[Adam Kolber, guest-blogging, February 12, 2008 at 6:07am] Trackbacks
Freedom of Memory, Part 1:

Suppose we could erase memories we no longer wish to keep. In such a world, the victim of a terrifying assault could wipe away memories of the incident and be free of the nightmares that such memories often cause. Some memories, however, even quite unpleasant ones, are extremely valuable to society and ought not be eliminated without due consideration. An assault victim who hastily erases memory of a crime may thereby impede the investigation and prosecution of the perpetrator. In a world with memory erasure, our individual interest in controlling our memories may conflict with society's interest in maintaining access to those memories. We tend to think of our memories as our own in some fundamental way. No one else should have the right to control such an important aspect of our minds. But what if we really could manipulate our memories? Is it so clear that our memories are entirely our own?

Neuroscientists are working to develop drugs that dampen the emotional intensity of traumatic memories. Some research suggests that propranolol, a drug already approved by the FDA for treating hypertension, can dull the emotional pain associated with the memory of an event when taken within six hours after the event occurs. Researchers are now conducting larger studies with propranolol to test these preliminary results and to explore whether propranolol can safely be used to ease traumatic memories from the more distant past. While we already have lots of other drugs that affect the formation of memories once you start taking the drug (common in certain forms of anesthesia, for example), there isn't much we can do to affect memories that have already formed. And that's what we'd need to treat past trauma. So it's possible that propranolol could fill an important niche.

If propranolol does affect the emotional valence of memory, the effects are probably modest. And it is unclear whether propranolol also dampens factual associations with memories (the PDR lists short-term memory loss as a side effect of the drug). But even if propranolol falls flat, some more potent drug is likely to step into its place. In 2004, U.S. veterans received benefits payments for PTSD totaling $4.3 billion. Clearly, there's lots of interest in finding comparatively inexpensive pharmaceutical methods of easing or preventing the emotional distress associated with bad memories.

How, if at all, ought the law to change in a world where we can dampen factual or emotional aspects of memory? Memories serve two distinct roles in the legal system. First, they play an indispensable role in fact-finding. We gather memories in depositions, trial testimony, police investigations, lineups, and more to help establish the underlying facts that set the entitlements of disputing parties. We value these memories principally for the information they can provide. Second, memories and their associated affective states can themselves form part of a claim for damages. If you injure me and cause me to have upsetting memories, I can sometimes seek redress for the intentional or negligent infliction of the emotional distress associated with those memories.

So, memory-dampening drugs that affect factual recall could raise interesting legal questions relating to obstruction of justice, spoliation of evidence, hearsay evidence, the value of eyewitness testimony, and more. Drugs that affect the emotional valence of memories raise questions about informed consent, mitigation of emotional distress, the valuation of the harm of erasing memories that should have been kept and the harm of keeping memories that should have been erased, and more. There are also plenty of interesting questions of constitutional law, many of which straddle both factual and emotional aspects of memory.

Admittedly, the technology will have to improve before we have to confront these issues on any regular basis. Nevertheless, drugs like propranolol have already been tested on human subjects who show up in the emergency room with trauma from assaults and car accidents. Suppose, as seems quite plausible, that there is civil or criminal litigation associated with some of those assaults and car accidents. Even if propranolol has no significant effects on memory, courts will at least need to explore and address the scientific validity of claims made about propranolol. After all, a good attorney will certainly ask a witness who participated in one of these studies, "So, is it true that you participated in an experiment by a researcher at Harvard Medical School into drugs that alter the intensity of memories?" We are thus confronted with legal and ethical issues related to memory dampening even before we have effective memory-dampening technologies.

Moreover, in my next post, I'll discuss a true story that raises several interesting legal and ethical questions related not to some weak form of memory dampening but to what we can fairly call memory erasure. Not only is the story not science fiction, it's over ten years old! Stay tuned . . . (In the meantime, you can find my much fuller account of the above discussion with citations here. My article challenges some of the ethical claims of the President's Council on Bioethics, which is highly skeptical of the merits of memory dampening.)

That was a scary read. I need some of the propranolol to continue the day.

As government and other organizations work hard to micro manage our lives and point out our deficiencies I can see
that it would be important to find ways to make us plu-perfect.

It seems to have worked well in cattle and crops.
The first 2 paragraphs of the intro that reference Pursuit of Happiness and making people "more perfect" should make the political sell much easier.

I also noticed that there was already the blurring between therapy and enhancement and therapy appeared to be winning.
So all will eventually be therapy.

From the intro:
"Not everyone likes the idea of "remaking Eden" or of "man
playing God." Not everyone agrees that this prophesied new
world will be better than our own. Some suspect it could
rather resemble the humanly diminished world portrayed in
Aldous Huxley's novel Brave New World, whose technologically
enhanced inhabitants live cheerfully, without disappointment
or regret, "enjoying" flat, empty lives devoid of love and
longing, filled with only trivial pursuits and shallow

But, apparently, some do like it.

