University of Connecticut University of Connecticut
OpenCommons@UConn OpenCommons@UConn
Connecticut Law Review School of Law
1-2023
The Right to Personality: Navigating the Brave New World of The Right to Personality: Navigating the Brave New World of
Personality-Altering Interventions Personality-Altering Interventions
Christopher S. Sundby
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Interventions" (2023).
Connecticut Law Review
. 564.
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289
CONNECTICUT
LAW REVIEW
V
OLUME
55 J
ANUARY
2023 N
UMBER
2
Article
The Right to Personality:
Navigating the Brave New World
of Personality-Altering Interventions
C
HRISTOPHER
S.
S
UNDBY
As neuroscience progresses, policy makers will have an increasing arsenal of
behavior-modifying interventions at their disposal to deploy in the hopes of
reducing recidivism and making the criminal justice system more rehabilitative.
While these interventions are promising, they also can pose grave risks to individual
liberty interests that are insufficiently acknowledged, much less protected, by
current jurisprudence. Specifically, the current legal regimes and proposed
alternatives either fail to identify the nature of the liberty at stake by overly focusing
on physical side effects to the exclusion of thought- and personality-altering side
effects, reject completely the potential for these interventions to improve the justice
system, or inadvertently invite the medicalization of crime. This Article proposes a
balancing test centered around the Fifth and Fourteenth Amendment liberty interest
in “personality integrity.” This liberty interest has roots in the “intellectual prong”
of the liberty interest referenced in the Supreme Court’s forced medication
jurisprudence. This approach allows for the adoption of some beneficial
interventions as technology progresses, avoids subjective assessments of “good” or
“bad” personality traits, and properly protects against the coercive alteration of
the core identity of the individual.
A
RTICLE
C
ONTENTS
INTRODUCTION ........................................................................................ 291
I.
DEFINING THE INTERVENTION ..................................................... 293
A.
T
HE
S
CENARIOS
.............................................................................. 294
B.
M
EDICAL
T
HERAPY
,
C
OGNITIVE
E
NHANCEMENT
,
AND THE
I
N
-B
ETWEEN
.................................................................... 296
C.
T
HE
C
URRENT
L
AW OF
F
ORCED
M
EDICATION
................................ 299
II.
POSSIBLE LEGAL REGIMES FOR EVALUATING
MANDATED INTERVENTIONS ........................................................ 302
A.
C
URRENT
A
LTERNATIVES
............................................................... 302
B.
T
HE
P
ERSONALITY
I
NTEGRITY
T
EST
............................................... 306
III.
THE PERSONALITY INTEGRITY TEST AS APPLIED ................... 312
CONCLUSION ............................................................................................ 316
The Right to Personality:
Navigating the Brave New World
of Personality-Altering Interventions
C
HRISTOPHER
S.
S
UNDBY
*
I
NTRODUCTION
Does the state ever have the right to make a defendant a better person
against their will? The near-universal first reaction is “No!” because the
mere question triggers images of dystopian societies like those depicted in
George Orwell’s 1984 and Aldous Huxley’s Brave New World.
1
Others may point to the more concrete abuses in the psychiatric
community’s history, such as defining homosexuality as a medical disorder
2
or awarding the Nobel Prize to the inventor of the frontal lobe lobotomy.
3
The question, however, is far more difficult to answer if asked in a context
where the mandatory treatment is seen as beneficial for the person rather
than merely forcing the person to bend to society’s will. In general, the
public favors rehabilitation over incarceration for nonviolent drug
offenders.
4
This support extends to at least some forms of mandatory
interventions. For example, a 2006 study showed that fifty-six percent of the
public found mandatory treatment and counseling programs for drug
offenders to be “often” a more appropriate sentence than jail time.
5
Similarly, sixty-one percent of the public support mandatory treatment and
counseling programs for nonviolent offenders under the age of twenty-five,
*
Lecturer in Law, University of Miami School of Law. Joint J.D./Ph.D. in Law and Neuroscience
from Vanderbilt University. Associate, Gelber Schachter & Greenberg, P.A. This project has benefited
from the thoughts and insights from a number of individuals, in particular, Owen Jones, Scott Sundby,
and John Meixner.
1
See e.g., G
EORGE
O
RWELL
,
N
INETEEN
E
IGHTY
-F
OUR
(1949); A
LDOUS
H
UXLEY
,
B
RAVE
N
EW
W
ORLD
(1932).
2
See generally Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5 B
EHAV
.
S
CIS
.
565
(2015)
(describing the history of the pathologization of homosexuality).
3
Egas Moniz: Facts, N
OBEL
P
RIZE
, https://www.nobelprize.org/prizes/medicine/1949/moniz/facts
(last visited Nov. 8, 2022).
4
See generally Matthew Clarke, Polls Show People Favor Rehabilitation over Incarceration,
P
RISON
L
EGAL
N
EWS
(Nov. 6, 2018), https://www.prisonlegalnews.org/news/2018/nov/6/polls-show-
people-favor-rehabilitation-over-incarceration/ (summarizing the findings of polls conducted by the Vera
Institute of Justice, the ACLU’s Campaign for Smart Justice, the Justice Action Network, and the John D.
& Catherine T. MacArthur Foundation).
5
P
RINCETON
S
URV
.
R
SCH
.
A
SSOCS
.
I
NT
’
L FOR
N
AT
’
L
C
TR
.
FOR
S
TATE
C
OURTS
, T
HE
NCSC S
ENTENCING
A
TTITUDES
S
URVEY
: A
R
EPORT
ON
THE
F
INDINGS
5–6 (2006), https://www.ncsc.org/
__data/assets/pdf_file/0021/25851/the-ncsc-sentencing-attitudes-survey.pdf [hereinafter P
RINCETON
S
URVEY
].
292 CONNECTICUT LAW REVIEW [Vol. 55:2
and sixty-three percent support mandatory education and job training.
6
The
answer to the question, in short, is far more nuanced than first assumed.
Granted, there are interventions that clearly go too far and offend basic
notions of justice, such as forced physical castration.
7
But while the line
between mandatory counseling for a twenty-three-year-old drug offender
and mandated surgical castration may be easy to draw, articulating a
standard for when the legal system should allow intervention across a wide
variety of situations is anything but easy. As science and technology
progress, new types of interventions will arise without the aura of medieval
barbarity that attaches to physical castration. Those new interventions may
offer the promise of a more efficient justice system but still imperil
important constitutional rights. Treatments that push this boundary are
already in use. Eight states currently have chemical castration laws in place.
8
While some scholars have already pointed to the coming challenges,
9
legal
theories drawing the line between interventions that promise a more
rehabilitative criminal justice system and those that offend core
constitutional rights remain underdeveloped.
Without an updated legal framework to address the new wave of
potential interventions, judges may shy away from nuance to facilitate
consistency, moving toward either the “medicalization” of crime as they
stretch the definition of mental illness to encompass more defendants or a
complete refusal to allow these interventions despite their potential
beneficial impact. This Article first explores how the current framework is
ill-prepared for the new wave of possible interventions science will offer. It
then looks at how the legal system might distinguish between appropriate
and inappropriate interventions. The Article conducts this examination by
addressing the issue of forced intervention through six sentencing scenarios
based on three defendants who can be subjected to either a behavioral or
chemical intervention.
6
Id. at 5.
7
See Furman v. Georgia, 408 U.S. 238, 265 (1972) (quoting Weems v. United States, 217 U.S. 349,
377 (1910) (noting in a discussion about which punishments violate the Eighth Amendment that a
Virginia court listed castration among cruel and unusual punishments)).
8
Ryan Cauley, Note, Is Chemical Castration a Progressive or Primitive Punishment? Balls Are in
Your Court, Iowa Legislature, 17
J.
G
ENDER
R
ACE
&
J
UST
.
493,
498
(2014)
(noting California, Florida,
Iowa, Louisiana, Montana, Texas, and Wisconsin have castration laws on the books, and Georgia and
Oregon repealed chemical castration laws); Mike Cason, Alabama Gov. Kay Ivey Signs ‘Chemical
Castration’ Bill into Law, AL.
COM
,
https://www.al.com/news/2019/06/alabama-gov-kay-ivey-signs-
chemical-castration-bill-into-law.html (June 10, 2019, 5:36 PM).
For a discussion and comparison of the
different structures of the state statutes, see Edward A. Fitzgerald, Chemical Castration: MPA Treatment
of the Sexual Offender, 18 A
M
.
J.
C
RIM
.
L.
1,
10–12 (1990); John F. Stinneford, Incapacitation Through
Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity, 3 U.
S
T
.
T
HOMAS
L.J. 559, 578–82 (2006).
9
See, e.g., Henry T. Greely, Neuroscience and Criminal Justice: Not Responsibility but Treatment,
56 U.
K
AN
.
L.
R
EV
.
1103,
1137–38 (2008); Adrian Barton, Sentenced to Treatment? Criminal Justice
Orders and the Health Service, 19
C
RITICAL
S
OC
.
P
OL
’
Y
463
(1999).
2023] THE RIGHT TO PERSONALITY 293
Part I examines these scenarios under the Supreme Court’s current legal
standards, announced in Washington v. Harper and Sell v. United States, for
the forced medication of mentally ill defendants.
10
As will be shown, the
Harper-Sell standard for the forced administration of antipsychotics, with its
focus on “medical appropriateness” and physical symptoms, is ill-suited to
evaluate the overall appropriateness of these types of interventions.
11
Instead, new interventions generally fall into a middle ground between
medical treatment and cognitive enhancement: that is, the purpose of the
imposed intervention is neither to treat a medical ailment nor to enhance a
healthy individual’s potential beyond the norm, but rather to allow the
defendant to reach his societal potential by removing or defusing an
impediment to living a productive life. This Article argues that interventions
aimed at this middle ground require a new legal framework to assess their
legality and appropriateness.
Part II evaluates several legal approaches that have been proposed for
deciding the appropriateness of these types of interventions. After detailing
the shortcomings of these proposals, the Article proposes an alternative
solution that turns upon finding a substantive liberty interest in “personality
integrity” within the Fifth and Fourteenth Amendments. This section argues
that the justice system should not focus on whether the intervention is
chemical or physical; rather, the inquiry should evaluate what aspect of the
defendant the intervention targets, distinguishing between mere behavioral
manifestations and core personality traits.
