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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
*
[email protected]
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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.

Type
Papers
Information
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 

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References

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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), 502–509Google Scholar, 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), 166–198CrossRefGoogle Scholar, provide overviews of the relevant statutes.

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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.

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25 Criminal Procedure (Scotland) Act 1995 § 57a.

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38 (1992) 15 EHRR 437.

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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.

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61 Duff, Punishment, Communication and Community, 22.

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