Nietzsche maybe?:

"super-humanization." It compels attention to what it means to be a human being and to be active as a human being. And it is far from being simply futuristic: current trends make clear how the push "beyond therapy" and "toward perfection and happiness" is already upon us—witness the growing and increasingly acceptable uses of cosmetic surgery, performance-enhancing drugs, and mood- or attention-altering agents.iii

News June '04
Bush plans to screen whole US population for mental illness
Jeanne Lenzer

I had a Great Aunt, different country different time, she suffered the full weight of a philosophy very similar to this.

Sorry to have veered from you legal issue.
2.12.2008 7:45am
pgepps (www):
Yeah, uh, pop your soma, folks.

God help us. Is it so hard to see that some things are just bad ideas? Imagine a world where trauma is not stress-inducing, and not just Brave New World but some sort of horrible Heinlein / Howard mash-up should be thrumming in your head.
2.12.2008 8:59am
I had not ever thought about this.

Lots to think about.
2.12.2008 9:01am
Very interesting field. I think the major problem achieving progress in this field is that the students who excel in classes like Prof. Kolber's will have to wait until all the drugs are out of their system to get jobs. Or are academics not subject to drug screens?
2.12.2008 9:10am
another anonVCfan:
"Is it so hard to see that some things are just bad ideas? Imagine a world where trauma is not stress-inducing . . . ."

Imagine a world where pain is not stress inducing. If people could erase the physical pain of an injury just by popping a pill, who knows what insane risks we'd run. Society might well collapse.

All things in moderation, man.
2.12.2008 9:11am
Bruce McCullough (mail):
Kolber asks: "Is it so clear that our memories are entirely our own?"

If the government exists to serve the people, then clearly the answer is, "Yes, our memories are our own." If the answer is "No," then the people exist to serve the government.

2.12.2008 9:11am
Positroll (mail):
As far as science fiction is concerned, I'd like to mention Peter Hamilton's Commonwealth Saga (Pandora's Star / Judas Unchained) where such questions take up about 10% of the books ... In the book, memories could also be stored; combined with different levels of backups and cloning procedures / rejuvenations this made human beings more or less immortal. The near perfect murder: kill someone, erase your memory of the incident, put another one in, and you will be perfectly able to convince the detective that you are not the culprit ...
2.12.2008 9:12am
gasman (mail):
I've considered the use of propranolol for patient's who've had particularly unfortunate events and reviewed published works for the day when it would be useful. There is no evidence that it actually erases memory, but it does alter the emotional connection to those memories. Part of what affixes memory in our memory seems to be the emotional significance, and this emotional significance is expressed biologically through stress hormones, particularly epinephrine and norepinephrine (adrenaline and noradrenaline). Propranolol is one of the beta blockers that does enter brain tissue (many do not) and it is possible that it has its effects within the brain, but also through attenuation of the rest of the stress hormone axes by its peripheral actions.
Beta blockade also seems to be a good thing under many medically stressful situations because the unchecked response can sometimes carry things metabolically too far. e.g. a physiologically stressed burn or multitrauma patient will consume their own muscle to their detriment dispite administration of protein calories in their diet or blood stream. Only the use of beta blockade (propranolol is one) will stop the body from consuming its own muscle as a source of fuel even in the face of pleanty. Even a perfectly healthy heart, under the surge of stress hormones can go into failure in a manner that is clinically indistinct from other life threatening cardiomyopathies. For this group beta blockade can be life saving, not merely helpful with rememebering the emotional component of the inciting memory.
I don't think there is evidence that propranolol modifies or erases the memory, but it does attentuate the emotional link that can later prove to be debilitating.
But then I suppose an attorney representing their client's interest as a zealot would not be interested in this uncertain analysis, and would hammer away at the propranolol doped witness until they needed propranolol after the cross examination.
2.12.2008 9:14am
I wonder if this could pop up as the new date rape drug? Instead of drugging them beforehand (or maybe in addition to), drug them afterward so they have trouble remembering
2.12.2008 9:42am
Adeez (mail):
For what it's worth: there was a 60 Minutes on this drug about a year ago. It was truly, truly fascinating.

As Gasman's technical post states, "there is no evidence that it actually erases memory, but it does alter the emotional connection to those memories."

They featured several trauma victims, some of whom have been reliving very painful memories for decades. But, miraculously, after taking the drug they were no longer bothered by these memories.

For instance, I remember a woman who retained memories of a violent rape. Understandably, this tragedy caused her to have severe intimacy issues. But after the drug, she was a completely different person and was able to live life as if the tragedy never occurred. Again, remarkably, the memories themselves didn't fade. Rather, it was the pain associated with the memories that did.
2.12.2008 10:07am
There has a tendency to medicalize everything we don't happen to like, without regard for the possiblity of its having value for the species as a whole.

One need only look a show dogs in the American Kennel Club -- creatures who are perfect in identified criteria but are otherwise largely unable to functiomn in life -- to understand what life will become like for us if health becomes defined, not by empirical experience, but by our desires.

