In a paper published in the December issue of Neuroethics (check it out, it’s a great read!) my co-author Professor Lauren Solberg and I discuss the legal and ethical challenges associated with using cognitive interventions to reduce recidivism.
Here I will discuss a few of the key issues from our paper. I am providing readers with the definitions we used, as they may not be universal and are the basis for (and significantly influence) our conclusions.
First, we define cognitive interventions as nootropics, surgical and non-surgical interventions, and medical devices that act on the brain to reduce recidivism. We believe this terminology avoids the connotation of these interventions as treatment or enhancement.
Second, we ultimately determine that the implications of these cognitive interventions depends on whether any particular intervention is punishment, treatment, or enhancement.
Thus, we define enhancement as improving an individual’s cognition to a level above his/her own baseline where no recognized medical condition plays a role in that capacities deviation from “normal” or “acceptable.” This definition makes the individual’s own capacities and functioning the reference point, rather than focusing on societal average, which recognizes that a range of all cognitive capacities exists in society.
We define treatment as the restoration of an individual’s capacities to his/her normal level of cognitive functioning where a recognized medical condition exists to underlie that deviation.
[We acknowledge that where any intervention falls can change as society changes. Through the process of medicalization, what was once considered normal variation along a spectrum can become considered the product of a medical condition.]
Finally, we define punishment as a penalty imposed following a guilty verdict (by trial or plea bargain) that inflicts pain or unpleasant consequences.
Legal Challenges
Punishment
Mandating cognitive interventions as part of punishment raises Eighth Amendment issues, which in our view represents a legal challenge rooted in ethical arguments. For example, the use of chemical castration, a long-used cognitive intervention, has raised a number of Eighth Amendment questions among academics. However, castration has raised relatively few constitutional challenges, and even fewer victories for offenders arguing that it constitutes cruel and unusual punishment. It’s worth noting that some contend chemical castration constitutes treatment for sexual paraphilias, while others contend it constitutes punishment – at least one court has recognized the imposition of chemical castration as a condition of parole release as punishment (People v. Foster, 2002). We and others contend this is likely attributable to the near universal societal dislike for sex offenders. However, if the criminal justice system expands its cognitive interventions as part of punishment schemes, these interventions may face Eighth Amendment challenges on the grounds that they interfere with mental integrity and cognitive liberty.
As Stinneford (2006) notes, chemical castration deprives an individual of three fundamental rights, two of which may be applicable to other cognitive interventions – bodily integrity and freedom of thought. He contends that a punishment must not be designed to control capacities fundamental to human dignity (e.g., reason and free will) and it must not treat the offender’s suffering with indifference (the very purpose of chemical castration according to Stinneford).
We contend that interventions that truly increase cognitive ability (e.g., reducing impulsivity, increasing ability to learn new skills, etc.), rather than simply eliminating a targeted undesirable behavior, may be said to have greater restorative aims, making it less likely to run afoul of the Eighth Amendment.
Treatment
Because so much of the law regarding forcible treatment focuses on dangerousness, courts would need to determine whether they can reasonably expand the understanding of dangerousness to self and others beyond an immediate threat to consider more downstream dangerousness. There is a logical, ethical distinction between those individuals who present an obvious and immediate danger, and those who may be an eventual danger to society by reoffending either during incarceration or upon re-entry into society.
Ethical Challenges
Preceding guest blogger Jonathan Pugh handily discussed the ethical issues associated with coercion and informed consent, so I will not endeavor to discuss those here. Instead, I will focus on the ethical issues that arise from increasing access to cognitive interventions.
The Presidential Commission for the Study of Bioethics report, “Gray matters: Topics at the intersection of Neuroscience, Ethics, and Society,” advocates for widespread access to cognitive interventions. The report contends that limiting cognitive intervention to individuals who already possess greater access to social goods would be unjust. In light of this assertion, it seems reasonable that prisoners may eventually be given these interventions at the taxpayer’s expense.
Prisoners’ health care is paid for by the applicable Department of Corrections (DOC). Thus, if cognitive intervention is treatment, the cost may be covered just as it would if the prisoner needed access to any other medication. However, if cognitive intervention is considered enhancement, determining who would be responsible for the expense is complicated. Departments of Corrections have limited resources. Thus, it might be that cognitive intervention is rationed, which raises a number of ethical issues. We might avoid these issues by determining whether the cost of cognitive intervention is less than the economic impact of the future crimes committed and the cost of re-incarceration – and if that cost is less it may make sense not to ration at all.
Additionally, while some cognitive intervention’s require only short term use to have long-lasting effects (or in the case of some surgical interventions – only require one intervention for permanent results), some cognitive intervention’s may require prolonged use (or use that is at least longer than the period of incarceration). DOCs do not continue to pay for medical care once an individual is released. This begs the question of who pays. Former inmates may acquire coverage through Medicaid, which may cover the cost of cognitive intervention upon release, but not everyone who is released is going to be eligible for or will apply for Medicaid. Medicaid may also determine that cognitive intervention is not a covered therapy, especially if it is not viewed as a medical necessity. If a former inmate is unable to afford the intervention after release and the DOC refuses to assume the cost, there are significant ethical questions as to whether they should be started on the drug at all during their incarceration.
Changing topics entirely, in my next post I will discuss an issue that has generated significant debate over the last eight or so years – the persuasiveness of neuroscience information to the lay public.
People v. Foster, 124 Cal. Rptr. 2d 22 (Cal. Ct. App. 2002)
Stinneford, J. F. (2006). Incapacitation through maiming: Chemical castration, the Eighth Amendment, and the denial of human dignity. University of St. Thomas Law Journal, 06-25.
