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Article Excerpt
While academics debate whether advances in the neurosciences eviscerate notions of guilt and innocence precipitating the demise of the criminal justice system as we know it, in the courtroom practitioners on both sides are busy exploiting the novelty and ambiguities of emerging research to advance arguments the nascent data cannot now, and may never, support. This Article contends that the significance of the neurosciences to the criminal law can only be assessed in the context of a given theory of punishment. In other words, assumptions about what justifies who and how much we punish and, indeed, the very practice of punishment itself, must be made explicit. Yet, this essential threshold analysis is all but missing from the debate. This Article concludes that advances in the neurosciences have a limited but potentially critical role to play in the criminal courtroom. It reaches that conclusion, however, only after first articulating a mixed theory of punishment with expressionistic and retributivist elements that comports with our current criminal justice practices and has the capacity to accommodate emerging scientific knowledge.
INTRODUCTION I. TOWARDS AN EXPRESSIVE THEORY OF PUNISHMENT A. Insights from Evolutionary Biology B. Emile Durkheim and the Social Function of Punishment C. To Whom May Punishment Be Applied? D. How Severely May We Punish? 1. Defining Desert 2. The Problem with Deontological Desert II. THE EXPRESSIVE THEORY WITHSTANDS THE NEUROSCIENTIFIC CHALLENGE TO ULTIMATE RESPONSIBILITY A. Normative Free Will B. Alternative Possibilities C. Source (In)compatibilism D. Folk Intuitions of Criminal Responsibility III. DEFINING NORMATIVE COMPETENCE: WHAT CAN THE NEUROSCIENCES TELL US? A. Limitations B. The Neurobiology of Social Cognition 1. Role of Emotions in Human Cognition 2. General Capacities Required for Social Cognition a. Self-Representation b. Perception of Others c. Social Knowledge 3. The Neural Anatomy of Social Cognition a. Prefrontal Cortex b. Amygdala c. Hippocampus d. Anterior Cingulate and the Insula Cortex CONCLUSION
INTRODUCTION
It seems that every other day the popular media is heralding what it perceives to be the latest neurological findings, which it invariably distills down to a story about mind-reading or biological determinism. In just the past two years, the cover of Time proclaimed "Science is Discovering" what makes us good and evil; (1) NBC's Today Show asked "Are Kids Born to Bully?"; (2) the CBS newsmagazine, 60 Minutes, suggested that in limited circumstances neuroscientists already have the ability to know what we are thinking; (3) Newsweek threw caution to the wind and boldly asserted "Mind Reading is Now Possible" (4) and, not to be outdone, a few weeks later Nature magazine summarized the findings of a study from U.C. Berkeley in an article headlined "Mind-Reading with a Brain Scan." (5)
The potential implications of these and other "pop" neuroscience reports have not been lost on the legal field. In March 2007, Jeffrey Rosen's "the Trials of Neurolaw" was splashed on the front page of The New York Times Magazine. (6) A year later, even the California Bar Journal entered the fray with a cover story entitled "Bridging the Worlds of Neuroscience and the Law." (7) And by donating ten million dollars in October 2007 to fund the newly created Law and Neuroscience Project, (8) the John D. and Catherine T. MacArthur Foundation lent its imprimatur to the interdisciplinary study of law and neuroscience.
With all the flurry surrounding recent neuroscientific advances it is important to step back and assess what we actually know about the human brain or are likely to learn in the not too distant future. First, scientists do not have the technology or a sufficiently sophisticated understanding of the human brain to meaningfully read minds, nor are they close to being able to do so. Second, while the debate over nature versus nurture rages on, it seems safe to say that our biology results from a complex interaction between our genetic inheritance and our environment that we are only at the nascent stages of exploring. (9)
More importantly, neither the neurosciences, nor any other science, can provide a causal explanation for crime. Legal responsibility is a normative judgment; as a society we decide what conduct when engaged under what circumstances should be prohibited and what minimal capacities an individual must possess at the time he engages in the proscribed conduct such that he can be condemned and punished for his actions.
