Criminal Law and Psychopathy

Criminal Law and Psychopathy I. Introduction Various studies have in the past indicated that there is a high correlation between violence/criminal behavior and psychopathy. This would largely be expected given that psychological studies into the character and disposition of psychopaths has demonstrated that the need for control (or power) as well as egocentrism, which also happen to be the dominant character traits of psychopaths, are predictors for deviant or antisocial behavior.

The debate on whether or not psychopaths should be held criminally responsible for their acts, and thus be subjected to criminal punishment, has been raging for a long time. On one side of the debate are legal scholars, lawmakers, and judges who are of the opinion that psychopaths have an existing predisposition to commit crimes as a result of their lack of concern or compassion of any kind for those they hurt.

Psychopathy is on this front regarded as untreatable and those who harbor psychopathic behaviors are thought of as being highly likely to repeatedly engage in psychopathic behaviors. For this reason, this school of thought has in the past pushed for increased punishment for such individuals, with psychopathy in this case being taken to be the aggravating factor.

This is more so the case given that an argument could be sustained that the defendant is especially dangerous (247).[footnoteRef:1] In that regard, therefore, “sentences of severely mentally ill offenders might not be reduced or might even be enhanced” (247).[footnoteRef:2] It should, however, be noted that there are those who are of the opinion that as a consequence of the neurological disorder they suffer from, psychopaths should be deemed the actual victims of beliefs that are inherently misguided.

Their lack of impulse control or empathy is, therefore, a consequence of their neurological abnormalities. This text concerns itself with criminal law and psychopathy. In so doing, it amongst other things evaluates the insanity defense and diminished capacity, and assesses the concept of moral responsibility vis-à-vis legal responsibility. [1: Sofia Moratti and David Petterson, eds., Legal Insanity and the Brain: Science, Law and European Courts (Oregon: HART Publishing, 2016), 247. ] [2: Moratti and Petterson, eds., Legal Insanity and the Brain: Science, Law and European Courts, 247. ] II.

Psychopathy Conceptualized In seeking to develop an understanding of psychopathy and criminal behavior, it would be prudent to conceptualize psychopathy. According to Patrick, the term psychopathy was formulated in the 1800s after medical practitioners noticed that some of the mental patients they were working with possessed what they referred to as moral insanity or depravity despite projecting normal behavior outwardly (22).[footnoteRef:3] This is to say that the patients did not seem to have any concern for other people’s rights of feelings.

However, as Patrick further points out, it was not until the 1900s that the application of the term psychopath became widespread in the mental health circles (22).[footnoteRef:4] Even so, during the early 90s, “dangerous or persistent lawbreakers were labeled variously as psychopaths or sociopaths, with negligible diagnostic consistency or clarity” (22).[footnoteRef:5] However, it was not until 1952 that the very first Diagnostic and Statistical Manual of Mental Disorders (DSM) was published by the American Psychiatric Association.

Subsequent DSMs have been released since then, thereby resulting in a more substantive and consistent diagnostic criteria. Today, the diagnosis of psychopathy has taken form – effectively meaning that it is no longer an imprecise art form. [3: Christopher J. Patrick, ed., Handbook of Psychopath, 2nd ed. (New York: Guilford Publishers, 2018), 22. ] [4: Patrick, ed., Handbook of Psychopath, 2nd ed., 22. ] [5: Patrick, ed., Handbook of Psychopath, 2nd ed., 22.] It is important to note that there is no generally accepted definition of psychopathy.

According to Gonzales-Tapia, Obsuth, and Heeds “psychopathy is far from being a clear and generally shared concept, and there is a lack of consensus regarding its distinctive features, or the underlying psychological or neurobiological profiles” (47).[footnoteRef:6] This effectively means that in the past, various conceptual definitions have been presented in an attempt to develop a concise understanding of psychopathy and highlight some of the key core sets of the same. Psychopaths should be distinguished from sociopaths.

