How can we balance fairness and scientific verifiability in the legal punishment of psychopaths?

The legal punishment of psychopaths is controversial because of the difficulty of fairness and scientific proof. Although psychopaths have many different characteristics, treating them differently or punishing them more severely is not possible or fair with current knowledge and technology.

 

Foreign examples show that the legal response is most ambiguous when dealing with psychopaths. Whether it is because of a lack of fundamental understanding of psychopathy, or because of the fact that psychological evaluation reveals that a murderer is a psychopath, the legal response has varied from case to case. The “insanity defense” – “I’m a psychopath, which means I’m mentally ill and need help.” – has previously justified the murders of serial killers John Hinckley and David Bobbitt, and led to different legal penalties for them than it would have for a normal person. In contrast, it did not apply in the case of killer Ted Kaczynski. Moreover, in some cases, the punishment is inflated, as in the case of Tony, a murderer who was locked up for 12 years in Broadmoor Specialized Hospital simply because he was diagnosed as a psychopath for a crime that should have been punishable by five years in prison. As you can see, the legal penalties for psychopathy around the world are not precisely defined and are somewhat subjective. In Korea, the punishment of psychopaths has not yet been as controversial as in other countries, but it is likely to become an issue at some point because the response to ambiguous situations such as mental disorders and personality disorders is not clearly defined. My argument is that simply “proving” that a person is a psychopath, whether in their favor or against them, should not have any legal implications, due to the fundamental lack of understanding of psychopathy and the difficulty of “proving” it.
Before we get started, it’s worth clarifying the definition of psychopathy. According to the American Psychiatric Association, psychopathy is a type of antisocial personality disorder that has the following seven characteristics

1. repeated criminal behavior
2. repeated fraud, lying, and use of aliases
3. totalizing tendencies
4. frequent violent behavior
5. irresponsibility for safety
6. antisocial and difficulty following conventions
7. Rationalization for the suffering of others

