Article Text
Abstract
In this paper we examine one reason for rejecting the view that violent offenders should be forced to undergo neurotechnological treatments (NTs) involving such therapies as psychoactive medication to curb violent behaviour. The reason is based on the concern that forced treatment violates the offender's right to freedom of thought. We argue that this objection can be challenged. First, we present some specifications of what a right to freedom of thought might mean. We focus on the recently published views of Jared Craig, and Jan Cristopher Bublitz and Reinhard Merkel. Second, we argue that forcing violent offenders to undergo certain kinds of NTs may not violate the offender's right to freedom of thought as that right is specified by Craig, and Bublitz and Merkel. Third, even if non-consensual NT is used in a way that does violate freedom of thought, such use can be difficult to abandon without inconsistency. For if one is not an abolitionist, and therefore accepts traditional state punishments for violent offenders like imprisonment—which, the evidence shows, often violate the offender's right to freedom of thought—then, it is argued, one will have reason to accept that violent offenders can legitimately be forced to undergo NT even if doing so denies them the right to freedom of thought.
- Autonomy
- Coercion
- Confidentiality/Privacy
- Neuroethics
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Introduction
It is now well known that aggressive behaviour is influenced by our biology, including neuroanatomical abnormalities such as reduced neural tissue and neural connectivity in areas of the brain crucial for empathy and impulse control.1–3 Impulsive violence has been linked to serotonergic abnormalities in patients and criminals; and studies have shown that selective serotonin reuptake inhibitors can be used, with some success, in the treatment of aggressive behaviour.4 ,5
It therefore seems likely that treatments for violent offenders involving various kinds of neurotechnology will become increasingly viable, ideally leading to them rehabilitation in the sense of changing the offender for the better.i Neurotechnological treatments (NTs) may use stem cell transplants in the brain to compensate for the lack or loss of neuronal tissue. Alternatively, they might involve deep brain simulation or psychoactive drugs that alter brain function in a way that reverses the violent offender's lack of empathy and limited impulse control—or, more realistically, improves his or her empathy and impulse control.7–9 To a certain extent, the use of NT is already part of rehabilitation programmes.10 In several countries some violent sex offenders are being offered, for example, as a condition of parole, testosterone-lowering drugs in order to suppress or treat their problematic sex drives.11 In some US states (eg, Florida), sex offenders are forced, as part of their sentence, to undergo testosterone-lowering treatment.7 ,8
There is no doubt that these uses of NT raise many ethical challenges. For instance, are the technologies safe enough to use in a morally acceptable way?8 ,12 Do the benefits outweigh the costs? Is it morally wrong to use these technologies even if they are being offered to offenders as a condition of, say, parole?ii Would it be unacceptable simply to force an offender to undergo NT without offering reduced parole or some other concession as an incentive?15 In what follows, we focus on the last of these ethical concerns. More precisely, we shall examine the idea that violent offenders should not be forced to undergo psychopharmacological treatment because this would violate their right to freedom of thought.
In the section ‘What is freedom of thought, and does forced use of NT necessarily violate it?’ we present and critically discuss two specifications of the phrase ‘a right to freedom of thought’, as a preliminary to asking whether forced use of NT on violent offenders necessarily violates freedom of thought. We focus on the recently published views of Jared Craig, and Jan Cristopher Bublitz and Reinhard Merkel, on these subjects.16–19 We argue, first of all, that forced use of NT on violent offenders does not necessarily violate freedom of thought. However, in section ‘The problem of inconsistency’ we also argue that the position that forced use of NT on violent offenders does violate freedom of thought and is therefore morally wrong can be viewed as inconsistent if one already accepts that force can be legitimately used within the criminal justice system. Section ‘Conclusion’ sums up the findings.
What is freedom of thought, and does forced use of NT necessarily violate it?
Compared with other kinds of freedom, like freedom of speech, freedom of religion, political freedom and freedom from slavery, freedom of thought has until recently been largely neglected in the academic literature.iii Clearly, we need to specify the meaning of the phrase ‘a right to freedom of thought’ if we are to determine when that right is infringed or violated.iv In what follows we shall critically discuss some recent specifications of the meaning of a right to freedom of thought raised by scholars who have participated in the recent debate over the rehabilitation of violent offenders by forced use of NT. But first, as a background to this discussion, we will briefly present and evaluate what seems to us to be a common sense understanding of the right to freedom of thought.
