Situationally edited empathy: an effect of socio-economic structure on individual choice

Criminological theory still operates with deficient models of the offender as agent, and of social influences on the agent’s decision-making process. This paper takes one ‘emotion’, empathy, which is theoretically of considerable importance in influencing the choices made by agents; particularly those involving criminal or otherwise harmful action. Using a framework not of rational action, but of ‘rationalised action’, the paper considers some of the effects on individual psychology of social, economic, political and cultural structure. It is suggested that the climate-setting effects of these structures promote normative definitions of social situations which allow unempathic, harmful action to be rationalised through the situational editing of empathy. The ‘crime is normal’ argument can therefore be extended to include the recognition that the uncompassionate state of mind of the criminal actor is a reflection of the self-interested values which govern non-criminal action in wider society

Punishing Artificial Intelligence: Legal Fiction or Science Fiction

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime

Developing criminal personas for designers

This paper describes a research method used to develop criminal personas for use by designers in a process called Cyclic Countering of Competitive Creativity (C4). Personas rather than profiles are developed to encourage designer ownership, to improve the level of engagement with countering the criminal mind, and encourage the responsibility to keep the personas live and developing, rather than be adopted as simple checklists built from available criminal profile data. In this case study indirect access to offender details was used to develop the personas. The aim was to give particular focus to the offenders’ ‘creative prompts’, which enable designers to more effectively counter their own design solutions, by a role-play approach to critical review and counter design. The C4 process enables learning through failure, and strengthens the development and selection that takes place within the design process, but C4 does rely upon the development of relevant and engaging personas to be effective

What is Wrong about the "Criminal Mind"?

Retributivists argue for a strong link between a criminal’s mind-set at the time of an offence and our community’s response through punishment. This view claims that punishment can be justified depending on the possession of a criminal mind which can be affected by factors that may affect culpability, such as mitigating factors. Retributivism is a powerful influence on our sentencing practices reflected in policy. This article argues it is based on a mistake about what makes the criminal mind relevant for punishment. It will be argued that a currently popular view of retribution endorsed by Feinberg and Duff – ‘retributivist expressivism’ – incorrectly link punishment to a criminal’s possession of moral responsibility. This is a problem because its absence is no defence to strict liability offences, the largest subset of crimes. It is not a crime’s threat or harm to morals that is most salient, but instead its threat or harm to our rights

A Judicial Cure for the Disease of Overcriminalization

The dangers of “overcriminalization” are widely appreciated across the political spectrum, but confusion remains as to its cause. Standard critiques fault legislatures alone. The problem, however, is not simply that too many criminal laws are on the books, but that they are poorly defined in ways that give unwarranted sweep to the criminal law, raising the danger of punishment absent or in excess of moral blameworthiness. Instead of narrowing ambiguous criminal laws to more appropriate bounds, courts frequently expand them, even when this ratchets up the punishment that offenders face, and fail to insist on proof of sufficiently culpable states of mind to render the resulting punishment just. By changing how they interpret criminal statutes, taking narrow construction principles and state-of-mind requirements more seriously, courts can help to cure the over criminalization disease

A Judicial Cure for the Disease of Overcriminalization

The dangers of “overcriminalization” are widely appreciated across the political spectrum, but confusion remains as to its cause. Standard critiques fault legislatures alone. The problem, however, is not simply that too many criminal laws are on the books, but that they are poorly defined in ways that give unwarranted sweep to the criminal law, raising the danger of punishment absent or in excess of moral blameworthiness. Instead of narrowing ambiguous criminal laws to more appropriate bounds, courts frequently expand them, even when this ratchets up the punishment that offenders face, and fail to insist on proof of sufficiently culpable states of mind to render the resulting punishment just. By changing how they interpret criminal statutes, taking narrow construction principles and state-of-mind requirements more seriously, courts can help to cure the over criminalization disease

