A Clockwork Orange again? Science, technology and punishment

The aims of punishment are not fixed, and appear to have fluctuated as far back as the world of the ancient Mesopotamians, who lived thousands of years ago in what is now the Middle East. Before delving far into the past to better understand the aims of punishment today, and prior to speculating on the technological future, we will start in a decade that is more commonly remembered for music and fashion than its changing attitudes to punishment: the 1960s. In his 1962 book (which was later made famous by Stanley Kubrick’s renowned film of the same name), Burgess described a dystopian world in which the main character, the violent offender Alex, was cured of his criminogenic tendencies by a criminal justice system that employed technological means involving medication to manage recidivism. 

The film graphically depicts such treatment. After being convicted of some horrific crimes, Alex has his predilection for rape and other violent behaviour removed by rudimentary technology that keeps his eyes open whilst he is forced by psychiatrists to watch scenes of violence on film. He is medicated while this is done, to be conditioned to having an aversion to such horror, and thereby bringing an end to his erstwhile psychological capacity to act on his deeply antisocial and dangerous partiality to “ultraviolence”. 

The treatment is very successful from the perspective of addressing his recidivism, but it seems Alex has his free will removed in the process. It doesn’t appear that the therapy has been a moral success, because it doesn’t respect Alex as a person, and treats him like an object to be manipulated. The book suggests the state has gone beyond the proper limits of its power in tampering with Alex’s mind and refashioning it in accordance with the leadership’s politically driven preferences, rather than simply jailing him for an amount of time proportionate to his wrongdoing. This, it is implied, is contrary to a liberal conception of the way society should operate. 

A viewer or reader who is of the opinion that the law should aim to give offenders what they deserve instead of trying to cure them of their criminal tendencies might find the action in the book provides some support for their view. A Clockwork Orange expressed a form of opposition to the idea that rehabilitation should be a primary goal of criminal justice. It articulates a concern, which was increasing in some quarters at the time, about perceiving crime as a medical issue rather than a moral problem that should attract retributive punishment. This concern was connected with a fear that rehabilitative programs might deem those with inconvenient political views to be within their scope, raising the question of what it means to be “rehabilitated”.

The book and the film emerged at a time when, in many criminal justice systems, the prevalent view that the justice system should aim to cure offenders of their criminogenic tendencies was being questioned. The therapeutic approach involved keeping offenders in jail until they were sufficiently rehabilitated and no longer presented a danger to the community, rather than retaining them until their debt to society was paid and they had been given their just deserts. Doubts about the therapeutic approach were gaining momentum. 

The writer, literary scholar and public intellectual CS Lewis had earlier expressed his concerns about a scientific approach to punishment that relied on indeterminate sentences with input from the mind sciences. In considering whether therapeutic responses to crime might be thought of as healing or punishing offenders, Lewis said:

To be taken without consent from my home and friends; to lose my liberty; to undergo all those assaults on my personality which modern psychotherapy knows how to deliver; to be re-made after some pattern of ‘normality’ hatched in a Viennese laboratory to which I never professed allegiance; to know that this process will never end until either my captors have succeeded or I have grown wise enough to cheat them with apparent success – who cares whether this is called Punishment or not?

Lewis’s view seems to be in the spirit of A Clockwork Orange in railing against a criminal justice system that fails to respect offenders’ dignity and human rights in its attempts to remake them in a way that is more palatable to their political masters.

Lewis refers to Vienna as the source of new ideas at the time, but the world’s power centres have moved on since post-war Europe, and some very influential ideas and technologies are now coming from further west. A more contemporary version of Lewis’s comment might involve “a pattern of ‘normality’” hatched in Silicon Valley rather than in Austria. Future interventions aimed at changing problematic offenders might involve neuroscience, artificial intelligence and neurotechnology rather than psychotherapy, yet I suspect if CS Lewis (or Burgess) were around today that distinction might not provide them with much reassurance. Contemporary offenders do not profess allegiance to tech companies in California any more than their 1960s counterparts did to Freud’s heirs in Viennese laboratories. 

