The criminal responsibility of psychopathic offenders

Israel Law Review

Volumn 36, Issue 2, 2002, Pages 103-121

  Mei Tal, Maya ^a  

^a WEST VIRGINIA WESLEYAN COLLEGE   (United States)

Author keywords

[No Author keywords available]

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EID: 70449115507     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700012334     Document Type: Article

References (93)

1. Philipe Pinel, 1801, described the disorder as ‘emportement maniaque sans delire’ in Theodore Millon, Erik Simonsen, Roger D. Davis, Morten Birket-Smith (eds.) Psychopathy: Antisocial, Criminal, and Violent Behavior (New York, Guillford Publications 1998) 7.
2. 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, 25
3. Robert Joseph Smith, The Psychopath in Society (New York, Academic Press, 1978) 1–5.
4. See, inter alia, Robert Douglas Hare, “Psychopathy: Some Implications for Understanding Human Predatory Violence” in Jose Sanmartin ed. Psychopaths and Serial Killers (Spain, Queen Sophia Centre, 2000)
5. Robert Douglas Hare, “Psychopaths and Their Nature: Some Implications for Understanding Human Predatory Violence” in Jose Sanmartin & Adrian Raine eds., Violence and Psychopathy (Kluwer, 2000)
6. Robert Douglas Hare, “Psychopathy and Risk for Recidivism and Violence” in Nicola Gray ed., Criminal Justice, Mental Health, and the Politics of Risk (London, Cavendish, 2002) 27–47
7. David J. Cooke, “Psychopathy Across Cultures” in David J. Cooke, Adelle E. Forth & Robert Douglas Hare, Psychopathy: Theory, Research and Implications for Society, (Dordrecht, Kluwer, 1997) 13–45
8. Adelle E. Forth, et al., “The Assessment of Psychopathy in Male and Female Noncriminals: Reliability and Validity,” (1996) 20(5) Personality and Individual Differences 531
9. Robert Douglas Hare, T. J. Harpur, et al. “The Revised Psychopathy Checklist: Descriptive Statistics, Reliability, and Factor Structure,” 1990 2 Psychological Assessment 338.
10. Used by the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (the DSM-IV), Axis II, 1994. (Hereafter, the DSM).
11. Preferred by the British Government; see the White Paper, “Reforming the Mental Health Act,” (Hereafter the White Paper) Part II: High Risk Patients, Cm 5016–11. 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.homeofEce.gov.uk/cpg/dspdhome.htm.
12. See Robert Douglas Hare, “Psychopaths: New Trends in Research,” (1995) Harvard Mental Health Letter
13. Robert Douglas Hare, “Psychopathy and Antisocial Personality Disorder: A Case of Diagnostic Confusion,” (1996) 13(2) Psychiatric Times.
14. DSM-4, 301.7 A(1).
15. 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.
16. The key research and consequent diagnostic tool of today, is the Hare Psychopathy Check List Revised, see Robert Douglas Hare, Manual for the Revised Psychopathy Checklist (Toronto, Multi-Health Systems, 1991)
17. 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.
18. See Harvey Cleckley The Mask of Sanity, (Augusta, Georgia, Emily S. Cleckley, 1988), 337–364 and the Hare PCL-R.
19. 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 404–454.
20. Cleckley, in first edition of The Mask of Sanity, (1941), argued that psychopaths should be called psychotic.
21. See Peter Clyne, “A Sort of Quiet Detachment: Psychopaths in Perspective” in Guilty but Insane, (London, Nelson, 1973) 145–160, where he refers to the psychopath as “a tragic exception to John Donne's statement that no man is an island” at 145.
22. See, for instance, Barbara Wootton, “Diminished Responsibility: A Laymen's View,” (1960) 76 LQR 224
23. Anthony. Duff, “Psychopathy and Moral Understanding.” (1977) 14(3) American Philosophical Quarterly at 189–200
24. Carl Elliot, “Diagnosing Blame: Responsibility and the Psychopath,” (1992) 17 The Journal of Medicine and Philosophy at 199–214.
25. 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
26. 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 Richard Jones, Mental Health Act Manual (Sweet and Maxwell, 2002).
27. See Aristotle's emphasis on the metaphysical element and epistemological one in The Nicomachean Ethics, Book 3.
28. 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, Andrew Simester & Robert Sullivan, Criminal Law Theory and Doctrine (U.K. Hart Publishing, 2000) 575–578
