1.1 Introduction
Until recently, our inner mental lives have enjoyed a considerable degree of natural protection from others’ gaze and influence. Third parties are sometimes able to attribute particular mental states to us on the basis of our behaviour, particularly if they know us well. These parties are also often able to influence our mental states by means of rational persuasion or manipulation. But our thoughts, desires and emotions have typically had some defence against others’ access and influence by virtue of the fact that these mental phenomena play out in our brains, shielded by a solid skull.
Advances in science and technology are, however, beginning to change things. Today, a range of technologies and techniques are being developed, used and introduced that enable others to access, monitor, and influence mental states in novel ways. Examples include nudging interventions that influence our choices by harnessing our cognitive biases or judgement-making mental shortcuts,Footnote 1 AI-based emotion recognition through facial analysisFootnote 2 and the use of microtargeting.Footnote 3
Specific attention has been devoted, furthermore, to neurotechnologies – that is, technologies that, in one way or another, interact directly with the brain, either to obtain information about a person’s mental phenomena or to modify such phenomena and hence, ultimately, the person’s behaviour. Examples are neuroimaging,Footnote 4 brain-computer interfacesFootnote 5 and brain stimulation.Footnote 6 And while not strictly speaking a technology, neuropharmaceuticals similarly work by interacting directly with the brain to modify a person’s mental states.
Neurotechnologies are currently used in healthcare contexts, for example, for the diagnosis or treatment of Parkinson’s disease.Footnote 7 Yet, they could also be employed for a variety of purposes within other societal domains in the future, including the military,Footnote 8 educationFootnote 9 and direct-to-consumer applications such as for meditation.Footnote 10 Another area to which neurotechnology could possibly be applied is criminal justice – a domain concerned, at least in part, with the mental states and behaviours of those who offend.Footnote 11 Neurotechnology might, for instance, be harnessed to assess whether a person is likely to reoffend based on information about their brain states.Footnote 12 It might also be capable of modifying certain crime-relevant mental states and hence may help to reduce the risk of a person reoffending.Footnote 13
The emergence of neurotechnologies and their potential applications in a variety of contexts has prompted a debate on the freedoms and rights people have in relation to their brains and minds, and what these freedoms and rights could mean for the use of neurotechnologies. Some scholars have considered these questions at the level of fundamental morality, asking for instance whether we have a moral right against (non-trivial) mental interference,Footnote 14 what the concept of mental integrity implies for the regulation of neurotechnologies,Footnote 15 and whether we have a moral right to seek to control our own consciousness free from third-party interference.Footnote 16 These questions have also been considered through the lens of the law, in particular human rights law. Scholars have interrogated whether, and to what extent, established human rights protect against unsolicited interference with our brains and minds.Footnote 17 They have also considered whether established human rights entail entitlements for rights holders to make use of self-enhancing neurotechnologies.Footnote 18
At the time of writing, these issues regarding human rights vis-à-vis emerging neurotechnology are receiving attention of policy makers and human rights bodies, including the United Nations Human Rights Council,Footnote 19 the Council of Europe,Footnote 20 the United Nations Educational, Scientific and Cultural Organization (UNESCO)Footnote 21 and the Organisation for Economic Cooperation and Development (OECD).Footnote 22
This book aims to contribute to the shaping of our understanding of freedoms and rights that relate to the mind and to explore their implications for the possible use of neurotechnology in criminal justice. We focus on criminal justice as this context is one where non-consensual use of neurotechnology might be considered – which would raise a variety of questions regarding fundamental rights and freedoms. Pressure or even full-blown coercion is already often used within criminal justice contexts to effect changes to an individual’s mental states and behaviour, for example, by requiring participation in a treatment programme as part of a criminal sentence or when a person is committed to a forensic mental institution.Footnote 23
Therefore, the question arises: how could neurotechnologies be used responsibly – respecting people’s freedoms and rights – in criminal justice, given that (i) neurotechnologies might interfere with people’s mental states and resultant behaviours, and (ii) criminal justice contexts allow for a broad range of measures to be imposed on those who offend against their will?Footnote 24 Notably, because of the coercive context of criminal justice, even offering a certain intervention may still raise concerns about the actual voluntariness of a convicted person’s consent – something frequently discussed in both ethical and legal scholarship.Footnote 25
Relatedly, focusing on neurotechnology in criminal justice is also productive because criminal justice is a context where some limitations of freedoms and rights are legally permissible, insofar as they serve important objectives such as crime prevention, or insofar as they constitute permissible punishment.Footnote 26 For example, coercively taking and examining a person’s DNA infringes the right to privacy and bodily integrity but can be permissible when used for the prosecution and prevention of crime. In such cases, although infringed, the rights at stake are not violated. Similarly, although imprisonment seriously and constantly infringes the incarcerated person’s freedom of movement, detaining convicted persons is broadly accepted as lawful in at least some cases. The context of criminal justice thus requires us not only to look at the scope of freedoms and rights that protect the mind but also to consider their permissible limitations.
