I've read it and here are a few quotes from it and my views on them.
'According to Frankfurt, an agent is “free” if he wants what he wants, such that his lower-order desires correspond to higher-order volitions (e.g., Frankfurt, 1988). For others (Descartes, Berkeley, Kant), free will requires that an agent can genuinely escape the causal necessity of a deterministic world.'
I'm with Descartes et al.
'Having outlined these precautions, we can now turn to the debate on responsibility, which is distinct from free will and practical in nature. In other words, criminal responsibility is not founded in free will but on practical, subjective and political considerations.5 As such, it is impervious to any truth about determinisms.'
I tend to agree. The concept of responsibility remains. We can still hold someone as being responsible for her actions in the usual and practical sense of that term. We can't avoid that. But how we determine the degree of culpability can change.
'...criminal responsibility relies mostly on our subjective experience, the impression of being able to choose to act or avoid acting.'
It is indeed an impression.
'As long as the illusion of free will remains intact, even if it is an illusion, we can claim to be responsible.'
Again, even in a paper that argues that there's no need to allow for a lack of free will in the justice system, there is an acceptance of it as being an illusion.
'S. J. Morse reaffirmed the Humean argument to defeat naively enthusiastic scientific claims in courtrooms. In his famous article “Brain overclaim syndrome and responsibility: a diagnostic note” (Morse, 2006), he recalls the behavioral, as opposed to cerebral, criteria for responsibility and insists on the incapacity of brain imaging to set the threshold of normality vs. abnormality either in ethics or in law. “Brains are not responsible. Acting people are”. Hence, explaining the difference in behaviors between a teenager and an adult by the lack of complete myelinization of cortical neurons as in Roper v. Simmons (2005)10, and inferring as a result the lack of sufficient responsibility to qualify for the death penalty, is simply irrelevant.'
Dualism at work. Brains are different to people. At what point does the lack of a fully functional pre frontal cortex make a difference to our determination of personal responsibility?
'The common intuition about our agency reverses the onus of proof: it’s up to neuroscience to convince us that we don’t have it.'
I'll just note that they didn't say 'the fact about our agency...'. Rather 'the intuition...'
'Early life experiences are rarely taken into account when screening and recruiting participants; yet parenting and socio-economic status (SES) have effects on brain areas such as the amygdala and prefrontal cortex, whose dysfunction has been linked to a variety of legally relevant outcomes such as crime and violence, drug use, and reduced cognitive control.'
This was meant to be an argument against brain scans which might predict the possibility of unsocial acts. But in doing so they admit to the very causes that they are trying to suggest we ignore.
'Being a kleptomaniac is not sufficient grounds for being exonerated from stealing because criminal law considers that a kleptomaniac still knows that what he or she is doing and that stealing is wrong. '
It's not that he doesn't know. It's that he knows but cannot prevent himself.
'However, we can object that numerous drug addicts report knowing that what they do is wrong. They do not showcase a troubled reason that would not dissociate right from wrong.'
Again, it's only in the most extreme of examples that an individual cannot tell right from wrong.
'Nonetheless, cognitive biases indicate other avenues than the revision of the reasonable person standard, such as training for judges and juries. These could be useful to warn the latter about potential biases in their judgment and that of others. A famous, but controversial, example is a study supposedly showing that judges render harsher decisions when they’re hungry.'
Now we're heading in the right direction. Although there is some debate as to whether that particular example was as accurate as it could have been. But we've already seen that blood sugar levels can most definitely result in anti social behaviour.
And if anyone is interested, the original paper by Sapolski that brought up the subject to which the paper quoted above was partly in response.
Sapolski:
The frontal cortex and the criminal justice system.