Next, in Part III, the Article discusses the legal basis for this liberty
interest and explores how each scenario would be evaluated under the
proposed “personality integrity” model. Unlike the current approaches, the
recognition of a liberty interest in personality integrity can maximize the
promise that some new interventions will offer for the betterment of a
defendant’s life and society’s safety, while still providing safeguards against
the types of abuse that occur too often.
12
I. D
EFINING THE
I
NTERVENTION
Neuroscience has already started to carve out a role within the criminal
justice system. Numerous articles and books have helped to improve the
criminal justice system by improving our understanding of culpability
10
See generally Washington v. Harper, 494 U.S. 210 (1990); Sell v. United States, 539 U.S. 166
(2003).
11
See infra Section I.C.
12
England chemically castrated somewhere between 50,000 and 100,000 individuals for being
homosexual under an 1885 “gross indecency” law that was not fully repealed until 2003. Peter Tatchell,
The Imitation Game: Homophobia Still Persists Long After Alan Turing’s Death, P
INK
N
EWS
(Nov. 19,
2014), https://www.pinknews.co.uk/2014/11/19/peter-tatchell-homophobia-still-persists-long-after-alan-
turings-death/.
294 CONNECTICUT LAW REVIEW [Vol. 55:2
(including our conceptualization of mens rea
13
and how to account for age),
14
the insanity defense,
15
evidence at trial,
16
and how we decide to punish,
17
among numerous other areas. Indeed, an entire research network was created
to explore the interaction between neuroscience and the law.
18
This next
section discusses another potential role of neuroscience in the criminal justice
architecture—as part of the sentence once guilt has been determined.
A. The Scenarios
To explore the nuances of the dangers and advantages of interventions
intended to alter a defendant’s behavior, this Article will use six sentencing
scenarios involving three defendants ordered to receive mandated
interventions as part of their sentences. While two of the chemical
interventions described in these hypothetical scenarios are in current use, the
other four scenarios assume the drugs involved have advanced to the point
where they produce only nominal physical side effects. For clarity of
analysis, this Article also assumes that all of the interventions have been
empirically shown to be effective in lowering recidivism for the class of
crimes targeted, and that the legislature has passed legislation granting the
power to impose these interventions as part of a criminal sentence.
Defendant One was convicted of his third DUI in five years after
driving off the road following a typical night of heavy drinking. The
defendant is a self-admitted alcoholic but has consistently refused to seek
treatment. In scenario 1A, the judge deems the defendant’s repeated DUIs
and failure to voluntarily seek treatment a risk to the public and, in addition
to a prison term, orders compulsory Alcoholics Anonymous (AA)
attendance as part of the sentence. In scenario 1B, the judge doubts the
13
E.g., Francis X. Shen et al., Sorting Guilty Minds, 86 N.Y.U.
L.
R
EV
. 1306 (2011); Owen D.
Jones et al., Detecting Mens Rea in the Brain, 169 U.
P
A
.
L.
R
EV
. 1 (2020); Matthew R. Ginther et al.,
The Language of Mens Rea, 67 V
AND
.
L.
R
EV
. 1327 (2014).
14
E.g., Alexandra O. Cohen et al., When Does a Juvenile Become an Adult? Implications for Law
and Policy, 88 T
EMP
.
L.
R
EV
. 769 (2016); Francis X. Shen et al., Justice for Emerging Adults after Jones:
The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to
Defendants Ages 18 and Older, 97 N.Y.U.
L.
R
EV
.
101 (2022).
15
E.g., N.J. Schweitzer & Michael J. Saks, Neuroimage Evidence and the Insanity Defense, 29
B
EHAV
.
S
CIS
.
&
L.
592 (2011); Walter Sinnott-Armstrong & Ken Levy, Insanity Defenses, in T
HE
O
XFORD
H
ANDBOOK OF
P
HILOSOPHY OF
C
RIMINAL
L
AW
299 (John Deigh & David Dolinko eds., 2011).
16
E.g., Deborah W. Denno, The Myth of the Double-Edged Sword: An Empirical Study of
Neuroscience Evidence in Criminal Cases, 56 B.C.
L.
R
EV
. 493 (2015); Martha J. Farah et al., Functional
MRI-Based Lie Detection: Scientific and Societal Challenges, 15 N
ATURE
R
EVS
.
N
EUROSCIENCE
123
(2014); David L. Faigman et al., Group to Individual (G2i) Inference in Scientific Expert Testimony, 81
U.
C
HI
.
L.
R
EV
. 417 (2014); John B. Meixner, Jr., Modern Sentencing Mitigation, 116 N
W
. U.
L.
R
EV
.
1395 (2022) (examining the effect of neuroscience evidence at sentencing).
17
E.g., Matthew R. Ginther et al., Parsing the Behavioral and Brain Mechanisms of Third-Party
Punishment, 36 J.
N
EUROSCIENCE
9420 (2016) (providing a blueprint of the brain mechanisms by which
neutral third parties render punishment decisions).
18
Mission of the Research Network, M
AC
A
RTHUR
F
OUND
.
R
SCH
.
N
ETWORK ON
L.
& N
EUROSCIENCE
, https://www.lawneuro.org/mission.php (last visited Nov. 9, 2022).
2023] THE RIGHT TO PERSONALITY 295
efficacy of AA and instead opts for a chemical intervention and orders the
compulsory administration of a drug called Antabuse,
19
which he believes
will be more effective. The drug interferes with the metabolism of alcohol
and causes an array of unpleasant side effects when alcohol is consumed,
including flushing of the face, headache, nausea, vomiting, weakness,
blurred vision, and sweating.
20
Defendant Two was convicted of a sex crime against a child under
twelve years of age. The defendant does not have a pedophilia diagnosis or
any other diagnosable mental illness but is a repeat sex offender. In scenario
2A, in addition to a lengthy prison sentence, the judge imposes mandated
intensive behavioral therapy, including plethysmograph and Abel testing.
Both tests are designed to measure the subject’s arousal to sexual stimuli,
which can then be used to help the subject improve the regulation of his
sexual desires.
21
In scenario 2B, the judge, having heard about recent (and
currently unrealized) advances that have eliminated virtually all of the
physical side effects,
22
mandates chemical castration of the defendant in
addition to a lengthy prison sentence.
23
Chemical castration significantly
reduces the activity of testosterone in a person, thereby significantly
lowering their sexual drive.
24
Defendant Three was convicted of assault and battery. The defendant
reacted violently after the victim complained that the defendant had cut in
line at a movie theater. The defendant has a long history of grossly
disproportionate aggressive outbursts in response to minor provocations, but
the defendant does not have a diagnosable mental illness. In scenario 3A, in
addition to a prison sentence, the judge orders the defendant to attend anger
management classes to learn effective coping strategies to deal with his
aggression. In scenario 3B, in place of classes, the judge orders the
administration of a drug he read about in the New England Journal of
Medicine, a 5-HT
1
agonist that significantly reduces aggressive behavior
19
Antabuse is a trade name for disulfiram. See Disulfiram,
M
EDLINE
P
LUS
,
https://medlineplus.gov/druginfo/meds/a682602.html
(Aug. 15, 2017).
20
This is not a complete list of the side effects caused by the current form of Antabuse. The more
severe side effects have not been included in this hypothetically improved form of the drug. For a full
list of current side effects, see id.
21
See United States v. Cope, 527 F.3d 944, 949 n.1 (9th Cir. 2008) (citing United States v. Weber,
451 F.3d 552, 562, 567 (9th Cir. 2006)) (discussing the testing procedures involved in both
plethysmograph testing and Abel testing).
22
In fact, the most common drug currently used for the procedure is medroxyprogesterone acetate
(MPA), which has severe side effects with prolonged use, including an irreversible drop in bone density,
diabetes mellitus, pulmonary embolisms, and depression. Stinneford, supra note 8, at 561. For an
excellent discussion of the dangers of the procedure and a critique of the current laws, see generally id.
23
At least eight states currently have some form of chemical castration statute for sex offenders.
See sources cited supra, note 8.
24
Stinneford, supra note 8, at 561; see also T. Howard Stone et al., Sex Offenders, Sentencing Laws,
and Pharmaceutical Treatment: A Prescription for Failure, 18 B
EHAV
.
S
CIS
.
&
L. 83, 96–97 (2000)
(discussing the effects of MPA on sexual desire and behavior).
296 CONNECTICUT LAW REVIEW [Vol. 55:2
when taken daily by increasing the activity of serotonin, a neurotransmitter,
in the brain.
25
The following table summarizes the six scenarios:
T
ABLE
1
D
EFENDANT
C
RIME
D
IAGNOSED
M
EDICAL
C
ONDITION
I
NTERVENTION
Defendant 1 DUI Alcoholism
1A: Alcoholics
Anonymous
1B: Antabuse
a
dministration
Defendant 2
Sex crime
against a child
less than twelve
years of age
None
2A: Behavioral
therapy
2B: Chemical
castration
Defendant 3
Assault
and battery
None
3A: Anger
management classes
3B: 5-HT
1
agonist
administration
B. Medical Therapy, Cognitive Enhancement, and the In-Between
Under traditional approaches, these six interventions would be classified
as either a medical treatment or as cognitive enhancement with the
classification based upon the principle that, “[t]herapy treats disease and
enhancement improves normal abilities.”
26
A drug to alleviate the symptoms
of schizophrenia, for example, would be medical treatment, while a
stimulant that increases mental functioning would constitute a cognitive
25
Animal research suggests that administration of a 5-HT
1
agonist (the drug that increases the
activity of the neurotransmitter serotonin on a specific type of serotonin receptor) may significantly
reduce displays of aggressive behavior. Solomon Umukoro et al., Aggressive Behavior:
A Comprehensive Review of Its Neurochemical Mechanisms and Management, 18
A
GGRESSION
& V
IOLENT
B
EHAV
. 195, 201 (2013).
26
Anjan Chatterjee, Opinion, Cosmetic Neurology: For Physicians the Future Is Now, 6 V
IRTUAL
M
ENTOR
367, 368 (2004).
2023] THE RIGHT TO PERSONALITY 297
enhancement.
27
As would be expected, both medical treatments and
cognitive enhancements raise legal and ethical issues that have caused
spirited legal and medical debates over their appropriate uses.
