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The Criminal Responsibility of Psychopathic Offenders

Published online by Cambridge University Press:  04 July 2014

Maya Mei-Tal
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Abstract

The main purpose of this paper is, first, to consider the nature of psychopathic personality disorder, and then, to consider the capacity for criminal culpability of psychopaths and whether it is justified to hold them culpable. Initially, a description of the disorder of psychopathy shall be presented, highlighting those character traits deemed relevant for findings of criminal culpability. There follows a brief discussion of the main theories justifying punishment and their position on punishing persons incapable of effective participation in moral reasoning. Lastly, a discussion of the importance for moral condemnation of the capacity to feel empathy and the absence of that capacity in the psychopath, leading to the conclusion that these persons should not be regarded as blameworthy.

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Articles
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Israel Law Review , Volume 36 , Issue 2 , Summer 2002 , pp. 103 - 121
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2002

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References

1 Pinel, Philipe, 1801, described the disorder as ‘emportement maniaque sans delire’ in Millon, Theodore, Simonsen, Erik, Davis, Roger D., Birket-Smith, Morten (eds.) Psychopathy: Antisocial, Criminal, and Violent Behavior (New York, Guillford Publications 1998) 7Google Scholar. Later, in 1891, the German clinician Koch ascribed the term ‘psychopath,’ later narrowed down to denote this specific category of antisocial individuals, in “Annex A: History: Severe Personality Disorder and the Law” in Home Office & Department of Health, “Managing Dangerous People with Severe Personality Disorder: Proposals for Policy Development,” July 1999, 25Google Scholar; Smith, Robert Joseph, The Psychopath in Society (New York, Academic Press, 1978) 1–5Google Scholar.

2 See, inter alia, Hare, Robert Douglas, “Psychopathy: Some Implications for Understanding Human Predatory Violence” in Sanmartin, Jose ed. Psychopaths and Serial Killers (Spain, Queen Sophia Centre, 2000)Google Scholar; Hare, Robert Douglas, “Psychopaths and Their Nature: Some Implications for Understanding Human Predatory Violence” in Sanmartin, Jose & Raine, Adrian eds., Violence and Psychopathy (Kluwer, 2000Google Scholar); Hare, Robert Douglas, “Psychopathy and Risk for Recidivism and Violence” in Gray, Nicola ed., Criminal Justice, Mental Health, and the Politics of Risk (London, Cavendish, 2002) 27–47Google Scholar; Cooke, David J., “Psychopathy Across Cultures” in Cooke, David J., Forth, Adelle E. & Hare, Robert Douglas, Psychopathy: Theory, Research and Implications for Society, (Dordrecht, Kluwer, 1997) 13–45Google Scholar; Forth, Adelle E. et al. , “The Assessment of Psychopathy in Male and Female Noncriminals: Reliability and Validity,” (1996) 20(5) Personality and Individual Differences 531CrossRefGoogle Scholar; Hare, Robert Douglas, Harpur, T. J. et al. , “The Revised Psychopathy Checklist: Descriptive Statistics, Reliability, and Factor Structure,” 1990 2 Psychological Assessment 338CrossRefGoogle Scholar.

3 Used by the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (the DSM–IV), Axis II, 1994Google Scholar. (Hereafter, the DSM).

4 As used by the World Health Organization's 10th International Classification of Diseases (the ICD–10) 1992. (Hereafter, the ICD).

5 Preferred by the British Government; see the White Paper, “Reforming the Mental Health Act,” (Hereafter the White Paper) Part II: High Risk Patients, Cm 5016–II. Despite the absence of the term DSPD from the draft Mental Health Bill 2002 (Hereafter the draft Bill) (Cm 5538) June 2002, DSPD is still on the government's agenda. Pilot projects are already under way in Whitemoor Prison and Rampton Hospital. See www.homeoffice.gov.uk/cpg/dspdhome.htm.

6 See Hare, Robert Douglas, “Psychopaths: New Trends in Research,” (1995) Harvard Mental Health LetterGoogle Scholar; Hare, Robert Douglas, “Psychopathy and Antisocial Personality Disorder: A Case of Diagnostic Confusion,” (1996) 13(2) Psychiatric TimesGoogle Scholar.

