CRIMINAL RESPONSIBILITY IN THE AGE OF NEUROSCIENCE
(Article originally
published in 2000 The Australian Law Journal 74, 661-80)
©Lawbook Co, part of Thomson Legal & Regulatory
Limited http://www.thomson.com.au. Reproduced with permission
DAVID HODGSON*
Current developments in the sciences of the brain and
mind sometimes seem to suggest that criminal conduct is a symptom of brain
disorder or illness that should be treated rather than punished. This paper argues that the insights of these
sciences should be taken very seriously by lawyers, but not to the detriment of
common-sense ideas of responsibility or of their incorporation into the legal
categories used in the criminal law.
..................................................
Our system of criminal justice is based in various
ways on common-sense ideas of free will and responsibility for conduct,
according to which it is fair and therefore just that offenders should be
punished to an extent that is in some sense proportionate to their
guilt. These ideas are called into
question by ongoing developments in neuroscience, a word I will use in this
paper to refer generally to the various sciences of the brain and mind -
neurophysiology, cognitive science, artificial intelligence, psychology,
psychiatry, and so on - developments which in a general way tend to suggest
that criminal conduct is a symptom of a brain disorder or illness that should
be treated, rather than a wrongdoing that should be punished.
In this
paper, I will argue that common-sense ideas of free will and responsibility
remain valid and respectable despite assertions to the contrary by some
philosophers and neuroscientists; although I will also suggest that the
insights of neuroscience should be taken very seriously by lawyers concerned
with criminal responsibility, and should be used to refine and improve
common-sense ideas and legal categories, and to inform decisions as to how best
to deal with offenders. I do in fact
accept that there is a role for the therapeutic approach to crime, in
relation to both crime prevention and punishment; for example, in early
identification of risk factors and taking steps to minimise them, and in
treatment and rehabilitation of offenders.
But I contend that this should not be to the exclusion of common-sense
notions of responsibility, or of their incorporation into the legal categories
used in the criminal law, or of the moral considerations that should underpin
the law.
It is
perhaps presumptuous for someone who is neither a practitioner in criminal law
nor a scientist of any kind to write about how we as lawyers should respond, in
our approach to questions concerning criminal responsibility, to current
developments in the sciences of the brain and mind. However, for reasons I will give, this is certainly a matter
lawyers should be thinking about; and my interest in the philosophy of mind has
led me to pursue this particular interface between law and science.1
1 Personal Responsibility and Criminal Justice
I will start by noting some respects in which our
system of criminal justice is based on ideas of personal responsibility for
conduct. In particular, this can be
seen (1) in the general doctrine of mens rea or guilty mind, (2) in the
mental element involved in the very definition of many offences, (3) in various
defences based on factors affecting mens rea, and (4) in the principles
applied in determining sentences to be imposed.
1.1 Mens
rea
A key principle of our criminal law is the principle
of mens rea: generally, no
person can be convicted of a crime unless the prosecution proves not only a
guilty act, but also a guilty mind. For
criminal responsibility, the action in breach of the law must be conscious
and voluntary; and there may be additional requirements, such as that
there be intention of a particular consequence, or recklessness
as to this consequence. In the case of
murder, for example, generally the act causing the death of the victim must be
done with intention to kill or inflict really serious bodily injury, or with
reckless indifference to human life.
Because
of this requirement of a guilty mind, a person will generally not be guilty of
any crime if the act in breach of the law occurs independently of the will
or by accident; or if the person mistakenly believes the facts to
be such that the act would not have been in breach of the law.
1.2 Mental
elements of crimes
The requirement of a guilty mind is further
illustrated by the mental elements involved in the definition of particular
offences, particularly matters of belief and intention.
In
cases of theft and other offences involving misappropriation of property, it
has to be proved that the accused did not believe that he or she had a
legal right to take the property, and did intend to deprive the owner of
it. In cases of fraud, it has to be
proved that the accused did intend to induce someone to believe
something which was untrue and which the accused did not believe to be
true, and thereby to induce that person to part with property.
Perjury
involves not merely giving untrue evidence on oath, but also that the accused did
not believe it to be true. Bribery
involves not merely a payment or offer of payment, but also that it was done with
the intention of inducing the recipient to act contrary to duty. Blackmail involves not merely making demands
with menaces or force, but also that this be with the intention of
obtaining property. Rape requires proof
that sexual intercourse took place without the consent of the woman, and
that the accused did not believe there was consent.
1.3 Defences
There are defences which, while not negating the
voluntariness of the act in question, are regarded as negating or mitigating
the guilty mind or criminal responsibility.
Duress
(in cases other than homicide) can negate mens rea if the act was done under
the influence of a threat of death or really serious injury. Self-defence can negate mens rea if the act
was done in self-defence, in the belief held on reasonable
grounds that what was done was necessary having regard to the threat. Necessity can negate mens rea if the act was
done to avoid irreparable harm, in the belief held on
reasonable grounds that what was done was necessary having regard to the
danger.
Then
there are the defences of insanity and automatism. Because these defences are so pertinent to a consideration of mens
rea, I will look at them in a little more detail.
A useful
statement of the relevant legal principles by the High Court of Australia is
found in The Queen v Falconer,2 in the joint judgement of
Mason CJ, Brennan and McHugh JJ. They
note the principle from Woolmington v DPP3 that ‘the
prosecution bears the ultimate onus of proving beyond reasonable doubt that an
act which is an element of an offence charged was a willed act or ... was done
voluntarily’; but they observe that it is generally not necessary for the
prosecution to lead evidence going specifically to mens rea, because of two
presumptions. First, there is a
presumption of fact, which they state as follows:
It is presumed ... that an
act done by a person who is apparently conscious is willed or done
voluntarily. That presumption accords
with, and gives expression to, common experience. Because we assume that a person who is apparently conscious has
the capacity to control his actions, we draw an inference that the act is done
by choice. ... The prosecution may rely
on [this] inference ... to discharge the onus unless there are grounds for
believing that the accused was unable to control [the] act.
Second, there is the presumption of law stated in M’Naghten’s
Case4 that ‘every man is presumed to be sane, and to possess a sufficient
degree of reason to be responsible for his crimes, until the contrary be
proved’.
What is
meant by the presumption of sanity being a presumption of law is that it
will prevail unless insanity is affirmatively proved on the balance of probabilities;
whereas the presumption of voluntariness will, as a presumption of fact,
be displaced if the evidence merely goes far enough to raise a reasonable doubt
whether the action was voluntary. As
stated in Falconer:
An accused bears no
ultimate onus of proving that his act was unwilled, but he does bear an
evidential onus of rebutting the presumption that he had the capacity to
control his actions and, if he chooses to discharge that onus by showing that
he was not of sound mind, he must prove that proposition on the balance of
probabilities.
