Neuroethics (2008) 1:205–212 DOI 10.1007/s12152-008-9021-9

Psychopathy and Criminal Responsibility

Stephen J. Morse

Received: 7 May 2008 /Revised: 22 May 2008 /Published online: 10 July 2008 # Springer Science + Business Media B.V. 2008

Abstract This article considers whether psychopaths is therefore an important moral and practical policy should be held criminally responsible. After describing issue. In particular, should the law hold psychopaths the positive law of criminal responsibility in general criminal responsible? If so, how should psychopathy and as it applies to psychopaths, it suggests that be taken into account at sentencing. If not, are there psychopaths lack moral rationality and that severe sensible alternative means to address the potential psychopaths should be excused from crimes that harms psychopathy produces? violate the moral rights of others. Alternative forms This article begins by considering the criminal of social control for dangerous psychopaths, such as law’s current positive theory of responsibility. It involuntary civil commitment, are considered, and the demonstrates that the capacity for rationality and the potential legal implications of future scientific under- absence of coercion are the two most generic standing of psychopathy are addressed. responsibility criteria and that the lack of rational capacity and coercion are the two most generic Keywords Psychopathy. Legal responsibility . excusing conditions. It then turns to the current Criminal responsibility. Antisocial personality disorder . criminal law response to psychopaths, which is to hold Rationality. Coercion the psychopath entirely criminally responsible and not subject to involuntary civil commitment. Next, it offers an alternative normative account that would excuse Introduction psychopaths from criminal responsibility for criminal offenses that are also violations of the moral rights of Psychopathy is a disorder characterized by emotional others. The article then considers alternative mecha- abnormalities, such as lack of empathy, conscience nisms of social control if some psychopaths were to be and concern for others, and by conduct abnormalities, excused for criminal conduct. Finally, it addresses the such as repetitive antisocial behavior. It is estimated potential contribution scientific discoveries could make that 25% of convicts serving prison terms suffer from to legal policymaking and practice. psychopathy, which is a substantial risk factor for Psychopathy must be distinguished from Anti- crime. The law’s response to psychopathic criminals social Personality Disorder (APD), which, unlike psychopathy, is a diagnostic category included in the American Psychiatric Association’s authoritative * S. J. Morse ( ) Diagnostic and Statistical Manual of Mental Disor- University of Pennsylvania Law School, Philadelphia, PA 19104-6204, USA ders, 4th Ed-Text Revision [DSM-IV-TR]. All but one e-mail: [email protected] of the criteria for APD are repetitive antisocial 206 S.J. Morse behaviors, and the one psychological criterion, lack person. In sum, the state can blame and punish a of remorse, is not necessary to make the diagnosis. responsible agent who commits a crime and can About 40–60% of prisoners have APD and there is involuntarily civilly confine a dangerous agent who is substantial overlap with psychopathy. Despite inclu- not responsible for his or her risk to others. sion of APD in DSM-IV, there is great controversy about whether as defined it should be considered a mental disorder. Psychopaths, by contrast, lack The Positive Law of Criminal Responsibility psychological attributes that seem central to success- ful, cooperative life. This paper assumes that The structure of the American law of criminal criminals with APD are responsible because APD responsibility is facially straightforward. Crimes are is not inconsistent with current or normatively defined by their criteria, which lawyers refer to as the defensible responsibility criteria. Psychopathy will “elements” of crime. The most important elements are therefore be the focus of the paper. a prohibited act and an accompanying culpable mental state (mens rea). For example, a traditional definition of murder is the intentional killing of a Preliminary Observations About Legal human being. The act is any form of killing conduct, Responsibility such as shooting or stabbing. The mens rea is the purpose to kill that accompanies the killing conduct. The law’s view of the responsible person generally The definition of every crime requires an act (or an and all its criteria for criminal responsibility specifi- omission when there is a duty to act). Despite the cally are resolutely folk psychological. Mental states centrality of this requirement, the law’s definition of and actions are the crux. It is important to understand an act is somewhat obscure because it does not that free will–understood as metaphysical libertarian provide a positive definition of an act. Rather, it tends freedom–is not a criterion for any criminal law to define what is not an act. One may infer, however, doctrine, and, on a compatibilist interpretation of the that the underlying definition is an intentional bodily metaphysics of responsibility, it is not even founda- movement performed in a state of relatively integrated tional for criminal responsibility. Indeed, the law’s consciousness. The meaning of intentional in this positive criteria for criminal responsibility are not definition is narrow and means nothing more than a inconsistent with the truth of determinism. Moreover, “willed bodily movement.” Another way of under- causation per se of criminal behavior, including standing this requirement is that the movement is causation by abnormal variables, such as brain “volitional.” It does