ARETI THEOFILOPOULOU

PUNISHMENT AS MORAL FORTIFICATION AND NON-CON-
SENSUAL NEUROINTERVENTIONS

(Accepted 6 December 2018)

ABSTRACT. The purpose of this paper is twofold. First, I defend and expand the
Fortificationist Theory of Punishment (FTP). Second, I argue that this theory
implies that non-consensual neurointerventions – interventions that act directly on
one’s brain – are permissible. According to the FTP, punishment is justified as a
way of ensuring that citizens who infringe their duty to demonstrate the reliability
of their moral powers will thereafter be able to comply with it. I claim that the
FTP ought to be expanded to include citizens’ interest in developing their moral
powers. Thus, states must ensure that their citizens develop their moral reliability,
not only because they must enforce their citizens’ compliance with certain duties,
but also because states have the duty to maintain the conditions for stability and
satisfy their citizens’ interest in developing their moral powers. According to this
account of the FTP, if neurointerventions are the only or best way of ensuring that
offenders can discharge their fortificational duties, states have strong reasons to
provide these interventions.

Certain criminal offenders are required or given the option to un-
dergo neurointerventions – interventions that act directly on one’s
brain – either as part of their sentence or as a condition of their
parole. Most commonly, this occurs in the form of lowering sex
offenders’ testosterone through the administration of hormonal
agents, such as triptorelin.1 Due to the increasing possibilities of
using such interventions, there is a growing academic debate on the
moral questions regarding their potential uses to achieve greater
empathy and impulse control in offenders.

1 See, for example, William M. Burdon and Catherine A. Gallagher (2002) ‘Coercion and Sex
Offenders: Controlling Sex-Offending Behavior Through Incapacitation and Treatment’, Criminal Justice
and Behaviour, 29 (1), 87–109; Focquaert, Farah (2014) ‘Mandatory Neurotechnological Treatment:
Ethical Issues’, Theoretical Medicine and Bioethics, 35 (1), 59–72. See Sect. II for a more elaborate
discussion of different neurointerventions.

Law and Philosophy (2019) 38: 149–167 � The Author(s) 2019
https://doi.org/10.1007/s10982-018-09341-3

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The purpose of this paper is twofold. First, I defend and expand
the Fortificationist Theory of Punishment. Second, I argue that,
according to the Fortificationist Theory, non-consensual neuroint-
erventions are permissible. In developing this argument, I first pre-
sent Jeffrey Howard’s case for the Fortificationist Theory of
Punishment.2 According to this view, criminal offenders who violate
just laws demonstrate that they cannot – or are not willing to – act
on the basis of their moral powers. When citizens fail to discharge
their duty to demonstrate the reliability of their moral powers, states
ought to ensure that they will comply with it in the future. Apart
from citizens’ fortificational duties, I argue that there are two further
considerations that collectively serve to justify punishment according
to the Fortificationist Theory: these are a state’s duty to promote the
collective good of stability and the interest that all individuals have in
developing their moral powers. Thus, in this interpretation of the
rehabilitative approach to punishment, the purpose of a criminal
justice system must be to foster offenders’ capacity to both under-
stand and be motivated by the requirements of justice.

An interesting and so far unexplored implication of the Fortifi-
cationist Theory is that non-consensual neurointerventions are mo-
rally permissible and perhaps even morally required, under certain
conditions. I develop this argument in Sect. II, where I argue that
there are at least three strong reasons in favour of neurointerven-
tions once we accept the Fortificationist Theory.

In the third and final section of the paper I examine three
objections to my argument. The first objection raises the possibility
that non-consensual neurointerventions are impermissible because
they necessarily violate offenders’ basic liberties. If successful, this
objection would imply that, even if we accept that the Fortifica-
tionist Theory of Punishment produces certain reasons in favour of
neurointerventions, these reasons are decisively outweighed by the
reasons we have to protect individuals’ mental freedom and bodily
rights. According to the second objection, neurointerventions can
never be proportionate to the aims that justify punishment according
to the Fortificationist Theory. This is because of the potential
harmful side-effects of these interventions, because they infringe
individuals’ autonomy, and because they might cause a disruption in

2 See Jeffrey Howard (2017) ‘Punishment as Moral Fortification’, Law and Philosophy, 36 (1), 45–75.

ARETI THEOFILOPOULOU150



a person’s psychological continuity across time. The third and final
objection, which is implicitly raised by Howard, draws on an analogy
between indoctrination and neurointerventions and states that, if
indoctrination is impermissible and inconsistent with the proper
reading of the Fortificationist Theory of Punishment, then so are
neurointerventions. By responding to these objections, I conclude
that the three reasons in favour of neurointerventions retain their
force. Although my argument is by no means sufficient to establish
the all-things-considered permissibility of neurointerventions, mainly
due to the non-ideal conditions that characterise our world here and
now, this discussion shows that this argument must be taken seri-
ously by proponents of the Fortificationist Theory of Punishment.