The test for insanity was laid down in M’Naghten’s
Case in the following terms:
To establish a defence of
insanity, it must be clearly proved that, at the time of committing the act,
the party accused was labouring under such a defect of reason, from disease of
the mind, as not to know the nature and quality of the act he was doing; or, if
he did know it, that he did not know he was doing what was wrong.
This test does not in terms extend to a lack of
capacity to control one’s actions; but it may do so in practical effect because
it is ‘extremely difficult to conceive of a state of things in which a person
acting automatically and without any exercise of the will would nevertheless
know what he was doing and that it was wrong’.5
As is
well known, the result of a successful defence of insanity is that the accused
is found not guilty by reason of insanity, and is then detained in custody for
an indefinite period at the discretion of the government, for the safety of the
public and for treatment. On the other
hand, the result of a successful defence which merely denies that the act was
conscious and voluntary (the defence of sane automatism) is an outright
acquittal; and as we have seen, there is no legal onus of proof on the accused
in relation to this defence.
However,
as suggested in the second passage quoted from Falconer, to counter the
presumption of voluntariness referred to above, there needs to be evidence
which suggests that the accused was unable to control his or her acts; and for
this to raise an issue to be left to the jury, that evidence generally needs to
provide an explanation as to how this came about. Evidence from the accused alone that he or
she blacked out and cannot remember the incident is not sufficient.6 If the only explanation suggested by the
evidence involves ‘a defect of reason from disease of the mind’ (or, as it is
sometimes put, unsoundness of mind), then only insanity would be left to the
jury. That is, in order that the
question of sane automatism be left to the jury, there must be evidence of
unconsciousness or inability to control one’s actions which is explained by
something other than unsoundness of mind.
This is
strikingly illustrated in the English case of Reg v Sullivan.7 In that case, the accused kicked a man
violently on the head and body while suffering a seizure due to psycho-motor
epilepsy. He pleaded not guilty to
causing grievous bodily harm. He gave
evidence, which was not disputed, that he had no recollection of the incident;
and two medical experts, whose evidence was also uncontested, testified that it
was strongly probable that the attack took place during the third, or
post-ictal, stage of the seizure, when the appellant would make automatic
movements of which he was not conscious.
The trial judge ruled, in the absence of the jury, that they should be
directed that if they accepted this evidence it would not be open to them to
bring in a verdict of not guilty, but they would be bound to return a special
verdict of not guilty by reason of insanity.
An appeal went to the House of Lords, and the House of Lords agreed with
the trial judge that the evidence could support a defence of insanity, but not
a defence of sane automatism. In the
course of his reasons in this case, Lord Diplock said this:
I agree ... that ‘mind’ in the M’Naghten Rules is used in the ordinary sense of the mental faculties of reason, memory and understanding. If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the Rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment is itself permanent or transient and intermittent, provided that it subsisted at the time commission of the act.
That is, for a defence of sane automatism to succeed,
it must be that the explanation for the automatism does not involve any
unsoundness of mind of the accused person; and epilepsy was held to involve
unsoundness of mind.
It may
come as a surprise to some (as it did to me) that epilepsy was thus treated by
English law as insanity: this is not in
accordance with the common-sense understanding of insanity. The moral justification suggested for
treating epilepsy as insanity was that, if violent injury has been done
involuntarily by reason of a condition which is such that something similar
could happen again, the State should be given the means to ensure at least that
the person gets the treatment appropriate to minimise the chance that it will
happen again.
An
explanation for automatism not involving unsoundness of mind may perhaps be
given by concussion or anaesthesia or possibly an extreme state of
intoxication.8 In Falconer,
it was held that a dissociative state arising from psychological stress could
be such an explanation, provided the psychological stress was sufficient to so
operate on a sound mind and did so operate in the particular case: if the psychological stress could have
produced the dissociative state only in combination with some unsoundness of
mind, then only the insanity defence would have been available. It was suggested in Falconer that
automatism arising from hypoglycaemia in a diabetic could be such an
explanation. Query whether hypnosis
could be; or is it the case that a person could involuntarily commit a crime
under hypnosis only if that person also had some unsoundness of mind?9 In an early case, it was stated that
sleep-walking may give such an explanation; but in Reg v Burgess10
the Court of Appeal noted that the evidence in that case indicated ‘that
sleep-walking, and particularly violence in sleep, is not normal’. The Court accepted evidence that the
sleep-associated automatism alleged in that case involved a disease of the mind;
and accordingly, could give rise to a defence of insanity but not sane
automatism.
Finally
on defences, I should mention two defences which are treated as lessening
the guilt of the mind and thus as justifying reduction of murder to
manslaughter. One is the defence of
provocation, which is available where a killing occurs due to a temporary loss
of self-control by the accused person, resulting from a provocation by the
deceased sufficient to cause such a loss in an ordinary person. The other is the
more recently introduced defence of diminished responsibility, which is
available where an underlying condition of the brain or mind of the accused has
substantially impaired his or her mental responsibility for the killing.
1.4 Principles
of punishment
In relation to sentencing of offenders also, notions
of mens rea and personal responsibility for conduct loom large, in at
least two ways.
First,
there is the overriding principle that punishment for an offence should not be
more than what is considered proportionate to the offence itself. In particular, a term of imprisonment for an
offence should not be increased beyond what is proportionate, in order to
extend the period of protection of society from the risk of further crimes by
the offender.11 The extent
of guilt or ‘criminality’ is an important element in determining
proportionality. Veen v the Queen
[No 2]12 established that in deciding what is proportionate, the
need to protect society and the antecedent criminal history of the offender may
be taken into account along with the gravity of the offence, but not so as to
result in the imposition of a penalty disproportionate to the gravity of the
offence. In no case can the maximum
penalty prescribed by law for the offence be exceeded, and this maximum should
be reserved for cases falling within the worst category for that offence.
Secondly,
particular factors mitigating mens rea or personal responsibility may
justify the imposition of a penalty less than that considered proportionate to
the gravity of the offence. Thus,
genetic and congenital disadvantages, early environmental difficulties such as
child abuse, and more immediate matters such as pressing social, psychological,
or financial problems, may be taken into account so as to justify a reduced
sentence.
Admittedly,
some of these factors may not work unequivocally in reducing the penalty. For example, if genetic or environmental
factors have resulted in a mental abnormality which makes the offender more
prone to violence, this may diminish moral culpability and thus point towards a
shorter sentence of imprisonment; but at the same time point towards a longer
sentence because of considerations of deterrence (greater penalties may be
thought necessary to deter such persons from offending) and protection of
society from risk.13
However, this does not deny the general relevance of diminished moral
culpability as a mitigating factor.
