Neuroethics & Law Blog

"An Argument for Abolishing Delay as a Mitigating Factor in Sentencing" by Bagaric

Mirko Bagaric (Swinburne Law School) has published "An Argument for Abolishing Delay as a Mitigating Factor in Sentencing" on SSRN. Here is the abstract: 

Delay is a common mitigating factor in sentencing and can sometimes result in a significant penalty reduction. This is despite the fact that delay does not impact on the seriousness of the offence or the culpability of the offender. This article examines the validity of the rationales which underpin reducing sentencing severity on the basis of delay. It emerges that there is a dearth of critical analysis on this issue. This article attempts to at least partially fill a gap in the literature. There are two different rationales which have been advanced to justify delay reducing penalty severity. The first is anxiety stemming from the waiting associated with a criminal matter being finalised. The second is rehabilitation that the offender may have undergone prior to sentencing. An examination of these rationales establishes that: (i) the anxiety rationale is based on speculative assumptions and reasoning and (ii) the rehabilitation limb cannot justify delay as a sentencing factor given that rehabilitation is a stand-alone, independent, mitigating factor. Hence, it is argued that (subject to one relatively uncommon exception) delay should be abolished as a mitigating factor. This would enhance the transparency and integrity of the sentencing system without undermining any of its appropriate objectives.

"Does Commodification Corrupt? Lessons from Paintings and Prostitutes" by Clowney

Stephen Clowney (University of Arkansas - School of Law) has published "Does Commodification Corrupt? Lessons from Paintings and Prostitutes" on SSRN. Here is the abstract: 

Markets in sacred goods — things like organs, sex and surrogacy services — remain taboo. One central worry is that commodification of such priceless materials may corrode important norms and long-held ethical values. Many commentators, for example, intuit that an active market for human parts could lead to thinking about individuals as fungible objects rather than as entities worthy of moral regard. These arguments are widely accepted and remain deeply influential in law and policy circles. But are they correct? The purpose of this paper is to test empirically the effect of commodifying sacred and seemingly incommensurable goods.

This project takes as its central investigative tool, a series of extensive interviews with participants in active markets for goods that many people regard as “priceless.” Specifically, my research focuses on the work of high-end art appraisers and male escorts. I broadly explore how these professionals attach dollar figures to unique things. And, more importantly, I investigate how the process of constantly commodifying sacred items transforms the texture of their inner-worlds. Does someone who spends all day estimating the value of art have difficulty appreciating paintings other than as objects worth a certain amount? Do individuals who spend all day selling sexual services eventually struggle to understand sexual acts as part of the realm of love and intimacy? Are there some things that shouldn’t be bought and sold?

From the interviews, one dominant finding emerged; The prevailing view that markets inevitably infect the meaning of sacred goods is wrong. Contra anti-commodification theory, the data demonstrate that commerce is not an inherently corrosive force. Rather, objects can have multiple stable meanings — sometimes commodified and sometimes not — depending on the context and circumstances. Appraisers do not view art as a fungible commodity stripped of its sublime properties. And prostitutes do not regard sex in their personal lives as a chore. In short, this Article makes the argument that the intellectual ramparts defending our transcendental ideologies are strong—stronger than legal scholars have previously recognized.

"Criminal Culpability and the Political Meaning of Age" by Ward

Cynthia V. Ward (William and Mary Law School) has published "Criminal Culpability and the Political Meaning of Age" on SSRN. Here is the abstract: 

In The Age of Culpability, Gideon Yaffe argues that all minors who commit crimes should be treated more leniently by the criminal law than similarly situated adults. All “kids” deserve a break, he contends, because they are less culpable as a class than adults. They are less culpable because they less of a “say” over the content of the law, and they have less of a “say” because they are denied the right to vote. Yaffe attacks the belief that kids should get a break because they are psychologically different from adults in relevant ways, arguing that difference-based rationales for giving kids a break do not go far enough in justifying the result he seeks – lenient treatment by the criminal law for all kids, all the time. Yaffe proposes to replace the Difference Hypothesis with the affirmative argument that all kids deserve a break because all kids are denied the right to vote. This review essay raises questions about both Yaffe’s negative argument against what I call the “Difference Hypothesis”, and his affirmative argument that kids deserve leniency for their crimes because they lack voting rights. The review suggests that for purposes of deciding criminal policy, Yaffe’s affirmative proposal suffers from a number of potential weaknesses that call for further explanation, while the Difference Hypothesis has demonstrated a number of important strengths which Yaffe fails to consider.

