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Retributivism and the Moral Enhancement of Criminals Through Brain Interventions

Published online by Cambridge University Press:  16 October 2018

Elizabeth Shaw
Elizabeth Shaw*
Affiliation:
University of Aberdeen
*
eshaw@abdn.ac.uk
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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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Papers
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Royal Institute of Philosophy Supplements , Volume 83: Moral Enhancement: Critical Perspectives , October 2018, pp. 251 - 270
Copyright
Copyright © The Royal Institute of Philosophy and the contributors 2018 

1. Introduction

Currently, research is being undertaken into whether anti-social and criminal behaviour can be addressed through biomedical interventions that modify offenders’ brains. Such interventions are already being used within the criminal justice system in order to rehabilitate drug addicts and sex offenders. The use of biomedical interventions to improve impulse control and reduce aggression is also being investigated. These interventions can be viewed as forms of “moral enhancement”, as they aim at correcting immoral, criminal behaviour. Although legislators and policy-makers often conceptualise such interventions as “treatments” for mental disorders, the line between treatment and enhancement is increasingly blurred. Some of the interventions that are currently used and being investigated seem primarily to target behaviour that is ‘medically unremarkable, but socially undesirable’.Footnote 1

However, the moral permissibility of such interventions is typically assessed from the perspective of medical ethics, rather than by reference to penal theory.Footnote 2 Given that brain interventions can be imposed as a mandatory part of a criminal sentence or (more commonly) offered as an alternative to prison, it is surprising that penal theoretical considerations have not played a greater role in the current debate about the acceptability of these practices. One of the most widely accepted theories of punishment is retributivism – the theory that punishment should aim to cause offenders the suffering that they deserve. Until the 1970s, the rehabiliationist approach – which aimed to modify offenders’ criminal tendencies – was highly influential. Retributivists were among the fiercest critics of these programmes and, since the 1970s, retributive thinking has gained the ascendency in the UK and US. It is therefore important to consider whether similar retributivist arguments can be successfully levelled against current proposals to reshape offenders’ motivations through biomedical interventions.

Neuroscientific advances may give rise to brain interventions that are much more effective at reducing criminal tendencies than previous rehabilitation techniques. If effective techniques to prevent victimisation were developed, then much suffering could be avoided. Such techniques could also generate large economic savings, given that crime is economically very costly and traditional forms of punishment are both expensive and relatively ineffective at preventing recidivism. So there is good reason to consider whether these interventions are compatible with our most plausible ethical theories and with human rights.

Jesper Ryberg has recently argued that there is nothing to prevent retributivists from endorsing brain interventions as a legitimate form of retributive punishment.Footnote 3 However, 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.Footnote 4 This chapter will begin by considering whether there is any indication that such interventions are being used at present as a form of retributive punishment, whether this would violate the European Convention on Human Rights, and whether there is a realistic chance that brain interventions might be used in this way in the future. I will then examine different versions of retributivism that give rise to different types of objection against brain interventions. I will argue that the versions of communicative retributivism defended by Antony Duff and Christopher Bennett are in the best position to oppose the idea of using these interventions without the free and informed consent of the recipients (although Duff and Bennett have not yet discussed the implications of their theories of punishment for this question). Finally, I will consider whether offering these interventions as an alternative to punishment would violate principles of proportionality.