Prisoners’ rights groups of the future might be no more satisfied with future technological approaches to rehabilitative criminal justice than those of the past were with the indeterminacy of sentence that accompanied the rehabilitative aim. Perhaps future victims of crime might also feel something is missing in the rehabilitative approach, particularly in response to heinous offending.

CS Lewis and others rejected a scientific approach to the rehabilitation of offenders and urged a return to a much older approach – the retributive theory of punishment – whereby sentencing courts give offenders what they deserve. The 1970s disillusionment with both the moral and practical merits of rehabilitation (it wasn’t clear then that rehabilitative efforts were working) gave rise to a more retributive approach to sentencing.

In some countries, indeterminate sentences, where prisoners waited for parole boards to decide they were rehabilitated, began to give way to sentences that offered less scope for parole and were more of an attempt to make the punishment fit the crime rather than the rehabilitative “needs” of the offender. The old retributive idea was back in fashion. But where did this older idea come from?

Looking back: An eye for an eye?

Retribution is found in most, or even all, cultures. Its origins might even be found in the biological constitution of our primate ancestors, and an early expression of this theory of punishment is found in Leviticus in the Bible, where it is famously said: 

If anyone injures his neighbor, as he has done it shall be done to him, fracture for fracture, eye for eye, tooth for tooth; whatever injury he has given a person shall be given to him.

There is a symmetry to this formulation, and it might be thought that the idea underpinning it is that a wrongdoer who has harmed someone deserves punishment themselves, a sort of tit for tat. In this biblical formulation the punishment should be equivalent to the harm done. With the rehabilitative approach, in contrast, the punishment is equivalent to the time necessary to rehabilitate the wrongdoer.

Clearly retribution is an ancient concept. It can be traced back as far as the Code of Hammurabi in Mesopotamia from around 1750 BCE, which also addressed personal injury: “if a man destroys the eye of another man, they shall destroy his eye”. If we continue our long journey into punishment’s past, we also find an historical connection between retribution and the interests of victims in the way the crime of rape is featured in the Sumerian myth of Inanna and Shukaletuda in around 1800 BCE.

My University of Sydney colleague Assyriologist, Dr Louise Pryke, has written about this myth in her book Ishtar. In this early Mesopotamian story, the goddess Inanna (the world’s first goddess of love, who later becomes known as Ishtar) is raped whilst asleep. Consent to sexual intercourse appears to have been regarded as important at least in this myth, as it is in contemporary society, as well as under law (under s 61HJ(1)(d) of the Crimes Act 1900 (NSW), sexual intercourse is non-consensual when a person is unconscious or asleep).

Inanna’s approach to punishing Shukaletuda is very different from the State’s response to Alex (who, amongst other offences, committed sexual assault). Upon waking and realising what has happened to her, the goddess sets about bringing justice to her rapist. There is no suggestion that she tries to use her divine powers to rehabilitate him, which is understandable given a very serious crime was committed against her and she feels aggrieved. Rehabilitation might be something that generally is more aligned with the interests of the community than the victim.

In her search for the mortal gardener who violated her, it becomes clear that Inanna is powerful; in fact, she is more powerful than A Clockwork Orange’s fictional criminal justice practitioners or contemporary scientists or technologists. She employs a variety of means to flush Shukaletuda out of hiding, including creating a dust storm and turning water into blood. Ultimately she succeeds in catching him and gives effect to her punishment, the nature of which, unfortunately, is unclear for the contemporary reader, due to the state of the ancient and fragmented clay tablets.

According to the best analysis, it seems Inana either killed or shrank Shukaletuda, but rather mercifully (and without explanation) allowed his name to live on in song. One thing worth noting here is the question of proportionality, which is an important but also difficult concept for those who espouse retributivism. What kind of criminal justice response is proportionate to a rape? Is it sexual assault for a sexual assault? The punishment Inanna imposed was either death or shrinking, together with allowing her rapist to live on in song – is that the right approach? Or is today’s Crimes Act 1900 (NSW) more appropriate with its maximum penalty of 14 years?

