Amicus Curiae Brief — James K. Kahler, Petitioner v. Kansas

CAPITAL CASE

No. 18-6135

In the Supreme Court of the United States

________________

JAMES K. KAHLER,

Petitioner,

v.

STATE OF KANSAS,

________________

Respondent.

On Writ of Certiorari to the

Supreme Court of Kansas

________________

Brief of Philosophy Professors as

Amici Curiae in Support of Petitioner

________________

EUGENE R. FIDELL

(Counsel of Record)

Feldesman Tucker Leifer Fidell LLP

1129 20th St., N.W., 4th Fl.

Washington, DC 20036

(202) 256-8675

efidell@feldesmantucker.com

Counsel for Amici Curiae

QUESTION PRESENTED

Do the Eighth and Fourteenth Amendments permit a State to abolish the insanity defense?

i

TABLE OF CONTENTS

Page

Interest of the Amici ................................................. 1

Summary of Argument ............................................. 1

Argument .................................................................. 2

I.
THE MENTAL STATE ELEMENTS OF

CRIMES ARE INSUFFICIENT

FOR RESPONSIBILITY .............................. 2

II.
SANITY IS NECESSARY FOR RESPONSIBILITY AND SO ESSENTIAL TO BOTH

THE DETERRENT AND RETRIBUTIVE

AIMS OF CRIMINAL PUNISHMENT ........ 6

III.
PRINCIPLES OF TOLERATION DO NOT

SUPPORT DEFERENCE TO STATES

THAT CHOOSE TO PUNISH THE

MENTALLY ILL ......................................... 12

Conclusion ............................................................... 14

Appendix (List of Amici Curiae)............................. 1a

iii

TABLE OF AUTHORITIES

Cases:

Durham v. United States, 214 F.2d 862

(D.C. Cir. 1954) .................................................... 14

Ford v. Wainwright, 477 U.S. 399 (1986) ................ 14

Panetti v. Quarterman, 551 U.S. 930 (2007) ........... 14

Constitution and Statutes:

U.S. Constitution

Amend. 8 ................................................................. i

Amend. 14 ............................................................... i

Miscellaneous:

AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL DISORDERS

(5th ed. 2013) .................................................... 8, 10

J. L. Austin, A Plea for Excuses: The Presidential

Address, 57 PROCS. ARISTOTELIAN SOC’Y 1

(1956) ....................................................................... 3

Marcia Baron, Justifications and Excuses, 2 OHIO

ST. J. CRIM. L. 387 (2005).................................... 3, 6

R.A. Duff, Retrieving Retributivism, in

MARK D. WHITE, RETRIBUTIVISM: ESSAYS ON

THEORY AND POLICY (2011) ................................... 11

JOHN GARDNER, OFFENCES AND DEFENCES (2007) ..... 6

Kent Greenawalt, Distinguishing Justifications

from Excuses, 49 L. & CONTEMP. PROBS. 89

(1986) ...................................................................... 4

Kent Greenawalt, The Perplexing Borders of

Justification and Excuse, 84 COLUM. L. REV.

1897 (1984) .............................................................. 6

iv

H.L.A. HART, PUNISHMENT AND RESPONSIBILITY

(2d ed. 2008) .............................................. 3, 4, 6, 10

Donald H. J. Hermann, Assault on the Insanity

Defense, 14 RUTGERS L. J. 241 (1983).................... 6

Erin I. Kelly, What Is an Excuse?, in BLAME:

ITS NATURE AND NORMS (D. Justin Coates &

Neal A. Tognazzini eds. 2012) ............................... 4

Mark Kelman, Interpretive Construction in the

Substantive Criminal Law, 33 STANFORD

L. REV. 591 (1981) ................................................... 7

Stephen J. Morse, Craziness and Criminal

Responsibility, 17 BEHAV. SCI. & L. 147

(1999) ........................................................ 6, 8, 9, 10

Stephen J. Morse, Excusing and the New Excuse

Defenses: A Legal and Conceptual Review,

23 CRIME & JUST. 329 (1998) ................................. 5

Rollin M. Perkins, A Rationale of Mens Rea,

52 HARV. L. REV. 905 (1939) .................................. 2

Michael J. Sandel, Judgemental Toleration,

in NATURAL LAW, LIBERALISM, AND MORALITY:

CONTEMPORARY ESSAYS (Robert George

ed. 2001) ................................................................ 13

A.P. Simester & W. Chan, The Mental Element

in Complicity, 122 L. Q. REV. 591 (2006) .............. 6

P.F. Strawson, Freedom and Resentment, 48 PROCS.

BRITISH ACAD. 1 (1962) ........................................... 4

Robert Waelder, Psychiatry and the Problem of

Criminal Responsibility, 101 U. PA. L. REV. 378

(1952) ................................................................ 8, 12

Gary Watson, Two Faces of Responsibility,

24 PHILOSOPHICAL TOPICS 227 (Fall 1996) .. 4, 7, 11

Gideon Yaffe, The Voluntary Act Requirement, in

THE ROUTLEDGE COMPANION TO PHILOSOPHY

OF LAW (Andrei Marmor ed. 2012) ......................... 7

v

INTEREST OF THE AMICI1

The amici are professors of philosophy, jurisprudence and law. They are listed in the Appendix. They

submit this brief in their individual capacities and not

on behalf of any institution with which they are affiliated. They represent neither party.