2. Are Brain Interventions Currently Being Used as Retributive Punishments?

In a number of US states sex offenders can be sentenced to injections with anti-androgen drugs.Footnote 5 This can be viewed as a type of brain intervention, as one of the effects of the drugs is to reduce sexual thoughts by directly acting on brain cells.Footnote 6 Tom Douglas and Lisa Forsberg have suggested that, in California, the state's aim in imposing this medication ‘seems to involve a mixture of retribution and deterrence’.Footnote 7 They cite a number of factors that indicate that this practice is punitive rather than therapeutic.Footnote 8 Firstly, the legislation governing the provision of these interventions to offenders is part of California's penal code.Footnote 9 Secondly, the decision to administer the drug is at the discretion of the judge the first time a criminal commits a specified sex offenceFootnote 10 and is mandatory for a second such offence.Footnote 11 If the intention were therapeutic rather than punitive one would expect the intervention to be conditional on a medical professional's opinion that the offender is likely to benefit from the treatment (since sexual offending has many causes and the simple fact that someone has committed a particular crime is not enough evidence on which to base a diagnosis that the offender has a paraphilia that is responsive to anti-androgen drugs). Thirdly, criminal justice officials decide on the duration of the treatment.Footnote 12 If the intervention were therapeutic, one would expect the cessation of the treatment to be based on the opinion of medical professionals about whether the treatment had been successful. Fourthly, there is not even a statutory requirement for the procedure to be carried out under medical supervision, or for medical professionals to be involved in any way. Fifthly, the original Bill used the phrase ‘punished by chemical castration’ and, although this phrase was removed, the wording of the Act refers to anti-androgen drugs ‘in addition to any other punishment’, which still suggests that the legislators intended such drugs to be a type of punishment.Footnote 13 Sixthly, some of the legislators who supported the Bill used punitive rhetoric when it was debated.Footnote 14

Similar provisions apply in a few other US states. In Florida, the court order mandating anti-libidinal drugs must specify the duration of the intervention in advance – like a traditional punishment, rather than a treatment that lasts until the patient is ‘cured’.Footnote 15 Furthermore, the Florida District Court has held that chemical castration is part of the offender's ‘punishment package’, as opposed to being a ‘pure treatment’.Footnote 16 In Louisiana (where the criminal himself must cover the financial costs of being injected with the chemical castration drugs) and Florida, offenders are sentenced to receive anti-libidinal interventions at the same time as incarceration, rather than as condition of parole.Footnote 17 This may suggest that the administration of these drugs has a retributive purpose, rather than simply being based on the need to protect the public after the offender has been released.

In England and Wales, under the Mental Health Act 1983 (MHA 1983), criminal courts can sentence mentally disordered offenders to detention in hospital, where they may be given compulsory interventions, even if they have the capacity to refuse consent.Footnote 18 The term ‘mental disorder’ is defined widely, covering ‘any disorder or disability of the mind’.Footnote 19 This is broad enough to include sexual deviance as well as personality disorders, such as antisocial personality and psychopathic personality disorder, even though there is controversy over whether these are genuine mental disorders, as opposed to harmful behaviours and socially undesirable character traits.Footnote 20 According to Harrison and Rainey the legislation is ‘predicated on social control rather than individual treatment’.Footnote 21 Forsberg and Douglas acknowledge that, unlike the Californian legislation, the regime for medicating sex offenders in England and Wales does not seem to have a clearly retributive aim. However, they deny that it has an entirely therapeutic objective either. They claim it has a partly ‘correctional purpose’ – i.e., it is intended to realise some of the other goals of the criminal justice system, such as crime prevention.Footnote 22 They cite the following considerations to support this claim.Footnote 23 Firstly, offenders can be sentenced to hospital detention (and once detained there, capacitous offenders can be given certain brain interventions without their consent). Secondly, the Secretary of State, rather than a Mental Health Professional, makes the decision about when certain offenders may be discharged from hospital. Thirdly, one of the grounds for compulsory treatment is the protection of third parties, rather than the patient's benefit. (However, it should be noted the protection of third parties ground for compulsory treatment of mental disorders applies equally to offenders and non-offenders.)Footnote 24

In Scotland, courts can sentence mentally disordered offenders to treatment.Footnote 25 The definition of mental disorder is as broad as the equivalent definition in England and Wales.Footnote 26 In Scotland an interesting distinction is drawn between the involuntary treatment of individuals involved in criminal proceedings and individuals who have not been prosecuted, which might reflect retributive thinking. Offenders with mental disorders, who are rational enough to be held criminally responsible and who retain the capacity to give and withhold consent can nevertheless be subjected to involuntary treatment for their mental disorders.Footnote 27 In contrast, mentally disordered individuals who are not involved in criminal proceedings can only be given involuntary treatment if their decision-making capacity is substantially impaired.Footnote 28 A retributivist might justify this distinction by arguing that offenders, because of their culpable choice to commit crimes, have lost the right to refuse consent to such treatments and so their decision-making capacity can be ignored. It might be objected that this distinction could be based on the need for public protection (rather than retribution) and that offenders are simply considered more dangerous than non-offenders. However, in response, the category of “non-offenders” includes individuals who have committed violent acts, but cannot be prosecuted because they were clearly not rational enough at the time of the act to be held criminally responsible.

