Barrock Lecture Explores Collision Between Criminal Law and Neuroscience

Posted on Categories Criminal Law & Process, Marquette Law School, Public

Morse“Be of good cheer; everything is going to be all right.” With these words last week, Stephen Morse sought to reassure his audience at Marquette Law School that advances in neuroscience will not ultimately upset traditional understandings of criminal responsibility. Morse, a professor at the University of Pennsylvania, was in town to deliver Marquette’s annual Barrock Lecture on Criminal Law. A podcast of Morse’s engaging presentation is here.

Neuroscience is increasingly giving us the ability to understand — and even, in the form of colorful MRI images, to see — some of the specific biological processes in the brain that produce thought and action. This suggests the possibility of “my brain made me do it” defenses, especially in cases involving defendants who have demonstrable neurological abnormalities. If a particular aspect of a defendant’s brain can be identified as a “but for” cause of his criminal behavior, then should not that provide an excuse?

Morse argues that this defense proves too much.  

The problem is that all criminal conduct can, in principle, be traced to biological processes in the defendant’s brain. All defendants can plausibly say, “My brain made me do it.”

Causation, however, is not the same as excuse. Otherwise, there would be no blame (or credit) that could be given for any action, since all actions are caused (in a “but for” sense) by something.

Responsibility, Morse argues, actually turns on whether the defendant had the ability to be guided by reason.

He gave the example of a middle-aged defendant who, as a result of a brain tumor, suddenly developed a sexual interest in children and molested his step-daughter. His interest in children does not appear to be anything that he consciously chose, but, Morse observes, the same could probably be said of all pedophiles. The responsibility question is not about the source of improper desires, but the capacity to resist acting on such desires. If neurological defects leave that capacity intact, then the defendant who acts on such a desire can be held criminally responsible for doing so.

Morse thus contends that judges and juries should focus less on brain scans than on the defendant’s actual conduct and whether it demonstrates a capacity for self-control. This is very much in line with what judges and juries have done for a long time.

Although cutting-edge neuroscience may have little relevance in most cases for threshold questions about whether the defendant can be held criminally responsible for his conduct, Morse acknowledges that there may be greater relevance for sentencing purposes. The child-molester with the tumor, for instance, may be viewed as less blameworthy — even if still responsible — if we appreciate the nature of his urges. Moreover, the fact that his criminal propensities can be treated in a very effective manner through surgery may also affect how we view his need for incapacitation.

Cross posted at Life Sentences Blog.

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