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Neurointerventions, Recidivist Sex Offenders, and Situated Moral Agency: An Approach From the Margins

With the growing potential to address the biological conditions that lead to criminal behavior, scholarly engagement on the usage of mandatory neurointerventions as a condition of release from incarceration or as an alternative to incarceration altogether has increased in recent years. One of the most commonly implemented neurointerventions in the criminal justice setting has been the chemical castration of recidivist sex offenders. Chemical castration describes pharmacotherapy of males to reduce testosterone levels and is believed to significantly reduce the likelihood for recidivism, though few data support this claim (Basdekis-Jozsa et al. 2013). Discussion on ethical issues in the implementation of chemical castration has focused on coercion, consent to treatment (Douglas et al. 2013), potential human rights violations (Rainey and Harrison 2009), and whether it is less or more restrictive of particular rights than incarceral practices (Douglas 2014). What is lacking are ethical approaches that consider the role of the community, the needs of victims, and the offender as a moral agent who participates in their treatment and rehabilitation. This is significant, as a recent study indicates that public concern for the impact of neurointerventions on sex offenders is limited, with many respondents expressing disproportionately retributive attitudes (Berryessa et al. 2016). In this commentary I summarize the few authors, primarily feminists, who address these concerns (Trothen 2017). From there I present a set of ethical questions that emerge from considerations of moral agents “at the margins” of this contentious issue, who otherwise have not been represented in mainstream academic texts. Feminist and liberative ethicists have increasingly noted issues with dominant forms of discourse in Western bioethics. For example, Margaret Farley (2002) argues that in bioethics “the principle of autonomy has become so important that it is sometimes expressed as the principle of respect for persons,” reinforcing “cultural myths about individual independence as the basis of self-worth” (25–29). Barbara Applebaum (2003), who defines moral agency as “the capacity to choose and act in accordance with judgments about what is right and wrong,” claims that moral agency is most often analyzed “from within the framework of atomic, abstract individualism” where the social location of the moral agent is “conspicuously absent” (357). The results of this focus on the individual moral agent is a Western bioethical tradition where the principle of autonomy is prioritized over concerns for community, especially the most vulnerable, with depictions of individual moral agency lacking consideration of context and relationality to the detriment of all. In their article “Punishing Intentions and Neurointerventions,” David Birks and Alena Buyx (2018) argue against the use of mandatory neurointerventions in criminal justice settings. One of the most commonly implemented neurointerventions in criminal justice settings is the chemical castration of recidivist sex offenders. Chemical castration describes the pharmacotherapy of males to achieve antilibidinal effects (Basdekis-Jozsa et al. 2013). Chemical castration is believed to significantly reduce the likelihood of offenders to reoffend sexually, though few data support this claim, with almost all studies to date failing to meet the “high quality criteria of evidence-based medicine” (Basdekis-Jozsa et al. 2013, 308). Discourse on ethical issues in the implementation of chemical castration has focused on coercion, consent to treatment (Basdekis-Jozsa et al. 2013), and debate on potential human rights violations (Rainey and Harrison 2009). What is lacking is consideration of offenders, their victims, and the community as interrelated moral agents who collaborate to address wrongdoing. This is significant, as a recent study indicates that public concern for the impact of neurointerventions on sex offenders is limited, with many respondents expressing disproportionately retributive attitudes (Berryessa et al. 2016). Birks and Buyx make three methodological choices that are problematic for feminist and liberative ethicists. First, in challenging Thomas Douglas’s (2014) argument that incarceration involves an “equally objectionable interference with an offender’s mental states,” the