I explicate the conditions required for criminal responsibility, provide an overview of criminal defenses, distinguish criminal responsibility from both tort liability and moral responsibility, and explicate the current state of the insanity defense.

Since the 90’s, neurolaw is on the rise. At the heart of heated debates lies the recurrent theme of a neuro-revolution of criminal responsibility. However, caution should be observed: the alleged foundations of criminal responsibility (amongst which free will) are often inaccurate and the relative imperviousness of its real foundations to scientific facts often underestimated. Neuroscientific findings may impact on social institutions, but only insofar as they also engage in a political justification of the changes being (...) called for, convince populations, and take into consideration the ensuing consequences. Moreover, the many limits of neuroscientific tools call for increased vigilance when, if ever, using neuroscientific evidence in a courtroom. In this article, we aim at setting the basis for future sound debates on the contribution of neuroscience to criminal law, and in particular to the assessment of criminal responsibility. As such, we provide analytical tools to grasp the political and normative nature of criminal responsibility and review the current or projected use of neuroscience in the law, all the while bearing in mind the highly-publicized question: can neuroscience revolutionize criminal responsibility? Answering this question implicitly requires answering a second question: should neuroscience revolutionize the institution of criminal responsibility? Answering both, in turn, requires drawing the line between science and normativity, revolution and dialogue, fantasies and legitimate hopes. (shrink)

This book provides a systematic, philosophically informed account of criminal responsibility. It begins by providing a general account of criminal responsibility based on the relationship between the action that the defendent has performed and their character. It then moves on to reconsider some of the central doctrines of criminal responsibility in the light of that account.

This paper investigates, from a philosophical perspective, whether high functioning autists are legally responsible for the crimes they may commit. We do this from the perspective of the Croatian legal system. According to Croatian Criminal Law, but also criminal laws adopted in many other countries, the legal responsibility of the person is undermined due to insanity when two conditions are satisfied. The first may be called the incapacity requirement. It states that a person, when committing the crime, (...) suffers cognitive or volitional incapacities or limited capacities that are relevant for exculpation. The second, we may call the mental disorder requirement, which states that these exculpatory incapacities are due to the presence of a mental disorder. In this paper we focus on the incapacity requirement. The review of the studies on executive functions deficits associated with high-functioning autism suggests that many autists should not be held categorically responsible for the crimes they may commit. Nonetheless, we argue that these impairments in executive functions generally do not provide an unqualified excuse. (shrink)

This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until recently, (...) both concepts were considered to be more or less interchangeable. But there is a growing movement, which I refer to as "responsibility skepticism," which maintains that moral responsibility is either physically or metaphysically impossible. If the responsibility skeptics are right (that moral responsibility is impossible), then what are the implications for criminal responsibility and just criminal punishment? Should we abandon these as well? Or can they survive without moral responsibility? I try to answer these questions. -/- The third part addresses social causation. The criminal justice system tends to be "dispositionalist"; it tends, that is, to assume that criminal responsibility resides entirely within the defendant. Dispositionalism, however, overlooks the fact that who we are and what we do are significantly determined by environmental influences. I then try to show that this "situationist" alternative to dispositionalism should not radically alter our approach to criminal punishment. -/- The final part briefly discusses the difficulty in evaluating criminal responsibility when the defendant is both an offender and a victim - especially when the defendant is an offender *because* of his victimization. (shrink)

Our understanding of folk and scientific psychology often informs the law’s conclusions regarding questions about the voluntariness of a defendant’s action. The field of psychology plays a direct role in the law’s conclusions about a defendant’s guilt, innocence, and term of incarceration. However, physical sciences such as neuroscience increasingly deny the intuitions behind psychology. This paper examines contemporary biases against the autonomy of psychology and responds with considerations that cast doubt upon the legitimacy of those biases. The upshot is that (...) if reasonable doubt is established regarding whether psychology’s role in the law should be displaced, then there is room for future work to be done with respect to the truth of psychology’s conclusions about criminal responsibility. (shrink)

