Neuroscience and Creeping Inculpation

Jennifer Chandler (Ottowa) gave one of the most interesting papers in the Minds, Brains and Law conference.  Prof Chandler presented a challenge to Greene and Cohen’s view that as neuroscience increasingly shows us to be mechanisms, it will undermine our retributivist inclinations; we will cease to have the impulse to punish and we will abandon retributivism in favour of consequentialism.   Chandler explored the possibility that actually neuroscience will have precisely the opposite effect on our propensity to blame. 

Our default tendency, she noted, is to view ourselves and others as moral agents.  If we are not moral agents, we come under the supervision and control of others.  If others are not moral agents, we may perceive them to be our responsibility.  Both possibilities are psychologically unattractive.    Moreover neuroscience may help bolster this natural conception of ourselves as moral agents.  In particular, as neuroscience increases our ability to predict behaviour, to exercise self-control, to maintain and enhance our capacity for responsibility, we may tend, more and more, (not less and less) to feel entitled to hold others to account.

The ‘tracing principle’ helps illustrate this view about how neuroscience may enhance this psychological response to culpable behaviour.  The basic idea is that if an agent, for some reason, is incapable at the time they commit an offence (T2) , we may ask whether at some earlier time (T1) the agent, nonetheless, had sufficient capacity and knowledge to take steps to prevent the blameworthy behaviour at T2.  The principle resembles the ‘prior fault’ idea, evident in UK criminal law which, for example, will inculpate those who ‘recklessly’ commit an offence when voluntarily intoxicated.  Their lack of capacity, although it undeniably diminishes their control over actions, will not exculpate defendants who can be shown to be at fault in this way.  It is evident in Aristotle’s attribution of responsibility to the same intoxicated agent who is rightly blamed, not for acts performed whilst intoxicated, but for the prior act of failing to control their likely future acts.                  

This is where Chandler thinks that neuroscience may lead to creeping inculpation:  We will use well-established psychological reactions to others to insist on re-inculpating them because neuroscience and neuro-interventions will enable us to point to a greater number of T1s.  For example, if a defendant previously failed to comply with a treatment regime (at T1) that might have controlled her criminal impulses, she may be deemed to have foreseen her criminal behaviour, to have failed to control her propensity to offend and she may be blamed accordingly.  She may be blamed, that is, even though she lacked capacity at T2.  We are culpable if we fail to control future risks.  Neuroscience may give us greater opportunity to exercise such control and greater capacity to identify those moments when we failed to do so.  Coupled with our natural blame-psychology it may lead then to creeping inculpation.

Comments

[Adam Kolber]

Very interesting! Greene and Cohen's claim is about people's views about free will and responsibility in the face of more vivid understandings of brain mechanisms. If I understand your description of Chandler's piece, the change she describes is not about people's views about the nature of responsibility but rather concerns the emergence of new technologies that give us greater ability to control and predict behavior. If I'm right so far, then nothing prevents both phenomena from happening at the same time: G&C could be right that our views about the nature of responsibility will shift, while the technology Chandler describes could affect people's views where new technologies come into play. If they are both right (and I have argued that the G&C view, at least, is currently quite speculative: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2398071), then the matter would come down to which force is stronger or faster and how they interact with each other. Thanks Bebhinn!

[Bebhinn Donnely-Lazarov]

Yes, Chandler's concern was to examine just our psychological approach to responsibility. We naturally want to make people accountable. Since we do, we may tend to view advances in neuroscience through this 'responsibility-lens' that we already have. We will tend to think that neuroscientific technologies (with the capacities you describe) provide further evidence of when we can and should hold agents responsible. The nature of responsibility itself (and our understanding of responsibility itself) remains untouched by her analysis. I found it interesting precisely for this reason. Even if neuroscience could cause our views about the nature of responsibility to change, we still have an underlying psychological tendency to inculpate and we may take neuroscience to support rather than undermine this. If I have understood you correctly then I agree that the interaction between the two (proposed) phenomena is crucial.