This is more so the case given that the two terms have in the past been used interchangeably. While the sociopath banner could be used in reference to an individual whose tendencies appear to be antisocial as a consequence of various environmental and social factors, the traits of a psychopath happen to be largely innate.

According to Anderson and Kiehl, “psychopathy is a neuropsychiatric disorder marked by deficient emotional responses, lack of empathy, and poor behavioral controls, commonly resulting in persistent antisocial deviance and criminal behavior” (104).[footnoteRef:7] This is the definition of psychopathy that will be adopted in this text. An evaluation of the criteria for categorizing psychopathy identifies a certain core set for psychopaths. To begin with, psychopaths have inherently shallow emotions.

According to Anderson and Kiehl, the lack of emotion remains one of the key character traits for psychopaths (104).[footnoteRef:8] This is to say that in addition to lack of compassion, they are also depraved of a wide range of social emotions including, but not limited to, embarrassment, guilt, and shame. Yet another distinguishing characteristic of psychopaths is their uncaring nature. Towards this end, their unconcern for other people’s feelings is largely callous and their lack of empathy distinguished them from persons having a more stable mental state.

[6: Maria Isabel Gonzales-Tapia, Ingrid Obsuth, and Rachel Heeds, “A New Legal Treatment for Psychopaths? Perplexities for Legal Thinkers,” International Journal of Law and Psychiatry 54, (2017): 47. ] [7: Nathaniel E. Anderson and Kent A. Kiehl, “Psychopathy: Developmental Perspectives and their Implications for Treatment,” Restor Neurol Neurosci 32, no. 1, (2015): 104. ] [8: Anderson and Kiehl, “Psychopathy: Developmental Perspectives and their Implications for Treatment”, 104. ] It should be noted that from an ethical perspective, the relevance of disgust cannot be overstated when it comes to the moderation of our own behaviors.

Towards this end, some courses of action appear disgusting to normal persons – hence acting as a self-regulating mechanism against engaging in such actions. However, when it comes to psychopaths, Wolfe is of the opinion that the disgust threshold happens to be quite high (150).[footnoteRef:9] In the words of the author, psychopaths “show smaller reactions to the gruesome sight of mutilated faces, and to foul odors” (150).[footnoteRef:10] They, therefore, lack an internal mechanism that facilitates the express disapproval of some kinds of unethical behaviors.

Irresponsibility and unreliability is yet another prominent hallmark of psychopathy. In this case, psychopaths tend to demonstrate what DeLisi refers to as “blame externalization” (1415).[footnoteRef:11] They tend to naturally adopt a ‘not my fault’ stance whenever they find themselves in situation that is likely to attract penalties of some kind. According to the author, this is the tendency to apportion blame elsewhere even in those instances where the person apportioning blame is clearly responsible for a specific adverse outcome.

It should be noted that even in those instances where blame is admitted, it is not accompanied by feelings of remorse or shame. [9: C. Wolfe, Brain Theory: Essays in Critical Neurophilosophy (New York, NY: Springer, 2014), 150. ] [10: Wolfe, Brain Theory: Essays in Critical Neurophilosophy, 150] [11: DeLisi, M. et al., “Not My Fault: Blame Externalization is the Psychopathic Feature Most Associated with Pathological Delinquency among Confined Delinquents,” Int J Offender Ther Comp Criminal 58, no. 12, (2014): 1415. ] Lastly, psychopaths appear to be driven by a high inclination towards impulsivity.

Patrick points out that response modulation happen to be one of the most prominent deficits in psychopathy (113).[footnoteRef:12] For instance, as normal people, when engaging in various undertakings, we are usually capable of altering our pursuits on the basis of pertinent or applicable peripheral information appearing once the undertaking has commenced. Patrick observes that psychopaths have a deficiency on this front (114).[footnoteRef:13] This, according to the authors, gives rise to their inherent impulsivity. [12: Patrick, ed., Handbook of Psychopath, 2nd ed., 113. ] [13: Patrick, ed., Handbook of Psychopath, 2nd ed., 113.