I. THE FORTIFICATIONIST THEORY OF PUNISHMENT

According to Howard, the Fortificationist Theory of Punishment
offers a new interpretation of rehabilitative approaches to criminal
justice, which is immune to the standard objection raised against
such approaches – that they fail to treat offenders as moral agents
rather than blameless victims. This interpretation states that, to-
gether with our duty to refrain from violating others’ rights, we – as
moral agents – also have a duty of reliability – that is, a duty to
‘maintain the dependability of our moral capacities’.3 This is because,
unless we maintain this dependability, we risk succumbing to desires
that may lead us to violate others’ rights. In this way, the duty of
reliability is inextricably linked with our duty to refrain from vio-
lating others’ rights. In Howard’s words,

Doing one’s duty is often not experienced as a matter of flicking a switch. There are potential
psychological hurdles that agents may well encounter along the way. And we typically judge
that it is the agent herself who is primarily responsible for overcoming them. Thus our primary
moral duties to perform or refrain from performing certain acts are, in fact, often accompanied
by ‘waves’ of fortificational duties whose fulfilment positions the agent to live up to the asso-
ciated primary duties successfully.4

Such fortificational duties may include pursuing counselling or
changing one’s lifestyle if that is necessary to ensure one’s
compliance with one’s primary moral duties.

Thus, when moral agents violate just laws, they reveal that they
have violated two related duties. First, they have clearly violated

3 Howard, ‘Punishment as Moral Fortification’, p. 45.
4 Howard, ‘Punishment as Moral Fortification’, p. 48.

PUNISHMENT AS MORAL FORTIFICATION AND NEUROINTERVENTIONS 151



their duty to refrain from acting unjustly. Second, they show that
they have failed to discharge their duty to remain trustworthy by
maintaining the dependability of or by fortifying their moral capaci-
ties. The violation of these connected duties produces a distinctive
answer to the question of the justifying aim of punishment. That is,
states may intervene through punishment in order to enforce the
duty that ‘offenders have to reduce their own likelihood of recidi-
vism’.5 Given that the criminal offenders in question have failed to
comply with their own fortificational duties, states ought to take on
the task of fortifying those offenders’ moral powers, to ensure that
they become capable of maintaining their dependability.

Within the Rawlsian context in which Howard sets his argument,
the two moral powers that all moral agents have a duty to fortify are
what Rawls calls ‘reasonableness’ – the capacity for a sense of justice
– and ‘rationality’ – the capacity to form, revise, and pursue a con-
ception of the good. The moral power that is relevant in the context
of the criminal law is reasonableness – the capacity for a sense of
justice, which includes the epistemic aspect of understanding the
requirements of justice and the motivational aspect of being willing to
comply with those requirements.6 The Fortificationist Theory of
Punishment thus implies that, when faced with a criminal offender
who has failed to fortify her moral powers, states must enforce that
offender’s duty by targeting the epistemic or the motivational aspect
of her reasonableness, or both. This must be done in the appropriate
way, given that, for example, education may be the appropriate way
to fortify one’s lack of moral understanding, but cases of motiva-
tional deficiencies may require different interventions, such as
counselling.

Howard’s formulation of the Fortificationist Theory of Punish-
ment effectively rests on the premise that states have a responsibility
to ensure that all citizens comply with their moral duties. I argue
that there are three distinct reasons for endorsing this claim.

Clearly, the claim that states can intervene when individuals fail
to comply with their moral duties is too broad, for, in some cases,

5 Howard, ‘Punishment as Moral Fortification’, p. 45.
6 For the distinction between epistemic and motivational reasonableness, see Howard, ‘Punishment

as Moral Fortification’, p. 49. For a similar distinction between philosophical and political reasonable-
ness, see Erin Kelly and Lionel McPherson (2001) ‘On Tolerating the Unreasonable’, The Journal of
Political Philosophy, 9 (1), 38–55, at pp. 39–40.

ARETI THEOFILOPOULOU152



such intervention may not be justified. Enforcing honesty in indi-
viduals’ private and consensual relationships would be one of these
cases. Thus, we ought to understand the fortificationist position to
be claiming that the duties that are transferred to the state when
individuals fail to comply with them are those that exist to protect
the rights and liberties that ought to be legally protected. It is not
possible here to develop an account of which rights and liberties
ought to be legally protected, but it suffices to note that if an indi-
vidual’s right or liberty ought to be legally protected, then states
have a duty to intervene when the law protecting that right or
liberty is violated. According to this interpretation, the first reason
why states have a responsibility to enforce compliance with moral
duties, such as the fortificational duties that are linked to primary
duties, is that states themselves have their own duty to protect
individuals’ rights and liberties.

There exists, however, a second reason that supports the view
that states bear this responsibility. This reason springs from states’
duty to promote the collective good of maintaining a well-ordered
society. For, if citizens have good reasons to doubt their co-citizens’
commitment to justice, the grounds for stable and fair social coop-
eration become shaky. Although the appeal to stability is connected
to the appeal to individuals’ rights and liberties (because one reason
why we desire stability is that it ensures the protection of our rights),
the two claims are distinct: the former is a societal good, whereas the
latter is an individual good. This distinction then shows that states’
responsibility to enforce individuals’ compliance with their fortifi-
cational duties has a second source, which is states’ duty to promote
the stability of their society.

Finally, I suggest that a third reason favouring the Fortificationist
Theory is the interest that all persons have in developing their moral
powers, and the correlative duty that states have to provide the
conditions that enable their citizens to satisfy this interest.

