PAPERS: Bingle; Blitz; Blumoff; Boesch; Bublitz; Cabrera; Craig; Da Cunha & Neto; Davies; De Brigard; Dubljević, Saigle & Racine; Erler; Focquaert & Sterckx; Gabel; Glannon; Glenn; Hardcastle; Heled; Hopkins & Fiser; Kahn; Nadelhoffer & Wright; Pivovarova, Carroll & Buckholtz; Rödiger; Ryan; and Sifferd. POSTERS Bello, Amin & Frishkoff; Blakemore; Chakravarthy; Hare, Turner & Vincent; Houck; Izzo & Pivovarova; Roach & Rohskopf; and Wexler.
Bobby Bingle, Georgia State University
Suppose that one could give a pill which could increase pain sensitivity. Would (or should) such a pill affect how we retributively punish criminal offenders? In this paper, I will argue yes. To do so, I will explore the ways in which neuroscience and cognitive enhancement might influence and inform our current retributive punishment practices. And given the retributive nature of the criminal justice system, and the growing discussion around cognitive enhancement, understanding how the two will (and should) intersect is of increasing importance. I divide this paper into four parts.
In part 1, I define retributivism, and examine how important retributivism is to the criminal justice system. I examine both recent research in the philosophy of law and legal texts, such as the Model Penal Code, and argue that our criminal justice system is primarily retributivist, and it claims to punish criminal offenders because they deserve to be punished.
In part 2, I summarize recent arguments made philosophers like Kolber and Dufner for the importance of subjective experience in retributive punishment. In “The Subjective Experience of Punishment,” Kolber (2009) asks us to consider two offenders, Sensitive and Insensitive, who have both committed the same crime and received the same prison sentence. According to Kolber, Sensitive has never been in trouble before, whereas Insensitive is a career criminal. Prison will be a “living hell” for Sensitive, but just as minor inconvenience for Insensitive. Therefore, Kolber concludes that Sensitive is actually being punished more harshly than Insensitive. However, according to Kolber, this is worrisome for retributivists, since retributivists typically believe that (all else being equal) offenders deserve the same punishment for the same crime. Furthermore, in “Should the Late Stage Demented be Punished for Past Crimes,” Dufner (2013) argues that retributivists should not punish criminal offenders who can no longer remember their crimes. According to Dufner, offenders who cannot recall their crimes lack the right kind of “subjective connection” to the crime, and can only regret that a crime occurred, and not that they themselves committed it. Thus, according to both Kolber and Dufner, the subjective experiences of criminal offenders should be an important factor in retributive punishment.
In part (3), I argue that Kolber and Dufner’s arguments have problematic implications for retributivists. For instance, since the rich and privileged are more likely to be like Kolber’s Sensitive than Insensitive, retributivists should be committed to giving the rich and privileged lighter prison sentences than the poor. However, this runs contrary to another retributivist belief that the rich (given their privilege and increased opportunities) deserve harsher prisons sentences than the poor. Thus, retributivists seem to be left with a tension between punishing the rich less (on one hand) and punishing the rich more (on the other).
Finally, in part (4), I examine the ways in which neuroscience and cognitive enhancement might help solve the problems faced by retributivists in part (3). One solution might be found in neuroscience’s research into the neural correlates of pain. Recently, fMRI research has revealed regions of brain activity that positively correlate with reported levels of pain and discomfort. Although I am not trying to take a stance on the incorrigibility of mental states, I suggest that research on the neuroscience of pain
sensitization (such as with hyperalgesia and allodynia) reveals that levels of pain and discomfort might be able to be directly manipulated. Therefore, neuroscience research suggests that we might, one day, be able to better detect and alter levels of pain and discomfort, and, in doing so, give retributivists a means by which to punish offenders equally. Finally, suggestions as to how the previous discussion of cognitive enhancement of punishment could influence overall notions of retributivism will be briefly considered.
The Constitution, Compelled Neuro-Intervention, and the Ethical Parity Principle
Marc Blitz, Oklahoma City University
The U.S. Supreme Court wrote in Stanley v. Georgia that “[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” 394 U.S 557, 565 (1969). And Stanley is just one of many cases where the Court has insisted that the First Amendment protect us not only against government attempts to control what we say, but also against government attempts to interfere with our “freedom of thought.” These precedents have led some writers to argue that forcible use of psychotropic medications or other neuro-interventions should be presumptively unconstitutional.
This argument provides a starting point for a constitutional analysis. But, for a number of reasons, there is more analytical work that needs to be done to fill out the constitutional framework for compelled neuro-interventions. First, while the Supreme Court often speaks of and celebrates the freedom of thought guaranteed by the First Amendment, it said nothing about it in the three cases it has decided on compelled psychiatric treatment (Washington v. Harper (1990), Riggins v. Nevada (1992), and Sale v. United States (2003)). It held, in these cases, that, in forcing psychotropic medication on an inmate or criminal defendant, the government is subject to constitutional limits — but these limits come not from the First Amendment, but from the Fifth or Fourteenth Amendment’s due process requirement – and are focused not on protecting mental
autonomy, but rather on protecting against unwanted medical treatment more generally.
Second, when courts are ready to think carefully about how freedom of thought protection
applies to compelled medication, they will confront at least one powerful argument that
compelled treatment or enhancement is often unproblematic. Professor Neil Levy has proposed (drawing upon Andy Clark and David Chalmer’s essay, The Extended Mind) that when ethicists and policy-makers regulate pharmacological enhancement, they should adhere to what he calls the “ethical parity principle.” “Unless we can identify ethically relevant differences between internal and external interventions [into mental operations],” this principle holds, “we ought to treat them on a par.” Neil Levy, Neuroethics: Challenges for the 21st Century (2007), p. 80. This principle has been invoked in arguments in favor of allowing healthy individuals to enhance their minds pharmacologically as they already do so through education and talk therapy, and I have previously argued that the parity may not merely be ethical, but of constitutional significance. See Marc Jonathan Blitz, Freedom of Thought for the Extended Mind: Cognitive Enhancement and the Constitution, 2010 Wis. L. Rev. 1049 (2010).
But the ethical parity principle can be invoked not merely against state restriction, but also in favor of it: If a certain form of pharmacological mind alteration seems unsettling but – on closer examination – is only a new form of the same kind of behavior control that the government has long been permitted to impose, why not treat it as equally permissible? For example, it may initially seem like impermissible thought control for the government to force a potential trial witness to preserve (or recover) the memory of a particular event by taking certain drugs. But on closer examination, it might not offend that witness’s autonomy any more deeply than the judicial system already does when it forces her to relive a traumatic event to listening to, and answering, questions about it.
This paper will nonetheless argue that there are at least two reasons to view such ethical parity argument more skeptically when they are used to justify state restriction than when arguing in favor of extending constitutional liberties. First, given the constitutional commitment to freedom of thought, courts should adopt a strong presumption against allowing the state to expand its ability to interfere with individuals’ mental operations. While it is possible that pharmacologically-induced memory preservation or recovery will cause no more damage to autonomy than more old-fashioned means to the same end, courts should reject such an equivalence where there remains any doubt about its effect. Second, government may be in a position to present alternative means for achieving the same ends, and it is often encouraged to do in First Amendment cases where it is required adopt – among the options it has — the legislative solution that does the least possible damage to speech. Neuro-intervention should be subject to a similar requirement: Courts should often require a showing that government cannot achieve substantially the same ends less invasively (for example, by drawing on video camera footage rather than forcing a person to preserve or enhance memory).
On Executing Schizophrenics: Identity and the Mythology of “Synthetic” Competency
Ted Blumoff, Mercer University
At least since 2003, when the full Eighth Circuit Court of Appeals approved the State of Arkansas’ plan to execute Charles Laverne Singleton, an occurrent schizophrenic adjudicated guilty of a brutal murder, death penalty jurisdictions have been permitted to use psychotropic drugs to “restore” the competency of schizophrenics to execute them. Exactly why it is permissible to execute a “synthetically” competent individual in light of Ford v. Wainwright, a 1986 decision in which the United States Supreme Court, following ancient common law custom and rule, held that the insane cannot be executed, is unclear. The lack of clarity follows from the inability of the Court to agree on the reason the tradition still obtains. Nonetheless, health care providers have faced an apparent ethical dilemma, one expressed by a dissenting judge in the Circuit Court: “[D]octors who are treating psychotic, condemned prisoners [are] in an untenable position: treating the prisoner may provide short-term relief but ultimately result in his execution, whereas leaving him untreated will condemn him to a world such as Singleton’s, filled with disturbing delusions and hallucinations.” A Sophie’s Choice of neuromedical ethical evils.
In this paper, the author argues that the dilemma posed, though undoubtedly real in its affect on ethical decision-making, rests on a mythology according to which drugs “restore” competency. The myth is twice false, factually and normatively. First, its factual inaccuracy conflates schizophrenia with psychosis: neuroleptic drugs can – with patience, a cooperative patient, time to find the right drug, and ample counseling – temporarily provide the individual with some short-lived buffer from psychotic episodes. Even the best of them, however, cannot eliminate the schizophrenia. As far as we now know, no drug can accomplish that feat. What that means is that the punishing authorities have a license to execute individuals whose state of mind is not only unknown, but unknowable. A schizophrenic whose psychotic episodes are quelled is still a schizophrenic.
That fact leads to the second, normative misconception, which is that the authorized third party punisher is executing a different person than the person who committed the heinous crime, the one whose competency has purportedly been restored. To what? To a psychological being, to one who can relate to the rest of the world and who committed the crime? Or to one who is already neuropsychologically extinguished? The issue addressed here arises, therefore, only when the condemned man’s severe mental illness, properly diagnosed, occurs after adjudication of guilt and sentencing but before execution. Thus it is assumed that the defendant was competent or apparently made competent at the time of the earlier proceedings.
In the presentation that follows, I will define the myth of the wild beast who, from earliest times, was actually immune to execution because he was insane: he retained his biological animality, as Foucault would say, but lost his psychological identity. Thus we misunderstand the myth. The discussion of identity then addresses the criteria we commonly use to determine moral responsibility with a twist, one necessitated by the twisted state of the condemned man. As a matter of phenomenology, we ask: Who was the person who did evil? Is he the same person we see before us now, a schizophrenic awaiting execution? And, if not, why not? What normative criteria are implicated? As a matter of prescription, we might recur to trial: to the mens rea and voluntary act requirements that were satisfied as necessary and (together) sufficient conditions for finding guilt prima facie. When we do so, we discover that punishment, as now-to-be applied, is not being imposed on the same person who committed the crime beyond a reasonable doubt. His identity has changed. Thus the reasons for our blameworthiness assessments falter, utterly. We are left, then, with very basic principles, for example, that we not do to others what we would not want done to us, were we to suffer schizophrenia before or after committing a crime.
Law, Human Goods, and Cognitive Enhancement
Brandon Boesch, University of South Carolina
In this presentation, I will provide an argument for a modest endorsement of cognitive enhancements and outline some of the ways in which the law should interact with these enhancements. My argument works within the Thomistic Natural Law tradition, and specifically within the work of John Finnis, who identifies basic goods at which all actions are directed1. My argument claims that sometimes taking various cognitive enhancements meets all the requirements of practical reasonableness, and enables an individual to better seek a particular human good. There are many examples in which this can be seen, but I will highlight one as an example: the ways in which “anti- love” treatments could effectively be used within an abusive relationship, allowing an agent to better seek the basic good of friendship and fulfill a coherent plan of life2.
If this argument holds, then this creates an important role for the law, insofar as many cognitive enhancements require coordination for safety and a protection for citizens from social coercion to unwillingly partake in these treatments. The concern for safety calls for a general outline of the ways in which these treatments should be best made available (e.g. only by prescription, over-the-counter, with parental consent, etc.) Additionally, the state should take special care to insure that individuals are not coerced into taking various treatments. A good example of this can be seen in the current regulation of psychostimulants which helps to cut back on the use of this class of drugs as a study aid for students. Those who currently take the stimulants for non-medical reasons are likely to be in high-pressure situations (e.g. at a school with high acceptance standards)3. If this class of drugs were to be made more widely available, it is likely that many more individuals would feel a similar pressing need to partake of the non-medical use of these prescription stimulants, just to keep a leg up on their fellow student4. Such a social situation would unnecessarily force individuals to seek one particular good (knowledge) with minimal concern for another (life), and so would fail to meet the standards of practical reasonableness. The state, then, has good reason to make (or maintain) laws so as to avoid such social pressure.
