Writing summary of an article mentioned below

O R I G I N A L A R T I C L E

When is coercive methadone therapy justified?

Daniel D’Hotman | Jonathan Pugh | Thomas Douglas

Correspondence

Thomas Douglas, University of Oxford -

Faculty of Philosophy, Suite 8 Littlegate

House, St Ebbes Street, Oxford OX1 1PT,

U.K.

Email: [email protected]

Abstract Heroin use poses a significant health and economic burden to society, and individuals with heroin

dependence are responsible for a significant amount of crime. Owing to its efficacy and cost-

effectiveness, methadone maintenance therapy (MMT) is offered as an optional alternative to

imprisonment for drug offenders in several jurisdictions. Some object to such ‘MMT offers’ on the

basis that they involve coercion and thus invalidate the offender’s consent to MMT. While we find

these arguments unpersuasive, we do not attempt to build a case against them here. Instead, we

explore whether administration of MMT following acceptance of an MMT offer might be permissi-

ble even on the assumption that MMT offers are coercive, and in such a way that the resulting

MMT is non-consensual. We argue that non-consensual MMT following an MMT offer is typically

permissible. We first offer empirical evidence to demonstrate the substantial benefits to the

offender and society of implementing non-consensual MMT in the criminal justice system. We

then explore and respond to potential objections to such uses of MMT. These appeal respectively

to harm, autonomy, bodily and mental interference, and penal theoretic considerations. Finally, we

introduce and dismiss a potential response to our argument that takes a revisionist position, reject-

ing prevailing incarceration practices.

K E Y W O R D S

autonomy, criminal justice, drug policy, methadone, neuroethics

1 | INTRODUCTION

The relationship between heroin dependence and crime is well docu-

mented.1 The United Nations estimates that the cost of drug-related

crime in the U.S.A. exceeds 1% of gross domestic product (GDP),

equating to approximately US$160 billion each year,2 with heroin users

accounting for a large proportion of this economic burden.3 Heroin

users are also over-represented in prison populations.4 Yet despite the

efforts of law enforcement agencies, the health, social and economic

costs associated with heroin dependence continue to increase.5

While scholars disagree about the goals of criminal justice, it is

widely accepted that one of its objectives is to prevent convicted

offenders from re-offending — for both their own benefit and that of

society.6 However, a significant body of evidence demonstrates that

imprisoning drug offenders is ineffective at preventing recidivism or

....................................................................................................................................................................................... This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, pro-

vided the original work is properly cited. VC 2018 The Authors Bioethics Published by John Wiley & Sons Ltd

1McGlothlin, W. H., Anglin, M. D., & Wilson, B. D. (1978). Narcotic addic-

tion and crime. Criminology, 16(3), 293–316. 2United Nations Office on Drugs and Crime (UNODC). (2012). World drug

report: 2012. Retrieved from https://www.unodc.org/documents/data-and-

analysis/WDR2012/WDR_2012_web_small.pdf [Accessed 22 Nov, 2017];

Emery Jr., R. E., & Oltmanns, T. F. (1999). Essentials of abnormal psychology.

London: Pearson. 3Mark, T. L. , Woody, G. E., Juday, T., & Kleber, H. D. (2001). The economic

costs of heroin addiction in the United States. Drug and Alcohol Dependence,

61(2), 195–206; United Nations Office on Drugs and Crime, op. cit. note 2.

4Hall, W. (1997). The role of legal coercion in the treatment of offenders

with alcohol and heroin problems. Australian & New Zealand Journal of Crimi-

nology, 30(2), 103–120. 5United Nations Office on Drugs and Crime (UNODC). (2014). World drug

report: 2014. Retrieved from https://www.unodc.org/documents/

wdr2014/World_Drug_Report_2014_web.pdf [Accessed 22 Nov, 2017]. 6For the classical view, see De Beaumont, G. A., & De Tocqueville, A.

(1968) [1833]. On the penitentiary system in the United States: And its appli-

cation in France; with an Appendix on penal colonies, and also, statistical notes.

New York, NY: Augustus M. Kelly.

Received: 6 March 2017 | Revised: 20 February 2018 | Accepted: 27 February 2018 DOI: 10.1111/bioe.12451

Bioethics. 2018;32:405–413. wileyonlinelibrary.com/journal/bioe� | �405

drug use.7 Methadone maintenance therapy (MMT), by contrast, has

proven to be effective in reducing heroin use,8 and, in turn, drug-

related crime.9 As a result, it has been proposed as an optional alterna-

tive to incarceration for non-violent drug offenders.10 For instance, in

Australia, the treatment of drug offenders — including with MMT,

counselling and psychotherapy — has been a popular alternative to

incarceration for about 40 years, with judges frequently offering treat-

ment to heroin-dependent offenders in exchange for a reduced or

commuted prison sentence if the prisoner accepts to undergo MMT.11

In light of the success of this policy, the U.K., China, and the majority

of countries in the European Union have followed suit by implementing

MMT in their own criminal justice systems.12

However, despite its success in preventing recidivism, attempts to

establish MMT as a mainstay intervention for drug offenders have

been held back by political opposition,13 preference for abstinence-

based treatments in the criminal justice system,14 and ethical protest

from clinicians and philosophers.15

In this paper, we examine whether there is any sound ethical objec-

tion to the use of MMT in criminal justice systems on the model

employed in Australia, among other countries. We argue that such use is

morally permissible. After outlining a number of assumptions that we

make throughout the paper (Section 2), we present the case for coercive

MMT, offering empirical evidence for its potential to benefit both the

offender and society (Section 3). We then go on to explore and respond

to potential objections to our position in favour of coercive MMT (Sec-

tion 4). These appeal respectively to harm, autonomy, bodily and mental

interference, and penal theoretic considerations. Finally, we introduce,

assess and ultimately reject a potential response to our argument accord-

ing to which prevailing incarceration practices are unjustified (Section 5).

