Practical ethicists have become increasingly interested in the potential applications of neurointerventions—interventions that exert a direct biological effect on the brain. One application of these interventions that has particularly stimulated moral discussion is the potential use of these interventions to prevent recidivism amongst criminal offenders. To a limited extent, we are already on the path to using what can be described as neuro-interventions in this way. For instance, in certain jurisdictions drug-addicted offenders are required to take medications that are intended to attenuate their addictive desires. Furthermore, sex-offenders in certain jurisdictions may receive testosterone-lowering drugs (sometimes referred to as ‘chemical castration’) as a part of their criminal sentence, or as required by their conditions of parole.
On 13-14th April, a workshop (funded by the Wellcome Trust) focussing on the moral questions raised by the potential use of neuro-interventions to prevent criminal recidivism took place at Kellogg College in Oxford. I lack the space here to adequately explore the nuances of all of the talks in this workshop. Rather, in this post, I shall briefly explain some of the main themes and issues that were raised in the fruitful discussions that took place over the course of the workshop, and attempt to give readers at least a flavour of each of the talks given; I apologise in advance for the fact that I must necessarily gloss over a number of interesting details and arguments.
One of the central claims of modern medical ethics is that patients have a right to refuse medical treatment, and that to impose a non-consensual medical treatment on an individual would violate their autonomy. With this in mind, it might be claimed that neuro-interventions aimed at preventing recidivism amongst criminal offenders (henceforth, ‘neuro-correctives’) should only be carried out with the valid consent of the criminal offender.
However, one problem with this approach to the problem of neuro-correctives is that we already impose non-consensual constraints on criminal offenders that it would not be permissible to impose on non-offenders. Most obviously, for instance, we incarcerate criminal offenders for long periods of time, depriving them of their freedom of movement and association. Alternatively, the criminal justice system might impose financial sanctions, community service orders, or even require that a criminal offender undergo cognitive behavioural therapy. Presumably, part of the reason that we believe that it is permissible to impose these kinds of non-consensual penal sanctions is that criminal offenders have made themselves morally liable to these kinds of intervention by virtue of their criminal offence.
In view of this, a central question in this area is whether there are any significant moral differences between the imposition of the various sanctions that we already impose on criminal offenders without their consent, and the potential non-consensual use of neuro-correctives. Of course, an obvious descriptive difference between neuro-correctives and traditional criminal sanctions is that neuro-correctives would be physically invasive. However, Tom Douglas has argued that it is not clear that this difference itself carries any moral significance – it is not clear that the right to bodily integrity should be conceived as carrying greater weight than the rights to freedom of movement and association that non-consensual incarceration violates for instance.
In the workshop, a number of speakers attempted to elucidate the reasons why neuro-correctives are problematic in ways that traditional criminal sanctions are not. Christopher Bennett argued that the use of compulsory neuro-correctives would differ from traditional criminal sanctions in so far as they might violate the moral respect due to offenders as citizens. Bennett followed Ian Carter in suggesting that respect requires exercising a form of ‘epistemic abstinence’, in that respect requires abstaining from certain kinds of assessment of persons, such as an assessment of the extent to which a person is a moral agent. The use of neurocorrectives might violate the moral respect due to offenders in so far as they would incorporate a failure to observe this epistemic abstinence.
Alternatively, Jan Christoph Bublitz and Elizabeth Shaw both attempted to elucidate a potentially significant moral difference between traditional criminal sanctions and neuro-correctives by appealing to a putative right to mental integrity. The general thought here is that neuro-correctives violate the individual’s right to think their own thoughts and to have their own personality by influencing them through non-rational means. Shaw suggested that the way in which neuro-correctives would interfere with mental integrity via an interference with bodily integrity could also be understood to constitute a distinctive kind of (non-additive) wrong.
