Criminal responsibility in the age of mind-reading

American Criminal Law Review

Volumn 46, Issue 3, 2009, Pages 1191-1244

  Sasso, Peggly ^a  

^a NONE

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EID: 67650996946     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (384)

1. Jeffrey Kluger, What Makes Us Moral, TIME, Dec. 3, 2007, at 54.
2. Today Show: Are Kids Born to Bully? (NBC television broadcast Nov. 7, 2008), available at http://www.msnbc.msn.com/id/21134540/vp/ 27591475#27591475.
3. 60 Minutes: Mind Reading (CBS television broadcast Jan. 4, 2009), available at http://www.cbsnews.com/video/watch/?id=4697682n.
4. Sharon Begley, Mind Reading is Now Possible, NEWSWEEK, Jan. 12, 2008, available at http://www.newsweek.com/id/91688/output/ print.
5. Kerri Smith, Mind-Reading with a Brain Scan, NATURE, Mar. 5, 2008, available at http://www.nature.com/news/2008/080305/full/news. 2008.650.html.
6. Jeffrey Rosen, The Brain on the Stand; How Neuroscience is Transforming the Legal System, N.Y. TIMES MAG., Mar. 11, 2007, at 48.
7. Diane Curtis, Bridging the Worlds of Neuroscience and the Law, CAL. BAR J., March 2008, at 1, available athttp://www.calbar.ca.gov/state/calbar/.
8. The Law & Neuroscience Project, http://www.lawandneuroscienceproject. org/ (last visited Mar. 23, 2009).
9. See generally JOAN STILES, THE FUNDAMENTALS OF BRAIN DEVELOPMENT (2008) (demonstrating the complexity of brain development by providing a comprehensive analysis of the variable paths of neural development from embryology through early childhood).
10. This Article proceeds on the foundational assumption that the mind is wholly a product of the physical brain. See, e.g., MICHAEL S. GAZZANIGA, THE ETHICAL BRAIN 88 (2006) (contending that "changes in our brain are both necessary and sufficient for changes in our mind"). While this is by no means a proven fact, it is the position held by almost all, if not all, neuroscientists. See, e.g., Francis Crick and Christof Koch, The Problem of Consciousness, in The HIDDEN MIND 10, 11 (Scientific American ed., 2002). For the purposes of this Article it is not necessary to make the further leap and posit that all mental states are reducible to brain states; it is sufficient that one accepts that mental states are both the product of the physical brain and have the capacity to cause human behavior.
11. For purposes of this Article, I am concerned only with articulating a theory of punishment applicable to mala in se crimes. The punishment of public regulatory crimes requires its own defense, which is beyond the scope of this Article. Moreover, the objective of this Article is to assess the potential impact of recent advances in the neurological sciences on the criminal law; to the extent such evidence is relevant at all, its application and significant implications are most immediately apparent in the context of crimes generally considered inherently wrong.
12. The community of course has an obligation to protect itself against the actions of those individuals who fail to qualify as moral agents, but I contend it is inappropriate to talk of punishing such individuals; blame, guilt and shame are moral emotions that are only properly directed towards a moral agent. See, e.g., R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 115, 180 (2001);
13. Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability, 39 UCLA L. REV. 1511,1533 (1992);
14. Piers Benn, Freedom, Resentment, and the Psychopath, 6.1 PHILOSOPHY, PSYCHIATRY & PSYCHOLOGY 29, 34 (1999);
15. cf. Durham v. United States, 214 F.2d 862, 876 (D.C. Cir. 1954) ("[0]ur collective conscience does not allow punishment where it cannot impose blame." (internal quotations omitted)).
16. Neurons are the building blocks of the complex bi-directional parallel processing systems that sustain human cognition. See Patricia S. Churchland & Terrence J. Sejnowski, Perspectives on Cognitive Neuroscience, 242 SCIENCE 741, 742 (1988) (diagramming the structural levels of organization in the human nervous system). Although the human brain only weighs approximately three pounds, it contains around 180 billion neurons, roughly 80 billion of which have been implicated in cognition; each neuron is in direct communication with one thousand to tens of thousands of other neurons. E. BRUCE GOLDSTEIN, SENSATION AND PERCEPTION 46 (2007);
17. see also PATRICIA S. CHURCHLAND & TERRENCE J. SEINOWSKI, THE COMPUTATIONAL BRAIN 51 (1992).
18. See, e.g., Nathan J. Emery & Alexander Easton, Introduction: What is Social Cognitive Neuroscience (SCN) ?, in THE COGNITIVE NEUROSCIENCE OF S OCIAL BEHAVIOUR 1-2 (Nathan J. Emery & Alexander Easton eds., 2005) (Scientists are beginning to identify the brain systems and their structural components that appear to be involved in "process[ing] sensory information, plan[ning] and control[ling] movement, preceiv[ing] and producing] speech, and experienc[ing] emotion.");
19. Laurence R. Tancredi, Neuroscience Developments and the Law, in NEUROSCIENCE AND THE LAW 71 (Brent Garland ed., 2004) (opining that as a result of these new technologies scientists are able "to penetrate the physical inaccessibility of the brain... permitting] for the first time the direct investigation of the functioning brain in a living human being").
20. Of course, some scholars were answering this latter question in the affirmative long before the revolutionary neuroscientific breakthroughs occurring at the turn of the twenty-first century. See, e.g., BARBARA WOOTON, SOCIAL SCIENCE AND SOCIAL PATHOLOGY 249 (1959) (arguing for "the total abandonment of the whole concept of responsibility" in favor of treating the underlying conditions of the criminal conduct);
21. Karl A. Menninger, Medicolegal Proposals of the American Psychiatric Association, 19 AM. INST. CRIM. L. & CRIMINOLOGY 367, 373 (1928) (proposing that criminal conduct be treated as a symptom of an underlying disease);
22. see also JOSEPH ROGUES DE FURSAC & AARON JOSHUA ROSANOFF, MANUAL OF PSYCHIATRY 213-14 (4th ed. 1916) ("The phenomena of the will like other natural phenomena are subject to natural laws and are determined by antecedents.... Responsibility, therefore, ... does not exist scientifically in any case, sane or insane.").
23. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 3 (1968).
24. On one side of the debate are individuals such as psychologist Joshua Greene (see, e.g., Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, in 359 PHILOSOPHICAL TRANSACTIONS: BIOLOGICAL SCIENCES 1775-85 (2004)), philosopher Derk Pereboom (see, e.g., DERK PEREBOOM, LIVING WITHOUT FREE WILL 158-186 (2001)),
25. and neuroscientist Robert M. Sapolsky (see, e.g., Robert M. Sapolsky, The Frontal Cortex and the Criminal Justice System, in LAW AND THE BRAIN 227 (Semir Zeki & Oliver Goodenough eds., 2004)) who argue that our expanding scientific knowledge is undermining the very morality of our blaming practices.
26. On the other side of the debate are individuals, such as legal scholar Stephen Morse, who contend that emerging neuroscientific research has little to no impact on the substance or practice of criminal law. See, e.g., Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3 OHIO ST. J. CRIM. L. 397 (2006).
27. See, e.g., ANDREW VON HIRSCH, CENSURE AND SANCTIONS 88 (1993) (opining that over the past forty years, retributivist theories have been the dominant paradigm shaping the discourse of punishment).
28. See Peter Singer, Morality, Reason, and the Rights of Animals, in PRIMATES AND PHILOSOPHERS: HOW MORALITY EVOLVED 140, 142 (Stephen Macedo & Josiah Ober eds., 2006) ("Human nature is inherently social and the roots of human ethics lie in the evolved psychological traits and patterns of behavior that we share with other social mammals, especially primates.");
29. cf. Frans de Waal, The Tower of Morality, in PRIMATES AND PHILOSOPHERS: HOW MORALITY EVOLVED, supra, at 161, 181 ("To neglect the common ground with other primates, and to deny the evolutionary roots of human morality, would be like arriving at the top of a tower to declare that the rest of the building is irrelevant, that the precious concept of 'tower' ought to be reserved for its summit."). This is not to argue that our closest ancestors, i.e., chimpanzees and bonobos, experience the moral emotions that sustain our human practice of punishment; it is not yet clear that such animals have the requisite capacity for self evaluation and "the capacity to be motivated by thoughts about what [they] ought to do and what [they] ought to be like." Christine M. Korsgaard, Morality and the Distinctiveness of Human Action, in PRIMATES AND PHILOSOPHERS: HOW MORALITY EVOLVED, supra at 98, 115.
30. See, e.g., Patricia S. Churchland, Brain-Based Values, 93 AM. SCIENTIST 356, 357 (2005) (noting that social animals engage in various forms of punishment such as shunning, biting, banishing and scolding);
31. Paul H. Robinson et al., The Origins of Shared Intuitions of Justice, 60 VAND. L. REV. 1633, 1676 (2007) ("[A]nimal studies suggest that humans are not alone in punishing violations of norms of cooperation, reciprocity, and fairness. That so many social species exhibit these behaviors, and in such specific ways, suggests that there is an evolutionary and adaptive root to these behavioral predispositions.").
32. See, e.g., Jonathan Haidt, The Moral Emotions, in HANDBOOK OF AFFECTIVE SCIENCES 852, 855 (Richard J. Davidson et al. eds., 2003) (explaining that evolutionary theorists generally locate the origins of human morality "in the dyanmics and difficulties of reciprocal altruism");
33. Ben Seymour et al., The Neurobiology of Punishment, 8 NAT. REV. NEUROSCIENCE 300, 309 (2007) (positing that altruistic punishment is a strategy employed by humans to promote the cooperation needed for the maintenance of human societies);
34. cf. Ernst Fehr & Urs Fischbacher, Social Norms andHuman Cooperation, 8 TRENDS COGNITIVE SCI., 185, 185 (2004) ("Human societies represent a spectacular outlier with respect to all other animal species because they are based on large-scale cooperation among genetically unrelated individuals.").
35. See Seymour et al., supra note 21, at 300;
36. Tamler Sommers, The Illusion of Freedom Evolves, in DISTRIBUTED COGNITION AND THE WILL: INDIVIDUAL VOLITION AND SOCIAL CONTEXT 61, 66 (Don Ross et al. eds., 2007) (The defining feature of altruistic punishment is that "[c]ooperators willingly suffer costs in order to punish defectors"). Of course, the group's success promotes the individual's own long-term survival and productivity. Cf. Robinson, supra note 20, at 1679 (arguing "that when group interests are pitted against self interest... it is more likely that self interest will prevail"). The point here is simply that the individual is motivated to act against his immediate short-term interests.
37. Seymour et al., supra note 21, at 307;
38. see Emst Fehr & Simon Gachter, Altruistic Punishment in Humans, 415 NATURE 137, 139 (2002) (describing experimental results suggesting that "altruistic punishment is a key force in the establishment of human cooperation"). This is not to suggest that reciprocal altruism is the sole building block from which human cooperative societies evolved. See Robinson, supra note 20, at 1647 (discussing additional causal processes).
39. J.L. Mackie, The Law of the Jungle: Moral Alternatives and Principles of Evolution, in 2 PERSONS AND VALUES SELECTED PAPERS 126-27 (Joan Mackie & Penelope Mackie eds., 1985);
40. see WALTER SINNOTT-ARMSTRONG, MORAL SKEPTICISMS 41-42 (2006) (discussing Mackie's hypothetical);
41. see, e.g., Philip Kitcher, The Evolution of Human Altruism, 90 J. OF PHIL. 497, 499-500 (1993) (presenting a slighdy more complex version of the prisoner's dilemma in which the Cheaters engage in grooming activities, they just do a sloppy job; two cheaters may therefore groom each other and they will fare better than the Suckers, but less well than the animal who refrains from social interaction and grooms himself).
