Abstract
This chapter will discuss ethical issues connected with neuroscientific research on prisoners, focusing specifically on whether participating in such research should always be disregarded when making decisions about early release from prison. It was once routine in some jurisdictions for a prisoner’s participation in medical research to count as “good behaviour”, which could be given weight in decisions about early release. However, medical ethicists now widely regard this practice as ethically problematic, because prisoners might feel pressurised to participate in medical research programmes by the desire to escape a coercive and harsh prison environment, and thus their agreement to take part in the programme might not satisfy the freedom requirement for valid consent. Yet, there may be a tension between traditional medical ethics and theories of punishment (a tension which also arises in other contexts at the interface between medicine and punishment). From the perspective of retributive or communication/reform-based theories of punishment, it might seem unfair for parole boards to disregard willingness to participate in medical research, if the prisoner were motivated by altruistic considerations. This altruism might indicate that the prisoner “deserves” a shorter sentence or may be a sign that the prisoner has reformed. This chapter will consider whether/how this tension between traditional medical ethics and penal theories can be resolved. For example, if the medical research involves relatively safe interventions such as fish oil pills or transcranial direct current stimulation (tDCS), then the above-mentioned worries about prisoners’ ability to provide free consent may be less pressing than if the risks of side-effects were greater. Furthermore, the validity of consent also seems to depend partly on whether the prison conditions are humane or excessively harsh. In addition, problems also arise in this context from within penal theories. Ironically, transparency about what factors will be taken into account in decisions about early release, which would presumably be encouraged by communication/reform theories, could raise the possibility that the prisoner was motivated to participate in the research programme by a desire for early release rather than altruism, thus making it harder to determine whether participation is a genuine sign of reform.
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Notes
- 1.
People v Leopold and Loeb, Cook County Crim Ct III [1924]. Darrow’s speech is reprinted in McKernan (1989).
- 2.
There are areas of overlap between medical ethics and penal theory, arising from the fact that certain moral principles are relevant to both fields, such as respect for autonomy and the prohibition against inflicting unjustified harm. However, the medical ethics literature on this topic can be distinguished from the penal theoretic literature, as the former focuses primarily on issues such as the doctors’ duties to their patients, whereas an examination of the topic through the lens of penal theory would focus on the purposes of punishment.
- 3.
US v Brandt 2 T.W.C. 171.
- 4.
Ibid.
- 5.
These protections are intended to apply to all prisoners as a class (seemingly on the basis that imprisonment always places some limitation on autonomy and hence on the capacity to consent). They are not intended to apply to prisoners on a case-by-case basis commensurate with the extent of the particular individual’s capacity to consent.
- 6.
Henceforth: “International Ethical Guidelines (1982)”.
- 7.
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 United Nations Treaty Series 171 (ICCPR).
- 8.
Council of Europe. Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine. (Opened for signature 4 April 1997, entered into force 1 December 1999) Strasbourg: Council of Europe Publishing. ETS No.164.
- 9.
Council of Europe. Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research. (Opened for signature 25 January 2005, entered into force 1 December 2007) Strasbourg: Council of Europe Publishing. CETS No.195. Principles 48.1 and 48.2 respectively.
- 10.
The side effects noted in the text can persist after the treatment has stopped. Other side effects, such as hot flushes, depression and feminisation of the body may be limited to the duration of the treatment (Lewis et al. 2017). However, it should be noted that some offenders receive treatment for many years (Sifferd 2020).
- 11.
In Germany this practice has now effectively ceased (Council of Europe 2017). However, it remains legal: Law on Voluntary Castration and Other Methods of Treatment of 1969, ss2 and 3.
- 12.
For a discussion of whether providing such biomedical interventions to offenders is compatible with the European Convention on Human Rights see Shaw (2017).
- 13.
Additional DHHS Protections Pertaining to Biomedical and Behavioural Research Involving Prisoners as Subjects. 45 C.F.R. § 46.306(a)(2)(i)-(iv)—summarised in Reiter (2007).
