Culpability and control.

• Author: Morse, Stephen J.
• Position: Symposium: Act & Crime

"I couldn't help myself"; "I had no choice"; "I couldn't control myself"; "I was forced to do it." All are common explanations used to support the claim that an agent is not morally or criminally responsible for otherwise culpable conduct. The most common criminal law "control" excuses that instantiate these claims are duress(1) and the so-called "volitional" tests for legal insanity.(2) More rarely, the agent uses such allegations to attack the prima facie case, claiming that action was lacking.(3) Although, properly speaking, the negation of the voluntary act requirement does not raise an excuse, in such cases we also say that the agent was nonculpably out of control. Finally, these explanations are sometimes synonymous with the general conclusion that, for some reason, the agent is not responsible. If it is true that an agent really could not help or control herself and was not responsible for the loss of control, blame and punishment are not justified on any theory of morality and criminal punishment. But what does it mean to say that an agent could not control herself?

This Article attempts to clarify the meaning of and criteria for "control excuses" and their relationship to cases of no action. I shall use philosophy of mind and action, buttressed by findings from the behavioral sciences, to clarify the meaning of excuse based on lack of control. I begin in Part I with a brief homage to Michael Moore, in which I claim that the explanation of human action is still mysterious, despite the herculean efforts of the metaphysicians, but that criminal law theory nevertheless must grapple with the theory of action. Part II considers false starts: popular but inaccurate, misleading, or confusing ways of defining control problems and excuses. I show that these problems are not created by the truth of determinism or universal causation, by the agent's lack of intention, by defects of the will or volition, by irresistible impulses, or by the agent's inability to exercise choice. The Article then turns in Part III to a very brief account of how we humans manage to behave ourselves in the face of ubiquitous antisocial desires. This part provides a list of "self-protective devices" for the purpose of helping to determine what the real problem is when an agent claims to be "out of control."(4) Part IV canvasses possible adequate justifications for control excuses, arguing that most putative control or volitional problems are best understood as rationality defects. In Part V, I conclude by addressing the practical difficulties besetting the assessment and adjudication of control cases.

1. METAPHYSICS, MYSTERY, AND METHODOLOGY: HOMAGE TO MOORE

   Human action, as opposed to mere movements of bodies in space, has always perplexed philosophers and students of the psyche. In overly simplified and polarized terms, some contend that action is epiphenomenal, ultimately reducible to biophysical states and events, whereas their opponents, including Michael Moore,(5) claim that action is not so reducible and supervenes upon those very states and events.(6) Within the contending camps there are, predictably, numerous plausible variations. What is a non-philosopher or even a philosopher to think? The best guess is that the correct account of the metaphysics of action is a mystery still, and, alas, shows no sign of being solved anytime soon.

   Nevertheless, action theory cannot be avoided by criminal law theorists: the criminal law presupposes precisely the folk psychological account of human action based on desires, beliefs, intentions, and other mental states that reductionist theories reject. It would be possible, I suppose, for a crime control system to abandon viewing individuals as moral agents who act for reasons and who thereby may be blamed and praised, punished and rewarded, as intrinsically appropriate responses to the moral qualities of their conduct. Instead, the criminal law might treat persons as part of the biophysical flotsam and jetsam of the universe and respond solely on the basis of the type and degree of dangerousness people threaten, without regard to moral responsibility.(7) In such a world, practices such as blame and punishment would have primarily instrumental value, useful for controlling the harm-producing behavior of homo sapiens, much like antibiotics are useful for controlling the dangerous propensities of bacteria.(8) In the Anglo-American world, however, virtually no criminal law theorist or lawyer adheres to the purely consequentialist dystopia just sketched.(9) Nearly all are either pure retributivists, like Moore,(10) or mixed theorists for whom just deserts are a necessary, albeit not sufficient, justification for criminal liability and punishment.(11) In either case, the necessity for just deserts presupposes a view of persons as potentially morally responsible, that is, as rational, uncompelled agents, rather than as merely bodies moving in space.