Official statistics show that hundreds of offenders in the United Kingdom are sentenced each year to hospital detention and treatment.Footnote 29 However, unfortunately there are no publically available statistics on how many capacitous offenders have been forced to receive treatment against their will.

To summarise: In a number of US states biomedical interventions are already being used as punishments. The legislation governing these interventions suggests they have a partly retributive purpose. Currently, in the UK, brain interventions are being imposed on offenders partly in order to achieve “correctional” objectives, but retributive reasons do not (yet) seem to play a major role.

3. Would the Use of Brain Interventions as Retributive Punishments Violate Article 3 of the European Convention on Human Rights?

Article 3 of the European Convention on Human Rights prohibits ‘in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct’.Footnote 30 Even offenders who have committed serious crimes do not forfeit this right. Few theorists would advocate giving offenders brain interventions that would cause such severe suffering as to constitute torture. However, there is a range of possible brain interventions with mild to moderate side effects, such as anti-depressants and anti-libidinal medications. Certain interventions are minimally invasive, e.g., transcranial direct current stimulation, which involves electrically stimulating brain regions by placing a device outside the skull. Some theorists have argued that using brain interventions as punishments can objectify offenders, failing to respect them as persons, even if the interventions do not have particularly severe side effects.Footnote 31 On this view the concept of ‘degrading treatment’ seems most relevant. The European Court of Human Rights (ECtHR) defines ‘degrading’ to include treatment that ‘debases’ by showing ‘a lack of respect for dignity’.Footnote 32

For article 3 to be engaged, the treatment must meet a certain threshold of severity. This does not require harm to health. For instance, shaving a prisoner's head constituted degrading treatment.Footnote 33 It can be enough that the victim feels humiliated ‘only in his eyes’, provided he has sound reasons for feeling this.Footnote 34 However, surprisingly, in Grare v France the Commission decided that the threshold of severity had not been met in the case of a patient whose mental disorder had been treated using antipsychotics with distressing side effects (including trembling, hypertension, and visual disturbances), regardless of whether the patient consented to the treatment.Footnote 35

This decision could be criticised on the basis that the Commission should have placed more weight on the issues of consent, capacity, and violation of mental and bodily integrity. Arguably, forcing a capacitous person to receive mind-altering drugs itself shows lack of respect for dignity, even if the side effects are not severe. It is plausible that this invasion of mental and bodily integrity could also justifiably cause someone to feel humiliated. This is particularly likely if the purpose of the intervention is to address criminal behaviour (which was not the purpose of the treatment in Grare), given the stigma surrounding the combination of mental health issues and criminality. In Tyrer v UK (which involved punishment by birching a juvenile offender convicted of a violent crime) the Court held that the applicant had been subjected to degrading punishment, partly because that punishment involved ‘institutionalised violence’ which constituted an ‘attack on […] physical integrity’ in addition to possible psychological harm.Footnote 36 However, the use of brain interventions as a form of punishment might be distinguished from the corporal punishment in Tyrer on the basis that it might not be administered in a “violent” manner and may be given for a combination of retributive and therapeutic purposes (discussed below).

In Dvořáček v Czech Republic, the ECtHR held that the administration of anti-libidinal drugs to a sex offender was compatible with article 3, but pointed out that it did meet the relevant threshold of severity and also emphasised the importance of consent in the context of that case.Footnote 37 It may be that, in future cases, the Court will regard consent as essential if the intervention addresses criminal behaviour. However, it is hard to predict how the ECtHR's jurisprudence will develop in this area, as the Court has not provided a set of necessary and sufficient conditions for compatibility with article 3.

