The Use of Brain Interventions in Offender Rehabilitation
Programmes: Should It Be Mandatory, Voluntary or
Prohibited?
Elizabeth Shaw
University of Aberdeen
School of Law
[email protected]
ABSTRACT
As our understanding of the brain increases, it seems likely that new biomedical
techniques for altering human behavior will be developed. One potential application
of such techniques is within the context of the rehabilitation of offenders. This
prospect may seem attractive, given the social and economic costs of crime and the
limited effectiveness of traditional punishments at reducing reoffending (see, e.g.
Ministry of Justice 2013). On the other hand, the fact that the brain is so intimately
connected with an individual’s identity, personality and capacity for making
autonomous choices gives rise to distinct concerns about the use of directly
interfering with brain functioning. This paper begins by indicating a number of
neuroenhancements that might be used in rehabilitation programmes in the future, if
sufficiently safe and effective. Secondly, it outlines and replies to some of the main
arguments for prohibiting neuroenhancement of offenders altogether. Thirdly, it
examines the opposite position – that neuroenhancement of offenders should be
mandatory. Fourthly, it argues that the case for mandatory interventions is ultimately
unpersuasive. Provided sufficiently safe and effective interventions are developed, the
best policy would be to provide such interventions on a voluntary, basis. The paper
ends by discussing some of the issues that need to be addressed to ensure that
offenders’ consent to neurointerventions is truly voluntary.
INTRODUCTION
Currently, pharmacological and surgical means of affecting brain function are
primarily used to treat mental and neurological disorders. However, as neuroscience
progresses we may increasingly be able to use brain interventions to alter behaviours
that are “medically unremarkable but socially undesirable” (Farah 2004). For
instance, brain interventions may be employed as part of offender rehabilitation
programmes and potentially offered as a condition of early release from prison. This
prospect may seem attractive, given the social and economic costs of crime and the
limited effectiveness of traditional punishments at reducing reoffending (see, e.g.
Ministry of Justice 2013). On the other hand, the fact that the brain is so intimately
connected with an individual’s identity, personality and capacity for making
autonomous choices gives rise to distinct concerns about directly interfering with
brain functioning.
The aim of using brain interventions in rehabilitation programmes is largely to benefit
society, by improving the moral conduct of offenders, rather than to further the best
medical interests of the recipient. (For that reason, this paper will employ the terms
‘neuroenhancement’ or ‘neurointervention’ rather than ‘treatment’.) This also raises
important issues about the appropriate relationship between the state and the
1 individual and the circumstances under which the individual’s interests could be
overridden by the needs of wider society.
This paper will begin by indicating a number of neuroenhancements that might be
used in rehabilitation programmes in the future, if sufficiently safe and effective.
Secondly, it will outline and reply to some of the main arguments for prohibiting
neuroenhancement of offenders altogether. Thirdly, it will examine the opposite
position – that neuroenhancement of offenders should be mandatory. Fourthly, it will
argue that the case for mandatory interventions is ultimately unpersuasive. Provided
sufficiently safe and effective interventions are developed, the best policy would be to
provide such interventions on a voluntary basis. This paper will end by discussing
some of the issues that need to be addressed to ensure that offenders’ consent to
neurointerventions is truly voluntary.
EXAMPLES OF POTENTIAL NEUROENHANCEMENTS
Increasing Empathy
There is some evidence to suggest that the ability to empathize is key to
understanding moral norms (Blair et al. 2005). For example, individuals with
markedly reduced levels of empathy have exhibited difficulties in distinguishing
conventional rules (such as rules of etiquette) from moral rules and in ranking wrongs
in order of seriousness. Philosophers differ as to whether empathy is essential for
moral understanding. However, even those who believe that it is not essential, often
maintain that it is indirectly helpful in moral development. If techniques were
produced which increased empathy in individuals who appear to be deficient in it,
then this might play a useful role in reforming offenders.
Decreasing violent urges
Certain offenders may experience repetitive violent fantasies and powerful surges of
anger which they find difficult to control. These factors can impair offenders’ ability
to think clearly about how they should act and may distort their moral judgments.