7 DSM–4, 301.7 A(1).

8 See Factor 1 of the Hare Psychopathy Checklist-Revised.

9 For ample psychiatric literature on psychopathy, see Robert Douglas Hare's website www.hare.org. See also the recent efforts at mental health reforms in Britain, evident in collaboration between the relevant agencies and Robert Douglas Hare in the creation of new research and treatment programmes for people suffering from severe personality disorders who are deemed dangerous to the public. See http://www.dspdprogramme.gov.uk for more details. For evidence of collaborations between the Correctional Service of Canada and Robert Douglas Hare, see Pinkney v. Attorney General of Canada [2001] F.C.T.. 1053, http://decisions.fct-cf.gc.ca/fct/2001/2001fct1053.html. See also the Forum on Correctional Research by the Canadian Correctional Service, http://www.csc-scc.gc.ca/text/pblct/forum/index_e.shtml.

10 The key research and consequent diagnostic tool of today, is the Hare Psychopathy Check List Revised, see Hare, Robert Douglas, Manual for the Revised Psychopathy Checklist (Toronto, Multi-Health Systems, 1991)Google Scholar, referred to from here on as the ‘PCL-R’. This has been to some extent based on Hervey Cleckley's early and definitive work The Mask of Sanity, first edition published in 1941.

11 See Cleckley, HarveyThe Mask of Sanity, (Augusta, Georgia, Emily S. Cleckley, 1988), 337–364 and the Hare PCL–RGoogle Scholar.

12 Cleckley's description of a ‘mask of sanity’: “The observer is confronted with a convincing mask of sanity. All the outward features of this mask are intact; it cannot be displaced or penetrated by questions directed toward deeper personality levels.” In Cleckley's, The Mask of Sanity (1964), at 404–454Google Scholar.

13 Cleckley, , in first edition of The Mask of Sanity, (1941)Google Scholar, argued that psychopaths should be called psychotic.

14 See Clyne, Peter, “A Sort of Quiet Detachment: Psychopaths in Perspective” in Guilty but Insane, (London, Nelson, 1973) 145–160Google Scholar, where he refers to the psychopath as “a tragic exception to John Donne's statement that no man is an island” at 145.

15 Referring to the general principles accepted by both the English and Commonwealth common law systems and the North American one.

16 Israeli law derives from the Anglo-American system of law and has not changed significantly in this regard. See section 34(h) of the Israeli Penal Code of 1977. This section follows the M'Naghten rules and excludes from liability individuals suffering from a cognitive defect of mind that impairs understanding of one's conduct or its status. Israeli law has added an exemption relating to an irresistible impulse arising out of a psychotic condition. Due to the similarity between Israeli law and its Anglo-American counterparts, it is deemed unnecessary to discuss them independently of Anglo-American law.

17 See, for instance, Wootton, Barbara, “Diminished Responsibility: A Laymen's View,” (1960) 76 LQR 224Google Scholar; Duff, Anthony., “Psychopathy and Moral Understanding.” (1977) 14(3) American Philosophical Quarterly at 189–200Google Scholar; Elliot, Carl, “Diagnosing Blame: Responsibility and the Psychopath,” (1992) 17 The Journal of Medicine and Philosophy at 199–214CrossRefGoogle Scholar.

18 Such as the originally Scottish defense of diminished responsibility under English law, which is formed in rather broad terms: “suffering from abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impairs mental responsibility for his acts”: English Homicide Act, 1957, sec.2

19 Such as the English Mental Health Act 1983, which defines ‘psychopathic disorder’ as a mental disorder. Note, however, that the Act provides for limited possibilities of treatment and detention, due to the treatability test. See section 3(2)(b) requiring “treatment is likely to alleviate or prevent a deterioration of his condition.”

20 The author is currently completing an article on the subject. For general discussion on the Mental Health Act, 1983, and its application to psychopathic offenders, see Jones, Richard, Mental Health Act Manual (Sweet and Maxwell, 2002)Google Scholar..

21 See Aristotle's emphasis on the metaphysical element and epistemological one in The Nicomachean Ethics, Book 3.

22 Primarily the insanity defense, following the 1843 House of Lords' M'Naghten Rules. See criticism of the insanity defence for being too exclusive and divorced from medical opinion, Simester, Andrew & Sullivan, Robert, Criminal Law Theory and Doctrine (U.K. Hart Publishing, 2000) 575–578Google Scholar and Ashworth, Andrew, Principles of Criminal Law, (New York, Oxford University Press, 1995) 204–208Google Scholar. The defense of diminished responsibility is only partly relevant as it is partly exculpating, and thus does not merit present discussion. For discussion on psychopathy, responsibility and diminished responsibility, see Wootton, supra n. 17; see Hart, Herbert Lionel Adolphus, Punishment and Responsibility: Essays in the Philosophy of Law, (New York, Oxford University Press, 1968) 186–209Google Scholar.

