Neuroscience, Justice and the ‘Mental Causation’ Fallacy

John A. Humbach, Neuroscience, Justice, and the ‘Mental Causation’ Fallacy, 11 Wash. U. Jur. Rev. 191 (2019).

Abstract: This article takes direct aim at a foundational assumption of modern criminal justice, namely, that there is such a thing as “mental causation,” viz. that criminal acts are caused or influenced by mental states such as intentions or volitions. The pre-scientific supposition that mental states can cause criminal acts is the primary basis for holding that people “deserve” to suffer punishment and, as such, is the most serious barrier to acceptance of neuroscience in criminal justice reform. However, this key justification for modern criminal justice practices is premised on a logical fallacy and is ripe for review.

A growing body of neuroscience evidence shows that human behavior, like that of all other animals with brains, is produced by observable physiological activity in the brain and central nervous system — all in accordance with ordinary physical laws. Beyond these ordinary physiological interactions and processes, no hypothesis of mental causation is required to causally explain behavior. Everything a person does is the result of chains of causation originating outside the person’s body and far back in time.

Despite the evidence, neuroskeptics insist that intentions, reasons and other mental states can play a causal role in producing human behavior. The evidentiary case for mental causation turns out, however, to be premised on a well-known logical fallacy, post hoc ergo propter hoc. Meanwhile, based on the best explanation of all the evidence and data, mental causation almost certainly cannot and does not occur. Therefore, if mental causation is indeed the basis on which offenders are deemed to be responsible and to deserve suffering as punishment, the case for criminal responsibility and current punishment practices is fatally defective.

To be sure, society will likely always need to use coercive measures to deal with individuals who pose dangers and risks that are too socially intolerable to allow. The findings of neuroscience suggest, however, that these measures should be justified on bases that do not presuppose that offenders “deserve” suffering due to mental causation. Even while coercive measures to protect public safety are a practical and moral necessity, their nature and quality may be very different if they no longer are predicated on the premise that people “deserve” to suffer hardship, misery and deprivation purposely inflicted by the state.

When Morality Opposes the Law: An fMRI Investigation into Punishment Judgments for Crimes with Good Intentions

Qun Yang, Robin Shao, Qian Zhang, Chun Li, Yu Li, Haijiang Li & Tatia Lee, When Morality Opposes the Law: An fMRI Investigation into Punishment Judgments for Crimes with Good Intentions, 127 Neuropsychologia 195 (2019).

Abstract: In judicial practice, morally right but legally wrong instances usually pose significant challenges for legal decision makers. To examine the cognitive and neural foundations of legal judgments in criminal cases involving apparent moral conflicts, we scanned 30 female participants during punishment judgments for crimes committed with good intentions. The behavioral results confirmed that moral acceptability was significantly correlated with the punishment ratings only in the good-intentioned crimes. The fMRI data mainly revealed that the right temporoparietal junction (rTPJ) plays special roles in processing criminal offenders’ state of mind and that the right dorsal lateral prefrontal cortex (rDLPFC) plays roles in resolving moral conflicts involved in legal judgments. Specifically, we found that compared to the bad-intentioned scenarios, the good-intentioned scenarios evoked greater activities during the postreading stage in the brain area of the rTPJ and that a signal increase in the rTPJ was associated with more lenient penalty judgments in the good-intentioned scenarios. Furthermore, reading crime scenarios with good intentions elicited stronger activation in the rdlPFC, which showed enhanced functional connectivity with the medial prefrontal cortex (mPFC). Overall, our study sheds some light on the neurocognitive underpinnings of legal judgments in special criminal cases and enhances our understanding of the relationship between legal and moral judgments.

Neuroscience and the Personalization of Criminal Law

Deborah W. Denno, Neuroscience and the Personalization of Criminal Law, 86 U. Chi. L. Rev. 359 (2019).

Abstract: While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. The data gathered from these cases suggest that simplistic views that regard neuroscience as either entirely exculpatory or solely indicative of future dangerousness are misinformed. Second, this Essay posits a probabilistic theory of analyzing evidence based on Bayes’s Theorem. Bayes’s Theorem offers a compelling model of human reasoning that comports with the process of assessing a defendant’s culpability in legal settings. Neuroscientific evidence can thus be understood as a means of modifying initial beliefs and mitigating implicit biases in criminal contexts. Employing these tools, I analyze the impact of personalized evidence on criminal defenses, which I argue are strongly motivated by probabilistic determinations of a defendant’s culpability. These determinations have significant impacts beyond individual cases and can contribute to trends in litigation funding. This Essay systematically argues that personalization, fueled by neuroscientific evidence, can provide gains in fairness and efficiency, especially when admitted in the context of criminal defenses, due to their emphasis on probabilistic determinations of culpability.

