Introduction: Neuroscience and Society

Neuroscientific interventions are increasingly proposed as solutions for social problems, beyond their application in biomedicine. There is a significant debate surrounding the potential of drugs originally developed to treat neurological and neuropsychiatric illnesses for optimising cognitive capacities;^{Footnote 1} fMRI scans are used as evidence in court proceedings;^{Footnote 2} and antipsychotic medication is administered to enable accused criminals to stand trial, and be punished.^{Footnote 3} Biomedical technologies have always captured the imagination of society and it is unsurprising that neuroscience today is receiving significant attention. Not only is it an exciting and expanding field, producing innovations at rapid pace, but neuroscientific technology can also affect that which makes us who we are: our mental states, our moods, our thoughts, and our personality. As such, neuroscientific interventions often have, by their very nature, broader implications than their effects on illness and disease.

It is therefore understandable that those outside the field of neuroscience regularly speculate on its potential. Journalists, policymakers, and those commenting on developments in the biosciences, such as sociologists, lawyers, and philosophers, often consider the future possibilities of neuroscience, even well before these potential uses can be realized.^{Footnote 4} One recent example is the application of neuroscientific technologies—including drugs, various forms of brain stimulation, and brain computer interfaces—to problems concerning criminal justice; specifically, neurointerventions as alternatives to prison.^{Footnote 5} This issue is garnering increasing attention from outside commentators; therefore, the time is right to ask if neuroscience and those working at the intersection of neuroscience should engage more actively with such comments and suggestions.

Neuroscience and the Prison Crisis

It is well known that the treatment of criminal offenders is a serious problem for society: incarceration rates in the United States and other countries are rising,^{Footnote 6} and the capacities of the current prison systems cannot meet the rising demand adequately, with prison overcrowding as one important result.^{Footnote 7} Negative results of overcrowded prisons on inmates are well documented.^{Footnote 8}

In addition, rising incarceration rates also lead to corresponding rising costs in the justice system.^{Footnote 9} Moreover, and independent from the capacity problem, incarceration has knock-on effects for inmates and their families and communities, as well as for society at large.^{Footnote 10} It has also been argued that incarceration is ineffective in lowering crime rates overall, with substantial numbers of former inmates reoffending.^{Footnote 11}

A search for alternative punishments is ongoing in view of these facts. Recently, it has been suggested that we could harness neuroscientific and psychiatric advances in order to aid the rehabilitation of offenders and reduce recidivism.^{Footnote 12,Footnote 13} Although neuroscience has been applied in some areas of the legal system for some time now,^{Footnote 14} utilizing neuroscientific developments as an alternative to the punishment of offenders is still an emerging idea. Such neuropunishments are seen as a potentially more effective, less costly, and more humane alternative to prison incarceration, with overall better results for offenders, communities and societies.^{Footnote 15} In the following, these claims are analyzed and evaluated with the view to deciding whether neuropunishment should become a future research priority.

Neuropunishments as Alternatives to Incarceration

Neuropunishments: Arguments For and Against

The arguments in favor of administering neuropunishments to criminals are, for the most part, rather straightforward. Most obviously, neuropunishments as an alternative to incarceration could reduce the overcrowding of prisons, and they could reduce costs for the criminal justice system. In addition, however, if it were proven to be sufficiently safe and effective, it could be argued that neuropunishments would also be a more humane way to treat offenders, as they would minimize the disruption to their lives. Offenders could continue working and have family and social lives, and they could also continue caring for or supporting others. This, in turn, would have both financial as well as nonfinancial benefits for third parties, including children and other dependents, as well as for social welfare and tax systems.^{Footnote 29}

In comparison with incarceration, neuropunishments could also have fewer negative effects for society. Prison has socializing effects on inmates, with first-time offenders often being socialized, or “groomed,” for criminal careers. Moreover, spending time in prison can make it difficult for individuals to reintegrate successfully into society and find employment. Finding employment could still be difficult for those who are neuropunished, but prison-related socializing or grooming effects would not occur. In view of the evidence cited regarding the potential preventative effects of neuropunishments, it is also possible that they could reduce crime rates overall, particularly by reducing recidivism.

