injury, this annotation covers a wide variety of particular injuries and conditions, ranging from fractures and bruises to concussions and paralysis.”
Opinion or Expert Evidence as to Whether Pain Is Real or Feigned, or as to Its Severity, 28 A.L.R. 362 (1924)
“The authorities are in quite general accord in holding that a professional or expert witness may properly be permitted to express his opinion as to whether pain complained of by one whom he has attended or examined is real or feigned. This annotation is supplemented by 97 A.L.R. 1284.”
Opinion or Expert Evidence as to Whether Pain or Symptoms of Disease, or Injury, Are Real, Imaginary, or Feigned, or as to the Severity of Pain, 97 A.L.R. 1284 (1935)
“While supplementing the annotation in 28 A.L.R. 362, on the subject “Opinion or expert evidence as to whether pain is real or feigned, or as to its severity,” the scope of the present annotation is somewhat broader, extending, as indicated by the title, to a consideration of the admissibility of opinion or expert evidence not only as to the severity of pain and as to whether pain is real or feigned, but also as to whether symptoms of any disease, mental or physical, or injury, are real, imaginary, or feigned.
The decisions coming within the scope of the annotation are those in which a question was raised as to whether alleged pain or symptoms of disease or injury were in fact real, imaginary, or feigned, and those in which witnesses sought to testify to the extent of physical suffering. While cases which deal with the admissibility of the testimony of third persons to prove merely the presence of pain are, therefore, not strictly within its scope, attention is drawn to a number of decisions illustrative of those excluded.”
Pain as “Disability” Entitling Insured to Disability Benefits Under S 103 of the Social Security Act (42 USC S 423), 23 A.L.R.3d 1034 (1969)
“This annotation collects the cases involving the question whether pain by itself constitutes a “disability” within the meaning of a statutory provision which provides for disability benefits to be paid to persons insured under the Social Security Act who are unable to work by reason of a medically determinable physical or mental impairment. Cases which have discussed whether one who claims to be disabled by pain is entitled to a disability “freeze” will also be considered in this annotation. It is assumed for the purposes of this annotation that all the other requirements for qualifying under the statute are present, and that the only remaining issue is the determination of whether and under what circumstances pain constitutes or does not constitute a disability.”
Standard and Sufficiency of Evidence When Evaluating Severity of Claimant’s Pain in Social Security Disability Case Under S 3(a)(1) of Social Security Disability Benefits Reform Act of 1984, 42 U.S.C.A. S 423(d)(5)(A), 165 A.L.R. Fed. 203 (2000)
“Under the Social Security Act (Act), 42 U.S.C.A. SS 301 et seq., a worker under a disability may be entitled to receive Social Security benefit payments because the worker is under a disability. In determining whether a claimant suffers from a disability, the Social Security Administration (SSA) evaluates the evidence offered by the claimant, which may consist of, among other things, evidence of the claimant’s pain. As part of the Social Security Disability Reform Act of 1984, Congress enacted S 3(a)(1), now codified at 42 U.S.C.A. S 423(d)(5)(A), to clarify for the courts how to evaluate a claimant’s pain. The majority of courts require only subjective evidence of the severity of a claimant’s pain; courts in the minority require objective evidence to support any subjective testimony of the severity of pain experienced by a claimant. In Light v. Social Sec. Admin., 119 F.3d 789, 53 Soc. Sec. Rep. Serv. 802, Unempl. Ins. Rep. (CCH) P15798B, 165 A.L.R. Fed 699 (9th Cir. 1997), as amended on reh’g, (Sept. 17, 1997), the Ninth Circuit Court of Appeals determined that where the government conceded that a Social Security disability benefits claimant suffered from infirmities that could cause pain, the claimant was not required to present objective medical evidence to support the severity of that pain.”
“The mission of the Analgesic, Anesthetic, and Addiction Clinical Trial Translations, Innovations, Opportunities, and Networks (ACTTION) public-private partnership with the United States Food and Drug Administration (FDA) is to identify, prioritize, sponsor, coordinate, and promote innovative activities — with a special interest in optimizing clinical trials — that will expedite the discovery and development of improved analgesic, anesthetic, addiction, and peripheral neuropathy treatments for the benefit of the public health.”
American Pain Society (APS)
“The American Pain Society is a multidisciplinary community that brings together a diverse group of scientists, clinicians, and other professionals to increase the knowledge of pain and transform public policy and clinical practice to reduce pain-related suffering.”
Brain Function Laboratory (Yale School of Medicine)
“Research in the Brain Function Laboratory has made fundamental contributions to understanding the neural processes for cognitive control that enable flexible goal directed behaviors including the resolution of conflict. Examples of applications include the development of brain mapping procedures for neurosurgical planning that localize regions that are specialized for important functions such as language, movement, vision, and hearing in order for surgeons to protect those functions during surgical procedures such as tumor resections. With her students and colleagues, Dr. [Joy] Hirsch has developed an imaging diagnostic for autism, and discovered neural mechanisms associated with over-eating behaviors, anxiety disorders, and addictions. Visit our lab website at Yale School of Medicine here.” See also The Hirsch Lab (“Research in the Hirsch Lab at the Yale School of Medicine aims to understand the neural circuitry and fundamental mechanisms of the brain that enable human cognition, language, emotion, decision making, and perception in both healthy/typical individuals and in patients with neurological, developmental, and psychiatric disorders.”).
