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Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break because on average they have different capacities relevant to responsibility than adults. Professor Yaffe instead argues that kid should be given a break because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review. After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break. If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable. Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: (1) coherence and simplicity; (2) a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and (3) a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability.

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our understanding of it. Then it addresses moral and legal responsibility generally, and specific doctrines. Executive function is seldom found to be the most perspicuous approach to any of the general or specific moral and legal questions.

Although there is debate in the scientific and clinical literature about how much choice addicts have concerning the use of drugs and related activities, this article demonstrates that Anglo-American criminal law is most consistent with the position that addicts have substantial choice about engaging in crimes involving their addiction. It suggests that the criminal law's approach is consistent with plausible and reasonable current scientific and clinical understanding of addiction and is therefore defensible, but it also suggests that the law is unduly harsh and far from optimum.

This chapter addresses the potential contributions of neuroscience to criminal justice decision-making and policy, with special emphasis on criminal responsibility. The central question is whether neuroscience is relevant to criminal justice. The general conclusion is that it is scarcely useful at present but may become more relevant as the science progresses. After explaining the meaning of criminal responsibility in use, the chapter speculates about the source of claims for the positive influence of neuroscience. The scientific status of behavioral neuroscience and two radical challenges to responsibility neuroscience allegedly raises, determinism and the death of agency, are discussed next. Then, the specific relevance of neuroscience to criminal law and the use of neuroscience in criminal cases in the United States and abroad are addressed. The penultimate section points to some areas warranting modest optimism for the use of neuroscience in criminal justice. A brief conclusion follows.

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the neuroscientific evidence to the precise legal question being addressed. These studies demonstrate yet again that in virtually all cases, actions speak louder than images and that when the behavioral evidence is unclear, the neuroscientific evidence is scarcely helpful in resolving the legal issue.

This chapter demonstrates that, despite claims to expand the mitigating and excusing force of addiction based on burgeoning scientific research, existing Anglo-American criminal law is most consistent with the choice position. It argues that this is a defensible approach that is consistent with current science and with traditional justifications of criminal blame and punishment. The chapter discusses preliminary issues to avoid potential objections that the discussion adopts an unrealistic view of addiction. It provides a general explanation of the responsibility criteria of the criminal law and briefly addresses false or distracting claims about lack of responsibility. The chapter seeks to analyse of the criminal law’s doctrines about addiction to confirm that the criminal law primarily adopts a choice model and that addiction per se plays almost no role in responsibility ascriptions. It concludes with a general defense of present doctrine and practice, but briefly suggests beneficial liberalizing reforms.

The primary quarries of those who think that neuroscience poses a challenge to meaning, morals, and purpose are the related concepts of responsibility and desert, especially as they play a role in criminal law. After all, responsibility and desert are intrinsic features of present moral and criminal legal concepts, practices, and institutions, including the imposition of punishment. This chapter begins by reviewing the law's psychology, concept of personhood, and criteria for criminal responsibility. It then turns to neuroscience’s two primary challenges, determinism and the “victim of neuronal circumstances”/“pack of neurons” (VNC/PON) model, suggesting that neither is new to neuroscience and neither at present justifies revolutionary abandonment of moral and legal concepts and practices that have been evolving for centuries in both common law and civil law countries. I then turn to the new version of determinism, called by its proponents “hard incompatibilism.” First, I suggest some concerns internal to the approach. Then, because the metaphysical premises for responsibility or jettisoning it cannot be decisively resolved, I suggest that the real issue is the type of world we want to live in and that the hard incompatibilist vision is not normatively desirable, even if it is somehow achievable.

This chapter considers whether the new sciences of the brain/mind, especially neuroscience and behavioural genetics, are likely to transform the law’s traditional concepts of the person, agency, and responsibility. The chapter begins with a brief speculation about why so many people think these sciences will transform the law. It reviews the law’s concepts of the person, agency and responsibility, misguided challenges to these concepts, and the achievements of the new sciences. It then confronts the claim that the brain/mind sciences prove that we are not agents who can guide our conduct by reason and thus cannot be responsible. It argues that this claim cannot be supported empirically or conceptually, and that no revolution in legal thinking is foreseeable. The chapter concludes by suggesting that the new sciences have little to offer the law at present, but in the future, they may contribute modestly to reforming doctrine, policy, and practice.