28
The mandatory interventions in the six scenarios, however, pose
difficult questions in part because they fall somewhere on the spectrum
between medical treatment and cognitive enhancement. Two of our
defendants do not have a “disease” for the therapy to treat. The third,
Defendant One, has alcoholism, which is not universally considered a
disease
29
and at a minimum is treated in a categorically different manner
than traditionally conceived diseases such as leukemia.
30
Nor do our
interventions properly qualify as enhancements since our defendants do not
have “normal” functioning as to the targeted trait or characteristic. None of
the interventions in our scenarios are aimed at making the defendant better
than average through improvements, only closer to average. Indeed, the
interventions are targeted at defusing a trait or characteristic that prevents
the defendant from being able to follow societal and legal rules.
One of the first cases in the United States to result in a sentence
including chemical castration involved just such a defendant. In that case,
the Michigan Court of Appeals described the defendant as “like a furnace
which overheats a house if the thermostat is set too high”
31
and saw the use
of chemical castration as a way to “reset” the thermostat.
32
Rather than shoehorn the interventions into the category of medical
treatment or cognitive enhancement, this Article proposes recognizing a
27
One survey showed that almost seven percent of U.S. college students have taken stimulants in
the hopes of achieving higher grades. Henry Greely et al., Towards Responsible Use of
Cognitive-Enhancing Drugs by the Healthy, 456 N
ATURE
702, 702 (2008).
28
See, e.g., Cauley, supra note 8, at 494–95 (“Chemical castration . . . could serve all four of the
sentencing goals of our modern penal system. Similar to drug-addicted criminals who undergo
therapeutic drug treatment while incarcerated, it seems evenhanded to offer sex criminals any available
corrective or rehabilitative drug treatments.”). But see Greely, supra note 9, at 1105 (“[W]e need to be
vigilant to avoid the over-enthusiastic adoption of unproven new ‘treatments’—practiced in the brains
of, at best, unsympathetic and, at worst, despised people.”). See generally Emily R. Murphy, Paved with
Good Intentions: Sentencing Alternatives from Neuroscience and the Policy of Problem-Solving Courts,
37 L
AW
&
P
SYCH
.
R
EV
.
83, 85 (2013) (highlighting “new neuroscience treatments” that could be used in
criminal justice settings, and the “risks of their misuse and potential harms to constitutional rights,
individual autonomy, and ultimately institutional competency and legitimacy”).
29
See, e.g., Matt Dean, Comment, Manning, Powell, and the Habitual Misunderstanding of
Addiction, 94 S
T
.
J
OHN
’
S
L.
R
EV
.
587,
610
(2020) (noting that although “[a]ddiction is now commonly
spoken of as a disease rather than a moral failing,” there is still a moral stigma surrounding it, so much
so that “[e]ven recovering alcoholics, for whom the disease model is the very foundation of their
treatment efforts, often speak of addiction in terms of ‘moral inventory,’ . . . and ‘character defects’”).
30
See James R. McKay & Susanne Hiller-Sturmhöfel, Treating Alcoholism ass a Chronic Disease:
Approaches to Long-Term Continuing Care, 33 A
LCOHOL
R
SCH
.
&
H
EALTH
356, 356 (2011) (describing
alcoholism interventions such as “group counseling [or] cognitive behavioral therapy” designed to
“reduce the need for additional treatment episodes”).
31
People v. Gauntlett, 352 N.W.2d 310, 313 (Mich. Ct. App. 1984) (vacating a sentence of chemical
castration for lack of authority because the state did not have a chemical castration statute in place).
32
Id.
298 CONNECTICUT LAW REVIEW [Vol. 55:2
third category in between the two. This approach results in a more accurate
conceptualizing of the interventions, which, in turn, allows a more nuanced
legal approach to evaluating them. In particular, it helps disassociate these
new interventions from the legal baggage that accompanies the medical
treatment and enhancement paradigms which do not capture what these
interventions aim to do. For example, when viewing an intervention as a
medical treatment, the focus, appropriately, is almost exclusively on the
benefit to the defendant, with society’s benefit only factored in the extreme
instances when a threat is posed to others. Acknowledging this middle
ground between treatment and enhancement allows for more robust
consideration of the benefit to society, without losing focus on the individual
in the way that a pure punishment paradigm endangers.
The spectrum of interventions—ranging from medical treatment on one
end, cognitive enhancement on the other end, and a category in between—is
best illustrated by comparison to an example from the physical domain.
Human growth hormone (HGH) is a naturally occurring hormone released
by the pituitary gland that plays an important role in growth and
development and in a range of “physiologic processes including skeletal and
organ growth, calcium homeostasis, lipolysis, and the regulation of lean
body mass.”
33
HGH has been administered in settings that would parallel
each of our categories. Some individuals with too-low HGH levels suffer
from a medical condition called Growth Hormone Deficiency (GHD) that
can lead to short stature and long-term health consequences.
34
External
recombinant HGH administration is one medical treatment option that helps
individuals reach subclinical height (within two standard deviations of the
population average) and can alleviate other symptoms.
35
In the mental health
field, the equivalent would be someone suffering from a medical condition
such as schizophrenia or bipolar disorder where drug therapy on a daily basis
enables them to function.
Some individuals, however, have below average levels of HGH, but not
low enough to meet the traditional clinical diagnosis of GHD.
36
Nonetheless,
some of these individuals choose to take HGH when young to allow them to
reach the average or above-average population height range.
37
Studies
33
David M. Siebert & Ashwin L. Rao, The Use and Abuse of Human Growth Hormone in Sports,
10 S
PORTS
H
EALTH
419, 419–21 (2018) (discussing the effect of age on the efficacy of HGH treatment
in dwarfism).
34
Michael B. Ranke & Jan M. Wit, Growth Hormone—Past, Present and Future, 14 N
ATURE
R
EVS
.
E
NDOCRINOLOGY
285, 291–92 (2018) (discussing the clinical presentation of GHD); Jeanina
Idriceanu et al., Efficacy of HGH Treatment in Pituitary Dwarfism—Age Does Matter, 32 E
NDOCRINE
A
BSTRACTS
¶ P903 (2013) (discussing the effect of age on the efficacy of HGH treatment in dwarfism).
35
Idriceanu et al., supra note 34.
36
Julia G. Halas & Adda Grimberg, Dilemmas of Growth Hormone Treatment for GH Deficiency
and Idiopathic Short Stature: Defining, Distinguishing, and Deciding, 72
M
INERVA
P
EDIATRICA
206,
210
(2020).
37
Id. at 218 fig.2.
2023] THE RIGHT TO PERSONALITY 299
suggest that in the United States physical height is correlated with social
esteem, leader emergence, and workplace performance.
38
This usage of
HGH is most akin to our middle category—treatment is not medically or
clinically necessary, but can provide benefits by removing impediments that
can substantially assist the individual to better integrate into society.
Still other individuals have normal levels of HGH but choose to take
HGH treatments in order to reach artificially high levels of muscle growth.
39
This usage clearly falls into the enhancement category: the individual is
already functioning at a level that allows them to participate fully in society
but wants to enhance their abilities or attributes further. Whether such
enhancements should be allowed or banned in arenas such as sport or
academia is beyond the scope of this Article, which focuses on treatment
directed at enabling the person to participate in everyday affairs that would
otherwise be impossible or difficult.
The defendants in the six scenarios all fall within the middle category
between medical therapy and cognitive enhancement. They do not have a
clinical diagnosis of a mental illness. Nor are the interventions properly
defined as cognitive enhancements because the defendants are not
functioning at a level where they are able to fully integrate into society.
Instead, they have an impediment that is preventing them from reaching their
full potential. To return to the Michigan Court of Appeals’ analogy, the goal
is to reset the thermostat; in other words, to remove an impediment that is
keeping the defendant from being able to function in society.
40
C. The Current Law of Forced Medication
Refining the categories for addressing different types of interventions
allows for a more productive discussion and analysis but does not in and of
itself answer how forced interventions aimed at this middle ground should
be legally addressed. As matters stand, any challenge to the mandated
interventions in our scenarios would likely require the imperfect adaptation
of the Supreme Court’s cases addressing forced administration of
antipsychotic medications or cruel and unusual punishments. As will be
seen, the legal tools currently in use are ill equipped to deal with the rapidly
changing world of behavioral, neurological, and pharmaceutical innovations
that invariably will make their way into the criminal justice system.
In 1990, the Supreme Court established the legal standard for forced
administration of antipsychotic medication to prisoners in Washington
v. Harper.
41
The State of Washington forcibly medicated Walter Harper with
38
Timothy A. Judge & Daniel M. Cable, The Effect of Physical Height on Workplace Success and
Income: Preliminary Test of a Theoretical Model, 89 J.
A
PPLIED
P
SYCH
.
428,
428
(2004).
39
Brian P. Brennan et al., Human Growth Hormone Abuse in Male Weightlifters, 20 A
M
.
J.
ON
A
DDICTIONS
9,
11–12 (2010) (discussing weightlifters’ abuse of HGH).
40
People v. Gauntlett, 352 N.W.2d 310, 313 (Mich. Ct. App. 1984).
41
494 U.S. 210 (1990).
300 CONNECTICUT LAW REVIEW [Vol. 55:2
antipsychotic medication following a robbery conviction and a diagnosis of
manic-depressive disorder.
42
Under the State’s policy, the initial decision to
medicate was not made by a judge, but rather in a hearing before a special
committee consisting of a psychiatrist, a psychologist, and the Associate
Superintendent of the medical center.
43
Harper was entitled to notice and had
access to a lay advisor who “understands the psychiatric issues,” but he was
not provided a lawyer.
44
Under the State’s procedure, Harper could not be
medicated during the hearing process and had the right to appeal to the
superintendent and to seek judicial review through a personal restraint
petition or extraordinary writ.
45
The Supreme Court found that the policy satisfied both the substantive
and procedural requirements of the Due Process Clause of the Fourteenth
Amendment.
46
In doing so, the Court recognized that Due Process provides
prisoners a significant liberty interest in refusing antipsychotic medication.
47
The Court held that courts can only require administration of antipsychotic
drugs when “the inmate is dangerous to himself or others and the treatment
is in the inmate’s medical interest.”
