Folk Jurisprudence and Neurointervention

Our chapter is motivated by an underlying assumption that layperson’s intuitions, beliefs, and judgments about moral and legal issues and public policy—which we refer to as “folk jurisprudence”—is relevant to philosophical and legal theorizing about the normative status of the use of neurological interventions. While we are quick to acknowledge that researchers need not be entirely beholden to the dictates of folk jurisprudence, we nevertheless believe that layperson’s attitudes about the relationship between neuroscience and the law ought to at least serve as feasibility constraints when it comes to the important project of getting from theory to practice. Given our beliefs concerning the relevance of folk intuitions to philosophical theorizing and public policy, we set out to explore these intuitions in a systematic way. So, we present the findings from three studies we ran which investigated people’s intuitions about the following practices and policies: (a) using interventions to reduce implicit bias in judges and jurors, (b) using interventions to reduce violence impulsivity on violent offenders, and (c) using interventions to improve moral behavior not only in prison populations but also in the general population. Having presented our findings, we then discuss what we take to be the relevance of this type of research to philosophy, law, and public policy.

Offering Neurointerventions to Offenders With Cognitive-Emotional Impairments

A wide variety of medications and neuromodulation techniques are being investigated to manage risk factors for deviant behavior. If certain neurointerventions can restore impaired moral decision-making and behavior in offenders, should the criminal justice system be permitted to use such neurointerventions and, if so, under which conditions? In this chapter, the authors argue that it can be ethical to offer neurointerventions to offenders as a condition of probation, parole, or sentence reduction, provided that the fulfillment of five minimal ethical conditions is verified on a case-by-case basis. The authors further argue that forcing neurointerventions as part of an offender’s sentence or as a postprison requirement is both ethically and practically problematic, with the possible exception of benign neurointerventions without side effects.

Why Means MatterLegally Relevant Differences Between Direct and Indirect Interventions into Other Minds

Whether there are intrinsic differences between different means to intervene into brains and minds is a key question of neuroethics, which any future legal regulation of mind-interventions has to face. This chapter affirms such differences by a twofold argument:. First, it present differences between direct (biological, physiological) and indirect (psychological) interventions that are not based on crude mind–brain dualisms or dubious properties such as naturalness of interventions. Second, it shows why these differences (should) matter for the law. In a nutshell, this chapter suggests that indirect interventions should be understood as stimuli that persons perceive through their external senses whereas direct interventions reach brains and minds on different, nonperceptual routes. Interventions primarily differ in virtue of their causal pathways. Because of them, persons have different kinds and amounts of control over interventions; direct interventions regularly bypass resistance and control of recipients. Direct interventions also differ from indirect ones because they misappropriate mechanisms of the brain. These differences bear normative relevance in light of the right to mental self-determination, which should be the guiding normative principle with respect to mind-interventions. As a consequence, the law should adopt by and large a normative—not ontological—dualism between interventions into other minds: nonconsensual direct interventions into other minds should be prohibited by law, with few exceptions. By contrast, indirect interventions should be prima facie permissible, primarily those that qualify as exercises of free speech. The chapter also addresses a range of recent objections, especially by Levy (in the previous chapter).

Neuroenhancement, Coercion, and Neo-Luddism

This chapter addresses the claim that, as new types of neurointervention get developed allowing us to enhance various aspects of our mental functioning, we should work to prevent the use of such interventions from ever becoming the “new normal,” that is, a practice expected—even if not directly required—by employers. The author’s response to that claim is that, unlike compulsion or most cases of direct coercion, indirect coercion to use such neurointerventions is, per se, no more problematic than the pressure people all find themselves under to use modern technological devices like computers or mobile phones. Few people seem to believe that special protections should be introduced to protect contemporary Neo-Luddites from such pressures. That being said, the author acknowledges that separate factors, when present, can indeed render indirect coercion to enhance problematic. The factors in question include lack of safety, fostering adaptation to oppressive circumstances, and having negative side effects that go beyond health. Nonetheless, the chapter stresses that these factors do not seem to be necessary correlates of neuroenhancement.

Chemical Castration as Punishment

This chapter explores whether chemical castration can be justified as a form of criminal punishment. The author argues that castration via the drug medroxyprogesterone acetate (MPA), or some similar drug, does not achieve the punishment aims of retribution, deterrence, or incapacitation, but might serve as punishment in the form of rehabilitative treatment. However, current U.S. chemical castration statutes are too broad to be justified as rehabilitative. The state is warranted in targeting psychological states in criminal defendants for rehabilitative treatment where such states (a) act as a primary cause of a criminal offender’s crime and (b) give rise to extraordinary worries that the offender will recidivate. Current statutes qualify criminal offenders for castration who do not have overwhelming sexual urges or other psychological states causally related to their crime that may be treated with MPA. Thus, even assuming the efficacy of MPA, such statutes are unjustifiable because they apply chemical castration to offenders for whom castration will have no rehabilitative effect.

