he jurors filed into the courtroom and took their seats in the jury box. It had been a long and emotionally draining couple of weeks. The guilt phase of the trial was relatively short — there was no real question of fact as to whether the defendant had murdered the two victims. The main contested questions — the defendant’s legal competence, sanity, and capacity to formulate the requisite mens rea for first degree murder — were also not terribly difficult to decide. Though clearly emotionally troubled and probably even mentally ill, the defendant easily met the (surprisingly low) cognitive and volitional standards for guilt. He knew what he was doing, and appreciated that it was wrongful. He acted with malice aforethought. He could understand the charges against him and assist in his own defense. These were not hard questions.
The sentencing phase of the trial, by contrast, had proven far more difficult to bear. The prosecutor had described in excruciating detail the murders themselves in an effort to show that they were especially “heinous, atrocious, and cruel, manifesting exceptional depravity.” The prosecutor and counsel for the defense each recounted the details of the defendant’s life and character. His broken childhood, marked by unspeakable abuse and neglect. His years of drug and alcohol use. His spotty and unstable employment history. His history of using violence to impose his will and pursue his interests. They even discussed the structure and function of his brain — with reference to an array of colorful poster-board sized images — showing diminished activity in the prefrontal cortex (the seat of reasoning, self-restraint, long term planning) and above-average activity in his limbic system (the more primitive part of his brain, associated with fear and aggression). Relying on a raft of neuroimaging studies, the prosecutor argued that the pattern of activation and structural abnormalities in the defendant’s brain were consistent with “low arousal, poor fear conditioning, lack of conscience, and decision-making deficits that have been found to characterize antisocial, psychopathic behavior.” He further argued that this was not a temporary condition — it was permanent and unlikely to be correctable by any known therapeutic intervention. The prosecutor argued that, taken together, this was the profile of an incorrigible criminal who would certainly kill again if given the chance. The defense argued, to the contrary, that the evidence did not point to any tangible future risk of violence.
The judge then explained to the jurors that they must decide unanimously what punishment was fitting for the crime of conviction: life without parole or a sentence of death. Among other things, the judge explained that “before the death penalty can be considered, the state must prove at least one statutorily-defined aggravating circumstance beyond a reasonable doubt” and that the aggravating factors outweigh all of the mitigating factors. These he described as “any fact or circumstance, relating to the crime or to the defendant’s state of mind or condition at the time of the crime, or to his character, background or record, that tends to suggest that a sentence other than death should be imposed.”
The judge looked up from his jury instructions and turned towards the jury box. “Ladies and gentlemen, let me add a word of caution regarding your judgment about mitigating factors. Some of you may be tempted to ask yourselves ‘Was it really the defendant that did this? Or was it his background? Or his brain?’ You might be tempted to ask yourselves ‘What does this defendant deserve in light of his character, biology, and circumstances?’ Some of you might even be tempted to argue to your fellow jurors that ‘this man does not deserve the ultimate punishment in light of his diminished (though non-excusing) capacity to act responsibly borne from a bad past and a bad brain; capital punishment in this case is disproportionate to the defendant’s moral culpability.’” The judge’s eyes narrowed and he leaned even farther forward. “But, Ladies and gentlemen of the jury, you must not ask such questions or entertain such ideas. The sole question before you, as a matter of law, is much narrower. The only question you are to answer is this: is this defendant likely to present a future danger to others or society? You should treat every fact that suggests that he does present such a danger as an aggravating factor; every fact suggesting the contrary is a mitigating factor. Matters of ’desert,’ ‘retributive justice,’ or proportionality in light of moral culpability are immaterial to your decision. Ladies and gentlemen, this is the year 2040. Cognitive neuroscientists have long ago shown that ‘moral responsibility,’ ‘blameworthiness,’ and the like are unintelligible concepts that depend on an intuitive, libertarian notion of free will that is undermined by science. Such notions are, in the words of two of the most influential early proponents of this new approach to punishment, ‘illusions generated by our cognitive architecture.’ We have integrated this insight into our criminal law. Punishment is not for meting out ‘just deserts’ based on the fiction of moral responsibility. It is simply an instrument for promoting future social welfare. We impose punishment solely to prevent future crime. And this change has been for the better. As another pioneer of the revolution in punishment — himself an eminent cognitive neuroscientist — wisely wrote at the beginning of the twenty-first century: ‘Although it may seem dehumanizing to medicalize people into being broken cars, it can still be vastly more humane than moralizing them into being sinners.’ So, please ladies and gentlemen of the jury. Keep your eye on the ball, and do not indulge any of the old and discredited notions about retributive justice.” With that, the judge adjourned and dismissed the jury so that it could begin its deliberations.
The above hypothetical is obviously fanciful. But it borrows concepts and arguments directly from a current debate that has been unfolding alongside the advent of extraordinary advances in cognitive neuroscience (particularly as augmented by revolutionary imaging technology that affords novel ways to examine the structure and function of the brain). Such advances have breathed new life into very old arguments about human agency, moral responsibility, and the proper ends of criminal punishment. A prominent group of cognitive neuroscientists, joined by sympathetic philosophers, lawyers, and social scientists, have drawn upon the tools of their discipline in an effort to embarrass, discredit, and ultimately overthrow retribution as a distributive justification for punishment. The architects of this cognitive neuroscience project regard retribution as the root cause of the brutality and inhumanity of the American criminal justice system, generally, and the institution of capital punishment, in particular. To replace retribution, they argue for the adoption of a criminal law regime animated solely by the forward-looking (consequentialist) aim of avoiding social harms. This new framework, they hope, will usher in a new era of what some have referred to as “therapeutic justice” for criminal defendants, which is meant to be both more humane and more compassionate.
To be sure, not all cognitive neuroscientists subscribe to this program. Indeed, there are many thoughtful voices who raise opposition to this project on various grounds — some prudential and some principled. Whatever one thinks about the cognitive neuroscience project for criminal punishment, however, it deserves to be taken seriously and its arguments should be followed to their ultimate conclusions. This is my aim in the present chapter. In it, I will discuss the contours of the project and explore the radical conceptual challenge that it poses for criminal punishment in America. I will also offer a critique of the project, arguing that jettisoning the notion of retributive justice in criminal punishment will not lead to a more humane legal regime as supporters of the project hope. Rather, by untethering punishment from moral culpability and focusing entirely on the prediction and prevention of socially harmful behavior, the cognitive neuroscience project eliminates the last refuge of defendants who are legally and factually guilty, but who have diminished culpability owing to some aspect of their character, background, or biology. Indeed, viewed through the lens urged by the cognitive neuroscience project, the only relevance of a non-excusing disposition to criminal behavior is as a justification for incapacitation. The logic of the cognitive neuroscience project could even lead to the embrace of more aggressive use of preventive detention as a solution for categories of criminals that inspire special fears in the polity — including sexual predators and terrorists.
The techniques of cognitive neuroscience are not yet sufficiently developed to support its aspirations. They may never be. But it is always wise to examine the consequences of a nascent moral-technological program before it is upon you and in widespread use. My purpose in this chapter is to take seriously the claims of the cognitive neuroscience project so that we may be clear-eyed about its consequences before we consider embracing it.