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
should be held criminally responsible. After describing
the positive law of criminal responsibility in general
and as it applies to psychopaths, it suggests that
psychopaths lack moral rationality and that severe
psychopaths should be excused from crimes that
violate the moral rights of others. Alternative forms
of social control for dangerous psychopaths, such as
involuntary civil commitment, are considered, and the
potential legal implications of future scientific under-
standing of psychopathy are addressed.
Keywords Psychopathy . Legal responsibility .
Criminal responsibility . Antisocial personality disorder .
Rationality . Coercion
Introduction
Psychopathy is a disorder characterized by emotional
abnormalities, such as lack of empathy, conscience
and concern for others, and by conduct abnormalities,
such as repetitive antisocial behavior. It is estimated
that 25% of convicts serving prison terms suffer from
psychopathy, which is a substantial risk factor for
crime. The law’s response to psychopathic criminals
S. J. Morse (*)
University of Pennsylvania Law School,
Philadelphia, PA 19104-6204, USA
e-mail: smorse@law.upenn.edu
is therefore an important moral and practical policy
issue. In particular, should the law hold psychopaths
criminal responsible? If so, how should psychopathy
be taken into account at sentencing. If not, are there
sensible alternative means to address the potential
harms psychopathy produces?
This article begins by considering the criminal
law’s current positive theory of responsibility. It
demonstrates that the capacity for rationality and the
absence of coercion are the two most generic
responsibility criteria and that the lack of rational
capacity and coercion are the two most generic
excusing conditions. It then turns to the current
criminal law response to psychopaths, which is to hold
the psychopath entirely criminally responsible and not
subject to involuntary civil commitment. Next, it offers
an alternative normative account that would excuse
psychopaths from criminal responsibility for criminal
offenses that are also violations of the moral rights of
others. The article then considers alternative mecha-
nisms of social control if some psychopaths were to be
excused for criminal conduct. Finally, it addresses the
potential contribution scientific discoveries could make
to legal policymaking and practice.
Psychopathy must be distinguished from Anti-
social Personality Disorder (APD), which, unlike
psychopathy, is a diagnostic category included in
the American Psychiatric Association’s authoritative
Diagnostic and Statistical Manual of Mental Disor-
ders, 4th Ed-Text Revision [DSM-IV-TR]. All but one
of the criteria for APD are repetitive antisocial
206
behaviors, and the one psychological criterion, lack
of remorse, is not necessary to make the diagnosis.
About 40–60% of prisoners have APD and there is
substantial overlap with psychopathy. Despite inclu-
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
psychological attributes that seem central to success-
ful, cooperative life. This paper assumes that
criminals with APD are responsible because APD
is not inconsistent with current or normatively
defensible responsibility criteria. Psychopathy will
therefore be the focus of the paper.
Preliminary Observations About Legal
Responsibility
The law’s view of the responsible person generally
and all its criteria for criminal responsibility specifi-
cally are resolutely folk psychological. Mental states
and actions are the crux. It is important to understand
that free will–understood as metaphysical libertarian
freedom–is not a criterion for any criminal law
doctrine, and, on a compatibilist interpretation of the
metaphysics of responsibility, it is not even founda-
tional for criminal responsibility. Indeed, the law’s
positive criteria for criminal responsibility are not
inconsistent with the truth of determinism. Moreover,
causation per se of criminal behavior, including
causation by abnormal variables, such as brain
pathology, is not an excusing condition. Various
causes might explain why a genuine excusing
condition, such as lack of rational capacity, is present,
but the law will excuse only if the folk psychological
excusing condition is in fact proven. The law also
adopts what I have termed “desert-disease” jurispru-
dence for deciding how to respond to potentially
dangerous individuals [1]. With limited exceptions
that need not concern us, the law does not permit pure
preventive detention of individuals solely on the
ground that the agent may pose a risk of harm. But
if a person has committed a crime and is responsible,
the person may be criminally blamed and punished
because the agent deserves such treatment. Further, if
the agent is dangerous because he or she is not
responsible for the potential dangerousness–say, the
person suffers from a delusion that renders him
dangerous–then the state may civilly confine the
S.J. Morse
person. In sum, the state can blame and punish a
responsible agent who commits a crime and can
involuntarily civilly confine a dangerous agent who is
not responsible for his or her risk to others.