Before closing, I will address some concerns and worries. First, some might object that the use of drugs for the sake of achieving basic human goods could be thought of as self-defeating, since, as the President’s Council on Bioethics said, “We desire not simply to be satisfied with ourselves and the world, but to have this satisfaction as a result of deeds and loves and lives worthy of such self- satisfaction”5. My response will be to note that these treatments are to be thought of as aids to achieving these various goods, not the achievement of the goods themselves, which should happen by the agency of a given individual6. The second worry is that some of these treatments will cause significant change of human nature and community, and so will bring about a change in the basic human goods (and thus, a change in the ways in which law should secure access to these goods). My response will focus on how such a concern is ruled out by the need to act for basic human goods, and how such an action would not sufficiently change the self-evidence of the good, unless the initial act was not ordered to the basic goods, in which case the initial act is ruled out by practical reasonableness.
1 John Finnis. Natural Law and Natural Rights. (New York: Oxford, 2011.)
2 Earp, BD, OA Wudarczyk, A Sandberg, and J Savulescu. 2013. “If I could just stop loving you: Anti-love biotechnology and the ethics of a chemical breakup.” American Journal of Bioethics 13(11):3–17. C.f. Boesch, B. “A Thomistic Account of Anti-Love Biotechnology,” American Journal of Bioethics 13(11):30-31.
3 McCabe, SE, JR Knight, CJ Teter, H Wechsler, 2005. “Non-medical use of prescription stimulants among US college students: prevalence and correlates from a national survey.” Addiction 100(1): 96-106.
4 Khushf, G. “Stage two enhancements,” in Emerging Conceptual, Ethical and Policy Issues in Bionanotechnology Ed. F. Jotterand. (New York: Springer, 2008)
5 President’s Council on Bioethics. Beyond therapy: Biotechnology and the pursuit of happiness. (Washington, DC: President’s Council on Bioethics, 2003.)
6 Froding, B. E. E. 2011. “Cognitive enhancement, virtue ethics and the good life.” Neuroethics 4: 223–234.
Different Interventions into Minds: Means Matter for the Law (and so they should for ethics)
Christoph Bublitz, University of Hamburg
The aim of the paper is twofold: to argue for a re-normativisation of neurolaw and to further the debate over a controversial issue, the normative distinction between various mind-interventions. Methodologically, debates over legal implications of neuroscience often start with empirical findings, move to philosophy and end at normative considerations. A common type of argument is analogous reasoning in various forms. Although scientists’ engagement with implications of their research is commendable, many of their statements are irritating to legal ears as they tend to ignore or oversimplify the complex normative rules to which neuroscientific findings allegedly apply. Successful collaborations between law and science often have the reverse order: Starting with a legal question, the law consults science whether it can make relevant contributions.
Neurotechnological applications afford two novel kinds of access to the mind: monitoring brains (and by reverse inference, minds) and manipulating minds. Both types of intervention have to be regulated by the law. This paper is confined to the latter. Manipulating minds raises questions over the legal relation between an individual and her mind – and between her and the minds of others. A follow-up question concerns distinctions between different means of intervention, e.g. whether it makes a difference if states seek to improve moral behavior of citizens or criminal offenders through education and cognitive-behavioral interventions or through biomedical moral enhancements.
In neuroethics, distinctions between means are largely dismissed by arguments along these lines: As science shows that all interventions, from psychotherapy and environmental factors to brain stimulation, work on the cerebral level, there are, apart from side-effects, no inherent differences between means provided they are functionally equivalent (understood as causing sufficiently similar mental effects). Further distinctions between external and internal as well as direct and indirect interventions are accused of ill-founded mind-brain dualism. The analogous reasoning goes: if the law deals with intervention A in way Z, and if neuroscience shows that B’s effects are sufficiently similar to A’s, the law should treat B as A (=Z). Consequently, Levy’s Parity Principle holds that means do not matter and that external and internal interventions should be treated on par, i.e., the same level of protection should be granted e.g. to iPads storing information and equivalent neuronal processes, and no further distinctions should be drawn between direct and indirect interventions. Accordingly, if states have the mandate to educate citizens on ordinary ways, they also have the mandate to use moral bioenhancements (side-effects aside).
In the law, however, one does not find a provision stating that “functional equivalent means should be treated on par”, nor others to the opposite. The law remains silent about these issues. A legal approach starts with describing and interpreting the rights and duties of persons in regard to each other’s minds. I will outline a framework that shows some differences in the normative criteria that apply to mind-interventions in the basic forms of interpersonal legal relations (see attachment). It points to some important and often overstepped limits to analogous reasoning (e.g. of the kind: If it is permissible to take enhancements myself, so it is to give it to my child).
Whether means matter becomes relevant in deciding whether an intervention interferes with rights of affected persons. Here, the law draws various distinctions between means and targets of interventions, e.g. between persons and objects. Even if an object performs operations functionally equivalent to brains, they are legally very different entities and fall under distinct rights. The relation between a person and an iPad is based on (and limited by) ideas of property, very different to those guiding a person’s relation to her brain. In this regard, functional equivalence is simply not a criterion of legal relevance – and the legal reasoning shows why it shouldn’t be of ethical relevance either.
In addition, I shall present some considerations which allow inferring normative differences between direct and indirect interventions: First, no one has claims over another person’s mind, so that interventions cannot be justified by their mental effects. However, certain types of actions with mind-altering effects are permitted in virtue of other considerations such as those grounding the right to free speech. Free speech entails a justification for mind-altering effects without conferring claims over other minds on right-holders. Although it changes listener’s minds, it is permissible simply because of society’s great interest in free speech. The same does not apply to most direct interventions, by contrast, as they are not related to privileged actions. Of course, rights that justify mind-interventions can nonetheless be limited by countervailing rights of the recipient such as the human right to freedom of thought. Then, balances between rights have to be struck, taking into account further considerations such as the degree of control over incoming stimuli, which in turn depends on the causal routes by which stimuli enter the brain and generate mental effects. But again, functional equivalence as understood in ethics and supposedly proven by neuroscience has not much to contribute here. If effects can only be justified because of the actions that produce them, an effects-based Parity Principle misses the normatively relevant point.
After all, legal distinctions are not based on crude dualisms but on considerations about a well- ordered society and the construal of reciprocal rights and duties. The intervention-example shows that and why arguments not originating from a normative question are often doomed to (legal) insignificance.
Criminal Behavior and the Ethics of Memory Modification
Laura Cabrera, University of Basel
Our memories allow us to attach and integrate meaning and potential significance to our experiences and to particular choices and actions within the larger narrative of an individual’s life. In addition, memory is part of the process through which we claim or accept the burdens of responsibilities, rights and privileges. This in turn allows us to demand justice from those who do wrong to us as well as to confess and make amends for the wrongs we have committed (Snead 2011). For all these reasons it can be argued that memory plays a decisive role within the forensic setting. In this paper we start by highlighting the importance of memory for human wellbeing and identity, and emphasize the role of memory within the criminal forensic setting for claiming and accepting legal responsibility as well as for moral learning and retribution. We move on to discuss some emerging as well as envisioned neuro-interventions that could in the future be used for memory modification in the forensic setting; in particular we contrast the cases of (1) dampening and (2) enhancing memories of criminal offenders. In order to tease out some of the relevant differences we briefly discuss different scenarios based on the possibility of enhancing or dampening an offender’s memories.
Different memory interventions will have different ethical issues associated with them, and might bring forward particular challenges when used in specific contexts, such as the criminal forensic setting. Accordingly, we then highlight some pressing ethical issues that these memory interventions are likely to bring to the fore. Common objections around intervening in our memories are issues related to authenticity and identity (Erler 2011; President Council of Bioethics 2003). While these are important considerations within the criminal forensic setting when discussing responsibility we will not expand on them here. Instead, we focus on more pragmatic considerations to start shaping the discussion around the permissibility of memory interventions in the forensic setting, such as informed consent, balance between benefits and risks, and issues connected to whom should make the decision of whether or not accept or reject certain memory interventions. With this in mind, we then assess how different factors –i.e. invasiveness of the intervention or penological aim of the intervention—might influence our normative stand towards them. The paper ends up with some considerations that help establish ethically justified criteria regarding the possibility of interventions aimed at modifying offender’s memories. The considerations put forward here are a starting point in this discussion, as it is likely that as new developments come forward making certain memory modification a reality and not just a matter of speculation (i.e. a substantive and targeted erasure of memories), and new empirical evidence regarding safety, effectiveness and social acceptance of memory interventions becomes available, these considerations will need to adapted. Thus we should keep a dynamic and open discussion about the relevant ethical issues connected to memory interventions within the forensic setting. Memory interventions are not inherently morally wrong, but there are many cases in which the justification for undergoing such interventions fulfills neither the criterion of protecting communities nor the individual possibility of retribution or rehabilitation.
Erler, A. (2011). Does Memory Modification Threaten Our Authenticity?, Neuroethics 4, 235-249.
President Council of Bioethics. (2003). Beyond Therapy: Biotechnology and the Pursuit of Happiness.
Snead, OC. (2011). Memory and Punishment, Vanderbilt Law Review 64, 1195-1264.
Liberty, Security of the Person and Neuro-intervention for Criminal Psychopathy
Jared Craig, University of Calgary
This paper argues that forced state neurointerventions for criminal psychopathy violate fundamental human rights and liberties. It will (I) consider advancements in psychopharmacological treatment for psychopathy, (II) survey fundamental principle of international and constitutional law that defend the integrity and sanctity the human body from, and (III) apply these principles to state neurointervention for criminal psychopathy. In most countries, principles of international and constitutional law require a court to balance a psychopath’s liberty, autonomy and bodily integrity with the state’s interest in preventing future harm.
(I) Psychoparmacological Treatments for Psychopathy
Psychopathy is a disorder that impairs a person’s capacity for guilt, empathy, and remorse. It is associated with anti-social behavior, impulsivity, violent aggression and a high-rate of recidivism. Criminal psychopaths pose a significant risk to society. Without treatment, there is little chance of rehabilitation. As dangerous offenders, psychopaths often face indefinite incarceration. However, recent advancements in neuroscience have enhanced our understanding psychopathy and the mechanisms that underlie it. In the future, psychopharmacological therapies may reduce psychopathic tendencies, and increase the prospect of rehabilitation. The central legal issue is under what circumstances the state is justified in coercing, or forcing treatment.
(II) International Human Rights and Domestic Constitutional Protections
International law and domestic constitutional law protects a person body and mind against state interference. The inviolable sanctity of human body has been found to be a principle “so entrenched in the traditions of our law as to be ranked as fundamental and deserving of the highest order of protection” (Fleming v. Reid, 1991). As the U.S. Supreme Court states “[n]o right is held more sacred, or is more carefully guarded (Union Pacific Railway Co. v. Botsfor, 1891). The Universal Declaration of Human Rights and its companion treaty the International Covenant on Civil and Political Rights proclaim that every person has “the right to life, liberty and security of the person”. Most countries in the world are party to the ICCPR and many adopt some form of this right in their constitution. In most countries, the right to liberty and security of the person defend against state intrusions on bodily integrity.
That said, in an era of the globalization of human rights, a central and pervasive theme in the discourse has been the balancing of rights. Individual liberties are subject to reasonable limits necessary to defend collective interests in a free and democratic society. A survey of jurisprudence across various jurisdictions shows a trend towards balancing individual rights to bodily integrity with collective public interests. However, generally courts will only permit state intrusion for purposes such as medical treatment in limited and exceptional circumstances. Drawing on these principles, the question here is how a court will balance competing rights in the case of neurointervention for criminal psychopathy.
(III) Balancing Non-Interference with the Avoidance of Future Harm
To determine whether state neurointervention is justified, a court will likely undertake a principled, case-by-case balancing of (a) the psychopath’s right to freedom from state interference, with (b) the state’s interest in preventing future harm. In striking a balance a court will consider three factors.
1. Whether the treatment is: (a) voluntarily taken, (b) coerced, or (c) forcibly administered.
2. The salutary effects of the neurointervention including the safety, reliability, and efficacy
of the proposed treatment, and its potential to reduce the risk of future harm.
3. The deleterious effects of the intervention, specifically the degree of intrusion and
potential risks the intervention poses to the body or mind of the psychopath measured against the availability of less intrusive alternatives, such as preventative detention.