Research is beginning to uncover certain neurological factors that seem to have an
impact on individuals’ dispositions to anger and violence. There is some evidence that
selective serotonin reuptake inhibitors (SSRI’s) may reduce aggression (Ferari et al.
2005; Douglas 2008; Crockett et al. 2010). It may become possible in the medium
term future to develop techniques which can reduce the strength of offenders’ volatile
impulses or which increase their control over these impulses.
Anti-libidinal medication
Drugs have already been developed to help reduce deviant sexual urges and thoughts.
This can create an opportunity for offenders to concentrate on the reasons why they
should change their behavior and the steps they need to take, without being distracted
by their impulses. These medications are already being used to some extent within the
criminal justice system (Harrison & Rainey 2013).
Decreasing Racist Sentiments
Certain individuals experience a strong negative emotional reaction to members of
different races. Such emotional reactions may stem from early childhood experiences,
e.g. parents who taught them to fear members of a different race. Such deeply-rooted
2 emotional reactions may help to fuel racially motivated crimes and may interfere with
the racist’s ability to see why racism is wrong. Some research has been undertaken
into the neural basis for racial stereotyping (Hart et al. 2000; Phelps et al. 2000;
Cunningham et al. 2004). Potentially this might lead to interventions that could
attenuate such emotional responses (see e.g. Terbeck et al. 2012 on the use of
propranolol in this context). Harris has criticized this proposal on the basis that racism
is likely to involve a complex network of beliefs and not merely emotional reactions
(Harris 2011). Although this is almost certainly true, it does not demonstrate that
ingrained emotional reactions do not contribute to the tendency to hold stubbornly
onto ill-founded beliefs in the face of the evidence. Attenuating such emotional
responses might help the offender to assess the issues dispassionately and realize that
his racist views are ill-founded (see also Douglas 2013).
Delaying gratification
Difficulties with delaying gratification may lie behind some individuals’ tendency to
break the law. Neuroenhancements could potentially help to rehabilitate criminals
through enabling them to work out and implement strategies to delay gratification.
Increasing the ability to focus on relevant issues
Recent studies suggest that individuals who score highly on measures for psychopathy
may suffer from a kind of attention-deficit disorder which may help to explain their
characteristic anti-social behavior (Newman et al. 2010). It seems that when presented
with incentives for performing an action these individuals lose sight of the reasons
against performing the action. Neuroenhancements might enable these individuals to
focus on all the relevant considerations (and in particular the reasons against breaking
the law).
SHOULD NEUROENHANCEMENT OF OFFENDERS BE PROHIBITED
ALTOGETHER?
This section will consider some concerns people may have about the
neuroenhancement of offenders. It will argue that these concerns do not justify
prohibiting such interventions, provided that offenders consent to them and that they
are sufficiently safe and effective.
Neurointerventions Could Prevent Morally Desirable Behaviour
In a recent article, John Harris argues that neurointerventions designed to diminish
aggression may not be morally desirable (Harris 2011). He cites an example of an
individual who attacked a terrorist who was about to detonate a bomb, thereby
rescuing a plane full of people. According to Harris, if the rescuer had been given
SSRI’s to reduce his aggression he might not have managed to save the plane.
Harris does highlight a genuine concern – moral understanding and morallymotivated behavior are complex phenomena. Even the well-intentioned use of
biomedical interventions risks causing undesirable consequences. However, when
assessing whether offenders should receive such interventions, it is important to take
into account the likelihood of the relevant scenarios occurring. In the case of many
violent offenders, the risk that the intervention will prevent them from heroically
rescuing a crowd of innocent people may seem relatively small compared with the
risk that without the intervention they will reoffend.
3 Neurointerventions Threaten Free Will/Autonomy
Harris (2011) has also argued that neurointerventions could deprive the offender of
the ability to choose to do wrong – an ability that he claims is central to free will and
moral agency.
It should be noted that this objection could only apply to neurointerventions that make
it impossible to give in to temptation. However, few interventions would have that
effect. Interventions that reduced the strength of some of the offender’s antisocial
urges, increased the strength of competing desires to obey the law, or otherwise
strengthened his capacity for self-control would not fall foul of Harris’s objection.