The Positive Law of Criminal Responsibility
The structure of the American law of criminal
responsibility is facially straightforward. Crimes are
defined by their criteria, which lawyers refer to as the
“elements” of crime. The most important elements are
a prohibited act and an accompanying culpable
mental state (mens rea). For example, a traditional
definition of murder is the intentional killing of a
human being. The act is any form of killing conduct,
such as shooting or stabbing. The mens rea is the
purpose to kill that accompanies the killing conduct.
The definition of every crime requires an act (or an
omission when there is a duty to act). Despite the
centrality of this requirement, the law’s definition of
an act is somewhat obscure because it does not
provide a positive definition of an act. Rather, it tends
to define what is not an act. One may infer, however,
that the underlying definition is an intentional bodily
movement performed in a state of relatively integrated
consciousness. The meaning of intentional in this
definition is narrow and means nothing more than a
“willed bodily movement.” Another way of under-
standing this requirement is that the movement is
“volitional.” It does not mean that the defendant acted
for any particular reason. For example, completely
habitual movements are considered acts.
The mens rea terms, such as purpose or knowl-
edge, have their ordinary meanings. They do not
include the capacity for moral reflection nor a
requirement that the defendant acted “whole heart-
edly.” An ambivalently formed or held intention is
nonetheless an intention.
If the prosecution can prove the definitional elements
beyond a reasonable doubt, prima facie criminal liability
is established. Unless psychopaths suffer from some
other abnormal condition, there is no reason to believe
that in general they do not act or cannot form the mental
states the law requires when they commit crimes. In
short, it will seldom be difficult to establish the
psychopath’s prima facie criminal liability.
Even if the prosecution can prove all the elements
beyond a reasonable doubt, however, the defendant
Psychopathy and criminal responsibility
may still be able to establish some other defensive
claim that is independent of doubt about the prima
facie case requirements of an act and mental state.
These defenses are called “affirmative defenses” and
may usefully be categorized as justifications and
excuses. In cases of justification, conduct that is
otherwise criminal is under the specific circumstances
considered right or at least permissible. For example,
a person who saves his own life by killing a wrongful
deadly aggressor properly acts in self-defense al-
though he kills intentionally. Note that in cases of
justification there is nothing “wrong” with the agent.
He acts rightfully or permissibly under the circum-
stances. Excuses exist when the defendant’s conduct
is undeniably wrongful, but the defendant is not
considered a responsible agent. For example, the
defense of legal insanity may excuse a defendant who
kills an innocent victim because the defendant suffers
from a delusional belief that the victim intends to kill the
defendant. Psychopathy has nothing to do with justifi-
cation per se, so the question will be whether evidence
of psychopathy will help to support a legal excuse.
The best interpretation of the criminal law’s generic
responsibility criteria are that the agent has sufficient
rational capacity and does not act under coercion.
Correlatively, the law’s generic excusing and mitigat-
ing conditions are lack of rational capacity and
coercion. The law clearly employs an everyday,
common sense notion of rationality, but how much
rational capacity and what kind are necessary are
thoroughly normative judgments and are seldom
clearly specified. For example, one test for legal
insanity is whether the defendant knew what she was
doing. This is a rationality test, to be sure, but it does
not specify how narrowly or broadly knowledge
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?
Narrowly, it seems that she did because she knew she
was killing her children and that it was illegal to do so.
But broadly, it seems that she did not because she did
not understand that killing the children would not save
them from Satan’s eternal torments. At this point, it is
sufficient to recognize that lack of rational capacity is
the primary excusing condition. It explains why some
people with mental disorders, young children, people
with dementias, and the like are either excused or
mitigated if they commit crimes arising from their
impaired practical reasoning.
