One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical (...) view per se face significant independent moral objections. Yet despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular preventive detention, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s, taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health -quarantine model—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own. (shrink)

The present study investigates the association between mental health problems and criminal behavior among adolescents in Sweden. Community crime prevention in a Swedish context is also discussed. Every two years, pupils from schools in Stockholm answer the Stockholm School Survey with questions and statements about their social situation, alcohol and drug use, attitudes, school climate, school grades and criminal behavior. Data collected from pupils who answered the survey in 2014, 2018 and 2020 form the basis of (...) this study. A significant association between mental health problems and criminal behavior was shown, even after controlling for factors suggested in international literature. Mental health problems were shown to be a strong explanation for criminal behavior among adolescents. (shrink)

SummaryA sample of 104 British parents with criminal convictions had an average fertility of 3·91 children as compared with 2·21 for the general population. The result suggests that fertility for criminal behaviour is dysgenic involving an increase in the genes underlying criminal behaviour in the population.

The purpose of this article is to discuss the criminalization of conduct based on human dignity arguments. It proposes a modest version of integrating human dignity into discussions about criminalization. After a critical examination of both the notion of “human dignity as an objective value” and the assumption that the meaning of human dignity can be explained by referring to Kant’s moral philosophy, human dignity violations are characterized as severe humiliations.

There are a number of important links and similarities between public health and safety. In this extended essay, Gregg D. Caruso defends and expands his public health-quarantine model, which is a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. In developing his account, he explores the relationship between public health and safety, focusing on how social inequalities and systemic injustices affect health outcomes and crime rates, how poverty (...) affects brain development, how offenders often have pre-existing medical conditions (especially mental health issues), how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, how treatment and rehabilitation methods can best be employed to reduce recidivism and reintegrate offenders back into society, and how a public health approach could be successfully applied within the criminal justice system. Caruso's approach draws on research from the health sciences, social sciences, public policy, law, psychiatry, medical ethics, neuroscience, and philosophy, and he delivers a set of ethically defensible and practically workable proposals for implementing the public health-quarantine model. The essay begins by discussing recent empirical findings in psychology, neuroscience, and the social sciences that provide us with an increased understanding of the social and neurological determinants of health and criminal behavior. It then turns to Caruso's public health-quarantine model and argues that the model provides the most justified, humane, and effective approach for addressing criminal behavior. Caruso concludes by proposing a capability approach to social justice grounded in six key features of human well-being. He argues that we cannot successfully address concerns over public health and safety without simultaneously addressing issues of social justice—including the social determinants of health (SDH) and the social determinants of criminal behavior (SDCB)—and he recommends eight general policy proposals consistent with his model. (shrink)

In this 2001 volume a group of leading philosophers address some of the basic conceptual, methodological and ethical issues raised by genetic research into criminal behavior. The essays explore the complexities of tracing any genetic influence on criminal, violent or antisocial behavior; the varieties of interpretations to which evidence of such influences is subject; and the relevance of such influences to the moral and legal appraisal of criminal conduct. The distinctive features of this collection are: (...) first, that it advances public discussion while clarifying the debate about genetic research and criminal behavior; second, that it explains scientific controversies about behavioral genetics in lucid, non-technical terms; third, that it demonstrates how the possible findings on genetics and crime bear on fundamental issues of moral and criminal responsibility. The volume will be of particular value to philosophers concerned with applied ethics, behavioral geneticists, psychologists, legal theorists, and criminologists. (shrink)

In this 2001 volume a group of leading philosophers address some of the basic conceptual, methodological and ethical issues raised by genetic research into criminal behavior. The essays explore the complexities of tracing any genetic influence on criminal, violent or antisocial behavior; the varieties of interpretations to which evidence of such influences is subject; and the relevance of such influences to the moral and legal appraisal of criminal conduct. The distinctive features of this collection are: (...) first, that it advances public discussion while clarifying the debate about genetic research and criminal behavior; second, that it explains scientific controversies about behavioral genetics in lucid, non-technical terms; third, that it demonstrates how the possible findings on genetics and crime bear on fundamental issues of moral and criminal responsibility. The volume will be of particular value to philosophers concerned with applied ethics , behavioral geneticists, psychologists, legal theorists, and criminologists. (shrink)

As functional magnetic resonance imaging becomes more precise and the data more extensive, neuroscientists like Kent Kiehl are raising the possibility that such research might someday, together with existing clinical assessment tools, increase our ability to predict the likelihood that a given convict will commit another crime after getting out of prison. Such an advance would provoke challenging questions about our notions of liberty and personal autonomy, with potentially chilling ramifications.

