Sunday, July 30, 2006

Science and the insanity defense

Writing in the Times on July 30, 2006, judge Morris Hoffman and law professor Stephen Morse defend the insanity defense. They rightly point out that the very notion of moral responsibility requires us to excuse those who don’t have sufficient capacity for what they call moral cognition. But in reaching what should be an uncontroversial conclusion, they argue that science and the law are at odds, when in fact they collaborate. They say

The rise of various materialistic and deterministic explanations of human behavior, including psychiatry, psychology, sociology and, more recently, neuroscience, has posed a particular challenge to the criminal law’s relatively simple central assumption that with few exceptions we act intentionally and can be held responsible. These schools of thought attribute people’s actions not to their own intentions, but rather to powerful and predictable forces over which they have no control. People aren’t responsible for their crimes: it’s their poverty, their addictions or, ultimately, their neurons.
This levels a false charge against science and is misleading about control. First, although materialistic and deterministic psychiatry, psychology, sociology and neuroscience deny contra-causal free will, they don’t deny human intentions or responsible agency. Rather, science shows their causes in biology and culture, and eventually might describe their neural correlates in some detail. Second, in point of fact, we aren’t in control of the powerful and predictable forces that, early in life, shape our brains, and therefore our personalities and proclivities – we aren’t self-made. Nevertheless, we form intentions, and can be held responsible for acting on those intentions, if we have normal capacities for rationality and self-control, all of which are entirely material and determined (as Morse freely admits elsewhere).

So why do Hoffman and Morse set up this straw man of science's supposed threat to responsibility, one wonders? Perhaps to carve out a special domain for the law barred from scientific inquiry - an unfortunate bit of territoriality, if true. Scientific materialism and determinism do, of course, undermine widely held supernaturalist notions of moral agency, those that ground ultimate metaphysical responsibility in contra-causal free will. So maybe Hoffman and Morse distance themselves from science in order not to offend those who suppose such ultimate responsibility is necessary for the law (which of course it isn't).

They go on to claim that “we should recognize that the criteria for responsibility — intentionality and moral capacity — are social and legal concepts, not scientific, medical or psychiatric ones.” But they immediately point out that in ascribing responsibility we recognize that “some people suffer from a mental disorder, and some do not” and of course we don’t hold responsible those with serious mental disorders. So, if psychiatric illness is real (and few would dispute this, except notoriously Thomas Szasz or, curiously, neuroscientist Michael Gazzaniga), then at least some of the criteria for responsibility are indeed medical, psychiatric and scientific.

Finally, Hoffman and Morse say that “Convicting and punishing a defendant who genuinely believed that God commanded him to kill is not unscientific, it is immoral and unjust.” But the immorality and injustice of such punishment stems directly from the fact that the defendant (Andrea Yates, for instance) suffered from a morally impairing psychosis, the diagnosis of which is a matter of science, not law. The point again is that, contrary to their op-ed thesis, the law’s definition of responsibility isn’t conceptually independent of science. Rather, neural and functional deficits in rationality and impulse control, undermining the capacity for responsibility, are precisely what medicine, psychiatry and neuroscience can help us discern. The legal test for insanity can’t be divorced from these.

Much of the injustice in the recent rollbacks of the insanity defense is due to the failure to take the science of human behavior seriously, and substitute instead the narrow, stern and retributive judgment that wrongful behavior must be punished, what ever the mental state of the accused. If they were less concerned with defending the law from science, Hoffman and Morse would discover in a materialist understanding of the mind an ally in clarifying our judgments of when a person has, or has not, the neurally instantiated cognitive capacities to be justly held responsible. We need not keep science at a distance to retain moral agency, even if we are fully material, and fully determined.


Blogger steve said...

I sent a letter to the Times in which I made the point that while neuroscience hasn't shown that we are incapable of rational moral evaluation "even though we sometimes don't use it," the question of why we don't is a scientific question.

I closed with this: Science gives us the most accurate picture of the nature of human behavior, including the origins of moral accountability. Refusing to consider all of the implications of this research is in itself a criminal abdication of our responsibility to come up with new ideas to improve our society.


ps i'll post the rest at once they reject my letter :-)

Aug 3, 2006, 10:42:00 PM  
Anonymous Jim F. said...

One famous critic of the insanity defense, who was a determinist, was the philosopher, W.V. Quine. In his book, Quiddities, he wrote in the entry on "free will":

"The rightly but insufficiently maligned insanity plea, as a defense in criminal courts, is predicated on ill health of the offender's decison-making faculties. The theory would seem to be that healthy faculties make decisions spontaneously and hence with full responsibility, while diseased ones are the pawns of outside forces. It is a hard line to draw, and the more so when one appreciates that all our actions subtend causal chains from far away and long ago. The plea has no evident place in the rationale of punishment as we have been picturing it, and a persuasive justification of it is not easy to conceive."