] It would also be prudent to mention that in seeking to clinically diagnose psychopathy, various approaches have been used in the past. One of the most widely used approaches is the 20-item Hare Psychopathy Checklist. Indeed, researchers as well as clinicians consider the checklist a gold standard when it comes to the evaluation as well as assessment of psychopathy (74).[footnoteRef:14] The author also points out that in comparison to other tools of psychopathy assessment, the 20-item Hare Psychopathy Checklist has proven to be a rather accurate violent behavior predictor.

In basic terms, the said checklist comprises of a total of 20 items that have a 0 – 2 rating. In this case, while 0 means ‘does not apply’, 1 means ‘somewhat applies’, and 2 means ‘fully applies.’ [14: Brian L. Cutler, ed., Encyclopedia of Psychology and Law (Los Angeles: SAGE, 2008), 74. ] As it has been pointed out elsewhere in this text, although psychopaths lack empathy and conscience on the inside, they appear as normal people on the outside.

This is to say that psychopathy is, by design, a disorder that is not easy to diagnose. It is important to note that although psychopaths have a tendency to be volatile and even intensely manipulative, they do not always engage in criminal activity. Various studies have in the past been conducted in an attempt to establish the relationship (if any) between psychopathy and criminal behavior.

In such one study Dhingra and Boduszek point out that “substantial empirical research exists to suggest that psychopathy is a robust predictor of criminal behavior and recidivism” (83).[footnoteRef:15] The authors also point out that within the criminal justice system, psychopathy is seen as being a key psychological construct. This is an assertion supported by Kiehl and Hoffman (212).[footnoteRef:16] According to the authors, non-psychopaths have a low likelihood of being in jail as compared to psychopaths.

As a matter of fact, in their own words, Kiehl and Hoffman observe that previous research studies have clearly indicated that “psychopaths are twenty to twenty-five times more likely than non-psychopaths to be in prison, four to eight times more likely to violently recidivate compared to non-psychopaths, and are resistant to most forms of treatment” (355).[footnoteRef:17] It should be noted that in some instances, psychopaths engage in criminal behavior in collaboration with another party.

Research, according to Helfgott, has indicated that in such instances, the other party is in most cases a non-psychopath (39).[footnoteRef:18] Here, the non-psychopath is used by the psychopath as a scapegoat. In an attempt to avoid prosecution, the latter will therefore typically manipulate the former into admitting liability for the crime. This is one of the clearest indicators that in reality, most of the crimes psychopaths commit are premeditated and well-calculated.

[15: Kate Dhingra and Daniel Boduszek, “Psychopathy and Criminal Behavior – A Psychological Research Perspective,” Journal of Criminal Psychology 3, no. 2, (2013): 83. ] [16: Kent A. Kiehl and Morris B. Hoffman, “The Criminal Psychopath: History, Neuroscience, Treatment, and Economics,” Jurimetrics 51, (2011): 212. ] [17: Kiehl and Hoffman, “The Criminal Psychopath: History, Neuroscience, Treatment, and Economics,” 355. ] [18: Jacqueline B. Helfgott, Criminal Behavior: Theories, Typologies and Criminal Justice (Los Angeles: SAGE, 2008), 39.] III.

The Insanity Defense and Diminished Capacity From time immemorial, the society has frowned upon the issuance of punishments to persons who have not been found responsible for the commission of crimes for which punishment is due. In basic terms, legal insanity is an affirmative defense that is founded on this particular concept.

Towards this end, it is argued that offenders who have mental disabilities ought to be advanced some legal protection so as to guarantee their basic human rights – particularly given that their mentally disordered states could, at the time of the commission of an offense, have denied them proper understanding of the rationality as well as consequences of their actions (74).[footnoteRef:19] The all important question remains; are mentally disordered persons incapable of willfully committing crimes? If the answer to this question is a resounding yes, then such individuals ought to be exempted from punishment.