That does not mean, however, that our advancing neuroscientific knowledge does not have profound implications for the criminal law, both at the definitional stage as well as in the individual courtroom. By shedding light on the neural substrates of those capacities that we define as relevant to assessing an individual's blameworthiness, recent neurological research touches the heart of the criminal law. (10) We must, therefore, clearly identify those capacities that are relevant to criminal responsibility before we can properly evaluate the significance of the neurosciences to our criminal justice system. The relevant capacities are, in turn, informed by the theory of punishment that provides the moral justification for publicly condemning individuals and subjecting them to state imposed sanctions that typically result in a significant loss of individual liberty.
Borrowing from Emile Durkheim, I contend that punishment has an important expressive function. We punish individuals who we perceive as possessing certain minimal capacities, capacities we recognize in ourselves, to conform their conduct in accordance with certain minimal moral and social norms, but who fail to do so. (11) By punishing the offender, the community redefines the scope and depth of its commitment to these norms. Augmenting Durkheim's theory, I further contend that only an individual who possesses those minimal capacities to qualify as a moral agent (however the community defines those capacities) is capable of engaging in conduct that rejects the community's moral norms. Only when its norms have been rejected is a community justified in imposing punishment. (12)
It is in understanding and identifying those capacities that have bearing on an individual's status as a moral agent where I believe the neurosciences can be potentially informative. Admittedly, we are a long way from understanding the cognitive and affective neural processing systems underlying human behavior. (13) Indeed, most of what we now know about the functional brain has been discovered in the last few decades. That said, scientists have made tremendous strides identifying the neural processing systems, along with some of their constituent brain structures, that sustain an individual's capacity to, among other things: empathize, reflect upon the self as a member of a social community with certain duties and responsibilities, identify socially appropriate courses of actions and conform one's conduct accordingly. (14)
In attempting to evaluate the relevance of the neurosciences to the criminal law, this Article follows the structure outlined above. It begins by sketching a theory of punishment and then examines the ability of that theory to withstand potential challenges raised by emerging neuroscientific research. The Article concludes with a brief exploration of the implications of the neurosciences in defining and identifying those individuals who qualify as appropriate addressees of criminal sanctions.
Specifically, this Article is divided into three Parts. Part I sketches a mixed theory of punishment that is informed by the expressive function of punishment in the Durkheimian tradition. Part II examines the challenge to our notions of free will presented by our expanding neuroscientific knowledge, ultimately concluding that while such research may call into question metaphysical free will, we possess sufficient freedom of will to sustain our criminal justice practices assuming they are motivated by an expressive theory of punishment. Part m examines recent neuroscientific developments and their potential implications in understanding those capacities relevant to criminal responsibility under the expressive theory I have outlined. After defining the limited scope within which such evidence may be relevant and recognizing our current technological constraints, Part III explores the importance of emotions to human cognition generally before turning to a discussion of the specific capacities necessary for social cognition. By emphasizing the distributed nature of human cognition, with its complex integration of multiple neural processing systems, this concluding Part hopes to leave the reader with a greater appreciation of the potential relevance of contemporary neuroscientific research to the our criminal justice system and how such findings may be assimilated into an expressive theory of punishment.
I. TOWARDS AN EXPRESSIVE THEORY OF PUNISHMENT
In assessing the relevance of the neurosciences to the criminal law we must confront a host of challenging philosophical questions. For example: To what extent does our criminal justice system rest on an assumption that the healthy adult has free will, and do recent advances in the neurosciences undermine our conception of free will in relevant ways? To what extent must we be responsible for shaping our own desires, beliefs and values before we can be held accountable under the law for our actions? If all of our actions and thoughts are caused by antecedent events, which are in turn the product of an infinite causal chain of events, should we be held responsible for them? Are our criminal justice practices sustained merely by illusions of agency that we do not in fact possess? Is punishment, therefore, immoral? Does the criminal law need to abandon the concepts of guilt and punishment? Should those who transgress the minimal moral norms embodied in our criminal laws be treated simply as objects of social policy to be managed in a manner that best serves the interests of society as a whole? (15) The answers to these and related questions hinge primarily on one's theory of criminal law and the justification for punishment.