SUMMARY OF ARGUMENT

People should never be criminally punished for

wrongful acts for which they are not responsible. This

is a fundamental principle of justice. Any government

that offends this principle by punishing actors who

are not criminally responsible for their wrongs perpetrates profound injustice.

Sanity is a precondition of responsibility. This is

not a principle of justice; it is a conceptual principle,

deriving from the very nature of criminal responsibility. People who deeply disagree about what forms of

conduct ought to be punished cannot reasonably disagree about this. Just as our reasonable moral disagreements can only exist in front of a backdrop of

agreement over the nature of liberty and equality,

1

Both parties have consented to the filing of this brief. No counsel to a party in this case authored this brief in whole or in part.

No party or party’s counsel made any monetary contribution

that was intended to or did fund the preparation or submission

of this brief. No person or entity other than the amici and their

counsel made any monetary contribution that was intended to or

did fund the preparation or submission of this brief. Printing expenses have been borne by Yale Law School. This brief should

not be interpreted as representing the views of Yale Law School

or Yale University.

1

they can also only exist in the face of agreement that

sanity is necessary for responsibility.

Therefore, any government that denies criminal

defendants the opportunity to avoid blame and punishment by establishing that they were not sane at

the time of their wrongful conduct necessarily perpetrates injustice. The lack of an insanity defense, as in

Kansas, will ensure that the state punishes some defendants in the absence of responsibility for their

crimes.

It is crucial for our society to tolerate a diversity of

ethical views and to defer often to others to establish

the rules by which they are to live, but toleration and

deference cannot go so far as to allow a government to

perpetrate injustice of this sort. The Court should

correct Kansas’s error.

ARGUMENT

I

THE MENTAL STATE ELEMENTS OF CRIMES

ARE INSUFFICIENT FOR RESPONSIBILITY

The presence of the mental state elements of the

crime, the mens rea, is necessary for criminal responsibility. But it is not sufficient.2 There is a wellknown distinction between excuses and justifications.

2 Rollin M. Perkins, A Rationale of Mens Rea, 52 HARV. L. REV.

905, 908 (1939).

2

Justifications negate wrongdoing.3 The person who

harms another in self-defense, for instance, does nothing wrong. By contrast, excuses negate responsibility.4 Affirmative defenses that are excuses, such as

duress and infancy, speak to our recognition of the

fact that there is more to responsibility than the mental state elements of crimes.5 The excusing affirmative defenses negate the responsibility of even those

whose conduct included mens rea. The excusing affirmative defenses reflect that a wrongdoer’s psychological states at the time of the crime can fail to constitute responsibility thanks to their causes.6 The

person who commits a crime as a result of duress possesses the mental states required for the crime—he

intends to do the prohibited act to avoid harm to himself. But he is in those mental states due to the severe

pressures placed on him by a third party’s threat. It

is the pressure that led him to form those mental

states, the unjustified threat, that makes them insufficient for responsibility. Had he found himself in

those same mental states for other reasons—from the

3 See J. L. Austin, A Plea for Excuses: The Presidential Address,

57 PROCS. ARISTOTELIAN SOC’Y 1, 2 (1956); Marcia Baron, Justifications and Excuses, 2 OHIO ST. J. CRIM. L. 387, 389-90 (2005).

4 Austin, supra note 3.

5 See Baron, supra note 3, at 390-91 (noting that both external

circumstances and facts about the wrongdoer themselves may

prevent the individual from conforming to the law).

H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 14 (2d ed.

2008) (describing an excuse as precluding criminal responsibility

because “the psychological state of the agent when he [acted] exemplified one or more of a variety of conditions which are held to

rule out the public condemnation and punishment of individuals”).

6

3

pressure of poverty, or the simple desire to be rich—

then he would have been criminally responsible. To

determine if a person is owed an excusing affirmative

defense we must attend to the reasons why mens rea

was formed and not solely to the mental states that

constitute the elements of the crime.

Moral philosophers and philosophers of criminal

law are in universal agreement that some causal histories of mental states undermine criminal responsibility.7 They uniformly accept that the mental state

elements of crimes are insufficient for responsibility.

This point has an important implication: If the state

is to avoid punishing in the absence of responsibility,

it must provide a mechanism through which a criminal defendant can be excused from liability through

appeal to problematic features of the history of his

mental states. The affirmative defense of duress is

one such mechanism.8 But justice requires that for

each responsibility-undermining factor there is a legal mechanism by which a defendant can shield himself. This is reflected in the diversity of excusing

7 See, e.g., HART, supra note 6, at 28; P.F. Strawson, Freedom

and Resentment, 48 PROCS. BRITISH ACAD. 1, 6-10 (1962); Gary

Watson, Two Faces of Responsibility, 24 PHILOSOPHICAL TOPICS

227, 233, 240 (Fall 1996); see also Erin I. Kelly, What Is an Excuse?, in BLAME: ITS NATURE AND NORMS 248-49 (D. Justin

Coates & Neal A. Tognazzini eds. 2012) (describing different

mental states that offer legal versus moral excuses).

8 Kent Greenawalt, Distinguishing Justifications from Excuses,

49 L. & CONTEMP. PROBS. 89, 100 (1986).

4

affirmative defenses.9 Being in the mental states required for a crime due to duress is one ground of excuse; being in those mental states due to infancy is

another; and so on. For each such ground of excuse, a

legal mechanism must be provided if the state is to

avoid unjust punishment.