Behaviour, including criminal behaviour, takes place in lived contexts of embodied action and experience. The way in which abstract models of selfhood efface the individual as a unique, living being is a central aspect of the ‘ethical-other’ debate; if an individual is modelled as abstracted from this ‘living’ context, that individual cannot be properly or meaningfully linked with his or her behaviour, and thus cannot justly be understood as responsible. The dominant rational choice models of criminal identity in (...) legal theory involve at least a partial abstraction of this ‘unethical’ type by prioritising the rational will over the more fluid dimensions of lived reality. From a phenomenological perspective, an approach of ‘restlessness’ is proposed which precludes the development of settled or general abstract categories, and can thus move us closer to an ethical understanding of living individuals on a theoretical level. Although such a move may initially seem to threaten criminal justice with an irrational nihilism, by maintaining awareness of the irreducibility of ‘living’ reality a restless theoretical understanding of moral selfhood may be able to shape or underpin the attribution of responsibility in more practical or substantive contexts without succumbing to meaninglessness. (shrink)

Humans must take moral and criminal responsibility for making a free choice between good and evil, according to Chŏng Yakyong, and this view was influenced by Matteo Ricci. Choosing to commit an evil action means committing a willful crime, so one must take responsibility for this action in the form of punishment. However, unintentional wrongdoings can be forgiven. For example, a man stealing to survive or killing a robber in order to live should not be punished, because (...) these individuals have no choice but to do so. Those claims of Chŏng are his own creation, not influenced by Ricci or Confucianism. By contrast, the idea that a child’s intentional hiding of his father’s crime should not be punished because of the child’s duty of filial piety was influenced by Confucianism. However, a large crime committed by a child on the basis of filial piety, such as committing murder to rescue one’s mother, only lends cause for commutation. Unlike Chŏng, Ricci regarded a child’s act of stealing bread to feed his family as an action of evil rather than an act of filial piety, since theft is an evil action. (shrink)

Recently it has been argued that certain neuropsychological findings on the decision-making, instrumental learning, and moral understanding in psychopathic offenders offer reasons to consider them not criminally responsible, due to certain epistemic and volitional impairments. We reply to this family of arguments, that collectively we call the irresponsibility of the psychopath argument. This type of argument has a premise that describes or prescribes the deficiencies that grant or should grant partial or complete criminal exculpation. The other premise contends that (...) neuropsychological evidence shows that psychopaths have incapacitates that are sufficient to ascribe complete or partially exculpatory deficiencies. The focus of our criticism is this latter premise. We argue that it requires that psychopathy should correlate significantly with certain rational incapacities that manifest across contexts. We show that the available neuropsychological data do not support the claim that psychopaths have such general exculpatory incapacities. (shrink)

Criminal responsibility refers to a person’s ability to understand his action, behavior at the time a crime is committed, what a person is thinking when he commits a crime or the expected result when a crime is committed. Crime is defined in terms of an act or omission (actus reus) and a mental state (mens rea). In this paper, is presented the general concept of irresponsibility and essentially reduced responsibility as a reason to be exempted from the (...) punishment provided by the Criminal Code. Any perpetrator of a criminal offense who is capable of undertaking any action can be an active subject of a criminal offense, with the fact that regarding their sanctioning by the criminal system is concerned there are some restrictions related to age as well as dividing the perpetrators into responsible and non-responsible ones. For a person to be convicted of a crime, there must be evidence that proves his guilt, and that proves whether the perpetrator was in a regular state of mind or committed the criminal offense due to his irresponsibility. Another important element of this scientific paper is the historical aspects of how irresponsibility has been treated from the customary law to the present day, a huge focus gets also the treatment of the biological-psychological concept on one hand and the treatment of the legal concept on the other hand for this category of people. A criminal defendant who turns out to have been incapacitated at the time he committed a crime may be acquitted because of his incapacity, or he may be sentenced leniently because he was unable to understand the importance of his actions. Legally, the defendant must prove and convince the court that he was not able to understand his actions, or he is not able to distinguish right from wrong, or he must prove that he committed the act in uncontrolled impulses. (shrink)

This article considers whether psychopaths should be held criminally responsible. After describing the positive law of criminal responsibility in general and as it applies to psychopaths, it suggests that psychopaths lack moral rationality and that severe psychopaths should be excused from crimes that violate the moral rights of others. Alternative forms of social control for dangerous psychopaths, such as involuntary civil commitment, are considered, and the potential legal implications of future scientific understanding of psychopathy are addressed.