Put differently, criminal justice is a domain where the stakes are high, not just for society but also for convicted persons. Introducing neurotechnology into this domain would be a high-stake issue for those who offend, given the mental and behavioural effects these technologies might have on them and the coercive context in which the technology would be delivered. Clearly, insofar as it might help to mitigate risk factors for dangerous and offending behaviour, neurotechnology is something that society in general would have a stake in, as this outcome might help to make society safer. Furthermore, convicted persons themselves may also have a stake in having access to safe and effective neurotechnologies, as and when neurotechnological intervention promises to help them live more fulfilling and crime-free lives.Footnote 27
For these reasons, we take criminal justice as the focus in this book. In particular, we focus on the use of neurotechnology as an aid to social rehabilitation, henceforth just “rehabilitation”. We use the term “rehabilitation” to refer both to the psychological and social process, whereby those who offend become no longer disposed to engage in crime, and to the provision of interventions that better enable this process. We understand rehabilitative interventions as those interventions that help persons to desist from future offending, to (re)integrate into the community and to lead fulfilling lives going forward, but which do not produce these effects by making crime physically impossible or by merely disincentivising persons from offending.Footnote 28 We also continue to use the term “rehabilitation” rather than the alternatives of “resocialisation” or “resettlement” often favoured in the European legal context. We recognise that there have been reservations about using the former term, at least historically, owing to its past association with coercive and oft-inappropriate and abusive “therapeutic” interventions. However, we think the term has divested itself of these negative associations in recent times and is a more apt and broader descriptor than the aforementioned alternatives.Footnote 29 Consequently, it is our term of choice here, and when referring to the use of neurotechnology or neuropharmaceuticals as an aid to rehabilitation,Footnote 30 we invoke the term “neurorehabilitation”.Footnote 31
We adopt this focus on neurorehabilitation as against a focus on neuropunishment. We do not explore the possibility that neurotechnologies could be utilised as a form of punishment in this book – that is, that they could be imposed as a burden on those who offend and with the aim of communicating societal disapproval of their offence(s)Footnote 32 – though we acknowledge that other scholarship has reflected on this possibility.Footnote 33
1.2 Setting the Stage: Criminal Justice, Crime Prevention, and Rehabilitation
In legal systems all over the world, traditionally, criminal justice is foremost grounded in ideas of retribution and basic desert. From that perspective, punishing those who have offended is a key goal of criminal justice, and punishment is justified (when it is) because the relevant parties have committed a crime and thus deserve to be punished. Whereas retributivism, on the one hand, provides a moral justification for punishment, it also produces rules and principles that delimit individual criminal sentencing. For example, those who offend are only legitimate targets for punishment, according to retributivism, when it has been proven that they have indeed committed a criminal offence. The imposed punishment should also, somehow, be proportionate to the severity of the crime committed.Footnote 34
This dominant, backward-looking retributivist justification of punishment is increasingly complemented by a forward-looking approach toward corrections more generally. By this, we mean, that while retribution is often deemed to be the primary goal of punishment in contemporary justice systems, these systems are increasingly seeing the prevention of harm to others as an important criminal justice goal. This goal may be furthered by punishment, but can also be pursued via non-punitive interventions, and perhaps even after a person has undergone punishment.Footnote 35 By non-punitive interventions, we mean interventions that are not intended as punishment and which, therefore, have no reprobative element. So, the prevention of harm to others might be achieved by a traditional (reprobative) punishment