This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to contingencies. We then present an overview of data demonstrating that addiction is a set of behaviors whose course can be altered by foreseeable consequences. The same cannot be said of conventional brain diseases such as Alzheimer’s or multiple sclerosis. The best scientific and clinical data we have do not support the view that addicts are unable to refrain from using substances by choice. By “choice” we mean the product of the capacity to respond to incentive and reasons, which obviously varies among addicts but which are virtually never entirely lost. Data amply show that addicts retain that capacity. Finally, we demonstrate how a decision in favor of the probationer could have significant implications for the future of treatment-based approaches to criminal justice, as well as for criminal responsibility more generally. We conclude that the probationer’s claim should be denied because it rests on refuted scientific premises and will have negative consequences if it is accepted.

The article begins by contrasting medical and moral views of addiction and how such views influence responsibility and policy analysis. It suggests that since addiction always involves action and action can always be morally evaluated, we must independently decide whether addicts do not meet responsibility criteria rather than begging the question and deciding by the label of ‘disease’ or ‘moral weakness’. It then turns to the criteria for criminal responsibility and shows that the criteria for criminal responsibility, like the criteria for addiction, are all folk psychological. Therefore, any scientific information about addiction must be ‘translated’ into the law's folk psychological criteria. Distractions about responsibility are then quickly canvassed. Then it addresses the direct relation between addiction and criminal responsibility. It argues that most addicts retain sufficient rational and control capacities at the relevant times to be held responsible, especially for crimes that are not ...

Legislators, jurists, and advocates often turn to science to solve complicated normative problems addressed by the law. This article addresses what motivates these parties, surveys the psychology of law and its concepts of the person and responsibility, and describes the general relation of neuroscience to law in terms of the issue of “translation.” Numerous distractions have clouded our understanding of the relationship between scientific, causal accounts of behavior and responsibility. The notion of “NeuroLaw” is examined here in detail, with the conclusion that a cautious optimism regarding the contributions of neuroscience to the law is warranted.

This article considers whether psychopaths should be held criminally responsible. After describing the positive law of criminal responsibility in general and as it applies to psychopaths, it suggests that psychopaths lack moral rationality and that severe psychopaths should be excused from crimes that violate the moral rights of others. Alternative forms of social control for dangerous psychopaths, such as involuntary civil commitment, are considered, and the potential legal implications of future scientific understanding of psychopathy are addressed.

Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred. Advocates have tried to use genetic evidence to affect judgments of criminal responsibility. At present, however genetic research can provide little aid to assessments of criminal responsibility and it does not suggest a radical critique of responsibility.

This article addresses the moral and legal responsibility that may fairly be attributed to mid and late adolescents who commit criminal offenses and how adolescents' responsibility should affect the law's response. It offers a robust theory of responsibility that is rooted in our current moral theories and practices of blame and punishment. Next the article reviews the psychosocial and developmental literature to determine whether or to what degree mid to late adolescents are morally responsible for their conduct and whether they are less responsible than adults. Finally, the article considers the dispositional consequences implied by the theory of responsibility in general and by what we know about adolescents in particular. It concludes that neither data nor commonsense can resolve the normative issue of juvenile responsibility.

This essay addresses the current criminal law debates about excusing by canvassing the issues and arguments concerning excusing, in general, and the new excuses, specifically. It concludes that the current system of criminal blame and punishment is coherent, fair in principle, and can accommodate the claims for new excuses. In particular, the essay claims that the fairness of blaming and punishing is immune from attacks based on the possible truth of determinism, which allegedly would render these practices unjust, and provides a general, unifying defense of responsibility and the excuses. The essay considers many of the leading explanations of the excuses and concludes that they are misleading. "New syndrome" claims are covered in detail. Many of the new claims can be brought within the ambit of current criminal law defenses, albeit with reasonable modifications to current doctrine in some cases. Indeed, the syndromes that underpin claims for new excuses, properly understood, do not raise new legal issue...

This essay addresses the relevance of genetic data, including gene-by-environment interactions, to criminal responsibility and sentencing. After describing the criminal law’s implicit psychology and criteria for responsibility, it considers the present and future contributions genetics may make. It suggests that, at present, genetics should not play a large role in the adjudication of individual cases unless it translates directly into the law’s folk psychological criteria for responsibility, which it seldom does. Future discoveries may increase the usefulness of genetics to rational adjudication, however. The role of genetics at sentencing may be somewhat more promising, especially concerning the prediction of future behavior.