207
The second generic excusing condition is coercion,
which arises much less frequently. Note that if the
defendant does not act at all because someone literally
moves the defendant’s body in a prohibited way, the
defendant will not be prima facie liable. Assuming
that the defendant acted, the most common doctrinal
expression of a coercion excuse is “duress.” Duress
obtains if, through no fault of his own, the defendant
is placed in a threatening, do-it-or-else situation–say,
someone threatens to kill the defendant unless the
defendant kills an innocent third party–and a person
of reasonable firmness would have yielded to such a
threat under the circumstances. The defendant need
not subjectively feel fear or “irresistible” psycholog-
ical pressure (although most doubtlessly will). It is
sufficient if a reasonable person would have yielded.
The interesting, normative question, is what we
expect of “reasonable” people under such circum-
stances. Again, this is a normative question.
A fraught question for the law is how to under-
stand claims that the defendant could not help or
control himself in situations in which no one is
threatening the defendant. Familiar examples of such
one-party “coercion” claims are addictions and unto-
ward sexual desires, such as pedophilia. What does it
mean, independent of problems with rational capacity,
to say that a person cannot help or control himself?
Difficulties conceptualizing and assessing such prob-
lems are central reasons why “control” tests for
excuse in these one-party cases are less common than
tests for lack of rational capacity.
In short, it should be clear from this brief summary
of the law that the crucial category for assessing the
criminal responsibility of psychopaths will be the
excuses, and lack of rationality in particular.
Current Legal Response to Psychopathy
As the introduction indicates, this section will be
exceedingly brief. The law does not excuse psycho-
paths, even those whose psychopathy is clear and
severe. Psychopathy is not a legally sufficient basis to
raise an insanity defense or any other excuse. Indeed,
the influential Model Penal Code specifically
excludes psychopathy as a legally sufficient mental
abnormality for its version of the insanity defense [2].
To the extent psychopathy is considered at all in
sentencing, it will virtually always be considered an
208
aggravating factor, such as using it as a risk factor for
dangerousness in capital sentencing. Moreover, psy-
chopathy per se is not considered a legally sufficient
mental abnormality to support involuntary civil
commitment.
The question for the law is whether these responses
are correct, questions that can be asked as a matter of
criminal law theory and practice. It is to these
questions that this paper now turns.
Psychopathy and Criminal Responsibility
At least in theory, and mostly in practice, our criminal
justice system assumes that no one should be blamed
and punished unless the agent deserves blame and
punishment. The law also has consequential justifica-
tions for criminal punishment, such as prevention, but
desert is at least a necessary justification.
By definition, an agent who is not morally
responsible for behavior does not deserve moral
blame and punishment for it. Legal and moral
responsibility criteria need not coincide, however,
and as a positive matter, they do not. Indeed, the
degree to which moral and legal responsibility should
be identical is of course controversial. Our criminal
law contains numerous instances of strict liability in
which punishment, often potentially severe, is im-
posed without any proof of moral fault. For example,
a defendant may be convicted and punished for
statutory rape of a completely consenting partner if
the partner is under a certain age, even if the
defendant thought the partner was older and every
reasonable person would agree. For the most part,
however, as we have seen, the doctrines that excuse
or mitigate criminal responsibility–lack of rational
capacity and coercion–closely track the variables
commonly thought to create moral excuse or miti-
gation. I shall therefore assume that the criminal law
should not blame and punish agents who commit
serious crimes unless those agents are morally at
fault because they are responsible.
The justification for the law’s view that psycho-
paths are responsible may be briefly stated. First, as
we have seen, psychopathy does not prevent agents
from acting as the law defines action, nor does it
prevent psychopaths from forming prohibited mental
states. A psychopath who kills another human being
intentionally is fully prima facie criminally responsi-
S.J. Morse
ble. Further, psychopaths are not excused because
they do possess many rational capacities. They
usually know the facts and are generally in touch
with reality, they understand that there are rules and
consequences for violating them, which they treat as a
“pricing” system, and they feel pleasure and pain, the
anticipation of which can potentially guide their
conduct. This is a relatively thin conception of
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-
control as it is traditionally understood. They do not
act in response to desires or impulses that are
subjectively experienced as overwhelming, uncontrol-
lable or irresistible. Once again, there is no need to
excuse according to either a desert or deterrence
justification for punishment. In short, the law views
the psychopath as bad, and not as mad.
