Abstract
It is common for philosophers to argue that psychopaths are not morally responsible because they lack some of the essential capacities for morality. In legal terms, they are criminally insane. Typically, however, the insanity defense is not available to psychopaths. The primary reason is that they appear to have the knowledge and understanding required under the M’Naghten Rules. However, it has been argued that what is required for moral and legal responsibility is ‘deep’ moral understanding, something that psychopaths do not have either due to their lacking empathy or practical reason. In the first part of the paper, I argue that psychopaths do not lack the abilities required for deep moral understanding, although they have deficits in those areas. According the M’Naghten Rules, therefore, psychopaths are not insane. Under a less strict formulation of the insanity plea, like the Model Penal Code, however, there is a good case to be made for their lacking substantial capacity. I argue that because psychopathy is an essentially moral disorder, and because of the nature of psychopathic violence, psychopaths should not be excused under the insanity plea. It would be tantamount to excusing someone for committing a crime because they are bad. Arguably, this contravenes the entire system of law.
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Notes
I henceforth use ‘insanity’ in the legal sense.
They do not think that the way in which or the degree to which psychopaths are disordered absolves them from criminal or moral responsibility. Cf. Hare ([31], 143): “In my opinion, psychopaths certainly know enough about what they are doing to be held accountable for their actions” and Cleckley ([12], 268): “I still feel as strongly as ever that the psychopath’s defect constitutes a major disability for normal participation in human affairs, but I am convinced that I made a great mistake in expressing myself in such a way as to give the impression I believed he should be regarded as blameless, or not legally responsible for his misconduct. [...] [C]an we not conceive of a defect that seriously incapacitates and calls for restraining measures, without assuming that this defect necessarily absolves the subject from culpability and penalties of the law?”
Perhaps most radically, Murphy [52] suggests that psychopaths have the same moral standing as nonhuman animals. However, he is somewhat circumspect about the practical application of his thesis.
The focus on the understanding in standard insanity defenses has been subject to much criticism, for instance by people that believe that the volitional capacities of people suffering from mental disorder may also be impaired and be just as excusing as deficient understanding [48]. But talking about volition is notoriously tricky. How exactly does one distinguish someone not being able to refrain from performing a prohibited action and someone not being willing to refrain from it? Consequently, many have found it more fruitful to develop the so-called cognitive arm of the insanity defense.
In general, psychopaths do not seem to have great difficulties understanding other people’s thoughts and feelings. Blair et al. [6] also found that psychopaths pass advanced theory of mind tests of the kind that people with autism do not. Since people with autism do not present with pervasive moral deficits, the root of the psychopath’s problem is unlikely to be found here [40, 49, 56].
But she need not do so under that description. There is a good chance that people respond directly to perceiving expressions of emotion in others without first having to represent the subject as experiencing that emotion. We may, e.g., feel sad for someone in direct response to seeing them cry. All that need to be represented, then, is some expression that is reliably correlated with experiencing an emotion, and not the fact that the subject experiences the emotion in question [47].
For the purposes of this paper, I ignore the issue of whether there are unconscious emotions and whether we can empathize with others without being conscious of doing so. I use ‘feeling an emotion’ and ‘experiencing an emotion’ interchangeably.
It should be noted that empathy and sympathy are difficult to distinguish experimentally. Nichols [56] has argued that no current experiments supporting empathy’s or sympathy’s role in altruistic motivation succeed in distinguishing between the two. One reason to think empathy is responsible for motivation to help others is that in Batson’s [2] experiments subjects are asked to imagine how someone else would feel in that situation or how they, themselves, would feel. These instructions are perfect for inducing empathy. But since subjects are always distressed at someone else’s distress, it is possible that they experience sympathy rather than empathy.
Nichols, himself, talks of second order contagious distress or sympathetic distress. For him, the distinction between first order and second order distress is important because 1st order contagious distress might simply motivate the agent to escape her distress, whereas second order distress is aimed at relieving the distress of the other.
People ordinarily judge conventional wrongs, but not moral wrongs, to be under authority control.
Cleckley is one of the most famous psychopathy researchers and author of one of the classical works on the disorder: The Mask of Sanity.
Psychopathy is diagnosed by considering the degree to which a particular feature fits the person. A score of 0 signifies that the feature does not apply, whereas the maximum score of 2 signifies that it fits the person very well [32].
The Psychopathy Checklist-Revised is the standard tool for diagnosing psychopathy [32].
Different classifications have been suggested, such as classical psychopath, explosive psychopath, manipulative psychopath, and so on (see Hervé [34] for a review). The validity of these constructs has not been firmly established, however. The most reliable, and the most empirically based one remains the primary-secondary one [63].
Hicks and colleagues [36] initially divided the groups into ‘emotionally stable psychopaths’ and ‘aggressive psychopaths’ on the basis of how individuals cluster on the personality traits of the Multidimensional Personality Questionnaire [61]. The aim was to get independent validation for this distinction. As it turned out, ‘emotionally stable psychopaths’ fitted ‘primary psychopath’ quite well, and ‘aggressive psychopath’ matched ‘secondary psychopath’.