42. Ernst Fehr and Simon Gachter describe the punishment of free-riders as a "second-order public good" because "[e]verybody in the group will be better off if free riding is deterred, but nobody has an incentive to punish the free riders." Fehr & Gachter, supra note 23, at 137.
43. As Haidt correctly observes, in order for reciprocal altruism to be a successful social strategy individuals in the social group must be "built with a motivation to avoid or to actively punish those who have tried to cheat or exploit them." Haidt, supra note 21, at 855;
44. see Fehr & Gachter, supra note 23, at 137 (positing that the problem of second-order public goods, such as punishment, can only be solved if members of the social group are somehow "motivated to punish free riders even though it is costly and yields no material benefits for the punishers").
45. Indeed, in their extensive research on the human practice of altruistic punishment, Ernst Fehr and Simon Gachter report that free riders trigger strong negative emotions in cooperators, such as anger, which in turn motivates them to punish offenders, even in scenarios where the punisher receives no personal benefit from inflicting punishment. Fehr & Gachter, supra note 23, at 139.
46. See, e.g., Sommers, supra note 22, at 65 ("[C]ertain emotions and attitudes have been naturally selected to motivate behavior that improves social coordination.").
47. See J.L. Mackie, Morality and the Retributive Emotions, in 2 PERSONS AND VALUES SELECTED PAPERS 206, 215, 219 (Joan Mackie & Penelope Mackie eds., 1985) ("[W]e can find a biological explanation for the tendency to feel non-moral resentment of injuries and gratitude for benefits, and a sociological explanation for the development, out of these, of their moral counterparts," i.e., moral emotions have non-moral precursors that "have been selected and encouraged by genetic and social evolutionary mechanisms" (emphasis added));
48. cf. Haidt, supra note 21, at 855 (characterizing as moral emotions "any emotion that leads people to care about [human society] and to support, enforce, or improve its integrity").
49. Peter Strawson, Freedom and Resentment, in FREE WILL 59, 66 (Gary Watson ed., 1982). I am primarily concerned here with those emotions we experience when others breach expectations we have of them or we breach those we have of ourselves. See R. JAY WALLACE, RESPONSIBILITY AND THE MORAL SENTIMENTS 12 (1994) (identifying resentment, indignation and guilt as the reactive attitudes we experience in connection with breached expectations).
50. Strawson, supra note 30, at 70-71.
51. Although Strawson correctly identified our commitment to these inter-personal attitudes as an essential "part of the general framework of human life," id. at 70, he failed to articulate a compelling reason why we cannot forsake the reactive attitudes. Certainly, the human experience devoid of the reactive attitudes would be profoundly impoverished. See, e.g., Susan Wolf, The Importance of Free Will, 90 MIND 386, 400-01 (1981) (describing the abandonment of the reactive attitudes as precipitating "a tragic world of human isolation"). Contra Derk Pereboom, Hard Incompatibilism, in FOUR VIEWS ON FREE WILL 85, 119-20 (2007) (arguing that the reactive attitudes, such as resentment, can be replaced with satisfactory analogues, such as alarm, distress and moral sadness). There is, however, an even more fundamental reason why we must remain committed to the reactive attitudes - it is our capacity to experience moral emotions such as resentment and indignation that motivate us to collectively take action against members of the community who thwart the community's core cooperative norms of behavior.
52. Strawson, supra note 30, at 72;
53. see, e.g., Jorge Moll et al., Morals and the Human Brain: A Working Model, 14 NEUROREPORT 299, 299 (2003) (Moral emotions are "critical for the promotion of group cohesiveness and order");
54. Martin A. Nowak & Karl Sigmund, Evolution of Indirect Reciprocity by Image Scoring, 393 NATURE 573, 573 (1998) ("[H]uman cooperation is due less to kin selection than to cultural forces rooted in pervasive moral systems.").
55. See, e.g., Philip Kitcher, Ethics and Evolution: How to Get Here from There, in PRIMATES AND PHILOSOPHERS: HOW MORALTTY EVOLVED, supra note 19, at 120, 136 (positing that the human capacity for moral action is, at least in part, due to "the evolution of our linguistic capacity [such that] our ancestors became able to formulate patterns for action, to discuss them with one another, and to arrive at ways of regulating the conduct of group members");
56. Ralph Adolphs, Cognitive Neuroscience of Human Social Behaviour, 4 NAT. REV. NEURO-SCIENCE. 165, 166 (2003) (explaining that because moral emotions depend upon a social context, they arise later in both human development and. human evolutionary history than basic emotions such as happiness, fear, anger, disgust and sadness);
57. Nowak & Sigmund, supra note 33, at 573-76 (1998) (positing that humans were able to expand their social network beyond mere kin groups in part because of the emergence of language, which enabled members of the society to acquire information about the reputation of its fellow members without having to directly interact with them);
58. cf Haidt, supra note 21, at 855 (describing moral emotions as "panhuman products of evolution and cultural scripts that are shaped by local values and meanings").
59. See Sommers, supra note 22, at 66 (discussing the important role that altruistic punishment plays in enforcing social norms).
60. See, e.g., Adolphs, supra note 34, at 166 (explaining that from a neurophysiological perspective, "[moral emotions] require an extended representation of oneself as situated within a society");
61. cf. Robinson, supra note 20, at 1648 (observing that the basis of our shared intuitions of justice is grounded in certain capacities, including the ability to engage in cost-benefit analysis, detect unfairness, recognize others and remember our interactions with them).
62. FRANS DE WAAL, GOOD NATURED: THE ORIGINS OF RIGHT AND WRONG IN HUMANS AND OTHER ANIMALS 161 (1996).
63. Cf. DAVID GARLAND, PUNISHMENT AND MODERN SOCIETY: A STUDY IN SOCIAL THEORY 21 (1990) ("Punishment may be a legal institution, administered by state functionaries, but it is necessarily grounded in wider patterns of knowing, feeling, and acting, and it depends upon these social roots and supports for its continuing legitimacy and operation.").
64. Paul H. Robinson, Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical, 67 CAMBRIDGE L.J. 145, 158 (2008). Philosopher Shaun Nichols makes a related point. See Shaun Nichols, After Incompatibilism: A Naturalistic Defense of the Reactive Attitudes, 21 PHIL. PERSPECTIVES 405, 412-16 (2007). Nichols divides emotions into two categories: those with narrow and those with wide psychological profiles. The "narrow emotions" are those, such as moral anger, that we automatically experience when presented with certain triggers and that incline us to want to act in a certain way. As such, the narrow emotions are not "sensitive to high-level theoretical concepts like determinism." Id. at 415. It is a subset of the "narrow emotions" that I am arguing motives (but does not justify) our punishment practices. By contrast, Nichols' "wide emotions" essentially represent a second, evaluative tier in which we ask ourselves if we are justified in acting on the narrow emotions we instinctively experience. Id. at 412-13. It is to that evaluative task that I now turn.
65. It is important to distinguish the expressive theory of punishment in the Durkheimian tradition from the expressive theory articulated by Sir James Fitzjames Stephen. According to Stephen, the "criminal law ... proceeds upon the principle that it is morally right to hate criminals" and punishment is justified as an expression of that hate. 2 JAMES F. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 81 (London, MacMillan 1883). Pursuant to Stephen's theory, punishment is justified as an outlet for the public's outrage akin to a pressure relief valve. By contrast, under a Durkheim theory, the emotions inspired by the commission of a criminal offense are a means to an end, not the end itself. Specifically, it is the moral emotions we experience towards the offender that motivates us to bear the cost of punishment, as we must in order to reaffirm the core social and moral norms that bind our communities together.
66. EMILE DURKHETM, THE DIVISION OF LABOUR IN SOCIETY 39 (W. D. Halls trans., 1984) (1893).
67. Id. at 38-39.
68. For example, David Garland criticizes Durkheim for assuming the existence of a "collective conscience." David Garland, Durkheim's Sociology of Punishment and Punishment Today, in DURKHEIM AND FOUCAULT: PERSPECTIVES ON EDUCATION AND PUNISHMENT 19, 26 (Mark Cladis ed., 1999). As Garland correctly points out, the mere existence of law and order does not necessarily imply an underlying "mass commitment to shared moral norms." Id.;
69. cf. HART, supra note 16, at 171 (opining that it is "sociologically very naive to think that there is ... a single homogenous social morality whose mouthpiece the judge can be in fixing sentence[s] [given that] [o]ur society... is morally a plural society").
70. See GARLAND, supra note 38, at 2 (noting that "criminal laws and penal institutions usually encapsulate moral values and sensibilities that are widely shared - even if the older Durkheimian tradition overstates the extent to which this is true").
71. DURKHEIM, supra note 41, at 39.
72. Seymour et al., supra note 21, at 300 (explaining that from an evolutionary perspective large social groups must universally adopt certain cooperative norms of behavior);
73. see Paul H. Robinson & John M. Darley, Intuitions of Justice: Implications for Criminal Law and Justice Policy, 81 S. CAL. L. REV. 1, 3-4 (2007) ("Social science research demonstrates that people's intuitions of justice are quite nuanced and that, for the punishment of serious wrongdoing, our intuitions are widely shared across societies and demographics.").
74. "[P]unishment is above all intended to have its effect upon honest people." DURKHEIM, supra note 41, at 63. Not only does it signal to all its members a united commitment to certain core social organizing principles, but, more importantly, the act of punishment demonstrates a willingness to take action to vindicate those norms when confronted by a member's rejection of them, and by so doing, critically distinguishing themselves from Mackie's Suckers. See, e.g., Paul H. Robinson, The Criminal-Civil Distinction and the Utility of Desert, 76 B.U. L. REV. 201 (1996). Robinson notes: The real power to gain compliance lies not in the threat of official sanction, but in the power of interpersonal relationships and internalized norms. ... Criminal law... plays a central role in creating and maintaining the consensus necessary for norms ... and thereby hamess[ing] the compliance power of interpersonal relationships and personal morality. Id. at 212;
75. see DUFF, supra note 12, at 68 ("The law speaks to... members [of a community] in what they can hear as their own voice - in terms of values to which they are already committed and of what they owe to others whom they already recognize as their fellow citizens.").
76. To the extent an individual engages in sufficient conduct to demonstrate an intent to reject the community's fundamental norms of behavior as codified in its criminal laws, the would be offender's demonstrated contempt for society's social and moral values weakens the collective consciousness. The degree of conduct in which the offender must engage such that punishment is justified is a normative decision to be made by the community.
77. See, e.g., JOHN MARTIN FISCHER, MY WAY 27 (2006) ("By its nature, punishment is analogous to a reply in a conversation ...."). Indeed, "if the state has a right to pass criminal laws, to determine certain rights by such laws, and to proclaim that certain actions are crimes,.... [i]t has a duty to punish as well;
78. for its failure to do so would be incompatible with the law it promulgates and the rights it proclaims, and would belie its professed conviction that their violation is a crime." Igor Primoratz, Punishment as Language, 64 PHILOSOPHY 187, 198 (1989).
79. EMILE DURKHEIM, MORAL EDUCATION, 166 (Everett K. Wilson & Herman Schnurer trans., 1961) (1925).
80. The "real function [of punishment] is to maintain inviolate the cohesion of society by sustaining the common consciousness in all its vigour." DURKHEIM, supra note 41, at 63. Criminal conduct "implies that the sentiments are not absolutely collective, and it attacks that unanimity, the source of their authority." Id. at 58. The members of the community must, therefore, "strengthen one another by giving mutual assurance that they are still in unison." Id. Ultimately, what the community is "avenging, and what the criminal is expiating, is the outrage to morality." Id. at 47.