Based on these factors, this paper argues that in most cases forced neurointervention for criminal psychopathy contravenes fundamental principles of international and constitutional law. It represents an extreme intrusion and interference with liberty, autonomy and bodily integrity where other measures, such as preventative detention, are available. Admittedly, the case is different for voluntary treatment. So long as treatments satisfy a very high level of safety and efficacy, a person ought to have the right to consent to treatment as an alternative to detention.
In conclusion, future advancements in psychopharmacological treatments for psychopathy may precipitate calls for state neurointervention. But in all but very exceptional circumstances, forced interventions are impermissible. Fundamental principles of international and constitutional law protect the integrity and sanctity of the human body. They demand that human dignity, liberty and autonomy take precedence over the interest of the state in unilaterally imposing treatment.
Compulsory Neuro-Interventions: Metaphysical and Conceptual Foundations of the Subject of Responsibility and Autonomy of Choice
Rui Vieira Da Cunha and Luísa Neto, University of Porto
The technologies of cognitive or neuro-enhancement have lately sprung from the pages of science fiction books and philosophical thought experiments to real life laboratories (and to our newspapers and other media), gradually convincing most people of their feasibility and even inevitability. One issue raised by neuro-interventions (to use a less biased term than “enhancement”) is whether we will ever be forced (by peer pressure, societal conformity or legal obligation) to “enhance” ourselves, whether citizens in general or only on their specific role as professionals (surgeons, pilots, etc).
In this paper, our main aim is to contribute to this discussion about the topic of compulsory cognitive interventions, not by tackling the discussing taking sides on whether such interventions should be compulsory or voluntary but rather by clarifying the basis on which the discussion is grounded, i.e., by examining the theoretical and even metaphysical foundations of the subject under intervention. For that purpose we will argue that 1) the discussion of compulsory neuro-interventions should take place within the debates about the fundamental right to dispose of one ́s own body; that 2) this debate cannot overlook fundamental questions about the metaphysical nature of the subject (and object) of such right; and that 3) a simple juridical and depreciatively legal point of view, neutrally (non) valued, is unable to contribute to this discussion, thus urging us to take into consideration collective morals and to listen to society’s view on the matter.
In the first section of our paper, we will thus discuss the notion of body, briefly presenting the elaboration of such concept over the centuries, in order to better understand this entity that is simultaneously object and subject of rights. One of the relevant factors of contemporary culture being the progressive discovery of the unity of the body, the brain and its environment, we will argue, as Edelman (2004) that “The brain is embodied and the body is embedded in its environment. That trio must operate in an integrated way.”. This unity, however, does not suppress the diversity of approaches and languages about the theme of the body and bodily matters, particularly within the field of philosophical anthropology: notions such as person, self, and organism, just to name a few, have been and continue to be used by philosophers to refer to the (metaphysical) subject of the (legal) right to dispose of one ́s own body.
The focus of the second section of our paper is thus the interpretation and connection between those notions, resting on the analytic philosophy tradition of discussing the problems of Personal Identity, Personhood and the question of the essence, if there is one, of being like us (as Olson 2007 puts it, the question of ontological personhood) and its relevance to the Law. As beings capable of reflection, we live by creating problems, asking questions about ourselves, and seeking, to a certain extent, to answer the question put forward by Kant: Was ist der mensch? We will therefore argue that, if Man is the reason for being and the purpose of Law, freedom and personal guarantees and rights of the individual must be determining factors in our decisions, and concepts of responsibility and autonomy of choice cannot be ignored when considering the possibility of compulsory neuro-interventions, since cognition and volition have always been crucial concepts in many of the definitions of Man/Person.
From these reflections on the nature of Man/Person, we move on to the third section of our paper, concluding that a mere juridical and depreciatively legal point of view, neutrally (non) valued, is unable to contribute to the discussion about compulsory neuro-interventions, precisely because the nature of the subject/object being intervened must be taken into account. We claim that consequently collective morals must be considered, that is, ones which might almost be called social ethics. In the case of compulsory neuro-interventions (as in other sensitive issues posed by these technologies), societal dialogue is needed and more investment in Science and Society Programs, like European Commission’s NERRI (Neuro-Enhancement-Responsible Research and Innovation), which aims to engage stakeholders in technology governance, will be required. At the same time, however, it will be necessary to address the availability – from a cost perspective – of those neuro-interventions techniques, bearing in mind the role played by the State and the Law in general and Criminal Law in particular, and which have to be governed by the principles of minimum intervention and maximum subsidiarity.
What Becomes of Voluntariness As We Intervene in the Functioning of the Human Brain?
Paul Sheldon Davies, College of William and Mary
Among the core functions of the criminal justice system are (1) prevention of harm and (2) punishment for the infliction of harm. There is no punishment for the inadvertent infliction of harm; the harm-producing action must be done knowingly and voluntarily, or at least negligently. A harm-producing action is negligent if a reasonable person would readily have foreseen its harmful consequences. A harm-producing action is voluntary if it is not the result of reflex, hypnosis, sleepwalking, etc. but instead proceeds, in the words of the Model Penal Code, from “effort or determination, either conscious or habitual.” (section 2.01)
It is a vexed question exactly what sorts of capacities are required for the relevant sort of “effort or determination” and whether normal, adult humans are possessed of the required capacities. This is pressing because, absent a reasonable answer to this question, we cannot be confident of the law’s legitimacy, a legitimacy that has recently been challenged by findings in psychology and neuroscience.
In response to these challenges, Stephen Morse, in “Determinism and the Death of Folk Psychology: Two Challenges to Responsibility From Neuroscience”, asserts that legal responsibility requires only the general capacity for means-end deliberation in a reasons-responsive manner. The law requires that
(i) I recognize that I may be deprived of certain liberties if I am convicted of harming a fellow citizen.
(ii)The prospect of losing my liberty is an incentive for me to refrain from harming another.
(iii) I have the wherewithal to deliberate from this incentive (or other incentives anchored in my knowledge of the law) to a line of action that does not include inflicting harm.
This is helpful in some ways, since some things are ruled out. Condition (ii) seems to suggest that if I am affectively incapacitated or deficient – if the threat of punishment does not serve as an incentive for me – then my action may not qualify as voluntary. In addition, (iii) seems to suggest that if my deliberative capacities are substandard then my action may not be voluntary in the relevant sense.
The pressing question therefore is, exactly what capacities are required for (ii) and (iii), and do normal, adult humans have them? Morse offers no specifics concerning the kinds of capacities required; he settles for generic folk psychological categories. And apart from our folk psychological prejudices, he offers no evidence that we are possessed of such capacities. We must do better.
I am criminally liable for inflicting harm only if I knowingly and voluntarily inflict harm. So, what must be true of me – what sorts of capacities must be operative in my psychology – for my harm-producing action to be knowing and voluntary? One way to come at this question is to consider the kinds of cognitive and affective deficits that would provide plausible excuses from criminal liability. What kinds of deficits, for instance, in memory, in empathy, in motivation, imagination, etc. would insulate me from criminal liability, despite having acted in a harm-producing way? Alternatively, we might try coming at the question by considering actual or possible enhancements. If we can, in fact or in imagination, increase an agent’s empathy or motivation, will we observe a resulting increase in voluntariness?
The aim of this paper is to address the question whether actual or possible neuro- interventions will give us the tools, or at least a new perspective, with which to correctly describe the cognitive and affective capacities integral to voluntariness. The goal is not to produce a defensible verdict on the legality of any such interventions. Instead, the goal is to employ the range of actual or possible neuro-interventions as an exploratory tool. The goal is to answer the question, what becomes of voluntariness as we intervene on the functioning of the human brain?
Felipe De Brigard, Duke University
Up until very recently it was thought that once memories had been consolidated, they remained unchanged. However, recent research suggest that this may not be the case. Memories are modifiable with appropriate interventions, and different interventions may modify specific aspects of our memory traces. In this talk I will discuss three different kinds of intervention that can affect the content of our memories, at three different stages. First, I will show that one can intervene memory encoding by manipulating a person’s previous experiences so that one can predict which items he or she may be more likely to false alarm to. Second, I will show how one can intervene the process of reconsolidation to modify the content of our memory traces. Finally, I will discuss how one can selectively intervene the process of retrieval to generate content-specific deficits in recollection. Possible legal and moral consequences of these different kinds of memory interventions will be discussed.
The Rising Tide of tDCS in the Media and Academic Literature
V. Dubljević, V. Saigle & E. Racine, McGill University
Introduction: Transcranial direct current stimulation (tDCS) has caused excitement in the lay public and academia as a “portable, painless, inexpensive and safe” therapeutic and enhancement device. Given the nature of tDCS and the lack of oversight governing its use, academic and print media discourses could shape the public’s risk-benefit perceptions and impact the uptake of this technology leading to consequential implications for ethical and regulatory oversight.
Objectives: We analyzed academic and print media coverage of tDCS to assess publicly available information and discourse. We also analyzed the commercial availability of tDCS on the internet.
Methods: Content analysis of print media coverage and academic papers on tDCS, identified by systematic literature searches on the Internet, and PubMed and Factiva databases.
Results: We found a dramatic increase in publications on tDCS. For example, the total number of published academic papers increased per decade (1964-1981 N=2; 1981-1990 N=6; 1991-2000 N=10; 2001-2010 N=299; 2011-2013 N=632). We also identified four broad areas of focus surrounding tDCS use: therapeutic, enhancement, investigative and technical aspects. The academic literature focused primarily on therapeutic uses of tDCS (N=427; 45%), with less emphasis on investigative uses (N=294; 31%), enhancement uses (N=120; 13%), and technical aspects (N=104; 11%). In contrast, the focus of the print media was on enhancement and therapeutic applications (N=92; 42% each), followed by investigative uses (N=23; 11%) and technical aspects (N=11; 5%). The print media articles are enthusiastic, and only 6 (2.75%) advised caution or mentioned the possibility of adverse effects. Also, tDCS is easily obtainable worldwide on the internet as a product, (therapeutic and enhancement) service, and Make-It-Yourself gadget.
Conclusion: The rising tide of academic and print media coverage of non-investigative uses of tDCS, coupled with its easy accessibility, calls for urgent regulation. There is a rising tide of academic papers on tDCS that is well reflected in print media. The latter focuses on unproven uses and could impact the uptake of an affordable, available and easily disseminated simple technology. The policy gap created in this context needs immediate international attention.
Pharmacological “Cognitive Enhancement” and the Ethics of Manipulating Motivation
Alexandre Erler, University of Montreal
A growing number of students on university campuses in North America and elsewhere are reported to be using stimulant drugs like Ritalin, Adderall or Provigil, in order to be more effective when studying for exams or writing term papers. First and foremost, this practice raises concerns about risks to the health of users. Yet what if it were established that the risks involved with at least some of these drugs are low enough – would we still have reasons to object to such stimulant use and to prohibit it, or at least discourage it, among healthy members of the public (such as students looking for an extra edge)? In this paper I tackle this familiar issue on the basis of recent empirical evidence suggesting that, rather than primarily boosting cognitive function as previously thought, these substances rather appear to be enhancing the users’ motivation levels; as some users put it, they make “boring” work seem more interesting (Vrecko, 2013; Ilieva and Farah, 2013; Sharpe, 2014). I argue that if these users’ self- reports are indeed reliable, the ethical issues raised by “cognitive enhancers” turn out to be closer than we may have thought to those that were at the center of the debate on the “cosmetic” use of Prozac and other antidepressants. More specifically, I try and set out two perspectives we could take on such a practice, one favourable and the other one critical.
According to the first perspective, stimulant medications used for motivational enhancement should be seen as a welcome new means towards achieving an important goal – academic and professional success. On this approach, there are no good reasons for restricting access to those drugs by the healthy, provided that they are safe enough. On the contrary, students – and others – who struggle with insufficient motivation should be encouraged to avail themselves of such drugs, and perhaps even assisted in getting them insofar as doing so would help promote equality of opportunity. According to the second perspective, however, there is a presumption against pharmacologically altering feelings of boredom and low motivation levels, at least in the absence of conditions like depression. There are two main possible reasons for such a presumption. First, such affective states might (as paradoxical as it might sound) be valuable for their own sake, or at least be the precondition of certain activities that are so valuable. For instance, perhaps feelings of boredom sometimes constitute an appropriate emotional response to certain situations or activities. Secondly, such states might represent an important signal that a person finds herself in circumstances that do not suit her, a signal which, it might be argued, ought to be heeded when possible rather than pharmacologically suppressed. Perhaps some of these students would feel more motivated and fulfilled were they to switch to a different course of study more interesting to them, or to pursue a non-academic path? I argue that it is important to consider these possibilities in each particular case and that failing to do so, and simply promoting a pharmacological “fix”, disrespects these people, partly by failing to show due consideration for their individual identities. I extend this charge to those who would propose motivational enhancers as the only or even primary solution to the plight of people working in jobs they find tedious, while neglecting social and political means of alleviating the problem.