As an example of a common sense understanding of freedom of thought we have the following formulation from Wikipedia: ‘Freedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought independent of others’ viewpoint’.22 v There is something intuitively appealing about the idea expressed here. You and I should be free to believe in, for example, atheism or Christianity, and to do so independently of what other people believe. But the problem with this initial specification is that our views on atheism and Christianity are presumably always influenced by other people's viewpoints. Every time we read a book, talk or argue with another person, go to the movies, or watch a commercial on television, our thoughts are influenced by someone else. On this view, then, it would make little sense to claim that people have a right to freedom of thought that ought not to be violated, since it in such a version would be constantly violated. However, as will be clear in what follows, scholars like Craig, and Bublitz and Merkel, who try to specify what they mean by freedom of thought, do not make the mistake of allowing a simple conversation or a mainstream movie to violate freedom of thought. After a short description of their different clarifications of the right to freedom of thought, we shall follow up with a discussion about whether the use of NT is necessarily a violation or infringement of this right.
First, according to Craig the right to freedom of thought—or, as he calls it, the right to mental integrity, or the right to mental self-determination—is a moral right that protects an inner sphere of liberty. According to Craig, this right protects human agency.19 Some of the core features of human agency that Craig mentions are autonomy competency, authenticity and self-authorship. Ordinary conversation, or reading, would not undermine human agency of this kind. If, for example, we focus on autonomy competencies such as ‘… the capacity to critically reflect and to make decision …’,19 it is obvious that an average conversation with others or watching a movie will not usually undermine our capacity to reflect critically or to make decisions. The same point applies to the features of authenticity and self-authorship.
Second, according to Jan C Bublitz and Reinhard Merkel we get the following description (embedded in moral concerns):First, to raise legal suspicion interventions into other minds must produce negative effects that substantially undermine mental self-determination. More concretely, worrisome interventions are those that reduce or impair cognitive capacities (eg, memory, concentration, willpower), alter preferences, beliefs and behavioral dispositions (eg, implanting false or erasing true memories, creating addictions), elicit inappropriate emotions (eg, artificially induced appetite) or clinically identifiable mental injuries.17
So permissible interventions are those, which do not undermine or diminish mental self-control: for example, ordinary conversation, rational argumentation, observation and the exchange of information. As examples of impermissible interventions, the authors cite brainwashing, decision manipulation, indoctrination and non-consensual neuroenhancement of offenders.vi
However, if we follow Craig, and Bublitz and Merkel, in their specifications of the right to freedom of thought, it becomes hard to see, as we shall discuss below, why all kinds of forced NT of violent offenders should be considered impermissible. To begin with, as several scholars have argued, NT could either be imposed without reducing or impairing cognitive capacities like autonomy competency and authenticity, or it could actually improve those mental capacities.19 ,24 First, let us present this kind of argumentation in relation to autonomy competency. Imagine that, by forcing a violent offender to take certain psychopharmacological drugs that will curb or silence his urge to harm other people, we will actually increase the offender's ability to think more freely and exercise concentration and willpower. Take, for instance, the sex offender who is obsessed with sex and for whom it is difficult to think of anything else. He may even lack the peace of mind that is necessary to think thoroughly about the idea that NT could improve his capacity to exercise freedom of thought. In addition, such a person may in fact welcome—at least in the long run—the fact that his thoughts have been changed so that he is freer to think about, and concentrate on, things other than sex.vii
Second, in relation to authenticity in having more control over his life, the violent sex offender will come to lead a life that may well be more authentic than before the intervention with NT: more authentic, that is, because he now lives a life in which it is easier to live in compliance with his true self, or at least with his own ideals about how he wants to live his life.viii It could, for example, be a way of life where he does not need to harm children in order to feel satisfaction. Instead he could be living the life he really prefers, one in which he can enjoy beer drinking, tennis and card playing, or take pleasure in nature or a non-violent sex life, rather than constantly thinking about violent sex. So, if what you are concerned about, when it comes to the use of forced NT, is freedom of thought (at least in the sense of autonomy competency and authenticity), you have good reason to be open to the possibility that the use of even forced NT on violent offenders may protect their freedom of thought, and improve it by enhancing the offender's ability to exercise that freedom.
