Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention

Ken  Levy

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer from this conclusion (that psychopaths lack moral responsibility) that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral resp...

Dangerous Psychopaths: Criminally Responsible but Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention KEN LEVY* TABLE OF CONTENTS I. INTRODUCTION.............................................. II. PSYCHOPATHY DEFINED ........................ ................. . . 1301 . .............. 1306 A. A Working Definition of Psvchopathy ................................................... B. C. D. P.\)/Cholop)cal Con1111unit_v 's DeJinition.. Possih/e Problems with the PCL-R .. 1306 ... 1310 ............. . ... 1313 IJ(ff'erences Bet1veen J>.\}'ChOfJathy and Antisocial F>c-:rsonalizv J)isorder ...................... ............. Ill. THREE CONSEQUENTIALIST REASONS FOR CRIMINAi.LY JV. PUNISHING PSYCHOPATHS.... .............. MORAL RESPONSIBILITY AND THF EXAMPLE OF JOHN V. THREE ARGUMENTS THAT PSYCHOPATHS ARE NtlT MORAi.LY . ......................... 1324 WAYNEGACY ......................................... . RESPONSIBLE FOR THEIR CRIMINAL.BEHAVIOR...... ................ 1321 ...................... 1326 . ............................. 1332 * Associate Professor. LSU Law Center. I would like to thank Ray Diamond, Donald Dripps. Denny LeBoeuf, Captain Todd Morris (of the East Baton Rouge Sheriffs Office). Ed Richards. Walter Sinnott-Armstrong. Alec Walen, Gideon Yaffe, participants in the LSU Philosophy Colloquium. and participants in the University of San Diego School of Law's Conference on the Morality of Preventive Restriction of Liherty for their very helpful feedback. I have also learned much from discussions with, and papers written by. students in my Advanced Criminal Law seminars during 20 l 0 and 201 l. Finally, I am very grateful to the editors at the San Diego Law Review, especially l-1ana Hsiao and H.J. Pinto, for their excellent research assistance, revisions, and suggestions. 1299 A. VI. VIL VIII. IX. First Argument that Psychopaths Are Not Morally Responsible.for Their Criminal Behavior: Inability To Grasp Moral Reasons ....................................................................... 1332 B. Second Argument that Psychopaths Are Not Morally Responsible for Their Criminal Behavior: Inability To Do Otherwise .................................................................................... 1336 C. Third Argument that Psychopaths Are Not Morally Responsible/or Their Criminal Behavior: No Se/fControl ................................................................................................... 1338 THE INSANITY DEFENSE ................................................................................... 1344 A. Assumptions Underl.ving the Insanity Defense ....................................... 1345 B. Different Versions o(the Insanity Defense ............................................. 1346 FOUR ARGUMENTS THAT PSYCHOPATHS ARE INSANE ....................................... 1350 A. First Argument that Psychopaths Are Ensane ......................................... 1351 B. Second Argument that Psychopaths Are Insane ..................................... 1355 C Third Argument that Psychopaths Are Insane ....................................... 1356 D. Fourth Argument that Psychopaths Are Insane ..................................... 1358 WHY THE CRIMINAL JUSTICE SYSTEM REGARDS PSYCHOPATHS AS CRIMINALLY RESPONSIBLE......... """""""' """"""""' 1359 WHY PSYCHOPATHS ARE CRIMINALLY RESPONSIBLE EVEN THOUGH THEY ARE NOT MORALLY RESPONSIBLE .......................................... l 362 A. X. XL 1300 Whv Criminal Responsibility Does Not Require Moral Responsibility ................................................. ............................ 1362 B. Why Moral or Emotional Understanding o(the Law ls Not NecessarvjiJr Criminal Responsibility ........................................ l 367 C. Psychopaths Have Suj]icient Control over Their Behavior ....................................................................................... 13 70 SHOULD WE PREVENTIVELY COMMIT DANGEROUS PSYCHOPATHS'' ................. 1375 A. Wh.v Defendants Eligible for Criminal Punishment (Post-Crime) Are Generally Not Eligible/or Preventive Comtnitrnent (Pre-Crime) and Vice Versa .................................................... ......................................... 13 76 B. The Middle-Ground Approach: Psychopathy as Mental !/lness ..... .................................................................................... l 3 79 C. Dangerous but Not Mentally fl/ ............................................................. 1382 D. Society's Interest in Sajety vs. the Dangerous Individual's f nteres t in Liberty .................................................................................. 13 86 E. A Consequential Argument for Classifying Psychopathy as a Men ta/ lllness ................................................................................. 13 88 F. Psychopaths Are Still Criminally Responsible/or Their Behavior....................................................................................... l 392 CONCLUSION ......... ,, ,, .......................... ,, ..... ,, .. ,, ,, ,, .. ,, ,, ,, ,, ,, . ,, ,, .... ,, ,, ... ,, ,, ,, .. ,, ,, .. . l 3 9 3 Dangerous Psychopaths (VOL. 48: 1299, 2011] SAN DIEGO LAW REVIEW I. INTRODUCTION There is a long-standing debate in the religious and ethics literature about whether or not people can be evil. I The answer, at first, seems obvious. Of course they can-all the people who commit violent crimes! The skeptic's response to this point, however, is that violent criminals are not evil. Instead, they split into three nonevil groups: bad-act performers who are (I) "mad"-sick, insane, mentally ill-not "bad"; (2) victimized by adverse environmental forces, usually severe neglect or abuse (physical or sexual); or (3) convinced that their bad act is not bad but inherently or instrumentally good. 2 The skeptic's response, then, denies the existence or possibility of a fourth category: (4) bad-act perfonners who are not mad, abused, or ideologically subjugated. Such people perform bad acts not because they do not know any better or have not been given proper guidance, instruction, or incentives. Rather, they perform bad acts knowing full well that these acts are bad simply because they enjoy performing them. So-called psychopaths-people who cannot feel compassion and so are fully indifferent to the harm that they cause others-would seem to be the paradigmatic example of evil. Still, those who deny the possibility of evil agency would say that psychopaths are victims-victims of a neurological disorder, of environmental forces, or of misguided beliefs. I. Compare K.M. ROGERS, STAINED GLASS JESUS 72 (20 I 0) ("The world is troubled and people can be evil."), with GLENN KOHRMAN, REFLECTIONS OF A CATHOLIC PRIEST 104 (2008) ("People cannot be evil, no one can be evil."). 2. I include this third category only because some believe that a person is evil only if that person knows that her bad acts are bad, in which case bad-act performers who fall into the third group would not be evil. While I myself believe that people who fall into this third category-for example, terrorists who murder in the name of some supposedly higher good-are evil, there does seem to be some intuitive merit to the notion that they are still less evil than knowing bad-act performers. As Ron Rosenbaum explains: By characterizing Hitler's apparently implacable hatred of Jews as merely an actor's trick, by thus denying him the 'virtue' of passionate sincerity ... [Emile] Fackenhcim deflects, even derails one entire project of Hitler explanation ... by contending that the passion was not white hot but pure, cold, calculated invention. And, thus, all the more evil. Evil for evil's sake, evil inexplicable by pathology or ideology and all the more inexcusable. "Radical evil": a term Fackenheim uses to define a phenomenon that goes beyond the quantity of the victitns, a new categor_v of evil. RON ROSENBAUM, EXPLAINING HITLER: THE SEARCH FOR THE ORIGINS OF HIS EVIL 29091 (1998). 1301 This debate has now reached deep into criminal law as well. On the one hand, many judges, lawyers, lawmakers, and scholars tend to think of psychopaths as ranging between bad and evil because they frequently commit crimes, lack compassion for their victims, are generally thought to be incurable, and are (therefore) likely to repeat similar or worse crimes. For these reasons, the criminal law often treats psychopathy as an aggravating factor, a factor that warrants increased punishment. 3 On the other hand, a very strong case can be made that psychopathy is actually a mitigating, if not exculpatory, factor. 4 Empirical studies increasingly confirm the proposition that psychopaths are themselves victims of neurological abnormalities that make them incapable of empathy, impulse control, and emotional or affective understanding of moral principles and the criminal law. 5 To date, we have been unable to find a 3. See Stephen D. Hart, Psychopathy, Cu/pahilitv, and Commitment, in MENTAL DISORDER AND CRIMINAL LAW: RESPONSIBILITY, PUNISHMENT AND COMPETENCE 159, 169 (Robe11 F. Schopp et al. eds., 2009) ("[Tjhe law's view of psychopathy is unarnbiguously negative: lt causes chronic functional in1pairn1ent that is serious enough to be considered a potential aggravating factor for the purposes of son1e conunitincnt decisions ...."); Christina Lee, The .fullicia! Response to P.\)'Chopathic Criminals: Utilitarianism over Retrihution. 31 LAW & PSYCHOL. REV. 125, 133-35 (2007) (arguing that psychopathy should be treated as an aggravating filctor rather than a 1nitigating factor because 1his approach "better responds to the inability to rehabilitate psychopaths and acknowledges the continual threat [that psychopaths pose] to society"); Samuel H. Pillsbury, Misunderstanding Provocation, 43 U. MICH. J.L. REFORM 143, 159 (2009) ("Psychopathy nowhere provides an excuse from liability; its only legal relevance may be as an aggravating factor in sentencing. Nor are there , , . any credible efforts in the political realm in this country to grant excuse or mitigation based on psychopathy."); 0. Carter Snead, l\f･ｵｲｯｩＱｮ｡ＬｦＡ［ｾｧ＠ anll the "ClHnfJ/exi(l' ., Ｈｾｬ＠ CarJital Punislunent, 82 N. Y. U. L. REV. 1265, 1339 (2007) ("[T]hc aggravating factor of future dangerousness [is] no friend to the capital defendant."). 4. See Lee, supra note 3, at 133 ("[O]ne [c]ould argue that a mental disorder (here psychopathy in particular) effectively decreases the culpability of the criminal. Notably, this argument closely parallels the rationale of the insanity defense. This approach plac[ es] blame not on the criminal but on the inevitable effects of psychopathy. In other words, the individual should not be judged as fully responsible as his or her actions were controlled by the inherently violent and dangerous traits of psychopathy." (footnotes omitted)). 5. See ROBERT D. HARE, WITHOUT CONSCIENCE 126-34, 166, 168-69 (1993) (attributing psychopathy to faulty brain organization); DANIEL GOLEMAN, SOCIAL INTELLIGENCE: TllE NEW SCIENCE OF HUMAN RELATIONSHIPS 128-29 (2006) ("When it comes to empathy, psychopaths have none; they have special difiiculty recognizing fear or sadness on people's faces or in their voices. A brain in1aging study with a group of criminal psychopaths suggests a deficit in circuitry centering on the amygdala, within a brain module essential for reading this particular range of emotions, and deficits in the prefrontal area that inhibits impulse.... [Psychopaths'] neural wiring deadens them to the range of emotions in the spectrum of suffering. . . . [T]hey are literally numb in the face of distress, lacking the very radar for detecting human agony." (footnotes omitted)); Carla L. Harenski, Robert D. Hare & Kent A. Kiehl, Neuroimaging. Genetics, and Psychopathy: lmplications/i>r the Legal Svstem, in RESPONSIBILITY AND PSYCHOPATHY: INTERFACING LAW, PSYCHIATRY, AND PHILOSOPHY 125, 139-40 (Luca Malatesti & John McMillan eds., 2010) ("[N]euroimaging studies . . suggest that psychopathy is 1302 (VOL. 48: 1299, 2011) Dangerous Psychopaths SAN DIEGO LAW REVIEW successful treatment for these psychological deficits. 6 As a result, psychopaths who are not caught and treated at a very early age are associated with a wide range of neural deficits . . . . [N]eurology studies indicate that tl1ere exists no single region to which damage leads to the complete manifestation of psychopathy."); id. at 147 ("Neuroimaging studies have identified a network of brain regions, primarily centring in limbic and paralimbic cortex, which show structural and functional deficits in psychopaths. These deficits have been associated with abnonnalities in basic cognitive and affective processing . . . . These brain regions also show substantial overlap with those that have been implicated in social cognition."); Kent A. Kiehl, Without Morais: The Cognitive Neuroscience of" Criminal Psychopaths, in 3 MORAL PSYCHOLOGY: THE NEUROSCIENCE OF MORALITY: EMOTION, BRAIN DISORDERS, AND DEVELOPMENT 119, 149 (Walter Sinnott-Annstrong ed., 2008) (concluding from data that "the relevant functional neural architecture implicated in psychopathy is the para limbic system"); Neil Levy, Psychopathy. Responsibility, and the Moral/Conventional Distinction, in RESPONSIBILITY AND PSYCHOPATHY: lNTERFACING LA w, PSYCHIATRY, AND PHILOSOPHY, supra, at 213, 223 ("There is independent evidence that psychopaths show weaker rACC [rostral anterior cingulate cortex] activation when defecting in a social cooperation game." (citation omitted) (citing James K. Rilling et al., A Neural BasisfiJr Social Cooperation, 35 NEURON 395 (2002))); Luca Malatesti & John McMillan, Defending PCL-R, in RESPONSIBILITY AND PSYCHOPATHY: INTERFACING LAW. PSYCHIATRY. AND PHILOSOPHY, supra. at 79, 87-89 (suggesting tl1at although there is increasing scientific evidence to suggest that psychopathy is caused by brain damage, "a widely accepted theory of the neural causes of psychopathy is not in sight"). 6. See HARE, supra note 5, at 94, 193-94, 195-97, 198-201. 205, 217 (suggesting that. as of 1993, no method had been found for treating psychopaths); id. at 174 ("No amount of social conditioning will by itself" generate a capacity for caring about others or a powerful sense of right and wrong .... [P]sychopathic 'clay' is much less malleable than is the clay society's potters usually have to work with."); Lee, supra note 3, at 134 ("Researchers have agreed: 'Whether or not psychopathy is a disorder, it is an enduring aspect of a person, and ... cannot be expected to change as a result of either time in prison or treatment.' The failure of treating psychopaths is farther illustrated in that 'no sound trcatn1ent or re-socialization progra1ns have been de1nonstratcd to be effective.' In fact, treatmenl often brings about the undesired effect as it can result in significantly higher rates of violent recidivism." (footnotes omitted) (quoting Grant T. Harris et al., The Construct of Psvchoparhy, in 28 CRIME AND JUSTICE 197, 239 (Michael Tonry ed., 2001 ); Robert F. Schopp et al., Expert Testimony and Professional .Judgment: Psvchological Expertise and Commitment as a Sexual Predator Afier Hendricks, 5 PSYCHOL. PUB. PoL'Y & L. 120, 140 ( 1999))); Richard L. Lippke, No Easy Way Out: Dangerous Offenders and Preventive Detention, 27 LAW & PHIL. 383, 396 (2008) ("The evidence suggests that [psychopaths], many of whom appear to comprise some of the 111ost serious and intractable cri111inal offenders, are nearly insusceptible to character change. There is no known effective treatment of psychopathy and psychopaths engage in criminal conduct well past the point at which other offenders tend to desist."); Paul Litton, Re.1ponsibility Status olthe Psychopath: On Moral Reasoning and Rational SellGovernance, 39 RUTGERS L.J. 349, 388 (2008) ("[A]t present, no effective treatment exists for psychopathy. Actually. not only is there no treatment, but mental health treatn1ent seems to increase recidivism rates among psychopaths exhibiting the n1ost severe emotional dysfunction."); Stephen J. Morse, P.1ychoparhy and the Law: The United States Experience, in RESPONSIBILITY AND PSYCHOPATHY: INTERFACING LAW, PSYCH IA TRY, AND PHILOSOPHY, supra note 5, at 41, 53 ("At present, there is no effective 1303 generally determined to be psychopathic for the remainder of their lives. 7 They are typically destined to lead a life that is emotionally impoverished, lacking in enriching human relationships, and doomed to occupational failure. 8 So how should we resolve this dilemma') How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are often not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons. Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal 9 acts These scholars and lawyers are making this assumption (that just treatment for adult psychopaths ."); James R. P. Ogloff & Melisa Wood. The Trea/!nent qf' Ps_vchopathy: Clinical N;hi!i:nn or Steps in the R('{ht Direction?, in RESPONSIBIUTY AND PSYCHOPATHY: INTERFACING LAW, PSYC!l!ATRY, AND PHILOSOPHY, supra note 5, at 155, 157 ("Regardless of the success of offender-rehabilitation programmes, a particular subgroup of offenders--those with psychopathy-have demonstrated a lack of responsiveness to a variety of treatrncnt atten1pts, and continue to be considered by many to be essentially untreatable." (citation omitted)); id. at 170 ("[W]e still know very little about whether, and how, psychopaths can be successfully and appropriately treated."). 7. See HARE, supra note 5, at 160, 164, 200 ("If intervention is to have any chance of succeeding, it will have to occur early in childhood. [Psychologist Rott] Loeber notes that there are several well-established pathways to criminality and that it would be illogical and foolish not to do everything in our power to disrupt these pathways as early as possible. The same reasoning applies, with even greater force, to psychopathy .... Logically, our best chance of reducing the impact of adult psychopathy on society is to attack the proble111 early. . The situation n1ay [i1nprovc] as we learn more about the roots of psychopathy. Fur1her, psychologists have developed intervention progran1s that are quite successful in changing the attitudes and behaviors of children and adolescents who have a variety of behavioral problems. If used at a very early age, it is possible that some of these programs will be useful in modifying the behavioral patterns of "budding psychopaths,' perhaps by reducing aggression and impulsivity and by teaching them strategies tOr satisfying their needs in more prosocial ways." (footnotes omitted)); Lee, supra note 3. at 129 ("'Early detection provides an optimistic outlook towards treatment. While it is accepted that psychopathy in adults is generally untreatable, researchers remain opti1nistic that early intervention in these instances may either prevent or lessen the manifostation of psychopathy." (footnote omitted)); David T. Lykken, The Case jilr Parenwl Licensure, in PSYCHOPATHY: ANTISOCIAL, CRIMINAL, ANO VIOLENT BEHAVIOR 122, 129 (Theodore Millon et al. eds., 1998) ('"[R]eally talented parents (or, more likely, a truly fortuitous combination of parents, neighborhood, peer group. and subsequent rnentors) can son1eti1nes socialize even [budding psychopaths]."). 8. See HARE, supra note 5, at 2 ("[A psychopath is] a ｳ･ｬｴｾ｣ｮｲ､Ｌ＠ callous, and remorseless person profoundly lacking in empathy and the ability to form warm emotional relationships with others, a person who functions without the restraints of conscience. . . [W]hat is missing in this picture are the very qualities that allow human beings to live in social harmony."). 9. See, e.g., Charles Fischette, Psychopathy and Responsibility, 90 VA. L. REV. 1423, 1449-69 (2004) (offering arguments for the position that psychopaths are not criminally responsible because they are not morally responsible); Kimberly Kessler 1304 [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DlEGO LAW REVIEW criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either (I) criminal punishment directly requires moral responsibility or (2) criminal punishment requires criminal responsibility, which itself requires moral responsibility. I will argue, however, that the virtually universal assumption that just criminal punishment requires moral responsibility-whether or not through the middle term of criminal responsibility-is false; that although psychopaths are not morally responsible, they are still criminally responsible and criminally punishable. 10 The reason why just criminal punishment does not require moral responsibility is because criminal law is a fail-safe, last-ditch option to use against those who, for whatever reason, are not sufficiently motivated by morality and respect for the law to comply with the law. And one reason for insufficient motivation may just be inability to be sufficiently motivated. But even if certain people are unable to be sufficiently motivated by morality and respect for the law, they are still criminally responsible, and therefore criminally punishable, for breaking the law as Ferzan, Foreword, Living on !he Edge: lhe Margins ojlegal Personhood, 39 RlHGERS L.J. 237. 245 (2008) ("[P]rofound defects in rationality may leave the psychopath utterly outside the n1oral con1111unity. yielding the result that they should be ex('n1JJI fro1n the crin1inal Ja\v."); Lippke. supra note 6. at 386 ("[M]oral control over their actions ... is the basis for condemning [recidivists] through punitive confinement."); id. at 3R9-90 ("'Without such moral competence. [the individual] would not properly be subject to retributive punish1ncnt, \vith its distinctive censuring dimension."). l 0. Stephen Morse con1cs \'Cry close to asserting the san1c proposition \Vhcn he says: Now. suppose that the predator Jacks the capacity for empathy, guilt, and rcn1orsc. l f these capacities are lacking, it is plausible to argue that the agent lacks n1oral rationality and is not responsible, even if the agent is in touch \Vith reality other\visc and kno\vs the rnoral rules in the narrowest sense. Jn crhnina/ latt', oj· course. lack ｲｾｬ＠ these ca/Jacities is not an excusing condilion, although such a defect surely predisposes an agent to do wrong. Stephen J. Morse, Unconlrollable Urges and lrrarional People, 88 VA. L. REV. I 025, 1072-73 (2002) (emphasis added) (citation omitted); see also Litton. supra note 6, at 384, 392 n have [argued that] the psychopath [] is not a fully [morally] responsible agent .... J have yet to address \vhcther the crin1inal la\v should treat the psychopath as criminally responsible. despite the conclusion that he is Jess than fully morally blan1c\vorthy for \Vrongdoing. Even if it is true that psychopaths have a diminished capacity for rational self-governance or practical reasoning, psychopathy alone does not appear to represent the kind of mental defect that normally disqualifies an individual from being held criminalh· responsible. . . [T]he psychopath is not morally responsible n1orally responsible for his wrongdoing and cri1ninal conduct or. at least not ｪｩｴｦｾｲ＠ Nevertheless. there n1ay be stronger reasons. from the perspective of both persons \Vith and without psychopathy. to n1aintain the status quo in \Vhich individuals v.lith psychopathy are held criminally responsible for their criminal \Vrongdoing."). 1305 long as they knew that they were breaking the law and that breaking the law would likely mean getting punished if they were caught. If I am correct, then contrary to many scholars but consistent with the 11 current law, psychopaths are not in fact insane and should therefore continue to be criminally punished for their criminal acts. One drawback of this position is that it will be slightly more difficult for the state to justify preventively detaining psychopaths who have not committed any criminal acts but have signaled in one way or another that they are inclined in this direction. Still, this drawback is hardly a reason to call psychopaths something that they are not-again, insane. Moreover, slightly more difficult does not mean too difficult. Even if dangerous psychopaths are not insane, the state still can, and should, preventively detain them. The reason is that the state is allowed to involuntarily commit people who are both mentally ill and dangerous to themselves or others. And although psychopathy is not currently considered to be a mental illness, no less a form of insanity, I will argue that it should be. II. PSYCHOPATHY DEFINED In order to understand what psychopathy is, we need to understand how the term is ordinarily understood, how it is defined by the psychological community, and how it differs from Antisocial Personality Disorder (ASPD). A. A Working Definition of Psychopathy A psychopath is essentially a person who is unable-lacks the psychological capacity-to feel concern or compassion for others. 12 From this simple definition, three points follow. 11. See HARE, supra note 5, at 5 ("Psychopathic killers ... are not mad, according to accepted legal and psychiatric standards."); id at 143 ("[P]sychopaths do meet current legal and psychiatric standards for sanity. They understand the rules of society and the conventional meanings of right and wrong. They are capable of controlling their behavior, and they are aware of the potential consequences of their acts."); Hart, supra note 3. at 166 ("[P]sychopathy is recognized in the law as a mental disorder that can impair cognitive or volitional fonctions. But is the nature and severity of functional impairment associated with psychopathy sufficient to mitigate culpability'' Many different courts have grappled with this question over the years, and most have concluded that the answer is no." (citations omitted)); John McMillan & Luca Malatesti, Responsibility and Psychopathy, in RESPONSrBILITY AND PSYCHOPATHY: [NTERFACING LAW, PSYCHIATRY, AND PHILOSOPHY, supra note 5, at 185, 186 ("[T]he McNaghten rule for criminal insanity is generally interpreted so as to include psychopaths and those with personality disorders within the scope of those punishable by law, although it may be deemed a factor relevant to a defence of diminished responsibility."). 12. A psychopath is "a person having a character disorder distinguished by amoral or antisocial behavior without feelings of remorse." RANDOM HOUSE WEBSTER'S 1306 [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW First, contrary to some sensationalist websites and tabloids, a person can engage in violence without being psychopathic; 13 conversely, a psychopath COLLEGE DICTIONARY l 052 (2d ed. 1997) (emphasis added). As this definition also suggests, the psychopath's absence of rc1norse is not n1crely an accident or a sporadic phenon1enon but rather a constant ｣ｯｮ､ｩｴｾ｡ｧＬ＠ a "character disorder." Id.; liARE, supra note 5, at 6 ("[There is] a frightful and perplexing theme that runs through the ease histories of all psychopaths: a deeply disturbing inability to care about the pain and short, a complete lack of emp31hy. . .");id. at 129 suffering experienced by ｯｴｨ･ｲｳｾｩｮ＠ ("[T]he psychopath lacks an important element of ･ｸｰｲｩｮ｣Ｍｾ＠ this ease. emotional ･ｸｰ｣ｲｩｮＭｾ｢ｵｴ＠ 1nay have learned the words that others use to describe or min1ic experiences that he cannot really understand."); id. at 132 ("It is the emotionally charged thoughts. i1nagcs, and internal dialogue that give the 'bite' to conscience, account for its po\verful control over behavior, and generate guilt and re1norse for transgressions. This is son1cthing that psychopaths cannot understand. For then1, conscience is little 1nore than an intellectual awareness of rules others 1nake up--en1pty \Vords. ｬｾｨ･＠ feelings needed to give clout to these rules are missing."): JASON Moss, THE LAST VICTIM: A TRUE-LIFE JOURNEY INTO THE MIND OF THE SERIAL KILLER 8 ( 1999) ("I imagined what it would be like to stalk and kill. I put aside all l'd been taught about right and wrong. I tried to pretend I was son1cone \Vithout a conscience. l tried to get to that level of consciousness \Vhere one exults in being truly evil."); Fcrzan, SUJJra note 9, at 238-39; l-larenski ct al., SllJJra note 5, at 141 ("Psychopaths show deficits in c111pathy. interpreting fr1cial expressions. and n1oral cognition and behaviour." (citation 01nlttcd)): l.,evy, su1Jra note 5, at 22 I ("I think that the most plausible explanation for the psychopaths' performance on the 1nornl/convcntional task is that they fail to grasp 111oral nonns .. They are incapah/c of 111oralizing conventional transgressions, because they do not have the capacity to grasp core nioral wrongness at all."); id. at 223 (suggesting that psychopaths "are not in the tnornlity game" and are "1norally blind"): Lippke, SUJJra note 6, at 402 ("I P]sychopaths [are not] responsive at all to moral [T]he morally unresponsive .... may be capable of acknowledging considerations. . their violent tendencies, but they arc prcsun1ably incapable of understanding and accepting the nioral reasons against the conduct that results ffon1 those tendencies."); Litton, supra note 6. at 372-76 (arguing that psychopaths suffer from a "diminished capacity for moral reasoning"): McMillan & Malatesti. supra note 11. at 190-91 (suggesting that psychopaths either cannot fonn moral reasons or can fonn them but cannot be "moved" or sufficiently motivated by them); Morse, supra note 6. at 5 I ("Most people can use e1npathy, conscience, understanding of the reason underlying a crin1inal law's prohibition, and prudential reasons to guided behaviour. Psychopaths .... cannot grasp or be guided by the good reasons not to o1Tend, which could be expressed either as a cognitive or control defect."): Alix Spiegel. Can A Test Rea/Iv Tell Who ·s a Psvchopath'. NPR (May 26, 2011 ), http://www.npr.org/20 l l /05/261136619689/can-a-test-really-tell-whos-a-psychopath (reforring to psychopaths as "emotionally deaf'). 13. See 1-lARE, su11ra note 5. at 22 ("for n1ost people, the confusion and unce11ainty surrounding th[ c] subject [of psychopathy J begin with the word psyclwpathy itself Literally it n1eans ·n1ental illness' (fron1 fJ,\J'che, '111incr: and JJathos. 'disease'), and this l"hc confusion is is the 1neaning of the tcn11 still found in sonic dictionaries. con1poundcd by the n1cdia use of the tcnn as the equivalent of 'insane' or 'crazy': vfhe police say a "psycho" is on the loose,' or. 'The guy who killed her must be a "psycho."'"): Dave Cullen, The Depressive and the Psvchopath: At Last We Know Winthe Columbine Kil/ers Did It. SLATE (Apr. 20, 2004), http://www.slate.com/id/2099203/ ("Jn popular usage, almost any crazy killer is a 'psychopath.'"). 1307 does not necessaiily engage in violence. 14 Instead, this absence of concern or compassion can be exhibited through nonviolent behavior such as theft or sudden abandonment. Second, a person who lacks concern or compassion on a given occasion is not necessarily a psychopath. Indeed, while most people have the capacity to feel compassion, some, if not many, of these ordinarily compassionate people are also able to "turn off' their compassion in certain situations. Some of the worst kinds of wrongdoers exemplify these dual capacities: mafia hit men, drug lords, school bullies, death squad commanders, corporate executives, and terrorists. Most people who fall into these categories are capable of both great violence and great love and concern for their family and friends. 15 What applies to these 14. See HARE. supra note 5, at 5-6 ("[T]he fact is that the majority of psychopaths manage to ply their trade without 1nurdcring people. . . We are far 1nore likely to lose our lifC savings to an oily-tongued swindler than our lives to a steely-eyed killer.''): id. at 45 ("[Y]ery few psychopaths commit [torture]. Their callousness typically emerges in less dran1atic, though still devastating, ways: parasitically bleeding other people of their possessions, savings, and dignity; aggressively doing and taking what they want; shan1cfully neglecting the physical and en1otional vvelfarc of their fan1ilies; engaging in an unending series of casual, in1personal, and trivial sexual relationships; and so forth."): id. at 174 ("[A Jn individual with a mix of psychopathic personality traits who grows up in a stable fainily and has access to positive social and educational resources n1ight become a con artist or a white-collar criminal, or perhaps a somewhat shady entrepreneur, politician, or professional. Another individual. with much the same personality traits but frotn a deprived and disturbed background, rnight beco1ne a drifter, mercenary, or violent criminal."); Scott 0. Lilienfcld & Hal Arkowitz, What 'Psychopath' Means: It Is Not Quite What You ,Vfay Think, SCI. AM. MIND (Nov. 28, 2007), http://\V\VW .scienti ficamerican.co1n/article .c ftn'? id=what-psychopath-111eans ('"'[tvt ]ost psychopaths arc not violent. and rnost violent people are not psychopaths."); l·lans 1'och, Psychopath)/ or Antisocial Persona/U_v in F'orensic Settings. in PSYCHOPATHY: ANTISOCIAL, CRIMINAL, AND VIOLENT BEHAVIOR, supra note 7. at 144, 151 ("[T]hc typical psychopath, as [ have seen hi1n. usually does not con1n1it 1nurder or other offenses that promptly lead to major prison sentences." (quoting HERVEY CLECKLEY, THE MASK OF SANITY 262 (5th ed. 1976)) (internal quotation marks omitted)). Still, although 1nost psychopaths arc not violent, inany of the violent crirnes arc con1rnitte<l by psychopaths. See HARE, supra note 5, at 87 ("Psychopaths are responsible for more than 50 percent of the serious crimes committed."); id. at 88 ("[Psychopaths] commit more than twice as many violent and aggressive acts, both in and out of prison, as do other criminals."); id. at 93 ("Perhaps half of the repeat or serial rapists are psychopaths."). 15. See HARE, supra note 5, at 175 ("[Nonpsychopaths] also learn violent behaviors , .. but because of their greater ability to e1npathize with others an<l to inhibit impulses, they do not act out as readily as do psychopaths."); Litton, supra note 6, at 374 ("[l]t is not the case that psychopathic individuals. . provide unpersuasive justifications for their wrongdoing, in the way that mafia or gang members or neo-Nazis 1night offer reasons for their \..vrongful violence that reasonable people find unpersuasive. A nonpsychopathic mob boss is not incapable of grasping and being guided by 1noral considerations in virtue of the fact that he rejects so1ne fundan1ental aspects of con1n1on morality. He is capable of grasping moral principles, for he endorses those of his group and tries to live up to them. He can empathize, as he docs with his fellow members. [A psychopath], on the other hand, endorses no moral principles."); Lykken, supra note 7. at 126 ("[T]he people doing [drug] violence are people who have grown up to be 1308 Dangerous Psychopaths (VOL. 48: 1299, 201 l] SAN DIEGO LAW REVIEW wrongdoers arguably applies to the vast majority of human beings. Although they are norn1ally capable of love and concern for others, they are also capable of deliberately hurting their fellow human beings if they are put into situations that either elevate their power to a level that is without ordinary moral constraints or cause them abnom1ally high stress, pressure to conform or obey, fear, anger, or exhaustion. 16 Still, despite the inhumanity that such people exhibit toward their victims, none of them is necessarily psychopathic because, ex hypothesi, they still can feel deep concern for other people-usually family and friends. 17 Third, the psychopath's inability to care for others may be either genotypical or caused by physical or sexual abuse. 18 Regarding the former, some children seem to be indifferent to others from birth, no matter how decent and normal their upbringing. These are the "classic" 19 psychopaths. Regarding the latter, people who characteristically Jack unsocialized, aggressive, feraL and violent. A few of thcn1 are psychopaths, but n1ost are phenocopies of ｰｳｹ｣ｨｯ｡ｴｾｩＮ＠ "). 16. See STANLEY Mil.GRAM, OBEDIENCE TO AUTHORITY passim (lst ed. 1974) (using cxpcrin1cntal data to shov. that a n1ajority of ordinary people arc easily intitnidated by authority figures into acting contrary to their 1noral values and society's expectations): PHILIP ZIMBARDO, THE LUCIFER EFFECT: UNDERSTANDJN(i How Gooo PEOPLE TURN EVIL. at vii (2007) ("[P]owerful situational forces .... that exist in many con1n1on behavioral contexts arc tnore likely to distort our usual good nature by pushing us toward engaging in deviant. destructive, or evil behavior \.vhen the settings are new and unfamiliar. When embedded in them, our habitual ways of thinking, feeling, and acting no longer function to sustain the moral compass that has guided us reliably in the past. . . [W]hilc most people arc good most of the time, they can he readily seduced into engaging in what would normally qualify as ego-alien deeds, as antisocial, as destructive of others."): Jon Hanson & David Yosifon, The Situational Character: A Critical Realist Penpective on the Human Animal, 93 GEO. L.J. L 7-8, 170-79 (2004) (arguing that social psychology, or "situationism," is generally n1orc accurate and explanatorily powerful than personality psychology, or "dispositionism"). 17. See supra note 15. 18. See Harenski et al., supra note 5, at 142-47 (arguing that although "studies suggest a genetic contribution to psychopathy," the "aetiological nature of neural deficits in psychopathy remains largely unknown"): Hart, supra note 3, at 162 ("'The etiology of psychopathy is unknown. Most theoretical models have focused on the potential causal influence of biological factors, as research has failed to identify any childrearing experiences, fa111ilial dysfunctions, or other adverse life experiences that arc found both frequently and specifically in people with psychopathy compared to people with other mental disorders."). 19. Sec HARE, .rnpra note 5, at 6 ("It is true that the childhoods of some psychopaths \vcrc characterized by niaterial and emotional deprivation and physical abuse. hut for every adult psychopath from a troubled background there is another whose family life apparently was warm and nurturing . Furthermore, most people who had horrible childhoods do not become psychopaths or callous killers."): id at 84 ("Some criminals can be understood as largely the products of what is known as 'the cycle of 1 1309 concern for others as a result of abuse are more correctly referred to as "sociopaths" than "psychopaths.''2° For better or worse, however, the two terms are often used interchangeably, 21 if only because observers of antisocial behavior generally do not know its ultimate cause. B. Psychological Communi(v 's Definition Once again, according to the ordinary understanding, the essential attribute of psychopathy-what makes the psychopath a psychopath-is his constitutive lack of concern for others. 