Further, neuropunishments could be offered to criminals on an optional basis. That is, the offender would have a choice between incarceration or receiving a drug under monitored conditions. Although some would argue that such a choice cannot be regarded as voluntary because of its “irresistible” nature,^{Footnote 30} it should be considered that there are many choices of an equally irresistible nature (such as the offer of receiving risky but lifesaving surgery), and we do not usually judge people, as a rule, to be coerced or incompetent to make such choices.^{Footnote 31}

A major problem when considering the potential advantages and disadvantages of neurointerventions for punishment is their stage of development. As stated, there is currently only limited evidence available regarding the safety, effectiveness, and potential risk–benefit ratios of administering neuropunishments, because they have not been trialed yet in real-world populations. As such, any benefits and advantages described so far remain speculative, as do potential risks and disadvantages. Although as SSRIs and DBS are of course in wide clinical use for their main applications, there is extensive evidence on the effects and risks in patients (and, with SSRIs, also in healthy volunteers).

There are also data available on the use of BCIs in patients and in research, although it is far more limited than the data for SSRIs and DBS.^{Footnote 32} However, further research is necessary in order to learn more about the efficacy and risks of applying all these technologies for punishment to offenders and prisoners. This leads to another cluster of challenges based on concerns from research ethics: Prison inmates are considered a vulnerable population because in a confined setting, they have few options, and are denied certain freedoms that noninstitutionalized persons enjoy. Prisons are described as “inherently coercive environments.”^{Footnote 33} Special concern has to be given to issues of consent in this population. Even in the case of offenders not yet committed to prison, arguments could be made that because of the nature of their situation, offenders might not be as free as other research subjects when considering participation in a trial on neuropunishments (although others might see this as an element of “restorative justice” in punishment). Furthermore initially, prospective neuropunishments would have to be tested on volunteering offenders. It might be appealing for offenders to participate in a trial to avoid or to be released from prison, even before it was actually established that these punishments have the intended effects. And if they were not entirely effective at preventing recidivism, this could result in neuropunishment research in fact elevating crime rates; namely through research trial populations consequently committing further crimes that would have been prevented had they been incarcerated.

A further problem with neuropunishments is that they are invasive interventions imposed by the state. It could be argued that such treatment amounts to a violation of offenders’ bodily and mental integrity, and, therefore, could be seen to be in conflict with their human dignity or basic human rights. A similar argument from the perspective of human rights, and human dignity, however, has also been levelled against prison, particularly where, because of overcrowding, underfunding, and understaffing, conditions are harsh and prisons unsafe for inmates.^{Footnote 34} In addition, if neuropunishments were only administered with the voluntary agreement of the offender, they would not violate bodily and mental integrity. Some rights can be waived, and an equivalent would be a patient voluntarily agreeing to receive surgery.

However, it could indeed be argued that neuropunishments, if available as an alternative to incarceration, should not be voluntary at all. Currently, offenders do not get a choice whether they go to prison or not, and offering such a choice could be seen as insufficiently punishing, or even an incentive to (re)offend. Against this it could be argued that neuropunishments, although not restricting movement like incarceration, do invade bodily and mental integrity, and this could indeed be regarded as the more severe interference with a person’s freedom. The two dimensions of punishment—restriction of movement, and intervention in bodily and mental integrity—are not commensurable; which one is worse remains an open question.

Notwithstanding this open issue, neuropunishments could be accused of being “soft on crime” and not providing a strong enough deterrent to criminals. They could also be considered to fail to “keep criminals off the streets” and therefore to fail to protect societies from criminal offenders. The first point could only be proven if neuropunishments were actually trialed on offenders. The prospect of brain surgery, which would be necessary for DBS, could be an equal, if not stronger, deterrent, but whether this would be the case with monitored drug use is wholly unclear. The latter issue could be circumvented if neuropunishments were used only in those determined not to be dangerous to others or society. This, however, would restrict the application of neuropunishments to less severe offenses. Some might argue against this, however, that more severe offenses would be a better case for a potential application of neuropunishments; this remains an open issue.

Finally, neuropunishment could be seen as an example of medicalizing social problems and making physicians use their medical skills for nonmedical goals. Physicians would not have to participate in monitored drug use, but would at least have to initially determine the appropriate drug and the right dosage for a particular individual. Implementation of DBS and BCIs requires specialized neurological, neurosurgical, and imaging expertise that only qualified physicians could provide. Like participation by physicians in prisoner interrogation, capital punishment, and torture, practicing medicine this way, as part of the justice system, could be seen as contrary to the proper goals of medicine and as violating principles of medical ethics,^{Footnote 35} or as contrary to the role of medicine as a public good.^{Footnote 36} Others, however, could argue that there is no consensus on the proper role and goals of medicine and that these have remained controversial. Second, they could state that physicians have always, and indeed should, practice their medical skills for social reasons, as is the case, for example, in public health. The current prison crisis, pushing this argument further, could indeed be seen as a public health crisis, and physicians helping alleviate it by providing the medical means necessary for neuropunishment would therefore not violate the proper goals of medicine.