Abstract:An integrated and principled neuroethics offers ethical guidelines able to transcend conventional and medical reliance on normality standards. Elsewhere we have proposed four principles for wise guidance on human transformations. Principles like these are already urgently needed, as bio- and cyberenhancements are rapidly emerging. Context matters. Neither “treatments” nor “enhancements” are objectively identifiable apart from performance expectations, social contexts, and civic orders. Lessons learned from disability studies about enablement and inclusion suggest a fresh way to categorize modifications to the body (...) and its performance. The term “enhancement” should be broken apart to permit recognition of enablements and augmentations, and kinds of radical augmentation for specialized performance. Augmentations affecting the self, self-worth, and self-identity of persons require heightened ethical scrutiny. Reversibility becomes the core problem, not the easy answer, as augmented persons may not cooperate with either decommissioning or displacement into unaccommodating societies. We conclude by indicating how our four principles of self-creativity, nonobsolescence, empowerment, and citizenship establish a neuroethics beyond normal that is better prepared for a future in which humans and their societies are going so far beyond normal. (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)

In his thought-provoking article, John McMillan argues that the moral acceptability of offering surgical castration to imprisoned sex offenders depends partly on the state's intentions when making the offer.1 McMillan considers the situation where the prisoner will be detained for public protection for as long as he is considered dangerous and where the state and the offender both know that he may become non-dangerous sooner and qualify for early release if he accepts the offer of castration. Does the state, when (...) presenting the offender with the option of castration, intend him to choose this alternative? Does the state intend that the possibility of being released earlier from prison will induce him to accept castration? For McMillan, it seems that if the answer to either of these questions is ‘yes’ then the offer is morally unacceptable. However, McMillan maintains that ‘the state need not intend that sex offenders are castrated’, and need not intend offenders to accept castration because of the prospect of early release .1 He concludes that castration may be ethically defensible provided other conditions are also met .1While I am sympathetic to McMillan's claim that the state's intentions are morally significant, I believe that this claim requires more justification than he provides. McMillan argues that …. (shrink)

In several jurisdictions, sex offenders may be offered chemical castration as an alternative to further incarceration. In some, agreement to chemical castration may be made a formal condition of parole or release. In others, refusal to undergo chemical castration can increase the likelihood of further incarceration though no formal link is made between the two. Offering chemical castration as an alternative to further incarceration is often said to be partially coercive, thus rendering the offender’s consent invalid. The dominant response to (...) this objection has been to argue that any coercion present in such cases is compatible with valid consent. In this article, we take a different tack, arguing that, even if consent would not be valid, offering chemical castration will often be supported by the very considerations that underpin concerns about consent: considerations of autonomy. This is because offering chemical castration will often increase the offender’s autonomy, both at the time the offer is made and in the future. (shrink)

This issue of Criminal Law and Philosophy contains three papers on a topic of increasing importance within the field of "neurolaw"-namely, the implications for criminal law of direct brain intervention based mind altering techniques. To locate these papers' topic within a broader context, I begin with an overview of some prominent topics in the field of neurolaw, where possible providing some references to relevant literature. The specific questions asked by the three authors, as well as their answers and central claims, (...) are then sketched out, and I end with a brief comment to explain why this particular topic can be expected to gain more prominence in coming years. (shrink)

The possibility of neurotechnological interference with our brain and mind raises questions about the moral rights that would protect against the (mis)use of these technologies. One such moral right that has received recent attention is the right to mental integrity. Though the metaphysical boundaries of the mind are a matter of live debate, most defences of this moral right seem to assume an internalist (brain-based) view of the mind. In this article, we will examine what an extended account of the (...) mind might imply for the right to mental integrity and the protection it provides against neurotechnologies. We argue that, on an extended account of the mind, the scope of the right to mental integrity would expand significantly, implying that neurotechnologies would no longer pose a uniquely serious threat to the right. In addition, some neurotechnologies may even be protected by the right to mental integrity, as the technologies would becomepart ofthe mind. We conclude that adopting an extended account of the mind has significant implications for the right to mental integrity in terms of its protective scope and capacity to protect against neurotechnologies, demonstrating that metaphysical assumptions about the mind play an important role in determining the moral protection provided by the right. (shrink)

