The use of "direct brain interventions" on criminal defendants is currently a hot topic. Articles by Nicole Vincent and Elizabeth Shaw, both published in 2012, examine the ethics of using surgical and/or drug interventions to make offenders competent for trial or punishment, or as a requirement of a punishment program (e.g., as conditions for parole or in lieu of incarceration).
Imagine a schizophrenic defendant awaiting trial for murder. His defense attorney argues he is incompetent to stand trial, and the prosecution argues that administration of anti-psychotic drugs could make him competent. Ought the court order the involuntary administration of the drugs?
Here’s another, more common case: this New York Times article talks about the increasing numbers of offenders in prison with severe dementia. (Criminal offenders are more likely to suffer from dementia as they age, partly because of higher rates of drug use and incidences of head injuries.) Because of their dementia, some offenders serving time in high-security prisons no longer remember committing the crime for which they are being punished. Is the state justified holding an offender in prison once he has forgotten his crime? And if there were drugs that could be used to stave off dementia, ought the state force offenders to take them?
According to Vincent, state administration of direct brain interventions is unjust if they undermine an offender’s authenticity and ownership of his mental capacities. This is because administration of such interventions might result in mental capacities that “…will not be [an offender’s] own and thus possession of those capacities will not confer ‘fully responsible’ status on them anyway.” Further, such interventions “…which implement large-scale changes in one fell swoop could sever psychological continuity between the pre-treatment and post-treatment person.”
Vincent's point is that a schizophrenic defendant might emerge as a completely new person after a year of therapy and carefully monitored administration of medication. In this case, it doesn’t really matter that the defendant is now competent – because he is no longer the person responsible for the crime committed.
There is a similar worry regarding an incarcerated offender who has severe dementia. In this case, the prisoner who no longer remembers his crime may not be the same person – in the relevant psychological respects – that committed the crime resulting in incarceration. If he is not, the state may no longer be justified in holding him in prison. However, if the state can stave off an offender's dementia via administration of medication so that he is competent to serve his full sentence, it may be ethical to do so. (For a nice discussion of the state’s obligations with regard to prisoners with dementia, see Annette Durfner’s recent paper.)
In my next post, I'll discuss the ethics of a state-imposed intervention that does not produce a new person, but does radically alter an offender in the name of punishment: chemical castration.