Neuroethics & Law Blog

My New Book: Punishment for the Greater Good

My new book, Punishment for the Greater Good, provides support for a consequentialist approach to punishment over a retributive one. Here are some book-related links: OUP site here (discount code: ALAUTHC4); Oxford Academic access here;  library request form here (ISBN: 9780197672778); review copy request form here.

 

"Does Nothing Stop a Bullet Like a Job? The Effects of Income on Crime" by Ludwig and Schnepel

Jens Ludwig (Georgetown University) and Kevin Schnepel (Simon Fraser University) have published "Does Nothing Stop a Bullet Like a Job? The Effects of Income on Crime" on SSRN. Here is the abstract: 

Do jobs and income-transfer programs affect crime? The answer depends on why one is asking the question, which shapes what one means by “crime.” Many studies focus on understanding why overall crime rates vary across people, places, and time; since 80% of all crimes are property offenses, that’s what this type of research typically explains. But if the goal is to understand what to do about the crime problem, the focus will instead be on serious violent crimes, which account for the majority of the social costs of crime. The best available evidence suggests that policies that reduce economic desperation reduce property crime (and hence overall crime rates) but have little systematic relationship to violent crime. The difference in impacts surely stems in large part from the fact that most violent crimes, including murder, are not crimes of profit but rather crimes of passion – including rage. Policies to alleviate material hardship, as important and useful as those are for improving people’s lives and well-being, are not by themselves sufficient to also substantially alleviate the burden of crime on society.

"True Threats and the Neuroscience of Fear" by McGreal

Paul E. McGreal (Creighton University) has published "True Threats and the Neuroscience of Fear" on SSRN. Here is the abstract:

The Supreme Court’s recent decision on “true threats” and the First Amendment has an important blind spot: It unknowingly reflects an outdated account of how the brain produces emotions, and how we perceive emotions in others. The Court’s opinion treats a person’s reaction to a “true threat” – that is, the experience of fear in response to a threat of physical harm – as a reflex unaffected by the idiosyncrasies of the human brain. Neuroscience research shows that this view is wrong. Instead of passively awaiting a stimulus (like a threat) and then reacting, our brains constantly predict our external environment and the internal state of our bodies. These predictions produce the experience of an emotion like fear. While a predictive brain confers a powerful evolutionary advantage, its predictions can be wrong, sometimes in systemically biased ways that disadvantage people based on race or sex. Because of its blind spot, the Court missed the systematic biases posed by its true threats doctrine. To address this failing, this Essay turns to a source ignored by the Court and the parties: the Equal Protection Clause of the Fourteenth Amendment. Taking an equal protection approach, the Court should abandon its one-size-fits-all true threats doctrine in favor of a flexible analysis that takes account of different contexts.

"Victims as Fact-Finders" by Spottswood

Emily Spottswood (Penn State Dickinson Law, Florida State University College of Law) has published "Victims as Fact-Finders" on SSRN. Here is the abstract: 

This article critiques the common practice of excluding crime victims from serving as jurors in criminal cases. Although systematic data on the voir dire process are hard to come by, both case research and empirical evidence suggest that judges routinely permit questioning of potential jurors regarding their victimization status, and that high percentages of both judges and attorneys consider victimization status a proper basis for exclusion.

The practice of victim-exclusion causes serious harms. Excluding victims undermines the jury’s legitimacy as an institution and sends corrosive social messages regarding the status of victims in our society. Nor are these harms offset by any increase in accuracy we might obtain by avoiding supposedly biased jurors. Rather, victims’ unfortunate experiences can sharpen their ability to delineate true from false accusations. Finally, there is no sound justification for assuming that victims’ degree of empathy for other victims is improper, relative to people who have not been victimized. Instead, victims’ participation should offset the troubling reluctance of people without such experiences to credit victims’ testimony and hold abusers to account.