2
Responsibility and Free Will
2.1 Free
will presupposed
Now it seems obvious that the notion of personal responsibility
for conduct in turn presupposes that we have free will - that we are not caused
to do what we do by matters outside our control, but rather in any situation
have real choices between alternative courses of action which are truly open to
us, in the sense that, given the situation and even given our own natures and
characters, it is truly possible for us to take any one these
alternatives. Otherwise the legal
doctrine of mens rea would make little sense.
If we
were wholeheartedly to reject free will and accept determinism, the
implications would be far-reaching indeed.
As Isaiah Berlin put it:14
[Determinism] may, indeed, be a true doctrine. But if it is true, and if we begin to take it seriously, then, indeed, the changes in the whole of our language, our moral terminology, our attitudes towards one another, our views of history, of society, and of everything else will be too profound to be even adumbrated. The concepts of praise and blame, innocence and guilt and individual responsibility from which we started are but a small element in the structure, which would collapse or disappear. Our words - our modes of speech and thought - would be transformed in literally unimaginable ways; the notions of choice, of responsibility, of freedom, are so deeply embedded in our outlook that our new life, as creatures in a world genuinely lacking in these concepts, can, I should maintain, be conceived by us only with the greatest difficulty.
2.2 Free
will questioned
Philosophers have long questioned whether we have this
sort of free will. In the eighteenth
century, David Hume argued that everything that happens must be causally
determined by its antecedents or else be a matter of chance; and that a person
could not conceivably be responsible for events which happen by chance.
The
progress of science since Hume’s time has in a number of ways seemed to support
this approach. Our brains are
apparently physical systems, so it seems that all causation in our brains must
be causation of the same kind as operates in the physical world generally. This is apparently confirmed by Darwinian
explanations of our motivation, by the large role that unconscious processes
play in our choices and actions, and by the understanding of the physical
operation of the brain and its functional organisation which is provided by
neuroscience. And so, despite the fact
that science has not yet any explanation for subjective experience or
consciousness, and despite the instinctive belief in free will which we all
have and live by, the scientific orthodoxy is (overwhelmingly) that any
apparent exercise of free will is no more than a working out in our brains of
the ordinary causation we see in the physical world, and thus is itself the
inevitable outcome of its causal antecedents.
2.3 Compatibilism
However, at least until quite recently, philosophical
and scientific scepticism about free will has not had any significant impact on
the law’s approach to criminal responsibility, or even been considered as
calling for any reassessment of this approach.
Acceptance in practice of common-sense views about free will and
responsibility, and application of them in our everyday dealings with other
people and in the practice of the law, has coexisted quite comfortably with
this scepticism about free will.
One
reason for this has been a quite widespread philosophical view that determinism
is compatible with a kind of free will, and is compatible and perhaps
even necessary for personal responsibility for action. The basic idea of compatibilism is that
human beings have freedom and responsibility just because they are free to act
in accordance with their own choices and to do whatever it is they most want to
do; and that it does not matter that their choices and their wants may
themselves be determined by prior circumstances and impersonal laws of nature.
In
the eighteenth century, Hume argued that his version of determinism was not
inconsistent with personal liberty (by which he meant what we would call free
will), because liberty means our power of acting according to the
determinations of our will, that is, as we choose - even though our choice may
itself be determined by causes.
According to Hume, it is constraint, not determination by causes, which
can deprive us of this liberty; and if our actions were not determined by
causes, then they could only be a matter of chance, so that they could
not be an exercise of personal liberty.
Hume
went on to argue that his approach was not inimical to our common-sense ideas
of responsibility, but on the contrary was necessary to make sense of
responsibility. This, he said, was for
two main reasons.
(1) A
person is not responsible for actions unless they proceed from a cause in the
character or disposition of the person.
The more premeditated an action is, the more we regard it as caused by
the person’s character and the more responsible we consider the person to
be. On the other hand, we consider
people less responsible for actions performed hastily.
(2) The
imposition of rewards and punishments for actions for which we suppose people
are responsible makes sense only if we believe that rewards and punishments
have consistent and regular effects on their behaviour; that is, if we believe
that the prospect of rewards for certain behaviour and the prospect of
punishment for other behaviour will consistently influence people to engage in
the former and to refrain from the latter.
The
compatibilist tradition continued strongly in the nineteenth and twentieth
centuries. There were two significant
elaborations of it in the 1960s.
First,
philosopher Peter Strawson argued in a famous essay ‘Freedom and resentment’15
that we do in fact, as subjects and participants in the world, regard ourselves
as responsible for our own conduct, and we do in fact generally take the same
attitude towards other persons with whom we interact; and that this is an
attitude we cannot help adopting and maintaining, even if determinism is
true, and indeed even if we recognise that determinism is true.
Second,
there was extensive development of Hume’s second point, notably by jurist
Herbert Hart in essays such as ‘Punishment and responsibility’,16 to
the effect that the law’s concerns about mens rea and responsibility can
be given justification which does not require appeals to any notion of free
will. Punishment, it was said, must be
justified by its beneficial effects, including its deterrent effect. There should be parsimony in threatening and
imposing punishment, and since for the most part it is only voluntary actions
which are susceptible to deterrence by threat of punishment, it makes sense to
threaten and to apply coercion only in respect of voluntary actions. This, it was claimed, fully explains and
justifies the law’s concerns about mens rea and responsibility.
3 Current
Problems
However, the time is coming, if it is not here
already, when we won’t any longer be able to take this modus vivendi for
granted, and when it will be necessary to consider very carefully whether the
law’s approach to criminal responsibility can be maintained in the light of
what science tells us about the brain, or whether it needs to be modified or
even radically changed. A number of
factors are at work.
3.1 Scientific
attacks on mens rea
As more and more is discovered about the workings of
the brain, scientists are increasingly prepared to claim that common-sense
ideas about responsibility cannot be maintained, and that the law should
recognise this. Scientific
reductionists are becoming more confident that they have the complete answer to
all problems concerning our minds and our behaviour, and more strident in their
assertions that all other views should be abandoned.
One
plain example of this trend is provided by the TV series and book The Mind
Machine by Colin Blakemore, professor of physiology at Oxford
University. In the final chapter of
that book, entitled ‘The Violent Mind’, Blakemore commences with three
sentences which he says encapsulate the central thesis of his book:17
The human brain is a machine, which alone accounts for
all our actions, our most private thoughts, our beliefs. It creates the state of consciousness and
the sense of self. It makes the mind.