A popular way to try to justify holding defendants criminally responsible for inadvertent negligence is via an indirect or ‘tracing’ approach, i.e. an approach which traces the inadvertence back to prior culpable action. I argue that this indirect approach to criminal negligence fails because it can’t account for a key feature of how criminal negligence should be (and sometimes is) assessed. Specifically, it can’t account for why, when considering whether a defendant is negligent, what counts as a risk (...) should be assessed relative to the defendant’s evidence. (shrink)

This paper argues, against Pettit’s thesis about the incorporation of responsibility, that holding collective agents criminally responsible is necessarily either redundant or unfair: redundant if responsibility can be distributed without remainder over individual persons; unfair if it cannot. It should be the task of legal systems to create chains of individual criminal responsibility encompassing executives, officials, and members of corporate agents.

This article puts forward a theory of corporate criminal responsibility as the shared responsibility of the members of a team for wrongdoing committed by one of their number in the pursuit of their common goals. The theory of team member responsibility advanced in this article differs from theories—such as those of Peter French and Phillip Pettit—under which corporate or group responsibility is viewed as the responsibility of the corporation or group as an autonomous moral (...) person. Instead, this article defends a conception of a collectivity as a kind of relationship among individuals; under this conception, a collectivity is something more than the sum of its members, but not something having an autonomous existence apart from its members. To develop this idea, the article employs the concept of a team. Where individuals participate in a team, doing their part towards a collective goal, they are entitled to share in the credit for the positive achievements resulting from their combined actions, and they also share in the discredit for negative achievements of the group. This is so for each member, regardless of whether the member's individual contribution was a but-for cause of the group's achievement. Further, in the specific case of corporate teams, team member responsibility can help to explain why there should be liability of the corporate entity for crimes committed by members of the corporation (a group which typically includes its employees, officers, directors and, in some circumstances, its shareholders) in the pursuit of the corporation's goals. (shrink)

The article offers an Aristotelian analysis of emotion-based defences in criminal law: someone who commits an offence is entitled to an excuse if she was motivated by a justifiably aroused and strongly felt emotion that gave her good reason to commit the offence and that might have destabilised the practical rationality even of a ‘reasonable’ person. This analysis captures the logical structure of duress and provocation as excuses—and also shows why provocation is controversial as even a partial defence. This (...) pattern of analysis is then applied to compassion as a motivation for assisting another’s death, in the light of some recent developments in English criminal law’s treatment of assisting suicide: even if we accept that such assistance cannot be justified, we can see how compassion can ground an excuse, and make sense of the Director of Public Prosecution’s recently published Policy for dealing with cases of assistin.. (shrink)

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer from (...) this conclusion that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. -/- Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral responsibility, does not require an agent be able to grasp and follow moral reasons; it requires only that the individual be able to grasp and follow criminal laws. Once this point is recognized, it becomes much easier to accept my thesis: while the subset of psychopaths who commit crimes are not morally responsible for their criminal behavior because they cannot understand moral reasons, they are still criminally responsible because they can understand what the consequences will be if they get caught. For this reason, even though I concede that psychopaths are not morally responsible for the crimes that they commit, our practice of punishing them for these crimes is still just. -/- Second, I argue that psychopathy is a mental illness and should be recognized as such. One reason that it should be recognized as a mental illness is simply because it is; it satisfies the main criteria for inclusion in the DSM-IV, the “bible” of mental disorders. The other reason is more practical than conceptual. It starts with two facts: the U.S. Supreme Court has decided that the preventive detention of any individual who is not a criminal suspect is not constitutional unless the individual is not only dangerous but also mentally ill; and psychopathy is not currently considered to be a mental illness. So, as things now stand, we cannot preventively commit dangerous psychopaths – that is, psychopaths who have clearly indicated that they will be committing serious crimes. Instead, we must wait for them to commit the crimes before we can lock them up. Unfortunately, this incarceration always comes too late for the victims. It would therefore be better if we could lock them up before they actually inflict any harm. Once again, then, I propose that the legal and psychological communities classify psychopathy as a mental illness. (shrink)

The original versions of the five papers in this Symposium were delivered and discussed at a workshop at the University of Minnesota Law School on Criminal Responsibility and its History. One of the aims of the workshop was to bring together scholars working on the history of the criminal law and scholars whose main focus is on issues in normative criminal law theory, to explore the ways in which they can learn from each other, and to (...) promote a kind of dialogue between historical and normative theorising that is still too rare. Elizabeth Kamali’s exploration of the idea of felony in early English law, and Thomas A Green’s work on the Anglo-American jury, remind us of the importance of looking at the history of our contemporary institutions and concepts: we can understand the law that we now have only by attending to continuities and discontinuities in thought and practice that have marked its long, complex political and social history. Informed by the institutional and conceptual fram .. (shrink)