"Assessing the Early Influence of the Model Penal Code’s Revised Sentencing Provisions" by Klingele

Cecelia M. Klingele (University of Wisconsin Law School) has published "Assessing the Early Influence of the Model Penal Code’s Revised Sentencing Provisions" on SSRN. Here is the abstract: 

In 2017, the American Law Institute completed a 15-year revision of the sentencing provisions of the Model Penal Code. This chapter examines early indicators of the revision’s influence in the five years following its adoption. It examines ways in which the provisions of the Model Penal Code: Sentencing (MPCS) appear to be influencing changes in law, both directly and indirectly, and concludes that the areas in which the MPCS has had the most immediate influence are those in which the Code leads, rather than follows, existing law. This suggests that, much like the original Code, the MPCS’s most helpful contribution may be the ways in which it is able to offer new ways of approaching sentencing and correctional challenges that do not require states to dramatically alter already-existing state legislation.

"With No Reason: Allowing Courts to Decide Cases Without Explaining Their Decisions" by Zamir

Eyal Zamir (Hebrew University of Jerusalem) has published "With No Reason: Allowing Courts to Decide Cases Without Explaining Their Decisions" on SSRN. Here is the abstract:

There is broad consensus that there are features of adjudication from which no deviation should be allowed—the quintessential one being the requirement that judges provide reasons for their decisions, based on the pertinent legal norms. In fact, current rules of civil procedure do not permit the parties to agree otherwise, with or without the approval of the court. This article challenges the common wisdom and suggests that, subject to the court’s approval, the parties should be allowed to agree to a non-reasoned decision. Drawing in part on insights from jurisprudence, democratic theory, behavioral law and economics and empirical legal studies, the article first explores the pros and cons of judicial reason-giving. It then proposes a legal reform, according to which in civil disputes, courts will be allowed, with the consent of the litigants, to decide cases without citing reasons for their decisions. This alternative route of deciding cases is expected to ease the burden on overburdened courts. The article discusses ways to mitigate the downsides of non-reasoned decisions, including the restriction of this option to agreements made after the filing of the lawsuit (that is, excluding pre-litigation agreements). The article analyzes the expected effect of the proposed reform on the behavior of litigants, the content of judicial decisions, and the functioning of the court system (including appellate federal courts).

"Nudging Against Consent is Effective but Lowers Welfare" by Gerver et al.

Mollie Gerver (King's College London), Sanchayan Banerjee (London School of Economics & Political Science, Vrije Universiteit Amsterdam), and Peter John (University College London) have published "Nudging Against Consent is Effective but Lowers Welfare" on SSRN. Here is the abstract:

Behavioural nudges are often criticised to “work in the dark". However, recent experimental evidence suggests that the effectiveness of nudges is not reduced when they are delivered transparently. Most people endorse transparent nudges. Yet, transparent nudging may undermine human autonomy -- a minority may oppose to being nudged and feel manipulated, even if they know what is happening. We propose an alternative way of maintaining autonomy that is not reducible to transparency: individuals can be asked if they consent in advance to being nudged. To assess whether consensual nudges are effective, we ask consent from 1,518 UK citizens to be nudged. Subsequently, we default all participants into donating to a charity of their choice, irrespective of self-reported consent. We find that the default nudge is equally effective for both consenting and non-consenting individuals, with negligible difference in average donations. However, non-consenting individuals report higher levels of resentment and regret and lower levels of happiness and support compared to the consenting group. Based on these findings, we argue that ignoring consent can have serious ethical ramifications for policy-making with nudges.