not mean that the defendant acted pathology, is not an excusing condition. Various for any particular reason. For example, completely causes might explain why a genuine excusing habitual movements are considered acts. condition, such as lack of rational capacity, is present, The mens rea terms, such as purpose or knowl- but the law will excuse only if the folk psychological edge, have their ordinary meanings. They do not excusing condition is in fact proven. The law also include the capacity for moral reflection nor a adopts what I have termed “desert-disease” jurispru- requirement that the defendant acted “whole heart- dence for deciding how to respond to potentially edly.” An ambivalently formed or held intention is dangerous individuals [1]. With limited exceptions nonetheless an intention. that need not concern us, the law does not permit pure If the prosecution can prove the definitional elements preventive detention of individuals solely on the beyond a reasonable doubt, prima facie criminal liability ground that the agent may pose a risk of harm. But is established. Unless psychopaths suffer from some if a person has committed a crime and is responsible, other abnormal condition, there is no reason to believe the person may be criminally blamed and punished that in general they do not act or cannot form the mental because the agent deserves such treatment. Further, if states the law requires when they commit crimes. In the agent is dangerous because he or she is not short, it will seldom be difficult to establish the responsible for the potential dangerousness–say, the psychopath’s prima facie criminal liability. person suffers from a delusion that renders him Even if the prosecution can prove all the elements dangerous–then the state may civilly confine the beyond a reasonable doubt, however, the defendant Psychopathy and criminal responsibility 207 may still be able to establish some other defensive The second generic excusing condition is coercion, claim that is independent of doubt about the prima which arises much less frequently. Note that if the facie case requirements of an act and mental state. defendant does not act at all because someone literally These defenses are called “affirmative defenses” and moves the defendant’s body in a prohibited way, the may usefully be categorized as justifications and defendant will not be prima facie liable. Assuming excuses. In cases of justification, conduct that is that the defendant acted, the most common doctrinal otherwise criminal is under the specific circumstances expression of a coercion excuse is “duress.” Duress considered right or at least permissible. For example, obtains if, through no fault of his own, the defendant a person who saves his own life by killing a wrongful is placed in a threatening, do-it-or-else situation–say, deadly aggressor properly acts in self-defense al- someone threatens to kill the defendant unless the though he kills intentionally. Note that in cases of defendant kills an innocent third party–and a person justification there is nothing “wrong” with the agent. of reasonable firmness would have yielded to such a He acts rightfully or permissibly under the circum- threat under the circumstances. The defendant need stances. Excuses exist when the defendant’s conduct not subjectively feel fear or “irresistible” psycholog- is undeniably wrongful, but the defendant is not ical pressure (although most doubtlessly will). It is considered a responsible agent. For example, the sufficient if a reasonable person would have yielded. defense of legal insanity may excuse a defendant who The interesting, normative question, is what we kills an innocent victim because the defendant suffers expect of “reasonable” people under such circum- from a delusional belief that the victim intends to kill the stances. Again, this is a normative question. defendant. Psychopathy has nothing to do with justifi- A fraught question for the law is how to under- cation per se, so the question will be whether evidence stand claims that the defendant could not help or of psychopathy will help to support a legal excuse. control himself in situations in which no one is The best interpretation of the criminal law’s generic threatening the defendant. Familiar examples of such responsibility criteria are that the agent has sufficient one-party “coercion” claims are addictions and unto- rational capacity and does not act under coercion. ward sexual desires, such as pedophilia. What does it Correlatively, the law’s generic excusing and mitigat- mean, independent of problems with rational capacity, ing conditions are lack of rational capacity and to say that a person cannot help or control himself? coercion. The law clearly employs an everyday, Difficulties conceptualizing and assessing such prob- common sense notion of rationality, but how much lems are central reasons why “control” tests for rational capacity and what kind are necessary are excuse in these one-party cases are less common than thoroughly normative judgments and are seldom tests for lack of rational capacity. clearly specified. For example, one test for legal In short, it should be clear from this brief summary insanity is whether the defendant knew what she was of the law that the crucial category for assessing the doing. This is a rationality test, to be sure, but it does criminal responsibility of psychopaths will be the not specify how narrowly or broadly knowledge excuses, and lack of rationality in particular. should be understood. Consider Andrea Yates who drowned her five children to save them from Satan’s eternal torments. Did she know what she was doing? Current Legal Response to Psychopathy Narrowly, it seems that she did because she knew she was killing her children and that it was illegal to do so. As