Making Moral Judgments Through Behavioural Science: The 'Substantial Lack of Volitional Control' Requirement in Civil Commitments
David L. Faigman
University of California Hastings College of the Law
Law, Probability and Risk, Vol. 2, pp. 309-319, 2003
In several recent cases, the United States Supreme Court has held that so-called sexually violent predators can be civilly committed if the state demonstrates that they are mentally abnormal and dangerous. The first criterion is legislatively defined but must include 'proof of serious difficulty in controlling behaviour'. The second criterion has yet to be defined by the Court with any statistical precision, but presumably requires some substantial likelihood of future violence. This essay argues that the first criterion, that the offender lack volitional control, effectively invites fact finders to consider moral blameworthiness for conduct that has yet to occur. This is so because there is no scientific basis for determining when an act is a function of 'free will'. Free will is a normative conclusion that has no corresponding operational definition that can be tested. Because the first criterion is empirically without content, this leaves only the second criterion of dangerousness. Yet the Supreme Court has yet to consider just how likely future violence must be before a person can be committed. State courts have disagreed on this subject. In all likelihood, the Supreme Court will have to revisit this subject and determine what level of future 'dangerousness' should qualify a person for indefinite detention.
Accepted Paper Series
Date posted: February 29, 2008
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