John A. Humbach (Pace University School of Law) has posted Justice and the 'Mental Causation' Fallacy on SSRN. Here is the abstract:
A key justification for modern criminal justice practices is premised on a logical fallacy and is ripe for review. This article takes direct aim at the criminal law’s pre-scientific supposition of “mental causation,” which is the primary basis for holding that people “deserve” to suffer and the most serious barrier to acceptance of neuroscience in criminal justice reform.
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Mental causation is a foundational assumption of modern criminal justice. The law takes it for granted that wrongdoers “deserve” punishment because their acts are caused by intentions, reasons and other mental states. A growing body of neuroscience evidence shows, however, that human behavior, like that of all other animals with brains, is produced by observable physiological activity in the brain and central nervous system—all in accordance with ordinary physical laws. Beyond these ordinary physiological interactions and processes, no hypothesis of mental causation is required to causally explain behavior.
Despite the evidence, neuroskeptics insist that intentions, reasons and other mental states can play a causal role in producing human behavior. The evidentiary case for mental causation turns out, however, to be premised on a well-known logical fallacy, post hoc ergo propter hoc. Meanwhile, based on the best explanation of all the evidence and data, mental causation almost certainly cannot and does not occur. Therefore, if mental causation is indeed the basis on which offenders are deemed to be responsible and to deserve suffering as punishment, the case for criminal responsibility and current punishment practices is fatally defective.
To be sure, society will likely always need to use coercive measures to deal with individuals who pose dangers and risks that are too socially intolerable to allow. The findings of neuroscience suggest, however, that these measures should be justified on bases that do not presuppose that offenders “deserve” suffering due to mental causation. Even while coercive measures to protect public safety are a practical and moral necessity, their nature and quality may be very different if they no longer are predicated on the premise that people “deserve” to suffer hardship, misery and deprivation purposely inflicted by the state.