1 Neurointerventions and Crime Prevention
Setting the Stage
Over the last couple of years, an increasing number of philosophers, legal scholars, and criminologists have become preoccupied with the idea of using neurointerventions—that is, interventions which in one way or another operate directly on the brain of a subject—as a possible way of preventing offenders from engaging in future criminal activity. To some, such an idea may sound as a new and shocking example of how scientists can be led astray by following a path that would have been better left untrodden. Whether this is the case, that is, whether the use of neurointerventions on criminals should be regarded as shocking not merely in an immediate emotional way but in a moral sense—as something that is clearly wrong and should be met with vigorous exception—is basically what this book discusses. All the following chapters are devoted to considerations of the ethical aspects surrounding this question. As for the first part of the contention, that the idea is genuinely novel, this is definitely not accurate.
The idea of an association between criminal behaviour and the functioning of the brain is far from new. Even though the term ‘criminology’ did not appear until the end of the 19th century and the scientific discipline of criminology did not take genuine shape until even later, all the first attempts at understanding the aetiology of crime began with biological theories. As Rafter et al. have outlined in their comprehensive work on The Criminal Brain, the earliest origins of criminological thinking attempted to establish how brain impairments might cause criminal behaviour. Nineteenthcentury views on crime were heavily influenced by theories of, respectively, the abnormal brain, the atavist brain, and the degenerated brain (Pustilnik 2009; Rafter et al. 2016). Moreover, even though there has been, for both scientific and obvious historical reasons, a significant movement away from the early biological theories in favour of sociological theory, the idea of a biological base for crime has also had a major influence on parts of criminological thinking over the 20th century. In the view of Rafter et al., the ‘history of
Neurointerventions, Crime, and Punishment. Jesper Ryberg, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190846428.001.0001
Punishment
biological theories of crime is in many ways the history of criminology itself’ (Rafter et al. 2016, p. 10). Even if this may seem an overstatement, it is clear that the idea of a biological base for crime, in which the brain plays the main role, has a long prehistory.
The same is the case with regard to the idea of preventing future crime by influencing the brain. A large part of penological thinking in the last century was heavily influenced by rehabilitationist ideals (e.g. von Hirsch et al. 2009). The rehabilitationist view—that the goal of sentencing is, at least partly, to reform the criminal tendencies of offenders—has been presented in various ways. Some theorists have had their main focus on changing the social causes of crime by emphasizing resocialization and reintegration into the community as the main aims. However, other theorists have defended correctional models of rehabilitationism, according to which the goal is to turn offenders into law-abiding citizens by changing their attitudes and inclinations in more direct ways. The idea of treating or curing criminals has, for a long time, had a significant attraction. Consider the following three questions and statements:
‘Can new discoveries about the brain reclaim a million criminals? Can psychological research cut America’s crime bill in half? Can scientists, using drugs and surgery, eliminate dishonest impulses from the minds of crooks?’
‘A broad interdisciplinary effort is getting under way to explore the biological nature and origins of violence. Biologists, biochemists, neurophysiologists, geneticists, and other natural scientists are probing with increasingly precise tools and techniques in a field where supposition and speculation have long prevailed. Their work is beginning to provide new clues to the complex ways in which the brain shapes violent behaviour . . . In time, these insights and discoveries could lead to practical action that may inhibit violent acts—perhaps, for example, a change in the way children are brought up, or treatment with ‘antiviolence’ drugs. Such preventive steps might in the long run be more effective in controlling violent crime than either ‘law and order’ or social reform.’
‘Criminal repeat offenders . . . who during medical examination are shown to have neuropathology discernible by the current state of medical knowledge, should, after the appropriate informed consent, be further evaluated
and treated by qualified medical and nursing personnel . . . Their management should include the usual treatments, for example, removal of brain tumors, control of seizure disorders with anticonvulsants, etc., as well as the administration of psychotropic drugs, ECT, and functional neurosurgery.’1
The first passage is taken from a 1939 volume of the magazine Popular Science and advances the theory of renowned psychiatrist Carleton Simon—on how a misbalance in the relative dominance of the lobes of the brain may explain the ‘bewildering behaviour of many lawbreakers’—and the ‘amazing’ psychosurgical results of Walter Freeman and James W. Watts (who became the front figures in the lobotomy area in the US). The second passage is from an article published in Fortune magazine from 1973 featuring the work of a number of contemporary scientists—including Vernon H. Mark and Frank R. Ervin and their book Violence and the Brain (1970)— on how drugs may help in modifying the behaviour of violent prisoners. The final passage is part of a recent overview of the history of psychosurgery, in which professor of neurosurgery Miquel A. Faria suggests that a small group of repeat offenders should undergo medical treatment not by government doctors in public facilities but by physicians in private institutions. Thus, the aims of the three passages differ. However, all clearly demonstrate that the thought of preventing crime through some sort of medical procedure has been advanced in very different epochs and thus is far from new. The idea has been repeatedly defended throughout the 20th century and has—as we will return to in a later chapter—been put into practice in various ways.
