I gave a talk at a fantastic neurolaw conference this past weekend in Atlanta, organized by the incomparable Nicole Vincent.
I wasn’t super excited about the topic of my talk – chemical castration – because I’ve been criticizing the practice for years from different perspectives, with only marginal success.
However, this time I decided to take a fairly flat-footed legal approach and examine whether chemical castration can be justified as a state-imposed punishment. To be justified, criminal punishment must accomplish one or more of the primary functions of punishment (retribution, deterrence, incapacitation, and rehabilitation). The function most likely to justify chemical castration is rehabilitation. Chemical castration cannot be justified as retributive punishment because it tends to be imposed in addition to incarceration, and if castration is retributive, the practice would represent the sort of lex talionis-style retribution members of a liberal democracy should find very distasteful. Chemical castration also doesn’t seem to deter offenders, because deterrence requires an offender be convinced not to reoffend by the threat of a punishment, and the threat of chemical castration is extremely unlikely to be considered when an offender is deciding whether to commit a sex crime (assuming such consideration happens at all). Finally, chemical castration doesn’t incapacitate, primarily because MPA injections (the drug commonly used for chemical castration) don’t really remove sexual capacity, they just dial down an offender’s level of sexual desire.
Some have argued that chemical castration is rehabilitative in a way similar to the treatment provided to many drug-addicted criminal offenders. Roughly half of US drug courts offer medication as a part of addiction treatment to reduce the strength of persistent, intrusive psychological states directly related to offender’s crime and likely to cause recidivism (e.g. cravings). This court-mandated treatment is coercive because an offender who refuses treatment will be removed from the program and is likely to serve a longer prison sentence.
Close examination of the rehabilitative treatment provided to drug offenders made me realize something that should have been very obvious from the start: the state can’t target just any aspect of the offender’s psychology we don’t like for rehabilitation when rehabilitation is mandatory or coerced. The state can offer offenders voluntary rehabilitative opportunities with regard to many aspects of their character, such as educational programming or job training. But coercive medical treatment is only justified as punishment if it targets an aspect of the offender’s psychology that was a central cause of the crime for which they are being punished, and if this intervention addresses extraordinary worries that the offender will recidivate (with regard to the type of crime for which he is being punished).
Thus to determine whether chemical castration can be justified as rehabilitative treatment we must ask whether MPA injections target a central psychological cause of the crime for which a sex offender is being punished, and whether MPA is likely to be successful in reducing the likelihood of the treated sex offender will commit future sex crimes.
Because of the way in which the US state chemical castration statutes are written the answer to these questions may be “no” for many offenders that qualify for chemical castration. In Louisiana and Florida, repeat sex offenders (whose victims can be adults) are required by statute to undergo chemical castration (in LA, this requirement is conditional on a medical exam indicating amenability to treatment). There is no category of psychological states common to the group of sex offenders captured by these statutes causally related to their crimes and likely to cause recidivism for which MPA is justified treatment. That is, at least some sex offenders commit their crimes for reasons other than sexual desire — for example, some rapists rape because they hate women and want to dominate them, not because of uncontrollable sexual desires. Dialing down these offenders’ sexual desires will not address the cause of their sex offense, nor is it likely to decrease their likelihood of recidivism. Thus in these cases MPA is not a justified rehabilitative treatment. Because all of the US statutes which allow chemical castration as punishment are likely to apply MPA to offenders who have no chance of being rehabilitated by the treatment, the statutes cannot be justified on rehabilitative grounds.
The paper is still in power point form, but if anyone would like a copy of the slides, please email me, and I would be happy to send them along.
Pleas and Excuses 
One response to “Chemical Castration as Rehabilitative Treatment”
“Thus to determine whether chemical castration can be justified as rehabilitative treatment we must ask … whether MPA is likely to be successful in reducing the likelihood of the treated sex offender will commit future sex crimes”.
You seem to be assuming (though you don’t state outright) in the above that mandated drug treatment for substance dependence *is* successful in reducing the likelihood of alcohol dependent individuals regaining control over their drinking. This is true to an extent, but there is a big question mark, rarely addressed in my view, as to how successful (effective) a drug has got to be before it is ethical to mandate it.
Naltrexone is statistically effective in the treatment of alcohol dependence, no doubt about that. But its efficacy is extremely modest. I’ve copied the paragraph below from the most recent Cochrane review on this:
“Based on comprehensive evidence from 50 RCTs with 7793 patients … [naltrexone] was shown to … decrease drinking days by about 4% and heavy drinking days by about 3%, meaning that the drug on average avoids one additional day with heavy drinking per month. On days, on which alcohol is consumed, patients treated with naltrexone manage to refrain from about one drink they would have had under placebo. Referred to a population of alcohol dependent patients, naltrexone can be expected to prevent heavy drinking in one out of nine patients, who would otherwise have returned to a *heavy* drinking pattern. In contrast, statistical significance was missed for return to any drinking … .” (Opioid antagonists for alcohol dependence (Review), Rösner S, Hackl-Herrwerth A, Leucht S, Vecchi S, Srisurapanont M, Soyka M. The Cochrane Library 2010, Issue 12, page 23 [emphasis added]).
Naltrexone then has a number need to treat of nine, with respect to getting heavy alcohol dependent drinkers to become not so heavy alcohol dependent drinkers.
This sort of meagre benefit (equal to the best established in any class of anti-craving drug) is the sort of benefit that it might be reasonable to sign yourself up to voluntarily, but whether we are justified in mandating that people take a drug that only 1/9 will benefit from, and then not that much, well … that seems to be another question.
I suggested in my talk that the NNT for preventing one sex offender re-offending might be calculated using available data at 10, but its important to bear in mind that this estimate was wildly optimistic.