the introduction indicates, this section will be But broadly, it seems that she did not because she did exceedingly brief. The law does not excuse psycho- not understand that killing the children would not save paths, even those whose psychopathy is clear and them from Satan’s eternal torments. At this point, it is severe. Psychopathy is not a legally sufficient basis to sufficient to recognize that lack of rational capacity is raise an insanity defense or any other excuse. Indeed, the primary excusing condition. It explains why some the influential Model Penal Code specifically people with mental disorders, young children, people excludes psychopathy as a legally sufficient mental with dementias, and the like are either excused or abnormality for its version of the insanity defense [2]. mitigated if they commit crimes arising from their To the extent psychopathy is considered at all in impaired practical reasoning. sentencing, it will virtually always be considered an 208 S.J. Morse aggravating factor, such as using it as a risk factor for ble. Further, psychopaths are not excused because dangerousness in capital sentencing. Moreover, psy- they do possess many rational capacities. They chopathy per se is not considered a legally sufficient usually know the facts and are generally in touch mental abnormality to support involuntary civil with reality, they understand that there are rules and commitment. consequences for violating them, which they treat as a The question for the law is whether these responses “pricing” system, and they feel pleasure and pain, the are correct, questions that can be asked as a matter of anticipation of which can potentially guide their criminal law theory and practice. It is to these conduct. This is a relatively thin conception of questions that this paper now turns. rational capacity, but the law deems it sufficient to justify punishment on desert and deterrence grounds. Finally, psychopaths do not suffer from lack of self- Psychopathy and Criminal Responsibility control as it is traditionally understood. They do not act in response to desires or impulses that are At least in theory, and mostly in practice, our criminal subjectively experienced as overwhelming, uncontrol- justice system assumes that no one should be blamed lable or irresistible. Once again, there is no need to and punished unless the agent deserves blame and excuse according to either a desert or deterrence punishment. The law also has consequential justifica- justification for punishment. In short, the law views tions for criminal punishment, such as prevention, but the psychopath as bad, and not as mad. desert is at least a necessary justification. In contrast, I believe the law’s assessment is By definition, an agent who is not morally morally incorrect and should be reformed. Psycho- responsible for behavior does not deserve moral paths are not morally responsible and do not deserve blame and punishment for it. Legal and moral blame and punishment. There are two potential responsibility criteria need not coincide, however, theories for why this should be so: a specific and a and as a positive matter, they do not. Indeed, the general theory concerning the psychopath’s rational degree to which moral and legal responsibility should capacities. be identical is of course controversial. Our criminal The specific theory concedes the law’s thin view of law contains numerous instances of strict liability in the psychopath’s rational capacities, but suggests that which punishment, often potentially severe, is im- the psychopath has particularized deficits of rational- posed without any proof of moral fault. For example, ity when moral concern and respect for others is in a defendant may be convicted and punished for question. As a normative matter, the best reasons statutory rape of a completely consenting partner if people have for not violating the rights of others are the partner is under a certain age, even if the that the potential wrongdoer fully understands that it defendant thought the partner was older and every is wrong to do so and has the capacity to empathize reasonable person would agree. For the most part, with the potential pain of their possible victims and to however, as we have seen, the doctrines that excuse use that as a reason for refraining. If a person does not or mitigate criminal responsibility–lack of rational understand the point of morality and has no con- capacity and coercion–closely track the variables science or capacity for empathy, only fear of commonly thought to create moral excuse or miti- punishment will give the person good reason not to gation. I shall therefore assume that the criminal law violate the rights of others. As has been recognized at should not blame and punish agents who commit least since Hobbes, however, social cooperation and serious crimes unless those agents are morally at safety cannot be secured solely by the fear of state fault because they are responsible. punishment. Internalized conscience and fellow feel- The justification for the law’s view that psycho- ing are the best guarantors of right action. The paths are responsible may be briefly stated. First, as psychopath is not responsive to moral reasons, even we have seen, psychopathy does not prevent agents if they are responsive to other reasons. Consequently, from acting as the law defines action, nor does it they do not have the capacity for moral rationality, at prevent psychopaths from forming prohibited mental least when their behavior implicates moral concerns, states. A psychopath who kills another human being and thus they are not responsible. They have no intentionally is fully prima facie criminally responsi- access to the most rational reasons to behave well. Psychopathy and criminal responsibility 209

