Law Commons^™

Neuroscience And The Criminal Legal System: A Humanitarian Application Framework, Dorothy Hayes

DePaul Journal of Health Care Law

Advancements in neuroscience call our intuitive notion of free will into question—and by implication, invite a reassessment of the United States criminal legal system and its reliance on radical personal agency. In the backdrop of the evolving landscape of neuroscience and neurolaw is an inquiry: how do we appropriately and ethically incorporate advancements of these fields into law and policy? This paper pulls that question to the forefront, advocating for a humanitarian-forward framework to guide the process. The framework emphasizes the Daubert standard, addresses the “G2i” problem, and includes a balancing test to ensure the protection of neurorights. The paper …

Determinism V. Free Will & Genetic Evidence Of Addiction In Plea Bargaining And Sentence Mitigation: Conversion Of Incarceration To Probation And Rehabilitation Based On Genetic Addiction Risk Severity (Gars) Test, Kenneth Blum, Paul Mullen, Richard Green

St. Mary's Law Journal

In this Article, Dr. Kenneth Blum and his team present the case of a presently abstinent, thirty-five year old alcoholic (“AG”) who has several convictions for DWI. AG has undergone and continues to be engaged in out-patient substance abuse treatment. He entered treatment before adjudication and was mandated by the court to continue treatment to assist in maintaining sobriety. Treatment included the administration of the Genetic Addiction Risk Severity (“GARS”) Test.

AG was facing a probable five-year sentence for his fifth DWI conviction in Bexar County, Texas. However, because AG’s genetic risk results indicated a genetically induced dopamine dysfunction, hypodopaminergia, …

Falling Away Into Disease: Disability-Deviance Narratives In American Crime Control, Matt Saleh

St. John's Law Review

(Excerpt)

Who in society is predisposed to crime? Many of us are familiar with cultural narratives that trace criminal behavior to some cognitive defect in the perpetrator. For instance, we might recall the persistent media allusions to Adam Lanza’s Asperger Syndrome after the mass shooting at Sandy Hook Elementary School, despite evidence that individuals on the autism spectrum are, on average, not more likely, and are quite possibly less likely, to commit serious crime in their lifetime. Similarly, popular narratives about the relationship between “mental illness” and violence are pervasive, despite the broad meaning of the terminology and a deeply-misunderstood …

De Libero Conscientia: Martin Luther’S Rediscovery Of Liberty Of Conscience And Its Synthesis Of The Ancients And The Influence Of The Moderns, Bessie S. Blackburn

Liberty University Journal of Statesmanship & Public Policy

One fateful day on March 26, 1521, a lowly Augustinian monk was cited to appear before the Diet of Worms.[1] His habit trailed behind him as he braced for the questioning. He was firm, yet troubled. He boldly proclaimed: “If I am not convinced by proofs from Scripture, or clear theological reasons, I remain convinced by the passages which I have quoted from Scripture, and my conscience is held captive by the Word of God. I cannot and will not retract, for it is neither prudent nor right to go against one’s conscience. So help me God, …

Applying Maimonides’ Hilkhot Teshuvah–Laws Of Repentance – In The Criminal Law System Of The State Of Israel: An Israeli Judge’S Perspectives, Moshe Drori

Touro Law Review

No abstract provided.

Soft-Served Deserts: Soft Retributivism As A Free Will-Independent Alternative For The Criminal Justice System, Theodore Benson Randles

Catholic University Law Review

Human free will is foundational to our criminal justice system, yet contemporary scientific understanding casts doubt on a robust sense of human free will. If a person’s actions are wholly determined by the laws of physics, is that person morally deserving of punishment? This Article argues that our criminal justice system can be put on a footing that is not threatened by physical determinism. It suggests that a coherent system of criminal punishment can be founded on Daniel Farrell’s notion of “weak retributivism.” The Article build on Farrell’s work and develops a system built up from the universal right to …

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Nancy Welsh

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …

Moral Mode Switching: From Punishment To Public Health, Stephen Koppel

Dissertations, Theses, and Capstone Projects

A public health response to drug offenses has potential to improve both public safety and public health. However, the public’s desire for retribution represents a possible hindrance to reform. Relying on dual-process theory of moral decision-making, this dissertation examines agreement among laypeople about the relative blame deserved for various crime types, and probes several possible predictors of support—the need for cognition (“NFC”), intergroup bias, and free-will doubt—for retributive as well as consequentialist responses to crime. Findings from several web-based experiments show: (a) in comparison to core crimes (eg., murder) substantially less agreement about the relative blame deserved for noncore crimes …

Punishing Without Free Will, Luis E. Chiesa

Luis Chiesa

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal …

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

O. Carter Snead

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

Mental Sanity And Confessions: The Supreme Court's New Version Of The Old "Voluntariness" Standard, Alfredo Garcia

Akron Law Review

Although the voluntariness standard has not been entirely superseded by Miranda v. Arizona because it is applicable to confessions obtained through police coercion, in spite of compliance with Miranda's technical requirements, it has receded into relative obscurity in the wake of Miranda. In Colorado v. Connelly, however, the United States Supreme Court confronted a novel case which neatly juxtaposed questions relevant to the voluntariness test with issues arising from Miranda's dictates. This article will examine the issues raised in Connelly, critique the Court's application of both the voluntariness standard and Miranda to the facts of Connelly, …

Free Will Is No Bargain: How Misunderstanding Human Behavior Negatively Influences Our Criminal Justice System, Sean Daly

Nevada Law Journal

No abstract provided.

