“Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note”
Stephen J. Morse
It’s People, Not Brains, Stupid!
“Brains do not commit crimes; people commit crimes. This conclusion should be self-evident, but, infected and inflamed by stunning advances in our understanding of the brain, advocates all too often make moral and legal claims that the new neuroscience does not entail and cannot sustain. Particular brain findings are thought to lead inevitably to moral or legal conclusions. Brains are blamed for offenses; agency and responsibility disappear from the legal landscape. For example, in Roper v. Simmons, advocates for abolition of the death penalty for adolescents who committed murder when they were sixteen or seventeen years old argued that the demonstrated lack of complete myelination of the cortical neurons of the adolescent brain was reason to believe that sixteen and seventeen year old murderers were insufficiently responsible to deserve capital punishment. These types of responses, I claim, are the signs of a disorder that I have preliminarily entitled Brain Overclaim Syndrome [BOS].”
"First, I am a thorough-going, matter-up materialist who believes that all mental and behavioral activity is the causal product of lawful physical events in the brain. Second, I am a non-reductive materialist who believes, roughly, with John Searle and many others, that conscious mental states are real, that they are caused by lower level biological processes in the brain, that conscious states are realized in the brain--the mind-brain--but not at the level of neurons, and that conscious states can be causally efficacious. Third, I am a compatibilist who believes that moral and criminal responsibility are compatible with determinism or universal causation. Fourth, I believe that desert is a necessary condition of just punishment under current law and that it should be at least a partial justification for the fair imposition of punishment under any proposed criminal law. Last, I oppose the death penalty.
“The concept of the responsible legal person implicit in this account is an intentional, reasonably fully conscious and potentially rational agent who is not exposed to an unreasonably hard choice about whether to offend. The specific criteria for prima facie responsibility and excuse are all behavioral, broadly conceived as conduct and mental states. The causes for the behavioral criteria are not part of the criteria themselves. For example, an agent's capacity for rationality might be diminished by faulty neurotransmitters, psychological stress, trauma, or a host of other causes. The excusing condition is the lack of rational capacity.”
The Fundamental Psycholegal Error:
"The underlying biological, psychological, sociological, and astrological causes for any of the criteria for criminal responsibility, including mental states, can be nothing more than evidentiary support for the assertion that the criterion in question was in fact satisfied at the time of the crime. Causation cannot be an excuse per se for an internalist, who accepts responsibility, because all behavior is caused and thus all behavior would have to be excused. I have termed the erroneous belief to the contrary the “fundamental psycholegal error.” It is as erroneous when the postulated cause of behavior is neurological as when it is psychological, sociological, or astrological. Once one has assumed that responsibility is possible, causation cannot excuse per se."
Internal Arguments vs. External Arguments [or Revisionism vs. Radicalism]:
“At the extreme, claims about the general implications of neuroscience may cease to be the basis of a normative critique of criminal responsibility conceptions and may become an external critique of the coherence or justice of the possibility of responsibility tout court. Two types of external criticism are possible. First, the externalist might claim that responsibility is impossible because its criteria are based on a conception of human action that is simply wrong. We are not the type of creatures we take ourselves to be. For example, suppose, despite all common-sense first-person and third-person evidence to the contrary, neuroscience could show that all human conduct is done in a state indistinguishable from spasm or sleepwalking, or, more extravagantly, that we do not have mental states at all. In a word, suppose neuroscience could demonstrate conclusively that all of us all the time are automatons or without any mental life whatsoever and that thinking otherwise is simply an illusion. In the philosophy of mind, such arguments are associated with various forms of reductive or eliminative materialism.”
[This is not quite right. There are lots of external threats—e.g., the family of by-passing threats based on situationism, automaticity, and mind reading.]
“The second type of external critique accepts that we are the types of intentional, conscious, potentially rational creatures that we take ourselves to be, a position associated with various forms of non-reductive materialism in the philosophy of mind. But the second external critique denies that anyone can be genuinely responsible because neuroscience and other disciplines conclusively demonstrate that all our actions are mechanistically determined and determinism (or universal causation or some such) is incompatible with ultimate responsibility.”