81. To the extent the infliction of punishment might also serve to educate the offender or prevent him from re-offending in the future, such consequences are merely secondary by-products. Id. at 63 (Punishment "does not serve, or serves only very incidentally, to correct the guilty person or to scare off any possible imitators. From this dual viewpoint its effectiveness may rightly be questioned; in any case it is mediocre"). Compare Lord Justice Denning, ROYAL COMM'N ON CAPITAL PUNISHMENT 1949-1953 ¶ 53 (1953) ("The ultimate justification of any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community of a crime."), and Michael Davis, Punishment as Language: Misleading Analogy for Desert Theorists, 10 LAW & PHILOSOPHY 311, 314-15 (1991) (arguing that punishment seems to imply more than simply "a tariff on conduct" embodied in deterrence rationales, and instead inherently involves the "moral condemnation of the act and a rebuke of the agent"), with DUFF, supra note 12, at 129 (agreeing with Durkheim that punishment "should be conceived of as a communicative enterprise"; contending, however, that the ultimate dialogue occurs not between members of the law abiding public, but between the public and the offender, whereby the offender comes to appreciate his transgression and "reconciles" himself with those he has wronged). Although I agree punishment involves a moral dialogue between the public and the offender, and thus a precondition of punishment requires that the offender has the capacity to engage in such a dialogue, when it comes to justifying why we punish I believe the primary focus should be on the community rather than the individual offender; by communicating with the offender the members of a society are ultimately communicating to each other their ongoing commitment to the shared cooperative norms of behavior necessary for the long-term survival of their social community.
82. Paul H. Robinson, Empirical Desert, in CRIMINAL LAW CONVERSATIONS (Paul H. Robinson et al. eds., forthcoming 2009), available at http://ssm.com/abstract= 1148907.
83. An individual lacking the requisite capacity may still be culpable for his failure to possess said capacity at the time he engaged in the proscribed conduct. See, e.g., United States v. Moore, 486 F.2d 1139, 1151 (D.C. Cir. 1973), cert. denied, 414 U.S. 980 (1973) (explaining that even if the heroin addict defendant was under the compulsion of his addiction at the time he was arrested for possession, he was responsible for the conduct that led to his addiction).
84. Cf. Arenella, supra note 12, at 1518 ("We view moral evil as a corruption of {the] human potential for moral concern, judgment, and action. Thus, individuals do not deserve moral blame if they lack these moral capacities.").
85. The capacity to participate in the community's moral discourse requires, inter alia, the ability "to care for the interests of other human beings; ... [to] intemaliz[e] ... others' normative expectations[;] ... [to identify one's self] as a participant in the community's blaming practices;... to engage in moral evaluation of one's [self] and [one's] acts[;]... to respond to moral norms as a motivation for one's choices"; to conform one's conduct in accordance with such norms; and to appreciate how such norms may be appropriately applied in novel situations. Arenella, supra note 12, at 1524-25;
86. see Peggy Sasso, Implementing the Death Penalty: The Moral Implications of Recent Advances in Neuropsychology, 29 CARDOZO L. REV. 765, 775-76 (2007) (discussing in more detail the defining characteristics of a moral agent);
87. see also WALLACE, supra note 30, at 1 (describing a moral agent as someone who possesses "the ability to grasp and apply moral reasons, and to govern one's behavior by the light of such reasons");
88. A. von Hirsch, Censure and Proportionality, in A READER ON PUNISHMENT 112, 120 (R. A. Duff & David Garland eds., 1995) (to qualify as a moral agent one must be "capable of understanding others' assessment of their conduct").
89. This is not to suggest the community cannot take actions to protect its members from the offender, only that the imposition of punishment is inappropriate. As Peter Strawson explained, it is appropriate for society to adopt an objective attitude against an offender who is outside its moral discourse, perhaps treating the offender as "an object of social policy; as a subject for what, in a wide range of sense, might be called treatment; as something certainly to be taken account, perhaps precautionary account, of; to be managed or handled or cured or trained; perhaps simply to be avoided." Strawson; supra note 30, at 66.
90. Gary Watson, Responsibility and the Limits of Evil, Variations on a Strawsonian Theme, in RESPONSIBILITY, CHARACTER AND THE EMOTIONS 256, 264 (Ferdinand Schoeman ed., 1987).
91. WALLACE, supra note 30, at 1 (contending it is more appropriate to talk in terms of normative competence than freedom of the will when discussing the characteristics of a morally responsible agent).
92. Davis, supra note 52, at 319, 321;
93. see, e.g., Michael Moore, The Moral Worth of Retribution, in RESPONSIBILITY, CHARACTER AND THE EMOTIONS 179, supra note 58, at 181 ("We are justified in punishing because and only because offenders deserve it. Moral culpability ('desert') is in such a view both a sufficient as well as a necessary condition of liability to punitive sanctions.").
94. Robinson, supranote 39, at 146.
95. Id. at 147-49, 151. As Robinson explained, under either a deontological or empirical conception of desert, the amount of punishment depends upon the ordinal rank of the offense within a hierarchy defined by agreed upon endpoints. The ordinal rank is based on the harm done and the offender's moral culpability for his actions. Although the relative rank of a crime within the hierarchy does not change, the amount of punishment an offender deserves will change "[i]f the endpoint of the punishment continuum changes." Id. at 151;
96. see von Hirsch, supra note 56, at 127, 129 (explaining that as the "amount of disapproval conveyed by penal sanctions is a convention .... [v]arying the relative amount of the deprivation varies the degree of censure conveyed");
97. cf. Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008) ("[T]he Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic 'precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.'" (quoting Weems v. United States, 217 U.S. 349, 367 (1910))).
98. Robinson, supra note 39, at 148.
99. Id. at 172-73.
100. Robinson, supra note 20, at 1687.
101. See, e.g., Robinson, supra note 39, at 155 ("Like slave owners in the Old South or anti-Semitic Germans before World War II, one may fail to appreciate the injustice of one's views until later, especially if one's views at the time are shared by a large number of other people."). Perhaps notions of deontological desert may be relevant for the limited purpose of providing a "transcendent check on the justness of [a society's] liability rules." Id. at 167. Robinson cautions, however, that because moral philosophers are often biased in favor of moral principles most consistent with their own intuitions, conceptions of deontological deserts may not in practice provide the requisite guidance. Id. at 168-69. Ultimately, "[i]f we cannot accept the moral outlook of a society, we shall withhold moral support when it expresses moral condemnation through punishment." Primoratz, supra note 49, at 205.
102. Robinson, supra note 39, at 171.
103. See id. at 172 ("[I]n any real world criminal justice system, it will be inevitable that the system will in some instances deviate from people's intuitions of justice.... The more it deviates from empirical desert, the lower its moral credibiulity.").
104. MICHAEL MOORE, PLACING BLAME 152 (1997).
105. I will use the term "just deserts" to refer to deontological desert as opposed to empirical desert.
106. See, e.g., Adrian Raine, Psychopathy, Violence and Brain Imaging, in VIOLENCE & PSYCHOPATHY 35, 50-51 (Adrian Raine & Jose Sanmartin eds., 2001) (positing that the degree to which individuals have the neurological capacity to conform their conduct consistent with shared cooperative norms, "lies on a continuum" shaped by "early social, biological, and genetic mechanisms").
107. For example, neurologist Robert Sapolsky questions the moral legitimacy of a legal system that inflicts punishment on the basis of an offender's just deserts where the neuroscientific "emphasis on continua seems to hold the danger of a world of criminal justice in which there is no blame and only prior causes," Sapolsky, supra note 17, at 240. As early as 1967, legal scholar Abraham Goldstein worried that as our scientific knowledge advances it increasingly "becomes apparent that no clear line divides the sane from the insane, that 'we' and 'they' are more alike than we suspected." ABRAHAM GOLDSTEIN, THE INSANITY DEFENSE 4 (1967).
108. Susan Wolf, Sanity and the Metaphysics of Responsibility, in RESPONSIBILITY, CHARACTER, AND THE EMOTIONS, supra note 58, at 46, 52. To be clear, determinism does not necessitate fatalism. See, e.g., RICHARD DOUBLE, THE NON-REALITY OF FREE WILL 226 (1991). Simply because all events have causal antecedents does not undermine the causal efficacy of human actions. See, e.g., R.D. Bradley, Causality, Fatalism, and Morality, 72 Mind 591, 594 (1963) (observing the "difference between saying that my tomorrow is determined (Causal Determinism) and saying that my tomorrow is determined no matter what I do today (Fatalism)").
109. SAUL SMILANSKY, FREE WILL AND ILLUSION 45 (2000) (emphasis in original).
110. See also Pereboom, supra note 32, at 114 (arguing that because the thoughts and desires underlying our actions are ultimately the result of causal antecedents over which we have no control, we should abandon "our ordinary view of ourselves as blameworthy for immoral actions");
111. Saul Smilansky, Fischer's Way: The Next Level, 12 J. ETHICS 147, 151-52 (2008) (contending that punishing criminals is morally arbitrary and fundamentally unfair because the offender "is a victim of forces, ultimately beyond his control").
112. Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, in LAW AND THE BRAIN, supra note 17, at 207, 208 (conclusively asserting that the "law's intuitive support is ultimately grounded in a metaphysically overambitious, libertarian notion of free will that is threatened by determinism and, more pointedly, by forthcoming cognitive neuroscience").
113. Id. at 218.
114. Id. at 209.
115. Id. at 218.
116. Id. at 222.
117. This is a proposition about which I remain skeptical. That is not to say that recent empirical studies, such as those I discuss infra in Part II.C, do not illuminate fascinating and potentially instructive patterns, but those patterns likely result from a complex interactions of variables that may be impossible to completely unpack. See Dana K. Nelkin, Do We Have a Coherent Set of Intuitions about Moral Responsibility, 31 MIDWEST STUD, IN PHIL. 243, 257-58 (2007) (questioning whether we can design thought experiments capable of eliciting the requisite "fine-grained judgments" to produce meaningful results).
118. Robinson, supra note 39, at 170.
119. See, e.g., id. at 148-50;
120. Paul H. Robinson, -The Role of Moral Philosophers in the Competition between Deontological and Empirical Desert, 48 WM. & MARY L. REV. 1831 (2007). This is by no means to suggest that a community's sense of justice is always defensible. History is replete with examples that it is not. Accordingly, even assuming, as I do, that the criminal law is concerned with normative not metaphysical responsibility, on a macro level deontological desert conceivably has an essential role to play in providing what Robinson terms a "transcendent check on the justness" of a community's intuitions underlying its conception of desert. Robinson, supra note 39, at 167.
121. Failing to distinguish between metaphysical responsibility and criminal responsibility, some scholars have been tempted to proclaim the death of the criminal justice system as we know it if it turns out that our mental states do in fact have causal antecedents. See, e.g., Stephen J. Morse, Reason, Results, and Criminal Responsibility, 2004 U. ILL. L. REV. 363 (2004). Morse notes: If human action, like all other phenomena, is caused by antecedent events and by the causal laws of the universe, then perhaps people have no genuine freedom - no real choices or alternatives - even if they do act for reasons. If so, ascribing moral responsibility may be unjustified, and criminal responsibility might also be in doubt for those who believe, as virtually all do, that genuine moral desert is at least a necessary precondition for criminal blame and punishment. Id. at 430;
122. see Michele Cotton, A Foolish Consistency: Keeping Determinism Out of the Criminal Law, 15 B.U. PUB. INT. L.J. 1, 43 (2005) (asserting that in the context of the criminal law "what constitutes guilt as we understand it depends on a concept of free will that could not meet a preponderance of the evidence standard");
123. Matthew Jones, Overcoming the Myth of Free Will in Criminal Law: The True Impact of the Genetic Revolution, 52 DUKE L.J. 1031,1053 (2003) ("It is clear with the recent advancements in the field of genetics that the free will foundation upon which the criminal justice system is based is in serious jeopardy.").