- 14.
Other historical problems included: failure to ensure that the participants’ medical information was kept confidential; and conducting experiments that from the outset were unlikely to produce significant benefits for participants/wider society or whose benefits were not sufficient to justify the risks. However, these issues will not be discussed in the present chapter.
- 15.
The clearest example of an experiment that would be beneficial for the offender, is where the offender suffers from a serious disease, such as cancer, for which existing treatments have proven ineffective and participation in the trial of an experimental treatment provides the only hope for recovery. However, the decision to participate in such a trial would be irrelevant to considerations of reform/repentance as grounds for early release, so will not be discussed here.
- 16.
Although there are reasons discussed below why communication theorists might oppose prisoner experimentation, even if consensual.
- 17.
- 18.
Medical ethicists and penal theorists, regardless of which penal theory they subscribe to, might also oppose allowing a prisoner to consent to neurocorrectives that would seriously harm the prisoner overall, on the basis that (a) if the intervention really is so harmful, then there are reasons to suspect that that the recipient’s apparent consent is not genuine and (b) given the lessons from history, the state cannot be trusted to restrict their use of such harmful interventions only to prisoners who validly consent, so the state should be prohibited from ever using seriously harmful interventions. However, even if it could be shown that (a) and (b) were not the case, allowing prisoners to consent to seriously harmful interventions still arguably seems problematic, so the communication theorist’s explanation (outlined in the text) of why it would be problematic may seem attractive (at least to those who reject an alternative explanation, based simply on a paternalistic prohibition against seriously harming oneself in order to benefit others).
- 19.
Determining with precision which measures are appropriately connected to which crimes is also challenging in the context of traditional punishments—it is not a challenge that is unique to prisoner experimentation.
- 20.
Ryberg (2020) persuasively argues, that what is permissible in principle might be very different from what is permissible in practice under non-ideal conditions. Thus, although Ryberg is a strong proponent of the view that neurointerventions are permissible in principle, he casts doubt on whether it would be permissible to use them under the conditions that currently obtain in the US criminal justice system, due to the “irrationality” of many practices within that system (Ryberg 2020: 205). Similarly, the five prerequisites that I outline in this section for the permissibility of neurointerventions might need to be supplemented with further requirements depending on different practices in different jurisdictions. Indeed, in some jurisdictions whose current practices are particularly “irrational”, it might be impossible to implement enough reliable safeguards to make the use of experimental neurointerventions on prisoners ethically acceptable. This article has aimed to identify some of the most important necessary conditions for neuroscientific prisoner experimentation to be justifiable, rather than setting out sufficient conditions suitable for all jurisdictions.
- 21.
Lee was referring to amends made before the sentence was imposed (and did not commit himself to the view that this justified a reduced sentence), but the logic of this argument could also be applied to good behaviour during one’s sentence.
References
Appleman, L. 2020. The captive lab rat: Human medical experimentation in the carceral state 61 B.C.L. Rev. 61: 1.
Arboleda-Flórez, J., and D. Weisstub, 2013. Forensic research with the mentally disordered offender. In Ethical issues in prison psychiatry, ed. N. Konrad, B. Völlm, and D. Weisstub. Dordrecht: Springer.
Bomann-Larsen, L. 2013. Voluntary rehabilitation? On neurotechnological behavioural treatment, valid consent and (in)appropriate offers. Neuroethics 6: 65.
Bülow, William. 2018. Deserved delayed release? The communicative theory of punishment and indeterminate prison sentences. Criminal Justice Ethics 37 (2): 164.
Caruso, G. 2020. Rejecting retributivism: free will, punishment, criminal justice. New York: Cambridge University Press (in press).
Charles, A., A. Rid, H. Davies, and H. Draper. 2016. Prisoners as research participants: Current practice and attitudes in the UK. Journal of Medical Ethics 42 (4): 246.