such as imprisonment that disincentivised a person from reoffending, and/or caused them to reflect on their crimes and rehabilitate themselves. It might also be achieved by non-punitive measures such as rehabilitation or mere incapacitation. By incapacitation, we mean, making it physically impossible for a person to commit crimes while not intending to censure them – for example, by detaining a person beyond (or before or instead of) a term of punishment. This is sometimes termed “preventive detention”Footnote 36 and is a contested practice, given that it may involve detaining a person beyond that which is proportionate to their crime’s severity, on the basis of their presumed dangerousness and consequent risk to the community.Footnote 37
The increased focus on crime prevention has been described as the “preventive turn” in criminal justice.Footnote 38 On the one hand, the focus on prevention is a good thing. Successful prevention is not only advantageous for society but often also for the person who has offended, at least in the case of prevention by means of rehabilitation. Consider how it may be particularly valuable for a person to have their “criminal cycle” broken following their successful rehabilitation, such that they may fully participate in society again. On the other hand, this preventive turn gives rise to new normative challenges. There are normative questions about the justifiability of, and the justifiable limits on, imposing extended or indefinite prison sentences on people – and hence depriving them of their liberty – on the basis of their predicted future conduct.Footnote 39 There are also normative questions about the state’s use of rehabilitation as a means to crime prevention: for instance, questions about the limits that should be applied to the state’s pursuit of rehabilitation.Footnote 40
This book is firmly anchored within the legal and ethical scholarship dedicated to discerning what responsible crime prevention looks like – though, as said, our analysis is on the specific issue of responsible neurorehabilitation in view of human rights, particularly human rights for the mind. Before moving to discuss neurorehabilitation vis-à-vis human rights, however, we must first say more about the role that neurotechnology might play in the service of rehabilitation and crime prevention.
1.3 Neuroprediction and Neurointervention
Two activities are becoming increasingly important with the preventive turn in criminal justice: (1) risk assessment, that is, estimating how “dangerous” a person is, and (2) risk management, that is, making efforts to reduce the person’s risk to the community. The dominant model of rehabilitation, known as the Risk-Need-Responsivity model, centres exclusively on risk assessment and the subsequent management of identified risks.Footnote 41 This model operates on three primary principles: (a) that rehabilitative interventions should be delivered at an intensity that matches the offending person’s risk level; (b) that rehabilitative interventions should target a person’s dynamic risk factors – that is, those factors that are changeable; and (c) that the interventions utilised should take into account, and be tailored to, those characteristics that may influence the person’s responsivity to treatment.Footnote 42 An alternative, also prominent, model of rehabilitation, the Good Lives Model, focuses primarily on enabling convicted persons to live “good” – or meaningful and fulfilling – lives.Footnote 43 However, this model too is concerned with risk reduction, integrating principles of risk management into its overall strengths-based approach.Footnote 44
Both assessing a person’s future dangerousness and reducing risks of recidivism to an acceptable level are confronted with serious challenges. The predictive accuracy of current risk assessment tools is, in general, low to moderate,Footnote 45 which raises ethical concerns about the increasing use of risk assessment within criminal justice.Footnote 46 Furthermore, the efficacy of existing rehabilitative interventions varies,Footnote 47 with some offending subpopulations proving particularly refractory to treatment.Footnote 48 In addition, evidence suggests that carceral incapacitation (whether punitive or non-punitive) can be counterproductive to the reduction of a person’s risk after release.Footnote 49 Carceral incapacitation also does not preclude the possibility of a person committing crime within the prison walls.