124. Robinson, supra note 39, at 172.
125. I am assuming the theory of eliminative materialism proves untenable. Eliminative materialism holds that concepts such as beliefs, desires and consciousness are merely products of a folk psychology that presents "a false and radically misleading conception of the causes of human behavior and the nature of cognitive activity." PAUL M. CHURCHLAND, MATTER AND CONSCIOUSNESS 43, 97 (1988). It is one thing to concede that our reasons, desires and beliefs have causal antecedents, a concession that is compatible with the expressive theory of punishment this Article articulates, and quite another to deny that humans have the capacity to consciously reflect on their desires and that human action can never be the product of one's deliberate reasoning.
126. Stephen Morse has provocatively opined, "Lack of action, lack of rationality, and compulsion all excuse, but none of these conditions has anything to do with free will." Stephen J. Morse, The Non-problem of Free Will in Forensic Psychiatry and Psychology, 25 BEHAV. SCI. & L. 203, 207 (2007). Ironically, as a positive retributivist, it seems Morse should be arguing for an even more robust notion of free will, i.e., it is difficult to conceive of an individual's just deserts where the individual is not the ultimate source of his thoughts and desires.
127. See, e.g., Dixon v. United States, 548 U.S. 1, 23 (2006) (Breyer, J., dissenting) ("[T]he criminal law punishes 'abuse[s] of th[e] free will.'" (quoting William Blackstone, 4 COMMENTARIES ON THE LAWS OF ENGLAND 27 (1769)));
128. Blocker v. United States, 288 F.2d 853 (D.C. Cir. 1961). The court in Blocker made the following argument: While philosophers, theologians, scientists and lawyers have debated for centuries whether such a thing as "free will" really exists, society and the law have no choice in the matter. We must proceed ... on the scientifically unprovable assumption that human beings make choices in the regulation of their conduct and that they are influenced by society's standards as well as by personal standards. Id. at 865;
129. see also Bethea v. United States, 365 A.2d 64, 72 (D.C. 1976) (explaining that the "fundamental moral precepts which condition responsibility (i.e., accountability) for one's behavior [is] the existence of an effective choice of conduct. Absent circumstances which in the aggregate satisfy the concept of 'free will,' an individual transgressor is dealt with in a manner which is significantly different from the response accorded the ordinary offender" (citations omitted)).
130. Individuals cannot be punished for their status, only their actions. See Robinson v. California, 370 U.S. 660, 667 (1962) (holding that the Eight Amendment prohibits punishing an individual simply because of his status as a drug addict where there is no evidence he ever "touched any narcotic drug within the State or been guilty of any irregular behavior there"). Moreover, except in the context of strict liability crimes, the criminal law is not concerned with actions per se, but with actions that are performed with a specified mental state - actus nonfacit reum nisi mens sit rea (the act is not culpable unless the mind is guilty). See, e.g., Morissette v. United States, 342 U.S. 246, 250 (1952) ("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.");
131. see also Samuel H. Pillsbury, The Meaning of Deserved Punishment: An Essay on Choice, Character, and Responsibility, 67 IND. L.J. 719, 727 (1992) (the criminal law's "greatest concern is with intentions - the actor's mental attitude toward the wrong involved in his act"). It is the mental state with which the actor engaged in the proscribed conduct that places his actions in the necessary context to determine whether they demonstrate a sufficient lack of respect for certain minimal behavioral norms.
132. Cf. GAZZANIGA, supra note 10, at 90 ("[P]eople ... follow rules when they live together, and out of that interaction arises the concept of freedom of action.");
133. de Waal, supra note 19, at 174 ("Moral norms and values are not argued from independently derived maxims ... but born from internalized interactions with others.... I thus agree with Darwin and Smith... that social interaction must be at the root of moral reasoning.");
134. Michael S. Gazzaniga & Megan S. Steven, Free Will in the Twenty-first Century: A Discussion ofNeuroscience and the Law, in NEUROSCIENCE AND THE LAW, supra note 14, at 51, 69 ("[Responsibility is what happens when people interact. Brains are determined; people are free.");
135. Mackie, supra note 24, at 214 (stating that the distinctive features of moral emotions "are developed by social interactions").
136. SMILANSKY, supra note 74, at 182 (observing that although "libertarian free will seems to be widely assumed ... when the courts examine the issue of control or 'up to usness,' it is roughly control compatibilist criteria ... which they look for");
137. cf. John Martin Fischer, Compatibilism, in FOUR VIEWS ON FREE WILL, supra note 32, at 44, 68 ("[TJotal control is a chimera. It is manifestly ludicrous to aspire to it or to regret its absence. The locus of control is not wholly within us. We do not exist in a protective bubble of control.").
138. Some scholars have suggested the conception of free will sustaining our criminal law practices is illusory, albeit a useful one that should be retained. See, e.g., HERBERT PACKER, THE LIMITS OF THE CRIMINAL SANCTION 74-75 (1968) ("[T]he law treats man's conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were.");
139. DANIEL M. WENGER, THE ILLUSION OF CONSCIOUS WILL 328 (2002) (arguing that although we do not have free will, our experience of free will "allows us to maintain the sense of responsibility for our actions that serves as a basis for morality");
140. Oliver R. Goodenough, Responsibility and Punishment: Whose Mind? A Response, in LAW AND THE BRAIN, supra note 17, at 259, 263 (positing that although our sense of free will may be merely phenomenological, it is a useful "strategic fiction that underlies the productivity of a punishment rule"). When what is at stake, however, is the power of the state to significantly . infringe our individual liberties, justifying our criminal law practices demands more than mere illusions.
141. In 1985, Benjamin Libet published provocative experimental results suggesting that action is initiated unconsciously. See Benjamin Libet, Unconscious Cerebral Initiative and the Role of Conscious Will in Voluntary Action, 8 BEHAV. AND BRAIN SCI. 529 (1985). Very simply, Libet asked his subjects to move one of their fingers "spontaneously" a certain number of times over a given period and to note the time at which they became conscious of each individual decision to move their finger. While the experiment was ongoing, Libet monitored the electrical impulses coming from the brain in order to determine when the neurons in the brain started firing in preparation for action. Libet discovered that the voluntary action appeared to be initiated in the subconscious several hundred milliseconds before the individual became conscious of his decision to act. Id. at 536;
142. see also Soon et al., Unconscious Determinants of Free Decisions in the Human Brain, 11 NATURE NEUROSCIENCE. 543 (2008) (presenting experimental results suggesting the lag time between the subconscious initiation of action in the prefrontal and parietal cortex might precede conscious awareness by as much as ten seconds). At worst, such experiments suggest we have what neuroscientist V.S. Ramachandran terms "free won't," meaning that although we may not consciously initiate our actions, we do have conscious control over when, how and whether we in fact execute the action. See Daniel Dennett, The Self as Responding and Responsible Artifact, in THE SELF: FROM SOUL TO BRAIN 39, 41 (Joseph LeDoux et al. eds., 2003) (quoting Dr. Ramachandran). Although this degree of free will is not robustly satisfying, if true, it is sufficient to justify the institution of punishment as conceived in the Durkheimian tradition. We are far from needing to make such a concession, however. There are numerous interpretations of Libet-type experiments that do not require us to compromise a positive sense of free will. See, e.g., ALFRED MELE, FREE WILL AND LUCK 33 (2006);
143. Shaun Gallagher, Where's the Action? Epiphenomenalism and the Problem of Free Will, in DOES CONSCIOUSNESS CAUSE BEHAVIOR: AN INVESTIGATION OF THE NATURE OF VOLITION 117 (Susan Pockett et al. eds., 2006).
144. DOUBLE, SUPRA note 73, at 39;
145. cf. Wolfgang Printz, Free Will as a Social Institution, in DOES CONSCIOUSNESS CAUSE BEHAVIOR, supra note 93, at 269, 272 (arguing our notion of free will, which emerges from and is defined by our social interactions, is a necessary human invention sustaining a sense of self that is accountable for its thoughts and actions).
146. As discussed below, it does not matter whether the alternative courses of action are actually available to the actor, only that a reasonable person would believe them to be.
147. WALLACE, supra note 30, at 2;
148. cf. Phillip Pettit, Neuroscience and Agent-Control, in DISTRIBUTED COGNITION AND THE WILL 77, supra note 22, at 82-83 (describing a responsible agent as "the sort of creature who is generally susceptible to reasons, and to the perception of what reasons demand").
149. WALLACE, supra note 30, at"13;
150. cf. Pettit, supra note 96, at 86 (contending that in order to be accountable an actor must possess the capacity to "review [his decision to act] in light of the reasons available overall" and based on that review either "endorse or disendorse" the action).
151. As one commentator has stated: [N]o argument against the existence of the will, however cogent, seems to carry conviction stronger than everyone's sense that they can, for example, decide to raise their left arm and then feel and watch it go up. And if we can each autonomously chose to raise or not raise our arms, presumably we can autonomously choose to pilfer or not pilfer the pension fund and poison or not poison or enemies. Don Ross, Introduction: Science Catches the Will, in DISTRIBUTED COGNITION AND THE WILL, supra note 22, at 1, 2-3. In other words, just like we know we can decide to raise our arm and proceed to execute that decision, we recognize in ourselves and others certain minimal capacities to conform our conduct in accordance with fundamental social and moral norms.
152. See, e.g., SMILANSKY, supra note 74, at 91. Smilansky notes that: To live as a human being is in large measure to take responsibility for one's free actions, and to appreciate and condemn oneself in the light of them;
153. likewise for one's treatment of others and expectations from them. One who completely opts out of this in effect opts out of mature personal and social life. Id.
154. The Court in Powell v. Texas, 392 U.S. 514 (1968), described the relatively thin notion of free will animating our criminal law. The plurality recognized the defendant was an alcoholic and thus subject to certain compulsions to drink, but nevertheless held he had sufficient capacity, i.e., "free will," to control his conduct such that he could refrain from appearing in public drunk. Id. at 526, 534, 536-37. Justice White, concurring in the result, was not willing to go quite as far, arguing that there may be situations in which an alcoholic lacks the requisite free will to conform his conduct appropriately. Id. at 551-52 (White, J., concurring). But because the record "showed nothing more than that [the defendant] was to some degree compelled to drink.... [and the defendant] made no showing that he was unable to stay off the streets on the night in question," he failed to show he lacked the requisite capacity to control his conduct. Id. at 553-54 (White, J., concurring). In other words, even an alcoholic who suffers from certain neurochemical imbalances that makes resisting alcohol extremely difficult has sufficient capacity under the law to appreciate the responsibilities that come with his membership in a social community, evaluate his actions in light of those responsibilities and control his conduct consistent with those evaluations. See, e.g., Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 1949 (2007) (Stevens, J., dissenting) (quoting the affidavit of an examining psychologist who described free will narrowly as the ability "to operate in an organized and adaptive manner, taking into account the actions and consequences of [one's] behaviors and their impact on society and its individuals members");
155. Steward Machine Co. v. Davis, 301 U.S. 548, 589-90 (1937) ("[T]o hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. The outcome of such a doctrine is the acceptance of a philosophical determinism by which choice becomes impossible.").
156. FISCHER, supra note 49, at 206-07.
157. To be sure, our own phenomenological experiences seem to suggest we possess a more robust freedom of will; when we deliberate between multiple choices we believe that these alternative courses of action are in fact open to us to pursue should we so choose. While our phenomenological experience may indeed reflect reality, the point here is that the presence of genuine alternatives is not a necessary condition of criminal responsibility.
