Things were just simpler in the Dark Ages: Two Neuroscientific Challenges to Retributivism

“The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments.”

I’d say this speaks to how we as humans, actually find pleasure in punishing rule breakers, no matter what the reason for their action.

“The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology. (…) We conclude that neither challenge succeeds.” Via

 These law professors argue that if “neuroscience can bring down the nondeterministic, free-will foundation, it will also bring down retributivism and the legal doctrine built upon it.” I’ve heard some say perhaps this would be a good thing since the very basis that the legal system is built upon is the assumption of free will, mens rea and that every brain is the same.  

The flip of this is, not only do most neuroscientists agree the research thus far is (as I’ve said before) in its infancy and needs more validation but the criteria for new evidence to be admitted into courts is a multilateral standard to prevent ‘junk science’ from getting in, which includes: general acceptance in the field, published work based on the scientific method in peer reviewed journals and several other criteria. In this light, it would take either a monumental neuroscience breakthrough, or a long time, inch by inch journey paved with validated scientific research to level the legal system in the way suggested in this article. Now, as the adage goes, just because someone is jumping in the life boat doesn’t mean they support the sinking of the ship. Even though some courts have accepted neuro scans as evidence for sentencing or mitigating culpability, it is not as wide spread as the current wave of media articles would have it seem. If it is a jurisdictional and individual judge based decision to admit evidence, then naturally the more it is accepted the more a review of current policies & procedure will be required. 

However, most neurolaw scholars agree, (and this paper seems to focus on the work of Greene of Cohen mainly, and even go so far as to say, “if neuroscience has the potential to cause the changes Greene and Cohen predict, it will do so by fostering a number of unwarranted and problematic inferences and ought to be resisted.”). I present that the aim is not to explain away criminal activity with a neurological excuse, but to move towards a more fair and just system that allows for sentencing reform  appropriate blameworthiness assessments,  and  customizable rehabilitation.  I think work such as Cohen and Greene’s represent a time when we will be forced to consider much bigger questions than brain scan admissibility, like what is consciousness and how much free will do we really have? 

Link to Article

Michael S. Pardo & Dennis Patterson (2011). Neuroscientific Challenges to Retributivism U of Alabama Public Law