Genes and Justice

Last night I went along to an interesting discussion at the Philo Agora philosophy discussion group in Glebe. The topic was the impact of research into behavioral genetics on sentencing in the criminal justice system.
Here’s the problem: if genetics can demonstrate a link between a certain genetic inheritance and particular kinds of criminal behavior, does this reduce a person’s moral responsibility for their actions? If so, should this diminished responsibility be taken into account when we sentence people for committing a crime?
On the one hand it seems fairly easy to produce examples where we appear to take moral responsibility into account when sentencing, i.e., children and the mentally ill. In both these cases we would be fairly happy to agree that lack of moral responsibility is tied to biological factors beyond the individual’s control.
What about this case (an actual study carried out in NZ):
People who experience abuse in childhood have a greater likelihood of becoming involved in criminal behavior as an adult. Of those who experience abuse as a child, those who have a genetic factor which produces a higher activity of a certain neurotransmitter in their brains were less likely to be involved in criminal behavior than those who had a low activity gene. It seems like a this genetic variant might give people a ‘resistance’ to certain effects of abuse.
Now before you start jumping up and down, I agree that, from what I understand of the study, its methodology seems about as trustworthy as a Nigerian offering free money.
However, if the link could be plausibly established, I’m not sure that we should have a problem with the idea of mitigating the sentence of someone from an abusive background with a low activity gene. That is, if we are happy drawing an analogy with a child or mentally ill offender…

Except that a pesky person might come along and point out that, surely all our actions could be plausibly traced back to some combination of biology and environment. If our concept of moral responsibility rests upon a notion of the undetermined willing subject, then none of us are morally responsible. At least, not in the sense that we deserve our punishment, i.e., that justice is retributive.

I think you are left with 3 possible responses:
1. Justice is not retributive – it is consequentialist. We ‘punish’ offenders in order to achieve ‘good’ outcomes for society. This is a terrifying conception of justice. The retribuitive conception of justice is precisely what limits the punishment to the crime. A consequentialist penal system might lock you away forever as punishment for jay-walking because it determines that your attitudes, actions, or biology are a threat to the greater good.

2. Human will is externally undetermined, studies that appear to suggest otherwise are deeply flawed. This requires some form of dualism between the sphere in which my will operates and ‘the observable world’ – ultimately, Kant’s solution. If the kind of indeterminacy necessary for this freedom existed in the observable world it would seem to render all kinds of knowledge impossible. We constantly rely upon the predictability of observable phenomena including each others’ behavior.

3. Human moral responsibility is concerned with the Will, but moral responsibility does not require that the Will be undetermined. What are we to do then, with our intuition that juveniles and the mentally ill are less morally responsible for their actions?

Of course, the answer is obvious to all right-thinking individuals…
The point is that this debate is now firmly in theological territory. The divorce of theology and public life renders BOTH theology and our public intellectual discourse absurd.