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« Neuroaesthetics in the TLS | Main | Remote Detection of Brain Activity »


Re Ms. Ristroph's article:

I have long wondered if our current criminal procedure should be changed to cleanly separate the issues of accountability, by which I mean the factual determination of whether the accused did or did not commit the crime, and responsibility, by which I mean the decision of what to do in the case of a "guilty" verdict. As I understand it, currently the mental state of the accused is considered mainly in establishing accountability (ie, in the trial phase), whereas in light of our increased understanding of mind it might be more appropriately considered in establishing responsibility, ie, in the sentencing phase. Not to argue that sentencing should be more lenient, just more effective. I personally have no problem with removing by whatever means necessary those who constitute an intolerable danger to others. But the focus might better be societal well-being than imposition of tit-for-tat suffering with which, as a quasi-determinist, I have great difficulty. "There but for the grace of God ..."

It appears that society has - perhaps unconsciously - come to accept some of this view. Although "not guilty by reason of insanity" seems anachronistic to me, it at least acknowledges the need for attention to the mental health of the accused. As a society, we don't intentionally inflict suffering on the convicted, even those executed for the most heinous crimes. And there is increased focus on rehabilitation, essentially an attempt to change the mental state of the prisoner (if only indirectly by providing better life prospects upon release).

Insights from neuroscience might be easier to inject into legal proceedings if instead of being used to prevent an accused from being declared guilty (ie, accountable), which grates on even those who have some appreciation for the legal subtleties involved, they were used in deciding how best to hold a convicted person responsible. Even one who doesn't think Atkins and/or Simmons "deserve to die" can't be very comfortable with any suggestion that they aren't "guilty", no matter what a team of neuroscientists say. And if one moves away from the presumably free will/retribution-based M'Naghten view and towards a determinist/societal protection view, it could even be easier to impose more severe sentences since a criminal act may appear to manifest an intrinsic danger that demands long-term attention rather than a possibly short-term failure in judgment.

PS: Possibly because I have a difficult time in general with the language of "morality", I don't see the relevance of "normative judgment" and "moral claims" to what I take to be the issue raised in the article. Aren't those addressed a priori by defining an action to be a crime and assigning a range of punishments? For strategic reasons, participants in a criminal trial may use that kind of language, but does it really have an objective role?

- Charles


I'm not sure I understand your postscript. How can questions of ethics be irrelevant to issues of guilt, punishment, and incarceration? Defining an action as a crime under the law obviously does not answer any or all of the moral questions, nor is it intended to, especially because laws can be interpreted in different ways. As a subjectivist, I certainly don't think morals ought to have an "objective" role. Indeed, as I will argue in my dissertation, it is precisely the belief that subjective phenomena are less "real" or less "important" than objective phenomena that we treat pain so poorly.

So I'm not sure I follow exactly what your question is . . . perhaps if you can elaborate I'll try to explain a bit more about what I mean.

Dan -

This is my (mis?)understanding of the situation.

A society evolves it's moral rules, some implicit ("we just don't do things like that"), others explicit, ie, laws enforced by government. By definition, moral considerations enter into the process of defining these.

When someone is accused of violating a law, there are two main proceedings: one to determine whether the accused violated the law, another to determine "punishment". My impression is that currently we mainly address mental state in the first phase, requiring not only that the accused violated the law but also "knew right from wrong". The former is a question of fact and involves no moral question - the accused either did or didn't (I'm simplifying, of course). The latter is a judgment call, but again seems to me to involve no moral question. Although "right/wrong" may suggest otherwise, I understand the issue to be mental capacity - a medical issue - not moral rectitude.

If the person is found guilty in the first phase, an appropriate punishment is determined in the second phase which involves trying to match, in some sense, the punishment to the specifics of the crime, possibly with considerations such as the prospects for rehabilitation. In reality this is, of course, a subjective process. It may even be accompanied by statements of moral outrage, but I see that as nothing but theatrical embellishment. Ideally, the process should be pragmatic, with the degree of punishment based on considerations such as prospects for deterrence, not on intensity of moral outrage.

The article seems to address whether findings of neuroscience that suggest humans to be more automaton-like will move people away from a retribution-based view of sentencing (although I'm not sure since the author doesn't clearly distinguish between the two phases). The author guesses "no", arguing that "some persons" (since it's unclear which phase is assumed, it's unclear whether these are jurors or judges) will still act in accordance with other drives. This guess may well be correct, but as described, those drives sound a lot like raw emotions. And if science can ever say with acceptable certainty that we really can't help doing what we do, IMO acting as if we can isn't something noble sounding like making "moral claims" or exercising "normative judgment", it's atavistic vengeance.

I have read the article several times and still can't tell what actors taking what actions the author has in mind. Maybe knowing precisely what "the criminal law will become purely consequentialist" means would help, but based on my experiences with people casually referring to "isms" and then having to explain their intended meaning even to other professionals, I have my doubts.

- Charles

Relevant article from WaPo Sunday, April 20, 2008:

in which several issues I raise above are discussed.

Also, my observation above that "As a society, we don't intentionally inflict suffering on the convicted" apparently doesn't apply to our "most brilliant" and principled Justice (re Baze v. Rees):

"Where does that come from, that you must find the method of execution that causes the least pain? Is that somewhere in our Constitution?”

Although it seems to me likely that this is technically correct, it also seems to me just a tad un-Christian to allow even understandable frustration to lead to casually dismissing the issue of inflicting unnecessary pain even on "sinners" - whom, as I understand it - we are supposed to love despite hating their sin.

- Charles

Nice post

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