While psychopaths appear to exist outside the ordinary moral community, it does not necessarily follow that no basis exists for justifying punishment. Two possible lines of thought will be considered: (1) the guilty but partially responsible argument of Stephen Morse (Morse 2003) and (2) analogizing the punishment of the psychopath with punishment on the basis of conventional transgression.
Diminished Rationality, Diminished Responsibility
Stephen Morse presents a compelling argument for the idea that diminished rationality should result in diminished responsibility (Morse 2003, 289). He proposes the idea of a guilty but partially responsible (GPR) verdict in the case of diminished rationality. The requirements are that (1) “the defendant's capacity for rationality was substantially diminished at the time of the crime” and (2) “that the defendant's diminished rationality substantially affected his or her criminal conduct” (Morse 2003, 299–300). The first element requires that (1) the impairment results in a substantial deficit in rational capacity relative to ordinary persons, and (2) the impairment is nonculpable. Nonculpable impairments are ones that are not voluntarily created and are not culpably reinforced through will or negligence.18 Morse proposes an additional caveat: degree of mitigation available should inversely track the seriousness of the crime, such that serious crimes receive proportionally less mitigation (Morse 2003, 303–04).
As noted previously, psychopaths do not, outside of their selective deficits, appear to have a diminished rational capacity relative to ordinary persons. Insofar as the first element would require a psychopath to have a global impairment for rationality, it would not apply and GPR would be of no use. However, psychopaths do appear to possess a “substantial” deficit in moral reasoning. In the domain of criminal responsibility, moral reasoning is associated with the rational capacity of an ordinary person. Therefore, within the specific context of criminal responsibility, it may be argued that a deficit in moral reasoning is therefore a deficit in rational capacity. If so, this element of GPR is met.
The second element seems to be less certain in its effect. Psychopaths may be aware that they are psychopaths, and so there may be some question as to whether they have a duty to seek treatment before something like GPR can be raised. This is, of course, assuming a valid treatment for psychopathy exists and is reasonably accessible. It seems plausible to think, though, that the deficits in conditioning and response may impair the thought process responsible for the sort of foresight necessary to take such precautions. If so, then the second element may be satisfied. It may be worth investigating, however, whether a psychopath can properly be said to be “on notice,” after the first conviction, of his or her impairment and that the psychopath must take measures to mitigate its effects in order to successfully raise GPR in the future.
GPR, as applied to psychopaths, in some sense parallels the sorts of arguments used in support of diminished responsibility for adolescent offenders. For example, it has been argued that adolescents possess immature psychosocial development and reduced capacity for self-management, risk perception, risk calculation, and “autonomous choice” (Scott and Steinberg 2003). Psychopaths appear to possess these sorts of deficits as well, though not necessarily to the same degree and in the same way.19 Nonetheless, this similarity may suggest that the law need not depart from current values as much as one might initially be inclined to believe.
Another way to conceive of the GPR approach is that in the case of those with a diminished rationality, we may impose on them a duty to try to learn and conform to moral norms, but we do not impose a duty to succeed to the degree that we do for adults, due to recognition that this duty is unreasonably burdensome, impractical, or impossible.
This approach appears promising, but it is worth noting that Morse does not appear to have endorsed it in a recent article (Morse 2008). Instead, he opts for a justification of civil commitment on the basis of harm posed to society; what he calls “desert-disease jurisprudence.” Morse concludes that as psychopaths exist outside the moral community, so too it follows that responsibility on the basis of moral fault may be inappropriate. It is unclear, though, why GPR is not included in this discussion, as psychopathy's relation to moral socialization may be conceived of as a developmental disability, in which case GPR would appear to apply. However, it is also possible to conclude that, based on the severely diminished capacity for ordinary moral reasoning, it is a disability that largely excludes any serious consideration of ordinary criminal responsibility. In such a case, GPR may be inappropriate; however, another approach will be considered, one that attempts to address this concern.
Another way to approach the issue of partial responsibility is to analogize the relationship between the psychopath and moral wrongs with that of an ordinary moral agent and conventional transgressions. Psychopaths do understand the concept of proscribed behavior, but do not appear to understand the unique character of a moral wrong. However, like an ordinary agent, they do appear to understand that some behaviors are not permitted. Insofar as ordinary agents can be punished for committing conventional transgressions, it may be argued that a psychopath may be similarly punished.
This approach differs from the moral-reasoning approach discussed in the section on full responsibility because it does not purport that psychopaths are expected to make use of practical reason in order to comply with ordinary moral duties. Moral agency under this view is thus not premised on something like “pure reason” or adapted practical reason; instead, the approach is based on tying the psychopath's capacity for reason to a diminished type of duty—the conventional duty.
Moral luck is similarly not a problem because, under this approach, impaired capacity to learn conventions would be treated as a basis for limiting conventional duty to the extent that it would prevent compliance. Similarly, this means that punishment in this case is not “strict liability” because individual capacity (knowledge, self-efficacy, etc.) is a relevant consideration in applying this type of punishment. Nonetheless, there is some question as to justifying a notion of wrongfulness that would be compatible with an agency-centric tradition of punishment, that is, a tradition in which wrongfulness is tied to notions of wrongful exercise of a free will.
It may be possible to justify punishment on the basis of viewing rights as correlative rather than absolute. Under this view, exercise of an individual's agency is bounded by its interaction with the rights of other agents. Individual “rights,” insofar as they are to have any meaning and efficacy within the context of a society of many individuals, are in practical terms constrained by the rights of others. When an individual acts, he or she does not do so in a vacuum; the individual may interfere with another person's own agency. Some interferences we allow, typically minor impairments that are simply an unavoidable consequence of living in society. However, severe threats to the physical (bodily, mental) or material (resources, etc.) sources of another person's enjoyment of agency, or that of society at large, cannot be defended by referring to one's own right. Thus, the nature of individual rights is, at its core, correlative rather than absolute in the context of one who lives within a society of individuals.
The “wrong,” under this view, in committing a conventional wrong is exceeding the boundaries of an individual's correlative right to act in a given context. So, in some sense, it is still a wrongful act but is of a class of wrongs that is less severe than moral wrongs. This type of breach is a capacity that psychopaths share with ordinary moral agents and one that does not require the sort of fundamental understanding of “moral” wrongs that justifies punishment in the context of ordinary moral breach. The distinction in treatment between psychopaths and ordinary moral agents is that what would ordinarily be considered moral wrongs are construed as, structurally, conventional wrongs on the part of the psychopath. However, the approach still appears consistent with long-standing notions of punishment focusing on the nature of the act rather than on the consequence. This is because wrongfulness of an act is still premised on impermissible exercise of agency, rather than the mere existence of a “bad” consequence.