Stephen J. Morse

Failed Explanations and Criminal Responsibility: Experts and the Unconscious

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Voluntary control of behavior and responsibility.

Hymans (2007) sensible, sophisticated, and balanced article makes the following important points about addictions. Whether addiction should be considered a disease, a moral failure, or sometimes b...

Genetics and Criminal Responsibility

Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred. Advocates have tried to use genetic evidence to affect judgments of criminal responsibility. At present, however genetic research can provide little aid to assessments of criminal responsibility and it does not suggest a radical critique of responsibility.

Medicine and Morals, Craving and Compulsion

Thinking about addictions has been dominated by two models: the medical model, which treats addiction as a disease and related behaviors as signs and symptoms, and the moral model, which views addiction and related behaviors as indications of moral failure. This article describes both models and their implications, with special emphasis on the moral model. The meaning of compulsion or coercion caused by internal psychological states, such as craving, is explored to determine if addicts may fairly be held morally and legally responsible for their behavior, such as seeking and using substances. It is argued that diminished rationality better explains than compulsion why addicts might be excused for their behavior, but it is concluded that most addicts can be held responsible for most addiction-related behavior. Nonetheless, both models have desirable characteristics, and sound public policy should not be based solely on either. The implications for criminal justice of employing both models to guide policy are explored.

Diminished capacity: a moral and legal conundrum

The diminished capacity doctrine allows a mentally abnormal but legally sane defendant to have his or her mental abnormality taken into account in assessing criminal liability.’ Depending on the jurisdiction, diminished capacity operates either to negate an element of the crime charged, thereby exonerating the defendant of that charge, or formally to reduce the degree of crime for which the defendant may be convicted and punished even if all the formal elements of the originally charged offense were satisfied. These two variants of diminished capacity will be referred to respectively as the “mens rea” and “partial responsibility” approaches.’ This contribution will analyze the theoretical basis and development of diminished capacity doctrine with special reference to the law in the State of California, where the doctrine is especially fully, if not coherently, developed. I shall contend that although the doctrine appears to express intuitively held notions about moral and legal responsibility, it is neither morally necessary nor socially desirable. In the alternative, it will be claimed that if moral intuitions

Preventive Confinement of Dangerous Offenders

H ow to respond justly to the dangers persistent violent offenders present is a vexing Goral 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 acheve 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 (DO) 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. Nevertheless, I predict that such practice will continue and be considered constitutionally acceptable. I then provide the affirmative case for pure preventive confinement. The last section of the paper briefly addresses practical, criminal justice solutions to the problem of dangerous predation. Before turning to the substance of the paper, however, it is first necessary to expose some assumptions that will inform the analysis. These will simply be asserted rather than defended because they are dominant, although not uncontroversial. First, the question of how to respond to DOs is primarily moral, political, and legal, rather than medical or psychological, but the latter should inform decision mahg . Second, most adults are fully morally and legally responsible agents. Causal accounts of their behavior-from

Brain and Blame

This article addresses the laws concept of the person and its relation to responsibility and the excusing conditions. It demonstrates that causation of behavior in general, even pathological biological causation, is not itself and excuse and suggests that the incapacity for rationality is the genuline basis of moral and legal excuse. The paper concludes by applying its theses to the case of Spyder Cystkopf, a man with a confirmed subarachnoid cyst, who killed his wife during a heated argument with her.

Neither Desert nor Disease

Why do we fear preventive detention and believe that it requires special justification? Citizens in free, democratic societies are accustomed to substantial limitations on liberty that are justified morally and politically by the “common good.” Avoiding serious danger is a greater good than most, but the power of the state to confine dangerous people or to reduce danger by equally oppressive intrusions is considered especially fearsome. The usual, and generally uncontroversial, justifications given for such deprivations of liberty are that the person has culpably committed a criminal offense or that the agent is not responsible for the danger he or she presents. Criminal imprisonment and various forms of civil commitment, for example, which preempt potentially dangerous conduct by incapacitation, are considered reasonable deprivations of liberty in such cases. But in neither case is the state confining on purely preventive grounds a responsible agent who has done no wrong. In contrast, pure preventive detention is an anathema, we believe, because polities devoted to liberty and autonomy have no moral or political warrant to confine or similarly oppress innocent, responsible agents. What could justify such a vast intrusion on the liberty of such agents to pursue their projects? I recognize that the state has an uncontroversial right to quarantine innocent, responsible agents if such agents have communicable diseases and no less intrusive intervention will prevent infection of others. Although many forms of communicable disease can be spread by conduct, the justification of pure quarantine requires no action or potential action. It is a purely public health measure directed toward microorganisms that has the undesirable effect of limiting freedom of action. This article addresses only the preemption of dangerous conduct, which might in some cases include the transmission of disease. See generally Michael Corrado, Punishment, Quarantine, and Preventive Detention, 15 C rim. J ust. E thics 3 (Summer/Fall 1996).

The Status of Neurolaw: A Plea for Current Modesty and Future Cautious Optimism

Legislators, jurists, and advocates often turn to science to solve complicated normative problems addressed by the law. This article addresses what motivates these parties, surveys the psychology of law and its concepts of the person and responsibility, and describes the general relation of neuroscience to law in terms of the issue of “translation.” Numerous distractions have clouded our understanding of the relationship between scientific, causal accounts of behavior and responsibility. The notion of “NeuroLaw” is examined here in detail, with the conclusion that a cautious optimism regarding the contributions of neuroscience to the law is warranted.

Predicting the knowledge–recklessness distinction in the human brain

Significance Because criminal statutes demand it, juries often must assess criminal intent by determining which of two legally defined mental states a defendant was in when committing a crime. For instance, did the defendant know he was carrying drugs, or was he merely aware of a risk that he was? Legal scholars have debated whether that conceptual distinction, drawn by law, mapped meaningfully onto any psychological reality. This study uses neuroimaging and machine-learning techniques to reveal different brain activities correlated with these two mental states. Moreover, the study provides a proof of principle that brain imaging can determine, with high accuracy, on which side of a legally defined boundary a persons mental state lies. Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria. We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those risks possessed by the participants. Our results provide neural evidence of a detectable difference in the mental state of knowledge in contrast to recklessness and suggest, as a proof of principle, the possibility of inferring from brain data in which legally relevant category a person belongs. Some potential legal implications of this result are discussed.