CONTENTS Contributors Foreword Owen D. Jones Preface Stephen J. Morse & Adina L. Roskies Introduction Stephen J. Morse 1. Neuroscience Basics Annabelle M. Belcher & Adina L. Roskies 2. Brain Imaging Techniques Adina L. Roskies 3. Other Neuroscientific Techniques Adina L. Roskies 4. Admissibility of Neuroscientific Expert Testimony David L. Faigman 5. Mind-Reading, Neuroscience, and the Law Henry T. (Hank) Greely 6. Criminal Responsibility, Criminal Competence, and Prediction of Criminal Behavior 7. Adolescent Culpability and Competence: Implications of Neuroscience for Criminal Justice Adjudication 7. Adolescent Competence and Culpability: Implications of Neuroscience for Juvenile Justice Administration 8. The Relevance of the Neuroscience of Addiction to the Criminal Law Douglas Husak & Emily Murphy 9. The Future of Law and Neuroscience 9. Neuroscience and the Law: Looking Forward Glossary Index

I Introduction Behavioral science is on the march. Psychiatrists and psychologists are identifying an ever-proliferating and often bewildering array of new syndromes or disorders. Some have received the clinical and scientific imprimatur of actual inclusion in the American Psychiatric Association's official diagnostic manual, referred to as DSM-IV.(2) Examples of the diagnostically respectable disorders include: "Antisocial Personality Disorder,"(3) "Posttraumatic Stress Disorder,"(4) "Intermittent Explosive Disorder,"(5) "Kleptomania," and "Pathological Gambling."(6) DSM-IV characterizes other categories as "in need of further study" because their existence as discrete psychopathological entities is not yet sufficiently validated to warrant inclusion in the manual.(7) Examples include, "Postconcussional Disorder,"(8) "Caffeine Withdrawal,"(9) and "Premenstrual Dysphoric Disorder"(10) (which was formerly termed Premenstrual Syndrome or PMS and, later, Late Luteal Phase Dysphoric Disorder). Finally, and least respectably, some alleged syndromes have not received general provisional recognition as valid, but are advocated with varying degrees of success by clinicians and researchers who have supposedly identified them. Examples from the last group, which have been chosen from the mental health and legal literatures and from legal cases, where they often arise, include," Battered Woman Syndrome,"(11) "Vietnam Syndrome,"(12) "Child Sexual Abuse Syndrome,"(13) "Holocaust Survivor Syndrome,"(14) "Urban Survival Syndrome,"(15) "Rotten Social Background,"(16) and "Adopted Child Syndrome."(17) Diagnostic identification, research, and advocacy are unproblematic if they are confined within the mental health professionals' domain. Although the concepts of mental and behavioral abnormality are hotly contested, human suffering is potentially involved, and we will all probably benefit from activities aimed at acquiring valid knowledge of how our mental and behavioral nature is carved at the joints. But swept away by the torrent of science and, alas, pseudo-science concerning alleged new syndromes, many people now suffer from yet another new syndrome that I have identified, or at least given a name: the "New Syndrome Excuse Syndrome." The primary diagnostic criterion for this syndrome is an almost irresistible impulse to use the alleged discovery of syndromes of mental abnormality as good reason to alter the criminal law. Those suffering from the new syndrome include many members of the criminal defense bar, properly seeking any possible purchase to exonerate defendants, legal commentators, some mental health professionals, and some judges and legislatures. Courts and, less often, legislatures are increasingly inundated with claims that syndromes old and new, validated and unvalidated, should be the basis for two types of legal change. The first is the creation of new affirmative defenses. Examples are claims for the creation of a discrete "battered victim" or "urban survivor syndrome" defense. The second change proposal is the expansion of old defenses: for example, loosening objective standards for justifications such as self-defense. All too often, I fear, the new syndromes are not sufficiently validated and are the product of unacceptably "soft" science or clinical crockery. Nevertheless, this paper will not discuss the pseudo-science problem. Instead, it will accept the validity of some of the new syndromes or some yet to be discovered syndromes because the legal issues are theoretically and practically important only if claimed new syndromes do have reasonable validity. Consequently, this article win assume away the scientific and clinical problems and will focus on the conceptual difficulties and policy dilemmas the New Syndrome Excuse Syndrome presents. This article attempts to clear the theoretical terrain to determine how the criminal law should understand and respond to claims that new syndrome evidence warrants the expansion of existing defenses or the creation of new ones. …

Publisher Summary This chapter addresses the basic definitional and conceptual issues concerning addiction that must be clarified to make progress. The primary criteria of addiction commonly employed at present are behavioral, namely, persistent drug seeking and using, especially compulsively, in the face of negative consequences. There are many findings about the biology and psychology of addicts that differentiate this group from non-addicts, but none of these findings is independently diagnostic. Using the definition just provided, an addictive drug would be one that has a substantial potential to cause users to persistently seek and use the substance, especially compulsively and with negative consequences. Citizens appear to have a prima facie right to engage in recreational alteration of mood and cognition by drug consumption and the state surely has the burden of justifying criminal prohibition of such recreation by powerful arguments. Criminalization of drugs inhibits use generally and consequent addiction by making production, sale, possession, and use more expensive and dangerous and by sending the clearest possible message that drug use is wrong.

