Criminal behavior and the ethics of biological intervention

FindArticles > Humanist > Sept-Oct, 2005 > Article > Print friendly Criminal behavior and the ethics of biological intervention R.G. Weyant Humanity's long history of attempting to understand how the brain is structured and functions is a mixture of painstaking observations, brilliant insights, and spectacular errors. Knowledge in this area developed sporadically from antiquity through the eighteenth century, during which time it still had to compete with the notion that a nonmaterial mind-soul was the primary source of most human mental phenomena. This nonmaterial cause of human behavior, though it played a gradually decreasing role in the sixteenth and seventeenth centuries, still acted to preclude a complete understanding of the brain-behavior relationship. The most dramatic increases in our neurological understanding came in the late twentieth century with the development of technologies that allowed researchers to view the activity of the human brain while the subject was awake and carrying out various actions. Furthermore, we have learned that during the first few years of life the basic brain material produced, in keeping with instructions from the genes, refashions itself and its connections according to what it encounters in its environment. During infancy, excess unused nerve cells die off and those that are frequently used develop networks with other cells. This kind of information has led many scientists to accept as a working hypothesis the idea that human behavior is understandable as the product of the functioning of the human nervous system. The late Nobel prizewinning biologist Francis Crick put the idea this way in his 1994 book The Astonishing Hypothesis: The Scientific Search for the Soul: The Astonishing Hypothesis is that "You," your joys and your sorrows, your memories and your ambitions, your sense of personal identity and free will, are in fact no more than the behavior of a vast assembly of nerve cells and their associated molecules. ... The scientific belief is that our minds--the behavior of our brains--can be explained by the interaction of nerve cells (and other cells) and the molecules associated with them. The cells that make up the brain are specialized to carry electrical impulses along their lengths and to release chemical neurotransmitters under particular circumstances. The neurotransmitters move between neurons at the synapses and are what cause neighboring neurons to become activated and carry impulses to other parts of the brain. There have been a number of different neurotransmitters identified and they each lead to fairly specific feelings and functions. For example, serotonin functions to modulate emotions and the biological drives that motivate behavior; in particular it provides positive feelings and keeps aggression under control. If too little serotonin is produced, aggressive behavior will develop. The drug Prozac is used to control levels of serotonin. On the other hand, another neurotransmitter, noradrenaline, acts to arouse the brain when danger threatens by producing adrenaline that leads to quicker reactions, increased heart rate, muscular stamina, and other conditions useful when either fight or flight is called for. Noradrenaline also affects mood and mental arousal. The neurotransmitter dopamine plays a role in arousal as well as the production of schizophrenia and hallucinations. These chemicals also result in our feelings of aggression and tear and are all part of Crick's astonishing hypothesis. In this light, it follows that, if you can control the chemicals of the brain you can control feelings and behavior. This isn't to argue that scientists currently can explain all of the unquestionably complicated behavior of human beings in biochemical terms. However, as a working hypothesis there seems to be no reason why such explanations might not be achieved in the future and that some amazing progress appears to have been made in that direction. And the future may not be all that far away. In her 1999 book, The Biology of Violence: How Understanding the Brain, Behavior, and Environment Can Break the Vicious Circle of Aggression, Debra Niehoff extends Crick's astonishing hypothesis to take into account the finding that the genetically determined structure of the brain can be modified by experiences in the subject's environment: Dreadful sights, angry voices, a racial slur, the feel of the trigger, as well as moderating influences--reason, memory, conscience--are not cultural or spiritual ephemera, but depend on the movement of molecules, the integrity of proteins. Conversely, the molecular processes that craft the neural language of chemistry and electricity would falter without the continuous inspiration of current events. Between gene and environment, body and world, there is a brain--and it is the final common pathway of human experience. The ultimate confirmation of Crick's hypothesis will come through empirical research, but the idea that human behavior has its roots in individual physiology, particularly the functioning of the human nervous system, has led to the routine and effective use of drugs to control many unwelcome aspects of disease, including mental illness. While it is sometimes the case that the physicians involved aren't certain why the brain reacts a certain way to specific medication, over the past half century or so science has learned a great deal about the influence of chemicals on brain functioning. This brings us to the matter of criminal behavior. But we must begin with a caution. As soon as the discussion turns