1. THE NEW NEUROSCIENCE AND CONSEQUENTIALISM: IMPLICATIONS FOR
PRACTICE OF LAW
Shane Harrell
Masters of Criminal Justice Program
Auburn University at Montgomery

2. THE NEW NEUROSCIENCE AND CONSEQUENTIALISM: IMPLICATIONS FOR
PRACTICE OF LAW
Abstract
Spurred by rapid advances in neuroimaging that allow for observation of the physical operations
of the brain, a functional account of the human mind based on folk psychological concepts of
“free will” and cognitive psychological concepts of “conscious control” are being replaced by a
mechanistic neuroscience that explicate the mind/brain as a deterministic system. This emerging
understanding could have implications for the exercise of law, rendering traditional notions of
responsibility based on free will scientifically and logically void. Theories of corrections based
on retributive precepts grounded in traditional notions of “free will” would similarly face serious
challenges, and be replaced by a scientifically grounded, consequentialist model of corrections.

3. 2 CONSEQUENTIALISM AND LAW
INTRODUCTION
Biological theories of criminality seek to explain criminal behavior and tendencies in
terms of genetic predispositions (Bohman, M., Cloninger, C. R., von Knorring, and Sigvardsson,
1984), body structure (Ellis, 2005) and abnormal hormone levels and deficiencies (Benton,
2007). Biological theories of criminality seek small-scale, mechanistic explanations of criminal
behavior, as compared to the traditional macroscopic explanations offered at the level of
sociology (Skogan, 1974; Tittle, Villemez, and Smith, 1978; Blau and Blau, 1982). The
individual is the focus, and the causative factors of criminal behavior are attributed within the
criminal offender, rather than outside environmental influences. The newest venture in biological
theories of criminality is a rapidly expanding and advancing neuroscience that seeks to explain
the operations of the mind by spelling out the physical functions of brain, and promises to gain a
prominent foothold in informing questions of biological determinants of criminality. However,
before the causal-mechanistic account of misbehavior becomes ascendant, vestiges of dualism
and other scientifically incoherent accounts of human volition must be relegated to the annals of
scientific history.
To what extent the new neuroscience will have bearing on questions of law is the subject
of much debate and discussion (Greene and Cohen, 2004; Morse, 2005; Snead, 2007). Morse
(2005) cautions against “brain overclaim syndrome”, deemed to be an overreliance on the
findings of neuroscience to inform or answer questions of law and criminal responsibility. The
law, Morse claims, is already written and structured in a manner to accommodate and all
discoveries that appear on the neuroscience horizon. Greene and Cohen (2004) admit that one
can make the concession that current legal doctrine is structured to accommodate neuroscientific

4. 3 CONSEQUENTIALISM AND LAW
findings, but that forthcoming neuroscience will ultimately lead to a paradigm shift in our
intuitions about responsibility. This article codifies the sentiments of Greene and Cohen, and
takes the position that the march towards an understanding of the mind as mechanistic brain
activity is inevitable, as captured by the “new neuroscience”. As such, a conceptual paradigm
shift in understanding the mind/brain as a causal, mechanistic system will be accompanied by a
shift in our intuitive conception of the causes of human behavior. This shift will entail that folk
psychological concepts of “free will” and similar cognitive psychological concepts of
“metacognition” or “metacognitive” control will fall by the wayside as logically and
scientifically incoherent accounts of human behavior, replaced by the understanding of humans
as determined systems. Moreover, there are no plausible accounts of free will or so-called
“metacognitive” control that cohere with our scientific or philosophical understanding of the
world around us.
While one can reach an agreement with Morse’s consternations concerning “brain
overclaim syndrome”, the criteria of criminal responsibility as currently written in law makes
ineliminable references to activity instantiated in the brain. Morse (2004) summarizes the
standard of criminal culpability as currently conceived in law: “Criminal law typically defines an
act as an intentional bodily movement performed by an agent whose consciousness is reasonably
intact” [emphasis added]. Morse cautions that it is difficult to imagine how neuroscientific
evidence would be culled from the exact time of the criminal act, (and it seems similarly difficult
to find academicians or philosophers that make such a claim), a nascent neuroscience of
consciousness shows promise in the future of illuminating the proverbial “black box” of the
mind, and this will undoubtedly inform ex ante or ex post evidentialist accounts of a criminal act.

