Criminal Law, Psychopathy, and Moral Responsibility

Introduction

Various studies have 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 have demonstrated that the need for control (or power) and 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 ongoing for a long time.

On one side of the debate are legal scholars, lawmakers, and judges who hold that psychopaths have a predisposition to commit crimes as a result of their lack of concern or compassion for those they hurt. Psychopathy is, on this front, regarded as untreatable, and those who harbor psychopathic behaviors are thought to be highly likely to repeatedly engage in such behaviors. For this reason, this school of thought has pushed for increased punishment for such individuals, with psychopathy being taken as the aggravating factor. This is especially the case given that an argument could be sustained that the defendant is particularly dangerous.¹ In that regard, "sentences of severely mentally ill offenders might not be reduced or might even be enhanced."²

It should, however, be noted that there are those who hold that, as a consequence of the neurological disorder they suffer from, psychopaths should be deemed the actual victims of inherently misguided beliefs. Their lack of impulse control or empathy is, therefore, a consequence of their neurological abnormalities. This paper concerns itself with criminal law and psychopathy. In doing so, it evaluates the insanity defense and diminished capacity, and assesses the concept of moral responsibility vis-à-vis legal responsibility.

Psychopathy Conceptualized

In seeking to develop an understanding of psychopathy and criminal behavior, it is prudent to first conceptualize psychopathy. According to Patrick, the term psychopathy was formulated in the 1800s after medical practitioners noticed that some of the mental patients they worked with possessed what they referred to as moral insanity or depravity, despite projecting normal behavior outwardly.³ This is to say that the patients did not seem to have any concern for other people's rights or feelings. However, as Patrick further points out, it was not until the 1900s that the application of the term psychopath became widespread in mental health circles.⁴ Even so, during the early twentieth century, "dangerous or persistent lawbreakers were labeled variously as psychopaths or sociopaths, with negligible diagnostic consistency or clarity."⁵ 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 editions have been released since then, resulting in a more substantive and consistent diagnostic criteria. Today, the diagnosis of psychopathy has taken clearer form — it is no longer an imprecise art.

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."⁶ Various conceptual definitions have therefore been presented in an attempt to develop a concise understanding of psychopathy and highlight some of its key core features.

Psychopaths should be distinguished from sociopaths. Although the two terms have been used interchangeably in the past, they are distinct. While the sociopath label may be applied to an individual whose antisocial tendencies appear to result from various environmental and social factors, the traits of a psychopath are 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."⁷ This is the definition of psychopathy adopted in this paper.

An evaluation of the criteria for categorizing psychopathy identifies a core set of traits. To begin with, psychopaths have inherently shallow emotions. According to Anderson and Kiehl, the lack of emotion remains one of the key character traits of psychopaths.⁸ In addition to a lack of compassion, they are also deprived of a wide range of social emotions including embarrassment, guilt, and shame. Another distinguishing characteristic is their uncaring nature. Their disregard for other people's feelings is largely callous, and their lack of empathy distinguishes them from persons with a more stable mental state.

From an ethical perspective, the relevance of disgust cannot be overstated when it comes to moderating our own behaviors. Some courses of action appear disgusting to normal persons, thus acting as a self-regulating mechanism against engaging in such actions. However, when it comes to psychopaths, Wolfe holds that the disgust threshold is quite high.⁹ In the author's words, psychopaths "show smaller reactions to the gruesome sight of mutilated faces, and to foul odors."¹⁰ They therefore lack an internal mechanism that facilitates the express disapproval of certain unethical behaviors.

Irresponsibility and unreliability are yet another prominent hallmark of psychopathy. Psychopaths tend to demonstrate what DeLisi refers to as "blame externalization."¹¹ They naturally adopt a "not my fault" stance whenever they find themselves in a situation likely to attract penalties of some kind — that is, the tendency to apportion blame elsewhere even when the person doing so is clearly responsible for a specific adverse outcome. Even in those instances where blame is admitted, it is not accompanied by feelings of remorse or shame.

Finally, psychopaths appear to be driven by a high inclination toward impulsivity. Patrick points out that response modulation happens to be one of the most prominent deficits in psychopathy.¹² For instance, normal people, when engaging in various undertakings, are typically capable of altering their pursuits on the basis of pertinent peripheral information appearing once the undertaking has commenced. Patrick observes that psychopaths have a deficiency on this front,¹³ which gives rise to their inherent impulsivity.

In seeking to clinically diagnose psychopathy, various approaches have been used. One of the most widely used is the 20-item Hare Psychopathy Checklist. Researchers as well as clinicians consider this checklist a gold standard when it comes to the evaluation and assessment of psychopathy.¹⁴ In comparison to other psychopathy assessment tools, the Hare Psychopathy Checklist has also proven to be a rather accurate predictor of violent behavior. In basic terms, the checklist comprises 20 items with a 0–2 rating, where 0 means "does not apply," 1 means "somewhat applies," and 2 means "fully applies."