Furthermore, it is doubtful that the ability to commit certain immoral acts is central to
one’s status as a moral agent. For instance, someone with a proper respect for the
rights of women and children and with a very vivid appreciation of the horror of
sexual abuse from the victim’s perspective may be psychologically incapable of
committing rape or acts of paedophilia. This inability would not undermine such a
person’s status as a moral agent.
If the offender’s inability to commit certain acts is the result of his autonomous choice
to receive neurointerventions (in the knowledge they would have that effect) then his
inability should not necessarily be seen as an interference with his autonomy. His
behaviour post-intervention can be considered autonomous since it can be ‘traced’ to
his earlier autonomous decision (cf. Timpe 2011). Some offenders actively seek
neurointerventions. It seems more respectful of their autonomy to offer them this
option than to deny them the choice, especially in those cases where offenders have
consistently requested neurointerventions over a period of time and their desire is
based on full information and coherent reasons (see e.g. McMillan 2013).
Nevertheless, certain interventions that have globally undermining effects on
autonomy may be genuinely problematic. J.S. Mill, for instance, argued that it is
impermissible to sell oneself into slavery. By analogy, the individual might lack the
authority to undergo neurointerventions that prevented re-offending by depriving him
of the ability to make any further rational choices (Cf. Bomann-Larsen 2011,
McMillan 2013). Even if successful, this argument would only rule out the most
extreme types of intervention.
Resisting Temptation Without Biomedical Interventions Is Intrinsically Valuable
Some writers have argued that neurointerventions could make it ‘too easy’ to resist
temptation, even if they did not eliminate the possibility of wrongdoing (Olsen 2006;
Sorensen 2011). One rationale for this position is based on the value of effort itself.
The attempt to address one’s darker urges by reflecting on their source (e.g. in one’s
childhood) rather than opting for drug treatment might also lead to valuable selfknowledge.
Even granting that effort and self-knowledge are intrinsically valuable, that does not
mean that every activity should be effortful or must generate self-knowledge. These
goods are only two amongst many. Given that the offender’s behaviour can cause
himself and others great harm, then surely the value of harm prevention must be given
4 considerable weight when deciding whether interventions to address this behaviour
are permissible. Furthermore, even if one is primarily concerned with effort and selfdiscovery, denying an offender neurointerventions could interfere with these values. If
the offender is constantly wrestling with violent or sexually abusive urges, then he
may lack the time or energy to engage in other activities (e.g. charity work, the
development of a talent, or relationships) that may require moral effort and may lead
to self knowledge (Levy).
Neurointerventions Could Allow Offenders To Escape their Just Deserts
Some retributivists might oppose offering neurointerventions as a condition of early
release from prison on the basis that sentences should be based solely on the
offenders’ just deserts. Neurointerventions may render an offender non-dangerous,
but this, it might be claimed, is no reason to release him if he has not yet paid the
appropriate penalty for his immoral conduct.
There is not space within this article to defend a particular justification of punishment.
However, it should be noted that many theorists believe that a legitimate function of
the criminal justice system is to protect the public and to rehabilitate offenders.
Certainly, in practice, most criminal justice systems give some weight to such goals,
and are not solely concerned with retribution. Even on certain retributive views, there
might be an argument for reducing an offender’s sentence if he volunteers to undergo
a neurointervention. For example, the offender’s request of a neurointervention might
be seen as indicating his recognition of the unacceptability of his conduct (and as an
attempt to prevent it recurring). This might merit a reduced sentence for similar
reasons that an early guilty plea, or expressions of remorse might be mitigating
factors. On a communicative retributive view (e.g. Duff 2001) – according to which
the criminal justice system should attempt to engage with dialogue with offenders and
to bring them to repent their wrongful conduct and reform - neurointerventions might
be seen as playing a complementary role alongside traditional punishments (see Shaw
2011). Certain neurointerventions might play this role if they could enable offenders
to engage more effectively in dialogue and to empathise with their victims.