Pereboom and Caruso propose the quarantine model as an alternative to existing models of criminal justice. They appeal to the established public health practice of quarantining people, which is believed to be effective and morally justified, to explain why -in criminal justice- it is also morally acceptable to detain wrongdoers, without assuming the existence of a retrospective moral responsibility. Wrongdoers in their model are treated as carriers of dangerous diseases and as such should be preventively detained (or rehabilitated) (...) until they no longer pose a threat to society. Our main concern in this paper is that Pereboom and Caruso adopt an idiosyncratic meaning of quarantine regulations. We highlight a set of important disanalogies between their quarantine model and the quarantine regulations currently adopted in public health policies. More specifically, we argue that the similarities that Pereboom and Caruso propose to substantiate their analogy are not consistent—despite what they claim—with the regulations underlying quarantine as an epidemiological process. We also notice that certain quarantine procedures adopted in public health systems are inadequate to deal with criminal behaviors. On these grounds, we conclude that Pereboom and Caruso should not appeal to the quarantine analogy to substantiate their view, unless they address the issues and criticism we raise in this paper. (shrink)

Mental health courts, premised on the notion of therapeutic justice, have become an increasingly appealing way of dealing with what is widely, although not uniformly, seen as the inappropriate incarceration of people who engage in criminal behavior caused by mental illness. Nevertheless, mental health courts are not without their critics and a number of objections have been raised against the implementation of these courts. Among these criticisms is that mental health courts may inappropriately privilege criminal behavior (...) by the provision of expedited comprehensive services to persons with mental illness who commit criminal of enses and, in doing so, reduce or delay the provision of services to persons with mental illness who do not engage in criminal behavior. This article explores the mechanisms that may result in “queue-jumping” and analyzes whether a priority to of enders, when it does occur, is justii able. (shrink)

The Case of Jim: Jim was arrested arriving at the house of an unattended minor, having brought with him some alcoholic drinks, condoms, and an overnight bag. Records of online conversations Jim was having with the minor give the court strong evidence that the purpose of this meet-up was to engage in sexual relations with the minor. In the course of searching his home computer, investigators also found child pornography. Jim was charged with intent to sexually abuse a child and (...) possession of child pornography. He was given due process, and convicted, by a jury of his peers, on both counts. This is not the first time that Jim has been convicted of a sexual offence. He had been found guilty of possession of child pornography in the past, and served time for it. What should we do with Jim? (shrink)

In this paper I argue that, despite what many commentators have concluded, Plato’s division of three psychological “causes” of criminal behavior at Laws 863b1-e3 (anger, pleasure, and ignorance) is not intended to invoke the tripartite theory of the soul. I suggest that the focus of the division is on an alternative moral psychological picture, one which is better suited to the criminal penology of Book 9. However, I argue, this alternative picture is nonetheless consistent with tripartite theory.

Both the genetic endowment we have been equipped with, and the environment we had to be born and raised in, were not – and never are – for us to choose; both are pure luck, a random ticket in this enormously inventive cosmic lottery of existence. If it is luck that has makes us the persons we are, and since our decisions and choices depend largely on the kind of persons we are, it seems that everything we do or fail (...) to do may only be attributed to luck. This paper focuses on criminal behavior, with special emphasis on Tarde’s and Lombroso’s views, to discuss free will and agency, and their interplay with moral luck, that is, the fixed boundaries set by our nature and the circumstances that surround us. (shrink)

Algorithmic risk assessment tools, such as COMPAS, are increasingly used in criminal justice systems to predict the risk of defendants to reoffend in the future. This paper argues that these tools may not only predict recidivism, but may themselves causally induce recidivism through self-fulfilling predictions. We argue that such “performative” effects can yield severe harms both to individuals and to society at large, which raise epistemic-ethical responsibilities on the part of developers and users of risk assessment tools. To meet (...) these responsibilities, we present a novel desideratum on algorithmic tools, called explainability-in-context, which requires clarifying how these tools causally interact with the social, technological, and institutional environments they are embedded in. Risk assessment practices are thus subject to high epistemic standards, which haven't been sufficiently appreciated to date. Explainability-in-context, we contend, is a crucial goal to pursue in addressing the ethical challenges surrounding risk assessment tools. (shrink)