Criminal defendants are insufficiently protected

from unjust punishment by the demand that prosecutors prove the mental state elements of crimes beyond

a reasonable doubt. A prosecutor could meet this burden, and yet the defendant’s criminal responsibility

could fail to be established, for it could be undermined

by the reason his psychological states were formed, a

history never placed in evidence in the establishment

of the prima facie case. The state will inflict an unjust

punishment if there is no legal mechanism by which

a defendant can shield himself from liability by showing that one of the responsibility-undermining types

of factors was present.

This is the fundamental defect in Kansas’s regime.

As the next section of this brief will establish, when

the mental state elements are produced by mental

disorder, the defendant can be shown beyond a reasonable doubt to have had mens rea without thereby

being shown to have been criminally responsible.

9 See Stephen J. Morse, Excusing and the New Excuse Defenses:

A Legal and Conceptual Review, 23 CRIME & JUST. 329 (1998)

(cataloguing affirmative excuse defenses).

5

II

SANITY IS NECESSARY FOR RESPONSIBILITY

AND SO ESSENTIAL TO BOTH THE

DETERRENT AND RETRIBUTIVE

AIMS OF CRIMINAL PUNISHMENT

There are compelling arguments for the claim that

at least sometimes mental states that are a product of

severe mental illness fail to suffice for criminal responsibility for the acts of wrongdoing they accompany and guide.10 Each of these arguments begins

with a plausible description of the criminally responsible actor and shows that the severely mentally disordered can and sometimes do fail to meet the description. Moral philosophers and philosophers of criminal

law differ from one another in their views about which

features of the criminally culpable actor capture the

essence of criminal responsibility.11 They differ also

about the precise criteria that mental states formed

as a result of mental disorder must meet to excuse an

agent from responsibility.12 But these disagreements

do not undermine the agreement that sanity is necessary for responsibility.

10 See, e.g., Donald H. J. Hermann, Assault on the Insanity De-

fense, 14 RUTGERS L. J. 241 (1983); Stephen J. Morse, Craziness

and Criminal Responsibility, 17 BEHAV. SCI. & L. 147 (1999).

See, e.g., JOHN GARDNER, OFFENCES AND DEFENCES 227-32

(2007); HART, supra note 6, at 136-150; A.P. Simester & W.

Chan, The Mental Element in Complicity, 122 L. Q. REV. 591

(2006).

11

12 See, e.g., Baron, supra note 3; Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897

(1984).

6

A first mark of fully criminally responsible conduct is the opportunity to avoid wrongdoing.13 Criminally responsible actors typically had opportunities

to avoid the crimes they commit. Their mental states

at the time of their offenses were formed through motivational mechanisms that allowed a meaningful

choice about whether to offend.14 The person who

commits a murder for profit or out of anger is criminally culpable in part thanks to the fact that he had

the opportunity to temper his impulse. He had the

fair opportunity to step back, survey his motives, and

elect an alternative course. His responsibility derives

from the fact that he opted not to take the opportunity

to “put on the brakes” by reflectively adjusting his motives and intentions towards law-abiding behavior.

Mental disorder, especially if it is severe, sometimes eliminates, and frequently substantially restricts, the opportunity to conform to law. When mens

rea is caused by mental disorder, it is sometimes generated by a mechanism that severely restricts the offenders’ opportunity to recognize, much less pursue,

13 See Mark Kelman, Interpretive Construction in the Substantive

Criminal Law, 33 STANFORD L. REV. 591, 598 (1981) (noting the

assumption in criminal jurisprudence that wrongdoers make intentional choices); Watson, supra note 7, at 239 (discussing the

relationship between avoidability and moral responsibility).

14 See generally Gideon Yaffe, The Voluntary Act Requirement, in

THE ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW (Andrei

Marmor ed. 2012) (arguing that criminal responsibility requires

that objectionable mental states manifest in voluntary action).

7

lawful paths.15 Severe mental disorders profoundly

distort the judgment of those who suffer from them.16

The severely mentally disordered sometimes become

convinced, as Mr. Kahler appears to have been, that

their best, or even their only way forward, is to commit a serious crime. While they are, as Mr. Kahler

was, tragically mistaken, their failure to see alternative paths as a result of their mental disorder makes

it exceedingly difficult for them, if not impossible, to

behave lawfully.

The goal of deterrence is not fruitfully pursued

through the punishment of those whose mental illnesses eliminate or severely restrict the opportunity

to pursue a lawful path.17 The healthy person, who

can elect any of a variety of courses of action, can be

encouraged to elect the legal path through threat of

punishment. But the person whose judgment is severely distorted by mental illness will not choose the

legal course of action even if he fully recognizes that

the alternative promises punishment. To him it appears that his only option, whether he will be punished or not for following it, is criminal conduct. To

adopt a system that punishes him is, thereby, to adopt

a system that denies that deterrence is a central purpose of criminal punishment.

15 Morse, supra note 10, at 152 (distinguishing between delu-

sional agents who cannot properly follow legal rules and irrational agents who are simply mistaken about the rule).

16 See generally AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATIS-

TICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013) [hereinafter

DSM].