The claim that we have an interest in developing our moral
powers is implicitly endorsed by most moral theories that attribute
special value to moral agency. Although some philosophers might
cast this claim in perfectionist terms, which may open up worries
about paternalism, this need not be the case, as we can accept it
without defending a specific conception of the good, such as a

PUNISHMENT AS MORAL FORTIFICATION AND NEUROINTERVENTIONS 153



specific view of human flourishing.7 This is because our interest in
developing our moral powers is grounded in our interest in partic-
ipating in social cooperation. Given that cooperating requires a
certain kind of reciprocity, those who fail to engage in such rela-
tionships by virtue of their failure to fortify their moral powers lack
the capacity to participate in social cooperation. This implies that
part of the justification that an anti-perfectionist state can give citi-
zens when enforcing their duties is that they have an interest in
being moral agents who can participate in reciprocal relationships.
This justification can be accepted without leading us to the unde-
sirable implication that a state can enforce anything that is in its
citizens’ interests construed in perfectionist terms. Thus, a third
reason why states have a duty to enforce the fortificational duties of
citizens when the citizens fail to enforce the duties themselves is that
citizens have an interest in possessing the moral powers that enable
them to participate in social cooperation.

Of course, this does not imply that states ought to constantly
fortify their citizens’ moral powers. Rather, moral powers must be
understood as ‘range properties’ that are possessed by all those who
have them beyond some minimum threshold. A person’s interest in
developing her moral powers therefore calls for fortification only
when there is clear evidence that her moral powers have not reached
the relevant threshold. It follows that states have an interest-based
duty to fortify a citizen’s moral powers only when this is the case.
Indeed, this seems to be one justification for the duty that states have
to provide good, mandatory education for children and appropriate
pedagogical policies for individuals with cognitive disabilities.8

II. FORTIFICATIONISM AND NEUROINTERVENTIONS

Recall that, according to my expanded version of the Fortificationist
Theory of Punishment, there are three distinct reasons that justify

7 For an anti-perfectionist argument of this kind, see John Rawls (2005) Political Liberalism: Expanded
Edition. New York: Columbia University Press, p. 77.

8 See, for example, Jonathan Quong (2011) Liberalism without Perfection. Oxford: Oxford University
Press, p. 305: ‘if we assume a central purpose of liberal justice is to provide a fair framework within
which citizens can develop and exercise their moral powers’, then an unreasonable kind of education is
not consistent with this purpose and so ‘there may be good grounds for intervention’. For the latter
claim, see Sophia Isako Wong (2010) ‘Duties of Justice to Citizens with Cognitive Disabilities’, in E. F.
Kittay and L. Carlson (eds.), Cognitive Disability and its Challenge to Moral Philosophy. Oxford: Wiley-
Blackwell.

ARETI THEOFILOPOULOU154



state intervention when citizens fail to comply with their fortifica-
tional duties. The first reason is that states have a duty toward
individuals to ensure the protection of their basic rights and liberties;
when a citizen fails to comply with her enforceable duties to her co-
citizens, states ought to step in and enforce compliance. The second
reason is that states have a duty to ensure that there are the
appropriate social conditions that make stable and fair cooperation
possible. Clearly, the prospect of such cooperation is undermined
when citizens have good reason not to trust each other. The third
and final reason that supports state intervention when citizens fail to
fortify their moral powers is that states have a duty to satisfy their
citizens’ interest in possessing the moral powers to the degree that
enables them to participate in social cooperation.

As Howard has claimed, it seems straightforward that since
punishment is justified by appeal to the aim of fortifying criminal
offenders’ moral powers, the modes of punishment that states ought
to use must be expected to have the required fortificational effects.
As a result, instead of permitting incarceration as we observe it in
current societies, states should turn to policies such as cognitive
behavioural therapy assignments, discussion seminars, and prisons
that are ‘replicas of the outside world … providing offenders with
substantive access to work, education, and treatment for substance
abuse’.9

I suggest, however, that a more controversial and so far unex-
plored implication of the Fortificationist Theory is that non-con-
sensual neurointerventions are also a justifiable mode of
punishment. As with therapy and other modes of punishment, the
justifiability of neurointerventions would be subject to the condition
that they are expected to have the desired effect of fortifying the
offender’s moral powers to the requisite degree.

The most widely discussed case of neurointerventions in the
context of criminal justice is that of anti-libidinal pharmacological
agents administered to sex offenders. There is wide evidence that

9 Howard, ‘Punishment as Moral Fortification’, p. 54.

PUNISHMENT AS MORAL FORTIFICATION AND NEUROINTERVENTIONS 155



agents such as cyproterone acetate (CPA), medroxyprogesterone
acetate (MPA), and gonadotrophin-releasing hormone (GnRH) ago-
nists can reduce one’s testosterone levels, thereby inducing chemical
castration.10 Similarly, it has been observed that a side-effect of
selective serotonin reuptake inhibitors (SSRIs), which are typically
used to treat depression and anxiety, is a decrease in patients’ libido,
although there is no consensus on the explanation of this side-ef-
fect.11 Although there is still disagreement on the effectiveness of
these agents, there are studies that indicate that they significantly
decrease the probability of reoffending.12 These effects are reversible,
as maintaining them requires constant treatment.13

