On the Criminal Culpability of Successful and Unsuccessful Psychopaths

A recent Psychology Today blog discusses Bill Hirstein’s and my research on legal culpability. In an earlier article, we claimed that legal principles can be understood as tacitly singling out executive processes in the brain, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case (for instance, that a gun is loaded), as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, or sleepwalking.

Our approach to culpability has interesting results regarding the responsibility of psychopaths. In an article soon to appear in the journal Neuroethics, Bill and I argue that psychopaths’ cognitive deficit is not easily understood in terms of an ability or inability to act for moral reasons or lack of empathy, which others have posited as grounds for excusing psychopaths. Instead, we examine psychopaths through the lens of executive function, and note that from this perspective psychopaths are a heterogeneous group. This heterogeneity is roughly captured in the distinction between successful (with little or no criminal record) and unsuccessful (with a criminal record) psychopaths. We claim that many unsuccessful psychopaths have a lack of executive function that should at least partially excuse them from criminal culpability. However, successful psychopaths may be fully culpable, because they possess the executive functions to allow them to notice and correct for their criminal tendencies.

This result could make sense of the apparent disagreement between scholars and courts regarding psychopathy. While psychopaths have been deemed by some philosophers to be less criminally responsible than other offenders, the criminal courts do not generally consider psychopathy to be an excusing condition. Although in some cases, such as the Dugan case in Illinois, psychopathy is offered as a mitigating factor at sentencing, interviews with career capital defense attorneys suggest that evidence of psychopathy is usually seen as an aggravating factor.

My guess is that the “folk” assigning responsibility within the criminal court system err on the side of attributing full responsibility, partly because folk psychological concepts aren’t sensitive enough to gauge executive function – or in folk terms, mental capacity – within the group deemed psychopaths by the Hare PCL-R diagnostic for psychopathy, and partly because psychopaths are particularly dangerous.

I’ll post a link to the paper as soon as it is published.

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