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June 8, 2016

"My brain made me do it: will neuroscience change the way we punish criminals?"

The title of this post comes from the headline of this recent interesting press piece from Australia that a helful reader sent my way. The piece does a nice job talking through in simple term the possible relationship between theories of punishment and modern neuroscience.  Here are excerpts:

Australian law may be on the cusp of a brain-based revolution that will reshape the way we deal with criminals.  Some researchers, such as neuroscientist David Eagleman, have argued that neuroscience should radically change our practices of punishment.  According to Eagleman, the courts should give up on the notion of punishment altogether and instead focus on managing criminals and containing their behaviour in order to keep the rest of us safe.

Is this a good idea? And is this how Australian judges are responding to our increasing knowledge of the neurobiological bases of behaviour?...

[S]ome academics, such as American psychologists Joshua Greene and Jonathan Cohen, have argued that consequentialist considerations will be all that is left after neuroscience revolutionises criminal law. Punishment as retribution will be consigned to history.

According to Greene and Cohen, retributivism relies on the notion that people have free will. They say the advance of neuroscience will cure us of that notion by opening the black box of the mind and revealing the mechanistic processes that cause all human behaviour.  Once these causes are revealed, we will give up the idea that people are responsible for their bad actions.

We will start to think that a criminal’s frontal lobe impairment caused him to lash out, for instance, and focus on how we can prevent this happening again, rather than thinking they chose to punch their victim and thus they deserve punishment.  According to Greene and Cohen, this will make crime reduction the only goal.  If they are right, punishment practices will move in the direction advocated by Eagleman.

Greene and Cohen made their argument about the demise of retributivism ten years ago.  In light of their predictive claims, it is interesting to examine how the legal system is actually responding to the increasing use of neuroscientific evidence.  We can get an idea of what is happening in Australia from cases in the Australian Neurolaw Database, which was launched in December 2015. The database is a joint project between Macquarie University and the University of Sydney, and includes both Australian civil and criminal cases that employed evidence derived from neuroscience.

Interestingly, the sentencing cases in the database do not suggest retributive justice is being abandoned when the court is confronted with evidence of impairment to an offender’s brain.  Where used in sentencing, neuroscience evidence is often put forward in relation to assessment of the moral culpability of the offender.  It is thus used to help determine how much punishment an offender deserves.

This is very different to suggesting moral culpability ceases to be a relevant consideration in the determination of punishment, or that courts should pay no regard to questions of desert.  It presupposes that questions about appropriate punishment are important ones to answer correctly.

One example of the way Australian courts regard evidence derived from neuroscience is in the sentencing of Jordan Furlan in 2014. In sentencing 49-year-old Furlan for a violent incident involving a 76-year-old victim, Justice Croucher considered the impact of evidence of a brain injury some years prior to the offence, on Furlan’s moral culpability. Justifying a sentence of three years and six months, the judge said the offender’s “moral culpability was reduced, but only to a moderate degree because his judgment was impaired as a result of his acquired brain injury".  The judge went on to say that just punishment was an important factor (among others) in crafting the sentence....

We cannot be sure how neuroscience will affect the law in future.  Indeed, there may even be a backlash against this form of evidence. What can be said is that ... Australian judges still consider moral culpability, even in the face of neuroscientific evidence of impaired mechanisms. They do not move to purely consequentialist considerations.  This means retributivism is still alive and well, and just punishment still matters to Australian courts.  So, at least for now, the impact of neuroscience is not revolutionary.

June 8, 2016 at 09:13 AM | Permalink


All I can think of in response is "A Clockwork Orange"

Posted by: Allan | Jun 8, 2016 10:26:04 AM

And I would say that kind of evidence would be powerfully aggravating, not mitigating at all. Society simply does not need folks with such poor control over their behavior.

Posted by: Soronel Haetir | Jun 8, 2016 11:34:54 AM

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