Sunday, February 19, 2012
Steven Penney (University of Alberta - Faculty of Law) has posted Impulse Control and Criminal Responsibility: Lessons from Neuroscience (International Journal of Law and Psychiatry, 2012) on SSRN. Here is the abstract:
Almost all of the world’s legal systems recognize the “M’Naghten” exception to criminal responsibility: the inability to appreciate the wrongfulness of action. This exception rests on the assumption that punishment is morally justified only if the defendant was able to choose whether to do wrong. Jurists and jurisdictions differ, however, on whether to extend M’Naghten’s logic to cases where the defendant understood the wrongfulness of an act but was incapable of resisting an impulse to commit it. In this article I ask whether contemporary neuroscience can help lawmakers to decide whether to adopt or retain this defence, known variously as the “irresistible impulse” defense or the “control” or “volitional” test for insanity. More specifically, I ask firstly, whether it is empirically true that a person can understand the wrongfulness of an act yet be powerless to refrain from committing it; and second (assuming an affirmative answer to the first), whether the law of criminal responsibility can practically accommodate this phenomenon? After canvassing the relevant neuroscientific literature, I conclude that the answer to the first question is “yes.” After examining the varied treatment of the defence in the United States and other nations, I also give an affirmative answer to the second question, but only in limited circumstances. In short, the defence of irresistible impulse should be recognized, but only when it can be shown that the defendant experienced a total incapacity to control his or her conduct in the circumstances.