Thursday, May 14, 2015
Ken Levy (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Does Situationism Excuse? The Implications of Situationism for Moral Responsibility and Criminal Responsibility (68 Arkansas Law Review (2015, Forthcoming)) on SSRN. Here is the abstract:
In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: (a) the psychological factors that motivate the individual’s behavior are environmentally determined and (b) her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted.
To get to this conclusion, I will proceed in four steps. In Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption (that moral responsibility is necessary for just blame and punishment) ultimately because we sympathize with agents who lack responsibility for their actions.
Third, in Part IV, I aim to show that even if moral responsibility is not conceptually — only “emotionally” — necessary for just blame and punishment, the traditionally recognized criminal excuses (automatism, duress, entrapment, hypnosis, infancy, insanity, involuntary intoxication, mistake of fact, and mistake of law) are not at risk because, contrary to popular wisdom, they do not really rely on this assumption to begin with. Instead, they stand less for the metaphysical proposition that we should refrain from blaming and punishing the non-responsible and more for the normative/ethical proposition that we should refrain from blaming and punishing those whom we cannot reasonably expect to have acted better. I will further argue that the latter proposition does not necessarily reduce to the former.
Fourth, once I have defended my account of the excuses, I will question in Parts V and VI the increasingly popular notion that we should add certain conditions or circumstances to the list of recognized excuses. I will focus on one in particular — the psychological theory of “situationism” — and will argue that, despite its initial plausibility, it should be kept off the list. While situationism arguably does negate moral responsibility, it does not negate criminal responsibility.
Of course, this is a controversial point. Criminal responsibility is almost universally thought to require moral responsibility. But in a previous article, "Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention," 48 San Diego L. Rev. 1299 (2011), I used personality psychology to drive a wedge between the two. In this article, I will use the opposite end of the psychological spectrum — social psychology — to drive the same important wedge.