to biological causes, many presume the argument to be that all behavior is inexorably brought about by something like genes or hormonal secretions and that the social context is irrelevant. We've all heard claims of the existence of a "criminal" gene that supposedly predetermines inevitable criminal behavior from birth, or a "gay" gene that predetermines sexual preference. Given the incomplete state of our knowledge about the complex functioning of genes, however, such reports have to be viewed with healthy skepticism. But there is a growing body of evidence showing that a major function of the prefrontal cortex of the brain (in evolutionary terms, a relatively new area) is to act as a brake on the antisocial, destructive, aggressive behaviors that arise in older, more primitive, less evolved portions of the brain. Individuals with "short fuses," whose tempers seem to flare into aggressive behavior with very little provocation, often demonstrate some malfunctioning of the prefrontal cortex. And there are documented cases in which accidents or disease have destroyed a portion of the prefrontal cortex and left the individual with a drastically modified personality. Niehoff uses the phrase, processes open to intervention in referring to those biological processes that impact particular behaviors and can be manipulated to control those behaviors. The use of drugs to control certain symptoms of mental illness is one example; mood-altering drugs having become common whether legally or illegally obtained. Niehoff's interest lies with violent behaviors of various kinds and she says of these behaviors: Our violent behavior bewilders us because we lack crucial information. Countless newspaper articles, books and television programs chart the social dimensions of violence: poverty, racism, the breakdown of the family, the pervasive influence of television, the ready availability of guns. But the outer world is meaningless until it enters the inner world, the dimension governed by brain and perception, thought and emotion, nerve and tissue. Until we know as much about this inner dimension as we do about the outer one--what goes on inside the heads of aggressors and their victims--we are not prepared to analyze the problem of violence effectively. What she then attempts to do is to provide us with some indication of where current scientific research is taking us in terms of understanding violent behavior. And it has taken us further than many might think. It has become increasingly clear that the genetically structured building blocks of the human brain--the neurons--are importantly affected in their functioning and their connections with other neurons in the prenatal and postnatal environment. Before birth such activities as the mother's hormonal secretions can influence whether a brain develops in typically "male" or "female" ways and how sensitive it will be to stress. It isn't just obvious physical conditions, such as excessive alcohol ingestion by the mother, that can cause abnormalities. Both pre- and post-natal environmental violence and stress can also lead to an abnormally functioning infant brain. Laboratory evidence indicates that stress, violence, and similar experiences can cause infant brains to develop in ways that make aggression and criminal behavior more likely. Clearly, the preferable way of dealing with this type of situation would be to reduce the amount of stress and violence in the developing infant's environment, including the prenatal environment. But this may not be easy to accomplish since a number of widespread social problems--including poverty, drug abuse, dysfunctional parental activity, and violence toward women--are proving difficult to eliminate. Even in purely economic terms it would be worth achieving, since it has been estimated that, for every dollar spent on preventing criminal behavior at an early age, five dollars can be saved in decreased police, court, and prison costs--and this doesn't even account for the personal cost of wasted, unproductive, and unhappy lives. But if we can't keep young brains from developing in ways that are likely to lead to crime and violence, then the next best course may be to deal directly with the biochemistry of the adult criminal brain, which could have the added advantage of helping to eliminate those adult behaviors that initially cause the problems for children. This is where therapeutic drugs come in. In the future this is likely to be done through the use of electrodes and implanted microchips as well. If this latter sounds like science fiction, consider that scientists in both Canada and Germany have recently reported using a silicon chip to communicate between living nerve cells, causing the neurons to remember and relearn responses. Researchers argue that this technology will aid in controlling lost brain functions by moving artificial limbs and restoring sight to patients with damaged sensory nerves. But there is no reason why such technology couldn't also be used to alter brain functioning in other ways, such as to reduce crime. Anne Moir and David Jessel write in their 1997 book A Mind to Crime: the Controversial Link Between the Mind and Criminal Behaviour: "There really is a mind to crime--indeed, different, identifiable minds to different, specific crimes." That is, though there's a brain connection, there's no reason to believe that all crime must have the same cause. Just as physicians have come to understand that there isn't just one disease called cancer but a whole range of diseases with different etiologies, treatments, and prognoses, so too crime isn't one undifferentiated