Neuroethics & Law Blog

"A Truce in the Criminal Law Distributive Principle Wars?" by Robinson

Paul H. Robinson (University of Pennsylvania Law School) has published "A Truce in the Criminal Law Distributive Principle Wars?" on SSRN. Here is the abstract:

Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs.

It is argued here that the two are in fact reconcilable, in a fashion. We cannot declare a winner in the distributive principle wars but something more like a truce. Specifically, good utilitarians ought to support a distributive principle based upon desert because the empirical evidence suggests that doing justice for past wrongdoing is likely the most effective and efficient means of controlling future crime.

But “doing justice” here is not justice in the deontological desert sense of what moral philosophers think is deserved but rather justice in the “empirical desert” sense that reflects the community’s shared judgments of justice. On the other hand, the two conceptions of desert have an enormous overlap, and it seems likely that empirical desert may be the best practical approximation of deontological desert. Indeed, some philosophers would argue that the two are necessarily the same.

By tracking the community’s principles of justice, the system can build “moral credibility” with the community, which allows it to harness the powerful forces of social influence, community support, and internalization of the law’s norms. Empirical research confirms that a criminal justice system perceived by the community as conflicting with their principles of justice is one that provokes resistance and subversion, while a criminal justice system that earns a reputation for reliably doing justice – by tracking shared community principles of justice – is one whose moral credibility inspires greater deference, assistance, and acquiescence, and is more likely to have citizens internalize its norms of what constitutes truly condemnable conduct.

"Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois" by Cassell & Fowles

Paul G. Cassell (University of Utah - S.J. Quinney College of Law) and Richard Fowles (University of Utah - College of Social & Behavioral Sciences) have published "Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois" on SSRN. Here is the abstract:

Recently bail reform issues have been in the news across the country, as concerns about fair treatment of defendants and possible public safety risks from expanding pretrial release have collided. These issues involve important empirical questions, including whether releasing more defendants before trial leads to additional crimes. An opportunity to investigate this public safety issue has developed in Chicago, our nation’s second largest city. There, the Office of the Chief Judge of the Cook County Courts adopted new bail reform measures in September 2017 and reviewed them empirically in May 2019. Cook County’s Bail Reform Study concluded that the new procedures had released many more defendants before trial without any concomitant increase in crime. This article disputes the Study’s conclusions. This article explains that, contrary to the Study’s assertions, the new changes to pretrial release procedures appear to have led to a substantial increase in crimes committed by pretrial releasees in Cook County. Properly measured and estimated, after more generous release procedures were put in place, the number of released defendants charged with committing new crimes increased by 45%. And, more concerning, the number of pretrial releasees charged with committing new violent crimes increased by an estimated 33%. In addition, as reported by the Chicago Tribune, the Study’s data appears to undercount the number of releasees charged with new violent crimes; and a substantial number of aggravated domestic violence prosecutions prosecutors dropped after the changes, presumably because batterers were able to more frequently obtain release and intimidate their victims into not pursuing charges. These public safety concerns call into question whether the bail “reform” measures implemented in Cook County were cost-beneficial. And because Cook County’s procedures are state-of-the-art and track those being implemented in many parts of the country, Cook County’s experience suggests that other jurisdictions may similarly be suffering increases in crime due to bail reform.

"From Decarceration to E-Carceration" by Arnett

Chaz Arnett (University of Pittsburgh - School of Law) has published "From Decarceration to E-Carceration" on SSRN. Here is the abstract:

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem. This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.

"Recidivism of Paroled Murderers as a Factor in the Utility of Life Imprisonment" by Anderson

John Anderson (University of Newcastle) has published "Recidivism of Paroled Murderers as a Factor in the Utility of Life Imprisonment" on SSRN. Here is the abstract:

When a convicted murderer violently re-offends after being released, a prominent media profile results, intense fear is engendered within the community and it generates vigorous commentary, usually and understandably critical of the offender. On the other hand, there is evidence that most murders are opportunistic and singular. In this article Australian and international recidivism literature is synthesised in the specific context of murderers released to parole. This recidivism data is then analysed and evaluated as a factor in the utility of life sentences as a punishment for murder. A comprehensive synthesis, analysis and evaluation of the literature reveals that a moderately small percentage of paroled murderers recidivate by committing a violent offence and even fewer kill again. As recidivism is of significant weight in the measure of the success or otherwise of sentencing and corrections, it is contended that life imprisonment when it means indefinite incarceration without the opportunity for parole is of limited, if any, utility for most convicted murderers and for the community from which they have been excluded.

"Justice is in the Eyes of the Beholder – Eye Tracking Evidence on Balancing Normative Concerns in Torts Cases" by Engel & Rahal

Christoph Engel (Max Planck Society for the Advancement of the Sciences) and Rima-Maria Rahal (Tilburg University) have published "Justice is in the Eyes of the Beholder – Eye Tracking Evidence on Balancing Normative Concerns in Torts Cases" on SSRN. Here is the abstract: 

Frequently deciding legal cases requires an assessment in multiple, conceptually incompatible dimensions. Often one normative concern would call for one decision, and another normative concern for a different decision. The decision-maker must engage in balancing, with no help from overarching normative theory. A typical situation is torts. The decision must regularly balance concerns on behalf of the victim, the tort feasor and society at large, both on utilitarian and deontological grounds.

In this paper we use eye tracking to investigate in which ways laypersons' thought processes react to normative conflict in a set of 16 torts vignettes. If normative conflict is present, participants are less likely to agree with the likely outcome if the case were tried in a German court; they take longer to decide, and they fixate longer on normative concerns presented on a decision screen. Eye movements show that participants indeed consider multiple normative concerns in competition.