This position has been adopted in various forms by morally pointless, although it may be instrumentally many philosophers [3]. warranted. Whether psychopaths should be blamed The broader theory, most ably advanced by Paul and punished is a question of how we want to live Litton, [4] denies that psychopaths are rational at all together. Because psychopaths are not members of the because they lack any evaluative standards to assess moral community, I believe that they should not be and guide their conduct. The do not even possess held responsible. evaluative standards related to the pursuit of excite- If this argument is convincing, the appropriate ment and pleasure. Psychopaths are like Frankfurt’s legal response is to broaden the mental disorder concept of the “wanton.” They do not feel regret, criterion of the insanity defense to include psychop- remorse, shame, and guilt, feelings that are typically athy as a sufficient mental abnormality to support the experienced in reaction to our failure to meet the defense and to broaden the cognitive criterion to standards we have set for ourselves. They may feel include lack of moral capacity. The excuse would frustration and anger if they fail to get what they only apply, however, to crimes that prohibit immoral want, but these are not reactive emotions. Such behavior. The law treats strict liability crimes purely frustration or anger does not entail negative self- as pricing mechanisms and there is no reason to treat evaluation. Moreover, severe psychopaths are out of the psychopath differently from ordinary people when touch with ordinary social reality. They say that they such crimes are prosecuted. Moral concern plays no have goals, but act in ways inconsistent with role in understanding and obeying such prohibitions. understanding what having and achieving a goal Psychopathy is a continuum concept so all psycho- entails. They do not consistently follow life plans paths would not have to be excused. Severe psychop- and are impulsive. Litton concludes that “it is not athy would be excused, however, and individual surprising that agents with a very weak capacity of jurisdictions would have discretion to decide whether internalizing standards act on unevaluated whims and less severe psychopathy should also excuse. My impulses.” [4] Much of their conduct appears unintel- preference would be to excuse only severe psycho- ligible because we cannot imagine what good reason paths. Those with less severe conditions who retain would motivate it. In brief, psychopaths have a gen- residual moral capacity, albeit weak, would still be erally diminished capacity for rational self-governance considered members of the moral community and that is not limited to the sphere of morality. subject to blame and punishment. I am unconvinced by the broader view. Many of An interesting issue is whether psychopaths would the broader irrationality characteristics may be present also meet the criteria for “control” tests for legal in some psychopaths, but they are not core character- insanity, such as the inability to conform one’sconduct istics. I also believe the argument understates the to the requirements of law. As discussed earlier, it is psychopath’s capacity for some evaluative standards hard to make good sense of control tests, [5]but and reactive emotions. In contrast, the moral incapac- psychopaths do not feel allegedly “overwhelming ities appear to be core. These are empirical quibbles, urges” or “irresistible impulses.” If they have trouble however, and future research may clarify the diag- controlling their desires to act antisocially, I believe it nostic characteristics of psychopathy. The broader is because they cannot access the good reasons not to. view is nonetheless plausible and coherent at present, In short, for psychopaths (and others) failures of self- and it does furnish another rationality-based theory control collapse into rationality deficits. As we will see for potentially excusing psychopaths. presently, the problem of control does arise in the On either view, the psychopath is not a member of involuntary commitment context and will be discussed the moral community, is not a person with whom in somewhat more detail below. moral engagement is possible. Again, psychopaths A potential objection concerns people whose know the facts and the rules and are capable of acculturation, rather than biological or psychological manipulation of others to achieve their own ends, but abnormalities, may deprive them of particularized they do not get the point of morality. It is as if they rather than general moral concern. For example, rabid are color blind to moral concerns. The rights and racists may be genuinely incapable of empathy or interests of others have no purchase on their practical conscience towards despised groups, but may retain a reasoning. Blaming and punishing such people is general capacity for empathy and conscience. Political 210 S.J. Morse fanatics may be similar when dealing with their The prediction of future antisocial behavior is a supposed enemies. Moreover, such people may difficult enterprise and often creates large numbers acquire such attitudes and predispositions when they of false positive predictions, especially for low base are children and thus before the age of reason and rate behavior. Moreover, the potential extreme loss of responsibility. One could claim that they ratify and liberty seems in many cases disproportionate to the endorse such predispositions as adults, but that simply potential risk to society that many psychopaths might avoids the difficult question of how to respond to pose. Finally, civil commitment is very expensive. In such people when they victimize the despised “other.” sum, the remedy of civil commitment may seem After all, shedding