Developments in the last several years have sparked renewed interest in the ethics of research involving humans. Issues relating to the global extent of research and its guiding principles are of particular importance to researchers, health officials, and individual ethics committees who want a deeper and more encompassing inquiry regarding the foundation and evolution of human research. This department of CQ launches a long overdue effort to explore these wider issues. Readers are invited to submit papers to Charles MacKay, 5011 (...) Worthington Drive, Bethesda, MD, 20816, USA. E-mail: [email protected]. a. (shrink)

Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in (...) class='Hi'>criminal cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on behalf of criminal defendants with respect to these two gene variants, and the future direction of behavioral genetics evidence in criminal cases. (shrink)

Whether it is morally acceptable to offer rehabilitation by CNS-intervention to criminals as a condition for early release constitutes an important neuroethical question. Bomann-Larsen has recently suggested that such interventions are unacceptable if the offered treatment is not narrowly targeted at the behaviour for which the criminal is convicted. In this article it is argued that Bomann-Larsen’s analysis of the morality of offers does not provide a solid base for this conclusion and that, even if the analysis is assumed (...) to be correct, it still does not follow that voluntary rehabilitation schemes targeting behaviour beyond the act for which a criminal is convicted are inappropriate. (shrink)

Having a criminal justice system that imposes sanctions no doubt does deter criminal conduct. But available social science research suggests that manipulating criminal law rules within that system to achieve heightened deterrence effects generally will be ineffective. Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if they (...) can, a rational analysis commonly puts the perceived benefits of crime greater than its perceived costs, due to a variety of criminal justice realities such as low punishment rates. These conclusions are reinforced by studies of crime rates following rule changes. Many show no change in deterrent effect. Those that purport to show a deterrent effect commonly have persuasive non-deterrence explanations, such as a change in incapacitative effect. The few studies that segregate deterrent and incapacitative effects tend to reinforce the conclusion that rule formulation has a deterrent effect only in those unusual situations in which the preconditions to deterrence exist. Even there, the deterrent effects are quite minor and unpredictable, hence inadequate grounds to influence criminal law rule making. (shrink)

Criminal law is one of the regulatory tools being used in the United States to influence risk behavior by people who have HIV/AIDS. Several different types of laws have been or could be used in this way These include:HIV-specific exposure and transmission laws — i.e., laws that explicitly mention and exclusively apply to conduct by people with HIV;public health statutes prohibiting conduct that would expose others to communicable diseases and/or sexually transmitted diseases ; andgeneral criminal laws governing (...) attempted murder and assault. (shrink)

Statutes criminalizing behavior that risks transmission of HIV/AIDS exemplify use of the criminal law against individuals who are victims of infectious disease. These statutes, despite their frequency, are misguided in terms of the goals of the criminal law and the public health aim of reducing overall burdens of disease, for at least three important reasons. First, they identify individual offenders for punishment, a paradigm that is misplaced in the most typical contexts of transmission of infectious disease and (...) even for HIV/AIDS, despite claims of AIDS exceptionalism. Second, although there are examples of individuals who transmit infectious disease in a manner that fits the criminal law paradigm of identification of individual offenders for deterrence or retribution, these examples are limited and can be accommodated by existing criminal laws not devoted specifically to infectious disease. Third, and most importantly, the current criminal laws regarding HIV/AIDS, like many other criminal laws applied to infectious disease transmission, have been misguided in focusing on punishment of the diseased individual as a wrongful transmitter. Instead of individual offenders, activities that enhance the scale of disease transmission—behaviors that might be characterized as ‘transmission facilitation’—are a more appropriate target for the criminal law. Examples are trafficking in human beings (including sex trafficking, organ trafficking, and labor trafficking), suppression of information about the emergence of infection in circumstances in which there is a legally established obligation to disclose, and intentional or reckless activities to discourage disease treatment or prevention. Difficulties remain with justifications for criminalizing even these behaviors, however, most importantly the need for trust in reducing overall burdens of disease, problems in identifying individual responsible offenders, and potential misalignment between static criminal law and the changing nature of infectious disease. (shrink)

