The Structure, Function, and Future of Mental Health Law.

This essay considers the foundational rationale for why the law treats at least some mentally disordered people specially in a wide array of civil and criminal contexts. It suggests that non-responsible incapacity for rational behavior in specific contexts is the primary principle that warrants special legal treatment. It also considers the major distractions and confusions about why such special treatment is sometimes justifiable. It concludes with the reductionist challenge to conceptions of mental disorder and more broadly to the law that some advocate, usually based on the new neuroscience of brain imaging.

Predicting the knowledge-recklessness distinction in the human brain.

Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria. We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those risks possessed by the participants. Our results provide neural evidence of a detectable difference in the mental state of knowledge in contrast to recklessness and suggest, as a proof of principle, the possibility of inferring from brain data in which legally relevant category a person belongs. Some potential legal implications of this result are discussed.

Neurolaw: Challenges and limits.

This chapter canvasses the current relevance of behavioral neuroscience to the law, especially to issues of criminal responsibility and competence. It begins with an explanation of the legal doctrines at stake. I then explore the source of the often-inflated claims for the legal relevance of neuroscience. The next section discusses the scientific status of behavioral neuroscience. Then, it addresses two radical challenges to current conceptions of criminal responsibility that neuroscience allegedly poses: determinism and the death of agency. The question of the specific relevance of neuroscience to criminal law doctrine, practice, and institutions is considered next. This is followed by a discussion of how neuroscience evidence is being used in criminal cases in five different countries, including the United States. The penultimate section points to some areas warranting modest optimism. A brief conclusion suggests that neuroscience is at present of limited legal relevance, and advances in the science might alter that judgment.

Remodelling criminal insanity: Exploring philosophical, legal, and medical premises of the medical model used in Norwegian law.

This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the 'medical model' model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis can illuminate the law's understanding of insanity and its relation to mental disorder. The authors eventually raise the question whether the medical model can be reconstructed into a unified insanity model that is valid across the related disciplinary perspectives, and that moves beyond current insanity models.

The ethics of forensic practice: reclaiming the wasteland.

After beginning with a warm appreciation of Alan Stone's scholarship and character, this article argues that Stone's woeful characterization of forensic practice as a wasteland that has no genuine ethical guide to practice and little to contribute is vastly overstated. It claims that the basis for useful ethical practice is rooted in a proper understanding of the law's folk psychological model of behavior and criteria. Then it suggests the proper bounds of forensic practice, including an aspirational list of do's and don'ts. The view presented is deflationary and cautious compared to what the law permits and most practitioners do, but it still leaves forensic practitioners with a wide and important role in the legal system.

The Science of Addiction and Criminal Law.

Although there is debate in the scientific and clinical literature about how much choice addicts have concerning the use of drugs and related activities, this article demonstrates that Anglo-American criminal law is most consistent with the position that addicts have substantial choice about engaging in crimes involving their addiction. It suggests that the criminal law's approach is consistent with plausible and reasonable current scientific and clinical understanding of addiction and is therefore defensible, but it also suggests that the law is unduly harsh and far from optimum.

Commentary: reflections on remorse.

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

Abolition of the insanity defense violates due process.

This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section considers and rejects standard practical arguments in favor of abolishing the insanity defense.

Genetics and criminal responsibility.

Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred. Advocates have tried to use genetic evidence to affect judgments of criminal responsibility. At present, however genetic research can provide little aid to assessments of criminal responsibility and it does not suggest a radical critique of responsibility.

The non-problem of free will in forensic psychiatry and psychology.

This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.

New neuroscience, old problems: legal implications of brain science.

Despite a large and growing interest in applying brain science to the ends of justice, the implications of neuroscience for the law are still unclear. But Stephen Morse argues that, unless discoveries about the brain radically change our conception of ourselves, they are unlikely to fundamentally alter legal doctrine. For most challenges the findings might raise to justice, equality, and liberty, he writes, the law has rich theoretical resources with which to address them. On the other hand, the author acknowledges, one can easily imagine substantial changes in particular doctrines.

Medicine and morals, craving and compulsion.

Thinking about addictions has been dominated by two models: the medical model, which treats addiction as a disease and related behaviors as signs and symptoms, and the moral model, which views addiction and related behaviors as indications of moral failure. This article describes both models and their implications, with special emphasis on the moral model. The meaning of compulsion or coercion caused by internal psychological states, such as craving, is explored to determine if addicts may fairly be held morally and legally responsible for their behavior, such as seeking and using substances. It is argued that diminished rationality better explains than compulsion why addicts might be excused for their behavior, but it is concluded that most addicts can be held responsible for most addiction-related behavior. Nonetheless, both models have desirable characteristics, and sound public policy should not be based solely on either. The implications for criminal justice of employing both models to guide policy are explored.

Involuntary competence.

This article addresses whether the state has the right to medicate involuntarily a defendant who is incompetent either to plead guilty or to stand trial for the purpose of restoring legal competence. It first presents the constitutional background concerning incompetence and the right of prisoners generally to refuse psychotropic medication. Then the article examines the individual and state interests that must be considered to decide specifically whether the state may involuntarily medicate a criminal defendant solely for the purpose of restoring competence. Although the individual interests are strong, the article contends that the state does have a right to medicate involuntarily defendants charged with most crimes to restore trial competence, and that adequate remedies are available to ensure that medicated defendants receive a fair trial.