It is often thought that an agent is blameworthy only for wrongdoing she had a fair opportunity to avoid. However, in this article, I defend the thesis that there is a form of culpability for wrongdoing—exemplified by criminal guilt—that it is possible to accrue even for wrongdoing one lacked a fair opportunity to avoid. If I am right that criminal guilt, properly conceived, is not something everyone necessarily has a fair opportunity to avoid, an offender’s lack of fair (...) opportunity to avoid her guilt would appear to be an important potential ground for mitigation at sentencing. Hence, the thesis of this article may point the way toward a novel explanation of a moral intuition that a coterie of moral, political, and legal theorists has for decades sought but struggled to vindicate: the intuition that offenders who have suffered from various social disadvantages should receive less punishment for their crimes, even when those crimes are not morally justified or excused. (shrink)

This essay review addresses the central responsibility thesis of David Brink's "Fair. Opportunity and Responsibility" and then considers two applications of the central. Thesis: legal insanity and diminished capacity.

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, (...) and the Humean approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment. (shrink)

In this article, I contribute to the debate between two philosophical traditions—the Kantian and the Aristotelian—on the requirements of criminal responsibility and the grounds for excuse by taking this debate to a new context: international criminal law. After laying out broadly Kantian and Aristotelian conceptions of criminal responsibility, I defend a quasi-Aristotelian conception, which affords a central role to moral development, and especially to the development of moral perception, for international criminal law. I show (...) than an implication of this view is that persons who are substantially and non-culpably limited in their capacity for ordinary moral perception warrant an excuse for engaging in unlawful conduct. I identify a particular set of conditions that trigger this excuse, and then I systematically examine it as applied to the controversial case of former-child-soldier-turned leader of the Lord’s Resistance Army, Dominic Ongwen, who is currently at trial at the International Criminal Court. (shrink)

Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application (...) of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions for further study regarding the historical behavior of the jury, the jury’s role in reinforcing notions of political liberty and free will, and, primarily, how scholarly conceptions of the jury’s role and behavior have informed elite theory regarding the justifications for imposing criminal responsibility. (shrink)

Psychopathy is typically characterized as a constellation of deviant personality traits and behavioral tendencies. The link between psychopathic personality traits and pervasive antisocial behavior raises a crucial question concerning the legal accountability of offenders with psychopathy. Some argue that the unique clinical profile and neurobiological peculiarities of individuals with psychopathy mitigate their responsibility, while others maintain that current scientific knowledge does not support the use of psychopathy as an exculpatory condition for criminal offending. Our overview mainly centeres on (...) whether offenders with psychopathy can be considered legally insane. In this regard, our overview suggests that there is still an ongoing debate whether psychopathy should be used as a legally relevant construct for determining criminal responsibility. Moreover, our discussion indicates that careful attention should be put on empirical and conceptual issues surrounding the role of (neuro)scientific data for determining whether individuals with psychopathy should be considered criminally blameworthy for their wrongdoings. (shrink)

This short review examines the work of four Canadian scholars addressing a variety of questions about criminal responsibility. The essays under review are a small part of a recent collection of essays entitled “Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law.”.

What makes someone responsible for a crime and therefore liable to punishment under the criminal law? Modern lawyers will quickly and easily point to the criminal law's requirement of concurrent actus reus and mens rea, doctrines of the criminal law which ensure that someone will only be found criminally responsible if they have committed criminal conduct while possessing capacities of understanding, awareness, and self-control at the time of offense. Any notion of criminal responsibility based (...) on the character of the offender, meaning an implication of criminality based on reputation or the assumed disposition of the person, would seem to today's criminal lawyer a relic of the 18th Century. In this volume, Nicola Lacey demonstrates that the practice of character-based patterns of attribution was not laid to rest in 18th Century criminal law, but is alive and well in contemporary English criminal responsibility-attribution. Building upon the analysis of criminal responsibility in her previous book, Women, Crime, and Character, Lacey investigates the changing nature of criminal responsibility in English law from the mid-18th Century to the early 21st Century. Through a combined philosophical, historical, and socio-legal approach, this volume evidences how the theory behind criminal responsibility has shifted over time. The character and outcome responsibility which dominated criminal law in the 18th Century diminished in ideological importance in the following two centuries, when the idea of responsibility as founded in capacity was gradually established as the core of criminal law. Lacey traces the historical trajectory of responsibility into the 21st Century, arguing that ideas of character responsibility and the discourse of responsibility as founded in risk are enjoying a renaissance in the modern criminal law. These ideas of criminal responsibility are explored through an examination of the institutions through which they are produced, interpreted and executed; the interests which have shaped both doctrines and institutions; and the substantive social functions which criminal law and punishment have been expected to perform at different points in history. (shrink)