In the end, I suggest that we should try and balance the two perspectives as they both contain important insights. In order to do so, we will need to further discuss questions such as: how “normal” is it for someone like a university student to lack the motivation to study, and to what extent should we expect such a person to overcome it through her own efforts (perhaps as a matter of character- building)? Also, in any individual case, what exactly is the source of the person’s lack of motivation, and what are the prospects of correcting it by non- pharmacological means? In the meantime, I provisionally conclude that a sensible policy might be to allow healthy adults to use motivational enhancers under medical supervision. That said, I add that users who turn out to consistently rely on those substances to sustain effective levels of motivation should at least be recommended counseling. Furthermore, a political and social debate should be encouraged to ensure that such drugs are used for the benefit of individuals and do not become “a pharmacological method of making people love their servitude”, as Aldous Huxley foresaw (The Ultimate Revolution, 1962).
ILIEVA, I.P. & FARAH, M.J. 2013. Enhancement Stimulants: Perceived Motivational and Cognitive Advantages. Frontiers in Neuroscience 7, doi: 10.3389/fnins.2013.00198.
SHARPE, K. 2014. The Smart-Pill Oversell. Nature 506, 146-8.
VRECKO, S. 2013. Just How Cognitive Is “Cognitive Enhancement”? On the Significance of Emotions in University Students’ Experiences with Study Drugs. AJOB Neurosci. 4, 37-41.
Offering Neuro-Interventions to Offenders with Impaired Moral Functioning: Ethical and Criminal Justice Questions
Farah Focquaert and Sigrid Sterckx, Ghent University
What if neurofeedback therapy or other types of neuro-interventions, by itself or in combination with behavioral treatment, could achieve a successful ‘rewiring’ of the ‘immoral’ brain? Several fMRI neurofeedback studies have demonstrated that humans can learn to self-regulate localized brain regions, including emotional brain regions. Self-regulation deficits and neurobiological abnormalities in psychopathy, antisocial personality disorders, schizophrenia and pedophilia can potentially be addressed by modulating abnormal brain activity using neurofeedback. Ongoing fMRI neurofeedback research in criminal psychopaths is currently focusing on the impaired fear-system in psychopathy, which involves abnormalities in the orbitofrontal cortex, the amygdala, the anterior cingulate cortex and the insula. The aim of the feedback is to increase the activity in these areas and to induce brain growth since these areas are typically reduced in volume in individuals with psychopathy compared to normal controls.
Imagine that effective neurofeedback therapy would exist that could restore and/or enhance moral functioning and behavior, and further imagine that such therapy would provide a better long-term risk minimizing strategy compared to imprisonment. Would it be ethical to offer it as a condition of probation, parole or early prison release?
If the neuro-intervention has no moderate to severe side effects, and if recidivism risk is adequately addressed, then the offer of such interventions as part of an alternative sanction would not necessarily be ethically controversial. Nevertheless, some and perhaps many will argue that offenders will feel pressured into accepting the intervention out of fear of serving a lengthy prison sentence. If prisoners feel unduly pressured into accepting a specific intervention, offering it would threaten their autonomy and invalidate their informed consent. The element of coercion in judicial settings in combination with the requirement that the intervention be in the best interests of the incarcerated individual, urges us to be extremely cautious when offering neuro-interventions to offenders with impaired moral functioning. Indeed, the ethical worries loom large when moderate to severe side effects are possible, especially in cases of non-reversible treatments, even if the recidivism risk can be adequately addressed by such interventions.
However, the question arises as to whether, if offenders would indeed feel quasi-coerced to a greater or lesser degree into accepting the offer of some type of neuro-intervention, this would necessarily constitute a sufficient reason to withhold the offer? In this paper, we will argue that it can be ethical to offer effective, non-invasive neuro-interventions to offenders as a condition of probation, parole, or early prison release, provided that the fulfillment of four minimal conditions is verified on a case by case basis. In our paper, we go into detail concerning the specific nature and importance of these conditions. For example, our conditions require the absence of cruel, inhuman, degrading or in some other way wrong offers, while we acknowledge that answers to the questions what constitutes a cruel and inhuman intervention, and whether or not the element of reversibility is a determining factor, may not be exactly the same for everyone. We further argue that mandating invasive neuro-interventions as part of an offender’s sentence is both ethically and practically problematic. Moreover, although mandating non-invasive therapies as part of an offender’s sentence may be considered ethical by some experts, their implementation remains questionable from a practical point of view, and especially so in case of offenders with psychopathy. It is realistic to assume that most, if not all, neuro-interventions will require the offender’s willingness to undergo the intervention in order to achieve successful therapy outcomes and to effectively reduce recidivism.
Our discussion of the minimal conditions that need to be met in order for an offer of a neuro- intervention to an offender to be ethically acceptable, will make clear that an in-depth ethico-legal debate is needed for each class of neuro-interventions under consideration.
Truth Serum: The Reliability of Psychopharmaceuticals in Criminal Trials
Jessica Gabel, Georgia State University
The American justice system is adversarial by design and is structured with the goal of finding the ultimate truth among multiple, often conflicting, perspectives. Juries are charged with determining which set of facts is the one truth and then the law is applied accordingly. Evidence is presented through witness testimony, yet memories fail as time passes between the events at issue and the trial.
The system already permits the forcible administration of psychopharmaceuticals to treat incompetent defendants so that they are competent to stand trial. Psychopharmaceuticals have been used to suppress memory—most notably as therapy in cases where memories of traumatic events paralyze the lives of patients. Psychopharmaceuticals can also enhance and perhaps even restore memory. That said, if the goal of our justice system is to find the ultimate truth, what would be the evidentiary implications of using psychopharmaceuticals to enable witnesses or defendants to recall the actual events in question—not as remembered, but as they actually happened?
The goal of this paper is to explore the legal implications of both court mandated and voluntary psycho-pharmaceutical administration for memory restoration and testimonial accuracy. It will specifically address the reliability of memory-enhanced testimony, effects on the jury’s role in the justice system, and constitutional questions that such treatment would raise.
Prostheses for the Will: The Legal Implications of Neural Prostheses
Walter Glannon, University of Calgary
Devices implanted in the brains of individuals with traumatic brain injuries or neurodegenerative diseases may enable them to regain some control of motor and cognitive functions. These devices are components of systems that include deep-brain stimulation, hippocampal prostheses and brain-computer interfaces. Bypassing neural circuits rendered dysfunctional from injury or disease and operating outside of conscious awareness, the devices can restore or enhance the physical and mental capacities necessary for agency or free will. As they integrate into the body and brain, one may come to identity with them, and this process of identification can ensure that the actions one performs with them are autonomous. By enabling autonomous agency, neural prostheses can make individuals appropriate candidates for attributions of responsibility.
But if a neurostimulating system malfunctions and causes loss of motor, cognitive or volitional control resulting in a criminal offense, then would the person be criminally responsible for it? If a paralyzed person commits an assault by moving a robotic arm through a brain-computer interface, then would he be responsible for the assault if the only act he performed was the mental act of translating his intention into moving the arm? Or if a malfunctioning hippocampal prosthesis causes a person to forget critical information and fail to perform an act that would prevent a harmful event, then would she be criminally negligent? If a brain-computer interface enabled a minimally conscious or completely locked-in patient to respond “Yes” or “No” to questions about continuing or discontinuing life-sustaining treatment, then would this imply a legal obligation to act according to these responses? How does the relationship among brain, mind, and machine inform assessments of mental capacity, agency, legal obligation and criminal responsibility?
Neuro-Interventions in Youth at Risk for Criminal Behavior
Andrea Glenn, University of Alabama
Research over the past few decades has established that biological factors play a significant role in the development of antisocial behavior. Brain imaging studies demonstrate alterations in the structure and functioning of the brain in antisocial individuals. These alterations may result from either genetic or environmental factors. Modern neuro-interventions have the potential to improve brain structure and functioning in these individuals. However, neuro-interventions may have the greatest potential if administered early in life, when the brain is still developing. In fact, the earlier in life these interventions are provided, the more potential they may have for successfully preventing problem behavior. Yet, there are a number of ethical concerns regarding the administration of neuro-interventions in childhood, infancy, or even prenatally.
A primary concern regards the use of biological information to identify, at an early age, individuals who may be at greater risk for antisocial behavior – potential targets for neuro-intervention. Research has demonstrated that approximately 50% of the variance in aggressive and antisocial behavior can be explained by genetic influences. Studies have identified psychophysiological differences as early as age 3 in individuals who develop psychopathic traits or criminal behavior in adulthood (e.g., Glenn et al., 2007; Gao et al., 2010). Brain imaging studies have found differences in brain structure and functioning in children with psychopathic-like traits. As research on the biological risk factors for crime progresses, should these types of information be used to identify youth who may be at greater risk for committing crime later in life so that they can be enrolled in intervention programs? What are the potentially harmful effects that may come from labeling individuals based on early biological predispositions? Do these concerns outweigh the potential benefit that may result from the administration of neuro-interventions at an earlier age?
A second concern regards the determination of the type of intervention that should be implemented. There are a variety of potential methods for prevention and intervention that can result in lasting changes to biological systems. Some of these may be widely accepted as benign forms of intervention, such as nutritional enrichment, reducing exposure to toxins, and improvements to other health factors that affect relevant biological systems. In addition, a growing body of research demonstrates that lasting biological changes can result from traditional psychosocial forms of therapy (e.g., Brotman et al., 2007). Neuro-feedback may be a way to achieve similar results more efficiently. Other forms of interventions such as medication or repetitive transcranial magnetic stimulation are more invasive. Should such treatments be administered in youth who demonstrate significant biological risk factors for antisocial, despite the fact that they have not yet demonstrated criminal behavior? How much of the decision regarding intervention should be made by the child (if age permits), parent/guardian, or the legal system? How strong must the research be regarding the effectiveness of a particular intervention for it to be considered a viable option for a child compared to an adult?
A third question is whether interventions could be mandated during pregnancy. Research suggests that the prenatal period in particular is an important time in which to focus on preventive measures because the developing fetus is highly vulnerable to influences from the environment (Liu, 2011). By targeting risk factors during pregnancy, we may be able to significantly reduce the risk for the development of antisocial traits. If one or both parents demonstrate evidence of persistent criminal behavior, should the criminal justice system be permitted to mandate an intervention program for a pregnant woman? Would some forms of intervention (e.g., providing nutritional enrichment, discouraging maternal smoking and drug use) be more acceptable than others?
The optimal solution to the problem of criminal behavior is to develop methods that prevent the initial development of antisocial traits. An important advantage of early prevention measures that reduce prenatal or early life risk factors is that they have the potential to prevent negative outcomes in a variety of domains, not just antisocial behavior. However, there are a number of ethical implications that arise with the growing body of research on the early biological correlates of crime that require serious consideration.
Diversion Courts, Traumatic Brain Injury, and American Veterans
Valerie Hardcastle, University of Cincinnati
The U.S. Centers for Disease Control reports that there are more than 1.7 million traumatic brain injuries (TBIs) per year in the United States, ranging from mild concussions to the most severe form of trauma. Focusing specifically on the more than 2.6 million Americans who have now served in Iraq or Afghanistan, estimates are that at least 12% of veterans returning from the Iraq and Afghanistan combat theaters suffered from at least mild TBI. As the Department of Defense Special Report on Traumatic Brain Injury claims: “Traumatic brain injury is one of the invisible wounds of war, and one of the signature injuries of troops wounded in Afghanistan and Iraq” (2014).
We know that traumatic brain injury is associated with social and cognitive difficulties. But can it be tied to criminal behavior? The Center for Disease Control estimates that the lifetime TBI rates for prison inmates are as high as 87% — much, much higher than the general population rate of less than 10%. Moreover, the behaviors resulting from TBI, like impulsivity and aggression, parallel incarceration rates. Inmates with a recent traumatic brain injury score significantly worse on tests for anger and aggression. We find the same trends in our veterans. Veterans with a history of TBI are more violent than those with no such history.
