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Abstract:
This brief diagnostic note identifies a cognitive pathology, Brain Overclaim Syndrome [BOS], that often afflicts those inflamed by the fascinating new discoveries in the neurosciences. It begins by suggesting how one should think about the relation of neuroscience (or any other material explanation of human behavior) to criminal responsibility, distinguishing between internal and external critiques based on neuroscience. It then describes the signs and symptoms of BOS, the essential feature of which is to make claims about the implications of neuroscience for criminal responsibility that cannot be conceptually or empirically sustained. It then applies the diagnostic lens of BOS to the claims in Roper v. Simmons. Finally, the article recommends Cognitive Jurotherapy [CJ] as the therapy of choice for BOS.

Brain Overclaim Syndrome, neuroscience, criminal responsibility, Roper v. Simmons, Cognitive Jurotherapy

Abstract:
"Uncontrollable Urges and Irrational People" addresses the fundamental issue the Supreme Court will decide this term in In re Crane: the constitutionally acceptable standard for indefinite involuntary civil commitment of mentally abnormal sexual predators. It makes four principal arguments. First, it claims that genuine non-responsibility should be a necessary, limiting precondition for indefinite involuntary commitment, and that the "loss of control" language in the Court's opinion in Hendricks should be understood as a proxy for non-responsibility generally. Second, it argues that loss of control standards, as criteria for non-responsibility, are unworkable. The essay next turns to "causal link" standards of the type Kansas proposes in Crane, which permit a potentially violent predator to be confined if a mental abnormality predisposes the person to commit future acts of violence. It claims that causal link standards are over-inclusive, and, properly understood, are not non-responsibility standards at all. Causal link standards are therefore an unjustifiable threat to liberty. Finally, the essay proposes that a lack of capacity for rationality is a genuine and workable non-responsibility standard that could properly justify and limit indefinite involuntary commitment.

Abstract:
This article demonstrates that there is no free will problem in forensic psychiatry and psychology by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article demonstrates why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.

free will, reason, forensic psychiatry and psychology, criminal responsibility, excuse, mental health laws, law and philosophy, determinism, incompatibilism, compatibilism, jurisprudence

Abstract:
There is uneasy tension in the criminal law between the doctrines of mens rea and the defense of legal insanity. Last term, the Supreme Court addressed both these issues, but failed to clarify the relation between them.

Using a wide range of interdisciplinary materials, this article discusses the broad doctrinal, theoretical, and normative issues concerning responsibility that arise in this context. We clarify the meaning of mental disorder, mens rea and legal insanity, the justification for and the relation between the latter two, and the relation among all three. Next we consider the reasoning in Clark, and for the most part find it wanting. Then we turn to the constitutionality and wisdom of abolishing or limiting mens rea and legal insanity. We conclude that although it is probably constitutional to abolish legal insanity, robust doctrines of mens rea and the insanity defense itself must be maintained to insure that the criminal law imposes fair blame and punishment. We next canvas the alternatives to legal insanity, including the most contemporary, reasoned academic proposal, and find all insufficient to achieve justice. Finally, we respond to the increasing challenges to responsibility generated by new scientific findings about human behavior, especially by the new neuroscience, and suggest that these findings do not undermine core conceptions of personhood and responsibility.

mens rea, insanity, blame, punishment, responsibility

Abstract:
This paper has two simple underlying theses. The first is that it is impossible to understand the relation of any variable to criminal responsibility without having in place an account of criminal responsibility. Otherwise, one simply begs questions. The second is that discovery of genetic or of any other physical or psychosocial cause of action raises no new issues concerning responsibility, and discovery of such causes does not per se create an excusing or mitigating condition for criminal conduct or any other type of behavior.

The paper begins with a brief description of the phenomenology of addiction, describing generally what we know about the behavioral aspects of addiction in addition to the basic criteria of craving, seeking and using. It then addresses the contrast between the legal and scientific images of behavior, using the disease concept of addiction as a prime example of the contrast. The paper next offers a general model of criminal responsibility to guide the analysis of responsibility for addiction-related criminal behavior. It suggests that the essential criteria are behavioral, broadly understood to refer to actions and mental states. The next part deals with persistent confusions about responsibility. The paper then describes those aspects of addiction, if any, for which persons might be held morally or legally responsible. It concludes that only actions related to addiction are appropriate objects of legal responsibility ascription. Next, it addresses the causal role genetics plays in explaining addiction. This discussion is deferred until this point because, as earlier parts explain, no particular causal explanation of any behavior, including biological explanation, entails necessary legal consequences.

The following part addresses individual and social responsibility for the addiction-related actions. It begins by considering in detail the meaning of those features of addiction - subjective craving and compulsion - that seem the most likely predicates for excuse or mitigation. It argues that understanding the biological roots of craving does not yet yield valid information concerning the strength of craving and seemingly compulsive behavior. This part next addresses the two leading theoretical and legal candidates for an excusing condition, internal coercion and lack of the capacity for rationality. It concludes that most addicts should be responsible for most criminal behavior motivated by addiction, but that addiction can in some cases affect the agent's ability to grasp and be guided by reason. The last section of this part considers whether society is responsible for addiction-related actions. I conclude that even if most addicts should be held responsible for addiction-related behavior, sensible social policy can do much to reduce both the prevalence of addiction and concomitant criminal behavior. The final part of the paper discusses three legal proposals for reducing the costs associated with addictions and for treating addicts fairly.