Retributive punishment is typically imposed on offenders without giving them any choice in the matter. If the ECtHR continues to adopt the consent-based approach adopted in Dvořáček, then imposing brain interventions as a mandatory form of retributive punishment would appear to violate article 3. However, it is arguably consistent with retributivism to give offenders the choice between different punishments that are of roughly equal severity. The ECtHR stated that the difficult choice that Dvořáček faced between drug therapy and a longer time in hospital did not render his consent invalid. Therefore offering a hard choice between brain interventions and a more traditional form of punishment, e.g., incarceration, may not by itself violate article 3.

In cases involving both capacitous and non-capacitous offenders, the ECtHR has emphasised the importance of providing convincing evidence that the intervention is a ‘medical necessity’.Footnote 38 Bartlett has noted that the idea of ‘medical necessity’ is vague.Footnote 39 For the purposes of this chapter the following questions arise. Firstly, as noted above, some of the interventions that are offered to offenders might be regarded as “moral enhancements” – interventions that aim to increase conformity with moral and legal standards – rather than treatments. Can immoral, antisocial, or criminal behaviour qualify as a “medical” condition? Secondly, can “medical necessity” include conferring a psychological benefit on the individual, e.g., enhancing autonomy, even if the intervention does not, strictly speaking, treat a disorder? Thirdly, if a brain intervention is imposed for the purpose of retributive punishment, does this mean that it has not been given out of medical necessity? Would a dual medical/retributive purpose be compatible with article 3?

Regarding the first issue: when considering which conditions count as “medical”, it is important to note that in Dvořáček the offender's paraphilia was caused by a genetic disorder called Wilson's disease. The ECtHR accepted that treatment for this condition was a medical necessity. It is not clear whether offending that is caused by undesirable character traits or which supposedly results from a condition whose medical status is controversial (such as anti-social personality disorder) would qualify as “medical” under the ECHR.

If the offender's behaviour is clearly caused by disease or disorder then curing this condition might count as a medical necessity. However, it is uncertain whether enhancing the offender's autonomy would be enough. The intervention might enhance autonomy if it enables him to be less impulsive, or reduces inner conflict, by reducing disturbing thoughts. If the interventions would enhance autonomy, it is uncertain whether this would satisfy the medical necessity requirement. However, an intervention's impact on autonomy will not always be clear. For instance anti-libidinal medication could both increase autonomy, by reducing compulsive urges, and interfere with the offender's sexual autonomy.Footnote 40

Regarding the third issue: retributivists sometimes assert that, to be legitimate, punishment must be inflicted with the sole intention of meting out deserved suffering. These retributivists would consider it illegitimate to impose a punishment on the basis that it is a “medical necessity”. For example, Michael Moore states that a tension ‘exists between crime-prevention and retributive goals […] due to retributivism's inability to share the stage with any other punishment goal. To achieve retributive justice, the punishment must be inflicted because the offender did the offense. To the extent that someone is punished for reasons other than that he deserves to be punished, retributive justice is not achieved’.Footnote 41 According to Kant, ‘only the law of retribution (ius talionis) […] can specify definitely the quality and the quantity of punishment; all other principles are fluctuating and unsuited for a sentence of pure and strict justice because extraneous considerations are mixed into them’.Footnote 42

If direct brain interventions are intended solely as retribution, then it is hard to see how the ECtHR's medical necessity requirement could be met. According to Bernadette Rainey, ‘[i]f the use of drug therapy is primarily to ensure public protection, with the medical needs of the offender being secondary, then the ECtHR may find it is not medically necessary’.Footnote 43 If brain interventions are intended solely as a form of retributive punishment then this seems even harder to reconcile with the ECHR, bearing in mind that retributive punishment is specifically intended to make the offender suffer. Traditional punishments that are imposed for solely retributive reasons do not violate article 3, provided they do not cause more suffering than is “usual” for punishment. However, if punishment is imposed by means of a medical intervention, the Court's reliance on the “medical necessity” principle surely implies that imposing this intervention with a solely retributive purpose would violate article 3.

