This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the (...) face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

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.

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains, 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. (shrink)

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: coherence and simplicity; 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 a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability. (shrink)

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. (shrink)

This essay review addresses the central responsibility thesis of David Brink's "Fair. Opportunity and Responsibility" and then considers two applications of the central. Thesis: legal insanity and diminished capacity.

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders and demonstrate that the law (...) leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime. (shrink)

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders and demonstrate that the law (...) leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime. (shrink)

ABSTRACT 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 part of the definition of addiction itself. It suggests that there is good reason to excuse or mitigate addicts for the crimes of purchase and possession for personal use. It concludes by briefly considering what contemporary science can contribute to our understanding of addiction and agency. (shrink)

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. (shrink)

Perhaps more than any other scholar, Michael Moore has argued that there are deep and necessary connections between metaphysics, morality, and law. Moore has developed every contour of a theory of criminal law, from philosophy of action to a theory of causation. Indeed, not only is he the central figure in retributive punishment but his moral realist position places him at the center of many jurisprudential debates. Comprised of essays by leading scholars, this volume discusses and challenges the work of (...) Michael Moore from one or more of the areas where he has made a lasting contribution, namely, law, morality, metaphysics, psychiatry, and neuroscience. The volume begins with a riveting contribution by Heidi Hurd, wherein she takes an unadorned and unabashed look at the man behind this monumental body of work, full of both triumphs and sadness. A number of essays focus on Moore's view of the purpose and justification of the criminal law, specifically his endorsement of retributivism and legal moralism. The book then addresses Moore's work in the various aspects of the general part of the criminal law, including Moore's position on how to understand criminal acts for double jeopardy purposes, Moore's claim that accomplice liability is superfluous, and Moore's views about the culpability of negligence, as well as the relationship between that view and proximate causation. Furthermore, the subject of defenses in criminal law is addressed, including self-defense, and also the intersection of psychiatry, psychology, cognitive neuroscience, and the criminal law. Also discussed are features of morality, and Moore's work in general jurisprudence. Finally, Moore concludes the volume with an essay that defends and delineates the features of his views. (shrink)

This brief festschrift introduction does not attempt to review and characterize Michael Moore’s extraordinary and influential immense body of scholarship at the intersections of law, morality, and metaphysics. This is done most ably by Heidi Hurd in the following chapter. Here we simply describe each of the contributions to this volume as they relate to the body of Moore’s work, virtually every aspect of which is addressed by the various authors. The introduction concludes with personal last words by the editors (...) about their history with Moore and his influence on them and others. Concrete personal examples are given. The introduction concludes with a description of the genesis of the volume. (shrink)

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. (shrink)

This chapter addresses the potential contributions of neuroscience to legal policy in general and criminal justice in particular. The central question is whether neuroscience is relevant to legal policy. The chapter begins with speculation about the source of claims for the positive influence of neuroscience. It then turns to the scientific status of behavioral neuroscience. The next section considers the two radical challenges to current policies that neuroscience allegedly poses: determinism and the death of agency. The penultimate section addresses the (...) question of the specific relevance of neuroscience to legal doctrine, practice, and institutions. The final section points to some areas warranting modest optimism. The general conclusion, however, is that neuroscience is scarcely useful at present but may become more relevant as the science progresses. (shrink)

This chapter addresses the many topics concerning the mind that Michael Moore has written about for many decades, including the metaphysics of mind and action, the act requirement in criminal law, the basis for the excuse of legal insanity, a volitional or control excuse, and the relation of the new neuroscience to law. Rather than primarily responding to Moore’s influential work, the chapter largely considers issues that are complementary to Moore’s work. The chapter does question whether metaphysical issues must be (...) resolved to engage in constructive legal analysis, but concludes generally that Moore is right about most topics he covers. There is room for constructive disagreement, however, and the chapter notes the areas in which this is fruitful. (shrink)