International Journal of Law and Psychiatry 27 (2004) 425 – 443

Mental impairment, moral understanding and criminal responsibility: Psychopathy and the purposes of punishment Cordelia Fine a,*, Jeanette Kennett b a

Research Fellow, School of Philosophy and Bioethics, Monash University, Clayton VIC 3800, Australia b Senior Lecturer, School of Philosophy and Bioethics, Monash University, Australia

1. Introduction It is perhaps the dominant view among psychiatrists and the law that psychopathy should not mitigate or remove criminal responsibility. Thus, Robert Hare, a leading researcher in psychopathy, notes that bin most jurisdictions, psychopathy is considered to be an aggravating rather than a mitigating factor in determining criminal responsibility. This is the way it should be, in my view.Q (Hare, 1998a, p. 205). In line with this stance, recent evidence suggests that a diagnosis of psychopathy may result in harsher judicial sentencing (Zinger & Forth, 1998) or may even be used to justify imposition of the death penalty rather than a life sentence (Edens, Petrila, & Buffington-Vollum, 2001). It is not hard to see why psychopathy is thought to aggravate rather than mitigate responsibility when we consider some of the diagnostic features and clinical descriptions of psychopathy. Psychopathic individuals are callous, manipulative, deceitful, indifferent to the rights of others, and lacking in empathy and remorse (Cleckley, 1950; Hare, 1991). A diagnosis of psychopathy looks to be evidence, not of impairment, but of the offender’s lack of any redeeming qualities that the court could take into account (e.g., Reznek, 1997). A number of recent papers in psychiatry and law, likewise, have argued that the impairments observed in psychopathy should not be considered to be exculpating (e.g., Campbell, 1992; McSherry, 1997, 1999; Schopp & Slain, 2000). One concern, raised by McSherry (1997, 1999), is that psychopathy is not a genuine disorder. This doubt arises from her conflation of the constructs of psychopathy and antisocial personality disorder (APD). This is a common confusion generated in part by the Diagnostic and

* Corresponding author. Tel.: +61 3 9905 4278; fax: +61 3 9905 3206. E-mail address: [email protected] (C. Fine). 0160-2527/$ - see front matter D 2004 Elsevier Inc. All rights reserved. doi:10.1016/j.ijlp.2004.06.005

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Statistical Manual-IV (American Psychiatric Association, 1994) criteria for APD, which are ambiguous about the relationship between the two disorders (for discussion see Hare, 1998a, pp. 189–192). Rates of APD are high in prison populations, between about 50% and 80% (e.g., Widiger et al., 1996; see also Blumenthal & Lavender, 2000, p. 63) and its diagnosis relies heavily upon an antisocial history. With such a high prevalence in the forensic population, and its tautological relationship with criminality, McSherry is right to criticize the role of APD as a mitigating factor in criminal responsibility. Tests of insanity are explicit in excluding ban abnormality manifested only by repeated criminal or otherwise antisocial conduct.Q1 McSherry is rightly concerned that if APD is accepted as a form of mental impairment then persistent criminality could become its own defence. However, psychopathy is a separate clinical construct to APD, a relatively homogeneous developmental disorder within APD’s broad sweep. Psychopathy occurs at a substantially lower rate than APD in the forensic population, at less than 30% (e.g., Widiger et al., 1996). It is assessed using reliable and valid diagnostic tools, predominantly Hare’s Psychopathy Checklist Revised (PCL-R; Hare, 1991), an empirically based list of behavioural features of psychopathy. Unlike APD, an antisocial lifestyle is only part of the diagnostic criteria for psychopathy. Psychometric analysis of the PCL-R consistently identifies two factors. Factor 1 corresponds to personality features (affective and interpersonal traits), including, for example, dlack of remorse or guiltT, dcallous/lack of empathyT, and dlack of affect and emotional depthT. Factor 2 of the PCL-R taps features of an antisocial lifestyle, for example, dimpulsivityT, dshort-tempered/poor behavioural controlsT, and dlack of realistic long-term plansT. Assessment usually involves an extensive interview by a trained clinician or researcher together with review of institutional files. The personality features of the disorder—for example, the selfishness, callousness, and remorseless use of others—enjoy central importance in the construct of psychopathy (Cooke & Michie, 1997). Factor 1 items are relatively independent of socioeconomic, educational, and family background (Harpur, Hare, & Hakistan, 1989), and are stable across the life span (Harpur & Hare, 1994). Despite its emphasis on personality features, the PCL-R is a better predictor of future violence than is APD (Hemphill, Hare, & Wong, 1998). Indeed, the PCL-R predicts future violence over and above the influence of past criminal behaviour. These data should allay fears that a diagnosis of psychopathy (as assessed by the PCL-R) represents little more than an egregious antisocial record. The main objection commonly raised to exculpating psychopathic offenders is that they are not relevantly impaired. McSherry (1999), for example, argues that psychopathic individuals do not experience altered perceptions of reality or significant cognitive dysfunction and are not distressed as a result of their condition. McSherry (1999) argues that psychopathic individuals are able to breasonQ and it is this that has led Australian courts to reject anti-social personality disorder as ban independent basis for the defence of mental impairment.Q (McSherry, 1999, p. 139). Similarly, Campbell (1992) denies that psychopathic offenders should be exculpated on the basis that their antisocial behaviour is not inherently irrational in the way that the behaviour of a patient with a psychosis might be. Schopp and Slain (2000), too, cite adequate practical reasoning in psychopathy as grounds for possession of criminal responsibility. It is with the objection that psychopathic offenders are not relevantly impaired that we are primarily concerned in this paper. It is true that psychopathic offenders are not psychotic or delusional (although

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American Law Institute Model Penal Code Section 4.01 (Proposed Official Draft, 1962).

