In my last post I talked about Bill Hirstein’s and my theory that criminal responsibility hinges on executive function in the brain, and that from this perspective some psychopaths are criminally culpable and some aren’t.
I also noted that this view goes hand-in-hand with some important caveats. I have presented our paper on psychopaths to psychologists, philosophers, and legal scholars. Each type of audience raised important questions about the paper, focused on different areas of concern.
From the psychologists: Experts haven’t agreed on a master list of executive functions. Which ones are you talking about? And isn’t it possible that only one or two of these functions really matter to responsibility?
Response: We understand that psychologists and neuroscientists are still in the process of compiling an agreed-upon list of executive functions. However, a review of the literature indicates the following will make the cut: attention, (considered) recognition, memory, decision-making, the planning of intentional actions, and the inhibition of actions. Many of these capacities are now known to be functionally discrete, and occupy particular regions of the prefrontal cortex. We argue that these are crucial to rule-following and legal agency. It may turn out that one of these is more important to responsibility than the others. Only empirical research can determine this.
From the philosophers: We don’t care so much about legal culpability. What do you have to say about the moral culpability of psychopaths?
Response: For now, we have nothing to say about moral culpability. Yes, I know that makes our theory less interesting. But as Oliver Wendell Holmes noted, that law must be such that the “bad man” – the immoral man – can understand that certain acts lead to punishment, and potentially be swayed by this possibility. Our theory is that culpability is lessened when mental incapacity impacts this understanding and ability to conform to the law.
From the legal scholars: Aren’t you assuming there is only one aim of punishment, retribution? What about deterrence and incapacitation? Don’t these principles warrant punishment of psychopaths regardless of any mental incapacity?
Response: The US Model Penal Code was revised in 2007 to make retribution the primary guiding principle of punishment (see discussion here). Retribution demands that punishment deliver an offender’s “just deserts.” This means the punishment should be proportional to the crime committed and to the culpability of the offender, which can be mitigated by mental incapacity. Thus juveniles and the severely mentally retarded are thought to be less culpable than other offenders (and thus are ineligible for the death penalty - see Roper v. Simmons and Atkins v. Virgina) because they are just not the sort of offenders that deserve our most serious punishment. We argue that any offender whose executive function is impaired severely enough is similarly less culpable.
However, I would argue that the principle of deterrence supports the excuse as well. Deterrence theory argues that punishment is justified because it stops some from committing bad acts (general deterrence) and teaches defendants found guilty not to offend again (specific deterrence). We feel a psychopath with impaired executive function is less likely to be deterred by the threat of punishment due to their deficits in attention, planning, and inhibition. So the principle of deterrence doesn’t warrant exempting psychopaths from the traditional excuse of diminished capacity.
The principle of incapacitation, however, aims to keep dangerous individuals away from the general population. Psychopaths with impaired executive function are still likely to dangerous, and from this perspective it seems unfortunate that the defense of diminished capacity may earn them a lesser sentence. However, severely mentally retarded offenders and legally insane offenders are also likely to be dangerous. Ideally, mentally retarded offenders might be made less dangerous with alternative sanctions, including medical care, therapy, and strict probationary requirements. And the legally insane are incapacitated in a medical facility - save those deemed not guilty but mentally ill, which many argue is a bogus and unjust verdict. Either of these would be a more just option than finding psychopaths with severe executive deficits fully responsible.