[This download includes the table of contents and chapter 1.] -/- When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant (...) on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? The authors argue that evidence from neuroscience and the other cognitive sciences can illuminate the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility. (shrink)

In this paper we attempt to reply to the thoughtful comments made on our book, Responsible Brains, by a stellar group of scholars. Our reply focuses on two topics discussed in the commenting papers: first, the issue of responsibility for negligent behavior; and second, the broad claim that facts about brain function are normatively inert. In response to worries that our theory lacks normative implications, we will concentrate on an area where our theory has clear relevance to law and legal (...) policy: juvenile responsibility. (shrink)

Forward-looking aims tend to play a much less significant role than retribution in justifying criminal punishment, especially in common law systems. In this paper I attempt to reinvigorate the idea that there are important forward-looking justifications for criminal law and punishment by looking to social theories of responsibility. I argue that the criminal law may be justified at the institutional level because it is a part of larger responsibility practices that have the effect of bolstering our reasons-responsiveness by making us (...) sensitive to the potential reactive attitudes of a larger societal audience. I further claim that forward-looking effects may justify criminal law institutions even if retribution is the primary aim of assigning punishments to specific offenders. (shrink)

The psychological literature now differentiates between two types of psychopath:successful (with little or no criminal record) and unsuccessful (with a criminal record). Recent research indicates that earlier findings of reduced autonomic activity, reduced prefrontal grey matter, and compromised executive activity may only be true of unsuccessful psychopaths. In contrast, successful psychopaths actually show autonomic and executive function that exceeds that of normals, while having no difference in prefrontal volume from normals. We argue that many successful psychopaths are legally responsible for (...) their actions, as they have the executive capacity to choose not to harm (and thus are legally rational). However, many unsuccessful psychopaths have a lack of executive function that should at least partially excuse them from criminal culpability. Although a successful psychopath's increased executive function may occur in conflict with, rather than in consonance with their increased autonomic activity - producing a cognitive style characterized by self deception and articulate-sounding, but unsound reasoning - they may be capable of recognizing and correcting their lack of autonomic data, and thus can be held responsible. (shrink)

There are legitimate worries about gaps between scientific evidence of brain states and function (for example, as evidenced by fMRI data) and legal criteria for determining criminal culpability. In this paper I argue that behavioral evidence of capacity, motive and intent appears easier for judges and juries to use for purposes of determining criminal liability because such evidence triggers the application of commonsense psychological (CSP) concepts that guide and structure criminal responsibility. In contrast, scientific evidence of neurological processes and function (...) – such as evidence that the defendant has a large brain tumor – will not generally lead a judge or jury to directly infer anything that is relevant to the legal determination of criminal culpability . (Vincent 2008) In these cases, an expert witness will be required to indicate to the fact-finder what this evidence means with regard to mental capacity; and then another inference will have to be made from this possible lack of capacity to the legal criteria for guilt, cast in CSP terms.<br><br>To reliably link evidence of brain function and structure and assessment of criminal responsibility, we need to re-conceptualize the mental capacities necessary for responsibility, particularly those that are recognized as missing or compromised by the doctrines of “legal capacity” (Hart 1968) and “diminished capacity.” I argue that formulating these capacities as executive functions within the brain can provide this link. I further claim that it would be extremely useful to consider evidence of executive function as related to the diminished capacity doctrine at sentencing. This is because it is primarily at this stage in criminal proceedings where the use of the diminished capacity doctrine is most prevalent, as evidenced by the recent Supreme Court cases of Atkins v. Virginia (536 U.S. 304 (2002)) and Roper v. Simmons (543 U.S. 551 (2005)).<br>. (shrink)