22 It is not clear, however, whether or not the psychological community agrees that this characteristic is essential. In 1941, Hervey Cleckley published a book, The /\/!ask of Sanity, in which he listed sixteen symptoms that he considered to be the defining characteristics of a psychopath. 23 In the early 1990s, Robert D. Hare, Ph.D., violence.' Evidence is ctncrging to sho\v that victin1s of early sexual, physical, or emotional abuse frequently become perpetrators of the same as adults."); id. at 170 ("On balance . . I can find no convincing evidence that psychopathy is the direct result of early social or environmental factors."); id. at 172 ("While some assert that psychopathy is the result of attachn1ent difficulties in ｩｮｦＧｾＱ｣ｹＬ＠ I turn the argu1ncnt around: In so1nc children the very failure to bond is a svmptom of psychopathy. It is likely that these children lack the capacity to bond readily, and that their lack of attachment is largely the result, not the cause, of psychopathy."); see also HARE, supra note 5, at 158-59, 165-66, 170, 172-75, 177-78, 215. Hare does suggest that the particular expression of psychopathy-whether it is violent or ｮｯｶｩｬ｣ｴﾷｾ､･ｳ＠ depend on the psychopath's upbringing. See HARE, supra note 5, at 165-66, 173-75, 178. 20. See id at 23-24 ("[S]ome clinicians and researchers-as well as most sociologists and ｣ｲｩｮＱｯｬｧｳｴｾｷｨ＠ believe that the syndron1c is forged entirely by social forces and early experiences prefer the tenn sociopath, whereas those ... who feel that psychological, biological, and genetic factors also contribute to dcveloprncnt of the syndrome generally use the tenn ps,vdwpath."); DAVID T. LYKKEN, THE ANTISOCIAL PERSONALITIES, at viii (1995) ("[A]ny persistent offender is likely someone whose innate temperament made him or her unusually difficult to socialize. These are the people I call psychopaths . ... The fora! products of indifferent. incompetent or overburdened parents hi at 7 ("I use the tcrn1 ,vociopath to refer to are the people I refer to as ｳｯ｣ｩｏＯｊ｡ｴｨＮＢＩｾ＠ persons whose unsocialized character is due prin1arily to parental fr1ilures rather than to inherent peculiarities of te1npcran1ent. The psychopath and the sociopath can be regarded as opposite endpoints on a co1n1non dimension vvith difficult te1nperan1cnt inaximized at the psychopathic end and inadequate parenting tnaxi1nized at the sociopathic end."); Lykken, supra note 7. at 124 .. 25 (describing psychopaths as "'individuals whose innate tempcra1nents make thern intractable to socialization" and sociopaths as "'the larger fraction [of cri1ninals 1 who have grown up unsocialized primarily because of environ111cntal rather than genetic reasons"). An exan1ple of a sociopath, a person whose psychopathic condition was likely caused by severe abuse, is Robert Alton Harris. See Miles Corwin, fcv Ki/fer "s Life Steeped in Violence, L.A. TrMES, May 16, 1982, at l. 2 l. See JON RONSON. THE PSYCHOPATH TEST: A JOURNEY THROt.:GH THE MADNESS INDUSTRY I 12-13 (2011) ("Psychologists and psychiatrists around the world tend to use the terms [psychopath and sociopath] interchangeably."). 22. See supra note 12. 23. CLECKLEY, supra note 14, at 337-38. 1310 [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW revised the list and gave it the name "Psychopathy Checklist-Revised" or "PCL-R."24 The symptoms listed in the PCL-R include not only specific kinds of antisocial behavior but also several other personality traits as well. Here is the complete lisr 5 : • • • • • • • • • • • • • • • • • • • • glib and superficial chann grandiose self-worth need for stimulation or proneness to boredom pathological lying conning and manipulativeness lack of remorse or guilt shallow affect callousness and lack of empathy parasitic lifestyle poor behavioral controls promiscuous sexual behavior early behavior problems lack of realistic, long-term goals impulsivity irresponsibility failure to accept responsibility for own actions many short-term marital relationships juvenile delinquency revocation of condition release 6 criminal versatilit/ 24. See HARE, supra note 5, at 32-70 (explaining how the PCL-R originated and describing several of the more central items in the checklist). 25. See id at 34-56; RONSON. supra note 21, at 97-98. Hare also developed a list of symptoms for diagnosing twelve- to eighteen-year-old juveniles with psychopathy. This list is called the PCL-YV. where YV stands for "Youth Version." The list is similar to the PCL-R except for some minor differences in labels and in method of scoring. See THE CAL. SCH. or PROF' L PSYCHOLOGY. HANDBOOK or JUVENILE FORENSIC PSYCHOLOGY 302 (Neil G. Ribner ed., 2002). For an alternative, overlapping list of psychopathic traits. see Hart, supra note 3. al 160. 26. Hare categorizes seven of these symptoms under the heading "Factor]: Personality 'Aggressive narcissisin "': glibness and superficial charm, grandiose sense of sclf:worth. pathological lying. conning/manipulative, lack of remorse or guilt, shallow affect. callous/lack of empathy, and failure lo accept personal responsibility. Hare categorizes nine of the symptoms under the heading "Faclor2: Case history 'Socially deviant lifestyle'": need for stimulation/proneness to boredom, parasitic lifestyle, poor behavioral control, lack of realistic long-tenn goals. impulsivity, inesponsibility, juvenile delinquency, early behavior problems) and revocation of conditional release. 1311 This list raises at least two important questions. First, what if a person satisfies only some or most but not all of these criteria? ls that person still considered a psychopath? Second, what if a person satisfies some or all of these criteria to a small degree? Again, is that person still considered a psychopath? Hare's response to both questions is that psychopathy is a continuum condition, a condition that admits of degrecsn Instead of suggesting that certain people either are psychopaths or are not psychopaths, Hare suggests that the extent to which different psychopaths exhibit any of the twenty symptoms above will vary. So, for the purposes of diagnosis, psychiatrists using the PCL-R rate subjects on a scale of 0-2 within each category. Zero represents no exhibition, l some exhibition, and 2 full exhibition of a given symptom. Subjects who receive a score of 30 or above are classified as psychopathic; subjects who receive a score of 29 or below are classified as nonpsychopathic. Within the psychopathic class-within the 30- to 40-point range-the higher the score, the more psychopathic that subject is considered to be. So a subject who receives a 38 is considered to be more psychopathic than a subject who receives a 33. 28 Given this approach, however, it is not clear whether or not lack of concern for others--an absence that splits into two attributes above, lack of remorse or guilt and callousness/lack of empathy-is essential to psychopathy. A person might receive 0 in both of these categories and still receive a total score of 30 or above simply by receiving enough ls and 2s in the eighteen other categories. Yet it is difficult to see how such a person would qualify as a psychopath because, again, according to the ordinary understanding, what seems essential to psychopathy is an inability to feel remorse and empathy. lf a person were to score 0 in the remorse and empathy categories but still highly enough in the other Finally, l-[arc suggests that three factors are not correlated \vith either Factor! or Factor2: pro1niscuous sexual behavior, many short-tcrn1 marital relationships, and criminal versatility. See ROBERT D. HARE, THE HARE PSYCHOPATHY CHECKLIST-REVISED: PCL-R (2d ed. 2003 ): see also Lee, supra note 3, at 127 ("[T]he [psychopathy] test is comprised of two factors: 'factor I captures the affective/interpersonal dimension of psychopathy, measuring things like "egocentricity, manipulativeness, callousness, and a lack of remorse," while Factor 2 captures an unstable or antisocial lifestyle component typified by behavior like juvenile delinquency, a parasitic lifestyle, proneness to boredom, i1npulsivity, and irresponsibility.' Sirnplified, the first factor ineasures narcissisrn and egocentrism, while the second fi1ctor correlates with substance abuse and crirninal behavior." (footnote omitted)). 27. See also Ferzan, supra note 9, at 239 (referring to psychopathy as "an admittedly degreed category"): Harenski et al., supra note 5, at 145 (suggesting that psychopathy is a '"din1ensional" disorder rather than a ''categorical" disorder). 28. The cutoff in Europe is 25 rather than 30. See Malatcsti & McMillan, supra note 5. at 80 n.2. 1312 [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW categories to receive a 30 or above, the person would qualify only technically, not intuitively or conventionally, as a psychopath. Even the "father" of the PCL-R, Robert Hare, seems to have conflicting commitments here. On the one hand, as far as I am aware, Hare never says that a person who receives a 0 in three categories-lack of remorse or guilt, Jack of empathy, and shallow affect-and still receives a total score of 30 or above on the PCL-R is not a psychopath. On the other hand, Hare states repeatedly that a constitutive absence of conscience is the essential attribute of a psychopath, a point that implies that receiving a 0 in the three categories just mentioned would automatically disqualify a person from being a psychopath. 29 C. Possible Problems with the PCL-R The PCL-R is generally considered to be a reliable tool for diagnosing psychopaths. 30 Jn recent years, however, some lawyers and scholars 29. See llARF, supra note 5, at 1 ("'[Psychopaths'] hallmark is a stunning lack of conscrencc . ."); id. at 40 ("Psychopaths show a stunning lack of concern for the devastating effects their actions have on others."); id. at 44 ("[Psychopaths] seem unable to 'get into the skin' or to ·walk in the shoes' of others. except in a purely intellectual sense. The feelings of other people arc of no concern to psychopaths."): id. at 89 ("[Psychopaths'] violence is callous and instrumental ... and the psychopath's reactions to ranothcr person's suffering] arc n1uch n1orc hkcly to be indi1Tcrcncc, a sense of power, pleasure, or s1nug satisfaction than regret at the da1nage done."). 30. See id. at 181 ("Not only docs [the Psychopathy Checklist] provide clinicians and decision 111akers with a reliable and valid diagnostic procedure, it provides othersincluding members of the criminal justice system-with a detailed description of precisely what goes into a diagnosis of psychopathy."): id. at 183-84 ("Accurate diagnoses that also have predictive validity can be extrcn1ely useful to the crin1inal justice system. The success of the P.1ychopathy Checklist in predicting recidivism and violence attests to this. [A]ccurate assessments can be very useful in the classification of offenders . The review assists [prison] staff in the difficult and nerve-racking task of trying to strike a reasonable balance between the need to reduce violence and the needs and rights of each patient to receive appropriate treatment."); id. at 189-90 (''[T]here is ample evidence that a careful diagnosis of psychopathy . . . greatly reduces the risks associated with decisions in the crin1inal justice system. Properly used, it can help to differentiate those offenders who pose little risk to society from those who arc at high risk for recidivism or violence."): Hart. supra note 3, at 171 ("Psychological tests with established reliability and validity have been developed to provide a con1prehensive assessn1ent of psychopathic sy111pton1atology. The tnost widely used tests for assessing psychopathy in the context of civil long-term commitment evaluations are the PCL-R and PCL:SV."): Lee, supra note 3, at 135 ("[S]cientific data indicates that public safety can be better protected by basing sentencing decisions 'on n1ore comprehensive information about offenders, including measures of psychopathy.'" (quoting Harris et al., supra note 6. at 238)): Litton, supra note 6, at 371 ("(U]se of the PCL-R instrument produces strong inter-rater reliability."). 1313 have criticized the checklist. These critics have offered at least six different objections. 31 The first objection is that most diagnoses based on the PCL-R are unreliable because they vary too much from one psychiatrist to another. Hare or a supporter of Hare's approach to psychopathy might respond that even if there is variation in these cases, we can still rely on psychopathy scores in all of the other situations, the situations in which one psychiatrist's psychopathy score is independently confirmed by at least one other psychiatrist. 32 But this point does not help us determine 31. See generally David DeMatteo & John F. Edens, The Role and Relevance of the Psvchopathy Checklist-Revised in Court: A Case Law Survey of U.S. Courts (19912004), 12 PSYCHOL. PUB. PoL'Y & L. 214, 215, 219-21 (2006); John F. Edens, Melissa S. Magyar & Jennifer M. Cox, Taking Psychopathy Measures "Out of the Lab" and into ()N PSYCHOPATHY AND LAW the legal 5_yste1n: Some Practical Concerns, in ｾｬａｎｄｂｏｋ＠ (Kent A. Kiehl & Walter Sinnott-Armstrong eds., forthcoming 2012); John F. Edens, Marcus T. Boccaccini & Darryl W. Johnson, Inter-Rater Re/iabi/itv of the PCL-R Total and Factor Scores An1ong ｐＮ｜ｾｶ｣ｨｯＱ［｡ｴｩ＠ Sex Offi:n<lers: /lre Personality Features fl.Jore Prone to Disagreement than Behavioral Features", 28 BEHAV. SCI. & L. 106, 106-09, 116-18 (2010); John F. Edens & Gina M. Vincent, .Juvenile PsvchopathF: A Clinical Constmct in Need ofRestrain/?, 8 J. FORENSIC PSYCHOL. PRAC. 186, 194 (2008); John F. Edens, David K. Marcus, Scott 0. Lilienfeld, & Norman G. Poythress Jr., Psychopathic. Not Ps_vchopath: Ta.xometric Evidence jhr the Ditnensional Structure of" Psychopathy, 115 J. ABNORMAL PSYCHOL. 131, 131, 141 (2006); John F. Edens. Unresolved Controversies Concerning Psychopath_v: lmplicationsj(Jr Clinical ancl Forensic Decision Making, 37 PROF. PSYCHOL.: RES. & PRAC. 59, 60-63 (2006); Robe1t Prentky et al., Sexually Violent Predators in the Courtroom: Science on Trial, 12 PSYCHOL. PUB. PoL'Y & L. 357, 360, 370-72 (2006). But see Malatcsti & McMillan, supra note 5, passim (responding to various objections against the validity or usefulness of the PCL-R). f-IARE, SU/Jra note 5, at 32. In all fairness to Hare, he recognizes this problcn1. ｾＧｩ･＠ 189 ("Even under the most ideal conditions, with access to high-quality information and using strict diagnostic criteria, psychiatric diagnosis and predictability are not crrorfrce .... We must also be aware of the fact that even if perfect diagnoses were possible (and they are not), their ability to accurately predict recidivism or violence is limited."); RONSON, supra note 21, at 214--15 ('"l do wony about the PCL-R being misused,' Bob [Hare] said... 'I tried to train some of the people who administer it. They were sitting around, twiddling their thumbs, rolling their eyes, doodling, cutting their fingernailsthcse were people who were going to use it.' In the executive bar, Bob Hare continued. He told me of an alarming world of globe-trotting experts, forensic psychologists, cri1ninal profilers, traveling the planet anned with nothing 1nuch more than a Certificate of Attendance, just like the one l had. These people might have influence inside parole hearings, death penalty hearings, serial-killer incident roorns, and on and on. I think he saw his checklist as something pure ... but the humans who adtninistered it as masses of weird prejudices and crazy dispositions."); see also Lee, supra note 3, at 131 ("While there is an increased use of the PCL-R in court, critics continue to take issue with the accuracy of the test and its occasional undue weight in capital cases. Specifically, critics warn that studies 'provide little support for the ability of the PCL-R to predict violent institutional behavior among capital murderers facing death sentences.' As such, critics contend that there is 'virtually no support for using the PCL-R to predict institutional violence in the high-stakes context of a capital case.' Consequently, many scholars are seriously concerned about the potential misuses or questionable applications of instruments such as the PCL-R in legal contexts, contending 1314 [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW l ( what to do, how to label the individual, in situations where the variation among evaluators is too great. Indeed, the fact that psychiatrists can vary so much in some cases casts great doubt on their evaluations not only in those cases but also in all of the other cases as well, including the cases where they happen to agree, Their agreement in the latter cases could just be a happy coincidence of similar error, not a genuine reflection of anything about the individual whom they are evaluating, The second objection is that the PCL-R does not actually measure what it purports to measure--the mental disorder of psychopathy. Rather, it measures nothing more than a tendency toward criminal behavior. 33 It should be noted that Hare adamantly opposes this criticism and, at one point, demanded that Skeem and Cooke eliminate this point (among others) from a draft of their article before publishing it. When Skeem and Cooke refused to comply with Hare's demand, he threatened to sue them for defamation. And this move itself spawned a flurry of literature over not only the merits of the PCL-R but also academic freedom more 34 generally. The next few objections concern not the PCL-R per se but rather key assumptions that underlie the PCL-R. The first of these objections-and the third objection overall-is that the tern1 psychopathy does not "pick out" any real disorder in the real world. 35 Jn other words, there is no that psychopathy 111ay be afforded too much weight in detcrn1ining sentencing." (footnotes omitted)). 33. See genera/Jr Jennifer L. Skeem & David J. Cooke, Is Criminal Behavior a ｃｾｦＧｮｴｲ｡ｬ＠ ('ornJH>nenl ＼ｾｦ＠ｦ＾Ｌｾｶ｣ｨｵＱｴｹＧＡ＠ ConcejJlual /)irections fi>r Resolving the Debale, 22 PSYCJIOL. ASSESSMENT 433 (20] 0). 34. See genera/IF David Baxter. Psvchopath Guru Blocks Critical Article: Will Case Affect Credihilitv of PCL-R Test in Court", PSYCHOPATH RESEARCH (May 30, 20 I 0). http://www.psychopath-research.com/forum/ubbthrcads.php/topics/ I 0614/Psychopath _Checklist_ Debate: Karen Franklin. Psvchopathy Brouhaha: It's a Wrap (I Hope!), IN THE NEWS: FORENSIC PSYCHOLOGY CRIMINOLOGY & PSYCHOLOGY-LAW (June 17. 2010), http ://forensicpsyc hologist. b Io gs pot. com/20 I 0/06/psychopathy-brouhaha-its-wrap -i-hope.html: Norman Poythress & John P. Petri la. PCL-R Psvchopatiff: Threats To Sue, F\:er l?evieH', a1u/ l;Jolential hnplicationsfi1r Science ll/1(} LaH'. A Con1111e11ta1)', 9 lNT'L J. FORENSIC MENTAL HEALTH 3 (20 I 0): Charlie Smith, UBC Psrchopathv Etpert Robert !-fare Res;Jrnuis to .4cuden1ic ＨｾｲｩＱ｣ｳｮ＠ over LaH'suit T'hreat, STRAIGHT (.lune 13, 2010), http://www.st ra ig ht. com/ a rt i c Ie- 3 2 8 9 2 7/van co u v erI u be-psychopathy-ex pert -ro bcrt harc-responds-acaden1ic-criticisn1-ovcr-lawsuit-thrcat; John Travis, Paper on P.s:vcho;;aths, Delaved hv Legal Threat. Fina/Iv Puhlished. SCIENCEINSIDER (June 10, 2010, 2:08 PM), http://news.scicncemag.orglsciencei nsider/20 I 0/06/paper-on-psychopaths-delayed-hy-.html. 35. See Malatcsti & McMillan. supra note 5. al 82 ("[S]ome have argued that PCL-R is not valid. A notion of absolute validity requires that PCL-R cuts objective reality at 'its joints.' In other words. PCL-R should refer to some unitary and 1315 distinct disorder corresponding to the word psychopathy in the same way that there is a distinct disorder corresponding to the words anorexia nervosa. Instead, what we call psychopathy "picks out" an arbitrary collection of attributes that do not constitute a disorder any more than having a cold, dark hair, and a bad temper at the same time constitutes a disorder. Indeed, the twenty different attributes that are supposed to constitute psychopathy no more naturally belong together as attributes of a real psychological entity than do happiness, curiosity, a tendency to oversleep, and an inclination toward romantic movies. We could call the phenomenon of weighing over 100 pounds, wearing blue jeans, and carrying at least two books a disorder, but calliug this random group of attributes a disorder would not make it so. It would not make it a disorder not only because there is nothing wrong with this combination but because this combination is arbitrary and therefore does not refer to a distinct entity in the real world to which disorder or a more speci fie term refers or should refer. 36 The fourth objection is that many psychiatrists are not at all dispassionate or objective when they evaluate individuals for psychopathy. 37 On the contrary, they tend to diagnose individuals as psychopaths on either subjective grounds (usually fear or dislike 38 ) or utilitarian grounds independent reality. [l]t has been argued that specific different neural underpinnings might accompany the different dimensions of the construct of psychopathy. thereby shovving that PCL-R is a heterogeneous collection of disparate neurological bases that should be abandoned." (citations omitted)). 36. Hare responds to this objection as follows: [flailing to recognize that a child has many or most of the personality traits that define psychopathy may doom the parents to unending consultations with school principals, psychiatrists, psychologists, and counselors in a vain atte1npt to discover what is wrong with their child l1f1li ivith themselves. It may also lead to a succession of inappropriate treatments and ｩｮｴ｣ｲｶ･ｯｳｾ｡ｬ＠ at great financial and emotional cost. If you are uncomfortable applying a fomrnl diagnostic label to youngsters, then avoid doing so. However, do not lose sight of the problem: a distinct syndron1e of personality traits and behaviors that spells long-tenn trouble, no matter how one refers to it. HARE, supra note 5, at 161. 37. See Toch, supra note 14, at 151-53 (providing evidence of biases and subjectivity in clinicians' diagnoses of inmates with ASPD). 38. See id at 152 ("[T]he experience 'I sense an effort to manipulate me, and I resent it' can translate into a patient's adjudged trait of 'manipulativeness,' and 'I feel frustrated because you won't confess your culpability when l cross-examine you' can become 'lack of remorse'; similarly, '!can't get you to discuss your feelings with me when I invade your privacy' translates into 'You can't have any feelings since you won't discuss them with me,' ergo, 'callousness.' Other inferences can be drawn from personal reactions to the offense, or fro1n perceptions of uncongeniality or uncooperativeness with authorities."). 1316 y 1 [VOL. 48: 1299. 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW y a j s a l t l i 1 l 7 J s (for example, to prevent them from gaining admission to their facilities), 39 As a result, the label is too often misapplied and misused. People who are not really psychopathic are still labeled this way and then treated accordingly .40 The fifth objection is that, like the label witch in seventeenthcentury America, the label psychopath is dangerous. It is supposed to be objective and scientific-indeed, a clinical diagnosis such as what a patient with a bad cough receives from a lung doctor-but is in fact thoroughly tinged with negative moral judgment and pessimism. 41 For most people, including psychologists, the term psychopath signifies a person who is both morally reprehensible-ranging from very bad to evil-and untreatable. These two inferences are dangerous for four reasons. The first reason: the label psychopath is dehumanizing and confining. Because it is generally interpreted to mean "a very dangerous guy who cannot be controlled," it reduces psychopaths to the status of wild animals. Indeed, psychopaths are often compared, if not identified, with s I t 39. See id. ("Because psychopathy is generally equated with untreatability, offenders that clinicians do not want to deal with can be turned away by adjudging them psychopathic. and hence unamenable to treatment. In other words, psychopathy is featured in ... the 'diagnostic ｧ｡Ｑｮ･Ｇｾｴｨ＠ use of diagnoses to shuttle clients from one's own turf to other jurisdictions. Psychopathy (or antisocial personality disorder) unsurprisingly beco1nes a salient diagnosis in the discharge summaries of hospitals who send patients back to prison after cursory review." (footnote omitted) (citation omitted)). 40. See HARE. supra note 5. at 181 ("[l]mproper use of the label fp.\vchopath] has powerful destructive potential for the misdiagnosed individual."); id. at I 91 ("Diagnoses yield sticky labels; faulty predictions based on inaccurate diagnoses can result in confusion and disaster."); John Gunn, Psychopathy: An Elusive Concept with Moral Overtones. in PSYCHOPATHY: ANTISOCIAL, CRIMINAL, AND VIOLENT BEHAVIOR, supra note 7, at 32, 35 (""The term "psychopathic disorder' ... is a trigger for rejection. Patients labeled in this way are excluded from all sorts of arrangements and arc often dealt with via punitive rather than therapeutic responses."). 4 I. See Gunn, supra note 40, at 34 ('"'Psychopathic' is almost synonymous with 'bad'-a powerful subjective concept that is unhelpful in medical science. Patients may be harder to treat if they arc called 'psychopaths' or any other name that is synonymous with "badness· and that invites rejection. 'Oh he"s just a psychopath!' means 'I don't like hin1; I regard hin1 as a bad guy.' In medicine, the n1orality of a patient's symptoms or behavior ought to be i1TC!evant."); id. at 35 ("'The term 'psychopathic disorder' [is] a largely moral term."); id. at 36 ("'From both the scientific and the therapeutic perspective . . it would be more helpful if we could describe unpleasant patients in 1norc neutral tcnns. The value-laden language 1nakes the trcatn1ent task even more difficult than it is to begin with."). 1317 47 sharks, snakes, wolves, and other dangerous predators. - And because the assumption of incurability is built into this label, the person so labeled cannot escape this cavalierly designated subhuman status. The label psychopath dooms that person to be perceived-and therefore treated indefinitely-as a frightening creature who needs to be caged and isolated from society rather than a human being in need of psychological 43 . assistance. The second reason: jurors will be overly prejudiced by this term. Once they learn that a psychologist has diagnosed a given defendant to be a psychopath, they will infer that the defendant is evil and will be that much more likely to find him guilty. 44 This result seems unfair; jurors should judge a defendant solely on the basis of the evidence regarding the alleged crime, not on the basis of any prejudicial labels that designated experts attach to the defendant. Notice, this unfairness is 42. See Ferzan, supra note 9, at 239-40 ("At a recent conference I attended .. one theorist [compared] the psychopath to a tiger and argu[ ed] that we should treat the psychopath just as we would treat a tiger-we should put him in a cage. I demur. Does anyone doubt that we would unapologetically shoot an anin1al that \Vas as dangerous as some psychopaths"'"); Lee, supra note 3, at 126 ("[Psychopaths] have even been characterized as 'cold-blooded "intraspccics predators" that arc hardwired to violate others, even those to \vhon1 they are closest, without guilt or conscience."' (quoting Lisa Ells, Note, Juvenile Psychoparhv: The Hollow Promise ol Prediction, I 05 COLUM. L. REV. 158, 158 (2005))). 43. See Toch, supra note 14, at 151 ("Psychopathy is a wildly pejorative designation because individuals described with this designation are presumptively sleazy, unsavory, repugnant. and dangerous."). f-{arc responds to this criticism by defending his use of the tern1 ｰＮｾｶ｣ｨｯＱ｡ｴＺ＠ [The label psychopath] is a convenience. . . If we talk of someone with Saying high blood pressure we talk of them as hypertensives. [t's a term. . 'psychopathic' is like saying 'hypertensive.' I could say, 'Someone who scores at or above a certain point on the PCL-R Checklist.' That's tiresome. So I refer to them as psychopaths. And this is what I mean by psychopathy: I rnean a score in the upper range of the PCL-R . . . . [T]he people who [claim that p.1ychopath is a problematic label J ... are very left-wing, left-leaning academics. Who don't like labels. Who don't like talking about differences between people. People say I define psychopathy in pejorative tenns. I-low else can I do it? "[alk about the goocl things? I could say he's a good talker. He's a good kisser. He dances very well. He has good table manners. But at the same time, he screws around and kills people. So what am 1 going to en1phasize'? RONSON, supra note 2 I, at 268-69. 44. See HARE. supra note 5, at 186--88 (giving an example of the "destructive potential of diagnostic labels in court"); Lee, supra note 3, at 132 ("[T]he APA [American Psychiatric Association] asserts that 'mental health expert testimony on the issue of future dangerousness impern1issibly distorts the fact-finding process and causes serious prejudice to the defendant, as the "expert" testimony is likely to receive undue weight"' (quoting Mitzi Dorland & Daniel Krauss, The Danger o.l Dangerousness in Capital Sentencing: Exacerbating the Prob/ern (!l ａｲ｢ｩｴ｣ｵｾｶ＠ anll Capricious DecisionMaking, 29 LAW & PSYCHOL. REV. 63, 83 (2005))). 1318 l ;e ;o [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW ie :d :d 11 1. 0 lt :s :e ls IS IC ;s lS n .e .a L e y y only compounded if a psychologist's diagnosis is incon-ect. In these situations, jurors may be assuming that the defendant is a psychopath and judging him that much more harshly when this assumption is simply incon-ect. The third reason: the fact of the matter is that different kinds of psychopaths may just be treatable-by medication, different fonns of therapy, or both. 45 So to assume that they are categorically untreatable is to give up on them unnecessarily early. It is to deprive them, and ourselves, of what is likely a more humane and productive policy approach. 46 The fourth reason: the label psychopath might be particularly pernicious because it may turn people who are not otherwise psychopathic into psychopaths. That is, the label may become a self-fulfilling prophecy. 47 ------------ 45. Sec HARE. supra note 5. at 202-05 (describing broad outlines of a potentially successfol treatment program for psychopaths); STANTON E. SAMENOW. INSIDE THE CRIMINAL MIND 208-42 (Crown Publishers rev. ed. 2004) (1984) (arguing that even the 111ost hardened crin1inals can be converted into law-abiding citizens if they arc taught how to take responsibility for their behavior): J. REID MELOY, THE PSYCllOP/\THIC MIND: ORIGINS, DYNAMICS, AND TREATMENT 309-40 (1988) (delineating several different categories of psychopaths and arguing that most of these categories can be helped to one extent or another by appropriate psychotherapeutic techniques); Gunn, SUJJra note 40, at 38 ("The treatment of patients with antisocial problems can be a very rewarding activity. The patients arc fascinating, vary enormously. and respond to a wide variety of treatment strategies. They have very little in co1n1non \vith one another, other than the negative feelings they engender in other people. If such patients are to be helped. they require an individual functional analysis hased on an understanding of their pathology. as well as an individualized treatment program."); Lee, supra note 3. at 130 ("[M]ost remain hopeful for prevention in that 'research may eventually allow for effective, early legal and psychological intervention \Vith youth \vho tnight otherwise proceed inexorably to adult psychopathy.'" (citation omitted)): Lilicnfeld & Arkowitz, supra note 14 ("Although psychopaths are often unn1otivated to seek treat1nent, research by psychologist Jennifer Skeem of the University of California, Irvine, and her colleagues suggests that psychopaths may benefit as much as nonpsychopaths from psychological treatment. Even if the core personality traits of psychopaths are exceedingly difficult to change, their cri111inal behaviors inay prove n1ore an1enable to trcatn1ent."); OglofT & Wood, supra note 6, at 178 ("Perhaps the question of whether psychopathy can be treated ought to be rcforn1ulatcd as \vhcther we can n1anage psychopaths and their behavior. ... More success has been realized in trying to reduce their problcn1atic behaviours--including offending."). 46. See Gunn. supra note 40, at 37 ("A negative halo leads directly to a global label, which in turn leads to negative ideas about treatment and often to frank rejection. Once the pejorative label is dropped, once the term 'psychopathic' is out of the way. the notion of 'untreatability' can also be tempered or dropped."). 47. See HARE, .rnpra note 5, at 161 ("[I]t is no light matter to apply psychological to adults. Perhaps the issue with the n1ost pressing consequences labels to ｣ｨｩｬ､ｲｮｾｯ＠ for children is the Ｇｳ｣ｬｦｾｵｩｮｧ＠ prophecy,' whereby a child who has been labeled a troublen1akcr 1nay indeed grow to fit the 1nold, while others-teacher, parents. fi·iends- 1319 People who are not psychopathic but who have been erroneously "slapped" with this label by an authority may actually become entirely indifferent toward others because the label forces them along this path. Initially, after the label has been attached, they may try to prove that the label is inapplicable. But after several failed attempts, attempts that fail precisely because they are wrongly interpreted through the lens of this label, they may give up or actually come to believe that the label is indeed correct after all. At that point, their self-conception and resulting behavior actually follow the label rather than deviate from it. The sixth objection is that labeling certain individuals as psychopaths is misleading because it denies individual variation among psychopaths. 48 It falsely implies that all of the individuals to whom this label is attached exhibit the same symptoms and that these symptoms are caused by the same kind of neurological disorder. This implication is false because the PCL-R contains twenty different attributes, each of which can range from 0-2. So there is an extraordinarily large number of different combinations of attributes and degrees that can result in a score of 30 or higher, which means that any two people who have been diagnosed as psychopaths might have very different personalities and exhibit very different behavior. Yet by labeling them both as psychopaths, we render these differences invisible. These differences should not be overlooked for two reasons. First, they may be morally relevant. One psychopath's behavior might be less morally reprehensible than another psychopath's. Second, they may be relevant to treatment. Different treatments are appropriate for different symptoms. As an analogy, consider the label sick. This label equally applies to the person suffering from a bad cold and the person suffering from malaria, but its equal application to both would do a great disservice to both, especially to the latter. By obscuring the very real differences between them-the differences in the symptoms, the gravity of these symptoms, and the causes of these symptoms-it misleadingly implies that people in this general category should be regarded, and treated, as the same. If, then, doctors were to act on this label alone, many people reinfOrce the process by subtly conveying their negative ･ｸｰ｣ｴ｡ｩｯｮｳＮＢＩｾ＠ Christopher Slobogin, A Jurisprudence o/ Dangerousness, 98 Nw. U. L. REV. I, 30 ("[W]hcn the government chooses to label a miscreant a 'predator' or 'dangcrou::; person' in lieu of punishing hi111 as a 'cri1ninal offender,' as sexual predator statures do, it very powerfully announces that the individual either cannot or will not control his behavior. Research on prophecy. motivation suggests that this type of labeling might become a ｳ｣ｬｴｾｦｵｩｮｧ＠ The individual shunted into the "predator' system will come to believe that, unlike those who are punished as volitional actors, he is incapable of acting diftcrently. That belief in turn could well 1nake hin1 n1ore dangerous."). 48. See Litton, supra note 6, at 367-68 (making a similar point about ASPD). 1320 sly ely tth. the fail his IS mg 1ed :he :he cge :nt or as :ry !er st, :ss be 'nt to •111 to es [VOL 48: 1299. 201 I] Dangerous Psychopaths SAN DIEGO LAW REVIEW suffering from malaria would be both mistreated and undertreated and many people suffering from a bad cold would be both mistreated and overtreated. The same, then, applies to the diagnosis of psychopathy. By obliterating the very real differences between different people in this category, it tends to lead psychologists and the criminal justice system to treat them all the same when, in fact, these differences call for different attitudes and responses. D. Differences Between Psychopathy and Antisocial Personality Disorder Historically, psychopathy and ASPD were not distinguished. 49 And to this day, people often use the tenns interchangeably. 50 Indeed, passages from the "diagnostic bible" 51 of psychological disorders, the Diagnostic and Statistical lvfanual of Mental Disorders (DSM-IV-TR), make it seem as though ASPD and ｰｾｹ｣ｨｯ｡ｴ＠ are identicaJ 52 : Individuals with Antisocial Personality Disorder also tend to he consistently and cxtre1ncly i1Tesponsihle. Irresponsible work behavior may be indicated by significant periods of uncn1ploymen1 despite available job opportunities, or by abandonment of several jobs without a realistic plan for getting another job. There may also he a pattern of repeated absences from work that are not explained by illness either in then1sclves or in their fan1ily. Financial irresponsibility is indicated by acts such as defaulting on debts, failing to provide child support, or failing to support other dependents on a regular basis. Individuals \Vith Antisocial Personality Disorder sho\V little rcn1orse for the consequences of their acts . . They may be indifferent to, or provide a superficial rationalization for, having hurt, mistreated, or stolen fron1 son1cone (e.g., "life's unfr1ir." "losers deserve to lose," or "he had it coming anyway"). These individuals may blame the victims for being foolish, helpless, or deserving their fate: they tnay n1ini1nize the harmful consequences of their se es as •le 1er he of ly on y. se m 49. HARE, supra note 5. at 24 ("A tenn that was supposed to have much the same n1eaning as 'psychopath' or 'sociopath' is antisocial ;;ersonality disorder . .. .'');id. at 25 ("[There] has been confusion during the past decade, with many clinicians mistakenly assu1ning that antisocial personality disorder and psychopathy are synonymous tenns. ''). 50. See, e.g., Hart, supra note 3. at 159 ("Psychopathy or psychopathic personality disorder is rcfCrrcd to as antisocial personality disorder in the fourth edition of the DSMIV . . . . " (citations omitted)). But see HARE, supra note 5, at 159 (comparing psychopathy with Disruptive Behavior Disorder rather than with ASPD). 51. This is Hare's tenn. See HARE, supra note 5, at 24. 