Blakemore then sets out a number of cases in which
criminal acts were committed under various mental conditions: hypoglycaemia, a sub-lethal dose of
chlorpyrifos from handling insecticide, pre-menstrual tension, epilepsy, manic
depression, and deprivation and abuse in early life. He then comments as follows:
Surely no one could believe that violent thoughts or actions committed by otherwise model citizens while their blood glucose is very low or their amygdala is exploding with epileptic discharges were intended by the person involved. There would clearly be more debate about a killing or near-killing committed after handling insecticide, or just before a menstrual period, or during a manic, drunken high. And I suspect that there will have to be more clearer scientific evidence before the public or the courts will accept that a violent psychopath who has no overt brain injury and whose behaviour has been unremittingly criminal is merely the victim of genetic predisposition and a difficult childhood.
And his main conclusions are stated in two further
passages:
All our actions are products of the activity of our brains. It seems to me to make no sense (in scientific terms) to try to distinguish sharply between acts that result from conscious intention and those that are pure reflexes or that are caused by disease or damage to the brain. We feel ourselves, usually, to be in control of our actions, but that feeling is itself a product of the brain, whose machinery has been designed, on the basis of its functional utility, by means of natural selection.
... The sense of will is an invention of
the brain. Like so much of what the
brain does, the feeling of choice is a mental model - a plausible account of
how we act, which tells us no more about how decisions are really taken in the
brain than our perception of the world tells us about the computations involved
in deriving it. To choose a spouse, a
job, a religious creed - or even to choose to rob a bank - is the peak of a
causal chain that runs back to the origin of life and down to the nature of
atoms and molecules.
Somewhat similar views can be found in the work of
philosophers such as Daniel Dennett, and Patricia and Paul Churchland; and in
the work of other neuroscientists, such as Francis Crick.18
A
related expression of the current ‘scientific’ view of the brain and mind is the thesis of biological determinism,
popularised in books such as Robert Wright’s The Moral Animal:19 the thesis that all our mental
characteristics and thus all our actions arise wholly from the biological properties
of our brains, which in turn are wholly caused by our genes and the environment
in which we have been placed since conception - that is, by nature and
nurture. Even though this thesis allows
a significant role for environment (nurture), the label ‘biological’ is apt,
because all causation of actions is said to be mediated by biology; and
the label ‘determinism’ may also be considered apt, even if some randomness is
allowed into this picture, so long as any randomness is regarded as making no
significant contribution to causation or explanation of actions. This thesis lays claim to explaining not
just our characters and actions, but also all aspects of our morality; and it
is very hard to reconcile it with common-sense views about responsibility.
Specific
mechanisms have been identified whereby a person may be caused to have a
tendency towards crime and violence.
For example, according to Peter Fenwick, a British forensic
psychiatrist, there is evidence that
abnormal brain development during the fifth month of pregnancy can result in the absence of conscience in the child and hence an inability to empathise with others. High testosterone and low five-hydroxytryptamine [seretonin] levels in the brain result in a tendency to violence. Hence violent behaviour is much more common in men than in women and especially amongst men with low 5-HT levels.20
One may think also of the damage caused to infants by
abuse of alcohol or other drugs by the mother during pregnancy. And it appears that lack of ‘good-enough’
carer- infant interaction in the first two years of life causes deficiencies
that can result in criminal conduct.21 The evidence for links between the brain’s physiology and
criminal behaviour is explored at length in Moir and Jessell’s book A Mind to
Crime.22
One
particular area of scientific research that is sometimes seen as refuting free
will is that undertaken by Benjamin Libet and his colleagues.23 These experiments indicate that
consciousness comes too late to initiate certain actions that the agent
considers to be voluntary. In
particular, where subjects were asked to make a movement at any time they
decided to, neurological preparation for the movement was detected about half a
second before the time identified by the subject as the time of the
decision to move, suggesting that the subject’s feeling that the decision was
freely chosen must be an illusion.
3.2 The
inadequacy of compatibilism
Despite these scientific attacks, the compatibilist
tradition has continued strongly up to the present. Hart’s approach has been continued and developed by writers such
as Braithwaite and Pettit, Posner and others.24
Michael
Moore’s Law and Psychiatry, for example, presents an extended defence of
compatibilism. He argues25
that persons need not stand outside the causal order of the world in order to
perform human actions: the circumstance
that the choice to act and the ensuing action are determined by factors such as
the chemistry of the brain or early environment does not mean that the action
is not a conscious willed action for which the person is responsible. To contend otherwise is to assimilate
participation in the causal order with compulsion by external forces.
However,
as pointed out by Alan Norrie,26 this does not meet the
deterministic challenge to responsibility:
if determinism is true then, although human beings would still have a
capacity for conscious choice and action, this capacity and its exercise would
themselves ultimately be determined by factors outside the person’s control and
thus would be not be adequate to ground notions of individual responsibility,
so that retributivist conceptions of punishment could not be justified.
This general line of argument has been
forcefully advanced in recent times by Peter Strawson’s son, the philosopher
Galen Strawson. In a Times Literary
Supplement article, ‘Luck swallows everything’,27 Strawson
argues that when a person first starts making choices in life, the person must
be as he or she then is as a result of heredity and early experience, which are
things for which the person cannot possibly be responsible. And when the person makes later choices, the
person must then be as he or she then is as a result of heredity, previous
experience, and previous choices, with those earlier choices being the result
of heredity and early experience; so that even the later choices are the result
of heredity and experience, for which the person cannot be responsible. And if the person tries to change the way he
or she is, this attempt, like any other choice, is itself the result of
heredity and experience. Strawson
accepts that this may not be the whole story, for some changes to the way one
is could be the result of indeterministic or random factors; but he claims that
indeterministic or random factors, for which one cannot be responsible, cannot
contribute to one being truly responsible for the way one is, or for choices
made as a result of the way one is.
So
compatibilism cannot leave us responsible in any substantial way for our
actions because, according to determinism, our actions are the product of our
characters and dispositions, and we cannot be responsible in any substantial
way for our own characters and dispositions:
it must all be a matter of moral luck.
3.3 Calls
for a therapeutic approach
Along with more forceful and strident attacks on the
related notions of free will and responsibility, we are now seeing also
stronger calls for abandonment of any idea of retribution in punishment. It is argued that we should adopt approaches
which are purely consequentialist and/or therapeutic: that is, that any punishment must be justified solely by its
consequences in terms of deterrence, prevention, and rehabilitation; and that
crime should be treated as an illness to be treated rather than a wrongdoing to
be punished.
