The Role of Folk Beliefs about Free Will in Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law
Emad Hanzala Atiq
Yale University, Law School
October 17, 2012
New Criminal Law Review, Forthcoming
Yale Law School, Public Law Working Paper
Do recent results in neuroscience and psychology, that portray our choices as predetermined, threaten to undermine the assumptions about “free will” that drive criminal law? This Article answers in the affirmative, and offers a novel argument for the transformative import of modern science. It also explains why a revision in the law’s assumptions is morally desirable. Problematic assumptions about free will have a role to play in criminal law not because they underlie substantive legal doctrine or retributive theory, but because everyday actors in the sentencing process are authorized to make irreducibly moral determinations outside of the ordinary doctrinal framework. Jurors, judges, and legislators are each required, at key points in the sentencing process, to make moral judgments that cannot be reached without reference to the person’s own understanding of free will. As a result, sentencing actors give legal effect to widely-held folk beliefs about free will, beliefs that the evidence suggests are both scientifically suspect and morally distorting. The relevant beliefs make adjudicators less likely to attend to the underlying causes of crime, such as social deprivation – a tendency that biases adjudicators against relevant arguments for mitigation in sentencing. Modern science could have an important corrective effect in this context.
Number of Pages in PDF File: 53
Keywords: Free Will, Criminal Responsibility, Determinism, Neuroscience, MitigationAccepted Paper Series
Date posted: October 18, 2012
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