Case studies

Case study: Prohibition of drugs

A green wave is sweeping over the world. The soft drug Cannabis is becoming legal in more and more countries. The Netherlands, with its world-famous coffee shops, has been at the forefront of liberal drug policies for decades. But contrary to popular belief, cannabis is not legal in the Netherlands but remains a forbidden substance under the opiumwet (drug regulations). Recently, Germany has made a bold move to legalize the drug but, due to international and EU regulations, has considerably downsized its approach. In Canada and many states of the US, cannabis is already legal and can be bought in dispensaries. Drug prohibition, and especially cannabis prohibition, is one of the most discussed topics in Criminal policies. On one side are the legalization advocates pointing to the ineffectiveness of drug laws with rising numbers of consumers every year. On the other side are the prohibitionists pointing to the enormous risks health related to drug consumption, particularly for young people.

Discuss the pros and cons of drug prohibition by applying the principles of criminalization to the case of cannabis. What are alternatives to the criminalization of drugs?

The Concept of Crime and Cannabis Prohibition

In the legal sense, crime is any conduct prohibited by criminal law. Under international treaties and domestic laws (like the Netherlands' Opiumwet), cannabis is classified as an illegal substance, making its use, possession, and distribution technically a crime. However, the societal debate on cannabis reveals broader definitions of crime that go beyond legal definitions:

1. Prohibitionist Perspective:

   • Harm Principle: Cannabis harms health, especially among youth. This includes potential addiction, mental health issues, and impaired decision-making, all of which may affect not only the user but their families and society.

   • Moral Argument: Some view drug use as inherently immoral and harmful to societal values, reinforcing the need for strict prohibition.

2. Legalization Perspective:

   • Individual Autonomy: The user has the right to make choices about their own body, including consuming cannabis, as long as it does not harm others. Using cannabis recreationally may not meet the threshold for "public wrong."

   • Ineffectiveness of Criminalization: Prohibition has not prevented cannabis consumption. Instead, it has pushed the market underground, leading to public health risks and loss of potential tax revenue.

Applying the Harm Principle

The harm principle posits that state intervention is justified when an individual's actions harm others. In the case of cannabis:

1. Arguments Supporting Criminalization:

   • Public Health Risks: Cannabis use may impair judgment and lead to accidents, causing harm to others (e.g., driving under the influence).

   • Social Impact: Families can suffer due to a user's addiction, contributing to long-term societal costs.

   • Gateway Theory: Although controversial, some argue cannabis use leads to harder drug consumption, escalating public health risks.

2. Arguments Opposing Criminalization:

   • Self-Harm and Individual Autonomy: Individuals have a right to make decisions, including those that may harm themselves. Prohibition denies this autonomy.

   • Minimal Evidence of Direct Harm to Others: Cannabis use in moderation has not been proven to harm others significantly, particularly in regulated settings like coffee shops.

Advantages and Disadvantages of Prohibition

1. Advantages:

   • Public Safety: Prohibition theoretically deters use, reducing societal harm.

   • Protecting Vulnerable Populations: Young people are less likely to access drugs in a strictly controlled environment.

   • Moral Stance: Aligns with societal values that discourage drug use.

2. Disadvantages:

   • Ineffectiveness: Prohibition has not reduced cannabis use; consumption rates remain high.

   • Black Market: Criminalization drives the trade underground, resulting in unregulated and potentially more dangerous products.

   • Resource Drain: Policing cannabis use diverts law enforcement resources from more serious crimes.

   • Stigma and Inequality: Criminalizing cannabis disproportionately affects marginalized communities.

Alternatives to Criminalization

1. Legalization:

   • Cannabis could be treated like alcohol, regulated by the state.

   • Advantages:

     • Tax Revenue: Legal sales could generate significant public funds.

     • Public Health Control: Ensures product safety and provides better education on risks.

   • Challenges:

     • Legalization may increase accessibility, potentially raising use among vulnerable populations.

2. Decriminalization (e.g., Portugal's approach):

   • Cannabis remains illegal, but personal possession is treated as an administrative violation.

   • Advantages:

     • Reduces the stigma of drug use and encourages treatment for addiction.

     • Relieves pressure on the criminal justice system.

   • Challenges:

     • Critics argue it may send a mixed message and fail to curb consumption.

3. Dutch Tolerance Model:

   • Cannabis is illegal but tolerated (e.g., coffee shops in the Netherlands).

