The Right to Personality: Navigating the Brave New World of Personality-Altering Interventions

Abstract

As neuroscience progresses, policy makers will have an increasing arsenal of behavior-modifying interventions at their disposal to deploy in the hopes of reducing recidivism and making the criminal justice system more rehabilitative. While these interventions are promising, they also can pose grave risks to individual liberty interests that are insufficiently acknowledged, much less protected, by current jurisprudence. Specifically, the current legal regimes and proposed alternatives either fail to identify the nature of the liberty at stake by overly focusing on physical side effects to the exclusion of thought- and personality-altering side effects, reject completely the potential for these interventions to improve the justice system, or inadvertently invite the medicalization of crime. This Article proposes a balancing test centered around the Fifth and Fourteenth Amendment liberty interest in “personality integrity.” This liberty interest has roots in the “intellectual prong” of the liberty interest referenced in the Supreme Court’s forced medication jurisprudence. This approach allows for the adoption of some beneficial interventions as technology progresses, avoids subjective assessments of “good” or “bad” personality traits, and properly protects against the coercive alteration of the core identity of the individual.

Keywords: Neuroscience, Law, criminal law, sentencing, constitutional law