H.L.A. Hart cautioned that before we can "assess the extent to which the whole institution [of punishment] has been eroded by, or needs to be adapted to, new beliefs about the human mind," we must answer three fundamental questions: (16)
* What justifies our general practice of punishment?;
* To whom may punishment be applied?; and
* How severely may we punish?
All too often, in a rush to stake their claim in the heated debate over the implications of neuroscientific advances on the criminal law and the role neuroscientific evidence should play in the courtroom, (17) scholars ignore Hart's threshold questions. The debate, instead, has tended to be framed and informed by general retributivist notions of punishment, (18) the details of which are left unexplored and unchallenged.
This Part attempts to address that gap by beginning with an analysis of the threshold assumptions about why we punish along the lines suggested by Hart (albeit reaching very different conclusions). Before turning to Hart's specific questions, I attempt to contextualize the analysis by first exploring what the evolutionary sciences can tell us about ourselves as social beings. This move is intended to place our punishment practices within the broader framework of the social interactions typical of some of our closest biological relatives. I invoke evolutionary biology for the modest task of examining what motivates the practice of punishment in large social groups. While such context can provide valuable explanatory insights, it can never serve to justify our practices.; for that, I turn to Hart's specific questions and begin to outline a theory that attempts to justify why, who and how we punish a theory that I will demonstrate in Part II has the advantage of not only tracking lay intuitions of criminal justice, but also withstanding the challenge to free will potentially presented by emerging neuroscientific knowledge.
A. Insights from Evolutionary Biology
Punishment is not a uniquely human invention. (19) Animals living in social groups impose various forms of punishments on those in their group who violate certain communal expectations. (20) What is relatively unique to humans, although not exclusively so, is the practice of altruistic punishment. (21) Altruistic punishment is defined as the punishment of an offender in which the punisher bears a cost in extracting and enforcing the punishment that he will likely never directly recover. The punisher nevertheless engages in the act of punishment, which serves to benefit the greater good of the social group. (22) Altruistic punishment, therefore, appears to be an evolutionary strategy developed to promote and preserve cooperation in large complex social groups. (23)
To help illuminate the critical role the practice of altruistic punishment plays in modern society, J. L. Mackie provides a simple prisoner dilemma-type hypothetical in which a society is comprised of three types of members: Cheaters, Suckers and Grudgers. (24) The society grows and prospers in the long-term when it is able to benefit from synergies resulting from the positive mutual cooperation of its members. In the short term, however, members can achieve greater rewards by pursing individualistic strategies at the expense of the group.
Assume in this society that grooming is essential to survival and cannot be successfully accomplished without the help of another. While in smaller social groups it would be reasonable to assume kin groomed other kin, thereby ensuring survival of their genes, the society in question has grown sufficiently large and complex such that it is no longer practical for kin to groom each other. Each member of the social group must depend on strangers to receive the essential grooming. The Cheaters accept grooming from others but refuse to reciprocate. The Suckers, by contrast, will groom whenever asked. In a society where there are only Cheaters and Suckers, it is only a matter of time before the Cheaters "win" by eliminating all the Suckers. Of course, at that point the Cheaters will die off because there is no longer anyone to exploit, or more realistically, the society will contract into small kin based groups, losing the benefits of the larger social networks.