As a second example, consider pharmacological agents that target
serotonin levels. Lower levels of serotonin have been associated with
aggression and antisocial behaviour; for instance, many individuals
with aggressive and antisocial behaviour have mutations in the gene
coding for the 5-HT2B serotonin receptor, or variations in the gene
coding for MAOA, a brain enzyme that is crucial for breaking down
serotonin.14 Although the causal relationship between serotonin and
aggressive or antisocial behaviour is not completely clear, several
studies indicate that a fall in individuals’ serotonin increases instances
of aggression.15 Moreover, those with low serotonin cannot be de-
terred from aggression as effectively as others can by, say, the threat

10 See Harvey Gordon and Don Grubin (2004) ‘Psychiatric Aspects of the Assessment and Treatment
of Sex Offenders’, Advances in Psychiatric Treatment, 10 (1), 73–80; Christopher Chew, Thomas Douglas,
and Nadira Faber (2018) ‘Biological Interventions for Crime Prevention’, in D. Birks and T. Douglas
(eds.) Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice. Oxford: Oxford
University Press.

11 Deepak Prabhakar and Richard Balon (2010) ‘How Do SSRIs Cause Sexual Dysfunction?’, Current
Psychiatry, 9 (12), 30–34.

12 For example, the Oregon Depo-Provera trial studied the effects of MPA agents on three groups of
sexual offenders. The first consisted of offenders who underwent treatment, the second had offenders
who were prescribed MPA but did not undergo treatment, and the third contained offenders who were
not eligible for prescription. The trial indicated that only 5% of those in the first group re-offended, and
none of the offences were sexual, while 26–30% of the other two groups re-offended, and half of the
offences were sexual. Barry M. Maletzky and Gary Field (2003) ‘The Biological Treatment of Dangerous
Sexual Offenders: A Review and Preliminary Report of the Oregon Pilot Depo-Provera Program’,
Aggression and Violent Behavior, 8 (4), 391–412.

13 Chew et al., ‘Biological Interventions for Crime Prevention’.
14 Chew et al., ‘Biological Interventions for Crime Prevention’.
15 Donald M. Dougherty, James M. Bjork, Dawn M. Marsh, and F. Gerard Moeller (1999) ‘Influence

of Trait Hostility on Tryptophan Depletion-Induced Laboratory Aggression’, Psychiatry Research, 88 (3),
227–232; F. Gerard Moeller, Donald M. Dougherty, Alan C. Swann, Diana Collins, Chester M. Davis,
and Don R. Cherek (1996) ‘Tryptophan Depletion and Aggressive Responding in Healthy Males’,
Psychopharmacology, 126 (2), 97–103; A. J. Cleare and A. J. Bond (1995) ‘The Effect of Tryptophan
Depletion and Enhancement on Subjective and Behavioural Aggression in Normal Male Subjects’,
Psychopharmacology, 118 (1), 72–81.

ARETI THEOFILOPOULOU156



of punishment because lower serotonin levels make individuals more
likely to value harming others in retaliation more than they value
their own well-being.16 More importantly for the purposes of this
discussion, there is evidence that increasing serotonin by the use of
SSRIs causes a correlative fall in aggression, particularly in individ-
uals with such tendencies and backgrounds.17 When prescribed to
offenders, pharmacological agents that increase serotonin levels are
therefore expected to fortify their moral powers, enabling them to
refrain from reoffending.

Apart from pharmacological interventions, there are a number of
neurointerventions referred to as ‘electromagnetic brain stimulation’
(EBS), which promise to have similar effects on individuals’ moral
powers; these include deep brain stimulation (DBS), transcranial
magnetic stimulation (TMS) and transcranial direct-current stimula-
tion (tDCS).18 These interventions are typically used to treat essen-
tial tremor and Parkinson’s disease, dystonia, obsessive–compulsive
disorder, migraine, and treatment-resistant depression. By targeting
specific brain regions, these neurointerventions can affect individu-
als’ moral cognition, aggression, and impulsivity.19 Thus, EBS neu-
rointerventions can alter their capacity to understand the
requirements of justice and morality, as well as their motivational
and emotional capacity to comply with these requirements.

The fortificationist case for neurointerventions is straightforward.
Recall that on my account of the Fortificationist Theory there are
three reasons that justify any mode of punishment: the state’s duty
to ensure the protection of individuals’ rights and liberties, the state’s
duty to promote the social conditions for stability, and the state’s
duty to satisfy individuals’ interest in developing their moral powers
up to the relevant threshold. These reasons clearly provide prima

16 Molly J. Crockett, Annemieke Apergis-Schoute, Benedikt Herrmann, Matthew D. Lieberman,
Ulrich Müller, Trevor W. Robbins, and Luke Clark (2013) ‘Serotonin Modulates Striatal Responses to
Fairness and Retaliation in Humans’, The Journal of Neuroscience, 33 (8), 3505–3513.

17 Chew et al., ‘Biological Interventions for Crime Prevention’.
18 These techniques involve applying ‘magnetic fields or electrical currents to specific areas of the

brain, with the aim of modulating brain activity. DBS involves the invasive neurosurgical placement of
metal electrodes within the brain to transmit electrical impulses. TMS and tDCS, on the other hand,
non-invasively induce changes in brain activity through the use of superficial magnets and electrodes
respectively. These two modes have a shallow depth of effective penetration relative to DBS and are
thus only able to affect relatively superficial brain regions Recent developments in TMS technology,
though, suggest it may be possible to extend this range’. Chew et al., ‘Biological Interventions for Crime
Prevention’.