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their rationality is disputed; see, for example, Elliot & Gillett, 1992). What is important is why these conditions excuse, and here we challenge the claim that psychopaths do not experience significant cognitive dysfunction. We argue that psychopathic offenders experience significant dysfunction in domains that are directly relevant to an assessment of their responsibility. We present recent evidence suggesting that psychopathic offenders fail to pass through a crucial moral developmental stage in early childhood. As a result, they are incapable of forming genuine moral concepts and so lack the essential prerequisites of moral life. We conclude that psychopathic offenders cannot meet the requirement of moral understanding in the criminal code, and further argue that this requirement cannot be easily dispensed with. This poses particularly troubling questions for our notions of criminal responsibility and its connections to moral responsibility and moral address. Nevertheless, we suggest that there is a principled way to address the offending behaviour of those who cannot meet the requirements of criminal responsibility.

2. Criminal responsibility and mental impairment McSherry (1997) has provided a useful discussion of the requirements for criminal responsibility on grounds of mental impairment, with respect to the Australian Criminal Code Act 1995 (Cth) Section 7.3 (1). This defence of mental impairment excuses a person from criminal responsibility if at the time of the offence: [T]he person was suffering from a mental impairment that had the effect that . . . the person did not know that the conduct was wrong (that is the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong) . . . Similar requirements for knowledge of the wrongfulness of conduct are stipulated by the American Law Institute Model Penal Code2 and the M’Naghten Rules.3 What is meant by dwrongT here? According to McSherry (1997), dwrongT in Australian common law does not mean dcontrary to lawT. A person might know that an act was contrary to law and not know that it was wrong. As discussed by McSherry, the High Court has held (Stapleton v. The Queen)4 that the critical factor is the capacity to distinguish right and wrong in more than a simply legal sense. Thus, in the case of Hadfield,5 Hadfield tried to kill the King (knowing it was legally wrong) in order to be hung because he believed that his execution would save the world. Thus he knew what he was doing was legally wrong, but if the Law responded to that alone, he or his lawyers would be unable to appeal to the M’Naghten rules. In Canada, too, the courts have held that dwrongT here means dmorally wrongT and not just dcontrary to lawT (see McSherry, 1997, pp. 185–186). McSherry (1997) also explores two legal interpretations of the verb bto know.Q The first is a merely verbalistic sense and refers to the kind of knowledge one might be said to gain through rote learning. The second sense requires a deeper understanding of the moral significance of one’s act. The draft code, says McSherry, appears to point to the second interpretation and to require deep understanding. 2 3 4 5

Ibid. M’Naghten (1843) 10 C1 and Fin 200 at 210; 8 ER 718 at 722. Stapleton v. The Queen 86 CLR 358, 1952. R v. Hadfield 27 Tr 1281.

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It requires that the person be able to reason with a moderate degree of sense and composure about whether the conduct (as perceived by reasonable people), was wrong. This certainly requires a greater depth of understanding than the mere capacity to recite a moral rule. It seems to require, at least, the possession of moral concepts and the capacity (whether exercised or not) to apply them. McSherry (1997, pp. 186–187), however, rejects the idea that this deeper understanding should be dfused with affectT or involve the capacity to identify with the victim, since beven those considered sane may not have strong feelings of repugnance concerning an act considered to be dwrongT. It is therefore irrelevant in determining whether a person appreciates that an act is wrongQ. With respect to this claim, we can agree with McSherry that ordinary persons will not always experience dstrong feelings of repugnanceT concerning acts they judge to be wrong. However, this does not imply that some impairments of affect (such as are seen in bipolar disorder for example) are not relevant to our assessments of responsibility, or that affect plays no role in the appreciation of the act as wrong. Much contemporary research on moral development points to the importance of affect in early moral cognition and in the development of moral concepts (e.g., Eisenberg, 2000; Hoffman, 2000; Kochanska, 1994). Furthermore, recent research suggests that due to a specific affective impairment, psychopathic offenders can only dknowT an action is wrong in the merely verbalistic sense found insufficient by McSherry (1997) and the courts. We now turn to this research.

3. Psychopathy and mental impairment Psychopathy is associated with a number of affective deficits. Relevant to the current thesis are purported abnormalities in fear (e.g., Lykken, 1957; Patrick, Cuthbert, & Lang, 1994), empathy (e.g., Blair, 1995), and somatic marker generation (e.g., Damasio, Tranel, & Damasio, 1990). We focus on these affective processes because, in addition to evidence that they are impaired in psychopathy, there have been suggestions that they are also important for moral development. We will briefly outline the proposed roles of fear, empathy, and somatic markers in moral development. We also review the growing evidence that psychopathic individuals are impaired in these affective processes. We will argue that, according to theoretical accounts of moral development, there are therefore a priori reasons to anticipate that the moral understanding necessary for criminal responsibility may not fully develop in psychopathic individuals. We then describe research using the moral/conventional distinction task that suggests that this is indeed the case.

4. Fear, moral development, and psychopathy Eysenck and others (e.g., Eysenck, 1977, 1998; Fowles, 1980; Lykken, 1995) have proposed that the fearful anticipation of punishment is an important part of socialization. During development, transgressions are punished (by parents, teachers, society, or peers). This punishment reinforces that the transgression is a wrong thing to do. In Eysenck’s view, moral conscience is a conceptualisation arising from this vast body of conditioning experience. Some developmental psychologists have also stressed the importance of fear as a facilitator of the development of moral conscience. It has been suggested that fearful children (or those prone to high emotional reactivity) are more prone to experience