23 The common law presumption of incapacity related to children between the ages of 10 and 14 has been abolished in England by the Crime and Disorder Act, section 34 (1998).

24 See Mill, John Stuart, Utilitarianism (Collins, The Fontana Library, 1970)Google ScholarGoldman, Alan, “The Paradox of Punishment,” (1979) 9(1) Philosophy and Public Affairs 47 claims thatGoogle Scholar: “The social benefits from an institution of punishment must outweigh the costs, including the harms imposed.”

25 Arenella, Peter, “Convicting the Morally Blameless” (1992) University of California Law Review 1511, at 1533Google Scholar.

26 See supra n. 25.

27 See Rawls, John, A Theory of Justice, (Oxford, Oxford University Press, 1999)Google Scholar. Brandt, Richard B., Ethical Theory: the Problems of Normative and Critical Ethics, (Englewood Cliffs, Prentice Hall, 1959)Google Scholar, defends Rule-Utilitarianism, where the utility is judged, not on a case by case basis, but on a rule basis.

28 See Hart, supra note 22, 28–53, where he illustrates judges' observations referring to a ‘morally evil mind,’ at 35. See statement by Denning, LJ: “In order that an act should be punishable, it must be morally blameworthy. It must be a sin.” in The Changing Law (Stevens, 1953), at 112Google Scholar.

29 Or malum in se.

30 Or malum prohibita..

31 See Bearden, Tom, “Setting Limits,” November 29, 1995Google Scholar, Transcript, following US legislation abolishing the national highway speed limit http://www.pbs.org/newshour/bb/transportation/speed_limits_11-29.html

32 Note that speeding is often hindered by road disposition as well as speed limits, such as speed bumps, bends and turns etc.

33 Bear in mind that a more wide-ranging interpretation of mala prohibita crimes would still require a moral agency, as it involves concern for the law, which is in itself a moral issue of conforming to the demands of society, which the psychopath lacks. This view, however, requires further elaboration which is beyond the scope of this paper.

34 Judiciously applying the severe maxim ignorantia juris neminem excusat, ignorance of the law excuses no one, to the criminal law.

35 See Ashworth, supra n. 22, at 234.

36 See Robinson, Paul H., “Hybrid Principals for the Distribution of Criminal Sanctions,” 1987 82(1) Northwestern University Law Review 19–63Google Scholar.

37 See Hart, supra n. 22, especially Ch. I “Prolegomenon to the Principles of Punishment,” Ch. VIII “Changing Conceptions of Responsibility” and Ch. IX “Postscript: Responsibility and Retribution” 1–27, 186–209, & 210–237 respectively.

38 From questions of rehabilitation, to incapacitation, as well as crime rate reduction, increasing public trust in the system etc.

39 This topic requires discussion that is, unfortunately, beyond the scope of the article.

40 See Aristotle, , The Nicomachean Ethics, 1980, Book III, Chapter 5Google Scholar.

41 The Nicomachean Ethics, Book III, Chapter 1.

42 The Nicomachean Ethics, Book III, Chapter 1.

43 Mainly mala in se crimes, namely acts wrong in themselves, rather than by virtue of law, as opposed to mala prohibita offenses.

44 See the leading book by Goleman, David, Emotional Intelligence: Why it Can Matter More Then IQ, (New York, Bantam Books, 1995)Google Scholar.

45 See, for example, Nussbaum, Martha C., Upheavals of Though: The Intelligence of the Emotions, (Cambridge, Cambridge University Press, 2001)CrossRefGoogle Scholar; Wallace, R. Jay. Responsibility and the Moral Sentiments, (Cambridge, Mass., Harvard University Press, 1994)Google Scholar..

46 For a history of the defense, see Walker, Nigel, Crime and Insanity in England: Volume I: The Historical Perspective, (Edinburgh, University Press, 1968)Google Scholar. See also Robitscher, Jonas & Haynes, Andrew Ky, “In Defence of the Insanity Defense,” (1982) 31 Emory Law Journal 9–60Google Scholar.