In contrast, I believe the law’s assessment is
morally incorrect and should be reformed. Psycho-
paths are not morally responsible and do not deserve
blame and punishment. There are two potential
theories for why this should be so: a specific and a
general theory concerning the psychopath’s rational
capacities.
The specific theory concedes the law’s thin view of
the psychopath’s rational capacities, but suggests that
the psychopath has particularized deficits of rational-
ity when moral concern and respect for others is in
question. As a normative matter, the best reasons
people have for not violating the rights of others are
that the potential wrongdoer fully understands that it
is wrong to do so and has the capacity to empathize
with the potential pain of their possible victims and to
use that as a reason for refraining. If a person does not
understand the point of morality and has no con-
science or capacity for empathy, only fear of
punishment will give the person good reason not to
violate the rights of others. As has been recognized at
least since Hobbes, however, social cooperation and
safety cannot be secured solely by the fear of state
punishment. Internalized conscience and fellow feel-
ing are the best guarantors of right action. The
psychopath is not responsive to moral reasons, even
if they are responsive to other reasons. Consequently,
they do not have the capacity for moral rationality, at
least when their behavior implicates moral concerns,
and thus they are not responsible. They have no
access to the most rational reasons to behave well.
Psychopathy and criminal responsibility
This position has been adopted in various forms by
many philosophers [3].
The broader theory, most ably advanced by Paul
Litton, [4] denies that psychopaths are rational at all
because they lack any evaluative standards to assess
and guide their conduct. The do not even possess
evaluative standards related to the pursuit of excite-
ment and pleasure. Psychopaths are like Frankfurt’s
concept of the “wanton.” They do not feel regret,
remorse, shame, and guilt, feelings that are typically
experienced in reaction to our failure to meet the
standards we have set for ourselves. They may feel
frustration and anger if they fail to get what they
want, but these are not reactive emotions. Such
frustration or anger does not entail negative self-
evaluation. Moreover, severe psychopaths are out of
touch with ordinary social reality. They say that they
have goals, but act in ways inconsistent with
understanding what having and achieving a goal
entails. They do not consistently follow life plans
and are impulsive. Litton concludes that “it is not
surprising that agents with a very weak capacity of
internalizing standards act on unevaluated whims and
impulses.” [4] Much of their conduct appears unintel-
ligible because we cannot imagine what good reason
would motivate it. In brief, psychopaths have a gen-
erally diminished capacity for rational self-governance
that is not limited to the sphere of morality.
I am unconvinced by the broader view. Many of
the broader irrationality characteristics may be present
in some psychopaths, but they are not core character-
istics. I also believe the argument understates the
psychopath’s capacity for some evaluative standards
and reactive emotions. In contrast, the moral incapac-
ities appear to be core. These are empirical quibbles,
however, and future research may clarify the diag-
nostic characteristics of psychopathy. The broader
view is nonetheless plausible and coherent at present,
and it does furnish another rationality-based theory
for potentially excusing psychopaths.
On either view, the psychopath is not a member of
the moral community, is not a person with whom
moral engagement is possible. Again, psychopaths
know the facts and the rules and are capable of
manipulation of others to achieve their own ends, but
they do not get the point of morality. It is as if they
are color blind to moral concerns. The rights and
interests of others have no purchase on their practical
reasoning. Blaming and punishing such people is
209
morally pointless, although it may be instrumentally
warranted. Whether psychopaths should be blamed
and punished is a question of how we want to live
together. Because psychopaths are not members of the
moral community, I believe that they should not be
held responsible.
