http://orcid.org/0000-0002-8416-1818
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Abstract
How should we punish criminal offenders? One prima facie attractive punishment is administering a mandatory neurointervention—“interventions that exert a physical, chemical or biological effect on the brain in order to diminish the likelihood of some forms of criminal offending” (Douglas and Birks Citation2018, 2). While testosterone-lowering drugs have long been used in European and US jurisdictions on sex offenders, it has been suggested that advances in neuroscience raise the possibility of treating a broader range of offenders in the future. Neurointerventions could be a cheaper, and more effective method of punishment. They could also be more humane. Nevertheless, in this paper we provide an argument against the use of mandatory neurointerventions on offenders. We argue that neurointerventions inflict a significant harm on an offender that render them a morally objectionable form of punishment in a respect that incarceration is not. Namely, it constitutes an objectionable interference with the offender’s mental states. However, it might be thought that incarceration also involves an equally objectionable interference with the offender’s mental states. We show that even if it were the case that the offender is harmed to the same extent in the same respect, it does not follow that the harms are morally equivalent. We argue that if one holds that intended harm is more difficult to justify than harm that is unintended but merely foreseen, this means neurointerventions could be morally objectionable in a significant respect that incarceration is not.
ACKNOWLEDGMENTS
We thank the following, who provided helpful comments and objections to the article: Christopher Bennett, Ian Carroll, Tom Douglas, Sam Kiss, Michael Lundie, Duncan Purves, Lorenzo Del Savio, Tony Taylor, Frej Klem Thomsen, and Pete West-Oram. We also thank audiences at the following events: Braga Meetings in Ethics and Political Philosophy at the University of Minho, the 10th International Conference on Applied Ethics at Hokkaido University, Sapporo, and the Rocky Mountains Ethics Congress, University of Colorado at Boulder. We are particularly grateful to Robert Kelly for his insightful response to an earlier version of the article at the latter event. We also thank two anonymous reviewers for the perceptive objections and suggestions. Finally, we thank Mona Rudolf for her invaluable research assistance.
Notes
1 That is, incarceration is a costly and ineffective method of acting in accordance with commonly proposed reasons to punish, such as retributivist, deterrence, and rehabilitative reasons.
2 For example, the UK government proposed a program that treated persons with dangerous and severe personality disorder as psychiatric disorders. See Duggan (Citation2011).
3 Some proponents of administering mandatory neurointerventions do not think that they should be administered as punishment, but rather, they think that they should be a rehabilitative aspect of an offender’s sentence, and they view this to be distinct from punishment. For example, see Douglas (Citation2014). Whether or not compulsory rehabilitation constitutes punishment does not concern us here. In what follows we refer to the use of mandatory neurointerventions as punishment, but our argument also applies to those who think that we ought to use mandatory neurointerventions rather than incarceration as rehabilitation.
4 Thomas Douglas makes this point (Douglas Citation2014, 117). See also Petersen and Kragh (Citation2017).
5 Thomas Douglas also makes this move (Douglas Citation2014, 105).
6 The same holds for other types of brain intervention, due to the laws of the brain’s structure and physiology. Even targeted application of the smallest possible electrodes affects brain tissue that, due to the intense interconnection of the brain’s functional neuronal networks, has functions other than the one intended to be changed. Indeed, deep brain stimulation, while very effective in treating, e.g., movement disorders, has for this very reason been found to have significant side effects on, among others, personality, behavior, and impulse control. Transcranial magnetic stimulation (TMS) and electrical stimulation treatments are not being used for sustained treatment, so there are no long-term data available on side effects.
7 Thomas Douglas notes that this is the most promising objection to the use of mandatory neurointerventions (Douglas Citation2014, 119).
8 We could explain this by holding an historical account of autonomy. See for instance, Christman (Citation1991) and Ekstrom (Citation2005). Broadly, on these accounts, a desire having the correct origins is a necessary and sufficient condition for it to be autonomous. A desire that is created through argument would have the correct origin to be autonomous, while a desire created through brainwashing would not. This also tracks Neil Levy’s distinction between direct and indirect brain manipulation. See Levy (Citation2007, 70).
9 Testosterone-lowering drugs would not harm a person’s interest in mental integrity in cases where the offender autonomously wants to have his sexual desires altered.