This chapter will argue that the criminal law is most compatible with a specific theory regarding the mind/body relationship: non-eliminative reductionism. Criminal responsibility rests upon mental causation: a defendant is found criminally responsible for an act where she possesses certain culpable mental states (mens rea under the law) that are causally related to criminal harm. If we assume the widely accepted position of ontological physicalism, which holds that only one sort of thing exists in the world – physical stuff – (...) non-eliminative reductive physicalism about the mind offers the most plausible account of the full-bodied mental causation criminal responsibility requires. Other theories of the mind/body relationship, including elminativism and non-reductive physicalism, threaten criminal responsibility because they do not offer satisfactory accounts of mental causation. Eliminativism, as the name implies, eliminates the mental or is skeptical that it can do the causal work necessary to responsibility; and non-reductive theories disconnect the mental from the physical/casual world such that the mental can no longer have reliable causal effects. (shrink)

Michael S. Moore is a whole-hearted retributivist. The triumph of Mechanical Choices is that Moore provides a thoroughly physicalist, reductionist-friendly, compatibilist account of the features that make persons deserving of blame and punishment. Many who embrace scientific accounts of psychology worry that from this perspective the grounds for desert disappear; but Moore argues that folk psychological accounts of responsibility—such as those found in the criminal law—are either vindicated or not implicated by science. Moore claims that criminal punishment can be justified (...) by looking solely to moral desert, couched in folk terms. In this paper I argue that interpersonal blame and punishment and criminal blame and punishment hold people responsible in the same sense, and that directed moral blame in both forms aim to communicate something to the wrongdoer and generate a backward-looking or retributive good. However, contra Moore, I will argue that instrumental aims are also important to justifying methods and degree of punishment within both realms. (shrink)

The criminal law depends upon 'commonsense' or 'folk' psychology, a seemingly innate theory used by all normal human beings as a means to understand and predict other humans' behavior. This paper discusses two major types of arguments that commonsense psychology is not a true theory of human behavior, and thus should be eliminated and replaced. The paper argues that eliminitivist projects fail to provide evidence that commonsense psychology is a false theory, and argues that there is no need to seek (...) a replacement theory of behavior for use in the criminal law. (shrink)

Empirical research has distinguished moral judgments that focus on an act and the actor’s intention or mental states, and those that focus on results of an action and then seek a causal actor. Studies indicate these two types of judgments may result from a “dual-process system” of moral judgment (Cushman 2008, Kneer and Machery 2019). Results-oriented judgements may be subject to the problem of resultant moral luck because different results can arise from the same action and intention. While some argue (...) luck should not bear on persons’ culpability, Victor Kumar has argued that the tendency to hold unlucky agents responsible for harm is justified by consequentialist aims of punishment (Kumar 2019). In contrast, judgments that focus on acts and intentions may be primarily retributive. Kumar claims that judgments focused on results track external, public harm because this increases the reliability of punishment and better achieves instrumental aims, including deterrent effect. In this chapter I examine rape cases using Kumar’s theory of punishment. Rape involves outcomes that are not publicly available. If judgments of punishment depend on outcomes, then we would expect such judgments to be less stable for those instances of wrongdoing that lack public outcomes such as rape, because such judgments would rely instead on often biased and unreliable inferential processes to establish the presence of mental states, which are essentially private. In this way Kumar’s theory actually predicts the way in which we see criminal justice institutions fail with regard to arrest, prosecution, and punishment related to rape; and we might expect similar failures for other crimes that lack publicly available results. In sum, a fundamental problem with institutionalized punishment centered upon results may be that some crimes sit within a moral blindspot. (shrink)

This chapter explores whether chemical castration can be justified as a form of criminal punishment. The author argues that castration via the drug medroxyprogesterone acetate (MPA), or some similar drug, does not achieve the punishment aims of retribution, deterrence, or incapacitation, but might serve as punishment in the form of rehabilitative treatment. However, current U.S. chemical castration statutes are too broad to be justified as rehabilitative. The state is warranted in targeting psychological states in criminal defendants for rehabilitative treatment where (...) such states (a) act as a primary cause of a criminal offender’s crime and (b) give rise to extraordinary worries that the offender will recidivate. Current statutes qualify criminal offenders for castration who do not have overwhelming sexual urges or other psychological states causally related to their crime that may be treated with MPA. Thus, even assuming the efficacy of MPA, such statutes are unjustifiable because they apply chemical castration to offenders for whom castration will have no rehabilitative effect. (shrink)