17 Robert Waelder, Psychiatry and the Problem of Criminal Responsibility, 101 U. PA. L. REV. 378, 379 (1952).

8

There is another, conceptually distinct mark of

fully responsible wrongdoing that is also missing in at

least some of those who form mens rea as a result of

mental illness. In addition to enjoying opportunities

to correct their psychological states, criminally responsible actors manifest deficiencies in how they

weigh the effects of their actions on other people.18

Some of them care more about money than they do

about other people’s pain, for instance. We can infer

that they have such distorted values from their actions and the mental states that accompanied and

guided those actions. We can infer that the person

who intentionally took another’s money with a threat

of violence cared far less than he should have about

harm to others. We can infer that the person who intentionally killed his family for the insurance money,

or to rid himself of family obligations, callously disregarded the lives of others for the sake of his own good.

We make an inference from behavior, and the psychological states that drove it, to the agent’s regard for

the rights and prerogatives of other people.

Mental disorder often makes it impossible to infer

anything about how its sufferer employs and exercises his capacities for rational thought, rational deliberation and self-regulation. Severe mental disorder profoundly alienates the person from rational control over his conduct and the psychological states that

18 See Morse, supra note 10, at 149 (describing the relationship

between a defendant’s degree of fault and their disregard for the

rights of others).

9

give rise to it.19 The criminal behavior of the severely

disordered does not reflect the lack of concern and respect for others that similar behavior indicates about

sane people. But if criminal responsibility requires

the manifestation in behavior of such lack of concern

then severely mentally disordered people are sometimes not criminally responsible for their conduct.20

A mentally ill defendant who is given only the opportunity to appeal to his mental disorder to negate

the mental state elements of the crime, is prevented

from showing that his criminal conduct was reflective

of his disorder and not of the moral failure that similar criminal conduct reflects in the sane. The conduct

of the cold-blooded murderer, including his vicious intention to kill, reflects an underlying callousness towards the rights and interests of other people. But

the conduct of a mentally disordered person like Mr.

Kahler, even when it is guided by an intention to kill,

is not reflective of such callousness. It is reflective

only of the distorted cognition and distorted control

capacities caused by his debilitating depression. It is

the reflection of facts about how offenders weigh their

interests and the interests of others that is essential

to criminal culpability.21 Such facts are not always

reflected in the criminal conduct of the mentally ill. If

we are to conform to the demand of justice to punish

only the responsible, then a legal mechanism must be

provided by which people with mental disorder can

19 See DSM, supra note 16, for further discussion of the criteria

of impulse-control and conduct disorders.

20 See Morse, supra note 10, at 149-50.

21 See HART, supra note 6, at 136-57.

10

demonstrate the crucial difference between themselves and the sane.

It is in part because criminally culpable conduct

reflects an offender’s attitudes and values that the

goal of retribution is properly pursued through criminal punishment.22 Wrongdoing, to be sure, is an essential contributor to desert. The culpable actor who

harmed another person deserves punishment in part

because of the harm he inflicted. But when conduct,

even severely harmful conduct, does not reflect moral

distortions in the person’s underlying attitudes and

values, punishment is undeserved.23 In such a case,

retribution cannot be served by inflicting blame and

punishment. Civil commitment or similar remedies,

not criminal liability, is then the right response.

By denying mentally disordered defendants the

opportunity to shield themselves from blame and punishment when they had mens rea, the State of Kansas

has adopted a system that is necessarily at odds with

both the deterrent and the retributive aims of criminal punishment. Both aims are properly pursued only

when punishment is reserved for the responsible, and

22 R.A. Duff theorizes criminal punishment as a public declara-

tion of the offender’s violation of the polity’s values. The penal

burden is retributive insofar as it communicates censure to the

offender for adopting values that conflict with those of the polity

and seeks recognition of that violation. R.A. Duff, Retrieving Retributivism, in MARK D. WHITE, RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY (2011).

23 See, for example, Gary Watson’s account of responsibility in

which the focus of blame and punishment is whether the agent’s

actions express her evaluative commitments. Watson, supra

note 7, at 233-34.

11

the conduct of the severely mentally disordered sometimes lacks the qualities that are the mark of responsibility, qualities that make criminally responsible

people deterrable and deserving of punishment for

their crimes.

III

PRINCIPLES OF TOLERATION DO NOT

SUPPORT DEFERENCE TO STATES THAT

CHOOSE TO PUNISH THE MENTALLY ILL

A society with a serious commitment to fostering

and protecting pluralism in moral attitudes, as ours

has, has good reason to adopt policies of deference.

Pluralist toleration is furthered when we allow states

to control the content of their criminal law, and

thereby to set the boundaries of permissible behavior

within their borders. However, pluralist commitments do not require us to allow states to offend fundamental principles of justice. Kansas’s regime does

offend such principles.

It might be thought that while states must extensively adhere to the demand to punish only the criminally responsible, we should defer to each state to decide what constitutes criminal responsibility within

its borders.24 If this were correct, then a state would

be free to adopt a conception of criminal responsibility

under which the mental state elements of the crime

suffice. While we might think them mistaken in such

24 See, e.g., Waelder, supra note 17, at 385-86 (arguing that the

criteria of criminal responsibility and mental illness are questions of legal policy for citizens of each state to decide).

12

a view, our commitment to a policy of deference would

commit us to tolerating it. But this is an error. Rational people with radically different moral outlooks

cannot disagree about the criminal responsibility of at

least some of the severely mentally disordered.

Committed pluralists need not and should not

think that virtually any rule must be acceptable.25

There must be limits. There must be policies that offend fundamental principles of justice to such an extent that they are unworthy of our toleration, unworthy of our deference.