The first reason is that psychopathy may not be a serious mental disorder. Thanks to mass media such as movies, TV shows, and novels, we often think of psychopaths as serial killers with mental abnormalities that don’t show up on the outside. However, psychopathy may not actually be a mental disorder, or if it is, it may not be so severe as to warrant the claim that “all psychopaths are destined to be serial killers”. The bottom line is that while psychopathy is an active area of research, we still don’t have any definitive information about psychopathy, so it’s not fair to label them as such in this context.
There is still no accurate and specific brain analysis of psychopaths. Although many brain analyzes and statistical investigations have led to various conclusions, there is still no connection and fundamental understanding between the different results. For example, one research organization claims that psychopaths have abnormalities in the neurons of the left hemisphere, while other neurologists, including Dave Eagleman, claim that some psychopaths have tumors in the center of their brains. It remains to be seen which of these findings is correct, or if they both point to essentially the same thing. Also, James Holmes, the murderer with the brain tumor, was said to have schizophrenia, and there is statistical evidence that many psychopaths, not just Holmes, have other mental disorders or personality disorders. This makes brain analysis unreliable because we don’t know for sure whether psychopathy was caused by psychopathy or something else. There are also still many unknowns about how psychopathy relates to other disorders, whether it has a genetic component, and so on. Even self-evident facts that were previously known are being denied and questioned. For example, a Dutch study found that psychopaths don’t lack conscience and compassion, they just don’t respond to other people’s pain. When they were forced to feel compassion, it was triggered. As a result, the definition of psychopathy has become murky, and some experts argue that environmental causes, such as education, are more likely than genetic ones.
Furthermore, actual research shows that the most common professions for psychopaths are CEOs and lawyers. This doesn’t mean that all CEOs and lawyers are criminals who can’t control their killer instincts. In the book “The Wisdom of Psychopaths: What Saints, Spies, and Serial Killers Can Teach Us About Success” (by Kevin Dutton), psychopathy is not interpreted as a mental disorder, but simply as a personality/tendency. Just as all personalities have strengths and weaknesses, psychopaths have advantages over the average person, such as faster computational skills, objective judgment without emotion, strong mental strength, and recklessness without fear of risk. Therefore, the question arises as to whether psychopathy can actually be considered a mental disorder, even if it has a different brain structure. Of course, they do have a certain amount of inherent killer instinct. However, as one psychopathic lawyer interviewed by the author said “There’s a serial killer inside of me somewhere. But I suppress him with cocaine, Formula One (car racing), and sex.” Therefore, it is a bit of a stretch to conclude that his impulsive killing is only due to his psychopathic personality, as he suppresses his impulses through other means. It would be odd if the lawyer interviewed had been practicing law for 20 years and suddenly went on a killing spree, claiming, “I’m a psychopath and I can’t control my killer instinct.” Impulsive killing is ultimately determined by the person’s impulsive tendencies, and there are still too many unknowns about how strongly psychopathic these tendencies are, whether they are genetic or not, and whether other factors are present. Therefore, many aspects of psychopathy are not well understood, and it is too early and unfair to impose legal sanctions.
The second reason why “proving” psychopathy shouldn’t be influential is that it is difficult to do with current technology and knowledge. Before we get into this argument, let’s accept the premise that psychopathy is a serious mental disorder. (Of course, the first argument makes this questionable.) Historically, there are two ways to prove psychopathy: The first is through brain scans using a brain injection device, and the second is through psycho-emotional procedures by experts.
Neuroscientist Kent Keel’s experiments have shown that when psychopaths are shown cruel photos and videos of other living beings suffering, the areas of their brains that are activated are different from those of normal people, so scanning these processes has been used as one way to prove psychopathy in the past. However, I think there are some fundamental and practical problems with using these brain scans to prove psychopathy. First, it is not valid to claim that a person is a psychopath just because they have an abnormality in their left brain. “Psychopaths have a deficit in the left hemisphere” is already a well-established statistical proposition (although the scientific link is not yet fully understood). However, we don’t know whether the converse is true: “If you have a left brain defect, you are a psychopath. It’s entirely possible that someone could have a left brain defect and not be a psychopath. Second, it’s very easy to manipulate a brain scan to show what you want it to show. In fact, alcohol, drugs, depression, and even external physical stimuli can cause the brain to become retarded instantaneously. This makes it possible for ordinary people to pose as psychopaths using brain analysis photos in order to escape punishment. Finally, even if the criminal is a psychopath, it is impossible to determine the criminal’s mental state at the scene of the crime, the type of crime, etc. If you look at the cases in which psychopaths have been treated differently in the past, the rationale was that they were deemed to have a mental disorder that prevented them from inhibiting their instincts. This argument only applies to impulsive crimes committed by psychopaths, and it is obvious that the same punishment for premeditated crimes should apply to psychopaths. However, since brain analysis is done after the fact, it’s impossible to get real information from the crime scene. For example, a brain analysis may reveal that a criminal is a psychopath who is unable to suppress his murderous instincts, but at the scene of the crime, he may have been fully conscious and premeditated. (Of course, as we’ve said before, it’s wrong to label a criminal as a psychopath in the first place.) In such cases, they should be punished the same as the rest of us, but brain analysis can lead to misjudgments. There are other ways to prove that psychopaths have abnormalities in their brains without showing horrific videos. However, all brain images suffer from these problems, and as we said earlier, it’s not possible to determine which brain defects are directly linked to psychopathy based on current knowledge. Therefore, proving psychopathy with brain images is virtually impossible at this point.