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guilt (e.g., Dienstbier, 1984; Kagan, 1998; Kochanska, 1993; Kochanska, Gross, Lin, & Nichols, 2002; Lykken, 1995). Guilt is thought to be an important precursor to moral internalisation (e.g., Hoffman, 2000; Kochanska et al., 2002), as well as an important dmoral emotionT (see Eisenberg, 2000). Several researchers have cited a deficit in fear as a critical factor in the development of the psychopathic personality (e.g., Fowles, 1980, 1994; Gray, 1987; Lykken, 1957; Quay, 1993). The psychopathic individual’s fear deficit is well established. Clinical descriptions support a deficit in the experience of fear (e.g., Cleckley, 1950; Hare, 1993): One rapist, high on the Psychopathy Checklist, commented that he found it hard to empathise with his victims. bThey are frightened, right? But you see I don’t really understand it. I’ve been scared myself and it wasn’t unpleasant.Q (Hare, 1993, p. 44) Psychophysiological findings are consistent with clinical reports. Psychopathic individuals are deficient in their ability to develop conditioned fear responses, for example, they show significantly reduced skin conductance response in anticipation of shock (e.g., Lykken, 1957), and reduced physiological responses while imaging themselves in fearful situations (Patrick et al., 1994). Fear processing in psychopathy has also been investigated using the potentiated startle reflex paradigm. Normally, the magnitude of the startle reflex is increased (potentiated) if the startling event is preceded by a threatening image. However, in psychopathic individuals, potentiation is significantly reduced (e.g., Patrick, Bradley, & Lang, 1993).

5. Empathy, moral development, and psychopathy The two most developed accounts of the role of empathy in the development of moral conscience are those of Hoffman (e.g., Hoffman, 2000) and Blair (1995). Hoffman regards empathy as requiring bthe involvement of psychological processes that make a person have feelings that are more congruent with another’s situation than with his own situationQ (Hoffman, 2000, p. 30). He focuses particularly on empathic distress, the affective response to another’s distress. Briefly, he proposes that when parents explain to a child why their bad behaviour has caused distress in another, the parent makes the victim’s distress salient to the child. This naturally evokes empathic distress in the child, and the child feels guilt. These discipline incidents are represented mentally in the form of dscriptsT— general and increasingly abstracted outlines of familiar events—yet retain the motivational components of empathy and guilt. Gradually, the moral norm of considering others’ rights and welfares—the constant theme of the disciplining parent—becomes part of the child’s internal motive system. Eventually, the association between moral transgressions and associated empathy-based guilt is so strong that anticipatory guilt is generated from merely the contemplation of a moral transgression. Blair’s (1995) account attributes an equally key role to affective responsiveness to another’s distress (his definition of empathy). He proposes that during development, the aversive arousal produced by perceiving distress in others becomes associated with acts that cause distress (e.g., acts that violate the welfare or rights of others). With numerous pairings of moral transgressions and distress, by a process of classical conditioning the mental representation of a moral transgression becomes sufficient to generate aversive arousal. This arousal is interpreted as a moral emotion, signals that the act under consideration is morally wrong, and functions to inhibit the act.

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A lack of empathy is of course one of the defining clinical characteristics of psychopathy: bDo I feel bad if I have to hurt someone? Yeah, sometimes. But mostly it’s like . . . uh . . . [laughs] . . . how did you feel the last time you squashed a bug?Q A psychopath doing time for kidnapping, rape, and extortion. (Hare, 1993, p. 33) Five studies have investigated the autonomic responsiveness of psychopathic individuals to distress in others (Aniskiewicz, 1979; Blair, 1999; Blair, Jones, Clark, & Smith, 1997; House & Milligan, 1976; Sutker, 1970). In the three older studies, participants observed confederates they thought were being given electric shocks, and their skin conductance responses were measured. Two studies found reduced skin conductance responses in the psychopathic individuals compared with controls (Aniskiewicz, 1979; House & Milligan, 1976), although the third study did not (Sutker, 1970). More recently, Blair et al (1997) examined psychopathic criminals’ skin conductance responses to visual distress cues, threatening, and neutral stimuli. The psychopathic offenders showed a reduction in their skin conductance responses to distress cues only, in comparison with incarcerated nonpsychopathic participants. Blair (1999) subsequently found that children with psychopathic tendencies show a similar hyporesponsiveness to distress cues. Interestingly, Blair and colleagues have found evidence of impairments in recognising facial expressions of distress in children with psychopathic tendencies (Blair & Coles, 2000; Blair, Colledge, Murray, & Mitchell, 2001; Stevens, Charman, & Blair, 2001; although see Kosson, Suchy, Mayer, & Libby, 2002). Psychopathic adults have been found to be specifically impaired in their recognition of fearful vocalizations (Blair et al., 2002). These findings are consistent with an insensitivity to distress in psychopathic individuals.

6. Somatic markers, moral development, and psychopathy The somatic marker hypothesis posits that bodily states, or dsomatic markersT, guide emotional decision-making (e.g., Damasio, 1994). Contemplation of a possible behavioural act activates a juxtaposed emotional response (or representation of an emotional response) to that act. This emotional response, the somatic marker, reflects the previous reward and punishment history associated with the performance of acts of the sort under consideration. The ventromedial frontal lobes are hypothesised to play a critical role in the generation of somatic markers (e.g., Bechara, Damasio, Damasio, & Anderson, 1994). It has been suggested that damage to somatic marker functioning early in development may impair the normal acquisition of moral knowledge. Anderson, Bechara, Damasio, Tranel, and Damasio (1999) studied two patients who suffered ventromedial frontal lobe damage early in childhood. Both patients showed psychopathic features such as irresponsible and criminal behaviour, abusive behaviour towards others, and lack of empathy and remorse. The patients were tested with the Four-Pack Gambling task, a task designed to index the functioning of somatic markers, both behaviourally and psychophysiologically (e.g., Bechara et al., 1994). Participants are told to select cards at will from any of four decks. Two decks yield a net loss (dbad decksT). The other two decks yield a net gain (dgood decksT). Normal individuals develop anticipatory skin conductance responses prior to choosing from the dbad decksT, which Bechara and colleagues interpret as a manifestation of a dwarningT somatic marker. Normal individuals also learn to avoid the bad decks. In contrast, patients with ventromedial frontal lobe damage