Some retributivists might be more flexible than Moore and Kant and may be willing to allow rehabilitative motives to play a role in sentencing. If the state took this approach it might use the intervention partly in order to cause retributive suffering and partly for therapeutic reasons. It is not certain whether this approach would be compatible with article 3.

To summarise: although the ECtHR has not directly considered whether using brain interventions as a form of retributive punishment is compatible with article 3, this proposal would face some formidable obstacles. Firstly, it seems that (at least in cases where the severity threshold has been met and the offender is capacitous) the ECtHR has stressed the importance of obtaining the offender's consent to receive the intervention. It is likely that this rules out imposing brain interventions as a form of mandatory retributive punishment. Secondly, the ECtHR, in the context of treatment that reduces offending behaviour, has emphasised the importance of showing that the intervention is medically necessary. The intervention will probably not be regarded as medically necessary if the offender's behaviour is caused by bad character (rather than a genuine disorder). It is unclear whether enhancing the patient's autonomy would count as a medical necessity. Fourthly, in view of the medical necessity principle, providing these interventions for solely retributive reasons would seem to violate article 3. However, providing these interventions for a mixture of retributive and therapeutic reasons might be compatible with article 3.

4. Public Attitudes

It might be thought that using biomedical interventions as a type of retributive punishment would be generally regarded as brutal and so that adopting/expanding this practice would not be politically feasible. However, research into public attitudes towards offenders suggests that there may well be public support for such a policy. For example, according to one study ‘respondents balance a complex mixture of retributive and rehabilitative views in assessing biological interventions for criminal offenders’.Footnote 44 On one interpretation of the data from this study, respondents regarded such biological interventions as having a partly retributive justification. Public attitudes have a significant effect on criminal justice policies through the democratic process.Footnote 45 In addition, in the United States the views of the public are also taken into account when determining whether laws are constitutional. A punishment will be regarded as unconstitutionally ‘cruel and unusual’ if it would ‘outrage the public conscience’.Footnote 46 It has not yet been determined whether the current statutes permitting punishment by chemical castration are constitutional. If further research into public attitudes reveals an acceptance of biological forms of retributive punishment, then these findings could lend support to the argument that this type of punishment is constitutionally permitted. As a result, this form of punishment might become more widespread in the US If there is sufficient public support for this kind of punishment in the United Kingdom, British politicians may still be willing to adopt this policy even if it breaches the European Convention on Human Rights (given that they have already ignored the European Court of Human Rights on certain other criminal justice issues, e.g., the UK's blanket ban on prisoners voting).Footnote 47

5. Could Retributivists Regard Brain Interventions as a Legitimate Form of Punishment?

Jesper Ryberg claims that retributivists could view biomedical interventions as a legitimate form of retributive punishment (as opposed to an alternative to punishment).Footnote 48 Retributivists hold that punishment should inflict on offenders the suffering that they deserve. According to Ryberg, this suffering could consist in the unpleasant side effects induced by the injection of a drug or by some other biomedical intervention.Footnote 49 He even suggests that, if a drug were developed that reduced offending behaviour without causing unpleasant side effects, retributive justice could be achieved by adding chemicals to the drug to cause painful symptoms.Footnote 50 Many retributivists emphasise punishment's communicative function – it expresses society's condemnation. Ryberg maintains that injecting an offender with such a drug would be just as effective as a prison sentence at sending a condemnatory message.

However, Ryberg's argument assumes that retributivists are not particular about the kind of suffering that punishment should induce – any form of mental or physical suffering will do, provided the correct amount is inflicted. Ryberg's argument may fit with some versions of retributivism. For instance, Igor Primoratz suggests that retributive suffering should involve a setback to the offender's self-interest. Primoratz also thinks this will send the appropriate message of condemnation. He writes:

[I]f society's condemnation of their misdeeds is really to reach [offenders] […] it will have to be translated into the one language they are sure to understand: the language of self-interest. This translation is accomplished by punishment.Footnote 51

The thought that something would be lost in this translation might cast doubt on that version of retributivism.

