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Criminal Law and Psychopathy
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.
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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:…
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In basic terms, there are various ways through which an individual’s right to freedom can be taken away. As has been provided for in law, when an individual poses a significant threat to self (parens patriae) and to the society (police powers), then there are sufficient grounds to curtail such an individual’s liberty. It should be noted that parens patriae cannot be used as a basis for taking away the freedom of a psychopath because the said powers are designed to be tools through which those who have no capacity to help themselves can be assisted. A good example in this case would be the need to protect a child from an abusive guardian. The goal of invoking parens patriae, therefore, is not incarceration or civil commitment, but treatment and care. It is important to note that as Shaw points out, “although psychopaths make up less than 1% of the population, researchers in the United States have estimated that psychopaths may be responsible for up to 30% of violent crimes committed in the United States” (66).[footnoteRef:57] This effectively means that permitting psychopaths who have committed crime to roam freely effectively compromises the security and wellbeing of other members of the society. As it has been pointed out elsewhere in this text, studies have established a clear link between psychopathy and criminal behavior. Indeed, as Dhingra and Boduszek observe, psychopaths tend to perpetrate what is referred to as instrumental violence (221).[footnoteRef:58] Instrumental violence ought to be contrasted from reactive violence in that while instrumental violence appears to be “controlled, purposeful, and used to attain a desired external goal (e.g. money, drugs, or power), reactive violence appears to be largely “impulsive and emotion driven in response to a perceived threat or provocation” (221).[footnoteRef:59] This is one of the clearest indications that criminal psychopaths deserve to be removed from the general population as a way of ensuring that societal safety is not compromised. Civil commitment in this case appears to be the best course of action. It should also be noted that criminal psychopaths have been shown to have higher recidivism rates than normal offenders. This is to say that they are more likely to repeat criminal behaviors that result in negative consequences. As it has been pointed out elsewhere in this text, psychopaths tend to processes punishment differently from normal people. The higher recidivism rates could be as a consequence of this anomaly. This is yet another factor that ought to be taken into consideration in matters relating to involuntary hospitalization or civil commitment of criminal psychopaths.
VII. Conclusion [57: Elisabeth Shaw, “Psychopathy, Moral Understanding and Criminal Responsibility,” European Journal of Current Legal Issues 22, no. 2, (2016): 66. ] [58: Dhingra and Boduszek, “Psychopathy and Criminal Behavior – A Psychological Research Perspective,” 221. ] [59: Dhingra and Boduszek, “Psychopathy and Criminal Behavior – A Psychological Research Perspective,” 221. ]
In the final analysis, it should be noted that psychopathy and criminality are not synonymous. This is not say that just as not all psychopaths are criminals, not all criminals are psychopaths. As it has been demonstrated in this text, psychopathic criminals engage in gross violations of the law with zero reference to the consequence of their actions - from social, moral, as well as legal points of view. Further, they appear to be largely indifferent to other people’s suffering. Today, significant misconceptions exist with regard to 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, there is need for….....
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