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This essay considers the foundational rationale for why the law treats at least some mentally disordered people specially in a wide array of civil and criminal contexts. It suggests that non-responsible incapacity for rational behavior in specific contexts is the primary principle that warrants special legal treatment. It also considers the major distractions and confusions about why such special treatment is sometimes justifiable. It concludes with the reductionist challenge to conceptions of mental disorder and more broadly to the law that some advocate, usually based on the new neuroscience of brain imaging.

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.

This chapter will address the potential contributions of neuroscience to law, with special emphasis on criminal justice and criminal responsibility because these are the areas that have received the lion’s share of neurolaw attention. The discussion will clearly generalize to other applications, however.

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 suggests that for conceptual, empirical, and practical reasons, neuroscience in general and non-invasive brain imaging in particular are not likely to revolutionize the law and our conception of ourselves, but may make modest contributions to legal policy and case adjudication if the legal relevance of the science is properly understood.

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 is a draft of a chapter that has been accepted for publication by Oxford University Press in the forthcoming book Fitness to Plead: International and Comparative Perspectives edited by Ronnie Mackay and Warren Brookbanks due for publication in May 2018. It addresses whether the state may forcibly medicate an unwilling defendant or prisoner to restore competence in the criminal process, including competence to stand trial, competence to plead guilty and to waive trial rights, competence to represent oneself, and competence to be sentenced. It begins with a description of the doctrinal and mental health background information and the right of prisoners generally to refuse psychotropic medication. The succeeding section discusses the general balance of interests that obtains in deciding this issue and then canvases the particular competencies in question with analysis and recommendations for future directions. The general thesis is that the interest of both the state and the individual in finality is so weighty that forcible medication is justified in most cases if it is necessary to permit the criminal process to proceed. A brief conclusion follows.

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.

This chapter interweaves a history and analysis of these issues in the formative years of the American Psychology–Law Society with the author’s involvement in writing about it and in taking part in public debates and the creation of legislation. The author opens with autobiographical sketch that explains the development of his interest in law and psychology, criminal responsibility, and civil commitment. Later, he shares his perspective after years of involvement in these areas of study. The theoretical and practical problems and the author’s attempts to remedy them are then canvassed. The chapter concludes with an assessment of the present state of these issues.

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.

Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria. We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those risks possessed by the participants. Our results provide neural evidence of a detectable difference in the mental state of knowledge in contrast to recklessness and suggest, as a proof of principle, the possibility of inferring from brain data in which legally relevant category a person belongs. Some potential legal implications of this result are discussed.

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 chapter discusses whether the findings of the new neuroscience based largely on functional brain imaging raise new normative questions and entail normative conclusions for ethical and legal theory and practice. After reviewing the source of optimism about neuroscientific contributions and the current scientific status of neuroscience, it addresses a radical challenge neuroscience allegedly presents: whether neuroscience proves persons do not have agency. It then considers a series of discrete topics in neuroethics and neurolaw, including the “problem” of responsibility, enhancement of normal functioning, threats to civil liberty, competence, informed consent, end-of-life issues, neuroevidence in criminal cases, and the ethics of caution. It suggests that the ethical and legal resources to respond to the findings of neuroscience already exist and will do so for the foreseeable future.

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.

This article addresses the question of the relevance of brain imaging to legal criteria that are behavioral, that is, that require evaluation of a defendant's actions or mental states. It begins with the legal standard for the admissibility of scientific and technical evidence. Then it considers the relevance of imaging to behavioral legal criteria. The problem is translating mechanistic neuroscience data into the law's folk psychological standards. It uses examples from the criminal law, but the analysis generalizes to behavioral criteria in the civil law. The central question is, “How, precisely, does the proffered scan or data based on scanning answer the specific legal question it supposedly helps answer?” I conclude that, at present, brain imaging has little relevance to behavioral legal criteria. The final section takes note of a rampant disorder, brain overclaim syndrome, and offers a remedy, cognitive jurotherapy.

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 ...

This article suggests that investigational deep brain stimulation (DBS) for mental disorders raises few new bioethical issues. Although the scientific basis of the procedure may be both complex and largely unknown, addressing informed consent in such situations is a familiar problem. After reviewing the legal and moral background for investigating DBS and the scientific difficulties DBS faces as a potential treatment for mental disorders, the article focuses on informed consent and makes two primary suggestions. The study of DBS may proceed, but “hyper-disclosure” of the complexities should be required for competent subjects or proper surrogates if the candidate is not competent, and the most rigorous standard for competence should be employed. Throughout, neuromodesty and caution are urged.

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.

(2011). Avoiding Irrational NeuroLaw Exuberance: A Plea for Neuromodesty. Law, Innovation and Technology: Vol. 3, No. 2, pp. 209-228.

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.

Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.

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 commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

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 article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section considers and rejects standard practical arguments in favor of abolishing the insanity defense.

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

The thesis of this chapter is that criminal law is a thoroughly folk-psychological enterprise that is completely consistent with the truth of determinism or universal causation. It argues that if determinism or something quite like it is true, as I assume it is, then compatibilism, which is a defensible, plausible view in the metaphysical debate about determinism, free will and responsibility, provides the only secure basis for criminal responsibility. The chapter demonstrates that free will is neither a criminal law criterion nor foundational for responsibility because the distinctions the law draws are consistent with the truth of determinism and moral and political positions we have good reason to endorse. The chapter also addresses external challenges to responsibility and finds them wanting. It concludes that common law compatibilism is normatively desirable because it takes people seriously as moral agents worthy of respect.