"Behavioral Ethics, Deception, and Legal Negotiation" by Korobkin

Russel B. Korobkin (UCLA School of Law) has published "Behavioral Ethics, Deception, and Legal Negotiation" on SSRN. Here is the abstract:

Research in the field of behavioral ethics finds that much unethical behavior is not the result of conscious amorality. Rather, cognitive and motivational biases enable and even encourage people who consider themselves to be pro-social to act badly without ever recognizing the shortcomings of their behavior. This Article, delivered as the annual Chris Beecroft, Jr. Memorial Lecture on Dispute Resolution at the UNLV Boyd School of Law, explores how the findings of behavioral ethics can help to better understand, predict, and potentially combat unethical behavior in legal negotiation. Its admittedly pessimistic conclusion is that legal negotiation is an activity that is likely to be rife with behavior that is unethical, or at least presses hard against ethical boundaries.

The Article summarizes the core findings of behavioral ethics research, explains why this research suggests that deceptive behavior will be common in negotiation, argues that the agency role played by lawyers in legal negotiation likely also encourages unethical behavior, and, finally, propose steps that lawmakers or negotiators themselves might take to reduce the amount of deceptive behavior in legal negotiation.

"Probabilistic Causation in the Law" by Schauer and Spellman

Frederick Schauer (University of Virginia School of Law) and Barbara A. Spellman (University of Virginia School of Law) have published "Probabilistic Causation in the Law" on SSRN. Here is the abstract:

This paper challenges the widespread view that the legal system’s conception of causation is largely deterministic and token-level, that view stemming from the law’s principal focus on assigning ex post responsibility for past acts. We argue, in opposition to this view, that the probabilistic, ex ante, and type-level conceptions of causation that dominate the social sciences have a larger place in the legal system than is often recognized. Not only does the legal system frequently and appropriately use probabilistic conceptions of causation when engaged in ex ante rule generation (as opposed to rule application), but probabilistic conceptions of causation also play a substantial role even in the ex post application of legal rules.

"Carceral Trauma and Disability Law" by Hattem

Benjamin Hattem (Stanford Law School) has published "Carceral Trauma and Disability Law" on SSRN. Here is the abstract:

Traumatized people have claimed the benefits of federal disability law with increasing success in recent years. Trauma undermines mental health and cognitive functioning, and disability laws entitle individuals with such impairments to robust accommodations and government support.

But this application of disability law has so far overlooked a key site of trauma: America’s sprawling carceral system. Psychology research has shown that certain experiences that are prevalent during periods of confinement — particularly sexual victimization, nonsexual violence, and long-term isolation — routinely traumatize people who are exposed to them. This Note argues that the prevalence of such traumatic events in carceral spaces may allow many incarcerated and formerly incarcerated people to qualify as individuals with a disability for the purpose of federal disability laws. Put another way, this Note asserts that mass incarceration leads to mass trauma, and it suggests that recognizing this trauma would open new avenues of litigation to address the social and individual harms of imprisonment.

Drawing on recent precedent that articulates the relationship between childhood trauma and disability law, this Note proposes that advocates should start litigating these claims on behalf of juvenile plaintiffs. But ultimately, this Note argues that traumatic experiences during both juvenile and adult incarceration can give rise to disability claims. Millions of people are currently incarcerated in the United States; understanding carceral trauma and its connection to disability law has the potential to affect the conditions of confinement and postrelease outcomes of an extraordinary number of incarcerated and formerly incarcerated people.

