Neuroethics & Law Blog

"Pardoning Dogs" by Schindler

Sarah Schindler (University of Maine - School of Law) has published "Pardoning Dogs" on SSRN. Here is the abstract:

In 1994, the Governor of New Jersey pardoned a dog. In 2017, the Governor of Maine did the same. Each of these dogs had been ordered to be euthanized after killing another dog. While the Governor of New Jersey relied on the property status of the dog in issuing her order, the Governor of Maine relied on his standard pardon power, despite the fact that the being to be pardoned was a dog rather than a human. Both of these cases generated a great deal of popular press and attention, and recently, a New York state senator petitioned his state’s Governor to pardon a dog in a similar situation.

Against the backdrop of these novel but increasingly frequent actions, this Article is the first to consider extending the pardon power to nonhuman animals, and the expressive function such an act might carry with it. The Article begins by examining the roots of the pardon power, exploring the breadth of that power based on constitutional text. It also describes the motivations and ideas that animate the pardon power, and ties them to recent cognitive studies showing that many nonhuman animals have the ability to feel emotions like grief and regret. The Article then takes a broader, more normative look at a decision to pardon a dog. It considers what impact that decision could have on the laws and norms that govern the treatment of nonhuman animals. Here, it examines the different expressive functions that are furthered by a true, “full and free” pardon as compared to a form of pardon that relies upon the property status of the nonhuman animal. This comparison animates a key debate in the animal law literature: whether nonhuman animals should be viewed as more akin to property or persons under the law. The Article argues that important values are served when a chief executive publicly states that animals are the proper subjects, and worthy, of pardons. These values — including that nonhuman animals are deserving of moral consideration and forgiveness — could eventually help shift the law toward a paradigm that treats animals more like persons and less like things.

"Reasonable Self-Doubt" by Malcai & Rivlin

Ofer Malcai (Hebrew University of Jerusalem - Faculty of Law) and Ram Rivlin (Hebrew University of Jerusalem - Faculty of Law) have published "Reasonable Self-Doubt" on SSRN. Here is the abstract:

Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its falsity. This counter-intuitive phenomenon is related to the idea of higher-order evidence, which has attracted broad interest in recent epistemological literature. Occasionally, providing more evidence for something weakens the case in its favor, by casting doubt on the probative value of other evidence of the same sort or on the fact-finder's cognitive performance. We analyze this phenomenon, discuss its rationality, and outline possible application to evidence law and to the law in general. It is suggested, inter alia, that such higher-order evidence may explain how judicial experience-based expertise in fact-finding is possible despite the absence of a feedback mechanism; and that fact-finders’ self-doubt regarding their own competence in making ‘beyond-reasonable doubt’ judgments might be reasonable and should not be ignored.

Prosecuting the Unpunishable, from Presidents to Dead People" by Diamantis

Mihailis Diamantis (University of Iowa - College of Law) has published "Prosecuting the Unpunishable, from Presidents to Dead People" on SSRN. Here is the abstract:

Criminal law’s central aspiration is to do justice, to give those who injure others the punishment they deserve or the punishment that will deter. Yet there are some criminals—the unpunishables—who necessarily frustrate this goal. These include criminals who happen to be presidents, who evade detection for long enough, or who die prematurely. Unpunishables are, for a range of constitutional, statutory, or obvious factual reasons, immune to any material form of criminal sanction. Does criminal law’s inability to deliver on its central aspiration where unpunishables are concerned mean that it must give up on everything it could have accomplished with respect to them?

Presently, the answer seems to be “yes.” When criminal law cannot deliver punishment, it abdicates all involvement, including criminal trial. Because it cannot punish, the law must leave a moral debt unpaid and a crime undeterred. However, by also refusing to prosecute, the law also goes several steps further. It leaves victims without a platform to shape their own narrative. It refuses formal recognition of the criminal wrong. It hamstrings the community’s healing process. And it silences the uncomfortable fact that society may have played an enabling role.