"The Trouble with Trespass" by Oberdiek

John Oberdiek (Rutgers Law School) has published "The Trouble with Trespass" on SSRN. Here is the abstract: 

According to the tort of trespass, even justified entries onto another's property constitute a trespass and are subject to liability. The justification, in other words, does not negate liability. This stands in contrast to the tort of battery: justified batteries, as with self-defense, are not subject to liability. There is reason, moreover, to think that battery is the more fundamental tort, both conceptually and normatively: things matter, after all, because the people whose things they are matter. And yet tort law seems to protect property more than it protects people, insofar as justified trespasses are subject to liability while justified batteries are not. This paper argues that the positive law of trespass is conceptually and normatively misguided insofar as it seems to privilege the protection of property more than the tort of battery protects people. Following an introduction, in Part II I explicate the tort of trespass and the right to exclude at its heart. In Part III, I focus on the limits of the right to exclude, making special reference to the famous necessity cases of Ploof v. Putnam and Vincent v. Lake Erie. In Part IV, I locate the tort of trespass within the wider firmament of tort law, and make the case that it is conceptually and normatively subordinate to the tort of battery. Part V illustrates the trouble with trespass as presently conceived by contrasting its exceptions, or lack thereof, with the exceptions to the tort of battery. If trespass answers to battery, then things should not enjoy greater protection than persons, and yet that inversion is precisely what we find in the law. I conclude by noting and defending a revisionary implication of my criticism of the tort of trespass, namely, that one who enters another’s property under circumstances of necessity should not be liable to them.

This paper will appear in Volume 5 of Oxford Studies in Philosophy of Law (Oxford 2024), edited by Leslie Green and Brian Leiter.

 

"Shocking Sentences" by Meixner

John B. Meixner Jr. (University of Georgia School of Law) has published "Shocking Sentences" on SSRN. Here is the abstract:

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds. Most arguments focus on how sentences arising from these penalties are disproportionate—that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: they lead to sentences that are totally unexpected—indeed, shocking—to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences.

We can better understand the problem of shocking sentences (and how to solve it) by understanding the psychological phenomenon that likely causes it: the exponential growth bias. Across a number of domains, people making quantitative decisions tend to presume linear growth will occur, even in light of evidence that the growth is exponential. I argue that this phenomenon happens in sentencing as well, and explains—at least in part—why defendants don’t anticipate these types of sentences.

Understanding the psychological underpinning of shocking sentences helps us understand why they are harmful: they undermine due process and predictability in the law, they limit potential deterrence, and they’re out of line with everyday intuitions about sentencing. Flatly, they’re bad sentencing policy, and we should reduce them or eliminate them outright. But even if eliminating shocking sentences is politically untenable, there may be ways to reduce the effect of the exponential growth bias. Applying lessons learned from the psychological literature, I suggest ways to provide increased notice of recidivist sentencing provisions aimed to make them less shocking.

"The Volume Problem" by Bellin

Jeffrey Bellin (William & Mary Law School) has published "The Volume Problem" on SSRN. Here is the abstract: 

This Introduction to the Spring 2023 William & Mary Law Review symposium highlights "the volume problem” at the core of critiques of criminal law enforcement in the United States.

“Despite all the variation, the volume problem offers a single theme to tie together America’s difficulties with criminal law and most critiques. There is broad consensus that there are, as a general matter, too many arrests, too many prosecutions, too many convictions, too many people on parole and probation, and—the theme of this symposium— too much incarceration. Putting aside the legitimacy of any piece of this vast fabric—and the pieces’ relative importance— volume itself is the problem that overshadows all others.”

The Introduction proposes that, scholars "de-emphasize disagreement about precise prescriptions by adopting a unifying focus on volume.”

"Supervising Sentencing" by O’Leary

Renagh O'Leary (University of Wisconsin Law School) has published "Supervising Sentencing" on SSRN. Here is the abstract: 

Community supervision agencies and officers do not just supervise people on probation and parole. They also play a unique and privileged role at sentencing. In nearly every state, community supervision officers investigate and write the presentence report, which is often the judge's primary source of information about the defendant and the crime of conviction. With minimal guidance from legislatures or courts, community supervision agencies set the policies that govern the presentence investigation and report process.

This Article offers a descriptive and theoretical account of community supervision's sentencing role in state courts. My account is based on an analysis of statutes, court rules, and a collection of almost 200 internal community supervision agency policy documents obtained through open records requests to community supervision agencies in every state. I find that community supervision agencies and officers do not simply implement sentencing policy; in key respects, they make it.

