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Cognitive Diminishments and Crime Prevention: “Too Smart for the Rest of Us”?

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Abstract

In this paper, I discuss whether it is ever morally permissible to diminish the cognitive abilities or capacities of some cognitively gifted offenders whose ability to commit their crimes successfully relies on them possessing these abilities or capacities. I suggest that, given such cognitive diminishments may prevent such offenders from re-offending and causing others considerable harm, this provides us with at least one good moral reason in favour of employing them. After setting out more clearly what cognitive diminishment may consist of, I then critically discuss variations of four plausible arguments against a proposal of using them on cognitive gifted offenders related to autonomy, harm, narrative identity, and a right to mental self-determination. I argue that none of these concerns should have us reject the use of cognitive diminishments.

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Notes

  1. I assume that CDs would be meted out by judges as a response to criminal wrongdoing of the kind described. However, since it seems to have little impact on the discussion at hand (but see note 10), I remain agnostic regarding whether these interventions should be understood as rehabilitative measures doled out alongside, or in addition to, a punishment, or whether CDs are better understood as punishment.

  2. Others have engaged in a somewhat similar discussion (see e.g., [37]). However, they have done so without considering the neuroethical considerations that I shall pursue here.

  3. This is also why I do not discuss concerns relating to the putative right to bodily integrity. This is not to suggest that no potentially CD technology would violate such a right; rather, whether a technology would do so is a contingent question. If the technology is, for example, no more invasive of a person’s body than being woken up by the lights being turned on in a dark room, as has been suggested is the case with tDCS treatments, then it is not clear that this would violate a right to bodily integrity [38].

  4. As already mentioned in the introduction, I shall not engage in the important question of how these technologies would more specifically work, e.g., how invasive they would need to be and whether they would be reversable. The important ethical considerations related to this question would need to be considered on a case-by-case basis and is, at any rate, beyond the scope of this short paper.

  5. I add the qualifier relevantly like in the description of the argument because some may question whether CDs can be properly labelled medical treatments. After all, medical treatments are usually characterised as attempts to prevent, remove, or at least ameliorate diseases or disorders. It is not clear, however, whether a principled distinction between treatments and diminishments is possible. Specifically, it seems that CDs can in principle be treatments. Consider, for instance, the case of Solomon Shereshevskii, whose exceptional memory allowed him to remember a vast number of facts, but at the same time “[h]is inability to forget trivial facts severely impaired his ability to learn new information and cognitive skills” [39]. Had it been possible to diminish Shereshevskii’s memory to a level at which it no longer inhibited him from learning new information or skills, such a diminishment would seem to qualify as a treatment. However, should the reader remain unconvinced that CDs of offenders constitute medical treatments he/she can, without it having any impact on the discussion that follows, reframe the first premise as one claiming that CDs are subject to the same consent requirement as medical treatments. Should the reader wish to reject this claim as well, e.g., because he/she considers that the use CDs or neurointerventions more generally are to be motivated by correctional rather than medical considerations, thus making the putative obligation of obtaining informed consent something that requires additional argument in its favour rather than something that can be assumed [40], then he/she can safely ignore this section.

  6. Arguments for an informed consent requirement to neurointerventions can, of course, be based on one or multiple important moral values besides autonomy (e.g. harm, trust, and self-ownership) and can be more or less permissive in terms of what infringements of the requirement (if any) they permit [36]. It would, however, be overly ambitious to attempt to critically discuss all these possible ways to defend the requirement in relation to CDs in this short paper. More importantly, as Jesper Ryberg has pointed out, when the consent requirement is considered in relation to offering or mandating neurointerventions to offenders, it is usually because it is believed to reflect the need to respect offenders’ autonomy (see e.g., [5, 41]).

  7. Indeed, even in article 8 of the European Convention on Human Rights, which explicitly calls for the protection of personal autonomy, it is noted that its protection is not absolute, but can be overridden to e.g., protect others from harm. I thank the anonymous reviewer that pointed this out to me.

  8. See also [21] for a similar argument regarding mandatory neurointerventions more generally.

  9. See also [20].

  10. Some readers may object that the reason the harm involved in incarceration and other punishments is usually considered morally permissible is that the harm inflicted by these punishments is proportional to the crime committed. In contrast, the harm a state response involving CD might inflict on the offender would not have this status. Whether the harm caused by CDs (and whether administering CDs more generally) would be proportional to the crimes committed is a complex question that easily requires a separate paper to answer. However, it is worth noting that others have convincingly argued in relation to mandatory neurointerventions more generally that they could be used, not as alternatives to punishment, but as alternative punishments [42], and that, if this true, then it follows that neurointerventions can be imposed in ways that does not violate proportionality-constrains [5]. Hence, future work would need to focus on whether these considerations also apply to CDs specifically.

  11. In [43], this concern is expressed in relation to the mandatory use of neurointerventions more generally.

  12. This last point is similar to the argument offered by Baylis [24] as a response to the view presented by Schectman [44] that personality changes caused by DBS treatments may fail to meet the articulation constraint.

  13. While it is not clear, at least to me, what argument(s) could be offered to support this idea, it should be noted that it remains open for a supporter of the equilibrium constraint to argue that the narratives that are suppressed by traditional state sanctions (e.g. incarceration) are different from the narratives suppressed by state-mandated CDs – and, further, that this makes a moral difference.

  14. An additional concern that will not be considered here, as it has been discussed at length elsewhere, is that the right to mental self-determination protects persons from having their inner life altered by specific means. Specifically, it protects them against interventions that deliver their effects through bypassing mental control mechanisms such as perception and other psychological mechanisms, which supposedly makes them harder to resist than other types of intervention. However, as Ryberg [5] has recently observed, it is contentious whether the fact that an intervention can be perceived implies that its influence can therefore be controlled or resisted.

  15. A possible response is that reducing mental control by means of CDs is intended, while its possible reduction due to incarceration is merely foreseen, and that this is morally significant (for such an argument regarding the harms associated with neurointerventions generally, see [45]). As others have noted, however, recent attempts to apply the intended/foreseen distinction to explain the intuitive difference between the mental effects of incarceration and mandatory neurointerventions face considerable challenges: see e.g. [46] or [47].

  16. Shaws argument applies to violations both of a right to bodily integrity and of a right to mental integrity/self-determination. I here only directly address the expressivist concerns regarding violations of the latter right, but much of what is said should apply readily to violations of the former right as well.

  17. For a similar argument applied to status messages more generally, and a critical discussion of different strategies expressivists may attempt to use to avoid it, see [35].

  18. Other countervailing considerations include the possibility that, rather than reducing re-offending among the relevant offenders, CDs will cause them to commit more crimes because other well-known ways to combatant recidivism upon re-entry into the community (such as securing employment) are less effective on this group due to diminished cognitive features. Another consideration is whether the relevant offenders could be persuaded to use their exceptional cognitive powers to fight rather than commit crimes.

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Acknowledgements

The author thanks Jesper Ryberg, Ditte Marie Munch-Jurisic, Thomas Søbirk Petersen, Frej Klem Thomsen, Søren Sofus Wichmann, Emil Junge Busch, Sigri Gaïni, and two anonymous reviewers for their valuable comments on an earlier draft of this paper.

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  1. Department of Philosophy and Science Studies, Roskilde University, Universitetsvej 1, 4000, Roskilde, Denmark

    Sebastian Jon Holmen

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Holmen, S.J. Cognitive Diminishments and Crime Prevention: “Too Smart for the Rest of Us”?. Neuroethics 15, 1 (2022). https://doi.org/10.1007/s12152-022-09488-w

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