Memory and Punishment

Abstract

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, and by the broader community. Because this is so, new neurobiological techniques to modify memory - including interventions to erase some or all memory, to dampen the emotional/affective content of memory, and to enhance the duration and intensity of memory - pose, in principle, special challenges for the just and effective distribution of punishment. This article identifies and analyzes the substance and contours of these challenges. It is meant to prepare the necessary groundwork for future scholarship on how the law, as enacted, enforced, and interpreted, should respond (if at all) to such concerns.

Keywords: Jurisprudence, Food and Drug law, Punishment theory, Criminal justice law, criminal procedure, Death penalty, Neuroscience, The brain