ARGUMENTS FOR MANDATORY NEUROENHANCEMENT OF
OFFENDERS
Most theorists who have written on this topic assume that the use of
neurointerventions in rehabilitation programmes could only be permissible if it were
voluntary, without giving the possibility of mandatory interventions much attention.
However, some jurisdictions currently subject offenders to compulsory biomedical
interventions that have neurological effects. For instance, in certain American states,
repeat sex offenders can be given mandatory chemical castration or can be forced to
choose between surgical or chemical castration, both of which (as noted above) cause
significant physiological and psychological changes including reducing sexual
thoughts and desires (Harrison & Rainey 2013). The case in favour of involuntary
neuroenhancement of offenders therefore merits further consideration. This section
will attempt to put that case at its strongest. The next section will present the
arguments against involuntary neurointerventions – arguments that, on balance, seem
more persuasive.
Neuroenhancements may be more humane that traditional punishment
5 Most theorists believe that the state is entitled to subject offenders to punishment
without requiring the offender’s actual, explicit consent (cf. Ryberg & Petersen 2013).
Why should rehabilitation programmes be treated differently? Theorists who oppose
mandatory neuroenhancement are often motivated by concern for the offender’s
interests. However, it is possible to imagine that types of neurointervention may be
developed that would cause the offender less suffering and deprivation of liberty than
traditional punishment. Prisons are dangerous and depressing places that can leave
offenders with permanent psychological and physical injuries. If safe and effective
neuroenhancements were developed that allowed criminals to be quickly rehabilitated
and returned to their communities, then it would seem more humane to compel
offenders to undergo these interventions than to spend years in prison.
A Rational Offender Would Consent to Neuroenhancement
Some theorists justify punishment on the basis that, hypothetically, the offender
would consent to it, if he were rational. For example, Benjamin Vilhauer (2009) has
argued that society’s treatment of offenders should be governed by rules that
everyone would consent to from behind John Rawls’s ‘veil of ignorance’ (Rawls
1999). The veil of ignorance is a thought experiment that involves imagining oneself
choosing the rules of society in accordance with rational self interest, but without
knowing what social position one will be allotted, including (as Vilhauer insists)
whether one will be a victim or an offender. Decision-makers behind the veil of
ignorance must therefore put themselves in the shoes of everyone affected by a social
policy. This thought experiment is meant to exclude personal biases and ensure that
the interests of all members of society are given equal weight. If certain
neuroenhancements turn out to be safer and more effective than traditional
punishment, then compulsory neuroenhancement might be in the interests of victims
and perpetrators alike. If so, then the offender himself (provided he were wholly
rational and imagined himself to be behind the veil of ignorance) would agree that
neuroenhancement should be mandatory.
Offenders Forfeit the Right to Refuse Neuroenhancement
Alternatively, it might be argued that we should not be too concerned about protecting
the interests of offenders. Various theorists claim that offenders, by committing a
criminal act, forfeit their right not to be punished (e.g. Wellman 2012). It might be
further argued that offenders also forfeit their right to choose whether or not to
receive neuroenhancements that would address their offending behaviour.
Potential Victims Are Entitled to Effective Protection
Julian Savulescu and Ingmar Persson (2008) have argued that if safe and effective
biomedical moral enhancements were developed then they should be compulsory for
everyone. They believe this would reduce the chance that humanity would abuse
powerful destructive technologies (e.g. nuclear materials and instruments of
bioterrorism) – technologies that a rapidly increasing number of people will have
access to in the future. Vojin Rakic (2013) opposes compulsory enhancement of the
whole population, but suggests that it might be appropriate for certain repeat
offenders, such as child rapists, whose release from prison would be dangerous. One
way of specifically addressing Savulescu’s and Persson’s concerns might be the
mandatory neuroenhancement of those who have already breached antiterrorism laws.
The Rights of Offenders’ Families
6 A long prison sentence may separate offenders from dependent relatives, thus
depriving children, partners and elderly parents of emotional and financial support. If
safe and effective neurointerventions were developed, allowing offenders to be
quickly rehabilitated, then offenders could fulfil their familial obligations.
