Managing Psychopathic Offenders

By Sameekshya Naik, NLUO

Editor’s Note: This paper tries to introduce the field of psychopathy into the realm of law. The author has explained the various facets of psychopathy, and at the same time also made an effort to tackle the most common of questions faced while criminally analyzing it – whether a psychopath is criminally liable? Whether a psychopath can claim to be mentally insane so as to bypass the common procedure established. Towards the end, the author tries to establish a link between the actions of a psychopath and a sense of morality that. To bring the issue into context, she cites some very popular and recent cases.

1. Introduction

“Psychopathic manipulation usually begins by creating a mask, known as a psychopathic fiction, in the minds of those targeted.”

There is a long standing debate in the religious and ethics literature about whether or not people can be evil.[i] Yes, they can – who commit violent crimes! They can be split into 3 non-evil groups.

i. Sick, insane, mentally ill – not “bad”

ii. Victimized by adverse neglect & abuse (physical or sexual)

iii. Convinced that their bad act is not bad but instrumentally good

These people perform bad acts, not because they don’t have any proper guidance but because they enjoy doing that[ii].

The so-called Psychopaths-who are[iii]:

a)      The ruthless pursuit of what they wish through manipulation and aggression

b)      Lack of concern for the rights and well-being of others or the impacts of their actions on others.

c)      A remarkable propensity for risk taking.

They are fully indifferent to the harm they cause others. Still, those who deny the possibility of evil agency would say that psychopaths are victims of neurological disorder, environmental forces or misguided beliefs. But this debate of evil & good has become a rudiment factor in criminal law. On the one hand, many judges, lawyers, lawmakers, and scholars tend to think of psychopaths as ranging between bad and evil because they frequently commit crimes, lack compassion for their victims, are generally thought to be incurable, and are therefore likely to repeat similar or worse crimes.

For these reasons, the criminal law often treats psychopaths as an aggravating factor, a factor that warrants increased punishment. On the other hand, a very strong case can be made that psychopaths are actually mitigating, if not exculpatory, factor.[iv] They are typically destined to lead a life that is emotionally impoverished, lacking in enriching human relationships, and doomed to occupational failure.[v]

How should we resolve the dilemma of judging psychopaths both morally & criminally? There can be two assumptions, i.e. criminal punishment directly requires moral responsibility or criminal punishment requires criminal responsibility, which itself requires moral responsibility.

The reason why just criminal punishment does not require moral responsibility is that criminal law is the last ditch point, to use against those are not sufficiently motivated by morality and respect for law to comply with the law.

2. Difference between Psychopathy and Anti-Social Personality Disorder (ASPD)

Historically, psychopathy and ASPD are not distinguished[vi]. Till this day, people use this terms interchangeably. Still ASPD and psychopathy are different in two respects. Firstly, lack of empathy is not essential in ASPD. Secondly, though diagnostic criteria of ASPD are primarily behavioral, the diagnostic criteria psychopathy are both behavioral and psychological.

3. A brief history of Psychopathy:

Psychopathy has always been a part of human society, that is evident from its ubiquity in history’s myth & literature. Adolf Guggenbuhl-Craig called them ‘emptied souls’. One of Aristotle’s students, Theophrastus was probably the first one to write about them, calling them ‘the unscrupulous’. These are the people who lack the ordinary connections that bind us all and lack the inhibitions that those connections impose. They are, to oversimplify, people without empathy and conscience[vii].

Psychopaths also appear in existing pre-industrial societies, suggesting they are not a cultural artifact of the demands of the advancing civilization but they have been with us since our emergence as species.

A. Two types of Psychopathy[viii]:

a. Where the presence of psychological motivation is not difficult to elicit, the psychopathy appears then merely as a symptom of some underlying difficulties which can be traced to their basic motivations. When the motivations are uncovered and neutralized, the condition has a good chance of being cured as many have been cured. This is the symptomatic, secondary psychopathy.

b.  On the other hand, there is a type of psychopath that no matter how hard and how deep one studies his case, it is quite impossible to find any specific psychogenesis for his behavior. He is what he is and he does what he does by reason of what he always was and always did. The reaction is so deeply ingrained in him that it seems as if it had been with him from birth. This is the primary psychopathy, original, essential idiopathic.

B. Yardstick for measuring psychopathy:

Behavior vs. Motivation[ix].