entity. Therefore, the idea that an interaction of genetic predispositions to certain forms of behavior, taken in context with social factors and hormonal imbalances during gestation, is worth studying. As Niehoff observes: "Violent behavior, like other complex behaviors, is neither a program nor a reaction but a process. It is not inborn, nor is it made from scratch by culture. It develops." There is a fundamental problem, however, in using this knowledge to treat crime. We need to ask who we will trust to use techniques that involve the biological control of human behavior. And we need to decide how to and for what purpose we will use the techniques of behavior control--taking into consideration the associated problems raised for ethics, individual rights, and civil liberties. Many brought up in the Western cultural tradition have a particular aversion to the idea of controlling the behavior of other individuals. Yet the practice of such control is widespread. Certainly advertising and media propaganda have such control as a goal. The U.S. military in Iraq was particularly enthusiastic about what it called psy ops in attempting to control enemy behavior. And, of course, the United States has already legislated that some attempts at behavioral change are mandatory--for example, compulsory education. The late behaviorist B. F. Skinner used to quip that the only difference between education and brainwashing is that brainwashing is effective. If it becomes possible to use biological intervention to eliminate some forms of behavior, such as pathological aggression, surely that would benefit both the individual and society as education does. So if we don't think of the educational requirement as an infringement on personal freedoms, why are we uneasy about biological interventions in behavior? Is it because, as Skinner suggested, we are only concerned about what we see to be effective means of control? Suppose it is demonstrated to a reasonable level of satisfaction that people with the proverbial "short fuses" could be prevented by effective biological intervention from engaging in violent behavior. Violence reduction is a goal that many individuals and organizations vigorously seek and, to the extent achieved, could be a major positive step in the lives of both the aggressors and their potential victims. This would be on a par in importance with the elimination of many contagious diseases. Most of us don't believe that any momentous ethical problems or great issues of civil liberties are involved in laws requiring that individuals receive inoculations against such diseases, thus depriving them of their natural right to contract debilitating and fatal disorders. But we probably would be disturbed about the use of biological techniques to alter individual behavior. Rita Carter, in discussing some of the current research, writes in her 1998 book Mapping the Mind: The biological basis for mental illness, for example, is now demonstrable: no one can reasonably watch the frenzied, localized activity in the brain of a person driven by some obsession, or see the dull glow of a depressed brain, and still doubt that these are physical conditions rather than some ineffable sickness of the soul. Similarly, it is now possible to locate and observe the mechanics of rage, violence and misperception, and even to detect the physical signs of complex qualities of mind like kindness, humour, heartlessness, gregariousness, altruism, mother-love and self-awareness. ... Rather as knowledge of the human genome will soon allow us to manipulate the fundamental physical processes that give rise to our bodies, so brain mapping is providing the navigational tool required to control brain activity in a precise and radical way. Because scientists involved in this research understand the disturbing nature of what they are uncovering, Carter went on to observe, "The personal, social and political implications of this are awesome, and one of the most serious ethical questions we will face in the new century is deciding how this powerful new tool should be deployed." Clearly Carter assumes that a tool as powerful and potentially effective as biological intervention will in fact be used. I would agree. Not only because the corporations that will likely hold the patents on various techniques will want to make money on the use of them but also because governments will be tempted by the financial savings that will be involved. The attempt of governments to "get tough" with criminals--from handing out an increasing number of sentences of life imprisonment without possibility of parole to the "three strikes" approach that incarcerates habitual offenders in prison for the remainder of their lives--is beginning to have noticeable effects in producing an increasing number of aging inmates who will be the responsibility of prison systems for as long as they live, in some cases decades. This scenario is further compounded by other fields of scientific research and developing technological advances. We have a number of medical researchers confidently predicting major extensions of human lifespan. One such prediction has an increased number of already elderly people living past the age of 100 and younger individuals possibly living to 140 years. Even if these estimates are an exaggeration, over the past few centuries the average lifespan has increased due to improvements in hygiene, diet, and medical treatment--and some continued increase is to be expected. Governments must give some thought, therefore, to the economic and political costs involved when a "life" sentence given an offender in his or