Cornet, L., C. Kogel, H. Nijman, A. Raine, and P. Laan. 2014. Neurobiological changes after intervention in individuals with antisocial behaviour: A literature review. Criminal Behaviour and Mental Health 25 (1): 10.
Council of Europe. 2006. Recommendation of the Committee of Ministers to Member states on the European Prison Rules. Strasbourg: Council of Europe Publishing. Rec(2006)2.
Council of Europe. 2017. News. Germany: Uneven progress in treatment of detained persons and detention conditions, says anti-torture committee. (1st June 2017) https://www.coe.int/en/web/cpt/-/germany-uneven-progress-in-treatment-of-detained-persons-and-detention-conditions-says-anti-torture-committee Accessed October 26, 2020.
Dagan, N., and D. Sergev. 2015. Retributive whisper: Communicative elements in Parole. Law and Social Inquiry 3: 611.
Douglas, T. 2014. Criminal rehabilitation through medical intervention: Moral liability and the right to bodily integrity. Journal of Ethics 18 (2): 101.
Douglas, T. 2019. Nonconsensual neurocorrectives and bodily integrity: A reply to Shaw and Barn. Neuroethics 12 (1): 107.
Duff, A. 2001. Punishment, communication and community. Oxford: Oxford University Press.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 2009. Report to the Czech Government on the visit to the Czech Republic carried out by the European Committee for the prevention of torture and inhuman or degrading treatment or punishment. Strasbourg: Council of Europe Publishing. CPT/Inf (2010) 22.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 2012. Report to the German Government on the visit to the Germany carried out by the European Committee for the prevention of torture and inhuman or degrading treatment or punishment. Strasbourg: Council of Europe Publishing. CPT/Inf (2012) 6.
Fecteau, S., D. Knoch, F. Fregni, N. Sultani, P. Boggio, and A. Pascual-Leone, 2007. Diminishing risk-taking behavior by modulating activity in the prefrontal cortex: A direct current stimulation study. The Journal of Neuroscience 27 (46): 12500.
Firestone, P., Kevin L. Nunes, H. Moulden, I. Broom, and J. Bradford. 2005. Hostility and recidivism in sexual offenders. Archives of Sexual Behavior 34 (3): 277–283.
Fischer, J. 2006. My way: Essays on moral responsibility. Oxford: Oxford University Press.
Focquaert, F. 2014. Mandatory neurotechnological treatment: Ethical issues. Theoretical Medicine and Bioethics 35: 59.
Garnett, R. 1995. Why informed consent? Human experimentation and the ethics of autonomy. The Catholic Lawyer 36: 455.
Gostin, L. 2007. Biomedical research involving prisoners: Ethical values and legal regulation. JAMA 297: 737.
Gostin, L., C. Vanchieri, and A. Pope, The Institute of Medicine Committee on Ethical Considerations for Revisions to the Department of Health and Human Services Regulations for Protection of Prisoners Involved in Research. 2006. Ethical considerations for research involving prisoners. Washington, DC: The National Academies Press.
Greely, H., and N. Farahany. 2019. Neuroscience and the criminal justice system. Annual Review of Criminology 2: 451.
Greely, H. 2006. Neuroscience and criminal justice: Not responsibility but treatment. Kansas Law Review 1104.
Grubin, D. 2018. The pharmacological treatment of sex offenders. In The Wiley Blackwell Handbook of Forensic Neuroscience, ed. A. Beech A. Carter, R. Mann, and P. Rotshtein. Chichester: Wiley-Blackwell.
Hare, R. 1993. Without conscience: The disturbing world of the psychopaths among us. New York: The Guilford Press.
Haslam, S., S. Reicher, and M. Birney. 2016. Questioning authority: New perspectives on Milgram’s ‘obedience’ research and its implications for intergroup relations. Current Opinion in Psychology 11: 6.
Kolber, A. 2009. The subjective experience of punishment. Columbia Law Review 109: 192.
Lee, A. 2016. Defending a communicative theory of punishment: The relationship between hard treatment and amends. Oxford Journal of Legal Studies 37 (1): 217.