Do free will beliefs influence moral judgments? Answers to this question from theoretical and empirical perspectives are controversial. This study attempted to replicate past research and offer theoretical insights by analyzing World Values Survey data from residents of 46 countries (n = 65,111 persons). Corroborating experimental findings, free will beliefs predicted intolerance of unethical behaviors and support for severe criminal punishment. Further, the link between free will beliefs and intolerance of unethical behavior was moderated by variations in countries’ (...) institutional integrity, defined as the degree to which countries had accountable, corruption-free public sectors. Free will beliefs predicted intolerance of unethical behaviors for residents of countries with high and moderate institutional integrity, but this correlation was not seen for countries with low institutional integrity. Free will beliefs predicted support for criminal punishment regardless of countries’ institutional integrity. Results were robust across different operationalizations of institutional integrity and with or without statistical control variables. (shrink)

Criminal behaviour is but one behavioural tendency for which a genetic influence has been suggested. Whilst this research certainly raises difficult ethical questions and is subject to scientific criticism, one recent research project suggests that for some families, criminal tendency might be predicted by genetics. In this paper, supposing this research is valid, we consider whether intervening in the criminal tendency of future children is ethically justifiable. We argue that, if avoidance of harm is a paramount consideration, (...) such an intervention is acceptable when genetic selection is employed instead of genetic enhancement. Moreover, other moral problems in avoiding having children with a tendency to criminal behaviour, such as the prospect of social discrimination, can also be overcome. (shrink)

Behaviour, including criminal behaviour, takes place in lived contexts of embodied action and experience. The way in which abstract models of selfhood efface the individual as a unique, living being is a central aspect of the ‘ethical-other’ debate; if an individual is modelled as abstracted from this ‘living’ context, that individual cannot be properly or meaningfully linked with his or her behaviour, and thus cannot justly be understood as responsible. The dominant rational choice models of criminal identity in (...) legal theory involve at least a partial abstraction of this ‘unethical’ type by prioritising the rational will over the more fluid dimensions of lived reality. From a phenomenological perspective, an approach of ‘restlessness’ is proposed which precludes the development of settled or general abstract categories, and can thus move us closer to an ethical understanding of living individuals on a theoretical level. Although such a move may initially seem to threaten criminal justice with an irrational nihilism, by maintaining awareness of the irreducibility of ‘living’ reality a restless theoretical understanding of moral selfhood may be able to shape or underpin the attribution of responsibility in more practical or substantive contexts without succumbing to meaninglessness. (shrink)

A high risk of morbidity-mortality caused by a harsh and unpredictable environment is considered to be associated with a fast life history strategy, commonly linked with criminal behavior. However, offenders are not the only group with a high exposure to extrinsic morbidity-mortality. In the present study, we investigated the LH strategies employed by two groups of Polish men: incarcerated offenders as well as soldiers and firefighters, whose professions involve an elevated risk of injury and premature death. The subjects (...) were asked to complete the Mini-K and a questionnaire which included a number of biodemographic LH variables. Although biodemographic and psychosocial LH indicators should be closely linked with each other, the actual connection between them is unclear. Thus, this study was driven by two aims: comparing LH strategies in two groups of men with a high risk of premature morbidity-mortality and investigating the relationship between the biodemographic and psychosocial LH dimensions. The study showed that incarcerated men employed faster LH strategies than soldiers and firefighters, but only in relation to biodemographic variables. No intergroup differences emerged regarding psychosocial LH indicators. Moreover, the correlation analysis showed a weak association between biodemographic and psychosocial LH indicators. The results strengthen the legitimacy of incorporating biodemographic LH traits into research models and indicate the need for further research on the accuracy of the Mini-K. The possible explanations for the intergroup differences in LH strategies are discussed. (shrink)