This chapter has two simple underlying theses. The first is that it is impossible to understand the relation of any variable to criminal responsibility without having in place an account of criminal responsibility. The second is that discovery of genetic, neuroscientific, or any other physical or psychosocial cause of action raises no new issues concerning responsibility, and discovery of such causes does not per se create an excusing or mitigating condition for criminal conduct or any other type of behavior. The chapter begins in Part II with a brief description of the phenomenology of addiction, describing generally what is known about the behavioral aspects of addiction in addition to the basic criteria of craving, seeking, and using. Part III addresses the contrast between the legal and scientific images of behavior, using the disease concept of addiction, now fueled by discoveries of genetic predisposition and altered neural systems of reward, as prime examples of the contrast. Part IV offers a general model of criminal responsibility to guide the analysis of responsibility for addiction-related criminal behavior, offering the best positive account of the present system. Part V deals with persistent confusions about responsibility. Part VI describes those aspects of addiction, if any, for which persons might be held morally or legally responsible, concluding that only actions related to addiction are appropriate objects for ascribing criminal responsibility. Part VII addresses the causal role genetics and neural systems of reward play in explaining addiction. Finally, Part VIII considers individual and social responsibility for the addiction-related actions.

There is uneasy tension in the criminal law between the doctrines of mens rea and the defense of legal insanity. Last term, the Supreme Court addressed both these issues, but failed to clarify the relation between them.Using a wide range of interdisciplinary materials, this article discusses the broad doctrinal, theoretical, and normative issues concerning responsibility that arise in this context. We clarify the meaning of mental disorder, mens rea and legal insanity, the justification for and the relation between the latter two, and the relation among all three. Next we consider the reasoning in Clark, and for the most part find it wanting. Then we turn to the constitutionality and wisdom of abolishing or limiting mens rea and legal insanity. We conclude that although it is probably constitutional to abolish legal insanity, robust doctrines of mens rea and the insanity defense itself must be maintained to insure that the criminal law imposes fair blame and punishment. We next canvas the alternatives to legal insanity, including the most contemporary, reasoned academic proposal, and find all insufficient to achieve justice. Finally, we respond to the increasing challenges to responsibility generated by new scientific findings about human behavior, especially by the new neuroscience, and suggest that these findings do not undermine core conceptions of personhood and responsibility.

Thinking about addictions has been dominated by two models: the medical model, which treats addiction as a disease and related behaviors as signs and symptoms, and the moral model, which views addiction and related behaviors as indications of moral failure. This article describes both models and their implications, with special emphasis on the moral model. The meaning of compulsion or coercion caused by internal psychological states, such as craving, is explored to determine if addicts may fairly be held morally and legally responsible for their behavior, such as seeking and using substances. It is argued that diminished rationality better explains than compulsion why addicts might be excused for their behavior, but it is concluded that most addicts can be held responsible for most addiction-related behavior. Nonetheless, both models have desirable characteristics, and sound public policy should not be based solely on either. The implications for criminal justice of employing both models to guide policy are explored.

Why do we fear preventive detention and believe that it requires special justification? Citizens in free, democratic societies are accustomed to substantial limitations on liberty that are justified morally and politically by the “common good.” Avoiding serious danger is a greater good than most, but the power of the state to confine dangerous people or to reduce danger by equally oppressive intrusions is considered especially fearsome. The usual, and generally uncontroversial, justifications given for such deprivations of liberty are that the person has culpably committed a criminal offense or that the agent is not responsible for the danger he or she presents. Criminal imprisonment and various forms of civil commitment, for example, which preempt potentially dangerous conduct by incapacitation, are considered reasonable deprivations of liberty in such cases. But in neither case is the state confining on purely preventive grounds a responsible agent who has done no wrong. In contrast, pure preventive detention is an anathema, we believe, because polities devoted to liberty and autonomy have no moral or political warrant to confine or similarly oppress innocent, responsible agents. What could justify such a vast intrusion on the liberty of such agents to pursue their projects? I recognize that the state has an uncontroversial right to quarantine innocent, responsible agents if such agents have communicable diseases and no less intrusive intervention will prevent infection of others. Although many forms of communicable disease can be spread by conduct, the justification of pure quarantine requires no action or potential action. It is a purely public health measure directed toward microorganisms that has the undesirable effect of limiting freedom of action. This article addresses only the preemption of dangerous conduct, which might in some cases include the transmission of disease. See generally Michael Corrado, Punishment, Quarantine, and Preventive Detention, 15 C rim. J ust. E thics 3 (Summer/Fall 1996).