Newsroom: Horwitz On Mandatory Minimum Sentences, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green

Articles

Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions …

Is Psychological Research On Self-Control Relevant To Criminal Law?, Paul J. Litton

Faculty Publications

In recent years scholars have asked whether scientific discoveries - specifically in neuroscience and genetics - should have normative implications for criminal law doctrine and theory, especially with regard to free will and responsibility. This focus on novel and merely potential scientific findings makes Rebecca Hollander-Blumoff’s arguments all the more fascinating: she argues that criminal law scholars have neglected to mine a rich body of social psychological research on the mechanisms of self-control which has developed over the past two decades. She, herself, finds that the psychological research suggests that current criminal law inaccurately circumscribes the scope of situations in …

How Folk Beliefs About Free Will Influence Sentencing: A New Target For The Neuro-Determinist Critics Of Criminal Law, Emad H. Atiq

Cornell Law Faculty Publications

Do recent results in neuroscience and psychology that portray our choices as predetermined threaten to undermine the assumptions about "free will" that drive criminal law? This article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law's assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. …

Free Will From The Neuroscience Point Of View, Armando F. Rocha, Fábio T. Rocha

Armando F Rocha

There is still a controversy if human volitions and actions are governed by causal laws or obeys free will. Neurosciences start to study the neural correlates of free will by investigating how brains make decisions. Here, some of questions about free will are discussed from the neurosciences point of view taking into consideration a neuroeconomic model of decision making. This model is used here with the purpose of providing very formal definitions of key concepts raised in any free will discussion such as goals, necessity, motivation, etc., and to provide a formal background for discussing decision making. One of the …

A Good Enough Reason: Addiction, Agency And Criminal Responsibility, Stephen J. Morse

All Faculty Scholarship

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 …

Free Will Paradigms, Kent Greenfield

Kent Greenfield

One of the iconic issues in American law and politics is the question of free will—sometimes known as agency, choice, or autonomy, or the absence of duress, coercion, and compulsion. In politics, whether one is liberal or conservative, we balk at government limitations on choice and fight those limitations with legal arguments about rights and political rhetoric about freedom. Liberals demand access to abortions, want the ability to purchase medical marijuana, and bristle at pat-down searches before boarding a plane. Conservatives dislike requirements to buy health insurance or pay taxes, rail against limits on gun ownership and school prayer, and …

Punishing Without Free Will, Luis E. Chiesa

Journal Articles

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal …

Punishing Without Free Will, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

This Article will argue that there are good moral reasons to conclude that the scientific plausibility of determinism ought to lead us to abandon the notion of free will. Contra P. F. Strawson and Moore, this Article suggests that rejecting free will does not undermine the human experience, and doing so is plausible and attractive because it would likely lead to more humane and efficient institutions of blaming and punishing.

Free Will Ideology: Experiments, Evolution And Virtue Ethics, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The concept of free will is a problematic basis for assessing legal accountability.

First of all, free will could never have evolved in a world of ordinary biological pressures. There is, moreover, substantial experimental evidence against it. This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.

The essay proceeds …

Doubting Free Will: Three Experiments, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This paper describes three experiments that cast doubt on the existence free will. All deal with the phenomenon that, for a variety of reasons, people do not consciously experience events (including their own “choices”) at the exact instant they occur. The existence of these delays is sufficient to cast serious doubt on the possibility of conscious free will, i.e., free will as we usually understand it.

While these experiments do not definitely exclude the possibility of free will, they do provide affirmative evidence that our brains do not consciously make decisions in quite the way that introspection tells us. As …

On Communication, John Greenman

Michigan Law Review

Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one-no scholar or judge-has successfully captured it. Few have even tried. This is the first article to define communication under the law. In it, I explain why some activities-music, abstract painting, and parading-are considered communicative under the First Amendment, while others-sex, drugs, and subliminal advertising-are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, …

The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse

All Faculty Scholarship

This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.

Neuroimaging And The "Complexity" Of Capital Punishment, O. Carter Snead

Journal Articles

The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over …

On The Wagon Train To Afghanistan: Limitations On Star Trek's Prime Directive, Richard J. Peltz-Steele

Faculty Publications

Part II of this article acquaints the reader with the Star Trek universe, both as a mirror of Western cultural development for the last three and a half decades, and conversely as a force that has had a remarkable impact on contemporary Western culture. This acquaintance provides a foundation to understand how and to what extent the Prime Directive, a product of science fiction, can be useful in understanding future intercultural contacts right here on Earth. Part III of this article reviews specifically the appearance of the Prime Directive in Star Trek lore, for the most part with reference to …

The Thinning Vision Of Self-Determination In Court-Connected Mediation: The Inevitable Price Of Institutionalization?, Nancy A. Welsh

Faculty Scholarship

Ethical codes for mediators describe party self-determination as “the fundamental principle of mediation,” regardless of the context within which the mediation is occurring. The definition of self-determination, however, is a matter of dispute. Based on a review of the debate surrounding the promulgation and revision of ethical codes for court-connected mediators in Florida and Minnesota, this Article demonstrates that a vision of self-determination anchored in party-centered empowerment is yielding to a vision that is more reflective of the norms and traditional practices of lawyers and judges, as well as the courts’ strong orientation to efficiency and closure of cases through …

Nihilism Need Not Apply: Law And Literature In Barth's The Floating Opera, Rob Atkinson

Scholarly Publications

No abstract provided.

Rationalizing Juvenile Justice, Carolyn J. Frantz

Michigan Law Review

Few issues have occupied the public mind so much in recent years as the problem of youth violence. Due to sensational school shootings and public paranoia about the violence of youth gangs, America is concerned - very concerned - about the growing criminality of its children. In our concern, we find ourselves caught in the classic conundrum of criminal responsibility: reconciling the unavoidable knowledge that much of human behavior is determined with our strong instincts about free will. We blame violent television and video games, we blame single mothers, we blame low church attendance, but when all is said and …