One
example of this is provided by philosopher Ted Honderich in his book How
Free Are You? As Honderich points
out, the law’s current approach combines consequentialist ideas with
retribution: punishment is seen as
justified partly by its good consequences and partly by notions of desert and
retribution. Honderich calls this a
package-theory; and claims that, if determinism is true, the part of such a
theory which embraces retribution should be abandoned.28 He contends that if a person’s actions are
the inevitable result of causes occurring before a person’s birth or otherwise
outside the person’s control, then retribution becomes indistinguishable from
primitive vengeance.
As well
as calls for the abandonment of retribution, there are also now increasing
calls for a therapeutic approach to crime.
In their book A Mind to Crime, Anne Moir and David Jessel
write:29
So if great swathes of crime are a biological disorder, how should it be treated if not by killing or incarceration? Perhaps we can make things easier for ourselves by not seeking to acquit or pardon such individuals, but by confining them for the protection of society. With the introduction of PET scans we should be able more easily to identify those with, for instance, dysfunctional control mechanisms. Identifying the cause, however, loads us with the responsibility of doing something about it - treating the offender. It is easier simply to condemn and lock away - although of course more expensive when the offender re-emerges from prison and inevitably offends again.
...
So what’s the alternative? We need to know what we do - as electors, lawmakers, jurors, doctors, citizens - with the growing knowledge that crime is as much a function of biology as anything else. Evil may be something no more sinister than a matter of loose connections. The devil may be the term for an accumulation of cerebral wounds. Perhaps the theologians, too, need to think again. Is it practically possible to discard the traditional concept of justice based on guilt and punishment and replace it with a ‘medical model’ based on prevention, diagnosis and treatment? Do we have the medical tools at hand to treat what has been diagnosed?
...
What stands out from literally hundreds of papers and studies of the various types of criminal is widespread and cogent evidence of disordered minds resulting from dysfunctional brains. The real crime of many such people is the incapacity to comprehend the nature of guilt. If they had a more recognized learning disability, we would rush to help them with therapy and extra resources. But we do not recognize; we merely condemn. Incarceration is an expensive and wasteful reaction, which does very little good apart from providing a secure hotel facility for a limited amount of time.
So according to these authors, not only is retribution not justified, it doesn’t work: what is required is appropriate quasi-medical treatment.
3.4 Mismatch of concepts
In discussing mens rea in Section 1 of this
paper, I mentioned many categories which the law uses in defining crimes and
defences, and about which decisions have to be made in criminal trials: categories of belief, intention, consent, unsoundness
of mind, knowing what one is doing, knowing that what one is doing is wrong,
willed or voluntary action, ability to control one’s actions, loss of
self-control, impairment of mental responsibility, and so on.
It is
important to realise that these categories are all pre-scientific,
folk-psychological concepts: the
language which describes them is non-scientific, and, except in the clearest
cases, the existence or otherwise of the psychological state which they
describe is not susceptible to scientific proof.
There
is in fact a widening gulf between the categories used by neuroscience and the
non-scientific categories used by the law.
In general terms, the latter presuppose an active conscious agent, with
beliefs and intentions and the ability to make free choices; whereas the former
presuppose the regular operation of laws of nature in physical cause and
effect. Neuroscience focuses on
questions of brain function, and seeks to identify particular causes or
explanations of aspects of the functioning (or malfunctioning) of the
brain. Apart from some areas of
psychology and psychiatry which continue to use folk-psychological concepts,
but which tend increasingly to be
regarded as unscientific, neuroscience has no place for the concept of an
holistic entity, the mind, which according to the law is supposed to be in
control of a person’s voluntary conduct.
There are in effect two languages describing human conduct: the language of neuroscience, dealing in
scientific cause and effect, and the language of folk psychology, dealing in
the beliefs, intentions, choices, and actions of persons. There is not at present any accepted overall
theoretical framework that can make sense together of these two languages and
thereby facilitate translation from one to the other.
When
scientific evidence is given in criminal cases, particularly those involving
defences of insanity, automatism, and diminished responsibility, it is
increasingly coming to be expressed in terms of scientific concepts remote from
the folk-psychological concepts the law uses in its definitions. Because there is not at present any overall
theoretical framework linking these concepts to the fundamental
folk-psychological categories used by the criminal law, psychiatrists and other
experts can provide little, if any, expert assistance in relating the evidence
they give within their areas of expertise to these categories.
The
meaning of these categories, their interpretation and explanation, are
questions of law for the judge; and their application in particular cases is
for the tribunal of fact, generally a jury.
Psychiatrist experts do sometimes express an opinion on the meaning and
application of the categories, but this opinion can carry relatively little
weight: much greater weight is given to
the more detailed matters in respect of which the expert witness has scientific
or medical expertise, and it is left to the judge and jury to work out what
these matters mean for the ultimate folk-psychological questions. The interplay of all these considerations is
illustrated by Australian cases such as Chayna and R v Trotter.30
In the
former case, for example, an appeal from a conviction for murder was allowed
because the trial judge, in his direction to the jury on diminished
responsibility, referred to an opinion of a psychiatric witness that the
accused was not suffering from an ‘abnormality of mind’ (a folk-psychological
category which was included in the requirements for the defence at that time),
without also referring to more detailed evidence from the same witness which
the jury could have taken as supporting the existence of such an
abnormality. The appeal court remarked
that the psychiatrist’s opinion as to ‘abnormality of mind’ was ‘the least
important and least helpful aspect’ of her evidence, and that some of the
observations she made about the appellant and some of her opinions on
psychiatric matters were more important.31 Since these observations and opinions were not wholly
unfavourable to the defence case, and were not referred to in the summing-up,
the appellant was entitled to a new trial.
Along
with this problem of translation, there is also the point that, in so far as
science can make sense of responsibility, it suggests that responsibility is
not all-or-nothing, as the law may seem to assume, but rather a matter of
degree. Susan Greenfield, professor of
pharmacology at Oxford University, argues that consciousness is not like an
on-off light switch but more like a dimmer switch, with continuous gradations
of intensity.32 It seems
reasonable to believe that much the same is true of responsibility - that there
is a spectrum of responsibility, beginning with acts done without
consciousness, through acts done with various kinds of impaired consciousness,
acts done without deliberation, acts done under pressure, to acts done after
full deliberation.
Problems
like the above have led some commentators to suggest that the decisions reached
by juries on the folk-psychological legal categories are really not decisions
on questions of fact, but are no more than subjective value judgments
concerning the degree of guilt of the accused; and that the law would do better
to acknowledge this, to cease trying to fit cases into the elaborate but
ultimately meaningless categories associated with the defences of insanity and
automatism and diminished responsibility, and to focus directly on the real
practical question of what should be done about the particular offender.