In one response to this appeal to mental integrity, Tom Douglas highlighted a number of seemingly permissible interventions that might be used in the criminal justice system that would influence criminal offenders via non-rational means. For instance, Douglas pointed out that it might be permissible to paint a prison’s walls in a certain shade of green if that would non-rationally nudge inmates away from violent behaviour. Here, Douglas employed a tactic that is commonly used by supporters of non-consensual neuro-correctives, which is to point to the similarities between these interventions and interventions that are (or could hypothetically) be used by the criminal justice system in a morally permissible manner. Interestingly, Emily McTernan and John McMillan reversed this trend in their talks by pointing out the similarities between non-consensual neuro-correctives and abhorrent historical practices such as the use of aversion therapies, eugenics and problematic practices in psychiatry. McMillan also highlighted a number of similarities and differences between objections raised against neuro-correctives, and objections raised against the fictional Ludovico Technique by the character of the chaplain in the novel A Clockwork Orange.
In a similar spirit to Douglas’ response to the mental integrity objection, Kaspar Lippert-Rasmussen denied that there is a moral asymmetry between interventions on a person’s mind and interventions on a person’s surroundings that indirectly affect neurological states, by arguing against what he called the self-ownership thesis, which holds that persons own their body and mind simply in virtue of being self-owning persons. Lippert-Rasmussen argued that one cannot consistently hold this thesis if one also accepts both the extended mind thesis, and the view that people do not own things that are external to their body simply in virtue of being self-owning persons (the negative world-ownership thesis).
An alternative response to the appeal to mental integrity objection that was raised in discussions following these papers is to question whether all sorts of neuro-intervention would really violate this right. Whilst it seems plausible to claim that interventions that directly implanted new beliefs and desires in this way might be problematic, what about interventions that serve to eliminate the influence of compulsive desires? These interventions might arguably be understood to enable the recipient to ‘be the person she wants to be’, and to take ownership over herself.
As the above discussion suggests, the ethics of non-consensual neuro-correctives draws on themes from medical ethics. However, as Jan Christoph Bublitz, Elizabeth Shaw and Jesper Ryberg highlighted in their talks, considerations of penal theory should also play a central role in our understanding of the use of these interventions. Even if the use of neurocorrectives might allow the criminal justice system to be more effective in facilitating rehabilitation, the use of such interventions may fail to achieve other objectives of criminal justice. For instance, those who endorse retributive theories of punishment might be concerned that neuro-correctives would offer criminal offenders an ‘easy way out’ of the hard treatment that proportionate punishment for serious crimes entails. Ryberg sought to respond to this type of objection by arguing that there is no reason to believe that rehabilitative treatment programmes could not be designed so that they would incorporate some sort of suffering or inconvenience, such that the programme would not violate proportionality constraints on punishment. However, as Shaw noted, the strength of this response depends largely on the extent to which the suffering that the treatment programmes might incorporate would inflict the right kind of suffering on offenders.
Various talks in the workshop indicated a number of interesting novel theoretical approaches to the topic of neuro-correctives that have not yet been explored. For instance, Matt Matravers outlined the possibility of approaching this topic from a contractarian perspective, whilst David Birks outlined a new theory of ‘paternalistic punishment’ (that is, paternalistic behavior that communicates censure for an offender’s wrongdoing) that might readily by applied to the context of neuro-correctives. Part of the sentiment of Birk’s approach was echoed by Matthew Clayton and Andres Moles, who argued that the use of neuro-correctives may be supported by the claim that individuals are disadvantaged by wrong-doing and that it is therefore beneficial for them to be helped not to do wrong. Clayton and Moles also raised important objections to the invocation of personal autonomy by opponents of neuro-correctives (arguing that such autonomy only has conditional value), as well as considering the implications of their arguments for using neuro-correctives on children. Finally, Peter Vallentyne adopted a rights-based approach to the topic, and argued that non-consensual neuro-correctives would wrong autonomous agents only if the interventions were unnecessary or disproportionate relative to the extent to which they would reduce the unrectified rights intrusions that the recipients would otherwise commit.
As I mentioned at the beginning of the post, I have had to gloss over a number of important details and arguments that were raised in the workshop. However, the papers given in the workshop will form the basis of an edited collection that will be published in the near future. Thanks are due to David Birks for organizing a interesting and fruitful workshop on this rapidly growing area.