52. AM. PSYCIIIATRIC AsS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS-TEXT REVISION 701-02 (4th ed. 2000) [hereinafter DSM-JV-TR). The DSMJV-7R authors recognize as much when they state that ASPD "has also been referred to as psychopathy, sociopathy, or dyssocial personality disorder. . [D]eceit and n1anipulation are central features of Antisocial Personality Disorder." id. at 702. 1321 actions; or they may simply indicate complete indifference. They generally fail to compensate or make ainends for their behavior. They rnay believe that everyone is out to "help number one" and that one should stop at nothing to avoid being pushed around. Individuals with Antisocial Personality Disorder frequently lack empathy and tend to be callous, cynical, and contcrnptuous of the feelings, rights, and sufferings of others. They may have an inflated and arrogant ｳ･ｬｴｾ｡ｰｲｩ＠ (e.g., feel that ordinary work is beneath them or lack a realistic concern about their current problems or their future) and may be excessively opinionated, selfassured, or cocky. They may display a glib, superficial charm and can be quite voluble and verbally facile (e.g., using technical terms or jargon that might impress someone who is unfamiliar with the topic). Lack of empathy, inflated self-appraisal, and superficial chann are features that have been con1Inonly included in traditional conceptions of psychopathy that may be particularly distinguishing of the disorder and more predictive of rccidivisrn in prison or forensic settings where cri1ninal, delinquent, or aggressive acts are likely to be nonspecific. These individuals may also be irresponsible and exploitative in their sexual relationships. They may have a history of many sexual pariners and niay never have sustained a monogamous relationship. They may be irresponsible as parents, as evidenced by malnutrition of a child, an illness in the child resulting from a lack of mini1nal hygiene, a child's dependence on neighbors or nonresident relatives for food or shelter, a failure to arr,1ngc for a caretaker for a young child when the individual is away fro1n hon1c, or repeated squandering of money required for household necessities. These individuals 1nay receive dishonorable discharges from the arn1cd services, 1nay fail to be self-supporting, rnay becon1e in1poverishcd or even horneless, or may spend 1nany years in penal institutions. Individuals with Antisocial Personality Disorder are more likely than people in the general population to die prematurely by violent tneans (e.g., suicide, accidents, and homicides).53 Still, ASPD and psychopathy arc thought to be different in at least two respects. First, lack of empathy is not essential to ASPD. 54 Second, more generally, although the diagnostic criteria of ASPD are primarily behavioral, the diagnostic criteria of psychopathy are both behavioral and psychological (or "internal" or "affectivc"). 55 As the DS!vf-!VTR indicates, ASPD is an antisocial pattern of behavior: 53. Id at 702-03. 54. See Morse, supra note 6, at 41 ("All but one of the criteria for ASPD are repetitive antisocial behaviours, and the one psychological criterion, lack of remorse, is not necessary to make the diagnosis."); Morse, supra note 10, at 1072 ("Th[eJ lack or capacity [for empathy, guilt, and remorse] is a necessary feature of psychopathy but not of A[SJPD."). 55. See HARE, supra note 5, at 25 ("'Psychopathy' ... is defined by a cluster of both personality traits and socially deviant behaviors."); Malatesti & McMillan, supra note 5. at 80-81 (noting that the DS1vf s emphasis of behavior over internal causes results from its requirement "that psychiatric disorders [be] classified without any emphasis on underlying traits or aetiological hypotheses."); Morse, supra note 6, at 50-51 ("According to the strict language of [MPC § 4.01(2)] . psychopaths. are [not] excluded [from the insanity defense] because [psychopathy] is [not] manifested only by repeated criminal or otherwise antisocial conduct Psychopathy, as clinically described and as measured by the [PCL-R ], includes many psychological criteria and is not 1322 [VOL 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW The essential feature of Antisocial Personality Disorder is a pervasive pattern of disregard for. and Yiolation of, the rights of others that begins in childhood or early adolescence and continues into adulthood. WO id, ily ral W- For this diagnosis to be given, the individual n1ust be at least age 18 years .. and must have had a history of some symptoms of Conduct Disorder before age 15 years . Conduct Disorder involves a repetitive and persistent pattern of behavior in \vhich the basic rights of others or major age-appropriate societal norn1s or rules are violated. The specific behaviors characteristic of Conduct Disorder fall into one of four categories: aggression to people and animals, destruction of property, deceitfulness or theft, or serious violation of rules. The pattcn1 of antisocial hchavior continues into adulthood. Individuals \vith Antisocial Personality Disorder fr1il to conforn1 to social norn1s \.Vith respect to lawful behavior . . They may repeatedly perfom1 acts that arc grounds for arrest (\vhether they arc arrested or not), such as destroying property. harassing others, stealing, or pursuing illegal occupations. Persons v,.'ith this disorder disregard the \vishes, rights. or feelings of others. 'rhcy arc frequently deceitful and inanipulativc in order to gain personal profit or pleasure (e.g .. to obtain They 1nay repeatedly lie, use an alias. con others. or nioney, sex, or power), malinger. A pattern of impulsivity may be manifested by a failure to plan ahead. J)ecisions arc n1adc on the spur of the n101ncnL \Vithout forethought, and \Vithout consideration for the consequences to self or others: this n1ay lead to sudden changes or jobs. residences. or relationships. Individuals \Vith Antisocial Pcrsonalitv l)isorder tend to he irritable and aggressive and n1av repeatedly get into p11ysical fights or co1n1nit acts of ｰｨｹｳｩ｣ＬｊＮｾＱ｡ｵｬ＠ (including spouse beating or child beating) . . . Aggressive acts that are required to defend oncscl for son1conc else arc not considered to he evidence for this itc1n. These individuals also display a reckless disregard !Or the safety of thcn1se\ves or others . This niay be evidenced in their driving behavior (recurrent speeding. driving \vhilc intoxicated, 111ultiplc accidents). l"hcy n1ay engage in sexual behavior or substance use that has a high risk for hannful consequences. They may neglect or fail to care for a child in a way that puts the child in dangcr. 56 Contrast this behavioral focus with several criteria from the PCL-R: • • grandiose self-worth need for stimulation or proneness to boredom are ·, IS . of not ·of ura crlts on -51 IOI] by Jed not manifested solely by reretitivc criminal or antisocial behaviour." (fi.,otnotes omitted)); Ogloff & Wood, supra note 6. at 172 ("While the DSM-IV-TR indicates that [ASPD] is also kno\vn as Psychopc:ithy or l)is\'iocial Personality Disorder. the fact i\'i that the criteria for each of these disorders arc sufficiently different such that they arc all quite distinct constructs. With respect to ASPD in pm1icular. it is largely a disorder characterized by Jn antisocial behaviour and crin1inality rather than fundan1cntal personality deficits. point of fact, the prevalence of ASPD is much higher in the population than the prevalence ofpsychopatb:y."" (citation 01nitted)): see also RONSON. SUJJra note 21. at 23940 (offering a brief account of Hare· s failed attempt to persuade the authors of the DSM to include psychopathy). 56. DSM-IV-TR, supra note 52. at 701-02. 1323 • • • • • • • lack of remorse or guilt shallow affect callousness and lack of empathy lack of realistic, long-term goals impulsivity irresponsibility 57 failure to accept responsibility for own actions In this way, ASPD might be regarded as "psychopathy /ight"-psychopathic behavior without necessarily a psychopathic personality behind it. The difference between ASPD and psychopathy is not merely theoretical. Many people who suffer from ASPD are not psychopaths. Indeed, although up to 90% of the current prison population h_ave ASPD, 58 only up to 25% of this same population are psychopathic.' 9 What this means is that although up to 90% of prisoners repeatedly engage in antisocial behavior, up to 75% of them do not exhibit the list of psychological problems above to a significant enough degree. 60 The causes of their antisocial behavior, then, are not psychopathy but other psychological factors such as peer pressure, temptation, greed, or poor anger management; situational factors such as "hanging with the wrong crowd"; and poverty in conjunction with the opportunity for a "quick buck." Still, for the approximately 20% of prisoners who suffer from both conditions, their psychopathic nature is most likely what causes or motivates their ASPD. Ill. THREE CONSEQUENTIAUST REASONS FOR CRIMINALLY PUNISHING PSYCHOPATHS Suppose that a person has committed a violent crime and has been diagnosed by independent psychiatrists as psychopathic. Should that person be criminally punished? At first, it seems that the answer is 57. text. See t[ARE, supra note 5, at 34; see also supra notes 24--26 and accornpanying 58. See Jennifer L. Skeem et al., P.1ychopathy. Treatment Involvement. and Subsequent Violence A1nong Civil P.sJ'chiatric Patients, 26 LAW & Hurvt. BEHAV. 577, 578 (2002). For other estimates of the rate of ASPD among prison inmates, see Ells, supra note 42, at I 82 n. I 54 (75%-90%); Grant T. Harris et al., supra note 6, at 2 I 8 (50%-75%); Litton, supra note 6, at 390 (50'Y<,-80%); Morse, supra note 6, at 41 (40%60%); Ralph C. Serin, The Clinical Application o/ the Psychopathy Checklist-Revised (PCL-R) in a Prison Population, 48 J. CUNICAL PSYCHOL. 637, 637 (1992) (50%-80%). 59. See HARE, supra note 5, at 87. For different estimates, see RONSON, supra note 21, at 60 (citing Essi Viding's estimate that 25% of inmates are psychopathic); Harenski et al., supra note 5, at 145 (!5%-25%); Lee, supra note 3, at l27 (15%-25%); Morse, supra note 6, at 41 (25%). 60. See HARE, supra note 5, at 83-85 (listing some causes other than psychopathy for criminal activity). 1324 [VoL.48: l299,20ll] Dangerous Psychopaths SAN DIEGO LAW REVIEW !IC 11. rh '% at Jr, lS al as al Ill 1e :If ｾｮ＠ at IS 1d 7. obviously yes. There are three reasons-all consequentialist-that make this conclusion seem obvious. The first consequentialist reason for finding psychopaths criminally responsible for their behavior is that it will help to gratify victims' and society's vengeful impulses. The fact that a diagnosed psychopath has inflicted serious harm on the victim and is indifferent to the victim's suffering will lead the victim, his family, and most others who hear about the incident to become angry and vengeful toward the perpetrntor. If, then, a court were to rule that the perpetrator was psychopathic and therefore not guilty (by reason of insanity), this decision would meet with great resistance. The court's refusal to quench society's thirst for righteous vengeance would provoke mass outrage. Society would insist that the defendant knew what he was doing, that he was either amused by or indifferent to the victim's suffering, and therefore that the defendant should have been (severely) punished. 61 The second consequentialist reason for finding psychopaths criminally responsible for their behavior is that it will help to promote at least general deterrence and possibly specific deterrence. By convicting psychopaths along with nonpsychopaths, the courts will be sending the message that psychopathy is not an excuse; that even if you are, or consider yourself, psychopathic, you will still be convicted and punished if you commit this kind of crime and get caught. This message will likely discourage many people, whether or not psychopathic. from committing this kind of crime in the first place. It might also help to deter people who have committed this kind of crime and been punished for it from committing the same kind of crime again. The third conscquentialist reason for finding psychopaths criminally responsible for their behavior is that it will tend to make society feel more secure. If psychopaths are deemed criminally responsible, then they will be convicted rather than acquitted. Conviction, at least for violent crimes and serious white collar crimes, is usually followed by incarceration. Is. 18 6l. See Furman v. Georgia. 408 U.S. 238, 308 (1972) (Stewart. J .. concurring) r-1-hc instinct for retribution is part of the nature of n1an, and channeling that instinct in ,le ki :c. the adn1inistration of cri1ninal justice serves an in1po1iant purpose in pron1oting the stability of a society governed by law. When people begin to believe that organized society is un\villing or unable to in1pose upon cri1ninal offenders the punish111ent they 'deserve.' then there arc scnvn the seeds of anarchy-----of self-help, vigilante justice. and lynch law."): MICHAEL MOORE. PLACING BLAME: A GENERAL THEORY OF THE CRIMINAi. LA w 98-99 ( 1997) (suggesting that our outrage at stories about clear underpunishment is "intuitive" and "\vhat we believe on instinct"). 1325 And one of the central purposes of incarceration is to protect society from convicted criminals, from people who have been proved to be dangerous to one degree or another. Naturally, the longer their prison sentence, the longer society will be protected from them. Now, one might very well argue that society is also-equallyprotected from defendants who are found not guilty by reason of insanity. Rather than being locked up in prisons, they arc instead locked up in psychiatric hospitals. So the third conscqucntialist reason docs not necessarily support finding psychopaths to be criminally responsible for their behavior. Instead, it is equally consistent with finding psychopaths to be nonresponsible and then civilly committing them. Indeed, defendants found not guilty by reason of insanity often end up being committed for a longer time in psychiatric hospitals than they would have been incarcerated had they been found criminally responsiblc 62 Still, the general public, rightly or wrongly, wo1Ties that civil commitment suffers from the following flaws in comparison with incarceration: it is easier for patients to escape from psychiatric hospitals than it is for inmates to escape from prisons; many patients in psychiatric hospitals will be released back into society earlier than they would have been had they been incarcerated; patients will fi!OI the hospital officials into thinking that they arc no longer dangerous when they really arc; and patients will actually be less dangerous upon release but sooner or later resume their old, 63 antisocial ways. I will return to the issue of civil commitment in Part X. IV. MORAL RESPONSIBILITY AND THE EXAMPLE OF JOllN WAYNE GACY The three consequentialist considerations just provided for criminally punishing psychopaths who break the law may be very strong, but they 62. See John Matthc\v Fabian. Rethinking "Rational" in the Dusky Starlllarll: Assessinl; a ＡＭｦｩｰ［ｨｐｲｾｪｬ･＠ f)clusional Killer's Functionol Ahilities in the Courtroorn and in the Context of a Capital Murder frial, 25 QUINNH'IAC L. REV. 363, 367 (2006) ("While there 111ay be a substantial nt11nber of incoinpctcnt def'endants charged with serious violent offenses, there is en1pirical support indicating that such inco1npetenl defendants will spend longer periods of ti1nc in the psychiatric hospital for con1pctcncy restoration than their con1petent ｣ｯｵｮｴ･ｲｰ｡ｳＮＢＩｾ＠ Litton, .\·upra note 6, at 391 (""[l]ndividuals with psychopathy, themselves, may not, from their own perspective, have good reason to object to being treated as criininally responsible. . . . [B]eing excused would not mean going free; it could 1ncan indefinite civil confinc111ent, possibly worse than being sent to prison for a defined period."). 63. According to one study, although 70(Yo of patients diagnosed with schizophrenia and 70°;;) to 80°/o diagnosed \Vith mood disorders in1prove with the use of 1nedication. only 36°/o of intnatcs continue taking n1edication after release. See Jennifer L. Morris, Comn1cnt, Critninal De.f'etulants Deernell fnca1>ahle To Proceecl to Trial: An Evaluation of North Carolina "s Statutorv Scheme, 26 CAMPBELL L. REV. 4 l. 49-50 (2004 ). 1326 Dangerous Psychopaths [VOL. 48: 1299, 2011] ｾｴｹ＠ be on ty. 111 10! or hs :d, ng :Id ｾｮｴ＠ IS or i II ey 1at ill Id, ly ey ·d ntl l6) ith ｾｮｴ＠ .cy 91 ve .ed "SC SAN DIEGO LAW REVIEW are not necessarily dispositive. Indeed, there are some cogent consequentialist reasons for punishing the insane, children, and even innocent people. But these reasons are generally thought to be outweighed by moral considerations. Perhaps the most significant of these moral considerations is injustice. It is a foundational axiom of criminal law that the state should not prosecute and punish people whom it knows to be innocent. To knowingly punish an innocent person is the very definition of injustice. Innocent people, by definition, did not commit a crime and therefore do not deserve criminal punishment. A similar, but not identical, argument may be made against punishing children or the insane. Even if they have caused serious harm, most believe that they should still not be criminally punished. Again, the reason is that ( 1) they are not considered morally responsible for their behavior and (2) criminal punishment requires moral responsibility. Consequentialist considerations aside, should psychopaths be held responsible and therefore criminally punishable for their criminal wrongdoing? Do they deserve this treatment? Consider, for example, John Wayne Gacy, who tortured and killed thirty-three teenage boys and young men and never felt or expressed any remorse for these horrific acts. 64 Clearly, once society learned of Gacy' s brutal murders, it needed to take immediate steps to protect itself from further harm by locking him up somewhere-either in a prison or a psychiatric hospital. But this need to remove Gacy from society does not answer the question whether or not Gacy deserved to be criminally punished for his brutal murders. At first, the answer seems to be an obvious yes. He tortured and killed all of these boys for his own pleasure. Still, the question remains: was he morallv re.11Hmsible for these acts? If not, it is generally thought that he was an eligible candidate not for criminal punishment but only for involuntary commitment to a psychiatric hospital. 65 Our answer to this question depends on two things: (I) what we mean by morally responsible and (2) whether or not criminal responsibility requires moral responsibility. Regarding (2), the distinction between criminal responsibility and moral responsibility is rarely recognized. Most assume that either ( l) moral responsibility is necessary for criminal punishment without ever considering the notion of criminal responsibility or :11a ln, ·1s, on 64. Sec generally CLJFFORD L. LINEDECKER, THE MAN WHO KILLED BOYS (I 980); Moss, supra note 12. 65. Sec Lippkc, supra note 6, at 39 I n.16 ("l take it to be fairly well established that psychopaths are not appropriate subjects of retributive legal punishment."). 1327 (2) moral responsibility and criminal responsibility are one and the same thing. I will argue in Part IX, however, that neither is the case; that there is an important distinction between moral responsibility and criminal responsibility; and that, as it turns out, criminal responsibility-and therefore criminal punishment--does not require moral responsibility. If this (radical!) position is correct, then it is possible to hold both that Gacy was not morally responsible for his criminal acts and that he was still criminally responsible, and therefore criminally punishable, for them. Regarding (I), what is this moral responsibility that most adults at most times are presumed to have 966 And why might one think that Gacy lacked this attribute? 67 Perhaps the least controversial way to characterize moral responsibility is this: the set of conditions an agent bears that make it genuinely fair to blame or praise and possibly punish or reward that agent for a given act. If an act has no moral implications-brushing one's teeth or reading one's mail-then it is not quite right to say that one is morally responsible for these acts. This elocution would be correct only if these acts could be construed as injuring or supporting another person's rights or interests. Because I am not concerned in this Article with praiseworthy acts, only (ultimately) with psychopathy and its implications for the insanity defense, 1 will consider only the conditions necessary and sufficient for judging a given act-call it A-to be blameworthy. 68 There are four of them: 66. Some theories of moral responsibility suggest that moral responsibility is simply impossible and therefore that not only Gacy but al/ of us are not morally responsible for any of our behavior. According to one-perhaps the most popular-such skeptical theory, moral responsibility is metaphysically impossible because there are only two logically possible alternatives, determinism and indeterminism; and both alternatives are equally incompatible with what is required for moral responsibility: ultimate selfdeterminism. See general/v RICHARD DOUBLE, THE NON-REALITY OF FREE WILL (1991); DERK PEREBOOM, LIVING WITHOUT FREE WILL (2001) (arguing for hard incompatibilism); BRUCE N. WALLER, FREEDOM WITHOUT RESPONSIBILITY (1990); Galen Strawson, The Impossibility of Moral Responsibility, 75 PHIL. STUD. 5 (1994 ). Whatever one concludes about this skeptical argument, it cannot decide whether or not we should find Cacy morally responsible because we arc asking this question against the background of a sernipragmatic, semimetaphysical assumption that most adults are morally responsible for most of their behavior, an assumption that itself rests on a second deeper assumption: that moral responsibility is indeed metaphysically possible. 67. See McMillan & Malatesti, supra note 11, at 190 ("[E]ven if it is the case that [skeptics about the metaphysical possibility of moral responsibility] are right, there still remains an interesting question about whether the control that psychopad1s have over their actions is different from the rest of us. Even if none of us is morally responsible we should still be interested in that question."). 68. Notice, A need not be a positive action; it ean also be an omission. As I have argued in a previous article, the distinction between a positive action and an omission is this: 1328 ne (VOL. 48: 1299, 2011) Dangerous Psychopaths SAN DIEGO LAW REVIEW ｾｲ･＠ 1al nd If Jat 'as at cy 1ze Jat ird ng iat be ng ts, ity 'or of I MRl: knowledge, or a threshold capacity to know, that A IS morally wrong; 69 MR2: a threshold capacity to refrain from A-ing; MR3: control over A-ing; 70 and MR4: an absence of circumstances that excuse this performance. It is a person's satisfaction of these four conditions that makes that person blameworthy and, if the wrongfulness or harm caused by the act is serious enough, punishable. 71 Regarding the first condition (MR 1), the threshold capacity to know the moral status of A naturally requires the capacity to know ( 1) that one is A-ing, (2) A's "nature," (3) the difference between right and wrong, and (4) that A falls on the "wrong" side of this divide. For this reason, a person who is delusional because of a mental disorder and consequently has false beliefs about his action (either that it has a different nature or that it is morally right when it is, in fact, criminal) does not satisfy MRl and is therefore not blameworthy for his otherwise wrongful action. 72 The second condition (MR2) amounts to "reasons-sensitivity," which itself contains three subconditions: (I) a threshold capacity to entertain reasons against performing A, (2) a capacity to then act on these reasons, IS illy 1ch arc oth ity: tEE ard !en ver uld the are md hat :till vcr we iVC l JS An omission is either (a) a deliberate failure to perform a certain positive action or (b) a failure. whether deliberate or not, to fulfill a moral or legal duty or reasonable expectation. . A positive action is any agent-caused event that does not essentially involve a failure or not-doing in its description. Ken Levy, Killing, Letting Die, and the Casej'or MildlJ' Punishing Bad Satnaritanisrn, 44 GA. L. REV. 607, 632-33 (2010) (footnotes omitted). 69. See Antony ｄｵｬｾ＠ Psvchopathy and Answerahility, in RESPONSIGILITY AND PSYCHOPATHY: INTERFACING LAW, PSYClllATRY, AND PHILOSOPHY, supra note 5, at 199, 201--08 (arguing that responsibility requires the ability to grasp and be guided by reason-that is, by reasons that are minimally coherent and connected with reality); Litton, supra note 6, at 354-55, 359-60 (arguing that moral responsibility requires a capacity to grasp and be guided by moral reasons qua moral); McMillan & Malatesti, supra note I 1. at 188 (calling MR 1 the "epistemic precondition" of moral responsibility). 70. See McMillan & Malatesti, supra note 11, at 188 (calling MR3 the "'control' precondition" of moral responsibility). 71. Cf Duff, supra note 69, at 199-200 ("[A] responsible agent is one who can be called to answer for her actions; to say that A is responsible for an action or an outcome is to say that A can properly be called to answer . . for that action or outcome." (footnote omitted)). 72. See supra note 69 and accompanying text. 1329 and (3) an opportunity to act on these reasons. 73 To have this opportunity itself requires that there be no internal or external force or compulsion, nothing independent of the agent's own reasons making or necessitating that the agent A instead of refrain from A-ing. The third condition (MR3) will be discussed in greater detail in Parts V.C-D and IX.B. But, for starters, control is agency or self-determination. I have control over a given state of affairs S when I determine whether or not S is the case. So I have control over my arm when I determine whether or not (and how) it moves. Likewise, I have selfcontrol when I control myself, when I determine whether or not (and how) l act. Conversely, I do not have control over the flowers across the room because my attempts to make them move to the right or to the left simply do not work. Likewise, I do not have control over a twitch or spasm because, although it is my body moving, this movement does not originate with me, with my agency, but rather with some physical cause within my body. 74 An intern1ediate case might be my control over the trajectory of a rock that I drop off the side of a cliff. [ certainly control whether or not it falls and approximately where given the motion with which [ release it, my knowledge of the surrounding conditions, and the law of gravity. But once I let go, my attempts to make it move this way or that do not have any effect. It might be thought that MR3 entails MR2, 75 in which case MR2 is redundant. But this assumption is false. So-called Frankfuti-style situations show that these two conditions are compatible: ( l) the agent willingly As without being compelled to A; and (2) the agent could not have done otherwise. In Frankfurt-style situations, the agent cannot do othcrwisecannot refrain from A-ing. But the agent is still not forced or compelled to A because, given the very peculiar hypothetical circumstances (involving a "counterfactual intervener"), the agent's inability to refrain from A-ing is not causally relevant to her A-ing. She As not because 73. See generally JOHN MARTIN FISCHER & MARK RAVIZZA, RESPONSIBILITY AND CONTROL: A THEORY OF MORAL RESPONSIBILITY 28-9 l ( l 998); John Martin Fischer. Recent Work on Moral Responsihi/ity. l lO ETHICS 93, l27-28 (l999). 74. See McMillan & Malatesti. supra note 11, at 189 ("When ... agent[sj ha[ve] no control over what they are doing, their actions and behaviour do not originate in the causality of the agent."); Slobogin. supra note 47. at 36 ("Truly 'involuntary' acts arc rare. lllustrated by epileptic seizures and perhaps some dissociative states, they require a disjunction between mind and body that seldom occurs even in people with severe mental illness. much less in sexual predators and like offenders." (footnote omitted)). 75. See, e.g., Litton, supra note 6, at 352 ("Responsibility requires control. An agent whom we may appropriately hold responsible has a certain kind of control over what she does. But what kind of control is required" On one traditional view, control requires the ability to act otherwise. An agent exercises the requisite control over an action and thus is responsible for it only if she truly had alternative possibilities for action at the time." (footnote omitted)). 1330 ity m, ng rts m. or ne 1 I ct. •Ill ·ly :m 1ot se he ·o] th be ay IS ns 4s 1e :d es Ill se [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW she has to but because she wants to. So she still has control over her action even though she could not have refrained from performing it. In this way, control does not entail the power to do otherwise. 76 Of course, one might respond that, given that control does not entail the power to do otherwise, only control (MR3 ), not the power to do otherwise (MR2), is necessary for moral responsibility. This point may have merit, but-to be on the safe (or traditional) side-I will simply continue to assume that MR2 is also necessary for moral responsibility. Should this assumption turn out to be false, the various positions that l take in this Article would remain mostly, if not entirely, unaffected. The fourth condition (MR4), an absence of circumstances that excuse an agent's A-ing, means an absence of circumstances, internal or external to the agent, that make it reasonable for us (society in general) to expect the agent lo have refrained from A-ing. In the criminal law, these circumstances, the circumstances that make it unreasonable to expect the agent to have refrained from A-ing, include insanity, duress, infancy, hypnotism, involuntary intoxication, automatism, necessity, mistake (of fact or of law), and entraprnent. 77 There are other excuses as well, other circumstances that are recognized not as excuses in the criminal law but as excuses in everyday life. Whether or not a given condition excuses depends on the specific circumstances and the moral norms of the relevant community. For example, the fact that one's car breaks down on the highway might excuse her for being late to a business meeting later that day but does not excuse her for being late to a business meeting the following day. We can generally understand or accept the former but not the latter. Likewise, contracting the flu may excuse one from occupational duties but not from continuing to take care of a dependent child. Once again, we can generally understand or accept the former but not the latter. ｾｲＬ＠ e] he .re :a re In er ol rn or 76. See Ken Levy, Why /1 ls Sometimes Fair To Blame Agents fiJr Unavoidable Actions and Omissions, 42 AM. PHIL. Q. 93, 93 (2005) (making the same point in terms of responsibility rather than control). 77. Duff suggests that excuses split into two kinds-those that the agent can ans\vcr for and those that the agent cannot answer for (excn1ptions). An exa1nple of the fon11er is duress; the agent can answer for her wrongful action by pointing to situational factors, specific circumstances that render her blameless for the action. An example of the latter-an excmption--is insanity; the agent is exempt from answering for the wrongful action in the first place because answering fi;r presupposes a minimal level of rationality, something that the insane person lacks (by definition). See Duff, supra note 69, at 201. 1331 V. THREE ARGUMENTS THAT PSYCHOPATHS ARE NOT MORALLY RESPONSIBLE FOR THEIR CRIMINAL BEHA YIOR Given the four conditions of moral responsibility in Part IV aboveagain, MRI (knowledge, or a threshold capacity to know, that A is morally wrong), MR2 (a threshold capacity to refrain from A-ing), MR3 (control over A-ing), and MR4 (an absence of circumstances that excuse this perfonnance )-at least three arguments may be made that psychopaths like John Wayne Gacy are not morally responsible and therefore blameworthy for the crimes that they commit. I believe that these 78 arguments arc compelling. Still, I will argue in Part IX that even if these arguments arc correct-even if Gacy was not morally responsible for his crimes-he was still criminally responsible, and therefore criminally punishable, for his crimes. Controversial as this point may sound, criminal responsibility does not require moral responsibility. Again, I will defend this very controversial point in Part IX. A. First Argument that Psychopaths Are Not Nforally Responsihlefor Their Criminal Behavior: lnahility To Grasp Nforal Reasons The first argument splits into two parts. First, Gacy did not know that it was wrong to torture and murder. Second, a capacity for this kind of knowledge is necessary for moral responsibility (MR I). 79 78. In contrast, sotnc scholars argue that psychopaths arc indeed ｲｮｯ｡ｬｾ＠ responsible for their behavior. See I-IARF, supra note 5, at 5 c·r>.\)'Chopathic killers .. an: not 1nad . Their acts result not frotn a dcrangcd inind but frorn a cold, calculating rationality con1bincd with a chilling inability to treat others as thinking, feeling hurnan beings.''); ill. at 22 ( .. Unlike psychotic in<lividuals, psychopaths arc rational and a\varc of what they arc doing and why. Their behavior is the result of choice, freely exercised."); SAMENOIV, supra note 45, at 187 ("Clinical descriptions oC the psychopath are incornplcte and in sonic in1portant \vays erroneous. For exa1nplc, to call hin1 in1pulsive is to assert that he lacks self-control, whereas he actually has a rational, calculating n1ind that enables hi1n to delay gratification if he <leen1s it in his best interest. The crin1inal has tnoral values, but he shuts off considerations of conscience long enough to do what he wants." (footnote omitted)); it/. at 251-52 ("Decisions are not n1adc for the crin1inal. Eventually, he chooses his life's work [T)hc specific decision is up to the individual. Within the li1nits of responsibility and advances as far as his talents and effort allow. . lie countless opportunities and variations in life style. . . [T)he change process calls for cri1ninals to acquire 1noral values . . . The objective is to teach then1 to live without injuring others."); LrNWECKER, supra note 64, at 244 ("[l]t seems possible that some people are so vicious and devoid of feeling for others that they become thieves, murderers, and rapists merely because they choose to."). Hare, however, seeins a bit conflicted when he states, in in1plicit opposition to his quotation above, that psychopathy is a "life-threatening disease." HARE, supra note 5. at 163 (emphasis added). This passing reference i1nplics that psychopaths are vict/Jns and their behavior an inevitable, and therefore unchosen, sympto1n of the condition that victi1nizcs the1n. 79. See Levy, supra note 5, at 219 ("I [previously] argued that for psychopaths all offences were merely conventional, and that they therefore were not due the full blame 1332 [VOL. 48: 1299, 2011) Dangerous Psychopaths SAN DJEGO LAW REVIEW IS u se hs se if 1le lly 1al nd 1at of lly ng ian Regarding the first part, one might argue that Gacy did know that it was wrong to torture and murder because he knew that the criminal law prohibits torturing and killing. He also knew that society has criminalized these acts because it wants to minimize their occurrence. He might even have understood that society wants to protect citizens from these acts ultimately because they cause physical ham1, emotional harm, and death. What he did not understand, however, is why society would care about these things. 80 To psychopaths like Gacy, Jaws against the torture and murder of human beings are like Jaws against the torture and murder of weeds. A law punishing the torture of plants is perfectly clear; it says that if one is caught torturing weeds (perhaps by randomly twisting and cutting its leaves and branches), one will face arrest, prosecution, and-if convicted-·prison time. But few of us would understand why this Jaw was passed. Most people would say that there is nothing v.rrong with torturing, no less killing, weeds; that they probably cannot feel pain, and that even if they can, their pain is simply too unimportant to worry about, no Jess to merit criminal punishment. And because this law is nonsensical, a person should not be criminally punished for breaking it. Gacy regarded Jaws punishing the torture and murder of human beings the same way we would regard a Jaw punishing the torture and murder of weeds. He understood that these activities were unlawful and that, if caught, he would face serious punishment. But he did not understand the ultimate moral basis of these Jaws. To Gacy, the boys he tortured 81 and killed were no more important than weeds are to most of us. He of "); :ire tve nd JaS he irk ity for that attaches to n1oral transgressions (or. indeed. any significant an1ount of bla1ne ); since psychopaths do not grasp the fact that it is moral norms they transgress, they cannot he properly morallr responsible."): Litton, supra note 6, at 351, 360-65 (arguing that moral responsibility requires the "capacity for practical reasoning or rational self-governance" and that the latter condition "entails the capacity to comprehend and act on moral considerations"); Morse, supra note 6, at 52-53 (arguing that the capacity for emotional knowledge is necessary for rationality, which is itself necessary for moral responsibility); Tony Ward, P,1,)·clu>11ath_i· an(} Crhninal ｒ･ｳｰｯｮｩｨｬｾｲ＠ in 1-listorical Per,\;1ective, in }Ut RESPONSIBILITY AND PSYCHOPATHY: INTERFACING LAW, PSYCHIATRY, AND PHILOSOPHY. :ne es, bit hy supra note 5. at 7, 18 (agreeing with Hervey Cleckley's and Jerome Hall's notion that "the emotions ma[k)e an important contribution to moral responsibility""). But see Lippke, supra note 6, at 403 (arguing that rationality does not "compel[) the acceptance of morality" and noting "the history of failed attempts to establish a necessary link between rationality and the acceptance of moral standards"). 