NEUROSCIENCE, CRIMINAL SENTENCING, AND HUMAN RIGHTS.

• Author: Shaw, Elizabeth
• Position: Imagining the Future of Law and Neuroscience

TABLE OF CONTENTS

Introduction 1411 I. Examples of Neurointerventions 1414 II. Intended and Unintended Effects on Mental Integrity Prison vs. Neurointerventions 1417 III. Practical Implications 1431 Conclusion 1442 INTRODUCTION

This Article will discuss ways in which neuroscience should inform criminal sentencing in the future. Specifically, it will compare the ethical permissibility of traditional forms of punishment, such as incarceration, on the one hand, and rehabilitative "neurointerventions" on the other. Rehabilitative neurointerventions are interventions that aim directly to modify brain activity in order to reduce reoffending. (1) As I will explain below, various jurisdictions are already using techniques that could be classed as neurointerventions, and research suggests that, potentially, an even wider range of rehabilitative neurointerventions may be developed. This Article will examine the role of human rights (in particular, the moral right to mental integrity (2) and the legal right against degrading treatment (3) ) as a constraint on the state's use of neurointerventions. It will also discuss the extent to which traditional forms of punishment, such as incarceration, interfere with the right to mental integrity.

Many jurisdictions rely heavily on incarceration as the default response to serious crime. (4)

The United States has the highest incarceration rate in the world, (5) with a prison population of 1,430,800 people (6) With an incarceration rate of 144 prisoners per 100,000 inhabitants, England and Wales have the highest incarceration rate in Western Europe. (7) The prison population was 78,058 in March 2021 (having decreased due to COVID-19), (8) but it is predicted to increase to 98,700 by September 2026. (9) Imprisonment comes at a high economic cost to society--39 billion dollars of taxpayers' money is spent on incarceration each year in the United States. (10) Incarceration also comes at great personal cost to prisoners--according to a study of twenty-four high-income countries, the suicide rate among female prisoners is nine times higher than that of the general female population, and the suicide rate among male prisoners is three times that of the general male population. (11) Separation from family and friends, severely restricted freedom, and the stigma of incarceration, as well as dangerous and overcrowded conditions, are among the factors that can contribute to prisoner suicides. (12) It has been argued that if neurointerventions are developed to effectively aid criminal rehabilitation, then these interventions have the potential to generate economic savings and to spare offenders suffering by allowing them to avoid incarceration or be released earlier, (13) although, some fear that the dangers of mandatory neurointerventions may outweigh their advantages. (14) It is, therefore, of practical importance to compare these possible responses to crime and to consider how society can seek to reduce crime in a humane and effective way.

After briefly outlining examples of current and potential neurointerventions in Part II, this Article will then focus, in Part III, on an influential objection against neurointerventions--the idea that neurointerventions threaten mental integrity in a way that prison does not. Growing evidence of incarceration's negative psychological and neurological effects presents a challenge for this objection. (15) Such evidence has been among the factors that have led some academics to raise the question of whether we should treat neurointerventions and prison on a par. (16) In defense of the original objection, it has been replied that even if, in some cases, prison infringes mental integrity to a similar extent as neurointerventions, the impact of prison on mental integrity is merely foreseen, whereas the threat that neurointerventions pose to mental integrity is intended. (17) Part III of this Article will critique this attempt to salvage the mental-integrity-based objection against neurointerventions. This Article will attempt to cast some doubt on whether the intention/side effect distinction has the moral weight in this context that has often been assigned to it. It will be argued that the intention/side effect distinction does not warrant regarding mandatory incarceration as being significantly less problematic than mandatory neurointerventions in cases where the adverse effects of prison and neurointerventions are similarly severe.