Mens rea ascription, expertise and outcome effects: Professional judges surveyed

A coherent practice of mens rea (‘guilty mind’) ascription in criminal law presupposes a concept of mens rea which is insensitive to the moral valence of an action’s outcome. For instance, an assessment of whether an agent harmed another person intentionally should be unaffected by the severity of harm done. Ascriptions of intentionality made by laypeople, however, are subject to a strong outcome bias. As demonstrated by the Knobe effect, a knowingly incurred negative side effect is standardly judged intentional, whereas a positive side effect is not. We report the first empirical investigation into intentionality ascriptions made by professional judges, which finds (i) that professionals are sensitive to the moral valence of outcome type, and (ii) that the worse the outcome, the higher the propensity to ascribe intentionality. The data shows the intentionality ascriptions of professional judges to be inconsistent with the concept of mens rea supposedly at the foundation of criminal law

Attitudes on Medical Ethics of Criminal Neurointerventional Treatment

As contemporary scientific advancements offer the opportunity to manipulate processes of the human body at a higher degree of invasiveness than ever before, a number of bioethical concerns are raised. One significant concern is how to discern the acceptable integration of advancements in neurologically-based interventions into the criminal justice system. Past literature supports the idea that there are several variables that interact to form a global conversation on the ethics of compromising a criminal’s freedom of mind for the purposes of sentencing or rehabilitation. Attitudes toward the current criminal justice system and the current uses of neurointerventions are significantly influential, and the public attitudes of such topics have been well-recorded through the literature. An experienced physician was interviewed in order to gain the perspective of a professional who regularly implements neurologically-based treatments. The results of the interview suggested that professionals have a moderate level of confidence that the current relationship between the criminal justice system and neurointerventional methods has generally remained within ethical boundaries. The results also suggested that medical practitioners are tasked with balancing the dignity and the safety patients, which can cause frequent ethical dilemmas. The varying responsibilities of medical professionals keep them equipped to implement expert-level care while simultaneously considering the ethical ramifications of their decisions

Criminal Justice Interventions for Individuals with Mental Health Disabilities: A Systematic Literature Review

In the criminal law, with few exceptions, for a finding of guilt, the physical act and the state of mind to commit the offense must be present at the time of the commission of the offense. People with mental disabilities often lack the state of mind required to commit the offense for which they are eventually charged for and or convicted. This paper examines the effectiveness of some past and present criminal justice system interventions that addresses the mental health disabilities of criminal offenders pre-adjudicative proceedings. A systematic review of the literature was used to examine past and present criminal justice system crisis interventions either by itself or in collaboration with other mental health agencies. The literature review shows no strong body of evidence to support that interventions have been very effective but some progress has been made in certain areas. There is a need to continue to make improvements to present criminal justice interventions to meet up with the developments in the mental health arena. Further inquiry and research in this area is suggested

On the Mental State of Consciousness of Wrongdoing

Mistake about or ignorance of the law does not exculpate in criminal law, except in limited circumstances. Doctrine and theory cognate to this principle are, by now, well developed and understood. But might an actor\u27s awareness of the illegality or wrongfulness of her conduct inculpate — that is, constitute a form of mens rea that establishes or aggravates liability? Trends in recent adjudication in white collar crime suggest that the answer is yes. This article, part of a symposium issue on Adjudicating the Guilty Mind, takes the first pass at describing the mental state of “consciousness of wrongdoing,” assessing its fit with the conceptual architecture of substantive criminal law, and uncovering the many challenges of proof and adjudication that this concept poses. Three conclusions broadly emerge from this initial, and somewhat truncated, inquiry: first, inculpating an actor for adverting to the legal or normative significance of her conduct is an attractive means of dealing with difficult line-drawing problems presented by many white collar offenses; second, the method can be justified on both retributive and deterrent grounds; and third, the practice requires much more thought and precision at the operational level, lest problems inherent in the structure of criminal adjudication be exacerbated in cases in which liability depends on the idea that an actor “knew what she was doing was wrong