Neuro-interventions as Punishment?

 By Corey H. Allen, Eddy Nahmias, and Eyal Aharoni 

Image courtesy of Airman Magazine on Flickr

Imagine you are a member of a jury in the trial of Robert Jones, a 25-year-old man charged with aggravated assault. Jones and his victim had an argument over a minor car accident, and Jones then attacked his victim with a metal pipe, breaking the man’s jaw and several ribs. The evidence is clear, and your jury finds Jones guilty. The sentence for such a felony is one to seven years in prison. What sentence would you suggest? 

Now, imagine that this trial occurred in the year 2041. Suppose that by that time, scientists have developed neuro-intervention technology to make specific changes to people’s neural processes. They can target the systems in the brain responsible for motivation so that convicted criminals lose any desires to commit crimes, and of the thousands having such neuro-interventions, none has committed further crimes. Imagine that Jones, along with the lawyers and the victim, agree to a sentence that includes this neuro-intervention, which requires 20 two-hour sessions over three weeks. Assuming that it works so that Jones would commit no further crimes, would it reduce the sentence you suggested? How much? Would you reduce the sentence more if the neuro-intervention sessions were painful so that Jones also suffered for his violent crime? Would you reduce it more if the neuro-intervention also caused Jones to understand why his crime was wrong and to feel regret? And would you support the use of such a neuro-intervention or not? 

This neuro-technology doesn’t exist yet, but twenty years from now, it might. That’s why we need to confront these difficult ethical questions now. Below, we will report some results of preliminary studies we did to survey people’s views, using scenarios like the one above. We did not specify what type of neuro-intervention was used, but several could be developed to this purpose, such as deep-brain stimulation (DBS), brain-computer interfaces (BCIs), optogenetics, or even the sort of pharmacological treatments already used to alter the impulses of some sex offenders (Schmucker, & Lösel, 2017). Another possibility is non-invasive brain stimulation techniques (NIBS) such as transcranial direct current stimulation (tDCS). Already, a small emergent field of research utilizing tDCS has had some success in short-circuiting the causes of antisocial behaviors. For instance, work conducted by Choy, Raine, and Hamilton (2018) suggests that using tDCS to prime neurons to fire more readily in the prefrontal cortex (a region implicated in the inhibition of aggression) can lead to reductions in people’s intentions to commit aggressive acts, such as violent and sexual assault, and can increase judgments that those acts are wrong.  

In a similar study, Molero-Chamizo and colleagues (2019) showed that increasing prefrontal cortex excitability using tDCS can reduce aggressive behavior (i.e., physical aggression, anger, and verbal aggression). The researchers also observed that the most violent subset of their sample (i.e., murderers) had the largest reductions in hostility-specific aggression—a type of aggression driven by high emotions and impulsivity in the face of a perceived threat. A review of the literature (Romero-Martínez, Bressanutti, & Moya-Albiol, 2020) also suggests that these types of interventions are more likely to be successful in offender populations rather than general populations. 

Image courtesy of Wikimedia Commons

These experiments suggest that neuro-interventions can at least temporarily reduce traits relevant to antisocial tendencies (i.e., aggression). What our futuristic scenario above would require is longer-lasting rehabilitation. Such a possibility should remind people of Clockwork Orange, along with some of the disturbing questions raised by it and by neuro-interventions in general: What are the potential side-effects? At what point do such treatments encroach on one’s autonomy (even if one provides consent)? Who will control such technology?   

Other questions have received relatively less attention and provided the motivation for our research: Would such neuro-intervention, which promises immediate rehabilitation and deterrence of criminals, be seen as an adequate replacement for punishment? If not, how does it fall short? Do people want wrongdoers to experience a real (not “installed”) learning process to come to understand the wrongfulness of their crimes and to feel remorse and apologize for them? Do neuro-interventions rob us of our right to exact retribution? To answer these questions, we can begin by considering what the main philosophical theories of punishment suggest.  

Deontological/retributive theories of punishment posit that causing criminal offenders to suffer proportionately to the harm they caused is an appropriate and necessary response to a criminal act (e.g., Moore, 2010). Therefore, individuals with retributive views of punishment are unlikely to be satisfied with neuro-interventions as a response to crime, unless the neuro-intervention causes offenders to suffer in an appropriate way. Communicative theories propose that suffering is only appropriate to the extent that it serves a role in communicating to offenders that they have harmed their community and in inducing an understanding of their wrongs, ideally experiencing regret and a desire to apologize (Duff, 2001; Gollwitzer & Denzler, 2009; Gollwitzer, Meder, & Schmitt, 2011; Nahmias & Aharoni, 2017; Aharoni, Simpson, Nahmias, & Gollwitzer, forthcoming). Therefore, communicative theorists might accept neuro-intervention only if it could induce moral sensitivity in the offender (i.e., understanding that the act they committed was wrong), similar to the aforementioned results of Choy, Raine, and Hamilton’s (2018) tDCS experiment. Finally, consequentialist punitive motives should be largely satisfied by such neuro-interventions. Consequentialism is a forward-looking position, concerned solely with the social benefits of deterrence and rehabilitation that punishment might produce.  

By varying the description and resulting effects of neuro-intervention, our survey about people’s responses to futuristic neuro-interventions allow us to examine the degree to which people’s underlying reasons for their punishment recommendations connect to these philosophical theories on punishment. 

