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Psychopathy and the law: the United States experience 

Psychopathy and the law: the United States experience
Chapter:
Psychopathy and the law: the United States experience
Author(s):

Stephen J. Morse

DOI:
10.1093/med/9780199551637.003.0004
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date: 04 December 2021

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 behaviour. It is estimated that as many as 25% of convicts serving prison terms in the United States suffer from psychopathy, which is a substantial risk factor for crime. The law's response to psychopathic criminals is therefore an important moral and practical policy issue. In particular, should the law hold psychopaths criminally 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?

Psychopathy must be distinguished from antisocial personality disorder (ASPD), which, unlike psychopathy, is a diagnostic category included in the American Psychiatric Association's authoritative Diagnostic and Statistical Manual of Mental Disorders, 4th Ed-Text Revision. All but one of the criteria for ASPD are repetitive antisocial behaviours, and the one psychological criterion, lack of remorse, is not necessary to make the diagnosis. About 40–60% of prisoners have ASPD and there is substantial overlap with psychopathy. Despite inclusion of ASPD in DSM-IV, there is controversy about whether, as defined, it should be considered a mental disorder. Psychopaths, by contrast, lack psychological attributes that seem central to successful, cooperative life.

This chapter addresses the United States law's response to psychopathy and the related condition of ASPD. The United States is comprised of 50 states, each of which has its own penal and civil law, and the federal system, which also has its own legal system. If the United States Supreme Court decides an issue on constitutional grounds, that decision controls everywhere. Otherwise, legal doctrine and practice is within the purview of the individual jurisdictions. Although there can be considerable variation among the states concerning legal doctrine, there do tend to be sufficient uniformities to make overall statements possible. This is especially true for psychopathy and ASPD, which are treated quite uniformly throughout the United States.

In brief, neither psychopathy nor ASPD is the predicate for an excuse for crime; they almost never will be the basis for sentencing mitigation even when such mitigation is permitted; they may sometimes be used for aggravation in sentencing; and they are not sufficient mental abnormalities to qualify for involuntary civil commitment. They will be used as risk factors for future dangerousness assessments if those assessments are triggered by other factors.

The chapter begins by considering the logic of prevention in American law. Next, it considers the criteria for criminal responsibility and then it turns to the relation between these two conditions and criminal responsibility. The chapter next addresses the relation of these conditions to sentencing practices. Involuntary civil commitment and quasi-criminal commitment are explored subsequently. Last, the chapter considers the use of psychopathy and ASPD in risk assessments other than at sentencing. Because psychopathy and ASPD play such a small current role in American law, the potential for law reform will play a substantial role in the analysis.

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