[19: Cutler, Encyclopedia of Psychology and Law, 74.] With its primary application being in criminal prosecutions, the insanity defense is largely founded on the presumption or supposition that at the time a criminal act was committed, the defendant had no capacity to distinguish between that which is wrong and that which is right, as a result of a severe mental illness afflicting him – with the argument presented that such a defendant, therefore, ought not to be held legally accountable for the commission of the crime in question (84).[footnoteRef:20] It is important to note that there is often a clear distinction made between the clinical and the legal concept of insanity defense.

In short, as Patrick observes, insanity may not be sufficiently proved on the basis of just suffering from a mental disorder (39).[footnoteRef:21] This effectively means that the successful execution of a legal insanity defense in a court of law could even be harder than its determination.

Insanity, in the words of Loveless, Allen, and Derry, “will only apply to mental disorder which is serious enough to deprive (a person) of either: knowledge of the nature and quality of his actions; or knowledge that whet he had done was wrong” (267).[footnoteRef:22] It should, therefore, be noted that insanity and diminished responsibility could be distinguished on the basis that insanity is largely focused on what Loveless, Allen, and Derry refer to as “the intellectual or cognitive faculties of memory, reason and understanding” (267).[footnoteRef:23] In that regard, therefore, unlike insanity, diminished responsibility is not in any way primarily focused on cognition or knowledge, but with the various disorders of the mind.

[20: Cutler, Encyclopedia of Psychology and Law, 84.] [21: Patrick, ed., Handbook of Psychopath, 2nd ed., 22. ] [22: Janet Loveless, Mischa Allen, and Caroline Derry, Complete Criminal Law: Text, Cases, and Materials, 6th ed. (New York, NY: Oxford University Press, 2018), 267. ] [23: Loveless, Allen, and Derry, Complete Criminal Law: Text, Cases, and Materials, 267.] Mental incapacity or insanity defenses founded on personality disorders have a long history.

Indeed, the said defense, as Asokan points out, has been in existence since the ancient Rome and Greece (195).[footnoteRef:24] As a matter of fact, in the words of the author, the very first documented “recognition of insanity as a defense to criminal charges was recorded in a 1581 English legal treatise stating that, “if a madman or a natural fool, or a lunatic in the time of his lunacy” kills someone, they cannot be held accountable” (195).[footnoteRef:25] Some of the countries that have in the past made extensive use of these defenses include, but they are not limited to, Belgium, Germany, England, and the Netherlands.

It is important to note that in the U.S., whenever responsibility is negated as a consequence of the presentation of evidence of mental illness, the route that is often taken is that of diminished responsibility or insanity plea.

According to Helfgott, it is only under the insanity defense that mental defect and/or disease can be deemed an applicable defense as per Insanity Defense Reform Act of 1984 (39).[footnoteRef:26] This is to say that the preclusion of psychiatric testimony is likely to take place in those instances whereby in the criminal responsibility test, a personality disorder cannot be categorized within the confines of mental defect or disease. [24: T.V. Asokan, “The Insanity Defense: Related Issues,” Indian J Psychiatry 58, no. 2, (2016): 195. ] [25: Asokan, “The Insanity Defense: Related Issues,” 195.

] [26: Jacqueline Helfgott, No Remorse: Psychopathy and Criminal Justice (Belmont, CA: Praeger Frederick, 2018), 39. ] It is important to note that when it comes to a diminished capacity or insanity plea, the apportionment of a definitive meaning to mental defect or disease has proved elusive for the U.S. as various jurisdictions read from different scripts on this front.

Helfgott points out that for instance, a diminished-capacity defense could be founded on a personality disorder, as per the New Jersey Supreme Court (43).[footnoteRef:27] One specific case that provided guidance on this front was State v. Gallaway (1993).

In this particular case, the New Jersey Supreme Court pronounced itself on this matter, stating that: “the defendant’s borderline personality disorder should be considered as a mental disorder as defined in the law, and therefore should qualify as a pathological condition that rendered the defendant incapable of formulating the requisite mental state for the crime of murder” (182).[footnoteRef:28] In this case, Galloway, the defendant, caused the death of his girlfriend’s child by way of physical assault.

