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Extralegal Punishment Factors and Judges’ Normative Judgments of Moral Responsibility of bvFTD Patients

Darby, Edersheim, and Price’s (2016) moral reason-responsiveness constructionist framework suggests that pragmatically considering how different moral and psychological deficits in individual behavioral-variant frontotemporal dementia (bvFTD) patients lead to different types of immoral or legal behaviors will allow for the more wellrounded and effective determinations of moral responsibility. One of the main settings in which the authors discuss the use of their framework is with regard to the courtroom. Capacity to make free choices and moral responsibility are constructs argued to permit blame for and punishment of criminal acts, both philosophically and within the context of legal punishments (Clark et al. 2014; Frase 2005). Thus, a logical and practical use of this framework would be judges utilizing it to efficiently and uniformly determine criminal punishments, proportional to an individual offender’s perceived moral responsibility within the proposed framework as determined by that individual’s unique psychological and moral impairments, for individual offenders with bvFTD or other neuropsychiatric impairments. Yet the authors note a key limitation to the use of this framework in practice: Even if this framework was hypothetically utilized to pragmatically determine moral responsibility, the degree to which the impairments of bvFTD actually mitigate moral responsibility still depends on normative interpretations of the individuals, in this case judges, making those determinations. Thus, in order to contextualize their proposed framework with regard to its hypothetical utility for aiding judges in determining punishments in the courtroom, it is worth discussing how the use of this framework by judges in sentencing bvFTD patients might be affected by extralegal punishment factors, which could influence judges’ normative interpretations of the psychological impairments related to the patients’ moral responsibility and pervert the effectiveness of this constructionist framework in practical use. Punishment decisions are often influenced by extralegal punishment factors, which are factors that are not formally recognized by criminal law and should have no bearing on determining an offender’s moral responsibility, but often impact sentencing decisions; these considerations are known to either positively or negatively influence individual judges’ punishment decisions and can ultimately affect views of an offender’s blameworthiness (Robinson, Jackowitz, and Bartels 2012). I focus this discussion on three different psychological and moral impairments associated with bvFTD (regard for consequences, empathy and emotion recognition, theory of mind and harm aversion), argued by Darby, Edersheim, and Price to diminish moral responsibility under the proposed framework, and how several extralegal punishment factors (offender’s immoral character, inability to express remorse, inability to acknowledge guilt) may affect ways in which judges normatively evaluate moral responsibility and how they choose to punish offenders. First, judges may consider bvFTD deficits associated with a person’s disregard for consequences as an indication that the individual exhibits immoral character, which may bear on a judge’s views of an individual’s moral responsibility and his potential for exercising future moral actions. BvFTD deficits associated with reward and punishment related to future consequences, under the constructionist formulation, may diminish an individual’s moral responsibility for his actions because the disorder’s impairments prevent his mind’s reason-responsiveness from being morally motivated by risk of future punishment, even if he is aware of the potential punishments for such actions. Further, since the individual is consciously aware of possible punishments, the behavior’s motivation may be connected to an individual’s belief that the action is remedying an injustice he perceives he is experiencing. Hypothetically, a judge who would use such a constructionist formulation to determine a sentence for an offender with these deficits could potentially decide that punishment should be mitigated; yet, in practice, the fact that an offender is able to vocalize that he was aware of the potential punishment for such actions and that he acted because he felt he was being wronged might be perceived by a judge as an indication that an offender, although diagnosed with bvFTD, exhibits immoral character and will continue to be morally irresponsible in his future actions since he is not dissuaded by potential punishment and appears to be motivated by self-interest. Judges have been known to be significantly influenced by an offender’s perceived immoral character in punishment decisions, particularly viewing it as evidence that an individual will not abstain from immoral or criminal behavior in the future and therefore represents a danger to the community