We should here be aware that although it may be true that forcing violent offenders to undergo certain kinds of NT will not necessarily violate the offender's freedom of thought, it may very well be the case that other kinds of forced NT will do so. Where, as a result of NT, the offender is unable to think at all, or where his capacity for critical thinking and decision making has been largely destroyed, his right to freedom of thought is indeed violated.ix Once we have specified the right to freedom of thought, it is an empirical question whether a certain use of forced NT will be neutral, or impede, or promote, an offender's enjoyment of freedom of thought.
However, although forced use of NT, all things considered, may not decrease (and could indeed improve) the offender's core human agency or mental self-determination, it can still be argued that the mere fact that force is being used to change an offender's mind is enough to show that the offender's right to freedom of thought has been violated. As mentioned earlier, Bublitz and Merkel believe that forced use of NT on offenders is an impermissible intervention because it violates the offender's freedom of thought.x In the next section, we will critically discuss the views of Craig, and Bublitz and Merkel, and argue that even if forced NT on violent offenders is used in a way that violates freedom of thought, such use can be difficult to abandon without falling into an inconsistent position.
The problem of inconsistency
Imagine that you are not a punishment abolitionist: you already accept some forms of traditional state punishment like imprisonment for violent offenders. Accept, furthermore, the plausible claim that the prison environment of violent offenders often impedes the offender's capacity for core human agency or self-determination—and thereby limits their freedom of thought. There is at least some empirical support for this claim. Studies by Craig Haney have shown that violent offenders confined to prison suffer from an inability to initiate activity, chronic depression, loss of a sense of reality, hallucination and so on.27 xi It therefore appears that violent offenders confined to several years in prison will, as a result of their confinement, be unable to live, for example, an authentic life.
So on what basis could one accept forced imprisonment of violent offenders that violates freedom of thought, but reject forced, rehabilitative NT, which similarly violates freedom of thought? One could of course oppose any form of imprisonment of violent offenders that will threaten or impede their capacity for agency or their chances of living an authentic life, and at the same time be in favour of other forms of imprisonment that do not have these negative effects. This view is consistent: the endorsed form of imprisonment is not at odds with forced used of NT on violent offenders, as only the latter, but not the former, violates offenders' freedom of thought. But as violent offenders are often imprisoned for many years, it may well be impossible for even the most humane kind of imprisonment to live up to the claim that offenders do not have their freedom of thought violated. So let us accept that the worry about inconsistency must, at least initially, be considered seriously. However, if one could argue convincingly in favour of a moral relevant difference between forced imprisonment of violent offenders and forced use of NT on them, a consistent view might be established. In what follows we shall therefore present and critically discuss several attempts that have been made—first by Craig, and then by Bublitz and Merkel—to establish a morally relevant difference between these two non-consensual practices that can justify a difference in their moral assessment.
Craig argues, that even though what he calls DBIs (direct brain interventions)xii like the use of psychotropic drugs “… are proven safe and effective, there are significant …” ethically relevant differences between the effects of DBIs and incarceration.19 For a start, Craig mentions that “… some potential ethically relevant differences” are “… the difference in the degree, speed and permanence of the effects DBIs have on core features of human agency”.19 However, when it comes to the specification of these differences, and to an explanation of why such differences are morally relevant, Craig remains almost silent. This is unfortunate, for several reasons. First, as we have already seen, it is far from obvious that forced use of NT will have a more damaging effect on core features of human agency than incarceration. Second, if the focus is on rehabilitation, we have good reasons not to give a violent offender an indirect intervention (incarceration) if that will not rehabilitate the offender, instead of pursuing a direct intervention, such as NT, that will rehabilitate the person in a ‘… proven safe and effective’ way. Finally, it is far from obvious why we would wish a violent person to have a slow recovery (instead of a speedy recovery) and rehabilitation, especially if the intervention, following Craig's reasoning, has been proven to be safe and effective. One could here argue that something of value is lost if the offender drops out of the process of rehabilitation and instead, so to speak, jumps to a state where he is rehabilitated by means of NT. But the view is problematic. It may not be possible to rehabilitate the offender by, for example, psychological therapy, or he may not want to participate, or it may be that the only way to make the offender attend psychological therapy is by first forcing him to undergo NT. So the features of degree and speed as formulated by Craig do not seem to be good candidates for establishing a morally relevant difference between the use of force in imprisonment and the use of force in NT.