Forty years ago, the maximum penalty in NSW for rape was only half of the current penalty. A tricky thing for retributivists is to anchor their system of penalties to a scale; as already noted, the Code of Hammurabi and Leviticus have a strict equivalence in respect of crimes causing the loss of eyes, but this is inconsistent with contemporary notions of human rights.

The second issue is the role of the victim in punishment. In the myth of Inanna and Shukaletuda, the story is complicated because the goddess is both victim and the dispenser of justice through her divine role. Is the killing (or shrinking) of Shukaletuda to be thought of as a victim’s revenge, or is it a form of retributive punishment imposed by a goddess who has the standing to bring justice to wrongdoers? At the very least, Inanna seems to have a conflict of interest in respect of her divine role, but the myth raises the broader question of whether those who support retributive punishment can properly distinguish it from vicarious revenge. 

If the State is to impose retributive punishment, then it might be asked what the role of victims should be in sentencing. Moving forward in time to today, we might ask what role a victim impact statement should have in sentencing.

Another issue for retributivists is the question: what is the purpose of retributive punishment? Is it to restore some kind of harmony to the universe where by punishing an offender the cosmic order is restored, as may have been thought to be the case in ancient Mesopotamia? Or should we think of an offender as having obtained an unfair advantage over the law-abiding members of the community and aim for a system that tries to remove that advantage, as the recently deceased philosopher Professor Herbert Morris thought was appropriate? Perhaps punishment should try to communicate to the offender censure that is deserved (and thus proportionate to the offence), as contemporary legal philosopher, Professor Antony Duff, has expressed. There is no consensus amongst retributivists on this point, and no consensus on what the role (if any) of retribution in punishment should be.

It is perhaps easier to explain why rehabilitation, deterrence and incapacitation are thought to be worthwhile: the aim of each is to reduce crime and make the community safer. Compensatory approaches to justice also have a clearer aim. Under Mesopotamian law, the Code of Ur Nammu (from around 2100 and 2050 BCE) did not impose an eye for an eye, but instead half a mina of silver for this injury. 

It is interesting to note the fluctuation in the aims of punishment: this earlier focus on compensation ultimately gave way to the more retributive approach of King Hammurabi and that seen in Leviticus. 

Returning to the question of the point of the sanction, a victim who has lost an eye might do better with the extra silver than the satisfaction of seeing their assailant partially blinded. While society may understandably prefer to maximise safety rather than prioritising the conveying of censure or the removal of unfair advantages, the retributive impulse does not seem to go away.

It is important to note one very significant feature of retribution, and that is its finite nature, resulting from the idea of proportionality. It is not an eye for a tooth – that would be too much and undeserved (and, as noted earlier, there is a possible question about disproportionality in Inanna’s response to Shukaletuda). Nor is punishment to continue indefinitely and until rehabilitation has occurred. Retribution is limited by our deserts and one does not deserve to lose an eye for knocking out someone’s tooth. 

CS Lewis’s contribution to the debate about the aims of punishment has already been mentioned, but he also said, “those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience”. Whilst rehabilitation can be somewhat elastic as a sentencing aim, retribution is not, and that could be considered one of its virtues.

Retribution today
Whilst sentencing in NSW has multiple aims, including protection of the community, if you commit a minor offence the nature of the offence puts a limit on the punishment a court can impose, no matter how concerned the sentencing judge is about your prospects of recidivism. Maximum penalties vary for different offences, and sentences increase depending on the seriousness of the offence. In that way, proportionality is built into the criminal justice system, which is in keeping with one formulation of the retributive idea – that is, wrongdoers should not be punished more than they deserve (this is sometimes known as “negative retributivism”).

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) contains some aims that are suggestive of the concept of retribution, for example, ensuring “the offender is adequately punished for the offence”, making the offender accountable for his or her actions, engaging in denunciation of crime and recognising harm to the victim. 

As well as looking to the seriousness of the offending, sentencing in NSW, at least in its formal aims, seeks to rehabilitate, protect the community and deter. It involves retribution but, as has been demonstrated, not just retribution, and contemporary retribution does not follow the “eye for an eye” formulation found in the Code of Hammurabi and Leviticus. Instead of formally sanctioning the knocking out of teeth, measures such as imprisonment, fines and ankle bracelets are employed to dispense justice. The focus on harm as the main indicator of the gravity of an offence has been replaced by an approach that also considers the offender’s subjective case, including the offender’s moral culpability.