Criminal law can do better—it could permit the prosecution of unpunishable criminals. Punishment is not criminal law’s only purpose. Trial itself can be an independent source of value. When the criminal law conditions its entire application on what it can do to defendants, it loses sight of what it can do for victims and society. Permitting trials for wrongs committed by unpunishable defendants would give victims a powerful platform for telling their own stories. Conviction, even if not followed by sentencing, would publicly validate victims as having been harmed by criminal wrong and not by their own folly. The resulting narrative would compel society to recognize its own shortcomings and perhaps even its complicity in victims’ vulnerability.

Securing these values by prosecuting unpunishable criminals does have its costs. Perhaps chief among these is the trial of a defendant who may be unable or less motivated to mount a full in-person defense. Ordinarily that price would be too high to pay. It must be remembered, though, that unpunishable defendants have, by definition, no liberty interest at stake. So the price of an admittedly imperfect process will, in the most serious cases, be relatively modest in comparison to the benefits for victims and society of prosecuting unpunishables.

"Just What the Doctor Ordered: A New Federal Statute to Criminalize Physicians for Overprescribing Opioids" by Delfino

Rebecca Delfino (Loyola Law School) has published "Just What the Doctor Ordered: A New Federal Statute to Criminalize Physicians for Overprescribing Opioids" on SSRN. Here is the abstract:

We are in a national emergency—an epidemic of opioid addiction and abuse—that has claimed the lives of more than 700,000 Americans at a cost of more than 500 billion dollars to the economy in the last twenty years. Even now, on average 130 people die every day from an opioid overdose, making it a leading cause of injury-related death in the United States. And 70 percent of those deaths involve an opioid that a doctor legally prescribed.

There is a growing sense that those responsible for the epidemic—specifically doctors who overprescribe these drugs have escaped responsibility. In the last decade nation-wide, criminal charges against doctors have numbered only in the few hundred. Thus, a disparity exists between the size of the opioid epidemic and the number of people, specifically overprescribing doctors, who have been held to account for deaths resulting from prescribing these dangerously addictive drugs. This raises questions: Given the increasing number of opioid overdose deaths nationally, why are charges and convictions of doctors so rare? And why haven’t existing legal mechanisms worked to punish the improper prescribing practices and curb the epidemic so far? The problem of overprescribing opioids persists because the current law, the federal—the Controlled Substances Act—is unclear and lacks uniform application. This article examines these issues and others. It is the first article in legal scholarship to offer concrete and common-sense solutions, including one grounded in a proposed new federal criminal statute aimed directly at those doctors who knowingly violate acceptable health care norms in prescribing opioids. The novel federal homicide law proposed here will deter and punish physicians whose reckless prescription practices cause their patients’ deaths while also providing the space for those doctors engaged in legitimate pain treatment and management to use these drugs to relieve suffering.

"Death with Dignity for the Dying and the Damned" by Schofield

Sarah Schofield (University of Mississippi, School of Law) has published "Death with Dignity for the Dying and the Damned" on SSRN. Here is the abstract:

A troubling philosophical incongruity exists in the perception of end-of-life decisions by the terminally ill and by the convicted. When a member of the former faction accepts his imminent fate and embraces death via physician-assisted suicide, others inevitably attempt to dissuade him. However, the same concerns evaporate when a death row inmate abandons his remaining appeals and ‘volunteers’ to die. No bystander asks whether the years in solitary confinement compelled the inmate to abandon his appeals. No physician questions whether he possesses adequate faculties to effectuate a state-sponsored death. Often, no friend asks him to stay.

The disproportionality in procedural safeguards and assessments of competency among the two groups illuminates a stark dichotomy in the valuation of existing human life. While the terminally ill frequently face endless bureaucratic hurdles in the pursuit of medical autonomy, many death row inmates choose death by abandoning remaining appeals, usually without satisfactory oversight or meaningful judicial review.