158. Harry G. Frankfurt, Alternative Possibilities and Moral Responsibility, 66 J. OF PHIL. 829, 835-36 (1969).
159. See, e.g., WALLACE, supra note 30, at 264 (observing that we blame people even when they act spontaneously or negligently).
160. James Lenman, Contracting Responsibility, in MORAL RESPONSIBILITY AND ONTOLOGY 171, 173 (A. van den Beld ed., 2000).
161. Id. at 175.
162. Id. at 177.
163. See, e.g., Wolf, supra note 73, at 59 (Because normal adults are capable of self evaluation and subsequent self improvement "it seems that although we may not be metaphysically responsible for ourselves - for, after all, we did not create ourselves from nothing - we are morally responsible for ourselves, for we are able to understand and appreciate right and wrong, and to change... our actions accordingly").
164. We may in fact possess significantly more free will than I have sketched. I will leave the debate about how much free will we possess to others. I am concerned here only with the minimal amount of free will necessary to sustain our attributions of criminal responsibility.
165. See generally Kwame Anthony Appiah, The New New Philosophy, N.Y. TIMES, Dec. 9, 2007, at 34 (providing an introductory discussion to the field of experimental philosophy).
166. Eddy Nahmias, Folk Fears about Freedom and Responsibility: Determinism vs. Reductionism, 6 J. COGNITION & CULTURE 215, 215 (2006).
167. See id. at 234.
168. See Shaun Nichols & Joshua Knobe, Moral Responsibility and Determinism: The Cognitive Science of Folk Intuitions, 41 Nous 663, 677-78 (2007) (discussing the debate between compatibilists and incompatibilists).
169. Id. at 669.
170. Id. at 670.
171. Id.
172. Id. at 674-75. Nahmias too is concerned with identifying those emotions he perceives as "illegitimately distortftng] any intuitions relevant to developing a philosophical theory." Nahmias, supra note 111, at 224-25.
173. Nichols and Knobe attempted to buttress the existence of what they identify as the "affective performance error" model by positing another thought experiment. Nichols & Knobe, supra note 113, at 671. This time, instead of killing his wife and children, the offender cheats on his taxes. Id. at 675. Only 23% of the participants responded that the tax cheater in the deterministic universe was fully morally responsible. Id. at 676-77. Apart from concerns that the subjects likely would sympathize and possibly identify with an individual cheating on his taxes, which would tend to depress a finding of full responsibility, cheating on one's taxes hardly represents the assault to society's core moral and social norms that murdering one's wife and kids does, and thus does not raise the same concerns that the participants would be inclined to apply a normative rather than a metaphysical sense of responsibility when answering the experimenters' question.
174. Nahmias, supra note 111, at 231 (emphasis added).
175. Id. at 231-33. Similarly, Shaun Nichols conducted an experiment with Adina Roskies that lends support to the argument that our notions of moral responsibility are strongly informed by our sense of self as a member of a given social community. See Shaun Nichols and Adina Roskies, Bringing Moral Responsibility Down to Earth, J. OF PHIL, (forthcoming). Nichols and Roskies divided their group of undergraduate subjects in half. One group was told to image a foreign universe that is deterministic; the other group was simply told to imagine that our actual world is deterministic. Id. Both sets of subjects were asked whether the agents in the described universes were fully morally responsible for their conduct. Subjects presented with the foreign universe tended to respond that the agents were not fully morally responsible for their conduct, while subjects evaluating "our universe" tended to hold agents fully morally responsible. Id. One reading of these results suggests that the subjects presented with "our universe" instinctively applied a normative sense of moral responsibility grounded in their sense of certain rights and responsibilities inherent in our membership in human society, which are not impacted by the truth of psychological determinism. Those same notions of normative responsibility, however, do not necessarily apply in a foreign universe. Accordingly, it seems likely that the subjects presented with die foreign universe applied more metaphysical notions of responsibility, which were seemingly undermined by the truth of determinism.
176. Nahmias, supra note 111, at 231.
177. Id.
178. See id. at 227 (extrapolating from his experimental results that fatalism, reductionism and epiphenomenal-ism are threatening to our conceptions of free will and responsibility "because they suggest that our behavior is caused by forces that bypass our conscious mental life").
179. See id. at 233-34 (positing that "[m]ost people do not regard psychological determinism to be a threat to free and responsible action but most people do regard reductionistic pictures that suggest 'bypassing' to be a threat to free and responsible action").
180. GAZZANIGA, supra note 10, at 102.
181. Id. at 101.
182. As Jerome Hall explained almost half a century ago, the criminal law is "a practical, normative science which, while it draws upon the empirical sciences, is... concerned to pass judgment on human conduct, entailing serious consequences for both individuals and the community." JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 455 (2d ed. 1960).
183. Gazzaniga & Steven, supra note 90, at 66. Similarly, Stephen Morse argues neuroscientific evidence "is only of limited and indirect relevance to responsibility assessment, which is based on behavioral criteria concerning rationality .... At most [such] evidence provides a partial causal explanation of why the observed behavioral differences exist.... " Morse, supra note 87, at 217. Indeed, Morse has gone so far as to argue that if a "person meets the behavioral criteria for responsibility, the person should be held responsible, whatever the brain evidence may indicate, such as the presence of an abnormality." Morse, supra note 17, at 405. Despite Morse's adamant attempts to firmly tether the criminal law to behaviorism, our criminal jurisprudence is not so inherently limited. Behavioral evidence is merely one form of evidence and not always the most probative, particularly when it comes to evaluating whether a defendant has the requisite neurological capacity to be held legally responsible. See, e.g., ANDY CLARK, MINDWARE 166 (2000) (arguing that behaviorism is "explanatorily shallow" and "seems to commit a kind of 'method actors fallacy,' attributing genuine neural states (of, say, pain) to anyone exhibiting appropriate behavior, and denying pain to anyone able to suppress all the behavioral and verbal expressions of pain");
184. Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV.
185. 291 (1996) (Behaviorism is no longer "the dominant account of emotion in contemporary philosophy and psychology.").
186. Churchland, supra note 20, at 357-58. As early as 1883, the English jurist Sir James Fitzjames Stephen opined "that the brain and the nervous system are the organs by which all mental operations are conducted is now well established and generally admitted. When a man either feels, knows, believes, remembers, is conscious of motives, deliberates, wills, or carries out his determination, his brain and his nerves do something definite." STEPHEN, supra note 40, at 130.
187. See Sasso, supra note 56 (assessing the potential impact of emerging neuroscientific knowledge on how we define those classes of individuals who can never qualify as our most morally culpable offenders and are thus ineligible for the death penalty).
188. Typically the trier of fact is only asked to determine whether a defendant has the capacity to be subject to the community's criminal laws when the defendant raises the insanity defense. Recognizing that the insanity defense is really the means by which the trier of fact assesses a defendant's capacity for moral agency, perhaps it is finally time in the twenty-first century, to shed ourselves of the historical baggage of the insanity defense and simply acknowledge it for what it is - an insufficient capacity defense.
189. See, e.g., Morse, supra note 17, at 397.
190. I am assuming, once again, that our conscious thoughts can play a causal role in our ensuing actions and are not merely rationalizations after the fact.
191. The D.C. Circuit in United States v. Moore made the following observation: The legal conception of criminal capacity cannot be limited to those of unusual endowment or even average powers. A few may be recognized as so far from normal as to be entirely beyond the reach of criminal justice, but in general the criminal law is a means of social control that must be potentially capable of reaching the vast bulk of the population. 486 F.2d 1139, 1179-80 (D.C. Cir. 1973). Accordingly, the "criminal law allows for no gradations. It requires a final decisive moral judgment of the culpability of the accused. For the purposes of conviction there is no twilight zone between abnormality and insanity." Holloway v. United States, 148 F.2d 665, 667 (D.C. Cir. 1945);
192. see, e.g., State v. Andrews 357 P.2d 739 (Kan. 1960). In Andrews, the court stated: The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by the law to be criminal, so long as the person committing the act had the capacity to know what he was doing and the power to know that his act was wrong. Id. at 744-45 (internal quotations omitted));
193. see also Commonwealth v. Trippi, 167 N.E. 354, 356 (Mass. 1929) ("Criminal responsibility does not depend upon the mental age of the defendant nor upon the question whether the mind of the prisoner is above or below that of the ideal or of the average or of the normal man ... ." (internal quotations omitted));
194. State v. Bouwman, 328 N.W.2d 703,706 (Minn. 1982) ("The law recognizes no degree of sanity. Applying socially and morally acceptable standards a line has been drawn - on one side are the legally sane, on the other side are the legally insane.").
195. The amount of punishment the offender should receive is a separate question that, except in the case of capital punishment, is best addressed through individualized sentencing hearings before a judge. But see Stephen J. Morse, Diminished Rationality, Diminished Responsibility, 1 OHIO ST. J. CRIM. L. 289, 299 (2003) (proposing a partial responsibility defense in which the jury, and not the judge, would decide whether a defendant's sentence should be mitigated by his diminished capacities). Setting aside the rationale for such a proposal, it is unclear how a jury that is normatively competent to make rough factual determinations beyond a reasonable doubt can possibly be better equipped than a judge to make nuanced assessments of where a defendant falls on a capacity spectrum. Indeed, Morse offers no principled basis by which the jury can distinguish between those individuals who are simply not appropriate addressees of our criminal sanctions and those individuals who "suffer[] from substantially diminished rationality ... which substantially affected [their] criminal conduct." Id. at 300. And, ironically, by inviting.the jury to make capacity determinations along a continuum, his proposal opens the gates wide to the very neuroscientific evidence he so decries. It is conceivable that at sentencing it might be appropriate for a judge to consider neuroscientific information about the defendant to the extent it sheds light on the degree to which a defendant's capacity to conform his conduct to the law is physiologically compromised. See HALL, supra note 127, at 462-63 (observing that among those who are legally responsible for their conduct there "are appreciable degrees of mental impairment, and it is unjust to ignore that and impose uniform sentences. Within the rule of law there can and should be a substantial measure of individualization"). Of course, it should be remembered neuroscientific evidence has the potential to cut both ways. See, e.g., CHRISTOPHER SLOBOGIN, MINDING JUSTICE 155-76 (2006) (advocating the elimination of the criminal justice system as we know it and replacing it with "a preventive regime," which authorizes "coercive government intervention" against innocent people where neuroscientific data suggests they pose a potential threat to society).
196. It could be countered that the provocation defense does in fact transfer to the jury partial sentencing responsibility. Whatever one may think of the provocation defense, unlike diminished capacity, it is grounded in a reasonable person standard; a standard upon which the trier of fact is uniquely qualified to opine. See, e.g., Peter Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 COLUM. L. REV. 827, 852 (1977).
197. Moreover, when presented with a middle ground, namely the option to find a defendant an appropriate addressee of our criminal sanctions but with diminished responsibility, that option potentially becomes an attractive compromise position for a split jury - it is much easier to hold someone accountable when you do not have to take full responsibility for your decision to do so. Cf. Arenella, supra note 136, at 855 (arguing that because "the diminished responsibility defense may supplant the insanity defense or sidetrack meaningful reform of its exculpatory criteria, the defense does not have a sufficiently beneficial impact on criminal responsibility doctrines to justify its adoption").
198. Positron-emission tomography. See, e.g., Tancredi, supra note 14, at 71. The PET scan is a functional imaging technique (meaning it provides images of the brain in action). It relies on radioisotopes injected into metabolically active cells, such as glucose or water, to measure relative differences in metabolic rates across the brain. Jennifer Kulynych, Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?, 49 STAN. L. REV. 1249, 1255-56 (1997). Those areas showing the higher metabolic rates are presumed to be directly implicated in the given task. Id.