   Given the criminal law's reliance on some theory of human action, it would be utterly astonishing if the philosophy of action and its implications did not clarify many of the central puzzles of structure and doctrine. And as Act and Crime demonstrates, the voluntary act doctrine, the actus reus requirement, and the criteria for double jeopardy can be immensely enriched by just the sort of abstract, conceptual analysis Michael Moore provides. I believe this Article demonstrates that this is also true of control problems and excuses. To reject the relevance of action theory, to fail to wrestle with the mystery of action, is both implicitly to do it anyhow(12) and explicitly to abandon the quest for deeper understanding.

2. COMMON BUT FALSE STARTS, OR WHY I WISH PEOPLE WOULD STOP TALKING CERTAIN WAYS

   1. The Lure of Mechanism and Metaphor

      Suppose you are sitting on a table with your legs dangling over the edge. Assume that you are neurologically intact and that you strongly prefer not to raise your legs because there is a good, generalizable reason to remain still. Here are nine possible ways in which your lower leg might nevertheless move upwards towards the plane of the table: (1) Someone strikes your knee in the appropriate place, producing the patellar reflex, and your leg jerks upwards; (2) Someone vastly stronger than you pulls your leg up, despite your valiant resistance efforts; (3) Someone threatens to kill you unless you raise your leg; (4) Someone surreptitiously slips a powerful hallucinogenic substance into the beverage you are sipping and you hallucinate that a rabid dog is about to attack you, an attack you try to ward off by kicking your leg at the hallucinated canine; (5) Someone has given you the post-hypnotic suggestion that you should raise your leg when the hypnotist snaps her fingers, and when she does so, you raise your leg; (6) You have an unconscious hatred of authority and when a superior enters the room, you kick out as a sign of disrespect, believing falsely that this superior deserves it; (7) An impulse to raise your leg arises and, without thinking, you raise your leg; (8) You simply cannot understand other-regarding reasons for not doing what you want to do when you want to do it, and you now want to raise your leg, so you do; (9) Finally, someone offers you something you want even more than not to raise your leg if only you will raise it, so you do.

      The first two cases are uncontroversially cases in which action is lacking: in case one an irresistible neurological mechanism is at work, and in case two an irresistible external force is literally physically compelling the movement of your body, much like an irresistible mechanism. Although something important was at stake for raising your leg because there was good reason not to, no one would either morally blame or punish you for the leg's movement. After all, you did not raise it: there was no intention to raise the leg, no physically voluntary act. These are easy cases for just deserts and consequential theorists. You truly could not help yourself in either case and you would be excused. But these are not the cases for which a control excuse is required. The lack of an act defeats the prima facie case, whereas control excuses are meant to defeat established prima facie liability.

      Arguments by analogy are powerful and there appears to be an almost irresistible impulse, based on what I term the "lure of mechanism," to assimilate cases three through eight, and perhaps even the ninth, to the first two. In all of them, it is undeniably colloquial speech to claim, with varying degrees of success, that one cannot help oneself, that one's act was "involuntary," in all of them. The claimant thus hopes to borrow excusing force from the incontrovertible cases of mechanism and literal physical compulsion, but it is well to remember that all the other cases are not instances of physical mechanism or compulsion. In all, there is intentional, physically voluntary action.(13) Perhaps an excuse should obtain in the others, but the meanings of "cannot help myself" and "involuntariness" are not literal, and the alluring metaphor of mechanism should not obscure the difference.(14) If an excuse is to obtain in the latter seven cases, it must be one of excused action rather than the absence of action and excuses for action must be separately and not parasitically justified.

   2. A Fundamental Psycholegal Error: Determinism/Universal Causation as a Control Excuse

      As Michael Moore(15) and I(16) and countless others(17) have recognized, the truth (or falsity) of determinism or universal causation does not entail that all human action should (or should not) be morally excused because all acts are nonculpably "out of control" in the sense, raised variously in the nine cases, of mechanism, physical compulsion, or, arguably, metaphorical compulsion. Most human movement is not literally compelled and most acts are not done under unusual constraints that might justify an excuse, such as to avoid...