If this argument is convincing, the appropriate
legal response is to broaden the mental disorder
criterion of the insanity defense to include psychop-
athy as a sufficient mental abnormality to support the
defense and to broaden the cognitive criterion to
include lack of moral capacity. The excuse would
only apply, however, to crimes that prohibit immoral
behavior. The law treats strict liability crimes purely
as pricing mechanisms and there is no reason to treat
the psychopath differently from ordinary people when
such crimes are prosecuted. Moral concern plays no
role in understanding and obeying such prohibitions.
Psychopathy is a continuum concept so all psycho-
paths would not have to be excused. Severe psychop-
athy would be excused, however, and individual
jurisdictions would have discretion to decide whether
less severe psychopathy should also excuse. My
preference would be to excuse only severe psycho-
paths. Those with less severe conditions who retain
residual moral capacity, albeit weak, would still be
considered members of the moral community and
subject to blame and punishment.
An interesting issue is whether psychopaths would
also meet the criteria for “control” tests for legal
insanity, such as the inability to conform one’s conduct
to the requirements of law. As discussed earlier, it is
hard to make good sense of control tests, [5] but
psychopaths do not feel allegedly “overwhelming
urges” or “irresistible impulses.” If they have trouble
controlling their desires to act antisocially, I believe it
is because they cannot access the good reasons not to.
In short, for psychopaths (and others) failures of self-
control collapse into rationality deficits. As we will see
presently, the problem of control does arise in the
involuntary commitment context and will be discussed
in somewhat more detail below.
A potential objection concerns people whose
acculturation, rather than biological or psychological
abnormalities, may deprive them of particularized
rather than general moral concern. For example, rabid
racists may be genuinely incapable of empathy or
conscience towards despised groups, but may retain a
general capacity for empathy and conscience. Political
210
fanatics may be similar when dealing with their
supposed enemies. Moreover, such people may
acquire such attitudes and predispositions when they
are children and thus before the age of reason and
responsibility. One could claim that they ratify and
endorse such predispositions as adults, but that simply
avoids the difficult question of how to respond to
such people when they victimize the despised “other.”
After all, shedding one’s deepest attitudes and predis-
positions may be beyond the capacity of most people.
How does one learn to love or even to have concern
for a person an agent believes is “subhuman” or
entirely unworthy of concern? I believe that this is a
difficult problem for responsibility theory.
“Acculturated psychopaths” should be held respon-
sible because they do have the general capacity for
conscience and empathy and they do understand that
other people believe that members of the despised
groups are worthy of empathy and concern. They do
understand the moral point of the prohibition against
harming the despised other, even if they cannot feel it.
The law may only be a “pricing mechanism” for them
when the rights of despised victims are violated, but,
unlike pathological psychopaths, acculturated psycho-
paths are members of the moral community who in
principle do understand and can be taught to respond
to the good reason to widen their view of humanity. If
this approach to acculturated psychopaths is unper-
suasive, then such people should also be excused
from crimes committed against the despised other.
There would be no reason to excuse them from other
crimes, however.
Defendants acquitted as legally insane are com-
mitted to mental hospitals for evaluation, treatment
and incapacitation. They may be held indefinitely
until they are no longer either mentally abnormal or
no longer dangerous [6]. Moreover, the Supreme
Court of the United States has made clear that it is
constitutionally acceptable to consider minor property
crime as sufficiently dangerous to continue such
commitments [7].
At present, psychopathy is not a treatable condi-
tion, so all psychopaths who commit non-trivial
crimes would be subject to potentially life-long
involuntary civil commitment if they are excused by
reason of legal insanity. Such a response would
clearly be a potential civil liberty and fiscal problem.
Psychopathy is a risk factor for crime, but many
might not re-offend despite their mental abnormality.
S.J. Morse
The prediction of future antisocial behavior is a
difficult enterprise and often creates large numbers
of false positive predictions, especially for low base
rate behavior. Moreover, the potential extreme loss of
liberty seems in many cases disproportionate to the
potential risk to society that many psychopaths might
pose. Finally, civil commitment is very expensive. In
sum, the remedy of civil commitment may seem
worse than convicting psychopaths. This is a serious
practical problem.