80. See supra note 12 and accompanying text 81. See LtNEDECKER. supra note 64, at 168 (noting Gacy's justification for killing over thirty people was that "[t]hey were blackmailing me . They were haaaad people" (internal quotation marks omitted)); Moss, supra note 12. at 213-14, 225- liis 1Je, all me 1333 understood that they could experience pain, that they had their whole lives ahead of them, that they had families that loved them, and that their families would suffer serious emotional pain over losing them. But he did not understand why he should care-and, indeed, why the rest of us do care-about any of this. After all, it was not his death or his pain. And except for the families involved, it was not their deaths or pain. And even for the families involved, losing a family member does not cause that much pain. Families all over the world lose family members. That is just the way life goes. Like weeds. Gacy, then, simply did not get it. A boy's being tortured was no more cause for concern than a weed's being ｴｯｲｵ･､ｾ＠ and the boy's death was no more cause for concern than a weed's death. The reason that Gacy did not get it is because he could not get it. Gacy lacked the capacity to care about any particular victim as a boy, as a human being, as something much more-and other-than a mere object for his pleasure. And because Gacy lacked the capacity to care deeply about others, he just could not understand what it means, and how it feels, ./(Jr others to lose their son or grandson or brother. Even if he understood that they might exhibit all of the behavior that goes along with grieving, he simply could not relate to the inner experience that goes along with this bchavior.x 2 The same cannot be said of most mafia hit men, drug lords, school bullies, death squad commanders, corporate executives, or even terrorists.xi Even though people in all of these categories deliberately harm others, they are not generally considered psychopathic because they still have the capacity for empathy and therefore the capacity to know or understand why their harmful behavior is morally wrong. The second part of the first argument (that psychopaths are not morally responsible for their bad acts) suggests that the capacity to grasp moral reasons is necessary for moral responsibility. l will now defend this second assumption. Suppose four-year-old Dolly hits three-year-old Jeffy. If Dolly's parents witness this aggressive act, they will likely scold Dolly. They will say something like, "No hitting' How would you like it if Jeffy hit 29 (sununarizing conversations in which Gacy adn1itted that he killed over thirty people and asserted that his victims deserved their fate); see also ｛ｾｦａｒｅＬ＠ supra note 5, at 88-93 (using several cxan1plcs to illustrate psychopaths' co111p!ctc lack of compassion for their victln1s). 82. See supra note 12 and acco1npanying text. 83. See Lippke, supra note 6, at 396-97 ("We might hold out more hope for ten-orists [than for psychopaths. sexual predators, pedophiles, or hardened professional criminals]. They may have highly developed moral sensitivities of narrow or disto11cd kinds that the right con1bination of 111aturation, education, and reflection \Vil! be able to draw upon to generate sincere repentance and efforts at tnoral rebirth."). 1334 }le elf he us m. .m. 1ot !fS. get ::l's 1an it. as ere are md I if mg hat ool s.83 ｾｲｳＬ＠ we or illy )ral his y's 1ey hit )pie -93 heir for )031 rted e to [VOL 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW you??!!" The parents are trying to teach Dolly not merely an arbitrary social convention, such as a rule of etiquette (for example, "no belching" or "no licking your plate"), but a moral principle. And precisely because this principle is not arbitrary or conventional, they do not merely instruct Dolly to blindly obey it but instead try to give her the reason why she should obey it. This reason-"How would you like it if Jeffy hit you??!!"-really contains both an argument and an appeal. The argument is that the no-hitting rule is designed to protect all of us, including Dolly, from being hit. The appeal is to Dolly's compassion or concern for others. By giving Dolly the reason for the no-hitting rule, and not just the no-hitting rule itself, Dolly's parents are trying to inculcate in her a concern for others that will, in the course of development, motivate her to comply with the no-hitting rule above and beyond the fear of punishment for noncompliance. Dolly's parents are, in essence, asking her to project the kind of suffering that she feels when she is hit on to Jeffy in the hopes that she will vicariously feel Jeffy's pain and thereby develop an inhibition toward hitting others that parallels her own desire to avoid being hit. On this view, our development of empathy ultimately begins with self-concern. And, once again, the vehicle through which we are initially able to develop concern for persons other than ourselves is projection. Suppose, however, that because of a neurological problem, Dolly cannot project her own suffering on to Jeffy. All Dolly will learn from her parents is the no-hitting rule, not the reasons for the no-hitting rule. She will not be able to understand their point that she should not hit Jeffy for the same reason that she does not like to be hit. Although she will agree that she does not like to be hit, she will not see why this fact-the suffering that she feels when she is hit-should prevent her from hitting Jeffe. After all, she is not him; so why should she care about his pain? Her inability to project her own suffering on to Jeffy and thereby empathize with Jeffy will prevent her from understanding the moral basis of the no-hitting rule. The most that she will learn is that if she hits others and gets caught, she will be punished. So fear of punishment is the only reason that she has-and that she believes she has-to comply with the rule. Because she cannot feel empathy, she cannot understand this reason for compliance. Because she cannot understand this reason for compliance, it cannot motivate her to comply. And because it cannot motivate her to comply, she cannot be held morally responsible for failing to comply on this basis. 1335 More generally, nonpsychopaths' ability to care about others gives them reasons for refraining from intentionally harming others. Although these reasons do not always prevail, they usually do. And even when they do not, they are still present, just too weak to overcome other, stronger (weightier, not necessarily morally better) reasons. If, however, psychopaths lack the capacity to care, then they also lack the capacity to form reasons that will counterbalance their reasons for inflicting ｨ｡ｲｭｾ＠ whether they be anger, sadism, or callous indifference. If one cannot form these counterbalancing reasons, then one cannot act on these reasons. And if one cannot act on these reasons, then we cannot blame the agent for failing to act on these reasons. [t follows, then, that we cannot hold Gacy morally responsible for failing to treat others with concern if he was incapable of feeling and therefore understanding such concern. 84 B. Second Argument that Psychopaths Are Not Morally Responsible for Their Criminal Behavior: Inability To Do Otherwise The second argument for the conclusion that Gacy was not morally responsible for his criminal behavior is that he simply could not have done otherwise. On the one hand, because he could not care about his victims, he had no moral reasons against torturing and killing. On the other hand, Gacy was the kind of person who derived sadistic pleasure from torturing and killing. Given both ( l) this reason for torturing and killing and (2) the absence of countervailing reasons, Gacy could not have wanted otherwise. His desire for pleasure had to prevail because it faced no competing desires. And because he could not have wanted otherwise, he could not have done otherwise. In other words, because he could not care for others, he could not form or possess a reason strong enough to outweigh his desire to harm others. 84. See Duff, supra note 69, at 210 ("Someone who is ... an outsider to our moral practices ... is not a morally ... responsible agent. We cannot expect him to be guided by the moral reasons that bear on the situations in \-Vhich he acts, since he cannot understand those reasons as reasons .... We cannot call hi1n to answer for the wrongs he con1111its . . . . [S]ince he cannot grasp those reasons, he cannot explain ho\V he acted against them." (footnote omitted)); Levy, supra note 5, at 213 ("[l]t is reasonable to conclude that psychopaths are blind to central moral considerations. It follows ... that they cannot be held responsible for failing to respond to these moral considerations."); id at 224 ("Psychopaths lack [affective] capacities. for them it is not easy to grasp core moral norms; it is, [ suspect, impossihle. Since they cannot understand the moral significance of guiding their behaviour by these nonns, and they are not responsible for that fact, they are excused [from] moral responsibility for violations of those norms."); Morse, supra note 10, at 1072-73 ("For most citizens, conscience and empathy are the most powerful prophylaxes against wrong conduct and arc much more powerful than fear of the criminal sanction. If these capacities are lacking, it is plausible to argue that the agent lacks moral rationality and is not responsible, even if the agent is in touch with reality otherwise and knows the moral rules in the narrowest sense."). 1336 ves 1gh ien 1er, rer, I tO 1- mn ins. (VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW There is empirical support for this conclusion as well. First, once again, we still have not found an effective treatment for psychopaths, at least not psychopaths who score very highly on the PCL-R. 85 Second, as a result, this same group recidivates at an abnormally high rate. 86 Third, psychologists have concluded from various studies of psychopaths that they suffer from impaired practical reasoning, moral reasoning, or both. 87 ent old he (or illy ave his the ure and not .e it 1ted : he :mg 1oral ided nnot Jn gs cted .e to that s. "); core 1oral ' for s."); : the than that with 85. See supra note 6. 86. See HARE, suprn note 5. at 96 ("The recidivism rate of psychopaths is about double that of other offenders. The violent recidivism rate of psychopaths is about triple that of other offenders ... ); RONSON. supra note 21. at 85 ("Jn regular circumstances, 60 percent of criminal psychopaths released into the outside world go on to re-offend."); Lee, supra note 3, at ＱＲＷｾＸ＠ ("The notorious difficulty in dealing with psychopathic criminals has brought this mental disorder to the forefront of crime: 'Psychopathic offenders are responsible for a disproportionate amount of crime . . (t]hey are more difficult to manage in correctional and institutional settings ... (t]hey re-offend and violate conditions of release faster and more often and are at higher risk to re-offend violently than other offenders.• While psychopathy serves as an overwhelming obstacle for justice. it also doubles as a helpful indicator of likely offenders. In fact, 'the score on the Psychopathy Checklist-Revised was the single best predictor of violent recidivism.' Having established that psychopathy is highly-related to violence, this mental disorder serves as a 'robust predictor of recidivism and violence among criminal, forensic. and psychiatric populations.' .. (alterations in original) (footnotes omitted) (quoting Harris et al., supra note 6, at 198-99)); Lippke, supra note 6, at 396 ("The evidence suggests that [psychopaths]. many of whom appear to comprise some of the most serious and intractable crin1inal offenders, are nearly insusceptible to character change. There is no known effective treatment r,f psychopathy and psychopaths engage in criminal conduct well past the point at which other offenders tend to desist."); Litton, supra note 6, at 382 ("The inability to resist temptation is perhaps one reason the recidivist rate for psychopaths is startling higher than that for non-psychopathic offenders. According to a meta-analysis of existing data, researchers found that 'within a year of release, individuals with psychopathy are three times more likely to recidivate, and four times more likely to recidivate violently."' (quoting JAMES BLAIR ET AL., THE PSYCHOPATH: EMOTION AND THE BRAIN 16 (2005))); Morse, supra note 6. at 4 I ("[P]sychopathy ... is a substantial risk factor for crime."); id. at 54 ("[Psychopathy] is .... an undoubted risk factor for future dangerousness."); Ogloff & Wood. supra note 6, at 157 ("[P]sychopathy is a risk factor given the strong and consistent relationship shown between psychopathy and reoffence risk . . . Psychopathy has been found to be associated with poor treatment outcome, in terms of reoffending." (citations omitted)). See generally James F. Hemphill & Robert D. Hare, Some Misconceptions About the Hare PCL-R and Risk Assessment: A Rep(v to Gendreau, Goggin, and Smilh, 31 CRIM. JUST. &BEHAV. 203 (2004). 87. See supra notes J 2 and 79 and accompanying text. 1337 C. Third Argument that Psychopaths Are Not Morally Responsiblefi>r Their Criminal Behavior: No ｓ･ｬｦｾｃｯｮｴｲ＠ The third argument for the conclusion that Gacy was not morally responsible for his criminal behavior is similar to the second. Once again, Gacy could not do otherwise. But the third argument offers a different reason. While the second argument suggested that Gacy could not have done otherwise because of the relative strengths of his desires, the third argument suggests that Gacy could not have done otherwise not merely because one desire outweighed the other but because it signi/icanl(l' outweighed the other. One desire was so much stronger than its only competitor that he simply could not bring himself to act on the weaker desire; he just had to act on the much stronger one. In this way, Gacy really did not have any self-control. Instead, his strongest desire controlled him. One might argue that psychopaths--and everybody else-must have control over their behavior because otherwise it would not be behavior-or conduct or ｡｣ｴｩｯｮＭｾ＠ the first place. Instead, it would be nothing more than involuntary bodily movements like spasms, twitches, and convulsions, which arc not behavior at all. To be an action, a given event must be caused or chosen by an agent, a self. 88 But to say that a given event is caused or chosen by an agent is just to say that the agent had control over this event. It follows, then, that there cannot be involuntary actions, behavior over which a person docs not have control. The mere fact that a given event constitutes an action is sufficient to show that the person who performed this action had control over it. This argument is actually quite compelling. Still, even if it is correct. it leaves open a "loophole." One might concede this argument and still maintain that it does not decide the issut.:; that even if, by definition, an agent has control over every action that she performs, the agent may still have varying degrees of control over different actions. And moral responsibility for a given action requires a higher level of control than that which is definitionally entailed by the event's being an action. It requires a threshold level of control, a level of control above the minimal degree that every action satisfies and without which it would be not an action but a nonaetion, an involuntary bodily motion like a twitch, · X9 spasm, or convu Is1on. 88. 89. See supra Part IV. See McMillan & Malatesti, supra note l l, at l 88 (distinguishing between voluntary and nonvoluntary actions, which correspond to my distinction between actions above the control threshold and actions below the control threshold); Morse, supra note 10, at 1055 ("'If an agent's body is literally forced to move, say, by operalion of a 1338 or ally nee :s a 1uld res, not ntly mly 1ker acy ·lied 1ust be i be hes, :ven at a ;ent t be trol. 1t to rect, still t, an still oral than . It the d be itch, ween :tions ·note of a [VOL. 48: 1299, 2011) Dangerous Psychopaths SAN DIEGO LAW REVIEW What kinds of actions might not reach this threshold? I concede that it is very difficult to answer this question. 90 And this difficulty can be demonstrated apart from psychopaths; psychopathy just further complicates an already complicated issue. Still, I contend that we can make some progress here once we recognize that control actually splits into three levels. The highest level or threshold must be attained in order to be morally responsible; the middle level or threshold must be attained in order to be criminally responsible; and the level between the middle threshold and no control at all is the minimal level of control that every action qua action satisfies and without which it would be a nonaction like a twitch or convulsion. What is controversial about this tri-level schema is the implication that one can be criminally responsible without being morally responsible; that one can achieve a level of control sufficient 91 for criminal responsibility but not sufficient for moral responsibility. genuine reflex, then the agent, for legal purposes, has not acted at all. because the law's concept of action requires intentional bodily n1ovcn1cnt."). 90. See Morse, supra note 6, at 49 ("A fraught question for the law is how to understand claims that the defendant could not help or control himself in situations in which no one is threatening the defendant. ... Difficulties conceptualizing and assessing such problems arc central reasons why 'control' tests fOr excuse in these one-party cases are less common than tests for lack of rational capacity."); id. at 59 ("There are . difficult obstacles to conceptualizing and n1easuring 'serious difficulties' controlling oneself."); Slobogin, supra note 47, at 35 (arguing that the Supreme Com1's "inabilityto-control standard fin Kansas v. Hendricks, 521 U.S. 346 (1997)) is vacuous to the extent it suggests the state n1ust shov.,r son1c type of 'involuntary' behavior or cri1ninal impulse caused by overwhelming urges"); id. al 38 ("'[G)auging the strength of criminal desires, or the weakness or the will to resist them, is a scientific impossibility at this point Despite repeated atten1pts to develop instrun1cnts that n1easure itnpulsivity, there is no generally accepted. or even partially accepted, fomrnlation of the construct. [I]nstruments for assessing volitional iinpainnent are in a very primitive state:· (footnotes omitted)). 91. Although it is unlikely that Lippkc would agree with my point here or its implications, he does offer a similar "levels" account of responsibility: [T[here may be some individuals who have exceedingly strong, if not irresistible, predilections toward violence in certain kinds of circun1stances. They n1ay be dimly aware of the inoral considerations weighing against their acting on these predilections but largely unable to make their conduct conform to them. It may be that we are unsure how to conceptualize such weakly morally responsible agents for the purposes of punishment theory. They do not seem as blameworthy (and so subject to punitive confinement) as those with n1orc non11al or even robust tnoral personalities. .,{et it is hard to convince ourselves that such individuals are so out of touch vvith reality that the alternative of involuntarily civilly confining and treating the1n is in order. Lippke, supra note 6, at 405-06. 1339 Still, I will argue in Part IX that this is precisely the psychopath's situation. In the remainder or this section, I vvill try to describe what is going on at this middle level. Once again, actions at this middle level involve agency sufllcienl for criminal responsibility but not sufficient for moral rcsponsibi Iity. Suppose that Charlie loves chocolate cake but is on a diet, is al a party where chocolate cake is being served, and is lceling very conllictcd between resisting the chocolate cake and giving in lo his temptation. If Charlie gives in, did he lose control--tlm:shold control'' This question is hard enough lo answer.'" It is just as hard if not harder when we consider addiction. Docs Helen, a heroin addict who has been through a rehabilitation program and successfully resisted heroin for several months, lose threshold control if she takes advantage of the next opportunity that arises'' Ur would it be more correct to say that 1lclen chose to do heroin again and that she had full or signillcanl control over this choice'"'' Finally, these questions arc just as dilTiculL ir not more so, when we add a moral dimension. This additional moral dimension makes the 92. Regarding \vcakncss of \vilL 1nost philosophC"rs hold 1hat ('harlic is still fully responsible J'or his railun: to hold out. T'hc ｾｬｓｕＡｰｴｩｮ＠ undcrly111g this position is that ('llarlic could havt: tried harder indeed. suflicicntly hard lo resist tc1nptation. ,\cc, C).;., F!SC!!FI{ .._x R.'\ \'!/,//\,supra note 73, at 41--46, 69---7.1 (arguing that an agent is rul!y responsible t(H" \Vcak-\\·l!Jcd action because the agent could have acted on a stronger reason for refraining had it hccn presented); JOI!!\ M,\RTIN FISCHER. 14 ·r111Ml.T\l'll\S1("S 01 l'RLI W1u: AN i'sS\\ ON CoNTIWI J(>X ( 199-li l"IC'lcrtain kinds oJ" /J.\'fJOf!tcricul irratio11;dity arc con1patih!e \Vith 1noral responsibility: a tendency ltl\vard \vcakness of the \vill need not point to any dercct in the actual 111cchanis1n leading to action. i'v1ora1 responsibility requirl'.s so111e con111.::ction bet\vccn n:<tson and action, but the lit can be quite loose."): Litton. surira note 6, at 354 ("r\V-le so111cti1111...·s arc \veak\villed yt.'t ren1ain responsible for such n101nents of \Veakness . \Vhen I an1 \veak\vil!cd and cat that 1...'xtra-\argc piece or chocolate cake despite the ＡｾＱ｣ｴ＠ that I do not \V<.1nt 111v first-order desire ror the cake to be n1otivationallv clTectiYe (I have a hi12:ht.'r-ordt.'r ､ｾｳｩｲ｣＠ to stay healthy). I n1ay not be acting ｦｲ･ｬｹｾ＠ on [onel account or . . rrce \vill. 1lo\-vcver, the E1ct that ! acted \Vith a \veak \Vill docs not scen1 to undennine the judgincnt that I an1 and should hold inysclf responsible for acting, on 111y first-order desire for the eakt.', given that I had the capacity to rcrrain."); FrarH;:ois Schroeter, !:'11clorse111cn! (/lllf A11to11n1nous Ｎｻｾ･ｮ｣ｹＬ＠ 69 PHIL. ｴＮｾ＠ Pl-IEN<HVl!·:NoLO(!!CAL Rt·:s. 6JJ. 654 (2004) (''r!Jn the case or 111inor \vcaknt.'ss of \Nill. the al!.cnt's ｩｮｴ｣ｯＭｬＨｈﾷＱｾ＠ capacities arc not suhjected to any constraints that \vouTd li1nit the agent's ｲ｣ｾｰｯｮｳｩ｢ｬｴｹ＠ over his action. lJnlikc irresistible addictions. 111inor \vcaknt.'ss of \Viii docs not absolve an au:cnt fron1 responsibility over his actions. lAnd even if \Vcakness of \Viii 1ncans..._ no autonon1ous controL] the lit bet\vccn autonoiny and responsibility docs not need to be pl'.rfcct. ()ne 1nay \veil be responsible for soinc actions t.'vcn if one docs not haYc autono111ous control over then1." (footnote un1ilted)). Bur sec (iarv Watson, Reasons onll Rcspo11sihi/i1_1·, 111 ETHICS 374, ＳＸＰｾＲ＠ (2001) (critiquing ｾＭｩｳ｣ｨｲ＠ and Rmizza's "reasons-responsiveness" account of \vhy agents arc Cully responsible f'or their \Vt.'ak\villcd actions). 93. Regarding addiction, philosophers \viii split into three general ca1nps. So1ni: will still hold 1-!c\en fully responsible, sonic less responsible, and sonic not responsible at all. 1340 th's [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW son ｾｬｶ･＠ .oral •arty cted 1. If :ti on l we gh a nths, that :rom vhen s the fully s that See. ' fully ·onger THE ids of Jward ing to n, but weakweakl want -order \Vill. ginent or the 11 and ]n the re not 'Cf his agent ns no to be t have ns an<f ;izza 's \VCak- Son1e at all. presence or absence of threshold control all the more important because the possibility of blame and punishment now enters the picture. If a person does not have threshold control over her actions, then she is not morally responsible for them. Suppose, then, that Gacy felt just as tempted to torture and murder as Charlie felt before giving in to the chocolate cake and Helen felt before giving in to the heroin. If we think that Charlie and Helen lack threshold control over their actions, then we seem committed to the same conclusion if Gacy gave in to his temptation, in which case we would be committed to the conclusion that Gacy should have escaped blame and criminal punishment for torturing and murdering. So where does this leave us? Once again, as I stated in Part V.A-B, Gacy could not form or possess a moral reason for refraining from violent behavior. Still, he not only could-but did-possess a prudential or self interested desire to avoid getting caught and punished. But this desire, while supplying him with a reason for refraining from violent behavior, was not nearly strong enough. It was far outweighed by the strength of his desire to engage in violent behavior, which itself was motivated by the pleasure that he anticipated from exercising cruel power over his helpless prey. 94 Gacy's inclination to torture and kill was so much stronger than his only counterbalancing reason, knowledge that he might get caught and be punished, that the latter did not stand a chance. The fonner simply steamrolled the latter-much as an addict's desire for the next "fix" can be said to overpower the desire to "go clean." 95 94. See HARE, supra note 5, at 100 (describing a psychopath. "Earl." as someone who is obsessed "with absolute power" and who "values people only insofar as they bend to his will or can be coerced or manipulated into doing what he wants" (internal quotation marks omitted)); LINEDECKER, supra note 64, at 218 ("After the hon-or [of Gacy's many murders] was discovered , .. Dr. Marvin Ziporyn, an authority on mass murder ... said .... '[Gacy] had the love of power that we all have and he almost has gone berserk, gone wild, gone out of control ... because he has killed and tasted flesh.' Ziporyn continued that, having killed once, a murderer might be surprised at how easy the act is, and be pleased with his ability and power to make life-and-death decisions." (footnote omitted)); Moss, supra note 12, at 158 ("The power [of killing an innocent woman with my bare hands] is indescribable. . . . [Y]ou can feel the draining of their energy, the total ecstasy. Get your mind into it. Savor it." (quoting passage from personal letter from serial killer Richard Ramirez) (internal quotation marks omitted)). 95. See L!NEDECKER, supra note 64, at 213-15 (describing the uncontrollableimpulse defense that Gacy's attorneys used during his trial). Hare presents conflicting accounts of the psychopaths' inner experience when engaging in antisocial behavior. On the one hand, he quotes two psychopaths who compare the thrill that they get from committing crimes to the "fix" or "high" one gets from taking drugs. See HARE, supra 1341 (Incidentally, the reader will notice that I have characterized an overpowered will as a will that is overpowered by reasons or desires. In this sense, I may be accused of reducing the volitional to the cognitive, diminished self-control to diminished ability to reason well. I recognize that this is a controversial approach, but at least I am in good company. For example, Stephen Morse argues that the notion of losing control is best explained in terms of irrationality or defective practical reasoning.''<') Yet another example might help drive the point home. Consider "Smoker." Smoker wants to quit smoking but just cannot resist the urge when it comes upon-and over-her. After satisfying the urge on a given occasion, Smoker exercises various measures such as drugs, cigarette substitutes, a nicotine patch, psychotherapy, or just sheer effort of will to help prevent herself from succumbing again. But as the urge reapproaches, Smoker still finds herself changing her mind, radically discounting all the reasons motivating her desire to quit. Just before smoking another cigarette, she says things to herself like, "It's just one cigarette .... I'll stop smoking afier that. ... Maybe smoking isn't such a bad thing after all. ... It really calms me down, and I'm under too much stress to quit. now. . . . A nyway, there ' s a Iways tomorrow. . . .,m B aseu·1 on these thoughts alone, one might conclude that Smoker is fully in control of her choice to smoke again. But that would be the wrong inference to nolc 5. at 40, 61. On the other hand, f-larc states, ··in n1ost instances it is egocentricity, \vhin1, and the pron1isc of instant gratification for n1orc con1111onplacc needs, not the drooling satisfr1ction of bizarre po\ver trips and sexual hungers, that n1otivatc the psychopath to break the law." Ill. at 74. In support or the latter point, sec Slobogin, supra note 47. at 37, arguing that rccidivisrn rates do not corrc:latc \Vith, and arc not therefore caused by, con1pulsivc desires. 96. See Morse, supra note 10, al 1064 ("Lack ol' capacity for rationality is almosl always the 111ost straightforward explanation of 1,.vhy \Vt: colloquially say that son1e people cannot control thc111selves \vhcn they experience intense desires."); ill. at 1075 C''(L!ack of capacity for rationality is ... the best explanation of what \Ve really n1ean when we say that an agent cannot control hi1nsclf. C'ontrol standards should be understood in tenns of rationality defects."); Stephen J. Nlorsc, ＨＧｵＯｰ｡ｨｩｬｾｶ＠ arul ＨｾｯｮｴｲｬＬ＠ 142 U. PA. L. REV. 1587, ＱＶＲＵｾＸ＠ (1994) (arguing that a supposedly "internally coerced" act is perforrncd not because the agent's psychological state leaves the agent no other alternative but because his defective practical reasoning n1akes this act secn1 preferable to other, 1nore rational acts); see also Slobogin, supra note 47, at 39-40 ("(M Jany cases of volitional i1npainnent can be re-characterized as deficits in cognition. For instance, the klcpto1naniac who steals for no apparent reason (because he merely hides \vhat he steals \Vithout attempting to 1nake n1oncy fro111 it) could be said to have an irrational thought process, as could the person 1,.vith mania who carelessly spends n1oncy in grandiose schen1es because of inaccurate beliefs about hi1nsclf and the world." Ｈｦｯｾｴｮ･＠ omitted)). 97. See Morse, supra note lO, at 1070 (suggesting that desires that are ''so powerful and insistent" n1ay cotnpro111isc or negate rationality by (I) making it difficult or in1possible for the agent to think "straight" or ''clearly" and (2) causing '"further distracting and often unpleasant feeling states, such as anxiety, irritation, cxciten1ent, tension, and the like"). 1342 an In ve, 11ze ny. 1 is der rge 11 a Jgs, fort 1rge ally ore one uch uch I on trol e to ,city, l the the ::>gin. ｾ＠ not 111ost ;0111e 1075 nean d be 11rol, nally nt no sce1n 9--40 ition. erely ve an ioney irld." ｾ＠ "so lieu It n1her ment. [VOL. 48: 1299, 2011) Dangerous Psychopaths SAN DIEGO LAW REVIEW draw. Smoker is clearly trying to rationalize the inevitable, trying to justify to herself her failure to exert self-restraint. She knows at a deeper level that she is powerless to resist her craving. And rather than make this damaging admission, she deludes herself into thinking that the next cigarette will be the product of her autonomous choice. Just as Smoker discounts her reasons for quitting when the urge to smoke comes upon her, psychopaths like Gacy tend to discount or disregard the prospects of apprehension and punishment to a greater extent than do people who are not psychopathic. 98 They continue to do the wrong thing even with the knowledge that the likely long-term costpunishment-will outweigh the short-tenn benefit-momentary pleasure. And this kind of unrealistic attitude and self-destructive behavior is either constitutive, or evidence, of diminished or absent control. 99 see HOWARD For a clear account of discounting in the context of ｳ･ｬｦｾ｣ｯｮｴｲＮ＠ 2J-56, 150-55 (2000). 99. t'iee, e.g., l"IARE, s111;ra note 5, at 77-78 ("Concrete rc\vards arc pitted against vague future conscqucnccs-\vith the rewards clearly the stronger contender. The mental image of the consequences j(n· 1he viclim [is) particularly fuzzy."); id. at 143 ("[Psychopaths') problem is that th[eir) knowledge [of the potential consequences of their acts) frequently fails to deter them from antisocial behavior."): Hart, supra note 3, at 165 ("There is also considerable evidence indicating that psychopathy is associated with impairment of volitional functioning. The findings from experimental research here indicate that psychopathic offenders have problems evaluating the potential consequences of their actions, inhibiting in1pu1scs, i1nplcmenting plans, and learning from punishment .... The corpus of relevant research is even older and larger than that supporting cognitive in1painnent, comprising hundreds of studies over almost 50 years." (citations omitted)); Lippkc, supra note 6. at 405 (rejecting the proposition "that most dangerous offenders have control over their conduct in the sense that they are able to refrain from violence where the risk of arrest and prosecution is especially high" and stating "such nonn1oral control does not suffice for the retributive punishment of cri1nes with its distinctive blaming function"): Litton, supra note 6, at 381 ("If individuals regularly make claims about what they will do in the future, yet there is no connection at all between these claims and what they actually do (and it is apparent to everyone but such agents that there is no connection between these expressed plans and subsequent actions), we have reason to see such agents as having a diminished capacity for rational self-governance."): Malatesti & McMillan, supra note 5, at 85 ("There arc [research) results that appear to show that psychopaths are impaired in certain fonns of learning that arc taken to be con-elated or enabled by certain emotional responses. . . . [P]sychopaths appear to have deficits in a type of instrumental learning that involves learning both to respond to stimuli that give rise to reward and to avoid responding to stimuli that give rise to punishment. . . . All of these impairn1ents suggest that the practical reason of psychopaths might be damaged. . . . Psychopathy associates with reduced emotional responses."); Morse, supra note 6, at 53 ("They say that they have goals, but act in ways inconsistent with understanding what having and achieving a goal entails. They do not consistently follow life plans and are impulsive .... Much of their conduct appears unintelligible because we cannot imagine what good reason would 98. RACHLIN, THE SCIENCE OF SELF-CONTROL 1343 Whether or not Gaey, for example, deliberated about what to do or attempted to resist his perverse desires (for whatever reason-fear of getting caught or some glimmering sense of conscience), the result was inevitable: when an opportunity presented itself, Gacy's desires were so far apart that he was simply powerless to act on his weaker desire (to avoid punishment) and stop himself from taking advantage of this opportunity. The same is true if Gacy created the opportunity; he was not only powerless to stop himself from taking advantage of this opportunity but also, given the great gap between his desires, powerless to It' f rom creating . . m . t11e titrst p 1ace. 100 In . stop h1mse t h.is opportumty sum, then, precisely because of his psychopathy, Gacy was unable to resist his temptation to commit brutal crimes. And because of this inability, he lacked moral responsibility for these crimes. VI. THE INSANITY DEFENSE Once again, I generally accept the arguments in the last Part for the conclusion that psychopaths are not morally responsible for their criminal acts. Yet I still contend that psychopaths should be held criminally responsible for these acts. In the remainder of this Article, I will explain why [ believe that the latter conclusion is consistent with the former conclusion. I will fi.1rther argue that the latter conclusion is not inconsistent with involuntarily committing dangerous psychopaths befi:;re they commit cnmes. motivate it. In brier: psychopaths have a generally diminished capacity for rational ｳ･ｬｾ＠ governance that is not limited to the sphere of morality. l'hey cannot even reason prudentially." (footnote omitted)); Ward. supra note 79, at 13 ("[Criminals who habitually commit unprofitable crimes suffer from] a form of criminality that is itself insane .... The quality that distinguishes their criminality and marks it as insane is the conspicuous want of prudence and wis<lon1. [T]hc whole crin1inality is unnecessary and supererogatory." (quoting CHARLES ARTHUR MERCIER, A TEXT-BOOK OF INSANITY 134-35 (2d ed. 1914 )) (internal quotation marks omitted)). I 00. See Morse, supra note I 0, at I 073-74 ("In some cases ... we may pi'1usibly infer that sexual predators may have a general, rather than an intcrn1ittent, ti1ne-limited defect in the capacity for rationality that might genuinely undermine responsibility for sexually predatory behavior. . . . Even in the absence of psychotic cognition, in so1ne cases continued predation sitnply may not make rational sense either to the predator or to anyone else. The predator may have no reasonable explanation for why he did not tie himself to the mast, did not take the preventive measures necessary to avoid hated imprisonment. The agent simply cannot think straight about what to do, even when not aroused, and continues to put himself in harm's way without. apparently, the rational capacity to deliberate about how to avoid such situations."). 1344 or of 1as ｾｲ･＠ Jfe his 1as his to In to his the nal lily am ner ent mit Ｚ･ｬＱｾ＠ is on NhO :self the :;ary J!TY ibly ited for [VOL. 48: 1299, 201 l] Dangerous Psychopaths SAN DIEGO LAW REVIEW A. Assumptions Underlying the Insanity Defense The insanity defense is designed primarily to prevent persons deemed legally insane from being criminalJy punished. The three assumptions motivating the insanity defense are: ( 1) people who are insane are not morally responsible for their actions, (2) moral responsibility is a necessary condition of criminal responsibility, and (3) criminal responsibility is necessary for just criminal punishment. Therefore, by transitivity, people who are insane may not be justly criminally punished. Each of these assumptions-(!), (2), and (3)-requires a brief explanation. We have already seen why (1) is the case in Part JV. Once again, people who are insane lack at least one of the first three conditions of moral responsibility-usualJy MR 1 (knowledge, or a threshold capacity to know, that A is moralJy wrong) and less frequently some variation of MR2 (a threshold capacity to refrain from A-ing) or MR3 (control over A-ing). Assumption (3) is also easy enough to explain. Very simply, there are two reasons why criminal responsibility is necessary for criminal punishment: justice and deterrence. To punish a person who is not criminally responsible for his actions would be unjust and would fail to deter that person from recidivating and similarly situated (that is, nonresponsible) persons from perfonning the same or similar crimes. 