Klaus Günther’s discourse theory of law links the concept of criminal responsibility with the legitimacy of democratic law. Because attributions of criminal responsibility are always aimed at a person, they contain an implicit conception of the person. In a democracy under the rule of law, Günther argues, this conception of a person must be understood, as a “deliberative person”, a free and autonomous person capable of being both the addressee and the author of legal norms. The (...) “deliberative person” is the conceptual core of criminal responsibility, yet Günther develops it using a concept of “communicative accountability” modeled on the concept of criminal responsibility that it is designed to explicate. My aim is to bring this circular grounding of criminal responsibility into view and argue that Günther’s discourse theory of law is based on a legalized picture of discourse. (shrink)

This chapter contains sections titled: Actions and the Criminal Law Objects or Conditions of Criminal Responsibility? Actions and (Voluntary) Acts Abandoning the Act Requirement? An Action Presumption? References.

In a recent book, Neil Levy argues that culpable action – action for which we are morally responsible – is necessarily produced by states of which we are consciously aware. However, criminal defendants are routinely held responsible for criminal harm caused by states of which they are not conscious in Levy’s sense. In this chapter I argue that cases of negligent criminal harm indicate that Levy’s claim that moral responsibility requires synchronic conscious awareness of the moral (...) significance of an act is too strict, and that tracing conditions cannot be successfully used to bolster Levy’s account. Instead, current legal practices indicate that criminal responsibility requires the capacity for diachronic agency and self-control, not synchronic conscious control. (shrink)

While the plea of duress is generally accepted as a defense against criminal prosecution, the reasons why it exonerates are subject to dispute and disagreement. Duress is not easily recognizable as either an excusing or justifying condition. Additionally, duress is generally not permitted as a defense against criminal homicide, though some American jurisdictions allow the defense in felony-murder cases. In this paper, I present an argument for how and why the presence of duress can defeat a finding of (...) criminal responsibility. This is intended to establish the philosophical foundation for the legal acceptability of the duress defense, even though I conclude that the defense does not qualify as either an excuse or a justification. I also argue that the duress defense should be allowed in cases of homicide. (shrink)

My aim in this paper is to defend negligence as a legitimate basis for moral and criminal culpability. In so doing, I also hope to demonstrate how philosophical and jurisprudential perspectives on responsibility can mutually inform each other. While much of the paper focuses on criminal negligence, my aim is to show how attention to certain doctrines and concepts in criminal law can shed light on our understanding of moral culpability including culpability for negligence. It is (...) often taken to be a fundamental principle of criminal law that an act cannot be guilty unless it is accompanied by a culpable state of mind or mens rea. This has led to scepticism regarding negligence as a legitimate basis for desert-based criminal sanction because it is not clear that negligence picks out any mental state at all, much less a culpable one. In this paper I articulate and defend a unified account of moral and criminal culpability that rejects the standard view of mens rea that underlies negligence-skepticism. Specifically, I hold that the mens rea element of a crime does not function to inculpate, as is standardly held, but to partly determine the description under which an action counts as wrongful. While I agree that we should be especially cautious about criminalizing negligence, the relevant question, on my view, is not whether a given mens is sufficiently culpable but whether the mens-cum-actus is sufficiently wrongful to warrant the attention of criminal justice. (shrink)

The justice of criminal punishment depends in part on the possibility of holding people accountable for their choices. There is a wide variation between nations on the age at which juveniles can be prosecuted in adult criminal courts. This variation reflects disagreement about the underlying logic of responsibility. This paper examines the philosophical difference between adults and children as agents. The paper argues that the moral status of children is importantly distinct from adults, specifically with respect to (...) how responsibility should be mitigated. The paper explains this in terms of the developmental aspect of childhood. By considering empirical evidence from psychology and neuroscience we can understand the mistakes that juveniles make as a form of developmental impairment. The paper shows why these findings lead to the conclusion that the practice of trying children as adults is immoral and should be eliminated. (shrink)