   • Advantages:

     • Reduces the harm of unregulated markets while maintaining some prohibition.

   • Challenges:

     • Creates a legal paradox (legal to sell but illegal to produce), leading to inconsistencies in enforcement.

4. Preventive State Model:

   • Focuses on harm reduction and early intervention (education, rehabilitation).

   • Balances liberty and security while addressing addiction as a public health issue.

Conclusion

The debate on cannabis prohibition hinges on balancing individual autonomy with the harm principle. Prohibition may reduce public harm but fails to address self-harm and autonomy, while legalization and decriminalization present viable alternatives that align better with Enlightenment ideals of individual freedom. The choice ultimately depends on societal priorities: security versus liberty.

Case study: Catcalling

In October 2024, a Rotterdam court sentenced a man to a monetary fine of 100 € for harassing and intimidating a woman on a city street. The man was accused of catcalling and grabbing a woman by the hips and holding her. It was the first conviction in the country under a new law tackling sexual harassment in public spaces. The law came into effect across the Netherlands in July of the year, with penalties for unwanted touching, inappropriate comments, or gestures. Following concerns that the law would be nearly impossible to enforce, a pilot project had dispatched undercover teams to roam the streets of Rotterdam, Utrecht, and Arnhem and look out for catcalling and harassment. Street harassment remains a common phenomenon in many cities in the Netherlands. According to recent research carried out by the University of Rotterdam, 47% of all women in Rotterdam between 2016 and 2020 had to deal with (sexual) street harassment. This was considered unacceptable, and already in 2018, a convicted a man who had blown kisses at women passing by on the street and asked them: “Hey pretty ladies. Where are you going?” to a fine. However, the conviction was subsequently overturned, and the Local Regulation was declared incompatible with the right to freedom of expression. Nowadays, the Rotterdam court has set these concerns aside and focused on the wider impacts of street harassment. “Sexually intimidating someone on the streets like that makes people feel unsafe and prevents them from being themselves in public,” it said. “Sexually intimidating behavior often leads to adaptive behavior. People go to other places or start dressing or behaving differently. Public life is affected.” The court follows a global trend where street harassment is increasingly incorporated in crime policies as it is recognized as a social problem. Yet, while some view street harassment as a form of (gender) violence, others are quick to downplay such conduct as boyish behavior (‘boys will be boys) and even argue that catcalls are inoffensive and even flattering.

Learning goals:

What is cat-calling? What does street harassment entail?

Why would one criminalize cat-calling? Justifications for criminalizing?

How does the harm principle apply to cat-calling?

Why do people cat-call? Why does sexual harassment exist?

How does cat-calling relate to the freedom of expression? What public goods are at stake?

What is the impact of cat-calling on women?

What are the power structures in society? Feminism? Global view.

Case study: Client criminalization

We have seen that criminal policies do not appear out of thin air, but rather, are the result of an intricate process which involves a number of stakeholders and actors. A different, yet equally important aspect deals with understanding and reflecting upon the assumptions that will underlie any specific criminal policy. The goal of this case study is to provide an exercise in understanding these aspects of criminal policy. Within the context of the prostitution debate, the policy of ‘client criminalization’ is selected for this exercise. This type of policy criminalizes the client instead of the prostitute. In Europe, Sweden is among the countries that have applied such criminalization. This policy choice is clearly linked with the way Sweden is attempting to deal with the issue of prostitution. At the same time, this specific example of a criminal policy is not without its flaws or criticisms. As such, we need to address the underlying rationales of this approach in order to understand it properly. A critical reflection of this type of criminal policy is also very useful. Therefore, the goal of this assignment is two-fold. Firstly, address the underlying reasons and assumptions of this type of policy, and secondly, address the criticisms of it. In addition, what are the supposed effects of this type of criminal policy?

Learning goals:

Understanding the Foundations of Criminal Policy

1. Explore Stakeholder Perspectives:

   • Understand the roles of various stakeholders (government, advocacy groups, law enforcement, etc.) in shaping criminal policies like client criminalization.

2. Analyze Underlying Rationales and Assumptions:

   • Examine the societal, cultural, and legal assumptions that underpin the decision to criminalize the client rather than the sex worker.

3. Understand Policy Goals:

   • Learn about the intended objectives of client criminalization, such as reducing demand for prostitution, protecting vulnerable individuals, or reshaping societal attitudes toward prostitution.

