Abstract
This paper critically discusses the argument from objectification – as recently presented by Elizabeth Shaw – against mandatory direct brain interventions (DBIs) targeting criminal offenders’ values as part of rehabilitative or reformative schemes. Shaw contends that such DBIs would objectify offenders because a DBI “excludes offenders by portraying them as a group to whom we need not listen” and “implies that offenders are radically defective with regard to one of the most fundamental aspects of their agency” (Shaw Criminal Law and Philosophy 8:1–20, 1). To ensure that offenders are not objectified, Shaw first maintains that we should restrict rehabilitative/reformative schemes to attempts at rational dialogue because such an approach respects the offender’s personhood. Second, Shaw claims that we should not portray offenders as radically defective because such treatment would only negatively impact offenders’ already tenuous relationship with society. Third, Shaw contends that we should not confer the state the power to change an offender’s values because the state lacks insight into what constitutes the right values. I contend that none of these arguments should prevent the use of value-targeting DBIs. First, I show that the dialogue requirement for rehabilitative schemes is insufficient ground from which to oppose the use of these DBIs. Second, I show that it is doubtful that the use of DBIs as proposed would damage the relationship between offenders and society. Finally, although the state may often lack insight into what constitutes the correct values, this lack of insight should not by itself prevent value-targeting DBIs from being employed on certain groups of offenders.
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Notes
I understand both the reformation and rehabilitation of offenders to consist of attempts at making offenders less likely to relapse into criminal behavior.
Whether an intervention is categorised as direct as opposed to indirect depends, in Bublitz and Merkel’s words, on whether the intervention is”[…] mediated […] by internal processes on the part of the addressee” [2]. Deep Brain Stimulation and psychopharmaceuticals that circumvent these internal processes could thus be characterised as direct brain interventions, whereas, for example, communication could be characterised as an indirect brain intervention.
See [8] for a critique.
In a commentary in AJOB Neuroscience, this point is stressed by Benjamin L. Curtis, who explains in a footnote why he chose not to engage in a discussion of this objection: “The notion of ‘objectification’ appealed to by Shaw seems to me, despite Shaw’s best efforts, to be hopelessly vague and obscure and requires significant clarification before the objection can be properly assessed” [9]. I tend to think that this is an overly harsh assessment, but I agree that some clarification is needed.
Indeed, in the first part of her paper, Shaw convincingly demonstrates that the influential compatibilist accounts of free will experience immense difficulties in explaining what is intuitively troubling about DBIs [1]. For the remainder of this paper I will assume that this part of Shaw’s argument is sound.
Specifically, this conception is inspired by the work of Stephen Reicher and others on social identity and the mobilisation of social solidarity [11], in which it is argued that categorising the Jewish population as an outgroup by means of propaganda in World War II Europe was instrumental in making possible the atrocities carried out by the Nazis against the Jewish population because it made the rest of the population indifferent to the Jews.
In addition to restrictions on using DBIs to re-shape an offender’s values, Shaw adds two further restrictions. First, Shaw argues that DBIs should never be used as a substitute for attempting to engage the offender in human relationships, which seems to be why she contends that dialogue should be the only rehabilitative tool that the state employs. This challenge will be addressed in section 2. Then, she argues that DBIs should never be used without the offender’s consent. Due to the limited scope of this paper, I will not engage in a comprehensive discussion of the latter condition; therefore, it is assumed that the DBIs under consideration would be mandated by the state as part of a criminal sentence. One point should nonetheless be made in passing. Following Thomas Douglas, one could challenge Shaw’s view by arguing that one might be morally liable to undergo some form of correctional medical intervention if one has committed a crime as there seems to be no relevant difference between some forms of correctional medical intervention and incarceration, at least in terms of some notion of bodily integrity [12]. I am not saying that Douglas succeeds at showing that consent is not necessary for criminal offenders (and as it stands, neither is he) since it might, for example, violate an offender’s right to mental integrity (see Craig [13] and Bublitz & Merkel [2] for this line of argument). I am merely highlighting that the consent requirement, although widely accepted among philosophers and others, might not be as robust as often assumed, at least to the extent that it relies on a notion of bodily integrity.
See also [16] for a similar interpretation.
The contrast between these instances of behaviour-oriented interventions could also be highlighted using quasi-Frankfurt-style case language. (I owe this insightful observation as well as the examples to an anonymous reviewer.) Consider the following cases in which case 1 is an example of value change, and case 2 is a case of bypassing:
Case 1: Smith votes D because his core values are D-values. Black wants Smith to vote R in tomorrow’s election. Black therefore uses a DBI to change Smith’s values from D-values to R-values. With time and critical reflection, Smith can eventually change his values. However, Smith votes R without engaging in critical reflection.