"Deep Disadvantage, Blameworthiness, and Sentencing" by Tonry

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has published "Deep Disadvantage, Blameworthiness, and Sentencing" on SSRN. Here is the abstract:

Arguments in favor of a “social adversity” or “rotten social background” defense are substantially stronger than those against. People disagree in principle whether an affirmative defense of deep disadvantage, paralleling the insanity defense, should be recognized and whether judges should routinely mitigate the severity of sentences imposed on deeply disadvantaged offenders. The defense should be recognized. It would be unlikely often to result in acquittals but it would strengthen many defendants’ positions in plea negotiations. Mitigation of punishment should be routine. Few credible arguments can be made that a deeply disadvantaged background is not a material characteristic that should be taken into account in sentencing. Unfortunately, informal mitigation of punishments is not enough. The severity and rigidity of American sentencing laws often deny judges the necessary authority. The moral challenges presented by deeply disadvantaged offenders cannot adequately be addressed without creation of a new affirmative defense.

"The Economic Case for Rewards Over Imprisonment" by Galle

Brian Galle (Georgetown University Law Center) has published "The Economic Case for Rewards Over Imprisonment" on SSRN. Here is the abstract: 

There seems to be a growing social consensus that the U.S. imprisons far too many people for far too long. But reform efforts have slowed in the face of a challenging question: how can we reduce reliance on prisons while still discouraging crime, particularly violent crime? Through the 1970’s, social scientists believed the answer was an array of what I will call preventive benefits: drug and mental health treatment, housing, and even unconditional cash payments. But early evaluations of these programs failed to find much evidence they were successful, confirming a then-developing economic theory that predicted they would fail.

This Article calls for a return to prevention. It first surveys evidence showing that a large fraction of prison spending has no incremental effect on crime reduction. And it offers the first detailed summary of the modern evidence on prevention. Preventive benefits have now been proven effective in a variety of settings. Along the way, I argue that a famous federal study of cash benefits was fundamentally misinterpreted as failure by its own authors.

Next, I lay out the theoretical economic case for preventive benefits. Standard theory rejects benefits because they are said to cost too much, and to potentially encourage some individuals to engage in risky behavior in order to be paid to stop. I suggest both these arguments rely on evidentiary claims that have now been found to be largely false.

In addition, I collect and synthesize a series of theoretical reasons why benefits would out-perform imprisonment. Among others, benefits enrich crime-stricken communities instead of further impoverishing them, as prison does. This simple fact has several important theoretical dimensions. I also show the ways in which the potential to deliver rewards ex ante, or before a crime has been committed, help to overcome a basic failing of prison: they do not require that humans be highly attentive to future consequences.

"Criminal Law During (and After) COVID-19" by Skolnik

Terry Skolnik (University of Ottawa, Faculty of Law, Civil Law Section) has published "Criminal Law During (and After) COVID-19" on SSRN. Here is the abstract:

In response to the COVID-19 pandemic, governments across the globe are implementing drastic physical distancing measures with wide-ranging implications. Courts are increasingly confronted with novel pandemic-related issues that are significantly altering the criminal justice system. This article explores the current and potential impacts of COVID-19 on three specific areas of the criminal law: the scope of certain crimes, bail, and punishment. It advances three core arguments.

First, the pandemic creates a risk that courts will expand the breadth of crimes such as assault and aggravated assault for conduct such as coughing. It provides compelling reasons why courts must limit the scope of these criminal offences and why judges should not extend the legal framework that applies to HIV non-disclosure to COVID-19 transmissions. Second, the pandemic is changing the bail process. Due to COVID-19 outbreaks in detention centres, courts are rethinking whether pre-trial custody is necessary to maintain public confidence in the criminal justice system. More than ever, judges consider the interests of defendants and detainees when interpreting the concept of “public confidence” – a positive change that limits recourse to pre-trial custody. Third, the pandemic is impacting sentencing as judges move away from custodial punishments. COVID-19 highlights why incarceration and financial penalties disparately impact defendants, which raises concerns regarding proportionality and retributive justifications for punishment both during and beyond the pandemic.