Critical Analysis Skills

4. Evaluate Policy Criticisms:

   • Develop skills to critically assess criticisms of client criminalization, such as its impact on sex workers' safety, effectiveness in reducing prostitution, and unintended consequences.

5. Assess the Ethical Implications:

   • Reflect on the ethical and moral dimensions of criminalizing clients, including considerations of justice, autonomy, and human rights.

6. Identify Flaws in Policy Implementation:

   • Recognize potential gaps or failures in enforcing client criminalization policies and their impact on affected communities.

Understanding Policy Outcomes

7. Examine Supposed Effects of Criminal Policy:

   • Learn about the real and intended effects of client criminalization on prostitution rates, societal attitudes, and sex workers' well-being.

8. Understand Unintended Consequences:

   • Reflect on how policies like client criminalization might inadvertently harm or marginalize the people they are designed to protect.

9. Compare Policy Approaches:

   • Understand how client criminalization contrasts with alternative approaches (e.g., legalization, full decriminalization) and their respective outcomes.

Case study: Sexual predators and moral panic

“If you believe the near-daily news stories, sexual predators lurk everywhere: in parks, at schools, in the malls—even in teens' computers. A few rare (but high-profile) incidents have spawned an unprecedented slate of new laws enacted in response to the public's fear. Every state has notification laws to alert communities about released sex offenders. Many states have banned sex offenders from living in certain areas, and are tracking them using satellite technology. Officials in Florida and Texas plan to bar convicted sex offenders from public shelters during hurricanes. Most people believe that sex offenders pose a serious and growing threat. According to Senate Majority Leader Bill Frist, "the danger to teens is high." On April 18, 2005, "CBS Evening News" broadcast, correspondent Jim Acosta reported that "when a child is missing, chances are good it was a convicted sex offender." (Acosta is incorrect: If a child goes missing, a convicted sex offender is actually among the least likely explanations, far behind runaways, family abductions, and the child being lost or injured.) The news media emphasizes the dangers of Internet predators, convicted sex offenders, pedophiles, and child abductions. Despite relatively few instances of child predation and little hard data on topics such as Internet predators, journalists invariably suggest that the problem is extensive, and fail to put their stories in context. The "Today Show," for example, ran a series of misleading and poorly designed hidden camera "tests" to see if strangers would help a child being abducted (see "Stranger Danger: ‘Shocking' TV Test Flawed"). Sex offenders are clearly a threat and commit horrific crimes, but how great is the danger? After all, there are many dangers in the world—from lightning to Mad Cow Disease to school shootings—that are real but very rare. Are they as common—and as likely to attack the innocent—as most people believe?”

Learning goals:

Understanding Media Influence and Moral Panic

1. Analyze Media's Role in Shaping Perceptions:

   • Examine how news coverage and sensationalism contribute to public fears and the phenomenon of moral panic regarding sexual predators.

2. Understand Moral Panic Theory:

   • Explore the concept of moral panic, its origins, characteristics, and the societal conditions that sustain it.

3. Critically Assess Media Framing:

   • Learn how media narratives can exaggerate or distort the prevalence and nature of societal dangers, such as the threat posed by sexual predators.

Evaluating Policy and Social Reactions

4. Examine Policy Responses to Fear:

   • Understand how fear-driven narratives lead to the creation of laws and policies, such as notification laws, residency restrictions, and electronic monitoring of sex offenders.

5. Critique the Effectiveness of Fear-Based Policies:

   • Assess whether laws and policies aimed at managing sex offenders are evidence-based or driven by public perception.

6. Explore the Balance Between Public Safety and Rights:

   • Consider the ethical and constitutional implications of policies like community notification, residency restrictions, and exclusion from emergency shelters.

Critical Thinking and Data Literacy

7. Analyze Data on Sexual Predators and Crime Rates:

   • Learn to critically evaluate statistical claims and assess the prevalence and risk posed by sexual predators compared to other societal dangers.

8. Understand Context and Misrepresentation:

   • Develop the ability to recognize when data or events are taken out of context to amplify fear or bias public opinion.

Societal Implications

9. Understand Public Fear and Its Consequences:

   • Reflect on how fear of sexual predators impacts society, including stigmatization, community division, and the lives of both victims and offenders.

10. Examine Broader Implications of Fear-Based Laws:

    • Consider how such laws affect marginalized populations, due process, and public trust in the criminal justice system.

11. Challenge Assumptions About Danger:

    • Explore the societal and psychological factors that lead to the overestimation of rare dangers, such as sexual predation, while neglecting more common risks.

