Adjudicating Adjudication and the Problem of Epistemic Caution

Abstract

Does evidence of a biomechanical cause of psychopathy reduce sentencing to the same extent for male and female judges? A recent experiment found that when psychiatric evidence of criminal psychopathy was supplemented by evidence of an underlying biomechanism, judges assigned shorter average sentences and were more likely to cite at least one mitigating factor of psychopathy in accompanying written opinions. But it remains unclear whether the absence of neurobiological evidence justifies the retention of longer sentences, and unclear whether the opinions of this judicial sample are widely held, or reflect the unique demographics of the U.S. state trial judiciary. Specifically, previous research has found systematic differences in the credence that men and women give to different kinds of scientific explanations, and this research suggests that the discovered scientism among U.S. state trial judges may be moderated by the gender ratio of that population, which is skewed heavily toward men. Here, a reanalysis of the data in which this effect was first revealed found no effect of biomechanism on female judges' sentencing or opinions. These results suggest that it is worth further investigating whether the overrepresentation of men on the bench may lead to a hard-scientific bias in U.S. state courts. Additionally, the findings highlight the need to develop a scientific understanding of the social forces that give rise to these gender differences in the first place, and reveal problems with a concept that I develop and critique called the principle of epistemic caution.

Keywords:

• behavioral genetics
• forensic neuroscience
• gender differences
• legal psychology
• moral psychology
• neuroethics
• neuropsychiatry
• psychopathology

ACKNOWLEDGMENTS

I am extraordinarily grateful to Lisa Aspinwall, Teneille Brown, and James Tabery for reanalyzing and sharing their data, and for their comments on and continued support of this project. They wish to express no public opinion at this time regarding my interpretation of their data. I am also grateful to Jennifer Mangels, Jesse Prinz, Hagop Sarkissian, and Ron Whiteman for their comments on previous drafts. Finally, I thank two anonymous referees and the editor, John Banja, for their extraordinarily helpful and detailed critiques of earlier versions of the article. ▪

Notes

1. This reanalysis was conducted by the study's original investigators at my request, to test the hypotheses discussed here; to protect the anonymity of the judges, no raw gender data have been shared with me.

2. This is not necessarily a decisive reason to admit dubious (neuro)scientific testimony but it is, strictly speaking, a reason nonetheless.