Even if retributivists like Primoratz accepted the legitimacy of biomedically induced retributive suffering, they might object to using such techniques to bring about moral enhancement. The drug Ryberg envisages has two effects: a) causing unpleasant symptoms, e.g., headaches, and b) bringing about moral enhancement (e.g., decreasing aggression). As noted above, Michael Moore thinks that retributivism is the sole justification for punishment.Footnote 52 He might therefore accept the legitimacy of a) but object to b) on the basis that it is unjustifiable to impose punishment in order to benefit the offender or to promote the general good.Footnote 53 However, it should be noted that this objection would not only rule out biomedical moral enhancement, but all rehabilitation – a position that many would find implausible. Furthermore, this objection would not rule out the use of drug-induced headaches as a form of retributive punishment.

In any case, there are other versions of retributivism that provide more plausible grounds for objecting to the idea that distressing symptoms of medication should be viewed as a form of punishment. For instance, Antony Duff argues that punishment should aim to impose a very specific type of suffering or burden, consisting in feelings of remorse, the experience of making apologetic reparation and being subject to the moral criticism of one's fellow citizens. Clearly the side effects of medication (such as nausea, or headaches) are not what Duff has in mind. According to Duff, punishment will only communicate the appropriate message of moral censure if it is designed to elicit remorse and to provide an opportunity to make amends. He writes:

The aim is not simply that they should “suffer” or be caused pain […]. Hard treatment […] should serve both to assist the process of repentance and reform, by focusing his attention on his crime and its implications, and as a way of making the apologetic reparation that he owes.Footnote 54

On this view, the retributive purpose of prison is not to cause the prisoner distress at having to live in such a harsh environment. Rather, prison may be justified, because it allows the offender to dwell on the seriousness of his crime without being distracted by the competing claims on his attention that he would experience if he was still living in the community, e.g., employment, socialising, and family obligations.Footnote 55 Victim-offender mediation programmes and other attempts to bring the offender to recognise the wrongfulness of his conduct may also elicit the ‘right kind’ of suffering.Footnote 56 Community service may facilitate reform and reparation if it is likely to remind the offender of his crime and its consequences for the victim. For instance, an offender who maimed the victim might be trained how to make wheelchairs for the disabled. Experiencing drug-induced nausea and headaches are more likely to interfere with the offender's capacity to engage in moral reasoning about his offence and to impede his ability to make reparation than to help achieve these ends.

Another version of retributivism might focus on the way punishment can temporarily change the relationship between the citizen and the rest of the community. For instance, Christopher Bennett has argued that punishment can be a way in which society symbolically dissociates itself from the offender's crime.Footnote 57 This is analogous to the way individuals, in the context of personal relations, might withdraw or distance themselves from others whose conduct they find unacceptable. They might refrain from greeting wrongdoers in a friendly manner, stop inviting them to social occasions, or refuse to be in the same room with them. Bennett points out that such actions may cause suffering, but even if they do not they will still serve their function, i.e., dissociation.Footnote 58 Similarly, the purpose of prison is not to cause the offender to suffer because he is living in unpleasant surroundings, but to symbolically dissociate the community from the offender's wrongdoing by temporarily excluding him from full participation in the life of the community. In contrast, injecting offenders with substances that induce headaches and nausea in order to make offenders suffer would not seem to satisfy the requirements of this version of retributivism. It would be hard to characterise such symptoms merely as society's way of “distancing itself” or “withdrawing” from the offender. Returning to the analogy with personal relationships: an individual who responded to a friend's wrongdoing by shouting insults at her or slapping her across the face could hardly be described as simply distancing himself or withdrawing from the relationship. Bennett's concept of dissociation is meant to be different from the ‘problematic notion of retaliation’.Footnote 59

I do not attempt to defend Duff and Bennett's versions of retributivism – a task that would not be possible within the scope of this chapter. My purpose is to argue that, contrary to Ryberg, some of the most plausible versions of retributivism rule out the possibility that the side effects of medication could be viewed as legitimate forms of punishment. However, I will add that the ability to rule out this possibility is a merit of Duff and Bennett's accounts. Opponents of retributivism sometimes claim that it is hard to distinguish retribution from mere vengeance or sadism. Theories that endorsed intentionally injecting offenders with drugs in order to generate painful symptoms would leave themselves open to such criticisms.

