Academic journal article Duke Law Journal

Overcoming the Myth of Free Will in Criminal Law: The True Impact of the Genetic Revolution

Academic journal article Duke Law Journal

Overcoming the Myth of Free Will in Criminal Law: The True Impact of the Genetic Revolution

Article excerpt


Understanding the roots of current theoretical justifications for criminal punishment is crucial in evaluating its susceptibility to future change. In the American criminal justice system, the dominant justification for punishing individuals is that offenders have made a voluntary choice to break the law, thus validating the imposition of a societal sanction. However, recent discoveries in the field of genetics have called this theoretical assumption of individual, voluntary choice into question. Because genetic influences on behavioral traits may raise doubts about the nature of individual free will, some scientists have concluded that various members of society may be less able to refrain from breaking the law than others. Consequently, several commentators have suggested that this genetic research may shake the theoretical foundations of the criminal justice system to its core, and that a radical reorganization of the system is inevitable. Other commentators have predicted that the changes will be more subtle, perhaps manifesting themselves only in the context of specific criminal adjudications.

The American criminal justice system, however, is more resilient and entrenched than either category of commentators suggests. Thus, even though genetics research indicates that society should reexamine some of its philosophical assumptions about the criminal justice system and institute major systematic changes, nevertheless the American criminal justice system will likely not be dramatically altered. Instead, the resulting change will be a system that simply relies more on utilitarian rationales to justify criminal punishment than it has in the past. (1) This Note proceeds in several parts. Part I briefly summarizes the relevant philosophical background of the American criminal justice system and its view of human behavior. Part II reviews current genetic research and its impact on the parameters of this debate. Part III explains how various commentators have viewed the ramifications of genetic research in the criminal justice context, and Part IV offers a brief critique of their analyses. Finally, Part V argues that punishment justifications will become increasingly utilitarian.


Crime is a socially constructed concept that can loosely be defined as taking a particular action with a designated mental state, the combination of which society has deemed punishable. (2) Societies, through their legislatures, decide which behaviors will be tolerated and which will be prohibited. The latter are designated as crimes. (3) Once an individual has chosen to commit a crime, and thus deviated from proscribed societal norms, society mandates appropriate punishment. The imposition of a criminal sanction represents society's disapproval of the criminal's disregard of the community's values. It is thus the "strongest formal condemnation that society can inflict on wrongdoers." (4)

Justifications for these sanctions--which may include taking an individual's liberty or life--go to the very heart of criminal justice theory. In spite of this fact, courts and legislatures have treated the theory of criminal punishment as a peripheral concern. It is "as if we were clear about when it is correct to punish even if we cannot sort out exactly why it is correct." (5) However, any evaluation of the correctness of this punishment must include an understanding of society's assumptions about human behavior. The American criminal justice system largely relies on the notion that individuals are responsible for their actions, and, thus, can be punished when they choose to violate societal standards. In other words, American criminal jurisprudence is firmly rooted in the concept of individual free will. (6)

A. Competing Philosophical Frameworks

The debate as to the ultimate causes of human action has been at the core of Western philosophy for centuries. …

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