101 Assumption (2) is also easy enough to explain, but I will argue here and in Part IX that it is false. There are two reasons why most, if not alJ, scholars and pai1icipants in the criminal justice system (attorneys and judges) subscribe to (2). First, moral responsibility is thought to be necessary for criminal responsibility because criminal responsibility is just a subset of moral responsibility-namely, moral responsibility for a given criminal act. Second, suppose that a person is not morally responsible for a given act. This means that MRl, MR2, MR3, or MR4 is not the case. And it seems unfair to blame, stigmatize, and punish an individual 102 under this circumstance. Still, there are two problems with this conclusion. First, contrary to the second reason above (with specific regard to MR J ), there are two )Ole >r to I tie ated not )nal 101. See MODEL PENAL CODE § 4.01 cmt. at 166 (Official Draft and Revised Comments 1985) ("Those who are irresponsible under the [M'Naghten] test are plainly beyond the reach of the restraining influence of the law, and their c.ondemnation would be both futile and unjust."). l 02. See supra note 9 and accompanying text. 1345 ways in which people may be guilty of committing a crime even if they did not know that their act was criminal: (I) the jurisdiction requires only knowledge of the act or likely consequences, not knowledge of the criminal nature of the acl or consequences: or (2) the mens rea for the crime was less culpable than knowledge: recklessness, criminal negligence, or strict liability. Second, for both consequentialist and rctribulivisl (desert) reasons, the criminal justice system should leave open the possibility that some people are criminally responsible even though they arc not morally responsible. It is easy to see why some might wish to maintain this position with respect lo psychopaths. Even if they arc persuaded by the arguments in Part V above that psychopaths arc not morally responsible for their behavior, they might still feel that they arc responsible ･ｮｯｵｧｨｾｴ｡＠ the gravity of the psychopath's crimes in conjunction with the psychopath's sadism and remorselessness merits punishment for the purposes of both exacting retribution and maximizing deterrence of others who would commit crimes of similar gravity. B. !Ji//i'rent Versions o(lhe /nsanilr ＯＩ･ｾｮｳ｣＠ The first version of the insanity defense was the M'Naghten rule, 10 which was issued by a British court in 1843. ' According lo the M'Naghten rule, a person is legally insane and therefore not guilty of the crime with which he is accused if, al the time of the crime, he was "labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the acl he was doing: or, if he did know it, that he did nol know that what he was doing was wrong." So under the M'Naghten rule, a person is considered insane and therefore not criminally responsible iC at the time of the alleged crime. (I) the person had a mental disorder (or "disease of the mind"), ( 2) the person's mental disorder caused him to suffer from severe igmll"ancc (lo "labour[] under such a defect of reason"), and (3) this ignorance took one of two ｦｯｲｭｳｾＭ｣ｩｴｨ･＠ ignorance of what the person was doing or ignorance of the fact that what he was doing was wrong. 104 Thirty jurisdictions in the 103. 104. ｬ･ｩＮｾ＠ M'Naghten·s Case. [1843] 8 Eng. Rep. 718 (11.L.) 722. see Ward, supra note 79, at 9 (''What was needed to create legal obligation was that the putative legal subject knc\v \Vhat he \Vas doing and \Vas able to understand that he had an obligation not to do it, so that whether or not he knc\.v the la\v, he knew his action was wrong. Those tv,io tests \Vere the core of \vhat can1c to be known as the McNaghten rules."). 1346 if m ot or ;e: he ne ly l!S he 1le >le ith he of le, he .he 1as as lid So Jre :he 1's .r[J WO of the ti on : to a\V. )\Vn (VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW United States still employ this verswn, m whole or in part, of the insanity defense. 105 Five of these jurisdictions 106 have supplemented their versions of the insanity defense with what is typically known as the "irresistible impulse rule" (IlR). According to l!R, defendants are legally insane and therefore not criminally responsible or punishable for their otherwise criminal conduct if a mental defect or disorder made it impossible for them to control their behavior and avoid committing the criminal act for which they are being prosecuted. 107 The reasoning behind this volitional supplement is simple: if the insanity defense is designed to excuse defendants who are not morally responsible for their behavior because of a mental disorder, then it should excuse defendants whose mental disorder renders them not only unable to know the nature or wrongfulness of their behavior but also unable to control their behavior. The latter (volitionally impaired) are just as nonresponsible by virtue of their mental condition 105. ALA. CODE§ 13A-3-l (LexisNcxis 2005); ALASKA STAT.§ 12.47.010 (2008) (in part); ARIZ. REV. STAT. ANN. § 13-502 (2010); ARK. CODE ANN. § 5-2-301(5)(A) (2006) (in part); CAL. PENAL CODE§ 25 (West 2011); COLO. REV. STAT.§ 16-18-101.5 (2010) (in part); FLA. STAT. ANN. § 775.027 (West 2010); GA. CODE ANN. § 16-3-2 (2007) (in part); HAW. REV. STAT. § 704-400 (1993); IND. CODE ANN. § 35-36-2-2 (LexisNcxis 1998) (in pai1); IOWA OJDE ANN. § 701.4 (West 2003); LA. REV. STAT. ANN.§ 14:14 (2007); MINN. STAT. ANN.§ 611.026 (West 2009); MISS. CODE ANN.§ 9913-3 (West 2006); Mo. ANN. STAT. § 552.030 (West 2002) (in part); NEB. REV. STAT. § 29-2203 (1995); NEV. REV. STAT.§ 194.010 (2009); N.J. STAT. ANN.§ 2C:4-l (West 2005); N.Y. PENAL LAW§ 40.15 (McKinney 2009) (in part); OHIO REV. CODE ANN. § 2901.01 (LcxisNexis 2010); OKLA. STAT. ANN. tit. 21, § 152 (West 2002) (in part); 18 PA. CONS. STAT. ANN.§ 315 (West 1998); S.D. CODIFIED LAWS§ 22-1-2 (1988); TENN . CODE ANN.§ 39-11-501 (2006) (in part); TEX. PENAL CODE ANN.§ 8.01 (West 2011) (in part); WASH. REV. CODE ANN. § 9A.12.0IO (West 2009); WIS. STAT. ANN. § 971.15 (West 2007) (in part); see also State v. Hartley, 565 P.2d 658, 660 (N.M. 1977); State v. Bonney, 405 S.E.2d 145, 155 (N.C. 1991); Morgan v. Commonwealth, 646 S.E.2d 899, 902 (Va. Ct. App. 2007). 106. See, e.g., Lipscomb v. State, 609 S.W.2d 15, 17-18 (Ark. 1980); Hartley, 565 P.2d at 660; Graham v. State, 547 S.W.2d 531, 540-41 (Tenn. 1977); Morgan, 646 S.E.2d at 902. Although Indiana rejects llR as a form of insanity, it still regards llR as a possible means of demonstrating insanity. See Benefiel v. State, 578 N.E.2d 338, 350 (Ind. 1991) ("The legislature ... amended the statute in 1984 to confine the definition of insanity to !he inability to differentiate right from wrong. This, of course, does not exclude the showing of irresistible impulse to show such inability, but it excludes irresistible impulse as a separate independent excuse for the commission of a criminal act."). 107. ABRAHAMS. GOLDSTEIN, THE INSANITY DEFENSE 67 (1967) ("[llR] tells jurors to acquit by reason of insanity if they find the defendant had a mental disease which kept him from controlling his conduct."). 1347 as the former (cognitively impaired) and therefore should be just as eligible for acquittal. In 1962, the American Law Institute (ALI) proposed an alternative version of the insanity defense in its Model Penal Code (MPC): "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law." 108 Fifteen jurisdictions now implement this MPC version or a similar variation. 109 The MPC version of the insanity defense differs from the M'Naghten rule in three main respects. First, it changes inability to know (or unavoidable ignorance) to a lack of "substantial capacity ... to appreciate." The latter phrase suggests that a broader range of people might be found insane-not only those who simply cannot know but also those who have significant difficulty knowing; and not only those who cannot know but also those who have significant difficulty doing something less than knowing-namely, appreciating (or understanding). 110 Second, it eliminates the nature of one's act from the object of this inability. While the M'Naghten rule suggests that people are insane if they cannot know the nature or wrongfulness of their behavior, the MPC suggests that people are insane if they cannot know or appreciate (only) "the criminality [wrongfulness]" of their behavior. Third, it incorporates a [\ n 0 n n c i; c d Jl I u 1 c c 1 108. MODEL PENAL CODE§ 4.01(1) (Official Draft and Revised Comments 1985) 8 (alteration in original). 109. See CONN. GEN. STAT. ANN. § 53a-l3 (West 2007); DEL. CODE ANN. tit. 11, § 401 (2007); HAW. REV. STAT. § 704-400; 720 ILL. COMP. STAT. ANN. 5/6-2 (West t 2002); KY. REV. STAT. ANN.§ 504.020 (LexisNexis 2008); ME. REV. STAT. ANN. tit. l 7-A, § 39 (2006); Mo. CODE ANN., CRIM. PROC. § 3-l 09 (LexisNexis 2008); MICH. COMP. LAWS ANN.§ 768.2la (West 2000); N.D. CENT. CODE§ 12.1-04.l-Ol(l) (1997); OR. REV. STAT.§ 161.295(1) (2009); S.C. CODE ANN.§ 17-24-lO(A) (2003); VT. STAT. ANN. tit. 13, § 480l(a)(l) (2009); WYO. STAT. ANN.§ 7-ll-304(a) (2009); State v. Johnson, 399 A.2d 469, 476 (R.l. 1979); State v. Massey, 359 S.E.2d 865, 871 (W. Va. 1987). Several jurisdictions have adopted hybrid versions of the M'Naghten rule and the MPC version of the insanity defense. See, e.g., ALASKA STAT. § 12.47.0lO(a); ARK. CODE ANN. § 5-2-3l2(a)(l) (2006); GA. CODE ANN.§ 16-3-2; [ND. CODE ANN.§ 35-41-3-6 (LexisNexis 2009); Mo. ANN. STAT. § S52.030(l); N.Y. PENAL LAW § 40.15; TENN. CODE ANN. § 39-ll-SOI; WIS. STAT. ANN. § 971.IS(l). Four of these hybrid jurisdictions have adopted !IR. See, e.g., GA. CODE ANN. § 16-3-3 (2007); Hamilton v. United States, 47S F.2d 512, SIS (6th Cir. 1973); Smith v. State, 397 N.E.2d 9S9, 962 (Ind. 1979); Kwosek v. State, JOO N.W.2d 339, 345-46 (Wis. 1960). Several MPC jurisdictions have also adopted !IR. See, e.g., People v. Lowhone, 126 N.E. 620, 626 (Ill. 1920); People v. Russell, 173 N.W.2d 816, 824 (Mich. Ct. App. 1969); Hartley, 565 P.2d at 661; State v. Goyet, 132 A.2d 623, 651 (Vt. 1957). l l 0. See MODEL PENAL CODE § 4.0 l cmt. at l 80 (Official Draft and Revised Comments l 985) ("[l]t is doubtful if any other single term [than substantial] that does not implicitly require an unrealistic total lack of capacity can better catch the notion of very considerable incapacity."). ( 1348 \ ( as [VOL 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW ve :::): 1ch ity to ms PC ree ble 'he md 'hO OW ian ' it ii le ow hat the s a l85) I 1, Vest 7-A, )MP. OR. \NN. :son, 187). .1PC :oDE -3-6 ENN. 1brid )fl v. 962 v!PC 626 '565 ;ised does m of relaxed version of IIR. While !IR requires a complete inability to control one's behavior, the MPC version of volitional insanity requires merely a "lack [of] substantial capacity ... to conform [one's] conduct to the requirements of the law." Again, just as an inability to know is a more rigorous, harder-to-satisfy standard than a lack of "substantial capacity ... to appreciate," so too an inability to control one's behavior is a more rigorous, harder-to-satisfy standard than a lack of "substantial capacity ... to conform one's conduct to the requirements of the law." 111 Finally, there is the third and virtually extinct version of the insanity defense, what is known as the "Durham" or "Product" rule. Only one jurisdiction-New Hampshire-still subscribes to it. 112 As stated in the Durham case itself, "[A]n accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. " 113 This version of the insanity defense is generally rejected because it conflicts with the widely held view that mental illness is consistent with 111. See id. ｾ＠ 4.01 cmt. at 171-72 ("A test requiring an utter incapacity for selfcontro1 i1nposes a con1parably unrealistic restriction on the scope of the relevant inquiry. To meet these difficulties, it was thought that the criterion should ask if the defendant, as a result of mental disease or defect, was deprived of 'substantial capacity' to appreciate the criminality (or wrongfulness) of his conduct or to confonn his conduct to the requirements of law, meaning by 'substantial' a capacity of some appreciable magnitude when measured by the standard of humanity in general, as opposed to the reduction of capacity to the vagrant and trivial di1nensions characteristic of the most severe afflictions of the mind." (footnote omitted)). 112. See State v. Fichera. 903 A.2d 1030, 1034 (N.H. 2006) ("A defendant asserting an insanity defense must prove t\VO elc111cnts: first, that at the tlme he acted, he was suffering from a mental disease or defect; and, second, that a mental disease or defect caused his actions." (citing State v. Abbott, 503 A.2d 791, 794 (N.H. 1985))). The District of Columbia subscribed to the Durham test until United States v. Brawner. 471 F.2d 969, 983 (D.C. Cir. 1972) (en bane), where the court noted, "'The more we have pondered the problem the more convinced we have become that the sound solution lies not in further shaping of the Durham 'product' approach in more refined molds, but in adopting the ALI 's [MPC] formulation as the linchpin of our jurisprudence." Likewise, Maine subscribed to the Durham test until 1981, when it adopted half of the MPC test. See ME. REV. STAT. ANN. tit. 17-A, § 39(1) ("A defendant is not criminally responsible by reason of insanity if. at the time of the criminal conduct, as a result of mental disease or defect, the defendant lacked substantial capacity to appreciate the wrongfulness of the criminal conduct."). J 13. Durham v. United States, 214 F.2d 862, 874-75 (D.C. Cir. 1954) (citing State v. Jones, 50 N.H. 369, 398 (1871)). There was precedent for this proposition in State v. Pike. 49 N.H. 399, 402 (1870), overruled by Hardy v. Merrill, 56 N.H. 227 (1875). See also ROYAL CoMM'N ON CAPITAL PUNISHMENT, REPORT, 1953, [Cmd.] 8932, il 333 (U.K.) (rejecting the M'Naghten rule). 1349 moral responsibility and therefore with criminal responsibility. 114 The Durham rule suggests that anybody suffering from mental illness is not morally responsible for behavior resulting from this mental illness. 115 But we generally reject this proposition because mental illness and moral responsibility are both considered to be continuum concepts. As we move along the mental illness continuum from lesser to more severe, a person increasingly loses moral responsibility. At some point, then, a person is considered to be so severely mentally ill that the person is no longer morally responsible for his behavior. This dividing line between responsibility and nonresponsibility occurs somewhere toward the far end of the mental-illness continuum. What this means is that individuals who fall along the continuum prior to this dividing line are morally responsible for their behavior at least to some significant degree. Again, the Durham rule is not at all consistent with this view; it regards anybody along the mental-illness continuum as entirely nonresponsible. [Vrn T afte hav wro for req1 not "A! cnr but Mo VU. FOUR ARGUMENTS THAT PSYCHOPATHS ARE INSANE I do not believe that any American court has ever found a psychopath to be insane strictly on the grounds that he was psychopathic. If [ am correct, part of the reason for this universal omission may be that many psychopaths do not invoke the insanity defense in the first place. They would be well advised not to because, if they were actually to succeed and persuade a court that they are insane, they would likely be committed for a longer period of time than they would be imprisoned if they were found guilty. 116 Still, for the sake of showing the complete picture and the cogency of both sides in this debate, I will offer in this Part four arguments for the conclusion that psychopaths are insane and therefore should be eligible for the insanity defense. The reader should be aware that this is not my final conclusion. On the contrary, I will argue in Part IX that psychopaths are, in fact, not insane but rather criminally responsible for their behavior and therefore should be ineligible for the insanity defense. not 1 be! act oft as , tha mo res l § 3§ 11 (20 Cri1 v. ( I OH STP 114. See Ken Levy, Moral Responsibility, Excuses, and Situationism (unpublished manuscript) (on file with author). 115. See MODEL PENAL CODE § 4.0 I cmt. at I 73 (Official Draft and Revised Comments 1985) ("Under the Durham rule ... 'an accused is not criminally responsible if his unlawful conduct was the product of mental disease or defect."' (quoting Durham, 214 F.2d at 874--75)). 116. See Morse, supra note 6, at 53 (arguing that "virtually no psychopath would ... raise the insanity defence" because, given the absence of any effective treatment for psychopathy, "any psychopath acquitted by reason of insanity would be facing a lifelong commitment to an essentially prison-like facility" as compared with the potential for a shorter time in prison if found guilty). 1350 (cit Pee (Cc 16: v. I 16f 135 19( I If v. (R. v. ( 631 he 1ot 115 ral [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW A. First Argument that Psychopaths Are Insane Ne re, ,a no en far als lly m, :ds ath am my 1ey to be i if ete his md uld viii her ible ;hed ised ;ible 1a1n, ould I for long Or a The faet that the drafters of MPC § 4.01 put wrongfulness in brackets after criminality highlights a difficulty that many courts and jurisdictions have been forced to confront. The difficulty is determining what kind of wrongfulness people must appreciate in order to be criminally responsible for their behavior. Ten jurisdictions hold that criminal responsibility requires only an appreciation of criminality or criminal wrongfulness, not necessarily an appreciation of moral wrongfulness. 117 Call these "Appreciation-of-Criminality" jurisdictions. Twenty jurisdictions hold that criminal responsibility requires an appreciation not only of criminality but also of moral wrongfulness. 118 Call these "Appreciation-ofMoral-Wrongfulness" jurisdictions. The remaining jurisdictions have not made it clear which standard they adopt. There are two reasons why the Appreciation-of-Criminality jurisdictions believe that substantial appreciation of the moral wrongfulness of one's act is not necessary for criminal responsibility. First, not all violations of the criminal Jaw are morally wrong. Violations of ma/um prohibitum, as opposed to malum in se, laws are arguably no more morally wrong than violations of traffic rules. So requiring knowledge of the moral wrongfulness of malum pruhibitum laws would preclude criminal responsibility for violating these laws, a result that many would regard 117. See ARK. CODE ANN.§ 5-2-312(a)(I) (2006); MD. CODE ANN .. CRIM. PROC. § 3-109 (LexisNexis 2008); NEV. REV. STAT. § 194.010 (2009); OR. REV. STAT. § 161.295 (2009); S.C. CODE ANN.§ 17-24-10 (2003); TEX. PENAL CODE ANN.§ 8.01 (2011); VT. STAT. ANN. tit. 13, § 4801 (2009); Ivery v. State, 686 So. 2d 495. 501 (Ala. Crim. App. 1996); State v. Hamann, 285 N.W.2d 180, 183 (Iowa 1979); State v. Crenshaw, 659 P.2d 488, 491 (Wash. 1983). 118. See DEL CODE ANN. tit. 11, § 401 (2007); GA. CODE ANN. § 16-3-2 (2007); OHIO REV. CODE ANN. § 2901.01 (2010); S.D. CODIFIED LAWS§ 22-1-2 (1988); WIS. STAT. ANN.§ 971.15 (West 2007); State v. Skaggs, 586 P.2d 1279, 1284 (Ariz. 1978) (citing State v. Malumphy, 461 P.2d 677, 689 (Ariz. 1969) (McFarland, J.. concurring)); People v. Skinner, 704 P.2d 752, 764 (Cal. 1985); People v. Serravo. 823 P.2d 128, 137 (Colo. 1992); State v. Wilson, 700 A.2d 633, 643 (Conn. 1997); Dacey v. People, 6 N.E. 165, 182 (Ill. 1886); Hill v. State, 251N.E.2d429, 437 (Ind. 1969) (citing United States v. Freeman, 357 F.2d 606, 622 n.52 (2d Cir. 1966)); State v. Brogdon, 426 So. 2d 158, 168 (La. 1983); Stale v. Rawland, 199 N.W.2d 774, 788 (Minn. 1972); State v. Long, 139 N.W.2d 813, 821 (Neb. 1966) (citing Bothwell v. State, 99 N.W. 669, 670-71 (Neb. 1904)); State v. Worlock, 569 A.2d 1314, 1321(N.J.1990); People v. Wood, 187 N.E.2d 116, 121 (N.Y. 1962); State v. Staten, 616 S.E.2d 650, 658 (N.C. Ct. App. 2005); State v. Thompson. 402 S.E.2d 386, 390 (N.C. 1991); State v. Johnson, 399 A.2d 469, 477 (R.J. 1979); Graham v. State, 547 S.W.2d 531, 543 (Tenn. 1977); White v. Commonwealth, 616 S.E.2d 49, 58 (Va. Ct. App. 2005) (Elder, J., dissenting), aff"d, 636 S.E.2d 353 (Va. 2006); Flanders v. State, 156 P. 39, 44 (Wyo. 1916). 1351 as nonsensical. Second, appreciatwn of the moral significance of the criminal law is simply not necessary. If a person substantially appreciates that she is violating a criminal law, whether it is malum in se or mafum prohibitum, then she is not insane. She is not "out of touch" with reality, at least the reality that matters for criminal responsibility. On the contrary, the fact that she performed the criminal act even though she knew that she is not allowed to behave this way, that society has erected prohibitions against this kind of behavior, is precisely the kind of defiance that criminal punishment is directed against. 119 In contrast to the Appreciation-of-Criminality jurisdictions, the Appreciation-of-Moral-Wrongfulness jurisdictions maintain that mere appreciation of the criminality of one's act is not sufficient for criminal responsibility, that one must also appreciate that one's act is morally wrong as well. 120 They tend to limit this "extra" appreciation or knowledge to malum in se crimes for precisely the reason given above: requiring knowledge of moral wrongfulness for criminal responsibility would lead to the absurd result that nobody could be criminally responsible for committing a malum prohibitum crime. But with respect to mafum in se crimes, why do Appreciation-of-MoralWrongfulness jurisdictions require not only knowledge of criminality but also knowledge of moral wrongfulness? The assumptions motivating this position are that (I) criminal responsibility requires moral responsibility and (2) moral responsibility for a criminal act requires not merely knowledge that one is violating the criminal law but also knowledge that one is violating the moral law, the moral basis upon which the criminal law itself is predicated. 121 119. I will defend this point further in Part IX. Of course. if individuals claim that they knew that their behavior violated the law but "'could not help it"-felt powerless to bring their actions into confonnity with their ｫｮｯｷＡ｣､ｧＭｾｴｨ＠ they inight still have a successful insanity defense if that jurisdiction recognizes llR or the MPC's volitionalincapacity prong. See supra Part VI. 120. By as well, I mean that the Appreciation-of-Moral-Wrongfulness jurisdictions require, for criminal responsibility, both appreciation of the criminality and appreciation of the moral wrongfulness of one's act. Still, an Appreciation-of-MoralWrongfulncss jurisdiction could in principle require onlr appreciation of the moral wrongfulness of one's act for criminal responsibility. This kind of jurisdiction would hold that one's knowledge of moral wrongfulness and therefore criminal responsibility is consistent '¥Vith ignorance of the fact that one's 1norally wrongful action is crin1inally prohibited. 12 l. MODEL PENAL CODE§ 4.0 I cmt. at 166 (Official Dratl and Revised Comments 1985) ("One shortcoming of [the knowledge criterion of the M"Naghten mle] is that it authorizes a finding of responsibility in a case in which the actor is not seriously deluded concerning his conduct or its consequences, but in which the actor's appreciation of the wrongfulness of his conduct is largely detached or abstract awareness that does not penetrate to the affective level. Insofar as a formulation centering on ·knowledge' does not readily lend itself to application to emotional abnormalities, the M'Naghten test 1352 r r r t ｾ＠ I ( t ( ·the iatcs [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW ; or with 1thc she ctcd l of the nere 1inal ·ally 1 or ven 1inal l be But Jral1 but this oral ; not also 1pon that ess to 1 The implication of this position is that a person who knows that a given crime is ma/um in se but docs not know or believe that this act is morally wrongful is insane and therefore not criminally responsible for her act. Suppose, for example, that Debbie knows that firing a loaded rifle "for kicks" at another person is against the law but docs not know that this action is morally wrongful. Of course, it is difficult even to imagine this situation. It seems that if Debbie docs not have the moral knowledge, she will not have the legal knowledge as well. Conversely, if Debbie has the legal knowledge, then she should have at least some sense-some appreciation-of the moral implications. But if we put this consistency concern aside and accept the hypothetical, it stands to reason that Debbie is so out of touch with moral reality, so out of touch with the most basic and obvious moral norn1s of our society, that she cannot be considered morally responsible if she then acts on the basis of this moral ignorance and fires away. Her moral knowledge is no more advanced than a young child's, in which case she is no more culpable than a young child is for its morally reprehensible acts. As it turns out, the empirical evidence shows that dangerous psychopaths are generally in Debbie's situation. On the one hand, they know that certain ma/um in se acts such as killing, raping, kidnapping, and stealing are against the law. On the other hand, they do not have an "emotional" or "affective" understanding of the moral wrongfulness of these acts. To the extent that they consider them to be morally wrong at all, they consider them to be morally wrong only in the sense that they are against the law. For them, there is no ma/um in se. All moral wrongfulness reduces 122 to ma/um prohibitum, all criminal prohibitions to regulatory restrictions. ave a onalｾｴｩｯｮｳ＠ iatlon oral11oral vould lity is inally nents hat it luded 1f the :s not does n test appears less than optimal as a standard or responsibility in cases involving affective disorder."). 122. See supra note 12 and accompanying text; see also Moss, supra note 12, at 158 (citing a passage in a personal letter from serial killer Richard Ramirez, stating that "[m]orals, scruples and all that other shit are just words to make people feel better about themselves"); Ferzan, supra note 9, at 238-39 ("[U)nder the traditional understanding, the psychopath is an individual who fails to understand moral nonns because he lacks the capacity to form en1otional attachments to others. Viewed this \Vay, one tnight in1agine the psychopath to be akin to Data from Star Trek. Data, an android, does not form any emotional attachments. He can only act logically and rationally. Applied to the psychopath, all criminal laws appear to the psychopath as ma/um prohihitum laws appear to us-the only reason we have to follow these laws is because we will otherwise be punished. The laws do not forbid anything morally wrong in and of themselves." (footnote omitted)); Levy, supra note 5, at 219 ("Normal children make the moral/conventional distinction: so do autistic children. However, psychopaths apparently cannot reliably draw the distinction." (citations omitted)). 1353 1fa given ma/um in se act-kidnapping-happened not to be against the law, they would simply not understand what we meant when we said that it is still wrong. For them, it would be like saying that it is still wrong to drive through an intersection without stopping even though there is no stop sign or red light. Lega/lv permissible means morally permissible and vice versa. The root cause of psychopaths' moral ignorance is an innate inability to empathize with the victim, an inability to see the victim's situation from the victim's own perspective. As 1 argued in Part V.A, for nonpsychopaths who have undergone normal socialization and moral development, we may appeal to their compassion, their concern for others, when we wish to influence their behavior toward other sentient beings. We ask them how they would feel if they were on the receiving end of the kind of negative behavior that they are exhibiting. Asking them to imaginatively displace themselves into the heads of their potential victims is often, if not usually, sufficient to curb or reverse their negative behavior. But the same is not true of psychopaths. Because they are incapable of imaginatively displacing themselves into the heads of others -because they are incapable of feeling empathy-they arc incapable of feeling sympathy. They simply cannot care about their victims' feelings. And this inability to care about others renders all moral terms meaningless. Without a conscience to make them feel guilty about treating others badly, they simply cannot understand what we mean when we insist that this negative treatment is simply wrong. Given the psychopath's inability to understand moral wrongfulness, one might very well argue that psychopaths should qualify as insane in an Appreciation-of-Moral-Wrongfulness jurisdiction. 123 Although they 123. See Litton, supra note 6, at 385--86 ("[O]ne could argue that [psychopaths] cannol know the true nature or their cri111inal conduct because their insight into the emotional experience of other people is so feeble that they do not understand the real harn1ful consequences of their actions. The psychopath can know that the law punishes and society deen1s wrong certain kinds of actions, and in that sense he 'know[sl the di !Terence bet\veen right and wrong.' But one could argue that · forn1al cognitive knowledge' of right and wrong is insufficient for crirninal responsibility; one 1nust also be able to 'internalize the enormity of [his] cri1ninal act' and appreciate e1notionally its 1noral wrongfulness. ｾｲｨ｣＠ case for excusing the psychopath along this rationale is stronger under law that follows the Model Penal Code .... The MPC standard docs not require knowledge of the wrongful nature of one's act for responsibility, but rather excuses an offender who lacks substantial capacity to appreciate the cri111inality or \vrongfulness of his conduct . . If a law requires substantial capacity to appreciate 111oral \Vrongfuiness, the psychopath has a strong argun1cnt for excuse." (footnotes omitted)); Morse, supra note 6, at 51 ("Despite the United States law's exclusion of psychopathy as the basis for an insanity defence, the language of the various tests permits a reasonable case for inclusion. In brief: the arguinent for excusing psychopaths, or anyway some of them, is that they lack the strongest reasons for complying with the 1354 the that g to ; no ible ility ti on for oral for tient vrng hem 1tial Ltive are :hers e of mgs. less. idly, this 1ess, IC Jil they >aths] o the e real ' law ow[s] nitive t also lly its 1Jc is .::snot rather 1ty or eciate tnotes on of tests paths, th the [VOL 48: 1299, 201 l] Dangerous Psychopaths SAN DIEGO LAW REVIEW may have known that their acts were against the law, they did not understand the moral basis of this prohibition. And, again, Appreciation-of-Moral-Wrongfulness jurisdictions require this moral understanding for criminal responsibility. This is the first argument for the conclusion that psychopathy is a form of insanity. B. Second Argument that Psychopaths Are Insane There are three more arguments for the conclusion that psychopaths are insane. Unlike the last argument, which applies only in Appreciationof-Wrongfulness jurisdictions, all three of them apply universally. The first of these universally applicable arguments suggests simply that no person "in his right mind" could do the things that Gacy didtorture and kill-under his particular circumstances. 124 This last part about Gacy's particular circumstances has to be included to avoid the implication that people who torture and kill in other situations are insane, an implication that is false. Many people who torture and kill under different kinds of circumstances are not insane. Examples include people who torture and kill because they have been indoctrinated, trained, terrorized, or severely abused. Whether or not these conditionsindoctrination, training, terror, or abuse-mitigate their responsibility, most of these agents have lost "only" their compassion-perhaps only on certain occasions and only for certain human beings-not their sanity. People can lose compassion for others and still know the nature of their actions, know the moral and legal status of their actions, and retain control over their actions. The same, however, cannot be said of people like Gacy, who never could feel compassion for others. Somebody with this permanent deficit is arguably just as "crazy"-jusl as "out of touch"-as a person who is law, such as understanding that what they are doing is wrong and empathic understanding of their victim's plight."). l 24. See HARE, supra note 5, at 22 ("[A] common response to reports of brutal crimes, particularly serial totiure and killing, is: ·Anyone would have to be crazy to do that.'"): Morse, supra note 6, at 53 ("[S]evere psychopaths are out of touch with ordinary social reality."): Ward. supra note 79, at 17 (advocating Hervey Clecklcy's point that "the reason the psychopath present[ s] such a medico-legal conundrum was that the surface appearance of ｲ｡ｴｩｯｮｬｹｾｨ｣＠ ·1nask of sanity'---coneealed an inner life from which soine essential elcn1ent of rationality vvas absent"). But see Litton, supra note 6, at 371 ("The fact of psychopaths' repeated immoralities ... cannot show that they are incapable of moral reasoning or that they should not be held morally responsible for their conduct. Evil should not represent its own excuse."). 1355 unable to distinguish between fantasy and reality. 125 Some scholars put this argument in terms of rationa!i(v. They argue that rationality requires "moral competence," a capacity for moral understanding, which itself requires a capacity to value others as more than means to one's own end. 126 That is, rationality cannot survive on reason and self-interest alone; people cannot be minimally rational if they cannot be motivated by reasons that concern others' interests and rights, reasons that are informed by 127 It follows, then, other-concerning values, desires, and emotions. that psychopaths are fundamentally irrational. And because fundamental irrationality is, or causes, insanity, it follows that psychopaths, who lack minimal moral competence, are insane. C. Third Argument that Psvchopaths Are Insane According to the second universally applicable argument (and the third argument overall), Gacy' s inability to understand the moral wrongfulness of torturing and killing arguably satisfies the M'Naghten rule, according to which a person was insane at the time of the crime if that person was "labouring under such a defect of reason, from disease 128 of the mind ... that he did not know that what he was doing was wrong.'' [ say arguablv because this conclusion requires three points to be established: that ( [) Gacy suffered from a "defect of reason" or "disease of the mind"; (2) know refers not merely to cognitive knowledge but also to emotional or affective knowledge; 129 and (3) wrong means not merely legal wrong (illegality) but also moral wrong (immorality)uo In Part IX below, I will argue that both (2) and (3) are false. But for the purposes of 125. ｳｾ･＠ supra notes 69 and 124 and accon1panying text. See supra note 79 an<l acco1npanying text. 127. The clai1n here is that rationality requires a n1ini1na! n1oral capacity. This clain1 should not be confused \Vith David f-lun1e's superficially sin1ilar clain1 that ｲ｡ｴｩｯｮｬｹｾ＠ '·reason ｡ｬｯｮ･Ｂｾ｣ｴ＠ motivate one to ｡｣ｴｾ＠ that action requires psychological states other than ｲ｣｡ｳｯｮＭｾＱ･ｬｹＬ＠ "passions" or ·'ernotions." DAVID HUME, A TREATISE OF HUMAN NATURE 413-18 (L.A. Selby-Biggc & P.H. Nidditch eds., 2d ed. 1978) (1739-1740): cl Jana Schaich Borg, Impaired Moral Reaso11i11g in Psvchopaths? Response to Kent Kiehl, in 3 MORAL PSYCHOLO<iY: THE NEUROSCIENCE OF MORALITY: EMOTION, BRAIN DISORDERS, AND DEVELOPMENT, supra note 5. at 159, 15963 (arguing that studies "cast[] doubt on the vic\v that emotion is unnecessary for successful 1noral reasoning"). 128. But sec Ward, supra note 79, at IO ("Those who today might be called psychopaths were the very last people the judges who formulated [the lvf'Naghten test and l!R] would have expected to benefit from them."). 129. (2) is discussed more fully in Part V.A below and in Ken Levy & Walter Sinnott-Annstrong, !nsani(v De/Cnses, in OXFORD f-IANDBOOK ON THE PHILOSOPHY OF THE CRIMINAL LAW 299, 315-16 (John Deigh & David Dolinko eds., 201 l ). !30. (3) is discussed more fully in Part Vil.A below and in Levy & SinnottArmstrong, supra note 129, at 302-06, 312-13. 126. 1356 f' ti ti v ti } a t (' t Dangerous Psychopaths put Ires self [VOL. 48: 1299, 201 l] lWn this argument, we may now assume that (2) and (3) are both true. And that is enough to sanction the third argument because (I) is also true. To demonstrate that ( 1) is true, it would have to be shown that Gacy was a psychopath and psychopathy is a "defect of reason" or "disease of the mind." The literature clearly establishes that Gacy was a psychopath. 131 And the notion that psychopathy is a "defect of reason" or a "disease of the mind"-a mental illness-was implicitly established in Parts II and V (and will be further defended in Part X.E). Given the fact that psychopathy tends to deprive the individual of key abilitiesincluding the ability to care for others, to control one's impulses, and to engage in long-range planning-psychopathy seems to fit right in with the family of other conditions that deprive individuals of equally central abilities and thereby qualify as mental illnesses. 132 Still, the reader should recognize that this point is controversial. 133 Most courts, psychologists, and scholars do not accept the proposition that psychopathy . a menta 1'11 IS I ness. 134 me; :ons by ten, ntal tack the 1oral l1ten if ease 1e ,,12F. be ease also :rely 1 IX ｾｳ＠ of SAN DIEGO LAW REVIEW 1 1 This that ｾｵＱｲ･ｳ＠ )AVID 1 eds .. ng in lCEOF . 159ry for called '.n test Nailer HY OF innott- 131. See generally LINEDECKER, supra note 64: Moss, supra note 12. 132. See HARE, supra note 5, at 142 ("[John Wayne] Gacy's 'loose associations' and his contradictory statements and lies may reflect little more than mental carelessness, lack of interest in keeping things straight for the listener, or part of a strategy intended to confuse the listener. However . . . they also niay sten1 fro1n a condition in which continuity among mental events and the self-monitoring of speech are defective, perhaps even disordered: mental Scrabble without an overall script."). Examples of other abilities-depriving mental illnesses include dccompensation, dementia, developmental disability, mental retardation, pedophilia. and various other disorders: Autism, Bipolar Disorder, Borderline Personality Disorder, Dissociative Disorders, Substance Ahuse Disorder, Eating Disorders, Major Depression, Obsessive-Compulsive Disorder, Narcissism, Panic Disorder, Post-Traumatic Stress Disorder, Schizophrenia, Schizoaffectivc Disorder, Seasonal Affective Disorder, and Tourette's Syndrome. 53 AM. JUR. 2D Mentally Impaired Persons§ l (2006); Mental Illnesses: By Illness, NAT'L ALLIANCE ON MENTAL ILLNESS (NAM!), ｨｴｰＺＯｷＮｮ｡ｭｩｯｲｧｔ･ｬ｣ｦ＿ｓｾｂｹ＠ _Illness (last visited Nov. 24, 201 l ). 133. See HARE, supra note 5, at 21 ("[The question whether a psychopath is mad or bad is] a question that has long troubled not just psychologists and psychiatrists but philosophers and theologians."); id. at 25 ("[There has been] an argument that spanned generations and seesawed between the view that psychopaths were 'mad' and that they were 'bad' or even diabolical."). 134. Id. at 22 ("Most clinicians and researchers don't use the tenn [psvchopathy to mean 'insane' or 'crazy']; they know that psychopathy cannot be understood in terms of traditional views of mental illness. Psychopaths are not disoriented or out of touch with reality, nor do they experience the delusions. hallucinations. or intense subjective distress that characterize most other mental disorders. Unlike psychotic individuals, psychopaths are rational and aware of what they are doing and why."). 