Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note
![handle is hein.journals/osjcl3 and id is 403 raw text is: Brain Overclaim Syndrome and Criminal
Responsibility: A Diagnostic Note
Stephen J. Morse*
This brief diagnostic note identifies a cognitive pathology, Brain Overclaim
Syndrome [BOS], that often afflicts those inflamed by the fascinating new
discoveries in the neurosciences. It begins by suggesting how one should think
about the relation of neuroscience (or any other material explanation of human
behavior) to criminal responsibility, distinguishing between internal and external
critiques based on neuroscience. It then describes the signs and symptoms of BOS,
the essential feature of which is to make claims about the implications of
neuroscience for criminal responsibility that cannot be conceptually or empirically
sustained. It then applies the diagnostic lens of BOS to the claims in Roper v.
Simmons. Finally, the article recommends Cognitive Jurotherapy [CJ] as the
therapy of choice for BOS.
I. INTRODUCTION
Brains do not commit crimes; people commit crimes. This conclusion should
be self-evident, but, infected and inflamed by stunning advances in our
understanding of the brain, advocates all too often make moral and legal claims
that the new neuroscience does not entail and cannot sustain. Particular brain
findings are thought to lead inevitably to moral or legal conclusions. Brains are
blamed for offenses; agency and responsibility disappear from the legal landscape.
For example, in Roper v. Simmons,' advocates for abolition of the death penalty for
adolescents who committed murder when they were sixteen or seventeen years old
argued that the demonstrated lack of complete myelination of the cortical neurons
of the adolescent brain was reason to believe that sixteen and seventeen year old
murderers were insufficiently responsible to deserve capital punishment. These
types of responses, I claim, are the signs of a disorder that I have preliminarily
entitled Brain Overclaim Syndrome [BOS].
This brief diagnostic note first lays the contextual foundation for how one
should think about the relation of neuroscience to criminal responsibility. Then it
attempts to identify the nature of the pathology, to offer the criteria for the
Ferdinand Wakeman Hubbell Professor of Law & Professor of Psychology and Law in
Psychiatry, University of Pennsylvania. This diagnostic investigation was first reported at a
conference on the mind of a child held at the Moritz College of Law at The Ohio State University in
March, 2005. I would like to thank Kate Federle and Joshua Dressier for their efforts. Stephanos
Bibas, Ed Greenlee, and Dave Rudovsky provided invaluable help. As always, my personal attorney,
Jean Avnet Morse, furnished sound and sober counsel and moral support.
' 543 U.S. 551 (2005).](ViewImageLocal?handle=hein.journals/osjcl3&div=26&collection=journals&method=preview&ext=.png&size=3)
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Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note
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