one’s deepest attitudes and predis- worse than convicting psychopaths. This is a serious positions may be beyond the capacity of most people. practical problem. How does one learn to love or even to have concern If only severe psychopaths, those with essentially for a person an agent believes is “subhuman” or no capacity for conscience and empathy, were entirely unworthy of concern? I believe that this is a excused, the problem would be manageable. The difficult problem for responsibility theory. number of excused defendants would be relatively “Acculturated psychopaths” should be held respon- small and many could be released when they “age sible because they do have the general capacity for out” of the stage of life when the risk of violence is conscience and empathy and they do understand that high. Psychopaths are deterrable and presumably they other people believe that members of the despised would not want to risk further indefinite incarceration. groups are worthy of empathy and concern. They do I assume that, like other mentally abnormal defend- understand the moral point of the prohibition against ants, most psychopaths who are charged with minor harming the despised other, even if they cannot feel it. crimes that carry minimal prison terms would choose The law may only be a “pricing mechanism” for them not to raise the insanity defense because a minimal when the rights of despised victims are violated, but, prison term would be preferable to indefinite civil unlike pathological psychopaths, acculturated psycho- confinement. If successful biological or other treat- paths are members of the moral community who in ments for psychopathy were developed, the practical principle do understand and can be taught to respond problem of how to respond to excused psychopaths to the good reason to widen their view of humanity. If would be vastly reduced. this approach to acculturated psychopaths is unper- suasive, then such people should also be excused from crimes committed against the despised other. Preventive Civil Confinement of Addicts There would be no reason to excuse them from other crimes, however. The Supreme Court has approved a special form of Defendants acquitted as legally insane are com- criminal justice-related civil commitment for so-called mitted to mental hospitals for evaluation, treatment mentally abnormal sexually violent predators. The and incapacitation. They may be held indefinitely criteria for such commitments are, 1)a criminal charge until they are no longer either mentally abnormal or or conviction; 2)a mental abnormality; 3)predicted no longer dangerous [6]. Moreover, the Supreme dangerousness; and, 4)“serious” difficulty controlling Court of the United States has made clear that it is oneself [8]. This type of commitment is different from constitutionally acceptable to consider minor property traditional involuntary civil commitment because it crime as sufficiently dangerous to continue such requires at least a charge of criminal behavior, whereas commitments [7]. traditional commitment may be triggered simply by a At present, psychopathy is not a treatable condi- threat of dangerous behavior. The Supreme Court tion, so all psychopaths who commit non-trivial upheld such commitments even when they are imposed crimes would be subject to potentially life-long after the completion of a prison term for precisely the involuntary civil commitment if they are excused by same type of behavior that now justifies involuntary reason of legal insanity. Such a response would commitment. Although the standard for responsibility clearly be a potential civil liberty and fiscal problem. in the criminal justice and involuntary commitment Psychopathy is a risk factor for crime, but many systems need not be the same, these forms of might not re-offend despite their mental abnormality. commitment have received withering criticism because Psychopathy and criminal responsibility 211 the rationality sufficient for criminal blame and impairment. Instead, they have difficulty accessing punishment should be sufficient to avoid involuntary good reason when they are in the throes of peak civil commitment. Nonetheless, this type of commit- desire or craving. In contrast, psychopaths have no ment is constitutional and its potential application to such allegedly “overwhelming” desires, but when psychopaths should be considered. they want to violate the rights of others, they lack the Although psychopathy is not considered a legally capacity to access the best reasons–conscience and sufficient abnormality to support traditional involun- empathy–not to do so. Consequently, they are unable tary commitment, it would be sufficient to support to control their behavior because they cannot guide it this type of commitment if the psychopath were by reason. In sum, the control criterion would not dangerous and had “serious” difficulty controlling exclude psychopaths from this form of commitment. himself. The Supreme Court has made it clear that the This type of special commitment would avoid state is not bound in its legal criteria by psychiatric or some of the most unsettling problems associated with psychological definitions of mental disorder. It may general involuntary civil commitment. Widespread define mental abnormality in any way that is traditional involuntary commitment of psychopaths minimally rational. Moreover, psychopathy is a might raise various civil liberties problems. Although recognized abnormality despite its present exclusion psychopathy is a strong risk factor for violence, from DSM-IV-TR. Further, psychopathy is a promi- serious violent conduct is still an infrequent event in nent risk factor for future violent behavior and would this population and there would be substantial be a rationally-included variable in