This chapter will focus on the biomedical moral enhancement of offenders – the idea that we could modify offenders’ brains in order to reduce the likelihood that they would engage in immoral, criminal behaviour. Discussions of the permissibility of using biomedical means to address criminal behaviour typically analyse the issues from the perspective of medical ethics, rather than penal theory. However, recently certain theorists have discussed whether brain interventions could be legitimately used for punitive purposes. For instance, Jesper Ryberg argues (...) that there is nothing to prevent retributivists from endorsing brain interventions as a legitimate form of retributive punishment. Legal academics have not yet paid sufficient attention to whether this proposal would be compatible with international human rights law, nor have retributivist philosophers discussed whether their favoured penal theories have the conceptual resources to explain why brain interventions would not be an appropriate method of punishment. This chapter considers whether there is any indication that these interventions are being used at present for punitive purposes and whether this would violate the European Convention on Human Rights. It examines different versions of retributivism and considers which theory is in the best position to challenge the use of brain interventions as a form of punishment. Finally, it considers whether offering these interventions as an alternative to punishment would violate principles of proportionality. (shrink)

Is it morally acceptable to instigate criminal offenders to participate in rehabilitative treatment by offering treatment in return for early release from prison? Some theorists have supported such treatment schemes by pointing to the beneficial consequences that follow from the treatment. Others have suggested that the schemes are unacceptably coercive, which implies that consent becomes an illusion. This paper argues that the discussion—with clear parallels to debates of other healthcare treatment offers in medical ethics—has adopted a too narrow focus. By (...) failing to consider the question as a penal theoretical problem, the arguments—both by proponents and critics of coercive treatment—become premature. (shrink)

A central tenet of medical ethics holds that it is permissible to perform a medical intervention on a competent individual only if that individual has given informed consent to the intervention. However, in some circumstances it is tempting to say that the moral reason to obtain informed consent prior to administering a medical intervention is outweighed. For example, if an individual’s refusal to undergo a medical intervention would lead to the transmission of a dangerous infectious disease to other members of (...) the community, one might claim that it would be morally permissible to administer the intervention even in the absence of consent. Indeed, as we shall discuss below, there are a number of examples of public health authorities implementing compulsory or coercive measures for the purposes of infectious disease control (IDC). The plausibility of the thought that non-consensual medical interventions might be justified when performed for the purpose of IDC raises the question of whether such interventions might permissibly be used to realize other public goods. In this article we focus on one possibility: whether it could be permissible to non-consensually impose certain interventions that alter brain states or processes through chemical or physical means on serious criminal offenders. We shall suggest that some such interventions might be permissible if they safely and effectively serve to facilitate the offender’s rehabilitation and thereby prevent criminal recidivism. (shrink)

The paper critically discusses the moral view that neurotechnological behavioural treatment for criminal offenders should only be offered if it is in their best interests. First, I show that it is difficult to apply and assess the notion of the offender's best interests unless one has a clear idea of what ‘best interests’ means. Second, I argue that if one accepts that harmful punishment of offenders has a place in the criminal justice system, it seems inconsistent not to accept the (...) practice of offering offenders treatment even when the state will harm them in applying the treatment. Finally, leading penal theories like consequentialists and retributivists would not accept that the offender's best interests, at least in certain situations, impose a necessary condition for the treatment of an offender. (shrink)

The paper critically discusses the moral view that neurotechnological behavioural treatment for criminal offenders should only be offered if it is in their best interests. First, I show that it is difficult to apply and assess the notion of the offender's best interests unless one has a clear idea of what ‘best interests’ means. Second, I argue that if one accepts that harmful punishment of offenders has a place in the criminal justice system, it seems inconsistent not to accept the (...) practice of offering offenders treatment even when the state will harm them in applying the treatment. Finally, leading penal theories like consequentialists and retributivists would not accept that the offender's best interests, at least in certain situations, impose a necessary condition for the treatment of an offender. (shrink)

The new biotechnology raises expectations for modifying human behaviour through its use. This article focuses on the ethical analysis of the not so remote possibility of rehabilitating criminals by means of neurotechnological techniques. The analysis is carried out from a synthetic position of, on the one hand, the consequentialist conception of what is right and, on the other hand, the emphasis on individual liberties. As a result, firstly, the ethical appropriateness of adopting a general predisposition for allowing the neurorehabilitation of (...) prisoners only if it is safe and if they give their consent will be defended. But, at the same time, reasons will be given for requiring, in certain circumstances, the exceptional use of neurotechnology to rehabilitate severely psychopathic prisoners, even against their will, from the same ethical perspective. (shrink)