Case study: Inchoate Offences in criminal law

Inchoate offenses in criminal law refer to incomplete or preparatory crimes that are criminalized even though the full offense has not yet been carried out. These offenses include attempt, conspiracy, and incitement, where the intent to commit a crime is evident, but the criminal act itself may still be in progress or has not been fully executed. The rationale behind criminalizing inchoate offenses is to prevent harm before it occurs by intervening early in the planning or preparatory stages. In the context of terrorism, inchoate offenses are especially important due to the severe consequences associated with terrorist acts. Governments and international organizations have broadened laws to include preparatory acts such as financing terrorism, recruiting individuals, traveling to join terrorist groups, or promoting extremist ideologies. By criminalizing these activities, authorities aim to prevent potential terrorist attacks before they materialize. Examples of inchoate offenses related to terrorism include: - Attempting to detonate a bomb (e.g., the failed Times Square bombing attempt in 2010 by Faisal Shahzad). - Conspiring to commit a terrorist attack (e.g., the 2006 plot to blow up transatlantic flights, which was foiled in the UK). - Incitement to terrorism through speeches or online propaganda encouraging others to commit violent acts (e.g., the prosecution of Anwar al-Awlaki for inspiring terrorist attacks through his online lectures). Inchoate offenses thus allow law enforcement to disrupt terrorist plots at an early stage, minimizing potential threats to public safety. Assess and critically discuss in the tutorial, which means legal systems may seek to prevent the occurrence of risks in our so-called culture of control. Under which circumstances can it be legitimate to introduce offenses aimed at harm prevention? Which doctrinal frictions may arise in this context? Can preventive offenses be restrained in order to avoid overreach?

Learning goals:

Understanding the Concept and Rationale of Inchoate Offenses

1. Define Inchoate Offenses:

   • Understand the meaning of inchoate offenses (e.g., attempt, conspiracy, incitement) and how they differ from completed crimes.

2. Examine the Rationale for Criminalizing Preparatory Acts:

   • Learn why legal systems criminalize acts that are incomplete or preparatory, with a focus on harm prevention and public safety.

3. Explore Context-Specific Applications:

   • Study how inchoate offenses are applied in specific contexts like terrorism, where early intervention is critical.

Critical Analysis of Preventive Justice

4. Understand the Culture of Control:

   • Analyze the concept of the "culture of control," where legal systems focus on managing risks and preventing harm rather than addressing completed acts.

5. Evaluate Legitimacy of Preventive Offenses:

   • Discuss under what circumstances it is legitimate to introduce offenses aimed at preventing potential harms, balancing public safety with individual freedoms.

6. Analyze Doctrinal Challenges:

   • Identify potential conflicts with fundamental legal doctrines, such as the principle of legality, proportionality, and the requirement of a criminal act (actus reus).

7. Explore Ethical Implications:

   • Reflect on the ethical dilemmas involved in criminalizing intent or preparatory actions that may not result in harm.

Legal and Practical Implications

8. Assess Effectiveness in Preventing Terrorism:

   • Evaluate the role of inchoate offenses in disrupting terrorist plots and minimizing threats to public safety.

9. Analyze Risks of Overreach:

   • Consider how laws targeting inchoate offenses can lead to overcriminalization, profiling, or infringing on civil liberties.

10. Examine the Balance Between Security and Liberty:

    • Reflect on how legal systems can balance the need for early intervention with the protection of fundamental rights, such as freedom of expression and due process.

Comparative and Policy Analysis

11. Compare Legal Approaches Internationally:

    • Explore how different jurisdictions approach the criminalization of inchoate offenses, particularly in the context of terrorism.

12. Discuss Restraints on Preventive Offenses:

    • Analyze mechanisms (e.g., judicial review, strict evidentiary standards) that can help prevent the overreach of preventive laws.

13. Examine Doctrinal Innovations:

    • Study how legal systems have adapted traditional doctrines, such as mens rea and actus reus, to justify the prosecution of inchoate offenses.

Developing Critical Thinking and Advocacy Skills

14. Critique Preventive Justice Policies:

    • Learn to critically evaluate policies and practices associated with criminalizing preparatory acts and offer evidence-based critiques.

15. Engage in Policy Recommendations:

    • Develop the ability to suggest balanced, legal, and ethical reforms to address the challenges of inchoate offenses while maintaining public safety.