The Integration and Separation Effect of Moral Judgment:Evidence from Event-Related Potentials

Xie Qing, Yang Qun & Tian Xuehong, The Integration and Separation Effect of Moral Judgment:Evidence from Event-Related Potentials, 2 Psych. Exploration 178 (2018).

Abstract: The study used event-related potentials methods combined with a two-choice oddball paradigm in an attempt to add new evidence to the “unified” vs “diverse” debate by looking into the online processing of moral judgments. There were no significant differences in the P2 components of different types of immoral behaviors.All three types of immoral words evoked greater N2 amplitudes than neutral words.Words related to sexual disgust elicited the greatest N2 amplitudes.On P300 and late positive components,sexual disgust words induced greater amplitudes than the other conditions.The main results suggest that moral transgressions about physical harm,dishonest and sexual disgust may share a common mechanism in the early stage of online processing and tend to dissociate from each other in the later stage in the time course of processing.

The Biology of Guilt: Neuroscience in the Courts

Beth Baker, The Biology of Guilt: Neuroscience in the Courts, 68 Bioscience 628 (2018).

Abstract: Neuroscience, especially brain imaging, is here to stay in the US legal system. That is the verdict of experts in the emerging field of neuroscience and the law. Tests such as PET (positron emission tomography) scans and MRI (magnetic resonance imaging) are being used to help assess a defendant’s competency to stand trial, determine the extent of brain damage in disability cases, prove insanity defenses, and reduce sentencing, among many other purposes.

Brain Activation Covaries with Reported Criminal Behaviors When Making Risky Choices: A Fuzzy-Trce Theory Approach

Valerie F. Reyna, Rebecca K. Helm, Rebecca B. Weldon, Pooja D. Shah, Alexa G. Turpin, & Shravya Govindgari, Brain Activation Covaries with Reported Criminal Behaviors when Making Risky Choices: A Fuzzy-Trace Theory Approach, 147(7) J. Experimental Psychol.: Gen. 1094 (2018).

Abstract: Criminal behavior has been associated with abnormal neural activity when people experience risks and rewards or exercise inhibition. However, neural substrates of mental representations that underlie criminal and noncriminal risk-taking in adulthood have received scant attention. We take a new approach, applying fuzzy-trace theory, to examine neural substrates of risk preferences and criminality. We extend ideas about gist (simple meaning) and verbatim (precise risk-reward tradeoffs) representations used to explain adolescent risk-taking to uncover neural correlates of developmentally inappropriate adult risk-taking. We tested predictions using a risky-choice framing task completed in the MRI scanner, and examined neural covariation with self-reported criminal and noncriminal risk-taking. As predicted, risk-taking was correlated with a behavioral pattern of risk preferences called “reverse framing” (preferring sure losses over a risky option and a risky option over sure gains, the opposite of typical framing biases) that has been linked to risky behavior in adolescents and is rarely observed in nondisordered adults. Experimental manipulations confirmed processing interpretations of typical framing (gist-based) and reverse-framing (verbatim-based) risk preferences. In the brain, covariation with criminal and noncriminal risk-taking was observed predominantly when subjects made reverse-framing choices. Noncriminal risk-taking behavior was associated with emotional reactivity (amygdala) and reward motivation (striatal) areas, whereas criminal behavior was associated with greater activation in temporal and parietal cortices, their junction, and insula. When subjects made more developmentally typical framing choices, reflecting nonpreferred gist processing, activation in dorsolateral prefrontal cortex covaried with criminal risk-taking, which may reflect cognitive effort to process gist while inhibiting preferred verbatim processing.

Responsible Brains: Neuroscience, Law, and Human Culpability

Katrine L. Sifferd, Tyler Fagan & William Hirstein, Responsible Brains: Neuroscience, Law, and Human Culpability, MIT Press (Forthcoming 2018).

Abstract: When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? What mental illnesses would justify legal pleas of insanity? In Responsible Brains, philosophers William Hirstein, Katrina Sifferd, and Tyler Fagan examine recent developments in neuroscience that point to neural mechanisms of responsibility. Drawing on this research, they argue that evidence from neuroscience and cognitive science can illuminate and inform the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility.

