This Note addresses whether criminals law’s assumptions about “free will” might be undermined and transformed by modern science. Existing scholarship has focused on the assumptions about human freedom that underlie substantive criminal law doctrine and foundational theories of punishment. In contrast, I explore the points of discretion in the criminal justice system, where key actors in the sentencing process are authorized to make moral determinations outside of the ordinary doctrinal framework. I observe that discretionary moral adjudication in the criminal justice system contains implicit judgments about human agency, and reflects folk beliefs about free will. In particular, key sentencing actors bring a distorted view of human agency to bear on their sentencing decisions. This distorted view results in a moral blind spot, disabling adjudicators from moral inferences that militate in favor of restraint in sentencing. Hence, I argue, modern science could have a corrective moral influence on criminal law, by fostering amongst key sentencing actors a more realistic view of human behavior.
“…could have”…that’s known as strong support in my neck of the woods. And talking about what the law considers realistic human behavior is fascinating… in that it’s like a dark Grimm fairy tale.