Psychopathy has been grouped together as a large number of people who have only one point in common, i.e. antisocial behavior, which can also be split into on the basis of motivation. Once we separate psychopathy into two groups, primary & secondary, the whole subject can be handled with ease. If a person is found to be of secondary types, then that kind of case is obviously hopeful for treatment. All that is important to find is the underlying motivation. In some cases, the cause may not be so deep, though in some cases it may be so deeply ingrained that it might be very difficult to get at it and require treatment. To appreciate the difference between the pure or essential psychopathy as compared with and different from the secondary type, has resulted in a clinical therapeutic impasse. Therefore, to give the idiopathic type of psychopathy a limited sentence of several years can only mean one thing: that on expiration of the sentence, he will be entirely untouched by the experience; and will merrily continue on his own way only to run afoul of the law again. On the other hand, treating the symptomatic type in the same way as the idiopathic type must again result in failure, for punishment only aggravates the situation.

Psychopathy and Abnormal Sexuality[x]:

There is nothing common between psychopaths on one hand, and homosexuals and sex perverts on other hand. The reason they are often put together is because, in common with rest of descriptive psychiatry, homosexuality is regarded as antisocial behavior; hence the same token as, psychopathic. Many psychopaths do not make a normal sexual adjustment. To put it simply, psychopaths do not make good sex adjustments, but not all who make poor sex adjustments are necessarily psychopaths. One point however must be mentioned with reference to the love relations of psychopaths, or for that matter any interpersonal relations between them and the opposite sex. They appear to be wholly incapable of developing binding or sympathetic emotions. They do not appreciate what is done to them and they are not likely to return with gratitude what has been done for them. In this respect they are opposite of neurotics and stand virtually alone among humans.

3. Insanity as a Defence:

Assumptions underlying the Insanity Defense:

The insanity defense is designed primarily to prevent persons deemed legally insane from being criminally punished. The three assumptions motivating the insanity defense are:

1) People who are insane are not morally responsible for their actions.

2) Moral responsibility is a necessary condition of criminal responsibility.

There are two reasons why most scholars & participants in criminal justice system subscribe to this system. First, moral responsibility is thought to be necessary for criminal responsibility because the latter is a subset of the former, namely moral responsibility for a given criminal act. Second, suppose that person is not morally responsible for that given act. It becomes unfair to punish that person under any circumstance.

3)  Criminal Responsibility is necessary for just criminal punishment.

There are 2 reasons why criminal responsibility is necessary for criminal punishment: justice & deterrence. To punish a person who is not criminally responsible for his actions would be unjust and would fail to deter that person from recidivating and similarly situated persons from performing the same or similar actions.

Different versions of Insanity Defense[xi]:

 The first version of Insanity defense is the M’Naghten Rule, which was issues by a British Court in 1843. According to the rule, a person is legally insane and therefore not guilty of a crime with which he is accused of, if at the commission of the crime, he was ‘laboring under such a defeat of reason. From disease of mind, as not to know the nature and quality of the act he was doing or if he did know it, he didn’t know about the consequences. So, according to the M’Naghten Rule a person is considered insane and not criminally responsible, if at the time of alleged crime, the person had a mental disorder, the person’s mental disorder caused him to suffer from severe ignorance and this ignorance took one of two forms- either ignorance of what the person was doing or ignorance of the fact that what he was doing is wrong. Many jurisdictions apply this version of insanity defense. Many other say the insanity defense as the ‘irresistible impulse’. According to this, defendants are legally insane and therefore not criminally responsible or punishable for their criminal conduct.

In 1962, American Law Institute proposed an alternative version of insanity defense in its Model Penal Code(MPC). ‘A person is not responsible for criminal conduct if at the time of such conduct as a mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law’. The MPC rule is different from M’Naghten Rule in 3 different aspects.

  • It changes inability to know to a lack of ‘substantial capacity to appreciate’. The latter phrase suggests a broader range of people might be found insane-not only those who simply cannot know but also those who have significant difficulty knowing; and also doing something less than knowing.
  • It eliminates the nature of one’s act from the object of its inability. While the M’Naghten rule[xii] suggests that people are insane if they cannot know the nature or wrongfulness of their behavior, the MPC suggests that people are insane if they cannot appreciate ‘the criminality of their behavior’.
  • It incorporates a relaxed version of irresistible impulse. While the irresistible impulse requires a complete inability to control one’s behavior, the MPC version of volitional insanity requires merely a ‘lack of substantial capacity to conform one’s conduct to the requirements of law’.