1357 D. Fourth Argument that Psychopaths Are Insane The fourth overall argument for the conclusion that psychopaths like Gacy are insane: for reasons given above, Gacy satisfied (l) both prongs, the cognitive and volitional, of the MPC test; and (2) the insanity test in jurisdictions that have added !IR. 135 First, the cognitive prong of the MPC test. Again, the MPC's cognitive prong says that a "person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity ... to appreciate the criminality [wrongfulness] of his conduct." As I argued in Part Vil.A, Gacy's psychopathy deprived him of a substantial capacity to appreciate-to have an emotional understanding of-what is morally wrongful about torturing and killing and therefore would easily satisfy the cognitive prong of the MPC test in Appreciation-of-Moral-Wrongfulness jurisdictions. Second, the volitional prong of the MPC test. Again, the MPC's volitional prong says that a "person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity ... to conform his conduct to the requirements of the law." As I argued above in Part V.C-D, Gacy satisfied this prong because he could not have done othe1wise; given his psychopathy and his sadistic desires, he felt overwhelmingly powerful reasons to torture and kill and much weaker reasons to resist these desires. So when the opportunities arose-or when he impulsively created such opportunities-he simply had to take advantage of them. He could not have resisted. One set of reasons easily and unavoidably overpowered the other set of reasons. 136 For the very same reasons, Gacy satisfied the !IR prong of the l'Vf'Naghten test in several jurisdictions. Again, according to !IR, defendants are legally insane and therefore not criminally responsible or criminally punishable for their otherwise criminal conduct if a mental defect or disorder made it impossible for them to control their behavior. The paragraph above demonstrates that Gacy satisfied this condition. 135. See supra Part VLB. 136. One danger of this argument is that it n1ay discourage psychopaths frorn trying to improve their behavior. See Ward, supra note 79, at 13 (noting that Havelock Ellis, a criminological positivist in the late nineteenth and early twentieth centuries, "regarded the whole enterprise of distinguishing between "responsible' and 'non-responsible' cri1ninals as futile and counterproductive, since telling so1ne crin1inals that they were incapable of self-control was likely to be a seltCfulfilling prophecy"); see also supra note 47. 1358 J r ( f \ ( [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW ike 1gs, tin VIII, WHY THE CRIMINAL JUSTICE SYSTEM REGARDS PSYCHOPATHS AS CRIMINALLY RESPONSIBLE :JVe the cks of 11m mg ore m nal ase the fled 1thy to So uch not Ted 1ten are 1lly t or fhe ｾＱｮｧ＠ IS, a rded ible' .vcrc note Despite all of the reasons in the last Part for judging psychopaths like John Wayne Gacy to be insane and therefore nonresponsible for criminal acts that result from their psychopathy, no jurisdiction currently regards 137 psychopathy as a form of insanity and therefore as a basis for acquittaL On the contrary, psychopathy is almost always regarded as an aggravating factor, 138 Why, then, is the criminal justice system reluctant to follow through on the perfectly plausible proposition that psychopaths are insane? In this Part, I will offer several reasons. In Part IX, I will argue that whether or not these reasons are correct, their conclusion is, That is, the criminal justice system is correct to reject psychopathy as a fonn of insanity and therefore as a basis of acquittaL Once again, there are several reasons why the criminal justice system does not regard psychopaths as insane, The first is consequentialisL As I argued in Part IJJ above, society would simply not tolerate acquitting a defendant like Gacy, It would not understand-nor wish to hear-why a man who tortured and killed over thirty young males did not receive severe punishment-either life imprisonment or death, 139 Its outrage would be fueled primarily by a thirst for retribution and secondarily by the goal of maximizing detenence of Gacy "copycats," It might also prefer punishment to acquittal if it believed either that acquittal would not be followed by commitment to a psychiatric hospital or that commitment is Jess secure than imprisonment Still, as I argued above in Part Ill, it is important to realize that both of these beliefs are false and therefore that this reason to prefer punishment to acquittal is misguided. Second, psychopaths' characteristic lack of compassion for their victims 140 makes them especially unsympathetic and unlikeable defendants. The 137. See supra note 11 and accompanying text. 138. See supra nole 3. 139. See Litton. supra note 6, at 389 ("[I]f judges were to read current insanity statutes as authorizing an excuse for psychopathic offenders, then that could lead to renewed public antagonism or outrage to,vards the insanity defense, itself"). 140. See Moss, supra note 12, at 102 ("Because part of me knew that [Gacy] was trying very hard to manipulate me. I folt less guilty manipulating him. I suppose I shouldn't have felt guilty at all. One could make the argument that Gacy, as someone who'd brutally killed thi1ty-thrce men and boys, wasn't entitled to honesty or fair play."); RONSON. supra note 21. at 110 ("Why should we feel sorry for [psychopaths]? They don't give a shit about us." (quoting a fellow conference attendee) (internal quotation marks omitted)). 1359 fact that they callously harmed their victims in the first place and then never felt (or showed) genuine remorse afterward indicates that they regard their victims not as fellow human beings deserving of respect but rather as means or obstacles-either means for their own use or pleasure or obstacles whom they need to remove in order to fulfill their own selfish impulses. We generally react to this cold, unfeeling attitude toward others' suffering with horror and disgust. So, far from being inclined to excuse psychopathic defendants, we are inclined to do just the opposite: treat their psychopathy as an aggravating factor. They are not mad; they are bad. Indeed, they are as bad as one can get. They knowingly and willingly harmed their victims. This is the very embodiment of evil, not of insanity. Third, people like Gacy seem sane. Yes, Gacy was a person whose psychology we have a great deal of trouble understanding. Most of us simply cannot imagine how a person could even want to torture and kill others, no less carry through on this bizarre desire. To be sure, we understand that he had these desires and acted on them-much as Gacy understood that we are morally opposed to these desires and acts. What we do not understand is how he wanted and did these thingsperhaps as much as Gacy did not understand how we do not share his desires. But foreign as he is to us, difficult as it is to put ourselves inside his head and experience the world as he did, it is still reasonable to perceive him as sufficiently rational. He was cognitively and socially intelligent, able to communicate as a normal human being, did not suffer from any illusions (like many schizophrenics), and was quite adeptindeed, too adept-at practical reason (that is, at finding the means to satisfy his ends). In short, he walked on two legs and came across as a normal human in most respects. 141 And in the few respects that he did 141. See HARE, supra note 5, at 142 ("[W]hy are psychopaths so believable, so capable of deceiving and manipulating us? Why do we fail to pick up the inconsistencies in what they say? The short answer is, it is difficult to penetrate their mask of normalcy ... [because] they put on a good show. We are sucked in not by what they say but by how they say it and by the emotional buttons they push while saying it."); Moss, supra note 12, at 16 ("John Wayne Gacy .... seemed to be the embodiment of all evil .... Unlike some of the [other serial killers], he was totally invisible when he was operating. There was no way you could tell what he was up to. He wasn't a crazed lunatic like Manson or a loner like Dahmer; rather, he projected the appearance of a normal guy whom most anyone would like."); Borg, supra note 127, at 159 ("[C]ognitive neuroscience data have shown that psychopaths have deficits in emotional processing, yet they are still able to maintain a 'mask of sanity' and rationalize what is morally right or appropriate .... "); Hart, supra note 3, at 162, 167-68; Lee, supra note 3, at 126 ("[It is] disturbing ... that psychopaths usually appear well adjusted and exhibit average or better intelligence. Thus, psychopaths not only possess dangerous traits prone to violence, they are capable of masking those characteristics under a fa9ade of superficial normalcy for unsuspecting victims." (footnote omitted)); Litton, supra note 6, at 385 ("Psychopaths are in touch with physical reality: they do not suffer from 1360 en ey 1ut or eir ng 1111 do ey ey :ry on )St ire re, as :ts. ,- '1is ide to lly fer to sa jid ' so the heir 1hat '1ng lent he zed ,fa 159 ma! it is 1 lOtC 1ibit -one of e 6. rom (VOL 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW not come across as nonnal, he was not mad. Rather, again, he was badindeed, pure evil. 142 Fourth, we saw above in Part Jl.D that psychopathy and ASPD overlap significantly. Once again, the only real differences between them are that (I) Jack of empathy is not an essential criterion of ASPD and (2) while the diagnostic criteria of ASPD are primarily behavioral, the diagnostic criteria of psychopathy are both behavioral and psychological. We also saw in Part 11.D that up to 90% of the prison population are thought to suffer from ASPD. If, then, the courts were suddenly to shift course and stipulate that ASPD is a form of insanity, it follows that most criminal cases would lead to insanity verdicts rather than criminal convictions. But this is a shift that society is not at all inclined to take-for obvious reasons (consequentialist, retributivist, expressivist, and commonsensical). Given this reluctance and the fact that psychopathy and ASPD are so similar, it follows that society is nearly, if 143 not equally, reluctant to regard psychopathy as a form of insanity. Fifth, the courts are not generally aware of the scientific evidence regarding psychopaths' moral ignorance and incapacity for moral knowledge. Moreover, researchers differ in their interpretations of this data. So the courts that are presented with this data are not confident enough to conclude from it that a given defendant who has been diagnosed with psychopathy either (I) genuinely Jacked knowledge or substantial appreciation that the act was morally wrong or (2) genuinely Jacked the capacity to know or substantially appreciate that the act was morally wrong. Indeed, even if the courts ventured far enough to accept ( 1)-to accept that the defendant did not know that the act was morally psychosis, as do persons with schizophrenia. And they know the general nature of what they are doing. Indeed, they can have insight into other people sufficient to con and manipulate them successfully." (footnote omitted)). 142. See Moss, supra note 12, at 256-57 ("I began wondering if Gacy had a soul. I wondered if ｳｯｭ･ｮｾ＠ who was that evil, who'd destroyed so many lives, who was so willing to be deceptive and manipulative, could possibly have anything resembling a spiritual side to him."). 143. See Litton, supra note 6, at 390 ("We must also consider the financial and other costs to the criminal justice system in excusing individuals with psychopathy. [T]he number of offenders who could possibly raise (although not necessarily with success) a psychopathy-excuse defense is very high. The fact that so many criminal defendants would be able to litigate their responsibility-status could carry more than financial cost: 'The law wants to reinforce societal assun1ptions that 1nost of us are morally accountable actors but [a psychopathy excuse] would permit most criminal defendants to challenge that expectation of accountability."' (footnotes omitted)). 1361 wrongful-they would still likely find criminal responsibility because they would not be confident enough in the expert testimony to accept (2) as well. All else being equal, it seems safer to presume that the psychopathic defendant either was not ignorant in the first place or, if he was, was more willfully than helplessly ignorant. IX. WHY PSYCHOPATHS ARE CRIMINALLY RESPONSIBLE EVEN THOUGH THEY ARE NOT MORALLY RESPONSIBLE In this Part, I will argue that the criminal justice system is right not to regard psychopathy as a form of insanity and therefore as a basis for invoking the insanity defense. As we saw in Part V, there are two main reasons for the conclusion that psychopaths are not morally responsible for their criminal acts: inability to know right from wrong and inability to avoid doing the wrong thing. Scholars typically infer from this conclusion that psychopaths are not criminally responsible for their crimes and therefore may not be justly punished. I will argue, however, that this inference is false; that even if psychopaths are not morally responsible for their criminal acts, they are still criminally responsible-and therefore criminally punishable·for them. In a nutshell, I will argue that Appreciation-of-Criminality jurisdictions get it right. Even if psychopaths are unable to have a moral, emotional, or affective understanding-an understanding of the concern for others that underlies most-of the criminal law, they still have a cognitive understanding of the criminal law; an understanding that if they violate the criminal law, they will likely be caught and punished. 144 And although the latter understanding is not sufficient for moral responsibility, it is sufficient for criminal responsibility, in which case it is perfectly legitimate to hold psychopaths criminally responsible and punish them rather than acquitting and then committing them. [Ve res bla urn I aln of the res it. res re; (bl sh< pe• wt kn la\ de gu th< th< ｲ･ｾ＠ A. Why Criminal Responsibility Does Not Require Moral Responsibility Once again, criminal responsibility is generally thought to require moral responsibility. If people are not morally responsible for their behavior, then it seems unjust to criminally punish them for it. It is easy to see why most would subscribe to this proposition. Responsibility ts See HJ. Eysenck, Personality and Crime, in PSYCHOPATHY: ANTISOCIAL, supra note 7, at 40. 45 ("Research has shown that criminals know what is right and wrong as \vell as anybody-they just prefer the wrong to the right"). N: re: 144. CRIMfNAL, AND VIOLENT BEHAVIOR, 1362 l, "p 1ey as he he to for on ts: ng ire be mt :ts, ity a of till I if nd for ch lly ten ral or, ;ee [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW responsibility. If I am not responsible for a given act, then it is not fair to blame me for it. And if it is not fair to blame me for it, then it is equally unfair to punish me for it. But what this syllogism fails to take into account is a critical-and almost entirely overlooked-distinction between two different kinds of responsibility: moral and criminal. Although the two clearly overlap, the latter simply does not require the fom1er. One can be criminally responsible for a criminal act even if one is not morally responsible for it. The explanation is that our reasons for holding people morally responsible are different from our reasons for holding people c1iminally responsible. On the one hand, we hold people morally responsible (blameworthy) when they fail to comply with moral norms and knew or should have known these moral norms. On the other hand, we hold people criminally responsible-and therefore criminally punishablewhen they fail to comply with the criminal law and knew or should have known that these laws were in effect. To be sure, criminal laws often follow moral norms. All ma/um in se laws-laws against murder, rape, theft, and kidnapping-are laws that derive directly from moral prohibitions. Still, when we find a defendant guilty of committing a ma/um in se crime, we are blaming and punishing the defendant not for violating the moral norm per se but for violating the criminal law. Criminal blame-the practice of holding a defendant criminally responsible-assumes that the defendant satisfies four conditions: CR!: knowledge, or a threshold capacity to know, the (relevant) criminal law (C); CR2: a threshold capacity to refrain from violating C; CR3: control over violating C; 145 CR4: an absence of circumstances that excuse this violation, including reasonable (or reasonably understandable) ignorance of the possible/ likely consequences of violating C. Naturally, these four conditions parallel the conditions of moral responsibility, presented above in Part IV: IS AL, hat )ng 145. Cl Vincent Chiao, Action and Agency in the Criminal Law, IS LEGAL THEORY 1, 16-22 (2009) (arguing that the voluntary-act requirement should be understood as a "practical-agency condition" rather than a control condition). 1363 MR l: knowledge, or a threshold capacity to know, that A 1s morally wrong; MR2: a threshold capacity to refrain from A-ing; MR3: control over A-ing; and MR4: an absence of circumstances that excuse this performance. ( Still, these two lists are only superficially similar. In fact, the difforenccs between them help to explain how a person might be criminally responsible for A-ing without being morally responsible for A-ing. Suppose that the defondant is, because of a psychological or neurological disorder, incapahfe of grasping or understanding moral norms. Then we cannot (justly) hold the defendant morally responsible for A-ing because MR I-one of the four conditions required for holding him morally responsible-is simply not satisfied. Importantly, however, we might stiff be able to hold the defendant criminaflv responsible for A-ing. Even though the defendant could not understand the moral basis of the criminal law and therefore cannot be blamed for failing to comply with the criminal law qua moral norm, the defendant might still have been able to understand the possible or likely consequences of violating the criminal law (arrest, conviction, punishment, and stigma) and therefore still had pfentv of good reasons for complying with the criminal l;1w qua criminal law. 146 146. See 1IARE, supra note 5. at 78 (''(P]sychopaths arc not cutnpletely unresponsive to the 111yriad rules and taboos that hold society together. After all. they arc not auto1natons, blindly responding to rnon1cntary needs, urges, and opportunities. It is just that they arc rnuch rrccr than the rest of us to pick and choose the rules and restrictions they \Viii adhere to. [T Jhc psychopath carries out his evaluation of a situation----\vhat he will get out or it and at what cost--without the usual anxieties, doubts, and concc111s about b'Cing hun1iliatcd, causing pain, sabotaging future plans, in short. the infinite possibilities th;:1t people of conscience consider when deliberating possible ｡｣ｴｩｯｮｳＮＢＩｾ＠ ill. at 143 ('•(n Illy opinion, psychopaths certainly kncnv enough about \Vhat they arc doing to be held accountable ror their actions."): Eysenck, su1n·a note 144, at 40, 45 ("Research has sho\vn that crin1inals kno\-v 'lvhat is right and \Vrong as we!! as anyhody ---they just prefer the wrong to the right."); Fischettc, supra note 9, at 1482 ("[T]hc limits on behavior co1ne not fron1 any en1otional connection to the n1oral in1port or the law but rather from the clear fear of being ｰｵｮｩｳｨ｣､ｾ｡＠ purely self-interested JllOtivation. Ir that can be generalized, there rnay be a class of laws where c1notional capacities arc unnecessary to the ｦｾｩｲｮ･ｳ＠ of attributions of responsibility."); !--hut, supra note 3, at 169 ("According to the hnv, people with psychopathy 1nay have problcn1s rully appreciating the e1notional n1caning or consequences of their actions and using their cn1otions to n1akc choices and plans, but they ought to know better than to co1111nit serious crirne and violence."): Lippkc, supra note 6, at 394 ("Granted, the criminal law does not set very high liability rcquircinents with regard to legal punishn1ent. In particular, it docs not require that those liable to punishn1cnt be capable in any very substantial \vay of regulating their conduct by reference to n1oral considerations. It is enough for the cri1ninal la\-v if individuals are capable of restraining their violent proclivities based merely on considerations of ｳ･ｬｴｾｩｮ｣ｲＮＢＩ［＠ Morse, supra note I 0, at I ＰＶＸｾＹ＠ ("Most sexually violent agents arc firn1ly in touch with reality, instrun1entally rational, and fully aware of the applicable moral and legal rules.. 1364 Furthermore, although predators' Jly [VOL 48: 1299, 2011) Dangerous Psychopaths SAN DIEGO LAW REVIEW ces ble the ble Jld the Jly the ant Jre •ral the ｾｳｴＬ＠ of iIVe not just ons 1hat !ms nite ' id. g to 1rch just on but that are 169 the akc and 'ery not of the '5ed lost 1lly )fS' Consider a violent crime such as murder. Most people refrain from committing murder for four reasons. 147 First, they just do not want to. Angry as they may get at other people, they simply do not want to kill-no less think of killing-the latter. Second, a subset of this majority may think of killing. But they refrain for one of three reasons. The first reason (among this inclined subset) and the second overall reason that they refrain from murder is that they morally oppose it; their conscience would not tolerate it. Although they may entertain, however briefly, the thought of murdering the person whom they hate, they quickly decide against it because they believe that it is just wrong, morally intolerable. 148 The second reason (among the inclined subset) and the third overall reason that they refrain from murder is that they respect the criminal law. They believe that the criminal law, at least the law prohibiting murder, represents the moral ideals of the community; and they have too much respect for this shared moral code to defy it. The third reason (among the inclined subset) and the fourth overall reason that they refrain from murder is that they fear the criminal law. They fear violating it, getting caught, and being criminally punished. Importantly, fear need not have the affect of fright or dread; it could consist solely in the fright-free knowledge that unpreferred consequences--especially arrest and punishment -will likely follow a given criminal act. 149 sexual desires and behavior may be statistically abnonnal and morally objectionable, predators arc instrumentally rational when they satisfy those desires .... [l]t appears that most mentally abnormal sexual predators arc fully responsible for their sexually predatory conduct, even if they suffer from a serious. recognized disorder, and, thus, they may fairly be criminally convicted for their sexual crimes." (footnotes omitted)); id. at 1072 ("[U]nless they have a co-occurring psychotic disorder, people with psychopathy arc entirely in touch with reality, instrumentally rational, and know the applicable moral and legal rules. They simply do not 'get' the point of morality and cannot be guided by it. They are guided only by the fear of sanctions."). 147. See I-IARE, supra note 5, at 75 (offering a similar list). 148. See Eysenck, supra note 144, at 45 ("l suggest[] that we behave[] well because our consciences would trouble us if we did not; this is not an original notion, because it agrees \Vith co1n1non-sensc and religious teaching."). 149. See HARE, supra note 5, at 54 ("Laboratory experiments using biomedical recorders have shown that psychopaths lack the physiological responses nonnally associated with fear."); id. at 56 ("For [psychopaths], fear-like most other emotions-is incomplete, shallow, largely cognitive in nature, and without the physiological tunnoil or 'coloring' that most of us find distinctly unpleasant and wish to avoid or reduce."); id. at 76 ("[!Jn psychopaths, the links between prohibited acts and anxiety are weak, and the threat of punishment fails to deter them."); id. at 194 ("Psychopaths are always getting into trouble, in large part because their behavior is not motivated by anxiety or guided by cues that warn of danger. , , . [T]hey miss much of what goes on around them."'); Lee. 1365 For most people, the first three reasons above are sufficient to prevent them from even attempting to murder. For a smaller group of people, the first three reasons are not sufficient, but the fourth is. For a tiny minority of people, however, none of these four reasons is sufficient; in spite of all of them, they still murder. These people are responsible for murder as long as they knew that they were killing without justification/ excuse and that killing without justification/excuse is against the law. One might think of it as a sort of contract or "deal" with the state: if [ commit this act, which I know is criminal, then I expose myself to atTest, stigma, and criminal punishment if I should be caught and found guilty. 150 [f, for example, [ enjoy harming others because of the sense of control and power it gives me, 151 then the "price" that [ must pay for this enjoyment is possible apprehension, conviction, incarceration, and stigma. 152 Importantly, all of this is the case only so long as [ can be reasonably expected to know the consequences of breaking the law-whether or not I fear these consequcnces. 153 Assume, for example, that Killer murders Victim and that Killer is lawfully caught, arrested, indicted, and tried. On what grounds should Killer be found guilty and criminally punished'? [t is generally held that ( 1) Killer should be found guilty only if he is criminally responsible for murdering Victim, and (2) Killer should be found criminally responsible only if he is morally responsible for murdering Victim. Ground ( 1) is correct. But, despite its nearly universal acceptance, (2) is false. Suppose Killer wanted to kill Victim because he hated her; that he simply could not grasp or understand any moral reasons not to act on his hatred and murder Victim; that he did not respect the criminal law; and that he understood that murder was against the law and therefore that if he was caught, he was likely to be found guilty and punished. [t does not look su11ra note 3, at 126 (""Fron1 a judicial perspective, the key psychopathic trait is fearlessness, 111aking the psychopath n1orc difficult to socialize using standard threats of punishment. Specifically, psychopaths lack a normal fear or anxiety response. Instead, psychopaths tend to act impulsively, which indicates deficient inhibitory control." (footnotes omitted)). ISO. Cf' Ken Levy, Solution to the Prohlem of' Outcome Luck: Win' Harm ls Just as Punishable as the Wrong/iii Action that Causes It, 24 LAW & PHIL. 263, 285-88 (2005) (arguing that by voluntarily engaging in cri1ninal conduct, a person is 1naking a deal with ''the gods'' or "'the casino of morality" that the moral status of that person's action will be determined, in large part, by the degree of harm that the action causes). IS I. See supra note 94. l52. Indeed, on this contractual view, the cri1ninal's preferences arc largely irrelevant. Even if the crin1inal were masochistic and ivished to be caught and punished, the deal would remain the same: by committing the criminal act, the criminal would still be exposed to all of the predictable consequences, consequences that most of us regard as highly undesirable. I 53. See supra note 149. 1366 [VOL 48: 1299, 2011] ｾｮｴ＠ Dangerous Psychopaths SAN DIEGO LAW REVIEW le, ny Ill for m/ w. fl to nd :he l!St m, so of IS lid 1at for D]e IS )Se lid .nd he 1as •Ok IS ; of :ad, o1." like Killer is morally responsible for murdering Victim; once again, he could not even understand that, or why, murdering her was morally wrong. Yet he still seems criminally responsible-guilty of the crimesimply because, in spite of his understanding that murder was against the law and the likely consequences of breaking this Jaw (arrest and punishment), he still went ahead, assumed the risk of suffering these consequences, and murdered her. 154 Indeed, it is mainly because of people like Killer that we have a criminal justice system in the first place. l f there were no such peopleif everybody were sufficiently deterred from breaking the Jaw by morality, respect for the Jaw, or fear of the Jaw-then there would be no need for criminal punishment at all. There would be a need only for criminal statutes and the threat of criminal punishment should these statutes be violated. Unfortunately, however, there are such people, people who, like Killer, are not sufficiently motivated, for whatever reason, by morality, respect for the Jaw, or fear of the law to comply with the law. lt is precisely for this segment of the population, tiny as it usually is, that we need to maintain and continue implementing the practice of criminal punishment. Indeed, it would be nonsensical to hold otherwise. lf we could not punish people for whom morality was not sufficiently motivating, then we could not punish virtually anybodv. By definition, a criminal is a person who did the criminally wrong thing and therefore-with the arguable exception of some ma/um prohibitum laws and a tiny number of arguably unjust criminal laws-the morally wrong thing. lt therefore remains a great puzzle why scholars seem to be unanimous in holding the opposite belief, in assuming that a person cannot be punished unless morality could have sufficiently motivated that person to comply. Ability to be moral has nothing to do with it. When it comes to detem1ining criminal responsibility, it is only the ability to be noncriminal-the ability to comply with the criminal law-that matters. 155 t as 05) <ith B. Why Moral or Emotional Understanding of the Law Is Not Necessary for Criminal Responsibility I be ;ely 1ed, ;till ;a rd One might argue that Appreciation-of-Moral-Wrongfulness jurisdictions get it right; that the reason Killer can be justly punished for 154. 155. See supra notes 78 and 146 and accompanying text See supra note 146 and accompanying text 1367 murder is not merely because he could have refrained from murdering but because he had a moral (or emotional or affective) understanding of the law against murder. He understood why murder is against the law. And this moral understanding-an understanding not merely that murder is against the law but also the moral basis for this legal prohibition-is what entitles us lo hold him responsible and punish him. If Killer lacked this moral understanding, then it would not be just to hold him responsible and punish him. And because this is the situation that psychopaths arc ｩｮＭｾ｢･｣｡ｵｳ＠ they understand only what is against the law, not the deeper moral basis for any given legal prohibilion--wc may not justly hold them responsible, and punish them, for their crimes. This objection, however, is flawed. There arc situations in which nonpsychopalhs, people just like you and me, do nol have a moral (or emotional or affective) understanding of prohibitions against certain behavior. And, despite their temptation to violate these prohibitions, they still refrain from this behavior for no other reason than that it is prohibited. It is not clear, then, why we cannot reasonably expect the same (often self-interested) self-restraint from the psychopath. Consider, for example, cocaine use. Many people who believe that there is nothing morally wrong with snorting cocaine still refrain from this activity for at least one of the first four reasons above: absence of desire, conscience, respect for the law, or fear of the law. It is not at all clear, then, why we cannot expect the same of everybody else, even if they happen to lack a moral understanding of this law and arc therefore not deterred by the first two reasons (absence of desire or conscience). Suppose that a ｰ｣ｲｳｯｮＭｾｃｩｨ｡＠ a strong desire to snort cocaine; Connie strongly believes that snorting cocaine is not morally wrong; Connie docs not respect the laws prohibiting cocaine use and possession; and Connie purchases and then snorts cocaine. The police somehow gel word of this and, after a lawful search and seizure, arrest Connie for these criminal acts. At trial, Connie might claim that she did not really know about the laws prohibiting purchase, possession, and use of cocaine because she lacked any moral or emotional understanding of these laws. But very few-including even most opponents of cocaine laws-would agree that this defense is viable. Connic knew that cocaine purchase, possession, and use were against the law and therefore that she was assuming the risk of being caught and punished when she violated these laws. The fact that she disagreed with, and therefore lacked a moral or emotional understanding of, these laws docs not excuse her. So much the worse, then, for psychopaths. Like Connie, they lack a moral/emotional understanding of laws prohibiting the crimes that they commit. For this reason, they might even disagree with these laws. But, for the same reason that this lack of a moral or emotional understanding 1368 ng of w. ler -JS ed )le tre ler lid ch or nn 1ey JS he 1at (VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW does not excuse Connie, it does not excuse psychopaths. Whether or not they agree with, or morally/emotionally understand, the law is inelevant. Just as one does not need a moral/emotional understanding of why purchasing, possessing, or using cocaine is against the law to be criminally responsible for committing these crimes, so too one does not need a moral/emotional understanding of why violating any other law is morally wrong in order to be criminally responsible for violating that lawY 6 Again, all one does need to be criminally responsible for breaking the law is knowledge of the law (and sufficient self-control, which will be discussed in Part lX.C). And the fact of the matter is that psychopaths generally know the criminal law. They know what the criminal law prohibits and what the consequences are if they still violate the law and get caught. At least there is nothing about their psychopathy that conflicts with, or removes, this knowledge. So unless a given psychopathic defendant can show that there are other reasons why he did not know Jill of all if Jre 1e; 1g; )ll; )W for lly of of me me :he ted I a 1ck 1ey ut, .ng 156. See .Yupra notes 78 and 146 and accompanying text; see also l-IARE, SUJJra note 5, at 143 ("[Psychopaths] are capable of controlling their behavior, and they are aware of the potential consequences of their acts .... They understand the intellectual rules of the game but the emotional rules are lost to them. This modern version of the old concept of 'moral insanity' 1nay make some theoretical sense, but it is not relevant to practical decisions about criminal responsibility. In my opinion, psychopaths certainly know enough about what they arc doing to be held accountable for their actions."); Hart, supra note 3, at 166 ("[Psychopaths'] understanding of the physical consequences of their actions is intact; they can use this ability to compensate for or overcome their impairment (at least to some extent), and the Jaw expects them to do so .... The Jaw typically holds that people with psychopathy are capable of and can reasonably be expected to use their intact cognitive skills and abilities to overcome their impairments when making decisions with potentially serious consequences. Similarly. the law expects that people with serious color blindness should be aware of and compensate for their handicap--knowing they may have difficulty discriminating between red and green traffic lights, they should either avoid driving or develop strategies to ensure they can drive safely."); Lippke, supra note 6, at 402 ("[G]iven the unattractiveness of the options other than preventive detention available to [psychopaths], the nonmoral reasons to which such individuals are responsive will likely counsel them to take their chances on remaining free ... and attempt to avoid arrest and prosecution."); Morse, supra note 6, at 51-52 ("[P]sychopathy docs not prevent agents from acting as the Jaw defines action, nor Further, does it prevent psychopaths from forming prohibited mental states. . . psychopaths are not excused because they do possess many rational capacities. They usually know the facts and arc generally in touch with reality, they understand that there are rules and consequences for violating them ... and they feel pleasure and pain, the anticipation of which can potentially guide their conduct. ... Finally, psychopaths do not suffer from lack of self-control as it is traditionally understood. They do not act in response to desires or impulses that are subjectively experienced as overwhelming, uncontrollable, or irresistible.") . 1369 that an otherwise criminal action was against the law, the defendant's argument that he did not know-or understand-the law will, and should, fail. 157 C. Psychopaths Have Sufficient Control over Their Behavior In this section, I will argue that contrary to the arguments in Part V.B-C, psychopaths do have sufficient control over their criminal acts to be criminally responsible, and therefore criminally punishable, for them. Even if they cannot "help" obtaining pleasure from hurting others, they still can help whether or not they try to obtain this pleasure to a degree that is sufficient for criminal responsibility even if it is not sufficient for moral responsibility. First, if the arguments in Part V.B-C worked, they would lead to the highly undesirable result that we would be committed to acquitting defendants who proved to the required standard that they were just too tempted to engage in criminal activity. But these are precisely the people we should be punishing, not acquitting, if only for consequentialist reasons -specific deterrence, general deterrence, and incapacitation. Second, the arguments in Part V.B-C in favor of acquitting Gacy on the basis of lack of control just seem wrong-morally wrong. If defendants committed a criminal act because they were simply too tempted to engage in this kind of activity, then they are more blameworthy, not less, than they would be if they engaged in the activity for any other reason. They victimized another human being not accidentally or because they were acting in self-defense but because they wanted to, because they derived pleasure from it-as much (or more) pleasure as Charlie derives from chocolate cake and Helen from heroin! 