But if the idea of using brain-based interventions as an instrument of crime prevention is in itself not a new idea—and, as we return to later, it has often turned out to be associated with naïve science and tragic practice (see Chap. 6)—what then constitutes the background for the recent attention that has been directed to the use of such methods? Why have theorists across different scientific fields, almost as an echo from the past, started considering whether such interventions should be used as an alternative to punishment; whether it is morally acceptable to use penal reductions as incentives to persuade offenders to take part in neurological treatment programmes; or
1 The first quote is from P. A. Clarkson (1939, p. 45); the second from Bylinsky (1973, p. 134); and the third from Faria (2013, p. 8).
whether neurointerventions can ever be justified as part of mandatory treatment schemes?
Why Consider These Questions?
Though there are always reasons to be somewhat cautious when it comes to the explanation of the causes of trends in the development of ideas in general, and in philosophical thinking in particular—at the individual level there may be various personal motives driving the work of researchers and at a broader level the causes may be multifarious2 it is in this case not difficult to identify some obvious causes which at least make it reasonable to engage in considerations of the above questions.
The most important component in the outline of the background for addressing ethical challenges related to the use of neurointerventions as a method of crime prevention, is the fact that an increasing number of scientific studies are being conducted which in one way or another relate to this possibility. It is indisputable that neuroscience has undergone significant developments over the last decades, and that advances in new neuroscientific research tools and technologies have increased the possibility of investigating the human functioning brain. A number of studies have been and are continuously being conducted exploring possible brain dysfunctions in individuals who have demonstrated a propensity for aggression or serious criminal behaviour. These studies have been brought about as a result of the major advances in scanning techniques such as positron emission tomography (PET), single photon emission computed tomography (SPECT) and, not least, functional magnetic resonance imaging (fMRI). In the mid-90s some of the first studies were conducted that examined, for instance, differences in glucose metabolism in the prefrontal cortex across a group of violent offenders and a control group (see Rocque, M. 2013). These early studies have subsequently been followed up by a number of studies using imaging technology to examine brain abnormalities associated with violence. The first meta-analysis was published in 2009, wherein the authors summarize the results of 43 studies and conclude that ‘[o]verall, findings establish fairly robust and significant prefrontal structural and functional impairments in
2 For a discussion of some societal trends that have contributed to this discussion, see e.g. Rose (2010).
antisocial population as assessed by brain imaging’ (Yang and Raine 2009, p. 86). It is fair to say that these studies are not uncontroversial. But they reflect a movement in the direction of what has become known as biosocial criminology which seeks to integrate social and biological causes of crime.3 What makes this trend relevant in the present context is that the ambition of providing a more coherent picture of the causes of crime by invoking biological considerations is often accompanied by the hope of obtaining new ways of influencing and preventing criminal tendencies in offenders. For instance, a recent study has claimed to demonstrate for the first time in humans that serotonin 1B receptors—called ‘5-HT1BR’—are related to high levels of anger and aggression in violent offenders but not in control non-offenders. The researchers behind the study conclude on an optimistic note by contending that these receptors may ‘represent a molecular target for development of pharmacological antiaggressive treatments’ (Cunha-Bang et al. 2016, p. 7). In this way, what seems an obvious step from the study of brain mechanisms predisposed to criminal conduct to suggestions as to the possible remedies, provides the first reason for considering more thoroughly the desirability of using neurointerventions as an instrument of crime prevention. However, other types of research, in a more direct way, provide a ground for engaging in this question.
