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Excerpted From: Alison J. Lynch and Michael L. Perlin, “I See What Is Right and Approve, but I Do What Is Wrong”: Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging, 25 Lewis & Clark Law Review 453 (2021) (195 Footnotes) (Full Document)


LynchandPerlinCriminology and psychology research have devoted significant attention to individuals diagnosed with either antisocial personality disorder (ASPD), psychopathy, or both. While in the past the terms ASPD and psychopathy were used somewhat interchangeably, and still are by some judges, expert witnesses, and lay people, researchers today are starting to see that they in fact represent two very different personality types and offending patterns.

In this Article, we examine this development from a legal perspective, considering what it might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses, their responses to punishment and rehabilitation, and the extent to which this has any significance for sentencing decisions under the Federal Sentencing Guidelines, or state laws that have adopted, in large part, the Guidelines. We also seek to unpack the ways that implicit racial bias can have an impact on sentencing decision making.

Current research estimates that one in five violent offenders can be classified as a psychopath, a term fraught with controversy, and one excluded from the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM V). However, this category of offenders presents dramatically different characteristics than the category of individuals with antisocial personality disorder, a characterization that is often incorrectly conflated with psychopathy. Emerging research using neuroimaging is demonstrating that the brain of a psychopath responds differently to punishment than the brains of other non-psychopathic criminal offenders. As the philosophers Luca Malatesti and John McMillan have noted, “psychopaths appear to have deficits in a type of instrumental learning that involves learning both to respond to stimuli that give rise to reward and to avoid responding to stimuli that give rise to punishment.”

As research continues, it is critical for attorneys, mental health professionals, judges, forensic witnesses, criminologists, and criminal justice scholars to begin thinking about the extent to which brain science should affect our modern views of punishment, and whether individuals should be punished in different ways based on their diagnosis or neurophysiology. This is not a topic that has been the subject of substantial contemporaneous legal analysis, and we hope that this Article invigorates the conversation.

In this Article, we first consider the relevant differences between ASPD and psychopathy. Then, we look at the meager cohort of federal sentencing cases in which the issue of psychopathy is even raised, and consider decision making in this context from the perspective of implicit racial bias. Next, we present some background on the controversy of “psychopathy” diagnosis; here, we share what we call the “inside baseball” about the debate--on the differences between psychopathy and ASPD--that has rocked the world of psychology academy. We will also analyze how our current ideas about punishment and recidivism could change by using psychopathy research as a case study and consider how this new research creates extra responsibilities for both lawyers and expert witnesses in their representation of criminal defendants in such cases. Specifically, we will focus on how the use of these terms has a disproportionately negative impact on persons of color, looking closely at the way the instruments that are used to assess these conditions are subject to significant racial bias. Finally, we unpack these issues through the lens of therapeutic jurisprudence, a school of thought that considers the extent to which the legal system can be a therapeutic agent.

The title of this Article comes from Anthony Burgess's A Clockwork Orange. There, Burgess captured the mindset of someone who could “fit” the psychopath profile: an individual who very clearly can make determinations about right and wrong and can understand his behavior in the context of society, but consciously chooses to do the opposite. In practice, this is the type of defendant for whom punishment becomes a difficult task. Can this kind of person be rehabilitated? In Burgess's novel, the main character, Alex, is subject to a series of brutal “re-education” techniques to try and “set him straight.”

We emphatically are not advocating for any dystopian retributivist schemes, but we are interested in questions of whether new scientific discoveries can help devise a way to treat individuals who present with Alex-like psychopathic tendencies. Can we teach someone to know what is right and act on that instead? And can we do it in a way that is free of racial bias?

[. . .]

The difference between antisocial personality disorder and psychopathy has been muddled by courts and commentators alike, a muddling that has great significance to those of us who are seeking to unpack why we punish and how advances in neuroscience might give us some tentative answers as to what we should do. We have hoped, in this Article, to try to resolve some of the ambiguities that appear omnipresent, and, by doing so, we hope that we also have been able to shed some light on a series of other interrelated issues that cannot be avoided in this conversation. The significance of implicit racial bias appears in all aspects of the ongoing inquiries, including the use of purportedly-objective actuarial instruments and in diagnostic labeling by clinicians. The recent valid and reliable evidence forces (or, rather, should force) courts to reconsider their slavish reliance on the use of the PCL-R test. It is imperative for counsel to understand the complexity of the issues we preliminarily discuss here, and the correlative need for counsel to apply these findings to representation of criminal defendants. It is essential to consider the application of therapeutic jurisprudence principles to all of the questions we consider in this Article. We hope that this Article sheds some light on some of the complex issues we face in considering these important and confounding issues, especially those that arise in racially-explosive situations. We also hope it encourages lawyers, judges, and expert witnesses to more judiciously consider claims made on behalf of the PCL-R.

Stanley Kubrick directed a movie adaptation of Anthony Burgess's novel, A Clockwork Orange, and has famously said, “There's something in the human personality which resents things that are clear, and conversely, something which is attracted to puzzles, enigmas, and allegories.” Paradoxically, as a society, we have sought to simplify this whole topic, and resist the puzzles that remain. The quote from Clockwork Orange with which we begin our title--“I See What Is Right and Approve, But I Do What Is Wrong”-- is the essence of the ambiguity that confronts us. We hope that this Article will be a modest step on the road towards resolution of this ambiguity.

Associate, Mental Disability Law & Policy Associates, New York Law School.

Adjunct Professor, Emory University School of Law; Instructor, Loyola University New Orleans, Department of Criminology and Justice; Professor Emeritus of Law and Founding Director, International Mental Disability Law Reform Project, New York Law School; Cofounder, Mental Disability Law and Policy Associates.

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