Is it Immoral to Punish the Heedless or Clueless?
Susan A. Bandes
DePaul University - College of Law
May 14, 2010
Gruter Institute Squaw Valley Conference 2010: Law, Institutions & Human Behavior
Criminal prosecutions for negligent conduct have long been controversial. As a policy matter, there are strong arguments both for and against criminalizing negligence. One obvious drawback of doctrines that insulate negligent conduct from criminal liability is that they reward heedless and clueless behavior. The actor who somehow fails to pay attention to well-know risks (driving while drunk or texting, leaving an infant in the bath unattended) is off the hook, while the actor who has the risks in mind and engages in the risky behavior anyway may be liable. But for some theorists, these policy considerations should never be reached because it is immoral to punish negligent behavior. These theorists argue that negligent actors are simply incapable of acting differently. If a parent forgets that his infant is in the bath and that infants can drown when unsupervised, his behavior is beyond his own control, and beyond the influence of the legal system. This paper critiques the assumption that the negligent actor is impervious to influence or correction, arguing that it is increasingly at odds with evolving knowledge in the fields of cognitive psychology and cognitive neuroscience. The boundary between conscious and unconscious behavior is permeable and dynamic. Unconscious behavior can be shaped and trained, and legal institutions are in a unique position to shape norms that guide unconscious or subconscious behavior.
Number of Pages in PDF File: 21working papers series
Date posted: May 16, 2010 ; Last revised: August 27, 2010
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