10 For the former, see Bublitz and Merkel (Citation2014). For the latter, see Shaw (Citation2018). We think that a plausible basis for this interest is connected to Oshana’s relational view of autonomy (Oshana Citation2006).
11 It is also possible that this interest has sufficient weight to hold others to be under a duty, and thus on the interest theory, we can say that that this interest is protected by a right. We are not committed to holding a claim as strong as this, but it should be noted that such a right has been defended elsewhere (Bublitz and Merkel Citation2014).
12 To clarify, henceforth when we refer to a valuable or disvaluable mental state, we mean all things considered valuable or disvaluable. When a desire is all things considered disvaluable, there could be valuable elements to the desire, such as pleasure at its satisfaction, but nonetheless the disvalue of the desire outweighs its value. For the purposes of this article, we bracket the issue of how to distinguish in a principled way between valuable and disvaluable mental states.
13 A sufficient condition for a desire to be disvaluable is if the satisfaction of that desire is morally impermissible. For example, the desire to torture kittens is generally disvaluable because the action of torturing kittens is generally considered to be morally impermissible.
14 One of us has provided a tentative argument to explain this difference. We propose that “autonomy of thought—understood as the condition of forming and sustaining one’s desires autonomously—also possesses only conditional value. In particular, we propose that autonomy of thought lacks non-instrumental value when employed to form or sustain desires that are all things considered disvaluable” (Birks and Douglas Citation2017, 427–28). This means that it is not necessarily pro tanto wrong to interfere with a person’s disvaluable desires. This is based on Joseph Raz’s argument for the conditional value of autonomy. According to Raz, “Autonomous life is valuable only if it is spent in the pursuit of acceptable and valuable projects and relationships” (Raz Citation1986, 313–20).
15 Objectionable here could mean both wrong because it is harmful and wrong without harm.
16 We assume for the sake of argument that offenses necessarily involve only disvaluable acts.
17 For an illuminating discussion on the relationship between wronging and offending see Tadros (Citation2016).
18 It has been suggested that it is unrealistic to think that incarceration would cause the same harmful mental effects to the same extent as a neurointervention. We agree that it might be true that in practice the mental effects of incarceration could be less harmful. However, if our argument is able to contend with the stronger objection, that the same mental effects are experienced to the same extent in incarceration, then our argument would also be successful for cases where the mental effects is experienced to a lesser extent.
19 We do not attempt to defend this commonly held view here. For a paper setting out the implications for denying intentions are relevant for permissibility, see Husak (Citation2009).
20 It might even be thought that a person’s interest in mental integrity can be harmed only if his desires are created or altered intentionally. Indeed, it would be implausible to hold that unintentionally creating or altering a person’s desire is always a harm to a person’s interest in mental integrity. Our behavior frequently creates and alters the desires of others, and without some form of an intentionality requirement, a doubtfully large array of actions would be rendered wrong. For example, imagine we paint our house green because it is our favourite color. As it happens, the color green has a soothing effect and reduces our neighbour’s desire to be aggressive. It seems implausible that this harms our neighbor’s mental integrity, despite the fact that it alters his desires. However, we might think that there is a moral difference if we were to paint our house green with the intention of changing our neighbor’s desires. We do not need to hold this strong view here in order for our argument to be successful. For an argument doubting that there is a morally relevant difference between intentionally altering a desire by administering a neurointervention and by painting a prison wall green, see Douglas (Citation2018).
21 Some proponents of the importance of intentions to permissibility hold that only some intended harms are more difficult to justify than if they were unintended but foreseen. For example, it might be thought that there is a rights restriction, namely, the view that only harms relating to a rights violation regardless of the intention of the agent are more difficult to justify when intended rather than foreseen. We do not need to take a stand on this issue here, but instead we assume that the harm of interfering with a person’s mental integrity is the type of harm that is more difficult to justify when intended rather than merely foreseen. For a clear discussion of this, see McMahan (Citation1994) and Husak (Citation2009).
22 This case is adapted from Foot (Citation2002, 21).
23 For a critical overview of the many attempts, see Nelkin and Rickless (Citation2015). Some philosophers have argued that we can make sense of the role of intentions to permissibility without needing to solve the problem of closeness. For example, Victor Tadros argues that “What matters is whether a person executes an intention to affect others in a way that foreseeably harms them” (Tadros Citation2015, 74). See also: Warren Quinn (Citation1993). It is beyond the scope of this article to discuss the implication of this view for harms of mandatory neurointerventions.