Specifically, the court ruled that: [27: Helfgott, No Remorse: Psychopathy and Criminal Justice, 43. ] [28: Theodore Millon and Caryl Bloom, The Millon Inventories: A Practitioner’s Guide to Personalized Clinical Assesment, 2nd ed. (New York, NY: Guilford Press, 2008), 182. ] The law of a state like Oregon no longer includes individuals having only a personality disorder on the insanity defense.

Fradella points out that the exclusion of such individuals was based on the prevailing belief amongst legislators that responsibility for criminal behavior was being avoided via the utilization of the defense (217).[footnoteRef:29] As the author further points out, insanity claims by defendants with personality disorders have been routinely contested by prosecutors. Further, there has also been an observation to the effect that presentations made by the experts often confuse juries.

These are some of the considerations that Oregon legislators took into account in amending the law on insanity defense so as to ensure that the said defense was largely reserved for persons possessing mental illnesses deemed serious (218).[footnoteRef:30] According to the author, it was also felt that on the basis of the limited resources available, only persons having realistic chances of benefiting from treatment as well as gaining access to community placement ought to have the insanity defense at their disposal.

It should be noted that there are studies that have indicated that psychopaths with criminal records respond poorly to any clinical interventions. For instance, in the words of Dhingra and Boduszek, “a study of 178 treated rapists and child molesters, found that within six years of release from prison more than 80 per cent of offenders with high PCL-R scores had violently recidivated” (96).[footnoteRef:31] This is consistent with the results of numerous other studies that have concerned themselves with the recidivism of psychopathic criminals. IV. Moral Responsibility v.

Legal Responsibility [29: Henry, F. Fradella, Mental Illness and Criminal Defenses of Excuse in Contemporary American Law (Mason, OH: Academia Press, 2008), 217. ] [30: Fradella, Mental Illness and Criminal Defenses of Excuse in Contemporary American Law, 218. ] [31: Dhingra and Boduszek, “Psychopathy and Criminal Behavior – A Psychological Research Perspective,” 96. ] An assessment of criminal law and psychopathy would not be complete without an attempt to determine whether psychopaths ought to be held morally responsible and/or legally responsible for their actions.

Thus with regard to moral responsibility, we would be seeking an answer to the question: should psychopaths be held morally responsible for wrongful deeds? It has been argued in the past that psychopaths have no capability to distinguish right from wrong. According to Patrick psychopaths suffer cognitive deficiencies (72).[footnoteRef:32] The failure by a psychopath to assess the ethical or moral bearing of his actions means that he is unable to control his actions on the basis of rational evaluation of consequences. Therefore, he should not be deemed morally responsible.

Patrick is of the opinion that psychopaths, unlike normal people, lack the motivation to engage in morally upright engagements (73).[footnoteRef:33] The author argues that for a normal person to act morally, he ought to have a certain level of ethical perception. With no such perception, it would be impossible to gauge actions on the basis of their morality score. The author is of the opinion that emotions come in handy in the effectuation or achievement of the said perception.

As it has been pointed out elsewhere in this text, psychopaths lack emotions. It therefore follows that psychopaths and normal people perceive ethical standards differently. Thus, psychopaths lack the capacity to develop the appropriate ethical perceptions necessary for morally upright behavior.

For instance, according to Helfgott, “recent empirical results suggest that adult psychopathic offenders, when compared to non-psychopathic offenders, manifest insensitivity to the distinction between moral and conventional transgression” (77).[footnoteRef:34] On the basis of the arguments presented above, therefore, psychopaths ought not to be held morally responsible for wrongful deeds. [32: Patrick, ed., Handbook of Psychopath, 2nd ed., 72. ] [33: Patrick, ed., Handbook of Psychopath, 2nd ed., 73. ] [34: Helfgott, No Remorse: Psychopathy and Criminal Justice, 77.