Levy, N. 2014. Psychopaths and blame: The argument from content. Philosophical Psychology 27 (3): 351.
Lewis, A., D. Grubin, C. Ross, and M. Das. 2017. Gonadotrophin-releasing hormone agonist treatment for sexual offenders: A systematic review. Journal of Psychopharmacology 31 (10): 1281.
McKernan, M. 1989. The amazing crime and trial of Leopold and Loeb. Notable Trials Library, Reprint Edition.
McMillan, J. 2014. The kindest cut? Surgical castration, sex offenders and coercive offers. Journal of Medical Ethics 40: 583.
McTernan, E. 2018. Those who forget the past: An ethical challenge from the history of treating deviance. In Treatment for crime: Philosophical essays on neurointerventions in criminal justice, ed. D. Birks, and T. Douglas. Oxford: Oxford University Press.
Moore, M. 1997. Placing blame. Oxford: Oxford University Press.
Morris, H. 1981. A paternalistic theory of punishment. Philosophical Quarterly 18 (4): 263.
O’Hear, M. 2011. Beyond rehabilitation: A new theory of indeterminate sentencing. American Criminal Law Review 48 (2): 1247.
Reiter, K. 2009. Experimentation on prisoners: Persistent dilemmas in rights and regulations. California Law Review 97: 501.
Royal College of Physicians. 2007. Guidelines on the practice of ethics committees in medical research with human participants. Available at: https://shop.rcplondon.ac.uk/products/guidelines-on-the-practice-of-ethics-committees-in-medical-research-with-human-participants?variant=6364998469. Accessed September 2020
Ryberg, J. 2020. Neurointerventions, crime, and punishment. Oxford: Oxford University Press.
Ryberg, J., and T. Petersen. 2013. Neurotechnological behavioural treatment of criminal offenders: A comment on Bomann-Larsen. Neuroethics 6: 79–83.
Schumacher, A., W. Sikov, M. Quesenberry, H. Safran, H. Khurshid, K. Mitchell, and A. Olszewski. 2017. Informed consent in oncology clinical trials: A brown university oncology research group prospective cross-sectional pilot study. PLoS ONE 12 (2): e0172957.
Shaw, E. 2014. Direct brain interventions and responsibility enhancement. Criminal Law and Philosophy 8 (1): 1.
Shaw, E. 2019. The right to bodily integrity and the rehabilitation of offenders through medical interventions: A reply to Thomas Douglas. Neuroethics 12: 97.
Shaw, E. 2017. Retributivism and the biomedical moral enhancement of offenders through brain interventions. In Moral enhancement: Critical perspectives, ed. M. Hauskeller, and L. Coyne. Cambridge: Cambridge University Press.
Shaw, E. (2018) The treatment of psychopathy: Conceptual and ethical Issues. In Neurolaw and responsibility for action, ed. B. Donnelly-Lazarov, P. Raynor, and D. Patterson. Cambridge: Cambridge University Press.
Sifferd, K. 2020. Chemical castration as punishment. In Regulating human mental capacity, ed. N. Vincent, T. Nadelhoffer, and A. McCay. Oxford: Oxford University Press.
Steffen, J. 2020. Moral cognition in criminal punishment. British Journal of American Legal Studies 9 (1): 143.
World Health Organization and the Council of International Organization of Medical Societies. 1982. Commentary to the international ethical guidelines for biomedical research involving human subjects. Guidelines 9, 12, and 13.
World Medical Association. 1962. Declaration of Helsinki—Ethical principles for medical research involving human subjects.
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Shaw, E. (2023). Should Prisoners’ Participation in Neuroscientific Research Always Be Disregarded When Making Decisions About Early Release?. In: Zima, T., Weisstub, D.N. (eds) Medical Research Ethics: Challenges in the 21st Century. Philosophy and Medicine, vol 132. Springer, Cham. https://doi.org/10.1007/978-3-031-12692-5_9
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