Criminal responsibility refers to a person’s ability to understand his action, behavior at the time a crime is committed, what a person is thinking when he commits a crime or the expected result when a crime is committed. Crime is defined in terms of an act or omission (actus reus) and a mental state (mens rea). In this paper, is presented the general concept of irresponsibility and essentially reduced responsibility as a reason to be exempted from the punishment (...) provided by the Criminal Code. Any perpetrator of a criminal offense who is capable of undertaking any action can be an active subject of a criminal offense, with the fact that regarding their sanctioning by the criminal system is concerned there are some restrictions related to age as well as dividing the perpetrators into responsible and non-responsible ones. For a person to be convicted of a crime, there must be evidence that proves his guilt, and that proves whether the perpetrator was in a regular state of mind or committed the criminal offense due to his irresponsibility. Another important element of this scientific paper is the historical aspects of how irresponsibility has been treated from the customary law to the present day, a huge focus gets also the treatment of the biological-psychological concept on one hand and the treatment of the legal concept on the other hand for this category of people. A criminal defendant who turns out to have been incapacitated at the time he committed a crime may be acquitted because of his incapacity, or he may be sentenced leniently because he was unable to understand the importance of his actions. Legally, the defendant must prove and convince the court that he was not able to understand his actions, or he is not able to distinguish right from wrong, or he must prove that he committed the act in uncontrolled impulses. (shrink)

In the digital age, the use of advanced technology is becoming a new paradigm in police work, criminal justice, and the penal system. Algorithms promise to predict delinquent behaviour, identify potentially dangerous persons, and support crime investigation. Algorithm-based applications are often deployed in this context, laying the groundwork for a ‘smart criminal justice’. In this qualitative study based on 32 interviews with criminal justice and police officials, we explore the reasons why and extent to which such a (...) smart criminal justice system has already been established in Switzerland, and the benefits perceived by users. Drawing upon this research, we address the spread, application, technical background, institutional implementation, and psychological aspects of the use of algorithms in the criminal justice system. We find that the Swiss criminal justice system is already significantly shaped by algorithms, a change motivated by political expectations and demands for efficiency. Until now, algorithms have only been used at a low level of automation and technical complexity and the levels of benefit perceived vary. This study also identifies the need for critical evaluation and research-based optimization of the implementation of advanced technology. Societal implications, as well as the legal foundations of the use of algorithms, are often insufficiently taken into account. By discussing the main challenges to and issues with algorithm use in this field, this work lays the foundation for further research and debate regarding how to guarantee that ‘smart’ criminal justice is actually carried out smartly. (shrink)

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer (...) from this conclusion that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. -/- Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral responsibility, does not require an agent be able to grasp and follow moral reasons; it requires only that the individual be able to grasp and follow criminal laws. Once this point is recognized, it becomes much easier to accept my thesis: while the subset of psychopaths who commit crimes are not morally responsible for their criminal behavior because they cannot understand moral reasons, they are still criminally responsible because they can understand what the consequences will be if they get caught. For this reason, even though I concede that psychopaths are not morally responsible for the crimes that they commit, our practice of punishing them for these crimes is still just. -/- Second, I argue that psychopathy is a mental illness and should be recognized as such. One reason that it should be recognized as a mental illness is simply because it is; it satisfies the main criteria for inclusion in the DSM-IV, the “bible” of mental disorders. The other reason is more practical than conceptual. It starts with two facts: the U.S. Supreme Court has decided that the preventive detention of any individual who is not a criminal suspect is not constitutional unless the individual is not only dangerous but also mentally ill; and psychopathy is not currently considered to be a mental illness. So, as things now stand, we cannot preventively commit dangerous psychopaths – that is, psychopaths who have clearly indicated that they will be committing serious crimes. Instead, we must wait for them to commit the crimes before we can lock them up. Unfortunately, this incarceration always comes too late for the victims. It would therefore be better if we could lock them up before they actually inflict any harm. Once again, then, I propose that the legal and psychological communities classify psychopathy as a mental illness. (shrink)