Some of the world's greatest thinkers, artists, and creators have been those who have dealt with and overcome traumas. I wouldn't assume that the human capacity for trauma has no value. Our humanity comes largely from our ability to find meaning in suffering. In a Brave New World where experience is manipulated by drugs, we are not only not human, not only static and unable to develop, but not free. Similarly, 1984 depects a world where human memory is malleable by psychological technique. Freedom requires self-acceptance.
2.12.2008 10:09am
cjwynes (mail):
Although I'm a prosecuting attorney, I still value the privacy and emotional health of a crime victim enough that I don't think I could, in good conscience, oppose their right to eliminate unpleasant memories. Since this is all sci-fi voodoo at this point, the more realistic equivalent is when victims are reluctant to testify or give depositions because of the trauma related to having to relive details of the event. There are, in those situations, occasions when we would defer to the victim's wishes and drop the case, and other situations where we would have to insist on proceeding despite the trauma. Even our insistence cannot FORCE somebody to say a single word in court, for that is an affirmative act and cannot be compelled if the victim is hell-bent on refusing to comply.

Back to your more sci-fi hypothetical, I doubt that there is any way of preserving the memories prior to their elimination that wouldn't amount to "testimonial hearsay" under Crawford, so I guess our office would just be SOL if it happened. And I can't say I'd disagree with that. Watch "Total Recall" and try to tell me with any kind of certainty whether or not you believe the pre-memory-wipe Arnold is telling the truth in his video statement.

But from how it's being described, this propranol drug just may alter the emotional states attached to a memory, not the recollection of events as such, and so I think common sense would tell us that a witness is still reliable despite having used it, no matter how much of a show the defense attorney will put on about it.

As for the social/cultural impact of such medications, I can't see how it'd be any worse than we already have with the widespread use of psychotropic drugs turning people into mind-numbed, passive, inauthentic beings.
2.12.2008 10:17am
Tracy Johnson (www):
The ability to totally rewrite history ala 1984 is getting ever closer. If Fahrenheit 451 in effect, even the book people will not be immune with this drug.
2.12.2008 10:26am
Mikeyes (mail):
No, propranolol does not erase memory, all it does is block the effects of adrenaline. By doing so it may effect the way the memory is retained and the emotional ornamentation that accompanies this particular set of memories. Memory is a multi-step process for most of us (Prof. Kolber gives an example of a person who cannot forget, this person is a savant and is wired differently) and part of the process is mitigated by emotions and other factors. In medical school we learned boring facts by associating them with more pleasant or interesting rhymes or pictures. Random events are usually lost to memory unless they are linked to something else (although there is some proof that they are just hidden) and many memories are filtered or changed due to circumstances surrounding the events that occured. Just look at the many studies on eye witnesses that show significant differences in memory details.

Date rape drugs, on the other hand, block the first stage of memory. In other words, the event is never registered to begin with.

Flashbacks from PTSD are a good example of emotion/hormone filtered memories. Even memories that are not horrifying can come back as "flashbacks" if the triggers are there. In the latter case they may cause a more palatable emotion to arise and would not be considered pathological. And people differ in the ways that they can handle or tolerate flashbacks. We don't know why this is so, but it probably has to do with both brain development and enviromental factors.

In a practical sense, propranolol has not been all that helpful because of the six hour limit (which is not that well proven, only a few patients have been looked at) and because each person has a different response to trauma and there is no objective way to determine if the medication even worked as advertised. Even the statement that it "attenuate(s) the emotional link" is subject to change as we explore this therapy further.

As a speculative exercise it is fun to argue for or against the use of a drug that will selectively mind-wipe you, but we are not at a point where we can say such a drug exists or is even on the horizon. There have been many promising drugs and techniques that have looked good in the initial trials that were utter failures later on so there is no reason to think that the speculation shown in this thread has any validity.

Not for now, at least.
2.12.2008 10:29am
DaSarge (mail):
cjwynes, et al.

I am a lawyer &I also spent 20 years as a firefighter. May I suggest that there are two other drugs that are in virtually universal use that are more pertinent? Versed (midazolam) and propofol (a/k/a "Milk of Amnesia). These drugs are given by paramedics & ER docs to trauma victims almost in every case. The specific purpose is to induce amnesia. As a paramedic told me: "I am about to paralyze you and stick a tube down your throat -- you want to remember that?"

Versed induces amnesia from the point of injection forward. Propofol induces retrograde amnesia for several hours. This means the memories of assault victims with sever injuries are nonexistent for the most part. To the extent they think they remember what happened, it is because they have been told by others what happened and integrated this in to there memories.

And these people are called to testify as percipient witnesses.
2.12.2008 10:31am
Randy R. (mail):
I suppose I can see the benefits of this drug. I'm sure there are people out there so traumatized by an event that they become helpless, unable to function properly in society. Who am I to say they can't have a drug that promises hope?