29. Andrew Ashworth, Principles of Criminal Law,(New York, Oxford University Press, 1995) 204–208.
30. 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, Principles of Criminal Law
31. see Herbert Lionel Adolphus Hart, Punishment and Responsibility: Essays in the Philosophy of Law, (New York, Oxford University Press, 1968) 186–209.
32. See John Stuart Mill, Utilitarianism (Collins, The Fontana Library, 1970)
33. Alan Goldman, “The Paradox of Punishment,” (1979) 9(1) Philosophy and Public Affairs 47 claims that: “The social benefits from an institution of punishment must outweigh the costs, including the harms imposed.”
34. Peter Arenella, “Convicting the Morally Blameless” (1992) University of California Law Review 1511, at 1533.
35. See University of California Law Review.
36. See John Rawls, A Theory of Justice, (Oxford, Oxford University Press, 1999).
37. Richard B. Brandt, Ethical Theory: the Problems of Normative and Critical Ethics, (Englewood Cliffs, Prentice Hall, 1959), defends Rule-Utilitarianism, where the utility is judged, not on a case by case basis, but on a rule basis.
38. See Hart, Ethical Theory: the Problems of Normative and Critical Ethics, 28–53, where he illustrates judges' observations referring to a ‘morally evil mind,’ at 35.
39. 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 112.
40. See Tom Bearden, “Setting Limits,” November 29, 1995, Transcript, following US legislation abolishing the national highway speed limit http://www.pbs.org/newshour/bb/transportation/speed_limits_ll-29.html
41. See Ashworth, “Setting Limits,” at 234.
42. See Paul H. Robinson, “Hybrid Principals for the Distribution of Criminal Sanctions,” 1987 82 (1) Northwestern University Law Review 19–63.
43. See Hart, Northwestern University Law Review, especially Ch. I “Prolegomenon to the Principles of Punishment,” Ch. VIII “Changing Conceptions of Responsibility” and Ch. DC “Postscript: Responsibility and Retribution” 1–27, 186–209, & 210–237 respectively.
44. See Aristotle, The Nicomachean Ethics, 1980, Book III, Chapter 5.
45. The Nicomachean Ethics, Book III, Chapter 1.
46. The Nicomachean Ethics, Book III, Chapter 1.
47. See the leading book by David Goleman, Emotional Intelligence: Why it Can Matter More Then IQ, (New York, Bantam Books, 1995).
48. See, for example, Martha C. Nussbaum, Upheavals of Though: The Intelligence of the Emotions, (Cambridge, Cambridge University Press, 2001)
49. R. Jay Wallace, Responsibility and the Moral Sentiments, (Cambridge, Mass., Harvard University Press, 1994).
50. For a history of the defense, see Nigel Walker, Crime and Insanity in England: Volume I: The Historical Perspective, (Edinburgh, University Press, 1968).
51. See also Jonas Robitscher & Andrew Ky Haynes, “In Defence of the Insanity Defense,” (1982) 31 Emory Law Journal 9–60.
52. Henry De Bateson, De legibus et consuetudinibus Angliae, (G.E.Woodbine, ed., S.E. Thome, trans., (Harvard University Press, 1968–1977).
53. See Walker, De legibus et consuetudinibus Angliae, at 26.
54. Matthew Hale, Historia Placitorum Coronae; The History of the Pleas of the Crown, (1736): “where there is a total defect of the understanding, there is no free act of the will.”
55. Holloway v. U.S., 148 F.2d 665–667.
56. R. v. M'Naghten (1843) 10 CI. & Fin. 200
57. See The Royal Commission on Capital Punishment (1955) HO 291/93.
58. 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. Park Dietz: A. Toufexis, “A Psychiatrist's-Eye View of Murder and Insanity,” New York Times, April 23, 2002. Yates was found guilty.
59. See Arenella, New York Times, and the clinical description of psychopathy in the previous chapter, regarding abstract language understanding deficiencies in psychopaths.
60. See definition of ‘understanding,’ The Penguin Dictionary of Psychology 824 (2nd ed. 1995.)
61. See, inter alia, Joanne Intrator, et al, “A Brain Imaging (Single Photon Emission Computerized Tomography) Study of Semantic and Affective Processing in Psychopaths,” (1997) 42 Biological Psychiatry 96–103
62. Kent A. Kiehl, et al, “Semantic and Affective Processing in Psychopaths: An Event-Related Potential (ERP) Study,” (1999) 36 (6) Psychophysiology 765–774
63. Christopher J. Patrick, et al, “Emotion in the Criminal Psychopath: Startle Reflex Modulation,” (1993) 102 (1) Journal of Abnormal Psychology 82–92