Hyman's (2007) sensible, sophisticated, and balanced article makes the following important points about addictions. Whether addiction should be considered a disease, a moral failure, or sometimes b...

Few legal terms confuse behavioral scientists and mental health professionals more than mens rea (guilty mind), largely because the law employs the term in diverse and often inconsistent ways. This chapter attempts to clarify the numerous confusions and to explain why mens rea is central to criminal liability. It begins with a brief introduction to criminal liability and the most general usages of mens rea, establishes a working vocabulary, and provides an understanding of the relevant criminal law doctrines. The chapter then addresses the law’s concept of the person and the moral justifications for punishment because the requirement of mens rea for criminal liability is derived from these considerations. The chapter then examines in detail the technical meaning of mens rea, including the distinction between “specific” and “general” intent.

In recent years there has been increasing skepticism about the therapeutic promis of the juvinile court and increasing attention to due process for juveniles accused of delinquent offenses and other behaviors which might invoke juvenile court jurisdiction. Reflective of these trends are the model standards embodied in the IJA/ABA Juvenile Justice Standards, which provide for primary emphasis on the rights and interests of the juvenile, to be furthered by a principle of least intervention. The Standards imply a substantial but considerably more modest role for mental health service providers in juvenile justice. Such a change is consistent with a model of treatment based on respect for the individual and automomous, contractual relations between helping professionals and their clients.

The insanity defense must be retained because it is fundamentally just. Some mentally disordered defendants are so irrational at the time of their offenses that they lack the basic preconditions of moral responsibility, and therefore they must be excused. Retaining the insanity defense will not compromise public safety, nor will abolishing it lead to the remedying of associated social problems such as the substandard mental health care in jails and prisons. Nevertheless, there are real problems with the administration of the defense that must be addressed. The substantive tests must be revised, the burden of persuasion should be put on the defendant, the role of experts should be limited, and post-acquittal procedures must be made more rational. Impatience with the practical problems, which can be ameliorated by sensible reforms, should not cause society to abandon a basically fair doctrine.

How are things down in the trenches? I was so glad to get your letter; it's good to know that someone down there is listening. I should have thought it would be hard to hear, what with the Boch lobbing shells from the bench and counsel tables, but you got the message loud and clear. (By the way, watch out for the incoming from your own counsel-it can be devastating.) Your field report from the last engagement filled me with admiration and inspired me to respond. From your description, it sounds like you fought the good fight according to the strategy we've worked out up in the Tower. Of course, there was some backsliding and use of unauthorized manoeuvres such as using diagnostic labels (and, how does one use them in an "explanatory fashion"?) and offering an opinion on the ultimate issue (indeed!). I appreciate, however, that the hurly-burly of battle often calls for modifications in the pristine tactics worked out by theoreticians far removed from the fray. Moreover, it appears that you tried mightily to keep your deployments scientifically respectable and ethically proper. (Also, if your letter is an indication, you surely returned your fire with great eloquence and need never be modest on that score.) For all these reasons, your apology for failure to follow orders is perfectly accepted, but I want to encourage you to continue both to attempt to stick to the game plan and to educate the Boch, who can be notoriously rigid and slow to learn.

The diminished capacity doctrine allows a mentally abnormal but legally sane defendant to have his or her mental abnormality taken into account in assessing criminal liability.’ Depending on the jurisdiction, diminished capacity operates either to negate an element of the crime charged, thereby exonerating the defendant of that charge, or formally to reduce the degree of crime for which the defendant may be convicted and punished even if all the formal elements of the originally charged offense were satisfied. These two variants of diminished capacity will be referred to respectively as the “mens rea” and “partial responsibility” approaches.’ This contribution will analyze the theoretical basis and development of diminished capacity doctrine with special reference to the law in the State of California, where the doctrine is especially fully, if not coherently, developed. I shall contend that although the doctrine appears to express intuitively held notions about moral and legal responsibility, it is neither morally necessary nor socially desirable. In the alternative, it will be claimed that if moral intuitions