Although psychopaths lack empathy and conscience on the inside, they appear as normal people on the outside. Psychopathy is, by design, a disorder that is not easy to diagnose. It is also important to note that although psychopaths have a tendency to be volatile and intensely manipulative, they do not always engage in criminal activity. Various studies have been conducted in an attempt to establish the relationship (if any) between psychopathy and criminal behavior. In one such study, Dhingra and Boduszek point out that "substantial empirical research exists to suggest that psychopathy is a robust predictor of criminal behavior and recidivism."¹⁵ According to Kiehl and Hoffman, 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."¹⁶

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.¹⁷ Here, the non-psychopath is used by the psychopath as a scapegoat. In an attempt to avoid prosecution, the psychopath will typically manipulate the non-psychopath 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.

The Insanity Defense and Diminished Capacity

From time immemorial, society has frowned upon the issuance of punishment to persons who have not been found responsible for the commission of crimes. In basic terms, legal insanity is an affirmative defense founded on this concept. It is argued that offenders who have mental disabilities ought to be afforded 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 a proper understanding of the rationality and consequences of their actions.¹⁸ The all-important question remains: are mentally disordered persons incapable of willfully committing crimes? If the answer is yes, then such individuals ought to be exempted from punishment.

With its primary application in criminal prosecutions, the insanity defense is largely founded on the presumption that at the time a criminal act was committed, the defendant had no capacity to distinguish between right and wrong as a result of a severe mental illness — and that such a defendant therefore ought not to be held legally accountable for the commission of the crime in question.¹⁹ It is important to note that there is often a clear distinction made between the clinical and the legal concept of the insanity defense. As Patrick observes, insanity may not be sufficiently proved on the basis of merely suffering from a mental disorder.²⁰ This effectively means that the successful execution of a legal insanity defense in court could even be harder than its clinical 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 what he had done was wrong."²¹

It should therefore be noted that insanity and diminished responsibility can 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."²² Unlike insanity, diminished responsibility is not primarily focused on cognition or knowledge, but on the various disorders of the mind.

Mental incapacity or insanity defenses founded on personality disorders have a long history. The said defense, as Asokan points out, has been in existence since ancient Rome and Greece.²³ As a matter of fact, 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."²⁴ Some of the countries that have made extensive use of these defenses include Belgium, Germany, England, and the Netherlands.

In the United States, whenever responsibility is negated as a consequence of evidence of mental illness, the route typically taken is either diminished responsibility or an 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 the Insanity Defense Reform Act of 1984.²⁵ This means that the preclusion of psychiatric testimony is likely to occur in those instances where a personality disorder cannot be categorized within the confines of mental defect or disease in the criminal responsibility test.

When it comes to a diminished capacity or insanity plea, assigning a definitive meaning to mental defect or disease has proved elusive in the United States, as various jurisdictions approach the issue differently. Helfgott points out that, for instance, a diminished-capacity defense could be founded on a personality disorder, as per the New Jersey Supreme Court.²⁶ One specific case that provided guidance on this front was State v. Gallaway (1993). In this case, the New Jersey Supreme Court stated 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."²⁷ In this case, Galloway, the defendant, had caused the death of his girlfriend's child by way of physical assault.

The law of a state like Oregon no longer includes individuals having only a personality disorder within the scope of the insanity defense. Fradella points out that this exclusion was based on the prevailing belief among legislators that responsibility for criminal behavior was being avoided through use of the defense.²⁸ As the author further points out, insanity claims by defendants with personality disorders have been routinely contested by prosecutors, and there has been an observation that expert presentations often confuse juries. These are some of the considerations Oregon legislators took into account in amending the insanity defense law so as to ensure that the defense was largely reserved for persons with mental illnesses deemed serious.²⁹ It was also felt that, given limited resources, only persons with realistic chances of benefiting from treatment and gaining access to community placement ought to have the insanity defense available to them. It should be noted that studies have indicated that psychopaths with criminal records respond poorly to 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."³⁰ This is consistent with the results of numerous other studies concerning the recidivism of psychopathic criminals.

Conclusion

In the final analysis, it should be noted that psychopathy and criminality are not synonymous — just as not all psychopaths are criminals, not all criminals are psychopaths. As demonstrated in this paper, psychopathic criminals engage in gross violations of the law with zero reference to the consequences of their actions from social, moral, and legal points of view. Further, they appear largely indifferent to other people's suffering. Today, significant misconceptions exist regarding how best to handle psychopaths in the criminal justice system.

In an attempt to ensure that the criminal justice system is responsive to the various needs of all parties, there is a need for additional research on the various measures that ought to be implemented in an attempt to rehabilitate psychopaths. Research must, in this case, take into consideration the available scientific evidence indicating that the distinction between right and wrong among psychopaths takes place within a complex framework of emotional capacity. The findings of such studies could form the basis for future legal prophylactic standards for handling psychopaths.