Finally, there is a 3rd type of insanity defense, what is known as ‘Durham’ rule or ‘Product’ rule. Only one jurisdiction- New Hampshire still subscribes it. As stated in the Durham case itself, an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. This version of insanity defense is generally rejected because it conflicts with the widely held view that mental illness is consistent with moral responsibility and therefore with criminal responsibility. The Durham rule suggests that anybody suffering from mental illness is not morally responsible for behavior resulting from his mental illness. But we generally reject this proposition because the mental illness and moral responsibility are both considered as continuum concepts.

 4. Four Arguments that Psychopaths are Insane:

A. There are 2 reasons why people believe that substantial appreciation of moral wrongfulness, of one’s act is not necessary for criminal responsibility. First, not all violations of the criminal law are morally wrong. Violations of malum prohibitum, as opposed to malum in se, laws are arguably no more morally wrong than violations of traffic rules. Second, appreciation of the moral significance of the criminal law, is simply not necessary. The root cause of psychopaths’ moral ignorance is an innate inability to emphatize with the victim, an inability to see victim’s situation from the victim’s own perspective. Without a conscience to make them guilty about treating others badly, they simply cannot understand what we mean when we insist that this negative treatment is simply wrong.

B. The universally applicable arguments suggests simply that no person ‘in his right mind’ could do the things that psychopaths do. Many people who torture and kill under different kinds of circumstances are not insane. Examples include, people who torture and kill because they have been indoctrinated, trained, terror, or abuse –mitigate their responsibility, most of these agents have lost only their compassion, not their sanity. People who can lose compassion for others and still know the nature of their actions, know the moral & legal status of their actions and retain control over their actions. The same, however cannot be said for people who do not have compassion for others. Such a person is unable to distinguish between fantasy & reality. Some scholars put this argument in terms of rationality. It follows then, that psychopaths are fundamentally irrational. And because fundamental irrationality causes insanity, it follows that psychopaths who lack minimum moral competence are insane.

C. Psychopathy is a ‘defect of reason’ or a ‘disease of mind’. Given the fact that psychopathy tends to deprive the individual of key abilities, including the ability to care for others, to control one’s impulses. Still most courts do not recognize psychopaths are insane.

D. The fulfillment of irresistible impulse in M’Naghten test, defendants are legally insane and therefore not criminally responsible or criminally punishable for their otherwise criminal conduct if a mental defect or disorder made it impossible for them to control their behavior.

 5. Psychopaths Are Criminally Responsible Even Though They Are Not Morally Responsible.

This part will be dealt that criminal justice system is not right not to regard psychopathy as a form of insanity and therefore, as a basis for invoking the insanity defense.

A. Criminal responsibility is generally thought to require moral responsibility. If people are not morally responsible for their behavior, then it seems unjust to criminally punish them for it. If I am not responsible for a given act, then it is not fair, to blame me for it. One can be criminally responsible for a criminal act even if one is not morally responsible. On the one hand, we hold people morally responsible when they fail to comply with moral norms and knew or should have known of these moral norms. On the other hand, we hold people criminally responsible-and therefore criminally punishable, when they fail to comply with the criminal law and knew should have known that these laws in effect.

To be sure, criminal laws often follow moral norms.

B. The reason a killer can be justly punished for murder is not merely because he could have refrained from murdering but because he had a moral understanding of law against murder. He understood why murder is against law. And this moral understanding-an understanding not merely that murder is against law but also the moral basis for this legal prohibition-is what entitles to hold him responsible & punishable. This objection is flawed. So, unless a given psychopathic defendant can show that there are other reasons why he did not know that an otherwise criminal action was against law, the defendant’s argument that he did not know or understand, the will and should fail.

C. Psychopaths have sufficient control over their behavior. The fact that a given person did not resist committing a violent act against another person because it brought him such pleasure is the epitome of evil not sickness. It is why we regard Hitler & Stalin among the greatest criminals, they caused millions to die just because of their selfish interests. Lets take a scenario, it is the very first day of a drinker’s attempt to quit drinking. At 10:00am, the urge to drink makes an appearance. Drinker resists it and occupies himself with another activity. At 10:10am, the urge to drink increases in intensity. Drinker tries hard to distract himself. By 10:20am, he decides that he cannot take it anymore and runs to a bar, to have it. Although he tried to resist his desire, but it ultimately overcame. He can survive perfectly fine with that. Same is the case with psychopaths.

 6. Psychopathy, Mens Rea and Insanity Defense

In the predominant view the insanity defense is of no help to psychoapths[xiii]. Psychopathy works no distortion in the link between mens rea and will. There is, therefore, no need to adjust this link, and so no need of an insanity defense to supply an adjustment. If the defendant’s callousness signals ill will, to control for that callousness with an insanity defense would supply no necessary adjustment for ascertaining ill will from mens rea[xiv]. Instead it would negate the penal consequences that should flow from an evil will.