Ethicists have for the past 20 years debated the possibility of using neurointerventions to improve intelligence and even moral capacities, and thereby create a safer society. Contributing to a recent debate concerning neurointerventions in criminal rehabilitation, Nicole Vincent and Elizabeth Shaw have separately discussed the possibility of responsibility enhancement. In their ethical analyses, enhancing a convict’s capacity responsibility may be permissible. Both Vincent and Shaw consider self-control to be one of the constituent mental capacities of capacity responsibility. In this paper, (...) we critically examine the promise of improving convicts’ capacity responsibility by neuroenhancements of self-control to see whether the special characteristics of the inmate population make a difference in the analyses. As improving self-control by means of neurointerventions seems plausible, we then ask whether it is or could be a justified measure in court rulings. We conclude that, even if there are cases in which neurointerventions were warranted in the context of the stated goals of the criminal court, i.e., decreasing recidivism and rehabilitating the offenders to the society, due to the range of individual variability in the constitution of self-control, the prescription of specific neurointerventions of self-control falls outside the scope of legitimate court rulings. (shrink)

“Committing a crime might render one morally liable to certain forms of medical intervention”, claims Thomas Douglas, who stated in this context that “compulsory uses of medical correctives could in principle be justified.” This article engages critically with his and other arguments on the use of coercive neurocorrectives for criminal offenders. First, the rehabilitation assumption that includes—for coercive neurocorrectives to work as an alternative to incarceration—that rehabilitation is the “only goal” of criminal punishment is criticized. Additionally this article engages with (...) the theoretical difficulty of solely rehabilitative approaches, and discusses why it is unfortunate to design neurocorrectives so as to be particularly harmful in order to imagine administering them as being a punishment. Second, until we know more about specific neurocorrectives, we are well advised not to undermine the most important objection against coercive neurocorrectives, namely offenders’ human rights. This article argues that the use of coercive neurocorrectives would particularly violate Article 3 of the European Convention on Human Rights which guarantees as an absolute right that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”, and finally holds that a still weak human right to mental integrity and self-determination should fundamentally come first. (shrink)

The view that acting morally is ultimately a question of treating others with respect has had a profound influence on moral and legal philosophy. Not surprisingly, then, some scholars forcefully argue that the modes of punishment that the states mete out to offenders should not be disrespectful, and, furthermore, it has been argued that obliging offenders to receive neurological treatment is incompatible with showing them their due respect. In this paper, I examine three contemporary accounts of what showing respect for (...) offenders in our sentencing practices would amount to: that it involves not interfering with offenders’ capacities for rationality and autonomy, that it should not undermine offenders’ prospect of reform, and that it amounts to treating offenders as if opaque. I then critically discuss whether any of these accounts plausibly imply that mandating neurointerventions to some offenders is necessarily morally wrong. I argue that they do not. (shrink)

It is widely believed that informed consent must be obtained from a patient for it to be morally permissible to administer to him/her a medical intervention. The same has been argued for the use of neurointerventions administered to criminal offenders. Arguments in favour of a consent requirement for neurointerventions can take two forms. First, according to absolutist views, neurointerventions shouldneverbe administered without an offender’s informed consent. However, I argue that these views are ultimately unpersuasive. The second, and more plausible, form (...) defences of the consent requirement may take are more moderate in that they accept the use of neurointerventions in some cases, but not in others. Based on common rationales for consent in medical interventions, I discuss whether four moderate approaches in defence of the informed consent requirement for medical interventions succeed in establishing that informed consent must be obtained from offenders prior to administering neurointerventions to them. I offer novel critical perspectives on approaches that have already received some attention in the literature, and I critically discuss other approaches to defending informed consent in a medical context that have not yet received due attention. Ultimately, I argue that it is not obvious that any of these considerations support a requirement of offenders’ informed consent to neurointerventions. Lastly, however, I suggest that there is at least one overlooked fact as regards how courts currently employ mandatory neurointerventions, which may support such a requirement. (shrink)

An important concern sometimes voiced in the neuroethical literature is that swift and radical changes to the parts of a person’s mental life essential for sustaining his/her numerical identity can result in the person ceasing to exist—in other words, that these changes may disrupt psychological continuity. Taking neurointerventions used for rehabilitative purposes as a point of departure, this short paper argues that the same radical alterations of criminal offenders’ psychological features which under certain conditions would result in a disruption of (...) numerical identity can be achieved without these having any effect on numerical identity. Thus, someone interested in making radical alterations to offenders’ psychology can avoid the charge that this would kill the offenders, while still achieving a radical transformation of them. The paper suggests that this possibility makes the question of what kinds of qualitive alterations to offenders’ identity are morally permissible pressing, but then briefly highlights some challenges for arguments against making radical qualitative identity alterations to offenders. No data are available. (shrink)