a violence numbers of unnecessary commitments based on false prediction assessment. The only difficulty would be positive predictions. The best predictor of future whether psychopaths are sufficiently non-responsible behavior is past behavior, however, and tying quasi- to qualify for civil confinement on a “disease” theory criminal commitment to a charge or conviction for within desert-disease jurisprudence. serious crime would reduce the risk of false positives. The previous section of this paper argued that I conclude that this form of commitment would be severe psychopaths should be excused from criminal justified for severe psychopaths and would provide an responsibility on cognitive or cognitive-affective alternative to criminal justice resolution. grounds. This would satisfy the disease justification for civil confinement and would distinguish psycho- paths from sexual predators who are considered Science, Psychopathy and Law criminally responsible. But the Supreme Court im- posed a disease-based non-responsibility requirement Scientific advances in neuroscience, psychology and of serious difficulty controlling one’s behavior, which other disciplines might well change the justifiable does not appear to be a cognitive or cognitive- legal response to psychopaths because they may alter affective criterion. A jurisdiction almost certainly our view of psychopaths’ capacities and may contrib- could constitutionally adopt a cognitive-affective test ute to greater predictability of future behavior. for this type of commitment rather than a control test, Before considering these possibilities, however, first but the Court’s holding in Crane concerning control note a methodological point. Psychopathy is defined requires attention. behaviorally by cognitive and emotional impairments As suggested above, control tests are notoriously and persistent antisocial conduct. Anything further we difficult to conceptualize and measuring control learn about the genetics, neurobiology, or psychology difficulties independently is well nigh impossible. I of psychopaths depends on our ability already to also suggested, however, that control tests can identify psychopaths reliably. If we cannot be sure that ultimately be assimilated to cognitive tests because the subject population of a study is psychopaths, we the reason people have difficulty controlling them- cannot know if genetic, neurobiological or psycholog- selves is that they cannot bring good reason to bear to ical discoveries are really about psychopathy. Now, it is guide their behavior. In the cases of people with of course true that various discoveries may cause us to impulse control disorders, paraphilias (disorders rethink the behavioral diagnostic criteria. For example, marked by abnormal sexual desires that cause if behaviorally similar psychopaths have vastly dissim- distress) and the like, there is no general rationality ilar neurobiology or genetics, it may cast doubt on 212 S.J. Morse whether there is a unitary disorder rather than discrete Finally, as mentioned above, if successful treat- disorders with a similar presentation. This would be ments for psychopathy were discovered, this might especially true if there were prognostic or treatment solve many of the civil libertarian concerns that wide- differences between the two groups. But making any scale involuntary commitment would pose. progress does depend at the outset on studying a reliably identified population. Whatever scientific investigation may disclose, for Conclusion the purposes of the law, the agent’s behavior will be the touchstone of responsibility because all responsi- At present, the law holds psychopaths criminally bility criteria are behavioral. responsible and does not involuntarily hospitalize If the defendant is behaviorally rational, the them if their only abnormality is psychopathy. This defendant will be considered responsible, no matter paper argues, however, that severe psychopathy what his brain scan may indicate. And vice versa. should be a basis for non-responsibility in appropriate Actions speak louder than images. It is possible, cases because psychopathy deprives people of rational however, that future discoveries may persuade law- capacities that are fundamental for fair ascriptions of makers that psychopaths should continue to be held blame and punishment. responsible or the opposite, depending on what we learn. For example, if the broad view of psychopathic irrationality were supported by further study, a case References for excuse would be strengthened. Further, if psy- chopathy were deemed to be a legally-sufficient basis 1. Stephen J. Morse, Neither Desert Nor Disease,5Legal for an insanity defense, then new scientific techniques Theory 265(1999). 2. American Law Institute, Model Penal Code, Sec. 4.01(2) might help us more accurately diagnose psychopathy, (1962). especially in cases in which the behavioral evidence is 3. E.g., Susan Wolf, Freedom Within Reason (1990). not entirely clear. 4. Paul Litton, Responsibility Status of the Psychopath: On – New techniques may also help us predict future Moral Reasoning and Rational Self-Governance 24 32 (forthcoming, Rutgers L.R.; ms. on file with author). The dangerous behavior far more accurately than we do argument in the text follows Litton. today. If some psychopaths were excused or if they 5. Stephen J. Morse, Uncontrollable Urges and Irrational were subject to involuntary civil confinement, this People,88Virginia L.R. 1025 (2002). would represent a major advance in both fairness to 6. Foucha v. Louisiana, 504 U.S. 71 (1992). 7. Jones v. United States, 463 U.S. 354 (1983). the psychopath and in the ability to protect society 8. Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane, from them in appropriate cases. 534 U.S. 407 (2002).