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do not develop anticipatory warning somatic markers prior to choosing from the bad decks, and do not learn to avoid these decks (e.g., Bechara, Tranel, Damasio, & Damasio, 1996). Both Anderson et al.’s early onset damage patients performed poorly on the task and failed to show psychophysiological evidence of the presence of somatic markers. The patients were then assessed in moral understanding. Their responses revealed an egocentric perspective on moral decision-making with decisions based on avoidance of punishment, equivalent to the moral reasoning of normal children of about age 10. It has therefore been suggested that somatic markers may be crucial for building up functional moral knowledge (Anderson et al., 1999; Dolan, 1999). Damasio et al. (1990) have suggested that an early impairment in somatic marker generation might underlie psychopathy. There is some preliminary evidence that psychopathic individuals show abnormal somatic marker functioning, although the findings are mixed. Two studies have found that psychopathic individuals perform similarly to controls on the Four-Pack Gambling task (Blair & Cipolotti, 2000; Schmitt, Brinkley, & Newman, 1999), while two studies have found impairments consistent with somatic marker deficits (Blair, Colledge, & Mitchell, 2001; Mitchell, Colledge, Leonard, & Blair, 2002). However, it is not yet clear whether atypical performance of psychopathic individuals on the Four-Pack Gambling task should be attributed to impaired somatic markers (for discussion of important differences between psychopathic individuals and patients with ventromedial frontal lobe damage, see Blair & Cipolotti, 2000).

7. Implications of affective deficits for moral development in psychopathic individuals As we have outlined, there is strong evidence of deficits in fear and empathy in psychopathic individuals, and mixed evidence of deficits in somatic marker production. Each of these three affective processes has been regarded as important, in various cognitive accounts of moral development. Our aim in briefly reviewing this literature is not to attempt to resolve which provides the best account of moral development, or the impairment in psychopathy. Rather, it is to highlight that there are pre-existing suggestions in the literature that psychopathic individuals may have deficits that cause them to fail to internalise moral norms during the course of their development. If this is the case, then this could have serious implications for their ability to understand that acts are morally wrong, a critical requirement for criminal responsibility. In the next section, we describe recent work by Blair and colleagues using the moral/conventional distinction test. This work suggests that psychopathic individuals do not know that their behaviour is morally wrong in the full sense required for criminal responsibility.

8. The performance of psychopathic offenders on the moral/conventional distinction task The moral/conventional distinction task was first used in the developmental literature to assess the claim that moral and conventional rules occupy different developmental domains (Turiel, 1983). In line with this position, normally developing children distinguish between moral transgressions (that impinge upon the rights, welfare, or trust of others) and acts that break social conventions. An example of a moral transgression used in the test is one child pulling the hair of another child. An example of a conventional transgression is a child coming to school wearing pyjamas. Children judge moral transgressions to differ to conventional transgressions in a number of ways, but most crucially they judge moral rules to be less

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modifiable than conventional rules. Children are asked whether a particular act would still be wrong even if there were no rule against it prescribed by an authority figure (e.g., dWould it be okay for Jim to pull another child’s hair if the teacher says Jim can?T). This dauthority jurisdictionT question assesses whether the child is aware that, for moral but not conventional transgressions, there is something other than a societal rule that makes them wrong. Children as young as 39 months recognise that conventional transgressions are acceptable once authority jurisdiction is removed but that moral transgressions remain wrong (Smetana & Braeges, 1990), and the distinction is also seen cross-culturally (e.g., Nucci, Turiel, & Encarnaciou-Gawrych, 1983; Song, Smetana, & Kim, 1987). The distinction is also made by children with autism and children with mild learning difficulties (Blair, 1996). Blair (1995) (replicated in Blair, Jones, Clark, & Smith, 1995) assessed the sensitivity of incarcerated adult psychopathic offenders of normal intelligence to the moral/conventional distinction compared with nonpsychopathic offenders (all of whom were charged with murder or manslaughter). He found that psychopathic offenders were insensitive to the distinction between moral and conventional transgression. Unlike the nonpsychopathic offenders, the psychopathic group did not judge the acceptability of moral transgressions to be any less dependent upon authority jurisdiction than conventional transgressions. (Interestingly, the pattern for psychopathic offenders was for them to continue to rate both conventional and moral transgressions as wrong even after authority rule was removed. Blair suggested that this may have been because they were dfaking goodT). Blair (1997) subsequently found that children with psychopathic tendencies made a significantly weaker moral/conventional distinction compared with nonpsychopathic children with emotional and behavioural difficulties. The significance of these findings with respect to criminal responsibility is striking, particularly when the psychopathic offenders’ performance is compared with that of both typically and atypically developing children. As noted, the developmental literature shows that the distinction is made by 4-yearold children, as well as a group of 7-year-old learning disabled children with a mean verbal IQ hovering at the subnormal threshold (Blair, 1996). Moreover, even a group of children with autism with a similarly low mean verbal IQ and severe deficits in the understanding of the mental states of others were sensitive to which transgressions impinged upon the welfare and rights of others, which transgressions did not, and the moral implications of the difference (Blair, 1996). The inferiority of the psychopathic offender’s moral understanding compared with these other populations challenges the relevance of claims that psychopathic offenders are able to breasonQ about moral matters (e.g., Campbell, 1992; McSherry, 1999). Thus, while psychopathic offenders certainly appear to know what acts are prohibited by society or the law (and therefore know that their transgressions are legally wrong), they do not appear to have the capacity to judge an act to be morally wrong, the judgement that we, following McSherry (1997), interpret the draft code to require. This is a serious deficit, and one highly relevant to an assessment of criminal responsibility. We would argue that psychopathic offenders, who fail to understand the distinction between moral wrongs and conventional wrongs, cannot be considered to be moral agents.

