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Neurointerventions and the LawRegulating Human Mental Capacity$
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Nicole A Vincent, Thomas Nadelhoffer, and Allan McCay

Print publication date: 2020

Print ISBN-13: 9780190651145

Published to Oxford Scholarship Online: June 2020

DOI: 10.1093/oso/9780190651145.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 25 February 2021

Judicious Use of Neuropsychiatric Evidence When Sentencing Offenders With Addictive Behaviors

Judicious Use of Neuropsychiatric Evidence When Sentencing Offenders With Addictive Behaviors

Implications for Neurointerventions

(p.231) 10 Judicious Use of Neuropsychiatric Evidence When Sentencing Offenders With Addictive Behaviors
Neurointerventions and the Law

Andrew Dawson

Jennifer Chandler

Colin Gavaghan

Wayne Hall

Adrian Carter

Oxford University Press

This chapter examines how courts in commonwealth jurisdictions have used neuropsychiatric evidence as a mitigating factor in sentencing, in cases involving (a) drug- and gambling-addicted offenders and (b) offenders prescribed dopaminergic medication for a movement disorder. The authors first examine how courts have approached criminal offending linked in some way to drug or behavioral addictions. Generally, commonwealth courts see drug- or gambling-addicted offenders as morally blameworthy agents deserving of imprisonment. Some courts have occasionally adopted a medical stance and allowed an individual’s drug or gambling addiction to mitigate their sentence. The justification for adopting a medical stance has arguably been the greater economic and public health benefits of a medical approach rather than a strong embrace of neuropsychiatric evidence. In contrast, in two recent cases in which criminal offences have been attributed to dopaminergic medication prescribed for movement disorders, courts have strongly relied upon neuropsychiatric evidence as a mitigating factor at sentencing. Reliance on this evidence was unnecessary in these cases, as the noncustodial sentences imposed on patients could have been justified on other grounds. This evidence was also misapplied. The authors conclude with an analysis of the implications of this misapplication for the use of neurointerventions to reduce addiction-related offending. This analysis is vital to ensuring that future courts determining an appropriate neurointervention for a movement-disordered offender unwilling to reduce their medication will not be hamstrung by a conflation of causality and compulsion.

Keywords:   addiction, Parkinson’s disease, compulsive behavior, neuropsychiatry, sentencing, mitigating factors

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