If, however, the society also includes Grudgers, the Cheaters' ultimate dominance is no longer ensured. Grudgers will groom anyone--with one critical exception: if a member does not reciprocate, unlike the Suckers, the offended Grudger will punish the Cheater by ostracizing him from the group. The Grudger engages in this behavior even though he will likely never encounter the Cheater again, and thus bears the cost of inflicting punishment without directly benefiting. (25) The society as a whole, however, benefits in that the act of punishment reassures its members of their mutual and ongoing commitment to certain fundamental cooperative norms of behavior. As members of the social group become more confident that collective action will be taken against those who violate core behavioral norms, they become increasingly willing to engage in cooperative behaviors, including the punishment of offenders.
What motivates the Grudgers to engage in the act of punishing offenders at a personal cost to themselves? (26) It seems likely the motivation necessary to sustain the social practice of altruistic punishment can be traced in part to a human capacity to experience non-moral emotions such as anger, fear, sadness and disgust. (27) Specifically, such primitive emotions appear capable of motivating behavior that might violate one's immediate self-interest at the same time that it promotes long-term social advantages for the group. (28) These basic emotions, presumably, evolved into a set of emotions we recognize today as the moral emotions of guilt, shame, resentment and indignation, (29) i.e., a subset of Peter Strawson's reactive attitudes that derive from our "involvement [and] participation with others in inter-personal human relationships." (30)
Because, for example, we have the capacity to experience vicarious reactive attitudes when someone expresses ill will to another, we are motivated to demand a "reasonable degree of goodwill or regard, on the part of others, not simply towards oneself, but towards all those on whose behalf moral indignation may be felt." (31) And, because we are so motivated, we are willing to take collective action against a member of the community who violates the community's shared cooperative norms of behavior embodied in its criminal laws, even where the direct costs of so doing outweighs the immediate benefits gained by any individual member of the community. It is this motivation to take action against the Cheaters that ultimately distinguishes the Grudgers from the Suckers, and enables them (us) to co-exist in the large, mutually beneficial social networks we recognize as modern society. (32) Perhaps this is indeed what Strawson meant when he described the reactive attitudes as the "common roots in our human nature and our membership of human communities." (33)
The evolution of the moral emotions sustaining our reactive attitudes likely depended in no small part on the human acquisition of language and the robust development of social and cultural norms enabled by the acquisition of language. (34) Language permitted the collective formulation and communication of social and cultural norms, and thus the development of pro-social moral emotions such as guilt and indignation. Language was also essential for communicating to distributed networks of individuals within a large social group both the identity of offending members as well as what actions were taken against them to reaffirm the cooperative values upon which the success of the social group rested. (35) Additionally, the acquisition of language was essential to the development of our meta-cognitive abilities. Without the capacity for self-reflection that language enables, humans would not be able to conceptualize themselves as situated within larger social groups, which the ability to experience moral emotions demands. (36)
Supported by the analytic abilities language enables, our moral discourse has become progressively robust and nuanced. With this increasing sophistication, however, it is easy to lose sight of the critical role the development of moral emotions played in our evolutionary history. Although, as the primatologist Frans de Waal observed,
[E]verything is more explicit in human society because of our ability to formulate rules of conduct, discuss them among ourselves, and write about them in exquisite detail.... [I]t is safe to assume that the actions of our ancestors were guided by gratitude, obligation, retribution, and indignation long before they developed enough language capacity for moral discourse. (37)
In other words, moral emotions likely play a central role in motivating the practice of altruistic punishment and thereby sustaining the cooperative norms of behavior that make possible modern human society. (38)
Motivation to punish, however, must be distinguished from justifications for punishment--"motivation itself does not make the punishment any more or less just." (39) To begin to sketch a justification for punishment, I turn first to the work of Emile Durkheim.