48
The Court found that when a mental
disability is the “root cause” of the threat posed to the inmate population, the
State’s interest in decreasing the danger necessarily includes an interest in
medically treating the defendant. The Court also found that the policy was
appropriately tailored to exclusively apply to mentally ill inmates,
49
and that
the procedural mechanisms of the policy were sufficient to ensure that the
decisions were neither arbitrary nor erroneous and therefore were
commensurate with Due Process.
50
The Court also suggested that having a
medical, rather than legal, arbiter in what was primarily a medical decision
may better protect the defendant’s interests.
51
In discussing Harper’s liberty interest, the Court noted in passing that
the drugs could cause an alteration of the “chemical balance in a patient’s
brain, leading to changes, intended to be beneficial, in his or her cognitive
processes.”
52
However, the vast majority of the opinion was focused on the
appropriateness of the medical intervention based on the strength of the
State’s justification and the severity and frequency of the drug’s physical
42
Id. at 213–14, 217.
43
Id. at 215.
44
Id. at 216–17.
45
Id. at 216.
46
Id. at 211.
47
Id. at 221.
48
Id. at 227 (1990). Two years later, the Court described Harper’s limitation on states’ ability to
force prisoners to take antipsychotic medication as requiring “a finding of overriding justification and a
determination of medical appropriateness.” Riggins v. Nevada, 504 U.S. 127, 135 (1992).
49
Washington v. Harper, 494 U.S. at 225–26.
50
Id. at 228.
51
Id. at 231.
52
Id. at 229.
2023] THE RIGHT TO PERSONALITY 301
effects.
53
While the Court gave substantial attention to both the American
Psychiatric Association and the American Psychological Association views
about the dangers of the physical side effects, the majority did not address
the cognitive side effects beyond the one sentence.
54
Thirteen years later, in Sell v. United States the Court was confronted
with the issue of whether the federal government could forcibly medicate a
defendant for the sole purpose of restoring him to competency to stand
trial.
55
The defendant, a former dentist, was indicted on fifty-six counts of
mail fraud, six counts of Medicaid fraud, one count of money laundering,
and the attempted murder of the arresting FBI agent.
56
The defendant, who
believed that “Government officials were trying to suppress his knowledge
about events in Waco, Texas, and had sent him to Alaska to silence him,”
had a long history of mental illness and was believed to suffer from either
delusional disorder or schizophrenia.
57
A magistrate judge granted the
government’s request to order forced medication based on two grounds.
First, the medication was necessary to treat the mental illness that was
causing Sell to pose a danger to himself and others.
58
Second, the medication
was necessary to restore him to competency to stand trial.
59
As provided by
the medical review policies, the defendant appealed the magistrate’s holding
to the district court.
60
The district court held that, while the finding of
dangerousness was clearly erroneous, involuntary medication was justified
to restore Sell to competency to stand trial.
61
After a divided Eighth Circuit panel affirmed the district court
decision,
62
the Supreme Court vacated it but declined to find that forced
medication for the sole purpose of competency is categorically
unconstitutional.
63
Rather, the Court held that the Constitution permits
involuntary administration of antipsychotics to render a defendant
competent only if certain factors are found to exist: the defendant is mentally
ill, he faces a serious criminal charge, the treatment is medically appropriate,
the treatment is substantially unlikely to have side effects that may
undermine the fairness of the trial, no less intrusive alternatives exist, and
53
Id. at 229–30.
54
Id.
55
539 U.S. 166, 169 (2003).
56
Id. at 170.
57
Id. at 171.
58
Id. at 171–72.
59
Id.
60
See United States v. Sell, No. 4:97-CR-290 DJS, 2001 WL 35838455, at *2–*3 (E.D. Mo.
Apr. 4, 2001).
61
Id. at *15, *22 (finding “[t]he record does not indicate that defendant has posed a danger to
himself or others during the period of his institutionalization” but that forced administration of
antipsychotic drugs “represent[s] the only viable hope of rendering defendant competent to stand trial”).
62
United States v. Sell, 282 F.3d 560, 562 (8th Cir. 2002).
63
Sell v. United States, 539 U.S. at 174, 186.
302 CONNECTICUT LAW REVIEW [Vol. 55:2
the treatment significantly furthers an important governmental interest.
64
While the Court reiterated the existence of a liberty interest in “avoiding the
unwanted administration of antipsychotic drugs,” it did not reference the
drug’s effects on cognition other than stating that the side effects must not
undermine fairness at trial.
65
Christopher Slobogin argues the Court’s jurisprudence in Harper and
Sell, taken together, allows three exceptions to a defendant’s right to refuse
medication: when the defendant is (1) a danger to self or others,
(2) incompetent to make treatment decisions, or (3) charged with a serious
crime.
66
Slobogin contends these exceptions come close to swallowing the
right altogether.
II. P
OSSIBLE
L
EGAL
R
EGIMES FOR
E
VALUATING
M
ANDATED
I
NTERVENTIONS
A. Current Alternatives
Using the Court’s reasoning in either Harper or Sell, the current
constitutional tests are inadequate to evaluate any of the three defendants in
the scenarios and whether they can be subjected to the mandated
interventions.
67
First, the Harper and Sell standards require that the
defendant is found to be “mentally ill.”
68
In our scenarios, however, none of
the defendants have a clinical diagnosis of mental illness.
69
While there is an
increasing movement toward treating substance abuse, such as alcoholism,
as a medical condition,
70
it would be alarming if a condition that is not
universally acknowledged as a disease could place a defendant at risk of
forced medication.
71
Without an alternative to Harper and Sell, however,
judges may move toward either the “medicalization” of crime, as they accept
stretched or strained definitions of mental illness to encompass defendants
64
Id. at 179.
65
Id. at 178–79.
66
See Christopher Slobogin, Commentary, Sell’s Conundrums: The Right of Incompetent
Defendants to Refuse Anti-Psychotic Medication, 89 W
ASH
.
U.
L.
R
EV
. 1523, 1525–26 (2012)
(discussing the effect of Sell on the government’s ability to forcibly medicate incompetent defendants).
67
The hypothetical scenarios are described supra, Section I.A.
68
See supra notes 49, 64, and accompanying text.
69
Furthermore, one limitation of requiring a clinical diagnosis is that clinical diagnoses are
developing all the time. The lack of a readily identifiable diagnosis—or a diagnosis that is socially
understood as legitimate—does not necessarily mean a person is neurotypical.
70
Josiah D. Rich et al., Opinion, Medicine and the Epidemic of Incarceration in the United States,
364 N
EW
E
NG
.
J.
M
ED
. 2081, 2081 (2011) (“Much of the increase in the prisoner census is a result of the
‘War on Drugs’ and our country’s failure to treat addiction and mental illness as medical conditions.”);
see also A
M
.
P
SYCHIATRIC
A
SS
’
N
,
D
IAGNOSTIC AND
S
TATISTICAL
M
ANUAL OF
M
ENTAL
D
ISORDERS
(5th ed. 2013), 490–497 (including Alcohol Use Disorder in the substance-related and addictive disorders
category).
71
For discussion of how alcoholism is regarded differently than traditionally conceived diseases,
see supra notes 29–30 and accompanying text.
2023] THE RIGHT TO PERSONALITY 303
in need of treatment, or an outright denial of the interventions without
assessing the potential positive impact on the defendant.
72
Without a more
principled framework that properly acknowledges the competing interests,
any normatively desirable outcome from this system would merely be the
result of chance.
In Harper, several justices argued for a broad understanding of the
liberty interest to refuse antipsychotic medication. In his dissent, Justice
Stevens criticized the majority for “ignor[ing]” the dual dimensions of both
a physical and intellectual liberty interest to avoid unwanted antipsychotic
drugs.
73
By arguing that liberty encompasses both a physical and
intellectual prong, Justice Stevens suggested that the majority opinion
provided too little protection for the latter.
74
If, as Justice Stevens argued,
the law should be concerned about more than the physical side effects of an
intervention and the effects on a fair trial, an alternative legal mechanism
to a substantive due process liberty interest in the right to be free from
antipsychotic medication is needed.
Even if the Harper-Sell framework were extended to defendants who
lack clinical diagnoses, it would still do a poor job protecting defendants’
interests, other than freedom from physical side effects. The cases’ focus on
“medical appropriateness”
75
is ill-suited for deciding what degree of forced
behavior alteration in a defendant is inappropriate, since not all defendants
suffer from a medical disease, as the defendants in the scenarios
demonstrate. What is “medically appropriate” for a person without an
illness? A court could easily interpret this as allowing one of two extremes:
either no interventions are ever allowed for defendants lacking relevant
diagnoses, or that any intervention that does not harm the person’s physical
health is permissible. As long as the procedural safeguards are met, either
interpretation could pass the Harper-Sell framework. In Harper, the effect
of an antipsychotic on cognition was cited as a reason why the state should
have to meet the Court’s test, but cognition was not included as a factor
within the test itself, and Sell did not change this.
76
This poses a problem for
72
See Stephen J. Morse, Blame and Danger: An Essay on Preventive Detention, 76 B.U.
L.
R
EV
.
113, 129 (1996) (warning against the dangers of “medicalizing” social problems and then granting the
state power to fix the problems).
73
Washington v. Harper, 494 U.S. 210, 237 (1990) (Stevens, J., dissenting).
74
Id. at 237–38 (“[B]ut [the majority] then virtually ignores the several dimensions of that liberty.
They are both physical and intellectual. . . . And when the purpose or effect of forced drugging is to alter
the will and the mind of the subject, it constitutes a deprivation of liberty in the most literal and
fundamental sense.”).
75
Sell v. United States, 539 U.S. 166, 183 (2003); Harper, 494 U.S. at 222 (majority opinion)
(emphasizing the importance of “ensur[ing] that the treatment in question will be ordered only if it is in
the prisoner's medical interests”).
76
Harper, 494 U.S. at 221–22; see Sell, 539 U.S. at 166, 178 (2003) (reaffirming only a narrow
liberty interest in the right to refuse antipsychotic medication and never discussing the cognitive effects
of the drugs other than to stipulate that the drugs cannot be administered if their side effects would
undermine the fairness of the trial).