My concern, however, is that, as we have often seen, this drug may do more or less than promised. What are the long terms effects of the drug? Will it dampen down the effects of joyous events? What about future trauma? Will it affect just regular emotions? Then we have the situation that every person is different. Can we be confident that the drug acts the same way in all or most people? Are the effects permanent or temporary?

Then there are the doctors. What if they prescribe too much, or too little? What if they prescribe it in situations where it it not needed or called for?

Okay, so I didn't do my research, which would probably answer some of these questions. But I think we have to be very careful with something like this.
2.12.2008 11:11am
Temp Guest (mail):
In Arthur C. Clarke's novella, "The City and the Stars", an immortal personality involves a constant editing of memory, both because painful memories can build up unpleasantly and because the human brain has only a finite storage capacity. It brings up the old philosophical issue of "Theseus's ship".

As DaSarge points out, non-general anesthesia is often administered together with tranquilizers, one of whose effects is to eliminate short-term memory retention. I've experienced this at least once when I had a minor surgery. I found it a very disturbing experience.
2.12.2008 11:17am
MDJD2B (mail):

Then there are the doctors. What if they prescribe too much, or too little? What if they prescribe it in situations where it it not needed or called for? ...
I think we have to be very careful with something like this.

Ah, yes-- the demonizing "The." The Jews. The Moslems. The Klingons. The doctors.

No broblem if doctors prescribe too little-- right? But if doctors--- the doctors-- prescribe too much, they might try to manipulate and control the minds of innocent little guys like you, huh?

But let me turn to serious qualms about administration of drugs that blunt the emotional impact of specific memories.

What if administration of such drugs were to block the emotional impact of physical trauma sufficiently to prevent post-traumatic stress disorder. Wouldn't you want to offer it to such a person? (We are not talking about erasing memory here.) I certainly would want it if I were a victim of a violent crime or accident. The effects of suffering are not all positive. "Reader Y" should be aware that not all suffering conveys meaning. Some suffering cripples people physically and emotionally. For example, for every Elie Wiesel there were many Holocaust survivors who were miserable, phobic, and neurotic as a result of their experiences, and who derived no humanizing meaning whatsoever from their experiences as guests in Buchenwald or Auschwitz.

And if these drugs reduced the conviction rate, would that be so bad? (Arguably, if the effects of a crime are less, the punishment should be less, or at least this would follow from a retributional theory of punishment.)

And a utilitarian would argue that mitigation of harm to victims is more important than punishing criminals.
2.12.2008 12:24pm
MDJD - Actually, a utilitarian would need more information to make an informed decision. Not all, or even most, individuals who suffer traumatic events go on to suffer debilitating PTSD. It is difficult to tell in the first hours after the event, or even in the first few weeks, who will suffer PTSD and how severe it will be.

Moreover, the degree to which chemically blunting the emotional associations of the event memory itself will reduce or eliminate PTSD is uncertain. Indeed, part of the trauma of the event is what happens afterwards - medical treatment and the legal system can inflict further trauma or exacerbate existing trauma. For some individuals (myself included), the realization that their memory has been altered is itself highly disturbing and stressful.

Finally, punishing criminals is important to society less for its retributional value than for its value as a specific and general deterrent. If treatments such as the one being tested were to become standard and were to affect memory in such a way as to make conviction less likely, offenders could go on to inflict trauma on numerous victims with impunity.

It is one thing for an individual who is suffering PTSD to use a drug that can relieve his suffering at the potential expense of the accuracy of his memory. For one thing, the patient would be able to make an informed choice about the relative value of blunting his memory and mounting an effective prosecution/lawsuit - he could decide to suffer a little longer in order to ensure that his victimizer pays for his acts. It is quite another to preventively administer it to people suffering a wide range of traumatic events within the first 6 hours after the event. Dismissing these issues as theoretical philosphizing by people who don't understand the reality of mental illness is unfair.

(BTW - I speak as someone who has suffered PTSD. Personally, I wouldn't want to have taken such a drug even if it were effective, but I know others who would and recognize that there may be certain events which would cause me to change my mind.)
2.12.2008 1:21pm
BruceM (mail) (www):
Just have a rule that says people have to give testimony in an adversarial setting before they can erase their memories.

If people erase their memories, and then hear about them second-hand, i'm sure it's not that bad. It's not like you wouldn't know that you erase the memory of a rape. You'll get the bill from the memory erasing place (which, if it's about the cost of Lasek surgery, many people will pay in installments - a constant reminder).
2.12.2008 1:34pm
DrGrishka (mail):
I wonder if your initial claim (i.e. that because society may have some interest in our memories, it may prevent memory control under some circumstances) is correct.

Victims of violent crimes (and other unpleasant experiences) have controlled (or attempted to control) their memories from time immemorial. (No pun intended). Up until the advent of modern psychopharmacology, they have relied on things like alcohol, hashish, cocaine, morphine, and other similar substances. Without a doubt, these substances affect both the perception of the outside world (dulling some and heightening other emotional experiences) and affect one's memory. (Alcohol abuse is specifically associated with amnesia).

