Abstract
In a 2004 paper, Greene and Cohen predicted that neuroscience would revolutionise criminal justice by presenting a mechanistic view of human agency that would change people’s intuitions about retributive punishment. According to their theory, this change in intuitions would in turn lead to the demise of retributivism within criminal justice systems. Their influential paper has been challenged, most notably by Morse, who has argued that it is unlikely that there will be major changes to criminal justice systems in response to neuroscience. In this paper we commence a tentative empirical enquiry into the claims of these theorists, focusing on Australian criminal justice. Our analysis of Australian cases is not supportive of claims about the demise of retributive justice, and instead suggests the possibility that neuroscience may be used by the courts to calibrate retributive desert. It is thus more consistent with the predictive claims of Morse than of Greene and Cohen. We also consider evidence derived from interviews with judges, and this leads us to consider the possibility of a backlash against evidence of brain impairment. Finally we note that change in penal aims may be occurring that is unrelated to developments in neuroscience.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Some very preliminary ideas relating to this paper have already been published in a short form [3].
Some justify punishment by way of a theory which combines elements of retributivism and of consequentialism. For a discussion of such theories see [6: Chapter 7].
Whilst there are variations in the criminal law of the six Australian states and two territories, they have much in common. We will use the example of the state of New South Wales to illustrate a way in which Australian criminal law attends to both retributive and consequentialist considerations in the determination of punishment. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) outlines the statutory purposes of sentencing as follows:
The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community [10].
Subsections (a), (e), (f) and maybe (g) appear to be retributive whereas others are (e.g. (b), (c), (d) are consequentialist).
Unlike systems in which juries sometimes determine sentences, in Australia sentences are determined by a judge or magistrate.
The case R v Israil (2002) [11] is one authority for this proposition and is often referred to in New South Wales but might also be discussed in other Australian jurisdictions.
Perhaps some support for the view that the law is to some extent connected to the views of the members of the community can be seen in relation to the aforementioned “sense of outrage in the community” mentioned by Chief Justice Spigelman. However speaking generally, the extent to which the sense of outrage is connected to people’s moral intuitions about a particular case, as opposed to their intuitions about the facts as presented by the media, is worthy of consideration. The extent to which the criminal law is reflective of the moral intuitions of members of the public is also a question for debate.
Greene and Cohen acknowledge that at a surface level the criminal law is focused on rationality and has an affinity with certain forms of compatiblism in the in free will debate. Some influential compatibilist views see rationality as a primary criterion for moral responsibility and maintain that rationality is compatible with determinism. Such compatibilism seems to fit well with the law’s responsibility practices and the law might thus be thought of, at least as a superficial level, as a compatibilist enterprise. Morse (below) argues strongly that the presuppositions of the law are compatible with determinism.
Participants in the study who read neuroscience articles that painted a mechanistic view of human behaviour “recommended significantly shorter sentences that participants who read the other science articles” [12].
However s 25A (10) of the Crimes Act 1900 (NSW) does specifically refer to neurological disorder and brain injury in respect of the criminal liability of those who commit assault causing death whilst intoxicated.
In respect of children, there has been some discussion of neuroscience in the context of law reform. See e.g.,[13:133–135].
Indeed if anything the reverse is true as suggested by pressure from victim’s rights advocates to remove the verdict of ‘not guilty by reason of mental illness’ in NSW. It is reported that the NSW government has responded with plans to amend the verdict. See e.g., [14].
For further details and access to the Australian Neurolaw Database see here: https://neurolaw.edu.au/
Jeanette Kennett is the project leader and Allan McCay is a senior researcher.
A more comprehensive analysis of Greene and Cohen’s claims may need to await the completion of work by Armin Alimardani (another member Australian Neurolaw Database team) who is engaged in relevant PhD research at the University of New South Wales.
A suspended sentence is served in the community rather than in a prison, subject to compliance with certain obligations.
In the case of Martin whose sentence was suspended, and thus to be served in the community, both his moral culpability and the risk of reoffending were judged to be low.
There are of course other salient possibilities. Addiction is a highly stigmatised disorder and those with addiction are often held responsible for becoming addicted. The Victorian Sentencing Manual states “While the need for money to purchase drugs to still an overwhelming physical craving may explain the commission of a crime, courts may refuse to take it into account where the decision to begin to use drugs was voluntary and the commission of crimes to feed an addiction was a likely consequence of that choice” [23]. For a discussion of this tracing issue see [24].
See Quilter for a discussion of this intoxication-related legislation [26].
This is the transcript of discussion in the Australian legislatures (parliaments).
As Australian criminal justice has been influenced by the English system, it has much in common with the many other systems with similar influence.
References
Greene, J., and J. Cohen. 2004. For the law, neuroscience changes nothing and everything. Philosophical Transactions of the Royal Society, B: Biological Sciences 359: 1775–1785.