These
points are elegantly made, for example, in an article by psychiatrist John
Ellard,33 prompted by the case of Falconer referred to
earlier in this paper. In that case, a
woman who had shot and killed her husband was found guilty of murder. In support of her defence of automatism, it
had been claimed that at the time she was in a state of dissociation brought
about by prolonged emotional stress caused by the deceased. Her conviction was set aside by the High
Court of Australia on the ground that certain psychiatric evidence rejected by
the trial judge should have been admitted, and a new trial was ordered. After considering the problems of
translation between legal language and psychiatric language, Dr. Ellard
concludes his article with the following ‘plea for pragmatism’:
Is it not time for
pragmatism? Once the facts are
determined sentencing remains. When the
death penalty was mandatory then there had to be ways in which convicted
persons who were manifestly mad, or who had some other disability, could be
extricated from the system if it seemed wise to do that. If judges have complete discretion then the
need for all these elaborate fictions is removed and common sense and wisdom
can enter the field. In the case in
point there was no doubt about who killed whom and why. The only real issue was what to do about
it. When the High Court sent the case
back down again the accused pleaded guilty to manslaughter, the prosecutor
accepted the plea, the sentencing judge said that the crime was worth five
years and then did some elaborate calculations which allowed the convicted
person to walk out of the court free.
Wisdom got there in the end.
This amounts to a claim that the very concepts used by
the law in relation to mens rea, particularly concerning questions of
insanity, automatism, and diminished responsibility, should be abandoned and
replaced by a pragmatic therapeutic approach.
3.5 Problems
of balance
There appears to be a strong public perception at
present that the law is soft on crime, and also much sympathy for the view that
perpetrators of crime should be made to suffer no less than their victims and
their victims’ families suffered from the crime. One often hears it said by victims or relatives of victims that
they have been given a ‘life sentence’ by the crime, so it is unfair that the
offender be released after 2 or 5 or 10 or 20 years.
There
seems to be no common ground between people holding these views, and those who
advocate recognition of the biological and social roots of crime, and
application of scientific knowledge to its prevention and to the rehabilitation
of offenders: such opposing views seem
to be becoming increasingly polarised.
In
those circumstances, there is a real need for a theory of retributive justice,
which gives a rationally defensible account of responsibility and desert, and
which also can take into account and make use of scientific advances in order
to refine the theory, without jeopardising the very idea of responsibility.
4 How Should
the Law Respond?
In the light of all these factors, there is a need to
rethink questions of responsibility.
The compatibilism of persons like Peter Strawson, Herbert Hart and
Michael Moore may no longer be adequate as a justification of the law’s concern
with mens rea, and plainly it does not provide an adequate theoretical
framework to enable the law to take advantage of advances in neuroscience,
while appropriately maintaining ideas of responsibility.
What
then should be the law’s response to these developments?
I
suggest that we as lawyers should be open to whatever insights can be provided
by neuroscience; and those with lawmaking roles should be prepared to use these
insights both in moulding the law’s general approach to crime, and in refining
the particular categories that the law uses.
However, I also suggest that we should be sceptical when neuroscience
appears to conflict with common-sense ideas of free will and responsibility,
and should strongly oppose any abandonment or significant watering-down of
these ideas. We should remain firmly
aware of the merits of principles of responsibility and retribution, and of the
deficiencies in purported philosophical and scientific refutations of those
notions. And we should seek to uphold
the moral underpinning of the law.
4.1 The
merits of retribution
One very important reason for maintaining notions of responsibility
and retribution is that such notions underpin deeply-held principles of justice
and human rights, which are regarded as essential pre-requisites for civilised
societies, and indeed are being increasingly recognised, and where possible
promoted, by international law.
These
principles give great weight to the autonomy of people and require respect for
that autonomy. According to them, a
citizen is generally entitled to freedom from interference from the coercive
processes of the State unless he or she voluntarily breaches a fair rule of
law, publicly promulgated by the State.
That is, a citizen should have a choice as to whether to be liable to
coercion or not; and in this regard, folk-psychological categories such as
belief and intention and voluntariness of action are of central importance.
This is
not to say that criminals should be punished purely as retribution, because
that is what they deserve: on the
contrary, what I am saying is entirely consistent with the view that the
coercive system which is the criminal law must be justified at least in
part by its utility, because of the need to protect the majority of
citizens from dangerous and anti-social activities of others. But, given that society needs such a system,
the question is how should this system identify those persons to whom the
coercion is to be applied, and how should it determine what coercion is to be
applied to these people.
The
solution which has been adopted by civilised societies with respect for justice
and human rights is generally along the following lines, which I will call the
human rights qualification to the power of the State to coerce its
citizens: as a general principle, the
system should allow coercion to be applied only to people who have been proved,
by due process of law, to have voluntarily acted in breach of a public law; and
then, no more coercion is to be applied than is ‘proportional’ to the gravity
of the offence. There are
qualifications to this principle, the most important for present purposes being
one associated with the defence of insanity:
where a person involuntarily does harm because of a mental abnormality
which may cause that person to do serious harm again, he or she is regarded as
less than fully responsible and is liable to coercion by way of restraint
and/or treatment to the extent required for appropriate protection of the
public.
It is
of course argued that there are good utilitarian or consequentialist reasons
for this human rights qualification, which do not require acknowledgement of
the validity of any idea of criminal responsibility which legitimises
punishment, or any basic distinction between acts which involve a guilty mind
and those which do not. For example,
there is the consequentialist argument mentioned earlier, advanced by Hart and
others, that there should be parsimony in threatening and applying coercion;
and since it is generally only voluntary actions which are susceptible to
deterrence by threat of punishment, it makes sense to threaten and to apply
coercion only in respect of voluntary actions.
But even this argument presupposes a fundamental distinction between
actions which are voluntary and actions which are not,34 which is
difficult to sustain if one rejects free will and responsibility.
And in
any event, the argument does not do away with the need to be able to rely on
appeals to justice and human rights, which attribute intrinsic significance to
the distinction between acts which are voluntary and those which are not -
particularly because consequentialist arguments are irredeemably
indecisive. Those governments which do
not recognise the human rights qualification to the application of the coercive
processes of the State generally assert that the good of society overrides
other considerations; so that, for example, the detention without trial of
political opponents is justified. The
strengthening consensus of reasonable opinion throughout the world is that that
kind of approach can be justified only in cases of real emergency, and then
only as a temporary measure pending resolution of the emergency and as a part
of the process of establishing or returning to a normality in which the human
rights qualification does apply.
However, if one is limited to arguments about consequences, it is
impossible to make out a case which would convince anyone who wished not to be
convinced: it is impossible to prove
what all the consequences of the alternatives would be, let alone to prove
which of the totalities of consequences would be ‘better’.