Retributivists might of course appeal to a separate prohibition on “cruel and unusual” punishment – a constraint on punishment that does not derive from retributivism itself.Footnote 60 This strategy would present its own challenges. It is not clear why the state should be restricted to “traditional” forms of punishment as opposed to “unusual” ones. If new forms of punishment became widely used, after a while they would cease to be unusual. If “cruel” is meant to suggest that they cause an unacceptably high level of distress, it is not clear that this claim is correct. Drugs that cause nausea and headaches for a short period of time could impose much less suffering than a lengthy prison sentence. The level of distress therefore cannot provide a reason for ruling out the former intervention and permitting the latter. Describing an intervention as “cruel” might also suggest that the intervention is wrong partly because of the intentions of those employing it. It might be thought cruel to intervene in order to produce suffering for its own sake. However, this argument would be of no help to those retributivists who think that “traditional” punishment should be imposed in order to inflict suffering for its own sake, as the argument would then imply that their conception of traditional punishment is “cruel”. However, Duff and Bennett's accounts would not be vulnerable to that objection, as they do not think punishment should inflict suffering purely for its own sake.

The next question is whether retributivists, such as Duff, might view direct brain interventions as a form of punishment, if these interventions are not employed in order to inflict suffering for its own sake. Recall Duff's account of prison's role in enabling offenders to focus on the wrongfulness of their actions without being distracted by competing claims on their attention. A direct brain intervention might operate in a similar way by increasing the offender's capacity to concentrate on reasons for trying to reform. Duff stresses the importance of engaging the offender in dialogue which both leaves open the possibility that the offender will remain unpersuaded by the state's arguments that he should change his ways and gives him the opportunity to express his disagreement.Footnote 61 He opposes techniques such as brain washing; however, increasing the offender's ability to concentrate does not seem to undermine the offender's right to remain unpersuaded. Enabling the offender to concentrate better would not implant new beliefs in him directly, but would simply make it easier for him to grasp certain reasons for himself. At first glance, this type of brain intervention might seem to be compatible with Duff's communication theory. However, Duff might still insist that imposing such interventions on a mandatory basis would preclude the possibility of genuine moral dialogue between the state and the offender. If the state were forcibly to “trespass” into the offender's mental realm and alter his manner of reasoning (by making him more alert and focussed) this would arguably blur the boundary between the two parties in the dialogue. Dialogue requires two independent parties - two clearly separate minds. If one party not only provides the other party with reasons to engage with, but also directly controls, through brain modification, the manner in which he engages with those reasons (albeit not the end result of the reasoning process), arguably this does not count as genuine dialogue. Even more problematic from the perspective of communication theory would be an attempt to change the offender's attitudes or values by directly modifying his brain. That type of modification would cause a change in the offender's outlook in a way that bypasses his rational faculties – the state has not given him a reason to change his mind. Ryberg correctly points out that in the context of ordinary medical treatment this is unproblematic. He writes: ‘almost all sorts of traditional somatic problems are dealt with by treatment that acts directly on the body without providing any kind of understanding. And it is hard to see why a mind-affecting treatment, which has desirable consequences for the person who is treated, should be regarded as impermissible simply because it is not accompanied by a gain in terms of self-knowledge or understanding’.Footnote 62 Now, it may be unproblematic if natural changes in people's neurochemistry or psychiatric treatment (that is voluntarily sought by non-offenders) affect people's attitudes without giving them reasons to change their minds. However, it cannot be concluded from this that altering a person's values without giving them a reason to change their mind is acceptable in the context of retributive punishment. A communication theorist might well argue that in that particular context it is inappropriate for the state to attempt to change offender's minds without giving reasons. This would undermine the moral “dialogue” and respect for the offenders' rationality, which is meant to be at the heart of communication theory.

