How Folk Beliefs about Free Will Influence Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law

45 Pages Posted: 18 Oct 2012 Last revised: 10 Jul 2013

See all articles by Emad H. Atiq

Emad H. Atiq

Cornell University - Law School; Cornell University - Sage School of Philosophy

Date Written: October 17, 2012

Abstract

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.

Keywords: Free Will, Criminal Responsibility, Determinism, Neuroscience, Mitigation

Suggested Citation

Atiq, Emad H., How Folk Beliefs about Free Will Influence Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law (October 17, 2012). 16(3) New Criminal Law Review 449 (2013) ; Yale Law School, Public Law Working Paper. Available at SSRN: https://ssrn.com/abstract=2162755

Emad H. Atiq (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cornell University - Sage School of Philosophy ( email )

218 Goldwin Smith Hall
Ithaca, NY 14853-3201
United States

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