It is often said that the institutions of criminal justice ought or—perhaps more often—ought not to rehabilitate criminal offenders. But the term ‘criminal rehabilitation’ is often used without being explicitly defined, and in ways that are consistent with widely divergent conceptions. In this paper, we present a taxonomy that distinguishes, and explains the relationships between, different conceptions of criminal rehabilitation. Our taxonomy distinguishes conceptions of criminal rehabilitation on the basis of the aims or ends of the putatively rehabilitative measure, and (...) the means that may be used to achieve the intended end. We also explore some of the implications of each conception, some of the payoffs of a taxonomy of the kind we offer, and some areas for future work. (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)

This chapter explores whether chemical castration can be justified as a form of criminal punishment. The author argues that castration via the drug medroxyprogesterone acetate (MPA), or some similar drug, does not achieve the punishment aims of retribution, deterrence, or incapacitation, but might serve as punishment in the form of rehabilitative treatment. However, current U.S. chemical castration statutes are too broad to be justified as rehabilitative. The state is warranted in targeting psychological states in criminal defendants for rehabilitative treatment where (...) such states (a) act as a primary cause of a criminal offender’s crime and (b) give rise to extraordinary worries that the offender will recidivate. Current statutes qualify criminal offenders for castration who do not have overwhelming sexual urges or other psychological states causally related to their crime that may be treated with MPA. Thus, even assuming the efficacy of MPA, such statutes are unjustifiable because they apply chemical castration to offenders for whom castration will have no rehabilitative effect. (shrink)

According to a number of influential views in penal theory, 1 one of the primary goals of the criminal justice system is to rehabilitate offenders. Rehabilitativemeasures are commonly included as a part of a criminal sentence. For example, in some jurisdictions judges may order violent offenders to attend anger management classes or to undergo cognitive behavioural therapy as a part of their sentences. In a limited number of cases, neurointerventions — interventions that exert a direct biological effect on the brain (...) — have been used as aids to rehabilitation, typically being imposed as part of criminal sentences, separate treatment orders, or conditions of parole. Examples of such interventions include medications intended to attenuate addictive desires in substance-abusing offenders and agents intended to suppress libido in sex offenders.This chapter reviews some of the ethical issues raised by the use of neurointerventions as aids to rehabilitation. (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)

Direct brain intervention based mental capacity restoration techniques-for instance, psycho-active drugs-are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person's competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in criminal legal (...) contexts-i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has-in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership-and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities. (shrink)

'Brainjacking’ refers to the exercise of unauthorized control of another’s electronic brain implant. Whilst the possibility of hacking a Brain–Computer Interface (BCI) has already been proven in both experimental and real-life settings, there is reason to believe that it will soon be possible to interfere with the software settings of the Implanted Pulse Generators (IPGs) that play a central role in Deep Brain Stimulation (DBS) systems. Whilst brainjacking raises ethical concerns pertaining to privacy and physical or psychological harm, we claim (...) that the possibility of brainjacking DBS raises particularly profound concerns about individual autonomy, since the possibility of hacking such devices raises the prospect of third parties exerting influence over the neural circuits underpinning the subject’s cognitive, emotional and motivational states. However, although it seems natural to assume that brainjacking represents a profound threat to individual autonomy, we suggest that the implications of brainjacking for individual autonomy are complicated by the fact that technologies targeted by brainjacking often serve to enhance certain aspects of the user’s autonomy. The difficulty of ascertaining the implications of brainjacking DBS for individual autonomy is exacerbated by the varied understandings of autonomy in the neuroethical and philosophical literature. In this paper, we seek to bring some conceptual clarity to this area by mapping out some of the prominent views concerning the different dimension of autonomous agency, and the implications of brainjacking DBS for each dimension. Drawing on three hypothetical case studies, we show that there could plausibly be some circumstances in which brainjacking could potentially be carried out in ways that could serve to enhance certain dimensions of the target’s autonomy. Our analysis raises further questions about the power, scope, and necessity of obtaining prior consent in seeking to protect patient autonomy when directly interfering with their neural states, in particular in the context of self-regulating closed-loop stimulation devices. (shrink)

What if neurofeedback or other types of neurotechnological treatment, by itself or in combination with behavioral treatment, could achieve a successful “rewiring” of the psychopath’s brain? Imagine that such treatments exist and that they provide a better long-term risk-minimizing strategy compared to imprisonment. Would it be ethical to offer such treatments as a condition of probation, parole, or prison release? In this paper, I argue that it can be ethical to offer effective, non-invasive neurotechnological treatments to offenders as a condition (...) of probation, parole, or prison release provided that: the status quo is in no way cruel, inhuman, degrading, or in some other way wrong, the treatment option is in no way cruel, inhuman, degrading, or in some other way wrong, the treatment is in the best interests of the offender, and the offender gives his/her informed consent. (shrink)