19 Chew et al., ‘Biological Interventions for Crime Prevention’.

PUNISHMENT AS MORAL FORTIFICATION AND NEUROINTERVENTIONS 157



facie support for neurointerventions. If there are cases in which the
only or best way for a state to discharge these duties is by admin-
istering non-consensual neurointerventions, such as the ones de-
scribed above, then it seems that this mode of punishment is
justified. For example, there may be cases in which neurointerven-
tions that increase one’s empathy offer the only, or most effective, or
most cost-effective way of fortifying one’s moral powers.20

Of course, the claim that neurointerventions are sometimes
permissible as a form of punishment should not be taken to imply
that offending is caused purely by biological traits. Rather, it seems
likely that criminogenic circumstances, such as neglect, abuse, and
growing up in disadvantaged socioeconomic circumstances can affect
the neurological characteristics of some persons. In any case, what-
ever the causal relationship between social and biological factors
may be, the above discussion indicates that neurointerventions can
often have the desired effect, whether that is an improvement in
understanding the requirements of justice or overcoming the
motivational hurdles that might prevent someone from complying
with them.

III. OBJECTIONS

A. Basic Rights and Liberties

However, it may seem that the prima facie justification of neuroin-
terventions is not sufficient to establish an all-things-considered
permissibility because they violate basic rights and liberties. Thus,
the objection goes, even if we have certain reasons in favour of
neurointerventions, these reasons are insufficient and in fact out-
weighed by our rightly held commitments to protecting key liberties.
This is because neurointerventions seem to violate a key liberal
commitment, which requires the equal protection of each person’s

20 It should be stressed that, according to this view, variation between different individuals’ moral
powers does not matter when it occurs above the threshold that is required for one’s participation in
social cooperation. It follows that even if non-consensual neurointerventions are permissible in order to
raise the moral powers of someone who has not fortified sufficiently, it is not permissible to use them to
fortify the moral powers of someone who has already discharged her fortificational duties. For more on
the issue of the problem of variation, see Richard Arneson (1999) ‘What, if Anything, Renders All
Human Beings Morally Equal?’, in Dale Jamieson (ed.), Singer and His Critics. Oxford: Blackwell; Ian
Carter (2011) ‘Respect and the Basis of Equality’, Ethics, 121 (3), 538–571; Ian Carter (2013) ‘Basic
Equality and the Site of Egalitarian Justice’, Economics & Philosophy, 29 (1), 21–41; and Christopher
Nathan (2011) ‘Need There Be a Defence of Equality?’, Res Publica, 17, 211–225.

ARETI THEOFILOPOULOU158



rights and liberties. If these liberties include freedom of thought and
liberty of the person, then it may seem that non-consensual neu-
rointerventions can only be imposed at the cost of violating one’s
basic rights and liberties.21

However, other modes of punishment, such as incarceration,
involve a restriction of offenders’ basic liberties, such as freedom of
movement, and yet we do not view this restriction as a violation of
offenders’ basic rights. When we refer to liberties, we appeal to the
normative sense of freedom, which is, in a sense, conditional. That
is, our liberties depend on our having certain rightful claims on
them. For instance, although having the freedom to kill others
would increase our freedom in a descriptive sense, we do not speak
of the liberty to kill others. This is because we have a duty to refrain
from killing them, which places limits on our freedom. Consider, for
instance, the following example, which I borrow from Victor Tadros:

Hit Man: I hire a hit man to kill you, a complete innocent. The only way for you to avert the
threat is to pull me in front of you, using me as a shield.22

In this scenario, it is permissible for you to use me as a shield because
I have the duty to respond to the wrongful harm that I created.
Given that I have a duty that restricts the liberties that I would have
in the absence of this duty, I cannot object that discharging this duty
violates my liberties.23

This seems to be the argument that explains the widely-held
intuition that incarceration does not violate violent offenders’ lib-
erties. For if my incarceration is justified on the basis of my duty to
be punished in this way, it follows that my incarceration does not
violate my liberty.24 Similarly, if I have a duty to undergo neuroin-

21 See Christoph Bublitz (2016) ‘Moral Enhancement and Mental Freedom’, Journal of Applied Phi-
losophy, 33 (1), 88–106.

22 Victor Tadros (2011) The Ends of Harm: The Moral Foundations of Criminal Law. Oxford: Oxford
University Press, p. 267.

23 I am grateful to an anonymous reviewer for this point.
24 Tadros justifies this duty in deterrent terms: on his view, if I harm someone wrongfully, I have the

duty to bear the cost of punishment in order to prevent others from harming others in similar ways. See
Tadros, The Ends of Harm, p. 277. This duty is cast in very different terms in the Fortificationist Theory,
as it is linked to an offender’s fortificational duties. Thus, justifying incarceration in the context of
punishment as fortification is considerably more difficult, given that the aim is not deterrence but,
rather, the fortification of offenders’ moral powers.

PUNISHMENT AS MORAL FORTIFICATION AND NEUROINTERVENTIONS 159



terventions, this duty places certain limits to my freedom, which
implies that discharging this duty does not violate my liberty.25 For I
do not have the liberty to refuse to satisfy my duty to fortify my
moral powers.