An Economic Argument
Prison is phenomenally expensive. It costs £40,000 to keep a single in-mate in prison
in the UK for only one year (Adebowale 2010). (This is more expensive than
educating a boy at Eton College for the same period.) For many offenders, prison is
inadequate deterrent. According to recent Ministry of Justice Statistics for England
and Wales, 11,000 offenders, who had each been jailed at least 11 times in the past,
together were responsible for 50,000 offences within a single year (Ministry of Justice
2013). If effective neurointerventions were developed, then their mandatory use in
offender populations could generate massive savings. Such interventions could also
benefit the economy by allowing offenders to re-enter the workforce. It might be
thought that economic reasons are insufficiently weighty to justify compulsory
neurointerventions. However, it should be remembered that our society is currently
prepared to impose great burdens on individuals for economic reasons, e.g.
withdrawing funding for potentially life-saving treatments.
ARGUMENTS AGAINST THE MANDATORY NEUROENHANCEMENT OF
OFFENDERS
The Power to Impose Mandatory Neurointerventions Is Too Easily Abused
There is already a vast inequality of power between the state and individual citizens.
The state has the ability to use coercive force to deprive offenders of their property,
cut them off from their friends, families and communities and to severely constrain
their movements. Rather than being an argument for increasing the state’s power still
further, this should lead us to question whether it is justifiable to make the gap
between the state and individual citizens even wider. If the authorities were able to
impose mandatory neuroenhancement this would give them a significant level of
control over the individual’s inner life. This obviously has potential for abuse, e.g. it
could be used to suppress legitimate dissenters. By definition, it is wholly
unacceptable to impose any form of coercive sanction on such dissenters. However, at
least traditional methods of punishment do not interfere with these citizens’ freedom
of conscience to the same degree as mandatory neurointerventions and dissenters may
use their time in prison as a form of protest. During a substantial part of the 20th
century several states in the U.S. had many discriminatory criminal laws, including a
ban on interracial marriage (that particular law was not overturned until Loving v
Virginia 388 US 1 (1967)). This great injustice would have been exacerbated if the
authorities been able to force individuals convicted under such laws to undergo
neurointerventions designed to decrease their attraction to members of a different
race. It is not unrealistic to think that future legislators may enact unjust laws.
(Indeed, even at present it is quite likely that we have certain criminal laws which
society will, in the future, recognise as unjust. Throughout history there have always
been certain norms in whose soundness people once had great confidence, but which
have been overturned as society progressed.) Legislators need not even be thoroughly
corrupt for such laws to be created – they may be well intentioned but misguided. If
society were already well accustomed to the authorities’ use of mandatory
neurointerventions to rehabilitate justly convicted offenders, it would be that much
7 easier for the authorities forcibly to impose such interventions on those convicted
under unjust laws. We need to set limits on the state’s power by ensuring that there is
some sphere of individual liberty into which the state may never intrude. Whatever
other liberties one may potentially ‘forfeit’, an individual should, at least, be able to
veto any biomedical interference with her own brain.
A Retributive Objection
The fact that state can force offenders to undergo traditional punishments does not
imply that it has the right to force offenders to undergo neurointerventions. On a
retributive view, the state’s right to sentence offenders to prison, community service
etc. stems from its right to punish. On Michael Moore’s (1997) influential retributive
theory, punishment is the intentional infliction of deserved suffering on moral
wrongdoers, on the basis that such suffering is intrinsically good. However, most
theorists agree that neurointerventions should not be viewed as punishment in the
retributive sense. Neurointerventions are methods of rehabilitation, intended to protect
society and/or to help offenders themselves to lead better lives. As Bomann-Larsen
(2011) points out, to view mandatory neurointerventions as a form of retributive
punishment would involve abandoning fundamental principles of justice such as the
principle that punishment must not be ‘cruel or unusual’. It would seem the height of
cruelty to impose neurointerventions because of the suffering they could produce (e.g.
the distress of having one’s mind manipulated against one’s will and any side-effects
these interventions might have).