However, when it comes to the permanence of the effects that DBIs have on the right to mental integrity, and therefore on core features of human agency, Craig does appear to have a point: there does seem to be a morally relevant difference between the use of force with DBIs and with imprisonment. The argument goes like this: even though we know that imprisonment (like the use of DBIs) can permanently change core features of human agency, Craig claims that because the effects of imprisonment “… have been studied and are better understood” than the effects of DBIs, this difference speaks against the use of DBIs.19 However, this argument is problematic for a number of reasons. First of all, we should again note that some kinds of DBI do not permanently change the core of human agency. Typically, psychotropic drugs and deep brain stimulation (DBS) are used in a way that does not permanently alter the treated individual's core of human agency; they bring about alterations only when they are actually in use.25 So these interventions are not ruled out by Craig's argument. Second, in support of his claim that the effects of imprisonment are better understood than those of, for example, antidepressive medicines or DBS, Craig refers only to studies which reveal knowledge about the prison environment impact on inmates. But this is not fair, if we want to make the comparative claim Craig wishes to make. Although many DBIs are relatively new technologies, several studies have offered an understanding of the use of psychotropic drugs as well as DBS, and Craig does not refer to these or otherwise take them into account.25 ,30 So in order to assess the claim that we know more about the effect of imprisonment than the effect of NT—Craig needs to compare what is actually known about these interventions. It is not enough simply to refer to the fact that we know something about the impacts of imprisonment on offenders, and to stipulate that we know more about these impacts that we do about those associated with DBIs.
Furthermore, even if we do know more, in terms of effects, about imprisonment than we do about DBIs, the important thing, in considering the use of a technology, is whether we have enough knowledge to be sure that its use is proven safe and effective, as compared with other alternatives. Finally, Craig's whole argument here seems to be misplaced. Recall that Craig's point of departure was to point out morally relevant differences between the incarceration of offenders and the use of DBIs in cases where the use of NT has been proven safe and effective. However, if DBIs are proven safe and effective this can only be because we have studied their effects, and understood them, at a level where the impact and safety of NT has already been proven. So, Craig's way of reasoning is here literally a non-starter.
We turn, then, to the views of Bublitz and Merkel. Bublitz and Merkel distinguish between direct and indirect interventions in order to argue for the view that it is morally wrong to force violent offenders to undergo NT but morally acceptable to imprison them. Direct interventions ‘are those working directly on the brain (eg, psychoactive substances) …’,17 as NT typically does. Indirect interventions, by contrast, involve ‘stimuli which are perceived sensually (ie, heard, seen, smelled, felt)’.17 The prison environment is a good example of this second kind of intervention. It is clear that this distinction is intended to have moral significance. For example, Bublitz and Merkel write: “Legitimately changing opinions requires a particular modus—presenting reasons and evidence, in short: argument.” Direct “interventions which are clearly not interested in the level of argument… should disqualify as legitimate means to change another's opinion” and “… it would run against the essence of freedom of thought if direct interventions into thought processes were permissible”.17 Moreover, it is clear from their paper that the authors would consider non-consensual NT on violent offenders (a direct intervention) to involve a rights violation that should be punished by the criminal law.17