But how the medical and scientific communities understand the origins of behavior clashes with how our justice system does. Medicine, psychiatry, neuropsychology, and neurology all hold that diseases, injuries, and deformities in the brain influence and even determine a person’s thoughts, desires, impulses, and ability to control one’s behavior. In contrast, U.S. law assumes that all adults are rational beings who act for specific reasons, and that in each instance, an individual could have done otherwise had he or she chosen to. From the perspective of brain science, our legal system’s underlying theory of human behavior is not only lacking, but is grossly at odds with our best data. In other words, a scientific perspective leaves less room, if any, for free will to have a place in explaining behavior, while the law is founded on that notion being true.
Yet, the American court system is beginning to differentiate returning combat vets with TBI or with other mind/brain disorders from other offenders. Several districts have created special diversion courts for veterans accused of a variety of crimes. These courts may allow some military members to enter a mental health treatment program for an infraction as opposed to jailing the offender. In many cases, Veterans Treatment Courts allow veterans to remain in the community as they complete treatment, and, if they complete successfully, the original charges are dropped.
Several questions arise from this practice. Should vets be treated differently than other non-combatant defendants with similar brain injuries? Should mental or brain disorders affect how we assign or understand legal responsibility? How do we square diversion courts with the M’Naghten standard for insanity? I suggest that we are experiencing a sea change in how our legal system understands and assigns responsibility, how we connect data regarding neural interventions with punishment and remediation, and how we distinguish “mad” from “bad.”
Slowly, the legal system is starting to change, as it now admits that brain abnormalities can mitigate, and, in some cases, even fully explain, someone’s behavior. It is starting to use diversion courts to help treat addicts and perpetrators with mental disorders instead of simply punishing them for behaviors that, in a very real sense, may have been beyond their control. These actions belie their notions of responsibility. The cognitive dissonance currently in the court system between what we know about the brain and how the law assumes we function has to be resolved. Until then, our court system will continue to fail those who suffer from serious brain injuries and various mental disorders.
A Legal Framework for Approval and Access to Neuro-Enhancing Chemicals
Yaniv Heled, Georgia State University
The regulatory discussion of enhancing (a.k.a. post-therapeutic) technologies is lagging behind, especially when it comes to the regulation of chemicals aimed at functions of the central nervous system (neuro-enhancers). Whereas the philosophical and medical discussion of such technologies has taken off over the last few years, the law seems to lack even the language necessary to discuss neuro-enhancers as such. The law does have frameworks in place for evaluating chemicals as therapeutics and for their potential for abuse, which determines their classification as “controlled substances.” Yet, there is no legal framework for the evaluation of chemicals as neuro-enhancers. As a result, a whole range of potentially beneficial uses of neuro- enhancers that resides “between” their utilization as therapeutics (which is highly limited and restricted) and their abuse as recreational drugs (which is mostly illegal) is left unattended from a legal perspective.
Furthermore, the law tends to be inconsistent when it comes to access to neuro- enhancers. The following example is illustrative: in the United States, individuals have virtually unlimited access to nicotine and caffeine, but are unable to legally obtain modafinil (Provigil®) and methylphenidate (Ritalin®) for non-therapeutic neuro-enhancing uses. This is despite the fact that both nicotine and caffeine are potent neuro-enhancers with well documented side effects and significant potential for abuse while the risks associated with the use of modafinil and methylphenidate and their potential for abuse are the subject of ongoing disagreement. This inconsistency, while explicable in historical terms, fails to excuse what may be “overkill” when it comes to enforcement of restrictions on access to neuro-enhancers for non-therapeutic uses.
In this presentation I will survey the existing legal mechanisms that control the use and dissemination of neuro-enhancing chemicals in the United States and show how they fail to address the potential for beneficial use of such chemicals as neuro-enhancers. I will then suggest parameters for legal changes that are necessary in order to bring to bear the neuro-enhancing potential of such chemical compounds. Specifically, I will touch on the following issues: how we ought to evaluate the neuro-enhancing potential of chemical compounds? How should decisions be made regarding possible restrictions on the use of neuro-enhancers? How and under what conditions (if any) may neuro-enhancers be (legally) disseminated for non-therapeutic purposes? And what regulatory frameworks and infrastructure may be employed in addressing these issues?
A Pill Is Required For This Job: Neuro-Interventions for Employee Performance and Management
Patrick Hopkins and Harvey Fiser, Millsaps College
Employers have long had programs that might improve employee attitude and performance, from something as simple as free coffee in the break room to things as extensive as gyms, counseling, massages, team-building seminars, and skills training. But what about more direct means of altering employee performance? The most immediately likely form of altering and improving employee performance would be forms of drug administration. While drugs like caffeine may improve alertness, numerous other drugs are begin studied that could alter moral judgment and cognitive skills in ways specific to a particular job. For example, manipulating levels of serotonin can make a person more or less trusting, more or less likely to be suspicious of unfair offers, and even more likely to punish free riders. Being less trusting might be an advantage when engaged in contract negotiations; being more trusting might be useful when working in-house to develop a new initiative. Manipulating testosterone can affect how consequentialist a person is in their moral reasoning and can alter social cooperativeness in a predictable subset of people. Being consequentialist might be an advantage when calculating risks, such as an actuary might do; being more or less socially cooperative has implications for inter-business negotiations. Manipulating oxytocin can make a person more loyal to a group. That might be useful in high stress situations where relying on your team is valuable. Propanolol has been shown to reduce implicit racial bias. That could be highly useful in hiring and mediations. So, if practicable and effective drug management regimens were to become available, should companies have the right to require employees to take such drugs as simply part of their job? Some jobs already require that an employee be a particular gender or physically attractive, to take prophylactic medication such as anti-radiation sickness drugs, and EEOC regulations allow companies to ask about medications an employee is taking that are “relevant” to their job. Employers can also use psychological screening tests for character traits such as honest in hiring. Would making cognitive and moral reasoning manipulation a job requirement be all that different? How strong are the precedents and how convincing the need? This presentation will examine the possibilities for such neurointerventions in employment and civil rights law—the arguments for and against, the existing legal framework, and the context into which such procedures would fall.
Making Morally-Permissible Punishment Impossible through Neuro-Intervention
Leonard Kahn, Loyola University New Orleans
The purpose of this paper is to explore one way in which future developments of neuro-enhancers and other neuro-modifying drugs can challenge our thinking about the moral permissibility of legal punishment.
Let me begin with a schematic treatment of some wide spread and appealing ideas about morally justifiable legal punishment: Assume both that a person, S, commits a crime at time t1 and that there is sufficient procedural justification at a later time tn to convict S of committing this crime. Intuitively, the following are necessary conditions for the morally permissibility of legally punishing S at tn for the crime committed at t1:
• Condition A: S at t1 must both be sane and at least minimally mentally competent.
• Condition B: S at tn must both be sane and at least minimally mentally competent.
• Condition C: S at t1 must be numerically identical to S at tn.
I argue the development of neuro-modifying drugs could in principle allow someone to intentionally commit a serious crime and in the process satisfy Condition A but then to make it impossible for Conditions B and C to be simultaneously satisfied.
To this end, consider the following thought experiment: At t1 Alice attacks Bruce and cuts off his right arm. Let us also say that Alice acts intentionally with the aim of gravely
harming (though not killing) Bruce. Further say that at t1 Alice is both sane and mentally competent. Hence, Alice meets Condition A. However, after cutting off Bruce’s arm, Alice takes a (logically possible though currently imaginary) neuro-modifying drug that I shall call “Paraphon.” Here too Alice acts intentionally and with full knowledge of what she is doing and what the effects of her action will be. Two features of Paraphon are especially relevant to this thought experiment. First, Paraphon instantly causes Alice to become insane. Note, however, that the drug does not cause Alice to lose her memories or any other mental states in such a way as to cause her to cease being numerically identical with Alice at t1. Second, the only thing that can restore Alice’s sanity at some later date is another neuro-enhancing drug (which is also logically possible though currently imaginary) that I shall call “Lethe”1. While Lethe will restore Alice’s sanity, it will also have an unavoidable side-effect, when combined with the Paraphon Alice has already taken: Lethe will cause Alice’s to lose all memories of her earlier life and, in therefore, will cause Alice at the time she takes Lethe to cease being numerically identical to Alice at t1.
The problem, in short, is that Alice, after satisfying Condition A, has arranged matters so that she must fail to meet either Condition B or Condition C. For, if she is not given Lethe before tn, then she will fail to meet Condition B since she will remain insane. And if she is given (or made to take) Lethe before tn, then she will fail to meet Condition C because she will not be numerically identical with Alice at t1.
Though one might reply that by harming Bruce, Alice has given up her right not to be forced to take Lethe, this response is misguided. For if Alice is forced to take Lethe this action will result in the termination of Alice’s existence. Furthermore, the termination of Alice’s existence is morally equivalent to her death. Clearly, it would not be permissible to cause Alice’s death for intentionally causing Bruce serious harm (though not killing him). Hence, Alice has not given up her right not to be killed.
Let me acknowledge (and to some extent vindicate) a simplifying assumption that I make: Some degree of continuity of memory is necessary for the continuity of numerical personal identity.2 Nevertheless, I do not make the stronger assumption that continuity of memory is sufficient for the numerical identity of persons. I do, of course, presuppose that the continuity of numerical personal identity is not contingent upon remaining sane. However, this assumption is consistent with many individual narratives of this condition (see, e.g., Lysaker, et al. 2010).
1. Of course many drugs associated with addressing issues of mental health (such as tricyclic antidepressants and nonbenzodiazepine sedative-hypnotics) do appear, in fact, to cause memory loss (Chavant, et al. 2011).
2. This view has affinities with a number of the views discussed in Parfit (1984: Sections 78 and 84), though the relationship is complex and cannot be discussed fruitfully here. See also Shoemaker (2003: Chapter 2).
Chavant, Francois; Favrelière, Sylvie; Lafay-Chebassier, Claire; Plazanet, Caroline; and Pérault-Pochat, Marie-Christine. (2011) “Memory Disorders Associated with Consumption of Drugs: Updating through a Case/Noncase Study in the French PharmacoVigilance Database,” British Journal of Clinical Pharmacology 72: 898–904.
Lysaker PH; Ringer J; Maxwell C; McGuire A; and Lecomte T. (2010) “Personal Narratives and Recovery from Schizophrenia,” Schizophrenia Research 121 (1- 3): 271-276.
Parfit, Derek. (1984) Reasons and Persons. Oxford: Oxford University Press.
Shoemaker, Sydney. (2003) Identity, Cause, and Mind: Philosophical Essays. Expanded Edition. Oxford: Oxford University Press.
Enhancement, the Self, and the Lottery of Life
Thomas Nadelhoffer and Jen Wright, College of Charleston
One of the key issues we will explore in this talk is the role played by both the notion of the self and the notion of natural capacity when it comes to people’s intuitions about using biotechnology for the purposes of both therapy and enhancement. After all, if our beliefs about the self drive some of our worries about enhancement—as some researchers have suggested—then how do we explain the fact that people are somewhat comfortable with the therapeutic use of enhancement technology yet very uncomfortable with the cosmetic use of these technologies? In both cases, individuals are tampering with cognitive and emotional processes and states that are fundamental to the self and to personal identity. Moreover, when it comes to both therapeutic and cosmetic enhancement, the choice to enhance is the choice to transcend one’s natural abilities—regardless of whether one’s natural abilities place one in the bottom 10% or the top 10%.
In short, the goal of enhancement for the naturally gifted and the naturally ungifted alike is self- improvement—which is a goal for which we are often told to strive. But given that the goal of enhancement is ultimately self-improvement, it’s unclear why we should think that pharmacologically enhancing our natural abilities is in principle any different than studying or practicing diligently, taking advantage of private tutoring, and the like. If it’s permissible for everyone to engage in these latter forms of self-improvement—regardless of whether one happens to be below average or above average—why wouldn’t it be similarly permissible for everyone to improve their performance by taking enhancement drugs?
In order to explore these and related issues, we are presently running a series of studies (which will be the focus of our talk). One of our main hypotheses is that people will think we have a right to be minimally average, but no more, when it comes to intelligence, artistic talent, creativity, athleticism, etc. such that it is permissible for people with natural deficits to therapeutically enhance until the point at which their capacities fall within the normal range. However, we also predict that people will find cosmetic enhancement—whether it’s being used by the less fortunate to become above average or the already fortunate to become even more extraordinary—more problematic.