To be fair, since these "crude" drugs are not specifically targetted to memory modifications, they may take some more time to actually affect the societal interest. (I.e., rape victim who starts drinking as a response to the rape is not likely to develop amnesia for years). Nonetheless, because oftentimes trials occur many years after the criminal act, drug or alcohol abuse can play their role.

Furthermore, it is well known that victims of unpleasant events often suppress their memories even without any psychotropic substances, as one of the defense mechanisms. This occurs as a natural consequence and response of being exposed to great stress. It may be that in some cases, such "forgetting" may be overcome with psychotherapy, but it seems doubtful that psychotherapy can be ordered in order to recover memories that may be useful in serving some societal interest. (Even if psychotherapy COULD be ordered, it is doubtful that it would be successful with an unwilling subject).

It seems to me that if the crimes victims can "self-medicate" with alcohol or illicit drugs (and medicate they will), it is a far better policy to allow them to take properly targetted drugs under MD's supervision. Such medications may very well affect societal interest, but only marginally more so than it is currently affected.
2.12.2008 1:44pm
one of many:
I feel sorta callous for mentioning this, but would the effect be on intentional infliction of distress torts? To extend could pain &suffering awards become standardized to $100.00 for a doctor's visit?
2.12.2008 1:46pm
Mark Hagerman (mail):
We've had a memory-erasure technique for decades, though it's not totally reliable. It's called hypnosis.

Here's an interesting question: Person X witnesses his friend committing a crime. In spite of his moral repugnance for his friend's act, he doesn't want to testify; his friend's well-being weighs more strongly with him than his desire for justice. Legally, he can't refuse to testify. But what if, prior to being served a subpoena, he uses auto-hypnosis to block his memory of the event, until after his friend has been tried? (Which might never happen, of course.)
2.12.2008 1:49pm
psychdoc (mail):
All else aside, I wouldn't get too worked up over the effects of propanolol on memory (as opposed to the emotional connections with memory). Remember, the medication has been around for years and is widely taken without wholesale complaints of memory wipes.
2.12.2008 1:54pm
One of many - If effective, it probably would affect pain and suffering awards, but not the the extent that they would become standardized. First, it doesn't eliminate the physical pain. Second, even if it successfully mitigates the emotional and psychological impact, people also suffer emotional and psychological harm from the physical and social after-affects - scarring, painful surgeries and treatments, extended hospitalizations, social stigma, and the mere knowledge that something bad happened all have potentially serious effects even if you can't fully recall the fear or other emotions you felt during the event.
2.12.2008 1:54pm
I should add - if the treatment did affect the memory in such a way to make it less admissible or useful for evideniary purposes, it could affect all damage awards by making it difficult for victims to recover at all. They might have less post-traumatic stress, but they'd still be stuck with the bills and the scars.
2.12.2008 1:57pm
Memory erasure (or more precisely, non-formation of memories) is a natural side effect of extreme stress. The neurotransmitters involved in the stress reaction interfere with the imprinting of permanent memory -- sort of like temporary Alzheimers. It is also a totally natural process that days/weeks/months/years after memories form, if a person is asked what happened, the person will "fill in" any holes in the memories using logic and speculation, and will mostly be not consciously aware of what are the "true" memories (formed at the time of the events) and what are the "fill ins" added later. This is true for memory holes caused by extreme stress, and also the far more common case of memory holes caused by the person not appreciating the significance of the events and failing to form a permanent memory of them. (Part of the mechanism of autism is a defect in the brain's ability to discard worthless memories. Apparently the brain's memory-storage resources are quite scarce, and wasting those resources is profoundly disabling.)

But the formation of "emotional" memories uses different neurotransmitters, which are not so much affected by the stress hormones. So the "natural" state of someone who has been through a terribly traumatic event is that the person has full recall of the trauma but only fragmented memories of the facts which would be useful in making us believe that we had the right perpetrator.

