John A. Humbach (Pace University School of Law) has published "Criminal Acts and Basic Moral Equality" on SSRN. Here is the abstract:
Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law’s supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person’s mental states, such as intentions, can cause physical effects (bodily movements)—a factual assumption that is at odds with the evidence of neuroscience and whose only empirical support rests on a fallacious logical inference (post hoc ergo propter hoc). There is, in fact, no evidence that mental states like intentions have anything to do with causing the bodily movements that constitute behavior. Nonetheless, the mental-cause basis for moral responsibility, though it rests on a false factual inference, has enormous implications for criminal justice policy.While society must obviously protect itself from dangerous people, it does not have to torment them. The imperative to punish, a dominant theme of criminal justice policy, is not supported by evidence or logic, and it violates basic moral equality.
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