Posted on April 24, 2019 at 5:25 AM
Written by Gabriel De Marco
Neurointerventions can be roughly described as treatments or procedures that act directly on the physical properties of the brain in order to affect the subject’s psychological characteristics. The ethics of using neurointerventions can be quite complicated, and much of the discussion has revolved around the use of neurointerventions to improve the moral character of the subjects. Within this debate, there is a sub-debate concerning the use of enhancement techniques on criminal offenders. For instance, some jurisdictions make use of chemical castration, intended to reduce the subjects’ level of testosterone in order to reduce the likelihood of further sexual offenses. One particularly thorny question regards the use of neurointerventions on offenders without their consent. Here, I focus on just one version of one objection to the use of non-consensual neurocorrectives (NNs).
According to one style of objection, NNs are always impermissible because they express a disrespectful message. To be clear, the style objection I consider does not appeal to the potential consequences of expressing this message; rather, it relies on the claim that there is something intrinsic to the expression of such a message that gives us a reason (or reasons) for not performing an action that would express this message. For the use of non-consensual neurocorrectives, this reason (or set of reasons) is strong enough to make NNs impermissible. The particular version of this objection that I focus on claims that the disrespectful message is that the offender does not have a right to be listened to.
How is this message to be understood? One might think, for instance, that an offender has the right to state his or her case, explaining what led them to perform the action that they did, to present factors that may mitigate or eliminate his or her criminal liability for the offense, or perhaps even to argue that he or she did not commit the offense in question.
It is not clear, though, how the employment of an NN would express this message. Criminal justice systems in modern democracies afford this opportunity to those charged with crimes by implementing provisions for fair trials. Whether NNs are employed or not would not affect this aspect of the criminal justice system, and could only be used after the individual has been convicted (possibly much later, after other attempts at rehabilitation have failed).
In order for this version of the argument to have any weight, then, the right under consideration will need to involve more. One might think that the offender is entitled to the opportunity to give his or her own point of view, or to explain aspects of his or her circumstances that led him or her to commit the crime. Further, one might think that this opportunity is not exhausted by the opportunities offered in a typical court system with fair trial provisions.
Yet even on this understanding of the right in question, it is not clear how NNs express the message that offenders do not have it. A policy involving NNs is surely consistent with providing the offender with this opportunity prior the use of the NN. Further, it is not clear why the offender would not be able to exercise this opportunity, at least to some extent, after an NN has been administered. It is not clear what information, or how much of it, the subject would no longer be able to communicate after the treatment.
One might think that the message expresses more. For example, one might think that the use of NNs expresses that the state is absolutely certain about what is right or wrong; or further, that the state has infallible access to the right values. This message might be inconsistent with the offender’s right to persuade the state that it is in the wrong. Thus, the use of NNs would express the message that the offender does not have the right to persuade the state on this matter.
But, just as it was not clear that the use of NNs prevents the offender from giving his or her point of view throughout his or her sentence, it is not clear how the use of NNs would prevent the offender from attempting to persuade the state. The means available to offenders for persuading the state may be more limited than they are for normal people, if, for instance, prisoners are not allowed to vote. Yet this does not seem to be a problem with the use of NNs, rather the problem would seem to be rooted in a different part of the process.
Second, one might wonder whether the use of NNs truly does send the message that the state has infallible access to the right values. Considered in isolation, this might have some plausibility. One might think, for instance, that by changing the mental states of those who disagree, they are suggesting that there is nothing left to say on the matter. Yet the state does have various means by which the people can “change its mind,” say, by voting for individuals who will pursue certain policies regarding the treatment of criminals, or by voting for politicians that promise to propose legislation to change what counts as a crime. When considered in this broader context, it is unclear how the state would be sending the message that it has infallible access to the right values.
One might, at this point, be thinking that this gets it all wrong. This discussion ignores other messages that could be sent by the use of NNs. For instance, one might think that the use of NNs sends the message that the offender does not, or should not, have a choice regarding the matter, or instead that it sends the message that the offender does not have the right to control a certain domain of her life, or the message that we do not have duties to treat these individuals as rational or autonomous beings, or as persons.
One might instead avoid the point about messages altogether and simply argue that NNs are impermissible because the offender should have a choice over this, that offenders do have the relevant rights which would be impermissibly infringed by NNs, or that we do have duties to treat them as rational or autonomous individuals, duties that would prevent the state from using NNs. One might also think that the employment of NNs would lead to negative consequences which far outweigh the benefits of this policy. These are important points to make, and they will offer more promising arguments for the claim that NNs are impermissible.
The argument discussed here is typically presented as part of a larger, more elaborate argument concerning disrespectful messages expressed by NNs. For a presentation of this argument, and a very interesting discussion of other messages that the use of NNs might express (including the ones mentioned at the end), see:
Shaw, Elizabeth, 2011. Free will, punishment and neurotechnologies. Technologies on the stand: Legal and ethical questions in neuroscience and robotics, pp.41-65.
__________, 2014. Direct brain interventions and responsibility enhancement. Criminal Law and Philosophy, 8(1), pp.1-20.
__________, 2018. Against the Mandatory Use of Neurointerventions in Criminal Sentencing. Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice. Pp. 321-337.