5. 4 CONSEQUENTIALISM AND LAW
Similar questions of the relation of rationality to responsibility will be arbitrated in a similar
manner, with future discoveries and detailed accounts of the neural substrates of rational action.
Morse claims that it is “patently obvious” that behavioral evidence settles questions of agents
acting rationally and consciously, and seems to employ an argumentum ad populum (“few
commentators disagree”) in defense of this assertion (see Morse, 2004, p. 400). However, what it
is in behavioral science that confers a unique status as the criteria for scientific proof of
conscious or rational acts is unclear.
Neuroscience has already made inroads in informing the practice of law. Seiden (2003)
recounts the case of a 40 year-old schoolteacher stricken by an apparently uncontrollable urge to
collect child pornography and make sexual advances towards his stepdaughter. Despite the threat
of incarceration and court ordered Sexaholics Anonymous, the man was unable to curb his
impulses. Before his sentencing, the man complained of severe headaches. Upon examination by
a doctor, he was found to have a tumor that displaced his orbitofrontal lobe, a region of the brain
associated with social decision making (Bechara, 2004). Upon removal of the tumor, the
pedophilic urges subsided, and the man was allowed to return home.
What this case demonstrates is that it is possible to draw a direct line between
neuroscientific evidence and the pronouncements of the legal system. Unfortunately, this very
same case illustrates a not entirely unfounded worry that the imposition of neuroscience in
questions of criminal culpability will result in the absolution of ultimate responsibility. The
concern may be phrased as such; if we are subject to the whims of dysfunctional brains, then we
are not truly the arbiter of our actions, and ultimately not responsible for them. Alternatively, the
concern may be phrased as a question: was it him, or his brain? However tempting this

6. 5 CONSEQUENTIALISM AND LAW
conclusion, it does not necessarily follow from the premise. There is no “I” or “self” that is
independent of the operations of the brain. Damage the brain, alter its chemistry, or allow
orbitofrontal tumors to proliferate unchecked, and anything that we may call the “self” changes
in response.
Those who exonerated the 40-year old man in the case above were correct to draw a
causal connection from the brain tumor to his criminal misbehavior. Where they erred was his
exculpation based on that same fact. He, as a person, was still the agent committing the acts in
question, and absolving this fact may amount to the “brain overclaim syndrome” that Morse
warns against. Still, there is an intuitive sense that criminal punishment for what ultimately
amounts to a medical condition is unfair.
It is at this juncture that a consequentialist model of corrections offers a distinct
advantage over retributivist principles. Consequentialism in correctional practice would justify
punishment based on future beneficial effects, rather than someone getting their “just deserts”. In
the current example, a consequentialist program would see that the 40-year old man be sent to a
forensic psychiatric center, with concerns and provisions for treating his brain tumor, should it
return. In this manner, he is contained or partitioned away from society and those that he may
potentially harm, and still receives the treatment for his tumor that initially was the cause of his
criminality. After treatment, his continued containment at the forensic center for the length of his
sentence would be necessary to ensure that the brain tumor does not return, thereby causing him
to return to criminal behavior once again. Indeed, this was the case; the tumor did return in this
patient, approximately one year later, and he began again his pattern of collecting child
pornography (Seiden, 2003).

7. 6 CONSEQUENTIALISM AND LAW
If the presence of a brain tumor is of some mitigating factor in exacting a retributivist
based punishment of an offender, what then is to be said of offenders absent of such apparently
extenuating circumstances? In the absence of a tumor or some other brain damage, could we then
say that an offender’s “free will” was intact? Pointing to an area of the brain, or some mechanism
within a person, that is free will seems like a hopeless exercise. A more scientifically palatable
case may be made that structures like the orbitofrontal cortex, limbic system, and
neurotransmitters such as vasopressin and oxytocin comprise our circuits that regulate moral and
social behavior (Churchland, 2009). Still, there appears to be no place in these systems for a
primary agent or locus of control that could be reliably called “free will”. The regulation of these
systems and the behavior that they produce are biologically determined, regardless of the
presence or non-presence of tumors or other mitigating factors. The criminal actions of a person
with a brain absent of lesions/tumors/damage are just as determined as a person with such
maladies.
CONCLUSIONS AND DISCUSSION
The position taken here is that whatever operative principles are ultimately at work
(determinism, compatibilism, revisionism) in producing human behavior, there exists no
coherent account of free will that places such an agency as the primary mover, or first cause, of
human behavior. It is in this vein that folk and cognitive psychological intuitions about behavior
fail, and by extension, retributivist notions of punishment seem hopelessly incoherent.
Retributivism, as a program of punishment, is grounded in the intuition that the offender is
ultimately the author of any and all criminal action, without or despite duress or outside factors

8. 7 CONSEQUENTIALISM AND LAW
of influence. Neuroscience and accompanying behavioral science have shown that this is not a
coherent picture of human behavior that can be maintained.
The law has already shown a history of evolving in its treatment of offenders. Centuries
ago, misbehavior and criminal dispositions were regarded as the work of demons and
practitioners of black magic, and people were routinely burned at the stake for such imaginary
transgressions. As scientific, legal, and political progress gave way to modernity, systems of
corrections evolved away from torture, most notably with the passage of the Eighth Amendment
of the Bill of Rights in the United States that forbade cruel and unusual punishment. Correctional
practice has shifted in the modern era to one that contains elements of consequentialism, as
evidenced by the absolution of cruel corporal punishment and the presence of rehabilitation
programs present in many correctional systems. Still, the imposition of long prison sentences for
non-violent drug offenders, lack of adequate mental health care in prisons, and continued
practice of the death penalty are definitive markers of a correctional system that has not quite
completely progressed past retributivist urges. A rapidly advancing neuroscience is at the
forefront of overturning centuries-old intuitions about the nature of human behavior, and will
help serve to facilitate the continued paradigm shift in corrections from retribution to a focus on
the future beneficence of society.

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