By Caroline Thiriot

What if you could give a prisoner a pill that changed their perception of time? A 10-year sentence could feel like millennia. Or a person could experience a 10-year sentence in two years.

Science has already brought us to the brink of this technology. In a paper published in the Journal of Neuroscience, the nature of time perception is outlined and science seems to conclude in favor of Kant’s “subjective” and “ideal” view of the matter. Indeed, “[o]ur perception of time constrains our experience of the world and exerts a pivotal influence over a myriad array of cognitive and motor functions.” (emphasis in the original). The result of the study demonstrated “anatomical, neurochemical, and task specificity, which suggested that a neurotransmitter called GABA (Gamma-Amino Butyric Acid) contributes to individual differences in time perception”. With this increased understanding of how we perceive time, perception altering medications may follow.

Psychoactive drugs could be used to distort the prisoners’ perception of time and make them feel like they were serving a 1,000-year sentence, which is legally available in the United States. As detailed in Slate and Aeon, philosopher Rebecca Roache is undertaking a thought experiment to explore the ethical issues involved in using perception altering drugs and life extension technologies in the corrections context.

Medical and scientific advance could change the way prisoners serve time and dramatically alter our prison system. As for an economic purpose we could imagine that prisoners would physically spend one day in prison while they would psychologically experience it as lasting x years. Considering the high costs of prisons, psychoactive drugs could thus be a solution to save money. However, the risk benefit ratio does not seem to be favorable at all.

There already are cases where perceptual distortions such as “disorientation in time” can occur, we can relate to the practice of solitary confinement. “There is long history of using the prison environment itself to affect prisoners’ subjective experience,” highlights Rebecca Roache. On October 18, 2011, Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez presented his thematic report on solitary confinement to the United Nations General Assembly. He called on all countries “to ban the solitary confinement of prisoners except in very exceptional circumstances and for as short a time as possible, with an absolute prohibition in the case of juveniles and people with mental disabilities.” He stressed as well that “Solitary confinement is a harsh measure which is contrary to rehabilitation, the aim of the penitentiary system.”

Two points made in the statement above are worth being further discussed. First, we will address the issue of torture and other cruel, inhuman or degrading treatment or punishment. Then, we will focus on a more philosophical controversy: the aim of the penitentiary system.

Torture is universally condemned. The prohibition against torture is well established under customary international law as jus cogens as well as under various international treaties such as the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment ratified by 136 countries (including the United States in 1994). Even if the effects of perception altering drugs have not been studied yet, we can relate to those of solitary confinement to some extent. Indeed, one can picture the subject whose time perception is altered as experiencing another reality than the one commonly experienced. Thus, as the physically isolated prisoner, it seems to be reasonable to conclude that this subject will be deprived of normal human interaction and may eventually suffer from mental health problems including anxiety, panic, insomnia, paranoia, aggression and depression. In addition to the mental health risks, there exist physical health risks as well because the needs for sleep or food may be perceived differently.

As for the aim of the penitentiary system, several questions arise, especially concerning rehabilitation and recidivism. Some authors argue that prisons should be abolished and replaced by “anti-prisons,” that is, locked, secure residential colleges, therapeutic communities, and centers for human development. Indeed, nowadays it makes no doubt that punishment fails and rehabilitation works. From such perspective, altering prisoners’ time perception in order to make them feel like they spend more time in jails could thus be seen as a step backwards instead of a progress. According to the American Correctional Association (ACA) 1986 Study of prison industry, there are three categories of contemporary prison institution goals. Those are offender-based (good work habits, real work experience, vocational training, life management experience), institution-oriented (reducing idleness, structuring daily activities, reducing the net cost of corrections) or societal (repayment to society, dependent support, victim restitution). If such technology was implemented, most of these goals would not be completed. On the opposite, it appears we would instead go back to an era when solitary confinement was thought to foster penitence and to encourage reformation, but in a rather extreme form causing more harm to the individual possibly to the extent of mental illness.

The Eighth Amendment states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Professor Richard S. Frase has analyzed constitutional proportionality requirements. He noticed that since 1980, the Supreme Court has ruled in favor of the prisoner only once out of the six cases in which the duration of a prison sentence was attacked on Eighth Amendment grounds. Even if “The Court has never made clear what it means by proportionality in the context of prison sentences. Justice Scalia believes (and perhaps so does Justice Thomas) that this concept only has meaning in relation to retributive sentencing goals,” he concludes. When it comes to sentencing goals, one should thus distinguish retributive goals from non-retributive. While the first theory considers only the defendant’s past actions and focuses on the punishment itself, the second one (also considered as “utilitarian”) takes the future effects of the punishment into account. On the basis of such distinction, one must conclude that the possibility of making prisoners feel like they were spending a very long time in jails would only serve a retributive purpose and would absolutely fail at addressing the non-retributive ones.

Also, we live in a society in which, if individualism seems to be the supreme rule, interdependence remains a governing concept. To the question “What else can matter to us, other than how our lives feel from the inside?” Robert Nozick asks in this famous “Experience Machine,” he concludes that, dealing with pleasure, we would rather choose the everyday reality rather than an apparently preferable simulated reality. Despite the fact his thought experiment deals with a notion that is opposite to punishment, we can rely on the conclusion that the reality we commonly experience matters more than our subjective experience of it. As a consequence, one should not forget that the victim’s subjective perception of justice matters as well. Therefore, it may appear difficult for them to know that a criminal is out of jail after having spent a little time there and is able to enjoy the rest of their life free. Even if we only focus on retributive goals, such technology seems to have subjective limitations.

In the end, there seems to be no argument but the economic advantage for allowing the use of such psychoactive drugs able to distort the prisoners’ perception of time. On the contrary, it can be seen as torture and does not serve any rehabilitation aim, which is the main focus of prison sentences nowadays. The use of such technology would therefore appear to be regressive rather than progressive.

Caroline Thiriot, who has a Master’s in International Law and Human Rights from the Université Panthéon-Assas and an LL.M. in international and transnational law from Chicago-Kent College of Law, is currently a Master’s student in Bioethics at Université Paris Descartes.