] It is, however, important to note that there are some who are convinced that psychopaths possess sufficient knowledge and awareness to act morally. This school of thought holds that the society owes no special obligations or favors to psychopaths.

According to Caouette, it has been argued that that the life trajectory of an individual is often molded via various relationships in a wide range of contexts (26).[footnoteRef:35] The author, however, points out that “in the case of psychopaths, the negative relationships that have played a role in molding the persons they have become do not seem to mitigate their responsibility or exculpate their blameworthiness” (26).[footnoteRef:36] Thus regardless of the evidence presented to the effect that psychopaths suffer from special mental disorders that get in the way of proper judgment, this does not exclude their actions from some form of moral scrutiny or appraisal.

[35: Justin Caouette, “Moral Responsibility and Psychopathy: Why we do Not Have Special Obligations to the Psychopath,” AJOB Neuroscience 4, no. 2, (2013): 26. ] [36: Caouette, “Moral Responsibility and Psychopathy: Why we do Not Have Special Obligations to the Psychopath,” 26. ] It is also important to note that some claims have been made in some quarters that psychopaths are capable of not only manipulating others, but also inventing personas.

According to Sheridan, psychopaths could project different personas to diverse sets of people, and as the author further points out, “through ‘pit plays’ they often beckon their target to become unknowingly entangled in their web of lies and deceit” (107).[footnoteRef:37] While they could indeed be impulsive, Sheridan’s assertion indicates that psychopaths possess some level of awareness for their actions. For this reason, a valid argument could be presented to the effect that psychopaths ought to be held morally responsible for wrongful deeds.

In seeking to provide further basis for this conclusion, it would be prudent recount a real-life case of an incarcerated psychopath as told by Kiehl and Hoffman (32).[footnoteRef:38] The authors recall a specific instance whereby the said incarcerated psychopath pointed out to investigators that his parents would always support him in various formats whenever he sought their intervention. For instance, he pointed out that his parents would always come through for him whenever he was in need of financial assistance.

However, upon going through his file, the investigators found a letter penned by the incarcerated psychopath’s father requesting the Department of Corrections to ensure that his son did not contact them ever again. As Kiehl and Hoffman point out, the psychopath’s family had arrived at this decision upon the realization that their son had consistently manipulated and deceived them over a 20 year period. Therefore, they no longer wanted anything to do with him.

When the investigators pointed this fact out to the psychopath, Kiehl and Hoffman observe that he simply laughed and pointed out that “Mom and Dad always say that, but they always give in” (33).[footnoteRef:39] This is a clear indication of the ability of psychopaths to engage in carefully thought out manipulative behavior.

[37: Thomas Sheridan, Puzzling People: The Labyrinth of the Psychopath (Mason, OH: BookBaby, 2012), 107.] [38: Kiehl and Hoffman, “The Criminal Psychopath: History, Neuroscience, Treatment, and Economics,” 32.] [39: Kiehl and Hoffman, “The Criminal Psychopath: History, Neuroscience, Treatment, and Economics,” 32.] When it comes to the legal responsibility aspect, we would be seeking an answer to the question: should psychopaths be held legally responsible for wrongful deeds? It is important to note from the onset that as Patrick points out, a defense of non-responsibility (i.e.

by way or playing the legal insanity card) cannot be founded on psychopathy alone (78).[footnoteRef:40] As a matter of fact, the author is of the opinion that in sentencing, psychopathic behavioral concerns could become aggravating factors. The said behavioral concerns include, but they are not limited to recidivism and threat potential.

According to the author, contrary to popular belief, psychopaths who elect to engage in criminal behavior are often in touch with reality (79).[footnoteRef:41] This is to say that they are fully aware of the factual nature of the course of actions that they adopt. For instance, given that they possess the capacity to experience physical pain, psychopaths would be expected to understand that others too are capable of experiencing physical pain.

