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Is Coercive Treatment of Offenders Morally Acceptable? On the Deficiency of the Debate

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Abstract

Is it morally acceptable to instigate criminal offenders to participate in rehabilitative treatment by offering treatment in return for early release from prison? Some theorists have supported such treatment schemes by pointing to the beneficial consequences that follow from the treatment. Others have suggested that the schemes are unacceptably coercive, which implies that consent becomes an illusion. This paper argues that the discussion—with clear parallels to debates of other healthcare treatment offers in medical ethics—has adopted a too narrow focus. By failing to consider the question as a penal theoretical problem, the arguments—both by proponents and critics of coercive treatment—become premature.

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Notes

  1. In the following, I shall use the standard terminology of referring to offers of treatment in return for early release as “coersive offers”. See, for instance, A. Day et al., “Coerced Offender Rehabilitation – A Defensible Practice?”, Psychology, Crime and Law, vol. 10(3) 2004, pp. 259–269. In the following I shall not discuss compulsory treatment (though several of the presented arguments may also be relevant to this type of treatment).

  2. It seems to be a widely shared assumption in the discussion of coercive treatment that treatment does not amount to an alternative punishment, but rather an alternative to punishment. With regard to some types of treatment this assumption seems highly plausible and I accept the assumption in the following. However, I do not here wish to deny that some types of treatment could function as punishment. See note 31 below.

  3. W. M. Burdon and C. A. Gallagher,“Coercion and Sex Offenders”, Criminal Justice and Behavior, vol. 29 2002 (pp. 87–109), p. 101.

  4. See, for instance, A. Day et al.,“Coerced Offender Rehabilitation – A Defensible Practice?”, op. cit. note 1, p. 259.

  5. See, for instance, T. Seddon, “Coerced Drug Treatment in the Criminal Justice Sytem: Conceptual, Ethical and Criminological Issues”, Crimonology and Criminal Justice, vol. 7(3) 2007 (pp. 269–286), p. 270.

  6. Although a few states provide it to those volunteering. See W. M. Burdon and C. A. Gallagher, “Coercion and Sex Offenders”, op. cit. note 3, p. 95.

  7. See W. M. Burdon and C. A. Gallagher, “Coercion and Sex Offenders”, op. cit. note 3, p. 99.

  8. D. R Cherek et al., “Effects of Chronic Paroxetine Administration on Measures of Aggressive and Impulsive Responses of Adult Males with a History of Conduct Disorder”, Psychopharmacology 159 2002 (266–274).

  9. See, for instance, J. Ryberg, “Punishment, Pharmacological Treatment and Early Release”, International Journal of Applied Philosophy, vol. 26(1) 2012 (pp. 231–244).

  10. See W. Hall and J. Lucke, “Legally Coerced Treatment for Drug Using Offenders: Ethical and Policy Issues”, Crime and Justice Bulletin, vol. 144 2010 (pp. 1–12); or A. Day et al., “Coerced Offender Rehabilitation – A Defensible Practice?”, op. cit. note 1, p. 262.

  11. For a few works that summarise the evidence on the effectiveness of coerced drug treatment see, for instance, W. Hall and J. Lucke, “Legally Coerced Treatment for Drug Using Offenders: Ethical and Policy Issues”, op. cit. note 10; S. Klag et al., “The Use of Legal Coercion in the Treatment of Substance Abusers: An Overview and Critical Analysis of Thirty Years of Research”, Substance Use and Misuse, vol. 40 2005 (pp. 1777–1795); A. Stevens et al., “Quasi-Compulsory Treatment of Drug Dependent Offenders: An International Literature Review”, Substance Use and Misuse, vol. 40 2005 (pp. 269–283); D. B. Marlowe, “Coercive Treatment of Substance Abusing Criminal Offenders”, Journal of Forensic Psychology Practice, vol. 1(1) 2001(pp. 65–73). For works on the effectiveness of coerced sex offender treatment see: A. Birgden and H. Cucolo, “The Treatment of Sex Offenders: Evidence, Ethics, and Human Rights”, Sexual Abuse: A Journal of Research and Treatment, vol. 23(3) (2011) (pp. 295–313); W. M. Burdon and C. A. Gallagher: “Coercion and Sex Offenders”, op. cit. note 3. For at recent meta-analyses of neuroscientific work that has been done on violence, see Y. Yang and A. Raine, “Prefrontal Structural and Functional Brain Imaging Findings in Antisocial, violent, and Psychopathic individuals: A Meta-Analysis”, Psychiatry Research, vol. 174(2) (pp. 81–88).

  12. See, for instance, A. Birgden and H. Cucolo, “The Treatment of Sex Offenders: Evidence, Ethics, and Human Rights”, Sexual Abuse: A Journal of Research and Treatment, vol. 23(3) 2011 (pp. 295–313).

  13. Center for Cognitive Liberty and Ethics, Threats to Cognitive Liberty: Pharmacotherapy and the Future of Drug War, 2004, p. 33.

  14. K. Vanderzyl, “Castration as an Alternative to Incarceration: An Impotent Approach to the Punishment of Sex Offenders”, Northern Illinois University Law Review, vol. 15 1994, p. 140.

  15. J. MacMillan, “The Kindest Cut? Surgical Castration, Sex Offenders and Coercive Offers”, Journal of Medical Ethics (forthcoming). It should be underlined, though, that MacMillan believes that sex offenders should not necessarily be deprived of the option of surgical castration. However, the point is that this option should not be coercively offered.

  16. As mentioned, the purpose here is not to consider whether the consent-based objection to coercive treatment per se is morally plausible. However, for a critical discussion of this objection (and for a different approach to coercive offers), see L. Bomann-Larsen, “Voluntary Rehabilitation? On Neurotechnological Behavioural Treatment, Valid Consent and (In)appropriate Offers”, Neuroethics, vol. 6 (2013) (pp. 65–77).