"Corporate Law for Good People" by Feldman et al.

Yuval Feldman (Bar-Ilan University), Adi Libson (Bar-Ilan University), and Gideon Parchomovsky (University of Pennsylvania Law School) have published "Corporate Law for Good People" on SSRN. Here is the abstract:

This article offers a novel analysis of the field of corporate governance by viewing it through the lens of behavioral ethics. It calls for both shifting the focus of corporate governance to a new set of loci of potential corporate wrongdoing and adding new tools to the corporate governance arsenal. The behavioral ethics scholarship emphasizes the large share of wrongdoing generated by "good people" whose intention is to act ethically. Their wrongdoing stems from "bounded ethicality" -- various cognitive and motivational processes that lead to biased decisions that seem legitimate. In the legal domain, corporate law provides the most fertile ground for the application of behavioral ethics since it encapsulates many of the features that the behavioral ethics literature found to confound the ethical judgment of good people, such as agency, group decisions, victim remoteness, vague directives and subtle conflict of interests.

Bounded ethicality suggests a view of corporate law that is dramatically different than that portrayed by traditional legal and economic theorists. Not only does it suggest that wrongdoing can be committed by well-intentioned people who wish to do right, but also that the biases they display call for a radically different set of legal interventions than those advocated by standard economic theory. If standard theorizing views corporate agents as self-interest maximizers, bounded rationality perceives them as actors with varied and nuanced motivations that could benefit from subtle legal reforms.

This Article's assessment of corporate governance through the behavioral ethical lens proceeds in three stages. First, it exposes potential wrongdoing by good people that conventional corporate governance does not address. Second, it suggests novel corporate governance interventions supported by behavioral ethics to address wrongdoing by good people. Third, it identifies existing interventions that according to behavioral ethics analysis may generate unintended adverse effects on the behavior of well-meaning corporate officers and exacerbate wrongdoing instead of mitigating it. As we will show bounded ethicality has important implications for a wide range of topics in corporate governance, such as board structure, independent directors, regulation of institutional investors and proxy advisory firms, the business judgment rule, and corporate and intra-board liability.

"Predictive Policing Theory" by Ferguson

Andrew Guthrie Ferguson (American University Washington College of Law) has published "Predictive Policing Theory" on SSRN. Here is the abstract: 

Predictive policing is changing law enforcement. New place-based predictive analytic technologies allow police to predict where and when a crime might occur. Data-driven insights have been operationalized into concrete decisions about police priorities and resource allocation. In the last few years, place-based predictive policing has spread quickly across the nation, offering police administrators the ability to identify higher crime locations, to restructure patrol routes, and to develop crime suppression strategies based on the new data.

This chapter suggests that the debate about technology is better thought about as a choice of policing theory. In other words, when purchasing a particular predictive technology, police should be doing more than simply choosing the most sophisticated predictive model; instead they must first make a decision about the type of policing response that makes sense in their community. Foundational questions about whether we want police officers to be agents of social control, civic problem-solvers, or community partners lie at the heart of any choice of which predictive technology might work best for any given jurisdiction.

This chapter then examines predictive policing technology as a choice about policing theory and how the purchase of a particular predictive tool becomes – intentionally or unintentionally – a statement about police role. Interestingly, these strategic choices map on to existing policing theories. Three of the traditional policing philosophies – hot spot policing , problem-oriented policing, and community-based policing have loose parallels with new place-based predictive policing technologies like PredPol, Risk Terrain Modeling (RTM), and HunchLab. This chapter discusses these leading predictive policing technologies as illustrative examples of how police can choose between prioritizing additional police presence, targeting environmental vulnerabilities, and/or establishing a community problem-solving approach as a different means of achieving crime reduction.

"Thinking Quantum: A New Perspective on Decisionmaking in Law" by Jaeger and Trueblood

Christopher Brett Jaeger (New York University School of Law) and Jennifer S. Trueblood (Vanderbilt University) have published "Thinking Quantum: A New Perspective on Decisionmaking in Law" on SSRN. Here is the abstract:

Behavioral law and economics (BLE) is built on the observation that human decisionmaking is often incompatible with rational choice theory. But if our decisions do not follow the rules of rational choice theory, is there a general set of rules they do follow? Can BLE offer a coherent alternative to rational choice?

To the extent it has addressed these questions, BLE has struggled with them. But an emerging psychological theory called “quantum decisionmaking” may offer answers. Quantum decisionmaking offers a new perspective on how people think about probabilities — one that challenges core assumptions of rational choice theory. Specifically, quantum decisionmaking assumes that probabilistic judgments are prone to systematic path dependencies. Your next judgment is apt to be influenced by your last judgment, which was likely influenced by the one before that. By incorporating such dependencies, quantum models of decisionmaking can account for classically “rational” decisions and a variety of the heuristics and biases that animate BLE.

Quantum decisionmaking has theoretical and practical implications for law. On a theoretical level, quantum decisionmaking conceptually unifies what has sometimes been characterized as BLE’s ad hoc list of heuristics and biases. More practically, quantum decisionmaking highlights the important role that sequence plays in law’s choice architecture, and generates new, testable predictions about a variety of important law-related decisions. We identify and explore eight such predictions, which concern issues ranging from juror decisionmaking to witness lineups to policing.

"Law's Halo and the Moral Machine" by Huang

Bert I. Huang (Columbia Law School) has published "Law's Halo and the Moral Machine" on SSRN. Here is the abstract:

How will we assess the morality of decisions made by artificial intelli­gence—and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.