The duty to undergo neurointerventions springs from the offen-
der’s duty to fortify her moral powers. This duty is enforceable for
the three reasons that were appealed to in the previous section. First,
states have a duty to protect their citizens’ rights and liberties; when
a citizen violates others’ rights, the state ought to take on that
citizen’s fortificational duties to ensure the protection of citizens’
rights. Second, all states and citizens have an interest in promoting
their society’s stability, which is often undermined by some citizens’
failure to fortify their moral powers. Third, all citizens have an
interest in developing their own moral powers. These three reasons
are collectively sufficient to establish that citizens’ fortificational
duties are enforceable. And, as I have argued, these duties sometimes
give rise to the duty to undergo neurointerventions.

B. Proportionality

One might object that even if the above argument can justify
restricting some liberties by incurring the cost of incarceration, it is
not sufficient to justify non-consensual neurointerventions because
this type of punishment can never be proportionate to the aims that
it serves. For instance, it would not be permissible to impose a life
sentence on someone who has the desire to steal chewing gum
because this sentence is disproportionate to the aim of fortifying
one’s moral powers against stealing chewing gum.26 Similarly, it
might be argued that neurointerventions are disproportionate to the
aims of punishment as moral fortification.

The proportionality objection in this context can take a number
of forms. First, one worry might be that, like most medical treat-
ments, some neurointerventions tend to have harmful side-effects.
For example, CPA and MPA anti-libidinal pharmacological agents
can cause ‘osteoporosis, weight gain, male breast enlargement, and

25 Notice that accepting this argument does not require us to accept that we have a duty to be
punished by incarceration, as the previous sentence states, precisely because incarceration typically fails
to enable offenders to fortify their moral powers.

26 I thank an anonymous reviewer for pressing the proportionality objection and for raising this
example.

ARETI THEOFILOPOULOU160



hot flushes, deep venous blood clots, and subsequent complica-
tions’.27 Of course, any kind of punishment must be proportionate to
the aims that justify it. This account of the proportionality worry
implies that the bar of proportionality is set higher with regard to
neurointerventions that cause significant side-effects than it is with
those that have minor or no side-effects. Moreover, when both
options are available and equally effective, the latter should be
preferred over the former. For instance, whenever anti-libidinal
pharmacological agents are appropriate, GnRH antagonists and
SSRIs are to be preferred over CPA and MPA agents, given that the
former cause significantly fewer and less significant side-effects.28

Thus, the proportionality objection so understood fails to establish
that neurointerventions are always disproportionate but it does re-
mind us that the side-effects that a punishment might have ought to
be taken into consideration when assessing whether it is propor-
tionate to fortificationist aims.

A different reading of the proportionality objection states that
interfering with one’s mental freedom in the way that neurointer-
ventions do infringes one’s autonomy to an extent that renders them
disproportionate to the aim of fortifying offenders’ moral powers.
One reply to this is to dispute that neurointerventions necessarily
infringe individuals’ autonomy: because most offenders offend due
to violent impulses or desires they cannot control, neurointerven-
tions will often increase their autonomy by giving them the capacity
to act in accordance with their considered judgments.29 Yet even if
we grant that, in some cases, neurointerventions restrict one’s
autonomy, this may be proportionate to the aims of punishment.
For, in some cases, the prima facie wrongness of infringing autonomy
is not sufficient to imply all-things-considered wrongness. Notice, for
instance, that even though using me as a shield in Hit Man infringes
my autonomy, we think that it is permissible for you to use me in
this way because the harm that you impose on me is proportionate

27 Chew et al., ‘Biological Interventions for Crime Prevention’; Frederico D. Garcia and Florence
Thibaut (2011) ‘Current Concepts in the Pharmacotherapy of Paraphilias’, Drugs, 71 (6), 771–790; Peer
Briken and Martin P. Kafka (2007) ‘Pharmacological Treatments for Paraphilic Patients and Sexual
Offenders’, Current Opinion in Psychiatry, 20 (6), 609–613.

28 Chew et al., ‘Biological Interventions for Crime Prevention’.
29 Thomas Søbirk Petersen and Kristian Kragh (2017) ‘Should Violent Offenders Be Forced to

Undergo Neurotechnological Treatment? A Critical Discussion of the ‘Freedom of Thought’ Objection’,
Journal of Medical Ethics, 43 (1), 30–34.

PUNISHMENT AS MORAL FORTIFICATION AND NEUROINTERVENTIONS 161



to the aim of using me (i.e. to avoid the deadly threat that I imposed
on you). To see why neurointerventions would be similarly per-
missible, consider the following variation of Hit Man:

Hit Man injection: I hire a hit man to kill you, a complete innocent. The only way for you to avert
the threat is to pull a lever that will inject me with an empathy-inducing drug, which will make
me want to stop the hit man.