6. Brain Interventions and Proportionate Punishment

Ryberg also argues that retributivists may have a reason for supporting offers of biomedical interventions in exchange for early release, even if biomedical interventions do not count as a form of punishment. Retributivists believe that punishment should be proportionate to the desert of the offender. Many retributivists also think that our criminal justice system currently imprisons people for longer than they deserve. If early release of those prisoners who accept interventions would, overall, make sentences more proportionate, Ryberg says, retributivists should favour this policy.

One might worry that this approach (as Ryberg describes it) is not in the spirit of retributivism. Consequentialists believe in maximising good consequences. However, retributivism is generally considered to be a non-consequentialist theory. Retributivists are more likely to believe that each individual judge/lawmaker should simply apply retributive principles rather than trying to maximise certain outcomes (e.g., proportionate sentences) by whatever means possible. Ryberg's suggestion would involve a judge imposing a sentence that he knows to be excessively long – a sentence that nevertheless purports to be the deserved punishment for the crime – and then offering offenders the chance of early release if they accept an intervention that is apparently justified on a non-retributive basis: rehabilitation. Retributivists who believe punishment should be a form of moral communication might find this problematic, since the sentence handed down by the judge in this scenario could send out a confusing message. Another problem is that it would create a situation where some offenders (those who refuse treatment) would receive a longer period in prison than they deserve, whereas others (who accept treatment) would serve a prison term that is more in line with what they deserve. True, this proposal would give more prisoners the right quantum of suffering than if the option of treatment were unavailable and all prisoners received excessive sentences. However, at the same time, it would appear to violate the principle that like cases should be treated alike. Retributivists typically think that ensuring the punishment reflects the relative gravity of each offender's conduct compared with other offenders is at least as important as administering the correct amount of punishment in absolute terms.

Nevertheless, it may be possible to modify Ryberg's approach to make it more acceptable to the retributivist. If the offender's willingness to undergo direct brain interventions indicates his commitment to trying to become a better person, then, from a retributive perspective, this could warrant a reduction in his sentence.Footnote 63 If this is the case, then offering direct brain interventions in exchange for early release would not violate the principle that like cases should be treated alike. For this position to be plausible there would have to be a way of telling whether the offender's acceptance of the intervention was genuinely motivated by a desire to reform or whether he was simply motivated by the prospect of early release.

7. Conclusion

In a number of US states biomedical interventions are already being used as punishments. The legislation governing these interventions suggests they have a partly retributive purpose. Currently, in the UK brain interventions are imposed on offenders partly in order to achieve “correctional” objectives, but retributive reasons do not seem to play a major role. Nevertheless, the influence of retributive public attitudes on legislators may change this. It is therefore important to consider whether the use of brain interventions as a method of retributive punishment would be compatible with international human rights law. Using mandatory brain interventions for the sole purpose of inflicting retributive punishment would probably violate the ECHR. However, voluntary interventions given for a mixture of therapeutic and punitive reasons might not. I have argued that some versions of retributivism do not have the theoretical resources to explain why direct interventions could not be a legitimate form of retributive punishment. However, although Duff and Bennett have not yet examined the implications of their theories for this question, I have argued that their versions of communicative retributivism are in the best position to oppose the idea of using these interventions without the free and informed consent of the recipients. Finally, I have argued that offering these interventions on a voluntary basis, as an alternative to punishment, would not necessarily violate principles of proportionality.

Footnotes

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), 619–631.

3 Ryberg, J., ‘Punishment, Pharmacological Treatment, and Early Release’, International Journal of Applied Philosophy 26:2 (2012), 231–244.

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), 502–509, 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), 166–198, 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), 219–223, 220.

7 Forsberg, L. and Douglas, T., ‘Anti-Libidinal Interventions in Sex Offenders: Medical or Correctional?’, Medical Law Review 24:4 (2017), 453–473, 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), 110–115.

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), 47–74, 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), 67–84, 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), 514–547, 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), 18–37.

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), 447–467.

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), 16–36.

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), 187–205, 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), 73–94.

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

59 Bennett, C., ‘Penal Disenfranchisement’, Criminal Law and Philosophy 10:3 (2016), 411–425.

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).