Imagine
trying to prove to a previous Soviet government (or to those Russians who now
hanker for the good old days) that it would have had better consequences not to
confine dissidents in mental asylums, or to the present Chinese government that
the recognition of human rights qualification to the use of the coercive powers
of the State would have better consequences than not recognising it.
But
acceptance of the independent force of the considerations of fairness which
justify the human rights qualification would mean that there would need to be
positive justification for overriding it - in terms of real emergency, clear
and present danger, etc. If justice and
human rights are given independent weight, then a heavy onus can be placed on
governments seeking to deny human rights to their citizens.
These
views about human rights are being increasingly recognised and promoted in
international law, and in the domestic law of many countries. As just one example, the Canadian Charter of
Rights and Freedom requires that the criminal law respect ‘the principles of
fundamental justice’. The Canadian
Supreme Court, in 1990, decided that those principles required that a person
should not be convicted of murder unless he or she actually foresaw that
death would result from his or her conduct; and the Court held to be invalid a
law to the contrary.35 I am
not saying the Court was necessarily correct in its views of fundamental
justice - rather that this is an illustration of how the importance of human
rights and justice is being recognised.
So I
contend that ideas of human rights, which are widely and increasingly accepted,
depend crucially upon discriminating between persons whose conduct makes it fair
and permissible that their freedom be curtailed, and persons whose
conduct does not make it fair and permissible that their freedom be
curtailed. And in order that conduct
make curtailment of freedom fair and permissible, it must involve voluntary
action in breach of a public law, for which the person is responsible.
If the
notions of free will and responsibility are discredited, human rights are
prejudiced: there will appear to be no
rational basis for saying that it is fair, and thus permissible, to curtail the
freedom of a person (who has had the bad luck to be caused by genes and environment
to become a person) who acts in breach of the law, yet unfair and thus
impermissible to curtail the freedom of a person (who, without breaching any
law, has had the bad luck to be) regarded by the government as a danger to
society.
In
relation to principles of punishment, this general approach was given a
persuasive exposition by author C. S. Lewis, in an article published in the
journal of the Law Students’ Society of Victoria Res Judicatae,36
which was referred to and adopted by the leading judgment of the High Court of
Australia in Veen v the Queen [No. 2].
4.2 Free
will not refuted
One possible response to such considerations is to
argue that, even though neuroscience refutes free will, we should act as if
this had not happened: this approach is
taken by Steven Pinker.37
That is to say, we should hold that, although free will is a dead duck,
we must pretend it is alive.
However,
I contend that a balanced consideration of the evidence and arguments suggests
that free will may in fact be alive and well; and that, because belief that it
is alive is valuable, there would need to be a powerful case for its demise
before it could be rational either to accept that it is in fact dead or to live
our lives as if it were. In fact,
despite the confident assertions of scientists such as Blakemore, and
philosophers such as Galen Strawson, the existence of free will and
responsibility is far from being disproved:
good sense can be made of these ideas consistently with everything that
science reliably tells us about the world.
The
basic point about most purported refutations of free will from Hume onwards is
that they have proceeded on an unstated assumption which is very close to what
is claimed to be proved - the assumption that whatever occurs in the world must
either be the only occurrence consistent with laws of nature, or else be
random. This mechanistic assumption
immediately excludes the possibility that consciously-made choices are on the
one hand not pre-determined by laws of nature, nor on the other hand merely
random occurrences. In circumstances
where our choices seem to us to be neither pre-determined nor random,
one would expect to find some justification of the assumption - and it is not
provided.
In
common-sense thinking, our capacity to choose depends upon our ability to
consciously appraise alternatives and the reasons or motives for and against
each of them. I do not suggest that we
are conscious of all factors that motivate us - but we certainly are
conscious of some of them, and it seems reasonable to believe that our
consciousness is closely linked with, indeed necessary for, our ability to
choose. I do not think science can
properly claim to explain our capacity to choose unless and until it can
explain our consciousness; and it is nowhere near doing that. Thus, for example, scientists have not the
faintest idea what would be required to construct a machine that could feel
pain, much less specify precisely what objective features would distinguish
such a machine from one that could not feel pain. Unless and until they can do this, it goes far beyond the
competence of science to assert that consciously-made choices must be
pre-determined by laws of nature or else be random.
Looking at Strawson’s argument outlined towards the end of Section 3.2, it will be seen that there is the unstated assumption that (subject to possible randomness) a conscious choice is pre-determined by the way a person is immediately prior to the choice. Strawson ignores the possibility that the way a person is immediately prior to the choice may only pre-determine the alternatives available and the (inconclusive) reasons or motives the person has for and against each of them. The person, using his or her capacity to make a conscious choice (a capacity which all normal adults have), may then resolve the competing inconclusive reasons - such resolution being neither random nor pre-determined by the way the person is immediately prior to the decision.
In terms
of responsibility, one may accept that nothing a person does or can do at
the time of any choice or action can make the person responsible for what
alternatives are then available, for the way those alternatives then appeal, or
indeed for having the capacity to choose between them - but one may
nevertheless claim that, leaving aside any question of responsibility for these
matters, the person can still be responsible for the way the person
exercises the capacity to choose.
On this view, the way the person is, in respect of character and
motivation, does not predetermine what the person does: it only predetermines what the alternatives
are and how they appeal. The person is
not responsible for having the capacity to choose between these alternatives,
but is not predetermined in how that capacity is exercised, even by the way
the person then is in respect of character and motivation; and so the
person (and no-one and nothing else) is responsible for the way that capacity
is exercised. That responsibility may
be greater or less, by reason of the nature of the choice posed by the way
person now is - the harder it is, by reason of the person’s inclinations, for
the person to make the ‘right’ choice, the less blameworthy will be the ‘wrong’
choice - but on this view, normal adult human beings always have some
responsibility for their choices and voluntary actions.
And this means in turn that the person
may have some responsibility through prior choices for the way the
person now is in respect of character and motivation, and thus for
presently-operating reasons and the way they appeal.
I would
also note that the Libet experiments are far from refuting free will. Even in relation to the simple actions they
dealt with, they do not, as Libet himself notes, exclude a conscious veto
exercisable right up to the time the action is performed. They do not exclude the conscious shaping
of actions, the details of which are habitual (as in musical
performances). And they say nothing about
the fully deliberated actions that are the paradigm case of free will.38
4.3
Refining categories and principles
It follows from what I have said that I believe that
the general approach of our system of law to questions of criminal
responsibility is along the right lines.
