In this paper, I first review some of the recent empirical work on the biasing effect that moral considerations have on folk ascriptions of intentional action. Then, I use Mark Alicke's affective model of blame attribution to explain this biasing effect. Finally, I discuss the relevance of this research—both philosophical and psychological—to the problem of the partiality of jury deliberation. After all, if the immorality of an action does affect folk ascriptions of intentionality, and all serious criminal offenses—e.g., murder and rape—are immoral in addition to being illegal, then a juror's ability to determine the relevant mens rea (i.e., guilty mind) of a defendant in an unbiased way may be seriously undermined.
I would like to thank Alfred Mele, Joshua Knobe, Joel Anderson, George Rainbolt, Virginia Tice, and two anonymous referees for their helpful comments and suggestions on earlier drafts of this paper.
1. While the main focus in this paper is on the potential partiality of jury deliberations, the problems I discuss concerning the biased application of mens rea concepts would presumably arise in trials that only involve judges—although more studies would need to be run that tested whether judges were immune to the sort of biases at issue in a way that jurors are not. Given the data I discuss in Section 3, I doubt that judges are any better at avoiding these biases than the folk—but it is admittedly a hunch on my part.
2. My own view on this matter has evolved. Whereas I originally agreed with Knobe that moral considerations both do and should influence our ascriptions of intentional action, I now think the normative claim that the former should affect the latter is incorrect for the reasons I discuss in Section 4.
3. For the purposes of this paper, whenever I discuss intentionality, I am only talking about the question of whether an agent's actions are intentional. This sort of intentionality is to be distinguished from discussions of intentionality that one finds in the literature on the philosophy of mind. When philosophers talk about intentionality in this latter context, they are usually interested in the question of how some of our mental states can be about things in the world.
4. These three structural links are called ‘volitional behavioral control’, ‘volitional outcome control’, and ‘causal control’, respectively (Alicke Citation2000, 560).
5. While the Model Penal Code does not define what it means for an action to be done intentionally, it gives the following guidelines for deciding whether an action is done purposely or knowingly (Section 2.02): (a) A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. (b) A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. In cases involving the types of serious crimes we have been discussing, the requisite mens rea is usually either purposely or knowingly. For a more thorough discussion of mens rea, see Duff Citation(1990), Hart Citation(1968), and Kenny Citation(1968).
6. For a complete version of Model Jury Instructions on Homicide go to: www.sociallaw.com.
7. That such biasing occurs has been shown in other psychological experiments as well. For example, Fischoff's research on ‘hindsight bias’ suggests that the actual outcome of an action may alter an observer's judgment concerning how foreseeable the risks were to the agent before the action was performed (Fischoff Citation1975). As a result of hindsight bias, events that have already occurred—which is the case in all criminal trials—are judged to have been more likely to occur than they would have been judged before their occurrence. In these studies, two groups of subjects were given the very same set of antecedent conditions leading up to an accident—the only difference being that some subjects were told that the accident in question had already taken place, whereas others were not. Interestingly, the subjects who were told that the accident actually occurred were much more likely to say that the agent could have foreseen the accident than those who were not told the accident occurred, even though all of the antecedent conditions were the same in both groups. These studies also suggested that in addition to causing observers to overestimate the degree to which decision makers foresaw the accidents before the accidents occurred, hindsight bias may cause observers to distort the level of uncertainty facing the decision maker. And in cases where juries are asked to determine whether the consequences of a defendant's actions were either foreseeable, foreseen, or intentionally brought about, the potential for hindsight bias is particularly problematic.
8. The conviction was later overturned due to the way the judge had defined ‘maliciously’ when giving the jury their instructions.
9. And while the possibility that jurors' verdicts are consistently being affected by blame-validation biasing is problematic in and of itself, it becomes even more troublesome when jurors are further affected by other arbitrary factors such as the race of the defendant or the victims. As Alicke says, ‘Racially prejudiced observers … who respond more negatively to a minority group member's harmful actions, require less evidence of intention, negligence, foresight, or causal influence than unbiased observers’ (Alicke Citation2000, 566). In addition to race, psychologists have also shown that other factors can produce these kinds of negative spontaneous reactions as well, such as the appearance, personality, and demographics of the observers, perpetrators, or victims. Of course, the idea that the race, appearance, or character of the defendant might prejudice the jury is neither novel nor surprising, but when considered in light of the other factors I have already examined that may bias jurors' ascriptions of intentional action and blame, it certainly deepens the fear that getting a fair trial by jury is neither as common nor as easy as we had previously hoped.
10. It is worth highlighting the fact that before the problem of juror partiality I have been discussing could arise in a criminal proceeding, the jurors would have already decided that the defendant is responsible for committing the prohibited act in question. So, for instance, in the Smith case no one questioned the fact that his actions ultimately led to the officer's death. The issue was whether he was guilty of homicide or some lesser offense such as manslaughter—an issue that can only be resolved by making judgments about Smith's mental states.