The SAGE Encyclopedia of Criminal Psychology will be a modern, interdisciplinary resource aimed at students and professionals interested in the intersection of psychology (e.g., social, forensic, clinical), criminal justice, sociology, and criminology. The interdisciplinary study of human behavior in legal contexts includes numerous topics on criminal behavior, criminal justice policies and legal process, crime detection and prevention, eyewitness identification, prison life, offender assessment and rehabilitation, risk assessment and management, offender mental health, community reintegration, and (...) juvenile offending. The study of these topics has been increasing continually since the late 1800s, with people trained in many legal professions such as policing, social work, law, academia, mental health, and corrections. This will be a comprehensive work that will provide the most current empirical information on those topics of greatest concern to students who desire to work in these fields. This encyclopedia is a unique reference work that looks at criminal behavior primarily through a scientific lens. With over 500 entries the book brings together top empirically driven researchers and clinicians across multiple fields—psychology, criminology, social work, and sociology—to explore the field. (shrink)

Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free (...) will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)

This paper performs a critical review of twin and adoption studies looking at possible genetic factors in criminal and antisocial behavior. While most modern researchers acknowledge that family studies are unable to separate possible genetic and environmental influences, it is argued here that twin studies are similarly unable to disentangle these influences. The twin method of monozygotic–dizygotic comparison is predicated on the assumption that both types of twins share equal environments, and it is argued here that this assumption (...) is false. Adoption studies have been promoted as a better way of separating genetic and environmental influences. However, there is good reason to believe that adoption studies of criminal and antisocial behavior were confounded by selective placement factors. In addition, these studies suffered from bias and serious methodological errors. In spite of these problems, no adoption researcher claimed to have found evidence of a genetic predisposition for violent crime. It is concluded that the weight of the evidence from family, twin, and adoption studies does not support a genetic basis for any type of criminal or antisocial behavior. The historical background of genetic theories of criminality is also discussed. (shrink)

: The paper discusses the contribution that the neuroscience of action can offer to the legal understanding of action control and responsibility in the case of adult individuals. In particular, we address the issues that follow. What are the cognitive capacities that agents must display in order to be held liable to punishment in criminal law? Is the legal model of liability to punishment compatible with a scientifically informed understanding of voluntary behaviour? To what extent should the law take (...) into account people’s subjective feelings about their own actions? As a result of our analyses, we indicate some areas where the contribution of the neuroscience of action to the law is potentially relevant. We focus on the subjectivity mechanisms of action control, specifically the requirement that the agent must violate the law voluntarily in order to be held responsible, and on the factors that modulate the wrongdoer’s experience of agency. Overall, we advocate more cross-disciplinary work, aimed to bridge the gap between conceptual boundaries, on the theme of responsibility for actions. Keywords : Responsibility; Neurolaw; Sense of Agency; Criminal Law; Criminal Liability La responsabilità tra neuroscienza e diritto penale. La componente di controllo dell’imputabilità penale Riassunto : L’articolo discute il contributo che la neuroscienza dell’azione può offrire ai temi del controllo dell’azione e della responsabilità in ambito legale, nel caso degli individui adulti. In particolare, ci occuperemo delle questioni che seguono. Quali sono le abilità cognitive che un agente deve possedere per esser considerato penalmente responsabile e quindi punibile? Il modello legalistico della responsabilità è compatibile con il modello scientifico-naturalistico del comportamento umano? Fino a che punto variazioni nel senso di controllo soggettivo sulle azioni dovrebbero essere considerate un parametro rilevante in sede penale? Sulla scorta della nostra analisi, indicheremo alcune aree nelle quali il contributo della neuroscienza dell’azione a questioni legate al tema della responsabilità legale potrebbe rivelarsi rilevante. L’articolo si concentra sui meccanismi che regolano il senso soggettivo di controllo dell’azione – in particolare il requisito secondo il quale l’agente deve violare la legge volontariamente per essere ritenuto responsabile –, e sui fattori che modulano il senso di agentività del colpevole. In conclusione, difenderemo l’appropriatezza di una più ampia riflessione multi-disciplinare volta a ridurre le incompatibilità fra differenti approcci al tema della responsabilità per le nostre azioni. Parole chiave : Responsabilità; Neurodiritto; Senso di agentività; Diritto penale; Imputabilità penale. (shrink)

The use of character in the criminal trial raises a number of controversial issues such as the nature of criminal responsibility, the link between past and future behaviour, and the way juries and judges reason about evidence of prior wrongdoing. This book reassesses and reflects on the significance of the law's increasing emphasis on character.

