Skip to main content Accessibility help
×
Hostname: page-component-7c8c6479df-hgkh8 Total loading time: 0 Render date: 2024-03-29T07:31:05.104Z Has data issue: false hasContentIssue false

13 - Psychopathy, Criminal Responsibility, Punishment, and the Eighth Amendment

Published online by Cambridge University Press:  05 June 2014

John T. Parry
Affiliation:
Lewis and Clark College, Portland
L. Song Richardson
Affiliation:
University of Iowa College of Law
Get access

Summary

Introduction

Criminal responsibility is a complex subject, and in a retributive system such as that in the United States, it rests on presuppositions about the cognitive capacities of individuals whom we intend to punish. Under the Eighth Amendment, which prohibits “cruel and unusual punishment,” considerations of proportionality limit the extent to which a criminal offender may be punished for a particular crime. In some cases, a defendant’s “subrationality” or “cognitive incapacities” may serve to mitigate or fully excuse criminal responsibility, but standards tend to be very high when it comes to criminal excuses. The M’Naghten standard for legal insanity, for example, requires that a defendant, at the time of his act, not know the nature and quality of said act or know that it was wrong. In practice, this standard will often only be met by individuals suffering from such a profound mental disturbance (such as a psychotic/thought disorder) that most observers would be compelled to declare the defendant resolutely “insane.”

Recently, however, the United States Supreme Court has made a number of rulings aimed at staking out the boundaries of mitigation of responsibility, based upon empirical research on human cognition and psychological development. Defendants who were previously held fully responsible for severe offenses are now held to a reduced standard of responsibility, and certain penalties that were formerly considered acceptable are now prohibited for some classes of criminal offenders. The scope of these rulings has thus far been limited to cases where public sentiment weighed in favor of mitigation, such as in cases of juveniles and individuals with severe mental handicaps. In this chapter, we will explore whether psychopathy, a condition that is considerably less likely to attract public sympathy, may nonetheless be appropriately treated as a mitigating condition given modern research in psychology and neuroscience. We close with a discussion of what this may mean for future developments in Eighth Amendment law.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Kiehl, Kent & Hoffman, Morris B., The Criminal Psychopath: History, Neuroscience, Treatment, and Economics, 51 Jurimetrics355 (2011)Google Scholar
Blair, R. J. R., et al., Passive avoidance learning in psychopathic individuals: Modulation by reward but not by punishment, 37 Personality and Individual Differences1179 (2004)Google Scholar
Blair, R. J. R., Applying a Cognitive Neuroscience Perspective to the Disorder of Psychopathy, 17 Developmental Psychopathology865 (2005)Google Scholar
Flor, Herta et al., Aversive Pavlovian Conditioning in Psychopaths: Peripheral and Central Correlates, 394 Psychophysiology505 (2002)Google Scholar
Blair, R. J. R., A Cognitive Developmental Approach to Morality: Investigating the Psychopath, 57 Cognition1 (1995)Google Scholar
Smetana, Judith G. & Braeges, Judith L., The Development of Toddlers’ Moral and Conventional Judgments, 36 Merrill-Palmer Quarterly329 (1990)Google Scholar
Blair, R. J. R., et al., Is the Psychopath Morally Insane? 19 Personality and Individual Differences741 (1995)Google Scholar
Blair, R. J. R. & Cipolotti, Lisa, Impaired Social Response Reversal: A Case of “Acquired Sociopathy”, 123 Brain1122 (2000)Google Scholar
Fontaine, Reid Griffith, Disentangling the Psychology and Law of Instrumental and Reactive Subtypes of Aggression, 13 Psychology, Public Policy, and Law143 (2007)Google Scholar
Morse, Stephen, Diminished Rationality, Diminished Responsibility, 1 Ohio St. J. Crim. L.289 (2003)Google Scholar
DeMatteo, David & Edens, John F., The Role and Relevance of the Psychopathy Checklist – Revised in Court: A Case-law Survey of U.S. Courts (1991–2004), 12 Psychology, Public Policy, and Law214–41 (2006)Google Scholar
Hare, Stephen D. & Hare, Robert D. (1996), Psychopathy and Antisocial Personality Disorder, 9 Current Opinion in Psychiatry129 (1996)Google Scholar
Blair, R. J. R., The Roles of Orbital Frontal Cortex in the Modulation of Antisocial Behavior, 55 Brain and Cognition198 (2004)Google Scholar
Rilling, James et al., Neural Correlates of Social Cooperation and Noncooperation as a Function of Psychopathy, 61 Biological Psychiatry1260 (2007)Google Scholar
Koenigs, Michael, Kruepke, Michael & Newman, Joseph P., Economic Decision-Making in Psychopathy: A Comparison with Ventromedial Prefrontal Lesion Patients, 48 Neuropsychologia2198 (2010)Google Scholar
Turiel, Elliot & Killen, Melanie, Taking Emotions Seriously: The Role of Emotions in Moral Development, in Emotions, Aggression, and Morality in Children 40–2 (Arsenio, Frank & Lemerise, Elizabeth A., eds., 2010)Google Scholar
Greene, Joshua & Haidt, Jonathan, How (and Where) Does Moral Judgment Work? 6 Trends in Cognitive Sciences517 (2002)Google Scholar
Greene, Joshua, et al., An fMRI Investigation of Emotional Engagement in Moral Judgment, 293 Science2105 (2001)Google Scholar
Cushman, Fiery, Young, Liane & Greene, Joshua, Our Multi-System Moral Psychology: Towards a Consensus View, in The Oxford Handbook of Moral Psychology (John Doris et al., eds., 2008)
Klein, Colin, The Dual Track Theory of Moral Decision-Making: A Critique of the Neuroimaging Evidence, Neuroethics 4: 143–62, at 149 (2011)Google Scholar
Bandura, Albert, Toward a Psychology of Human Agency, 1 Perspectives on Psychological Science164 (2006)Google Scholar
Bandura, Albert, Selective Moral Disengagement in the Exercise of Moral Agency, 31 Journal of Moral Education101, 109 (2002)Google Scholar
Fox, A. R., Kvaran, T. H. & Fontaine, R. G., Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing, 37 Law and Social Inquiry (2012)Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×