Incompetence, Psychopathy, and Fair Opportunity

Fair opportunity supports a modified version of the Model Penal Code insanity test, against the narrower M’Naghten test. The Andrea Yates case is introduced as a paradigmatic insanity defense. Recent arguments that psychopaths should be excused because their psychological deficits prevent them from developing cognitive competence about moral norms are considered and rejected. Moral blindspots involving selective discrimination raise questions about selective incompetence. In general, the selective nature of these blindspots implies that agents with blindspots have the capacity to correct their moral ignorance and so should not be excused.

The Reactive Attitudes and Responsibility

The chapter introduces Strawson’s link between the reactive attitudes and responsibility. It defends a realist understanding of that link, in which it is responsibility that grounds the reactive attitudes. It explains how responsibility and excuse are inversely related and how our practices of excuse vindicate a compatibilist conception of responsibility. It concludes by exploring quality of will and distinguishing accountability from attributability and answerability.

Addiction and Fair Opportunity

To decide whether and, if so, under what conditions addiction might excuse misconduct, we need to understand addiction. Three complementary models of addiction are examined—the conception in the Diagnostic and Statistical Manual of Mental Disorders, Ainslie’s hyperbolic discounting model, and Berridge’s and Holton’s model of impaired control. The law’s skepticism about an addiction excuse is examined and questioned. Duress models of how addiction might excuse are rejected. However, the cravings that are part of addiction might affect cognitive (attentional) competence or volitional control. This excuse would be at most partial, and it would be limited to those who are not substantially responsible for becoming or remaining addicted.

Structural Injustice and Fair Opportunity

Structural injustice creates a marginalized class with reduced social and economic opportunities. Does structural injustice compromise the state’s authority to punish wrongdoing by the marginalized, and are the marginalized less deserving of punishment if their crimes reflect their reduced opportunities? Complicity arguments are found to be problematic, but non-violent crime by the marginalized that is a direct response to their reduced opportunities can provide a partial excuse or mitigation at sentencing.

Battered Persons, Provocation, and Fair Opportunity

Different battered person defenses are distinguished from each other and shown not to depend on Battered Woman’s Syndrome. Common law and Model Penal Code conceptions of provocation are distinguished. The Model Penal Code conception is shown to be regressive. A worry is raised that there is a double standard at work in the criminal law’s treatment of intimate partner violence involving men and women. A principled explanation is offered about when provocation justifies and when it excuses. Doubts are expressed about extending a provocation defense to those with unreasonably volatile sensibilities.

Immaturity and Fair Opportunity

There is a moral asymmetry between juvenile and adult offenders if, all else being equal, juveniles should be punished less for their offenses than their adult counterparts should be punished. The trend to transfer juveniles to adult criminal court denies this asymmetry. Developmental and democratic rationales for the asymmetry are distinguished, and the developmental rationale is shown to be more basic. The developmental rationale for the asymmetry is reflected in Supreme Court cases in the United States recognizing constitutional limitations on sentences for juvenile offenders. These cases pose interesting questions about the tension between categorical sentencing rules and individualized justice.

Fair Opportunity, Capacities, and Possibilities

Though some compatibilists deny that responsibility requires alternate possibilities, fair opportunity requires the ability of wrongdoers to do otherwise. However, these alternate possibilities are not the ones precluded by determinism. Different kinds of capacities are distinguished—actual and potential, specific and general. We should be interested in actual capacities that are relatively specific. The relevant capacities can be identified via counterfactuals. In this chapter, Pereboom’s influential incompatibilist manipulation argument is examined and rejected.

Prolegomena

The main themes about the reactive attitudes, fair opportunity, and desert are introduced. The potential fragility of fair opportunity is explored. Cases of partial responsibility and excuse are introduced. The chapter concludes with methodological remarks about combining moral psychology and criminal law perspectives, disclaimers, remarks about the origins of the book, and acknowledgements.

Affirmative Defenses

Different affirmative exculpatory defenses are distinguished and examined, including justifications, such as self-defense and necessity, and excuses, such as insanity, duress, and provocation. Traditional assumptions about the normative architecture of the defenses are examined and questioned. Should the standards in defenses be objective or subjective? Can self-defense be assimilated to necessity? Should we recognize partial justifications? Are necessity and duress distinct defenses? Is provocation a justification or excuse? These questions are addressed and a revised conception of the architecture of defenses is defended.

The Nature and Significance of Culpability

Narrow culpability is the elemental sense of mens rea, which provides the mental or subjective dimension of criminal wrongdoing. Broad culpability is the responsibility condition in virtue of which the agent’s wrongdoing is blameworthy and without which she would be excused. Inclusive culpability is the combination of wrongdoing and responsibility that together make the agent blameworthy and deserving of blame and punishment. Each kind of culpability plays an important role in a broadly retributive rationale for the criminal law that predicates blame and punishment on the fair opportunity to avoid wrongdoing. Different kinds of culpability align with attributability and accountability. Strict liability crimes that permit liability without culpability are rejected.