In Defense of Free Will: Neuroscience and Criminal Responsibility

Paul G. Nestor, In defense of free will: Neuroscience and criminal responsibility, 57 Int’l J. Law & Psychiatry (2018).

Abstract: Is neuroscience the death of free will and if so, does this mean the imminent demise of the psycho-legal practices related to insanity and criminal responsibility? For many scholars of neuro-jurisprudence, recent advances in brain sciences suggesting that the perception of free will is merely illusory, an epiphenomenon of unconscious brain activity, do indeed undermine our traditional understandings of moral and legal responsibility. In this paper, however, we reject this radical claim and argue that neuroscientific evidence can indeed reveal how free will actually works and how its underlying neural and perceptual machinery gives rise to our sense of responsibility for our actions. First, the experience of free will is recast in terms of neuroscientific studies of agency and willed action. Second, evidence is presented of a neural network model linking agency to widely-distributed brain areas encompassing frontal motor and parietal monitoring sites. We then apply these findings to criminal responsibility practices by demonstrating (a) how the experience of intentionality and agency is generated by specific interactions of this discrete frontal-parietal network, (b) how mental disease/defect may compromise this network, and (c) how such pathologies may lead to disturbances in the sense of agency that often are central to the phenomenological experience of psychosis. The paper concludes by examining criminal responsibility practices through the lens of cultural evolution of fairness and cooperation.

Rethinking the Voluntary Act Requirement: Implications from Neuroscience and Behavioral Science Research

R. Fondacaro, Rethinking the Voluntary Act Requirement: Implications from Neuroscience and Behavioral Science Research, Behav. Sci. L. (Forthcoming 2018).

Abstract: Criminal responsibility in the American legal system requires the presence of an actus reus — a harmful act that was committed voluntarily — and a mens rea, or guilty mind. Courts frequently consider questions surrounding mens rea but rarely question whether an act was committed voluntarily. Thus, courts presume that acts have been committed voluntarily and with an ill will; retribution, which serves the primary basis for punishment in the United States, relies on this presumption. Research in neuroscience and the behavioral sciences, however, suggests this presumption is flawed and not sufficiently robust to justify punishment that is grounded in retribution. In this paper we discuss the presumption of voluntariness and free will inherent in the law, provide examples of how the courts have conflated actus reus and mens rea and the consequences of doing so, and the implications of neuroscience and behavioral science research for actus reus (also known as the voluntary act requirement). Finally, we propose re-conceptualizing punishment within a consequentialist, empirically-based framework that does not rely on folk psychological notions about human behavior and reinvigorates the actus reus as the foundational requirement for legal responsibility.

Crime, Punishment, and Causation: The Effect of Etiological Information on the Perception of Moral Agency

Philip Robbins & Paul Litton, Crime, Punishment, and Causation: The Effect of Etiological Information on the Perception of Moral Agency, 24 Pub. Pol’y & L. 118 (2018).

Abstract: Moral judgments about a situation are profoundly shaped by the perception of individuals in that situation as either moral agents or moral patients (Gray & Wegner, 2009; Gray, Young, & Waytz, 2012), Specifically, the more we see someone as a moral agent, the less we see them as a moral patient, and vice versa. As a result, casting the perpetrator of a transgression as a victim tends to have the effect of making them seem less blameworthy (Gray & Wegner, 2011). Based on this theoretical framework, we predicted that criminal offenders with a mental disorder that predisposes them to antisocial behavior would be judged more negatively when the disorder is described as having a genetic origin than when it is described as environmentally caused, as in the case of childhood abuse or accident. Further, we predicted that some environmental explanations would mitigate attributions of blame more than others, namely, that offenders whose disorder was caused by childhood abuse (intentional harm) would be seen as less blameworthy than offenders whose disorder is caused by an unfortunate accident (unintentional harm). Results from two vignette-based studies designed to test these predictions, conducted with participants recruited from Amazon Mechanical Turk (N = 244 and N = 387, respectively), confirmed the first prediction but not the second. Implications of this research for three areas–the psychology of moral judgment, philosophical debates about moral responsibility and determinism, and the practice of the law–are discussed in the sequel.

The Neuroscience of Morality and Social Decision-Making

Keith J. Yoder & Jean Decety, The Neuroscience of Morality and Social Decision-Making, 24(3) Pyschol., Crime & L. 279 (2018).