As noted above, the most plausible reasons for employing neurointerventions are for
the protection of others and/or to benefit the offender himself. There is a strong
argument that the state’s power to intervene for such reasons must be constrained by
the need to respect the individual’s status as an autonomous agent. If there were no
such constraint, then the state could sacrifice individuals whenever this promoted the
general welfare, or whenever the state judged this to be in the individual’s best
interests. Forcing an offender to undergo neurointerventions, without his consent,
would disregard his rational capacities and would arguably involve treating him as an
object, as a being without human dignity (See ‘Mandatory Neurointerventions
Objectify Offenders’, below). In contrast, a retributivist might argue that the state’s
right to force offenders to undergo traditional punishment already respects their
autonomy, since it is intended as the deserved penalty for an autonomous action (not
as a means of pre-empting future autonomous decisions to reoffend) and thus does not
require explicit consent.
A Non-Retributive Objection
This section will now sketch an objection to mandatory neurointerventions that is
very different from the retributive objection discussed earlier. The alternative line of
argument that will now be developed should appeal to some of those who reject the
idea that the suffering of the guilty is intrinsically good. Derk Pereboom (2001), for
instance, believes that offenders’ interests and preferences are of equal moral weight
to anyone else’s. Yet, he obviously acknowledges that serial rapists and murderers
cannot simply be allowed to roam free. He does not claim that society has a general,
unlimited right to sacrifice individuals for the overall welfare. Rather, he argues that
society does have a right (similar to the right of self-defence) to protect itself from
individuals who pose a serious threat to others. This right is subject to various
constraints including a necessity constraint – the state should set back dangerous
8 individuals’ interests no more than is necessary to prevent them from harming others.
He draws an analogy with quarantine. If society has the right to protect itself against
carriers of dangerous diseases by subjecting them to quarantine, then it has the right to
protect itself from dangerous offenders by incapacitating them. He argues that (like
quarantine) the conditions of an offender’s incapacitation should be humane and
should still give weight to the offender’s preferences. Without effective
neurointerventions, constraining offenders’ movements would often be the only
humane and effective way of protecting society. In such circumstances, given
society’s right to protect itself, mandatory detention would be legitimate. However,
Pereboom’s view seems to imply that if safe and effective neurointerventions were
developed, then society would lose the right simply to impose mandatory detention.
Nor would it gain the right to impose mandatory neuroenhancement. Rather, it would
show most respect for offenders’ equal moral status to give them the choice between
detention until they become non-dangerous, and, alternatively, neuroenhancement.
Thus, whether one takes a retributive position (like Moore’s) or a radically nonretributive position (like Pereboom’s) there are strong reasons, from within these
perspectives, to oppose mandatory neuroenhancement of offenders.
Mandatory Neurointerventions Objectify Offenders
There are good reasons to resist any tendency to objectify offenders (reasons that are
available to theorists regardless of whether they view offenders’ moral status from a
retributive or a non-retributive standpoint). Offenders are already among the most
despised members of society. People’s desire to see offenders suffer often exceeds
anything that could be morally justified, even on the most severe retributive view.
There is a danger that feelings of disgust for criminals could lead society to lose sight
of their humanity. It is therefore particularly important to have clear restrictions on
the ways in which the state can treat them. The term ‘objectification’ can be used in
different ways. The conception of objectification that this paper adopts is influenced
by sociological discussions of the ways in which disfavoured groups within society
have historically been objectified or treated as ‘subhuman’ (see e.g., Reicher, 2006).
This kind of objectification typically involves creating a division between ‘them’ and
‘us’ that excludes the objectified group (cf. Shaw 2012). If offenders, unlike the rest
of society, are subject to mandatory neurointerventions then they are forced to
relinquish something that many people regard as fundamental to their own status as
persons – their control over their mental and bodily integrity. This would radically set
criminals apart from the rest of society – leading us to categorise them as ‘the other’ –
as beings who lack basic rights and are largely outside the sphere of our moral
concern. True, some of our basic moral rights, e.g. freedom of movement, are
qualified. The right to freedom of movement does not provide immunity from state
interference after one has committed a serious crime. However, there is a categorical
difference between interfering with an offender’s freedom of movement and forcibly
interfering with the offender’s mental and bodily integrity. Our right to mental and
bodily integrity is more fundamental (and essential to human dignity) and merits even
greater protection than our right to freedom of movement. Offenders cannot simply be
said to ‘forfeit’ their right to mental and bodily integrity without giving up something
that is central to their status as persons.