16. Participate in Constructive Debate:

    • Enhance skills in discussing complex legal issues involving public safety, criminal justice, and human rights.

Case study: Femicides

Femicides refer to the intentional killing of women or girls, primarily because of their gender. This form of gender-based violence is often rooted in misogyny, sexism, and patriarchal structures that devalue women's lives. Femicides can occur in intimate partner relationships, within the family, or as a result of broader societal violence against women. They are considered the most extreme form of gender-based violence and can include not only physical murder but also forms of psychological and sexual abuse that culminate in the killing of a woman. Prevalence varies globally, with higher rates in countries where gender inequality and impunity are prevalent. Latin American nations like Mexico, Brazil, and El Salvador have some of the highest femicide rates, often linked to organized crime, machismo culture, and inadequate state protection. However, the issue is widespread, affecting countries in Europe, Asia, and Africa as well. Criminal justice systems struggle to deal with femicides effectively due to various factors, including underreporting, insufficient legal frameworks, and societal norms that downplay violence against women. Many countries are introducing femicide-specific laws, specialized police units, and dedicated judicial processes to address this issue. However, systemic failures, such as slow investigations and a lack of gender sensitivity, often lead to impunity. Femicides hold significant relevance within the criminological discipline of victimology, which focuses on understanding the dynamics of victimization, the relationships between victims and offenders, and societal responses to victims. Femicides are a critical area of study because they highlight the gendered nature of violence, illustrating how certain social, cultural, and systemic factors disproportionately affect women.

Learning Goals:

Understanding the Concept and Dynamics of Femicides

1. Define Femicides and Their Characteristics:

   • Understand what constitutes femicides, including their gendered nature, forms, and root causes such as misogyny, sexism, and patriarchal systems.

2. Explore the Scope and Prevalence:

   • Learn about the global and regional prevalence of femicides and the factors contributing to variations in rates, such as cultural norms, organized crime, and gender inequality.

3. Understand Victimology Perspectives:

   • Examine femicides through the lens of victimology, focusing on the dynamics of victimization, relationships between offenders and victims, and systemic responses to victimization.

Analyzing Root Causes and Societal Factors

4. Examine Gender-Based Violence and Inequality:

   • Explore how broader societal issues such as gender inequality, machismo culture, and systemic misogyny contribute to femicides.

5. Understand the Role of Intersectionality:

   • Analyze how intersecting factors like race, class, socioeconomic status, and cultural norms impact the risk and response to femicides.

6. Critique Structural and Systemic Failures:

   • Investigate systemic factors, such as weak legal frameworks, social norms that trivialize violence against women, and institutionalized impunity, that perpetuate femicides.

Legal and Policy Responses

7. Analyze Legal Frameworks for Addressing Femicides:

   • Learn about femicide-specific laws, their implementation, and their effectiveness in different regions.

8. Explore Criminal Justice Responses:

   • Understand the challenges faced by police, prosecutors, and courts in investigating and prosecuting femicides, including underreporting, slow investigations, and lack of gender sensitivity.

9. Assess Prevention Strategies:

   • Examine policies and initiatives aimed at preventing femicides, such as awareness campaigns, gender-sensitive training for law enforcement, and protective measures for women at risk.

Critical Thinking and Advocacy

10. Evaluate Societal Responses:

    • Critically assess societal attitudes and cultural norms that influence how femicides are perceived, reported, and addressed.

11. Propose Policy Improvements:

    • Develop evidence-based recommendations for improving legal, social, and institutional responses to femicides, with a focus on reducing impunity and protecting women.

12. Engage with International Perspectives:

    • Compare approaches to femicides globally, identifying best practices and areas for improvement in various legal and cultural contexts.

Broader Social Implications

13. Reflect on the Impact of Femicides:

    • Understand the devastating impact of femicides on victims' families, communities, and society at large, including their role in perpetuating gender-based violence.

14. Highlight the Importance of Gender Sensitivity:

    • Learn the importance of gender-sensitive policies and practices in addressing violence against women and fostering societal change.

15. Connect Femicides to Broader Gender Justice Goals:

    • Explore how addressing femicides ties into broader efforts to promote gender equality, reduce violence against women, and challenge patriarchal structures.

Developing Critical Analysis and Research Skills

16. Critically Analyze Case Studies:

    • Develop skills to analyze specific femicide cases, focusing on the interplay between cultural, legal, and systemic factors.