B. Emile Durkheim and the Social Function of Punishment
Reflecting upon the inherently communicative role of altruistic punishment, what begins to emerge is an expressive theory of punishment in the Durkheimian tradition. (40) Durkheim wrote of the "collective or common consciousness," (41) which can be roughly analogized to the cultural and social norms the Grudgers developed, adopted and enforced that sustained their long-term survival. Certainly, to the extent Durkheim defined the collective consciousness as the "totality of beliefs and sentiments common to the average members of a society," (42) it is tempting to dismiss his collective consciousness as hopelessly naive (and potentially ominous) in the complexity of today's multicultural post modern society. (43) The collective consciousness I am concerned with, however, does not require, nor even expect, a commonality of beliefs and sentiments across the spectrum of our society. (44) Rather, I refer to the collective consciousness we all possess as members of a large social group whose success depends on its members sharing a core set of cooperative norms of behavior that have proven evolutionarily salient over the course of human history. Although overstating the concept of the collective conscience, even Durkheim recognized it was "diffused over society as a whole," distinguished by "specific characteristics that make it a distinctive reality." (45)
The "specific characteristics" referenced by Durkheim are conceivably those that sustain our core cooperative norms of behavior, including "the motivation to altruistically punish according to common standards of fairness." (46) Indeed, it is these shared internalized social and moral norms, and not the threat of criminal sanctions, that motivates the vast majority of us to refrain from engaging in perversely anti-social behaviors such as stealing and murder. (47) When an individual engages in conduct that rejects those core behavioral norms, he initiates a moral dialogue with the community. (48) A response by the community is demanded to demonstrate its ongoing commitment to the rejected norms--punishment is the community's response. (49)
"The law that has been violated must somehow bear witness that despite appearances it remains always itself, that it has lost none of its force or authority despite the act that repudiated it." (50) Through enforcement of its criminal laws, the community continually redefines the depth and scope of its commitment to the moral norms embodied in those laws. (51) Punishment, therefore, can be justified as the moral language we engage in with each other and, to a lesser degree, with the offender that sustains the cooperative norms of behavior binding the community together. (52)
C. To Whom May Punishment Be Applied?
While positing that the primary justification for why we punish may be found in the expressive function of punishment, I do not intend to eliminate desert as a distributive principle of justice in terms who and how much to punish. Indeed, the efficacy of our criminal practices as a moral dialogue capable of sustaining core cooperative norms of behavior depends upon its participants' perception that the distribution of liability and the imposition of punishment is consistent with their "shared intuitions of justice." (53) In other words, for the dialogue to resonate within the community, its members must view the offender as deserving the punishment he received in response to his actions rejecting the community's core moral and social norms.
Notably, the collective consciousness, as I have defined it, is only violated when an individual rejects through his actions the minimal moral and social norms codified in the community's criminal laws. An individual does not have the capacity to reject something he was not in a position to accept. (54) It follows, therefore, that for an individual to reject a tenant of the collective consciousness, at the time of his action he must have possessed the capacity to be a full member of the community and participate in its moral discourse. (55) In other words, he must have had the capacity to appreciate the community's moral norms, be motivated by them for moral reasons and possess the ability to consistently conform his conduct in accordance with them. (56) He deserves punishment for his failure to conform his conduct accordingly, assuming he had the requisite capacity and opportunity to do so.
To be sure, the safety and well-being of the general public can be endangered by the actions of someone who does not possess the requisite capacities to be a member of the community, but the actions of an individual lacking such capacities cannot constitute a rejection of the community's core values. Where there has been no such rejection, there is no need for the community to collectively reaffirm its commitment to said values by condemning and punishing the offender. (57) Nor should the community be motivated to so: "The reactive attitudes are incipiently forms of communication, which make sense only on the assumption that the other can comprehend the message." (58) By expressing reactive attitudes such as resentment and indignation towards another, we are not only expressing our disappointment in the individual's failure to live up to our expectations, but, more importantly, we are making a demand on the individual to repent and reform in an effort to rejoin the society whose core values he has eschewed. This is not a demand we can fairly make of someone who lacks the capacity to engage in the community's moral dialogue.