Our interest in these issues is partly psychological and partly philosophical. On the one hand, we want to contribute to the growing empirical literature concerning how people think about the moral permissibility of both therapeutic and cosmetic enhancement. On the other hand, we are interested in exploring some of the interesting philosophical issues that arise in the context of enhancement as well— issues that range over the philosophy of mind, moral philosophy, and public policy. Our overarching interdisciplinary goal is to shed some new light on how people think about the complex relationship between the mind, the body, and the self, on the one hand, and the ever increasing technological power to alter, repair, and even enhance the mind, the body, and the self, on the other hand.
Managing Impulsivity: Can Transcranial Direct Current Stimulation (tDCS) Help?
Ekaterina Pivovarova, A. Carroll and J. Buckholtz, Harvard University
Technological advances over the past few decades have resulted in remarkable progress in our understanding of the intricate relationship between brain activity and behavior. Legal scholars and practitioners have taken notice of this scientific progress and a field of neurolaw has emerged (Jones & Buckholtz, 2009; Vincent, 2012). Correspondingly, clinical researchers have begun to advocate for neuroscientific knowledge to guide treatment interventions (Fisher et al., 2014). Greely (2008) noted that arguably the best use of neuroscience in forensic settings might be in treating offenders using emerging technologies. Building on these ideas, we examine one such a technique, the transcranial Direct Current Stimulation (tDCS), as a tool for reducing impulsivity. We explore the inherent limitations of this research and ethical quandaries that may follow were such an approach used with offenders.
Impulsivity is one of the predominant symptoms in Antisocial Personality Disorder (ASPD), Attention Deficit Hyperactivity Disorder (ADHD), and Substance Abuse (SA) – all psychopathologies that are overrepresented in offender populations. Unfortunately, impulsivity as a symptom and its corresponding disorders, are notoriously treatment resistant (e.g., ASPD) or warrant interventions that involve addictive and generally prohibited medications in correctional settings (e.g., ADHD, SA). Accordingly, an ideal treatment for impulsivity would involve a protocol that requires relatively little long-term compliance and does not necessitate medication with high abuse potential. One such an approach may be the use of tDCS.
Transcranial Direct Current Stimulation is a non-invasive procedure that uses a weak electrical current between two electrodes placed on the scalp to modulate neural activity. Research has indicated that tDCS may have beneficial effects that last beyond the stimulation period (Levasseaur-Moreau, Brunelin, & Fecteau, 2013). With regard to impulsivity, researchers have found that tDCS can reduce impulsive behaviors as measured by delay discounting tasks (Rorie &Newsome, 2005), improve focused, selective, and switching attentional capacities (Levasseur-Moreau, et al., 2013), and modulate risk taking on Balloon Analog Risk Taking tasks (Sela, Kilim, & Lavidor, 2012).
This study sought to expand the previous findings by assessing whether tDCS can improve prolonged (1 week) decision-making (i.e., reduce impulsivity) by strengthening neuronal pathways of dopamine, a neurotransmitter central to reward seeking. Specifically, we hypothesized that impulsivity is a function of an imbalance in the ascending versus descending regulation of dopamine between the prefrontal cortex and striatum. We predicted that tDCS to the prefrontal cortex would reduce impulsive choice behavior as measured by delay discounting tasks. We will briefly describe our findings on healthy participants, aged 18 to 35, who partook in the experiment.
The impact of this research, and similar work, is important to consider in the context of feasibility and ethical concerns. As noted, tDCS is a novel technique that has not been widely investigated. Currently, all research, including ours, has been conducted on healthy, educated adults – a population greatly at odds with a general offender sample. Many inmates present with one or more serious mental illnesses and it is unclear how tDCS will impact them. Additionally, tDCS has not been vetted by the Food and Drug Association (FDA), a step that would likely help to establish safety parameters. The process of converting tDCS use into an empirically supported treatment for any disorder or symptom is lengthy, costly, and decades away from current research knowledge.
Greely (2008) rightly highlighted issues of voluntariness and informed consent when treating offenders with any novel techniques. Offenders are a class of protected citizens who have been identified as vulnerable populations based on their status of incarceration (see Kaimowitz v. Michigan, 1973 for a historical perspective). We will discuss the potential pitfalls of using tDCS, even if all of the aforementioned limitations could be overcome. Managing impulsivity is a question of great concern to clinicians, researchers, ethicists, and correctional personnel. However, at this time, much more research is needed before we can accurately identify techniques at reducing impulsivity. Science evolves slowly and so should our push to integrate these newly acquired techniques to manage symptoms in offenders.
Greely, H. T. (2008). Neuroscience and criminal justice: Not responsibility but treatment. Kansas Law Review, 56, 1103-1138.
Jones O.D., Buckholtz, J.W., Schall, J.D., & Marois, R. (2009). Brain imaging for legal thinkers. Stanford Technology Law Review, 5.
Kaimowitz and John Doe v. Department of Mental Health for the State of Michigan,
73-19434, Mich. Cir. Ct., 1973.
Levasseur-Moreau, J., Brunelin, J., & Fecteau, S. (2013). Non-invasive brain
stimulation can induce paradoxical facilitation. Are these neuroenhancements transferable and meaningful to security services? Frontiers in Human Neuroscience, 7:449, 1-13.
Rorie, A.E. & Newsome, W.T. (2005). A general mechanism for decision-making in the human brain. Trends in Cognitive Science, 9, 41-43.
Sela, T., Kilim, A., & Lavidor, M. (2012). Transcranial alternating current stimulation increases risk taking behavior in balloon analog risk task. Frontiers in Human Neuroscience, 6:22.
Vincent, N. (2012). Neurolaw and direct brain interventions. Criminal Law and Philosophy, 8, 43-50.
Obtaining Informed Consent Through Use of Brain-Computer Interfaces? Future Perspectives for Patients With Locked-in Syndrome
Caroline Rödiger, University of Bonn
Recent research on brain-computer interfaces (BCI) has revealed new means of communication for highly disabled persons. Most common so far are Electroencephalography-based (EEG-based) BCI which allow persons with classical locked- in syndrome (LIS), i.e. persons who are immobile except for eye movements and blinking, to produce words and even full sentences. In the last few years functional Magnetic Resonance Imaging (fMRI) has been detected as a rudimentary communication tool for patients who, in addition, are unable to blink their eyes (persons with total LIS). Apparently unresponsive patients have been trained to give yes/no answers to questions by thinking of either a motor imagery (e.g. playing tennis) for an affirmative answer or of a spatial imagery (e.g. viewing the rooms of the house) for a negative answer. Considering that these communication tools have so far only served to communicate about basic needs, it is high time to raise the question if or to what extent they could also be used for obtaining informed consent to medical measures.
Informed consent is a process in which the physician provides sufficient information to the patient so that he or she is able to make a voluntary decision on the medical measure. The physician has to ensure that the patient understands the information and reasons adequately about purpose, nature, consequences, and risks of the medical treatment. Obviously, the more serious the consequences and risks of an intervention, the more significant is the assessment of the patient’s ability to weigh information. For clarification, the issue of withdrawal of life- sustaining treatment requires much more stringent verification measures than the question of use of analgesics. One of the key questions is thus whether the physician is able to assess capacity to consent through the use of BCI. Depending on the type of communication tool, the physician’s assessment is restricted to the interpretation of simple words, short sentences or brain images. It is self-evident that the patient’s ability to give only two types of answers represents an even greater challenge. The patient is not be able to express spontaneous wishes and to ask any questions. In addition, he or she cannot remain indecisive. Considerable legal concerns must also be raised with a view to withdrawal of consent. In case of a single medical treatment, the physician can ascertain that the patient does not want to withdraw consent right before the beginning of the measure, but when seeking consent for a long lasting medical treatment, the subject is not be able to withdraw consent at any time.
In due consideration of two types of communication tools (EEG- and fMRI-based BCI systems) I would like to identify physicians’ challenges in assessing capacity to consent, propose practical recommendations for patient/physician conversations, and discuss legal limits according to international law standards. I will assume that BCI communication devices might not fully replace patients’ representatives but could give patients a voice. They could help in deciding in the patients’ best interests and wishes in order to improve their well-being so that the main goal of informed consent, i.e. the patients’ participation in medical choices about their bodies, would be reached.
The Efficacy of Chemical Castration in Sex Offender Recidivism: Implications For Release
Chris Ryan, University of Sydney
What is the evidence that the administration of anti-libidinal agents reduces the likelihood of sex offenders re-offending after their release? I review the results of empirical studies and their quality and then examine the ethical implications of this evidence base in offering or mandating antiandrogen agents to sex offenders as part of their conditions for release.
Using Neuro-interventions to Rehabilitate Sex Offenders
Katrina Sifferd, Elmhurst College
The group “sex offender” is heterogeneous in that many of its members do not share any particular psychological disorder causally related to their crime. This is also the case with the group “drug offender”; however, drug courts have been fairly successful identifying the subset of drug offenders with a drug addiction and providing rehabilitative addiction treatment. This paper asks whether it is possible to reliably identify a subset of sex offenders that suffer from a common psychological disorder, and to use neuro-interventions to treat such offenders within the criminal justice system as a part of a rehabilitative program. In particular, the paper will explore whether chemical castration is an ethical means of rehabilitative treatment of some subset of sex offenders. The answer to this question seems to depend upon both the nature of the intrusive deviant sexual thoughts of the sex offender, and the way in which chemical castration is applied.
Enhancing Brain Activity Through Cortical Entrainment: New Evidence and Implications for Neuroethics
Nicholas Bello, Junaid Amin, and Gwen Frishkoff, Georgia State University
Presentation of binaural auditory beats (BAB) has been hypothesized to alter specific brain rhythms, such as beta (~12-20Hz) and theta (~4-7Hz). In a single-blind pilot study, we found support for this hypothesis: BAB stimulation in the beta range effected task-related changes in beta range EEG, whereas stimulation in the theta range led to increased theta-wave activity. The present, double-blind study replicated and extended this pilot work to investigate the capacity of BAB stimulation to enhance cognitive functions such as attention. We recorded event-related potential (ERP) responses from 256 locations on the head surface as participants complete a working memory (two-back) task. In this task, participants viewed a series of letters. The task was to press a button when the letter on screen matched the letter that was presented two letters back. BAB stimulation was delivered stereophonically through ear buds. Each participant completed three versions of the experiment: a Control version (no BAB stimulation), a Beta version (12-hz stimulation), and a Theta version (4-hz stimulation). We predicted that entrainment of beta would lead to greater accuracy and faster responses to targets, and that performance would be correlated with increased cortical activity in the beta range. We also predicted that entrainment of theta would lead to more false alarms to lures (one-back trials). We discuss the expected findings of this task, and the results of the pilot study, which contribute to a growing literature on the use of BAB stimulation to alter, and theoretically enhance, brain and cognitive functions. This experiment is part of a larger study that investigates the use of BAB to affect working memory and potentially improve the learning and retention of new words.
Reexamining Addiction & Responsibility: A Response to Stephen Morse’s Choice Model of Addicted Agents
Gregory Blakemore, Georgia State University
Recent debates in legal theory have provided polarizing accounts of the relationship between addiction and criminal responsibility. One group of theorists propose a ‘choice model’ of addiction. The choice model of addiction claims that addicts fail to exercise their rational capacities and, as such, drug addicts suffer from a weakness of will. The other model of addiction is the ‘disease model.’ The disease model of addiction maintains that addicts suffer from genetic, neurological, biological, psychological, and social factors that leads to a) an internal compulsion to use, or b) causes the addict to become irrational as a result of their addiction. The disease model claims that these bio-psycho-social factors bypass the addicted agent’s capacity to control their drug use. As such, the model contends that the compromised agential capacities of addicts provides the necessary criteria to mitigate responsibility.
Stephen Morse (2009) is an archetypal choice theorist with regard to addiction and responsibility. Morse contends that the criminal law is justified in holding addicts responsible for criminal behavior. Morse argues that the temptation to excuse addicts based on grounds of compulsion or irrationality is to confuse their behavior with the underlying genetic, neurological, and social factors that undergird that behavior. As such, Morse contends that neither the disease model of addiction or the causal role that bio-psycho-social factors play in addiction are sufficient to allow for mitigating circumstances with respect to addicts who criminally offend.