304 CONNECTICUT LAW REVIEW [Vol. 55:2
scenarios like those contemplated in this Article where the interventions do
not cause physical side effects. Because sex offenders pose a danger to
others, for example, chemical castration could be deemed constitutional
under Harper and Sell so long as the proper procedure is followed, without
requiring a court to evaluate the degree to which the intervention would alter
the defendant’s character, how they would come to view themselves as a
person, or how they think.
Several alternatives have been proposed to better protect the intellectual
prong that Justice Stevens argued should be encompassed within a broader
understanding of the liberty interest. One proposal is to include a First
Amendment right to “freedom of mind” or “freedom of thought,” which had
been recognized by some lower courts in deciding forced medication cases
prior to Harper and Sell.
77
The Center for Cognitive Liberty and Ethics
(CCLE) has also advocated for this approach as a more effective means of
protecting the actual liberty interest at stake.
78
The Supreme Court, however,
has never invoked freedom of thought in its forced medication cases,
choosing instead to rely on the substantive due process right to be free from
unwanted medication, even when the drugs in question target the
defendant’s psychological functioning.
79
Additionally, while closer to the mark than the other alternatives, a
“freedom of thought” conceptualization still misses the nail because it fails
to offer any meaningful way to measure the intrusiveness of an intervention.
Any intervention interferes with “freedom of thought” to an extent. For
example, taking ibuprofen lessens the likelihood of an individual thinking
about their sore back, and an antipsychotic certainly interferes with an
individual’s cognitive processes, albeit in what most would consider a
constructive way. More on point, mandatory counseling interferes with
freedom of thought, but a majority of Americans support this type of
judicial intervention.
80
Overall, this approach seems well suited for the
medical intervention setting but ill-suited for the middle ground between
77
See, e.g., Bee v. Greaves, 744 F.2d 1387, 1393–94 (10th Cir. 1984) (holding that there is implicit
protection of the “capacity to produce ideas” within the First Amendment and that antipsychotics affect
this capacity); Scott v. Plante, 532 F.2d 939, 946 (3d Cir. 1976) (finding that drugs affecting mental
processes could infringe the defendant’s constitutional rights).
78
See C
TR
.
FOR
C
OGNITIVE
L
IBERTY
&
E
THICS
,
T
HREATS TO
C
OGNITIVE
L
IBERTY
:
P
HARMACOTHERAPY AND THE
F
UTURE OF THE
D
RUG
W
AR
15 (2004), available at
https://www.yumpu.com/en/document/read/23096785/pharmacotherapy-2004-center-for-cognitive-
liberty-ethics (stating that forced medication imperils “freedom of thought” and “cognitive liberty”). See
also Blitz, infra note 81, for a comprehensive and compelling case for recognizing a “freedom of mind”
in the First Amendment.
79
See generally Harper, 494 U.S. 210; Riggins v. Nevada, 504 U.S. 127, 133–35 (1992); Sell, 539
U.S. at 177–80, 186; see also Rodney J.S. Deaton, Neuroscience and the In Corpore-ted First
Amendment, 4
F
IRST
A
MEND
.
L.
R
EV
.
181, 183 (2006) (discussing the Court’s jurisprudence and how it
had never mentioned the Freedom of Speech Clause in forced medication cases, always preferring the
Fifth Amendment’s Due Process Clause).
80
See P
RINCETON
S
URVEY
,
supra note 5, at 2.
2023] THE RIGHT TO PERSONALITY 305
medical treatment and cognitive enhancement that this Article explores and
which new interventions are targeting. Operating in this middle ground, a
focus on freedom of thought seems to invite either the medicalization of
crime or the prohibition of any intervention, no matter how slight the effect
on the defendant or how great the State interest. While this approach is
defensible, it leaves on the table societally beneficial interventions that this
Article’s proposed test would allow while still building in safeguards for
the individual.
Another proposed alternative relies on the Eighth Amendment’s
prohibition of “cruel and unusual” punishment.
81
Several scholars, for
example, have argued that the chemical castration statutes currently in use
violate the Eighth Amendment,
82
although to date no court has struck down
any of the statutes.
83
The Supreme Court has invoked the Cruel and
Unusual Punishment Clause sparingly in the twentieth century in striking
down punishments based on their nature.
84
The two most notable
exceptions invoked the Eighth Amendment to hold that a State cannot
revoke the citizenship of a defendant even for a capital offense,
85
and that
a defendant may not be sentenced to hard and painful labor with permanent
official surveillance afterward.
86
Reliance on expansion of the Cruel and
Unusual Punishment Clause to reach these categories of cases thus seems
highly unlikely.
More fundamentally, the principles the Court considers in weighing
whether a punishment in cruel and unusual does not probe many of the
concerns that these interventions would raise because, much like the Court’s
reasoning in Harper and Sell, they focus too narrowly on physical pain. The
Court evaluates a punishment under the Cruel and Unusual Punishment
Clause by asking “(1) whether it violates the ‘dignity of man’ . . . ;
(2) whether it violates ‘evolving standards of decency’; (3) whether it
involves the ‘unnecessary and wanton infliction of pain’—that is, pain
[unrelated] to . . . retributive, deterrent, incapacitative[,] or rehabilitative
81
See generally Marc Jonathan Blitz, Freedom of Thought for the Extended Mind: Cognitive
Enhancement and the Constitution, 4 W
IS
.
L.
R
EV
.
1049 (2010) (arguing for a First Amendment “freedom
of mind” right as a limit on state power and as the basis for an individual right to cognitive enhancement);
Ginther et al., supra note 17 (providing a blueprint of the brain mechanisms by which neutral third parties
render punishment decisions); see also Greely, supra note 9, at 1132 (noting that mandatory treatments
used to reduce or prevent criminal behavior could be challenged under the Eighth Amendment).
82
See, e.g., Stinneford, supra note 8, at 578–82, 597–99; Haley A. Smith, Comment, Common
Enemy and Political Opportunity Leave Archaically Modern Sentencing Unchecked: The
Unconstitutionality of Louisiana’s Chemical Castration Statute, 59
L
OY
.
L.
R
EV
. 211, 217 (2013) (stating
that most scholars have challenged the constitutionality of chemical castration statutes under the Eighth
Amendment).
83
See, e.g., Stinneford, supra note 8, at 578–82; Smith, supra note 82, at 217.
84
The Court, of course, has used the Eighth Amendment far more readily in dictating procedures
to be used for the death penalty. See, e.g., Bucklew v. Precythe, 139 S. Ct. 1112 (2019) (denying a
petitioner’s claim that Missouri’s lethal injection procedures constitute cruel and unusual punishment).
85
Trop v. Dulles, 356 U.S. 86 (1958).
86
Weems v. United States, 217 U.S. 349 (1910).
306 CONNECTICUT LAW REVIEW [Vol. 55:2
goals; and (4) whether it involves ‘torture’ or ‘barbarous’” means.
87
While
interventions that forcibly alter a defendant’s behavior can be viewed as
violating “the dignity of man,” punishments that are typically deemed “cruel
and unusual” are those meant to be punitive and where the pain is a desired
part of the punishment. John Stinneford, for example, compellingly argues
that chemical castration is cruel because it represents an attitude that the
suffering of the person who is being punished is either unimportant or is
something to be enjoyed.
88
The interventions at issue in the scenarios, by
contrast, are being cast by the State as for the benefit of not only society but
also the defendant (and since the drugs in the scenarios are posited to have
evolved to having no significant physical side effects, they would not be
cruel and unusual in the traditional sense, unlike current iterations of
chemical castration, which may be). Furthermore, any harm that the
interventions inflict would not be readily apparent to the naked eye, making
it so even the most drastic intervention likely would not meet the subjective
deliberate indifference prong of the Court’s test for cruel and unusual
punishment in an institutional setting.
89
Lastly, the Eighth Amendment
approach also has the disadvantage of not allowing express consideration of
the medical and behavioral purposes that the Court has found to be relevant
under the Due Process clause and seems to prefer for these types of cases.
90
B. The Personality Integrity Test
A third alternative is to breathe life into the intellectual prong of the
substantive liberty interest recognized in Justice Stevens’s dissent in Harper.
This approach accounts for the Eighth Amendment’s “human dignity”
consideration, as well as the First Amendment’s “freedom of mind” interest,
but does so more directly through the Due Process Clause by finding a
substantive liberty interest in “personality integrity.” Instead of trying to
adapt case law or amendments that do not fully fit or vindicate the interests
87
Stinneford, supra note 8, at 563–64 (footnotes omitted).
88
Id. at 566.
89
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that the Eighth Amendment is violated
when prisons do not take reasonable steps to ensure a prisoner’s safety “and, as a result, he experience[s]
severe pain or suffering without any penological justification”). Scholars have argued that solitary
confinement violates the Eighth Amendment. See Federica Coppola, The Brain in Solitude: An (Other)
Eighth Amendment Challenge to Solitary Confinement, 6 J.L.
&
B
IOSCIENCES
184,
214–18
(2019). One
hurdle, however, is that the harm is not readily apparent to prison guards or wardens—the damage is to
the structural and functional integrity of the brain, which is not obvious to physical observation and so
may not amount to subjective deliberate indifference. Id.
90
The Court has shown a willingness to consider neuroscience evidence in its Cruel and Unusual
Punishment Clause jurisprudence. See, e.g., Roper v. Simmons, 543 U.S. 551, 569–71 (2005)
(referencing neuroscience evidence in support of finding the death penalty inappropriate for juveniles);
Graham v. Florida, 560 U.S. 48, 68 (2010) (citing “brain science” to find the imposition of life without
parole to juveniles for nonhomicide offenses to be “cruel and unusual” under the Eighth and Fourteenth
Amendments because juveniles lack fully mature brains, which affects behavior and impulse control).
2023] THE RIGHT TO PERSONALITY 307
at stake, recognizing a liberty interest would allow for a direct and more
productive means of confronting both the dangers and benefits that arise in
a world witnessing astonishing advances in neuroscience and our
understanding of the interconnection between the brain and behavior.
The Merriam-Webster dictionary defines personality as “the complex
of characteristics that distinguishes an individual” or “a set of distinctive
traits and characteristics.”
91
Similarly, the APA Dictionary of Psychology
defines personality, in part, as “the enduring configuration of characteristics
and behavior that comprises an individual’s unique adjustment to life,
including major traits, interests, drives, values, self-concept, abilities, and
emotional patterns.”