In that regard, therefore, when a psychopath is convicted of assault (for instance), the defense of non-responsibility ought not to apply. Criminal responsibility happens to be rather straightforward as per the American law. Towards this end, the definition of crimes is rooted in their criteria (i.e. crime elements). According to Helfgott the two most critical elements on this front are actus reus and mens rea (79).[footnoteRef:42] In the example of assault given above, the prohibited act (i.e. actus reus) is present in the form of assault.

On the other hand, mens rea (i.e. the culpable mental state) could be debated.

However, the mens rea terms, as Morse observes, are not inclusive of an individual’s capability for moral reflection (206).[footnoteRef:43] Towards this end, “an ambivalently formed or held intention is nonetheless an intention,” which effectively means that “unless psychopaths suffer from some other abnormal condition, there is no reason to believe that in general they do not act or cannot form the mental states the law requires when they commit crimes” (206).[footnoteRef:44] In the end, it should be noted that there is sufficient evidence to indicate that stricter legal penalties ought to be applied in reference to psychopaths.

According to Helfgott, psychopaths have an increased risk of recidivism (103).[footnoteRef:45] Thus as per this argument, upon conviction, psychopaths ought to suffer the very same (or stiffer) penalties their normal counterparts suffer. It should, however, be noted that regardless of the conclusions arrived at above, psychopathy and criminality are not synonymous.

As a matter of fact, there are many psychopaths who “do not come into contact with the criminal justice system, managing to restrict their antisocial behaviors to noncriminal manipulation and deceit to avoid detection” (140).[footnoteRef:46] [40: Patrick, ed., Handbook of Psychopath, 2nd ed., 78. ] [41: Patrick, ed., Handbook of Psychopath, 2nd ed., 79. ] [42: Helfgott, No Remorse: Psychopathy and Criminal Justice, 79. ] [43: Stephen J. Morse, “Psychopathy and Criminal Responsibility,” Neuroethics 1, (2008): 206. ] [44: Morse, “Psychopathy and Criminal Responsibility,” 206. ] [45: Helfgott, No Remorse: Psychopathy and Criminal Justice, 103. ] [46: Helfgott, No Remorse: Psychopathy and Criminal Justice, 140.] V.

Should We Punish Psychopaths? There is the argument that psychopaths are “people who cannot feel compassion and so are fully indifferent to the harm that they cause others” (1301).[footnoteRef:47] As per this point of view, psychopaths are presented as the victims, i.e. in what Levy refers to as “victims of a neurological disorder, or environmental forces, or of misguided beliefs” (1301).[footnoteRef:48] In that regard, therefore, it would appear wrong to subject psychopaths who have committed criminal acts to the normal criminal justice system.

It should, however, be noted that there are also equally compelling arguments that have in the past been presented in favor of punishing psychopaths for their criminal actions. For instance, as Helfgott observes, psychopaths, by definition are not psychotic (140).[footnoteRef:49] For this reason, the author points out that “they know right from wrong, are responsible for their actions, and with their lack of conscience are inclined to commit criminal behavior" (140).[footnoteRef:50] Towards this end, it would appear that the law ought not to excuse psychopaths.

As it has been pointed out elsewhere in this text, psychopathy is often regarded an aggravating factor as per the current legal setup and could therefore be invoked in capital sentencing as a risk factor. [47: Ken Levy, “Dangerous Psychopaths: Criminally Responsible but Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention,” San Diego Law Review 48, (2011): 1301. ] [48: Levy, “Dangerous Psychopaths: Criminally Responsible but Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention,” 1301] [49: Helfgott, No Remorse: Psychopathy and Criminal Justice, 140.

] [50: Helfgott, No Remorse: Psychopathy and Criminal Justice, 140. ] Criminal law is designed to punish persons for the willful commission of criminal activities, except in those instances whereby such persons can be able to demonstrate that they were not responsible for the commission of the said crimes. Given that psychopaths are capable of distinguishing right from wrong, it appears that they ought to be punished for crimes that they commit. It is also important to note that punishment by locking psychopaths away in detention facilities appears to serve a meaningful purpose.