The fact that it would be permissible for you to inject me with a
neurointervention implies that there are at least some cases in which
infringing someone’s autonomy by interfering with their mental
freedom is proportionate to the aims of punishment as moral
fortification. Given that we would not think that you are permitted
to inject me if I had hired someone to steal your chewing gum, we
can conclude that the autonomy infringing aspect of neurointerven-
tions should be taken into consideration when assessing their
proportionality. Thus, neurointerventions should only be used in
cases where very serious crimes have been committed, and only if
less autonomy-restricting interventions, such as education and
counselling, are not likely to fortify one’s moral powers to the
extent that or as quickly as it is required.30

Lastly, a related variation of the proportionality objection is that
when neurointerventions change who we are so much that there is
no psychological continuity between our past and future selves, they
are effectively a type of death sentence. Even if we grant that
undergoing a neurointervention is equivalent to dying, it seems to
follow that if you are permitted to use me as a shield in Hit Man in
virtue of my duties, then you are also permitted to ask me to un-
dergo neurointerventions in Hit Man injection, even if the neuroint-
ervention will affect my empathy to such an extent that I will no
longer be the same person. We can dispute, however, the claim that
neurointerventions are equivalent to death. First, all neurointer-
ventions described in Sect. II require constant treatment and are,
therefore, reversible. Moreover, neurointerventions may add or alter
a characteristic, emotion or motivation, yet it is far from clear that
they cause a complete disruption in one’s psychological continuity.
For instance, when similar additions or changes occur due to edu-
cation, therapy, or medication for depression or anxiety disorders we

30 For instance, if you could make me want to stop the hit man by sharing certain thoughts and
reasons with me, then you should prefer that option. Similarly, if you could avert the threat without
using me as a shield in Hit Man, then you ought to do so.

ARETI THEOFILOPOULOU162



find it implausible to say that the person that has changed in these
ways has died. Therefore, although the proportionality objection
reminds us of the significance of ensuring that punishment is always
proportionate to the aims that justify it, it does not show that
neurointerventions are always disproportionate to all crimes that
might be committed.

C. Fortification vs Indoctrination

At this point, it might be argued that if the Fortificationist Theory of
Punishment implies that it is permissible for a state to impose non-
consensual neurointerventions, then it also, implausibly, implies that
nonconsensual indoctrination is permissible, since this could also
increase one’s moral powers.

Howard seeks to resist the permissibility of indoctrination by
arguing that we need to distinguish between ‘approaches that em-
power offenders as moral agents – that fortify their moral powers –
and those that bypass them’ (Howard 2017, 66). Drawing on the
example of Alex in Anthony Burgess’s A Clockwork Orange, he sug-
gests that

the problem with the conditioning Alex receives is not that it deprives him of his freedom of
what to think – he retains the reflective capacity to affirm convictions – but that it fails to attend
to the actual root of the problem: Alex’s attitudes toward his fellow human beings. He is moved
to refrain from violating others’ rights simply because he is averse to feeling ill – not because he
has grasped, and effectively been moved by, an appreciation of others’ value.31

It might seem that, to avoid rendering the Fortificationist Theory
implausible, we will need to accept Howard’s response here. But it
might seem that this commits us also to rejecting non-consensual
neurointerventions.

However, there are two distinct reasons why this response fails to
show that neurointerventions are impermissible. First, when Ho-
ward states that indoctrination fails to address ‘Alex’s attitude toward
his fellow human beings’ he implies that indoctrination bypasses
one’s moral powers in the sense that it seeks to produce certain
actions without regard to the motivations that people have for
performing those actions. This is not the case with certain neu-
rointerventions, however, which only target precisely a person’s
attitudes towards others. Second, indoctrination may seek to incul-

31 Howard, ‘Punishment as Moral Fortification, p. 66.

PUNISHMENT AS MORAL FORTIFICATION AND NEUROINTERVENTIONS 163



cate a particular motivation in someone in order to achieve the right
result. For example, Alex’s conditioning has ensured that his moti-
vation for acting in the required way is his aversion to feeling ill. Yet
this does not seem to be the case with some neurointerventions,
which enable an individual to have access to the set of reasonable
motivations. The following example makes these differences clearer:

Suppose there is proof of David’s failure to discharge his fortificational duties because we find
out that he has assaulted transgender people. David is found guilty of the crimes and sentenced
to incarceration. Upon his release from prison, there are good reasons to believe that David’s
views have not changed at all but that he would only commit transphobic crimes in the future if
he truly thought that he wouldn’t get caught. If David is indoctrinated at this point, he will not
commit any hate crimes in the future, but he will not identify with his decision not to act
unjustly. If asked whether he believes that hate crimes are wrong, he will not be able to justify
his (negative) answer in any way that reasonable persons should accept. By contrast, if David is
subjected to deep brain stimulation, his empathy could be increased. As a result, he would be
able to place himself in other people’s shoes and consider things from their point of view,
without having his judgment clouded by extreme, irrational emotions, such as hatred. In this
case, if asked whether he believes that hate crimes are wrong, David would be able to give
appropriate reasons in defence of his (negative) answer.