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is (...) not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

There is an explicit belief – evident in jurisprudential literature – that developments in behavioural genetics in the very near future will necessitate a dramatic revolution in common law criminal justice systems. This paper considers what is truly shown by behavioural genetics in relation to free will, and the effect of such conclusions on criminal justice systems which rely upon the concept of free will as a foundation element. This paper ultimately concludes that it is unlikely that (...) class='Hi'>criminal justice systems will be shaken – or indeed substantially influenced – by past or future discoveries in genetics. Three major arguments are employed: that theses connecting genetic traits with criminal free will exhibit a naïve conception of partial genetic determinism; that theses connecting genetic traits with criminal free will have been unduly motivated by discoveries in behavioural genetics which are disreputable or misleading; and that even should an unexpected discovery be made exhibiting a strong causal connection between genetics and criminal behaviour, this will not prove to be an intolerable novelty for any criminal justice system which otherwise assumes free will to exist. (shrink)

Objectives To review the extant literature on HIV criminal laws, and to determine the impact of these laws on public health practice.Methods The available research on this topic was obtained and reviewed.Results The extant literature addressed three main topics: people's awareness of HIV criminal laws; people's perceptions of HIV criminal laws; and the potential effects of HIV criminal laws on people's sexual, HIV-status disclosure and healthcare-seeking practices. Within these categories, the literature demonstrated a high level of (...) awareness of HIV criminal laws, but a poor comprehension of these laws. For perceptions, on the whole, the quantitative research identified support for, while the qualitative literature indicated opposition to, these laws. Lastly, the behavioural effects of HIV criminal laws appear to be complex and non-linear.Conclusions A review of the extant literature from a public health perspective leads to the conclusion that HIV criminal laws undermine public health. (shrink)

This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, (...) this paper offers a critique to which little attention has yet been paid. It argues that the existence of these phenomena has been concealed from public view: that the organs of state have encouraged the belief that they are no part of English law. The paper then argues that it is high time the state came clean. The state owes its people answers for the imposition of the criminal law: it must account for the creation and enforcement of any given criminal offence. When the state misleads its people about the criminal law’s scope, goals and enforcement, it refuses to provide those people with the answers they are owed. (shrink)

This chapter will focus on the biomedical moral enhancement of offenders – the idea that we could modify offenders’ brains in order to reduce the likelihood that they would engage in immoral, criminal behaviour. Discussions of the permissibility of using biomedical means to address criminal behaviour typically analyse the issues from the perspective of medical ethics, rather than penal theory. However, recently certain theorists have discussed whether brain interventions could be legitimately used for punitive (as opposed to purely (...) therapeutic) purposes. For instance, Jesper Ryberg argues (although he himself is not a retributivist) that there is nothing to prevent retributivists from endorsing brain interventions as a legitimate form of retributive punishment. Legal academics have not yet paid sufficient attention to whether this proposal would be compatible with international human rights law, nor have retributivist philosophers discussed whether their favoured penal theories have the conceptual resources to explain why brain interventions would not be an appropriate method of punishment. This chapter considers whether there is any indication that these interventions are being used at present for punitive purposes and whether this would violate the European Convention on Human Rights. It examines different versions of retributivism and considers which theory is in the best position to challenge the use of brain interventions as a form of punishment. Finally, it considers whether offering these interventions as an alternative to punishment would violate principles of proportionality. (shrink)

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 for further study regarding the historical behavior of the jury, the jury’s role in reinforcing notions of political liberty and free will, and, primarily, how scholarly conceptions of the jury’s role and behavior have informed elite theory regarding the justifications for imposing criminal responsibility. (shrink)

According to a number of influential views in penal theory, 1 one of the primary goals of the criminal justice system is to rehabilitate offenders. Rehabilitativemeasures are commonly included as a part of a criminal sentence. For example, in some jurisdictions judges may order violent offenders to attend anger management classes or to undergo cognitive behavioural therapy as a part of their sentences. In a limited number of cases, neurointerventions — interventions that exert a direct biological effect on (...) the brain — have been used as aids to rehabilitation, typically being imposed as part of criminal sentences, separate treatment orders, or conditions of parole. Examples of such interventions include medications intended to attenuate addictive desires in substance-abusing offenders and agents intended to suppress libido in sex offenders.This chapter reviews some of the ethical issues raised by the use of neurointerventions as aids to rehabilitation. (shrink)