The generally accepted rule denies psychopaths the insanity defense. This rule accords well with understanding the defense as an adjustment to prevent misjudging the will from judging mens rea. Most likely the psychopath’s mental illness affects his morals, not his perception of facts. If so, his mens rea accurately signals an immoral will and therefore invites no adjustment.

7. Recent Cases on Psychopaths

A 71-year old retired army doctor, Somnath Parida in Bhubaneswar allegedly murdered his wife, chopped her body into pieces and dipped them into chemicals to dispose of them for a period of time. They found the body parts in 22 steel containers in 2 boxes, as well as sharp-edged weapons and surgical instruments used in cutting the body at his house. Sources say that he was not at all hot tempered, but still no one can imagine he can do such a thing. The case is still pending in the court.

Noida Serial Murders

The Nithari Kand in Noida, which took place in the house of a businessman Mohinder Singh Pandher in India 2005 & 2006. The servant Surender Kohli has been awarded death penalty.

Many such cases are there, where death has been awarded to the psychopaths and also they were called as serial murders.

8. Criticisms

Psychopathy presents a type of agent who is unlikely to arrive at the same conclusions an ordinary moral agent, if given the same instructions upon which to formulate moral duties as those given to an ordinary agent. The difficulty is 2 fold: impaired social learning appears to prevent the practical ability of psychopath to rely on moral authorities in order to engage in appropriate behavior, the particular impairments presented by psychopathy appear to undermine the philosophical credibility of treating such persons as ordinary moral agents.

9. The place of psychopaths in the Moral World

One of the major problem that society faces is that even if psychopathy is grounds for diminished responsibility or complete excuse, psychopaths still pose a heighted threat to the welfare of others. Therefore, decreasing the amount of time that a psychopath is separated from society is often considered a thoroughly undesired circumstance. So, the concern then becomes, if there any justified way society can institutionalize or otherwise isolate psychopaths from the general population? The problem of handling the consequential dangers of releasing psychopaths into society can be construed as an issue of distributive justice. There is a cognizable benefit to the psychopath and burden to society-at-large in his release and, likewise, a burden to the psychopath and benefit to society in his detainment. Thus, the decision to release the psychopath can be considered in light of how those benefits and burdens are distributed. This approach appears to lead to treating the problem as a matter of utilitarian concern.

Psychopathy presents a peculiar challenge for the law, as balancing competing interests in respecting human agency, holding persons responsible for the exercise of their agency, and protecting the public at large all weigh heavily in any attempt toward treating psychopathy as a mitigating factor of culpability and punishment for wrongdoing. Yet, the nature of psychopathy appears to involve a sort of agency that bears a striking departure from that of a normally functioning adult, and so it becomes difficult to justify a finding that full punishment and responsibility attach to said wrongdoing.

Formatted on 15th March 2019.


[i] Compare K.M. Rogers, Stained Glass Jesus 72 (2010) with Glenn Kohrman, Reflections of a Catholic Priest, 104 (2008).

[ii] Dangerous Psychopaths :Criminally Responsible but not morally responsible, Subject to Criminal Punishment and to Preventive Detention, Ken Levy, 1344-1359

[iii] Glenn AL, Raine A. The neurobiology of psychopathy.Psychiatr Clin North Am. 2008 Sep;31(3):463

[iv] Psychopathy, Culpability, and Commitment, Stephen D. Hart, pg. 159-169

[v] Psychopathy and Responsibility, Charles Fischett, pg 1423, 1449-69

[vi]Infra 4

[vii] Criminal Psychopath: History, Neuroscience, Treatment and Economics, by Keihl, Kent. A. Hoffman, Morris, pp 355-398.

[viii] ‘On the need of separating psychopathy into two distinct types: the symptomatic & idiopathic, by Ben Karpman, The Journal of Criminal Psychopathy, July 1941.

[ix] Dream life of a Constitutional Psychopath, The Psychoanalytic Review, Jan-Apr, 1946.

[x] Case studies in the Psychopathology of crime, Vol II, Case 8, “Rape”, Medical Science Press, 1944.

[xi] Rethinking Rational by John Matthew.

[xii] Ibid

[xiii] Stabbing in the dark:English Law realting to Psychopathy, Peter Bartlett, pp25-28.

[xiv] Ibid

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