Minds, Brains, and the Law

Neuroscientific Challenges to Retributivism

Michael Pardo and Dennis Patterson have a new piece entitled, "Neuroscientific Challenges to Retributivism" that is scheduled to appear in a forthcoming volume that I am editing for Oxford University Press entitled The Future of Punishment.

Abstract:      
We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology. 

We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.

Dennett on Neuroscience, Free Will, and Just Deserts

The Situationist just posted a recent talk that was given at HLS by Dan Dennett entitled "Free Will, Responsibility, and the Brain."  Dennett always gives good talks and this is no exception. So, it's well worth the watch!  

The Neurobiology of Evil

Big Think has posted a recent interview with Michael Stone entitled "The Neurobiology of Evil."  If you haven't checked out Big Think before, you should also watch some of their other fascinating interviews with folks like Kwame Appiah, Antonio Damasio, Joseph LeDoux, Alfred Mele, and others.

Flickers of Freedom

As some of you may already know,  The Garden of Forking Paths was recently shut down.  I, for one, enjoyed the blog throughout the years.  As such, I thought that the closing of the Garden left a cyber-void that needed to be filled.  So, with John Martin Fischer’s blessing, a few of us got together to develop  a new free will & action theory blog—Flickers of Freedom.  We just launched the blog this morning, so hopefully you will drop by to check it out.  Neil Levy will be posting the first substantive piece soon.  So, check back soon!

Neuro-criticisms by Raymond Tallis

Raymond Tallis has made it abundantly clear that he doesn't like the recent trend towards research at the cross-roads of neuroscience and the humanities.  In a series of sensational editorials, he has derided what he uncharitably refers to as "neuro-trash" and "neuro-mythology."  I, for one, think that his arguments tend to shed far more heat than light.  Minimally, Tallis' frequently commits what I have called the fallacy of composition when it comes to the field of neurolaw. As such, I plan to post a few responses in the weeks ahead.  In the meantime, I thought I would provide readers with links to some of the things he has written about the relationship between neuroscience and the humanities in the past few years.

"Neurotrash"

Excerpt:

In summary, such are the limitations of our understanding of the brain, attempting to apply the findings of neuroscience to social policy would be premature, even if this were not wrong in principle. But it is wrong in principle. The fabric of the human world, of the public space that is the arena of our lives, is woven out of explicit shared attention that has been infinitely elaborated in a way that has little to do with what goes on in the darkness of the individual skull, though you require a brain in working order in order to be part of it. If you come across a new discipline with the prefix “neuro” and it is not to do with the nervous system itself, switch on your bullshit detector. If it has society in its sights, reach for your gun. Bring on the neurosceptics.

"Why Blame Me?  It Was All My Brain's Fault."

Excerpt:

Meanwhile, the neuromitigation of blame has to be treated with suspicion except in those instances where there is unambiguous evidence of grossly abnormal brain function or abnormal mental function due to clearcut illness that may have its origin in brain disease. Our knowledge of the relationship between brain and consciousness, brain and self, and brain and agency is so weak and so conceptually confused that the appeal to neuroscience in the law courts, the police station or anywhere else is premature and usually inappropriate. And, I would suggest, it will remain both premature and inappropriate. Neurolaw is just another branch of neuromythology.

"You Won't Find Consciousness in the Brain." (*)

Excerpt:

Our failure to explain consciousness in terms of neural activity inside the brain inside the skull is not due to technical limitations which can be overcome. It is due to the self-contradictory nature of the task, of which the failure to explain "aboutness", the unity and multiplicity of our awareness, the explicit presence of the past, the initiation of actions, the construction of self are just symptoms. We cannot explain "appearings" using an objective approach that has set aside appearings as unreal and which seeks a reality in mass/energy that neither appears in itself nor has the means to make other items appear. The brain, seen as a physical object, no more has a world of things appearing to it than does any other physical object.

(*) This piece is not specifically about neurolaw, but it is based on assumptions that inform Tallis' so-called neuro-skepticism.

It appears both Tallis' strategy and his rhetoric are catching on, as evidenced by this recent piece by Denyse O'Leary over at Mertcator.net:

"Brain Scans and Neurotrash"

Excerpt:

I'd like to propose a radical idea. Why don't the neuroscientists and progressive humanists stop hyperventilating and chill out for a while. Let them reflect on the fact that a hundred years ago phrenology, the "science" of analysing behaviour by putting a tape measure around a skull, was all the rage. Until they can account for the difference between the mind and the brain, their research might not be worth a hill of beans. In fact, it might just be, in the words of Raymond Tallis, neo-phrenology.

Erickson on Blaming the Brain

I just came across this recent article by Steve Erickson entitled "Blaming the Brain."  Erickson also discusses his views over at the Crime and Consequences blog.  Here is the abstract for his paper:

***

Criminal law scholarship has recently become absorbed with the ideas of neuroscience in the emerging field of neurolaw. This mixture of cognitive neuroscience and law suggests that long established conceptions of human agency and responsibility are fundamentally at odds with the findings of science. Using sophisticated technology, cognitive neuroscience claims to be upon the threshold of unraveling the mysteries of the mind by elucidating the mechanical nature of the brain. Despite the limitations of that technology, neurolaw supporters eagerly suggest that those revelations entail that an inevitable and radical overhaul of our criminal justice system is soon at hand. What that enthusiasm hides, however, is a deeper ambition among those who desire an end to distributive punishment based on desert in favor of a prediction model heavily influenced by the behavioral sciences. That model rests squarely on the presumption that science should craft crime policy at the expense of the authority of common intuitions of justice. But that exchange has profound implications for how the law views criminal conduct and responsibility - and how it should be sanctioned under the law. Neurolaw promises a more humane and just criminal justice system, yet there is ample reason to believe otherwise.