199. Single-photon-emission computed tomography. See, e.g., Tancredi, supra note 14, at 71. The SPECT provides static two and three dimensional computer generated images of the brain, which are based on gamma photon emissions from a patient that has been injected with radioactive tracers. See Robert J. Ott, Emission Tomography, PHYSICS FOR MEDICAL IMAGING APPLICATIONS 277, 277 (Yves Lemoigne et al. eds., 2007).
200. Computerized electroencephalography. See, e.g., Tancredi, supra note 14, at 71. CEEG results are based on signals that detect electrical activity in the brain and translate them into two dimensional computer images. Laurence R. Tancredi & Jonathan D. Brodie, The Brain and Behavior: Limitations in the Legal Use of Functional Magnetic Resonance
201. Electroencephalography. Like the CEEG, an EEG measures electronic activity in the brain event-related potentials. See Tancredi & Brodie, supra note 140, at 272.
202. Functional magnetic resonance imaging. See, e.g., Tancredi, supra note 14, at 71. The fMRI methodology presumes that because nerve cells consume oxygen when active, to the extent that blood is becoming de-oxygenated in particular areas of the brain, that suggests those areas are experiencing higher metabolic rates related to the specific task being studied. Kulynych, supra note 137, at 1256. The de-oxygenation of blood is measured by the magnetic signal variation between oxyhemoglobin and deoxyhemoglobin that can be detected using an MRI scanner. Victoria L. Morgan et al., Comparison of Functional MRI Image Realignment Tools Using a Computer-Generated Phantom, 46 MAGNETIC RESONANCE IN MED. 510, 510 (2001). The fMRI has proven to be an extremely popular methodology over the past two decades in the study of the neural substrates of cognition and emotion. See, e.g., Eric Racine et al., fMRI in the Public Eye, 6 NAT. REV. NEUROSCIENCE 159, 159 (2005). Not only is the fMRI noninvasive, its results can be translated into images of the brain in which regions that appear to experience increased neuronal activity on a given task are highlighted in vivid colors.
203. See Emery & Easton, supra note 14, at 1-2;
204. Tancredi & Brodie, supra note 140, at 273.
205. See David P. McCabe & Alan D. Castel, Seeing is believing: The effect of brain images on judgments of scientific reasoning, 107 COGNITION 343, 344 (2007) (criticizing the lay media for its "tendency to oversimplify and misrepresent conclusions from brain imaging studies" by, among other things, presenting colorful fMRI brain images as definitively "localizing brain areas associated with a wide range of cognitive, emotional and spiritual functions").
206. See id. at 350 ("[W]hile brain images give the appearance of direct measurement of the physical substrate of cognitive processes, techniques like fMRI measure changes in relative oxygenation of blood in regions of the brain," which is an indirect measurement of neuronal activity.);
207. see also Marta Kutas & Anders Dale, Electrical and magnetic readings of mental functions, in COGNITIVE NEUROSCIENCE 214 (Michael D. Rugg ed., 1997) (observing that functional imagining techniques such as fMRI and PET "provide little information about the fine-grained temporal sequence of brain activity").
208. See, e.g., Kulynych, supra note 138, at 1256 (explaining there is "a considerable time delay between the transmission of nerve impulses and any detectable change in blood oxygenation");
209. cf. Editorial, Analyzing Functional Imaging Studies, 4 NAT. NEUROSCIENCE 333 (2001) (observing that while the PET scan has even lower temporal and spatial resolutions than the fMRI, it can be useful in studying particular neurotransmitter systems with radiolabeled compounds as well as studying areas of the brain where the fMRI is unable to detect changes in blood oxygen levels).
210. See Robert V. Harrison et al., Blood Capillary Distribution Correlates with Hemodynamic-based Functional Imaging in Cerebral Cortex, 12 CEREBRAL CORTEX 225, 230-31 (2002) (pointing out that some areas of the brain are more highly vascularized than others, meaning blood flow to those areas are higher, thereby presenting a potentially distorted image of neuronal activity in those areas with a lower capacity for blood flow, which may not even have sufficient blood flow to generate a recordable signal);
211. Nikos K. Logothetis, What we can do and what we cannot do with fMRI, 453 NATURE 869, 877 (2008) ("Claims that ... non-invasive neuroimaging ... should be sufficient to understand brain function and disorders are ... naive and utterly incorrect;" among other things "[t]he fMRI signal cannot easily differentiate between function-specific processing and neuromodulation, between bottom-up and top-down signals, and it may potentially confuse excitation and inhibition.");
212. Nikos Logothetis et al., Neurophysiological investigation of the basis of the fMRI signal, 412 Nature 150, 154 (2001) (demonstrating that blood oxygen levels can be a problematic indicator of neuronal activity since increased blood flow does not always correlate positively with increased neural firing rates, and can in fact be a sign of decreasing neural firing rates);
213. Nikos Logothetis & Brian Wandell, Interpreting the BOLD Signal, 66 ANN. REV. PHYSIOLOGY 735, 747-48 (2004) (reporting lab results in which neurons that had been chemically silenced, and thus incapable of firing, could still produce an fMRI signal, calling into question how good a proxy for neuronal firing blood oxygen levels really are).
214. Indeed, the public's tendency to overvalue scientific data has been well documented. See, e.g., McCabe & Castel supra note 144, at 349-50 (reporting the results of a study demonstrating that people will place greater reliance on a presentation that includes several irrelevant brain scans than the exact same presentation without the irrelevant scans);
215. cf Racine, supra note 142, at 160 (coining the term "neurorealism"). Racine warns that brain scans "can make a phenomenon uncritically real, objective or effective in the eyes of the public despite the enormous complexities of data acquisition and image processing." Id.;
216. see also JOEL PETER EIGEN, UNCONSCIOUS CRIME: MENTAL ABSENCE AND CRIMINAL RESPONSIBILITY IN VICTORIAN LONDON 169-70 (2003) (opining that few disciplines appeal to our desire to find causal explanations for criminal behavior as biology with its tantalizing "prospect of unraveling the complexities of dangerous behavior by assigning them to the workings of neurological substrates");
217. Tancredi & Brodie supra note 140, at 289 (cautioning that although brain scans may have a role to play in criminal actions, there is a real danger that for many, once introduced, the concrete image will "stand[] on its own right[] .... [and] [t]he belief that images necessarily transmit truth detracts from a discussion of the technical and interpretive limitations of neuroimaging").
218. The brain is comprised of seemingly countless parallel processing systems that functionally overlap to some extent. See, e.g., Antoine Bechara et al., Emotion, Decision Making and the Orbitofrontal Cortex, 10 CEREBRAL CORTEX 295, 295 (2000) ("[H]uman reasoning and decision making depend on many levels of neural operation, some of which are conscious and overtly cognitive, some of which are not ...."). The conscious cognitive operations in rum "depend on support processes such as attention, working memory and emotion [and the ability to access] knowledge about situations, actors, options for action and outcomes." Id. Moreover, neural networks that appear to be functionally unrelated may, by virtue of evolutionary processes, be situated in close proximity and interact in ways we do not yet understand. See, e.g., CLARK, supra note 128, at 86 ("[B]iological evolution is liberated by being able to discover efficient but 'messy' or unobvious solutions that may, for example, exploit environmental interactions and feedback loops so complex that they would quickly baffle a human engineer."). Complicating matters even further in terms of isolating certain functions to specific areas of the brain is the plasticity of the human brain.
219. For example, areas of the brain not needed, such as areas associated with vision in a blind person or with controlling limb movements in an amputee, are often taken over by other brain functions. See, e.g., Leeane Carey, Loss of Somatic Sensation, in 2 TEXTBOOK OF NEURAL REPAIR AND REHABILITATION 234-45 (Michael Selzer et al. eds., 2006);
220. Uta Noppeney, The effects of visual deprivation on functional and structural organization of the human brain, 31 NEUROSCENCE BIOBEHAVIOR REV. 1169, 1170 (2007).
221. Churchland & Sejnowski, supra note 13 at 745.
222. Indeed, part of the difficulty in definitively mapping such subjective concepts as "moral cognition," "self-awareness" and "empathy" onto specific neural networks is epistemic. To the extent that we do not know precisely what we mean when we use these concepts beyond our own self experience, mapping them presents some of the same challenges as attempting to identify the neural substrates of consciousness itself. See Emery & Easton, supra note 14, at 12.
223. See Emery & Easton, supra note 14, at 2 (explaining that the higher-order cognitive processes are subject to disruption as a result of impairment to discrete brain regions);
224. Moll, supra note 33, at 302 ("[D]ysfunction at specific nodes of these distributed cortical-subcortical networks is at the root of a variety of social behavior changes.").
225. Emery & Easton, supra note 14, at 1.
226. See, e.g., Adolphs, supra note 34, at 166 ("Higher cortical regions are then involved in the construction of an internal model of the social environment, involving representation of other people, their social relationships with oneself, and the value of one's actions in the context of a social group.");
227. Sarah-Jayne Blakemore, The Social Brain in Adolescence, 9 NATURE REV. NEUROSCIENCE 267, 267 (2008) ("The social brain is defined as the complex network of areas that enable us to recognize others and evaluate their mental states (intentions, desires and beliefs), feelings, enduring dispositions and actions.").
228. See Adolphs, supra note 34, at 166 ("Most structure that have been shown to be important in processing emotions have therefore also turned out to be important for social behavior.").
229. Cf. J. Morris & R. Dolan, Functional Neuroanatomy of Human Emotion, in HUMAN BRAIN FUNCTION 386-87 (R. S. J. Frackowiak et al. ed., 2004) (explaining that until recently the neuroscientific study of the role emotions play in our decision making process has been hindered "by a philosophical dualism that tended to emphasize the separation of affective and cognitive processes").
230. ANTONIO DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN 171, 172 (1994).
231. Id. at 172.
232. Id.
233. Giorgio Coricelli et al., Brain, Emotion and Decision Making: The Paradigmatic Example of Regret, 11 TRENDS COGN. SCI. 258, 263 (2007);
234. see, e.g., R. J. Dolan, The Human Amygdala and Orbital Prefrontal Cortex in Behavioural Regulation, 362 PHIL. TRANSACTIONS OF THE ROYAL SOC'Y B 787, 794 (2007) ("There is now good evidence that ... emotional responses[ ] play a key role in human decision-making.");
235. Jeremy R. Gray, Integration of Emotion and Cognitive Control, 13 CURRENT DIRECTIONS IN PSYCHOL. SCI. 46, 48 (2004) ("At some point of processing, functional specialization is lost and emotion and cognition conjointly and equally contribute to the control of thought and behavior.").
236. See, e.g., DAMASIO, supra note 157, at 173-74 (discussing his version of such a theory, the "somatic-marker hypothesis");
237. Gray, supra note 160, at 47 (hypothesizing that emotions "bias the overall control of behavior to meet situation specific-demands" by, among other things, "prioritizing some cognitive abilities over others.... [and] modulat[ing] cognitive processing in a situation-specific way, dynamically setting processing priorities among conflicting alternatives or trade-offs").
238. Only the information selected for working memory is available for ongoing mental operations. Edward Awh & Edward K. Vogel, The Bouncer in the Brain, 11 NATURE NEUROSCIENCE 5, 5 (2008). Because our working memory capacity is limited to approximately three to four concepts at a time, the efficacy of our cognitive processes is highly dependent on what information is selected to fill the limited slots. Id.
239. See, e.g., Bechara et al., supra note 149, at 305 (hypothesizing that we make our judgments "primarily in terms of their emotional quality");
240. Richard J. Davidson, Darwin and the Neural Bases of Emotion and Affective Style, 1000 ANNALS N.Y. ACAD. SCI. 316,318 (2003) ("Affect-guided planning and anticipation that involves the experience of emotion associated with an anticipated outcome is the hallmark of adaptive, emotion-based decision making.").