Many scientific studies, in recent years, have been conducted in order to explore how pharmaceuticals—but also other direct ways of influencing the brain—affect the social behaviour and moral decision-making of humans in general and offenders in particular.4 To mention a few examples of the more general studies, some selective serotonin reuptake inhibitors (SSRIs), which are usually prescribed for the treatment of depression and anxiety disorders, have in some cases been found to produce changes in the social behaviour of healthy individuals. Participants in a Dictator game who had been administered a particular SSRI (citalopram) were found to divide the sum of money more fairly than members of a control group (Tse and Bond 2002). The same SSRI has also been found to increase aversion to causing harm to others (Crockett et al. 2010). Another example is the neurotransmitter and hormone oxytocin which seems to have an impact on trusting behaviour (Kosfeld et al. 2005; Baumgartner et al. 2008). Experiments in
3 For considerations on how biosocial criminology has gained acceptance by criminologists, see, for instance, Rafter et al. (2016); Vaske (2017).
4 For an excellent overview of how a number of pharmaceuticals, which are currently in therapeutic use, may influence moral decision-making and behaviour, see Levy et al. (2014).
which participants play economical games involving trust relations have shown that those participants who were administered oxytocin by nasal spray showed an increased level of trust behaviour. There are also studies indicating that the widely used beta-blocker propranolol may have an effect on moral judgements that are triggered by emotional responses. Generally speaking, there is nothing surprising in the fact that drugs of various sorts may have an impact on the dispositions, motives, decisions, and behaviour of individuals. This insight goes far back in the history of mankind. But it is equally unsurprising that such research has prompted discussions of the possibilities of cognitive, emotional, and even moral enhancements of humans.
Studies have also had a narrower focus on investigating the possibility of influencing the behaviour of offenders. These studies are both correlational and experimental, and they also vary considerably. Some are based on the more general assumption of a negative association between poor nutrition and antisocial and aggressive behaviour. For instance, a study conducted by Schoenthaler et al. examined the effects of vitamin-mineral supplementation on violent and serious antisocial behaviour in a sample of incarcerated juvenile offenders. It was concluded that the ‘correction of low blood vitamin concentrations with vitamin-mineral supplements improves brain function and significantly reduces violence among delinquents confined in correctional facilities’ (Schoenthaler et al. 1997, p. 343). A study conducted in Aylesbury Prison in the UK found a significant reduction in both violent and non-violent infraction when a group of young adult prisoners were on supplements (Gesch et al. 2002). Along the same lines, a Dutch study has examined the effects of mineral supplements and fatty acids—shown to have an impact on brain structure and function—and reported a significant reduction in incidents observed by the prison staff (Zaalberg et al. 2010). Other studies have reached similar conclusions (see e.g. Choy et al. 2018; Shniderman and Solberg 2015).
Studies have also been carried out on the effects of different types of pharmaceutical drugs. Based on an assumption of an association between serotonergic dysfunction and aggression, an Australian study explored the possibility of using selective SSRIs as a means of controlling impulsive violent behaviour. The researchers observed reductions over a range of behavioural measures (including impulsivity, irritability, anger, and assault) and concluded that the ‘findings suggest that treating impulsive violent individuals in the criminal justice system with an SSRI is a potential treatment
opportunity for this population’ (Butler et al. 2010, p. 1137). A comprehensive Swedish study has examined the use of medication for patients with ADHD (attention deficit-hyperactivity disorder) (Ginsberg and Lindefors 2012). Information was gathered from 25.656 patients with an ADHD diagnosis regarding their pharmacological treatment and criminal convictions over a four-year period. The researchers found that crimes by patients occurred significantly less often during periods in which they were receiving ADHD medication than during periods of non-treatment. Being a correlational study, the inverse association between pharmacological treatment for ADHD and the risk of crime can be given different explanations. But, as the researchers underline, the study is interesting in the light of the fact that the prevalence of ADHD in male inmates is estimated to be between 25 per cent and 40 per cent (see also Lichtenstein et al. 2012).