64. Adrian Raine, et al, “Reduced Prefrontal Gray Matter Volume and Reduced Autonomic Activity in Antisocial Personality Disorder,” (2000) 57 (2) Archives of General Psychiatry 119–127.
65. See Kent Kiehl, et al, Archives of General Psychiatry at 765–774.
66. See Hare, Archives of General Psychiatry.
67. A. recent study by W. Larbig et al. “Cerebral and Peripheral Correlates of Psychopaths During Anticipation of Aversive Stimulation,” in Annual Meeting of Society for Psychophysiological Research, 1992 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.
68. 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, “Reduced Prefrontal Gray Matter Volume and Reduced Autonomic Activity in Antisocial Personality Disorder,” at 371.
69. See Cleckley, “Reduced Prefrontal Gray Matter Volume and Reduced Autonomic Activity in Antisocial Personality Disorder,” at 374.
70. See a review of the literature, in Christoper. J. Patrick & K Kristin, A. Zempolich, “Emotion and Aggression in the Psychopathic Personality,” (1998) 3 (4) Aggression and Violent Behavior 303–338.
71. Elliott T. Barker & B. Shipton, “The Partial Psychopath,” in Psychopathy and Consumerism Two Illnesses That Need And Feed Each Other Conference (Canada, 1995) http://www.bconnex.net/~cspcc/psychopathy/
72. Bernard Williams, “The Amoralist” in Morality: An Introduction to Ethics (Cambridge, Cambridge University Press, 1993) 3–13, 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.”
73. See Williams, Morality: An Introduction to Ethics, 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.”
74. See C. David Bateson, et al., “Is Empathetic Emotion a Source of Altruistic Motivation?,” (1981) 40 (2) Journal of Personality and Social Psychology 290–302
75. George P. Knights, 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 178–183.
76. 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 Edwards James Murray, Motivation and Emotion, (Foundations of Modern Psychology Series, Prentice Hall Inc., 1964) 1–8
77. J.P. Houston, Motivation, (Macmillan Publishing, 1985) 3–17.
78. For psychophysiological evidence, see P.J. Lang, et al. “Emotion, Motivation, and Anxiety: Brain Mechanisms and Psychophyisiology,” (1998) 44 Biological Psychiatry 1248–1263.
79. See Martin L. Hoffman, “Is Altruism Part of Human Nature?,” (1981) 40 (1) Journal of Personality and Social Psychology 121–137.
80. See Freud's theory of the ego. For an overview and critique, see Richard Stanley Peters, Psychology and Ethical Development, (London, George Allen and Unwin, 1974) Chap. 3,at 78–86
81. Martin L. Hoffman, Empathy and Moral Development: Implications for Caring and Justice (Cambridge, Cambridge University Press, 2000).
82. See Hoffman, Empathy and Moral Development: Implications for Caring and Justice, Chap. 2, at 29–62.
83. Empathy and Moral Development: Implications for Caring and Justice.
84. See Alfred B. Heilbrun, “Cognitive Modes of Criminal Violence Based Upon Intelligence and Psychopathy Levels,” (1982) 50 (4) Journal of Consulting and Clinical Psychology 546–557.
85. See Cleckley, Journal of Consulting and Clinical Psychology
86. 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: R.J.R. Blair, “Moral Reasoning and the Child with Psychopathic Tendencies,” (1997) 22 (5) Personality and Individual Differences 731–739. This data is consistent with the reports on adult psychopaths.
87. See M.E. Rice, et al., “An Evaluation of a Maximum Security Therapeutic Community for Psychopaths and Other Mentally Disordered Offenders,” (1992) 16 Law and Human Behavior 399–412.
88. Nancy Eisenberg & Paul A. Miller, “The Relationship of Empathy to Aggressive and Externalizing/Antisocial Behavior,” (1988) 103 (3) Psychological Bulletin 324–344.
89. See Bateson, Psychological Bulletin. When escape was an option, only 17% of those who felt empathy escaped; the majority helped the person in need.
90. See Williams, Psychological Bulletin.
91. Tom Regan, The Case for Animal Rights, (Berkley, University of California Press, 1983) at 152.
92. As has been proposed by the Labor Government, see Managing Dangerous People with Severe Personality Disorder: Proposals for Policy Development, 1999.
93. Friedrich Wilhelm Nietzsche “Beyond Good and Evil”, Apophthegms and Interludes, section 146.