D. How Severely May We Punish?
The foregoing discussion was clearly animated by fundamental retributivist principles, i.e., to qualify as an appropriate addressee of our criminal sanctions an individual must possess "a form of normative competence" (59) and a fair opportunity to conform his conduct to the law. That begs the question: what work is an expressive theory of punishment, such as the one I propose, doing that is not accomplished by a purely retributive theory? Is not, as Michael Davis contends, the "moral condemnation that just punishment necessarily expresses ... a mere byproduct of desert (not something extrinsic to it)"? (60) By giving an individual his "just deserts" through the infliction of punishment the community necessarily reaffirms its commitment to the moral and social values rejected by the offender. An expressive theory of punishment, therefore, seems merely superfluous.
1. Defining Desert
In addressing this challenge, it is important to recognize there are different conceptions of "desert"; I will advocate a conception consistent with the expressive function of punishment I am exploring.
Paul Robinson has succinctly defined three general categories of desert: vengeful, deontological and empirical. (61) The vengeful conception of desert focuses on the harm done and seeks to punish the individual in an amount and manner roughly equivalent to that harm. Because vengeful desert does not ask whether the perpetrator had the requisite capacity to qualify as a moral agent, it is not relevant to the theory of punishment I am sketching. By contrast, both the deontological and empirical conceptions focus on the moral blameworthiness of the offender as the yardstick by which punishment is measured within a system in which the community has previously agreed upon the harshest punishment it is willing to impose on its most culpable offenders. (62) Although both the deontological and empirical conceptions assess the degree of punishment based on an offender's moral culpability, there is a critical distinction between the two: deontological desert "transcends the particular people and situation at hand and embodies a set of principles derived from fundamental values" (63) whereas empirical desert concerns itself with giving "the amount of punishment called for under the principles that track the community's intuitions of justice--it is the community's perception of the criminal justice system's moral authority that counts, not the transcendent truth of the punishment the offender deserves." (64)
Under both deontological and empirical conceptions, therefore, the offender is given what he "deserves," but how desert is measured is fundamentally different. The former sounds in the metaphysics of "ultimate responsibility" and the latter in our "shared intuitions of justice," (65) which, in terms of punishment, I contend can be best understood as our need to reaffirm the collective consciousness when one of its core moral or social norms has been rejected. The capacities and abilities an individual must possess before he can be fairly subjected to criminal sanctions depend upon whether the degree of punishment is measured by deontological or empirical desert. The following discussion assesses the differences between these two conceptions of desert and the implications that seemingly arise from those differences.
As will become clear, I favor a conception of desert akin to Robinson's empirical desert. That said, I believe an expressive theory of punishment such as I have sketched is doing important work; it provides the conceptual framework for understanding desert. Specifically, an expressive theory highlights the social function of punishment that informs both why we engage in the practice and what conduct is appropriately subject to criminal sanctions. The assessment of who deserves punishment, and how much, cannot be unmoored in principle from this analytical framework, and thus should likewise be assessed within the framework of the social function of punishment.
This is not to suggest that to the extent a community's criminal laws derive from its collective conscience they are morally beyond reproach. The past two hundred years alone are replete with examples of societies that lost their moral com-, passes. (66) Nor do I mean to suggest that a community's criminal laws are wholly subservient to its collective consciousness. There are important policy considerations, such as procedural fairness, ex ante notification of criminal laws and limitations on government power, which may not be embodied in a conception of empirical desert informed by the community's collective consciousness. (67) To the extent such policy considerations represent a significant deviation from the community's intuitions of justice, however, they threaten to undermine the criminal law's moral credibility as perceived by the members of the community. (68)
2. The Problem with Deontological Desert
Justifying punishment on the basis of a deontological conception of desert, Michael Moore opined that "implicit in the Biblical injunction ['Vengeance is mine, saith the Lord'] is a promise that retribution will be exacted. For those like myself who are not theists, that cleansing function must be performed by the state, not God." (69) Our legal institutions, however, are not now, nor will they ever be,...
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