Almost all studies have explored the use of nutritional supplementation or pharmaceutical drugs. However, a few studies have examined the effects of other techniques—such as tDCS (transcranial direct current stimulation)—on aggression (see Choy et al. 2018). To my knowledge, no studies have been conducted on the possible effects of invasive techniques carried out on offenders. (From a historical perspective—as we shall see later (Chap. 6)—the picture is very different.) However, a few studies have explored the effects of DBS (deep brain stimulation) in patients with Erethism; that is, patients suffering from severe cases of unprovoked aggressive behaviour associated with some degree of mental impairment and gross brain damage. For instance, a Spanish study observed that five out of six patients with pathological aggressiveness ‘had a reduction of their outburst of violence of PMH DBS [posteromedial hypothalamic DBS]’ (Torres et al. 2013).5
Though other studies could be mentioned, the above examples suffice to make it understandable why increasing attention has been directed to ethical discussion surrounding the use of neurointervention as a crime prevention instrument. If researchers are applying new neurotechnological research tools to the study of the biological basis for criminal conduct, and if this is done—at least in some cases—with the explicit intention of paving the way for new methods of preventing crime, then it is reasonable to ask what would
5 For recent studies involving the use of DBS in patients with severe aggression, see Harat et al. (2015). Here, the researchers conclude that, although the DBS treatment did not bring long-term benefits, it ‘freed the patient from aggressive disorders’ and ‘she regained her drive and joy of life— she participated actively in family and social life’ (2014, pp. 310, 315). See also Franzini et al. (2013).
constitute the potential pitfalls and to consider when a move from research in the aetiology of crime to recommended treatment options would be ethically premature. If researchers start investigating the possibility of using drug-based treatment in crime prevention, then it is obviously important to ask whether such treatment is ethically desirable. If improved neuroscientific research methods open the way for studies in the use of invasive techniques as a way of reducing aggression and violence, then it is obviously relevant to ask if it can ever be justified to put such techniques into practice. Thus, in this way, the increased focus on ethical questions pertaining to the use of neurointervention reflects the well-known general picture of how scientific research and the development of new technology often prompt consideration on the desirability of applying the new possibilities as ways of dealing with societal challenges. However, even if the impetus between such ethical considerations at the most basic level is not difficult to understand, the idea of engaging in this ethical discussion may still, as we shall now see, be met with some reluctance.
Does It Make Sense?
Does it make sense to discuss the possibility of using neurointervention as a crime preventive tool, and is such a discussion really desirable? In order to consider these questions and the reservation they express—which is not difficult to grasp in the light of the sordid prehistory of such a treatment paradigm—we will have to clarify the present aim.
As noted above, many theorists have underlined the fact that biological theories of crime have gained a renewed foothold in modern criminology. For instance, as Rafter et al. have put it, the ‘history of criminology . . . has been characterized by pendulum swings to, first, biological and then sociological explanations, with the pendulum today hovering indecisively somewhere in between’ (Rafter et al. 2016, p. 283). To what extent this picture is accurate and what it more precisely implies, is not something that will be discussed in this book. The complicated discussion of crime causation is one that I will happily leave to criminologists and other theorists who are in that respect much more qualified. Furthermore, with regard to the discussion of crime prevention, there are many methods within a biosocial framework that could in principle be imagined—in particular, in the light of the philosophical prerogative of giving room to hypothetical and futurist
scenarios—which will not be subjected to consideration. The discussion in this book will be much more restricted. The purpose here is limited to the ethical discussion of the use of neurointerventions as a method of preventing offenders in engaging in future criminal activity. But this immediately raises the question as to what is meant by neurointervention.
The generally shared view among theorists in this discussion is that neurointerventions cover a range of methods or technologies that affect the conative, affective, or cognitive aspects of the mind of an individual by operating directly on his or her brain.6 This specification is not precise. For instance, it may not be clear what it means to operate ‘directly’ on the brain. However, in my view, it is doubtful that a strict definition can be provided and, more importantly, that such a definition is needed. For the present purpose, and in accordance with the way the ethical questions are typically being discussed, it will be sufficient to use ‘neurointervention’ as a denomination of a range of different techniques including: 1) supplementation and pharmaceutical drugs; 2) non-invasive brain-stimulating techniques, such as tDCS, which works by delivering a low-intensity electrical current to brain areas, or TMS (transcranial magnetic stimulation) in which a magnetic field generator placed outside the head produces small electric currents in brain regions just below the generator; and 3) invasive techniques, such as DBS—which involves the surgical implantation of microelectrodes into a particular region of the brain—or other types of surgery. This specification does not preclude open questions about borderline cases. But none of the arguments in the following hinges on the precise scope of the concept. However, the discussion will be further limited by two presuppositions.
