Abstract
Current legal practice holds that a diagnosis of psychopathy does not remove criminal responsibility. In contrast, many philosophers and legal experts are increasingly persuaded by evidence from experimental psychology and neuroscience indicating moral and cognitive deficits in psychopaths and have argued that they should be excused from moral responsibility. However, having opposite views concerning psychopaths’ moral responsibility, on the one hand, and criminal responsibility, on the other, seems unfortunate given the assumption that the law should, at least to some extent, react to the same desert-based considerations as do ascriptions of moral responsibility. In response, Stephen Morse has argued that the law should indeed be reformed so as to excuse those with severe psychopathy from blame, but that psychopaths that have committed criminal offences should still be subject to some legal repercussions such as civil commitment. We argue that consequentialist and norm-expressivist considerations analogous to those that support punishing psychopaths or at least retaining some legal liability, might also be drawn on in favour of holding psychopaths morally accountable.
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Notes
However, for an interesting argument that the capacity for self-regulation is a key part of moral agency and one on which psychopaths are likely to fall short, see Kennett (2010). While we do touch on the issue of control in the context of psychopaths’ prudential deficits, we do not make it the focus of our discussion.
Dolan and Fullam (2010) also conducted a study with youths with conduct disorders where performance in the moral-conventional task only partially corresponded to what would be expected from Blair’s studies.
In some of the examples used, the harm occurs for some perceived future benefit and in others it is a reaction to a preceding transgression. This latter point is also made by Rosas (2012) in a criticism of Kelly et al.’s (2007) experimental setup. He also raises a further issue, which is that many of their examples are mixed domain situations where an authority’s rule differs from the moral rule.
An additional and related problem for the law is how to deal with psychopaths who may not have committed crimes yet but are likely to do so.
The insanity defence is the primary vehicle for excusing individuals of responsibility who, due to their mental condition or disorder, have insufficient moral understanding or impaired rationality at the time their crimes were committed. If an individual is acquitted after a successful plea of insanity, the court typically automatically commits her to psychiatric treatment and surveillance. Psychopathy is currently not amongst those psychiatric disorders that are considered to be a necessary (though not sufficient) part of such a defence by the American Model Penal Code and most analogous codes in other countries. However, the evidence of psychopaths’ impaired moral cognition discussed in the last section may be seen to count in favour of changing this.
Another rather common but unpersuasive proposal about subsuming psychopaths under the insanity defence is that they cannot be as successfully rehabilitated or treated, as offenders with mental disorders where the insanity defence tends to be evoked, e.g., psychosis and schizophrenia (Reznek 1997; Lee 2007). There are several problems with this proposal. First, it is not clear whether therapy and interventions are as futile as they are commonly thought to be. More importantly, the insanity defence is perceived as legitimate in other cases where there is no chance of rehabilitation, such as disabilities and dementia. In general, the possibility of and susceptibility to treatment do not constitute the grounds of defence.
The concern about upholding public confidence in legal institutions arguably also arises in a consequentialist analysis about the justice system’s role in giving individuals a sense of security and also in doing something that actually deters individuals with the threat of punishment or indeed involuntary commitment.
Where these limits should lie is beyond the scope of this article and is of course strongly dependent on the crime and the length of the sentence normally handed out for that type of crime.
As we have argued, the objection from pointlessness can also be given an expressivist reading. We further discuss the expressivist rationale below.
On some accounts of moral responsibility it may be that the possibility of intervention is itself evidence for desert. We leave it to others to explore the plausibility of this line of argument.
In fact, one of the authors believes that the impact of the social responses and environment on the development of some psychopathic traits provides some grounds for arguing that there may also be a fairness dimension of our responsibility attributions. That is, the argument for holding psychopaths accountable is not only that we might we affect the psychopath’s social and moral behaviour over time with some hope for desirable results for the individual with psychopathy and for society at large, but also out of fairness continue to morally engage with individuals thereby acknowledging that their traits may be partly a failing on the part of the moral community as a whole.
It is of course entirely possible that these findings only hold for a subgroup of youthful psychopaths or for so-called “secondary” psychopaths (for this distinction, see Mealy 1995).
We would like to thank Jeanette Kennett for alerting us to this important possibility.
While it has to be admitted that this is a difficult feat to accomplish, Pickard (2011) recommends a similar course of action in the context of the interaction between health care providers and individuals with personality disorders. She stresses the importance of holding service users responsible for their behaviour while not rejecting them as individuals. It should however be pointed out that Pickard distinguishes between holding responsible and blaming in a way we do not. This is because she takes blame to be emotionally charged and to have a characteristic “sting” attached to it (cf. Pickard 2013).
We thank our anonymous referee for pointing out that this conclusion only holds if we can be sure that blaming and holding responsible do not have negative repercussions. There is some evidence that blame in understood as an emotionally charged condemnation of the person is counterproductive (cf. Pickard 2011). However, in this section we have cited evidence which at least shows some beneficial effects of holding psychopaths responsible in the sense of pointing out that behaviour was morally wrong and imposing negative repercussions for such behaviour (e.g., Shaw 2003; Caldwell et al. 2007; Salekin et al. 2010; McDonald et al. 2011). As mentioned, there is a growing body of experimental work that shows the belief that one can change is also an important precondition to attempting such change (Mueller and Dweck 1998; Baumeister et al. 2009; Vohs and Schooler 2008; Charland 2011). Holding people responsible is one way of expressing one’s confidence that this can be done.
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Acknowledgments
We would like to thank Stephen Morse and all the other participants at the workshop “Law and Neuroscience—The Work of Stephen Morse” for inspiration and insightful criticism of our paper. Many thanks also to Helen Beebee and the AHRC Science and Culture Awards for the initial opportunity to explore the topic. For helpful comments on the draft, we would like to thank Jan-Hendrik Heinrichs, Emily Williamson and the anonymous reviewers at Criminal Law and Philosophy.
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Godman, M., Jefferson, A. On Blaming and Punishing Psychopaths. Criminal Law, Philosophy 11, 127–142 (2017). https://doi.org/10.1007/s11572-014-9340-3
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DOI: https://doi.org/10.1007/s11572-014-9340-3