Psychopathy in Criminal Law Research Paper

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This research paper covers the definition and scientific validity of psychopathy and related mental conditions and the criminal law’s response to criminals who manifest this condition.

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What Is Psychopathy?

Although there is much dispute about the definition of and the criteria for the term psychopathy, the best current conceptual and scientific understanding is that psychopathy is a mental disorder marked by affective, interpersonal, and behavioral abnormalities. In particular, people with psychopathy demonstrate an incapacity for empathy and guilt, impulsivity, egocentricity, and chronic violations of social, moral, and legal norms. (Because psychopathy is a mental disorder, the preferred locution to describe those who suffer from it is ‘‘people with psychopathy,’’ rather than to use the term psychopath, which improperly equates a person with the disorder. Nonetheless, the shorter locution is both common in professional and lay usage and less unwieldy, so this research paper will use it.) Psychopaths can be found among all classes of the populations and in all professions. Not unexpectedly, their numbers among prison and jail populations are disproportionately large.

Historical Development of The Concept

The broad outlines of the condition and the beginning of the construction of a clinical diagnostic category date to the nineteenth century, but there has been little scientifically based agreement on the criteria for the disorder, leading some critics to maintain that the category is theoretically or clinically useless and, even more extremely, that it does not exist. Nonetheless, whether termed psychopathy, sociopathy, dyssocial personality disorder, or some other term, the category has long been in use. The most influential modern clinical description of psychopathy was provided by psychiatrist Hervey Cleckley in a famous work, The Mask of Sanity (1976 [1941]). Cleckley observed that psychopaths, unlike people with major mental disorders such as schizophrenia, can seem quite normal and even charming, thus earning the descriptive term for the condition ‘‘mask of sanity.’’ Psychopaths do not suffer from grossly psychotic symptoms, such as hallucinations or delusions, unless they also suffer from another major mental disorder. But people who lack empathy and guilt, who are willing to manipulate, lie, or cheat without hesitation or remorse to achieve their own ends, are so interpersonally and behaviorally abnormal that characterizing the condition as a disorder seems justifiable.

In 1968, a condition like psychopathy received the official imprimatur of the American Psychiatric Association by being included in the second edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-II), in which it was referred to as ‘‘antisocial personality’’ and characterized as a personality disorder. Unfortunately, DSM-II used vague criteria and researchers were unable to operationalize or to validate the construct, a problem that plagued DSM-II in general and psychopathy research in the 1970s in particular.

The next revision of the Diagnostic and Statistical Manual of Mental Disorders, DSM-III, published in 1980 and revised in 1987 as DSM-III-R, adopted a new approach to establishing the criteria for mental disorders, an approach that was retained in the next major revision in 1994, DSM-IV. Rather than using vague descriptive criteria for signs and symptoms and then providing no guidance about how many of the criteria had to be present and to what degree, DSM-III and later revisions tried to provide more specific criteria and inclusion and exclusion rules. The result was that independent observers could more readily agree about whether a disorder was present, but critics claimed that such an increase in reliability was accompanied by a loss in validity. That is, it was not clear that the more operationalized criteria of DSM-III that permitted diagnostic agreement among raters also accurately captured the true contours of the disorders it was attempting to define by those criteria. Concerns about validity were a particular problem for the behavioral disorder under consideration, which was termed antisocial personality disorder (APD) and defined purely behaviorally in terms of chronic antisocial behaviors, such as stealing or failure to meet financial obligations. These behaviors could be objectively observed or discovered reasonably accurately and thus independent raters could agree about whether the person under consideration met the criteria, but the diagnostic criteria omitted the less observable, clinical inferential criteria, such as the ability to feel empathy or guilt, that many clinicians thought were the touchstone of the disorder. Such clinicians believed that antisocial behavior could certainly be a product of underlying psychopathology, but antisocial behavior could be produced by many other variables as well. Thus, DSM-III’s behavioral definition apparently failed to distinguish true psychopaths, whose antisocial behavior was produced by the underlying clinical pathology, from people whose similar antisocial behavior might be produced by poverty, subcultural influences, or other potential causes. But until good operational measures of the underlying pathology could be developed, it was impossible to make conceptual and empirical progress.

Contemporary Empirical Research

In the 1980s, a Canadian researcher, Robert D. Hare, and colleagues developed an operationalized research instrument to measure psychopathy, ultimately termed the Hare Psychopathy Checklist Revised (or Hare PCL-R; a more easily administered, briefer screening version, the Hare PCL:SV, has also been developed). Although many other estimable researchers have empirically investigated the behaviors associated with psychopathy and have developed other measures, it is fair to claim that Hare (and colleagues) and his measure have been the most influential. The PCL-R is a twenty-item rating scale that uses a semistructured interview to yield the data to be assessed. The subject’s final score estimates the degree to which the subject appears to be like a classic psychopath as described by Cleckley. The PCL-R has excellent psychometric properties when used with male offenders and forensic patients, the groups with and for which it was originally developed, and in recent years its reliability and validity with female offenders and psychiatric patients has also been established. Because the PCL-R permits a continuous score on its scale, psychopathy may be considered a dimensional disorder rather than a clearly demarcated category. That is, psychopathy may be more or less marked. Which cut-off points are most useful for tasks such as the prediction of violence is an empirical question.