9 THE VOLUNTARY USE OF NEUROENHANCEMENT IN
REHABILITATION PROGRAMMES
Informed Consent
It is important that offenders are given full information about the potential side effects
and efficacy of neurointerventions. However, as Henry Greely (2008) points out,
gathering such information may be far from straightforward. It is difficult to draw
conclusions from animal models about the effects of brain interventions, since the
human brain is very different even from the brains of closely related species, e.g.
chimpanzees, let alone the brains of lab rats. Experiments on primates are also
extremely ethically controversial. Usually, when a medical intervention is developed
in order to treat a disease, information about its effects can be gathered from trials on
volunteers who participate in the hope of benefitting from the treatment. However,
since neuroenhancements are given to address antisocial behaviour (i.e. largely for the
benefit of people other than the recipient) volunteers may be much harder to find.
However, if an intervention for controlling offending behaviour also has another
clinical use then a certain amount of data on side effects may already exist. For
instance, testicular pulpectomy has been employed in certain countries (e.g. Germany)
to help reduce sexual reoffending (see McMillan 2013). Some information about the
side effects of this procedure is available since it is also an established treatment for
prostate cancer. As noted above, SSRIs and propranolol may reduce violent and racist
tendencies respectively. SSRIs are also used as anti-depressants and Propranolol is a
treatment for hypertension and their use in this context has generated information
about their side effects.
It might be thought that, in order to make a truly informed choice, the offender should
also be provided with information about the risks of refusing treatment (e.g. statistical
information about the mental health risks of remaining for a potentially longer period
in prison). However, some might worry that if officials emphasised the risks of prison
when offering neurointerventions, the state might be perceived as exploiting the fear
of prison to ‘coerce’ offenders into accepting neurointerventions (cf. McMillan 2013).
Voluntary Consent
If an offender is offered neuroenhancement as a condition of early release from
prison, then he is faced with a choice between unappealing alternatives. However, this
does not seem to preclude the possibility of giving voluntary consent to
neurointerventions, provided that the offender is not dominated by a literally
irresistible fear of spending a longer time in prison (Bomann-Larsen 2011). After all,
patients are often considered capable of freely consenting, despite being faced with
very hard choices e.g. a choice between undergoing risky and disfiguring surgery to
remove diseased tissue and, alternatively, refusing treatment and dying from their
disease.
Threats and Inappropriate Offers
In order for consent to be normatively valid, more is required than minimal
voluntariness (i.e. the absence of irresistible impulses) and adequate information. A
valid consent to an offer of a biomedical intervention might plausibly be thought to
have the following moral and legal effects: if such consent is given, then the person
making the offer (‘the offerer’) has not wronged the person receiving the intervention
10 (‘the recipient’) by providing that intervention. If the offerer were accused of having
wronged the recipient, then the former could rely on the latter’s consent as a defence.
When thinking about whether valid consent exists, it is common to focus on the
freedom of the person giving consent i.e. the subjective sense of pressure she is
experiencing and how restricted her alternatives are. However, if consent is to have
the moral and legal effects just described, then it also makes sense to look at the
conduct of the person seeking consent. It is well accepted that a person’s ‘consent’
can be invalid if it were obtained by (non-trivial) threats to violate that person’s
rights. This is not because a person who is subject to such threats necessarily faces a
harder choice or feels more pressure than the dying patient in the example given
above. The victim’s consent is invalidated because of the wrongful conduct of the
party threatening to violate the victim’s rights. The issuing of a threat of this kind
seriously wrongs the victim and therefore, the activity that is ‘consented’ to, as a
result of that threat, also wrongs the victim.