First, it will be assumed that neurointerventions can serve a crimepreventive function by reducing the propensity for crime in at least some individuals who are undergoing treatment. Second, it is assumed that such interventions can be administered without having too severe side-effects on the individual who is being treated. Again, not all the arguments in the following discussion are strictly conditional on these assumptions. But the two assumptions serve a methodological purpose by limiting the scope of the discussion. Without making the first assumption, there will be no discussion. There are, of course, other ways in which neurointerventions could serve functions within the criminal justice system. For instance, there are
6 From a medical perspective, the term is often defined simply as a treatment approach to conditions that occur within the vessels of the brain or the spinal cavity.
well-known legal discussions of whether it is acceptable to use drugs in order to render a defendant sufficiently competent to stand trial (see e.g. Ryberg 2016a), as well as to restore the competence of incompetent individuals in relation to both pre-trial settings (e.g. competence to make confessions, or participate in line-ups, etc.) and post-trial settings (e.g. competence to motion new trials, parole, and—most bizarrely—to be executed). However, these functions will not be considered here. The focus of the discussion is solely on the use of neurointerventions in relation to crime prevention and this discussion makes little sense if it is not assumed that the interventions could serve such a purpose.
As for the second assumption concerning the side-effects of neurointerventions, this will help in setting the framework of the discussion. If one imagines that a crime’s preventive effect could be obtained by administering a neurointervention on an offender without causing any form of adverse effect on this person, then the ethical discussion is almost eliminated. Of course, depending on how the treatment is administered, there could still be questions concerning violations of autonomy, but the ethical challenge is indeed significantly reduced in cases where crimes can be prevented at little or no cost. However, the assumption on an upper level of the side-effects serves the purpose of not turning the discussion into one concerning other traditional and extensively debated issues. It is obvious that neurointerventions can be used to prevent future criminal conduct. For instance, it is possible to administer psychotropic drugs in such a way as to render a person totally incapable of acting, or to perform surgery in ways that will leave an individual in an almost vegetative state. However, if this is what one is considering then the discussion will quickly turn into the traditional dispute in ethical theory as to whether it can ever be justified to sacrifice one person to save others. Moreover, almost to the same effect, the three-drug sequences of the lethal injection cocktail which have become standard procedure in US states practicing the death penalty, can also be regarded as a neurointervention with fatal consequences for the offender to whom it is administered. However, it would side-track what constitutes the more interesting aspects of the discussion of neurointerventions if I had to engage in the already comprehensive discussion on the death penalty and argue why I believe this punishment to be morally wrong. Thus, the assumption regarding side-effects basically serves the purpose of not losing sight of what I believe constitute some of the more important and less debated elements in the current discussion on neurointerventions. However, given this presentation of the overall purpose
of the discussion and the delimitations set by the two assumptions, we can now—some might perhaps feel, with even stronger impetus—return to the initial questions regarding the sense and desirability of the whole discussion. Do ethical considerations of the crime preventive use of neurointervention really make sense or is the discussion in itself one that ought to be left untouched and relegated to oblivion? Here are a few reasons for scepticism that may come to mind.
(A) The first reason to question the discussion relates directly to the combination of the two assumptions. By assuming that a neurointervention will in some cases have a crime preventive effect and that this treatment can be administered without too serious side-effects, it may seem as if the discussion has elegantly managed to manoeuvre around what constitutes the main ethical problem, namely, that such treatment will have significant side-effects on persons being treated. In other words, it may seem as if the discussion involves a trivialization by stipulation, in the sense that the significant harm that such interventions may cause, has from the outset been swept under the carpet. However, this objection is not convincing. It may well be the case that the assumption concerning the side-effects will close off some traditional discussions which would otherwise have been in place. In fact, as just noted, this is precisely what motivated the assumption. But this certainly does not make the discussion pointless. I have not excluded the possibility that a treatment may have serious side-effects.7 And, as we will see in the following, there are many objections that have been raised against the use of neurointerventions that are not based on the magnitude of such adverse effects.