Here we describe initial results from our research project exploring these questions in a sample of 444 college students (59% female, mean age: 20.1yrs). First, participants read about Robert Jones’ crime of aggravated assault and were asked to indicate their sentencing recommendation. Then, they were told to imagine the future neuro-intervention technology with 100% effectiveness in eliminating recidivism, and that Jones, the victim, and the lawyers have agreed for him to receive it. Participants were randomly assigned to read one of four scenarios, describing the neuro-intervention as inducing understanding or not and as involving suffering or not. More specifically, the scenarios stated that the neuro-intervention (20 two-hour sessions) either “changed Jones’ thinking and emotions, so that he fully understood why such crimes are wrong, felt deep regret and guilt for what he did, and completely lost any desires to commit crimes” or “did not change Jones’ beliefs or attitudes, but he completely lost any desires to commit crimes,” and that it is either “extremely unpleasant and causes Jones significant pain and anxiety” or “causes no pain or suffering.” 

We then measured participants’ punishment recommendations after the description of the neuro-intervention, as well as their satisfaction with the prospect of Jones’ being released after the neuro-intervention.  

We reasoned that if people value the communicative features of punishment, then they should be more satisfied with a neuro-intervention that causes the offender to understand the wrongfulness of their crime and will reduce their recommended prison sentence. Likewise, if people value the retributive features of punishment, they should be more satisfied by a neuro-intervention that causes suffering. Finally, if people have both punishment motivations, they should be most satisfied with a neuro-intervention that causes both understanding and suffering.  

Our results in this sample of participants provided support only for the communicative features of punishment. When the neuro-intervention induced understanding and regret in the offender, participants reduced their recommended prison sentences and were more satisfied with the prospect of the offender’s release compared to when it did not induce an understanding of wrongfulness (see Figures 1 & 2). However, whether the neuro-interventions caused the offender to suffer had no effect on sentencing recommendations, nor satisfaction, and there were no interaction effects. 

Images courtesy of Aharoni et al.

Finally, the majority (58%) of the participants believed that the neuro-interventions as described in the vignettes were possible in the future, and 77% agreed that “if this neuro-intervention were in fact developed, it should be used for at least some serious crimes.” So, our initial results suggest that people may be willing to use neuro-interventions to treat criminals, and that they may prefer that the neuro-interventions work (as current NIBS do) without causing suffering. And our results suggest that people prefer that the neuro-interventions cause offenders to understand why their actions are wrong (as some of the NIBS research above suggests may be possible). Of course, this study leaves many questions unanswered. So, we hope to develop further studies to examine people’s attitudes about future possibilities for neuro-intervention in the legal system. Ethical debates about how to develop, or limit, such possibilities must be informed by such attitudes. 

References 

1. Aharoni, E., Simpson, D., Nahmias, E., & Gollwitzer, M. (forthcoming). A painful message: Testing the roles of suffering and understanding in punishment judgments in second- and third-party contexts. Zeitschrift für Psychologie.  
2. Choy, O., Raine, A., & Hamilton, R. H. (2018). Stimulation of the prefrontal cortex reduces intentions to commit aggression: a randomized, double-blind, placebo-controlled, stratified, parallel-group trial. Journal of neuroscience, 38(29), 6505-6512. 
3. Duff, R. A. (2001). Punishment, communication, and community. Oxford University Press, USA. 
4. Gollwitzer, M., & Denzler, M. (2009). What makes revenge sweet: Seeing the offender suffer or delivering a message?. Journal of Experimental Social Psychology, 45(4), 840-844. 
5. Gollwitzer, M., Meder, M., & Schmitt, M. (2011). What gives victims satisfaction when they seek revenge?. European journal of social psychology, 41(3), 364-374. 
6. Molero-Chamizo, A., Riquel, R. M., Moriana, J. A., Nitsche, M. A., & Rivera-Urbina, G. N. (2019). Bilateral prefrontal cortex anodal tDCS effects on self-reported aggressiveness in imprisoned violent offenders. Neuroscience, 397, 31-40. 
7. Moore, M. S. (2010). Placing blame: A theory of criminal law. Oxford University Press. 
8. Nahmias, E., & Aharoni, E. (2017). Communicative Theories of Punishment and the Impact of Apology. In Rethinking Punishment in the Era of Mass Incarceration (pp. 144-161). Routledge. 
9. Romero-Martínez, Á., Bressanutti, S., & Moya-Albiol, L. (2020). A systematic review of the effectiveness of non-invasive brain stimulation techniques to reduce violence proneness by interfering in anger and irritability. Journal of clinical medicine, 9(3), 882. 
10. Schmucker, M., & Lösel, F. (2017). Sexual offender treatment for reducing recidivism among convicted sex offenders: a systematic review and meta‐analysis. Campbell Systematic Reviews, 13(1), 1-75. 

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Corey H. Allen is a PhD candidate in Neuroscience with a Neuroethics concentration at Georgia State University. His work in the Cooperation, Conflict, & Cognition Lab focuses on the psychology and neuroscience of moral decision making.  

Eddy Nahmias is professor and chair of the Philosophy Department and associate faculty in the Neuroscience Institute at Georgia State University. His current research focuses on free will, responsibility, and punishment. He is also a member of the AJOB Neuroscience editorial board.  

Eyal Aharoni is an associate professor of psychology, philosophy, and neuroscience at Georgia State University where he directs the Cooperation, Conflict, and Cognition lab. 

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Allen, C. H, Nahmias, E., & Aharoni, E. (2021). Neuro-interventions as Punishment? The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2021/03/neuro-interventions-as-punishment.html