David Brink’s book Fair Opportunity & Responsibility is a meticulously argued and ultimately convincing book that carefully articulates the requirements for criminal guilt and punishment. As the title suggests, Brink argues that only one who has a fair opportunity to be law-abiding ought to be held responsible when they commit a crime. It is unfair to hold a person responsible if they lack abilities necessary to legal agency at the time of a wrongful act, or if these abilities are severely (...) compromised. In this essay I focus on Brink’s handling of structural injustice and the way it can impact our responsibility practices. Structural injustice is a serious and pervasive problem in the U.S., and it is closely related to crime rates. I argue that structural injustice can ground a partial excuse based on compromised normative competence. This is a possibility that Brink does not explore. Marginalization can compromise one’s ability to make and follow normative judgments in keeping with one’s larger society and the criminal law; and what makes some marginalized persons less culpable is that their ability to recognize and respond to moral and legal reasons is compromised compared to those that are not marginalized. (shrink)

US criminal courts have recently moved toward seeing juveniles as inherently less culpable than their adult counterparts, influenced by a growing mass of neuroscientific and psychological evidence. In support of this trend, this chapter argues that the criminal law’s notion of responsible agency requires both the cognitive capacity to understand one’s actions and the volitional control to conform one’s actions to legal standards. These capacities require, among other things, a minimal working set of executive functions—a suite of mental processes, mainly (...) realized in the prefrontal cortex, such as planning and inhibition—which remain in significant states of immaturity through late adolescence, and in some cases beyond. Drawing on scientific evidence of how these cognitive and volitional capacities develop in the maturing brain, the authors sketch a scalar structure of juvenile responsibility, and suggest some possible directions for reforming the juvenile justice system to reflect this scalar structure. (shrink)

This chapter argues that a successful plea of legal insanity ought to rest upon proof that a criminal act is causally related to symptoms of a mental disorder. Diagnosis of a mental disorder can signal to the court that the defendant had very little control over relevant moral ignorance or incompetence. Must we draw the same conclusion for defendants who lack moral knowledge due to miseducation or other extreme environmental conditions, unrelated to a mental disorder? Adults who were brainwashed as (...) children, for example, might seem “insane” due to their lack of moral knowledge. However, since legal culpability rests on the capacity to understand the criminal law’s moral demands, to reflect on these demands across time, and to control one’s behavior in light of them, simple ignorance of morality's demands does not excuse. (shrink)

Stephen Morse seems to have adopted a controversial position regarding the mindbody relationship: John Searle’s non-reductivism, which claims that conscious mental states are causal yet not reducible to their underlying brain states. Searle’s position has been roundly criticized, with some arguing the theory taken as a whole is incoherent. In this paper I review these criticisms and add my own, concluding that Searle’s position is indeed contradictory, both internally and with regard to Morse's other views. Thus I argue that Morse (...) ought to abandon Searle’s non-reductive theory. Instead, I claim Morse ought to adopt a non-eliminative reductive account that can more easily support his realism about folk psychological states, and the existence of causally effective mental states in a purely physical world. (shrink)

In this chapter, Sifferd analyzes the grounds for moral and legal desert. She bridges the gap between compatibilist accounts of our moral and legal responsibility, and she argues that neither moral nor criminal responsibility demand impossible or superhuman abilities. Sifferd’s capacitarian view of agency embraces our mechanistic natures yet can still ground robust mental causation, a key requirement for criminal culpability. She also notes the ways in which the capacity for reasons-responsiveness is developed and maintained over time, and she claims (...) that diachronic agency can instantiate meaningful self-control and self-formation with moral and legal rules in mind. Sifferd concludes that rapists do in some cases deserve criminal punishment. Her ultimate position is that basic desert is necessary but not sufficient for criminal punishment of rape. (shrink)

Neuroethics is the body of work exploring the ethical, legal, and social implications of neuroscience. This work can be separated into two rough categories. The “neuroscience of ethics” concerns a neuroscientific understanding of the brain processes that underpin moral judgment and behavior. The “ethics of neuroscience” refers to the potential impact advances in neuroscience may have on the ethical principles that should guide brain research, treatment of brain disease, and cognitive enhancement. The Contemporary Issues section of this chapter will consist (...) of two sub-sections corresponding to these categories: one on what neuroscience can tell us about human ethics and the other on the ethics of neuroscientific applications. (shrink)

