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Comment: Holding Psychopaths Morally and Criminally Culpable

Michael J. Vitacco, Steven K. Erickson and David A. Lishner Emotion Review 2013 5: 423 DOI: 10.1177/1754073913490043

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490043 EMR5410.1177/1754073913490043Emotion ReviewVitacco Psychopathy and Culpability 2013
490043 EMR5410.1177/1754073913490043Emotion ReviewVitacco Psychopathy and Culpability


Comment: Holding Psychopaths Morally and Criminally Culpable

Comment: Holding Psychopaths Morally and Criminally Culpable Emotion Review Vol. 5, No. 4 (October 2013) 423–425

Emotion Review Vol. 5, No. 4 (October 2013) 423–425 © The Author(s) 2013 ISSN 1754-0739 DOI: 10.1177/1754073913490043

Michael J. Vitacco

Department of Psychiatry and Behavioral Health, Georgia Health Sciences University, USA

Steven K. Erickson

Independent Forensic Practice, York, Pennsylvania, USA

David A. Lishner

Department of Psychology, University of Wisconsin Oshkosh, USA


Theoretical arguments that psychopathy eliminates individual responsibility for illegal behavior and can therefore serve as a basis for an insanity defense are largely premised on emotional characteristics of psychopathy that impede the individual’s capacity to appreciate right from wrong. We offer arguments and countervailing evidence indicating psychopaths do have the capacity to appreciate right from wrong and therefore should not be absolved of criminal responsibility.


culpability, insanity defense, psychopathy

In contemporary research, psychopathy is conceptualized as having an interpersonal-affective dimension along with an impulsive-antisocial dimension (Hare, 2003). