We can enrich the explanation of how we should treat kid wrongdoers by recognizing that it matters who does the blaming and punishing. That we should think about who does the blaming and punishing is perhaps unsurprising, but it is nonetheless often underappreciated. Here, I offer two lessons about blame and punishment by thinking about who judges kids. First, the right account of moral and legal responsibility should allow that kids may rightly blame each other, and I argue that we (...) can best accommodate this by relativizing the threshold of competence needed for responsibility. Second, although each kid is an individual and, as a result, the implications of immaturity vary signifi- cantly from kid to kid, we should give kids a break as kids, that is, based on our categorizing them as kids. That we should and do categorize in that way reflects the nature of the criminal justice system as an institution and the nature of us as social beings. (shrink)

The main message of Neuroethics is that neuroscience forces us to reconceptualize human agency as marvelously diverse and flexible. Free will can arise from unconscious brain processes. Individuals with mental disorders, including addiction and psychopathy, exhibit more agency than is often recognized. Brain interventions should be embraced with cautious optimism. Our moral intuitions, which arise from entangled reason and emotion, can generally be trusted. Nevertheless, we can and should safely enhance our brain chemistry, partly because motivated reasoning crops up in (...) everyday life and in the practice of neuroscience itself. Despite serious limitations, brain science can be useful in the courtroom and marketplace. Recognizing all this nuance leaves little room for anxious alarmism or overhype and urges an emphasis on neurodiversity. The result is a highly opinionated tour of neuroethics as an exciting field full of implications for philosophy, science, medicine, law, and public policy. (shrink)

Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is at (...) the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls mens rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place. (shrink)

In this paper we attempt to reply to the thoughtful comments made on our book, Responsible Brains, by a stellar group of scholars. Our reply focuses on two topics discussed in the commenting papers: first, the issue of responsibility for negligent behavior; and second, the broad claim that facts about brain function are normatively inert. In response to worries that our theory lacks normative implications, we will concentrate on an area where our theory has clear relevance to law and legal (...) policy: juvenile responsibility. (shrink)

Forward-looking aims tend to play a much less significant role than retribution in justifying criminal punishment, especially in common law systems. In this paper I attempt to reinvigorate the idea that there are important forward-looking justifications for criminal law and punishment by looking to social theories of responsibility. I argue that the criminal law may be justified at the institutional level because it is a part of larger responsibility practices that have the effect of bolstering our reasons-responsiveness by making us (...) sensitive to the potential reactive attitudes of a larger societal audience. I further claim that forward-looking effects may justify criminal law institutions even if retribution is the primary aim of assigning punishments to specific offenders. (shrink)

Since our moral and legal judgments are focused on our decisions and actions, one would expect information about the neural underpinnings of human decision-making and action-production to have a significant bearing on those judgments. However, despite the wealth of empirical data, and the public attention it has attracted in the past few decades, the results of neuroscientific research have had relatively little influence on legal practice. It is here argued that this is due, at least partly, to the discussion on (...) the relationship of the neurosciences and law mixing up a number of separate issues that have different relevance on our moral and legal judgments. The approach here is hierarchical; more and less feasible ways in which neuroscientific data could inform such judgments are separated from each other. The neurosciences and other physical views on human behavior and decision-making do have the potential to have an impact on our legal reasoning. However, this happens in various different ways, and too often appeal to any neural data is assumed to be automatically relevant to shaping our moral and legal judgments. Our physicalist intuitions easily favor neural-level explanations to mental-level ones. But even if you were to subscribe to some reductionist variant of physicalism, it would not follow that all neural data should be automatically relevant to our moral and legal reasoning. However, the neurosciences can give us indirect evidence for reductive physicalism, which can then lead us to challenge the very idea of free will. Such a development can, ultimately, also have repercussions on law and legal practice. (shrink)

Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is at (...) the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls men rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place. (shrink)

Psychopathy is typically characterized as a constellation of deviant personality traits and behavioral tendencies. The link between psychopathic personality traits and pervasive antisocial behavior raises a crucial question concerning the legal accountability of offenders with psychopathy. Some argue that the unique clinical profile and neurobiological peculiarities of individuals with psychopathy mitigate their responsibility, while others maintain that current scientific knowledge does not support the use of psychopathy as an exculpatory condition for criminal offending. Our overview mainly centeres on whether offenders (...) with psychopathy can be considered legally insane. In this regard, our overview suggests that there is still an ongoing debate whether psychopathy should be used as a legally relevant construct for determining criminal responsibility. Moreover, our discussion indicates that careful attention should be put on empirical and conceptual issues surrounding the role of (neuro)scientific data for determining whether individuals with psychopathy should be considered criminally blameworthy for their wrongdoings. (shrink)

The harm usually associated with psychopathy requires therapeutically, legally, and ethically satisfactory solutions. Scholars from different fields have, thus, examined whether empirical evidence shows that individuals with psychopathic traits satisfy concepts, such as responsibility, mental disorder, or disability, that have specific legal or ethical implications. The present paper considers the less discussed issue of whether psychopathy is a disability. As it has been shown for the cases of the responsibility and mental disorder status of psychopathic individuals, we argue that it (...) is undecided whether psychopathy is a disability. Nonetheless, based on insights from disability studies and legislations, we propose that interventions to directly modify the propensities of individuals with psychopathic tendencies should be balanced with modifications of the social and physical environments to accommodate their peculiarities. We also suggest how this social approach in some practical contexts that involve non-offender populations might be effective in addressing some of the negative effects of psychopathy. (shrink)