To strengthen both risk assessment and risk management, neuroscientists, lawyers and philosophers are increasingly looking to the possibilities offered by neurotechnology.Footnote 50 Regarding risk assessment with the help of neurotechnology, also referred to as “neuroprediction”,Footnote 51 various forms of neuroimaging that could obtain relevant information about a person’s brain and behavioural dispositions have been considered.Footnote 52 Regarding risk management, the emphasis in the literature is on the potential of psychotropic medication and different forms of brain stimulation to change brain states and influence behaviour in a way that contributes to mitigating recidivism risk – also referred to as “neurointervention”.Footnote 53
Neuroprediction seeks to predict a person’s risk of future offending by looking to whether they exhibit neurobiological features that correlate with recidivism. Several types of neurobiological features have been studied for their relevance for offending, including various hormones, neurotransmitters, brain structures and activity levels in particular brain regions.Footnote 54 One example is the oft-reported correlation between reduced activity in the brain’s frontal lobe and impulsivity and poor behavioural controlFootnote 55 – characteristics that appear to be positively associated with criminal behaviour.Footnote 56 In a prominent study conducted by Aharoni et al., researchers used functional magnetic resonance imaging (fMRI) to measure brain activity in a population of ninety-six convicted males.Footnote 57 The brain activity was measured while participants performed an impulse-control task, and the researchers subsequently related this neuroimaging data to participants’ re-arrest rates four years after release. They observed that those participants with relatively low activity in the anterior cingulate context had roughly doubled the likelihood of re-arrest over this time period when compared to those exhibiting high activity in this region. This same research group recently documented a relationship between low dorsal anterior cingulate cortex activity while performing an impulse-control task and the re-arrest rate in a female offending population.Footnote 58
Neuroprediction need not replace existing tools of risk assessment. Instead, it could be integrated into – or combined with – existing types of risk assessment, aiming to better inform this assessment.Footnote 59 Delfin and colleagues have provided evidence of the potential of neuropredictive tools to enhance the efficacy of risk assessment.Footnote 60 They investigated whether adding neuroimaging data to traditional risk factors served to increase predictive success over the use of traditional risk factors alone, and they concluded in the affirmative. Comparable findings were reported by Zijlmans and colleagues, who concluded that incorporating neurobiological data had “incremental predictive value above traditional risk factors” in delinquent young adults (they used, among other measurements, data obtained from EEG).Footnote 61 This research is, of course, still in its infancy, and no strong conclusions for potential criminal justice application of these technologies can be drawn at this moment. However, the above findings are suggestive of a new type of risk assessment that might become possible in the near future and which could add valuable data to existing forms of risk assessment. It thus behoves us to ask how these kinds of technologies should be used.
Whereas neuroprediction involves monitoring brain activity, neurointervention involves modifying a person’s brain and mental processes. This is done via direct physical, chemical or biological influence, aiming to ultimately change the person’s behaviour. In the criminal justice context, such change would mean reducing a person’s likelihood of reoffending and promoting their rehabilitation more generally.Footnote 62 Roughly, two broad types of neurointervention can be distinguished: (1) psychoactive drugs or neuropharmaceuticals and (2) technological neuromodulation (whereby a stimulus is delivered to alter activity in the nervous system).
Candidate psychoactive drugs that have or might be used in the service of rehabilitation include drugs to reduce the libido of those who have committed sexual offences, and the use of selective serotonin reuptake inhibitors as a means of reducing impulsive aggression in those convicted of violent offences.Footnote 63 Candidate neuromodulatory technologies include transcranial direct current stimulation (tDCS), transcranial magnetic stimulation (TMS) and deep brain stimulation (DBS).Footnote 64 The first two of these techniques require neither surgery nor even intense physical contact and typically operate without inflicting pain or serious discomfort on the recipient.Footnote 65 These techniques involve placing electrodes or magnets on the scalp respectively aiming to alter activity in the targeted brain regions.Footnote 66 This is different from the third technique mentioned above, DBS, which is an invasive type of neurointervention, involving the surgical implanting of electrodes into the brain.Footnote 67
Some psychoactive drugs, like antilibidinal drugs, are already used for rehabilitative purposes in different criminal justice systems.Footnote 68 Other psychoactive drugs are being studied for the effects they might have on crime-relevant behaviours and recidivism.Footnote 69 The use of neurotechnologies as an aid to rehabilitation is still very much in the early research stage. Some experimental research has, however, been performed.
