Irresponsibility, Reconsidered

Irresponsibility, Reconsidered

Date: 1/4/2021 2:00 – 3:15 PM EST

Webinar Description: In Kahler v. Kansas, the U.S. Supreme Court held that due process does not require the provision of an affirmative insanity defense​. In defending the need for flexibility, the Court stressed:

Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility. It is a project demanding hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve.

This panel will debate the wisdom of Kahler, notions of responsibility, and the implications of current medical knowledge.

Learning Objectives:

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Lea Johnston, University of Florida Research Foundation Professor, University Term Professor, Professor of Law, and Assistant Director of the Criminal Justice Center at University of Florida Levin College of Law

Lea Johnston is a leading expert on mental health and criminal law and procedure. A productive scholar, Johnston’s work has appeared in the Washington University Law Review, the Notre Dame Law Review, the UC Davis Law Review, the Fordham Law Review, the Georgia Law Review, and the Florida Law Review, among others. In 2012, the California Supreme Court quoted Johnston’s proposed standard for representational competence and endorsed its use by courts and experts. Her work has been widely cited by legal scholars and appears in leading treatises in criminal law, constitutional law, and criminal procedure. Her work has also received attention from social scientists, and her theory of sentencing forms part of the theoretical framework for the standard textbook for forensic psychiatry fellowship programs. Professor Johnston earned her A.B. from Princeton University and her J.D. (cum laude) from Harvard Law School. She previously served as a litigation associate at Arnold & Porter LLP in Washington, D.C., and director of the Maryland Public Interest Research Group in Baltimore, MD. Johnston clerked for Judge Richard Tallman of the U.S. Court of Appeals for the Ninth Circuit. Johnston is currently a University Term Professor of Law and Assistant Director of the Criminal Justice Center.

Publications: E. Lea Johnston & Vince Leahey, The Status and Legitimacy of M’Naghten’s Insane Delusion Rule, 54 UC Davis L. Rev. ___ (2021)




Stephen J. Morse, J.D., Ph.D., Ferdinand Wakeman Hubbell Professor of Law & Professor of Psychology and Law in Psychiatry, University of Pennsylvania Law School; Associate Director, Center for Neuroscience & Society; Diplomate, American Board of Professional Psychology (Forensic)

Stephen J. Morse is Ferdinand Wakeman Hubbell Professor of Law, Professor of Psychology and Law in Psychiatry and Associate Director, Center for Neuroscience & Society, at the University of Pennsylvania. Morse has been working on the relation of neuroscience to law, ethics, and social policy for over two decades. He was previously co-director of the MacArthur Foundation Law and Neuroscience Project and was a member of the MacArthur Foundation Law and Neuroscience Research Network. Morse is a recipient of the American Academy of Forensic Psychology’s Distinguished Contribution Award, and a recipient of the American Psychiatric Association’s Isaac Ray Award for distinguished contributions to forensic psychiatry and the psychiatric aspects of jurisprudence. Morse co-authored with Professor Richard J. Bonnie of the University of Virginia an amicus brief in Kahler on behalf of 290 bipartisan professors of criminal law and mental health law.

The Supreme Court’s decision in Kansas v. Kahler is regrettable because it fails to take people seriously as potential moral agents. The Kansas mens rea approach clearly fails to do that because it declares some defendants not responsible, blames them and authorizes punishment in cases in which such a state response is undeserved and unjust. The question then arises whether scientific understanding, and especially the new neuroscience, may be helpful in formulating sensible, humane and just rules.  The basic questions are about behavior because responsibility is ascribed to acting, intentional people, not to brains and nervous systems. Further, the rules that should guide how to live together, including criminal law doctrines, are normative. Science cannot dictate what those rules should be, but it can furnish relevant information depending on how confident we are about the validity of the science and its relevance to normative questions. Psychology and psychiatry can provide some objective measures of legally relevant criteria, such as cognitive capacities, but neuroscience at present can offer almost none. At present the law cannot expect much valid help from science in adopting responsibility rules or adjudicating them.  The law must largely be content for now with its normative resources.

Publications: Click here to view a list of relevant publications by Stephen J. Morse, J.D., Ph.D.

Frederica Coppola, J.D., LLM, Ph.D., Lecturer in Law at Columbia Law School and Presidential Scholar in Society and Neuroscience at Columbia University

Federica Coppola is a criminal law, (neuro)science, and justice scholar. From 2017 to 2020, she has been Robert A. Burt Presidential Scholar in Society and Neuroscience at Columbia University and a Lecturer in Criminal Law & Neuroscience at Columbia Law School. Dr. Coppola has authored numerous publications on criminal culpability, punishment and rehabilitation, excuse doctrines, and the use of neuroscientific methods for forensic purposes. Her first monograph, The Emotional Brain and the Guilty Mind: Novel Paradigms of Culpability and Punishment (Oxford: Hart Publishing), is forthcoming in January 2021. Dr. Coppola holds a JD summa cum laude (2010) from University of Bologna Law School, an LLM in Comparative, European and International Laws (2014) and a PhD in Law (2017) from the European University Institute.