If only severe psychopaths, those with essentially
no capacity for conscience and empathy, were
excused, the problem would be manageable. The
number of excused defendants would be relatively
small and many could be released when they “age
out” of the stage of life when the risk of violence is
high. Psychopaths are deterrable and presumably they
would not want to risk further indefinite incarceration.
I assume that, like other mentally abnormal defend-
ants, most psychopaths who are charged with minor
crimes that carry minimal prison terms would choose
not to raise the insanity defense because a minimal
prison term would be preferable to indefinite civil
confinement. If successful biological or other treat-
ments for psychopathy were developed, the practical
problem of how to respond to excused psychopaths
would be vastly reduced.
Preventive Civil Confinement of Addicts
The Supreme Court has approved a special form of
criminal justice-related civil commitment for so-called
mentally abnormal sexually violent predators. The
criteria for such commitments are, 1)a criminal charge
or conviction; 2)a mental abnormality; 3)predicted
dangerousness; and, 4)“serious” difficulty controlling
oneself [8]. This type of commitment is different from
traditional involuntary civil commitment because it
requires at least a charge of criminal behavior, whereas
traditional commitment may be triggered simply by a
threat of dangerous behavior. The Supreme Court
upheld such commitments even when they are imposed
after the completion of a prison term for precisely the
same type of behavior that now justifies involuntary
commitment. Although the standard for responsibility
in the criminal justice and involuntary commitment
systems need not be the same, these forms of
commitment have received withering criticism because
Psychopathy and criminal responsibility
the rationality sufficient for criminal blame and
punishment should be sufficient to avoid involuntary
civil commitment. Nonetheless, this type of commit-
ment is constitutional and its potential application to
psychopaths should be considered.
Although psychopathy is not considered a legally
sufficient abnormality to support traditional involun-
tary commitment, it would be sufficient to support
this type of commitment if the psychopath were
dangerous and had “serious” difficulty controlling
himself. The Supreme Court has made it clear that the
state is not bound in its legal criteria by psychiatric or
psychological definitions of mental disorder. It may
define mental abnormality in any way that is
minimally rational. Moreover, psychopathy is a
recognized abnormality despite its present exclusion
from DSM-IV-TR. Further, psychopathy is a promi-
nent risk factor for future violent behavior and would
be a rationally-included variable in a violence
prediction assessment. The only difficulty would be
whether psychopaths are sufficiently non-responsible
to qualify for civil confinement on a “disease” theory
within desert-disease jurisprudence.
The previous section of this paper argued that
severe psychopaths should be excused from criminal
responsibility on cognitive or cognitive-affective
grounds. This would satisfy the disease justification
for civil confinement and would distinguish psycho-
paths from sexual predators who are considered
criminally responsible. But the Supreme Court im-
posed a disease-based non-responsibility requirement
of serious difficulty controlling one’s behavior, which
does not appear to be a cognitive or cognitive-
affective criterion. A jurisdiction almost certainly
could constitutionally adopt a cognitive-affective test
for this type of commitment rather than a control test,
but the Court’s holding in Crane concerning control
requires attention.
As suggested above, control tests are notoriously
difficult to conceptualize and measuring control
difficulties independently is well nigh impossible. I
also suggested, however, that control tests can
ultimately be assimilated to cognitive tests because
the reason people have difficulty controlling them-
selves is that they cannot bring good reason to bear to
guide their behavior. In the cases of people with
impulse control disorders, paraphilias (disorders
marked by abnormal sexual desires that cause
distress) and the like, there is no general rationality
211
impairment. Instead, they have difficulty accessing
good reason when they are in the throes of peak
desire or craving. In contrast, psychopaths have no
such allegedly “overwhelming” desires, but when
they want to violate the rights of others, they lack the
capacity to access the best reasons–conscience and
empathy–not to do so. Consequently, they are unable
to control their behavior because they cannot guide it
by reason. In sum, the control criterion would not
exclude psychopaths from this form of commitment.