(B) Another possible objection, which has some affinity to the previous one, concerns the hypothetical nature of the discussion. It might be felt that the hypothetical character of parts of the ensuing considerations is not an innocent aspect but rather something that brings the whole point of the discussion into question. Consider the following example. An amazing development in the medical treatment of certain neurological diseases is the use of predictive brain devices. In some cases, in which a patient suffers from serious incurable epileptic seizures, it has become possible to implant a device which is able to detect oncoming seizures (Gilbert 2015a). The devise will send a warning to the patient when a seizure is about to come on
7 Given the content of the discussion that follows, there will be no need to engage in more precise considerations of what should be understood by ‘too serious’ side-effects. As noted, the main purpose has been to rule out extreme cases that would basically amount to a way of sacrificing an individual in the name of crime prevention.
and thereby enable the patient to take the necessary precautions (go inside, lie down, etc.). Moreover, a further possibility is that the detection device sends a signal to an activation device which automatically discharges a drug preventing the seizure. This combined therapeutic system has obvious advantages—for example, that patients are only medicated when it is necessary—and the first detection devices have been successfully implanted. However, the use of such systems has opened up a broader debate as to whether the possibility of detecting and stopping a brain activity, before it manifests itself, could be utilized for dealing with brain disturbances that are not pathologically remarkable but socially undesirable. It has been suggested that this technology could be used as an instrument to monitor and control explosive aggressive outbursts. Suppose, analogously, that a predictive device has been implanted in the brain of an offender suffering from serious problems of impulse control. If the device detected signs of severe aggression—a particular neurological activity above a certain level—it would send a signal to an activation system which would automatically discharge a drug that puts a damper on the activity before it manifests itself in undesirable behaviour. This possibility will no doubt evoke memories in some readers of dystopic literary descriptions of how the minds and behaviour of citizens may be controlled. However, the point here is simply that this discussion is highly hypothetical. A detection and activation system which can react to aggression does not even tentatively constitute a genuine possibility. In fact, it may never become possible. Therefore, could a discussion of this and other like technologies—and perhaps also the assumption concerning the magnitude of the side-effects—rightly be accused of being too unrealistic? Is it reasonable to hold, as Robert Sparrow has suggested in relation to his discussion of so-called moral enhancement (see Chap. 3), that a criteria for the proper use of thought experiments in applied ethics is that such experiments accurately represent and illuminate ‘a pressing ethical dilemma’ (Sparrow 2014a, p. 113) and that the whole discussion of crime preventive neurointerventions, therefore, should be put to sleep due to its hypothetical character?
There are several reasons as to why an objection along these lines can easily be dismissed. First, the hypothetical nature of the discussion does not necessarily imply that the ethical considerations are at significant risk of being wasted. In applied science, it is sometimes the case that it turns out to be impossible to solve a problem in the way one had imagined and hoped. But this does not necessarily imply that the methods that were developed in the attempt to solve the problem are wasted. Quite often, such methods may
find use in relation to other sorts of problem-solving. In my view, the same is often the case in ethics. Thoughts and arguments that are developed in hypothetical contexts may often turn out to applicable and illuminating in relation to other problems, some of which may be genuinely urgent.
Second, and more importantly, the hypothetical nature of part of the discussion that follows in the ensuing chapters is in my view highly desirable. As we have seen, there is ongoing research into the possibility of using neurointerventions in crime prevention. Moreover, as we will return to later, there may exist a political wish or temptation to make use of such treatment options, sometimes even before the effects of the treatment have been sufficiently scientifically validated. Thus, there are strong reasons to engage in considerations of the ethical desirability of such treatment before the technologies are made available and put into practice. In this regard, the present discussion reflects the more general ethical approach to future technology which is often (and reasonably so) based on the assumption that if one does not think of the potential ethical implications of a technology before it is fully developed, one may lose sight of potential desirable applications of the technology or, conversely, be unprepared and overwhelmed by the possibilities of undesirable use. In this regard, the hypothetical nature of the discussion should rather be seen as a virtue.
