Paul Litton (University of Missouri School of Law) has posted Is Psychological Research on Self-Control Relevant to Criminal Law? (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In recent years scholars have asked whether scientific discoveries - specifically in neuroscience and genetics - should have normative implications for criminal law doctrine and theory, especially with regard to free will and responsibility. This focus on novel and merely potential scientific findings makes Rebecca Hollander-Blumoff’s arguments all the more fascinating: she argues that criminal law scholars have neglected to mine a rich body of social psychological research on the mechanisms of self-control which has developed over the past two decades. She, herself, finds that the psychological research suggests that current criminal law inaccurately circumscribes the scope of situations in which an individual lacked the ability to control her actions. Moreover, she argues that the research permits us to separate issues of self-control from philosophical questions about the existence of free will.
This article accepts Hollander-Blumoff’s invitation to mine the self-control research for normatively-relevant insight. It finds, however, that the research has surprisingly little to offer. It does not show that criminal law doctrine excuses too few, and it does not help us draw lines between the responsible and non-responsible independent of broader debates about free will. The article identifies different conceptions of control at work in criminal law doctrine to show the limited scope of law that is relevant to the conception of self-control under psychological study. It further explains why the research’s findings about the “capacity for self-control” are not helpful to discerning whether an individual had the capacity to control his conduct in the sense required for responsibility and blame. Finally, the article counters Hollander-Blumoff’s claim that the research supports the law’s alleged neutrality regarding free will debates. Specifically, the commentary defends Stephen Morse’s view that the law is not philosophically neutral but compatibilist, and in doing so, it responds to recent arguments by Adam Kolber against the compatibilist interpretation of criminal law.