I am a person. But am I fundamentally and essentially a person? The animalist says no. So must the phenomenal continuity theorist, or so I will argue. Even if, contra animalism, we cannot survive zombification, being a subject of experience is not sufficient for being a person, and phenomenal continuity is not sufficient for our survival as the same person over time. These observations point the way to a positive account of personhood, and provide further insight into the conditions under (...) which literal survival preserves what matters. (shrink)

Criminal offenders are sometimes required, by the institutions of criminal justice, to undergo medical interventions intended to promote rehabilitation. Ethical debate regarding this practice has largely proceeded on the assumption that medical interventions may only permissibly be administered to criminal offenders with their consent. In this article I challenge this assumption by suggesting that committing a crime might render one morally liable to certain forms of medical intervention. I then consider whether it is possible to respond persuasively to this challenge (...) by invoking the right to bodily integrity. I argue that it is not. (shrink)

As neuroscience progresses, we will not only gain a better understanding of how our brains work, but also a better understanding of how to modify them, and as a result, our mental states. An important question we are faced with is whether the state could be justified in implementing such methods on criminal offenders, without their consent, for the purposes of rehabilitation and reduction of recidivism; a practice that is already legal in some jurisdictions. By focusing on a prominent type (...) of view of free action, which I call bypassing views, this paper evaluates how such interventions may negatively impact the freedom of their subjects. The paper concludes that there will be a tension between the goals of rehabilitation and reduction of recidivism, on the one hand, and the negative impact such interventions may have on free action, on the other. Other things equal, the better that a particular intervention is at achieving the former, the more likely it is to result in the latter. (shrink)

In recent years, direct brain interventions have shown increased success in manipulating neurobiological processes often associated with moral reasoning and decision-making. As current DBIs are refined, and new technologies are developed, the state will have an interest in administering DBIs to criminal offenders for rehabilitative purposes. However, it is generally assumed that the state is not justified in directly intruding in an offender’s brain without valid consent. Thomas Douglas challenges this view. The state already forces criminal offenders to go to (...) jail without their consent. This represents a serious interference with an offender’s rights. If criminal offenders are already morally liable to incarceration, why is the state not also entitled to administer DBIs without consent for the purposes of rehabilitation? Douglas argument focuses on the right to ‘bodily integrity’. He argues that there is no compelling reason to believe that bodily rights that protect an offender from non-consensual DBIs are stronger than rights that protect an offender from incarceration. This paper will extend Douglas’ analysis. It will consider the more fundamental right to ‘mental integrity’. The right to mental integrity defends an inner sphere of liberty. It protects critical capacities necessary for the exercise of autonomous human agency—without which a vast majority of moral rights could not exist. Thus, the right to mental integrity is ultimately more important for a moral assessment of DBIs. The right strongly suggests that both presently, and in the future, there may be many cases in which the state is not entitled to administer DBIs to criminal offenders without valid consent. (shrink)

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. 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. (shrink)

Sex offenders are sometimes offered or required to undergo pharmacological interventions intended to diminish their sex drive (anti-libidinal interventions or ALIs). In this paper, we argue that much of the debate regarding the moral permissibility of ALIs has been founded on an inaccurate assumption regarding their intended purpose—namely, that ALIs are intended solely to realise medical purposes, not correctional goals. This assumption has made it plausible to assert that ALIs may only permissibly be administered to offenders with their valid consent, (...) in line with the approach taken to most other interventions with a medical aim. However, we argue that, contrary to this assumption, the state's intention in relation to at least some ALIs is, at least in part, to achieve correctional objectives. We evaluate two legal regimes for ALI provision—section 645 of the California Penal Code and the mental health regime in England and Wales. In each case, we identify the state's implicit purpose in imposing ALIs and argue that the Californian and English regimes both serve as counterexamples to the view that ALIs are intended solely for medical purposes. While the moral implications of our argument are not straightforward, it raises the question whether consent is required for permissible imposition of ALIs, and more generally, whether the moral permissibility of crime-preventing interventions using medical means should be assessed against the standards of medical ethics or against those of criminal justice ethics. (shrink)

Many states recognize a legal right to bodily integrity, understood as a right against significant, nonconsensual interference with one’s body. Recently, some have called for the recognition of an analogous legal right to mental integrity: a right against significant, nonconsensual interference with one’s mind. In this chapter, we describe and distinguish three different rationales for recognizing such a right. The first appeals to case-based intuitions to establish a distinctive duty not to interfere with others’ minds; the second holds that, if (...) we accept a legal right to bodily integrity, then we must, on pain of philosophical inconsistency, accept a case for an analogous right over the mind; and the third holds that recent technological developments create a need for a legal right to mental integrity. (shrink)