Thou shalt not commit a neuroscience.*

Yesterday evening, Harvard Law School hosted a panel on the question, “Should Criminal Law Be Reconsidered in Light of Advances in Neuroscience?” Moderated by Oliver Goodenough, the panel featured Joshua Greene, Jerome Kagan, Stephen Morse, and Amanda Pustilnik. Greene is known for his work in “experimental philosophy,” and he and Morse reprised earlier arguments about whether new research on the brain is likely to produce changes in doctrines of criminal responsibility. As I understood Greene, he’s hopeful that one day we’ll realize that retributive approaches to punishment depend on erroneous assumptions about the human brain. When we properly understand humans as mechanical agents whose actions are always externally caused, it will seem silly to punish as a way of “holding criminals responsible,” and happily, the criminal law will become purely consequentialist.

brain1.jpgNow, I’m no fan of retributivism. But I’m skeptical that more knowledge of the brain is going to unsettle retributive arguments and the associated attributions of responsibility. (Here, I think I’m in agreement with Jeff Lipshaw’s take on experimental philosophy: many moral claims are just not provable or disprovable.) I suspect that whatever we learn about the brain processes of criminals, some persons will look at those brain processes and say, “this criminal deserves to be held responsible; this criminal deserves to be punished.” Put differently, one might say that “responsibility” is a normative judgment, not a fact about the causal mechanisms of the human brain. Whether a defendant “is” responsible depends on whether we (the punishers) decide to hold him responsible. To take an example raised last night, did new facts about the juvenile brain, or about developmentally disabled persons, dictate the outcomes in Roper v. Simmons and Atkins v. Virginia? I don’t think so. It is still the case that some will look at all the empirical information available about Daryl Atkins—IQ tests, medical records, brain scans, whatever—and say he deserves to die, and others will look at the same information, and say he does not. Indeed, Atkins the decision didn’t necessarily save Atkins the defendant: the decision allowed states to choose the process by which defendants would be classified as developmentally disabled or mentally retarded, and the state of Virginia decided this was a jury question. In 2005 a jury decided that Atkins was sufficiently mentally competent to be eligible for death. (Atkins’s reinstated death sentence was commuted to life imprisonment in January 2008 for independent reasons related to prosecutorial misconduct.)

All in all, I think it’s pretty hard to unseat the belief in deserved punishment by introducing new facts. (As I’ve argued, the evidence suggests that new facts can influence judgments about how much punishment is deserved, but that’s a different issue.) “Wrongdoers deserve to be punished” is a non-falsifiable claim, an article of faith that can be disproved no more than God’s existence.

*With apologies to W.H. Auden.

Image credit: Princeton’s Suggestive Contour Gallery. At last night’s panel, someone cited research indicating that subjects find academic papers that include pictures of brains to be more persuasive than otherwise identical papers that lack the brain pictures. I hope that works for blog posts.

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4 Responses

  1. Frank says:

    Excellent points all. Here is a paper by Amanda Pustilnik that might be of interest:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1114250

    and abstract bit:

    “This Article shows that causally localizing what we call criminal violence to bits of the brain is highly scientifically contestable and epistemologically untenable. In viewing the criminal law-neuroscience relationship through the lens of history of science, this Article hopes to offer caveats to legal users of neurolaw and a realistic and constructive portrait of how current neuroscience might inform criminal law discourse about regulating violence.”

  2. No, retributivist approaches will not be stymied no matter how much we understand about the brain, even if it does turn out that we’re purely mechanical? Why? It’s a problem of levels. Consider computers:

    I’m typing these words into a box on a web site. But there aren’t “really” any words, any box, or any web site. All there are are certain patterns of high and low voltage (and high-impedance states, if you want to get really technical) across various transistors in a stupendously gargantuan array of such transistors flung across the entire Earth.

    But do we talk about the voltages? no.

    Do we talk about the 0s and 1s they represent? no.

    Do we talk about the machine code being run through the processors made up of those transistors? no.

    Do we talk about the PHP or C++ (or, or, or) that was compiled into that machine code? no.

    We talk about me typing into a box, because that high-level abstract metaphor is the most appropriate to human interaction with the computer system known as the internet. And we don’t expect legislatures to enact laws worded in terms of voltage patterns either. We expect them to speak in the same high-level metaphors we use day in and day out.

    So why when it comes to the brain do people expect that we’ll suddenly stop talking about it in terms of consciousness and free will even if it is reducible to a mechanism? And why do they expect the legal system will stop using the same metaphors it always has? Retributivism can be reworded in terms of neural nets just like these philosophers expect every other aspect of human behavior can be.

  3. Mike M says:

    If the death penalty is to remain in existence, is it reasonable to allow the “mentally retarded” the CONVENIENCE of protection under the 8th amendment. I think not… but that is just my opinion…

  4. Mike M says:

    If the death penalty is to remain in existence, is it reasonable to allow the “mentally retarded” the CONVENIENCE of protection under the 8th amendment? I think not… but that is just my opinion…