ELSIcon2022 Paper: The Biologization of Morality: Criminal Justice as a Matter of Public Health

ELSIcon2022 • Paper • May 31, 2022

Zachary Ascherl

A growing wealth of literature explains criminal behavior in terms of its environmental, neurological, and genetic causes. Legal practitioners are increasingly using evidence of biological mechanisms, such as a polymorphism in the MAOA gene, to mitigate sentencing for criminal defendants. Judges receive this evidence with disparate attitudes. While some courts find the evidence mitigating to moral culpability, and even legal responsibility, others disagree, concluding that the evidence is aggravating because it demonstrates an increased risk of future dangerousness. Scholars and practitioners are scrutinizing legal theories of punishment and responsibility to resolve problems posed by this evidence. There is much literature that reviews the relation of disease to criminal responsibility, but there is little to no literature which applies a philosophy of health and disease to criminal behavior. This article finds significant literature contemplating ‘moral diseases’, and a strong philosophical basis to understand immoral criminal behavior as within the purview of disease and disability theory. Concepts of disease and disability enjoin certain normative attitudes which typically exclude punishment and instead demand rehabilitation, reasonable accommodation, or medical intervention. The concept of a moral disorder poses a strong obstacle for retributive theories of justice and the prevailing legal doctrine of culpability. This article recommends that these theories be further reevaluated and that criminal justice adopt a public health approach.