her twenties or thirties might mean more than a century behind bars at the taxpayers' expense, including the health care that accompanies old age. Criminal legislation, as well as public policy in general, has to take into account the implications of longer life expectancies. The problem is already beginning to hit some countries where an increasing number of their elderly inmates can't legally be released even though they often no longer constitute any real threat to the public at large. North American governments are dealing with this situation by granting release to those criminals who can legally be released, even if some of them are still possible public threats, simply because the cost of keeping all prisoners incarcerated has become prohibitive. Now imagine these governments, faced with enormous expenses, being told that biological interventions exist that could, for a minimal outlay, change the prisoners' behavior and make recidivism a thing of the past. Governments will be told this by the lobbyists for the companies that hold the patents on the biological techniques; drug company lobbyists are already at work but there will be others. Try to believe that governments won't be tempted by much cheaper interventions. These are major factors that will affect the penal system and criminal legislation. Furthermore, if it is hoped that governments will restrict the privatization of techniques of biological intervention, it should be remembered that in the United States corporations have been allowed to patent genetically altered life forms, a practice that is illegal in a number of other countries. If life forms can be patented, is there any reason to believe that governments will have the political will to make it impossible to patent techniques of biological intervention if they become convinced that some aspects of crime can be effectively controlled in this way? Beyond the profit motive there is the humanitarian ideal. When we are feeling our civilized best we argue that the purpose of incarceration for criminals should be rehabilitation--that is, a change in the criminal's behavior. Robert Grant, a lawyer and former judge, writes in "Capital Punishment and Violence" in the January/February 2004 Humanist: "We need to approach the problem ... not as a legal matter determining the rights and duties of the parties but as if we were treating a disease--the disease of violence." The appropriate technology then becomes one that can treat the disease--that is, change the criminal's behavior. And this would be the goal of effective biological techniques. Moir and Jessel have gone so far as to suggest that we may need to bring our ethical and legal thinking in line with the increase in biological knowledge: We need to know what to do--as electors, lawmakers, jurors, doctors, citizens--with the growing knowledge that crime is as much a function of biology as anything else. Evil may be something no more sinister than a matter of loose connections. The devil may be the term for an accumulation of cerebral wounds. Perhaps the theologians, too, need to think again. Is it practically possible to discard the traditional concept of justice based on guilt and punishment and replace it with a "medical model" based on prevention, diagnosis and treatment? Moreover, as ethicist Ruth Macklin writes, "A murderer sentenced to life imprisonment is subjected to a form of behavior control: his liberty to move freely about and thus to act in certain undesirable ways is taken away." In this sense, our whole system of criminal justice is already based on the concept of behavior control. So it may not be behavior control as such that is of concern. Given that we are going to indulge in attempted behavior control anyway, we should consider on what rational, ethical, and legal grounds we are opposed to biological interventions. We should talk about some of the alternative techniques despite the fact that the very idea of effective biological control of human behavior is pretty unnerving. Let's look, then, at a few of the ethical questions that need to be asked. As Ruth Macklin has observed, the fundamental question is: "Who may do what to whom and with what justification?" It is, after all, possible that the techniques of behavioral change could be used in ways that go beyond the rehabilitation of those currently regarded as criminals. Not only do governments routinely determine through their legislation who is and isn't a criminal, but given the motley crew of ideologues, religious fanatics, charlatans, egomaniacs, and even psychopaths who head some of the world's governments today, the idea of effective behavior control techniques in their hands should be enough to curdle anyone's blood. Keeping that problem in mind, we can start by looking at various scenarios of biological intervention with convicted felons. One would be to present prisoners with a choice of spending an extended period of time in prison or having their behavior altered through biological intervention. But would this be a real choice or a coerced choice? That would depend, among other things, on the conditions of imprisonment. Governments could certainly make those conditions so horrendous that criminals would virtually be forced to choose the biological intervention. It might also be argued that, under any conditions, the choice is coerced--like the choice given by a mugger to a victim, "Your money or your life." But there is a difference: neither theft nor murder is legal or ethically accepted by society, while incarceration after conviction is both legal and ethically acceptable. And, presumably, the choice