Monday, May 26, 2008

Criminal Law and Philosophy Conference at Rutgers

I will try to report on this conference. I may be well on my way to getting expelled before it begins.

Here are questions for Prof. Garvey about his paper.

1) What is will, where is it, how can it be assessed, within Daubert standards? Is it a synonym for impulse control? Impulse control is measurable with a timer, and has scientific validity. Will seems fictional, an impermissible utterance in a tribunal.

2) You are defending a serial killer. He controls himself for three months, then cannot contain his urges to kill for sexual pleasure. He has killed many little girls for sexual pleasure, made possible only by slitting their throats, his having the disability of sadism. You are addressing a jury. Explain the proposal of your paper which requires the defendant receive credit and mitigation for the three months he spent controlling himself. If the defendant starts a criminal career at age 25, how does one explain two decades of synchronic self-control, now gone?

3) If diachronic self-control seeks to exercise more external control in the service of self-control, isn't the deterrent effect of punishment an asset, and not an injustice? If the analogy is to losing control of an exploding bladder, then isn't jail like a Depends diaper, a remedy?

4) Doesn't this proposal add to the great burden of nonsensical mentalism? Not only do we now have to read minds for criminal intent and the mens rea, but now, also the attempt at control.

5) About half the perpetrators and about half the victims of murder are legally dunk. Please address intoxication, which is very prevalent during crime.

Additional questions from the audience:

1) What evidence beside defendant protestations could be used?

2) Give us the judge instruction to the jury.

Here is a proposed enhancement:

The much validated, Daubert safe, word, "impulsivity," is an alternative to the fictional, Daubert toxic, Aristotelian, "will."

How about this objective alternative to the restraint of will? "Treatment."

The defendant acknowledges he has a problem with impulses. He seeks formal treatment. This can be medical, faith based, support group based. The evidence is not defendant testimony but treater testimony. "He admitted having a problem. He showed up for treatment. He tried to comply with our suggestions."

Rich defendants are already doing this. Didn't Spitzer enter treatment for sex addiction after the FBI exposed his side activity? Other get religious. Any objective evidence of effort should be rewarded. The reason is that treatment has some chance of success, accountability of provider in torts, is cheaper than jail, and is proven to return about $7 for $1 of cost.

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