For this reason, a commitment to pluralist toleration does not require us to defer to a state’s faulty

view of notions that are fundamental to the very principles that set the limits to our toleration. We should

not tolerate state policies, for instance, that offend

fundamental principles of liberty and equality. States

cannot bypass such limits by adopting faulty definitions of terms like “equality,” “liberty,” or “due process”. To defer to states in their definitions of such

terms would be to grant states license to offend fundamental principles of justice. Such deference functionally places no limits on toleration. It gives states

the opportunity to define their way into formal compliance with the demands to respect liberty and

equality.

25 See generally Michael J. Sandel, Judgemental Toleration, in

NATURAL LAW, LIBERALISM, AND MORALITY: CONTEMPORARY ES-

SAYS (Robert George ed. 2001) (arguing that in some circum-

stances moral considerations may outweigh society’s interest in

pluralistic toleration).

13

Similarly, a state cannot avoid the demand to punish only the criminally responsible by insisting that

within its borders “responsible” is defined in such a

way that the mentally disordered are responsible

even in cases in which they lacked a fair opportunity

to conform to the law, or in cases in which their conduct failed to manifest the lack of concern for others

that is the hallmark of the actions of fully responsible

offenders. Tolerable moral disagreement must proceed against a backdrop of agreement about the nature of many descriptive features of persons that matter to the question of what justice requires. This is

the case with the notion of criminal responsibility.

We can recognize that pluralist toleration requires

us to grant states substantial control over their criminal law and, simultaneously hold, as we should, that

states are not free to offend principles of justice

through abolition of the insanity defense.

CONCLUSION

Criminal responsibility requires a certain psychology with a certain causal history. This is a descriptive, non-moral fact that has important implications

for justice. Criminally responsible wrongdoing is an

eligible object of punishment; conduct by non-responsible people is not a proper object of blame and punishment. This is a fundamental feature of our jurisprudence.26

To tolerate policies of criminal

26 See, e.g., Panetti v. Quarterman, 551 U.S. 930, 960 (2007);

Ford v. Wainwright, 477 U.S. 399, 407-11 (1986); see also

Durham v. United States, 214 F.2d 862, 869-76 (D.C. Cir. 1954)

14

responsibility under which the mentally disordered

are responsible solely because their conduct satisfies

the prima facie case turns a blind eye to injustice that

no policy of deference requires.

The amici urge the Court to recognize the injustice

in Kansas’s abolition of the insanity defense, and to

uphold the fundamental principle that criminal

blame and punishment must be reserved for the responsible.

Respectfully submitted.

EUGENE R. FIDELL

Counsel of Record

Feldesman Tucker Leifer Fidell LLP

1129 20th St., N.W., 4th Fl.

Washington, DC 20036

(202) 256-8675

efidell@feldesmantucker.com

Counsel for Amici Curiae

(describing the historical test for mental illness and incapacity

under the law).

15

APPENDIX

List of the Amici Curiae*

Gideon Yaffe is the Wesley Newcomb Hohfeld

Professor of Jurisprudence and Professor of

Philosophy and Psychology at Yale Law School. He

has published books and articles concerned with

criminal responsibility and the philosophy of criminal

law.

Kate Abramson is Associate Professor of Philosophy

at Indiana University. She has published extensively

on questions of moral psychology, especially attitudes

of blame, and directly on the question of the

relationship between moral judgments of persons and

assessments of mental health or illness.

Eyal Aharoni is an Assistant Professor of Psychology

and Philosophy at Georgia State University. He has

published extensively about moral reasoning, legal

responsibility, and criminal punishment.

Richard J. Arneson is Professor of Philosophy at the

University of California, San Diego. He has written

on issues in social justice and on personal

deservingness and moral responsibility themes.

Marcia Baron is James H. Rudy Professor of

Philosophy at Indiana University, Bloomington. She

has published extensively on justifications and

excuses and on criminal law defenses.

*

Affiliations are shown for identification purposes only.

1a

Nancy Bauer is Professor of Philosophy at Tufts

University. She has published extensively in social

and political philosophy.

Gustavo Beade is Professor of Law at the University

of Buenos Aires. He has published on excuses and

justifications in criminal law.

Kristen Bell is Assistant Professor at University of

Oregon School of Law. She has published about

criminal punishment.

Brian H. Bix is the Frederick W. Thomas Professor of

Law and Philosophy at the University of

Minnesota. He has written extensively in legal

philosophy.

David Boonin is Professor of Philosophy and Director

of the Center for Values and Social Policy at the

University of Colorado Boulder. He is the author

of six books and a number of articles in ethics and

applied ethics.

Jeffrey Brand is Associate Professor of Philosophy at

the George Washington University. He has published

on moral philosophy, philosophy of law, and the

theory of criminal punishment.

Michael E. Bratman is U. G. and Abbie Birch Durfee

Professor in the School of Humanities and Sciences,

and

Professor

of

Philosophy

at

Stanford

University. He has published extensively about

intention, individual and shared, and about practical

rationality.

2a

David O. Brink is Distinguished Professor of

Philosophy at the University of California, San Diego

and Affiliate Professor of Law at the University of San

Diego School of Law. His research is in ethical theory,

moral psychology, and criminal law — including

responsibility, excuse, and insanity.

Susan J. Brison is Professor of Philosophy and Eunice

and Julian Cohen Professor for the Study of Ethics

and Human Values, Dartmouth College. She has

published extensively on topics in ethics and political

philosophy

Michael Brownstein is Associate Professor of

Philosophy at John Jay College of Criminal

Justice/City University of New York. He has

published books and articles about bias, prejudice,

ethics, and moral responsibility.

