Neuroscience, Ethics and Legal Responsibility: The Problem of the Insanity Defense

The insanity defense presents many difficult questions for the legal system. It attracts attention beyond its practical significance (it is seldom used successfully) because it goes to the heart of the concept of legal responsibility. ??Not guilty by reason of insanity?? generally requires that as a result of mental illness the defendant was unable to distinguish right from wrong at the time of the crime. The many difficult and complex questions presented by the insanity defense have led some in the legal community to hope that neuroscience might help resolve some of these problems, but that hope is not likely to be realized.     

Non‐Relativist Contextualism about Free Will

Abstract: Contextualist accounts of free will recently proposed by Hawthorne and Rieber imply that the same action can be both free and unfree (depending on the attributor's context). This paradoxical consequence can be avoided by thinking of contexts not as constituted by arbitrary moves in a conversation, but rather by (relatively stable) social practices (such as the practices of attributing responsibility or of giving scientific explanations). The following two conditions are suggested as each necessary and jointly sufficient for free will: (i) the agent is able to form considered practical judgements and to act accordingly, and (ii) the agent (or some agent‐involving event) is the original cause of her actions. A contextualist reformulation of the second condition is developed according to which only contexts in which responsibility is attributed are relevant for the kind of original causation required for free will, which allows for a non‐relativist contextualism about free will.     

Responsibility for believing

Many assume that we can be responsible only what is voluntary. This leads to puzzlement about our responsibility for our beliefs, since beliefs seem not to be voluntary. I argue against the initial assumption, presenting an account of responsibility and of voluntariness according to which, not only is voluntariness not required for responsibility, but the feature which renders an attitude a fundamental object of responsibility (that the attitude embodies one’s take on the world and one’s place in it) also guarantees that it could not be voluntary. It turns out, then, that, for failing to be voluntary, beliefs are a central example of the sort of thing for which we are most fundamentally responsible.     

Phenomenal consciousness,collective mentality,and collective moral responsibility

Are corporations and other complex groups ever morally responsible in ways that do not reduce to the moral responsibility of their members? Christian List, Phillip Pettit, Kendy Hess, and David Copp have recently defended the idea that they can be. For them, complex groups (sometimes called collectives) can be irreducibly morally responsible because they satisfy the conditions for morally responsible agency; and this view is made more plausible by the claim (made by Theiner) that collectives can have minds. In this paper I give a new argument that they are wrong. Drawing on recent work in the philosophy of mind (what Uriah Kriegel calls “the phenomenal intentionality research program”) and moral theory (David Shoemaker’s tripartite theory of moral responsibility), I argue that for something to have a mind, it must be phenomenally conscious, and that the fact that collectives lack phenomenal consciousness implies that they are incapable of accountability, an important form of moral responsibility.     

Does the Onset Controllability of Diagnostic Labels Affect the Perceived Appropriateness of an Insanity Verdict?1

The present study attempted to look at reactions to an insanity verdict by asking participants to rate the appropriateness of an insanity verdict already handed down by a jury. A sample of 196 adults read a short vignette describing the defendant's crime, a courtappointed psychiatrist's diagnosis, and a jury's verdict (guilty; or not guilty by reason of insanity, NGRI). Using Weiner's (1995) responsibility model, it was predicted and found that an insanity verdict was deemed less appropriate when the defendant was construed to have an onset controllable disorder. Path analyses indicate that onset controllability, responsibility judgments, and affective reactions do not account for the perceived appropriateness of guilty and NGRI verdicts in the same way.     

Insanity defense research and treatment of insanity acquittees

This article is a comprehensive review of issues relevant to the insanity defense and the disposition of insanity acquittees. The characteristics of persons found Not Guilty by Reason of Insanity (NGRI) are described. Although the locus of treatment of the NGRI acquittee varies by jurisdiction, at this time, care and detention of insanity acquittees fall mainly to state mental health agencies. Recent reforms, as they relate to locus of treatment, are reviewed and public policy issues are discussed. The author concludes that more clinical research on the insanity acquittee is necessary for the development of more informed public policy on the insanity defense.     

Perceptions of insanity based on occupation of defendant and seriousness of crime

The purpose was to estimate the relationship between a defendant's stated intelligence on perceptions of his sanity and responsibility. This analog study was a 2 (occupation of defendant) x 2 (seriousness of outcome) between-subjects design. A scenario involving an insanity defense was read by 190 college students who then answered a 12-item questionnaire. The hypothesis that participants would attribute less responsibility to less intelligent defendants than to more intelligent ones was partially supported. Belief in a Just World moderated these evaluations. Seriousness of outcome influenced men's perceptions of the defendant's insanity, responsibility, and sentence, but not women's. Participants seemed to be more willing to accept the possibility that the defendant was insane if the outcome of his crime was not serious.     