As Patrick points out, “psychopathy’s defining characteristics, such as impulsivity, criminal versatility, callousness and lack of empathy and remorse, make the conceptual link between violence and psychopathy straightforward” (78).[footnoteRef:51] When psychopaths with criminal tendencies are permitted to roam freely, they present a special risk to the society. Various research studies have indicated that indeed, criminal behavior and psychopathy often have a high correlation. It would be appropriate to cite some statistical evidence to back up this claim.

According to Sheridan, although the global population of psychopaths is estimated to be 1%, psychopaths locked away in U.S. prisons constitute approximately 25% of the country’s prison population (107).[footnoteRef:52] [51: Patrick, ed., Handbook of Psychopath, 2nd ed., 78] [52: Sheridan, Puzzling People: The Labyrinth of the Psychopath, 107. ] Regardless of how compelling the arguments presented above in favor of punishing psychopaths appear, it is important to note that there are equally compelling pleas against punishing psychopaths. One such plea submits that psychopaths process punishment differently from normal people.

According to Sheridan, when interviewed, criminal psychopaths demonstrate annoyance and disgruntlement over their incarceration (112).[footnoteRef:53] They appear to be convinced that the punishment meted upon them is wholly undeserved. For this reason, they may not benefit in any way from punishment. Indeed, when psychopathic criminals complete their “neuropsychological tasks, they fail to learn from punishment cues” (112).[footnoteRef:54] It should, however, be noted that this argument is largely defective. Punishment seeks to serve several purposes.

In addition to serving as a deterrence, punishment also pursues the incapacitation objective (which is the alienation of a defendant from the society with an aim of preventing future crime). In some instances, punishment also comes in hand in rehabilitation efforts. The other objectives of punishment include retribution and deterrence. The argument above against the punishment of psychopaths takes into consideration only a single objective of punishment, i.e. rehabilitation. If criminal psychopaths cannot perceive the meaning of punishment, then their behavior cannot be altered.

However, in this case, all the other objectives of punishment are still met with the punishment of a psychopath. For instance, it addition to removing the psychopath from the society and thus preventing future crime (incapacitation), the punishment of psychopaths also serves to reduce chances of the occurrence of future crime via the minimization of the avengement desire (i.e. retribution). The general public (as well as other psychopathic elements) is also frightened into adhering to the laws in place lest it suffers the same fate as the punished individual.

[53: Sheridan, Puzzling People: The Labyrinth of the Psychopath, 112. ] [54: Sheridan, Puzzling People: The Labyrinth of the Psychopath, 112. ] In the final analysis, it is important to note that no research has questioned the ability of psychopaths to distinguish right from wrong. What has been well documented in previous studies is the inability of psychopaths to have feelings or project emotions. In that regard, therefore, when it comes to criminal liability (and hence punishment), psychopaths ought to be treated differently from other individuals who suffer debilitating mental conditions such as dementia and schizophrenia.

Unlike psychopaths, the other categorizations of persons suffering from mental disorders lack cognitive capacity. More specifically, psychopathic individuals, as numerous studies have indicated, have full awareness of whether or not their actions are in violation of any social norm (78).[footnoteRef:55] In that regard, therefore, psychopaths ought to be punished for violations of the law. [55: Patrick, ed., Handbook of Psychopath, 2nd ed., 78] VI. Civil Commitment: Societal Safety v.

Individual Liberty Involuntary hospitalization (civil commitment) has been around for a long time, and has been used primarily as an approach towards the restriction of an individual’s freedom in those instances whereby the individual in question suffers from a psychiatric disorder that triggers significant changes in behavior – thereby necessitating quick action.

With reference to psychopaths, civil commitment is in essence an interaction of sorts between the legal and the medical system, which ought to be seen as an attempt to ensure that the psychopath does not harm himself or others. It is important to note that in the United States, the specific policies and mechanisms that seek to govern civil commitment vary.