2 | COERCION, COMPETENCE, AND THE CONSENT REQUIREMENT

We will use the term ‘the MMT offer’ to refer to the practice of offering

MMT, with or without other forms of medical or psychological treat-

ment, to criminal offenders in return for a shorter than normal prison

term. One possible objection to the MMT offer claims that offering

MMT in return for a reduction in prison term is coercive, thus rendering

the recipient’s consent to undergo MMT invalid. There is considerable

philosophical literature examining whether an offer can be coercive in a

manner that undermines the voluntariness of an individual’s consent.16

However, the possibility of coercive offers has been raised in a wide

range of contexts, including in debates on markets for human organs,17

the treatment of psychiatric diseases,18 research ethics,19 and the use

of chemical castration in the criminal justice system.20

Many of the arguments made in these contexts seem applicable to

the MMT offer. Consider, for example, William Green’s claims regard-

ing the practice of offering sexual offenders the opportunity to

undergo so-called ‘chemical castration’ in return for a reduced

sentence. Green claims that, in the context of this offer,

Freedom of choice is impossible because the convict’s

loss of liberty constitutes a deprivation of such a magni-

tude that he cannot choose freely and voluntarily, but

he is forced to give consent to an alternative he would

not otherwise have chosen.21

Similarly, a heroin-dependent offender facing a lengthy prison sentence

might be understood as being ‘forced’ to give consent to MMT when he

would not otherwise have done so. Accordingly, it seems plausible to sup-

pose that some opponents of the MMT offer might claim that it is coercive.

We are sceptical about the plausibility of this claim; we agree with

others that offers like the MMT offer are not coercive in a manner that

would invalidate the consent of the recipient.22 Rather than attempting

to make this case here, however, throughout the remainder of the article

7Farrell, M., Ward, J., Mattick, R., Hall, W., Stimson, G. V., des Jarlais, D., . . .

Strang, J. (1994). Fortnightly review: Methadone maintenance treatment in

opiate dependence: A review. BMJ, 309(6960), 997–1001. 8Ibid. 9Lind, B., Chen, S., Weatherburn, D., & Mattick, R. (2005). The effectiveness

of methadone maintenance treatment in controlling crime: An Australian

aggregate-level analysis. The British Journal of Criminology, 45(2), 201–211. 10United Nations Office on Drugs and Crime (UNODC). (2013). World drug

report: 2013. Retrieved from https://www.unodc.org/unodc/secured/wdr/

wdr2013/World_Drug_Report_2013.pdf [Accessed Nov 22, 2017]; Hall, op.

cit. note 4. 11Hall, W., & Lucke, J. (2010). Legally coerced treatment for drug using

offenders: Ethical and policy issues. Crime and Justice Bulletin, 144, 1–12. 12Schaub, M. , Stevens, A., Berto, D., Hunt, N., Kerschl, V., McSweeney, T.,

. . . Uchtenhagen, A. (2010). Comparing outcomes of ‘voluntary’ and ‘quasi- compulsory’ treatment of substance dependence in Europe. European Addic- tion Research, 16(1), 53–60. 13Fischer, B. (2000). Prescriptions, power and politics: The turbulent history

of methadone maintenance in Canada. Journal of Public Health Policy, 21(2),

187–210. 14Leukefeld, C. G., & Tims, F. (1988). Compulsory treatment: A review of find-

ings. In C. G. Leukefeld & F. Tims (Eds.), Compulsory treatment of drug abuse:

Research and clinical practice (NIDA Research Monograph 86) (pp. 236–254). Rockville, MD: U.S. Department of Health and Human Services. 15Farabee, D., Prendergast, M., & Anglin, M. D. (1998). The effectiveness of

coerced treatment for drug-abusing offenders. Federal Probation, 62(1),

3–10.

16See for example, Feinberg, J. (1989). The moral limits of the criminal law.

Volume 3: Harm to self. Oxford: Oxford University Press; Wertheimer, A.

(1987). Coercion. Princeton, NJ: Princeton University Press; Nozick, R.

(1969). Coercion. In S. Morgenbesser, P. Suppes & M. G. White (Eds.), Phi-

losophy, science, and method: Essays in Honor of Ernest Nagel (pp. 440–472). New York, NY: St Martin’s Press. 17Rippon, S. (2012). Imposing options on people in poverty: the harm of a

live donor organ market. BMJ, 40(3), 145–150. 18Shaw, J. (2007). Is it acceptable for people to be paid to adhere to medi-

cation? No. BMJ, 335(7613), 233. 19Macklin, R. (1989). The paradoxical case of payment as benefit to

research subjects. IRB: Ethics & Human Research, 11(6), 1–3. 20Vanderzyl, K. A. (1994). Castration as an alternative to incarceration: An

impotent approach to the punishment of sex offenders. Northern Illinois Uni-

versity Law Review, 15(1), 107–140. 21Green, W. (1986). Depo-Provera, castration, and the probation of rape

offenders. University of Dayton Law Review, 12(1), 16–17. 22Wertheimer, A., & Miller, F. G. (2014). There are (STILL) no coercive

offers. Journal of Medical Ethics, 40(9), 592–593; Bomann-Larsen, L. (2013). Voluntary rehabilitation? On neurotechnological behavioural treatment,

valid consent, and inappropriate offers. Neuroethics, 6(1), 65–77.

D’HOTMAN ET AL.406  |    

we assume that the MMT offer is coercive in a manner that invalidates

the recipient’s consent. Instead, we argue that it may be permissible to

make the MMT offer even if it renders invalid the recipient’s consent to

undergo MMT. That is, we challenge the view that valid consent is

required for the morally permissible imposition of MMT — a view we

henceforth refer to as the MMT consent requirement.

The MMT consent requirement is consistent with views on con-

sent taken elsewhere in medical ethics. MMT is a type of medical inter-

vention, and it is widely held that it is permissible to carry out a

medical intervention on a competent individual only if that individual

provides valid consent to the intervention.23 We do not dispute the

view that most medical interventions can permissibly be provided only

with the valid consent of the patient. Rather, we argue that the use of

MMT within criminal justice is, under certain conditions, a special case to

which ordinary medical-ethical consent requirements do not extend.

