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Respect, Punishment and Mandatory Neurointerventions

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Abstract

The view that acting morally is ultimately a question of treating others with respect has had a profound influence on moral and legal philosophy. Not surprisingly, then, some scholars forcefully argue that the modes of punishment that the states mete out to offenders should not be disrespectful, and, furthermore, it has been argued that obliging offenders to receive neurological treatment is incompatible with showing them their due respect. In this paper, I examine three contemporary accounts of what showing respect for offenders in our sentencing practices would amount to: that it involves not interfering with offenders’ capacities for rationality and autonomy, that it should not undermine offenders’ prospect of reform, and that it amounts to treating offenders as if opaque. I then critically discuss whether any of these accounts plausibly imply that mandating neurointerventions to some offenders is necessarily morally wrong. I argue that they do not.

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Notes

  1. I understand mandatory neurointerventions as interventions mandated by the state as, or as part of, a criminal sanction that exerts their effect(s) directly on the recipient’s brain.

  2. As might be clear, I am going to assume that respect-constraints on punishment should be understood to also apply to non-punitive measures, such as rehabilitative measures, that a state may pursue in the name of criminal justice. This seems to me a plausible assumption. At least, I cannot think of a nonarbitrary reason as to why this should not be the case. But if the reader disagrees, she could simply take what follows to be a conditional discussion. That is, a discussion of what would follow in regard to the permissibility of mandating neurointerventions if non-punitive measures should be constrained by the same consideration of respect as punitive measures.

  3. Recognition respect is contrasted by Darwall [21] with appraisal respect. This latter form of respect is an attitude we might have towards some persons, but not others, based on whether they show great skill as, for instance, a musician or have a strong character, and which, as such, does not ground general constraints on how members of a certain group should be treated. Furthermore, this kind of respect can be granted to a greater or lesser extent to an individual, as well as be lost or retracted if the individual fails to live up to some respect-giving standard of action or behaviour [20].

  4. For similar interpretations of Kleinig as defending capacity-based respect constraint on punishments, see e.g. ([24] p. 186–187) and ([25], p. 117).

  5. For the present purposes, we need not scrutinise further whether this is indeed a plausible approach to identifying disrespectful and thus morally wrong kinds of punishment, but for some persuasive arguments that it is not, see, for example, [25].

  6. Jesper Ryberg [27, chapter 3] has provided a similar argument in regard to the concern that neurointerventions would necessarily have an effect on offenders’ capacity for mental control.

  7. For this view see, for example, [34].

  8. At least this seem to be true if: (1) there is no afterlife, and (2) the offender has not already been reformed prior to him being killed by the state.

  9. It is worth noting that strictly speaking arguing in either of these manners seems to imply that the central issue regarding violations of the opacity constraint is whether a given offender consents to information about his mental capacities being employed by the courts and not whether the neurointervention is mandated by a court. To put it differently, it is conceivable that some offenders will consent to courts using and acting on their psychological information while others will not. And so, in the former cases no violation of the opacity constraint will have taken place if the state obliges an offender to receive a neurointervention, while a violation of the constraint would take place if the same was to happen to the latter group of offenders. What this shows is that the opacity constraint might in fact not rule out the use of mandatory neurointerventions per se, but rather the imposition of involuntary neurointerventions. I will, however, not pursue this issue further here.

  10. An interesting objection that I will not discuss at length here as it would take us too far astray, is that because the offender has refused to let the state act on information about his psychological history to avoid harming him, he is himself (at least partly) responsible for the harm that befalls him when he, for instance, develops PTSD or relapses into depression. Thus, the state would do no wrong if a punishment was harmful in the relevant sense.

  11. One interesting way one could do so may, for example, be to explore further whether respect requires that modes of punishment do not pose a symbolic threat to offenders’ agency, and whether such a constraint is violated by mandatory neurointerventions (see e.g. [41]).

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Acknowledgments

The author thanks Jesper Ryberg, Ditte Marie Munch-Jurisic, Thomas Søbirk Petersen, Frej Klem Thomsen, Kasper Lippert-Rasmussen, Sigri Gaïni, Elizabeth Ashford, Cecilia Vollmer, two anonymous reviewers and the editors of Neuroethics for their valuable comments on an earlier draft of this paper.

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  1. Department of Philosophy and Science Studies, Roskilde University, Universitetsvej 1, 4000, Roskilde, Denmark

    Sebastian Jon Holmen

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Holmen, S.J. Respect, Punishment and Mandatory Neurointerventions. Neuroethics 14, 167–176 (2021). https://doi.org/10.1007/s12152-020-09434-8

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