TITLE NEURO-INTERVENTIONS AND THE LAW: Regulating Human Mental Capacity
EDITOR Dr Nicole A Vincent
BLURB VERSION 20150126
Modern neuro-interventions hold out the promise of non-invasively but directly, effectively, efficiently, and maybe even permanently altering people’s mental capacities. The chapters in this volume interrogate a range of issues that spring from pertinent opportunities and challenges – e.g. clinical, empirical, doctrinal, conceptual, etc – that modern neuro-interventions raise for the law, and they are divided thematically into five sections as follows.
The first three sections are about the use of neuro-interventions in the criminal law, and these sections are tied together by the following questions. How sane is sane enough for criminal responsibility? How sane is sane enough for standing trial? How sane is sane enough for execution or other forms of punishment? How sane is sane enough for release from incarceration? These questions are stated here in the language of mental disease and disorder – in the language of sanity – but the central issues almost certainly implicate mental capacity. Namely, how much and which kind of mental capacity must people possess at four stages in time – during the commission of a crime, at trial, while punishment is administered, and following release from detention – to be responsible, competent, or fit in the relevant senses in criminal law? It is not infrequent that defendants and convicted offenders are deemed to be insufficiently mentally competent or fit to stand trial, to be punished (e.g. executed, or simply to remain in prison), or to be released back into society after they have served their time in prison. And when this happens, it is not infrequent for the criminal justice system to administer medications (sometimes forcibly) to make these people fit or competent for trial, for punishment, or for release back into society. From this stem many important conceptual, ethical, legal, clinical, and medical questions.
The chapters contained in Section 1 discuss issues surrounding making people competent/fit to stand trial through the use of neuro-interventions — for instance, making insane people “sane enough” so that they can stand trial and answer for their crimes. For instance, in Riggins v. Nevada (1992) the court held that it was generally permissible to administer anti-psychotic drugs that make defendants competent to stand trial, as long as this is medically appropriate and the least intrusive means available. In Sell v. United States (2003) the US Supreme Court clarified this position by ruling that it is permissible to forcibly medicate a defendant for the sole purpose of making them competent to stand trial, as long as the treatment would most likely be effective, no better medical alternatives are available, and important state interests are at stake (e.g. bringing criminals to justice).
The chapters contained in Section 2 discuss issues surrounding making people competent/fit for punishment through the use of neuro-interventions – for instance, making insane people “sane enough” for execution through the forced administration of anti-psychotic medications – or other pertinent ways of using mental capacity heightening interventions in the context of criminal punishment. Defendants are sometimes treated with anti-psychotic drugs to restore their competence for punishment — e.g. in Singleton v. Norris (2003) anti-psychotic drugs were forcibly administered to a condemned inmate to make him competent for execution by lethal injection. But even if we do not endorse capital punishment, we might still endorse the more moderate idea that inmates who develop mental disorders while serving a prison sentence should receive medical treatment, and not only because prisoners retain a right to adequate medical care, but to ensure that they can remain in prison so that the retributive aim of incarceration (one of the penological goals cited in Ford v. Wainright (1986)) can continue to be achieved.
The chapters contained in Section 3 discuss issues surrounding making people competent, fit, and safe through the use of neuro-interventions for release back into society around the time or after they have served their prison sentence — for instance, making it a condition of release that sex offenders undergo chemical castration. In part due to advances in neuroscience and psychopharmacology, but also due to the staggering costs involved in keeping people incarcerated, there has been a recent re-surgence of interest in questions like whether, instead of punishing criminal offenders, we should instead find ways of treating them to make them good/safe. Alternatively, whether the criminal justice system should be permitted to make it a condition that (e.g.) convicted sexual offenders must submit themselves to chemical castration as a condition of their release back into society to make them safe for release.
The chapters contained in Section 4 discuss issues surrounding the use of neurointerventions for neuro-enhancement purposes. Questions addressed include whether people should be allowed to use controlled substances like modafinil and methylphenidate, or uncontrolled substances like phenylpiracetam, and techniques like transcranial direct current stimulation of the brain – putative cognitive enhancement techniques – to improve their own mental abilities beyond normal levels, to get better grades at college, or to get a competitive advantage in the workforce? But maybe this question approaches the debate from completely the wrong angle. Maybe, rather, some people should be expected to enhance themselves, and maybe they would be negligent if they failed to do so. For instance, surgeons performing long, cognitively demanding, and tiring operations; pilots on long-haul flights; or anyone else for that matter whose job involves high stakes and demands the highest grade performance?
The chapters contained in Section 5 introduce broader conceptual and doctrinal reflections on how the stance we take on the use of neuro-interventions in these different legal contexts reflects on our understanding of the aims of criminal law, tort law, and medical law. For instance, what does the increasing move towards diversion courts and offering treatments rather than incarceration tell us about the traditional aims of criminal justice, and how those aims might now relate to clinical or medical aims? What challenges do neuro-interventions pose to traditional views about the objects of responsibility judgments? Or, perhaps, how must we think about responsibility in order to make sense of our reflective intuitions about responsibility in an age where the boundary between human and machine is blurred through brain-computer interfaces? And, in general, what can we learn about our own normative presuppositions by reflecting on the use and regulation of human mental capacity through neuro-interventions in such contexts?