Morse, S. 2010. Lost in the translation? An essay on law and neuroscience. In Law and Neuroscience, Current Legal Issues, ed. Michael Freeman, 530–562. Oxford: Oxford University Press.
McCay, A., and J. Kennett. 2016. My Brain made me do it: will neuroscience change the way we punish criminals? The Conversation. https://theconversation.com/my-brain-made-me-do-it-will-neuroscience-change-the-way-we-punish-criminals-57571 Accessed 2 Jan 2018.
Fine, C., and J. Kennett. 2004. Mental impairment, moral understanding and criminal responsibility: Psychopathy and the purposes of punishment. International Journal of Law and Psychiatry 27 (5): 425–443.
Hampton, J. 1984. The moral education theory of punishment. Philosophy and Public Affairs 13 (3): 208–238.
Honderich, T. 2006. Punishment: The supposed justifications revisited. London: Pluto Press.
Duff, A. 2001. Punishment, communication and community. Oxford: Oxford University Press.
Von Hirsch, A. 1993. Censure and sanctions. Oxford: Oxford University Press.
Feinberg, J. 1994. The expressive function of punishment. In A reader on punishment, ed. A. Duff and D. Garland. Oxford: Oxford University Press.
R v Hoerler. 2004. Sentencing remarks, New South Wales Court of Criminal Appeal, NSWCCA 184.
R v Israil. 2002. Sentencing remarks, New South Wales Court of Criminal Appeal, NSWCCA 255.
Shariff, A., J.D. Greene, J.C. Karremans, J.B. Luguri, C.J. Clark, J.W. Schooler, R.F. Baumeister, and K.D. Vohs. 2014. Free will and punishment: A mechanistic view of human nature reduces retribution. Psychological Science 25 (8): 1563–1570.
Royal Commission into the Protection and Detention of Children in the Northern Territory. 2017. Report of the Royal Commission into the Protection and Detention of Children in the Northern Territory (1). https://childdetentionnt.royalcommission.gov.au/Documents/Royal-Commission-NT-Final-Report-Volume-1.pdf. Accessed 19 Dec 2018.
Noyes, Jenny. 2018. Sister fights to stop brother inheriting parents’ money after he killed them. The Sydney Morning Herald. https://www.smh.com.au/national/nsw/sister-fights-to-stop-brother-inheriting-parents-money-after-he-killed-them-20181023-p50bhn.html Accessed 30 Oct 2018.
The Queen v Furlan. 2014. Sentencing remarks, Supreme Court of Victoria, VSC 36.
R v Terence Martin. 2011. Sentencing Remarks, Supreme Court of Tasmania. (29 September, Unreported).
Kennedy v R. 2018. Sentencing remarks, New South Wales Court of Criminal Appeal, NSWCCA 43.
Alicke, M. 2014. Evaluating blame hypotheses. Psychological Inquiry 25 (2): 187–192.
Clark, C.J., J.B. Luguri, P.H. Ditto, J. Knobe, A.F. Shariff, and R.F. Baumeister. 2014. Free to punish: A motivated account of free will belief. Journal of Personality and Social Psychology 106 (4): 501–513.
Rossmanith, K. 2018. Small Wrongs: How we really say sorry in love, life and law, Melbourne: Hardie Grant Books.
Hart, H.L.A. 2008. Punishment and responsibility: Essays in philosophy of law. 2nd ed. Oxford: Oxford University Press.
Victorian Sentencing Council. 2015. Major drug offences: current sentencing practices. https://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/Major%20Drug%20Offences%20Current%20Sentencing%20Practices.pdf Accessed 4 June 2018.
Judicial College of Victoria. 2017. Victorian sentencing manual http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#6189.htm Accessed 30 Oct 2018.
Kennett, J., N.A. Vincent, and A. Snoek. 2014. Drug addiction and criminal responsibility. In Handbook of Neuroethics, ed. Jens Clausen and Neil Levy. Dordrecht: Springer.
McCay, A. 2013. Behavioural genetics, moral agency and retributive sentencing: the case for mitigation. University of Sydney Library: PhD dissertation.
Quilter, J. 2014. One-punch laws, mandatory minimums and “alcohol-fuelled” as an aggravating factor: Implications for NSW criminal law. International Journal for Crime, Justice and Social Democracy 3 (1): 81–106.
Ryan, Meghan. 2015. Science and the new rehabilitation. Virginia Journal of Criminal Law 3: 261–341.
Sentencing Advisory Council (Victoria). 2007. High-risk offenders: Post-sentence supervision and detention. https://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/High%20Risk%20Offenders%20Post%20Sentence%20Supervision%20and%20Detention%20Final%20Report.pdf. Accessed 4 June 2018.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher’s Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
McCay, A., Kennett, J. Neuroscience and Punishment: From Theory to Practice. Neuroethics 14 (Suppl 3), 269–280 (2021). https://doi.org/10.1007/s12152-018-09394-0
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s12152-018-09394-0