Paved with Good Intentions: Sentencing Alternatives from Neuroscience and the Policy of Problem-Solving Courts

Abstract

Advances in basic and clinical neuroscience will soon present novel options for prediction, treatment, and prevention of antisocial behavior, particularly drug addiction. These hard-won advances have significant potential to improve public health and safety and increase efficiency in delivery of treatment and rehabilitation. Moreover, such therapies will undoubtedly find a large portion of their target population in the criminal justice system as long as drug possession remains criminalized. Improvements, however, are not without risks. The risks stem not only from the safety and side-effect profile of such treatments, but also from their insertion into a criminal justice and sentencing system that may be overburdened, overpoliticized, undertheorized, and lacking sufficient checks and balances on institutional competency and legitimacy.

Furthermore, as neurological and biological therapies become more targeted and effective, they may threaten to override multi-faceted rehabilitation measures designed to address the social, cultural, economic, and psychological aspects of drug use and involvement with the criminal justice system. While offering substantial therapeutic benefits, such advances might also short-circuit a critical policy discussion about the nature of drug use and its criminalization.

New neuroscience treatments for addiction and antisocial behavior should force a deep examination of the legal, social, political, and ethical roots of drug and problem-solving courts, and particularly the mixed criminal justice/public health model on which they rest. As technologies to control behavior become more direct, targeted, and powerful, so do the risks of their misuse and potential harms to constitutional rights, individual autonomy, institutional competency, and institutional legitimacy.

Keywords: neuroscience, sentencing, due process, drug courts, addiction, criminal procedure, behavior modification, autonomy, ethics