In the period 1819–1920 the ostensibly strict English common law rule that drunkenness was not an excuse to any criminal charge was modified. It was formally recognized that, at least for crimes requiring proof of a specific intention, intoxication could reduce liability. Legal historians have explained this course of development with reference to the establishment of a subjective pattern of criminal responsibility. Conceived as a mental condition excuse, intoxication could only be accommodated in legal doctrine once the (...) defendant’s state of mind became the focus for investigation. This article suggests reasons to revise this account. Drawing extensively on trial reports, it offers an interpretation that attends closely to the relationships between doctrine, policy and contemporary understandings of individual responsibility for drunken violence. It argues that, in an age of temperance, doctrinal development was driven by judicial concern to narrow the scope of the excuse and it was only late in the nineteenth century, as drunkenness became mixed with insanity in legal doctrine, that there was a sustained focus on the defendant’s state of mind. The article ends with a re-evaluation of DPP v Beard [1920] AC 479 (HL), which is still cited as a foundational case for the modern doctrinal approach to the issue. (shrink)

Recent studies reveal some of the neurophysiological mechanisms involved in drug addiction. This prompts some theorists to claim that drug addiction diminishes responsibility. Stephen Morse however rejects this claim. Morse argues that these studies show that drug addiction involves neither compulsion, coercion, nor irrationality. He also adds that addicted people are responsible for becoming addicted and for failing to take measures to manage their addiction. After summarizing relevant neuroscience of addiction literature, this chapter engages critically with Morse to argue (...) that a subgroup of addicted people does meet plausible criteria for compulsion, coercion, or irrationality; that few addicted people are fully responsible for becoming addicted; and that some addicted people can be at least partly excused for failing to manage their addiction. Pickard and Lacey’s “responsibility without blame” approach is also suggested as a fruitful basis for future work in this field. (shrink)

Brain-computer interfaces allow agents to control computers without moving their bodies. The agents imagine certain things and the brain-computer interfaces read the concomitant neural activity and operate the computer accordingly. But the use of brain-computer interfaces is problematic for criminal law, which requires that someone can only be found criminally responsible if they have satisfied the actus reus requirement: that the agent has performed some (suitably specified) conduct. Agents who affect the world using brain-computer interfaces do not obviously perform (...) any conduct, so when they commit crimes using brain-computer interfaces it is unclear how they have satisfied actus reus. Drawing on a forthcoming paper by Allan McCay, I suggest three potential accounts of the conduct that satisfies actus reus: the agent’s neural firings, his mental states, and the electronic activity in his brain-computer interface. I then present two accounts which determine how actus reus may be satisfied – one a counterfactual and the other a minimal sufficiency account. These accounts are lent plausibility because they are analogous to the but-for and NESS (Necessary Element in a Sufficient Set) tests for causation which are generally accepted tests for causation in legal theory. I argue that due to the determinations of these accounts and considerations regarding the relationship between the mind and brain, actus reus is satisfied by either the agent’s neural activity or brain-computer interface electrical activity. Which of these satisfies actus reus is determined by how well the brain-computer interface is functionally integrated with the agent. (shrink)

Gideon Yaffe presents a theory of criminal responsibility according to which child criminals deserve leniency not because of their psychological, behavioural, or neural immaturity but because they are denied the vote. He argues that full shares of criminal punishment are deserved only by those who have a full share of say over the law.