In their sentencing role, community supervision agencies and officers take positions on highly contested first-order questions about the sentencing process itself: what goals, values, and assumptions should guide sentencing decisions? What types of facts should sentencing judges consider? How should those facts be found, and what meaning do they support? I argue that community supervision's answers to these questions both reflect and reinforce what I describe as a punitive perspective on the sentencing process: one that sees the criminal legal system as just, criminal punishment as socially beneficial, and criminal defendants as moral failures. Community supervision's sentencing role elevates the punitive perspective on the pretense of neutrality and, by doing so, helps to insulate it from challenge and critique.

"Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits" by Robinson and Seaman

Paul H. Robinson (University of Pennsylvania Carey Law School) and Jeffrey Seaman (University of Pennsylvania) have published "Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits" on SSRN. Here is the abstract: 

Recent developments have seen a trend toward de facto decriminalization of conduct that the community continues to see as criminally condemnable. This includes effectively decriminalizing certain kinds of conduct, such as lower-level theft, immigration offenses, illicit drug use, or domestic violence without serious physical injury, as well as criminal conduct by certain groups, such as rioters or statue vandals motivated by cause with which officials sympathize. Such de facto decriminalization can come about in a variety of ways, including policy decisions by the local prosecutor or city council not to arrest or prosecute or by state legislation or referendum that (often unintentionally) decriminalizes the conduct.

The supporters of such decriminalization are typically acting in good faith to produce what they see as a better society, commonly driven by one or more of four motivations: a belief that medical, social services, or mental health professionals are a better response to crime than the criminal justice system, what might be called the anti-criminal justice motivation; a desire to reduce sanctions that would otherwise be imposed upon a group seen as oppressed, what might be called the social justice motivation; a belief that a moral elite are in a better position than the rest of society to decide what is and is not criminally condemnable, what might be called the moral superiority motivation; and a belief that locales rather than the broader jurisdiction should decide what is criminalized, even though the state or federal constitution provides otherwise, what might be called the local superiority motivation.

The Article argues that these justifications for effectively decriminalizing condemnable conduct are questionable. And even if they did offer some societal benefit, any such benefit would be dramatically outweighed by their societal costs: the immediate costs of lost deterrence and lost ability to incapacitate repeat offenders, as well as the even more damaging long-term costs of lost moral credibility and legitimacy, which can only serve to reduce compliance, cooperation, and acquiescence and instead increase resistance, subversion, and vigilantism.

We point out, however, that the same principles apply in reverse situations. Just as conduct seen by the community as criminally condemnable ought not be decriminalized, so too conduct seen as blameless or of reduced blameworthiness ought to be entitled to a defense or mitigation, which current criminal law sometimes fails to do. Similarly, just as conduct seen as condemnable ought to be criminalized, so too conduct that is no longer seen as condemnable ought to be formally decriminalized, which again current criminal law sometimes fails to do. Ensuring that the criminal law tracks society’s criminalization-decriminalization judgements should not be controversial in a democratic society, and this Article argues for a fair and consistent application of that principle to all areas of criminal law.

Two Short Pieces, one by McCay and the other by McCay and Munton

Allan McCay (The University of Sydney Law School) has published "It’s time for the Australian Law Reform Commission to look at neurotechnology". Here is the first paragraph:

At the end of February 2024, the Australian Human Rights Commissioner, Lorraine Finlay, announced that the Commission’s background report on neurotechnology is to be published in March. This news came on the back of global media coverage of Elon Musk’s company Neuralink’s first implantation of a brain–computer interface (a form of neurotechnology) into a human
being, which has contributed to a nascent awareness of neurotechnology in the public sphere.

Additionally, Allan McCay and Riley Munton (The University of Sydney Law School) have published "As technology allows it, should bosses be able to monitor your brain?". This piece is currently behind a paywall.