24 It is possible that our argument would be successful if one employed an alternative solution to the problem of closeness, such as Bennett’s conceivability requirement (Bennett Citation1995, 213). However, we are unable to provide an overview of the many attempts to solve the problem of closeness and consider whether each one can show that the harms of mental integrity inflicted by neurointerventions are intended whereas the same effects are merely foreseen in incarceration. We believe that Fitzpatrick’s account is the most compelling solution to the problem of closeness, and it also has these implications for distinguishing the harms to mental integrity of neurointerventions from incarceration.
25 For the sake of simplicity, we omit one important aspect of Fitzpatrick’s account, namely, that the relation between state of affairs needs to be natural, rather than conventional. That does not affect our argument here.
26 This famous case is adapted from Judith J. Thomson (Citation1985, 1397). For the original Trolley Problem see Philippa Foot (Citation2002).
27 This case is also adapted from Thomson (Citation1985, 1409).
28 It could be questioned whether Fitzpatrick is correct that these are constitutive relations, rather than causal. We proceed with the assumption that the relationship between the state of affairs in Cave and Large Man is constitutive. We do not defend this assumption here. Our point is that if these relations are constitutive, then so are the relations between administering the neurointervention and the harms M due to effects Y and Z.
29 It is made particularly difficult to set out the distinction between constitutive and causally related states of affairs given that Fitzpatrick does not provide a set of necessary and sufficient conditions for states of affairs to be constitutively related. In a critical discussion of Fitzpatrick’s solution to the problem of closeness, Nelkin and Rickless (Citation2015) consider the reasons for this omission. They write, “It is unclear whether Fitzpatrick thinks that the constitution relation is not susceptible of definition (because, say, it is a prototype concept or family resemblance concept) or whether he thinks that the constitution relation is definable but the details of the definition unnecessary or distracting” (390).
30 These are the side effects of selective serotonin reuptake inhibitors (SSRIs) deployed to increase serotonin. For an analysis of the relationship between serotonin and aggression see Duke et al. (Citation2013). It is important to note that our understanding of the relationship between serotonin and agression is far from complete. See Crockett (Citation2014).
31 We note that the option to treat the side effect of restlessness with, say, a benzodiazepam such as Xanax does not change that the fact that the relation between states of affairs is constitutive. Recall the case of Cave, where blowing up the large man does not logically entail his death, because technology might exist in the future to put the person back together without resulting in his death. The existence of the technology does not mean the relation between the state of affairs of blowing up the stuck explorer and the state of affairs of killing him is not constitutive. The fact that we could eliminate the restlessness with Xanax would be the equivalent of putting back together the blown-up explorer—but would not change the relation between the states of affairs from being constitutive.
32 It is important to emphasize, as mentioned earlier, that this is highly unlikely and would require us to reject a fundamental principle of pharmacology.
33 Similarly, in the distant future, we might imagine that technology may have developed so that there exists an incredibly precise ray gun that is able to shoot a laser beam that temporarily stops a person talking, without any other effects. Nevertheless, the fact such technology might exist in the future does not change whether B intends to stop A breathing or not.
34 It is worth noting that the constitutive/causal distinction has a significant implication for a common justification of one type of euthanasia. It is often proposed that it is permissible to administer a drug with the intention to relieve a patient’s pain, even if the doctor foresees that the drug will hasten the patient’s death. In contrast, if the doctor injected the same drug with the intention to kill the patient, this would be impermissible. If one accepts the constitutive/casual distinction, however, such a move is not available. A doctor who administers a drug in order to relieve pain while foreseeing that it will hasten the death of the patient cannot say that he did not intend to hasten the patient’s death. The state of affairs of injecting the drug is known by the doctor to be constitutive of the state of affairs of bringing about a patient’s death, so it is not possible for him to intend to do one without intending the other. In fact, one implication of this account is that whenever a drug is administered to a patient with the knowledge that it is constitutive of the state of affairs of the patient experiencing side effects, the side effects cannot be unintended. It is only if the doctor is unaware that the drug has a particular side effect that could it not be intended.