Operating under the premise that volunteerism comprises a form of assisted suicide, this article urges the application of heightened judicial scrutiny in cases of abandoned death row appeals. This article also proposes a universal right to physician-assisted suicide for competent, terminally-ill patients. Compelling state interests in the protection of existing human life should not depend upon circumstance: if purely moralistic convictions must seep into legislative construction, they must be observed with impartiality.

"Ordinary People and the Rationalization of Wrongdoing" by Nadler

Janice Nadler (Northwestern University - School of Law) has published "Ordinary People and the Rationalization of Wrongdoing" on SSRN. Here is the abstract:

In March 2019, over fifty people were criminally charged with participating in a scheme to gain fraudulent student admissions to various U.S. universities. How did these individuals end up engaging in plainly nefarious felony criminal offenses? Some of the perpetrators were likely fully aware of both the criminal and unethical nature of their behavior. But others seem to have convinced themselves that their behavior was acceptable because this is how the “system” works. In his book "The Law of Good People," Yuval Feldman argues that people’s limited awareness of the unethical nature of their behavior requires redesigning legal rules to anticipate this aspect of human psychology. Feldman’s bottom line is that because people are often unaware of the moral meaning of their behavior, law must focus on identifying and regulating that behavior before the fact, rather than punishing it afterwards. This review explores an important category of wrongdoing for which the traditional regulatory approach of threats of punishment ex-post might in many cases be suboptimal: corruption. This category provides examples of settings where actors are difficult to deter within standard enforcement frameworks because their motivations are complex. Building on my earlier work on expressive law and social norms, I develop an alternative conception of compliance achieved by supplementing threatened sanctions with leveraging the expressive power of law to decrease the likelihood that people will deceive themselves about the social and ethical meaning of their behavior. Theories of expressive law posit that law can influence behavior through means that go beyond the legal sanctions threatened for violation. I will specifically focus on informational expressive law: the idea that the state can deploy law to provide information, which can in turn change individual beliefs and social norms, which in turn can shape behavior. By leveraging the informational function of expressive law, the state can identify situations in which individuals are likely to fail to fully appreciate the meaning of their behavior. Identifying and sorting “good people,” I argue, is less important than identifying situations and structures that are amenable to legal interventions that leverage social norms.

"Sentencing is Dang Hard... And So..." by Berman

Douglas A. Berman (Ohio State University - Michael E. Moritz College of Law) has published "Sentencing is Dang Hard... And So..." on SSRN. Here is the abstract:

This essay, adapted from a speech upon receipt of the 2018 Richard P. Kern Memorial Award from the National Association of Sentencing Commissions, details why sentencing is “dang hard” and explores implications of that reality. The essay argues that the challenges of sentencing not only demand that all jurisdictions have a sentencing commission as an essential permanent agency, but also call for these commissions always to think big and to strive to work deep and wide to study all facets of modern criminal justice systems. The essay also contends that sentencing errors may be quite common and that, even if we manage to get sentencing “right” at the outset, changes in society and in individuals can make even “right” sentences wrong over time. Sensible humility about the likelihood of sentencing errors further suggests, for example: at the rule-making stage, having sentencing laws include sunset provisions and having sentencing commissions review and audit major guidelines and related sentencing practices on a regular basis; at the case-specific stage, having far more robust substantive appellate review of sentences and more robust mechanisms for parole and judicial reconsideration and clemency, and even developing more creative means to apply and revise different forms of punishment as time passes and new information is gathered.

"Free Will: Real or Illusion - A Debate" by Caruso

Gregg Caruso (SUNY Corning) has published "Free Will: Real or Illusion - A Debate" on SSRN. Here is the abstract:

Debate on free will with contributions by Christian List, Gregg Caruso, and Cory Clark. This is a preprint of an exchange published in The Philosopher, Autumn 2020.