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

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Dangerous Psychopaths: Criminally Responsible but Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention KEN LEVY DANGEROUS PSYCHOPATHS REPLACEMENT122411 (DO NOT DELETE) 1/4/2012 9:56 AM Dangerous Psychopaths: Criminally Responsible but Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention KEN LEVY* TABLE OF CONTENTS I. INTRODUCTION ................................................................................................ 1301 II. PSYCHOPATHY DEFINED .................................................................................. 1306 A. A Working Definition of Psychopathy .................................................... 1306 B. Psychological Community’s Definition .................................................. 1310 C. Possible Problems with the PCL-R ........................................................ 1313 D. Differences Between Psychopathy and Antisocial Personality Disorder .............................................................................. 1321 III. THREE CONSEQUENTIALIST REASONS FOR CRIMINALLY PUNISHING PSYCHOPATHS ................................................................................ 1324 IV. MORAL RESPONSIBILITY AND THE EXAMPLE OF JOHN WAYNE GACY ................................................................................................. 1326 V. THREE ARGUMENTS THAT PSYCHOPATHS ARE NOT MORALLY RESPONSIBLE FOR THEIR CRIMINAL BEHAVIOR ................................................ 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 Sheriff’s 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 Liberty 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 2010 and 2011. Finally, I am very grateful to the editors at the San Diego Law Review, especially Hana Hsiao and R.J. Pinto, for their excellent research assistance, revisions, and suggestions. 1299 KEN LEVY DANGEROUS PSYCHOPATHS REPLACEMENT122411 (DO NOT DELETE) 1/4/2012 9:56 AM A. 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 for Their Criminal Behavior: No Self- Control ................................................................................................... 1338 VI. THE INSANITY DEFENSE ................................................................................... 1344 A. Assumptions Underlying the Insanity Defense ....................................... 1345 B. Different Versions of the Insanity Defense ............................................. 1346 VII. FOUR ARGUMENTS THAT PSYCHOPATHS ARE INSANE ....................................... 1350 A. First Argument that Psychopaths Are Insane......................................... 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 VIII. WHY THE CRIMINAL JUSTICE SYSTEM REGARDS PSYCHOPATHS AS CRIMINALLY RESPONSIBLE .................................................. 1359 IX. WHY PSYCHOPATHS ARE CRIMINALLY RESPONSIBLE EVEN THOUGH THEY ARE NOT MORALLY RESPONSIBLE ........................................... 1362 A. Why Criminal Responsibility Does Not Require Moral Responsibility .............................................................................. 1362 B. Why Moral or Emotional Understanding of the Law Is Not Necessary for Criminal Responsibility ........................................ 1367 C. Psychopaths Have Sufficient Control over Their Behavior ....................................................................................... 1370 X. SHOULD WE PREVENTIVELY COMMIT DANGEROUS PSYCHOPATHS? ................. 1375 A. Why Defendants Eligible for Criminal Punishment (Post-Crime) Are Generally Not Eligible for Preventive Commitment (Pre-Crime) and Vice Versa .............................................................................................. 1376 B. The Middle-Ground Approach: Psychopathy as Mental Illness......................................................................................... 1379 C. Dangerous but Not Mentally Ill ............................................................. 1382 D. Society’s Interest in Safety vs. the Dangerous Individual’s Interest in Liberty .................................................................................. 1386 E. A Consequential Argument for Classifying Psychopathy as a Mental Illness ................................................................................. 1388 F. Psychopaths Are Still Criminally Responsible for Their Behavior ....................................................................................... 1392 XI. CONCLUSION ................................................................................................... 1393 1300 KEN LEVY DANGEROUS PSYCHOPATHS REPLACEMENT122411 (DO NOT DELETE) 1/4/2012 9:56 AM [VOL. 48: 1299, 2011] Dangerous Psychopaths 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.1 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 (1) “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 performers 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. 1. Compare K.M. ROGERS, STAINED GLASS JESUS 72 (2010) (“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] Fackenheim 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 victims, a new category of evil. RON ROSENBAUM, EXPLAINING HITLER: THE SEARCH FOR THE ORIGINS OF HIS EVIL 290– 91 (1998). 1301 KEN LEVY DANGEROUS PSYCHOPATHS REPLACEMENT122411 (DO NOT DELETE) 1/4/2012 9:56 AM 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, Culpability, and Commitment, in MENTAL DISORDER AND CRIMINAL LAW: RESPONSIBILITY,
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