***

I am always a bit skeptical when the critics of neurolaw treat the nascent field as if it were a monolithic entity.  Take, for instance, the 40+ fellows and post-docs who make up the Law and Neuroscience Project (LANP).  Given the way critics often talk about "the" field of neurolaw, one would think the LANP would have attracted an ideologically homogeneous group of radicals and revolutionaries who are determined to transform the criminal law.  In fact, however, LANP is composed of people from a variety of disciplines who have wide ranging views concerning the transformative potential (or lack thereof) of neuroscience.  In practice, neurolaw is a field that includes both those who think neuroscience will radically alter the criminal law (e.g., Joshua Greene) and those who think neuroscience will have a much narrower effect on our notions of agency and responsibility (e.g., Stephen Morse).  Moving forward, I think the heterogeneous nature of the growing field of neurolaw needs to be kept in mind by both critics and advocates alike.  

The Secret Politics of the Compatibilist Criminal Law

I recently stumbled upon a really provocative paper by Anders Kaye entitled, "The Secret Politics of the Compatibilist Criminal Law." Given that one of the key issues addressed in  the paper is whether compatibilist theories of free will--which focus very heavily on dispositional traits and conscious mental states--can accommodate situational forces that are criminogenic (e.g., poverty and early childhood abuse).  According to Kaye, compatibilist theories of free will and responsibility have been used by some criminal theorists to shield the criminal law from developments in behavioral science, criminology, etc. that might otherwise lead to a less punitive justice system as well as a more egalitarian society.  In short, Kaye suggests that compatibilism is not a "politically innocent" theory of free will.  Here is the abstract:

Many criminal theorists say that we have a 'compatibilist' criminal law, by which they mean that in our criminal law a person can deserve punishment for her acts even if she does not have 'genuinely' free will. This conception of the criminal law harbors and is driven by a secret politics, one that resists social change and idealizes the existing social order. In this Article, I map this secret politics. In so doing, I call into question the descriptive accuracy of the compatibilist account of the criminal law, and set the stage for a franker discussion of criminal punishment - one that recognizes that the perpetual struggle to say just who 'deserves' punishment is driven as much by brute politics and the competition to allocate power and resources in society as by any independent moral logic.

There is already a heated debate about Kaye's novel line of reasoning over at The Garden of Forking Paths.  However, it would be nice to see an active comment thread here at The Law and Neuroscience Blog as well.  So, please take a look at the paper and then give us your thoughts!

The New Neuromorality

A hat-tip to Tom Clark for bringing this exciting pod-cast to my attention.  It turns out the American Enterprise Institute hosted a conference back in 2005 entitled The New Neuromorality, which had an all-star cast of speakers including LANP fellows Martha Farrah, Josh Greene, Hank Greely, and Stephen Morse as well as other scholars such as Steven Pinker and Philip Tetlock.  Needless to say, the 5+ hours of talks by some of the leading researchers from psychology, philosophy, and the law are both interesting and illuminating.

The Great Debate about Free Will

In the fall out from the great debate about free will between John Bargh and Roy Baumeister at the recent SPSP in Tampa (see here for links to the two main talks), there has been a flurry of discussions about free will as of late on the blogosphere.  Here are several links that you might find of interest:

1. Baumeister's post-conference thoughts about the debate.
2. Bargh's post-conference thoughts about the debate.
3. Yet another back and forth between the two can be found here and here.
4. Baumeister has also posted a few other things about determinism here and here.
5. Other psychologists have now started entering the frey as well!  See here and here.

While free will has been a very hot topic amongst contemporary analytic philosophers for the past 75 years (you can keep with the recent trends of the debate on this excellent blog), I don't recall it ever being such a focus amongst psychologists.  Needless to say, I think it is an exciting period for those of us who work at the cross-roads of the two disciplines!

Effort and Diminished Responsibility

Imagine that John and Jim are both basketball stars.  However, their similarities end there.  John is a physical specimen who was graced from birth with both speed and athleticism.  Given his innate physical skills, basketball was always easy for him.  Indeed, with a 40 inch vertical leap and amazing hand-eye coordination, he easily became one of the best basketball players in his state without ever having to practice particularly hard.  Jim, on the other hand, was not so blessed, physically speaking.  Despite the fact that (a) he was not particularly athletic, and that (b) basketball did not come naturally to him, he had a true passion for the game as a child.  As a result, he practiced night and day until his skills were so well honed that he, too, became one of the best basketball players in the state. 

 At the end of the day, I think many of us would give Jim more credit for his success at basketball than John. On my view, we both would and should admire Jim’s success more than John’s under these circumstances because acquiring the requisite skills required a lot more effort on Jim’s part.  So, while we might be impressed with John’s freakish athleticism, we have more admiration for Jim’s hard earned success.  For present purposes, I want to call this the “Effort Effect" (EE).  By my lights, EE often plays an important role in how we evaluate the actions of others.