The legal system already vastly overestimates the accuracy of eyewitness testimony, especially eyewitnesses who would have been experiencing mass waves of adrenalin during the crime. Yeah, these drugs might make things worse, but only marginally. If, as some here have claimed, the drugs have the ability to erase the emotional trauma of the memory but not the unemotional "just the facts" part, then you could certainly argue that they would make things much better. In those eyewitnesses so traumatized by events that they only have emotional memories, and so their eyewitness testimony is substantially "filled in" (i.e. false and invented, albeit unconsciously), the drug will remove the mental incentive to fill in the memories (making sense out of the trauma.) This would be a clear advantage as it would remove eyewitnesses who will unwittingly give false testimony.
2.12.2008 2:25pm
Asher Steinberg (mail):
Well, if you're subpoenaed and you pop a pill and delete your memories, you may have an obstruction of justice problem. That would be sort of analogous to destroying subpoenaed documents. Say you're a lackey in a mafia organization in Camden and you're given immunity if you testify, and your boss says, take this pill, then you'll be able to honestly say you don't remember shooting so-and-so at my behest. That's clearly problematic. But if there's no trial or litigation pending, I don't see how we can regulate what people do with their memories. Surely if you have a constitutional right to abort a living fetus inside of you, you have a constitutional right to erase memories you don't care to remember. I'd need to elaborate on that a little, but I think that even people who don't agree with Roe would recognize the liberty interest here. You could also argue for a right to do what you like with your memories as a sort of extension of the Takings Clause.
2.12.2008 2:26pm
Phelps (mail) (www):
There is another angle to consider on this. If a drug was developed that will completely erase memory (which is more than this one will apparently do) what effect does that have on the morality of prosecuting criminals who have taken it? If a criminal no longer remembers his crime, what is the point of punishment or rehabilitation? Punishing or rehabilitating someone for something that they don't know anything about?

Going further than that, what would happen if we could selectively edit memories? What would we do with criminals who choose to simply forget their stint in the penn? Would prison sentences be devalued to nothing, and if so, what could we resort to short of lethal punishment?
2.12.2008 2:34pm
one of many:

While "scarring, painful surgeries and treatments, extended hospitalizations, social stigma" would be covered, they wouldn't be coverable as pain&suffering. The point (in theory) of allowing suits is to restore people to the state they were in prior to the tortuous action, if a doctor's visit will do that with regards to the pain&suffering component then it would seem that a doctor's visit is suffiecent to meet the requirements of justice. If there is ongoing pain I can see an award beyond the doctor's visit for pain&suffering but if the pain is confined to a definite period of time and the emotional associations (suffering) of that pain can be eliminated than a doctor's visit should be sufficent. I agree that, unless one were to craft a new form of compensation to deal with the other long term effects, pain&suffering awards could not become standardized.

Which still leaves the question of Intentional Infliction of Distress, if the distress can be easily eliminated medically, is it still a tortuous act?
2.12.2008 2:36pm
One of many - I'm pretty confident you're wrong with regard to pain and suffering. The pain of the surgeries and treatment and other suffering associated with the treatment, recovery, and after-effects of the tortious injury are included in the pain and suffering portion of the award, at least in my jurisdiction. Such emotional and physical pain is proximately caused by the tortious conduct - but for the conduct, the injuries would not have occured and the injuries can't be said to be too remote from the tortious cause to sever the legal connection. Compensation for it is part of restoring you to your pre-injury state or compensating you for the losses that can't be restored.
2.12.2008 2:48pm
WRT to intentional infliction claims - it may get you out of SOME of the compensatory damages and could be seen as part of the victim's obligation to mitigate damages, but again, emotional pain is not limited to the emotional associations that the drug would theoretically mitigate. Moreover, punitive damages are available for intentional torts in many, if not most, jurisdictions. Such a tortfeasor would likely still get slammed by those if his conduct was sufficiently egregious, regardless of whether the victim were able to mitigate damages.
2.12.2008 2:51pm
Fred the Fourth (mail):
Appropriately, I just got an email from Netflix that Eternal Sunshine of the Spotless Mind is in the mail to me. After I watch it (second time) I'm sure my thoughts on this subject will be better informed :-)
2.12.2008 3:09pm
Elliot123 (mail):
1. I'm not sure how anyone who supports a woman's right to choose could then turn around and deny her the right to choose the fate of her own memories held in her own body. I would expect this precedent to trump any objections to the potential ill effects of memory loss to both society and the individual.

2. I also suspect the law has long ago learned how to work in the face of witnesses who die before they can testify. Take a pill, or die. In both cases the memory is lost. Would anyone contend society has the right to force someone to prolong their life simply to get testimony in court?
2.12.2008 3:51pm
Elliot123 (mail):
One of the most fascinating experiences of my life was lying back under the oral surgeon's knife while he carved away on my jaw. I remember the intense pain, and at the time I acknowledged to myself that the pain was indeed very strong and intense. And I also realized I didn't care at all. It was just a curiosity. I was experiencing intense pain, was quite aware of it, yet it didn't matter. This was due to some concoction going into my arm. I think Versed was one ingredient. I acknowledge what I am relating is a memory, but that's how I remember.
2.12.2008 3:59pm
jvarisco (www):
I'm not sure what makes emotional (e.g. memory) damage different from physical damage? Would anyone suggest we shouldn't heal stab wounds/broken bones/etc. because it would reduce damage claims and/or make it harder to prosecute a case? Of course not. There will still be medical records for any memories that are wiped (you don't need to show actual wounds in court when there are documented medical records), so that should not be an issue. As to fact-finding, well, for one thing our own fact-finding technology will be much improved (not to mention surveillance; despite libertarian whining, we should have cameras in just about all public places in cities at least in the next decade), and it's not that hard to get the facts before the wipe.
2.12.2008 4:49pm
Brian K (mail):
I'm not sure how anyone who supports a woman's right to choose could then turn around and deny her the right to choose the fate of her own memories held in her own body.

how did abortion get dragged into this debate? what evidence do you have to show that people who support abortion are being disingenuous with their positions?
2.12.2008 5:10pm
Just in case these aren't enough issues, what about the action of planting a false memory of trauma in someone? As someone who watched the whole day-care ritual sexual abuse cases unfold, it sure looked to me like there were many cases where the "investigators" were taking very small children, and through many hundreds of hours of repetition, thoroughly convincing these children that horrible things had happened to them which clearly had not.