One way to reject the MMT consent requirement might be to

deny that heroin-dependent offenders are autonomous and thus

maintain that they are not competent to provide (or refuse) informed

consent to MMT.24 This is not our strategy; we assume that heroin-

dependent offenders can be competent to refuse consent to MMT.25

Rather, we tackle the MMT consent requirement head on, by arguing

that we may have sufficient moral grounds to administer MMT to com-

petent offenders even if their consent has been coerced and is invalid.

We also make one further significant assumption. David Wendler

and Alan Wertheimer have recently argued that recruiting a person

into medical research on the basis of coerced consent is morally worse

than recruiting them into such research in the absence of consent.26

Were this position extrapolated from the context of medical research

to the context of criminal justice, it might imply that it would be prefer-

able to administer MMT to offenders without offering any alternative

— that is, without soliciting their consent — than to adopt the coercive

offer model. Whilst we believe that Wendler and Wertheimer plausibly

defend their view insofar as it applies only to the specific context of

research, we do not believe that it translates straightforwardly to the

context of criminal justice. We cannot defend this belief here;27

instead, we simply assume, contra Wendler and Wertheimer, that act-

ing on the basis of coerced consent is morally equivalent to acting in

the absence of consent. Notably, if the reader finds this assumption

problematic, rejecting this assumption would not render our arguments

here obsolete. Rather, it would entail that they should simply be taken

as arguments in favour of administering MMT without offering an

alternative.

We shall now outline the case in favour of using MMT to reduce

recidivism amongst drug offenders before considering objections to the

non-consensual administration of MMT.

3 | THE CASE IN FAVOUR OF COERCIVE MMT

Methadone is an opioid used in the treatment of opiate addiction as

part of MMT.28 Owing to its activation of endogenous opiate receptors

(the pleasure receptors in the brain that are activated by heroin), meth-

adone may be used as a substitution treatment for heroin addicts to

prevent withdrawal, block the effects of heroin, and relieve narcotic

cravings.29 Methadone is non-sedating and non-euphoric at stable

doses, meaning that patients are able to work, drive, and feel a full

range of emotions without narcotic impairment.30

Since the 1960s, a number of studies have been conducted to

assess the effectiveness of MMT in treating heroin addiction. In a

Cochrane review of 11 randomized control trials, MMT was more

effective in retaining patients and supressing heroin use, and received

better reviews in patient self-reports, than drug-free alternative treat-

ments, including counselling and abstinence therapies.31 MMT reduces

the spread of HIV and other infectious diseases, a trend attributed to a

reduction in injecting, needle-sharing, and associated high-risk sexual

activities (such as prostitution and unsafe sex).32 Enrolment in metha-

done programs has also been shown to cut mortality amongst

enrolled heroin users by 50%33 and to substantially reduce criminal

23Beauchamp, T. L., & Childress, J. F. (2012). Principles of biomedical ethics

(7th ed.). Oxford: Oxford University Press. 24National Bioethics Advisory Commission. (1998). Research involving per-

sons with mental disorders that may affect decisionmaking capacity. Retrieved

from https://bioethicsarchive.georgetown.edu/nbac/capacity/TOC.htm

[Accessed Nov 22, 2017]. 25Foddy, B., & Savulescu, J. (2006). Addiction and autonomy. Bioethics, 20

(1), 1–15. 26Wendler, D. & Wertheimer, A. (2017) Why is coerced consent worse

than no consent and deceived consent?’ The Journal of Medicine & Philoso- phy, 42(2), 114–131. 27Briefly, one significant problem is that Wendler and Wertheimer argue

that this view requires researcher-centric justification, which appeals to

norms that pertain to how researchers ought to treat research subjects, but

that are independent of what would best protect or respect those subjects.

The problem with extending this argument beyond Wendler and Wer-

theimer’s specified context of medical research is that many of the norms they appeal to in order to ground this view (such as the practicability condi-

tion) are quite specific to that context, and do not have an obvious corollary

in non-research contexts.

28Chou, R., Cruciani, R. A., Fiellin, D. A., Compton, P., Farrar, J. T., Haigney,

M. C., . . . Zeltzer, L. (2014). Methadone safety: A clinical practice guideline

from the American Pain Society and College on problems of drug depend-

ence, in collaboration with the Heart Rhythm Society. The Journal of Pain,

15(4), 321–337. 29Farrell et al., op. cit. note 7. 30Joseph, H., Stancliff, S., & Langrod, J. (2000). Methadone maintenance

treatment (MMT): A review of historical and clinical issues. Mount Sinai Jour-

nal of Medicine, 67(5–6), 347–364; Institute of Medicine. (1995). Federal reg- ulation of methadone treatment. Washington, DC: The National Academies

Press. 31Mattick R. P., Breen, C., Kimber, J., & Davoli, M. (2009). Methadone main-

tenance therapy versus no opioid replacement therapy for opioid depend-

ence. The Cochrane Database of Systematic Reviews, 3, CD002209. 32Gowing, L., Farrell, M. F., Bornemann, R., Sullivan, L. E., & Ali, R. (2011).

Oral substitution treatment of injecting opioid users for prevention of HIV

infection. The Cochrane Database of Systematic Reviews, 8, CD004145. 33Gibson, A., Degenhardt, L., Mattick, R. P., Ali, R., White, J., & O’Brien, S. (2008). Exposure to opioid maintenance treatment reduces long-term mor-

tality. Addiction, 103(3), 462–468; Clausen, T., Anchersen, K., & Waal, H. (2008). Mortality prior to, during and after opioid maintenance treatment

(OMT): A national prospective cross-registry study. Drug and Alcohol

Dependence, 94(1–3), 151–157.