Assessments of the treatability of forensic patients

The treatment of mentally disordered offenders receives very little attention in the literature both by itself and in comparison to other psychological issues such as the insanity defense and the prediction of dangerousness. It is argued that the treatment of mentally disordered offenders should be seen as the more central issue and that the development of an effective technology of change can, in principle, resolve certain problems with the insanity defense and the prediction of dangerousness. From this viewpoint, assessments of treatability should be seen as more practically relevant to dispositional decisions than assessments of criminal responsibility, and improvements in the effectiveness of treatment a better approach to the problem of dangerousness than attempts to improve predictive methods.     

Inarticulate Forgiveness

Influentially, Pamela Hieronymi has argued that any account of forgiveness must be both articulate and uncompromising. It must articulate the change in judgment that results in the forgiver's loss of resentment without excusing or justifying the misdeed, and without comprising a commitment to the transgressor's responsibility, the wrongness of the action, and the transgressed person's self‐worth. Non‐articulate accounts of forgiveness, which rely on indirect strategies for reducing resentment (for example, reflecting on the transgressor's bad childhood), are said to fail to explain forgiveness. This paper argues that the articulateness condition is not a necessary condition for forgiveness. It responds to numerous objections advanced against non‐articulate accounts, including the claim that the resentment‐mitigating practices they involve amount to excusing. Appealing to P. F. Strawson's distinction between objective and participant attitudes, it argues that forgivers can take transgressors to be detrimentally causally shaped by their past while holding them to be morally responsible.     

Benefits,Entitlements and Non‐Responsible Threats

This article offers an explanation for the proposed moral asymmetry between non‐responsible threats and innocent bystanders. Some argue that a non‐responsible threat – a person who threatens another through no fault or choice – is required to bear a greater burden to avert the threat than a bystander. I argue that previous attempts to explain this asymmetry are either incorrect or incomplete, since they either implausibly suggest that agents who do not benefit from their bodily resources, or whose bodily resources primarily benefit third parties, are liable to greater costs than a bystander, or fail to accommodate such cases. Instead, the asymmetry (when it exists) is explained either by virtue of the fact that the non‐responsible threat has a beneficiary status with respect to the threatening object, or possesses distribution‐limiting entitlements over the threatening object.     

Non‐epistemic perception as technology

Some epistemologists and philosophers of mind hold that the non‐epistemic perceptual relation of which feature‐seeing and object‐seeing are special cases is the foundation of perceptual knowledge. This paper argues that such relations are best understood as having only a technological role in explaining perceptual knowledge. After introducing the opposing view in §1, §2 considers why its defenders deny that some cases in which one has perceptual knowledge without the relevant acquaintance relations are counterexamples, detailing their case for lurking inferential epistemology. §§3–4 suggest that this strategy fails in many other cases. While there is a computational tale that might be deemed ‘inferential’ in these cases, there is no corresponding tale in epistemic structure, not even if one rejects what Siegel (2017) calls the ‘Reckoning Model’ of inference. §5 offers a more fundamental dilemma. §6 concludes that there is only a technological role for non‐epistemic perception in grounding perceptual knowledge, but allows that it might play a more‐than‐technological role elsewhere.     

Pathological gambling as an insanity defense

Recognition of pathological gambling as a diagnostic and clinical entity has been paralleled by its use as an insanity defense by gamblers engaged in criminal behavior. The societal ramifications of exculpation for crimes committed by volitionally impaired defendants require a critical analysis of the relationship between mental illness and criminal acts. Following a summary of current knowledge about pathological gambling as a clinical disorder, case law relevant to its use as an insanity defense is reviewed. It is argued that pathological gambling is not a serious mental illness for the purposes of the criminal law and that it bears no causal relationship to criminal activity. Legal and societal interests dictate that pathological gambling be excluded as a potential insanity defense.     

Reasons-responsiveness,control and the negligence puzzle

A longstanding puzzle about moral responsibility for negligence arises from three plausible yet jointly inconsistent theses: (i) an agent can, in certain circumstances, be morally responsible for some outcome O, even if her behavior with respect to O is negligent (i.e., even if she never adverted to the possibility that the behavior might result in O), (ii) an agent can be morally responsible for O only if she has some control over O, (iii) if an agent acts negligently with respect to O, then she has no control over O. This paper is in two parts. First, I argue that reasons-responsiveness models of moral responsibility can be applied naturally to negligence scenarios; indeed, agents are intuitively responsible for the outcomes of their negligent behavior just when they meet the conditions for responsibility given by the best reason-responsiveness theories. Second, if the reasons-responsiveness conditions are applicable to negligence scenarios then one of two things follows: either agents can have direct control over outcomes they never adverted to, or reasons-responsiveness is not a condition of control but of something else connected to moral responsibility. Each possibility would be important in its own right—and each can solve the negligence puzzle.     