92
While this Article does not presume to delve into the
various theories of personality, nearly all personality models stipulate that
there is a hierarchical structure to the traits that collectively constitute a
personality.
93
As such, there is a range of traits varying from the relatively
specific to the relatively abstract.
94
For example, the predominant
dimensional models of general personality structure are the five-factor
model and its variants.
95
While the naming varies, these “Big Five” factors
tend to be grouped as neuroticism, agreeableness, conscientiousness,
extraversion, and openness.
96
These, in turn, can be broken down into
specific response-level traits. In sum, the personality hierarchy can be
thought of as building from specific response level, to habitual response
level, to trait level, to factor level.
97
A legal test centered on personality integrity would look at how a
proposed intervention would affect these five basic personality traits, while
taking into account the State’s interest in the intervention. This Article
proposes a four-part balancing test: (1) the existence of empirical data
showing that the intervention effectively reduces recidivism for the specific
crime or specific class of crime in question; (2) the seriousness of the offense
and the substantiality of the State’s interest in protecting the public from that
class of crime; (3) the side effects of the intervention as assessed by a
medical professional; and (4) the effects of the intervention on core
personality traits, as assessed by a scientifically recognized model.
91
Personality, M
ERRIAM
-W
EBSTER
, https://www.merriam-webster.com/dictionary/personality
(last visited Nov. 7, 2022).
92
Personality, APA
D
ICTIONARY OF
P
SYCHOLOGY
,
https://dictionary.apa.org/personality (last
visited Nov. 27, 2022).
93
Robert F. Krueger & Kristian E. Markon, The Role of the DSM-5 Personality Trait Model in
Moving Toward a Quantitative and Empirically Based Approach to Classifying Personality and
Psychopathology, 10 A
NN
.
R
EV
.
C
LINICAL
P
SYCH
. 477, 483 (2014).
94
Id.
95
Thomas A. Widiger et al., Basic Personality Model, 21 C
URRENT
O
P
.
P
SYCH
. 18, 18 (2018).
96
See, e.g., Kristian E. Markon, Hierarchies in the Structure of Personality Traits, 3 S
OC
.
& P
ERSONALITY
P
SYCH
.
C
OMPASS
812, 817 (2009).
97
See Sampo V. Paunonen, Hierarchical Organization of Personality and Prediction of Behavior,
74 J.
P
ERSONALITY
&
S
OC
.
P
SYCH
. 538, 539 fig.1 (1998).
308 CONNECTICUT LAW REVIEW [Vol. 55:2
The “personality integrity” test thus recognizes the importance of certain
traits to one’s personality while acknowledging a role for state intervention
if an individual’s behavior is dangerous to society and weighs the factors
accordingly. For example, an intervention that altered a specific response-
level trait or a “Big Five” personality trait in only a minor manner could be
mandated based on a lesser state interest, but an intervention that significantly
altered a primary factor would require a far more substantial State interest to
justify the intervention, and there may be a point where intervention is never
justified no matter how great the State interest.
98
For example, as discussed
more fully in Part III, an intervention that only affects a person’s propensity
to drink alcohol would require far less of a State interest than one that affects
a person’s general impulse control and sensation-seeking.
99
In this way, the test prevents the “destruction of the personality,” which
some scholars have likened to the death penalty,
100
while still allowing the
benefits of some interventions when the State’s interest is sufficiently
substantial and the personality impact sufficiently minor.
101
And by
reframing the substantive liberty interest as one anchored in personality
integrity, the test centers the debate on what the justice system should be
concerned about: the weight of the State’s interest and the degree to which
it infringes upon an individual’s core personality.
Furthermore, sentencing guidelines already provide a potential
framework to guide the evaluation of the State's interest. Similar to the
guidelines’ current advisory role, they would not be binding on a judge as
the proper measure of the State’s interest, but the test could require a judge
to properly calculate the guidelines and consider them in weighing this
factor. This would make the personality integrity test more administratively
feasible and more familiar to the jurists who would have to employ it.
One aspect of the personality integrity test that warrants further
explanation is that it does not distinguish between chemical (drug-based)
and behavioral interventions. The test uses a unified approach for several
reasons. First, the test recognizes that, regardless of whether the intervention
98
Indeed, there may be a point at which the trait is too central to be altered regardless of the weight
of the State’s interest. Where, and whether, to draw that line, however, is an issue that is beyond the
scope of this Article, and it would likely have to be sorted out by the courts and legislature over time.
99
See infra text following note 122.
100
For example, Henry Greely has likened the destruction of a person’s personality to the death
penalty, stating: “A biological organism of the species Homo sapiens continues to exist, but it is not the
person who began the treatment.” Greely, supra note 9, at 1135. The proposed test acknowledges the
importance of his point while also recognizing that not all efforts to change personality traits are
tantamount to imposing the death penalty. Id.
101
How to draw the line between a core personality trait and a more peripheral one will largely
depend on which personality model is adopted. The DSM-5 lent support to dimensional trait theory but
included it in a supplemental section, suggesting more research needs to be done. See A
M
.
P
SYCHIATRIC
A
SS
’
N
, supra note 70, at 772–74. Exactly what model to adopt requires an in-depth understanding of the
science and an evaluation of societal values that is best left to the legislature and is beyond the scope of
this Article.
2023] THE RIGHT TO PERSONALITY 309
is chemical or behavioral, it is still compulsory and therefore poses an equal
affront to the individual’s autonomy.
102
Moreover, we tend to intuitively
differentiate between chemical and behavioral interventions in part because
of the perceived danger of side effects. However, even if the risk of side
effects will usually be greater with chemical interventions, the third factor
of the test ensures a medical professional will consider potential side effects
in all cases.
One similarly may be inclined to distinguish between chemical and
behavioral interventions based on likely efficacy. Because one of the key
determinants in behavioral therapy’s effectiveness is a patient’s willingness
to participate and try to change their behavior,
103
where the intervention is
being mandated, chemical interventions often will be more effective.
104
The
superior efficacy of a drug over compulsory behavioral intervention,
however, cannot be assumed, as it will always depend on the strength of the
science and assumptions behind it; by treating chemical and behavioral
interventions under the same balancing test, the efficacy of the intervention
is considered directly regardless of whether it is chemical or behavioral.
For example, some scholars have questioned the efficacy of chemical
castration in reducing recidivism rates for sex offenders. They argue this not
because of any doubt about the procedure’s proficiency at lowering the
effects of testosterone, which it unquestionably does, but because of an
underlying mistaken assumption about the motivations of sex offenders.
105
If, for example, sex offenders are primarily driven by a desire for domination
and power, rather than sexual desires, the drug may not lower recidivism
rates at all.
106
The first factor of the personality integrity test helps prevent
this type of error by requiring empirical support not just for the fact that the
drug does what it claims to do chemically, but that it also has an effect on
102
Conversely, it could be argued that, as with the forced administration of antipsychotics to
mentally ill patients, these interventions actually increase the defendant’s long-term autonomy. Elizabeth
Bennion, A Right to Remain Psychotic? A New Standard for Involuntary Treatment in Light of Current
Science, 47 L
OY
.
L.A.
L.
R
EV
.
251, 263 (2013) (“Because treatment will restore people to their ‘right
minds’ (thus increasing long-term capacities and freedoms), involuntary treatment is seen as promoting
rather than impeding autonomy in a broad sense.”).
103
Stefan G. Hofmann et al., The Efficacy of Cognitive Behavioral Therapy: A Review of
Meta Analyses, 36 C
OGNITIVE
T
HERAPY
&
R
SCH
. 427, 427 (2012) (“In order to achieve [treatment]
goal[s], the patient becomes an active participant in a collaborative problem-solving process . . . .”).
104
Friedrich Lösel & Martin Schmucker, The Effectiveness of Treatment for Sexual Offenders:
A Comprehensive Meta-Analysis, 1 J.
E
XPERIMENTAL
C
RIMINOLOGY
117,
129–31
(2005) (finding that
hormonal interventions were more effective than therapy in reducing sexual recidivism in sex offenders).
105
See e.g., Cauley, supra note 8, at 506 (citing the need to only use chemical castration on sex
offenders with pedophilic tendencies); Stinneford, supra note 8, at 567–68 (criticizing for lack of
efficacy, among other grounds, statutes that do not evaluate whether the defendant suffers from
pedophilia or any other mental illness prior to mandating chemical castration).
106
Pamela K. Hicks, Comment, Castration of Sexual Offenders, 14 J.
L
EGAL
M
ED
. 641, 647 (1993);
see A
NN
W
OLBERT
B
URGESS
&
B
RUCE
A.
B
ALDWIN
, C
RISIS
I
NTERVENTION
T
HEORY AND
P
RACTICE
298–307 (1981) (describing different patterns of assault depending on whether anger, power, or sexuality
is the offender’s dominant psychological component).
310 CONNECTICUT LAW REVIEW [Vol. 55:2
recidivism rates for the specific crime or class of crime for which the
defendant is convicted.
107
The test thus provides a layer of protection lacking
in many of the alternatives by requiring proof of the intervention’s efficacy
whether chemically or behaviorally based.
108
Finally, the distinction between behavioral and chemical interventions may
blur as technology progresses. The theory underlying Cognitive Behavioral
Therapy is that “maladaptive cognitions lead to changes in emotional distress
and problematic behaviors.”
109
As therapies get better at targeting these
“maladaptive cognitions,” behavioral interventions may come to more closely
resemble chemical interventions and raise many of the same concerns. For
example, many behavioral therapies are now using “neurofeedback training”
where the patient can watch their brain activity while completing therapeutic
tasks and thus change neural functioning.
110
Therefore, as a matter of biology
no reason exists to differentiate between chemical and behavioral
interventions because, ultimately, any change in behavior reflects a change in
the underlying biology producing the behavior.
111
One additional and potentially compelling argument for distinguishing
between the behavioral and chemical interventions needs to be addressed.
Perhaps what society really cares about is whether the ultimate decision to
“improve” oneself through treatment is voluntary; perhaps the right to the
pursuit of happiness implies a right against imposed happiness, or the
imposition of any trait.
