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Retributivism and the Moral Enhancement of Criminals Through Brain Interventions

  • Elizabeth Shaw (a1)

Abstract

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 (as opposed to purely therapeutic) purposes. For instance, Jesper Ryberg argues (although he himself is not a retributivist) 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.

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References

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1 Farah, M. J., ‘Emerging Ethical Issues in Neuroscience’, in Glannon, W. (ed.), Defining Right and Wrong in Brain Science (New York: Dana Press, 2008) 16–36, 26.

2 See Ryberg, J., ‘Is Coercive Treatment of Offenders Morally Acceptable? On the Deficiency of the Debate’, Criminal Law and Philosophy 9:4 (2015), 619631.

3 Ryberg, J., ‘Punishment, Pharmacological Treatment, and Early Release’, International Journal of Applied Philosophy 26:2 (2012), 231244.

4 The literature on pharmacological treatment of sex offenders and the ECHR generally does not specifically consider the use of such treatments for retributive purposes. An exception is Z. B. Akbaba, The Permissibility of Pharmacotherapy for Paedophilic Sex Offenders In the Light of the Rights Protected Under the European Convention on Human Rights (Ph.D. Thesis, University of Leicester, 2015).

5 E.g., California (Cal. Pen. Code § 465), Florida (Fla. Stat. § 794.0235 [1997]), and Louisiana (La. Stat. Rev. Ann. § 15.538 [1997]). This is sometimes referred to as “chemical castration”, but the neurological effects of these drugs on sex offenders' thought-processes are considered to be at least as important as the effect on sexual functioning. Scott, C. and Holmberg, T., in ‘Castration of Sex Offenders: Prisoners' Rights Versus Public Safety’, Journal of the American Academy of Psychiatry and the Law 31:4 (2003), 502509, and Mancini, C., Barnes, J. C., and Mears, D. P., ‘It Varies from State to State: An Examination of Sex Crime Laws Nationally’, Criminal Justice Policy Review 24:2 (2013), 166198, provide overviews of the relevant statutes.

6 Money, J., ‘Treatment Guidelines: Antiandrogen and Counseling of Paraphilic Sex Offenders’, Journal of Sex & Marital Therapy 13:3 (1987), 219223, 220.

7 Forsberg, L. and Douglas, T., ‘Anti-Libidinal Interventions in Sex Offenders: Medical or Correctional?’, Medical Law Review 24:4 (2017), 453473, 460.

8 Forsberg and Douglas, ‘Anti-Libidinal Interventions', 460–465.

9 Cal. Pen. Code § 465.

10 Cal. Pen. Code § 465(a).

11 Cal. Pen. Code § 465(b).

12 Cal. Pen. Code § 465(d).

13 Assembly Bill 3339 and Cal. Pen. Code § 465.

14 Forsberg and Douglas, ‘Anti-Libidinal Interventions’, 465.

15 Fla. Stat. § 794.0235 (1997).

16 Tran v. State, 965 So. 2d 226 (Fla. Dist. Ct. App. 2007).

17 Fla. Stat. § 794.0235 (1997) and La. Stat. Ann. § 15.538 (1997).

18 Mental Health Act 1983 (as amended by the Mental Health Act 2007). § 63 permits non-consensual interventions except psychosurgery, hormone implants, electro-convulsive therapy and psychiatric medications lasting more than three months. § 58 permits non-consensual psychiatric medications lasting more than three months, provided that the requirements concerning approval by two medical practitioners are met.

19 MHA 1983 § 1.

20 See, e.g., Kendell, R. E., ‘The Distinction Between Personality Disorder and Mental Illness’, British Journal of Psychiatry 180:2 (2002), 110115.

21 Harrison, K. and Rainey, B., ‘Suppressing Human Rights? A Rights-Based Approach to the Use of Pharmacotherapy with Sex Offenders’, Legal Studies 29:1 (2009), 4774, 62.

22 Forsberg and Douglas, ‘Anti-Libidinal Interventions’, 458.

23 Forsberg and Douglas, ‘Anti-Libidinal Interventions’, 465–471.

24 This third factor does not, by itself, clearly support Forsberg and Douglas' claim that the purpose of these interventions is ‘correctional’ (i.e., pursuing the aims of criminal justice), unless the treatment of dangerous non-offenders is also correctional.

25 Criminal Procedure (Scotland) Act 1995 § 57a.

26 Mental Health (Care and Treatment) (Scotland Act) 2003 § 328.

27 CP(S)A 1995 § 57a.

28 CP(S)A 1995 § 64 (5) (d).

29 Mental Welfare Commission for Scotland, Statistical Monitoring: Mental Health Act Monitoring 2015–16: www.cqc.org.uk/sites/default/files/20161122_mhareport1516_web.pdf; Ministry of Justice, Statistics of Mentally Disordered Offenders: England and Wales 2008: https://www.gov.uk/government/statistics/statistics-of-mentally-disordered-offenders-ns.

30 Chahal v UK (1997) 23 EHRR 413, at paragraph 80.

31 See E. Shaw, ‘The Right to Bodily Integrity and the Rehabiliation of Offenders’, Neuroethics: https://doi.org/10.1007/s12152-016-9277-4, which opposes mandatory interventions.