In this talk, I argue that neuroscience lends empirical support to insanity standards that also include a moral capacity test. Nonetheless, I emphasize that neuroscience challenges the traditional legal understanding of moral capacity as a capacity that is entirely grounded in higher cognitive capacities of knowledge or understanding. Indeed, this research crucially suggests the central role of social emotional capacities (e.g., empathic responsiveness) in triggering, driving, and regulating adaptive moral behavior. Hence, neuroscience suggests that moral capacity and emotional capacity are inextricably bound and that intact cognitive thinking is not necessarily indicative of moral rationality. Altogether, neuroscience strengthens the normative position that moral capacity is (or should be) an ineradicable component of legal insanity. On the other hand, it suggests a rethinking of moral capacity in a way that affords weigh to emotional competence.  Such an expanded understanding of the moral-capacity-test of legal insanity finds support in several normative arguments, including the personal guilt principle and legitimate penological goals of retribution, deterrence and rehabilitation.

Publications: Click here to view a list of relevant publications by Frederica Coppola, J.D., LLM, Ph.D.

Deborah W. Denno, Arthur A. McGivney Professor of Law, Founding Director, Neuroscience and Law Center, Fordham University School of Law

Deborah W. Denno is the Arthur A. McGivney Professor of Law and Founding Director of the Neuroscience and Law Center at Fordham Law School. Seven of Professor Denno’s articles have been cited by the United States Supreme Court, some multiple times and/or in different cases and one article has been cited in three different cases—primarily in conjunction with her scholarship on execution methods. In 2016, the Fordham Student Bar Association named Professor Denno Teacher of the Year. Her forthcoming book, Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively (Oxford University Press), focuses on her study of how criminal cases use neuroscientific evidence.  This same study is discussed in some of her most recent articles: Concocting Criminal Intent,105 Georgetown Law Journal 323 (2017), Neuroscience and the Personalization of Criminal Law, 85 University of Chicago Law Review 359 (2019), and How Courts in Criminal Cases Respond to Childhood Trauma, 103 Marquette Law Review 301 (2019).


The purpose of my talk is to examine the use of the insanity defense in all criminal court cases involving neuroscientific evidence over the past century, from 1900 to 2020.  This scope helps trace the impact of critical psychological and societal developments more precisely.  My research shows that starting in the 1980s, the use of the insanity defense has plummeted over the decades despite a growing infusion of neuroscientific evidence generally into the criminal justice system.  While there are several potential reasons for this decline, my talk focuses on how neuroscience has started to be used in more tailored and specific ways, such as cognitively customized defenses and mitigating factors.  In more recent decades, there has also been an uptick in claims of ineffective assistance of counsel regarding trial counsel’s failure to utilize (or properly object to) neuroscience.  While this trend may have little to do with insanity defenses specifically, it helps explain where neuroscientific evidence in the criminal justice system has been diverted.  I  conclude by considering how such developments may affect our notions of responsibility, especially in light of Kahler

Publications: Click here to view a list of relevant publications by Deborah W. Denno

Michael L. Corrado, Arch Allen Distinguished Professor of Law, Emeritus, University of North Carolina Law School

Michael L. Corrado is the Arch T. Allen Distinguished Professor of Law Emeritus. He joined the UNC-Chapel Hill law faculty in 1988, where he taught torts, criminal law, comparative law and philosophy of law. After graduation from the University of Chicago Law School, he clerked on the Seventh Circuit and then practiced law in Chicago for three years. Before law school, Corrado was Russian linguist for the Army Security Agency (1961-1964) and a tenured professor of philosophy at Ohio University (1970-1981). His doctoral dissertation at Brown University was on quantified modal logic. He spent the academic year 1978-79 at the University of Michigan on an NEH postdoctoral fellowship. Corrado is the author of several books, including The Analytic Tradition in Philosophy and Justification and Excuse in the Criminal Law. Though retired, Corrado continues to research and write on topics related to criminal responsibility, including retribution, the insanity defense, and psychopathy.

Can those who reject the notions of moral responsibility and moral desert defend the need for an affirmative defense of insanity? Those notions crept into the theory of criminal justice in the eighteenth century as a way to explain why the community, in the effort to frighten its members into line, has the right to cause some of those members to suffer. As an explanation it claims the additional benefit of marking out, though in a not-quite-coherent way, the limits of that right. It doesn’t take neuroscience to tell us that the moral-blameworthiness foundation is a shaky one: the long history of the “panicky” attempt to come up with a respectable compatibilism, one that would both justify punishment and limit it, is testament all by itself to the futility of the endeavor. But if we abandon the notion of moral responsibility, as some commentators suggest, what shield does the individual have against the community? Why not abandon the line between punishment and commitment and head for universal criminal quarantine—indefinite preventive detention and treatment—as advocated by Derk Pereboom and others? There are both practical and theoretical horrors down that road, as the philosopher Fichte foresaw, but if we abandon moral blameworthiness, is there any way to avoid that outcome? I will suggest an alternative, using both a compatibilist notion of control (but without the added fillip of moral responsibility) and a Fichtean trade-off much like the “takings” doctrine in property law.

Publications: Click here to view a list of relevant publications by Michael L. Corrado


Stephen P. Garvey, A. Robert Noll Professor of Law, Cornell Law School

Stephen Garvey has written and taught in the areas of capital punishment, criminal law, and the philosophy of criminal law. Following his graduation from Yale Law School, Professor Garvey clerked for the Hon. Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit, and then practiced in the Washington, D.C. firm of Covington & Burling. He joined the Cornell Law School Faculty in 1994. Professor Garvey’s current scholarship focuses on substantive criminal law.

Publications: Click here to view a list of relevant publications by Stephen P. Garvey