D’HOTMAN ET AL.      |  407

activity.34 For example, Lind et al. found that for every 100 persons

enrolled in methadone programs for one year, New South Wales has

57 fewer break-and-enters, 56 fewer motor-vehicle thefts, and 12

fewer robberies. Finally, MMT has been found to improve psychologi-

cal wellbeing, employment opportunities and social functioning, and to

reduce the societal costs of criminal behaviour and substance abuse.35

Admittedly, there are some weaknesses in the data; for example, there

is limited evidence on MMT’s long-term effects.36 This gap in the literature

may primarily be attributable to difficulties with long-term patient retention

and high drop-out rates.37 Nevertheless, reviews conducted by the Insti-

tute of Medicine and National Institute of Health concluded that metha-

done is the most effective treatment for heroin addiction.38 Similarly, a

common position paper commissioned by the Joint United Nations Pro-

gramme on HIV/AIDS (UNAIDS), the World Health Organisation (WHO),

and the United Nations Office on Drugs and Crime (UNODC) holds that

Substitution maintenance therapy is one of the most

effective treatment options for opioid dependence. It

can decrease the high cost of opioid dependence to

individuals, their families and society at large by reduc-

ing heroin use, associated deaths, HIV risk behaviours

and criminal activity. Substitution maintenance therapy

is a critical component of community-based approaches

in the management of opioid dependence and the pre-

vention of HIV infection among injecting drug users.39

Some have expressed concern that these positive effects of MMT

have been identified through the study of voluntary MMT programs

and would not translate to coercive contexts, as effective treatment

requires motivation to change on behalf of the addicted person.40

However, multiple studies have concluded that patients who enter

methadone programs under coercion perform as well as those who

enter treatment voluntarily.41 In fact, some suggest that MMT may

actually have greater effectiveness when there is some level of

coercion involved, as patients are retained in the program for longer

periods, an important factor for preventing relapse and recidivism.42

Despite these promising results, there remain few patients in coercive

MMT programmes. Indeed, of the 1.5 million people arrested in the

U.S.A. in 2008 who were at risk of drug abuse or dependence, only

3.8% actually received treatment.43

4 | THE CASE AGAINST COERCIVE MMT

It might be argued that not all of the benefits of MMT have a bearing

on the permissibility of using it coercively within the criminal justice

system. For instance, some might advance the broadly Millian argument

that coercive treatment can never be justified by its benefits to the

treated individual, because individuals should always be regarded as

the best judges of their own interests; coercing individuals into

treatment for their own good amounts to wrongful paternalism.44

Alternatively, it might be claimed that, even if coercive treatment can

sometimes be justified by reference to its benefits for the treated indi-

vidual, benefitting the treated individual in the case of convicted drug

offenders would be contrary to the putative retributive aims of criminal

justice.

Note, however, that at least some of the benefits of MMT cited

above are benefits to others. Moreover, some of these benefits to

others — namely, those due to reduction in criminal recidivism — are

benefits that would generally be regarded as among the justifying

grounds for other forms of coercion within criminal justice systems.

The prevention of recidivism, or the maintenance of public security

that it serves, are generally taken to be at least part of what justifies

coercive probation, incarceration and rehabilitation programs, and

MMT is a relatively cost-effective means of realizing this objective.45

Despite the strong case in favour of coercive MMT, arguments in

favour of the practice must be weighed against the importance of

respecting an offender’s autonomy by administering medical treat-

ments only with their valid consent. In their discussion of the principle

of respect for autonomy, Beauchamp and Childress discuss the Kantian

and Millian roots of the salience that we now attribute to individual

autonomy.46 Interestingly though, Mill’s defence of ‘individuality’ in On

Liberty provides clues as to how it might be possible to overcome the

presumption in favour of personal autonomy when we consider the

34Lind, B., et al. op. cit. note 9 35Gibson, D. R., Flynn, N. M., & McCarthy, J. J. (1999). Effectiveness of

methadone treatment in reducing HIV risk behavior and HIV seroconver-

sion among injecting drug users. AIDS, 13(14), 1807–1818. 36Ball, J. C., & Ross, A. (1991). The effectiveness of methadone maintenance

treatment: patients, programs, services, and outcome. London: Springer-

Verlag. 37Zhou, K., & Zhuang, G. (2014). Retention in methadone maintenance

treatment in mainland China, 2004–2012: A literature review. Addictive Behaviors, 39(1), 22–29. 38Joseph, et al., op. cit. note 30; Institute of Medicine, op. cit. note 30. 39Lawrinson, P., Ali, R., Buavirat, A., Chiamwongpaet, S., Dvoryak, S., Habrat,

B., . . . Zhao, C. (2008). Key findings from the WHO collaborative study on

substitution therapy for opioid dependence and HIV/AIDS. Addiction, 103

(9), 1484–1492. 40Hartjen, C. A., Mitchell, S. M., & Washburne, N. F. (1981). Sentencing to

therapy: Some legal, ethical, and practical issues. Journal of Offender Coun-

selling, Services & Rehabilitation, 6(1–2), 21–39. 41Brecht, M. L., Anglin, M. D., & Wang, J. C. (1993). Treatment effectiveness

for legally coerced versus voluntary methadone maintenance clients. The

American Journal of Drug and Alcohol Abuse, 19(1), 89–106.

42Farabee, op. cit. note 15. 43Rich, J. D., McKenzie, M., Shield, D. C., Wolf, F. A., Key, R. G., Poshkus,

M., & Clarke, J. (2005). Linkage with methadone treatment upon release

from incarceration: A promising opportunity. Journal of Addictive Diseases,

24(3), 49–59. 44Mill, J. S. (2015) [1859]. On liberty. In M. Philp & F. Rosen (Eds.), On lib-

erty, utilitarianism, and other essays. Oxford: Oxford University Press;

Dworkin, G. (1972). Paternalism. The Monist, 56(1), 64–84. 45Farrell, M., Gowing, L., Marsden, J., Ling, W., & Ali, R. (2005). Effective-

ness of drug dependence treatment in HIV prevention. International Journal

of Drug Policy, 16(1), 67–75; Gerstein, D. R., & Harwood H. J. (Eds.). (1990). Treating drug problems. Volume 1: A study of effectiveness and financing of

public and private drug treatment systems. Washington, DC: National Acad-

emy Press. 46Beauchamp & Childress, op. cit. note 23.