In my reply to Wertheimer and Miller's paper on coercive offers and payment for research participation1 I claim that ‘… it's not unreasonable to suppose that there is another normative aspect to these cases, over and above the voluntariness of consent. While the parents of children at Willowbrook and the millionaire's mistress might have given consent that was voluntary and informed, they are still wronged by taking up this offer…’2 Furthermore, nowhere in my paper on surgical castration do I claim (...) that coercive offers invalidate consent,3 and I suggest that Bomann-Larsen has come closest to cashing this out correctly with her idea that ‘the wrongness of these coercive offers has more to do with the wilful creation of choices that take advantage of others vulnerabilities…’.4 So, it is puzzling that they object to my analysis of coercion and castration because coercive offers are not readily unpacked as a problem with consent. …. (shrink)

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment have conducted visits and written reports criticising the surgical castration of sex offenders in the Czech Republic and Germany. They claim that surgical castration is degrading treatment and have called for an immediate end to this practice. The Czech and German governments have published rebuttals of these criticisms. The rebuttals cite evidence about clinical effectiveness and point out this is an intervention that must be requested (...) by the sex offender and cannot occur without informed consent. This article considers a number of relevant arguments that are not discussed in these reports but which are central to how we might assess this practice. First, the article discusses the possible ways in which sex offenders could be coerced into castration and whether this is a decisive moral problem. Then, it considers a number of issues relevant to determining whether sex offenders are harmed by physical castration. The article concludes by arguing that sex offenders should not be coerced into castration, be that via threats or offers, but that there is no reason to think that this is occurring in the Czech Republic or Germany. In some cases, castration might be useful for reconfiguring a life that has gone badly awry and where there is no coercion, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment are mistaken about this being degrading treatment. (shrink)

Advances in neuroscience might make it possible to develop techniques for directly altering offenders’ brains, in order to make offenders more responsible and law-abiding. The idea of using such techniques within the criminal justice system can seem intuitively troubling, even if they were more effective in preventing crime than traditional methods of rehabilitation. One standard argument against this use of brain interventions is that it would undermine the individual’s free will. This paper maintains that ‘free will’ (at least, as that (...) notion is understood by those who adopt the influential compatibilist approach) is an inadequate basis for explaining what is problematic about some direct brain interventions. This paper then defends an alternative way of objecting to certain kinds of direct brain interventions, focusing on the relationship between the offender and the state rather than the notion of free will. It opposes the use of interventions which aim to enhance ‘virtue responsibility’ (by instilling particular values about what is right and wrong), arguing that this would objectify offenders. In contrast, it argues that it may be acceptable to use direct brain interventions to enhance ‘capacity responsibility’ (i.e. to strengthen the abilities necessary for the exercise of responsible agency, such as self-control). Finally it considers how to distinguish these different kinds of responsibility enhancement. (shrink)

Biomedical interventions, such as pharmacological and neurological interventions, are increasingly being offered or considered for offer to offenders in the criminal justice system as a means of reducing recidivism and achieving offender rehabilitation through treatment. An offender’s consent to treatment may affect decisions about diversion from the criminal justice system, sentence or parole, and so hope for a preferable treatment in the criminal justice system may influence the offender’s consent. This thematic analysis of three focus group interviews conducted in Canada (...) with members of the public investigates how the public views the use of biomedical treatments within the criminal justice system, and the practice of encouraging offender consent to biomedical treatment through the hope of a reduced criminal sentence. The public focus group discussions followed a semi-structured interview guide, and were based on two hypothetical case examples involving individuals choosing whether to consent to a range of cocaine addiction or anti-libidinal treatments respectively in the hope of receiving a more lenient sentence. The discussions covered a wide range of themes, and here we present the participants’ evaluations of this type of biomedical treatment offer in light of three key theoretical sentencing objectives: the promotion of public safety, the infliction of retributive punishment, and the rehabilitation of offenders. We conclude that public safety was the predominant concern of the participants when evaluating biomedical treatment offered at the time of sentencing to offenders who had committed serious crimes. Another important observation was that the public tended to reframe and evaluate biomedical interventions in terms of retribution and punishment, rather than rehabilitation and reform. (shrink)

