[This download includes the table of contents and chapter 1.] -/- When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant (...) on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? The authors argue that evidence from neuroscience and the other cognitive sciences can illuminate the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility. (shrink)

In this paper we attempt to reply to the thoughtful comments made on our book, Responsible Brains, by a stellar group of scholars. Our reply focuses on two topics discussed in the commenting papers: first, the issue of responsibility for negligent behavior; and second, the broad claim that facts about brain function are normatively inert. In response to worries that our theory lacks normative implications, we will concentrate on an area where our theory has clear relevance to law and legal (...) policy: juvenile responsibility. (shrink)

In this chapter we will argue that the capacities necessary to moral and legal agency can be understood as executive functions in the brain. Executive functions underwrite both the cognitive and volitional capacities that give agents a fair opportunity to avoid wrongdoing: to recognize their acts as immoral and/or illegal, and to act or refrain from acting based upon this recognition. When a person’s mental illness is serious enough to cause severe disruption of executive functions, she is very likely to (...) lack substantial capacities necessary to be law-abiding. Our analysis supports the Model Penal Code test for legal insanity over the traditional M’Naghten test, because the Model Penal Code test allows either severely diminished cognitive or volitional capacities to warrant an excuse to criminal culpability. We will provide a nuanced account of the ways in which mental illness can erode executive function, as well as an explanation as to why severe diminishment of executive functions caused by mental illness, but not some other causes, is exculpatory. (shrink)

Child soldiers, who often appear to be both victims and perpetrators, present a vexing moral and legal challenge: how can we protect the rights of children while seeking justice for the victims of war crimes? There has been little stomach, either in domestic or international courts, for prosecuting child soldiers—but neither has this challenge been systematically addressed in international law. Establishing a uniform minimum age of criminal responsibility would be a major step in the right direction; we argue that such (...) a standard ought to be guided by the best evidence from neuropsychology about the development, during childhood and adolescence, of the executive functions that give rise to morally and legally responsible agents. In light of that evidence, which suggests that the brain’s executive functions are still maturing into early adulthood, we recommend a graded structure of culpability for child soldiers. (shrink)

US criminal courts have recently moved toward seeing juveniles as inherently less culpable than their adult counterparts, influenced by a growing mass of neuroscientific and psychological evidence. In support of this trend, this chapter argues that the criminal law’s notion of responsible agency requires both the cognitive capacity to understand one’s actions and the volitional control to conform one’s actions to legal standards. These capacities require, among other things, a minimal working set of executive functions—a suite of mental processes, mainly (...) realized in the prefrontal cortex, such as planning and inhibition—which remain in significant states of immaturity through late adolescence, and in some cases beyond. Drawing on scientific evidence of how these cognitive and volitional capacities develop in the maturing brain, the authors sketch a scalar structure of juvenile responsibility, and suggest some possible directions for reforming the juvenile justice system to reflect this scalar structure. (shrink)

Skeptics about nonlinguistic mindreading often use an inferential rule of thumb—the principle of conservatism—to cast doubt on purported empirical evidence of mindreading abilities in nonlinguistic creatures. This principle, if warranted, would seem to count generally against explanatory hypotheses that posit nonlinguistic mindreading, instead favoring mere behavior-reading hypotheses. Using a test case from research with chimpanzees, I show that this principle is best understood as an appeal to parsimony; that, regardless of how one conceives of parsimony, the principle is unwarranted; and (...) that, once we put the principle aside, the prospects for nonlinguistic mindreading are brighter than traditionally thought. (shrink)

Culpability lies at the heart of our moral and legal practices of blaming, censuring, and punishing. Put simply, an agent is culpable for an action if the action is wrongful and the agent is responsible for that action. This seemingly straightforward concept remains contested within philosophy and legal theory, however, especially in the relatively new fields of neuroethics and neurolaw. How to understand responsible agency, which agents are potential bearers of culpability in general—and for which actions—and the possible evidentiary relevance (...) of neuroscientific findings to these topics are all subjects of active debate. (shrink)

In this chapter we explore the ethical justifications for criminal detentions prior to adjudication. Because pretrial detentions cannot be justified on purely forward-looking grounds, any plausible justification must be partly backward-looking. Reflecting on the broader aims of the criminal law suggests that pretrial detentions, like post-conviction detentions, may be justified on “hybrid” grounds—but only if certain retributive and instrumental criteria are met. We conclude that while it is possible in principle to justify pretrial detention, there is reason to think that (...) much of the pretrial detention in the United States is not, in fact, justified. We argue that current pretrial detention practices in the United States unjustifiably diminish a special sort of moral agency that is necessary for holding persons responsible in the first place. (shrink)

In this chapter we explore the ethical justifications for criminal detentions prior to adjudication. Because defending pretrial detentions cannot be justified on purely forward-looking grounds, any plausible justification for pre-conviction detention must be partly backward-looking. Reflecting on the aims of the criminal law more broadly suggests that pretrial detentions, like post-conviction detentions, may be justified on “hybrid” grounds—but only if certain backward-looking retributive criteria and forward-looking instrumental criteria are met. We conclude that while it is possible in principle to justify (...) pretrial detention, there is reason to think that much of the pretrial detention in the U.S. is not, in fact, justified. We then argue that as a result, current pretrial detention practices in the U.S. unjustifiably diminish a special sort of moral agency that is necessary for holding persons responsible in the first place. (shrink)