D’HOTMAN ET AL.408  |    

permissibility of coercive MMT. In his famous ‘harm principle’, Mill

claims:

The only purpose for which power can be rightfully

exercised over any member of a civilized community,

against his will, is to prevent harm to others.47

The harm principle is compatible with the view that the prevention of

harm to others is insufficient to justify the imposition of involuntary

medical interventions — it claims only that harm prevention is necessary

for such a justification. However, it leaves open the possibility that the

moral reason we have to prevent harm to others may be sufficient to

justify the rightful exercise of power over the individual. This is impor-

tant to acknowledge in the current context; the case of coercive MMT

is not like common treatment scenarios in medical ethics in which con-

siderations of personal autonomy are simply weighed against consider-

ations of beneficence and non-maleficence, and often understood to

win out. In the current context, the principle of respect for autonomy

must also be weighed against our moral reason to prevent harm to

others (and, perhaps, other penal theoretic considerations, which we

consider in further detail below).48

In fact, we already interfere with the autonomy of large numbers

of heroin-addicted criminal offenders by, for example, subjecting them

to non-consensual incarceration, probation arrangements, and commu-

nity service. Moreover, it is widely (though not universally) accepted

that at least a part of our reason for doing so is to prevent criminal

recidivism, and thus harm to other members of society. Assuming that

these other coercive measures can be justified for the purposes of pre-

venting recidivism, the question is why coercive MMT could not be jus-

tified on similar grounds. In the following sections we shall approach

this question from a number of perspectives in order to determine

whether coercive MMT may be justified in a criminal justice setting.

First, however, a clarification. It might be held that, insofar as our

argument for coercive MMT advocates sacrificing the prisoner’s inter-

ests for the sake of the public good, it depends on the adoption of a

utilitarian moral outlook according to which one individual’s interests

can be sacrificed whenever this would, in aggregate, confer a greater

benefit on others. However, this is not so. Our argument is consistent

with the existence of deontological constraints on the ways in which

we may treat other people in order to promote the public good. Indeed,

it is consistent even with the existence of deontological constraints

that would ordinarily rule out the coercive imposition of medical treat-

ments. It requires only that either (i) these constraints are non-

absolute, such that they can permissibly be infringed if the case for

doing so is sufficiently strong, or (ii) individuals can make themselves

liable to forms of treatment that would ordinarily violate those con-

straints (perhaps, for example, through committing a moral wrong).49

4.1 | Harm

It would be difficult to reject coercive MMT by appealing to its harmful

effects, while also accepting other coercive criminal justice practices.

MMT has few negative side-effects and is linked with positive out-

comes after release; in typical cases it plausibly confers a net benefit

on the treated individual. By contrast, many prevailing criminal justice

practices have severe adverse side-effects and plausibly cause net

harm (indeed they may be intended to cause net harm, a point to which

we will return below). Consider incarceration. This tends to be highly

disruptive of social relationships and career projects, has a number of

adverse health and social outcomes for drug offenders, and, as we

have seen, is frequently ineffective in preventing recidivism. Moreover,

incarceration may need to be continued for many years without abate-

ment if any anti-recidivist effect is to be maintained.50 In contrast,

offenders may have to engage with mandated treatment for a much

shorter period of time, owing to its efficacy as a rehabilitative measure.

It would thus be difficult to eschew MMT while endorsing incarcera-

tion on the basis that the former is more harmful or offers a less

favourable harm–benefit balance.

4.2 | Autonomy

Similarly, those who accept other coercive measures for the purposes

of recidivism-prevention cannot object to coercive MMT solely on the

basis that it is coercive or interferes with autonomy; incarceration, pro-

bation, and community service also involve serious affronts to

autonomy and indeed would for this reason be regarded as completely

unacceptable if they were imposed on innocent people. To the extent

that these interventions are accepted, they are accepted in part

because we think that criminal offenders have either made themselves

liable to certain intrusions on their autonomy, or because the benefits

of restricting offender autonomy are sufficiently weighty as to justify

some infringements of the requirement to respect autonomy.

Of course, certain preferences may be more central to an agent’s

autonomy than others. For example, it might be argued that the

aspects of autonomy interfered with by coercive MMT are objectively

more important than the aspects of autonomy interfered with by other

coercive interventions in criminal justice. We now turn to consider two

arguments for this view.

4.3 | Bodily interference

The first of these arguments appeals to the fact that coercive MMT

involves bodily interference because it involves coercively introducing

a pharmaceutical agent into the recipient’s body. It is widely assumed

that reasons to respect a person’s autonomy entail reasons not to inter-

fere with a person’s body, and that these reasons apply irrespective of

what consequences the interference may have, and what intentions 47Mill, op. cit. note 44, p. 30. 48Ryberg, J. (2015). Is coercive treatment of offenders morally acceptable?

On the deficiency of the debate. Criminal Law & Philosophy, 9(4), 619–631. 49Pugh, J., & Douglas, T. (2016). Justifications for non-consensual medical

intervention: from infectious disease control to criminal rehabilitation. Crimi-

nal Law & Philosophy, 35(3), 205–229.

50Douglas, T. (2014). Criminal rehabilitation through medical intervention:

Moral liability and the right to bodily integrity. The Journal of Ethics, 18(2),

101–122.

D’HOTMAN ET AL.      |  409

motivate it.51 Importantly, this suggests that coercive MMT might be

more morally problematic than incarceration even if it is less harmful to

the offender, and overall less threatening to autonomy, because in

interfering with the body, it interferes with one particularly important

aspect of autonomy, namely, freedom from bodily interference.

However, it is not clear that freedom of bodily interference is more

central to autonomy than the aspects of autonomy that are interfered

with by other coercive criminal justice measures.52 For instance, free-

dom of movement and freedom of association are plausibly also partic-

ularly important aspects of autonomy, inter alia because of their

importance for maintaining social relationships. This is why it is almost

never permissible to severely constrain them and why practices that do

severely constrain them (such as quarantine and psychiatric detention)

are normally subject to extensive legal checks and balances.

