Edgar, Harold (2006). “Impulsivity, Responsibility, and the Criminal Law” in Parens, Eric, Chapman, Audrey R, and Press, Nancy (eds.) Wrestling with Behavioral Genetics. Baltimore: Johns Hopkins University Press, 176-98.
Edgar argues that behavioral genetic research will not have a significant impact on the criminal justice system because the idea that most people are responsible for their actions most of the time is central to law and will not change anytime soon. He makes the distinction between the purpose of the law and the process of deciding what criteria is justified for the relatively few people who are not responsible for their actions. He claims that the current work in genetics of impulsivity is unlikely to have an impact on the responsibility doctrine of because society’s impulse to collective self-protection may be stronger than that of collective compassion. He does add that if treatment of disorders that are argued to have a strong genetic causal component, then the system already has judiciary discretion built into the system. The point here is that the science would have to be strongly conclusive that treatment would work, i.e., criminal behavior will not be repeated. The difference between violent and nonviolent behavior is socially relevant and may not change regardless of what science discovers related to causation.
He then discuses the issue of free will as it relates to the justice system. Does a social moray disappear once it is known that a label, punishment, or stigma is morally undeserved? Psychology, genetics may yield as yet unknown understanding of the why but the criminal justice system will not abandon threats and disapproval associated with certain actions. He then discusses the case of Kansas v. Hendricks to point out that predisposition alone is not enough to convict but rather specific behaviors in the past. This will be important if we stick with ASPD and the MAOA link. It recognizes that past behavior may indicate future recidivism but it provided cautionary language in the definition of “mental abnormality”. The most interesting point he makes is that once a person is proved to have done some criminal act, that person is another category outside of those who do not commit criminal acts. He concludes this section with an appeal for public discourse on the subject, which will be complicated and difficult.
The strongest point Edgar makes concerning the stability of the criminal law doctrine is that some people who do not commit crimes have the same genetic endowment (or lack thereof) and similar environments as those who do point to choice rather than determinism. He also mentions that the law should actually be tougher on those who have a stronger impulse to violate, not the other way around. In order to have significant effect on legal doctrine, science would have to provide stronger evidence of exculpability than the literature currently provides. Most states only recognize a “mental” condition as insanity. His last point is that legal doctrine only changes with majority findings, which may be difficult to show in cases of ASPD, impulsivity, and chronic recidivism. I believe teasing apart the environmental component may be even more difficult here making the case for genetic determinism as a legal defense even more difficult.