Various authors debate the question of whether neuroscience is relevant to criminal responsibility. However, a plethora of different techniques and technologies, each with their own abilities and drawbacks, lurks beneath the label “neuroscience”; and in criminal law responsibility is not a single, unitary and generic concept, but it is rather a syndrome of at least six different concepts. Consequently, there are at least six different responsibility questions that the criminal law asks—at least one for (...) each responsibility concept—and, I will suggest, a multitude of ways in which the techniques and technologies that comprise neuroscience might help us to address those diverse questions. In a way, on my account neuroscience is relevant to criminal responsibility in many ways, but I hesitate to state my position like this because doing so obscures two points which I would rather highlight: one, neither neuroscience nor criminal responsibility are as unified as that; and two, the criminal law asks many different responsibility questions and not just one generic question. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Key Concepts: Criminal ResponsibilityCarl Elliott (bio)AbstractMentally disordered persons occasionally do things for which we would ordinarily blame or even punish a non-disordered person. We often do not blame mentally disordered persons for these actions, however, because we regard mental disorders, at least in some circumstances, as an excuse from moral responsibility. For moral philosophy and the law, the challenge is to understand the specific circumstances under which (...) a mental disorder should excuse an offender from responsibility for his or her actions. Because different types of psychopathology influence a person’s intentions and character in very different ways, judgments of responsibility crucially depend upon the specific nature of a mental disorder. They also depend on adequate understandings of concepts such as moral understanding, especially in the case of psychopathy, as well as an understanding of the reasons why mental disorders may excuse a person from responsibility.Keywordsintention, M’Naghten Rules, irresistible impulse, personality disorders, psychopathyThe mentally ill often do things for which they are not responsible. This has long been recognized, by both morality and the law. But just which mentally ill persons should be excused, and under what circumstances, is an altogether more complicated affair.In the Nicomachean Ethics, Aristotle distinguishes two types of involuntary actions, for which (by implication) a person might be excused from responsibility: those done in ignorance, and those that were compelled. Both excuses are variations on the theme of non-intention. If a person did not intend to act as he did—either because he did not know what he was doing, or because he could not help acting as he did—then he is not responsible for the action. Intention is also a key point for the law, which traditionally has said that for a crime to have been committed, it must be accompanied by evil intent, or mens rea (literally, “guilty mind.”)The problem comes in saying how these distinctions play out for the mentally ill offender. The most widely used standards for determining criminal (legal) responsibility are based on the M’Naghten Rules, which excuse a person from responsibility for an act if, as a result of a mental disorder, he did not know the nature and quality of the act, or did not know that the act was wrong. This standard works nicely for the paradigmatic cases of mentally ill offenders; it would excuse, for example, the person with paranoid schizophrenia who strikes out violently at a person he falsely believes is threatening his life. However, it is unclear on several other points, the most famous of which relates to Aristotle’s excusing condition of compulsion. How should we regard those people, for example, whose psychosis impairs their ability to control their behavior, or whose mental disorders involve the control of their unusual desires, such as kleptomania, pyromania, pedophilia and voyeurism? Many of the [End Page 305] latter such persons are aware of the nature and quality of what they desire to do, and they are aware that it is wrong, but they find great difficulty in resisting their desires.One well-known effort to remedy this deficiency was the “irresistible impulse” test, which excused those persons who as a result of their condition had acted on desires that were irresistible. Yet the difference between an irresistible desire and a desire not resisted has proven notoriously difficult to distinguish, in practice as well as in theory.Another chronic source of philosophical controversy is the question of responsibility for one’s character. In psychiatry, this debate surfaces most often with patients who have personality disorders. Ordinarily, since persons cannot control whether they incur a mental illness, they can be excused from responsibility for some actions they have taken while they were mentally ill. However, personality disorders are also (in some sense) beyond a person’s control, being the product of genetic inheritance and upbringing. This raises old issues of psychological determinism: if personality disorders are beyond a person’s control, is it just to hold that person responsible for the actions that result from them?On the other hand, even if personality disorders are within the proper domain of psychiatry, they are obviously quite different from... (shrink)

In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: the psychological factors that motivate the individual’s behavior are environmentally determined and her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted. -/- To get to this conclusion, I will proceed in four (...) steps. In Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption ultimately because we sympathize with agents who lack responsibility for their actions. -/- Third, in Part IV, I aim to show that even if moral responsibility is not conceptually — only “emotionally” — necessary for just blame and punishment, the traditionally recognized criminal excuses are not at risk because, contrary to popular wisdom, they do not really rely on this assumption to begin with. Instead, they stand less for the metaphysical proposition that we should refrain from blaming and punishing the non-responsible and more for the normative/ethical proposition that we should refrain from blaming and punishing those whom we cannot reasonably expect to have acted better. I will further argue that the latter proposition does not necessarily reduce to the former. -/- Fourth, once I have defended my account of the excuses, I will question in Parts V and VI the increasingly popular notion that we should add certain conditions or circumstances to the list of recognized excuses. I will focus on one in particular — the psychological theory of “situationism” — and will argue that, despite its initial plausibility, it should be kept off the list. While situationism arguably does negate moral responsibility, it does not negate criminal responsibility. -/- Of course, this is a controversial point. Criminal responsibility is almost universally thought to require moral responsibility. But in a previous article, "Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention," 48 San Diego L. Rev. 1299, I used personality psychology to drive a wedge between the two. In this article, I will use the opposite end of the psychological spectrum — social psychology — to drive the same important wedge. (shrink)