Moreover, it is important here to note the difference between

different degrees of bodily interference. It is plausible that constraints

on bodily interference are more stringent in respect of more severe

forms of interference (e.g., extreme violence) than in respect of less

severe forms (e.g., minor, non-sexual touching). Thus, whilst it seems

that offenders should be protected against extreme violence, minor

forms of bodily interference can plausibly be permissible. For instance,

it seems plausible that offenders may permissibly be required to

undergo a non-consensual mouth swab to obtain DNA evidence.

Coercively administering methadone arguably involves greater bodily

interference than performing a non-consensual mouth swab and there

may thus be a more stringent constraint against such interference.

Nevertheless, it is certainly not obvious that the constraint is more

stringent than the constraints on, for example, the very extensive

interference with freedom of movement and association entailed by

incarceration.

4.4 | Mental interference

At this point, opponents might protest that coercive MMT involves a

further serious kind of intrusion that incarceration does not involve: it

directly interferes with the mental life of the offender by biologically

modulating the offender’s mental states (for example, suppressing

desires for heroin).

Mental interference has attracted scant attention in the philosoph-

ical literature, with little work having been done to establish its nature

and moral status.53 Yet, it is plausible that non-consensual mental inter-

ference can be wrong even in the absence of any harm, and even in

contexts, such as criminal justice, where serious interference with

autonomy is normally taken to be justified. Consider ‘brainwashing’, for

example, through aversion therapy or hypnosis. Although not necessar-

ily harmful, many would intuitively find such interventions to be

morally problematic, even if used within a criminal justice system to

prevent criminal recidivism. One plausible explanation for this would

hold that these interventions involve an objectionable form of mental

interference. Perhaps coerced MMT would be wrong for the same

reason.54

However, we are commonly subjected to various forms of mental

interference in our daily lives. Consider, for example, the use of

randomized rewards to promote habitual engagement with computer

games or social media platforms, the use of repeated temptation to

undermine willpower in product marketing, and the use of salience

effects to promote healthy dietary choices (for example, by serving

food on smaller plates or placing healthier products at eye level). At

least some of these forms of mental interference are widely thought to

be morally permissible even though it is not — to us at least — clear

that they involve a less serious form of mental interference than coer-

cive MMT.

Of course, opponents of coercive MMT might simply choose to

bite the bullet here and assert that both the use of such environ-

mental interventions and coercive MMT are impermissible. However,

this strategy becomes less appealing when we consider also the

mental effects of the status quo method of dealing with drug

offenders, namely, incarceration. By virtue of the fact that incarcera-

tion involves removing an offender’s social and economic connec-

tions and placing him or her in an extremely hostile and dangerous

environment (i.e., prison), both of which can cause substantial stress

and distress, it seems plausible to claim that incarceration involves a

more serious form of mental interference than coercive MMT.55

Assuming that incarceration is nevertheless permissible — an

assumption that we will re-visit in the next section — and assuming

that the case in favour of coercive MMT is as strong as that in

favour of incarceration, one would then need to identify some fac-

tor other than mental interference in virtue of which coercive MMT

is not permissible.

This might seem too quick. There is some intuitive plausibility to

the thought that there is a difference between eliciting mental changes

via a pharmacological intervention and eliciting such changes via an

effect on the individual’s environment, even if the latter leads to

greater harm. One way of cashing this thought out is to claim that

MMT involves a direct modification of the subject’s brain, whereas any

neural effects of incarceration, product marketing and other environ-

mental interventions are indirect, in the sense that they are mediated

by psychological processes.56

However, even if there is a compelling descriptive difference

between direct and indirect interventions of this sort, this distinction

will only be of use to the opponent of MMT if the distinction also has

51Ibid. 52Ibid. 53For an initial outline of the right to mental integrity, see: Douglas, op. cit.

note 50; Bublitz, J. C., & Merkel, R. (2014). Crimes against minds: On mental

manipulations, harms and a human right to mental self-determination. Crimi-

nal Law & Philosophy, 8(1), 51–77.

54Douglas, op. cit. note 50. 55This claim might be disputed on the basis that (many of) the mental

effects of incarceration are unintended; it might be held that mental inter-

ference necessarily involves intentional modulation of mental states or

processes, or that it is other-things-being-equal more serious when its men-

tal effects are intended. 56Focquaert, F., & Schermer, M. (2015). Moral enhancement: Do means

matter morally?, Neuroethics, 8(2), 139–151, p. 144.

D’HOTMAN ET AL.410  |    

normative significance.57 Though we cannot canvass all plausible routes

to establishing its normative significance here, we remain sceptical of

this claim. Focquaert and Schermer suggest that the direct/indirect dis-

tinction is morally relevant insofar as it tracks the distinction between

(correspondingly) active interventions, which require specific psycho-

logical and/or behavioural efforts on behalf of the recipient to achieve

the desired end of the intervention, and passive interventions, which

bring about the desired end by themselves.58 In our view, incarceration

is a counterexample to the claim that the directness of the intervention

tracks the passivity of the intervention. Incarceration is clearly an indi-

rect intervention in terms of evincing mental changes, but it is far from

clear that these changes require specific psychological and/or behav-

ioural efforts on behalf of the recipient. We suggest that the onus is on

the opponent of MMT to provide an alternative explanation for why

the direct/indirect distinction should be understood to matter morally.

In the absence of such an explanation, the most morally significant con-

sideration simply seems to be that the (indirect) adverse mental effects

of incarceration far outweigh the (direct) adverse mental effects of

MMT in terms of the harm caused.

We remain open to the possibility that future scientific and philo-

sophical work will uncover a morally relevant difference between the

kind of interference involved in intuitively permissible environmental

interventions, on the one hand, and that involved in coercive MMT, on

the other. This research may also uncover some reason why the seem-

ingly minor mental interference associated with coercive MMT is

morally worse than the seemingly significant mental interference

involved in incarceration. However, pending such developments, it is at

best unclear that an appeal to the wrongness of mental interference

could establish a decisive case against coercive MMT.

4.5 | Penal theoretic considerations

As mentioned above, the context we are considering is one in which

the principle of respect for autonomy must be weighed against harms

to society. However, it might be argued that penal theoretic considera-

tions are also relevant and that these speak against coercive MMT. In

this section, we will attempt to allay such concerns, arguing that coer-

cive MMT is consistent with modern theories of punishment in criminal

justice.