How does this work? The NSW Court of Criminal Appeal case R v Israil (2002)concerned an offender who suffered from a mental condition. He was sentenced for offences of armed robbery, one of which involved the use of a blood-filled syringe. In his sentencing remarks, Chief Justice Spigelman stated (at [23]):

[t]o the extent that mental illness explains the offence … then an offender’s inability to understand the wrongfulness of his actions, or make reasonable judgments, or control his faculties or emotions, will impact upon the level of culpability of the offender.

The great 20th century legal philosopher HLA Hart saw the concept of “difficulty” as having an important role in mitigation of punishment (as do I). One might think of an offender’s impaired mental condition as making it more difficult for them to comply with the law, with the result that they are less morally culpable and therefore deserving of lighter punishment. 

In other cases, neuroscientific evidence has been used in arguments for mitigation of punishment. My former PhD student Dr Armin Alimardani, now a lecturer at the University of Wollongong, has recently published an article in the academic journal Frontiers in Psychology where he surveys NSW cases in which sentencing courts have considered the implications of neuroscientific evidence for their decisions, often in support of a lenient sentence. If offenders, through expert witnesses such as forensic psychiatrists, use brain scans to argue for lesser culpability, where does this end? 

We are now getting close to the free will problem – it seems if offenders don’t have free will, perhaps they don’t deserve any punishment at all. Maybe all that is left is deterrence, rehabilitation and incapacitation. In A Clockwork Orange, it seemed Alex had his free will removed, but a problem for retributivists is explaining how it was ever there in the first place. The long history of the free will debate suggests there is a real possibility that we lack free will.

It is a limited group who believe contemporary neuroscience (or philosophical theorising) has shown free will to be an illusion. In any case, the rejection of free will is a step too far for sentencing courts, which must impose punishment according to law, including taking account of its retributive aspect, even if neuroscientific evidence sometimes leads to mitigation.

An eye for an eye or a brain implant for an eye?
In discussing the role of forensic psychiatrists in sentencing, we seem to be circling back to towards A Clockwork Orange even if only incrementally. It is worth noting that an important move towards managing offenders, rather than giving them their just deserts (if anyone ever deserves any punishment), is already now firmly in place.

In many jurisdictions, retributivism became more prominent from the 1970s, and from that time there has been a move away from more finite sentences and retributive justice. For example, the Crimes (High Risk Offenders) Act 2006 (NSW) allows for the continued detention of dangerous offenders after their sentence has ended for the purpose of preventing further crime. This seems to move away from the retributive idea that the punishment should fit the crime, and heads in the direction of a system in which dangerous people are managed, albeit without the therapeutic focus that Burgess envisaged.

Might things start moving further away from retributive deserts? Whilst Mesopotamian innovations included the wheel and writing, and the 1960s had the miniskirt, in modern times artificial intelligence, although not new, is certainly coming to the fore. In some criminal jurisdictions AI has been used to predict recidivism and monitor prison inmates’ phone calls, but might AI also be used to get into the heads of offenders?

The combination of AI and neuroscience has led to forms of neurotechnology that include brain implants employing machine-learning systems to predict events in the brain. For instance, there are implants that can predict an epileptic fit and automatically stimulate the brain to avert the fit. Building on existing technology that is currently implanted in the brains of some people with epilepsy in order to manage their condition, Associate Professor Frederic Gilbert from the University of Tasmania and Professor Susan Dodds from La Trobe University have considered the possibility of future brain implants that might detect neural precursors to violent outbursts, and automatically stimulate the brain to calm the offender down. They also deliberated about whether it would be ethical for a criminal justice system to mandate that a convicted offender have such an implant, and found that it would not. 

But are their worries premature? Neurotechnology is somewhat niche at present, but it seems very likely, and indeed almost certain, that it will expand into the brains and minds of more and more people. Since Elon Musk showed interest in brain implants through investment in his company Neuralink, commercial interests have been building. 