A number of studies have documented that targeting the prefrontal cortex with tDCS reduced self-reported aggression in recipients.Footnote 70 A Dutch double-blind, placebo-controlled, randomised trial found that tDCS targeting the ventromedial prefrontal cortex reduced self-reported aggression in a forensic population.Footnote 71 Another study found reduced self-reported aggressiveness after three sessions of bilateral prefrontal cortex tDCS in a population imprisoned for violent offences.Footnote 72 Targeting the prefrontal cortex with tDCS has also been shown to have positive effects on decision-making in certain populations. A German research group reported that tDCS increased prefrontal activity and improved decision-making in a population convicted of violent offences, such that these individuals made less risky decisions.Footnote 73 This preliminary finding makes space for the possibility that tDCS may have potential to improve decision-making in violent populations. Meanwhile, the samples of these studies were relatively small and further research is needed to learn more about the effectiveness of tDCS to reduce agression.Footnote 74
Further research has explored the potential effects of DBS on crime-relevant behaviours. Several studies have found that DBS in specific brain regions reduced aggressive behaviour in clinical populations.Footnote 75 Franzini et al. describe the results of DBS targeting the posterior hypothalamic region in seven cases of patients with mental retardation and aggressive and disruptive behaviour.Footnote 76 Six of these patients showed “a clear reduction in the aggression and disruptive bouts, with subsequent simplification of familiar management”.Footnote 77 The authors thus concluded that DBS in this brain region could be an effective treatment for a subgroup of patients with intellectual disability who show aggressive behaviour.Footnote 78 Additionally, Fuss and collaborators have discussed the possible future use of DBS as an intervention for those convicted of sexual offences.Footnote 79 The researchers identify a candidate brain region for DBS – namely the ventromedial hypothalamus – claiming that this region is “so far the best investigated target to reduce sexual drive”.Footnote 80
As said, investigations into the potential of these neurotechnologies for facilitating rehabilitation are still at an early stage. Yet, assuming that some rehabilitative applications of these technologies will be available in the future – and assuming also that the range of neuropharmaceuticals at our disposal for facilitating rehabilitation broadens – we must ask whether, and if so how, neurointerventions could be deployed in criminal justice while protecting and respecting human rights and freedoms. For instance, we must ask: Which human rights would be infringed, or even violated, if brain stimulation were employed without valid informed consent? And would human rights produce compelling arguments in favour of offering such interventions to convicted persons, to foster their rehabilitation?
1.4 Freedoms and Rights
In this book, as said, we consider neurorehabilitation in view of human rights, with a special interest in human rights for the mind. More precisely, the book considers the question of responsible use of neurorehabilitation through the lens of convicted persons’ freedoms and rights – something which necessarily involves interrogating the interpretation and construction of human rights for the mind. Hitherto, much valuable scholarship has explored the legal and moral questions that arise regarding the neurorehabilitation of convicted persons.Footnote 81 Several scholars have also considered how we should use and delimit neurointervention and neuroprediction in criminal justice,Footnote 82 with some specifically asking whether the use of these techniques invokes – and is delimited by – certain human rights.Footnote 83
This book’s distinct contribution to this burgeoning literature lies in its comprehensive and holistic approach. Though our analysis here is primarily legal, we harness and integrate both legal and ethical perspectives when considering whether and how neurorehabilitation might be deployed while protecting and respecting human rights and freedoms. Our analysis also pertains to both neuroprediction and neurointervention.Footnote 84 And we consider both negative and positive rights and freedoms in our analysis.
Our reasons for adopting this integrative, legal-ethical approach are twofold. First, human rights are typically taken to be both moral and legal concepts. Human rights are understood as those moral rights that apply universally, to all human beings, and which have a high priority.Footnote 85 By moral rights, we mean, rights that exist independently of whether they are protected in law, and which are justified and motivated by moral considerations and arguments. The term “human rights” also describes, and indeed emerged with, the set of established legal human rights that are enshrined in various human rights instruments, such as the International Covenant on Civil and Political Rights. Any fundamental discussion of human rights thus typically invokes both legal and moral issues.Footnote 86 It consequently makes sense to strive for an integrative approach when addressing profound questions about human rights protection of the mind and the human rights issues raised by neurorehabilitation.
Second, this integrative approach is likely to be the most productive. On the one hand, the conceptual analysis that is central to moral philosophy will provide valuable insights for the law, particularly when it comes to understanding the contours of concepts such as identity, privacy, health and mental integrity. Moral arguments may also strengthen the case for embracing the protection of particular rights at various levels of legal implementation.
While we adopt this integrative approach, our ultimate interest is in discerning to what extent the discussed freedoms and rights exist or ought to be embraced in law and, if so, what this might mean for neurorehabilitation in criminal justice. We are thus examining whether there are legal rights that could impact the permissible delivery of neurorehabilitation. Consequently, when speaking of “rights” throughout, we mean legal rights unless specified differently. This ultimate legal focus means that analysing and interpreting literature, treaties, comments and case law on human rights and freedoms is central to this book. We focus on the International Covenant on Civil and Political Rights (ICCPR), which is the binding international legal instrument for the protection of human rights, and on the European Convention on Human Rights (ECHR), on which the European Court of Human Rights (ECtHR) has produced much and detailed case law.
We consider both neurointervention and neuroprediction because each kind of technique has the potential to raise human rights questions. Neuroprediction brings issues of mental privacy to the fore, particularly if deployed in non-consensual or dubiously consensual circumstances. The delivery of neurointervention, on the other hand, raises concerns about persons’ identity, personal integrity, mental self-determination and health, while also prompting us to question whether and when convicted persons may have a right to avail of this kind of rehabilitative option.