There is significant disagreement over what objectives the criminal

justice system should adopt, let alone which of these should be priori-

tized. Nevertheless, most authors concur that criminal justice systems

should realize one or more of:

A Retribution.59

B General deterrence (deterring offending by individuals besides the

offender in question).60

C Preventing the criminal in question from reoffending — for exam-

ple, through incapacitation, rehabilitation or ‘specific’ deterrence.61

Medical treatment-based approaches are generally neglected in discus-

sions of criminal justice reform, although they appear broadly consist-

ent with the rehabilitation component of (C). One plausible reason for

this is that they are regarded as at odds with (A) and (B). A critic of

employing coercive MMT in criminal justice might worry that a solely

treatment-based intervention would be too ‘soft’ to effectively realize

the retributive and deterrent goals of criminal justice.62

However, coercive MMT need not impede the realization of retrib-

utive and deterrent objectives.63 Any system that incorporated coer-

cive MMT would likely also need to include at least a short period of

detainment in order to ensure compliance to the treatment model.

Moreover, coercive MMT could be supplemented with further inde-

pendent measures, such as community service or fines, intended to

achieve retributive and deterrent goals. Thus, even if coercive MMT

were to be classified as a solely rehabilitative measure, courts could

mandate community service or issue fines to satisfy deterrent and

retributive goals. In light of this, it is not clear that a requirement for

deterrence or retribution alone offers a compelling argument against

coercive MMT.

Still, to the extent that the objectives of criminal justice are limited

to deterrence and retribution, it might be objected that there is no pos-

itive case for deploying MMT within criminal justice.64 However, we

note that few seem prepared to endorse a conception of criminal jus-

tice that entirely excludes objectives other than deterrence and retribu-

tion.65 Parole boards frequently place stringent conditions on offenders

that must be met in order to avoid a return to prison, and these are

generally set in order to reduce the risk of recidivism through rehabili-

tation, incapacitation, or a mixture of the two. For instance, sex

offenders on parole are often restricted from residing within certain

distances of schools, parks or playgrounds where children are likely to

be.66 In addition, the implementation of anger management courses, as

part of parole conditions for violent offenders, offers a prime example

of a criminal justice intervention where rehabilitation plays a central

57This is essentially the challenge laid down by Neil Levy’s ‘parity principle’. See Levy, N. (2007). Neuroethics. Cambridge: Cambridge University Press. 58Focquaert & Schermer, op. cit. note 56. 59Brooks, T. (2012). Punishment. Abingdon, Oxon: Routledge; Boonin, D.

(2008). The problem of punishment. Cambridge: Cambridge University Press. 60Brooks, op. cit. note 59.

61Tadros, V. (2013). The ends of harm: The moral foundations of criminal law.

Oxford: Oxford University Press. 62Ibid. 63Brooks, op. cit. note 59; Lippke, R. (2007). Rethinking imprisonment.

Oxford: Oxford University Press. 64Ryberg, J. (2012). Punishment, pharmacological treatment, and early

release. International Journal of Applied Philosophy, 26(2), 231–244. 65Levy, K. (2014). Why retributivism needs consequentialism: the rightful

place of revenge in the criminal justice system. Rutgers Law Review, 66(3),

629–684. 66Levenson, J. S., & Cotter, L. P. (2005). The impact of sex offender resi-

dence restrictions: 1,000 feet from danger or one step from absurd? Inter-

national Journal of Offender Therapy and Comparative Criminology, 49(2),

168–178; Burchfield, K. B., & Mingus, W. (2008). Not in my neighborhood assessing registered sex offenders’ experiences with local social capital and social control. Criminal Justice and Behavior, 35(3), 356–374.

D’HOTMAN ET AL.      |  411

role.67 These practices are widely accepted as legitimate components

of criminal justice.

A less extreme retributivist might raise concerns over whether

coercive MMT could respect the proportionality requirement(s) incor-

porated into retributivist theories. To see why, it is prudent to begin by

distinguishing between positive and negative retributivism in the con-

text of proportionality. Negative retributivism places only an upper limit

on the severity of the punishment — it holds that punishment may be

less-than-proportionate, but not more-than-proportionate, to the

offender’s culpability in respect of the crime. Positive retributivism pla-

ces both a lower and an upper limit, holding that punishment may be

neither less nor more than would be proportionate.68 With this distinc-

tion in mind, suppose that sentences currently given to offenders are

as short as they can be without violating the lower proportionality limit;

shortening these sentences and providing MMT instead, which, we

assume, would reduce harm to the offender, would render the overall

criminal justice response less-than-proportionate, even if it retains a

period of incarceration. Note that this would not be a problem on neg-

ative retributivism. Yet even positive retributivists could plausibly

accept other less costly and safer penalties that we discussed previ-

ously, such as fines or community service, to achieve proportionality.69

In light of this, it seems implausible that coercive MMT would neces-

sarily result in a violation of the proportionality requirement incorpo-

rated into positive retributivist theories of punishment.

5 | THE REVISIONIST RESPONSE

Some of our arguments above have taken as a start point the permissi-

bility of prevailing criminal justice practices, including incarceration. For

instance, we suggested above that if incarceration is permissible, it

would be difficult to reject coerced MMT as impermissible on the

grounds that it causes harm to the offender or infringes on autonomy.

One possible response to these arguments would be to hold that

incarceration is in fact unjustified.70 In support, it might be noted that the

harsh conditions prevalent in modern prisons often pose a serious risk to

offenders’ physical and mental wellbeing. Richard Lippke (2007) argues

that punishment of serious criminals should only require the ‘minimum

conditions of confinement’, and that incarceration in its current form

may not be justified for many offenders.71 Victor Tadros (2001) develops

this view further, suggesting that any benefits of incarceration are often

eclipsed by the relative harm it causes.72 If incarceration is indeed

morally impermissible, our above responses to objections from harm and

restrictions on autonomy would be undermined.