47 De Bateson, Henry, De legibus et consuetudinibus Angliae, (Woodbine, G.E., ed., Thorne, S.E., trans., (Harvard University Press, 1968–1977)Google Scholar.

48 Original ‘infelicitas,’ translated as ‘ill-luck’ or misfortune.

49 See Walker, supra n 46, at 26.

50 Hale, Matthew, Historia Placitorum Coronae; The History of the Pleas of the Crown, (1736)Google Scholar: “where there is a total defect of the understanding, there is no free act of the will.”

51 Holloway v. U.S., 148 F.2d 665–667.

52 R. v. M'Naghten (1843) 10 Cl. & Fin. 200, 8 Eng. Rep. 718 per Lord Tindal, C.J.

53 See The Royal Commission on Capital Punishment (1955) HO 291/93.

54 See, for example, the recent American case of Andrea Yates where “it was obvious she was mentally ill, it was obvious where the professional organizations would like the case to go, but it would be wrong to distort the law, to stretch the truth and try to engineer the outcome,” said prosecution expert witness Dr.Dietz, Park: Toufexis, A., “A Psychiatrist's-Eye View of Murder and Insanity,” New York Times, April 23, 2002Google Scholar. Yates was found guilty.

55 See Arenella, supra n. 25, and the clinical description of psychopathy in the previous chapter, regarding abstract language understanding deficiencies in psychopaths.

56 See definition of ‘understanding,’ The Penguin Dictionary of Psychology 824 (2nd ed. 1995.)Google Scholar

57 See, inter alia, Intrator, Joanne et al. , “A Brain Imaging (Single Photon Emission Computerized Tomography) Study of Semantic and Affective Processing in Psychopaths,” (1997) 42 Biological Psychiatry 96–103CrossRefGoogle ScholarPubMed; Kiehl, Kent A. et al. , “Semantic and Affective Processing in Psychopaths: An Event-Related Potential (ERP) Study,” (1999) 36(6) Psychophysiology 765–774CrossRefGoogle ScholarPubMed; Patrick, Christopher J. et al. , “Emotion in the Criminal Psychopath: Startle Reflex Modulation,” (1993) 102(1) Journal of Abnormal Psychology 82–92CrossRefGoogle ScholarPubMed; Raine, Adrian et al. , “Reduced Prefrontal Gray Matter Volume and Reduced Autonomic Activity in Antisocial Personality Disorder,” (2000) 57(2) Archives of General Psychiatry 119–127CrossRefGoogle ScholarPubMed.

58 See Kent Kiehl, et al, supra n. 57, at 765–774.

59 Some words offered were emotionally charged, negatively or positively, such as ‘cancer’ and ‘love,’ respectively.

60 See Hare, supra n. 6. A recent study by Larbig, W. et al. “Cerebral and Peripheral Correlates of Psychopaths During Anticipation of Aversive Stimulation,” in Annual Meeting of Society for Psychophysiological Research, 1992Google Scholar studying the processing and use of linguistic and emotional information - compared with normal individuals, psychopaths are less able to process or use the deep semantic meanings of language and to appreciate the emotional significance of events or experiences.

61 It is also consistent with the earlier literature on the disorder, namely Cleckley, who wrote: “despite his otherwise perfect functioning, the major emotional accompaniments are absent or so attenuated as to count for little,” Cleckley, supra n. 12, at 371.

62 This type of rationalization comes after the fact, and is essentially a defense mechanism, rather than a guide to action.

63 See Cleckley, supra n. 12, at 374.

64 See a review of the literature, in Patrick, Christoper. J. & Kristin, K, Zempolich, A., “Emotion and Aggression in the Psychopathic Personality,” (1998) 3(4) Aggression and Violent Behavior 303–338CrossRefGoogle Scholar.

65 Or positive, for that matter.

66 Barker, Elliott T. & Shipton, B., “The Partial Psychopath,” in Psychopathy and Consumerism Two Illnesses That Need And Feed Each Other Conference (Canada, 1995) http://www.bconnex.net/~cspcc/psychopathy/Google Scholar

67 As this is obviously not the case, this does not occur to the psychopath.

68 Or ought.

69 Note that this is not a case of irresistible impulse.

70 Essentially, this is a question of action, rather than the aetiology or content of moral norms.

71 Williams, Bernard, “The Amoralist” in Morality: An Introduction to Ethics (Cambridge, Cambridge University Press, 1993) 3–13CrossRefGoogle Scholar, discusses an amoralist analogous to, if not the same as, the psychopath. At 7–8: “The effects of moral education can actually be to make people want to act, quite often, in a non-self-interested way, and it often succeeds in making it at least quite difficult, for internal reasons, to behave appallingly.”