112
While both forms of interventions are mandatory,
the effectiveness of a behavioral intervention is not guaranteed even if
attendance and participation can be. The hope, of course, is that by mandating
participation the therapy will have some positive effect, regardless of whether
the defendant desires it, but it cannot impose the effectiveness the same way
that a drug can.
113
Put another way, this may be why altitude training is
considered ethical for athletes, but blood doping is not: On some level, we
107
To get this empirical proof these interventions will likely have to be offered on a voluntary basis
before they can ever be a court-mandated intervention. While this step may delay the adoption of
potentially beneficial interventions, a phased adoption of the interventions with close monitoring during
the voluntary phase would compile the data necessary to potentially mandate the intervention in the future.
108
This type of data may be difficult to gather and may delay the implementation of many
interventions, but this is only one factor of the balancing test and is a burden best placed on the state.
109
Hofmann et al., supra note 103, at 427.
110
See, e.g., M.M. Lansbergen et al., ADHD and EEG-Neurofeedback: A Double-Blind
Randomized Placebo-Controlled Feasibility Study, 118 J.
N
EURAL
T
RANSMISSION
275, 278–280 (2011)
(conducting a placebo-controlled study testing the efficacy of electroencephalography (EEG)
neurofeedback on attention-deficit/hyperactivity disorder (ADHD)).
111
See, e.g., Greely, supra note 9, at 1134 (“Anything that changes behavior by changing controlled
actions will work, ultimately, by changing what neurons fire when and how.”).
112
T
HE
D
ECLARATION OF
I
NDEPENDENCE
para. 2 (U.S. 1776).
113
Lösel & Schmucker, supra note 104. But cf. Morton E. Tavel, The Placebo Effect: The Good,
the Bad, and the Ugly, 127
A
M
.
J.
M
ED
.
484,
484
(2014)
(discussing the importance of mental belief
in a drug treatment’s efficacy and defining the placebo effect as “any improvement of symptoms or
signs following a physically inert intervention” and finding it “present to a variable extent in all
therapeutic encounters”).
2023] THE RIGHT TO PERSONALITY 311
want an individual to have to work to improve and have the desire to do so.
And if this attitude extends to interventions intended to help an individual to
not criminally reoffend, while we may be willing to tolerate a degree of
intrusion by requiring attendance at therapy sessions, anything that takes
away the ultimate decision to “buy in” or not goes too far.
If society chooses to go this route, then all chemical interventions would
be forbidden because any improvement would not be “voluntary.” This
approach, however, is less compelling when discussing a response-level trait
or a minor effect on a “Big Five” trait. For example, there is a point at which
society’s interest in preventing drunk driving outweighs an individual’s
interest in choosing to drink, regardless of whether this is imposed via a
behavioral or a chemical intervention. When it comes to interventions that
significantly impact a “Big Five” personality trait, however, this distinction
may make sense, and an approach could be adopted which allows more
personality-intrusive behavioral interventions than chemical interventions.
As this example makes clear, however, this distinction is better served as a
factor within the personality integrity test rather than as a standalone test.
Furthermore, the justice system has not focused on the behavioral versus
chemical intervention distinction, as evidenced by the fact that eight states
already have chemical castration laws.
114
And if the legal system is going to
impose chemical interventions in certain scenarios, it is important to have in
place a test that weighs the important interests at stake. The personality
integrity test is one legal regime that would work to define when an
intervention infringes too much on an individual’s liberty whether that
intervention is chemical or behavioral.
The personality integrity test has several advantages over the
alternatives. First, it ensures that the constitutional conversation incorporates
as a central question the measurable degree to which the outward behavior
of the defendant is altered by requiring empirically backed effects on
recidivism. Second, it requires protection of the thought processes that
“cognitive freedom” seeks to protect by requiring inquiry into how an
individual’s core personality would be affected. Additionally, it does not
reject but accepts the idea that interventions in certain scenarios are
justifiable, while clearly delineating what the judicial inquiry should focus
on when deciding the appropriateness of a given intervention: how great the
State’s interest is in protecting the public and to what extent the intervention
alters the defendant’s core personality, as opposed to the effect on more
peripheral traits lower on the personality hierarchy. While these
requirements may delay the implementation of some beneficial interventions
and will not always provide a bright-line answer, unlike the current forced
medication or cruel and unusual punishment legal paradigms, they properly
focus on the interests at stake.
114
See supra note 8.
312 CONNECTICUT LAW REVIEW [Vol. 55:2
III. T
HE
P
ERSONALITY
I
NTEGRITY
T
EST AS
A
PPLIED
Let us now apply the general framework of the test to the six sentencing
scenarios described in Part I. Recall that the reason these scenarios are so
challenging is because they lie in the middle category of being neither
medically necessary (thus outside Harper’s purview) nor purely for
producing a “better personality.” Rather, they are treatments where the
objective is to address behavioral impediments that are preventing the
individual defendant from optimal integration into everyday society. The
interests at stake are therefore considerable for both the State and defendant
and require a framework that addresses the questions with an underlying
evidence-based understanding. It also should be noted at the outset that
because most of today’s chemical interventions have substantial physical
side effects and unsettled efficacy, the first factor (efficacy) and the third
factor (side effects) would significantly constrain forced administration of
most current chemical interventions before even reaching the other factors.
In an effort to anticipate the future, however, the scenarios will be
approached with the assumption that all of the interventions have now been
proven effective and have minimal physical side effects. As a result, the
analysis for each scenario will center on the second factor (the State’s
interest) and fourth factor (effect on personality).
115
Defendant One is an alcoholic and his sentence in scenario 1A includes
mandatory attendance at AA meetings. When evaluating the acceptability of
the intervention under the second factor, the court must ask: “How
substantial is the State’s interest in protecting the public from this class of
crime?” Given that this is the defendant’s third DUI, that DUIs pose a high
safety risk,
116
and that DUIs have a high rate of recidivism,
117
the court
should give considerable weight to the State’s interest in protecting the
public from this class of crime.
The State’s interest, however, must be balanced against the defendant’s
substantive liberty interest in personality integrity. Under the fourth factor,
the court must ask: “How central are the traits this intervention alters to his
personality?” AA, at least historically, is a faith-based, twelve-step treatment
model aimed at complete abstinence from alcohol consumption.
118
The
behavior the court is seeking to alter—alcohol consumption prior to driving
115
For a chart summarizing the six scenarios, see supra, p. 296 tbl.1.
116
N
AT
’
L
H
IGHWAY
T
RAFFIC
S
AFETY
A
DMIN
.,
T
RAFFIC
S
AFETY
F
ACTS
(2014),
http://www-nrd.nhtsa.dot.gov/Pubs/812102.pdf (“In 2013, 10,076 people were killed in
alcohol-impaired-driving crashes, . . . an average of one . . . every 52 minutes.”).
117
N
AT
’
L
H
IGHWAY
T
RAFFIC
S
AFETY
A
DMIN
.,
T
RAFFIC
T
ECH
N
O
.
85,
R
EPEAT
DWI
O
FFENDERS
IN THE
U
NITED
S
TATES
(1995), https://one.nhtsa.gov/people/outreach/traftech/1995/tt085.htm (“[A]bout
one third of all drivers arrested or convicted of DWI each year are repeat DWI offenders.”).
118
See Lee Ann Kaskutas, Alcoholics Anonymous Effectiveness: Faith Meets Science, 28 J.
A
DDICTIVE
D
ISEASES
145, 146 (2009).
2023] THE RIGHT TO PERSONALITY 313
a motor vehicle—is a low-level, response-specific personality trait with little
importance or effect as we move up the personality hierarchy.
AA, however, like most forms of intervention, targets a broader range
of beliefs and behavior, and these other effects must be considered by the
court as well. AA is premised on spiritual principles and building
constructive and supportive social networks.
119
While these do not seem
harmful, the spiritual aspect of AA, and particularly its historical religious
affiliation, implicates higher-order personality traits and must be considered
under the fourth factor. A religiously affiliated AA intervention, therefore,
will affect personality traits higher up the hierarchy and require a more
substantial state interest than a secular twelve-step program which does not
implicate the same concerns.
One can also imagine an individualized approach where the impact
varies based on whether the individual identifies as religious or spiritual,
with a greater impact if the intervention pushes a personality trait in a
different direction than the defendant’s current personality, rather than
heightening an already existing trait. This level of individuality, however,
would likely render the test too onerous to administer and would introduce
too great a risk of disparities. This type of matching may be beneficial,
however, for maximizing the efficacy of any given intervention.
120
Overall, even changes to these higher-order personality traits are being
targeted in a very context-specific scenario, so the effect should be small.
Thus, this intervention would pass the personality integrity test since the
State’s interest is very substantial and the intervention only significantly
affects relatively peripheral traits and only slightly affects more core traits.
In scenario 1B, the same defendant’s sentence includes forced
administration of a form of Antabuse that has been proven effective at
curbing drinking and has minimal side effects. Under the personality test,
this intervention is less offensive than AA since it does not have the religious
or spiritual element of AA. The drug only affects the person’s propensity to
drink alcohol. This evaluation would change, however, if the chemical
intervention also affected a trait higher up the personality hierarchy, such as
a person’s general impulse control.
121
This variation on the intervention may
be equally, or even more, effective than Antabuse since poor impulse control
is strongly tied to alcoholism, often predates alcohol use, and increases the
risk of relapse.
122
Yet, despite its potential efficacy, the personality integrity
test would require a far more substantial State interest for the impulse control
119
See id. at 153.
120
See Project MATCH Research Group, Matching Alcoholism Treatment to Client Heterogeneity:
Project MATCH Posttreatment Drinking Outcomes, 58 J.
S
TUD
.
ON
A
LCOHOL
7, 7 (1997).
121
This possibility may not be so far off. In 2010 a patent application was filed for a COMT
antagonist used to treat impulse control disorders such as kleptomania. Treating Impulse Control Disorders
with Catechol-O-Methyl-Transferase Inhibitors, U.S. Patent No. 8,598,235 (issued Dec. 3, 2013).
122
Robert F. Leeman et al., “Killing Two Birds with One Stone”: Alcohol Use Reduction Interventions
with Potential Efficacy at Enhancing Self-Control, 1 C
URRENT
A
DDICTION
R
EPS
.
41, 42 (2014).