Note, however, that even Lippke and Tadros, both staunch critics

of modern incarceration, limit their critiques to prevailing incarceration

practices. Both have accepted that a less intrusive and less harmful

form of incarceration could be justified.73 Yet even the most minimal

intervention deserving of the name ‘incarceration’ would surely involve

significant harms, for example through disrupting familial, romantic and

other social relationships, and significant infringements of autonomy,

for example through limiting freedom of movement and association.74

Coerced MMT will typically be less harmful than even minimal incarcer-

ation, and it is not clear that it involves a greater infringement of

autonomy or a greater degree of mental interference. This suggests

that those of our arguments that rely on a comparison between incar-

ceration and coerced MMT will succeed even if only the most minimal

forms of incarceration are permissible.

Another version of this revisionist response would hold that incar-

ceration may be justified for certain crimes, but that non-violent drug

offences are not among them. This response could be grounded on the

reasonable suggestion that coercive means of rehabilitation can be justi-

fied only if non-coercive means are less effective. Putting possible

broader economic and social benefits aside, there is evidence that the

legalisation of drugs may facilitate an environment where treatment is

more accessible to drug users and there is less incentive to commit

crime. In the Netherlands, for example, long-term heroin users are pro-

vided with free heroin by the government, provided that they attend

medical clinics and make use of government housing. This program has

reduced criminality, improved health outcomes, and reduced the eco-

nomic costs associated with drug abuse.75 If public policy-makers pur-

sued such programs and legalized drugs, coercive practices such as

incarceration and coercive MMT might become unnecessary for the

achievement of optimal rehabilitation, and thus unjustifiable. There may

well come a time when governments around the world choose to treat

drug users in the health system and without coercion in ways that render

coercive criminal justice responses — or at least the rehabilitative aspects

of them — redundant. Yet, we doubt the political feasibility of any such

approach in the short and medium term. So long as coercive criminal jus-

tice responses remain necessary to optimal rehabilitation, the arguments

that we have presented in favour of coercive MMT will hold.

6 | CONCLUSION

Methadone programs reduce the severe health risks associated with

heroin dependence, assist drug offenders in achieving broad psychoso-

cial change, and achieve lasting criminal reform. In the past, implemen-

tation of these programs has been marred by controversy and protest

67Mcsherry, B., & Freckelton, I. (Eds). (2013). Coercive care: Rights, law and

policy. Abingdon, Oxon: Routledge. For another example of this practice,

see: L vs. RIDCA Central (Regional Disability Care Agency: 2010). 68Von Hirsch, A., & Ashworth, A. (2005). Proportionate sentencing: Exploring

the principles. Oxford: Oxford University Press. 69Jesper Ryberg takes the argument one step further, claiming that a medi-

cal intervention alone could fulfil the proportionality requirement by virtue

of the nature of the inconvenience and unpleasant sensations that it inflicts

on an offender. See: Ryberg, op. cit. note 64. 70See, for example, Barn, G. (2016). Can medical interventions serve as

’criminal rehabilitation’? Neuroethics. Doi: 10.1007/s12152-016-9264-9. 71Lippke, op. cit. note 63. 72Tadros, op. cit. note 61.

73Ibid.; Lippke, op. cit. note 63. 74Douglas, op. cit. note 50. 75Fischer, B., Oviedo-Joekes, E., Blanken, P., Haasen, C., Rehm, J.,

Schechter, M. T., . . . van den Brink, W. (2007) Heroin-assisted treatment

(HAT) a decade later: A brief update on science and politics. Journal of

Urban Health, 84(4), 552–562.

D’HOTMAN ET AL.412  |    

by those who hold coercive treatment to be impermissible. We have

outlined an ethical case in favour of such programs and responded to

several possible objections. Contingent on encouraging results from

further enquiry into the issue of mental interference, we hope that the

findings outlined in this paper will help to stimulate the development of

more defensible public policy in this area.

CONFLICT OF INTEREST

The authors declare no conflict of interest.

ORCID

Daniel D’Hotman http://orcid.org/0000-0003-1616-6913

AUTHOR BIOGRAPHIES

DANIEL D’HOTMAN is currently completing his final year of medical train-

ing in Melbourne, Australia. In 2015, he completed a Bachelor of Medi-

cal Science (Hons) at the Oxford Uehiro Centre for Practical Ethics,

achieving First Class Honours with publications in Public Health Ethics

and The Lancet. He is also completing a Graduate Diploma of Econom-

ics at London School of Economics. Daniel is passionate about applying

bioethical principles to health system transformation; he recently

worked on a project with the World Economic Forum to improve out-

comes in diabetes and health failure patients across the U.S.A. and

Canada.

JONATHAN PUGH is a Postdoctoral Research Fellow in Applied Moral Phi-

losophy at the University of Oxford. He is currently leading a Wellcome

Trust-funded project entitled ‘The Ethics of Novel Therapeutic Applica-

tions of Deep Brain Stimulation’. He previously worked on the Well-

come Trust-funded project ‘Neurointerventions in Crime Prevention:

An Ethical Analysis’. His research interests lie primarily in issues con-

cerning personal autonomy in practical ethics, particularly topics per-

taining to informed consent. He has also written on the ethics of

human embryonic stem cell research, criminal justice, human enhance-

ment, and gene-editing.

THOMAS DOUGLAS trained in clinical medicine and philosophy and works

in applied and normative ethics. He is currently Senior Research Fellow

in the Oxford Uehiro Centre of Practical Ethics, Faculty of Philosophy,

University of Oxford; Editor of the Journal of Medical Ethics and the

Journal of Practical Ethics; Principal Investigator on the Wellcome

Trust-funded project ‘Neurointerventions in Crime Prevention: An Ethi-

cal Analysis’; and Lead Researcher in the Oxford Martin Programme on

Collective Responsibility for Infectious Disease.

How to cite this article: D’Hotman D, Pugh J, Douglas T. When

Bioethics. 2018;32:

405– https://doi.org/10.1111/bioe.12451

D’HOTMAN ET AL.      |  413

413.

is coercive methadone therapy justified?

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