241. See Alfredo Ardila, On the Evolutionary Origins of Executive Functions, 68 BRAIN AND COGNITION 94 (2008) (Emotional functions are responsible for coordinating cognition and emotion. "That means, the ability to fulfill basic impulses following socially acceptable strategies.").
242. Jocelyne Bachevalier & Martine L. Meunier, The Neurobiology of Social-Emotional Cognition in Nonhuman Primates, in THE COGNITIVE NEUROSCDENCE OF SOCIAL BEHAVIOR, supra note 14, at 19 (explaining that social cognition requires "not only the ability to understand and reason about the cognitive mental states of other individuals, but also the ability to identify emotional states, intentions, desires, attitudes, etc., and to use this information to guide behavior");
243. see, e.g., William D. Casebeer, Moral Cognition and its Neural Constituents, 4 NATURE REV. NEUROSCIENCE 841, 843 (2003) (the "link between moral decision-making, social cognition and the emotions is becoming clearer").
244. Jennifer S. Beer & Kevin N. Ochsner, Social Cognition: A Multi Level Analysis, 1079 BRAIN RES. 98, 98-99 (2006).
245. David J. Turk et al., Out of Contact, Out of Mind: The Distributed Nature of the Self, 1001 ANNALS N.Y. ACAD. SCI. 65, 68 (2003).
246. See Patricia Churchland, Self-Representation in Nervous Systems, 296 SCI. 308, 309 (2003). Churchland describes self-representational capacities in the following manner: Self-representational capacities include representing the internal milieu and viscera via chemical and neural pathways aimed largely at the brainstem and hypothalamus; representing musculoskeletal structures via the somatic sensory system; representing autobiographical events via medial temporal lobe structures; deferring gratification and controlling impulses via prefrontal lobe and limbic structures; and representing the sequence of actions to take next, as well as representing where one is in space-time and the social order. Id. Joseph LeDoux has convincingly argued that these representational abilities are based on sets of memories stored in the brain at the neuronal level. Because the structure of a memory depends on the synaptic strength between any given neurons, LeDoux reduces the "self to the synaptic level. Joseph LeDoux, The Self: Clues from the Brain, 1001 ANNALS N.Y. ACAD. SCI. 295, 298 (2003) [hereinafter LeDoux, The Self]. Synapses are the tiny spaces between neurons; the stronger the synaptic strength the better the line of communication is between two neurons. Id.;
247. see JOSEPH LEDOUX, SYNAPTIC SELF: HOW OUR BRAINS BECOME WHO WE ARE 72 (2003) [hereinafter LEDOUX, SYNAPTIC SELF] ("The exact role of neural activity, though, is heatedly debated, with the main issue of contention being whether activity, especially activity initiated by environmental stimulation, helps create the mature connections or just selects from the initial set of intrinsically established connections those that will be retained.").
248. See Churchland, supra note 168. Churchland notes: In the brain.... [s]ome networks operate on other representations, yielding meta-representations such as knowing that my need to flee is more urgent than my need for water, knowing that John dislike me, or remembering that John hit me. Neural Networks engaged in integrating such meta-representations are probably the ones most relevant to questions about self-representation. Id. at 309.
249. LeDoux, The Self, supra note 168, at 297;
250. see JOSEPH LEDOUX, THE EMOTIONAL BRAIN: THE MYSTERIOUS UNDERPINNINGS OF EMOTIONAL LIFE 29 (1998);
251. Andy Clark, Soft Selves and Ecological Control, in DISTRIBUTED COGNITION AND THE WILL: INDIVIDUAL VOLITION AND SOCIAL CONTEXT, supra note 22, at 110 (explaining that not just "autonomic" functions such as breathing and walking, "but all kinds of human activities turn out to be partly supported by quasi-independent nonconscious subsystems"). Much research has been done on the role our unconscious memory (implicit memory) plays by studying individuals -with severe amnesia. Over a period of time, such individuals may be taught certain tasks and their efficacy at performing the task will gradually improve with practice. Yet, as far as the patient's conscious self is concerned, each time he encounters the task he is doing so for the first time. See, e.g., Suzanne Corkin, What's New with the Amnesic Patient H.M.?, 3 NATURE REV. NEUROSCIENCE 153, 154 (2002): The dissociation in H.M. between the acquisition of declarative memory and other kinds of learning was initially shown for motor learning. The first experimental demonstration of preserved learning in amnesia was Milner's report that H.M.'s time and error scores decreased within and across three days of training on a mirror-tracing task. H.M. was asked to draw a line between two adjacent outlines of a star-shaped partem, but he could see only his hand, the pencil and the star reflected in the mirror (with left and right reversed). Although no control data were reported, he showed clear skill learning, in marked contrast to the absence of declarative memory for any details of the testing sessions, or even a feeling of familiarity.
252. Indeed, even famed neurologist, V.S. Ramachandran, who has made a career of studying and treating individuals with bizarre brain abnormalities, could not identify a split brain patient based solely on casual interaction. As Dr. Ramachandran relayed in a lecture attended by the author at UC San Diego during the fall of 2007, he ventured up to a lab at Cal Tech to study a split brain patient. He arrived at the lab early and struck up a conversation with what he took to be one of the lab assistants as he waited for his colleague to arrive. Upon his arrival, his colleague introduced him to the split brain patient he had come to study -the man he had mistaken for a lab assistant with whom he had been conversing for the better part of an hour completely unaware that the man's two hemispheres had been severed.
253. Michael S. Gazzaniga, The Split Brain Revisited, in THE HIDDEN MIND, supra note 10, at 29.
254. Id.
255. Id. at 27, 29.
256. David Turk and Michael Gazzaniga replicate similar results in numerous lateralized memory experiments leading them to posit that in the quest to make sense of one's environment, the left hemisphere "searches for logical patterns in the material, even when none are present." Turk et al., supra note 167, at 70-71.
257. Id. at 76.
258. V. S. RAMACHANDRAN & SANDRA BLAKESLEE, PHANTOMS IN THE BRAIN: PROBING THE MYSTERIES OF THE HUMAN MIND 128-31 (1998).
259. Id. at 129.
260. Id. at 128.
261. Id. at 134-36.
262. Id. at 135-36
263. The outer layers of the brain are known as the cerebral cortex. The right parietal cortex is a section of the cerebral cortex that is located towards the back of the brain on the right side. See SOC'Y FOR NEUROSCENCE, BRAIN FACTS: A PRIMER ON THE BRAIN AND NERVOUS SYSTEM 5 (2005).
264. RAMACHANDRAN & BLAKESLEE, supra note 177, at 134-36. Ramachandran cautions he does not mean to suggest the right parietal cortex is solely involved in detecting anomalies in our environment, only that it likely plays an important role. See James Shreeve, The Brain that Misplaced Its Body, DISCOVER MAGAZINE, May 1995, at 82, 85-86.
265. As Andy Clark reminds us by reference to the amazing feats of simple organisms, such as the elaborate arches termites build as the foundation for their nests, "complex problem solving need not always involve the use of heavy-duty individual reasoning engines, and that coordinated activity need not be controlled by a central plan or blueprint, nor by a designated 'leader.'" CLARK, supra note 128, at 109.
266. Blakemore, supra note 154, at 268;
267. Casebeer, supra note 165, at 844.
268. Blakemore, supra note 154, at 268 (internal quotations omitted);
269. see Adolphs, supra note 34, at 171;
270. Andrea S. Heberlein & Ralph Adolphs, Functional Anatomy of Human Social Cognition, in THE COGNITIVE NEUROSCIENCE OF SOCIAL BEHAVIOR, supra note 14, at 173 (elaborating on the term "theory of mind").
271. Casebeer, supra note 165, at 844. One of the classic tests used to assess a child's capacity for theory of mind is to show the child a series of images, the first of which shows Sally playing with a doll. Sally then hides the doll in a basket and leaves the room to go outside to play. Anne, who watched Sally hide the doll, proceeds to move the doll after Sally leaves the room, hiding it in a box. Sally returns to the room and the child is then asked where will Sally look for the doll. A healthy four-year-old child will predict Sally will look for the doll in the basket where she left it. By contrast, even into their teens, autistic children, who have an impaired theory of mind, will predict Sally will look in the box because that is in fact where the doll is; they are unable to place themselves in Sally's shoes and recognize she could not possible know that the doll was in the box as she was out of the room when Anne put the doll there. E.g., Adolphs, supra note 34, at 171 fig. 5a;
272. Christian Keysers & Valeria Gazzola, Towards a Unifying Neural Theory of Social Cognition, 156 PROGRESS IN BRAIN RESEARCH 379, 396 (2006).
273. See, e.g., DAMASIO, supra note 157, at 174 ("[E]ffective personal and social behavior requires individuals to form adequate 'theories' of their own minds and of the minds of others.").
274. MODEL PENAL CODE § 4.01 cmt. 6 (Tent. Draft No. 4, 1955).
275. See Mirella Dapretto, Mirror Neurons and Autism (paper presented at the The New York Academy of Sciences (May 30, 2007)), available at http://www.nyas.org/ebriefreps/main.asp?intSubsectionID=5623#;
276. V. S. Ramachandran & Lindsay M. Oberman, Broken Mirrors: A Theory of Autism, SCI. AM., NOV. 2006, at 63, 64-65 (reporting on studies suggesting that people with autism lack mirror neuron activity in several areas of the brain).
277. See Dapretto, supra note 190 (noting that mirror neurons were first discovered in monkeys in the 1990s). To date, mirror neurons have been located in both the frontal and parietal cortices. See Adolphs, supra note 34, at 172 (citing Vittorio Galese & Alvin Goldman, Mirror neurons and the simulation theory of mind-reading, 2 TRENDS COGNITIVE SCI. 493, 495 (1998) (listing areas of the brain in which researchers have identified mirror neurons));
278. Seymour et al., supra note 21, at 304.
279. Greg Miller, Reflecting on Another's Mind, 308 SCI. 945, 945-46 (2005) (reporting studies demonstrating mirror neurons are linked to the human ability to not only internally represent the movements of others, but also "the intentions, sensations, and emotions of those around us");
280. Christiaan van der Gaag et al., Facial Expressions: What the mirror neuron system can and cannot tell us, 2 SOC. NEUROSCIENCE 179, 180 (2007).
281. Keysers & Gazzola, supra note 187, at 390;
282. see also Adolphs, supra note 34, at 172 ("[W]e can figure out how others are feeling, what they intend and how they are likely to act, in part by putting ourselves in their shoes, so to speak.").
283. See William D. Casebeer & Patricia S. Churchland, The Neural Mechanisms of Moral Cognition: A Multiple-Aspect Approach to Moral Judgment and Decision-Making, 18 BIOLOGY & PHIL. 169, 176 (2003) (hypothesizing that the inner simulation of the other's experience enabled by mirror neurons is likely "an important ingredient in the development of the representational network know as a 'theory of mind'"). Indeed, "What emerges from the resulting neural activity [of the mirror neurons] is a very rich neural description of what has been perceived, adding the richness of our subjective experience of actions, emotions and sensations to the objective visual and auditory description of what has been seen." Keysers & Gazzola, supra note 187, at 390-91.
284. Casebeer, supra note 165, at 844.
285. Beer & Ochsner, supra note 156, at 99.
286. See, e.g., Morris & Dolan, supra note 156, at 383 (explaining that any "account of how the brain mediates emotion and other complex behaviors [such as social cognition] requires an understanding of Junctional connectivity between anatomically segregated brain areas");
287. see also Moll et al., supra note 33, at 302: [M]oral behavior stream requires decoding by sensory systems, activation of basic emotional reactions by anteromedial temporal, brain stem and basal forebrain structures, attachment of moral-emotional relevance by orbital and medial prefrontal structures, and implementation and control of actions by the frontal lobes....[D]ysfunction at specific nodes of these distributed cortical-subcortical networks is at the root of a variety of social behavior changes.