9. Why moral understanding matters for criminal responsibility The empirical evidence outlined above strongly suggests that psychopathic offenders lack even the basis of moral understanding; they cannot meet the conditions of moral agency and so are not the kinds

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of beings to whom we should attribute moral responsibility. They simply do not meet the requirement for moral understanding as it is currently interpreted. Nevertheless, we might ask why this kind of moral understanding is thought important for the purposes of the criminal justice system. Why not adopt a lesser standard for criminal responsibility requiring only something such as relatively undisturbed intellectual function and awareness of what the law prohibits? It might be argued that the development of a careful distinction between the conditions of criminal and moral responsibility would provide the answer in these hard cases. One obvious difficulty with this kind of suggestion is that it might cast the net too wide and force us to hold responsible people we think should be excused. However, the central problem, and the one we turn to next, has to do with some of the central purposes of punishment and the conceptual connection between those purposes and the stronger requirement of moral understanding.

10. The purposes of punishment Theories of the purposes and justifications of punishment divide broadly into the retributivist and the utilitarian. Utilitarian theories are fundamentally forward looking and focused on the beneficial consequences for society and the individual that may be brought about by the punishment. Retributivist or desert theories are fundamentally backward looking and focused on the agent and their relation to the wrongful act. We may identify the broad functions of punishment as follows. First, there are the distinctively retributivist functions of punishment. Findings of criminal responsibility and subsequent punishment serve to express the community’s moral condemnation of the offence and the offender. They aim to restore the balance of rights disturbed by the crime, and to deliver justice to both victim and offender. It is surely necessary to retributivist justifications that punishment be morally deserved. So it is crucial that the offender meets the conditions of moral responsibility. Second, there are functions of punishment that are primarily utilitarian and forward looking. These are concerned with deterrence and with protection of the community. Here the primary consideration in deciding whether and how much to punish is how well it will serve these legitimate aims. Third, a concern with reform of the offender has elements of both the utilitarian and the retributive/ moral expressive approach. Most pluralist theories of punishment see its utilitarian purposes as constrained by principles of justice that are themselves not reducible to utilitarian purposes. That justice is done matters, independently of its other outcomes (see Ten, 1987, chap. 4). But such principles do not merely act as a side-constraint on the pursuit of utilitarian goals by, for example, ruling out punishment of the innocent. They say something important about the nature of punishment itself. Punishment is a moral sanction, not a mere penalty such as a parking fine, which may be imposed without the moral weight of a finding of criminal responsibility. As Feinberg (1970, p. 98) notes, Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on either the part of the punishing authority himself or of those bin whose nameQ the punishment is inflicted. Punishment . . . has a symbolic significance. Penalties may be justified in purely utilitarian terms, in terms of their good consequences. Infringements that attract penalties (e.g., parking infringements) are usually strict liability offences. In

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these cases, we are not concerned with the moral status and capacities of the offender; in cases of punishment we must be. On any retributivist account, punishment has to be fair and deserved. A finding of criminal responsibility inescapably involves moral blame in a way that an infringement notice does not. Assignment of criminal responsibility to the innocent or the incapable is thus not fair, and could not properly serve the moral expressive purposes of the criminal law. If it is to remain distinct from mere vengefulness, if it is to have moral authority, the sentiments to which a criminal finding and the imposition of punishment gives formal expression must be appropriate and deserved. The recipient must be genuinely blameworthy. That one has committed the offence is a necessary condition for the application of moral sanctions, but it is not a sufficient condition. For such sanctions to be morally appropriate, they must be directed only to those who meet some minimal requirements for moral agency. Moral address is not only wasted on nonmoral beings. It is unjust. We pervert the distinctively moral purposes of punishment (both backward and forward looking) and the moral authority of the criminal law when we misapply punishment, using it instead to vent our fear or dislike of the offender. Of course, it might be argued that deterrence and reform are also legitimate aims of punishment, and that they are sufficiently separate from its expressive functions to gain purchase even in cases where moral address misfires. Perhaps the utilitarian purposes are sufficient in these cases. Or it might be claimed that the expressive functions of the law are not a form of moral address that presumes or requires moral agency in the addressee. Perhaps we should understand them, rather, as an expression and affirmation of society’s standards directed at society at large rather than especially to the offender. Can any of these considerations provide adequate justification for punishment in the absence of moral understanding in the offender? First, let us consider the goal of reform. While we agree that reform of the offender has a clear utilitarian purpose, since reform will most effectively prevent future criminal acts, it should also be seen as having a nonreducible moral/expressive element. The goal of reform involves seeing the offender as redeemable, as having certain (though perhaps underdeveloped) moral capacities, as being within the reach of moral address. Now some theorists argue that this attitude to an offender is one that we are morally required to take, and so we are morally required to punish: Nothing could count as having morally adequate grounds—for treating a person as beyond redemption. We owe it to every moral agent to treat him as one who can be brought to reform and redeem himself—to keep trying, however vainly, to reach the good that is in him, and to appeal to his capacity for moral understanding and concern. (Duff, 1986, p. 266) Duff sees punishment as a form of moral address which evinces, not only disapproval and condemnation, but also and necessarily a view of the recipient as a moral agent, as a member of the moral community. Such a view of the recipient is essential to the expressive function of punishment. As Strawson (2003, p. 90) puts it in his seminal paper dFreedom and ResentmentT: . . . attitudes of disapprobation and indignation are precisely the correlates of the moral demand [for goodwill] in the case where the demand is felt to be disregarded . . . The holding of them does not . . . involve. . . viewing their object other than as a member of the moral community . . .[it] is, rather, the consequence of continuing to view him as a member of the moral community; only as one who has offended against its demands. So the preparedness to acquiesce