Sarah Buss is Professor of Philosophy at the

University of Michigan. She has published on moral

responsibility, rational agency, the obligation to treat

others with respect and the basis of this obligation.

Joe Campbell is Professor in Politics, Philosophy, and

Public Affairs at Washington State University. He

has published extensively about free will, moral

responsibility, and blame.

Ruth Chang is the Chair and Professor

of Jurisprudence at the University of Oxford. She has

published extensively on value, decision-making,

reasoning, and human agency.

3a

Randolph Clarke is Professor of Philosophy at Florida

State University. He has published extensively on

agency, free will, and moral responsibility.

Justin Coates is Associate Professor of Philosophy at

the University of Houston. He has published widely

on moral responsibility and blame.

David Copp is Distinguished Professor of Philosophy

at the University of California, Davis. He has

published extensively on topics in moral philosophy

including issues about responsibility and about law.

Taylor Cyr is Assistant Professor of Philosophy at

Samford University. He has published articles on

free will and moral responsibility.

Stephen Darwall is Andrew Downey Orrick Professor

of Philosophy at Yale University and John Dewey

Distinguished University Professor Emeritus at the

University of Michigan. He has written widely on

issues of moral responsibility and the nature and

justification of moral blame.

Michelle Madden Dempsey is the Harold Reuschlein

Scholar Chair and Professor of Law at Villanova

University Charles Widger School of Law. She has

published extensively about criminalization and

moral wrongdoing.

Julia Driver is Professor of Philosophy at Washington

University in St. Louis. She works in normative

ethics, metaethics and moral psychology.

4a

Gerald Dworkin is Distinguished Professor of

Philosophy, Emeritus, at the University of California,

Davis. He has published widely on the question of

what justifies criminalizing conduct.

Andrew Eshleman is Professor of Philosophy at the

University of Portland. He has published work on

freedom and moral responsibility.

Luca Ferrero is Professor of Philosophy at the

University of California, Riverside. He has published

extensively about intentional agency.

John Martin Fischer is Distinguished Professor of

Philosophy at the University of California, Riverside,

and University Professor in the University of

California. He has published extensively on freedom,

competence, and moral responsibility.

Sam Fleischacker is LAS Distinguished Professor of

Philosophy and Director of Religious Studies,

University of Illinois—Chicago. He has published

extensively on justice and on moral pluralism.

Peter Furlong is Professor of Humanities in the

Philosophy Program at Valencia College. He writes

about free will and philosophy of religion.

Jon Garthoff is Associate Professor and Director of

Graduate Studies at the University of Tennessee. He

has published work on a variety of topics in ethical

theory and political philosophy, including moral

character, the conditions necessary for responsibility,

and the doctrine of legal personality.

5a

Stephen P. Garvey is Professor of Law at Cornell Law

School. He has written about the nature of the

insanity defense and sanity as a necessary condition

for the legitimacy of criminal liability.

Sanford Goldberg is Professor of Philosophy at

Northwestern. He has published extensively in the

theory of knowledge and the philosophy of language.

Sally Haslanger is Ford Professor of Philosophy and

Women's and Gender Studies at MIT. She has

published extensively about social justice, especially

with respect to gender, race, and disability.

Scott Hershovitz is Professor of Law and Professor of

Philosophy at the University of Michigan. He writes

about justice and responsibility.

Pamela Hieronymi is Professor of Philosophy at

UCLA. She works in moral psychology and has

published extensively about mental agency and moral

responsibility.

Sarah Holtman is Professor of Philosophy at the

University of Minnesota, Twin Cities. She is a

specialist in moral, political and legal philosophy.

Adam Hosein is Associate Professor of Philosophy at

Northeastern University.

He has published

extensively in political philosophy and the philosophy

of law

Robin Jeshion is Professor of Philosophy at the

University of Southern California. She has written

6a

extensively on topics in philosophy of mind and

language.

Troy Jollimore is Professor of Philosophy at

California State University, Chico. He has published

extensively about topics including the morality of

personal relationships, obligations of loyalty, and the

ethics of war and combat.

James M. Joyce is C. H. Langford Collegiate Professor

of Philosophy and Professor of Statistics at the

University of Michigan, Ann Arbor. He has published

extensively on rational choice theory and probabilistic

reasoning.

Shelly Kagan is the Clark Professor of Philosophy at

Yale University. He has written widely on various

topics in moral philosophy, including the nature of

desert.

Matt King is Assistant Professor of Philosophy at the

University of Alabama at Birmingham. He has

published widely on responsibility and blame.

Hilary Kornblith is Distinguished Professor of

Philosophy at the University of Massachusetts,

Amherst. He has published widely on epistemology

and related areas.

Krista Lawlor is Professor of Philosophy at Stanford

University. She has published extensively about

knowledge and self-knowledge.

Ambrose Lee is a Lecturer in Legal Theory at the

School of Law in University of Surrey. He has

7a

published a number of articles on the normative

issues relating to criminalization and the justification

of punishment.

Janet Levin is Professor of Philosophy at the

University of Southern California. She has published

on topics in the philosophy of mind, philosophy of

psychology, and the theory of knowledge.