For Morse, criminal law is justified in ascribing responsibility to addicts in three ways. First, addicts can be held responsible for becoming addicted to drugs. Second, addicts can be held responsible for their behavior while addicted to drugs. Third, addicts can be held responsible for seeking—or failing to seek treatment—to recover from their drug addiction. This paper will focus on the first of Morse’s claims, viz. that addicts are responsible for becoming addicted. I contend that Morse’s view of addiction fails to account for the insidious nature in which addiction develops. However, the disease model does not provide the specific grounds to ascribe any responsibility to addicted agents and such a position is equally untenable.
This paper will assess four ways in which Morse’s commitment to the choice model of addiction is ill-equipped to appropriately ascribe responsibility to addicted criminal offenders. First, only a small percentage of individuals who use drugs develop addictions. As such it is difficult for individuals to forecast if they will become addicted, and what the downstream consequences of developing an addiction will be. Second, the development of addiction is an insidious process. Addiction develops in incremental potentially unnoticeable steps. Because the development of addiction is insidious, it is unclear at whether addicts realize that they have developed an addiction until it is too late. Third, many addicts develop addictions when they are adolescents. Morse contends that adolescents are cognitively indistinguishable from rational adult agents. However, recent neuroscientific evidence suggests otherwise. Although many cognitive capacities develop on a linear trajectory, in adolescence there is an asymmetrical neural development in which impulsive reward-driven parts of the brain develop faster than the frontal cortex which is responsible for inhibitive control (Xiao and Bechara, 2012). As such, adolescents tend to be at a higher risk of impulsive reward-driven behavior in conjunction within an inability to implement long-term planning. Fourth, ego-depletion studies suggest that the ability to exercise conscious self-control is limited in all agents under some conditions. As such, proto- addicts’ abilities to abstain from using drugs can be compromised when the capacities for self- control are depleted.
In the final section of the paper I will examine whether a reappraisal of the concept of agency—tout court—is needed. I contend that a reevaluation of what agency is and how it can be ascribed to individual agents can allow for a middle of the road position that is situated between the choice model and disease model of addiction.
Coffee and Cognition: A Framework for Making Cosmetic Cognition-Enhancing Interventions Appropriately Available to the Public
Monisha Chakravarthy, Vanderbilt University
Cosmetic Cognition-Enhancing Interventions (CCEIs) might be defined as procedures or substances that change our intellectual abilities rapidly, through an artificial and unnecessary intervention. (e.g., unaccompanied by a medical diagnosis). However, within the broad group of CCEIs, there will likely be substantial diversity of available drugs, both in their scope, justifications, invasiveness, intended uses, and accompanying risks and uncertainties. Resisting the rise of cognitive enhancement might be futile, as it would be both practically difficult and on principle largely unjustifiable to prevent people from gaining access to drugs that can make them achieve their full potential, except where the risk associated with that intervention is extremely high either to our nature as a society or as individuals. Any regulatory system seeking to restrict access or use of CCEIs needs to be sensitive to this diversity in order to be acceptable to the general public. Overregulation of low-risk CCEIs is likely to be a waste of time and effort, and perhaps an unjust interference with the public’s interest in improving themselves. On the other hand, under-regulation of high-risk CCEIs presents a threat to public health. I plan to elucidate a foundational framework that could constitute a first step towards understanding how to categorize these interventions. On one end of the spectrum could be low-risk, temporary adjustments to cognition like caffeine, which naturally is already freely available to the public because it is already generally recognized as safe in low doses and has relatively small effects on cognition. On the other end of the spectrum might be high-risk, invasive procedures that involve directly altering the brain’s structure or function through physical means, as opposed to only chemical means. The highest risk procedures might also include experimental methods, ones on the cutting edge of cognitive enhancement research, whose effects on people might be unknown for years after their use. Throughout my analysis I plan to link my proposed categories to currently available CCEIs to illustrate how these categories could work in practice. Throughout my poster I plan to analogize these categories to already existing categories used by the FDA for cosmetics, drugs, and devices, as well as other regulation of medical procedures where appropriate.
The Relevance of Neuroscientific Studies of Auditory Verbal Hallucinations for Criminal Responsibility Adjudications
Stephanie M. Hare, Jessica A. Turner, and Nicole A Vincent, Georgia State University
Schizophrenia is a mental disorder often characterized by the symptoms of delusions and hallucinations. While not all patients with Schizophrenia experience hallucinations, 75% of those diagnosed with the disorder experience auditory verbal hallucinations (AVHs) (Ford et al. 2014). Research into the underlying neurophysiology and neuropathology associated with AVHs is especially valuable, because it provides insight into the elusive mechanisms that underlie a major symptom of the disorder. Furthermore, improved understanding of these mechanisms opens the possibility for developing more targeted treatment options.
In addition to carrying a high degree of clinical relevance, considerations of psychotic symptoms like AVHs also carry special weight within legal debate. Consider the following two questions: How responsible is a person with Schizophrenia for the consequences of her action if she was hallucinating at the time that she acted? Should she be blamed for her action?
At first glance, we might think that the individual is less blameworthy, since her perceptual capacities were impaired at the time that she acted. But once we attempt to delve deeper into questions of whether a person was in her right mind, the waters become muddy. These questions will become central to debates about a person’s responsibility: Were her perceptual or cognitive capacities diminished or impaired at the time that she committed the crime? Were these impairments the result of a mental disorder? If so, how specifically was her perception and reasoning impaired at the time of the action? By how much were these mental capacities impaired? One will likely encounter obstacles in addressing these questions in an objective way. The first question requires judges and jurors to make an inference about the person’s past mental state(s) based on current testimony from eyewitnesses, forensic psychiatrists, etc. Currently, the law relies on the testimony of forensic psychiatrists and the diagnostic standards of the DSM-V to address the second question, while the last two questions are concerned with the causal mechanisms of AVHs.
Neuroscientists have specialized tools and techniques for peering into the mind and investigating these underlying neurophysiological mechanisms. Using this line of reasoning, some people might argue that neuroscientists might be better equipped than psychiatrists and psychologists to address the challenging questions discussed above. In this presentation, I will consider the strength of this view, drawing primarily from recent studies of the neural biomarkers of AVHs. I begin by surveying the findings of recent neuroimaging (NI) studies that aim to explore the neural mechanisms of AVHs. Next, I focus on a unique subset of NI studies investigating resting-state functional connectivity differences between chronic hallucinators and non-hallucinators. In addition, I present new data on the resting state connectivity patterns of 334 subjects drawn from the FBIRN data-set containing chronically hallucinating Schizophrenics, non-hallucinating Schizophrenics and healthy controls. Finally, I discuss both the scientific and normative relevance of the findings of this study. I return to the four challenging questions discussed above and argue that data from resting-state studies of AVHs can help us to address these questions. Thus, it seems that neuroscience can offer unique insight and perspective when it comes to making assessments of criminal responsibility adjudication.
Ford, JM. Roach, BJ, Jorgensen, KW, Turner, JA, Brown, GG, Notestine, R, Bischoff- Grethe, A, Greve, D, Wible, C, Lauriello, J, Belger, A, Mueller, BA, Calhoun, V, Preda, A, Keator, D, O’Leary, DS, Lim, KO, Glover, G, Potken, SG, FBIRN, Mathalon, DH. 2009. Tuning into the voices: a multisite fMRI study of auditory hallucinations. Schizophrenia Bulletin, 35, 58-66.
Legitimate Neuro-Interventions in a State Skeptical About Moral Responsibility
Nathan Houck, Georgia State University
Incompatibilists seem to either be disinterested or left out of the recent literature on issues relating to the intersection of neuroscience and law. Perhaps there is concern that a state run according to incompatibilist principles, especially those brands of incompatibilism that deny free will, would be undesirable or even impossible (Smilansky 2011). I provide an account of how direct brain interventions (DBI’s) might be used on criminal offenders in a state that is skeptical about moral responsibility. In providing this account, I show that such a state would not constitute a radical departure from most of our current political beliefs and that many of those beliefs would play a role in determining what DBI’s would be legitimate to use on criminal offenders. I also investigate whether there might be circumstances under which it would be legitimate to use DBI’s to alter a criminal offender’s values. This last investigation will involve an examination of the relationship between values and capacities.
The paper proceeds in the following manner: I begin by explaining the position of moral responsibility skepticism. I then discuss the political beliefs that would be important in a state that is skeptical about moral responsibility, the role of Bublitz and Merkel’s (2012) right to self- determination, and the problems that Shaw (2012) believes DBI’s pose for political and social values. I then investigate the legitimate use of DBI’s by looking at the difference between direct and indirect interventions and the role of consent. I then examine the relationship between values and capacities, and discuss any implications that the relationship might have for Shaw’s arguments against using DBI’s to alter a criminal offender’s values. I close by reviewing the restrictions that would be placed on the use of DBI’s in a state that is skeptical about moral responsibility.
Moral responsibility skepticism (MRS) is associated with the incompatibilist camp in the free will debate, but denies free will regardless of whether determinism or indeterminism obtains. Moral responsibility, according to MRS, is conceptually impossible (Strawson 1994). On this account, no one deserves praise or blame for his or her actions. If this account of moral responsibility is true, how may a state legitimately treat criminal offenders? In particular, this paper asks what brain interventions would be legitimate to use on criminal offenders? In order to answer this question, I first look to the structure of the political system and the values that are necessary for its proper operation.
A MRS state should have the same political beliefs, or at least very similar ones, as those held by liberal democratic societies that believe in moral responsibility; the absence of moral responsibility does not call for a new political system. Liberal democracies incorporate and protect a number of rights and ideas that are important to individuals and society: free speech, the marketplace of ideas, unobstructed participation in the political system, the autonomy of individuals, respect for human rights, etc. Important to all of these rights and ideas is the notion of political freedom. If a MRS state is to operate as a liberal democracy, it needs to grant political freedom to its citizens.
After discussing political freedom and the proper functioning of the political system, I investigate how the need for political freedom constrains the set of legitimate intervention methods by discussing issues of consent and the differences between direct and indirect interventions. I then consider whether there is a principled difference between values and capacities and how the relationship between the two affects the legitimacy of altering the values of criminal offenders. The paper closes by summarizing all of the proposed constraints on the legitimate use of DBI’s that were discussed throughout the paper.
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Another Problem with fMRI Deception Research: Lack of Generalizability from Subject Populations
Sarah Izzo and Ekaterina Pivovarova, Hamilton College & Harvard University
Recent advances in neuroimaging techniques, specifically functional Magnetic Resonance Imaging (fMRI), may allow for novel approaches to identifying deception in the brain. Spence and colleagues (2001) conducted the first study investigating deception using fMRI. They found that while lying individuals exhibited greater activation in the Ventrolateral Prefrontal Cortex (VLPFC) as compared to telling the truth. Since this initial study, 46 other empirical investigations have examined the neural correlates of deception using fMRI (Pivovarova, et al., 2014). Yet, the applicability of these studies to real life settings remains questionable, at best. This is in part because participants in these studies are unrepresentative of the population most likely to be evaluated by such instruments.
Nearly all deception studies have used community participants, and more commonly, college students, with no psychiatrics problems (Lee et al., 2009; Sip et al., 2013). However, individuals likely to be evaluated for deception in legal settings are most comparable to the prisoner population. Research has shown that there is a high prevalence of mental illness among prisoners, ranging from 45% to 65% in state and federal prisons and jails (James & Glaze, 2006). Accordingly, it will be important for researchers to examine deception patterns in individuals with psychopathology in order to understand whether deception neuronal patters can be generalized to the public at large. While many scholars have identified significant limitations of applying deception research findings to legal settings (Christ et al., 2008; Farah et al., 2014), there has been little focus on the lack of generalizability of study participants. Here we review the discrepancies between research and forensic populations. We examined 47 empirical studies that attempted to discern deception from truth telling using an fMRI and concluded that the vast majority of this research may not be applicable to populations of interest.
We identified 47 studies using PsycInfo and PubMed that sought to determine the neural correlates of deception through fMRI. The findings generally showed that deception had greater activation in the frontal executive system, parietal lobe, and subcortical areas than truth telling. However, only three of the 47 empirical studies analyzed participants with symptoms of psychopathology. The first of these studies, conducted by Kaylor-Hughes and colleagues (2011), looked at deception in 52 participants satisfying the DSM-IV for Schizophrenia. This study found that fMRI activation patterns of patients resembled that of healthy participants in previous deception studies. Fullam and colleagues (2009) attempted to study individuals with antisocial traits by examining 24 males with somewhat elevated scores on the Psychopathic Personality Inventory (PPI; Lilienfield et al., 1996). They found that certain psychopathic personality trait scores, such as fearlessness and social potency, were negatively correlated with brain activity. Jiang and colleagues (2013) examined 32 individuals who were previous criminal offenders. Participants were evaluated for lie-telling capability based on a Personality Disorder Interview (Widiger and Costa, 1994). They found that as the participants’ deceptive abilities increased,
their brain activation in the areas most often attributed to deception decreased. In sum, these studies indicated that psychopathy might potentially modulate brain activations associated with deception, making it more difficult to discern deceitfulness from truth telling in this population. While these three studies are an important step towards understanding how the forensic population may fare under fMRI deception tests, we are far from understanding the true nature of this type of evaluation in a real life setting.