288. Not only are many anatomical structures, neural processing regions, not to mention entire brain areas relevant to social cognition ignored, the foregoing discussion contains no discussion of die critical role chemical neuromodulation plays in both stimulating and inhibiting neural activity. Certainly abnormalities in neuromodu-latory systems, such as the dopaminergic, noradrenergic, serotonergic and GABAergic systems, can significantly diminish an individual's cognitive capacity, but as LeDoux explained, "the key is not the chemicals themselves, but the circuits in which the chemicals act." LeDoux, The Self, supra note 168, at 300.
289. With very limited exceptions, it does not appear the brain is divided into functional modules that exclusively support specific cognitive or affective capabilities. See Casebeer & Churchland, supra note 194, at 188 (characterizing the search for "localization of functions in cortex" as largely a misguided "myth of pre-1980 neuroscience"). This current understanding replaces notions of phrenology, popular in the nineteenth century, which held that the brain is comprised of discrete functional compartments. See JOHN BIGGS, JR., THE GUILTY MIND: PSYCHIATRY AND THE LAW OF HOMICIDE 72, 93 (1955);
290. EIGEN, supra note 148, at 68-72. The "science" of phrenology was developed by Franz Joseph Gall who argued that the brain had discrete organs that were individually responsible for thirty two character traits such as "dignity," "caution," "faith," "hope," "humor," "concentrativeness," "firmness," "executiveness," and "sexamity," among others, and that the size of these organs could be measured by the size of the bumps on a person's head. See, e.g., Stacey A. Tovino, Imaging Body Structure and Mapping Brain Function: A Historical Approach, 33 AM. J.L. & MED. 193, 196-97 (2007). The specified traits noted above were taken from a copy of a brochure distributed by the Phrenology Company in the United States, which was printed during the first half of the twentieth century, and is on file with the author. Although phrenology has long since been discredited, its influence is still with us today.
291. For example, an insanity defense that presupposes an individual's cognitive abilities are unimpaired by an affective disorder continues to reflect a temptation to divide the brain into discrete functional units. Cf. BIGGS, supra, at 72, 93.
292. See, e.g., Earl K. Miller & Jonathan D. Wallis, The Prefrontal Cortex and Executive Brain Functions, in FUNDAMENTAL NEUROSCIENCE 1353, 1358 (Larry R. Squire et al. eds., 3d ed. 2003). It is the PFC's connectivity, both internally and with other brain structures, that is conceivably one of the key factors distinguishing the human brain from that of its closest ancestors. See Ardila, supra note 164, at 96.
293. See, e.g., Casebeer, supra note 165, at 843.
294. See, e.g., Ardila, supra note 164, at 92-93;
295. Casebeer, supra note 165, at 843;
296. Miller & Wallis, supra note 200, at 1361;
297. Moll et al., supra note 33, at 303.
298. See, e.g., Casebeer, supra note 165, at 843;
299. Miller & Wallis, supra note 200, at 1361, 1366.
300. See, e.g., Casebeer, supra note 165, at 843;
301. Davidson, supra note 163, at 318.
302. See, e.g., Casebeer, supra note 165, at 843.
303. See, e.g., Ardila, supra note 164, at 2;
304. Davidson, supra note 163, at 318;
305. Miller & Wallis, supra note 200, at 1362, 1373-74.
306. See, e.g., Richard J. Davidson et al., Emotion, Plasticity, Context, and Regulation: Perspectives from Affective Neuroscience, 126 PSYCHOL. BULL. 890, 904 (2000);
307. Moll et al., supra note 33, at 303.
308. See, e.g., Patricia Churchland, Moral Decision-Making and the Brain, in NEUROETHICS: DEFINING THE ISSUES IN THEORY, PRACTICE, AND POLICY 3, 12-13 (Judy Illes, ed., 2005);
309. Miller &' Wallis, supra note 200, at 1361;
310. Moll et al., supra note 33, at 303;
311. Raine, supra note 71, at 38.
312. See, e.g., Heberlein & Adolphs, supra note 186, at 183;
313. Moll et al., supra note 33, at 303.
314. See, e.g., Ardila, supra note 164, at 94;
315. Miller & Wallis, supra note 200, at 1361.
316. See, e.g., Ardila, supra note 164, at 93;
317. Moll et al., supra note 33, at 303.
318. See, e. g., Raine, supra note 71, at 38;
319. Sapolsky, supra note 17, at 235.
320. Strawson, supra note 30, at 66.
321. See, e.g., Dolan, supra note 160, at 796;
322. Heberlein & Adolphs, supra note 186, at 183;
323. Moll et al., supra note 33, at 303;
324. cf. Casebeer & Churchland, supra note 194, at 180 (observing that when the OFC is damaged the "complex cognitive processes involved in social learning and social cognition are disconnected from" emotions).
325. See, e.g., Adolphs, supra note 34, at 173;
326. Bechara et al., supra note 149, at 306;
327. Casebeer, supra note 165, at 843;
328. Moll et al., supra note 33, at 301.
329. See, e.g., Adolphs, supra note 34, at 170;
330. Davidson, supra note 163, at 319.
331. See, e.g., Coricelli et al., supra note 160, at 263;
332. Dolan, supra note 160, at 796.
333. See, e.g., Coricelli et al., supra note 160, at 263;
334. Dolan, supra note 160, at 796;
335. Moll et al., supra note 33, at 303;
336. Morris & Dolan, supra note 156, at 379.
337. See, e.g., Ardila, supra note 164, at 3;
338. Bechara et al., supra note 149, at 295;
339. Moll et al., supra note 33, at 303;
340. Morris & Dolan, supra note 156, at 379. As devastating as OFC damage can be to an individual's capacity to engage in the community's moral discourse and conform his conduct in accordance with its minimal moral and social norms, it can be difficult for a casual observer to detect at any given snapshot in time that an individual suffers from OFC damage. See Miller & Wallis, supra note 200, at 1366. Indeed, individuals who suffer OFC damage in adulthood generally "have normal learning and memory, language and attention" notwithstanding "pathological impairments in [their] decision-making process which seriously compromise the efficiency of everyday-life decisions." Bechara et al., supra note 149, at 295, 305;
341. see Jeffrey M. Burns & Russell H. Swerdlow, Right Orbitofrontal Tumor with Pedophilia Symptom and Constructional Apraxia Sign, 60 ARCHIVES NEUROLOGY 437, 440 (2003) (warning that signs of OFC damage can be so subtle that physicians fail to detect even large OFC "lesions in patients with acquired sociopathy if [they are] not appropriately vigilant").
342. Our appreciation for the role of the OFC dates as far back as the mid-nineteenth century. In 1848, Phineas Gage suffered severe damage to his orbital frontal cortex during a construction accident in which a tamping iron blew through his orbital frontal cortex. Before the accident, Gage was "a reliable, well-liked, respected, and organized individual." Adrian Raine & Yaling Yang, The Neuroanatomical Bases of Psychopathy, in HANDBOOK OF PSYCHOPATHY 278, 279 (Christopher J. Patrick ed., 2006). Following the accident, Gage was "garrulous, sexually promiscuous, reckless, unreliable, and irresponsible - essentially a pseudo-psychopathic individual." Id. He suddenly lacked the ability to appreciate the future consequences of his decisions and spent the rest of his life homeless and penniless. JOHN FLEISCHMAN, PHINEAS GAGE: A GRUESOME BUT TRUE STORY ABOUT BRAIN SCIENCE 49-50, 53 (2004);
343. see Sasso, supra note 56, at 793.
344. Bums & Swerdlow, supra note 219, at 437.
345. Id.
346. Id. at 438.
347. Id.
348. Id. at 439.
349. Id. at 440.
350. While the exact scope of the limbic system is subject to debate, it includes the cingulate cortex and a variety of highly interconnected subcortical structures, such as the amygdala and the hippocampus. See, e.g., Casebeer, supra note 165, at 843-44.
351. See, e.g., Casebeer & Churchland, supra note 194, at 181;
352. Morris & Dolan, supra note 156, at 377-78. Although commonly referred to as if it was one homogenous structure, each hemisphere contains an amygdala, and, in primates, each amygdala is comprised of at least thirteen anatomically and functionally distinct subnuclei. Morris & Dolan, supra note 156, at 367.
353. See, e.g., Antoine Bechara et al., Role of the Amygdala in Decision-Making, 985 ANNALS N.Y. ACAD. SCI. 356, 367 (2003) ("Numerous ... studies have shown that the amygdala is involved in complex cognitive and behavioral functions ... .");
354. Morris & Dolan, supra note 156, at 379;
355. Elisabeth A. Murray, The Amygdala, Reward and Emotion, 11 TRENDS COGNITIVE SCI. 489, 496 (2007) (reporting on studies suggesting "the amygdala mediates not only unconscious biases and preferences about objects, but also similar feelings about abstractions, such as ideas, concepts and beliefs, and also dreads, hopes and dreams").
356. See, e.g., Morris & Dolan, supra note 156, at 379;
357. cf. Adolphs, supra note 34, at 169 (hypothesizing that the amygdala may also participate in the process of assessing a stimuli "within a given context and goal").
358. Morris & Dolan, supra note 156, at 367.
359. See, e.g., Ralph Adolphs, Is the Human Amygdala Specialized for Processing Social Information?, 985 ANNALS N.Y. ACAD. SCI. 326, 337 (2003).
360. See, e.g., Adolphs, supra note 34, at 168;
361. Casebeer & Churchland, supra note 194, at 182;
362. Murray, supra note 229, at 489.
363. See, e.g., Adolphs, supra note 232, at 331.
364. See, e.g., Casebeer, supra note 165, at 844;
365. Morris & Dolan, supra note 161, at 369-70.
366. See, e.g., Howard B. Eichenbaum, Learning and Memory: Brain Systems, in FUNDAMENTAL NEURO-SCIENCE 1299, 1299, 1302 (Larry R. Squire et al. eds., 2002);
367. SOCIETY FOR NEUROSCIENCE, supra note 182 at 20-21. These newly formed memories are eventually transferred elsewhere in the brain for long-term storage. See, e.g., Eichenbaum, supra, at 1303-04.
368. Casebeer, supra note 165, at 844.
369. See, e.g., Davidson et al., supra note 207, at 901-02.
370. See, e.g., Morris & Dolan, supra note 156, at 381 (observing that the ACC is well connected to "evaluate the behavioural relevance of stimuli and influence autonomic and motor responses").
371. See, e.g., Casebeer, supra note 165, at 844;
372. Morris & Dolan, supra note 156, at 381.
373. See, e.g., Moll et al., supra note 33, at 304.
374. See, e.g., Casebeer, supra note 165, at 844;
375. Moll et al., supra note 33, at 304;
376. Morris & Dolan, supra note 156, at 381.
377. See, e.g., Casebeer, supra note 165, at 844. Likewise, the insula cortex has been implicated in the acquisition of inhibitory avoidance behavior. Morris & Dolan, supra note 156, at 380.
378. See, e.g., Casebeer, supra note 165, at 844;
379. Morris & Dolan, supra note 156, at 380-81.
380. See, e.g., Keysers & Gazzola, supra note 187, at 386;
381. Morris & Dolan, supra note 156, at 381.
382. See, e.g., Morris & Dolan, supra note 156, at 381.
383. Robinson, supra note 47, at 212-13.
384. Richard M. Restak, See No Evil: The Neurological Defense Would Blame Violence on the Damaged Brain, 32 SCI. 16, 20 (1992).