of biological intervention wouldn't be offered by some arm of the government unless that intervention had also become both legal and socially acceptable. If some would argue that this could still be an improper coerced choice, debate over this had best commence soon before increased biological intervention becomes an undiscussed reality. Relevant to ethical discussions of biological intervention is the consideration of whether the intervention is permanent or temporary--that is, whether the altered felon might be able to change her or his mind. Clearly, surgery is probably going to involve permanent change. Drugs, on the other hand, are thought of as temporary but may involve more permanent long-term changes that we don't currently understand. Another ethical consideration is "informed choice:" How much information on brain functioning and biological intervention is necessary to constitute an informed choice? Also to be debated is the rationalization behind society's sentence: is the intervention intended to be rehabilitative or retributive? Can we honestly say that we believe that long-term prison sentences can be termed rehabilitation rather than retribution? And are we ethically comfortable with the idea that we simply punish criminals rather than attempt to rehabilitate them? In this case, should biological intervention be considered rehabilitation or an alternative punishment? Is it a punishment to cause a violent individual to become less violent and thus less of a threat to family and neighbors by changing the convict's personality? Or is this closer to depriving a citizen of the right to contract polio and become less of a public threat by making inoculations mandatory? Rita Carter has further asked, "Is an artificially induced change of mind worse than a stretch in prison?" Once we take seriously Robert Grant's proposal that we view violence as a disease, these questions become inevitable and, whatever their answers, they should be discussed. We also have to consider the alternatives. Can we reasonably hope to stop the research on brain functioning? And to what extent can the legal uses of such techniques be effectively controled? Among the things that might be done are prohibition of various uses of behavior control technologies and the establishment of protocols and regulatory bodies that would oversee the conditions under which the biological interventions are used. For example, we would want to be sure that the techniques are reliably effective and don't have the kind of negative side effects that the "ice pick lobotomies" of the 1940s and 1950s had. Beyond this we need to ask if a criminal trade might develop in the illegal sale of the electronic gear necessary to produce such control. After all, there has been such a trade in mood-altering drugs. Given this, we should wonder if future wars will be fought because it is believed that some dictator has stockpiled weapons of mass biological control. Given success in the effort to limit or prevent such interventions, another ethical question emerges. Is it right to have effective means of controlling crime and violence but not use them because they somehow violate our concepts of free will and personal liberties. Moir and Jessel have asked: But if crime is--to any extent--the result of neurophysical or chemical factors beyond our control, just as is the case with the mentally ill, it is illogical for us to deal with whole classes of criminals in the way that we do. Will future generations stand aghast at the thought that some people were subjected to the whole panoply of our judicial and penal system ... when a simple diagnosis and treatment were all that was necessary or deserved? Will there come a time when, if criminologists heed the lessons of science, this will seem as ritualistic and nonsensical a cultivated barbarism as the drowning of witches? So are we willing to forego the positive results of such understanding? Under what conditions could it be reasonably argued that governments should make certain areas of scientific research illegal? Answers to these questions will depend not only on advances in scientific knowledge but on changes in our ethical, legal, and personal perceptions, including a determination of what we owe to the victims of crime as well as its perpetrators. No one can believe that the answer will be simple because it has to take into account the safety of society as a whole and the fact that, at the present time, such serious disorders as psychopathic personalities appear to be completely beyond the reach of current therapy. But the solution isn't to ignore the possibility of scientific advances that will close that gap. And we already indulge in psychiatric interventions. There are already cases in which parole is granted to convicted felons on the condition that they take medication that controls their violent tendencies. If the parolee stops taking the drugs in violation of his or her parole, the parolee may be returned to prison. This is a clear case of biological intervention currently in use. Extensive biological intervention in the criminal justice system remains in the future. Science and technology aren't fully there yet. But by the time they are, it may be too late to introduce ethical considerations. So now is the time for the discussion to be seriously joined. Bob Weyant is a retired university professor and administrator with a Ph.D. in experimental psychology. He lives in Victoria, British Columbia, Canada. References for this article are available upon request to rgweyant@shaw.ca COPYRIGHT 2005 American Humanist Association COPYRIGHT 2005 Gale Group