158 Indeed, if-contrary to factdrug addicts directly victimized others merely by possessing or using drugs, we would most likely hold them criminally responsible for inflicting this harm in spite of the fact that they were addicts. The same, then, applies to psychopaths. The fact that a given person-call him Bill-did not resist committing, say, a violent act-V-ing-against another person because it brought him such pleasure is the epitome of evil, not of sickness. It is why we regard dictators such as Hitler and Stalin as among the greatest criminals of the twentieth century; they caused millions to die [VOi for had full hun to t tre< con res· entl 1 lav. om bet bet "co Hitl oft ANE ordpoli Via VlO m1 We (M; Sta hur WP (In uni dia Ch Ind ext per THI 157. See Ward, supra note 79, at 20 ("The notion that people who know they arc making themselves liable to punishment but break the rules anyway should therefore not be punished is not one that many lawyers find persuasive."). 158. See HARE, supra note 5, at 40, 6 l-62 (quoting two psychopaths who compared the joy that they received from engaging in antisocial behavior to the "fix" or "high" that one gets from taking drugs). 1370 (l' ms risl cat pre §" 's id C, )e 11. ey ee or he ng JO ile ns on 1ts ge an ey :re ed )ill ng ng ｾｮＬ＠ iid on :ss. cl1e jie are not .red that [VOL 48: 1299, 201 I] Dangerous Psychopaths SAN DIEGO LAW REVIEW for their own selfish ends. 159 Whatever psychological problems they had, and psychopathy was clearly one of them, 160 we regard them as fully culpable. If they had been tried for their crimes (crimes against humanity and war crimes), they would have been found guilty and punished to the maximum degree allowable. 161 Regarding Bill, then, we should treat him accordingly-not by holding him nonresponsiblc and committing him to a psychiatric hospital but rather by holding him fully responsible and punishing him in proportion to the harm that he enthusiastically inflicted on another human being. Third, Bill has a very good reason for refraining from violating the law: the prospect of getting caught and punished. He knows that this is one very possible, if not likely, negative consequence of his illegal behavior. 162 If Bill still goes ahead and Vs, he does so with one of two beliefs: that he is not likely to get caught or punished or that apprehension 159. See ROSENBAUM, supra note 2, at 367 (expressing the preference for a which makes individual schc1ners, flesh-and-blood immoral agents"'contingent ｶｩｳｯｮｾ＠ Hitlcr himself-responsible for Hitler's crimes, rather than impersonal, inexorable forces of history"). See generally TIMOTHY SNYDER, BLOODLANDS: EUROPE BETWEEN HITLER AND STALIN (2010) (offering ample evidence that Hitler and Stalin both deliberately ordered, with complete indifference, millions of human beings to be killed for strategic, political, and ideological reasons); Christian lngrao, General Chronology of' Nazi Violence, ONLINE ENCYCLOPEDIA MASS VIOLENCE (Mar. 14, 2008), http://www.mass violence. org/l MG/article_ PDF/General-Chronology-of-Nazi-Violence. pdf (documenting in great detail Hitler's genocides, crimes against humanity, and war crimes); Nicolas Werth, Mass Crimes Under Stalin (1930--1953), ONLINE ENCYCLOPEDIA MASS VIOLENCE (Mar. l 4, 2008), http://www.massviolence.org/IMG/articlc _PDF /Mass-crimcs-underStalin-1930-1953 .pdf (describing in great detail Stalin's genocides, crimes against humanity, and war crimes). l 60. Indeed, one book about Hitler is titled The Psychopathic God. See RALPH G.L. WAITE, THE PSYCHOPATHIC GOD: ADOLF HITLER (Da Capo Press 1993) (l 977). 161. See. e.g., Prosecutor v. Jelisic. Case No. !T-95-10-A, Appeal Judgment, ii 70 (Int'! Crim. Trib. for the Former Yugoslavia July 5, 2001), available at http://www. unhcr.org/refworld/pdfid/4147fcad4.pdf ("[T]here is no per se inconsistency between a diagnosis of the kind of immature, narcissistic, disturbed personality on which the Trial Chamber relied and the ability to form an intent to destroy a particular protected group. Indeed ... it is the borderline unbalanced personality who is more likely to be drawn to extreme racial and etlmical hatred than the more balanced modulated individual without personality defects."); see also United States v. Goering (IMT Judgment), in l TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, at V (1947) (omitting to acquit any of the twenty Nazi high officials on the grounds of insanity). l 62. See supra note l 56. And if this is not the case-if Bill does not know that he risks crin1inal punishment by performing a certain criminal act-then he 1na)' be a good candidate for the insanity defense on the basis of the M'Naghten rule or the appreciation prong of MPC § 4.0l(l) rather than on the basis of llR or the volitional prong of MPC §4.0l(I). 1371 and punishment are not so bad in the first place. 163 Whichever belief is at work, Bill is voluntarily assuming the risk of apprehension and punishment when he Vs. 164 And it is this voluntary assumption of risk that precludes excusing Bill and justifies punishing him instead. Fourth, the arguments in Part V.B-C that the psychopath is like the addict insofar as both are powerless to resist their overwhelming urges confuses difficulty with inability. To be sure, Smoker's addiction to nicotine makes it difficult for her to resist the temptation to smoke and, as the temptation increases, proportionally causes her to discount all of the reasons that she wants to quit smoking. But even given her addiction, Smoker is the one who is doing this sudden discounting of her values and desire to quit. Yes, her addiction is motivating this discounting. But, difficult as it may be, it is still entirely up to Smoker to resist this discounting and reassert her longterm reasons for quitting over her short-term reasons for giving in. 165 163. See Lippke, supra note 6, at 402 ("(G]iven the unattractiveness of the options other than preventive detention available to [psychopaths], the nonmoral reasons to \Vhich such individuals are responsive will likely counsel them to take their chances on remaining free ... and attetnpt to avoid arrest and prosecution."). 164. See Levy, supra note 150, at 281-93 (explaining why voluntary assumption of risk justifies greater punishment for greater harm, all else being equal). 165. See GENE M. HEYMAN, ADDICTION: A DISORDER OF CHOICE 116 (2009) ("Addiction depends on general principles of choice, the unique behavioral effects of addictive drugs, and individual and environmental factors that affect decision making. . . . For humans, virtually all environments support more than one activity, so that in effect most behavior is choice behavior. Indeed, most of what all mammals do most of the time is voluntaiy."). There is a second argument that leads to the same conclusion, in other words, that Smoker is responsible for whether or not she decides to smoke: Smoker is the one who started smoking way back when. Presumably nobody forced her to. Even peer pressure does not count as force and is perfoctly consistent with culpable, autonomous choice. Peter de Man1effe, A,gainst Drug legalization, in THE LEGALIZATION OF DRUGS: FOR & AGAINST I08, 154 (2005) ("It is an error based on science fiction to think that heroin addiction tun1s a person into a zombie who is completely unable to guide his actions by his own deliberative judgment. Heroin use may be difjiculr for some people to control ... but this does not mean that it is entirely outside their control. This is because a person always has the mental capacity to decide to stop using heroin or to form the intention to do so. Because heroin is addictive ... this intention may not be entirely effective .... But a person also has the mental capacity to decide what she needs to do in order to succeed in acting in accordance with her original intention·-to form the intention to get whatever help she needs to stay clean that day, for example."); Slobogin, supra note 47, at 36-37 ("Even conduct that the actor perceives to be the product of strong urges is 'willed,' in the sense that the actor decides to engage in it. The addict who steals to feed a habit, the sexual predator who molests a child, and the psychotic individual who kills all intend, and often plan, their actions. Further, they all probably could have avoided those actions, in the sense that they knew of and were able to choose other options. Finally, for many of these individuals the criminal act is pleasurable, rather than a method of avoiding psychological pain, or is at least a combination of the two. For all of these reasons, identifying precisely how such actions are 'compelled' is difficult. While such people may seem to have overwhelming urges, they still choose to act on those urges and they do not seem to be compelled in the 1372 [v T re JS A re Ul B n m SI tb sa or gr er fc Ct rn 4 ol Ct b1 th bt L Ct IS Ct a1 tt la ft 01 Ii If rr T d P' ft A Cl a< [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW ) f s 1 1 5 This argument, incidentally, leads to the conclusion that Smoker 1s responsible for whichever way she decides this inner conflict. 166 In case one still doubts this point, consider the following scenario. It is the very first day of Smoker's attempt to quit smoking "cold turkey." At I 0:00 a.m., the urge to smoke first makes an "appearance." Smoker resists it and occupies herself with another activity. At 10:10 a.m. the urge to smoke increases in intensity. Smoker tries harder to distract herself. By 10:20 a.m., Smoker decides that she just cannot go on any longer and runs to her desk for a cigarette and lighter. From these facts alone, one might argue that Smoker lost control over her decision whether or not to smoke. Although she tried to resist her ever-increasing desire to smoke, this desire ultimately overcame Smoker and compelled her to smoke. IS 0 n I) if n :o lo IC :o ly th IE m IS se ly le ty er at or es :a IS. :w he at ch ng he same way a person acting with a gun pointing at his head is compelled." (footnotes omitted)). 166. See SAMENOW, supra note 45. at 40-41 ("[W]e choose which peer group or No criminal l have evaluated or counseled was forced into groups to belong to. . crime. He chose to associate with risk-taking youngsters who were doing what was forbidden. . . . Sometimes alone, but more often with youngsters like himself, he commits more and more crimes, bolstering his self-image in the process and finding that no one can do anything for very long to bring a hall to his spiraling criminality."); id. at 41 ("The view that a youngster is led or driven into crime to gain status ignores the role of personal choice. . . . From the time he was little, the delinquent has chosen the company he keeps and has determined what kind of status he wants."). So Smoker brought this addiction upon herself when she could have chosen to avoid it, which means that even if she cannot do otherwise now. she is still responsible for her addictive behavior because she could have avoided becoming an addict in the first place. See Lippke, supra note 6, at 395 (distinguishing between "primary moral control," which is control over behavior al the time of performance, and "secondary moral control," which is indirect control over later behavior, control over the current action only by means of control over previous causally relevant actions); Morse, supra note 10, at I 071 ("lf an agent knows from experience that the urges are recurrent and that on previous occasions the agent has acted on those urges in a state of diminished rationality, the agent also knows during more rational moments that he is at risk for acting in such a state in the future. lt is a citizen's duty in such circumstances to take all reasonable steps to prevent oneself from acting wrongly in an irrational state in the future, including drastically limiting one's life activities if such an intrusive step is necessary to prevent serious harm. If the agent does not take such steps, the agent may indeed be responsible, even if at the moment of acting he suffers from substantially compromised capacity for rationality. The situation would be analogous to the case of a person who suffered from a physical disorder that recurrently produced irrational mental states or blackouts during which the person caused harm, but who did not take sufficient steps to prevent such harm in the future. We would surely not excuse such an agent."). But see Douglas N. Husak, Addiction and Criminal Liability, 18 LAW & PHIL. 655, 668-71 (1999) (arguing that culpability for causing oneself to become an addict does not necessarily mean that addiction should not be a recognized excuse in criminal Jaw). 1373 But this conclusion would be hasty. The fact pattern above does not say that Smoker actually ended up smoking. Instead, as it turns out, when she got to her desk, all the cigarettes and lighters were gone. Smoker's husband had thrown them all out in order to help her successfully quit. Of course, Smoker is not happy about this state of affairs. For the next few hours, she undergoes a roller coaster of feelings and emotions-anger, frustration, panic, and despair, alternating with brief surges of renewed resolve and optimism. During this same period, she develops the same symptoms that she would have if she contracted the flu-nausea, sweating, headaches, and fatigue. After a few more episodes like this over the next forty-eight hours, Smoker actually succeeds in quitting. She did not, then, have to smoke at l 0:20, no less afterward. She survived perfectly well without it. And if this had been the counterfactual scenario, not the actual one, the same conclusion would follow. However she might have felt and whatever she might have thought had she ended up smoking at 10:20, the fact that she could have gone through this alternative nonsmoking scenario proves that she could . d smo k"mg. 167 have res1ste Indeed, most young children are socialized by being denied what they strongly desire-for example, candy and expensive toys. They are obviously disappointed-often angry-when their parents fail to satisfy their requests or demands. But they recover quickly and survive just fine, which proves that they do not have to cat the candy or acquire any given toy. The same, then, applies to adults. If children can undergo nonsatisfaction of their strongest desires, no matter how dissatisfying and unpleasant, then certainly adults can as well. 167. See Husak, supra note 166, at 681 ('"fhe desire to avoid the pain of withdrawal provides a woefully inadequate explanation of why patterns of consu1nption atnong users of many drugs ... tend to be so compulsive. l\llany users would continue to report a craving, and succun1b to drug use, even if no physical \Vith<lra\va! sy1npton1s occurred. Accounts that emphasize the desire to avoid withdrawal distort the phenomenology of addiction from the perspective of most addicts. In particular, the hypothesis that persons consume drugs in order to prevent withdrawal cannot begin to explain why current addicts find it hard to quit, or why former addicts find it easy to relapse." (footnotes omitted)); de Marneffc, supra note 165, at 153-54 ("Some may believe ... that heroin prohibition is justified by its benefits to n1ature adults because once a person uses heroin, whatever his age, he is 'hooked,' because he cannot stop using it without agony, and because habitual heroin use turns a person into a zornbie with no capacity for genuine self-direction. This picture, however, has little basis in reality. For one thing, although heroin is certainly addictive . _ . a large proportion of those who use the drug do not develop a self-destructive habit. For another thing, those who develop a habit may nonetheless stop \Vithout great suffering. (The discornfort involved in kicking a habit is commonly likened to having the flu for a few days.) Finally, although habitual heroin use can be bad for a person in depressing his motivation, it does not turn a person into a zombie whose capacities for self-direction arc no longer functioning at all." (footnote omitted)). 1374 Dangerous Psychopaths [VOL. 48: 1299, 2011] SAN DIEGO LAW REVIEW Likewise with Bill. Whichever way Bill decides depends on what relative weights he assigns to his desire to V and his desire to remain free from criminal punishment. And even given his psychopathy, it is up to him, and therefore a matter of criminally responsible choice, what relative weights he assigns here-just as it is when he is not performing criminal acts, which in fact is most of the time. 168 Bill has the capacity to bring other considerations to bear against his desire to V and to act on these other considerations. Although Bill's psychopathy may make it more difficult for him to give greater weight to his long-term desire to remain free from criminal punishment over the short-tenn satisfaction of V-ing, more difficult hardly means too difficult, no less impossible. 169 X. SHOULD WE PREYENTIVEL Y COMMIT DANGEROUS PSYCHOPATHS? If I am correct in Part IX that psychopaths are criminally responsible for their behavior, then it follows that they should be criminally punished for their criminal acts like most other adults rather than acquitted and civilly committed like defendants found to be insane. But does this position that psychopaths are criminally responsible and punishable mean that we cannot commit dangerous psychopaths before they do any hann? If so, isn't this an undesirable situation? In this Part, I will argue that society should be allowed to preventively commit Ｍﾷｾ f 1 j 1 l i s 1 a e 168. See HARE, supra note 5, at 60 ("Although psychopaths have a 'hair trigger' and readily initiate aggressive displays, their ensuing behavior is not out of control. On the contrary. when psychopaths 'blow their stack' it is as if they are having a temper tantrum; they know exactly what they arc doing. Their aggressive displays are ·cold;' they la?,k the intense emotional arousal experienced by others when they lose their temper. ). 169. See Lilienfeld & Arkowitz, supra note 14 ("Even if the core personality traits of psychopaths are exceedingly difficult to change, their criminal behaviors may prove more amenable to treatment."); Hart, supra note 3, at 166 ("People with psychopathy have fundamental difficulties maintaining attention or interest and exerting effort with respect to goal-directed activity. . . [A]lthough there is little doubt that volitional impainnent of this sort influences behavior on a day-to-day basis, it is possible for people with psychopathy to perceive alternative courses of action, make choices, and con1pcnsatc for or ovcrcon1c their volitional i111pairn1ent (at least to some extent) using other skills or abilities . . [A ]!though they may want to engage in antisocial activity more often than do others, people with psychopathy are capable of exercising true agency with respect to this decision and the law expects them to do so."); Morse, supra note 6, at 52 ("[P]sychopaths do not suffer from lack of ｳ･ｬｩｾ｣ｯｮｴｲ＠ as it is traditionally understood. They do not act in response to desires or impulses that are subjectively experienced as overwhelming, uncontrollable, or irresistible."). 1375 people whom it knows to be dangerous and psychopathic even if ( 1) they have not yet committed a crime and (2) they would be criminally responsible for crimes if they did commit them. 170 A. Why Defendants Eligible.for Criminal Punishment (Post-Crime) Are Generally Not Eligiblejor Preventive Commitment (Pre-Crime) and Vice Versa The questions above arise from a general assumption that is deeply rooted in our criminal justice system: generally speaking, all else being equal, one and the same person cannot be both eligible for involuntary civil commitment before committing a crime (what I will refer to as "preventive commitment") and eligible for criminal punishment after committing a crime. All else being equal (once again), a person must be one or the other-either (I) eligible for criminal punishment (after committing a crime) and not eligible for preventive commitment (before committing a crime) or (2) eligible for preventive commitment (precrime) and ineligible for criminal punishment (post-crime). 171 The reason 170. See John McMillan & Luca Malatesti, lntroduction: Interfacing Law, Philosophy, and Psychiatry, RESPONSIBILITY AND PSYCHOPATHY: [NTERFACfNG LAW. PSYCHIATRY, AND PHILOSOPHY, supra note 5, at 1, 1 (noting that "the United Kingdom ... and other countries have aimed at making it easier to preventively detain those with ASPD who are judged to be a risk to the public"); Slobogin, supra note 47, at 40 (arguing that "people who are sane" should "be subject to long-term preventive detention" when they "'signal[] a desire to ignore society's most significant norn1s regardless of the circumstances"). But see Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1432 (2001) ("[T]he trend of the last decade-the shifting of the criminal justice system toward the detention of dangerous offenders-is a move in the wrong direction. The difficulty lies not in the laudable attempt to prevent future crime but rather in the use of the criminal justice system as the vehicle to achieve that goal. The approach perverts the justice process and undercuts the criminal justice system's long-term effectiveness in controlling crime. At the same time, the basic features of the criminal justice system make it a costly yet ineffective preventive detention system."). 17 l. See Morse, supra note 10, at 1069-70 ("[l]t appears that most mentally abnormal sexual predators are fully responsible for their sexually predatory conduct, even if they suffer from a serious, recognized disorder, and, thus, they may fairly be criminally convicted for their sexual crimes. But, for the same reason, most such predators do not meet the necessary non-responsibility standard that might justify involuntary civil confinement. Therefore, 1 am claiming that, holding the agent's capacity for rationality constant, the eligibility for punishment and the eligibility for involuntary civil confinement are mutually exclusive." (footnote omitted)); id at 1073 ("[l]f an agent is sufficiently rational to deserve criminal conviction and punishment, the most intrusive, afflictive actions the state can impose on a citizen, the agent is surely rational enough to be left at liberty until the agent commits a crime or becomes genuinely non-responsible. Civil commitment should be justified only in cases in which the agent's rationality is sufficiently impaired also to avoid criminal responsibility."). But see Lippke, supra note 6, at 387 (challenging this dichotomy between criminal 1376 [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW for this dichotomy is that if a person is eligible for criminal punishment, then that person is not insane. But if a person is not insane, then she may not be preventively committed. Preventive commitment-again, involuntary civil commitment-requires people to be both dangerous (to themselves or others) and insane. 172 The same point can be formulated in terms of degrees rather than dichotomies. There is an inverse correlation between the degree to which agents are morally responsible for their behavior and the ease with which society may preventively detain them if they are suspected of being dangerous to themselves or others. The stronger the former, the weaker the latter; and, conversely, the stronger the latter, the weaker the former. Of course, this inverse correlation is no accident. All else being equal, we prefer maximizing the liberty of morally responsible agents despite the risks that some of these agents may pose to themselves or others than punishment and preventive co1nn1it1nent by arguing that there is little n1atcrial or symbolic difference between them). 172. See Kansas v. Hendricks, 521 U.S. 346, 358 (1997) ("A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil comn1ittnent statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality."'); Foucha v. Louisiana, 504 U.S. 71, 77 (I 992) (citing precedent for the proposition that a "committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous," and "the acquittee may be held as long as he is both mentally ill and dangerous, but no longer. ... [because] 'the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society"' (quoting Jones v. United States, 463 U.S. 354, 368, 370 (I 983)) (internal quotation marks omitted)); Hai1, supra note 3, at I 67 ("Two types of commitment are permitted under the civil Jaw of various Anglo-American jurisdictions. The first is traditional civil commitment under mental health statutes. It typically ... requires they pose an imminent risk for violence due to acute mental disorder. ... The second, newer form of civil commitment is under specialized statutes, such as sexually violent predator or (proposed) dangerous and severe personality disorder statutes. that target offenders nearing release from a custodial sentence for a violent offense. lt typically requires that people have committed serious violence or sexual violence in the past, and they also pose a persistent risk for future (sexual) violence due to chronic mental disorder." (citations omitted)); Morse, supra note 6, at 45 ("The agent must be dangerous because he or she is suffering from a disease (especially a mental disorder) ... .");id at 57 ("Every jurisdiction in the United States provides for involuntary civil commitment of people who suffer from mental disorder and are dangerous to themselves or others as a result."). For a detailed summary of earlier Supreme Court jurisprudence establishing the constitutional contours of preventive commitment. see Edward P. Richards, The Jurisprudence of Prevention: The Right of Societal Self Defense Against Dangerous Individuals, I 6 HASTINGS CONST. L.Q. 329, 352-84 (1989). 1377 minimizing these risks by confining whomever we suspect is dangerous. We accept this position because it is mandated by the Constitution. Specifically, the Fourth, Fifth, Eighth, and Fourteenth Amendments protect ''the people" against, among other things, unrcasond'lc :-;carches and seizures, cruel and unusual punishment, and deprivation of life, liberty, 171 or property without due process of law. All of ｬｨｾｳ｣Ｚ＠ constitutional principles would be violated if lhc stale detained or imprisoned morally responsible people without having sufllcienl grounds l<' arrest them or to imprison them. The Constitution grants this general right against groundless detainment and imprisonment for several reasons. First, il is grnssly unjust lo confine somebody who docs nol deserve lo be confined. And individuals who arc sufficiently responsible fi.ir their actions do not deserve lo be confined if they have not been convicted of a crime (after receiving full due process) and there is no probable cause for arresting thcm. 174 Second, if people did nol have this right against groundless detainment and imprisonmcnl, we would be living in a police slate. The police would have the power lo detain and imprison whomever they or their political superiors--- wanted and for whatever rer1:;,1ns. History has repeatedly taught us that when the police have this powc1 - or. conversely, when the people lack an enforceable right against this power !hen their supremely valued interests (life, liberty, properly, physical well-being, and emotional well-being) will be seriously impam:d for very bad 175 reasons· -usually baseless prejudice, paranoia, or vengeance. Third, the more responsible individuals arc for lhi:ir behavior, the more they can control it; and the more they can control their behavior, the more susceptible or "sensitive" they may be lo warnings and threats of punishment. Therefore, the more responsible individuals are for their behavior, the less need there is for the stale lo step in and actively prevent them from hurting themselves or others. 173. U.S. CoNST. amends. IV, V, VIII, XIV. 174. See Lippkc, supra note 6. at 403---05 (suggesting that "d:1ngcrous o/'l'cndcrs who arc son1cwhat responsive to 1nora! considerations" should nut be conrincd unless and until they con1111it cri1ncs). 175. See. ･ＩｾＮＬ＠ Paul l-L 1-laagcn, /1 flornhurg C'hilllhorHI: The f:'ar(1· L(/l' ol I lerhert Bemslein, 13 DUKE J. COMP. & INr'1. L. 7, 13 (2003) ("llitler persuaded President or l-·lindcnburg to sign an cn1crgcncy decree on February 28, I 933 that suspc11dcd 111osl the guarantees of personal freedon1 contained in the ('n:nnan ('onstitution in order to pcnnit the govcrninent to defend ilsclf against ·con1111unist acts of "''iolenc..: c11da11gt..·<'ing the state."' (quoting Vcrordunung des R_cichspriisidcnt zun1 Schutz von \ nlk u11d Staat [Decree of the R. cich's President on the Protection of the People and the Stalcl Feb. 2R, 1933, RE!CHS<iF.SETZBLATT [RCJBL,J at R3 (Cicr.L (l\'ailahlc at http://\\'\V\v.docun1ent archiv.dc/ns.html) ). 1378 (VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW Given this last point, and given the premium we place on individual liberty, it is generally thought that we must err on the side of(!) hoping that the threat of punishment will deter the average person rather than on the side of (2) detaining her indefinitely. Position (2) would reduce the risk of danger far more than ( l) would. But (I) still trumps (2) because, all else being equal, we prefer maximizing liberty to minimizing danger. Indeed, this is the risky tradeoff that a free society generally makes. 176 I will discuss this tradeoff further in Part X.D. It matters very much, then, whether or not society-or at least a given jurisdiction-regards psychopathy as insanity. If it does, then it would seem that psychopaths are eligible for preventive commitment (precrime) but not criminal punishment (post-crime). If it does not, then it would seem that psychopaths are eligible for criminal punishment. I have argued above that psychopaths are not insane, do not therefore qualify for the insanity defense, and are therefore eligible for criminal punishment. It would seem to follow, then, that (pre-crime) they are not eligible for preventive commitment-no matter how dangerous they may be. B. The Middle-Ground Approach: Psychopathy as Mental Illness But is this the right conclusion? Or should we opt for the opposite: psychopaths are insane and therefore not criminally punishable but may (therefore) be preventively committed if (pre-crime) they are found to be dangerous to themselves or others? It seems that there is at least one way in which we can have our cake and eat it too--one way in which we can both preventively commit psychopaths whom we find to be dangerous (pre-crime) and criminally punish them if they are found guilty of crimes. The key is to recognize that psychopathy may very well be regarded as a melllal illness and therefore a condition that makes psychopaths eligible for preventive commitment (as long as they are also dangerous) but is not severe enough to be regarded as insanity (that is, is not severe enough to be considered an inability to know/appreciate right and wrong or to act in conformity with this knowledge/appreciation). Jn other words, the story can be made a bit more complicated than Part X.A would suggest. And this additional complication makes room for a category of people 176. See Foucha, 504 U.S. at 83 ("Jn our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." (quoting United States v. Salemo, 481 U.S. 739, 755 (1987)) (internal quotation marks omitted)). 1379 who might, all else being equal, be simultaneously eligible both for preventive commitment (pre-crime) and for criminal punishment (postcrime). The people who fall into this category would satisfy two conditions: ( 1) the psychiatric hospital conducting the preventive commitment evaluation would find them to be mentally ill and (2) the trial court would find them to be either not mentally ill at all or mentally ill but not insane. This "middle" category-the category between sanity and insanity-is captured by the increasingly common "guilty but mentally ill" verdict. 177 The question, then, is not whether or not psychopathy is a form of insanity. The question is whether or not psychopathy is a form of mental illness. If it is, then psychopaths qualify for involuntary civil commitment if they are deemed to be dangerous as well. 178 If not, then psychopaths, no matter how dangerous, may not be involuntarily committed. Psychologists and (therefore) the courts generally do not consider psychopathy to be a mental illness for two reasons-one historical/ intuitive, the other formal/technical. The first-historical/intuitivereason is that mental illness has historically been associated with false beliefs about reality--delusions-and psychopathy does not typically involve delusional beliefs. Even though this association between mental illness and delusional beliefs is flimsy-that is, even though there are mental illnesses that do not involve delusional beliefs such as mood disorders, anxiety disorders, and depression 179-many are still prejudiced by it. l 77. See Debra T. Landis, Annotation, "Guilty but Mentally Ill" Statutes: Validity and Constniction, 71 A.L.R.4TH 702 (201 l); 2 l AM. JUR. 2D Criminal Law§ 38 (2008); 22 C.J.S. Criminal Law § l30 (2006). Another way to dissolve the initial tension between preventively committable (pre-crime) and punishable (post-crime) is to show that there are other categories of people who might, all else being equal, be simultaneously ineligible for both preventive commitment (pre-crime) and criminal punishment (post-crime). Once again, preventive commitment is involuntary civil commitment. And involuntary civil commitment requires the defendant to be both dangerous and mentally ill. It follows that a person who is either not dangerous or not mentally ill may be ineligible for preventive commitment. But the same nondangerous or nonmentally ill person might still be deemed insane by a court after she is found guilty of committing a crime. These two descriptions (nondangerous or nonmentally ill (precrime) and insane (post-crime)) are compatible-attributable to the same person, all else being equal-if (I) the person was insane all along and went from being nondangerous to dangerous; (2) the person became severely mentally ill or (insane) before committing the crime; or (3) the hospital conducting the preventive commitment evaluation and the court conducting the psychological evaluation disagree about the person's mental status-with the hospital concluding that the person was not sufficiently mentally ill for the purposes of involuntary commitment and the court concluding that the person was insane. 178. See supra note 172 and accompanying text. 179. DSM-IV-TR, supra note 52, at 345. 1380 [VOL. 48: 1299, 2011) Dangerous Psychopaths SAN DIEGO LAW REVIEW The second-fonnal/technical-reason that psychopathy is not generally regarded as a mental illness is because, as we have seen, it is not included in the DSM-IV-TR. We saw one reason for this omission in Part 11.D; again, while the DSM-IV-TR's construct of ASPD focuses on the behavioral, psychopathy is largely about the internal. Another reason is that the psychological community does not (yet) believe that psychopathy meets the DSM-IV-TR's conception of mental disorder: [E)ach of the mental disorders [in the DSM-JV-TR] is conceptualized as a clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (e.g., a painful symptom) or disahility (i.e., impairment in one or more areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important Joss of freedom .... Whatever its original cause, it must currently be considered a manifestation of a behavioral, psychological, or biological dysfunction in the individual. Neither deviant behavior (e.g., political, religious, or sexuaO nor conflicts that are prin1ari/y bet'tveen the individual and society are 1nental disorders unless the deviance or conflict is a s,vn1ptorn of a dysfi111ction in the individual. l 80 Apparently, then, although the psychological community recognizes that psychopaths are deviant and antisocial, it does not regard psychopaths as sufficiently distressed, disabled, dysfunctional, or vulnerable to qualify as suffering from a mental disorder; although psychopaths may be highly disposed toward antisocial behavior, they can still generally function well enough to be considered nonnal. 181 I will argue in this section, however, that this conclusion is false; that although courts do not generally recognize psychopathy as a mental illness, they should not only (1) because it is (for all the reasons given in Parts II, V, and VII.C) but also (2) because it will enable society to preventively commit the people in this group that are thought to be dangerous and thereby prevent them from engaging in criminal activity. 180. id at xxxi (emphasis added). 181. See supra note 141 and accompanying text; see also Hart, supra note 3, at 162 ("A few theoretical models reject the notion that psychopathy is a mental abnormality at all. First, some interpersonal and behavioral genetic theories view psychopathy as an extreme variant of the same personality traits found in all people. According to these any differences between people with versus without the disorder are theories . quantitative rather than qualitative in nature-that is, a matter of degree rather than kind. Second, some sociobiological and evolutionary theories view psychopathy as a specific adaptation to environmental conditions. . . [T)he genetic disposition confers an advantage in te1ms of enhanced reproductive success for affected individuals." (citations omitted)). 1381 C. Dangerous but Not Mentally Ill It might seem at first as though we may easily preventively commit dangerous psychopaths simply because they are dangerous. [ndeed, society has little problem quarantining individuals carrying rare and deadly viruses simply because they present a danger of infecting others. 182 Still, people who are dangerous in a different way-dangerous in the sense of being inclined toward antisocial behavior-may not be as easily "quarantined" or preventively committed. If a person is dangerous in this latter sense-not by carrying a disease but simply by inclining toward antisocial behavior-then we cannot preventively commit that person unless she is also mentally ill. 183 And this conclusion itself leads to a counterintuitive result: we cannot preventively commit nonmentally ill people who clearly express their intention to harm or kill others! 184 Suppose, for example, that a twenty-five-year-old law associate, Angry, says to a fellow law associate, Confidant, that if Angry's boss, Meanie, yells at Angry one more time, Angry will kill him. 185 Suppose also that Confidant, like everybody else who has interacted with Angry, believes that Angry is a sane, rational individual. Confidant may conclude one of two things: either that Angry means what he says or that Ani,rry is simply exaggerating, blowing off steam, and would never actually dare to kill, no less hurt, Meanie. lf Confidant believes the latter, she will likely do little more than try to calm Angry down. ln this case, Confidant should make sure that her belief is correct; if she is wrong, the consequences of her failure to do anything more could be drastic. If, however, Confidant believes the former, she has at least a moral obligation and possibly a legal obligation (in jurisdictions that recognize the crime of misprision of felony or of bad-Samaritanism 186 ) to take steps to ensure that Angry is prevented from carrying out his threat. 