72 See Williams, supra 71, at 12: “It does not follow from this that having sympathetic concern for other is a necessary condition of being in the world of morality, that the way sketched is the only way ‘into morality’. It does not follow from what has so far been said; but it is true.”

73 See Bateson, C. David et al. , “Is Empathetic Emotion a Source of Altruistic Motivation?,” (1981) 40(2) Journal of Personality and Social Psychology 290–302CrossRefGoogle Scholar; Knights, George P. et al. , “A Multiplicative Model of the Dispositional Antecedents of a Prosocial Behavioral Predicting More of the People More of the Time,” (1994) 66(1) Journal of Personality and Social Psychology 178–183CrossRefGoogle Scholar.

74 Due to the length of this work it is impossible to consider all theories of motivation. Suffice it to say, that it is assumed there is a degree of truth in the biological and evolutionary outlook. For discussion of varying theories of motivation see Murray, Edwards James, Motivation and Emotion, (Foundations of Modern Psychology Series, Prentice Hall Inc., 1964) 1–8Google Scholar; Houston, J.P, Motivation, (Macmillan Publishing, 1985) 3–17Google Scholar.

75 For psychophysiological evidence, see Lang, P.J. et al. , “Emotion, Motivation, and Anxiety: Brain Mechanisms and Psychophyisiology,” (1998) 44 Biological Psychiatry 1248–1263CrossRefGoogle Scholar.

76 See Hoffman, Martin L., “Is Altruism Part of Human Nature?,” (1981) 40(1) Journal of Personality and Social Psychology 121–137CrossRefGoogle Scholar.

77 See Freud's theory of the ego. For an overview and critique, see Peters, Richard Stanley, Psychology and Ethical Development, (London, George Allen and Unwin, 1974) Chap. 3, at 78–86Google Scholar; Hoffman, Martin L., Empathy and Moral Development: Implications for Caring and Justice (Cambridge, Cambridge University Press, 2000)CrossRefGoogle Scholar.

78 See Hoffman, supra n. 77, Chap. 2, at 29–62.

79 Ibid.

80 See Heilbrun, Alfred B., “Cognitive Modes of Criminal Violence Based Upon Intelligence and Psychopathy Levels,” (1982) 50(4) Journal of Consulting and Clinical Psychology 546–557CrossRefGoogle Scholar.

81 See Cleckley, supra n. 12, and Hare, PCL-R. Furthermore, children with psychopathic tendencies were found to be significantly less likely to attribute moral emotions to story characters, compared to children without psychopathic tendencies: Blair, R.J.R., “Moral Reasoning and the Child with Psychopathic Tendencies,” (1997) 22(5) Personality and Individual Differences 731–739CrossRefGoogle Scholar. This data is consistent with the reports on adult psychopaths.

82 Intelligence assessment was not part of these studies.

83 See Rice, M.E. et al. , “An Evaluation of a Maximum Security Therapeutic Community for Psychopaths and Other Mentally Disordered Offenders,” (1992) 16 Law and Human Behavior 399–412CrossRefGoogle Scholar.

84 Eisenberg, Nancy & Miller, Paul A., “The Relationship of Empathy to Aggressive and Externalizing/Antisocial Behavior,” (1988) 103(3) Psychological Bulletin 324–344Google Scholar.

85 See Bateson, supra n. 73. When escape was an option, only 17% of those who felt empathy escaped; the majority helped the person in need.

86 See Williams, supra n. 72.

87 Regan, Tom, The Case for Animal Rights, (Berkley, University of California Press, 1983) at 152Google Scholar.

88 As has been proposed by the Labor Government, see Managing Dangerous People with Severe Personality Disorder: Proposals for Policy Development, 1999.

89 Contrary to Article 3 of the European Convention on Human Rights.

90 Contravening Article 5 of the European Convention on Human Rights, i.e. the right to liberty and security.

91 Nietzsche, Friedrich Wilhelm “Beyond Good and Evil”, Apophthegms and Interludes, section 146Google Scholar.