In addition to brain implants, there are other forms of neurotechnology that monitor or influence the brain and nervous system in other ways, without necessarily having to be implanted in the brain. There is good reason to think that a variety of neurological and psychiatric conditions might one day be addressed by this emerging technology. This is a wonderful upside for the technology, and it also means there is money to be made. For example, neurotech has now attracted investment from billionaires, including Bill Gates, Jeff Bezos, Peter Thiel, and Australia’s own Gina Rinehart.

Interest in the criminal justice applications of neurotechnology is now developing with the US Company Brainwave Science. Brainwave Science is marketing an external headset brain-monitoring product for use in the criminal justice or security contexts, signalling that its product will “transform your interrogations”. The headset might be used to collect brain data from suspects whilst they are being interrogated in order, for example, for authorities to see if their neural data suggests recognition when they are shown a picture of a crime scene.

But what about the mental privacy of suspects? It is worth noting that, following advances in neurotech and a series of legislative and policy developments internationally, the Australian Human Rights Commission has now prioritised neurotechnology and made a submission to the United Nations Human Rights Council Advisory Committee on the topic. My paper ‘Neurotechnology and human rights: developments overseas and the challenge for Australia’, published in the Australian Journal of Human Rights earlier this year, dealt with some criminal justice applications of neurotechnology and was referred to in this submission.

In that paper, drawing on the abovementioned work of Gilbert and Dodds and my earlier report on neurotech written for the Law Society of England and Wales, I imagined the sentencing of a hypothetical offender with a mental condition who was on the cusp of going to jail. Let us assume that, between offending and sentencing, and on the advice of a forensic psychiatrist, the offender “chooses” to have a brain implant that the psychiatrist believes is likely to manage the condition that played a role in the offending. The intention is that as the implant addresses the mental condition, the offender will avoid being imprisoned. Noting that NSW courts have already imposed conditions requiring offenders take pharmaceutical interventions for mental conditions, the offender’s legal representative suggests to the court that the offender should not be jailed; instead, an Intensive Correction Order (ICO) should be imposed. The ICO would allow the offender to return to the community on the condition that the device be active for the duration of the sentence – on the basis that the offender’s risk of recidivism has been effectively managed by the neurotech. 

Surely this is just another form of electronic monitoring? Offenders are already required to wear ankle bracelets as conditions of ICOs, and sometimes are also required to take pharmaceutical neurointerventions to manage their mental conditions – so there is nothing new here. Or so it might be argued.

It is not obvious that there is anything to prevent a NSW judge from making such an order. But this would be a very significant step for criminal justice – an order in which the court requires a mentally ill offender to have their brain monitored 24/7, perhaps over a period of years, by a system which uses an automated decision-making system to decide when treatment, perhaps involving electrical brain stimulation, is needed.

It is not surprising that organisations such as the US-based Neurorights Foundation or the Minding Rights Network (a group of which I am a member) are involved in considering the human rights implications of these developments. (Where were the human rights activists when Alex needed them?) The Neurorights Foundation has been involved, rather successfully, in activism around the world in its efforts to put what it refers to as “neurorights” issues on the political agenda. Now organisations such as the Australian Human Rights Commission and the UN are engaged with these issues, as are legislatures in many countries.

But what might this emerging technology mean for the aims of punishment? It might herald a criminal justice system that pacifies rather than punishes. Although the Code of Hammurabi is inscribed in cuneiform text on basalt, at least in a metaphorical sense the aims of punishment are not set in stone, and fluctuate over time. 

In fairly recent times there have been signs that things are changing. Technological advances suggest that in coming years some important decisions may need to be made about the prominence of the retributive aim in relation to other aims of punishment that focus on protecting the community, as well as the human rights of offenders. 

Retribution has a long history. It waxed and waned thousands of years ago in Mesopotamia, and so it has in my lifetime. It might now be waning, and it could be that something more scientific and technological will rise in prominence. In the future, the people with control over criminal justice might not wear the uniform of prison guards, or the laboratory coats of Anthony Burgess’s imagination, but rather techie t-shirts appropriate to the Californian climate.

Yes, it might well be time to watch A Clockwork Orange again.