The second method is psychological evaluation by experts (mostly psychiatrists, criminologists, and psychologists). However, this method is also less objective and subjective. The main reason for this is that different experts have different claims and criteria for psychopathy. For example, psychopaths have both impulsive and calculating tendencies, so different experts will interpret a criminal’s behavior differently. Therefore, this method is not objective. Of course, it is possible to legally limit the number of experts who can do this, but as explained in the first reason, given the lack of information about psychopathy, it is not academically correct and even controversial to accept only the interpretations of some experts. In addition, diagnostic tests, such as the Hare Psychopathy Checklist and the Psychopathic Personality Inventory, which are among the most commonly used psychometric procedures by professionals, have a number of limitations. First, they vary slightly in the items they test. Second, they rely too heavily on the respondent’s personality, which is out of the control of the expert. Not only does everyone have different standards of judgment, but they also have to rely on the respondent’s conscience, which leads to reliability issues. For example, to an outsider, two respondents may both appear to be a 4 (on a scale of 1 to 5), but because they are judging by their own subjective standards, one may answer a 5 and the other a 3. Finally, these diagnostic tests have a very black-and-white logic to them. Journalist John Ronson’s book ‘ The Psychopathy Test: A Journey Through the Madness Industry ‘ explains that these tests are so obsessed with black and white logic that they try to categorize respondents as perfectly normal or abnormal. According to John Ronson, everyone has some psychopathic tendencies, depending on the circumstances, so while these tests can provide a rough indication of which people may potentially have psychopathic tendencies, it’s a bit of a stretch to conclude that someone is a psychopath based solely on the results of a test without any other scientific evidence.
There are two main views on this issue abroad. First, there are those who interpret psychopathy as a mental disorder and argue for a differentiated punishment system, prioritizing treatment from the disorder. For the sake of convenience, we’ll call them progressives because they’ve emerged recently. The second view is that psychopaths should not receive special treatment, and if they do, they should be punished more severely. We’ll call this second viewpoint conservative because it predates psychopathy research.
The liberal side of the issue argues that Psychopaths are socially disadvantaged because they do not have a moral understanding of the law due to a conscience that works differently than the average person’s, and therefore this violates the fairness of the law and should be reflected in their punishment. However, as we said before, this argument is not yet scientifically proven. We don’t know for sure how the conscience of psychopaths works or if there is a genetic component. Also, they don’t seem to be penalized as much as you might think. This is because psychopaths may not understand the law morally, but they can still make rational judgments. Psychopaths are calculating and very quick at calculating profit and loss, so even if they don’t necessarily have an ethical understanding of the law, they know that there is nothing to be gained by breaking it.
Also, as mentioned in the first argument, psychopaths are cunning, calculating opportunists, so some conservatives argue that introducing stricter punishment systems will make psychopaths behave more prudently, and they cite examples of how new laws have reduced crime in the past as empirical evidence. But I think this is a logical fallacy. First of all, we don’t know if the decreased crime rate actually applied to psychopaths. It is also possible that this phenomenon was simply a “digression to the means”. Digression to the means refers to the phenomenon of a population being an outlier at one point in time due to a combination of external factors, including luck, and then returning to its original state (the mean). Typically, this term is used when there are an infinite number of external factors, such as the skill of a bomber or the frequency of car accidents. The same is true for crime rates: There are an infinite number of factors that affect the crime rate, including the law itself, the country’s economy, politics, etc. It’s even possible that the crime rate is high at any given moment simply by chance. But over time, it will return to its original state (average crime rate). It can be analogized to throwing a die with your right hand. By chance, you might roll the dice three times and get a six all three times. To prevent this from happening too often, you then try rolling the dice with your left hand, and from that point on, you no longer roll sixes in a row. To say that the new punishment system worked would be like claiming that switching from right to left handedness changed the probabilistic nature of the dice. This approach may be overestimating the uncertainty of crime. In any case, there are many holes in the argument that this “effect” will hold true in the case of psychopaths based on historical examples. But above all, introducing a harsher punishment system for psychopaths violates the fairness of the law mentioned in the first argument and contributes to the false perception of psychopaths in the media. Stricter punishment for psychopaths is tantamount to generalizing that all psychopaths are criminals, which is unfounded discrimination that spreads false perceptions when the jury is still out. Therefore, it should not be adopted, regardless of whether it has the “effect” of lowering crime rates.
So far, I’ve outlined my rationale for why criminals shouldn’t be discriminated against in terms of legal punishment for being psychopaths, and I’ve responded to the arguments against it. To summarize, it is too early to impose legal sanctions when there is a lack of information about psychopathy, and the process of proving psychopathy has many loopholes in practice. Also, the argument that psychopaths live at a social disadvantage is unfounded, and imposing stricter regulations on them would not guarantee a decrease in the crime rate of psychopaths, and would be counterproductive by spreading false perceptions.
Unlike in other countries, this topic has not yet become controversial in Korea, so this debate about the human rights of minority groups such as psychopaths and sociopaths has not been covered as much in Korea as it has in other countries and may be unfamiliar to many people. However, it will become an issue at some point, and I think it is important to prepare and think about it in advance, especially at this time when there is a surge of interest in psychopaths through the media.