In general terms, the human rights qualification to the power of the
State to coerce its citizens should be maintained: that is, as mentioned earlier, as a general principle the legal
system should allow coercion to be applied only to people who have been proved,
by due process of law, to have voluntarily acted in breach of a public law; and
then, no more coercion should be applied than is ‘proportional’ to the gravity
of the offence. This is the general
principle, and exceptions may be recognised, such as the following:
(1) where any
lack of voluntariness or intention is due to self-inflicted intoxication, it
may be reasonable to waive the requirement of proof of voluntariness or
intention;
(2) in some
cases, where carelessness can cause great harm, punishment may be allowed for
carelessness (for example, negligent driving);
(3) in some
cases, where great harm can be caused in circumstances where intention or
carelessness is difficult to prove and where harm can and should be prevented
by particular people taking appropriate precautions, strict liability may be
imposed (for example, in matters relating to public health);
(4) where a
person involuntarily does harm because of some mental abnormality which may
cause that person to do harm again, coercion may be applied to the extent
necessary to protect the public by restraining the person and/or treating the
mental abnormality (this is the rationale of the defence of insanity); and
(5) where
prosecution authorities believe on reasonable grounds that a person has acted
in breach of a public law and that it is necessary and appropriate to arrest
and detain the person so that a trial can take place, then coercion can be
applied to that extent, so long as an early opportunity is afforded to the
person to apply to a court for bail.
If one
is to follow principles of this kind, it is necessary for the law to draw hard
and fast lines, despite the fact that there are continuous gradations of
responsibility. The lines can take some
account of different levels of responsibility, but finer gradations can be
given effect to only in sentencing and the determination of treatment after
sentencing.
In
applying the principles to cases of homicide, I believe it is appropriate to
reserve one category for the most serious cases, in our law the category of
murder, and to have a category of less serious homicide where responsibility is
less, whether because of provocation or because of some kind of diminished
mental capacity to make reasonable choices.
So despite the persuasiveness of Dr. Ellard’s pragmatic approach in the
article referred to earlier, I think it should be rejected: the law needs to have categories of the type
he criticises, despite the problems of stating them clearly and of applying
them.
However,
this is not to say that the precise definition of the categories should be
immutable. On the contrary, advances in
neuroscience may enable better definitions to be drawn up; better in being
either fairer, or more readily translated into scientific language, or
both. Perhaps also some adjustments of
principle could be justified.
For
example, it could be found appropriate to have more than just the one category
of irresponsibility that we have at present, namely insanity - which is such
that on the one hand the stigma and consequences of a successful defence mean
that it is relied on only in cases of homicide, while on the other hand a
verdict of not guilty in some cases of homicide, albeit on the ground of
insanity, can seem an affront to the families of the victims and to the
public. There could be advantages in
having two insanity-like verdicts available, one called (say) non-responsibility
and the other called (say) criminal insanity. In both cases, the verdict would exclude the
existence, at the time of the alleged offence, of a genuine capacity to make a
choice, and thus would require a verdict of not guilty of the particular
offence charged. However, the
requirements and incidents of the two verdicts could otherwise be quite
different.
The
former verdict could be available in those cases where the lack of real ability
to make a choice was due to some temporary and/or treatable condition such as
epilepsy or hormonal imbalance; and the result of such a verdict would be the
minimum intervention required to protect the public, and having a fixed upper
limit to ensure that this intervention is less onerous than the consequences
of a guilty verdict. The onus of proof for this result would lie
on the accused.
The
latter verdict would be available in those cases where the lack of real ability
to make a choice was due to some more serious and difficult-to-treat mental
state, which would cause the accused to be a serious danger to the community
for the indefinite future; and the result of such a verdict would include the
possibility of lifetime confinement.
The onus of proof for this result would lie on the prosecution.
In
applying this approach, it would not be necessary to ask whether the offender
is ‘mad or bad’. The question would be
simply whether or not the accused had a real ability to make a choice, and if
not, whether this was due to some serious and difficult-to-treat condition
which would make the accused a danger for an indefinite period. It would not matter whether this lack of ability
was due to inability to empathise with others, or inability to know what one
was doing, or some other deficiency.
Advances
in neuroscience could also enable the law to deal more effectively with other
cases where responsibility is questionable, such as drug-related offences and
offences by children. In the former
case, where (say) non-violent theft is committed to satisfy a craving, the law
might treat it as a case of non-responsibility if the drug-dependence is
made out to be temporary and treatable by an appropriate commitment by the
accused to undergo rehabilitation. In
the latter, it may be possible to formulate a better definition of what amounts
to responsibility in children.
In
general terms, then, I believe that we should be looking to articulate an
overall framework within which good sense can be made both of neuroscience and
of common-sense ideas of free will and responsibility; and seeking to improve
the categories used by the criminal law, so that they fit as well as possible
with neuroscience as understood within this framework.
4.4 Punishment,
treatment, and education
As I noted at the beginning of this paper, I accept
that there is a role for a therapeutic approach to crime, for example in the
early identification and minimisation of risk factors and in the treatment and
rehabilitation of offenders; and it is in these areas that neuroscience has the
greatest contribution to make.
As
scientific research shows what are risk factors for criminal behaviour, how to
identify such factors in particular individuals, and how to minimise such
factors, we should be prepared to use and to apply this knowledge. And similarly, as scientific research
produces insights into how best to go about rehabilitating offenders, we should
be prepared to accept and apply these insights. However, all this must be done within a framework that recognises
the principles of human rights and responsibility which I have discussed, and
also recognises the need for the moral underpinning of the law. A number of points arise from this.
When
one is considering early intervention in the lives of children, it must be
recognised that this intervention should be consensual and not coercive, except
as against persons (parents and/or children) who have already committed an offence,
or where the child in question is shown to be in need of care and the proposed
measures are the least intrusive that can satisfy this need. A fortiori, coercive intervention in the
case of adults should be limited to the cases I have discussed.
In
relation to persons who have committed an offence, it may from time to time
appear that rehabilitation of the particular offender would best be achieved by
treatment which is far less onerous than the punishment suggested by
considerations of retribution or general deterrence. However, the person by his or her conduct has made it fair and
just that general deterrence be pursued through the imposition of proportionate
punishment; and accordingly the objective of rehabilitation may sometimes
properly be subordinated to considerations of retribution and deterrence.
Even in pursuing treatment and rehabilitation, notions of free will and responsibility may have an important role to play. According to psychologists involved in an innovative program with long-term prisoners at Long Larton Prison in the United Kingdom, one essential step in the rehabilitation of a violent offender is that he accept that he - not anyone or anything else, not society, not his parents, not his genetic inheritance, but he himself - was responsible for the events which put him in prison. Without that, they say, there is no hope of rehabilitatio