182. See 22 U.S.C. §§ 264, 266 (2006) (codifying federal authority to detain persons who may have been exposed to communicable diseases). 183. See supra note 172 and accompanying text; see also Edward P. Richards, Dangerous People, Unsafe Conditions: The Constitutional Basis fiJr Public Health Surveillance, 30 J. LEGAL MED. 27, 28, 31-32 (2009) (showing how the laws governing preventive commitment of people who exhibit dangerous behavior developed from the laws governing quarantine (people who present the danger of viral infection) and therefore why the former may be considered to fall under public health law). 184. See Lippke, supra note 6, at 383 ("One of the more vexing problems faced by authorities in the criminal justice system is the existence of individuals who have served their sentences for their previous crimes but seem very likely to commit further, quite serious offenses involving violence against their fellow citizens if they are released from prison."). 185. For a similar example, see Morse, supra note 6, at 46. 186. See Levy, supra note 68, at 616--21, 620 n.27 (noting that four states currently criminalize bad-Samaritanism, five states criminalize failure to report ongoing crimes, and several jurisdictions still recognize misprision of felony in one form or another). 1382 [VOL. 48: 1299, 2011) Dangerous Psychopaths SAN DIEGO LAW REVIEW There are a number of different ways in which Confidant may attempt to prevent Angry from trying to hurt or kill Meanie. Some are directphysically incapacitating Angry by handcuffing him or taking all of his knives and other weapons away from him. For obvious reasons, however, both of these approaches are impractical. Regarding the latter approach, if Confidant openly tries to remove Angry's weapons, she will probably meet with Angry' s resistance, if not retaliation, and may also be guilty of theft or attempted theft. Regarding the former approach, even if Confidant somehow manages to handcuff Angry, she may be guilty of false imprisonment, and the handcuffs will have to be removed sooner or later, at which point Angry will still pose a threat to Meanie. Instead, the more effective and more clearly legal approach is indirect: Confidant should alert the authorities-most likely, the police-to Angry's threat and then leave the prevention up to them. Suppose, then, that Confidant calls the police, tells them that Angry has expressed his intention to kill Meanie, and asks them to investigate the situation. It might at first seem that the police should lock Angry up until he renounces his desire to kill Meanie. But this would be an oveneaction. Angry might just have been "talking a good game"fantasizing about killing Meanie or blowing off steam. Or he might have meant it at the time but, like many hotheads, needed only to calm down. Or he might have meant it but, as time went on, would have given up on his plan for whatever reasons-fear, laziness, change of attitude toward Meanie, or advice from others. Suppose further that the poliee approaeh Angry and ask him what is going on. If Angry denies that he expressed a genuine intention to kill, they may still have the right to search Angry' s person and possibly his office or home for weapons. Should they find any, they might have probable cause to arrest Angry for illegal gun possession or even attempted murder. But suppose that they do not find any further evidence of criminal activity or corroborating evidence of Angry's intent to kill Meanie. Because the police have no further grounds to doubt Angry's denials, they must then tenninate the questioning and release Angry from this "custodial" detention. With the exception of a minority of jurisdictions, there is no law, criminal or otherwise, prohibiting people from expressing violent fantasies or intentions in private communications to third 1383 parties-that is, to people who are not the fantasized or intended victims. 187 Still, there are three situations in which the police might detain Angry for a longer period of time in order to investigate the situation further and to minimize the danger, if only temporarily, that Angry poses to Meanie. The first situation: Angry has a history of violence or dangerousness, as evidenced either by a criminal record or complaints filed against him by family, friends, or acquaintances. The second situation: the police legally obtain corroborating evidence-for example, pictures underneath Angry's desk depicting Meanie with crosshairs drawn over his face and quotations such as "I will kill you!" and "Die! Die! Die!" scrawled across. The third situation: Angry actually admits to the police that he meant what he said, that he does intend to kill Meanie if Meanie yells at him again. Suppose that the third of these situations occurs. Suppose, that is, that Angry admits to the police that he will kill Meanie if Meanie yells at him again. The police may certainly detain Angry to ask him more questions and possibly, again, search his person and his property for weapons or other evidence of the commission of a crime. But what form may this detention take? Merely keeping him in his office? Taking him down to the station? Imprisoning him? Involuntarily committing him to a psychiatric hospital? The answers to these questions will vary across jurisdictions and depend on the totality of the circumstances. As a general rule, however, the more likely it seems to the police that Angry will attempt to hurt or kill Meanie, the more justified they are in detaining Angry for a longer period of time. Still, in the end, the maximum amount of time that they may temporarily imprison Angry is generally two to three days. Some might argue that the police should be able to detain Angry beyond a few days-indeed, for as long as it takes to protect Meanie 187. There are a few courts that recognize these third-party statements as criminal threats. Some of these courts require the threatmaker to issue the threat with the intention or expectation that the third party will then communicate this threat to the intended target. See. e.g., United States v. Parr, 545 F.3d 491, 498, 500 (7th Cir. 2008). cert. denied, 129 S. Ct. 1984 (2009); United States v. Patillo, 431F.2d293. 297-98 (4th Cir. 1970). One court, however, has suggested that this intention or expectation is not necessary for the third-party statement to be criminal. See Beard v. United States, 535 A.2d 1373, 1378 (D.C. 1988) ("The crime was complete as soon as the threat was communicated to a third party, regardless of whether the intended victim ever knew of the plot. ... Even granting that a threat must be uttered, transmitted, and communicated, it does not necessarily follow that the communication must be to the intended victim rather than to a third party." (citations omitted)); see also Alec Walen, Criminalizing Statements of Terrorist Intent: How To Understanll the Laiv Governing Terrorist Threats. and Why It Should Be Used Instead of Long-Term Preventive Detention, 101 J. CRIM. L. & CRIMINOLOGY 803, 834--46 (201 l) (arguing for criminalizing mere statements of criminal intent). 1384 [VOL. 48: 1299, 201 l] Dangerous Psychopaths SAN DIEGO LAW REVIEW from him, But this is not the Jaw. The law across all jurisdictions is that the state may detain Angry-and thereby protect Meanie-beyond a few days only if they either arrest Angry or preventively commit him in a mental hospital. And in order to arrest Angry, they must have probable cause to believe that he committed, or is committing, a crime. Ex hypothesi, in this hypothetical, they do not have this probable cause. Again, expressing violent intentions to a third party is generally not a . 188 s . out. cnme. o arrest 1s Suppose further that there is no evidence that Angry is mentally ill. He has no history of mental illness, and when the police ask Angry why he is making such a self-destructive admission, he responds with two seemingly "rational" points: (I) he has always believed that honesty is the best policy, e$pecially during police investigations; and (2) Meanie is an "evil bastard" whom he will kill if Meanie once again unjustly abuses Angry. In the absence of any other evidence of mental illness, both (I) and (2) seem rational enough, even if most people would not harbor the same thoughts and intentions under similar cireumstances. Most people, that is, either would not plan to kill Meanie or, if they did, would lie and tell the police that they did not intend to kill Meanie to "stay out of trouble" and make their goal, killing Meanie, that mueh easier to attain. The fact that Angry is more honest and more willing to sacrifice his freedom, either before or after killing Meanie, hardly indicates that he is mentally ill. At best, it indicates that he is either more honest or more self-sacrificing than most other prospective killers. And neither honesty nor self-sacrifice is necessarily a sign of mental illness. This is an unfortunate situation for the police to be in. They know that Angry poses a genuine, fatal threat to Meanie. Yet they cannot, merely on the basis of this knowledge, hold Angry until he abandons his plan to kill Meanie. 189 They must release him-again, within no more than a few days. 188. With the exceptions noted supra note 187. 189. See Morse, supra note 6, at 46 ("For example, imagine a young male prisoner ahout to be released from his third incarceration for armed robbery who boasts that he will immediately do it again upon release and will kill any victim who might potentially identify him. There is nothing at present the law can do to prevent [t]his. We can only hope that the armed robber has some sort of conversion experience."). 1385 D. Society's Interest in Safety vs. the Dangerous Individual's Interest in Liberty The reason why the authorities may not detain Angry for a longer period of time is because Meanie's interest in safety yields to Angry's liberty interest. More generally, there are significant rights and interests on each side of every decision to commit or not to commit. The task is to get the balance just right-to commit only those who would have gone on to commit serious crimes. But much easier said than done. On the one hand, the price for allowing Angry-and people like Angry-to remain free is significant. First, the public's knowledge that people like Angry are roaming free itself causes a widespread sense of diminished security. Second, people like Angry too often injure or kill others. So if we err on the side of allowing a dangerous psychopath to remain free and he then injures or kills another, we have unjustly allowed an innocent person whom we could have otherwise protected to be victimized. 190 On the other hand, there are two reasons to think that Angry should remain free. And these happen to be the reasons that generally prevail in our society. First, the police's suspicion at this point about the threat that Angry presents to Meanie is uncertain and defeasible. 191 There is 190. See R.A. DUFF, PuN!SHMENT, COMMUNICATION, AND COMMUNITY 165-66 (2001) ("[S]uppose we are faced with an offender who has persistently engaged in serious criminal attacks on others, who has been tmresponsive to his previous punishments, and of whom we can plausibly predict that he will commit further such attacks if he gets the chance to do so .... [W]e can predict that once released ... he will commit further such crimes. What then can we say to his next victim or to the family of a victim he now kills" Can we honestly say to those whose lives have been destroyed that this new crime is a price that we (and especially they) must pay for the sake of maintaining a liberal polity'? Might they not reasonably reply that this is to denigrate their rights to protection against this kind of predictable attack""); Morse, supra note 6, at 44 ("[A]chieving the safety that makes freedom possible inevitably requires substantial infringement on the liberty of dangerous agents."). 191. See HARE, supra note 5, at 189 ("We must ... be aware of the fact that even if perfect diagnoses were possible (and they are not), their ability to accurately predict recidivism or violence is limited, simply because the variables that constitute a diagnosis represent only a fraction of the individual, social, and environmental factors that determine antisocial behavior."); Paul Gendreau, Claire Goggin & Paula Smith, ls the PCL-R Really the 'Unparalleled' Measure of Offender Risk? A lesson in Knowledge Cumulation, 29 CRIM. JUST. & BEHAV. 397 (2002) (arguing that the PCL-R should not be used to predict recidivism); Lee, supra note 3, at 132 ("[Some] (including the U.S. Supreme Court in some instances) continue to cast doubt upon the reliability of mental diagnoses when predicting dangerousness in criminals. According to the American Psychiatric Association (APA), '[t]he large body of research in this area indicates that, even under the best of conditions, psychiatric predictions of long-term future dangerousness are wrong in at least two out of every three cases."' (footnote omitted)); Malatesti & McMillan, supra note 5, at 82-83 ("[A] central issue for PCL-R is whether it predicts criminal recidivism. . . . Without wishing to adjudicate on this debate, it is worth 1386 [VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW still a very good chance-too good a chance-that, if left free, Angry will never attempt to harm Meanie. Given this very good chance, our remaining concern about Angry is simply too weak a basis on which to commit Angry and thereby infringe on his presumptive right to liberty and freedom from undue state interference. Of course, the police may implement some other protective measures such as infonning Meanie of Angry's intention, issuing a restraining order against Angry on Meanie's behalf, and warning Angry of the punishment that faces him ifhe should even try to hann Meanie. But legally--<loctrinally-there is little else that they can do. Despite their worries for Meanie's safety, they cannot, at this point, infringe upon Angry's presumptive liberty interest. 192 Second, it may sound encouraging at first to say that we are going to round up and commit all dangerous psychopaths. We will all feel safer -at least those of us who do not find ourselves on the wrong side of this witch hunt. But that is just the point: too many people might just end up on the wrong side of this witch hunt for the wrong reason: either (1) the state misjudged them as dangerous or (2) the state abused this new power, rounded up people it did not like for whatever reasons, and then labeled them dangerous to justify their commitment. 193 Tyrannical states mentioning that some are less convinced about this coJTelation [between psychopathy and recidivism]."); Ogloff & Wood, supra note 6, at 174-75 (suggesting that the PCL-R should not be used to the exclusion of other "validated instruments" to "predict recidivism, identify criminogenic needs for treatment, and measure treatment response"); Robinson, supra note 170, at 1444 ("Requiring the criminal justice system to distribute punishment according to predictions of future dangerousness rather than blameworthiness for past crimes can only undercut the system's moral credibility."); id. at 1452 ("lt is difficult enough to determine a person's present dangerousness-whether he would commit an offense if released today. It is much more difficult to predict an offender's future dangerousness-whether he would commit an offense if released at the end of the deserved punishment tenn in the future. It is still more difficult, if not impossible, to predict today precisely how long the future preventive detention will need to last."). For criticisms of this argument, see ANDREW VON HIRSCH, PAST OR FUTURE CRIMES: DESERVEDNESS AND DANGEROUSNESS JN THE SENTENCING OF CRIMINALS 104--46 (1987); Lippke, supra note 6, at 383-85; Slobogin, supra note 47, at 6-1 J. 192. See Morse, supra note 6, at 46 ("In the interest of liberty, we leave potential dangerous people free to pursue their projects until they actually offend, even if their future wrongdoing is quite certain. Indeed, we are willing to take great risks in the name of liberty .... Do we really believe that responsible, dangerous agents have a right to be at liberty when their potential harmdoing is serious and quite certain 9 In theory we do."). 193. See Allen v. Illinois, 478 U.S. 364, 380 (1986) (Stevens, J., dissenting) ("The sexually-dangerous-person proceeding ... may not escape a charncterization as 'criminal' simply because a goal is 'treatment.' If this were not the case ... nothing would prevent a State from creating an entire corpus of 'dangerous person' statutes to shadow its 1387 are notorious for labeling people who are suspected of disagreeing with, or resisting, the regime as "enemies of the state" and "disappearing" them. There is no reason to think that the same injustices would not take place here if we granted the state the power to preventively commit dangerous psychopaths without rigorous criteria, qualified experts, and other due process safeguards. 194 E. A Consequentialist Argument for Classifying Psychopathy as a Mental Illness Meanie, then, seems to be in a very vulnerable position, and there does not seem to be anything that the state can do to protect Meanie from Angry for more than a few days. But suppose now that Angry admits to the police that he will kill Meanie if Meanie once again mistreats him criminal code. lndcten11inatc commitment would derive fron1 proven violations of criminal statutes, combined with findings of mental disorders and 'criminal propensities,' and constitutional protections for criminal defendants would be simply inapplicable. The goal would be 'treatment'; the result would be evisceration of criminal law and its accompanying protections."); Hart, supra note 3, at 167-68 ("It is not entirely clear why psychopathy generally is considered insufficient as a basis for sho11-term civil co1nmitment . . There are at least two possible explanations. The first is that courts may view short-term civil con11nitmcnt as requiring a very high level of cognitive or volitional impainnent ... to avoid excessive use of police powers by the state .... "); Slobogin, supra note 47, at 17-18 ("The legality objection to preventive detention is that the meaning of dangerousness cannot be satisfactorily cabined, thus allowing the state too much power."); id. at 26 ("[T]he legality principle is meant to control government discretion. If the triggering act for preventive detention is not an im1ncdiate precursor to the predicted hann (as \Vith emergency commitn1ent and investigative stops), it must be linked to a statutorily defined crime, or the potential for government abuse becomes enom1ous. [T]he government's (over)reaction to the events of 9/11, including preventive detention of American citizens who remain uncharged, provides a potent counter-reason for applying the san1e legality constraints on preventive detention that apply to inchoate crimes." (footnote omitted)). 194. See Morse, supra note 6, at 58 (""Assun1ing that [indefinitely committing psychopaths in specially secure hospital wings] was not a ruse, it would theoretically satisfy constitutional constraints on commitment, but no American legislature seen1s at present inclined to adopt such a scheme, which would of course be subject to abuse."); Robinson, supra note 170, at 1444-45 ("The intense controversy surrounding the preventive detention legislation of the 1960s may help to explain this reluctance. Critics denounced the legislation as 'Clockwork Orange' and '"Alice in Wonderland" justice' in which the punishment precedes the offense and as introducing a 'police state' and 'fostering tyranny.' Opponents described it as 'intellectually dishonest,' characterized it as 'one of the most tragic mistakes we as a society could make,' and feared that it 'would change the complexion of American justice.' Preventive detention was 'simply not the American way.'" (footnotes omitted) (quoting a number of critics)); id. at 1455 ("[T]here are understandable concerns about creating a broader system of explicit preventive detention: the Gulag Archipelago potential for governmental abuse is real." (footnote omitted)); Slobogin, supra note 4 7, at 17-18 ("The legality objection to preventive detention is that the meaning of dangerousness cannot be satisfactorily cabined, thus allowing the state too much power."). 1388 (VOL. 48: 1299, 2011] Dangerous Psychopaths SAN DIEGO LAW REVIEW and the police have good reason to believe that Angry is a clinically diagnosed psychopath. Perhaps the police legally obtained Angry's psychological records, which indicate that Angry is a psychopath, or a licensed psychiatrist whom they consulted evaluates Angry and issues this diagnosis. Do they now have sufficient grounds for preventively committing Angry for more than a few days? If Angry were a sexual psychopath, the answer in an increasing number of jurisdictions would be yes. Sexual psychopath-or sexually dangerous person-statutes generally allow the jurisdictions that have passed them to preventively commit sexual offenders, individuals who have been either convicted of designated sexual offenses or diagnosed by licensed psychiatrists as (likely) sexual offenders, if they have good reason to believe that these individuals are also dangerous to themselves 195 or others. Ex hypothesi, Angry is not a sexual psychopath. He is a nonsexual psychopath, a "generic" psychopath who wishes "only" to kill Meanie, not to commit any sexual offense against him. It is difficult to see, however, why this difference should matter, why we should pennit the preventive detention only of known sexual psychopaths, not of dangerous nonsexual psychopaths. After all, all else being equal, being killed is worse than being sexually victimized. So just as the danger presented by sexual psychopaths is sufficient to preventively commit them, the danger presented by homicidal psychopaths should be sufficient to preventively commit them. One way, perhaps the most direct way, to achieve this reform is to classify psychopathy as a mental illness. 196 There are two reasons, one 195. See Sexual Offender Registration and Notification Act (SORNA). 42 U.S.C. §§ 16901-16962 (2006); Tracy Bateman Farrell, Annotation, Validity, Construction, and Application of Federal Sex Ojfender Registration and Notification Act (SORNA), 42 U.S.C.A. §§ 16901 Et Seq., Its Enforcement Provision, 18 US.CA § 2250, and Associated Regulations, 30 A.L.R. FED. 2D 213 (2008); Marjorie A. Shields, Annotation, Validity, Construction, and Application of' Overt Act Requirement of State Statutes Providing for Commitment of' Sexuallv Dangerous Persons, 56 A.L.R.6TH 657 (20 I 0) ("A number of states have enacted statutes relating to sexually dangerous persons, or Statutes relating to sexually persons with psychopathic personality disorders. . . dangerous persons usually provide for the commitment of such persons."); Morse, supra note 6, at 58-59 (summarizing the main criteria of laws prescribing the commitment of sexually violent predators). 196. Some already regard psychopathy as a mental illness. See, e.g., HARE, supra note 5, at 184 (noting that Australian authorities declared a certain psychopath "and others like him [as] mentally ill"); LINEDECKER, supra note 64, at 213, 215 (noting that John Wayne Gacy's defense attorney described Gaey's condition as a debilitating mental disease); Hart, supra note 3, at 164 ("[P]sychopathy meets the legal criteria for mental 1389 formal, the other substantive. The formal reason is that the Supreme Court stated in Foucha v. Louisiana that a person may not be preventively committed unless that person is mentally ill. 197 So even if certain diagnosed psychopaths are dangerous, they may not be preventively committed unless their psychopathy is considered to be a mental illness. Given this point together with both the very real danger that Angry presents to Meanie and the protection that would be afforded to Meanie by preventively committing Angry, psychopathy should be considered a mental illness. 198 Moreover, given the very broad conception of mental illness supported by the Supreme Court, this proposal is hardly farfetched. 199 The substantive reason explains this formal rule. If Angry admitted to the police that he would kill Meanie if Meanie mistreated him again and Angry was clearly not mentally ill, the police would arguably not have good reason to think that, when push came to shove, Angry would carry through on this threat. Most "normal"-nonmentally ill-people get angry, and some of these people are honest--or stupid--enough to admit the full extent of their anger to the police. But it is safe to say that most nonmentally ill people, no matter how angry they get, do not kill or attempt to kill the people who anger them. [t is only when they are mentally ill that we have better reason to think that they will act on their anger. The probabilities go significantly higher. Mental illness not only often motivates the anger but also impairs judgment and self-restraint. 200 It tends to make the person irrationally or excessively angry and to act on this anger when a nonmentally ill person would have exerted selfcontrol and either "let it go" or channeled the anger in a healthier, nonviolent direction. In this way, mental illness and dangerousness are not just two separate and independent conditions. It is mental illness disorder. It is an abnormality of personality functions recognized in official nosological systems. It is persistent. Lt reflects something more than simply social deviance or bad choices."); Lee. supra note 3, at 133 (referring to psychopathy as a "mental disorder"). 197. See supra note 172 and accompanying text; cf: Slobogin, supra note 47, at 35 (proposing that dangerousness and undeterrability be the two necessary and sufficient criteria for preventive detention). 198. See Lee, supra note 3, at 134-35 (making the similar point that treating psychopathy as an aggravating factor will make it easier to incarcerate psychopaths longer and thereby protect society for longer periods of time). 199. See Slobogin, supra note 47, at 2-3 ("In Kansas v. Hendricks, involving the constitutionality of a so-called 'sexual predator' statute, the Court permitted indeterminate confinement of dangerous individuals who have completed their sentences and have committed no new crime even when they are not seriously mentally disordered-as long as they have a personality disorder that renders them unable to adequately control their anti-social conduct. The Court recently affirmed its willingness to uphold the institutionalization of non-psychotic people who meet this 'inability-tocontrol' threshold in Kansas v. Crane." (footnotes omitted)). 200. See supra note [ 80 and accompanying text. 1390 [VOL. 48: 1299, 2011] Dangerous Psychopath;, SAN DIEGO LAW REVIEW that usually makes dangerous people tni(v dangerous, not just angry, in the first place. This is the reason why not merely apparent dangerousness but also mental illness is required for preventive commitment. 201 The same holds true of psychopathy. If Angry were not psychopathic, the probability that he is genuinely dangerous would be significantly smaller. There would be much less chance that he would actually attempt to kill Meanie. Conversely, if Angry is psychopathic, the probability is much greater that he presents a genuine danger to Meanie. Because the very same can be said of mental illness generally-because mental illness, especially in conjnnction with anger, also significantly raises the probability of antisocial behavior by persons afflicted with it-it follows that psychopathy is, or at least should be regarded as, a fonn of mental illness. It is very important to point out that I have in mind here not all psychopaths but only the subset of psychopaths who are dangerous. This point itself assumes that not all psychopaths are dangerous, that there are indeed people in our society who (would) score between 30 and 40 on the PCL-R in Part II above but who do no/ harm others, at least not criminally. 202 So I am not suggesting that we preventively commit whoever 201. See Kansas v. Hendricks, 521 U.S. 346, 358 (1997) ("A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary comn1itn1cnt. We have sustained civil comrnitn1ent statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' These added statutory requirements serve to limit involuntary civil confinc1ncnt to those who sufTer fron1 a volitional i1npairment rendering them dangerous beyond their control. The precommitment requirement of a "mental abnonnality' or 'personality disorder' is consistent \Vith the requirements of ... other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness." (citations omitted)); Hart, supra note 3. at 163 ("[H]ow does the Jaw determine when a person's cognitive or volitional abilities are sulliciently impaired by mental disorder to trigger the need for special care or control'' ... [The third requirement is that] the impainnent of cognitive or volitional functions must be due at least in part to the 1nental disorder----0r, put differently, there must exist a discernible causal nexus between the mental disorder and the impairment of cognitive or volitional functions." (citations omitted)); id. at 167 ("Although statutes differ in tem1s of the specific type and quantum of risk that must be posed to justify co1nn1it1ncnt, a common clcn1cnt is that all require the state to demonstrate that the violence risk is due (at least in part) to mental disorder. Before the state can commit, it must prove that the person has a mental disorder that impairs cognitive or volitional functions in a \Vay that increases violence risk .... "). 202. Sec Hart, supra note 3, at 168 ("Perhaps courts . . do not accept that [psychopathy] is associated with an imminent risk of ham1."); Ogloff & Wood, supra note 6. at 171 ("One might believe that working with psychopaths can be physically dangerous-and it might be-although only very rarely."). 1391 has been diagnosed as a psychopath. Once again, I am suggesting that we preventively commit only people who have been diagnosed with this mental illness and have given us good reason to believe that they will, in the near future, injure themselves or others. (Incidentally, by others, I include animals, but that is a different topic for a different paper. 203 ) F. Psychopaths Are Still Criminally Responsible for Their Behavior This last point brings us back to criminal responsibility. One might argue that if we cannot trust dangerous psychopaths to avoid committing crimes, then we cannot regard them as criminally responsible for their actions. Likewise, we generally do not regard dangerous and mentally ill people who are involuntarily committed to be criminally responsible for their behavior. If we did, then we likely would not commit them in the first place. Instead, we would reiterate the threat of criminal punishment against them and hope, with good reason, that issuing this threat-rather than locking them up--would suffice to deter them from committing a crime. So I understand that there is a tension between my two positions-that psychopaths are criminally responsible for their criminal acts and that (pre-crime) dangerous psychopaths may be preventively committed. But tension does not mean contradiction. My two positions are still consistent. I do not contradict myself when I say that a given person may be dangerous and mentally ill enough to be preventively committed and still not mentally ill enough to qualify as insane and therefore beyond criminal punishment. The fact that individuals are mentally ill does not at all mean that they are not criminally responsible for their criminal behavior. 204 It means only that they have more difficulty abiding by the moral and legal norms of their society. And their difficulty abiding by norms is not necessarily substantial, in which case the MPC version of the insanity defense is not necessarily satisfied and the !vf'Naghten version of the insanity defense is certainly not satisfied. 205 203. See Taimie L. Bryant, Sacrificing the Sacrifice of Animals: legal Personhood for Animals, the Status of Animals as Property, and the Presumed Primacy of Humans, 39 RUTGERS L.J. 247, passim (2008) (arguing that, on balance, animals should be given the same legal standing as human beings). 204. Contrary to the Durham rule. See supra Part VLB. 205. See supra Part IX.C. 1392 Dangerous Psychopaths [VOL 48: 1299, 2011] SAN DIEGO LAW REVIEW XI. CONCLUSION By definition and on the basis of empirical evidence, psychopaths are incapable of feeling compassion and therefore understanding how concern for others, not just fear of punishment, generally motivates the "rest of us" to refrain from engaging in activities that would otherwise maximize our self-interest. Despite this psychological deficit, I have argued that the threat or fear of punishment alone gives nonpsychopaths good enough reason to refrain from violating the criminal Jaw. So even if psychopaths (I) cannot act for moral reasons, therefore (2) cannot be morally responsible for their behavior, and (3) do not understand why we have criminal Jaws or why the "rest of us" highly value the considerations that motivate these Jaws (especially other people's interests), they are still criminally responsible for violating these laws-just as the "rest of us" are criminally responsible for violating drug-possession laws even though we may not morally or emotionally understand the basis, if any, of these laws. Because psychopaths are criminally responsible for their behavior, they should be criminally punished just like the "rest of us" when they are found guilty. This conclusion will probably satisfy most ret1ibutivists, at least retributivists who believe that psychopaths are indeed criminally responsible for their criminal behavior. It may, however, disappoint two other groups: (I) retributivists who believe that psychopaths are not criminally responsible for their behavior; and (2) anybody who believes that individuals' being criminally responsible for their behavior makes them ineligible, prior to committing any crime, for preventive commitment. Regarding (2), however, I have argued that the mere fact that psychopaths are criminally responsible for their behavior does not, and should not, prevent us from preventively committing them prior to their committing any crime when we have evidence that they present a real danger to themselves or others. This last point is perfectly consistent with my central conclusion that psychopaths are not insane. People need not be insane in order to be subject to preventive commitment. Instead, they need be only dangerous and mentalZv ill. And although the DSM-IV-TR does not currently recognize psychopathy as a fonn of mental illness, it should. Psychopathy is a severe personality disorder. Once again, a person who suffers from this condition is unlike the "rest of us" insofar as it renders him unable to feel 1393 genuine concern for others and thereby develop deep, rich, fulfilling relationships with other people. This deprivation should make us feel bad for psychopaths-at least until they victimize us or give signs that they are about to victimize us. Then we need to punish them or protect ourselves (respectively). One might argue that we should still feel bad for psychopaths who are criminally punished. 206 But it is difficult to see why. First, they presumably committed criminal acts and therefore deserve criminal punishment for these acts. Second, psychopaths do not suffer as easily or as intensely as the rest of "us" nonpsychopaths. Therefore, criminal punishment is likely to cause them much less suffering than it would, all else being equal, cause nonpsychopaths. 207 As Robert Hare tells us: Psychopaths often give the impression that it is they who are suffering and that it is the victims who are to blame for their misery. But they are suffering a lot less than you are .... Don •t waste your sympathy on them; their problems are not in the same league as yours. Theirs stem primarily from not getting what they want, whereas yours result from a physical, emotional. or financial pounding. 20S 206. See Moss, supra note 12, at 257 ("The day of [Gacy's] execution .... I kept thinking about Gacy. I felt really sad. [ thought about how alone and scared he was probably feeling."); RONSON, supra note 21. at 110 ("You have to feel sorry for psychopaths, right? If it's all because of their amygdalae'' If it's not their fault?" (internal quotation marks omitted)); Lee, supra note 3, at 133 ("[O]ne [ c]ould argue that a mental disorder (here psychopathy in particular) effectively decreases the culpability of the criminal who should therefore be treated with mercy and empathy. This approach sympathizes with the individual, placing blame not on the criminal but on the inevitable effects of psychopathy." (footnotes omitted)). 207. See HARE, supra note 5, at 195 ("Psychopaths don't feel they have psychological or emotional problems, and they see no reas'on to change their behavior to conform to societal standards with which they do not agree. [P]sychopaths are generally well satisfied with themselves and their inner landscape, bleak as it may seem to outside observers. They see nothing wrong with themselves, experience little personal distress, and find their behavior rational, rewarding, and satisfying; they never look back with regret or forward with concern. They perceive themselves as superior beings . _ .. Psychopaths are not "fragile" individuals. What they think and do are extensions of a rock-solid personality stmcture that is extremely resistant to outside influence."); id. at 203 ("[A]s far as we can determine, psychopaths are perfectly happy with themselves, and they see no need for treatment."); id. at 204 ("From society's perspective, psychopaths have never been on track; they dance to their own tune."); LINEDECKER, supra note 64, at 220 ("[W]ho deserves the pity? The individual who has proven he is unfit to walk freely in society because he is dangerous to others, or potential victims who have caused injury to no one?"). 208. HARE, supra note 5, at 215-16. But see Willem H.J. Martens, The Hidden Suffering of' the Psychopath, PSYCHIATRtC TtMES (Dec. 31, 2001), http://www. psychiatrictimes.comlprint/article/10168/55051 ("[Psychopaths] have difficulty loving and tmsting the rest of the world.... [and] do suffer emotionally as a consequence of separation, divorce, death of a beloved person or dissatisfaction with their own deviant behavior... _ [They] can be genuinely saddened by their inability to control [their behavior toward others]. . . . Despite their outward arrogance, inside psychopaths feel inferior to others and know they are stigmatized by their own behavior. . . They see the 1394 (VOL. 48: 1299, 201 l] Dangerous Psychopaths SAN DIEGO LAW REVIEW - ------------------ love and friendship others share and feel dejected knowing they will never take part in it." (citations omitted)). 1395

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Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention

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