If an offender were offered a neurointervention as a condition of early release from
prison, it would be a mistake to construe his original prison sentence as a ‘threat’ to
violate the offender’s rights. If this original sentence is a just response to his crime,
then by definition, it does not violate his rights (Bomann-Larsen 2011). The offer of a
neurointervention is a genuine offer. However, Bomann-Larsen argues that certain
offers of medical interventions can also seriously wrong the other party and thus
invalidate consent to such interventions. She cites Feinberg’s (1986) example of a
prison governor who offers to commute the sentence of a prisoner on death row if the
prisoner participates in a medical experiment. The governor is abusing his position –
he has no right to propose that the prisoner participate in such an experiment. He is
taking unfair advantage of the prisoner’s predicament. His offer wrongs the prisoner
and arguably invalidates the prisoner’s consent to the experiment. Note again that the
key point is not the hard choice that the offender faces. In the example just given, the
offender’s alternatives are both very unappealing – death on the one hand and a
potentially risky experiment on the other. However, as Bomann-Larsen points out, the
governor’s offer would still be wrongful if he presented the prisoner with an easier
choice, e.g. ‘I will spare your life if you bring me tea every morning for 10 years’.
This offer is still wrongful, since the governor, qua governor, is not entitled to
propose that the prisoner becomes his servant.
Similarly, Bomann-Larsen persuasively argues that the state can wrong an offender
by offering him neurointerventions that are aimed at altering personality traits or
private behaviour that the state has no right to interfere with. The offender may be an
untrustworthy friend, an unfaithful spouse and an uncooperative colleague. But such
traits or behaviour are none of the state’s business. In contrast, the state is entitled to
seek to fix the problematic behaviour for which the offender was convicted. BomannLarsen argues that, ideally, any intervention offered to offenders should be strictly
necessary to address that behaviour.
Ryberg and Petersen (2013) raise the following objection to this necessity constraint.
They point out that the state has a general duty to protect the public from all crimes,
not just the one for which the offender was convicted. If, after the offender is
convicted of one crime, a psychological evaluation reveals that he has a disposition to
commit another type of crime then they suggest that the state may have the right to
offer him a neurointervention to address this latter disposition. In response, it is
11 submitted that the state’s duty to tackle criminal behaviour must be subject to various
procedural constraints. For instance, the state cannot subject an individual to
punishment for a crime unless it is proved beyond reasonable doubt that he committed
it. One justification for the beyond reasonable doubt standard is based on the kind of
trust and respect the state should show to citizens as members of the moral
community (Duff 2001). Rather than the default position being an attitude of
suspicion, the state’s relationship with citizens should begin with a strong
presumption that citizens are morally well motivated (or at least that they do not
violate the central moral norms underlying the criminal law). It should take strong
evidence to rebut this presumption. Establishing beyond reasonable doubt that the
offender has already committed a criminal act provides fairly strong evidence that the
offender has a disposition to commit acts of this kind. Thus it does not show
disrespect, or distrust to offer him interventions to address this disposition. However,
it would be inappropriate to assume that the offender were liable to commit a range of
other, unrelated crimes on the basis a psychological evaluation, rather than past
behaviour. The offender’s conviction for a particular crime is not meant to be the
starting point for a general investigation into his character and dispositions to commit
unrelated crimes. That would also present too great an intrusion into individual
liberty.
CONCLUSION
This paper has critically discussed some of the main arguments for prohibiting the use
of neurointerventions in offender rehabilitation programmes and for the opposite
position of making such interventions mandatory. Both of these extreme positions are
ultimately unconvincing. If sufficiently safe and effective neurological techniques for
addressing criminal behaviour were developed, the best policy would be to offer them
on a voluntary basis. In order for consent to such interventions to be genuine and
valid, certain conditions must be met. Consent must, of course, be informed and
voluntary. In addition, it is important to remember that the concept of ‘valid consent’
(in a robust, morally significant sense) is closely bound up with the idea of respect. If
the state is to cite the offender’s consent as part of the moral justification for
intervening in his brain, then it must ensure that when obtaining that consent it did not
act in an exploitative manner or overstep its authority, but instead that it respected the
offender’s status as a moral agent.
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Cases
Loving v Virginia 388 US 1 (1967)
KEY TERMS
Rehabilitation; Offenders; Crime; Autonomy; Consent; neuroenhancement
CROSS REFERENCES
Moral Enhancement
15