This type of special commitment would avoid
some of the most unsettling problems associated with
general involuntary civil commitment. Widespread
traditional involuntary commitment of psychopaths
might raise various civil liberties problems. Although
psychopathy is a strong risk factor for violence,
serious violent conduct is still an infrequent event in
this population and there would be substantial
numbers of unnecessary commitments based on false
positive predictions. The best predictor of future
behavior is past behavior, however, and tying quasi-
criminal commitment to a charge or conviction for
serious crime would reduce the risk of false positives.
I conclude that this form of commitment would be
justified for severe psychopaths and would provide an
alternative to criminal justice resolution.
Science, Psychopathy and Law
Scientific advances in neuroscience, psychology and
other disciplines might well change the justifiable
legal response to psychopaths because they may alter
our view of psychopaths’ capacities and may contrib-
ute to greater predictability of future behavior.
Before considering these possibilities, however, first
note a methodological point. Psychopathy is defined
behaviorally by cognitive and emotional impairments
and persistent antisocial conduct. Anything further we
learn about the genetics, neurobiology, or psychology
of psychopaths depends on our ability already to
identify psychopaths reliably. If we cannot be sure that
the subject population of a study is psychopaths, we
cannot know if genetic, neurobiological or psycholog-
ical discoveries are really about psychopathy. Now, it is
of course true that various discoveries may cause us to
rethink the behavioral diagnostic criteria. For example,
if behaviorally similar psychopaths have vastly dissim-
ilar neurobiology or genetics, it may cast doubt on
212
whether there is a unitary disorder rather than discrete
disorders with a similar presentation. This would be
especially true if there were prognostic or treatment
differences between the two groups. But making any
progress does depend at the outset on studying a
reliably identified population.
Whatever scientific investigation may disclose, for
the purposes of the law, the agent’s behavior will be
the touchstone of responsibility because all responsi-
bility criteria are behavioral.
If the defendant is behaviorally rational, the
defendant will be considered responsible, no matter
what his brain scan may indicate. And vice versa.
Actions speak louder than images. It is possible,
however, that future discoveries may persuade law-
makers that psychopaths should continue to be held
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
for excuse would be strengthened. Further, if psy-
chopathy were deemed to be a legally-sufficient basis
for an insanity defense, then new scientific techniques
might help us more accurately diagnose psychopathy,
especially in cases in which the behavioral evidence is
not entirely clear.
New techniques may also help us predict future
dangerous behavior far more accurately than we do
today. If some psychopaths were excused or if they
were subject to involuntary civil confinement, this
would represent a major advance in both fairness to
the psychopath and in the ability to protect society
from them in appropriate cases.
S.J. Morse
Finally, as mentioned above, if successful treat-
ments for psychopathy were discovered, this might
solve many of the civil libertarian concerns that wide-
scale involuntary commitment would pose.
Conclusion
At present, the law holds psychopaths criminally
responsible and does not involuntarily hospitalize
them if their only abnormality is psychopathy. This
paper argues, however, that severe psychopathy
should be a basis for non-responsibility in appropriate
cases because psychopathy deprives people of rational
capacities that are fundamental for fair ascriptions of
blame and punishment.
References
1. Stephen J. Morse, Neither Desert Nor Disease, 5 Legal
Theory 265(1999).
2. American Law Institute, Model Penal Code, Sec. 4.01(2)
(1962).
3. E.g., Susan Wolf, Freedom Within Reason (1990).
4. Paul Litton, Responsibility Status of the Psychopath: On
Moral Reasoning and Rational Self-Governance 24–32
(forthcoming, Rutgers L.R.; ms. on file with author). The
argument in the text follows Litton.
5. Stephen J. Morse, Uncontrollable Urges and Irrational
People, 88 Virginia L.R. 1025 (2002).
6. Foucha v. Louisiana, 504 U.S. 71 (1992).
7. Jones v. United States, 463 U.S. 354 (1983).
8. Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane,
534 U.S. 407 (2002).