Part IV will discuss some of the practical implications of this argument. If we should regard the adverse effects of prison and neurointerventions as roughly morally equivalent (where they are similarly severe), one way to respond is to be equally willing to impose either and to allow the state to impose whichever is most effective at preventing crime. In contrast, this Article will favor a second, human-rights-based approach. I will suggest that the state has strong obligations to research techniques that minimize adverse so-called side effects or any adverse effects on mental integrity and to offer prisoners the choice where possible between prison and rehabilitative interventions. In the light of the philosophical discussion, this Article will make some suggestions about what would be the most ethically defensible interpretation and development of certain aspects of the legal right against degrading treatment.

1. EXAMPLES OF NEUROINTERVENTIONS

   As Areti Theofilopoulou notes, "[t]he most widely discussed case of neurointerventions in the context of criminal justice is that of anti-libidinal pharmacological agents administered to sex offenders." (18) In the literature on neurointerventions, anti-libidinal drugs (19) that reduce the effects or production of testosterone are considered neurointerventions because they have a considerable impact on the brain and on aspects of the individual's psychology such as sexual thoughts, desires, and motivations. (20) It has been suggested that the effects of anti-libidinal drugs on the brain are even more important in addressing sexual offending than the drugs' physical effects on sexual functioning. (21) Even if someone's ability to engage in penetrative sexual activity has been reduced/removed, the person can still find ways of committing serious sexual offenses if the desire/motivation to do so remains. (22) Don Grubin explains the link between testosterone and the motivation to commit sexual offenses as follows:

   In the male brain, testosterone receptors are most dense in hypothalamic nuclei, the amygdala and other areas of the limbic system, the prefrontal cortex, and the temporal cortex, all parts of the brain known to be involved in processing sexual stimuli or initiating or maintaining sexual behavior.... testosterone has effects on the responsiveness of both general and specific neurological arousal mechanisms, it influences the processing of sexual sensory stimuli, it impacts on motivation, attention, and mood, and it is associated with aggression and dominance, all of which are potentially relevant to sexually problematic behaviour. Therefore, treatments aimed at moderating the activity of testosterone ... can ... weaken the foundation on which sex offending sits. (23) A variety of jurisdictions currently administer anti-libidinal drugs to sex offenders under either statutory provisions that specifically concern sexual behavior (24) or general mental health legislation. (25) Depending on the jurisdiction, these interventions maybe offered on a voluntary basis within prison or in the community, (26) imposed as a compulsory treatment in the community or as a mandatory condition of parole, (27) or exchanged for early release. (28) It is not the purpose of this Article to engage in an analysis of legislation on this topic in a specific jurisdiction, but rather to discuss general moral principles and considerations relating to the human right against degrading treatment, which could be applied to such domestic laws. (29)

   Concerns have been raised that, despite the widespread use of anti-libidinal treatments within criminal justice systems, the evidence concerning their effectiveness is not robust. (30) However, some studies have suggested that, at least for some offenders, antilibidinal treatments are more effective than psychological therapies, such as cognitive behavioral therapy, although anti-libidinal interventions are usually administered in conjunction with psychological therapies. (31) Anti-libidinal treatments are also likely to be more effective at rehabilitating offenders post-release than incarceration alone. (32) Although incarceration prevents re-offending against members of the public (though not necessarily other prisoners) while the offender is detained, and some offenders subjected to longer sentences may "age out" of offending while incarcerated, (3) '' it has nevertheless been shown that incarceration has a "criminogenic effect" for a significant proportion of offenders (34) and likewise some group psychological behavior programs can also increase reoffending. (35)

   Research suggests the potential development of a wider range of rehabilitative neurointerventions in the future. Potential treatments include using drugs that modulate the neurotransmitter serotonin to reduce aggression and impulsivity (36) and using transcranial magnetic stimulation (TMS)--placing a device against the skull that transmits magnetic pulses to stimulate nerve cells in the brain--to increase empathy. (37)

   Neurointerventions may cause a range of potentially worrying mental and physical effects and side effects. (38) This Article will focus on the impact of neurointerventions on mental integrity, which, as explained below, is distinct from physical symptoms or suffering caused by these interventions. The mental integrity objection is particularly significant because it can be argued that all neurointerventions affect mental integrity, whereas it is possible to imagine...