Judith Lichtenberg is Professor of Philosophy at

Georgetown University. She has written about

criminal punishment and has taught philosophy at

Jessup Correctional Institution in Maryland and the

DC Jail in Washington, D.C.

Douglas MacLean is Professor of Philosophy at the

University of North Carolina Chapel Hill. He teaches

and has published articles on moral philosophy,

public policy, and law.

Daniel Markovits is Guido Calabresi Professor of Law

at Yale Law School. He has written extensively about

equality, desert and political legitimacy.

Julia Markovits is Associate Professor of Philosophy

at Cornell University.

She teaches ethics and

philosophy of law, and has published extensively on

topics in moral philosophy, including the nature of

praiseworthiness and blameworthiness.

Andrei Marmor is Jacob Gould Schurman Professor of

Philosophy and Law at Cornell University. He has

published extensively in legal and moral philosophy

as well as constitutional theory.

8a

Edwin McCann is Professor of Philosophy and

English at the University of Southern California. He

has published work on the topic of free will and

determinism, especially as it relates to the causation

of action.

Lisa J. McLeod is Professor of Philosophy at Guilford

College. A former criminal defense attorney, she has

published on philosophical problems regarding

imprisonment, and W.E.B. Du Bois.

Jeff McMahan is White’s Professor of Moral

Philosophy at the University of Oxford. He has

published extensively on moral responsibility as the

basis of a person’s liability to be harmed as a matter

of defense, punishment, or reparation.

Alfred R. Mele is the William H. and Lucyle T.

Werkmeister Professor of Philosophy at Florida State

University. He is the author of 12 books and over 200

articles concerned with agency and responsibility.

Dale E. Miller is a Philosophy Professor and Associate

Dean at Old Dominion University. He is a native

Kansan and has published extensively on topics in

moral philosophy.

Sarah Moss is Professor of Philosophy at the

University of Michigan. She is the Thomas E.

Sunderland Faculty Fellow and Visiting Professor at

Michigan Law, and she works on issues at the

intersection of epistemology, evidence, and legal

proof.

9a

Liam Murphy is Herbert Peterfreund Professor of

Law and Professor of Philosophy at New York

University. He has published extensively in legal,

moral, and political philosophy.

Mark C. Murphy is McDevitt Professor of Religious

Philosophy at Georgetown University. He has

published extensively in moral philosophy and

philosophy of law.

Eddy Nahmias is Professor and Chair of Philosophy,

and an Associate Faculty member in the Neuroscience

Institute, at Georgia State University. He has

published numerous articles and chapters on free will

and moral responsibility, and is currently working on

punishment theory.

Dana Kay Nelkin is Professor of Philosophy at the

University of California, San Diego and Affiliate

Professor at the University of San Diego School of

Law. She has published extensively on moral

responsibility, blame, and criminal wrongdoing.

Michael Nelson is Associate Professor of Philosophy

at the University of California, Riverside. He writes

primarily about philosophy of mind and language.

John Oberdiek is Professor of Law at Rutgers

University. He has published extensively about rights

and responsibility.

Jonathan Parry is Lecturer in Philosophy at The

University of Birmingham, UK. He has published

extensively on the morality of homicide and related

issues in legal philosophy.

10a

L.A. Paul is Professor of Philosophy and Cognitive

Science at Yale University. She has written two

books on causation and decision making and has

published many articles on these and related topics.

Douglas W. Portmore is Professor of Philosophy at

Arizona State University. He has published

extensively about morality, rationality, blame, and

responsibility.

Gerald J. Postema is Cary C Boshamer Professor of

Philosophy at University of North Carolina at Chapel

Hill. He has written widely on the rule of law, justice

and criminal law.

Jonathan Quong is Professor of Philosophy and Law

at the University of Southern California. He has

published extensively about liberalism and the

morality of defensive force.

Peter Railton is the Kavka Distinguished University

Professor at the University of Michigan, Ann Arbor.

He has published work on ethics, the theory of action,

and the nature of rationality.

Piers Rawling is Professor and Chair of Philosophy at

Florida State University. He has published

extensively about ethics.

Andrews Reath is Professor of Philosophy at the

University of California, Riverside. He has written

extensively about Kant’s moral philosophy and

contemporary Kantian approaches to moral

philosophy.

11a

Massimo Renzo is Professor of Politics, Philosophy

and Law at The Dickson Poon School of Law, King's

College London. He has published extensively on the

philosophy of criminal law, political authority and

human rights.

Samuel C. Rickless is Professor of Philosophy at the

University of California, San Diego and Affiliate

Professor at the University of San Diego School of

Law. He has published on moral responsibility and

criminal wrongdoing.

Gideon Rosen is Stuart Professor of Philosophy,

Princeton University. He has published extensively

on the theory of moral blame and moral

responsibility.

Adina Roskies is the Helman Distinguished Professor

of Philosophy and Chair of Cognitive Science at

Dartmouth College. She has published extensively on

neuroscience and the law, free will and moral

responsibility, and is co-editor of A Primer on

Criminal Law and Neuroscience.

Jacob Ross is Professor of Philosophy at the

University of Southern California. He has published

extensively on ethics and practical rationality.

Alexander Sarch is an Associate Professor (Reader)

and Head of School at University of Surrey School of

Law

in

the

United

Kingdom.

He

has

published extensively about criminal culpability,

mental states and the justification of punishment.

12a

Jennifer Saul is Professor of Philosophy at the

University of Sheffield. She works on topics in the

philosophy of psychology.