17. Engage in Interdisciplinary Thinking:

    • Connect criminological insights about femicides with sociological, legal, and human rights perspectives.

18. Enhance Advocacy and Awareness Skills:

    • Build the ability to communicate the urgency of addressing femicides to diverse audiences and advocate for systemic change effectively.

Case study: The Kenneth Parks case

One early Saturday morning in May 1987, Kenneth Parks arose from his bed and went outside to his car. He proceeded to drive the car more than 20 kilometres from Pickering, east of Toronto, to Scarborough, where his mother- and father-in-law lived. Upon arriving at his inlaws’ house, he retrieved a tire iron from the car, entered the house, and bludgeoned his motherin-law to death. He also nearly suffocated his father-in-law, though the man survived. After the attack, Parks drove to a police station and told police that he thought he had killed someone. He was charged with murder and attempted murder, but he pleaded not guilty, arguing that during the entire time that morning — while driving, while attacking his in-laws and while speaking with the police — he was asleep. One year later, a jury agreed. The jury acquitted Parks, in part as a result of evidence that electrical signals produced by his brain — as measured by an electroencephalogram (EEG) — were extremely unusual and further evidence that such readings are, unlike a polygraph, impossible to fake. Parks’ defence, which is known as non-insane automatism, suggests that Parks committed no voluntary act, since he was in an “automatic” state at the time — that he was, in effect, an automaton — much like an epileptic who hits someone while experiencing a seizure. As one could expect, the defence is rarely used and even more rarely successful. Yet as the Parks case displays, neuroscience evidence can help a defendant establish the necessary elements of an automatism defence and, more broadly, can influence jurors’ — and judges’ — determination of whether a defendant should be held criminally responsible.

Neuroscience on trial?

This raises a host of questions about the interaction between neuroscience and law, questions that the burgeoning field of study known as “neurolaw” is tasked with asking and answering. Questions like, will neuroscience ultimately force us to accept a revolutionary new conception of criminal responsibility, or to do away with the concept altogether? Alternatively, will neuroscience help us to design appropriate sentences for offenders, or to predict and ultimately reduce their chances of reoffending? Will we one day be able to read people’s minds, to tell if they’re lying or in pain or simply thinking bad thoughts? And what should we do with such knowledge? Those questions might sound much like science fiction, but given the influence neuroscience is already having on the law, they are no idle matter. And at least some members of the judiciary recognize as much, with Justice Ian Donald, chairman of the British Columbia Court of Appeal’s education committee, saying: “We might have to face up to a profound change in our concept of criminal responsibility.” That potential change seems all the more likely given that neuroscientific evidence is appearing in court with increasing frequency.

Free will?

Many neuroscientists suggest that neuroscience will ultimately have a revolutionary effect on law, as it will force us to abandon crucial legal and moral concepts like responsibility, guilt and blameworthiness. Put simply, the argument runs as follows: All behaviour is the product of the brain, of our neurological makeup. While we might believe that we freely choose our actions, neuroscience will eventually demonstrate that those actions are really the product of prior causes, of various events that occur at the neural level. Or, as Stanford University neurobiologist Robert Sapolsky puts it, neuroscience “seems to hold the danger of a world of criminal justice in which there is no blame, but only prior causes.” Hence, our belief that we are free to choose our actions — our belief in free will — is an illusion. And if there is no free will, then we are merely mechanistic beings blown hither and thither by causes beyond our control. In other words, we are all like Kenneth Parks, we are all automatons. This theory has profound consequences for societal institutions like law and morality. For it means that much like the case of Kenneth Parks, we ought not hold anyone responsible for their actions. Indeed, it means the law ought to abandon concepts like responsibility and guilt, concepts that arose from a naive, pre-scientific understanding of human behaviour. Although that argument might appear compelling, Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania, argues it is fundamentally confused. To begin with, Morse notes that “neuroscience is simply the most recent mechanistic causal science that appears deterministically to explain behaviour.” Indeed, before the advent of neuroscience, we frequently heard behaviourists argue that all behaviour was the product of prior causes, though not necessarily neural ones. Morse doesn’t quarrel with the idea that behaviour is caused; instead, he argues that causation, or the absence of free will, has no bearing on criminal responsibility. The law, says Morse, sees people as capable of responding to reasons — as rational — and it provides people with reasons to act or not act.

