Schematic Psychology and Criminal Responsibility

83 St. John's Law Review 565 (2009)

71 Pages Posted: 29 Apr 2017

See all articles by Anders Kaye

Anders Kaye

Thomas Jefferson School of Law

Date Written: 2009


This Article argues that recent empirical research regarding our acquisition and use of schemas and other knowledge structures raises unexpected and unappreciated problems for moral and criminal responsibility.

Part II begins with an overview of several interrelated lines of research in contemporary empirical psychology, which I will call, collectively, “schematic psychology.” According to this research, we use schemas and other knowledge structures--simplified mental representations of complex real-world and imagined phenomena--to organize and sift through the potentially overwhelming flood of information our senses bring us. Indeed, such structures are fundamental to nearly all of our cognition about the world around us. Our dependence on such knowledge structures, however, has unexpected, profound, and sometimes perverse ramifications for our behavior. For one thing, such structures significantly skew our thoughts about and reactions to people and events, shaping and channeling how we feel about, interpret, and perceive them. For another, our knowledge structures are, themselves, startlingly vulnerable to both immediate and persisting environmental and social influences. Thus, schematic psychology suggests that our thoughts and choices are skewed in surprising ways by knowledge structures that are, in turn, highly susceptible to external influence.

Part III contends that this schematic psychology can fund two sorts of challenges to traditional accounts of criminal responsibility. Part III.A sets out an internal challenge. It accepts (arguendo) that traditional accounts of responsibility correctly identify the conditions that must be satisfied in order for a person to be criminally responsible and argues that schematic psychology calls into question one of these conditions. More specifically, it argues that schematic blind spots and biases impair our “moral sensitivity”--and especially our sensitivity to morally significant facts about our circumstances--more often and more profoundly than we realize. If this is true, then human actors may fail the conditions for criminal responsibility more often than we have (traditionally) imagined.

Part III.B offers an external challenge. It argues that schematic psychology itself raises hard questions about the project of attributing responsibility to individuals. Schematic psychology shows that our conduct is influenced in deep and unexpected ways by social and environmental phenomena, both circumstantial and constitutive. If this is right, holding us criminally responsible for our conduct raises fairness problems, not only because criminal punishment comes to seem like a lottery (produced by phenomena that the individual actor cannot control), but also because social and environmental phenomena come to seem more apt targets for the resentment and indignation usually directed at individuals who commit crimes. These fairness problems may, in turn, significantly undercut the reactive attitudes that sustain our blaming and punishing practices.

Taken together, these two challenges offer bracing new reasons to doubt the traditional justifications for holding criminals responsible. Moreover, they parallel and augment several other social-science challenges that appear to converge on the same conclusion, including challenges grounded in situationist psychology and the sociology of criminogenic social conditions. In this sense, schematic contributes to the momentum of the broader, cumulative challenge from the social sciences generally.

Keywords: responsibility, criminal responsibility, moral responsibility, excuse, determinism, schematic psychology, criminogenic social conditions

Suggested Citation

Kaye, Anders, Schematic Psychology and Criminal Responsibility (2009). 83 St. John's Law Review 565 (2009), Available at SSRN:

Anders Kaye (Contact Author)

Thomas Jefferson School of Law ( email )

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