It has been proposed that reoffending could be reduced by manipulating the neural underpinnings of offenders’ criminogenic mental features with what have been called neurocorrectives. The legitimacy of such use of neurotechnology – criminal neurorehabilitation, as the use is called – is usually seen to presuppose valid consent by the offenders subjected to it. According to a central criticism of nonconsensual criminal neurorehabilitation, nonconsensual use of neurocorrectives would express a degrading attitude towards offenders. In this article, I consider this criticism (...) of nonconsensual criminal neurorehabilitation. By using cases of autonomous persons who lead a subservient existence as an example, I propose that nonconsensual criminal neurorehabilitation need not express a more degrading attitude towards offenders than consensual criminal neurorehabilitation. The argument of this article does not show that nonconsensual criminal neurorehabilitation is morally or legally acceptable. Yet, in view of the argument, criticizing nonconsensual criminal neurorehabilitation for expressing a degrading attitude towards offenders is not compatible with simultaneously endorsing consensual criminal neurorehabilitation. (shrink)

This paper critically discusses the argument from objectification – as recently presented by Elizabeth Shaw – against mandatory direct brain interventions 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”. 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. (shrink)

Whether it is morally acceptable to offer rehabilitation by CNS-intervention to criminals as a condition for early release constitutes an important neuroethical question. Bomann-Larsen has recently suggested that such interventions are unacceptable if the offered treatment is not narrowly targeted at the behaviour for which the criminal is convicted. In this article it is argued that Bomann-Larsen’s analysis of the morality of offers does not provide a solid base for this conclusion and that, even if the analysis is assumed to (...) be correct, it still does not follow that voluntary rehabilitation schemes targeting behaviour beyond the act for which a criminal is convicted are inappropriate. (shrink)

Moral agential neuroenhancement can transform us into better people. However, critics of MB raise four central objections to MANEs use: It destroys moral freedom; it kills one moral agent and replaces them with another, better agent; it carries significant risk of infection and illness; it benefits society but not the enhanced person; and it’s wrong to experiment on nonconsenting persons. Herein, I defend MANE’s use for prisoners of war fighting unjustly. First, the permissibility of killing unjust combatants entails that, in (...) cases where MANE is equally or more likely as termination to reduce moral recidivism in unjust combatants, then MANE is morally justified. Second, the relevant infections and illnesses caused by MANE are less bad than death, so MANE leaves unjust POWs better off than the alternative. Third, just as incarceration is often permissible despite benefitting society but not the incarcerated, the same holds for unjust POWs. Fourth, we should accept a broader construal of “benefit” that includes moral benefits. Thus, 3 and 4 are false when applied to unjust POWs. Fifth, medical experimentation likely to help nonconsenting persons is sometimes permissible. Because MANE is likely to help unjust POWs irrespective of their consent or lack thereof, its use is permissible. Sixth, basic principles of proper medical care support the use of MANE on unjust POWs as pro tanto morally obligatory. I conclude that militaries should therefore begin to employ MANE for unjust POWs. (shrink)

Psychopathy is a disorder involving personality and behavioral features associated with a high rate of violent aggression and recidivism. This paper explores potential psychopharmacological therapies to modulate dysfunctional neural pathways in psychopaths and reduce the incidence of their harmful behavior, as well as the ethical and legal implications of offering these therapies as an alternative to incarceration. It also considers whether forced psychopharmacological intervention in adults and children with psychopathic traits manifesting in violent behavior can be justified. More generally, the (...) paper addresses the question of how to weigh the psychopath’s presumptive right to non-interference in his brain and mind against the public interest in avoiding harm. (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)

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)

Criminologists have long acknowledged the link between a number of cognitive deficits, including low intelligence and impulsivity, and crime. A new wave of research has demonstrated that pharmacological intervention can restore or improve cognitive function, particularly executive function, and restore neural plasticity. Such restoration and improvement can allow for easier acquisition of new skills and as a result, presents significant possibilities for the criminal justice system. For example, studies have shown that supplements of Omega-3, a fatty acid commonly found in (...) food such as tuna, can decrease frequency of violent incidents in an incarcerated population. Research has also begun to explore the use of selective serotonin reuptake inhibitors to reduce impulsivity in some violent offenders. However, there are significant legal and ethical implications when moving from dietary supplements to prescription pharmaceuticals and medical devices for cognitive intervention. This paper will explore the legal and ethical issues surrounding the use of pharmacological intervention on prisoners as an effort to reduce crime and 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)