[Is Compatibilism adequate? The difference between leeway incompatibilism and source incompatibilism]
The Explanatory Gaps Objection:
“For a materialist, the brain always plays a causal role in behavior. Despite all the astonishing recent advances in neuroscience, however, we still know woefully little about how the brain enables the mind, and especially about how consciousness and intentionality can arise from the complicated hunk of matter that is the brain.” “Discovering the neural correlates of mental phenomena does not tell us how these phenomena are possible. For example, we may be able to identify the neural correlates of consciousness, but we do not have a clue about how those parts of the brain make subjective experience possible.”
[What is the point of this objection? Could it be used against behavioral findings as well?]
The Fundamental Psycholegal Error Revisited:
“Causation is not per se an excusing condition and partial causation does not exist. If this is a causal world, as neuroscientists and I believe, then all phenomena are fully caused by their necessary and sufficient causal conditions. Partial knowledge about causation does not mean that there is partial causation. Causation is also not the equivalent of being subjected to compulsion, which exists when the agent is non-culpably faced with a normative hard choice. All behavior is caused, but not all behavior results from a threat at gunpoint or the equivalent. And to think that causation per se excuses is an external critique. If causation excuses per se or is the equivalent of compulsion, responsibility as we know it is impossible. As an argument from within our responsibility practices, it is the fundamental psycholegal error to argue that causation excuses. The discovery that the brain, including a brain abnormality, played some causal role in the production of what is undeniably human action does not lead to any legal conclusions about responsibility. The proper internal question is whether the neuroscience evidence helps to establish the presence or absence of action, mental states or a genuine affirmative defense, such as lack of rational capacity.”
The Positive vs. the Normative:
“Virtually no finding, no practice, however hoary, necessarily entails any normative outcome without an argument about why it should. This is as true of neuroscience evidence as of any other kind of scientific evidence. Neuroscience evidence may provide premises in normative arguments, but it does not alone entail conclusions. To think otherwise is to confuse the positive with the normative.”
“Few if any responsible commentators who accept the coherence and validity of criminal responsibility ascriptions--the internalists--claim that most adolescent offenders commit their crimes in automatic states or without mens rea. Crimes committed impulsively, for example, are still committed consciously and intentionally. Nor do most commentators claim that late adolescent offenders do not know the nature and quality of their acts, do not know their acts are wrong, or act in response to duress. No evidence from the behavioral or neurosciences even hints that the contrary might be true. Rather, the claim is that culpable adolescents, whose behavior meets the prima facie case for guilt and who do not have an affirmative defense, are nonetheless less criminally responsible because they have insufficiently developed rationality. Thus, to be relevant, any evidence must be addressed to the sixteen and seventeen year olds' capacity for rationality, broadly speaking.”
“Mentally retarded persons frequently know the difference between right and wrong .... Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.... Their deficiencies do not war-rant an exemption from criminal sanctions, but they do diminish their personal culpability....With respect to retribution--the interest in seeing that the offender gets his “just deserts”--the severity of the appropriate punishment necessarily depends on the culpability of the offender.”
Neuroevidence: Who Needs It?!
“Precisely. The brief points to evidence concerning impulsivity, poor short term risk and long term benefit estimations, emotional volatility, and susceptibility to stress among adolescents compared to adults. These are common sense, “fireside” conclusions that parents and others have drawn in one form or another since time immemorial. In recent years, common sense has been bolstered by methodologically rigorous behavioral investigations that have confirmed ordinary wisdom. Most important, all these behavioral characteristics are clearly relevant to responsibility because they all bear on the adolescent's capacity for rationality. Without any further scientific evidence, advocates of abolition would have an entirely ample factual basis to support the types of moral and constitutional claims they made.”
“Characteristically, the Court did not cite much evidence for the empirical propositions that supported its diminished culpability argument. What is notable, however, is that the Court did not cite any of the neuroscience evidence concerning myelination and pruning that the amici and others had urged them to rely on. It did cite six behavioral sources, five of which were high quality behavioral science. Perhaps the neuroscience evidence actually played a role in the decision, as many advocates for the use of neuroscience would like to believe, but there is no evidence in the opinion to support this speculation.”
“As the biological and behavioral sciences offer ever more sophisticated understandings of normal and abnormal behavior alike, there will be constant pressure to use their findings to affect assessment of criminal responsibility and other legal doctrines. A lot will be at stake morally, politically and legally, and much will be debatable. I hope, however, that this modest contribution will help identify and ameliorate a pathological entity that can deleteriously affect the debate.”