Our holistic approach is also evident in our consideration of both negative and positive rights throughout this book. Though the boundaries between negative and positive rights are not clear-cut, with many rights having both negative and positive dimensions, we understand the distinction between negative and positive roughly as follows. By negative rights, we mean protective rights against actions by the state – for example, rights against unwanted state interference in particular domains. By positive rights, we mean rights to a certain action from the state – for instance, in the service of providing certain resources (e.g., educational or healthcare resources) that may be conducive to human interests or flourishing. In order to delimit the scope of the book, our analysis will focus on:
Negative dimension: (i) personal identity, (ii) personal integrity and (iii) mental privacy.
Positive dimension: (i) mental self-determination, (ii) mental health and (iii) rehabilitation.
Our analysis is organised as follows.
Part I: The Negative Dimension: Protection against Neurorehabilitation
Chapter 2 Personal Identity
First, we consider the neurorehabilitation of convicted persons through the lens of a right to personal identity. It has been argued that modifying brains and mental states through neurotechnology and pharmaceuticals could affect different conceptions of personal identity, including psychological continuity and narrative identity. Until now, this debate has focused strongly on the (side) effects of brain stimulation for therapeutic purposes, such as DBS in the treatment of Parkinson’s disease. We extrapolate this discussion to the context of criminal justice. In addition to earlier ethical evaluations of brain stimulation vis-à-vis personal identity, scholars are now also considering the legal protection that should be offered to personal identity in this context, particularly through human rights – and some have argued for the introduction of a specific human right for this purpose, that is, a right to psychological continuity. The relevance and implications of a right to personal identity for neurorehabilitation plausibly depends on how one understands personal identity, something this chapter will also consider.
Chapter 3 Personal Integrity
Next, we investigate the relevance and implications of the right to personal integrity – that is, the right to bodily and mental integrity – for the neurorehabilitation of convicted persons. How could neurotechnology in this context infringe this right? And could such infringements be permissible in some cases? Regarding the right to bodily integrity, we closely stick to the interpretation of the right as follows from established human rights law, particularly the ICCPR and ECHR. Under both treaties, a right to bodily integrity is clearly defined and developed. For our analysis of the right to mental integrity – which is less developed in human rights law yet – we will also rely on the philosophical literature aiming to define a moral right to mental integrity. Informed by philosophy, we explore some possible understandings of the human right to mental integrity. Along the way, we consider the implications of (different interpretations of) the right to bodily and mental integrity for the neurorehabilaition of convicted persons.
Chapter 4 Mental Privacy
Whereas personal identity and personal integrity are mainly relevant in relation to neurointerventions, we consider the implications of a right to mental privacy for the use of neuroprediction in criminal justice. We offer a preliminary analysis of the human rights protection of mental privacy by three established human rights: (1) the right to privacy, (2) the right to freedom of expression and (3) the right to freedom of thought. We consider the interplay between these different rights and explore a threshold criterion for engaging absolute protection by the oft-assumed “absolute” right to freedom of thought, over and above the qualified protection provided by the right to privacy and the freedom of expression.
Part II: The Positive Dimension: Arguments for Offering Neurorehabilitation
Chapter 5 Mental Self-Determination
This chapter examines the case for a legal right to mental self-determination, understood as the right to voluntarily alter and exercise control over our mental states (including with the help of neurotechnologies and other techniques) without being thwarted in these efforts by third parties. We examine three legal rationales and one moral rationale that lend support to this right, including the rationale that a right to mental self-determination derives from the more general right to self-determination. We then interrogate whether and when the putative right to mental self-determination might imply a state duty to offer or provide neurorehabilitation.
Chapter 6 Mental Health
Next, we explore whether – and if so, how – a right to mental health could produce an argument in favour of offering neurorehabilitation to some populations of convicted persons. As outlined in this introductory chapter, the primary focus of this book is on the potential of neurotechnology to support risk assessment and risk management – rather than the use of neurotechnology to diagnose and treat mental or brain disorders. Still, there are different conceptualisations of (mental) health that may or may not include such broader applications of neurotechnology. In general, health can be conceived of as “absence of disease” but it can also be approached in terms of functioning well or flourishing. We will analyse these approaches and determine the conceptualisation that is used in human rights law. Next, we explore the meaning and implications of the right to (mental) health regarding the possibility of offering neurorehabilitation to convicted persons.