It seems to me that planting abuse memories in a child through brainwashing is a horrific crime second only to planting abuse memories in a child through actual abuse, yet this doesn't seem to be a very common idea. Most people seem to see the person wrongly accused of abuse as the victim, and yeah, I see them as victims too, but most people don't seem to see the brainwashed kids who have to live the rest of their lives with these horrible memories as also being victims.
2.12.2008 5:40pm
MDJD2B (mail):

Actually, a utilitarian would need more information to make an informed decision.

Actually, if pain to victims could be reduced, but at the expense of inflicting pain on the perp, it is a utilitarian no-brainer. There is no trade-off here whatsoever. The victime doesn't feel as bad with this hypothetical drug, and a certain proportion of perps don't get to go to jail.

Moreover, the degree to which chemically blunting the emotional associations of the event memory itself will reduce or eliminate PTSD is uncertain.

If PTSD is caused by a sudden, severe trauma, then blunting the emotional empact of that trauma should prevent at least some of it. In any event, the discussion is hypothetical, and I was hypothesizing whether a drug that had such an effect should be used.

Finally, punishing criminals is important to society less for its retributional value than for its value as a specific and general deterrent.

That is a controversial statement, with which I happen to agree. However, modifying the severity of the consequences of any criminal act might modify the punishment of the crime. Say it were possible to make all shirts and pants bulletproof with no discomfort or expense to the wearer. The consequences of people illegally shooting other people would drop, and sentences for criminals who shot at others would drop as well, as what would otherwise be murder turned into some degree of assault. I would not opppose making shirts bulletproof on the grounds that we couldn't put shooters into jail for as long as before because they aren't inflicting as much harm. You see the analogy-- if we could blunt the emotional trauma of a crime, that would be GOOD, not BAD, becasue most people would prefer be happier than to get a larger settlement or to see the perp go to jail longer. Saying that the drug won't do that is not a response. Propanolol may or may not, but we are talking about a hypothetical drug that will.

It is one thing for an individual who is suffering PTSD to use a drug that can relieve his suffering at the potential expense of the accuracy of his memory.

But the drug we are talking about does not wipe out memory; it just blunts the emotional response to it.

For one thing, the patient would be able to make an informed choice about the relative value of blunting his memory and mounting an effective prosecution/lawsuit - he could decide to suffer a little longer in order to ensure that his victimizer pays for his acts.

Most perps can't pay a lawsuit judgment. Most potential victims would not want to suffer more harm just so those who hurt them suffer more harm as well. I would not force a drug on anyone, but would certainly offer this hypothetical drug to anyone upon whom it would be effective. The principle of informed consent would apply. When a person is unable to consent because of unconsciousness or something like that, there is presumed consent that doctors should do their best to make the patient as healthy as possible. If you were unconscious (in any event, if I were unconscious) and a doctor had the choice of setting a broken arm or cutting it off, I hope he would set it. That's how real doctors operate-- maby not the "the doctors" of Randy R.'s post
2.12.2008 5:56pm
Joshua Mize (mail):
I would also make note of the effect memory dampening would have on public policy. If car crash victims do not remember the trauma of the incident, they are less likely to demand good roads. Their families will see them fine afterwards, and similarly not demand good roads. It spirals. If no one is hurt by something, no one will care about it. Will the fact that no one remembers the trauma of being mugged make people less likely to demand conceal weapons laws in their states? Simply, if there is no potential for trauma from bad experiences, people will worry about it less as a matter of public policy.
2.12.2008 6:06pm
AnneS (www):
MDJD - I simply don't agree with your analysis. The drug may reduce the emotional memory of the event (i.e., the memory of how scared the victim was), but the degree to which this reduces the emotional impact of the event, including the severity of PTSD if the victim is part of the (minority) of victims who develop it, is far from clear. For instance, if a woman is raped while unconscious and thus has no memory of the event itself, she is likely going to experience significant emotional and psychological trauma when she discovers that she was raped merely because she knows that she was raped. Would the trauma be worse if she remembered the event, along with all the emotions she experienced at the time? Possibly, possibly not. Would the incremental mitigation of possible PTSD in the victim be worth it to her if she knew that a cost of that improvement was that the perpetrator would be mmore likely to go free because her memories would be considered unreliable? Again, possibly, but I think more likely not.