“The United States Department of Health and Human Services (HHS) Secretary Burwell has made addressing opioid abuse, dependence, and overdose a priority. The evidence-based initiative focuses on three promising areas: informing opioid prescribing practices, increasing the use of naloxone, and using Medication-Assisted Treatment to move people out of opioid addiction. Several agencies within HHS have joined the effort.”
Center for Research on Pain (Hebrew University)
“The Hebrew University Center for Research on Pain is a roof organization uniting a number of research laboratories and clinics of the Hebrew University, located within the campuses of the Hebrew University and the Hadassah-University Medical Centers. The Center includes members of the Hebrew University Faculties of Medicine, Dental Medicine, Natural Sciences, and Social Sciences. All share a common interest in understanding mechanisms of acute and chronic pain, and ultimately providing better pain relief. Our programs emphasize academic educational activities, public education, scientific exchanges at professional symposia, and, most importantly, the promotion of quality scientific, basic and clinical research on the subject of pain.”
Cognitive and Affective Neuroscience Lab (University of Colorado)
“The mission of our lab is to investigate the brain pathways that underlie the generation and regulation of pain and emotion. One line of work concerns how cognitive and motivational factors influence the way in which painful stimuli and other aversive events are processed in the brain and body. Two other, related lines of work involve developing biomarkers for pain and emotion, and studying the roles of conceptual knowledge and learning in pain perception and avoidance behavior. A fourth line of work investigates the cortical-subcortical circuits involved in social evaluative threat. The common thread linking these lines of research is the study of relationships between brain processes, affective responses, and physiology using interventions and outcomes relevant for emotional health.”
“IASP is the leading professional forum for science, practice, and education in the field of pain. Membership is open to all professionals involved in research, diagnosis, or treatment of pain. IASP has more than 7,000 members in 133 countries, 90 national chapters, and 20 Special Interest Groups (SIGs). IASP brings together scientists, clinicians, health-care providers, and policymakers to stimulate and support the study of pain and to translate that knowledge into improved pain relief worldwide.”
International Pain Summit (IASP)
“The International Pain Summit is an advocacy event intended to emphasize the importance of pain management as a human right and create guidelines for national strategies to help implement improved pain management worldwide.” See also Pain (IASP) (“PAIN is IASP’s official journal. Published monthly, PAIN presents original research on the nature, mechanisms, and treatment of pain. Available to IASP members as a membership benefit, this peer-reviewed journal provides a forum for the dissemination of multidisciplinary research in the basic and clinical sciences. It is cited in Current Contents and Index Medicus.”)
“The long range goal of the pain program is to support neuroscientific research on pain, including development of an objective standard for measuring it, to promote the translation of research into legally relevant standards, and to educate policymakers and the judiciary about these standards.”
Stanford Program in Neuroscience and Society (Stanford University)
“The Stanford Neurosciences Institute is creating the Stanford Program in Neuroscience and Society (SPINS), a multidisciplinary initiative to study how neuroscience affects society, and to bring neuroscientists knowledge of human behavior and cognition from scholars in law, education and business. Through SPINS, SNI [Stanford Neurosciences Institute] will create cooperative dialogue and partnership between these disciplines. After all, our nervous systems evolved to produce behavior, which neuroscience seeks to explain.”
World Institute of Pain (WIP)
“Founded in 1993, WIP is a global institute for the education, certification, and advancement of pain physicians. As an international membership organization, WIP facilitates the exchange of pain medical knowledge and practical expertise through member and non-member participation in World Congresses, international and regional symposia, and practical workshops. Through WIP, physicians assess and contribute to the scholarly body of original articles, case studies, practice guidelines, and evidence-based compositions in the WIP journal, PAIN Practice; demonstrate competency in interventional techniques via advanced certification culminating in the designation of Fellow of Interventional Pain Practice and mentor other physicians to achieve the same symbol of professional excellence; and, foster the highest standards of education, training, and research through their pain center’s recognition as an Excellence in Pain Practice (EPP) Award recipient.” See also Pain Practice (WIP) (“Pain Practice, the official journal of the World Institute of Pain, publishes articles that provide its readership with evaluation methods and techniques for pain management.”)
1 Indeed, the absence of pain plays an important role in defining our well-being: “Happiness, remarked Maury Noble one day, is only the first hour after the alleviation of some especially intense misery.” F. Scott Fitzgerald, The Beautiful and Damned 128 (1922).
3 See generally Chp IV: “The Pains of Imprisonment” in Gresham M. Sykes, The Society of Captives: A Study of a Maximum Security Prison (1958, PUP 2007).
4 See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978) (“It is apparent from the record in this case that Mincey’s statements were not “the product of his free and rational choice.” Greenwald v. Wisconsin, 390 U. S. 519, 521. To the contrary, the undisputed evidence makes clear that Mincey wanted not to answer Detective Hust. But Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply overborne. Due process of law requires that statements obtained as these were cannot be used in any way against a defendant at his trial.” Id. at 401-402 (emphasis added)).
5 Amanda C. Pustilnik, Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform the Law, 66 Ala. L. Rev. 1099, 1142 (2015). See generally Nita A. Farahany, Neuroscience and Behavioral Genetics in U.S. Criminal Law: An Empirical Analysis, 2 J. Law Biosci. 485 (2015); Annie Wu, Funneling the Mentally Ill into the Criminal Justice System, Epoch Times, March 3, 2016.