Although research demonstrates that the PCL-R appears to measure a unitary construct, there is also clear evidence that there are two distinct clusters of behavior that contribute to the total score. The first, which appears to measure ‘‘emotional detachment,’’ includes primarily interpersonal or affective indicators of psychopathy, such as egocentricity or lack of remorse; the second, which appears to measure antisocial behavior and lifestyle, includes variables such as impulsiveness and antisocial conduct. High PCL-R scores are predictive of violence in both criminal and civil psychiatric populations, but it appears that the second, antisocial behavior factor, not the interpersonal, emotional detachment factor, accounts for most of the predictive efficacy. Critics believe that the PCL-R’s predictive validity is produced by a nonspecific antisocial history, but research has shown that if one controls for such nonspecific factors, the PCL-R does increase predictive validity.

PCL-R scores are correlated with APD diagnoses in forensic populations, but the correlation is not perfect. In such populations, the base rate for psychopathy as measured by the PCL-R is much lower than the base rate for APD. Although most psychopaths meet the criteria for APD because APD criteria are similar to the antisocial behaviors that the second factor of PCL-R measures, most people with APD are not psychopaths because the criteria for APD do not include the affective and interpersonal variables that the first factor of PCL-R measures. In sum, psychopathy as operationalized by the PCL-R, which aims to measure the clinical construct described by Cleckley and others, is not identical to APD.

There are many causes of criminal behavior other than psychopathy (or APD). Indeed the prevalence of criminal and antisocial behavior is much greater than the prevalence of psychopathy. It thus appears that criminal behavior among psychopaths is produced by different variables than those that produce crime among nonpsychopaths. But psychopaths disproportionately engage in persistent and varied antisocial and criminal behavior. Furthermore, the risk of violence among violent psychopathic offenders does not seem to decrease with age, as it does with nonpsychopathic offenders.

Sexual Psychopathy

‘‘Sexual psychopathy’’ is not a technical term within psychiatry, psychology, and psychopathology. Although the normality of various sexual desires is a matter of debate, it is certainly the case that some unfortunate individuals have sexual desires that are widely considered abnormal, such as the persistent, intense desire for sexual contact with children, and acting to satisfy such desires is almost uniformly considered immoral and criminal. People with such desires do meet the criteria for a mental disorder in DSM-IV, although, once again, few manifest psychotic symptoms unless they suffer from another mental disorder. Some people with such abnormalities, often claiming that they cannot control their desires, persistently act to satisfy them, thus routinely violating the criminal law. Clear data are not available, but it is apparent that not all such offenders are psychopaths. They may behave antisocially, but they do not necessarily manifest the affective and interpersonal criteria of true psychopathy. They may feel guilt and remorse, for example. Disorders of sexual desire should be clearly distinguished from psychopathy although some individuals may suffer from both.

Causes and Treatments

The causes of psychopathy are not well-understood. Biological, psychological, and sociological explanations have been proposed, but none has been confirmed. More recent advances in cognitive neuroscience appear to provide a potential neurophysiological explanation for the clinical observation that psychopaths lack emotional depth and understanding. Indeed, some hypothesize that brain dysfunction causes psychopathy. Such research is provocative and fascinating, but current data simply do not justify firm conclusions about the causes of this disorder.

Development of treatments for psychopathy among prison and forensic populations was hindered by the inability to distinguish psychopaths from other offenders. Nonetheless, various methods have been tried. It is fair to say, especially given the methodological limitations, that there has been little indication of success. It is now possible to distinguish psychopaths reliably and new treatment proposals have followed from better understanding of the clinical manifestations of the disorder. It is unfortunately still the case, however, that there are few hard data to demonstrate the efficacy of any proposed treatment program to reduce psychopathy in general or its antisocial behavioral manifestations in particular.

Continuing Conceptual and Clinical Concerns

Despite the undoubted scientific advances in the measurement of psychopathy and provocative empirical findings concerning its causes, many remain skeptical of the validity of the category and fear its use in clinical and nonclinical settings. Some believe that available research does not confirm Hare’s unitary model that amalgamates two factors and that there is no present, uncontroversially valid definition of the disorder. Others go further, claiming that psychopathy is little more than a label for a type of person that is both disliked and feared and that there is no good evidence that psychopathy is a genuine mental disorder.

There is some truth to all these criticisms. Available science is not perfect. In particular, psychiatry and psychology, unlike physical medicine, as yet have no physical ‘‘gold standard,’’ such as underlying, objectively measurable anatomical or physiological abnormalities, with which to validate hypothesized discrete disorders. Moreover, it is too easy to ‘‘pathologize’’ those we do not like as a means of marginalizing and controlling them. Nonetheless, compared to other, less controversial psychiatric and psychological disorders, psychopathy has been better validated by a solid research base than most.

Psychopathy and The Criminal Law

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 postacquittal 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.


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