In other words, he seemed to think that the acceptance of determinism undercuts the distinction that people have long drawn between behaviors for which people are rightly held responsible for and those for which they should not be held responsible for. However, that conclusion would seem to be a non sequitur because we can indeed draw this distinction even in a fully deterministic world. Most determinists from Hume's day to our own have argued that the notion of moral accountability is compatible with determinism provided that we view things in terms of the modifiability of human behavior. People are rightly held accountable for their actions when it is the case that their behavior is modifiable by the rewards and punishments that we are willing to apply to their behaviors. It is the very efficacy of the application of these rewards and punishments that justifies holding people accountable.

By the same token, those people whose behaviors, for whatever reason, are not modifiable by these rewards and punishments, should not be held accountable in the same manner, precisely because for these people, the application of the types of rewards and punishments, that work for most people do not work for them. Thus, from this perspective, it makes sense not to hold young children, people who are mentally deficient and the insane to the same levels of moral accountability as those for which most people are held to.

Aug 10, 2006, 8:50:00 PM  
Anonymous Anonymous said...

I agree with your analysis, Tom, and would only add that, in my view, the seminal essay on the issue of "free will and determinism" is the classic paper by Moritz Schlick ["When Is a Man Responsible?," in Bernard Berofsky, ed., Free Will and Determinism (New York: Harper & Row, 1966]. Schlick's "compatibilism" essentially holds that, without the causal link that holds our intentions together as part of our selves, there would be no "free will"--and hence, no personal responsibility. I'm oversimplifying greatly, but this is an essay well-worth re-visiting. Neuroscience, to pick up Tom's argument, helps us understand the causal links in our intentions, in terms of neurochemical variables. These neurochemical factors do not vitiate our moral responsibility for our actions, under normal (non-pathological) circumstances; rather, these factors explain how and why we develop intentions for which we can be held responsible. In contrast, when the matrix of our deepest wishes and intentions is disrupted or destroyed--whether by a severe stroke, or a severe brain derangement like schizophrenia--our degree of "responsibility" for some of our actions is thereby diminished. Clearly, there may be degrees of such diminution; hence, the legal notion of "diminished capacity." On the other hand, there are realms of action for which even those with severe mental illness may justly be held responsible, at least to some extent; for example, a patient with schizophrenia may reasonably be held responsible for being kind, polite, or honest, even as he or she is in the grips of a paranoid delusion. This is what psychologists mean by the term "islands of intact ego."
All these issues, I believe, were anticipated to some degree by the genius of Moritz Schlick. --Ron Pies MD, Clinical Prof. of Psychiatry, Tufts USM.
P.S. Tom, thanks for posting my talk!

Sep 8, 2006, 12:34:00 AM  
Anonymous Jim Famelant said...

In reference to Dr. Pies' mentioning of Moritz Schlick's views on free will and determinism, it should be noted that I discussed Moritz Schlick in my review of Kai Nielsen's book, Reason and Practice. See:

Sep 9, 2006, 5:22:00 PM  
Blogger Ron said...

Thanks for that lead, Jim. I will look for your essay.--Best, Ron Pies

Oct 6, 2006, 12:26:00 AM  
Blogger Ron said...

Good review, Jim. Owen Flanagan does a nice job [cf. Tom's review of "The Problem of the Soul"] of defending what he calls "neo-compatibilism", which also modifies Schlick's argument to the same ends as Sidney Hook. --Ron Pies

Oct 6, 2006, 12:32:00 AM  
Anonymous Anonymous said...

Twinkies gave Dan White's premeditated assassination of Mayor Moscone and Supervisor Milk "manslaughter" verdict, five years in a minimum-security prison, and life on the street for pumping dozens of bullets in San Francisco's politicians. Alas, it was White who could not live with himself, his diminished-capacity claims, nor the public's opprobrium for chemical imbalances from too many Twinkies. He took his own life, since the state could and would not give him justice.

Physical determinism, insanity pleas, and lawyerly casuistry does not reach the sanctum of our Impartial Spectator's violence to conscience. Our human will is never compulsive or involuntary, even if our imaginations are. Loading a weapon, crawling through basements, and shooting two politicians dead exhibits nothing but cold-blooded murder, and all the Twinkies in the world could not exculpate White's crime for White. His conscience (self-reflexive consciousness) could not accept his own crime and the miscarriage of injustice to salve someone's Twinkie Defense.

No values, of course, and no judgments, and no standards, and no culpability, was the one thing even White could not abide. Life without values, judgment, culpability, and standards was a life he chose to opt out of. The Psyche Industry's metaphysics and the lawyerly casuistry notwithstanding.

Jul 30, 2007, 8:23:00 PM  
Anonymous viagra online said...

I have been studying laws and I think that the best professor is Stephen Morse and I think that Morris Hoffman is a great person...

Jan 14, 2011, 4:07:00 PM  

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