Publication Title

Washington University Jurisprudence Review


Mental causation is a foundational assumption of modern criminal

justice. The law takes it for granted that wrongdoers “deserve”

punishment because their acts are caused by intentions, reasons and other

mental states. A growing body of neuroscience evidence shows, however,

that human behavior is produced by observable physiological activity in

the brain and central nervous system—all in accordance with ordinary

physical laws. Beyond these ordinary physiological interactions and

processes, no hypothesis of mental causation is required to causally

explain behavior.

Despite the evidence, neuroskeptics insist that intentions, reasons and

other mental states can play a causal role in producing human behavior.

The evidentiary case for mental causation turns out, however, to be

premised on a well-known logical fallacy, post hoc ergo propter hoc.

Meanwhile, based on the best explanation of all the evidence and data,

mental causation almost certainly cannot and does not occur.

If mental causation is the basis on which offenders are deemed to

deserve punishment, current punishment practices may need to be revised

in the interest of justice. While society will probably always need to use

coercive measures against persons who pose intolerable dangers and

risks, the nature and quality of those measures may be very different if

they are treated as a regrettable necessities rather than as deserved.