But Bublitz's and Merkel's view on forced use of NT seems to create at least two challenges. First, they claim that direct interventions through, for example, pharmacological means are negative, because they encompass ‘…the lowering of mental capacities and changes of preferences’,17 and therefore violate the right to mental self-determination. But again, this does not seem to fit very well with certain types of NT. Instead, as we argued in the section ‘What is freedom of thought, and does forced use of NT necessarily violate it?’, forced NT can be used to change an offender's preferences (eg, to increase the individual's control over his aggressive impulses, or to lower his sexual desires in a way that reduces the likelihood of recidivism), and such applications of NT can repair or improve the mental self-determination of the person receiving treatment. There is even the possibility, as we mentioned above, that an offender will become more open to indirect interventions, like argumentation and rational thinking, after receiving forced NT. Bublitz and Merkel could, of course, still claim that the individual's freedom of thought has been violated, and that this, looked at in isolation, is wrong. But if the key concern is about freedom of thought, and it is possible to improve a person's freedom of thought overall by violating it once, it is not obvious that such violation is morally problematic. And it may be consequentialist who on these grounds could argue in favour of forced use of NT. A deontologist of a moderate kind (or a non-absolute version of deontology) could accept that if enough is at stake, the constraint against violating a person's freedom of thought can be relaxed and overtrumped. This could, for example, be the case if the enforcement of NT on a violent offender would increase the offender's ability to exercise his right to freedom of thought, and secure the freedom of thought of those who will potentially fall victim to an offender if no treatment is given. On the other hand, if the forced use of NT would have less beneficial effects, like those just mentioned, one could, as a moderate deontologist, claim that the threshold for morally acceptable violations of the right to freedom of thought has not been reached or transgressed. However, although the challenge of identifying and arguing for the proper threshold to be applied in our case needs to be worked out in detail, in what follows, in order to have a well justified and moderate position of deontology, we shall focus on Bublitz's and Merkel's position on these matters.
We can begin by noticing that if freedom of thought is an absolute right, the forced use of NT on violent offenders would always be morally wrong. Initially, Bublitz and Merkel do not appear to believe that freedom of thought is an absolute right in the sense that such a right should never be trumped, since they accept that forced psychiatric interventions on non-autonomous patients can, as a last resort, be morally justified.16 ,17 xiii However, as already noted, Bublitz and Merkel, do seem at times to say that forced use of NT on offenders must never be violated. If this is their view, they should not be interpreted as consequentialists, nor should they be read as moderate deontologists, when it comes to a moral discussion of whether the state ought ever to force violent offenders to undergo NT. It appears, therefore, that Bublitz and Merkel would not accept that we should maximise freedom of thought by means of one violation of the freedom of thought.
The second challenge is that advocates of an absolutist view of the right to freedom of thought will be obliged to accept implications of their view which we have good reason to conclude are morally objectionable. For instance, if Bublitz's and Merkel's absolutist view is combined with their understanding of freedom of thought, it will follow that it is morally more important that a violent offender does not have, say, his memory, or concentration or willpower eroded, than it is to limit his will to act on violent urges by treating him with NT. However, it is unclear why we should accept that it is always morally wrong to limit an offender's freedom of thought, even somewhat, by non-consensual NT. Suppose, a serial killer, after receiving NT against his wishes, no longer has the will to kill people, and that everything else is equal. In this situation, it seems plausible to say that it is morally more important to protect a number of potential victims (and the offender himself) from his violent behaviour than it is to sustain his willpower at a level that facilitates his homicidal preferences. As we cannot always do both, we ought to do the former. Here, one could argue that the means of protecting innocent victims from a violent offender could just as well be forced imprisonment rather than forced NT. But this is not a convincing argument, since violent offenders can, and often do, harm other people during imprisonment: prison guards, co-inmates, teachers, visitors, and so on.32
We submit, then, that Craig, and Bublitz and Merkel, have not presented a plausible, morally relevant difference between forced imprisonment and forced use of NT—one that shows why only the former is morally acceptable.