When we compare the current research population demographics to that of forensic populations, there is disconnect between samples used in research and individuals most likely to be affected by this technology. Many of these studies have discussed the real world applications of such lie detection abilities in our judicial system. However, their research methods have failed to account for the generalizability, or lack thereof, to the population. In fact, the few existing studies on individuals with psychopathology may have different response patterns than that of standard study participants. Before we can apply fMRI deception research to the forensic population, we need more research samples that are representative of the prevalence of mental illness in our judicial system. Once we understand the generalizability and validity across various populations, then we can begin to think about its application in real life.
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Farah, M., Hutchinson, B., Phelps, E., & Wagner, A. (2014). Functional MRI-based lie
detection: scientific and societal challenges. Nature Reviews: Neuroscience, 15, 123-131.
Fullam, R., McKie, S., & Dolan, M. (2009). Psychopathic traits and deception: functional
magnetic resonance imaging study. The British Journal of Psychiatry, 194, 229-235.
Jian, W., Liu, H., Liao, J., Ma, X., Rong, P., Tang, Y., et al. (2013). A functional MRI study of deception among offenders with antisocial personality disorders. Neuroscience, 244, 90-98.
Kaylor-Hughes, C., Lankappa, S., Fung, R., Hope-Urwin, A., Wilkinson, I., & Spence, S. (2011). The functional anatomical distinction between truth telling and deception is preserved among people with schizophrenia. Criminal Behavior and Mental Health, 21, 8-20.
Lee, T., Au, R., Liu, H., Ting, K., Huang, C., & Chan, C. (2009). Are errors differentiable from deceptive responses when feigning memory impairment? An fMRI study. Brain and Cognition, 69, 406-412.
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Behavioural and functional anatomical correlates of deception in humans. NeuroReport, 12, 2849-2853.
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Neuroscience and Its Mind Altering Potential for Marketing
Devin Roach, Drew Rohskopf, Matthew Farkas, Fariha Islam, Christina Lucas, and Jacob Wright, Georgia Institute of Technology
When browsing the internet, have you ever found yourself wondering exactly how the ad on the sidebar knew that you loved traveling? And more specifically, how they knew your next vacation was coming up? Many people are beginning to wonder how marketing is so tactfully penetrating our consciousness. Now imagine what marketers could accomplish if they engaged in neuromarketing research. Then, not only can marketers learn what we already tell the world through our browsing history, but also gain an understanding of the neural basis of individuals’ emotional responses and decision making processes. Eventually marketers, with the help of neuroscience, may discover exactly how to target our unconscious mind, and ultimately alter our decision making process toward purchasing products that were previously unwanted or never considered.
The majority of current marketing techniques are developed based on behavioral studies of consumer preferences. However, researchers have recently made vast progress in using neurotechnologies to observe the human brain and its tendencies. As a result, such neurotechnologies have been discovered by marketers hoping to improve their marketing efforts. Marketers are now able to research consumer’s preferences and potentially have the ability to influence consumer buying decisions. In just the past few years, attempts to implement such technologies for neuromarketing have risen dramatically. It is clear that there is a tremendous commercial interest in neuroscience and its potential to alter human behavior and overall cognition process. By continuously advancing our knowledge of the human brain, it is critical that we remain wary of allowing scientists to alter human emotions, behavior, and capacities. As the policy implications of such neurotechnological advances increase and research continues to grow, it is important to address the issue.
Students in many disciplines are increasingly subject to novel ethical and political issues and therefore it important, from a policy standpoint, to openly discuss and formulate normative policy recommendations from these discussions. Consequently, as part of a classroom philosophy project, a group of multidisciplinary students were tasked with the research and development of a potential policy resolution to be introduced to Congress. After thoroughly researching many possible policy resolutions, their predicted impacts, precedents that have been set, and various perspectives, a final comprehensive policy recommendation was formulated. The Federal Trade Commission will regulate companies engaging in neuromarketing use and research. The policy recommendation will include a code of ethics that will be adopted from the Neuromarketing Science and Business Association’s (NMSBA) current code of ethics. The regulated companies will be required to give full disclosure to participants undergoing research. Additionally, the policy recommendation will ban any ads that can penetrate into the unconscious mind of consumers. The legally protected will also be guarded from neuromarketing attempts targeting their disabilities. Any company that uses neuromarketing in their promotions must subscribe to a registry that is readily available to the public. Finally, it was deemed crucial that all advertisements that use neuromarketing have a disclaimer included in the advertisement. This could be at the bottom of a physical advertisement or at the end of an audio or visual advertisement. Through implementation of the recommended policy, neuromarketers will be able to expand their knowledge of the human brain and improve their marketing techniques without violating basic ethical principles.
In conclusion, as neurotechnologies continue to progress, scientists will continuously gain more information about the human brain and how it functions. Consequently, marketers may one day be able to impact the decisions of consumers. After considering and extensively researching this eventuality, it was determined that the imminent ethical and policy implications of such technologies are very challenging. It is critical that these issues be discussed openly in an interdisciplinary manner in order to arrive at comprehensive, well-formulated, recommendations for future action. This prompted student formulation of a sample policy recommendation designed to includes a versatile code of ethics for neuromarketing research and neuromarketing application. Through the implementation and investigation of such policies, the United States will be able to support safe research practices along with ethical implementation of new neuromarketing technologies. The results of this interdisciplinary, collaborative project represent a significant need to think critically and engage these complex issues when taking a stand towards eventual policy decisions.
What is a Medical Device? The Implications of the Food and Drug Administration’s Definition for the Regulation of Consumer Neurotechnology
Anna Wexler, Massachusetts Institute of Technology
Recently there has been a dramatic increase in consumer neurotechnology products, such as wearable headsets that measure brainwaves using electroencephalography (EEG) and transcranial direct current stimulation (tDCS) devices that provide low-level electrical stimulation to the brain. Despite concerns raised by the neuroscience community, particularly with regard to tDCS devices, such consumer products are currently unregulated1. Here, I show how the Food and Drug Administration’s (FDA) definition of a medical device—which focuses on the intended use of the device rather than its mechanism of action—has shaped the landscape of consumer neurotechnology.
The FDA defines a medical device as an instrument that is “intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease”2. In most instances, it is in a company’s best interests to demonstrate a device’s medical benefit in order to reap the profits available in the medical industry. A notable exception is the dietary supplement industry, which the FDA regulates as a food as long as no claims are made about a supplement’s ability to “diagnose, treat, cure or prevent any disease”3. Thus, the supplement industry has spawned its own unique language of marketing terminology, wherein a product marketed for “wellness” (e.g., helps sleep) rather than an explicit medical or “therapeutic” purpose (e.g., reduces insomnia) is able to avoid FDA regulation.
A similar focus on the crafting of purpose has taken place in the arena of consumer neurotechnology. At the most recent consumer neurotechnology conference, a panel comprised of neurotechnology investors emphasized the importance of distinguishing between wellness and therapy for avoiding FDA regulation4. Currently, all five companies selling consumer EEG headsets market them for general health and wellness purposes. The Melon claims to “improve your focus,” the Emotiv Insight to “optimize brain fitness,” and the iFocusBand to “self regulate your emotional levels”5. Neurosky states that “wellbeing, balance, and optimal learning begin with brain health” and Interaxon, which is based in Canada, advertises the benefits of its headset for “maintaining composure, improving concentration and enhancing productivity”6. However, the science behind the above-mentioned claims is far from proven.
By contrast, the science behind tDCS is well documented: hundreds of peer-reviewed scientific publications have shown its beneficial effects for both cognitive enhancement and the treatment of various disorders7. To avoid regulation, however, most consumer tDCS devices omit explicit mentions of these medical benefits. They instead use language such as: “spark your mental ability,” “improve your brain function quickly” and “make your synapses fire faster”8. One device explicitly markets itself to gamers, and another has positioned itself as a handheld “cognitive enhancement device”9. Many companies post disclaimers similar to those used by supplement manufacturers, stating that their device is not intended to diagnose, cure or treat a disease.
Does avoiding stating an intended medical use shield consumer neurotechnology companies from regulation? On one hand, consumer neurotechnology devices fall outside the FDA’s traditional purpose-based definition of medical devices10. On the other, the FDA has not explicitly excluded such devices from regulation; the Agency is notoriously slow to act and could be formulating a regulatory approach to encompass them.
In the US, however, neurotechnology companies may have to contend with state laws and Federal Trade Commission (FTC) regulations. Indeed, to-date, the only instance of regulatory action against a consumer neurotechnology device has come from the California Department of Public Health, which in 2013 effectively shut down a tDCS device manufacturer, tdcsdevicekits.com, because the device had not received FDA approval as a medical device and was therefore in violation of California law11. Thus at least one state has ignored the device’s stated purpose and deemed it a medical device. The second issue is that the FTC regulates all devices that do not serve diagnostic or medical purposes, as well the advertising of some medical devices12. Thus, if the FDA does not recognize consumer neurotechnologies as medical devices, they could fall partially or wholly under the scope of the FTC, which can take action for misleading claims or potential harm to consumers13.
In sum, the consumer neurotechnology landscape in the US has been strongly influenced by the FDA’s definition of a medical device. Though it remains to be seen whether the FDA will classify consumer neurotechnology as medical devices, such devices may still fall under the purview of the FTC and state law.
1. See, for example: Fitz, N., and P.B. Reine. 2013. The Challenge of Crafting Policy for Do-It-Yourself Brain Stimulation, Journal of Medical Ethics. doi:10.1136/medethics-2013-101458 [Epub ahead of print]; and “Brain Blast.” Nature, 498, 271-272. (June 20, 2013).
2. “Is this product a medical device?” US Food and Drug Administration, http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/Overview/ClassifyYourDevice/ucm05 1512.htm
3. “Q&A on Dietary Supplements” US Food and Drug Administration, http://www.fda.gov/Food/DietarySupplements/QADietarySupplements/default.htm
4. “Investing in Neurogaming: Panel Discussion,” May 7, 2014, Second Annual Neurogaming Conference at the City View at Metreon, San Francisco, California. For conference information: http://www.neurogamingconf.com/. For recorded video of the panel: https://www.youtube.com/watch?v=fz95kEx3zx4
5. “Melon: A headband and mobile app to measure your focus,” https://www.kickstarter.com/projects/806146824/melon-a-headband-and-mobile-app-to-measure-your-fo; “Emotiv Insight,” http://emotiv.co/; “iFocusBand, Brain Headset for Mental Skills Training,” http://www.ifocusband.com/
6. “Muse: the Brain-Sensing Headband” https://www.indiegogo.com/projects/muse-the-brain-sensing- headband; “Neurosky,” http://neurosky.com/
7. Brunoni, Andre Russowsky, Michael A. Nitsche, Nadia Bolognini, Marom Bikson, Tim Wagner, Lotfi Merabet, Dylan J. Edwards et al. “Clinical research with transcranial direct current stimulation (tDCS): challenges and future directions.”Brain stimulation 5, no. 3 (2012): 175-195.
8. http://www.tdcs-kit.com/; http://thebrainstimulator.net/; http://www.foc.us/
9. http://www.foc.us/; http://www.cognitivekit.com/
10. For a discussion on extending medical device legislation in Europe to include consumer cognitive enhancement devices, see Maslen, Hannah, Thomas Douglas, Roi Cohen Kadosh, Neil Levy, and Julian Savulescu. “The regulation of cognitive enhancement devices: extending the medical model.” Journal of Law and the Biosciences1, no. 1 (2014): 68-93.
11. “CDPH Warns Consumers Not to Use TDCS Home Device Kit,” June 28, 2013, California Department of Public Health, http://www.cdph.ca.gov/Pages/NR13-029.aspx
12. United States Federal Trade Commission Act, Sections 12-15; and Sections 502(q) and 502(r) of the Federal Food, Drug and Cosmetic Act.
13. United States Federal Trade Commission Act, Section 5.