A Formal Recognition of Social Attachments: Expanding Axel Honneth's Theory of Recognition

Axel Honneth draws a distinction between three types of recognition: (1) love, (2) respect and (3) social esteem. In his The Struggle for Recognition, the recognition of cultural particularity is situated in the third sphere. It will here be argued that the logic of recognition of cultural identity also demands a non‐evaluative recognition, namely a respect for difference. Difference‐respect is formal because it is a recognition of the value of a particular culture not “for society” or “as such”, but for the social group involved. Yet, although it is formal, difference‐respect cannot be reduced to respect for personal autonomy and its preconditions, as Honneth wrongly suggests in Redistribution or Recognition? It is argued here that difference‐respect is oriented towards another dimension of the person, namely social attachments. This kind of respect entails a separate register of formal recognition with a corresponding concept of personal identity and a parallel category of social disrespect. What morally justifies difference‐respect from a recognition‐theoretic approach is the practical relation‐to‐self that thus becomes possible, namely self‐respect as a sense of belonging. The formal conception of the good life that Honneth articulates should include the insight that this sense of belonging is as much a necessary condition for the good life as is personal autonomy.     

On a neglected feature of moral agency

Two conditions have been thought necessary and sufficient for a person to be morally responsible. The first is a control condition: an agent must control the actions for which she is held responsible. The second is an epistemic condition: an agent must know, or have the right kind of cognitive relationship to, the relevant features of what she is doing. Debate about moral responsibility among contemporary philosophers can be neatly divided into two circles, with each circle attending narrowly to one of these two conditions. I argue that these separate debates should not be had so separately. The two conditions on moral responsibility interact in a way that has been neglected. An agent's possession of knowledge, and her capacity to attain knowledge, increase that agent's control in a sense relevant to the control condition on moral responsibility. Conversely, an agent's control of her actions can be used to acquire knowledge in a sense relevant to the epistemic condition on moral responsibility. It is in this way that a sort of feedback loop arises between the epistemic condition and the control condition—each is capable of augmenting the degree to which their possessor satisfies the other. I argue that this interaction has important implications for each debate.     

The rise of information in an evolutionary universe

This paper outlines the grand scenario of cosmic evolution by examining the ongoing changes among radiation, matter and life in standard, big‐bang cosmology. Using aspects of non‐equilibrium thermodynamics and information science, we argue that it is the contrasting temporal behavior of various energy densities that have given rise to the environments needed for the emergence of galaxies, stars, planets, and life forms. We furthermore argue that a necessary (though perhaps not sufficient) condition—a veritable prime mover—for the emergence of such ordered structures of growing complexity is the expansion of the Universe itself. Neither demon‐strably new science nor appeals to non‐science are needed to explain the impressive hierarchy of developmental change, from quark to quasar, from microbe to mind.     

The competency of criminal defendants to refuse,for delusional reasons,a viable insanity defense recommended by counsel

This article addresses the issues of whether mentally ill defendants charged with serious crimes who refuse to plead a viable and counsel-recommended insanity defense for delusional reasons (but who are otherwise competent to stand trial) should be considered to be competent, or incompetent, to stand trial; whether such defendants should be allowed to represent themselves with a delusional defense; and whether an insanity defense may properly be imposed upon such defendants. Based on an analysis of relevant Supreme Court decisions and other relevant cases, it is concluded that such defendants should not be allowed to go forward with a delusional defense (at least until reasonable efforts to treat the defendants' delusions are made). It is also argued, however, that unless an insanity defense would be viable (as well as recommended by counsel) delusional defendants who are otherwise competent to stand trial should be permitted to go forward, and represent themselves, with the defense of their choosing.     

Luck and the Domain of Distributive Justice

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The Epistemological Problem of Other Minds and the Knowledge Asymmetry

The traditional epistemological problem of other minds seeks to answer the following question: how can we know someone else's mental states? The problem is often taken to be generated by a fundamental asymmetry in the means of knowledge. In my own case, I can know directly what I think and feel. This sort of self‐knowledge is epistemically direct in the sense of being non‐inferential and non‐observational. My knowledge of other minds, however, is thought to lack these epistemic features. So what is the basic source of my knowledge of other minds if I know my mind in such a way that I cannot know the minds of others? The aim of this paper is to clarify and assess the pivotal role that the asymmetry in respect of knowledge plays within a broadly inferentialist approach to the epistemological problem of other minds. The received dogma has always been to endorse the asymmetry for conceptual reasons and to insist that the idea of knowing someone else's mental life in the same way as one knows one's own mind is a complete non‐starter. Against this, I aim to show that it is at best a contingent matter that creatures such as us cannot know other minds just as we know a good deal of our own minds and also that the idea of having someone else's mind in one's own introspective reach is not obviously self‐contradictory. So the dogma needs to be revisited. As a result, the dialectical position of those inferentialists who believe that we know about someone else's mentality in virtue of an analogical inference will be reinforced.