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in that infliction of suffering on the offender which is an essential part of punishment is all of a piece with this whole range of attitudes . . . Nevertheless, this view of the offender may not be one, contra Duff, that we are always required to take. Strawson (2003, p.81) argues that the reactive attitudes of disapprobation and resentment will be out of place in cases where for reasons of bdeep-rooted psychological abnormality—or simply by reason of being a childQ the agent is incapable of taking their place in the moral community. Duff’s view must presume some minimal capacity for moral understanding and concern. If no such capacity exists, the expressive function that presumes it misfires. For it attributes a responsibility on the part of the psychopathic offender to acquire what they are incapable of acquiring. Kant (1991) argued (presciently, in view of the evidence we have cited) that no such duty could exist: There are certain moral endowments such that anyone lacking them could have no duty to acquire them. They are moral feeling, conscience, love of one’s neighbour and respect for oneself (selfesteem). There is no obligation to have these because they lie at the basis of morality, as subjective conditions of receptiveness to the concept of duty, not as objective conditions of morality. All of them are natural predispositions of the mind for being affected by concepts of duty. . . To have these predispositions cannot be considered a duty; rather, every man [as a moral being] has them, and it is by virtue of them that he can be put under an obligation. . .For if [a certain human being] really had no conscience, he could not even conceive of the duty to have one. . . (Doctrine of Virtue: 399–401). So the psychopathic individual him/herself could have no duty to undertake a program of moral development. The duty, rather, belongs to society to promote the moral development of the psychopathic offender if this should be possible. This is the only possible reading of the requirement of respect here. Igor Primoratz (1989) argues that we do not have any duty to respect wicked unrepentant criminals as moral agents. While claiming to support a broadly retributive expressionist account of punishment, Primoratz (1989, pp. 199–200) argues that the communicative function of punishment is limited to a stern expression of society’s condemnation that is directed, rather, at the criminal’s presumed selfinterest: . . . they are endowed with as lively an appreciation of their own interest as is everyone else. So if society’s condemnation of their misdeeds is really to reach them . . . it will have to be translated into . . . the language of self-interest. This translation is accomplished by punishment. Let us first note that understanding that a certain course of action is against your self-interest and understanding that it is wrong are quite different. Certainly, in the case of the psychopathic individual, there is no reason to think that punishment could accomplish this transition. Nor does the tone of the argument suggest that Primoratz believes it will. He surely has something else in mind. So just what is the expressive function supposed to be in Primoratz’s account? If it is not moral address, it begins to look like vengeance. But anger and the desire for revenge, understandable though it might sometimes be, cannot supply the needed moral justification for the imposition of the significant harms attached to a finding of criminal responsibility. Otherwise, we would be justified in holding children, those suffering delusions, and the intellectually disabled, criminally responsible for their behaviour, just in case their behaviour evoked those responses. A quick glance at tabloid television should assure us that it often does. To the extent that the law gives formal expression to vengeful emotions, it is rightly restricted in doing so by the very requirement of moral understanding and capacity that Primoratz wishes to reject.

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Our argument has been that psychopathic offenders meet the current standards of mental impairment and would do so even in the absence of a clause specifically including severe personality disorder as a form of impairment. The evidence that they are relevantly impaired in moral understanding is significant and growing. If this is right, then however much it goes against the grain, we should accept that psychopathic individuals fall into the category of blameless offenders. Any attempt to excise psychopathy as a form of impairment for the purposes of criminal responsibility and punishment is ad hoc—surely an undesirable feature in a criminal justice system. But establishing this leaves us with a significant practical problem. 11. The practical problem bI got a high score on your fucking test because the psychologist has a beef against me. He screwed me because in our group session I said he was full of crap. So now he says I’m a flaming psychopath, and you can’t treat me. So what the fuck do you do with me?Q Psychopathic offender complaining to Robert Hare (cited in Hare, 1998b, p. 114). Ordinarily, a finding of mental impairment has two kinds of possible outcomes. A first possible outcome is that it is accepted that the impairment mitigates (but does not wholly remove) criminal responsibility, and mitigation should be reflected in a lesser sentence or a noncustodial order. One reason for thinking that a less severe sentence is warranted in cases of mental impairment might be that the actions for which the individual is being punished do not properly reflect her character. That is, these might be cases where the impairment provides some excuse for the particular action but does not suggest that the agent is, in general, outside of the moral community. They are cases where the person was, as we say, dnot herselfT. In Strawson’s (2003) words (pp. 78), bwe shall not feel towards [the individual], when he acts as he does under abnormal stresses, as we should have felt towards him had he acted as he did under normal stresses.Q Moreover, someone whose criminal actions are out of character might reasonably be thought less likely to repeat them than someone whose criminal actions are in character. So both the expressive and utilitarian purposes of punishment would seem to be satisfied by less punishment in these cases. But psychopathic offenders are themselves when they act, in a way that, say, the woman suffering postnatal depression is not. Their actions proceed from their character and it could not often be said that their circumstances place abnormal stresses on them. The considerations that would usually justify a reduction in sentence do not apply here. A second possible outcome is that it is accepted that the impairment is sufficient to remove criminal responsibility. Thus treatment, rather than punishment, is mandated. Treatment options may vary between jurisdictions and with the seriousness of the offence. Robert Hare (1998a, p. 205), while arguing that psychopaths do satisfy the conditions for criminal responsibility, notes that bIf psychopathy was to be used as a defence for a criminal act, though, the flip side of the coin would be that the disorder is currently untreatable, and any civil commitment would probably be more or less permanent.Q This is surely a problem. Yet treatment options for dementia and intellectual disability are also limited or absent. The lack of known treatment for a condition should not be allowed to count as a reason for refusing to acknowledge the impairment caused by the condition. It does not in these other cases. In each of these cases, commitment to a psychiatric institution is likely to be a waste of time. In the case of the psychopathic offender there are further disadvantages. Psychopathic individuals are likely to disrupt and undermine treatment regimes for other patients, and staff understandably resent their presence.

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Reznek (1997, p. 245) has argued that these substantial problems provide good reasons to choose not to classify psychopathy as a disease which, according to his account, would exculpate them from criminal responsibility on the grounds of character change: The social and political cost of classifying psychopaths as a disease suggests at present that we should view it as the embodiment of evil instead. However, as we have argued, such proposals are unjustifiably ad hoc. While treatment is not currently a viable option, the alternative—jail—is punishment. Punishment implies blame, and we have argued that blame at least is unwarranted. So what do we do?

