Chapter 6: The impact of a ‘criminal gene’ argument on punishment theory
‘It wasn’t a who done it … it was a why done it’. These words formed the basis of Bradley Waldroup’s defence for the murder of Leslie Bradshaw and the attempted murder of Penny Waldroup. Having provided the jury with information relating to Low MAOA and childhood maltreatment, his lawyers summed up the jury’s decision by saying ‘they understood what was going on in him and understood why he did what he did’. In this case, discussed in the previous chapter, acceptance of the genetics evidence resulted in conviction of a lesser charge. This chapter will consider the effect on punishment theory of such acceptance. In 1968, H.L.A. Hart wrote that before we can ‘assess the extent to which the whole institution [of punishment] has been eroded by, or needs to be adapted to, new beliefs about the human mind’ we must first answer three fundamental questions: 1. What justifies our general practice of punishment? 2. To whom may punishment be applied? 3. How severely may we punish? This chapter will consider the answers to these questions by looking at first, the concept of criminal responsibility and second, the justifications for punishment. It will then consider whether genetics arguments require us to rethink the answers to these questions. The criminal law serves to maintain the peace and good order of the community, through policies of predictability, efficiency and fairness. It is generally deontological in nature, adopting the approach that certain types of actions, for example murder, are intrinsically wrong.
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