32 Pretty v the United Kingdom (2002) 35 EHRR 1, at paragraph 52.

33 Yankov v Bulgaria (2003) 40 EHRR 36.

34 Tyrer v UK (1979–1980) 2 EHRR 1, at paragraph 23. Regarding the ‘sound reasons’ qualification see Webster, E., ‘Degradation: A. Human Rights Perspective’, in Kaufman, P., Kuch, H., Neuhauser, C., and Webster, E. (eds), Humiliation, Degradation, Dehumanization: Human Dignity Violated (London: Springer, 2011), 6784, 75.

35 (1991) 15 EHRR CD 100.

36 (1978) 2 EHRR 1, paragraph 33.

37 In Herczegfalvy v Austria, the ECtHR held that ‘as a general rule’ involuntary medical treatment is compatible with article 3, provided that the medical necessity for the treatment has been convincingly shown to exist. However, this case involved a non-capacitous offender, so it is not clear whether medical necessity is enough for involuntary treatment of competent offenders to be compatible with article 3.

38 (1992) 15 EHRR 437.

39 Bartlett, Peter, ‘The Necessity Must Be Convincingly Shown to Exist: Standards for Compulsory Treatment for Mental Disorder Under the Mental Health Act 1983’, Medical Law Review 19:4 (2011), 514547, 525.

40 For a useful discussion of these issues see: Z. B. Akbaba, The Permissibility of Pharmacotherapy for Paedophilic Sex Offenders In the Light of the Rights Protected Under the European Convention on Human Rights  (Ph.D. Thesis, University of Leicester, 2015).

41 Moore, M., Placing Blame: A Theory of the Criminal Law (New York: Oxford University Press, 2010), 28.

42 Kant, I., The Metaphysics of Morals, trans. by Gregor, Mary (Cambridge: Cambridge University Press, 1991), 141.

43 Rainey, B., ‘Human Rights and Sexual Offenders’, in Harrison, K. and Rainey, B. (eds), The Wiley-Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management (Oxford: Wiley-Blackwell, 2013), 1837.

44 Berryessa, C., Chandler, J., and Reiner, P., ‘Public Attitudes Toward Legally Coerced Biological Treatments of Criminals’, Journal of Law and the Biosciences 3:3 (2016), 447467.

45 Wood, J. and Viki, G., ‘Public Attitudes Towards Crime and Punishment’, in Adler, J. (ed.), Forensic Psychology: Debates, Concepts and Practice (Cullompton: Willan, 2004), 1636.

46 R v Smith 1 S.C.R. 1045 (1987).

47 Hirst v the United Kingdom (No. 2) [2005] ECHR 681.

48 Ryberg, ‘Punishment, Pharmacological Treatment, and Early Release’.

49 Ryberg, ‘Punishment, Pharmacological Treatment, and Early Release’, 239.

50 Ryberg (‘Punishment, Pharmacological Treatment, and Early Release’, 240) touches on the issue of how retributivists would assess whether offenders had experienced the appropriate amount of suffering. A retributivist would not wish to offer an offender a biomedical intervention in exchange for early release if that would inflict too little suffering. In order to work out at what point to grant a prisoner who had accepted treatment early release, the retributivist would need to know how much drug-induced suffering was equivalent to suffering the offender would have experienced during the portion of his prison sentence he would otherwise have served. Ryberg sees no difficulty in making such comparisons, since retributivists already need to compare different kinds of sentences, e.g., prison versus community service.

51 Primoratz, I., ‘Punishment as Language’, Philosophy 64:248 (1989), 187205, 199–200.

52 See footnote 40 and cited text.

53 Some retributivists deny that rehabilitation is technically “punishment”, but accept that it can be legitimate if it is classified as something else, e.g., “correction”. These retributivists could not object on retributive grounds to moral enhancement if imposed as a form of correction.

54 R. Duff, ‘Legal Punishment’, in The Stanford Encyclopedia of Philosophy (2008): https://stanford.library.sydney.edu.au/archives/spr2008/entries/legal-punishment/.

55 Duff, R., Punishment, Communication, and Community (New York: Oxford University Press, 2000).

56 Duff, Punishment, Communication, and Community.

57 Bennett, C., ‘Précis of “The Apology Ritual”’, Teorema 31:2 (2012), 7394.

58 Bennett, ‘Précis of “The Apology Ritual”’.

59 Bennett, C., ‘Penal Disenfranchisement’, Criminal Law and Philosophy 10:3 (2016), 411425.

60 For instance, Kant, after endorsing the death penalty for murder, maintains that the way this punishment is carried out ‘must still be freed from any mistreatment that could make the humanity in the person suffering it into something abominable’ (Metaphysics of Morals, 474). This constraint on the types of acceptable punishment does not seem to follow directly from the essential tenets of retributivism.

61 Duff, Punishment, Communication and Community, 22.

62 Ryberg, ‘Punishment, Pharmacological Treatment, and Early Release’, 234.

63 For a discussion of similar considerations, see Von Hirsch, A. and Ashworth, A., Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2005).

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