12. Blameless offenders and the right to self-defence The approach we think is the most promising in dealing with the problem of blameless offenders, is suggested by a recent article by Anthony Ellis (2003). Ellis argues that the only justification for the use of force against another (and so the only justification for punishment) is self-defence, and here he includes its correlates. The deterrence and community protection functions of punishment gain their legitimacy, not from utilitarian considerations of welfare, but from the fundamental moral right of selfdefence of one’s significant interests. Punishment achieves this, he thinks, not through the prevention involved in removing the offender from circulation, or by reform of prisoners, but through the deterrence provided by the threat of punishment. Ellis sees this deterrence as individual. It is not that sentencing one person is permitted for the purpose of deterring others from acting likewise. That would involve treating someone as a mere means which is indefensible. Rather, he argues that we should understand the provisions of the criminal law as presenting each individual with a credible threat of retaliation if they transgress. While the commission of an offence is evidence that individual deterrence has failed as a means of self-defence, the separation of powers in Anglo-American systems of law ensures that retaliatory mechanisms are more or less automatically triggered by the offence. The principle of proportionality, which governs self-defence, restricts what may be done or threatened in retaliation to the minimum force necessary to protect the interest at stake. In general, the punishment cannot be worse than the infringement of interests it is designed to prevent. Ellis claims that his deterrence account can allow for those cases we intuitively think mitigate or remove blame and the need for punishment. The police and courts rightly have some discretion in such matters. If for reasons of immaturity, for example, the threat is not understood, it cannot deter. The threat is therefore not a means of self-defence, and punishment may not be warranted by considerations of selfdefence. In the case of the psychopathic offender, it appears Ellis would say that although the threat appears to fail to deter, the rate of offending would be much higher without it. So the threat does provide some defence against their activities. We cannot provide a detailed evaluation of Ellis’ deterrence theory here, although we are doubtful that it will be sufficiently discriminatory. We do think however that the right to self-defence delivers the best prospect of a consistent and principled approach to the disposition of blameless offenders. Where an offender is blameless, the backward looking retributivist considerations tell us that punishment is unjust. Forward-looking utilitarian considerations of deterrence are always hostage to empirical fortune—and in the case of blameless offenders, the capacity of punishment to deter seems slight. But the principles of

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self-defence permit us to use force against those who may not be candidates for moral blame or punishment. I may, if it is necessary to protect myself, use deadly force against someone trying to kill me or do me serious bodily harm, even if that person is acting under a delusion and is thus morally innocent. If I injure or kill my attacker in these circumstances, there is no sense in saying I am either blaming or punishing him. I am just trying to protect myself. The community may likewise be morally justified in using proportional force to protect its members under the right of self-defence. The obvious objection to raise here is that it won’t work. After all, the offence has already been committed. Where is the justification from self-defence in detaining the offender? It is not an act of selfdefence to hunt down and kill my rapist after the event. We think the point here is precisely that if the element of self-defence is missing after the offence, the blameless offender should go free, as they do, for example, in cases of automatism or in cases of postnatal psychosis. But if a real threat persists to the serious interests of members of the community, then measures such as preventive detention may be justified by the right to self-defence.6 This is not so radical a step as controversy over dangerous offenders legislation might lead one to believe. Judges already include a preventive component to some prison sentences where they believe the offender poses a continuing threat. Intervention orders or apprehended violence orders place restrictions on a person that are fundamentally preventive not punitive. And persons reasonably believed to be dangerous as a result of a delusional disorder can already be detained and their detention is not thought of as punishment either for what they have done or for what they might do. The right of self-defence is restricted by principles of proportionality and minimum force and these will dictate that detention, as opposed to other forms of supervision or restriction, should be the last resort. The balancing of rights here is difficult and delicate and must always be subject to judicial oversight and review, but we don’t see that it is more fraught in the case of the psychopathic offender than it is in other cases. The most serious objection to preventive detention or other forms of restriction is that it will lead to injustice. Even if we have a right to self-defence, it could not justify this particular forward-looking strategy since predictions of dangerousness are unreliable and we will surely end up locking up people who would not have reoffended. Here it must be admitted that the justification provided by a continuing threat will fail if we cannot assess the threat with a high degree of accuracy. If dangerousness really cannot be predicted, then detention of psychopathic offenders will not be justified by self-defence considerations. We will be stuck with the practical dilemma outlined above and will no doubt continue to deal with it by the de facto ditching of the requirement of moral understanding, until this strategy becomes untenable in the light of increasing evidence of impairment. However, the prospects for assessing the threat posed by psychopathic offenders are promising.

13. Assessing the need for self-defence against the psychopathic offender Psychopathic offenders commit significantly more crimes, including violent and aggressive crime, than do nonpsychopathic offenders (e.g., Hare & McPherson, 1984; see Hare, Strachan, & Forth, 1993). Psychopathic criminals’ propensity for violent crime remains relatively high even at the advent of middle 6 It might be argued here that the threat must be proximate for the right of self-defence to be invoked. We think that it only needs to be persistent and highly probable—particularly when we move beyond individual self-defence. But even in individual self-defence, the strict requirement of proximity is under challenge as in battered wife cases.