Rational capacity

This idea of being capable of assessing reasons and changing one’s actions in response to reasons is consistent with the notion that all behaviour is the product of prior causes — in fact, the reason the law gives to act or not act in a certain way could well be one such prior cause. That the law sees people as capable of responding to reasons, rather than as capable of willing uncaused actions, is also evident from the classic legal excuse: insanity, or as it’s called in Canada, “not criminally responsible by reason of mental disorder.” For a defendant to be excused of responsibility on this ground, the defendant must prove not that he lacked free will, but that he was incapable of appreciating the nature and consequences of his actions or appreciating that his actions were wrong — or to put it another way, that he lacked rational capacity, that he was incapable of responding to reason. The law’s conception of criminal responsibility is therefore entirely consistent with the idea that all our behaviour is caused, that our actions are determined. Hence deterministic theories that suggest humans lack free will present no threat to criminal responsibility. Philosopher Daniel Dennett similarly labels freedom from all prior causes — what he calls “metaphysical” free will — a “preposterous idea.” Furthermore, he argues that some neuroscientists have been led astray because they assume that metaphysical free will is the only kind of free will there is. But according to Dennett, there is another kind of free will, and in contrast to the preposterous metaphysical variety, it is “free will worth having.” It is none other than the ability “to be moved by reasons, to be able to trade ... compare and evaluate reasons” — in other words, exactly the kind of free will upon which, according to Morse, the law depends. And this form of free will — which is a “necessary condition for ... taking life seriously” — is also free from the neuroscientific threat. Or is it? As it turns out, neuroscience also has this form of free will in its sights. For example, Sapolsky points out that, “it is possible to know the difference between right and wrong (and therefore not be eligible for a finding of not criminally responsible) but, for reasons of organic impairment, to not be able to do the right thing.”

Right and wrong

This inability to do the right thing is nicely demonstrated by the Iowa Gambling Task. Participants are presented with a number of decks from which to choose cards. Some cards result in the participants winning money, while other cards result in a loss. And some decks (good decks) are more likely to contain winning cards. Participants with “normal” brains eventually realize which decks are good, and only take cards from those decks. But participants with damage to the brain’s orbitofrontal cortex often stick with bad decks, even when they know it will result in an overall loss. In effect, they seem incapable of ceasing to act in a way that results in harm to themselves — that is, much like people found not criminally responsible, they are incapable of doing the right thing, though unlike people found not criminally responsible, they do know what the right thing is. If that is so, then it stands to reason that they should also be relieved of responsibility for their behaviour, since in a purely descriptive sense, they’re not responsible. It’s not just neuroscientists who think so: Steven Penney, associate dean of law at the University of Alberta, argues eloquently that the law of criminal responsibility can and should accommodate impulse disorders.

Questions that have to be studied:

1. Some neuroscientists argue that in the end, we are all like Kenneth Parks? What do they mean by that and why do they say that?

2. Some neuroscientists challenge the existence of free will. But what is (philosophically speaking) free will? Is it the same as the freedom to act as one wants?

3. Please explain the relationship between the (problem of) free will and the two major

   theories of punishment: consequentialism and retributivism?

4. What are the three main philosophical responses to the problem of free will (and determinism)?

5. In their article, Green and Cohen seem to agree first with Morse’s view “that there is nothing on the neuroscientific horizon that it cannot handle. The reason that the law is

   immune to such threats is that it makes no assumptions that neuroscience, or any

   science, is likely to challenge.” (p. 1778). Please explain why they agree with Morse

   to a certain extent

6. In his critical article Professor Stephen Morse tries to warn us against what he

   cynically calls the pathology of “Brain Overclaim Syndrome”. What does he mean by

   that?

7. Why does Morse make a clear distinction between an internal and external critique of

   neuroscience against our concept of criminal responsibility?

8. How should one think about the relationship between neuroscience and the field of

   law? Should the latter be subservient to the former? When is neuroscientific evidence

   possibly relevant and what are its limits?

9. What is the so-called “psycholegal error”?

10. What are necessary (but also sufficient) criteria for responsibility? What are some

    major (neuroscientific) misunderstandings regarding criteria for responsibility?

11. Later in their article Green and Cohen argue that the law nevertheless stands on

    shakier ground than Morse would suggest. What are the main arguments for their view that neuroscience would indeed be able to change some foundations of criminal law?

12. Could you explain the relevance of the “Mr. Puppet” thought experiment?

13. What may the possible role of ‘folk-psychology’ in this debate?

14. Are we in your opinion facing a Neurolaw revolution?