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16 Yale J. Health Pol'y L. & Ethics 289 (2016)
An Evidence-Based Objection to Retributive Justice

handle is hein.journals/yjhple16 and id is 301 raw text is: 


An   Evidence-Based Objection to Retributive Justice

Brian  T.M.  Mammarella

    Advancements in neuroscience and related fields are beginning to show,
with increasing clarity, that certain human behaviors stem  from uncontrolled,
mechanistic  causes. These  discoveries beg the question: If a given  behavior
results from  some   combination   of biological predispositions, neurological
circumstances,  and  environmental  influences, is  that action unwilled   and
therefore absolved  of all attributions of credit, blame, and responsibility? A
number  of scholars in law and neuroscience who  answer yes have  considered
how  the absence of free will should impact criminal law's willingness to justify
punishments  on  the basis of retribution, with some arguing that criminal law
ought to dispense with retributive justice because the concept of blameworthiness
is out of touch with scientific reality. This Note posits a more practical reason for
reform  by reviewing  available empirics  on the way  people  perceive human
agency.  The research suggests that as the science of human   agency  becomes
increasingly vivid and reductionistic, laypeople will become proportionally less
willing to attribute blame, and these shifting societal intuitions will ultimately
diminish  criminal law's moral  credibility. The practical effects of low moral
credibility might include diminished compliance, cooperation, and acquiescence
with criminal laws, as well as increased general deviance. Importantly, this Note
observes that these effects will likely manifest even if people retain a belief in
free will. Further, ontological reality plays no part in this Note's argument;
whether  we in fact have free will is irrelevant. This Note instead contributes to
the  discourse by  highlighting the  implications of  oncoming   shifts in lay
conceptions of both particular behaviors and the natural world writ large.

    * J.D., 2015, University of Virginia School of Law; B.A., 2012, College of William &
Mary. I am indebted to Professors Barbara Spellman and Richard Bonnie for their helpful
insights, guidance, and criticisms; Professor Paul Sheldon Davies, whose seminars inspired
this Note; the editorial staff of the Yale Journal ofHealth Policy, Law & Ethics for their input
and thoughtful review; and Ben Carper, for being the sounding board against whom ideas
herein reverberated.


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