Law of Conservation of Responsibility?
posted by Frank Pasquale
Back in 2004, a Florida judge angrily sent 11 defendants—mainly traffic offenders—to a jail cell for hours because they happened to be in the wrong courtroom. He’s now trying to keep his job, and claims in his defense that he had undiagnosed attention-deficit hyperactivity disorder (ADHD).
I think the case raises fascinating issues, less for the judge’s defense (I have no idea whether it’s accurate or exculpating), than for the cultural effect of such defenses. Are support groups for people with ADHD glad to see such defenses raised in court, since they add legal heft to diagnoses? Or are they worried that opportunistic defendants are going to discredit ADHD as one more tool to “get around” conventional notions of responsibility? I’d love to hear more on this type of debate, either in the criminal context (over the insanity defense) or in civil contexts. It’s a bit topical, given that the Supreme Court will hear arguments in Clark v. Arizona on April 19, to determine whether defendants have a constitutional right to an insanity defense.
All I’ll say for now is that this is not just a scientific question….
A recent article in the NYT suggested that
researchers have begun to resolve the contrary nature of impulsivity, identifying the elements that distinguish benign experimentation from self-destructive acts. The latest work, in brain research and psychological studies, helps explain how impulsive tendencies develop and when they can lead people astray. A potent combination of genes and emotionally disorienting early experiences puts people at high risk, as do some very familiar personal instincts.
Though I’m happy about this research, my worry is that the explanation of impulsive behavior can very quickly become a justification of it. As P.F. Strawson suggests in his classic paper Freedom and Resentment, questions of free will and determinism are best modeled in terms of our reactions to certain behavior (and not (to put my own, John Horgan-like gloss on it) as scientifically verifiable via, say, brain scans):
Let us consider, then, occasions for resentment: situations in which one person is offended or injured by the action of another and in which—in the absence of special considerations—the offended person might naturally or normally be expected to feel resentment. Then let us consider what sorts of special considerations might be expected to modify or mollify this feeling or remove it altogether. . . . I think they can be roughly divided into two kinds. To the first group belong all those which might give occasion for the employment of such expressions as ‘He didn’t mean to’, ‘He hadn’t realized’, ‘He didn’t know’; and also all those which might give occasion for the use of the phrase ‘He couldn’t help it’, when this is supported by such phrases as ‘He was pushed’, ‘He had to do it’, ‘It was the only way’, ‘They left him no alternative’, etc.
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The second group of considerations is very different. I shall take them in two subgroups of which the first is far less important than the second. In connection with the first subgroup we may think of such statements as ‘He wasn’t himself’, ‘He has been under very great strain recently’, ‘He was acting under post-hypnotic suggestion’; in connection with the second, we may think of ‘He’s only a child’, ‘He’s a hopeless schizophrenic’, ‘His mind has been systematically perverted’, ‘That’s purely compulsive behaviour on his part’. Such pleas as these do, as pleas of my first general group do not, invite us to suspend our ordinary reactive attitudes towards the agent, either at the time of his action or all the time. They do not invite us to see the agent’s action in a way consistent with the full retention of ordinary inter-personal attitudes and merely inconsistent with one particular attitude. . . . The second and more important subgroup of cases allows that the circumstances were normal, but presents the agent as psychologically abnormal—or as morally undeveloped. The agent was himself; but he is warped or deranged, neurotic or just a child. When we see someone in such a light as this, all our reactive attitudes tend to be profoundly modified.
In other words, there is an interaction between culture, law, and science in the attribution of responsibility. We as a society are free to develop our own account of responsibility, which ideally of course should conform to scientific understandings of the mind, but is by no means dictated by the present state of science. As Charles Tilly helpfully reminds us, there are lots of different kinds of explanations, and they are often wrapped up in the kinds of normative judgments we usually consider alien to science.
April 4, 2006 at 1:56 pm
Posted in: Culture, Current Events, Law and Humanities, Tort Law
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Responses (1)
John Armstrong - April 4, 2006 at 2:27 pm
As someone who was diagnosed back before ADHD became the popular diagnosis for everyone, and who was on extremely large doses of methylphenidate (Ritalin) before taking myself off cold-turkey at 12, I hope the judge gets fired for trying to make such a lame excuse, if not for judicial misconduct.
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