Psychopathy

Psychopathy provides a theoretical and practical challenge to criminal law and the criminal justice system in general because psychopaths are at disproportionate risk for persistent criminal behavior, their criminal conduct appears to be primarily the product of a mental disorder, and there seems little efficacious treatment.

Psychopathy and competence. Unless a psychopath who offends also suffers from a psychotic disorder, there is little if any likelihood that the offender will be incompetent to stand trial solely because the offender is a psychopath. Because psychopaths feel little hesitation about lying or manipulative behavior and are often adept at concealing such behavior, they may be difficult clients for their attorneys. Moreover, they may not understand that they have done anything wrong. Nevertheless, psychopathy per se does not undermine cognitive understanding to a degree that would meet the criminal law's requirements for incompetence to stand trial because psychopaths can understand the nature of the charges and are capable of assisting counsel. Psychopaths may be at risk for malingering incompetence if they believe that it would be in their interest to be found incompetent, but the risk of malingering is distinguishable from genuine incompetence to stand trial or from any other criminal law criterion related to mental abnormality.

Criminal responsibility. The most interesting theoretical and practical question psychopathy presents is whether psychopaths are morally and legally responsible for their criminal behavior. The criminal law's answer is doctrinally clear: psychopathy alone will not support a defense of nonresponsibility, such as legal insanity, and behavioral manifestations of psychopathy, such as the potential for danger or recidivism, are often aggravating factors in sentencing. Thus, convicted psychopaths are sent to prison like other convicted offenders and often they may face more severe penalties than nonpsychopathic offenders. But is the criminal law's response to psychopathy just and practically sound?

The argument for holding psychopaths responsible for their behavior begins with the observation that psychopaths are firmly in touch with reality. They know the factual nature of their conduct and they know the moral and legal rules and the consequences for violating those rules. Psychopaths might not understand the point of moral and legal rules because they do not understand any moral concern or any consequential concern that is not solely self-interested. Nonetheless, psychopaths have the capacity to feel pain and know that pain will be inflicted if they are convicted of a violation. Also, psychopaths do not appear to suffer from any traditional "volitional" problem. Consequently, it appears that the law can affect the behavior of psychopaths. Even generous application of the most forgiving insanity defense test would appear not to excuse psychopaths. Indeed, for many people, psychopaths seem especially immoral, especially evil, and thus deserving of enhanced punishment. Moreover, to the extent that psychopaths also present an enhanced risk of recidivism, there is good consequential reason to incapacitate them longer.

The argument that psychopaths should not be morally and legally responsible for criminal conduct concedes the truth of the psychopath's cognitive knowledge, but relies on a broader standard of responsibility that requires the capacity for empathy and moral understanding as fundamental to moral rationality. Psychopaths do not "get" the point of morality, of concern for others, of guilt or shame. They are entirely unable to use empathy, concern, or morality as reasons not to harm others, even though these are the best reasons to comply with moral and legal rules. They are "morally insane" and are incapable of being morally responsive agents. Psychopaths are simply not part of the moral community and do not deserve blame and punishment. Many might rebel at this conclusion because they fear psychopaths would then "beat the rap" and be released to harm others. An appropriate finding of legal insanity does not amount to wrongfully beating the rap, however. A person genuinely not responsible should not be blamed and punished.

Dispositional issues. What are the appropriate dispositional consequences of psychopathy? First, consider the standard case in which a psychopathic criminal is convicted and assume that the sentencing judge has some discretion to take psychopathy into account in imposing sentence. As we have seen, psychopathy is an apparently static condition that is not at present amenable to treatment and that increases the risk of recidivism. Psychopathy would then rationally be considered an aggravating factor that would warrant a harsher sentence and even death in jurisdictions that impose capital punishment. The justice of this result would depend entirely, however, on accurate identification of genuine psychopaths. Without such identification, psychopathy could be improperly used to impose unfair sentences based on prejudice or other irrational factors. Recidivism statutes are another means by which psychopathic criminals might receive enhanced incarceration. In this case, psychopathy would not be considered directly, but would produce the recidivism that triggers such enhanced sentencing statutes. Psychopathic criminals are perhaps at special risk for the application of such statutes, but they are not singled out by them.

If some psychopaths were found nonresponsible, as some propose, what should be the appropriate disposition? Most important, a finding of nonresponsibility does not necessarily entail immediate release. Much as people found legally insane may be involuntarily committed as long as they remain dangerous as a result of mental abnormality, psychopaths would be similarly committable. And again, because psychopathy is static and untreatable, dangerous psychopaths would have little hope for early release from involuntary confinement. Indeed, because post-acquittal commitment may be indefinite, there is substantial likelihood that some nonresponsible psychopathic offenders would be confined longer than if they had been convicted of the same crime. Although the outcome of a nonresponsibility finding might be as or more onerous than a conviction, it is still important that the law should clearly identify those who are not responsible and treat them as nonpunitively as possible.

The possibility of indefinite commitment does present a substantial risk to civil liberties. Even if psychopaths were not considered responsible, they do engender dislike and fear, thereby creating the potential simply to incarcerate them for life and without attempting to develop and apply treatments that might change the condition. Moreover, there is the risk that some people would be improperly labeled psychopaths in order to achieve otherwise unjustifiable indefinite incapacitation. Finally, because the risk of almost any harm may constitutionally satisfy the dangerousness component of post-insanity acquittal commitments, potentially lifelong commitment might result for psychopaths who have committed relatively nonserious crimes and are at risk only for such crimes. Careful substantive and procedural checks on findings of psychopathy would be necessary to avoid such various forms of unfairness.

Preventative measures. Are there sound and fair social and legal prophylactic measures to reduce the harms psychopaths might cause? Because the causes of psychopathy are so poorly understood, it will be difficult to devise and to implement social programs to prevent psychopathy or to identify and to treat psychopaths before a substantial antisocial career begins. Early identification of and intervention with children at risk would be especially desirable, but even if reasonably accurate identification were possible, it is not at all clear that efficacious treatment programs exist. Moreover, early identification is now problematic because many children exhibit disturbing, repetitive antisocial behavior, but not all of them are psychopaths and there is yet no clearly valid method for identifying psychopathy or potential psychopathy among children.

The most realistic possibility for limiting psychopaths' potential harms is therefore some form of pure civil commitment that does not depend on proving a charge of or a conviction for a criminal offense. Once again, however, this proposal raises substantial civil liberties concerns. Misidentification, prejudice, fear, and the like could lead to vast amounts of unwarranted deprivation of liberty. And even if proper cases for commitment could be identified, no efficacious treatment to facilitate release is available at present.