Neurointerventions and Business Law

Neurointerventions of various sorts open up options that law can have a hard time dealing with. While the effects of neurotechnology on criminal law have been extensively investigated, the effects on business law are just as important. New and potential technology could allow for more powerful methods of job candidate screening, monitoring, and performance improvement than the conventional methods of interviewing, training, motivational programs, and free caffeine dosing in the staff break room. This chapter examines the legal, social, and moral issues involved in workplace neurointerventions, showing how different the business law context is from the criminal law context, how a different set of rules and expectations govern employment relationships, and how both employers and employees could be motivated to use neurointerventions, and we describe a basic set of different policy options for how to regulate such technology that vary according to what social values are maximized.

“It Will Help You Repent”

This chapter explores The question of whether prison inmates suffering from attention-deficit/hyperactivity disorder (ADHD) should be administered a psychopharmacological intervention (methylphenidate) for their condition. The theoretical starting point for the discussion is the communicative theory of punishment, which understands criminal punishment as a form of secular penance. Viewed through the lens of the communicative theory, the provision of pharmacological treatment to offenders with ADHD need not necessarily be conceived of as an alternative to punishment, but as an aid to achieving the penological ends of secular penance. The criminal justice system punishes offenders who commit offences prohibited under the criminal law, and the hope is that this will lead them to become repentant, to start reforming themselves, and to reconcile with those whom they wronged. However, the neurophysiological obstacles associated with severe ADHD present serious obstacles to achieving repentance and self-reform. As a remedy, the chapter proposes that to achieve those aims, criminal offenders diagnosed with ADHD should be offered the option to undergo pharmacological treatment. This proposal is defended from the objection that secular penance made possible by methylphenidate is less authentic.

Judicious Use of Neuropsychiatric Evidence When Sentencing Offenders With Addictive Behaviors

This chapter examines how courts in commonwealth jurisdictions have used neuropsychiatric evidence as a mitigating factor in sentencing, in cases involving (a) drug- and gambling-addicted offenders and (b) offenders prescribed dopaminergic medication for a movement disorder. The authors first examine how courts have approached criminal offending linked in some way to drug or behavioral addictions. Generally, commonwealth courts see drug- or gambling-addicted offenders as morally blameworthy agents deserving of imprisonment. Some courts have occasionally adopted a medical stance and allowed an individual’s drug or gambling addiction to mitigate their sentence. The justification for adopting a medical stance has arguably been the greater economic and public health benefits of a medical approach rather than a strong embrace of neuropsychiatric evidence. In contrast, in two recent cases in which criminal offences have been attributed to dopaminergic medication prescribed for movement disorders, courts have strongly relied upon neuropsychiatric evidence as a mitigating factor at sentencing. Reliance on this evidence was unnecessary in these cases, as the noncustodial sentences imposed on patients could have been justified on other grounds. This evidence was also misapplied. The authors conclude with an analysis of the implications of this misapplication for the use of neurointerventions to reduce addiction-related offending. This analysis is vital to ensuring that future courts determining an appropriate neurointervention for a movement-disordered offender unwilling to reduce their medication will not be hamstrung by a conflation of causality and compulsion.

Is There Anything Wrong With Using AI Implantable Brain Devices to Prevent Convicted Offenders from Reoffending?

The world’s first clinical trial using advisory brain implant operated by artificial intelligence (AI) has been completed with significant success. The tested devices predict a specific neuronal event (epileptic seizure), allowing people implanted with the device to be forewarned and to take steps to reduce or avoid the impact of the event. In principle, these kinds of artificially intelligent devices could be used to predict other neuronal events and allow those implanted with the device to take precautionary steps or to automate drug delivery so as to avoid unwanted outcomes. This chapter examines moral issues arising from the hypothetical situation where such devices controlled by AI are used to ensure that convicted criminal offenders are safe for release into society. We distinguish two types of predictive technologies controlled by AI: advisory systems and automated therapeutic response systems. The purpose of this chapter is to determine which of these two technologies would generate fewer ethical concerns. While there are moral similarities between the two technologies, the latter raises more concerns. In particular, it raises the possibility that individual moral decision-making and moral autonomy can be threatened by the use of automated implants.

Neuroprosthetics, Behavior Control, and Criminal Responsibility

Arguments for moral and criminal responsibility generally assume that the control necessary for responsibility rules out all forms of brain manipulation. The agent’s mental states must be the direct causes of her actions. Yet when they operate effectively, neuroprosthetics do not undermine but restore control of motor and mental functions that have been lost from brain injury or impaired by neurodevelopmental and neurodegenerative disorders. Neural implants enable varying degree of voluntary agency by restoring varying degrees of the relevant functions. Whether or to what extent a person with a device implanted in her brain can be criminally responsible for an action, omission or consequence of an action or omission depends on the extent to which she can control the device and the thought and behavior it is designed to regulate. I present actual and hypothetical cases involving three different types of brain implants to explore how individuals with these devices implanted in their brains can control their mental states and actions. Brain implants that alter motor and mental functions should make us reconsider standard interpretations of psychological and physical criteria of criminal responsibility.