Geoffrey Sayre-McCord is the Morehead-Cain

Distinguished Professor of Philosophy and the

Director of the Philosophy, Politics and Economics

Program at the University of North Carolina at

Chapel Hill. He has published extensively in

fundamental issues in moral theory.

Thomas M. Scanlon is the Alford Professor of Natural

Religion, Moral Philosophy, and Civil Polity,

Emeritus, at Harvard University. He has written

extensively about moral philosophy, responsibility

and blame.

Tamar Schapiro is Associate Professor of Philosophy

at MIT. She has published articles on ethics and

agency.

Nancy Schauber is Associate Professor of Philosophy

at the University of Richmond. She works on moral

philosophy.

Samuel Scheffler is University Professor in the

Department of Philosophy and the School of Law at

NYU. He has published extensively about issues of

justice and responsibility in political philosophy

John Schwenkler is Associate Professor of Philosophy

at Florida State University. He has published widely

in the philosophy of mind and action, including on the

role of intention and practical reason in grounding

moral responsibility.

13a

Scott Shapiro is the Charles F. Southmayd Professor

of Law and Professor of Philosophy at Yale Law

School. He has published extensively on topics in

jurisprudence, international law, constitutional law,

and criminal law.

David Shoemaker is a Professor in the Department of

Philosophy & Murphy Institute of Political Economy

at Tulane University. He has published extensively

on issues in agency and responsibility and is the

general editor of Oxford Studies in Agency and

Responsibility.

Susanna Siegel is Edgar Pierce Professor of

Philosophy at Harvard University. She has published

extensively in the philosophy of mind and rationality.

Katrina L. Sifferd is Professor and Chair of

Philosophy at Elmhurst College. She has published

extensively about criminal and moral responsibility.

Alison Simmons is Samuel H. Wolcott Professor of

Philosophy; Interim Chair of the Department of

Philosophy; and Co-Director of Embedded Ethics at

Harvard University. She has published extensively

on early modern philosophy.

Walter Sinnott-Armstrong is Chauncey Stillman

Professor of Practical Ethics at Duke University. He

has published extensively about ethics, neuroscience,

moral psychology, philosophy of law, responsibility,

and mental illness.

14a

Angela M. Smith is Professor of Philosophy at

Washington and Lee University. She has published

extensively on moral responsibility, moral agency,

and blame.

David Sobel is Irwin and Marjorie Guttag Professor

of Ethics and Political Philosophy. He has written

extensively in ethics and co-edits the series Oxford

Studies in Political Philosophy.

Daniel Speak is Professor of Philosophy at Loyola

Marymount University. He has published a number

of articles on the nature and conditions of moral

responsibility.

Jason Stanley is the Jacob Urowsky Professor of

Philosophy at Yale University. He has published

extensively on topics in philosophy of language,

epistemology and political philosophy.

Larry Temkin is Distinguished Professor of

Philosophy at Rutgers University. He writes about

equality, justice, fairness, and the good.

Sergio Tenenbaum is Associate Professor of

Philosophy at the University of Toronto. He has

published extensively in moral psychology,

metaethics, and Kant’s ethics.

Nandi Theunissen is Associate Professor of

Philosophy at the University of Pittsburgh. Her

research focus is the value of humanity.

Valerie Tiberius is the Paul W. Frenzel Chair in

Liberal Arts and Chair of the Department of

15a

Philosophy at the University of Minnesota. She has

published many articles and books on well-being,

virtue, and moral psychology.

Neal Tognazzini is Associate Professor of

Philosophy at Western Washington University. He

has published on moral responsibility and the ethics

of blame.

Peter Vallentyne is Florence G. Kline Professor of

Philosophy at The University of Missouri. He has

published extensively in ethics, the theory of justice,

and agent-responsibility.

Manuel Vargas is Professor of Philosophy at the

University of California, San Diego. He has published

extensively on blame, moral responsibility, and free

will.

J. David Velleman is a Professor of Philosophy and

Bioethics at New York University. He has published

extensively on moral psychology and the foundations

of ethics.

Alec Walen is a Professor of Law and Philosophy at

Rutgers University. He has published extensively on

the nature of moral rights, criminal law, national

security law, and constitutional law.

Kate Padgett Walsh is Associate Professor of

Philosophy at Iowa State University. She has

published extensively about the ethics and morality

of obligations.

16a

Kendall Walton is Professor of Philosophy, Emeritus,

at the University of Michigan. He has published

extensively on aesthetics and the philosophy of art.

Gary Watson is Professor of Philosophy and Law,

Emeritus, at the University of Southern California.

He has published extensively on the topics of moral

and criminal responsibility, including the insanity

defense.

Ralph Wedgwood is Professor of Philosophy at the

University of Southern California. He has published

extensively about ethics and the theory of rationality.

Justin Weinberg is Associate Professor of Philosophy

at the University of South Carolina. He has published

works in political and moral philosophy.

Susan Wolf is Edna J. Koury Distinguished Professor

of Philosophy at the University of North Carolina at

Chapel Hill. She has published extensively on the

subjects of moral responsibility and blame.

Alex Worsnip is Assistant Professor of Philosophy at

the University of North Carolina at Chapel Hill. He is

the author of more than twenty published articles in

ethics and epistemology.

Benjamin S. Yost is Associate Professor and Chair,

Department of Philosophy, Providence College. He

has published a book and several articles on the

philosophy of capital punishment.

17a