In this chapter we explore the ethical justifications for criminal detentions prior to adjudication. Because defending pretrial detentions cannot be justified on purely forward-looking grounds, any plausible justification for pre-conviction detention must be partly backward-looking. Reflecting on the aims of the criminal law more broadly suggests that pretrial detentions, like post-conviction detentions, may be justified on “hybrid” grounds—but only if certain backward-looking retributive criteria and forward-looking instrumental criteria are met. We conclude that while it is possible in principle to justify (...) pretrial detention, there is reason to think that much of the pretrial detention in the U.S. is not, in fact, justified. We then argue that as a result, current pretrial detention practices in the U.S. unjustifiably diminish a special sort of moral agency that is necessary for holding persons responsible in the first place. (shrink)

This chapter considers arguments by Neil Levy for the proposition that direct conscious awareness is a prerequisite for responsibility. It argues 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. Furthermore, the chapter claims 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. This means that an agent may be responsible for harm related to lapses even if they at no point could have reasonably foreseen the possibility of causing criminal harm. (shrink)

Stephen Morse seems to have adopted a controversial position regarding the mindbody relationship: John Searle’s non-reductivism, which claims that conscious mental states are causal yet not reducible to their underlying brain states. Searle’s position has been roundly criticized, with some arguing the theory taken as a whole is incoherent. In this paper I review these criticisms and add my own, concluding that Searle’s position is indeed contradictory, both internally and with regard to Morse's other views. Thus I argue that Morse (...) ought to abandon Searle’s non-reductive theory. Instead, I claim Morse ought to adopt a non-eliminative reductive account that can more easily support his realism about folk psychological states, and the existence of causally effective mental states in a purely physical world. (shrink)

Douglas Husak’s book is an intelligent, wide-ranging exploration of the legal principle ‘ignorance of law is no excuse’. This principle is one of the few pieces of legal doctrine known by many regular folks, along with the criminal standard of proof ‘beyond a reasonable doubt’. The traditional approach to the doctrine might be explained in this way: in some cases, ignorance of the law fails to excuse offenders from culpability because as a matter of policy we feel they ought to (...) have known the law governing their behaviour. Placing upon citizens the responsibility to know the law is good policy because it may increase both knowledge of law (by inspiring persons considering questionable action to investigate legal rules, etc.) and law-abiding behaviour (by dissuading those who discover their possible act is illegal from acting). Although many believe the criminal law’s primary purpose is state-imposed backwards-looking ‘just deserts’ for moral wrongs, the law also serves to accomplish forward-looking aims such as enhancing moral agency and decreasing crime. From this perspective, the principle that ignorance of the law does not excuse contributes to rule of law and social order by encouraging awareness of legal rules. Husak’s position on ignorance of law is sometimes difficult to discern amongst the detailed critique and commentary on competing views that occupy most of the first 100 pages. In the end, Husak bucks a forward-looking account of the principle and concludes that ignorance of the law – or more exactly, ignorance of the law related to ignorance of the morality underpinning the law – ought to serve as an excuse to criminal guilt in most cases. Further, he claims ignorance of law ought to excuse in the same way that that ignorance of an important fact regarding one’s crime excuses. That he is mistaken regarding an important fact about his crime matters to a defendant’s blameworthiness – e.g. if the defendant kills in self-defence, mistaking the toy gun their victim is carrying with a real gun. A person who honestly believes they are in immediate danger from an armed aggressor is less than fully blameworthy for killing that aggressor even if they were mistaken about the threat. Similarly, knowledge or ignorance that some act is morally wrong clearly matters to moral blameworthiness, says Husak: other things being equal, a person who is ignorant of the moral wrongness of her act is less blameworthy than someone who is aware that what she is doing is wrong. Where ignorance of that an action violates a criminal law is related to ignorance regarding the morality of the act, a person is less than fully culpable. (shrink)