Abstract
The important question of the legality of the state obliging trial incompetent defendants to receive competency-restoring treatment against their wishes, is one that has received much attention by legal scholars. Surprisingly, however, little attention has been paid to the, in many ways more fundamental, moral question of whether the state ought to administer such treatments. The aim of this paper is to start filling this gap in the literature. I begin by offering some reasons for thinking it morally acceptable to, at least sometimes, oblige trial-incompetent defendants to receive competency-restoring treatments. The paper then discusses whether three prominent arguments (and their variations) offered by legal scholars against using non-consensual treatment to restore trial competence provide grounds for thinking there to be a general moral prohibition against these treatments. I argue that they do not.
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Notes
For a notable exception, see Ryberg (2016). It is, however, worth noting that recently related questions regarding the ethics of using non-consensual treatments for the purpose of criminal rehabilitation have received much attention (see e.g. J. C. Bublitz and Merkel 2014; Douglas 2014; Focquaert 2014; Shaw 2014; Birks and Douglas 2018; Petersen 2018; Ryberg 2020; Holmen 2022).
Throughout the paper I intend the term moral bad(s) to work as a placeholder for all of the the morally problematic aspects produced by an act. In relation to the specific example of civil confinement, the moral bad(s) may, for example, be the restriction of the defendant’s rights and/or the reduction in welfare that he may experience from the confinement.
But for a critique of these reasons, see Ryberg (2016).
Throughout the paper, following Kagan (1998), I use violate or violation to indicate that a moral right/value is set aside unjustifiably, and I will use infringe or infringement as an indicator of a morally permissible disregard or setting aside of the right/value.
I thank a reviewer for pressing me to consider this. As the reviewer also noted another consideration that would prove non-consensual treatment to restore trial competence to be morally dubious would be if legal punishment as such (or the specific sanction the defendant faces) is morally unjustifiable. This is, I think, correct. Hence, I shall assume for the remainder of the paper that legal punishment in some form can be morally justified.
The same, I believe, would arguably be true of treatments that, while leaving the defendant fully restored to trial competence, were also designed to make predictable changes in his preferences or attitudes that made him much more likely to admit his guilt. I thank a reviewer for suggesting I consider such treatments.
Indeed, Feeman presents her view on the back of an analysis of Riggins v. Nevada, where the defendant, David Riggins, was found competent to stand trial despite being heavily sedated due to treatment with antipsychotic medication.
To be clear, this is not to suggest that civil confinement is always as morally bad (or worse) than state punishment. Rather, the point is that in some cases it plausibly will be and, thus, in these cases it would arguably be morally better to non-consensually restore the defendant to trial competence even if this would lead to a biased trial.
The scope of this objection will vary depending on whether one believes that (i) doling out both more severe sanctions and less severe sanctions than justice demands is morally problematic, or (ii) that only more severe sanctions than justice demands are morally unacceptable. Either way, however, the challenges I raise shortly would seem to stand, although they would have most force against (i).
Although it may, of course, be wrong for other reasons. It may, for example, sometimes not be in the best interests of the non-autonomous defendant to receive the treatment. However, it would seem too strong to claim that treatment to restore trial competence can never be in a medical- and legal-incompetent defendant’s best interests: suppose, for instance, that the defendant, should he remain incompetent, is certain to be civilly confined for a prolonged period of time. Suppose further that if his trial competence is restored, he is likely to be found not guilty at his trial. It is not clear, at least in my view, that the former rather than the latter outcome would be in the defendant’s best interest.
For a similar argument as regards to moral weight of autonomy in the context of using non-consensual neurological interventions to rehabilitate criminal offenders, see Ryberg (2020).
Notice that I here use the term enhancement in a non-technical sense. That is, in the present context I intend it to merely mean that a cognitive ability is functioning better than prior to the intervention.
Note that I here only claim that such autonomy-based reasons seem to exist, not that enhancing a defendant’s future autonomy in this way suffices to justify infringing the defendant’s present autonomy. This is a complicated and controversial question, a full examination of which requires more space than I can devote to it here.
See also Bublitz and Merkel (2014) for a similar distinction between direct and indirect means of altering minds.
Notice that the relevant difference between them cannot be that direct treatments are intended to alter the mind of the defendant while the mind-altering effects of indirect treatments are not so intended, a suggestion which has been offered to explain the putative morally relevant difference between the mind-altering effects of incarceration and rehabilitative neurointerventions (Birks and Buyx 2018). Both types of treatment scheme would obviously have as an aim to restore the defendant to trial competence and could presumably only do so by altering some part(s) of the defendant’s mental life.
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Acknowledgements
The author thanks Jesper Ryberg, Thomas Søbirk Petersen, Frej Klem Thomsen, Emil Junge Busch, Cecilia Vollmer and two anonymous reviewers for their valuable comments on an earlier draft of this paper.
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Holmen, S.J. Ought the State Use Non-Consensual Treatment to Restore Trial Competence?. Res Publica 29, 111–127 (2023). https://doi.org/10.1007/s11158-022-09563-2
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DOI: https://doi.org/10.1007/s11158-022-09563-2