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Bar News - April 15, 2015


Opinion: Tabula Rasa: Contemplating the Future Use of Memory-Wiping Drugs in Court

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It sounds like science fiction, but it is science fact – there is at least one chemical in development that has shown the ability to suppress memories after they are formed (lots of drugs, including plain old alcohol, can impact memory creation). This drug, called an HDAC2 inhibitor, was proven to suppress traumatic memories in mice, and the findings were published in Cell, a leading scientific journal, in early 2014.

Additionally, the drug Metyrapone has been shown to reduce the recollection of emotional memories in humans in clinical trials.

More than two millennia later, Homer’s mythic Nepenthe, the drug given to Helen of Troy to make her forget, might someday be made into reality. Both drugs are still in clinical trials, making them years away from being available, if they are approved, but the theoretical possibilities are fascinating for fiction writers and lawyers alike.

Memories, like all brain functions, are nothing more than chemicals and pathways shaped by chemical reactions, so it is not that surprising that chemicals could undo the foundations of recollection.

There are interesting ways in which these memory-wiping drugs could impact society. They were developed as a therapy for traumatic memories, to help victims and soldiers rebuild their lives, without having to rely on a painful foundation. But what if their use was expanded? What if they were brought into the legal system as a form of punishment or rehabilitation?

Imagine a scenario that is not all that uncommon in the criminal court – an individual is charged with a horrendous crime, the foul cash-out of a life filled with and propagating misery, and the question of guilt or innocence is not difficult to sort out. The real question all of the parties face is sentencing.

Imagine if, instead of incarceration, this person could be given enough of the memory-wiping drug to scrub clean his or her entire life and all of the associated memories. With a dose of the drug, assuming it works as described, the collected detritus of years of suffering and inflicting suffering would be wiped away. That person, the one causing all of the pain, would be gone in a very real sense, leaving behind a body and a blank slate.

English Enlightenment philosopher John Locke, father to the Founding Fathers, often talked about blank slates and memories. For Locke (and for everyone, in a less philosophical sense), who we are is what we remember. And when those memories are wiped away, who we are is wiped away. Taking someone out of society by putting him or her in jail is one thing; taking them out of society by deleting their memories and personality is another.

It’s pretty obvious that memory-wiping as a punishment would be highly controversial. Some would see it as a painless slap on the wrist – after the treatment, the person would be free and able to sow misery again. Others would view it as too harsh and would undoubtedly view it as the promise of dystopian fiction made real – the government systematically erasing those who dared to break its laws.

Until the science is sorted out, it is impossible to know whether or how these drugs might be used for punishment in the criminal justice context, but like other alternative sentencing programs, it would likely be viewed with a high degree of skepticism.

The ethical issues surrounding the potential use of these drugs in society would be fascinating. Would this type of punishment be considered cruel and unusual? Would it be okay for regular people with difficulties in their lives – those suffering from heartbreak, for example – to elect to undergo the memory-wiping process (think Eternal Sunshine of the Spotless Mind), or could people’s memories be wiped without them knowing (yes, Men in Black). Would a person punished in this way be allowed to associate with people from his or her past? And what if, after this memory wipe, even without all of those old neural pathways and associations, the person went back to a life of crime? Or what if they went on to become an upstanding member of society? The legal, ethical and moral questions are indeed plentiful and fascinating.


Tony Sculimbrene

Tony Sculimbrene is a public defender in the Nashua office of the NH Public Defender Program. His opinions are his own and do not reflect those of his employer.

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