Thursday, 11 July 2019

Responsible Brains

Today's post is by Katrina Sifferd (pictured below). She holds a Ph.D. in philosophy from King’s College London, and is Professor and Chair of Philosophy at Elmhurst College. After leaving King’s, Katrina held a post-doctoral position as Rockefeller Fellow in Law and Public Policy and Visiting Professor at Dartmouth College. Before becoming a philosopher, Katrina earned a Juris Doctorate and worked as a senior research analyst on criminal justice projects for the National Institute of Justice.

Many thanks to Lisa for her kind invitation to introduce our recently published book, Responsible Brains: Neuroscience, Law, and Human Culpability. Bill Hirstein, Tyler Fagan, and I, who are philosophers at Elmhurst College, researched and wrote the book with the support of a Templeton sub-grant from the Philosophy and Science of Self-Control Project managed by Al Mele at Florida State University.

Responsible Brains joins a larger discussion about the ways evidence generated by the brain sciences can inform responsibility judgments. Can data about the brain help us determine who is responsible, and for which actions? Our book answers with resounding “yes” – but of course, the devil is in the details. To convince readers that facts about brains bear on facts about responsibility, we must determine which mental capacities are necessary to responsible agency, and which facts about brains are relevant to those capacities.

In Responsible Brains we argue that folk conceptions of responsibility, which underpin our shared practices of holding others morally and legally responsible, implicitly refer to a suite of cognitive known to the neuropsychological field as executive functions. We contend that executive functions – such as attentional control, planning, inhibition, and task switching – can ground a reasons-responsiveness account of responsibility, including sensitivity to moral or legal reasons and the volitional control to act in accordance with those reasons. A simplified statement of our theory is that persons must have a “minimal working set” (MWS) of executive functions to be responsible for their actions; if they lack a MWS, they are not (fully) responsible.

Some scholars claim that our sort of project goes too far. Stephen Morse, for example, worries that neurolaw researchers get carried away by their enthusiasm for seductive fMRI images and buzzy breakthroughs, leading them to apply empirical findings incautiously and overestimate their true relevance (thereby succumbing to “brain overclaim syndrome”). Other scholars, who think neuroscientific evidence undermines folk concepts crucial to responsibility judgments (like free will), may think we don’t go far enough. We remain confident in our moderate position: Neuroscience is relevant to responsibility judgements; it is largely compatible with our folk psychological concepts; and it can be used to clarify and “clean up” such concepts.

Because the criminal law is a repository of folk psychological judgments and concepts about responsibility, we often test and apply our theory using criminal cases. For instance, we find support for our account in the fact that the mental disorder most likely to ground successful legal insanity pleas is schizophrenia. Most associate this disorder with false beliefs about the world generated by hallucinations and delusions, but—crucially—persons with schizophrenia may also have severely diminished executive functions, resulting in an inability to identify and correct those false beliefs. Such persons are, by our lights, less than fully responsible. 

We also argue that, because executive functions are still developing into the mid-20’s, many jurisdictions (especially in the US) are incorrect to apply full responsibility to persons who commit serious crimes at 16 and 17. We claim persons should not be presumed to have full responsibility until they are 21.

Finally, let me touch upon what I think are two of the most interesting features of our theory. First, we have a close competitor, the theory of responsibility articulated by Neil Levy. Neil claims that consciousness is the cognitive feature that matters to reasons-responsiveness and thus to responsibility. We argue that he is almost right—but that it only looks like consciousness is what matters because executive functions are usually engaged during periods of conscious thought. As we show in the book, in rare cases the two come apart: a person without consciousness but with executive functioning is responsible, and a person with consciousness but without executive functioning is not.

Second, we claim that punishing criminals with long sentences of incarceration may actually increase crime, because such sentences can degrade the very cognitive functions needed for law-abiding behavior. In the US, prison is a violent and impoverished environment that often denies prisoners any meaningful choice-making. As a result, long stays in prison can diminish executive functioning. which is problematic: we ought not to be punishing persons in a way that hinders them as responsible agents once they are released.


  1. " only looks like consciousness is what matters because executive functions are usually engaged during periods of conscious thought."

    Nice. To give consciousness per se a role in behavior control, we'd have to find something it adds to what the neurally-instantiated executive processes are already doing. Thus far there's no story of how the phenomenal could add to the physical.

    "...we claim that punishing criminals with long sentences of incarceration may actually increase crime, because such sentences can degrade the very cognitive functions needed for law-abiding behavior."

    Indeed, and I applaud the call for less harsh sentences. But even under your limiting retributivism, perhaps it's the case that the folk often feel offenders don't *deserve* to have their executive capacities catered to. There seems to be a prima facie conflict between the punitive justifications of punishment (retribution, deterrence) and the rehabilitative justification. It's an interesting and perhaps unsolvable conundrum: how to inflict deserved harms (on your assumption they are deserved) without further damaging and alienating offenders.

    "Neuroscience is relevant to responsibility judgements; it is largely compatible with our folk psychological concepts; and it can be used to clarify and 'clean up' such concepts."

    I suspect folk psychological concepts of agency take it that we have an unconditional capacity to do otherwise, and if so, this is definitely at odds with your neuro-compatibilist defense of retribution. In the book, you ground basic desert and retribution on reactive attitudes to offenders, which in turn you say are only justified if they have sufficient executive control capacities. We only blame those that we think could have done otherwise, but failed to do so. A neuroscientific "cleaning up" (dismantling) of the folk notion of the unconditional capacity to do otherwise would perhaps help to mitigate reactive attitudes by showing that even those with high-level executive capacities couldn't have done otherwise in actual situations (as opposed to counterfactual). But this might be a bridge too far for compatibilists committed to defending basic desert, retribution, and (as Bruce Waller would put it), the moral responsibility system.

  2. Hi Tom, thanks so much for your comments. I think under limiting retributivism criminal offenders deserve to have certain liberties taken away or constrained; but this does not mean that we ought to do so with the aim or substantial effect of harming the capacities that make them responsible agents. Indeed, I claim it does not run counter to the aim of retribution, and probably serves the aim of deterrence, to punish in ways that do not erode such capacities. It is more difficult and expensive to punish in this way, but we ought to do it anyway. Some European countries are much better at it than we are in America.

    Regarding the folk psychological concepts underpinning responsibility, I disagree that reactive attitudes hinge on an unconditional capacity to do otherwise. Isn't this what Frankfurt cases show, that even under conditions where a person couldn't do otherwise, if he desires to do harm and causes this harm, we blame him anyway?

  3. Thanks Katrina. Would that all retributivists were as enlightened as you! If inflicting harms on offenders merely involves restricting liberties while nurturing executive capacities, Saul Smilansky would say you're recommending "funishment." Reactive attitudes usually want more in the way of suffering - "hard time." I wonder what the emphasis is on retribution in the countries you think do a better job of punishing.

    As you say, reactive attitudes may arise even though we understand someone couldn't have done otherwise (they arise in me frequently!), but to a lesser extent I suspect. To really limit retribution (what Waller calls the strike back response), we have to limit reactivity, and one way to do that is to trace the causal story back explicitly to undermine contra-causal intuitions, which is not what compatibilists do as a rule.


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