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age (Hare, Forth, & Strachan, 1992; Hare, McPherson, & Forth, 1988; Harris, Rice, & Cormier, 1991; Porter, Birt, & Boer, 2001). As a group, psychopathic offenders bare responsible for a disproportionate amount of the serious repetitive crime and violence in our societyQ (Hare et al., 1992, p. 289). Psychopathy is also a significant predictor of violent recidivism (Hemphill et al., 1998; Salekin, Rogers, & Sewell, 1996). It is estimated that psychopathic offenders are about four times more likely to violently reoffend than nonpsychopathic offenders (Hemphill et al., 1998). In absolute terms, two recent reviews estimate that about 50% to 70% of psychopathic offenders will violently recidivate within the follow-up period (Hemphill et al., 1998; Salekin et al., 1996). The rate of violent recidivism is also high among psychopathic sex offenders, with 90% violently reoffending within 7 years (Quinsey, Rice, & Harris, 1995; Rice & Harris, 1997). While most research has been conducted with white, North American, male populations, recent research suggests that the findings can be generalized crossculturally (Hare, Clark, Grann, & Thornton, 2000; Grann, La˚ngstro¨m, Tengstro¨m, & Kullgren, 1999), and to female offender populations (Salekin, Rogers, Ustad, & Sewell, 1998). The data outlined above show that the psychopathic offender presents a strong and continuing threat to society. Indeed, the PCL-R is regarded by some as the best predictor of violent recidivism (e.g., Salekin et al., 1996; Hemphill et al., 1998; although see Gendreau, Goggin, & Smith, 2002). It is noteworthy that prediction studies are likely to underestimate future violence. As Hart (1998) has noted, formal or official records used in follow-ups of criminal behaviour will not be comprehensive. Individuals may have successfully evaded arrest for violent crimes or moved to another jurisdiction. The data presented also do not take into account psychopathic offenders who recidivate nonviolently but who nonetheless violate the welfare and rights of others. Is the diagnosis of psychopathy in an offender associated with a sufficiently high probability of future danger to society to warrant detention by reason of self-defence? Of particular concern is whether the false-positive rate (the proportion of psychopathic offenders who will not violently reoffend) is sufficiently low. While acknowledging the imperfect predictive power of the PCL-R, the false-positive rate appears to be comparable with predictive accuracy in other judicial domains. For example, Arkes and Mellers (2002) calculated that, even using a generous estimate of strength of evidence, approximately a third of jury convictions will be incorrect. Eyewitness testimony, too, plays a key role in convictions, yet is known to have a similarly imperfect accuracy (e.g., Behrman & Davey, 2001; Levi, 1998; Steblay, Dysart, Fulero, & Lindsay, 2003). Although the accuracy of psychopathy for predicting future violence is comparable to these other judicial procedures, clearly, greater predictive accuracy would be desirable. Indeed, recently criticisms have been made of the accuracy of the PCL-R with regard to the prediction of future dangerousness in judicial contexts (e.g., Edens et al., 2001; Freedman, 2001). However, these arguments have been made in the context of psychopathy as an aggravating, rather than mitigating, factor in sentencing. For example, as noted earlier, a diagnosis of psychopathy may result in harsher judicial sentencing (Zinger & Forth, 1998) or may even be used to justify imposition of the death penalty rather than a life sentence (Edens et al., 2001). Edens et al. (2001) and Freedman (2001) have rightly argued that when an offender’s life or liberty is at stake, a high standard of accuracy in predicting future dangerousness is ethically necessary. However, if psychopathy was regarded as an exculpating factor, as we have argued it should be, the consequences of a false-positive prediction are arguably less severe. An offender convicted of a serious crime will be detained, regardless of the presence or absence of a diagnosis of psychopathy. Furthermore, a diagnosis of psychopathy should serve to protect against the death penalty in capital cases, rather than

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increase its likelihood. The main concern is that, on the basis of an inaccurate prediction of future violence, an offender diagnosed as psychopathic will be detained longer than they would otherwise be in the absence of a diagnosis of psychopathy. As one psychopathic offender put it to Hare, a high PCL-R score serves to bflush their lives down the drainQ (Hare, 1998a, p.203). This is a serious concern, and one perhaps best addressed by shedding the unsubstantiated assumption that psychopathy is untreatable, and devoting research attention to the development of successful treatment programs (Salekin, 2002). The prediction of violent recidivism will of course never be completely accurate, as is also true of other judicial procedures such as jury decision-making and eyewitness testimony. The ethical issues we have raised highlight the need for improved predictive accuracy, and greater understanding of the factors—affective, cognitive, environmental—that cause psychopathic offenders to act violently. However, the predictive power of psychopathy is nonetheless significant. We therefore suggest that, in the case where the likelihood of future violence is sufficiently high, we are justified in detaining psychopathic offenders under considerations of self-defence.

14. Summary We have argued here that to attribute criminal responsibility to psychopathic individuals is to ignore substantial and growing evidence that psychopathic individuals are significantly impaired in moral understanding. They do not appear to know why moral transgressions are wrong in the full sense required by the law. As morally blameless offenders, punishment as a basis for detention cannot be justified. Moreover, as there are currently no successful treatment programs for psychopathy, nor can detention be justified on grounds of treatment. Instead, we argue detention on the grounds of selfdefence, due to the severe and continuing threat posed by the psychopathic criminal. Acknowledging that the psychopathic offender is not criminally responsible would clearly have significant implications for their treatment in the judicial system. Moreover, explicit acknowledgment that psychopathic offenders are selectively but significantly mentally impaired might act as a motivation for the development of much-needed, targeted, treatment and management programs. We do not deny that psychopathic offenders are dangerous and dcalculating predatorsT (Hare, 1998a, p. 205). However, to ignore the substantial evidence that psychopathic offenders are not criminally responsible is itself a dangerous threat to criminal justice. References American Psychiatric Association. (1994). Diagnostic and statistical manual of mental disorders (4th ed.). Washington, DC7 Author. Anderson, S., Bechara, A., Damasio, H., Tranel, D., & Damasio, A. (1999). Impairment of social and moral behavior related to early damage in human prefrontal cortex. Nature Neuroscience, 2, 1032 – 1037. Aniskiewicz, A. S. (1979). Autonomic components of vicarious conditioning and psychopathy. Journal of Clinical Psychology, 35, 60 – 67. Arkes, H. R., & Mellers, B. A. (2002). Do juries meet our expectations? Law and Human Behavior, 26(6), 625 – 639. Bechara, A., Damasio, A., Damasio, H., & Anderson, S. (1994). Insensitivity to future consequences following damage to human prefrontal cortex. Cognition, 50, 7 – 15. Bechara, A., Tranel, D., Damasio, H., & Damasio, A. (1996). Failure to respond autonomically to anticipated future outcomes following damage to prefrontal cortex. Cerebral Cortex, 6, 215 – 225.

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