Abstract: Across cultures humans care deeply about morality and create institutions, such as criminal courts, to enforce social norms. In such contexts, judges and juries engage in complex social decision-making to ascertain a defendant’s capacity, blameworthiness, and culpability. Cognitive neuroscience investigations have begun to reveal the distributed neural networks which interact to implement moral judgment and social decision-making, including systems for reward learning, valuation, mental state understanding, and salience processing. These processes are fundamental to morality, and their underlying neural mechanisms are influenced by individual differences in empathy, caring and justice sensitivity. This new knowledge has important implication in legal settings for understanding how triers of fact reason. Moreover, recent work demonstrates how disruptions within the social decision-making network facilitate immoral behavior, as in the case of psychopathy. Incorporating neuroscientific methods with psychology and clinical neuroscience has the potential to improve predictions of recidivism, future dangerousness, and responsivity to particular forms of rehabilitation.

Decoding Guilty Minds

Ginther, Matthew and Shen, Francis X. and Bonnie, Richard J. and Hoffman, Morris B. and Jones, Owen D. and Simons, Kenneth W., Decoding Guilty Minds (November 11, 2017). Forthcoming in Vanderbilt Law Review (2018); UC Irvine School of Law Research Paper No. 2017-59. Available at SSRN:

Abstract: A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of criminal justice, there has been very little research investigating how people go about making these decisions, and how these decisions relate to their intuitions about culpability. Understanding the cognitive mechanisms that govern this task is important for the law, not only to explore the possibility of systemic biases and errors in attributions of culpability but also to probe the intuitions that underlie them.

In a set of six exploratory studies reported here, we examine the way in which individuals infer others’ legally relevant mental states about elemental facts, using the framework established over fifty years ago by the Model Penal Code (“MPC”). The widely adopted MPC framework delineates and defines the four now-familiar culpable mental states: purpose, knowledge, recklessness, and negligence. Our studies reveal that with little to no training, jury-eligible Americans can apply the MPC framework in a manner that is largely congruent with the basic assumptions of the MPC’s mental state hierarchy. However, our results also indicate that subjects’ intuitions about the level of culpability warranting criminal punishment diverge significantly from prevailing legal practice; subjects tend to regard recklessness as a sufficient basis for punishment under circumstances where the legislatures and courts tend to require knowledge.

Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability

Christopher Slobogin; Neuroscience nuance: dissecting the relevance of neuroscience in adjudicating criminal culpability, Journal of Law and the Biosciences, Volume 4, Issue 3, 1 December 2017, Pages 577–593,

Abstract: The usefulness of neuroscience in determining the blameworthiness of a particular criminal defendant is highly contested. On one side are those who argue that neuroscience is virtually irrelevant in criminal court or useful only as corroborating evidence of legally relevant impairment proven through other means. On the other side are those who contend that neuroscience will soon show, if it has not already shown, that most criminals have little or no control over their behavior. In between are those who recognize the tenuous nature of neuroscientific claims in criminal cases but nonetheless suggest that they can in some cases provide independent evidence relevant to excuse or mitigation.

This article takes issue with all three stances. The first two sets of claims are overstated, and the last type of claim is insufficiently nuanced. Neuroscience does have something to offer court determinations of criminal liability and punishment, but it is far from upending the criminal law’s basic premise that most choices to commit crime are blameworthy. At the same time, those who agree with this intermediate position have not done a particularly good job at clarifying how they think neuroscience can help. Any such clarification needs to recognize that there are many different types of neuroscience evidence and many different types of legal claims that it might address.

I Could Have Done Otherwise: Availability of Counterfactual Comparisons Informs the Sense of Agency

Eugenia Kulakova, Nima Khalighinejad, & Patrick Haggard, I could have done otherwise: Availability of counterfactual comparisons informs the sense of agency, 49 CONSCIOUS COGN. 237 (2017).

Abstract: Personal control and agency are closely associated with the counterfactual notion that a person could have done otherwise (CDO). In both philosophy and law, this counterfactual evaluation determines responsibility and punishment, yet little is known about its influence on agents’ experience during action. We used a risky decision-making task to study how counterfactual evaluations influenced participants’ sense of agency. Two factors were manipulated independently: the presence/absence of counterfactual comparisons between actions and the presence/absence of counterfactual comparisons between outcomes of these actions. Perceived agency was highest when both counterfactual comparisons were available. Interestingly, this pattern persisted even when counterfactual information was only revealed after action, suggesting a purely reconstructive evaluation effect. These findings allow a more precise phrasing of the CDO element of personal agency: a person feels most control when she could have performed another action, thereby obtaining another outcome.