Case 2: Smith votes D because his core values are D-values. Black wants Smith to vote R in tomorrow’s election. Black therefore uses a DBI that will bypass Smith’s decision should he choose to vote D and cause him to vote R. At the voting place, Smith is about to vote D, the DBI activates, and Smith votes R instead.
I am here assuming that Bob’s belief regarding the moral permissibility of or preference toward violence is not the product of any mental disorders that has severely impaired his rational capacities that would arguably render him non-responsible for his crimes and thus not an appropriate recipient of criminal rehabilitation by means of value-changing DBIs. For more on the connection between impaired rational capacities and non-responsibility, see, e.g., [21].
This “strong” claim could quite easily be shown to be false, as it is difficult to see why dialogue could not be an integrated part of a rehabilitative scheme in which value-changing DBIs are administered. Consider again the case of Bob, who has his values altered. Imagine further that Bob himself asked for this DBI after several conversations with a professional. It does not seem implausible to claim that this offender has, in fact, been rehabilitated through dialogue, as dialogue was the basis for the decision to undergo the value-altering DBI even if the intervention itself is not dialogue based. Shaw would no doubt object to this example because, in her view, an offender’s consent is not sufficient to render altering his values morally permissible because “the practice affects society’s stance toward offenders as a group”([1] pp. 13). Although I cannot argue here why I think this position is inaccurate, it should be noted that this view of what is required for consent is not uncontroversial.
That is, those offenders whose rehabilitative process would likely not be improved by undergoing a DBI.
In the Federal Rule of Criminal Procedure 32 (ii)(4), it is stated that before imposing a sentence, the court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” See https://www.law.cornell.edu/rules/frcrmp/rule_32.
However, there might be good reasons to impose some restrictions on the concerns the offender may raise to the community, even if this might aid his rehabilitation. If the offender, for example, makes incitements to commit acts of violence, it does not seem morally impermissible to prevent this offender’s perspectives from being voiced, even if this would somehow aid his rehabilitation. Admittedly, restrictions on freedom of speech are not uncontroversial, but it could – I think successfully - be argued that incitements to commit acts of violence should be prohibited for harm-based reasons. See also [23] for this point, along with a comprehensive overview of the debate regarding free speech.
I owe this observation to an anonymous reviewer.
For the point that abandoning the practise of disenfranchising criminal offenders might aid in offender rehabilitation, see, e.g., ([24], p. 1166).
See also G. Owen Schaefer [25] for a similar view in the context of widespread use of what he calls direct moral enhancement.
However, it should be noted that even if these states had or might use value-changing DBIs to promote detrimental or false values, it is not clear that it follows that other states should not require some offenders to undergo value-changing DBIs to promote true or beneficial values. Put differently, a prohibition on the use of value-changing DBIs that would promote beneficial values or preferences (such as non-violence) to prevent states from using the same techniques to promote detrimental values is justified only if the prohibition will in fact lead to the prevention. However, it is not clear that a prohibition would achieve this because it seems unlikely that states that are committed to punishing, e.g., homosexuals, would base their decisions on whether to change sexual preferences of its citizens by means of DBIs, on whether these techniques are used for other more benign purposes in other countries.
See [19] for a similar observation.
Of course, we do need to have some conception of the good to be able to determine which values or virtues we should inculcate and which we should not. However, I tend to believe that David DeGrazia is correct in proposing that whenever the state interferes with its citizens’ moral disposition, it should “[s]tick to improvements that represent points of overlapping consensus among competing, reasonable moral perspectives”([19], p. 4). Another way to articulate the same point in this context is to say that the state should administer value-targeting DBIs only as part of reformative or rehabilitative schemes given that the offender’s firm commitment to a principle or course of action is considered uncontroversially wrong by all reasonable moral perspectives. Although I cannot demonstrate it here, I take it to be highly implausible that any moral theory worthy of the name would consider the immorality of murdering or seriously harming the innocent to be a matter of controversy.
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Acknowledgements
The author extends his gratitude to Professor Jesper Ryberg, Kristian Kragh, Cecilia Vollmer and two anonymous reviewers for helpful comments on earlier drafts of this paper.
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Holmen, S. Direct Brain Interventions, Changing Values and the Argument from Objectification – a Reply to Elizabeth Shaw. Neuroethics 11, 217–227 (2018). https://doi.org/10.1007/s12152-017-9342-7
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DOI: https://doi.org/10.1007/s12152-017-9342-7