314 CONNECTICUT LAW REVIEW [Vol. 55:2
treatment than is presented by a repeat DUI offender since a person’s general
impulse control is far more central to a person’s personality than their
propensity to drink. The drug no longer affects only how the defendant
interacts with alcohol, but how impulsive they are in response to any stimuli.
The personality integrity test’s different treatment of a drug that affects
general impulse control illustrates how this test avoids asking the dangerous
question of whether a given change in personality is desirable. For example,
many would argue that better impulse control is always a positive
achievement.
123
In a longitudinal experiment that followed individuals from
birth until age thirty-two, impulse control was not only a strong predictor of
criminality for at least thirty-two years, but also predictive of health, wealth,
and drug dependence.
124
The personal integrity test, however, avoids these
broad subjective evaluations of making someone a better person, an
important safeguard against the types of government overreach hyperbolized
in Brave New World and its kin.
125
Instead, the test only asks whether the
targeted trait is a core personality trait; if it is, the test then requires a far
greater State interest to justify altering it, if such alteration is deemed
permissible at all.
Defendant Two was convicted of a sexual offense against a child under
twelve years of age. In scenario 2A, his sentence includes intensive
behavioral therapy, including plethysmograph and Able testing.
126
This
intervention would face a substantial hurdle under the personality integrity
test since sexuality is higher on the personality-trait scale than drinking
habits. Additionally, the extreme intrusiveness and unpleasantness of the
intervention would weigh against it under the third factor measuring side
effects. Still, the substantial liberty interest must be weighed against the
State’s interest. Given the particular heinousness of sex crimes against
children, a court could find the intervention constitutional, despite its
substantial alteration of a core personality trait.
In scenario 2B, Defendant Two is faced with chemical castration. The
analysis is similar to scenario 2A, with one important difference. While the
therapy proposed in scenario 2A would substantially alter the defendant’s
core sexuality, it does not obliterate the sex drive in the way that chemical
castration does.
127
Thus, while the State’s interest is the same and the
interventions target the same personality trait, a court could reasonably find
the intervention in scenario 2A is constitutional while deeming scenario
123
From birth until at least age thirty-two, childhood self-control is a predictor of “physical health,
substance dependence, personal finances, and criminal offending.” Terrie E. Moffitt et al., A Gradient of
Childhood Self-Control Predicts Health, Wealth, and Public Safety, 108 P
ROC
.
N
AT
’
L
A
CAD
.
S
CIS
. 2693,
2693 (2011).
124
Id. at 2693–94.
125
See sources cited supra note 1.
126
See supra note 21 and accompanying text.
127
See supra note 24 and accompanying text.
2023] THE RIGHT TO PERSONALITY 315
2B’s unconstitutional, despite the substantial weight of the State’s interest
in protecting the public from this type of crime. This illustrates how the test
accounts not just for what trait is being altered, but also to what degree. This
gives the test significantly greater nuance than many of the proposed
alternative approaches.
128
Finally, Defendant Three has been convicted of assault and battery and
has a history of angry outbursts. His sentence includes either anger
management under 3A or a chemical serotonin agonist that lowers
aggression under 3B. Whether scenario 3A is deemed constitutional depends
on whether the evidentiary hearing shows that the anger management classes
target anger or more general impulsiveness. As mentioned in scenario 1B,
impulse control could be considered a core personality trait, whereas anger
is less likely to be considered a core trait. This would not be a dichotomous
decision, but the degree to which it affected impulsiveness would weigh
more heavily in the analysis than any alteration in anger or aggressiveness.
Also, while the State’s interest in addressing any violent crime is strong,
assault and battery are generally less substantial than the crimes in scenarios
2A and 2B, making the intervention less appropriate.
In contrast, and perhaps counterintuitively unless one understands the
personality integrity model, scenario 3B’s administration of a serotonin
agonist may more easily satisfy the test than scenario 3A’s anger
management classes. If the drug selectively lowers aggressive impulses
without significantly affecting general impulse control, the test may prefer
this intervention to the anger management classes. While the availability of
a drug of this selectivity lies in the distant future,
129
if such a drug becomes
available, it would more easily pass the personality integrity test than would
intervention 3A.
An argument can be made that scenarios 3A and 3B reveal a major
shortcoming of the test, namely that personality traits are so intertwined that
in practice you can never selectively change one trait without significantly
altering another. It may prove impossible, for example, to affect aggression
without changing general impulse control. While this may be true, the test
accounts for this challenge by weighing the degree of change in the broader
personality trait more heavily than change in a lower-order, more specific
trait. The intervention does not have to affect only the lower-order trait, but
it will find that the greater the selectivity in affecting primarily the lower
hierarchy trait that is the target behavior, the less offensive the intervention
becomes. This is illustrated well by the test’s contrasting treatment between
scenarios 1B (Antabuse) and 3B (serotonin agonist). While Antabuse
undoubtedly will affect a person’s general impulse control, it does so to a
128
See supra Section II.A (discussing current and alternative interventions).
129
It also may never come in the form of a serotonin agonist given the diffuse effects of serotonin
in the brain. Future developments, however, may allow for far greater targeting of where and when an
agonist is active. Umukoro et al., supra note 25, at 197.
316 CONNECTICUT LAW REVIEW [Vol. 55:2
much lesser degree and has a more localized effect on alcoholism, while the
current regime of serotonin agonist’s effect is far more likely to extend
beyond tamping down aggressive impulses to also affecting general impulse
control. Thus, the proposed personality test would favor administration of
Antabuse over a general serotonin agonist.
The consequences of this trait-intertwining may mean that the state can
never utilize an intervention that targets a personality trait generally (either
behaviorally or chemically), rather than a specific behavioral manifestation.
Unless the science improves to such an extent that it allows for interventions
of far greater specificity, the State will not succeed in arguing the
intervention is permissible unless the State interest is deemed sufficiently
substantial to outweigh the large intrusion on individual liberty. In this
regard, the centrality of the trait to one’s personality is still important. For
example, in rare circumstances, when the State’s interest is very substantial,
a court could find a therapy targeting general impulse control appropriate
but still find an intrusion on sexuality unjustifiable since this trait could be
interpreted as more central to a person’s identity depending on the
personality model adopted.
C
ONCLUSION
As neuroscience progresses, policy makers will have available an
increasing arsenal of behavior-modifying interventions at their disposal to
deploy in the hopes of reducing recidivism and making the criminal justice
system more rehabilitative. While these interventions are promising, they
also can pose grave risks to individual liberty interests, such as those
imagined in 1984 and Brave New World.
130
Currently, the law lacks an
effective mechanism to protect these interests. To date, the Supreme Court
has dealt with forced medication only in the limited context of the right to
be free from antipsychotic medication where a medical necessity exists.
131
This approach is outdated and represents a fundamental misunderstanding
of the types of challenges new interventions developed by neuroscience
will present.
As this Article has demonstrated, the types of interventions neuroscience
promises are not properly considered medical treatment, since individuals
subjected to them may have no diagnosable ailment. Instead, these cognitive
interventions are aimed at alleviating an impediment that prevents the
individual from functioning appropriately in society. Extending Harper and
its kin to scenarios outside the realm of medical treatment poses several
issues, including encouraging the “medicalization” of crime.
132
130
See sources cited
supra note 1.
131
Washington v. Harper, 494 U.S. 210, 221–22 (1990); see Sell v. United States, 539 U.S. 166,
178 (2003) (reaffirming a liberty interest in the right to refuse antipsychotic medication).
132
See supra note 72 and accompanying text.
2023] THE RIGHT TO PERSONALITY 317
Additionally, its focus on physical side effects leaves many of the core
concerns, such as the extent of cognitive and personality change,
inadequately protected.
Several alternative methods of protecting the extent of cognitive and
personality change have been proposed, including recognizing a First
Amendment–based right to “freedom of thought” and the Eighth
Amendment’s ban on cruel and unusual punishment.
133
While these
approaches have benefits, ultimately they are insufficient because they only
weakly protect these interests and the Court has been reluctant to recognize
them.
134
Thus, the most effective means of protection is to recognize the
“intellectual prong” of the substantive liberty interest in the right to refuse
medication, advocated for in Justice Stevens’s Harper dissent,
135
and
develop it into a right of “personality integrity” that can provide a framework
to deal with the considerable challenges ahead.
The personality integrity test has several advantages. First, it builds off
of (albeit significantly) the Court’s established framework for evaluating
cases of forced medication. This makes the test more familiar and would
smooth the transition, while still offering the added protection lacking in the
original Harper framework. Second, the “personality integrity” iteration
centers the conversation on the issues that should concern the justice system:
weighing the substantiality of the State’s interest against the extent to which
the intervention will coercively alter the core identity of the individual.
Ultimately, the personality integrity test focuses the constitutional analysis
for these novel interventions on the most important issues, while still
utilizing mechanisms already in place to protect against known dangers of
interventions, such as physical side effects.
The personality integrity test also limits many of the dangers of behavior
modification by not subjectively assessing whether a change is beneficial in
making the individual a “better person.” Instead, the test only considers the
trait being altered, to what extent it is being altered, and how central it is to
a person’s identity. Because one of the most serious dangers under existing
models is that the State will embark on individual modeling and try to
criminalize and eliminate “undesirable traits,” this element prevents the
dangerous subjective evaluations that can spur this path.
136
Finally, the greatest benefit of the personal integrity test and its emphasis
on substantive liberty interest is that it forces society to engage in this
conversation and decide what it is that it wants the law to protect. The
133
See supra note 81 (arguing for a First Amendment “freedom of mind” right); Stinneford, supra
note 8, at 585–99 (challenging chemical castration laws under the Eighth Amendment’s Cruel and
Unusual Punishment Clause).
134
See supra Part II for an in-depth discussion of the drawbacks of advocating for protection under
the First or Eighth Amendment.
135
Harper, 494 U.S. at 237.
136
See, e.g., Tatchell, supra note 12.
318 CONNECTICUT LAW REVIEW [Vol. 55:2
personality integrity test is but one approach to a multifaceted problem. Even
if it were adopted, many issues would still have to be resolved that could
affect its form and effectiveness. Most importantly, which personality traits
best reflect Americans’ conceptualization of identity? While that debate is
beyond the scope of this Article, the personality integrity test would help
anchor and advance the conversation over what Americans value and what
they want the justice system to protect when considering forced behavior
modification interventions.