Chapter 7 Rehabilitation
In this chapter, we interrogate whether and when states have a duty to provide convicted persons with neurorehabilitation as part of a right to rehabilitation. We examine the existing law and jurisprudence surrounding rehabilitation, present the rationales that have been (or may be) advanced in support of a right to rehabilitation and analyse what these judgements and arguments imply for the specific case of neurorehabilitation. More precisely, we explore whether – and if so, how – persons’ moral and legal right against cruel, inhuman or degrading punishment, and persons’ putative moral right to socially contribute, implies a right to have access to rehabilitative interventions under certain conditions. We then consider whether and when these rights also imply a right to have access to neurorehabilitative interventions.
Chapter 8 Synthesis and Discussion
Finally, based on the analyses in the preceding chapters, we tentatively identify some types and forms of neurotechnological applications, the use of which in criminal justice appears either plausibly permissible or plausibly impermissible, in view of the considered rights and freedoms.
Before proceeding, three final points are in order.
First, as the mind, in relation to neurotechnology and the law, is central in this book, it may be helpful to clarify our position on the mind-and-brain relationship. In our analyses throughout, we do not commit to any specific theory of the mind-brain relationship. Still, given that we consider the impact of neurotechnologies on the mind, we assume that brain changes can influence the mind and (relatedly) that information about the brain can provide information about the mind. This approach is in line with much recent theorising on mind and brain.
Second, we acknowledge that, in addition to present-day concerns about the neurorehabilitation of convicted persons and their human rights, there is a long and problematic history of “brain and crime” more broadly.Footnote 87 At one level, past attempts to explore the relationship between criminal behaviour and the brain were marked by a form of biological determinism and reductionism – that is, by the idea that criminal behaviour is wholly the product of a person’s physiology.Footnote 88 At another level, twentieth-century usage of neurotechnologies to change a person’s mind and/or behaviour has led to several inhumane treatment practices: most prominently, the use of lobotomy (which involved a type of surgery in which connections between the frontal lobe and the rest of the brain were severed) and the problematic use of electroconvulsive therapy (which involves eliciting an epileptic seizure).Footnote 89
This history may give rise to concerns that recent neuro-approaches to criminal offending are also deterministic and reductionist,Footnote 90 and that pursuing these neuro-approaches will once again lead to abusive practice. While we will not consider the issue of determinism or reductionism in relation to contemporary neuro-approaches to crime in this book, we wish to highlight that our particular perspective is neither brain-deterministic nor reductionist. Rather than conceiving of the brain as determining persons’ behaviour without any possibilities for change, our approach sees the brain as both vulnerable and plastic. We see the brain, mainly, as an organ that makes it possible to respond and adapt to different environments and their challenges, and to learn to regulate behaviour and emotions.Footnote 91 We also do not propose to reduce rehabilitation to neuro-approaches. We focus on neurotechnology in criminal justice, not because we believe it is the only or preferable approach to rehabilitation (certainly not) but because it is an emerging field that evokes fundamental questions about people’s rights and freedoms which require a thorough analysis.
Moreover, the fact that neurotechnologies have been applied inhumanely in the past need not necessarily imply that their use will always lead to unethical practices, as Ryberg emphasises.Footnote 92 Indeed, electroconvulsive therapy is now, after crucial modifications, an important – and humane – treatment option in severe mental illness, in particular depression.Footnote 93 There is also evidence to suggest that the general public considers some candidate contemporary neurotechnological approaches to rehabilitation to be acceptable, so long as those who offend are allowed to freely choose whether or not to submit to them.Footnote 94 Still, history highlights how careful consideration and implementation of neurotechnological applications to modify brain and/or behaviour is necessary if we are to avoid abusive practice. This involves protecting and respecting the human rights of all persons, including those who offend – a task to which the analysis in this book aims to contribute.
Lastly, though the focus of the book is on neurorehabilitation in criminal justice, given the nature of our arguments – considering the relevant freedoms and rights more broadly – the analysis is likely to have implications for neurotechnological applications in other societal domains too, such as in health care, education and the military. Additionally, given the scope of the freedoms and rights discussed, the analysis in this book may also have implications for other emerging technologies that have impact on our minds and brains.
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