Now one might respond that both interventions are impermissible
because David should fortify his moral powers on his own, or by
being given reasons that he can consider and evaluate. Bublitz and
Merkel, for example, seem to be making the second claim when they
argue that, by acting directly on the brain, ‘direct interventions seem
to violate the demands of dignity’ and that indirect interventions, on
the other hand, such as ‘speech or sounds or images, engage with the
other’s first-person perspective by recognizing and referring to her
beliefs and feelings’.32 The thought here is that dignity requires
treating persons as agents by respecting their ‘first-person perspec-
tive’, which neurointerventions and any other kind of direct
intervention cannot achieve. This claim, however, is quite contro-
versial, given that certain forms of brainwashing that may involve
forcing someone to watch or listen to something, for instance, are
indirect interventions, yet arguably violate the demands of dignity at
least as much as direct interventions do. Similarly, there are cases of
direct interventions, such as certain kinds of psychological rehabil-
itation that may involve psychiatric treatment, which seem permis-
sible; this intuition is even stronger when we compare these
interventions to indirect kinds of brainwashing. Thus, we may
conclude that respecting the ‘first-person perspective’ is neither

32 Jan Christoph Bublitz and Reinhard Merkel (2014) ‘Crimes Against Minds: On Mental Manipu-
lations, Harms and a Human Right to Mental Self-Determination’, Criminal Law and Philosophy, 8, 51–
77, at p. 73.

ARETI THEOFILOPOULOU164



sufficient nor necessary for the permissibility of an intervention, and
that the distinction between direct and indirect interventions only
tracks our intuitions regarding the moral and physical boundaries
that bodies seem to set, and not the extent to which an intervention
shows lack of respect towards human agency. Instead, I have
suggested that a more plausible criterion is whether an intervention
targets one’s moral powers as a capacity rather than specific beliefs
or desires.

To be sure, neurointerventions might not be sufficient as a means
for increasing one’s moral powers to the requisite degree. For in-
stance, many sex offenders do not offend because they have a high
sex drive but because they have certain desires that involve harming
others and certain views about, for example, women’s worth. In
these cases, even if chemical castration prevents further crimes, it
might not enhance the offenders’ moral powers, as they are likely to
have the same desires and views post-castration. Of course, as I
argued in the previous section, this is not the case with all offenders.
If offending is due to impulses as contrasted with more stable desires,
then giving an individual the capacity to control these impulses can
actually increase that person’s autonomy and enable them to act in
accordance with their true desires. A good way to distinguish be-
tween the two categories of offenders might be by appealing to the
difference between an offender’s first-order and second-order de-
sires.33 In cases where the first-order desire to offend is different from
the offender’s reasonable second-order desire, neurointerventions
might be sufficient to bring the two into alignment. By contrast,
when both the offender’s first-order and second-order desires are
inconsistent with the requirements of justice, it seems likely that
extensive therapy and education will be necessary. In any case, the
fortificationist argument in favour of neurointerventions is compat-
ible with the claim that neurointerventions are not always sufficient
means to ensure the required fortification; in fact, it offers reasons in
favour of other methods of rehabilitation as well, such as therapy
and education.

33 Harry G. Frankfurt (1971) ‘Freedom of the Will and the Concept of a Person’, Journal of Philos-
ophy, 68 (1), 5–20, at p. 7.

PUNISHMENT AS MORAL FORTIFICATION AND NEUROINTERVENTIONS 165



IV. CONCLUSION

I have argued that the fortification of criminal offenders’ moral
powers through non-consensual neurointerventions is justifiable for
three reasons. First, when a citizen violates others’ rights due to her
failure to discharge her fortificational duties, the state is permitted to
enforce those duties on the basis of its duty to protect individuals’
rights and liberties. One way to do this is by requiring that individual
to undergo neurointerventions. Second, the state’s enforcement of
fortificational duties is required for the assurance of others’ com-
pliance with the requirements of justice, which underpins societal
stability. In these cases, neurointerventions may be warranted if they
are the only or best way of promoting citizens’ stable and fair social
cooperation. Third, because all persons have an interest in devel-
oping their moral powers to the degree required in order to par-
ticipate in social cooperation, the state has a duty to ensure that this
moral power can be developed. This interest establishes a third
reason in favour of neurointerventions.

In certain cases, these reasons may be outweighed by competing
considerations, such as considerations of effectiveness, cost, and the
dangers associated with increasing the power that unjust states
possess in our non-ideal world. However, even though the reasons
that we have in favour of neurointerventions are by no means
conclusive in a non-ideal framework, they do suggest that such uses
of criminal justice interventions are consistent with the Fortifica-
tionist Theory of Punishment and that there may be cases in which
such interventions are not only morally permissible but required.

ACKNOWLEDGEMENTS

For helpful discussion of an earlier draft of this paper, I am grateful to the
audiences at the VIII Braga Meetings on Ethics and Political Philosophy,
and the Bucharest – Oxford Workshop in Applied Ethics, as well as to two
anonymous reviewers for very helpful comments. I would also like to
thank Jeffrey Howard for providing the theory with which my paper en-
gages, as well as David Birks, Max Kiener and Tom Parr for helpful dis-
cussions. My greatest debt is to Tom Douglas and Tom Sinclair, who
provided me with lengthy and insightful comments. Finally, I should note

ARETI THEOFILOPOULOU166



that this paper would not exist without the generous support of the
Wellcome Trust (grant number 100705/Z/12/Z), the Society for Applied
Philosophy, and the Sir Richard Stapley Educational Trust.

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	Punishment as Moral Fortification and Non-Consensual Neurointerventions
	Abstract
	The Fortificationist Theory of Punishment
	Fortificationism and Neurointerventions
	Objections
	Basic Rights and Liberties
	Proportionality
	Fortification vs Indoctrination

	Conclusion
	Acknowledgements