Conclusion
We hope to have shown that if we follow Craig, and Bublitz and Merkel, in their specification of freedom of thought, forcing violent offenders to undergo certain kinds of NT will not necessarily violate the offender's right to freedom of thought. Instead, such intervention may increase the offender's opportunity to exercise their right to freedom of thought. We have also argued that even if non-consensual NT for violent offenders does indeed violate their freedom of thought, it is not obvious why we should believe this to be morally problematic. Our argument for this claim was based on the idea that if the authors are not against traditional imprisonment in principle, and if the evidence shows that this kind of punishment often violates the offender's freedom of thought, then we should not, in principle, be against forcing violent offenders to submit to NT.
Our investigation does not show that forcing violent offenders to undergo NT is morally acceptable. All we have argued is that objections to the use of forced NT based on the understandings of freedom of thought discussed in this paper do not succeed. In particular, it is possible that the freedom of thought objection to non-consensual use of NT on violent offenders can be recast in a more powerful form. Setting up a more defensible morally relevant difference between forced use of imprisonment and forced use of NT might evade the problems we have detected. But at present, whether this can be done remains to be seen.
Acknowledgments
Thanks to Jesper Ryberg, Kasper Lippert-Rasmussen, Sune Lægaard, Nils Holtug, Martin Marchman Andersen, Fatima Sabir, Søren Sofus Wichmann, Frej Klem Thomsen, Katrine Devolder, Rune Klingenberg Hansen, Tom Douglas and Areti Theofilopoulou for valuable comments.
References
Footnotes
Provenance and peer review Not commissioned; externally peer reviewed.
↵i ‘Better’ in relation to, for example, becoming a law-abiding person. Rehabilitation can involve interventions like drug rehabilitation, anger management and work education. See Bennett6 for further details of penal rehabilitation and the reasons we have for seeking to influence offenders by using such rehabilitation programmes.
↵ii See Bomann-Larsen13 for an affirmative answer to this question. For a critique of Bomann-Larsen, see Ryberg and Petersen.14
↵iv We here follow Kagan21 in his distinction between the violation and the infringement of a moral constraint. To violate a right in this sense is morally impermissible, whereas to infringe a right can be morally justified if enough value (eg, rights, well-being, desert or equality) can be secured by the infringement.
↵v See also ref. 23: ‘Everyone has the freedom of opinion … this right includes freedom to hold opinions without interference …’
↵vi See also Bublitz (ref. 16, p. 22) for a further comment on what is in focus of our paper ‘… due to its absolute nature [the right to mental self-determination], such interventions [coerced use of pharmaceuticals on offenders, defendants or witnesses] are not even allowed for highly laudable goals such as ‘moral enhancement’’.
↵vii See ref. 25 for the related view that forcing drug addicts to undergo treatment does in fact lead to an increase in autonomy competency for some offenders.
↵viii For more detailed discussion of the term ‘authenticity’ see example, ref. 26 in which the authors make a distinction between essentialist and existentialist specifications of authenticity, which is only hinted at in the above-mentioned text. According to the essentialist interpretations, the main idea is that a person is authentic if he does not himself depart from (or, by others, is made to depart from) who he truly is. However, on an existentialist interpretation, we do not have a true or fixed self but our self is created by our own ideals and life plans.
↵ix From a historical point of view, lobotomy seems to be a clear example of such an intervention.
↵x Craig on the other hand, does not seem to believe that forced use of NT on violent offenders is always morally wrong when he on page 113 says that: “Weighing and balancing the effects of DBIs in relation to the alternative prospect of incarceration might suggest that the net result of effects on human agency could be positive or negative.”19
↵xi However, see ref. 28 for a critical discussion of Haney's conclusions. See also ref. 29 for a study of 23 000 inmates that show that approximately 4% of the prison-population suffer from schizophrenia and 10% from severe depression, which is more than twice as much as the numbers for the non-prison population.
↵xii DBIs are drugs and devices that fit well with the specification we have given of NTs.
↵xiii Depending on how one defines an absolute right, Bublitz's and Merkel's view of the right to freedom of thought can be defined as an absolute right in the sense that people have a right to freedom of thought except in certain circumstances A and B (eg, if they are mentally ill and dangerous to themselves and others), but that people have that right in an absolute sense (it is always morally wrong to violate the right) in all other circumstances C, D and E, and so on. See, for example, Shafer-Landau31 for this and different ways to understand what is meant by an absolute right.