Ultimately, this article shows why judges, policy makers, and justice system actors should seize on this unique opportunity to generate lasting positive changes to the criminal justice system that are taking place during the pandemic.

"Why We (Probably) Must Deliberately Infect" by Kolber

Adam Kolber (Brooklyn Law School) has published "Why We (Probably) Must Deliberately Infect" on SSRN. Here is the abstract: 

In the grip of a pandemic of proportions that have not been seen for generations, some have proposed conducting “human challenge” vaccine trials in which healthy volunteers are deliberately infected with the SARS-CoV-2 virus that causes COVID-19. Such trials might substantially speed up the search for a safe and effective vaccine and save many thousands of lives. I argue that such trials are not only permissible, but given reasonable assumptions, they are morally required, subject to some important caveats.

"Is Law Computable? From Rule of Law to Legal Singularity" by Markou and Deakin

Christopher Markou (University of Cambridge - Faculty of Law, University of Cambridge - Centre for Business Research (CBR)) and Simon Deakin (University of Cambridge - Centre for Business Research (CBR), European Corporate Governance Institute (ECGI), University of Cambridge - Faculty of Law) have published "Is Law Computable? From Rule of Law to Legal Singularity" on SSRN. Here is the abstract:

What does computable law mean for the autonomy, authority, and legitimacy of the legal system? Are we witnessing a shift from Rule of Law to a new Rule of Technology? Should we even build these things in the first place?

This unique volume collects original papers by a group of leading international scholars to address some of the fascinating questions raised by the encroachment of Artificial Intelligence (AI) into more aspects of legal process, administration, and culture. Weighing near-term benefits against the longer-term, and potentially path-dependent, implications of replacing human legal authority with computational systems, this volume pushes back against the more uncritical accounts of AI in law and the eagerness of scholars, governments, and LegalTech developers, to overlook the more fundamental - and perhaps 'bigger picture' - ramifications of computable law.

With contributions by Simon Deakin, Christopher Markou, Mireille Hildebrandt, Roger Brownsword, Sylvie Delacroix, Lyria Bennet Moses, Ryan Abbott, Jennifer Cobbe, Lily Hands, John Morison, Alex Sarch, Giovanni Sartor, and Dilan Thampapillai.

This paper is the introductory chapter of Is Law Computable? Critical Perspectives on Law + Artificial Intelligence (Hart 2020).

www.bloomsburyprofessional.com/uk/is-law-computable-9781509937066/

"Criminal Law in Crisis" by Levin

Benjamin Levin (University of Colorado Law School) has published "Criminal Law in Crisis" on SSRN. Here is the abstract:

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way unusual in this respect (i.e., similar observations certainly could be and have been made about the pandemic’s exposure of long-lasting problems associated with the health care/insurance system, the tethering of social benefits to employment, pervasive inequality, and many other features of U.S. political economy). Nevertheless, the current moment provides an opportunity to appreciate the ways in which some of the most problematic aspects of criminal law in times of crisis are basic features of the U.S. carceral state in times of “normalcy.”

To this end, my argument proceeds in two Parts, each addressing one of the aspects or pathologies of U.S. criminal policy that the pandemic has exacerbated. In Part I, I address the absence of “sentencing realism” or, perhaps more accurately, the failure to consider the reality of jails and prisons when imposing sentences or pretrial detention. In Part II, I address the basic limitations of thinking of “the criminal system” as a single monolithic “system,” or, even, as “systematic” at all. What do commentators and lawmakers miss when they suggest or assume that criminal law and its administration are the same in a rural county in Colorado as in an urban county in New York? In each Part, I explain how the pandemic has made each phenomenon more easily identifiable, but also how each phenomenon defined the criminal system in pre-coronavirus days. Ultimately, I argue that the “crisis” frame provides an opportunity for reform, but we must not allow the crisis frame to obscure the ways in which the criminal system was in crisis well before the first COVID-19 tests came back positive.