Victims consent to suffer more harm in the name of improving the chances that the people who hurt them will be held accountable all the time. Whether it's an uncomfortable medical exam or reliving the experience repeatedly in depositions, witness prep, and court rooms, they make that choice every day because they and society believes that the harm is worth the societal and personal benefit of holding the perpetrator or tortfeasor accountable.

As for whether the doctrine of implied consent would cover this treatment for patients who are unconscious - maybe, maybe not. Since the relevant standard is, at least in some jurisdictions, whether a reasonable patient would consent, it would depend on the likelihood that the treatment would actually reduce the harm, the magnitude of the reduction, and the trade offs that a reasonable patient would face. A small reduction in the risk and magnitude harm might be enough if the treatment doesn't make the victim's testimony less useful in subsequent legal proceedings. A large reduction might also be enough despite a significant risk that the victim's testimony will be deemed to unreliable to be admitted.

As it stands, this is all, as you say, hypothetical.
2.12.2008 6:38pm
Frater Plotter:
It seems to me that planting abuse memories in a child through brainwashing is a horrific crime second only to planting abuse memories in a child through actual abuse, yet this doesn't seem to be a very common idea.

I agree with you, and so for that matter do Shakespeare and John Milton:

"There is nothing either good or bad, but thinking makes it so." (Hamlet, Act II, scene 2)

"The mind is its own place, and in itself / Can make a heaven of hell, a hell of heaven." (Paradise Lost)

Neither our society's laws nor its morals have yet come to grips with the lessons psychology and neuroscience learned during the 20th century, and continue to learn: that perception and consciousness can be radically altered, and that this alteration can be beneficial or harmful, redemptive or self-destructive. That our selves -- our personalities, our perceptions, and our morals -- are material and chemical in nature, and hence mutable.

Much of our morality is thoroughly prescientific in nature, not out of any fault, but because science is a latter-day feature of humanity, and morality an ancient one. Our ancient instincts -- our fears, our lusts, our xenophobia, our nepotism, our vengeance -- know little of it. We may still wish revenge upon a former psychopathic killer even if it is shown that he has reformed or been treated: that whatever chemical imbalance caused his former rage is gone, and provably will not harm any more innocents.

It was one of American society's medium-sized mistakes that it shoved Prof. Timothy Leary into the counterculture. His early work was widely illuminating: failed members of society -- imprisoned criminals -- could accomplish willing and beneficial psychological changes with a combination of counseling and neurochemical alteration. While the CIA was looking for brainwashing and interrogation techniques using psychedelics, Leary and Alpert were looking for ways to turn bad people good: and to do so through mind-expanding experiences rather than confining, punishing ones. And, to some extent, it worked: or at least, it was promising and worthy of more investigation, rather than being shut down in a moral panic.

Certain of the moral problems of today and the future can only be resolved if we come up with ways to think about selfhood and personhood that acknowledge that it is material and chemical, that it can be changed. When is it right to give a child mind-altering medications (such as Ritalin)? Should psychological differences, such as Asperger's syndrome, be considered useful variety in the human species, or harmful diseases? How shall we deal with the increasing variety of mind- and ability-altering drugs -- therapeutic, recreational, and in-between? What does it mean to be the same person in a world where memory, perception, and mood will be increasingly subject to alteration on demand?
2.12.2008 11:51pm
markm (mail):
Just have a rule that says people have to give testimony in an adversarial setting before they can erase their memories.

I wish it could be done that way, but it's not practical. The presently available drugs must be administered within a few minutes or at best a few hours after the event. With a victim who has been traumatized badly enough to need such a treatment, even getting informed consent is a problem, let alone getting a coherent account. I expect the drugs will get better, but not good enough for "testimony in an adversarial setting". Who would the "adversary" be? By the time you've identified a suspect and he's hired a lawyer, it's probably weeks or months later. I hope no one ever develops a drug that will erase weeks or more of your past, and I'm quite sure there will never be one precise enough to erase a selected few hours weeks ago.

OTOH, drugs that reduce the traumatic emotional associations without affecting the memories would avoid many of these issues - hopefully including the long-term psychological effects of finding holes in your memory. (I've known schizophrenics that lost huge pieces of memory to the disease, the prescribed antipsychotics, and/or "self-administered" drugs, and this certainly added to their suffering.) What we need is better versions of propanol, not better memory erasers.
2.13.2008 4:35pm
Elliot123 (mail):
"how did abortion get dragged into this debate? what evidence do you have to show that people who support abortion are being disingenuous with their positions?"

I dragged it in. Many contend a woman has the right to control her own body. Under that principle, she would also have the right to control her own memories.

I didn't say people who support abortion are being disingenuous. I offered the observation that we have had a similar discussion regarding the control over one's body for many years.

I offer no evidence because I made no claim.

However, do you think it is consistent for someone to support a woman's right to abort a fetus in her body, but not to abort memories in her body? I see the same principle involved in both.
2.13.2008 8:29pm