  17. See A. Day et al., “Coerced Offender Rehabilitation—A Defensible Practice?”, op. cit. note 1 p. 261.

  18. See W. M. Burdon and C. A Gallagher, “Coercion and Sex Offenders”, Op, cit. note 3.

  19. See “From Coercion to Cohesion: Treating Drug Dependence Through Healthcare, not Punishment”, UNODC, (2009); and W. Hall and J. Lucke, “Legally Coerced Treatment for Drug Using Offenders: Ethical and Policy Issues”, op. cit. note 10.

  20. I here use the standard terminology of characterizing deontology in terms of constraints. See, for instance, S. Kagan, Normative Ethics, Boulder, Westview Press, 1998.

  21. It is a well-known fact that there exist many different ethical theories of punishment, such as, for instance, a number of theories that seek to combine consequentialist and deontological considerations (e.g. limiting retributivism, negative retributivism, exceptional deviation models, etc). In the following, I cannot go through all of these theories. However, in the vein of the discussion presented here, it is not difficult to imagine that each of these theories will have implications with regard to the question as to whether early release from prison is morally acceptable and that—if one of these theories that constitutes the most plausible approach to punishment—the proponents and critics of coercive treatment still cannot ignore penal theoretical considerations if they wish to reach an adequate conclusion in the moral assessment of coercive treatment.

  22. J. Bentham, “Principles of Penal Law”. In The Works of Jeremy Bentham, ed. J. Bowring, Edinburgh, William Tait, (1838–1843), p. 396.

  23. See, for instance, P. H. Robinson and J. M. Darley, “Intuitions of Justice: Implications for Criminal Law and Justice Policy”, Southern California Law Review, vol. 81 2007 (pp. 1–67); or P. H. Robinson, “The Proper Role of The Community in Determining Criminal Liability and Punishment”, in Popular Punishment, J. Ryberg and J. A. Roberts (eds.), Oxford University Press, New York (forthcoming).

  24. For an analysis of the general deterrence research concluding that there is weak evidence of a link between the severity of sentences and crimes rates, see Von Hirsch et al, Criminal Deterrence: An Analysis of Recent Research, Hart Publishing, Oxford, 1999; or A. Doob and C. Webster, “Sentencing Severity and Crime”, Crime and Justice: A Review of Research, vol 30 2003.

  25. See, for instance, R. A. Duff and D. Garland (eds.), A Reader on Punishment, Oxford University Press, Oxford, 1994, Introduction; or J. Ryberg, Proportionate Punishment, Kluwer Academic Publishers, Dordrecht/New York, 2004, Introduction.

  26. Obviously, desert can be interpreted within the framework of the value theory of a purely consequentialist theory of punishment. However, if retributivism is interpreted in this way then this simply means that the proponent and critic of coercive treatment would have to engage in the sort of considerations outlined above (where the consequentialist theory of punishment was taken for granted). For a discussion of one possible version of a desert-based consequentialist theory of punishment, see for instance J. Ryberg, “Punishment and Desert-Adjusted Consquentialism”, in M. Tonry (ed.), Retrirbutivism Has a Past—Has it a Future? Oxford University Press, New York, (2012).

  27. The distinction between positive and negative retributivism was originally introduced by J. Mackie, Persons and Values, (1985), pp. 207–8. While positive retributivism implies that there exists an obligation to impose deserved punishments on perpetrators, adherents of negative retributivism hold the view that it is wrong for the state to punish a perpetrator more severely than she deserves. However, even if one subscribes to the latter, and deontically weaker, position this will not avoid the point made here, namely, that penal theory should be consulted in the evaluation of coercive treatment. If the way a perpetrator should be punished is—as long as the punishment does not exceed the desert level—determined on consequentialist grounds, then arguments for and against coercive treatment would simply have to be evaluated against the background of consequentialist penal theory, as considered above.

  28. J. G. Murphy, Retribution, Justice, and Therapy, Dordrecht, (1979) p. 230.

  29. A. Von Hirsch, Censure and Sanctions, Clarendon Press, Oxford, (1993), chapter 10.

  30. Suppose, for instance, that there is a majority in parliament in favour of an existing punishment level that is clearly excessive (if seen from a retributivist point of view) but also that it may be possible to convince the parliament to pass a new law opening for the possibility of offers of treatment in return for early release from prison. In this case, I guess, the retributivist should speak in favour of passing the law.

  31. As mentioned, I am here assuming that the treatment is not a type of punishment. However, if one holds that some types of treatment itself could function as a sort of alternative punishment (rather than an alternative to punishment), one would have to ensure that the reduced prison term and the treatment together mounted up to the total penal bite that is proportionate to the gravity of the crime committed. In other words, even if the treatment could be regarded as a sort of punishment one would still have to consider and evaluate the coercive offer of treatment from a penal theoretic perspective. For considerations on whether treatment could work as a type of punishment, see J. Ryberg, “Punishment, Pharmacological Treatment, and Early Release”, op. cit. note 9.

  32. Obviously this is not to say that retributivists are typically defending an absolutist interpretation of constraints. On the contrary, many retributivists would probably subscribe to a threshold position. However, it is generally agreed that such thresholds are placed at a very high level; that is, it requires significantly bad consequences to overrule proportionality constraints.

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    Jesper Ryberg

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Ryberg, J. Is Coercive Treatment of Offenders Morally Acceptable? On the Deficiency of the Debate. Criminal Law, Philosophy 9, 619–631 (2015). https://doi.org/10.1007/s11572-013-9288-8

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