I just came across this recent article by Steve Erickson entitled "Blaming the Brain." Erickson also discusses his views over at the Crime and Consequences blog. Here is the abstract for his paper:
***
Criminal
law scholarship has recently become absorbed with the ideas of
neuroscience in the emerging field of neurolaw. This mixture of
cognitive neuroscience and law suggests that long established
conceptions of human agency and responsibility are fundamentally at
odds with the findings of science. Using sophisticated technology,
cognitive neuroscience claims to be upon the threshold of unraveling
the mysteries of the mind by elucidating the mechanical nature of the
brain. Despite the limitations of that technology, neurolaw supporters
eagerly suggest that those revelations entail that an inevitable and
radical overhaul of our criminal justice system is soon at hand. What
that enthusiasm hides, however, is a deeper ambition among those who
desire an end to distributive punishment based on desert in favor of a
prediction model heavily influenced by the behavioral sciences. That
model rests squarely on the presumption that science should craft crime
policy at the expense of the authority of common intuitions of justice.
But that exchange has profound implications for how the law views
criminal conduct and responsibility - and how it should be sanctioned
under the law. Neurolaw promises a more humane and just criminal
justice system, yet there is ample reason to believe otherwise.
***
I am always a bit skeptical when the critics of neurolaw treat the nascent field as if it were a monolithic entity. Take, for instance, the 40+ fellows and post-docs who make up the Law and Neuroscience Project (LANP). Given the way critics often talk about "the" field of neurolaw, one would think the LANP would have attracted an ideologically homogeneous group of radicals and revolutionaries who are determined to transform the criminal law. In fact, however, LANP is composed of people from a variety of disciplines who have wide ranging views concerning the transformative potential (or lack thereof) of neuroscience. In practice, neurolaw is a field that includes both those who think neuroscience will radically alter the criminal law (e.g., Joshua Greene) and those who think neuroscience will have a much narrower effect on our notions of agency and responsibility (e.g., Stephen Morse). Moving forward, I think the heterogeneous nature of the growing field of neurolaw needs to be kept in mind by both critics and advocates alike.