It may be thought that because thoughts about harming others automatically lead to an empathic response or that Luke really does empathize with the Emperor in virtue of him being human (or an intelligent being at any rate). This is doubtful. Almost no cultures—and certainly not our own—have prohibitions against harming others tout court. Generally, one is allowed to harm criminals, enemy combatants, assailants, etc. And these people are rarely empathized with. So, thoughts about harming humans do not automatically lead to empathy.
Of course God disallows certain things by edict, it may sometimes appear. And one might argue that unless it is thought that God has reasons, e.g. he knows what is good for mankind, assuming that God prohibits it is not different in principle from assuming that society prohibits it. I do not think this is justified. It seems reasonable to suppose that believing that God prohibits it—if one is of a religious bent—adds sufficient depth to one’s understanding of certain prohibitions for one to be held responsible for transgressing them.
One could object that only justifications of harm norms in terms of human suffering motivate, and it is this fact that people are trying to get at when they say that psychopaths’ lack of empathy removes or attenuates their moral or legal responsibility. This is a dubious claim, however. It flies in the face of what people think and say about their motivations, and there is no empirical support for it. In fact, there are plenty of reasons to think it is false. For instance, people with autism have empathy deficits, yet are morally motivated [49]. Another thing to consider is that the fact that harming others is punishable by law certainly appears to be sufficient to impress a great number of people. It is, perhaps, enough to reflect on the great number of crimes regularly conducted in places where there is little possibility of enforcing the law, during massive blackouts, in war zones, etc.
Adolescent psychopaths are not impaired on standard reversal tasks [8]. The frequency of punishment may play a role in their ability to reverse their responses.
Although primary psychopaths have more profound impairments than secondary psychopaths on empathy-related tasks, they have more intact practical reason. That is, a number of tasks that secondary psychopaths have difficulties with, primary psychopaths do not. So each subtype appears to have its strengths that are relevant to moral understanding.
I have left out the final part of the code: “or to conform his conduct to the requirement of the law”, because I am here only concerned with whether psychopaths’ moral understanding is lacking or deficient.
Strictly speaking, Mealey and Dugatkin talk about ‘sociopaths’, the DSM-III category that corresponds closely to psychopathy, and Charland talks of Axis II, Cluster B disorders of the DSM-IV, which includes antisocial personality disorder. Although there is not complete overlap between antisocial personality disorder and psychopathy, what Charland has to say applies equally to psychopaths.
I count 15 out of the 20 items as constituting moral problems, but that is a conservative measure, as it excludes poor behavioral controls and impulsivity, which are clearly also morally loaded deficits; this would leave us with proneness to boredom/need for stimulation, shallow affect, and lack of long-term realistic goals [32].
He might find it hard to manage in such a world, however. Although the psychopath seems almost designed to be impervious to any demand that would make him curb his pursuit of his self-interested, primitive, and relatively short-term ends, his strategy suited to work in a society heavily structured by moral and conventional rules and regulations, it is quite unclear how he would fare in a Hobbesian universe.
The exact numbers are: murder for revenge or retribution 30.3%, murder for monetary gain 22%, nonconsensual sex-related murders 19.3%, conflict over female 11.1%, and 2.8% to get drugs or alcohol. An additional 6.4% were for other, not easily classifiable reasons [77]
Although this paper does not deal with the question of whether psychopaths have adequate control over their actions—i.e. fall under the volitional arm of the insanity defense—it is worth noting that the fact that psychopathic murders are almost invariably instrumental indicates that they can control their actions sufficiently to be criminally responsible.
His position, in fact, would not count as an ethical position at all [75].
I bypass the question of moral realism altogether here.
Command hallucinations are to be distinguished from beliefs, arrived at in a different way, that God wants us to do certain things. Most suicide bombers, e.g., do not appear ever to have suffered from command hallucinations. Consequently, they would not count as insane under this clause. I am grateful to Stephen Morse for bring such cases to my attention.
Together with his brother, Dan, Ron murdered the wife and infant daughter of another brother. He conveniently claimed to have been commanded to do so by God, but was known to hold a grudge against her for encouraging his ex-wife to leave him.
Some cases of insane jealousy have gone to court, and some have been successful. These cases, however, are highly disputed, and there is a history of ruling against the defendant being insane because had the defendant’s beliefs been true, his actions would still not have been justified [74]. At any rate, cases of insane jealousy include a mix of perverse moral understanding and a fundamental misconstrual of the facts. Again, psychopaths do not appear to suffer from similar misconceptions. Their problem is their lack of values.
The law is officially incompatibilist about moral responsibility and determinism, and denies that our actions are determined. In practice, American law has often allowed deterministic considerations to play some role, although in recent years the opposite has been the case (cf. [13]).
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Acknowledgement
I would like to thank Walter Sinnott-Armstrong for inviting me to write this paper for a session on psychopaths’ legal responsibility at the Eastern Division Meeting of the APA 2007. Comments and questions from the audiences at that meeting and at the Carleton University Philosophy Colloquium were enormously useful in clarifying my thinking about this issue. Particular thanks to John Kulvicki, Stephen Morse and Darien Shanske for very helpful and generous comments on earlier versions of the paper.
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Maibom, H.L. The Mad, the Bad, and the Psychopath. Neuroethics 1, 167–184 (2008). https://doi.org/10.1007/s12152-008-9013-9
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DOI: https://doi.org/10.1007/s12152-008-9013-9