Third, though the example of the aggression-detecting and brainmodulating device is hypothetical, and even though discussion in the following chapters offers other hypothetical considerations, it is important to underline that a discussion of the use of neurointerventions is not entirely hypothetical. With regard to the assumption concerning side-effects, it is certainly a well-confirmed principle of pharmacology that all pharmaceuticals involve the risk of side-effects. And the effects of invasive techniques are obviously comprehensive. But there are at least a few types of treatment that even today have fewer huge side-effects. For instance, different sorts of nutritional supplementation may have minimal side-effects when administered in proper doses (Choy et al. 2018). More importantly, it is also a fact that some pharmaceutical drugs are already in use in criminal justice practice. As indicated, medication is administered on some prisoners suffering from ADHD. And the most significant example is the use of chemical castration of sex offenders. This type of castration is achieved through the administration of drugs known as MPA (medroxyprogesterone acetate) or CPA (cyproterone acetate) which work by reducing testosterone to a prepubescent level, thereby depriving an individual of most of the capacity to
experience sexual desire or engage in sexual activity. Currently, this treatment is authorized in several jurisdictions in the US—California, Florida, Georgia, Louisiana, Montana, Iowa, Wisconsin, and Oregon—and in Europe (Scott and Holmberg 2003; Rice and Harris 2011).8 A further example that should be mentioned is the use of drugs to combat drug or alcohol addiction in offenders. This group of drugs works in different ways—for instance, by reducing craving in some opioid addicts—and may be administered as part of both mandatory and optional treatment schemes (see e.g. Greely 2008). Therefore, for these reasons, the objection based on the hypothetical nature of the use of neurointerventions in crime prevention does not seem well-founded.
(C) Even though there is no ground for rejecting the significance of an ethical discussion of the use of crime-preventive neurointervention simply because it is hypothetical, there may nevertheless be another reason for scepticism associated with such an in-principle discussion of the pros and cons of a new technology. It might be objected that these considerations easily end up mis-framing the important discussion of what can and should be done to prevent crime. There is no doubt that there is an immediate attraction in the idea of treating or even curing offenders. As we shall return to later, such an approach to crime and offenders has had a significant influence in penological thinking throughout the 20th century. However, it is equally obvious that there is a major naivety associated with the idea of paralleling criminal misbehaviour and clinical disease. What constitutes a criminal act is a result of political decision-making, and there are some acts which are being criminalized while others are being decriminalized. Furthermore, offenders do not constitute a particular or identifiable subgroup of the population. In reality, the picture is much more blurred. Studies of self-reported offending show that criminal conduct is not an exceptional type of behaviour that can be attributed to a particular group of people. For instance, the Cambridge Study in Delinquent Developments found that more than 90% of males in London admitted to having committed at least one crime that could have led to a conviction (Farrington 2002). Though the results of self-reported offending may vary between different studies, such figures certainly lend support to the view that there is some naivety in the idea of preventing crime by curing offenders.
8 As we will return to at a much later stage, the use of this procedure is highly controversial (Chap. 7)
To the same effect, it might be held that the idea of focusing on neurointervention as a way of preventing crime tends to ignore the fact that crime takes place in a social setting. For instance, this point has been made in relation to the broader ethical discussion that has recently arisen on moral enhancement (see Chap. 3). What critiques have underlined is that, insofar as one promotes the idea of moral enhancement as a solution to urgent societal problems—e.g. war, terrorism, and poverty—one blatantly fails to recognize that wrongful behaviour contributing to the existence of these problems takes place in a societal, political, and economical context that enables and sometimes promotes these behaviours. For such reasons, it has been argued by Inmaculada de Melo-Martin and Arleen Salles that the idea of moral enhancement is ‘highly suspect’ since it perceives humanity’s moral ills as a result of individual moral deficits (Melo-Martin and Salles 2014, p. 6). The same criticism could be raised against the idea of preventing crime through brain interventions. The idea of treatment seems to entertain an oversimplified conception of crime as abstracted from the real world. Put simply, it makes little sense to consider treatment of a person who has committed theft or burglary because she lacks access to medicine, is unable to feed her children, or for other reasons directly reflecting social destitution. Focussing on individual neurological or behavioural deficits in such cases would seem to constitute a conspicuous instance of misdiagnosing the problem of crime.
However, even though I am very sympathetic to such considerations, it is in my view a fallacy to present them as an argument against the ethical discussion of the use of neurointerventions. That there are many cases in which such treatment would make little or no sense is hard to deny, even if one holds an extremely optimistic view on what research in this field may accomplish in the future. But this does not show that there could not be some cases in which the use of such treatment would be desirable. Be that as it may, the main problem of the above objection is that it is directed against the wrong target. If it is suggested that a neurointervention should be administered on the thief or burglar, then it is certainly reasonable to object and direct attention to the social problems that may have led to the crimes. However, this constitutes an objection against the method that is used to handle crime—not against the discussion of what constitutes the preferable method. The objection to treatment instead of social intervention or rehabilitation is in itself precisely this: a part of the moral discussion of whether and when the use of such treatment is desirable. Moreover, one might also consider the following
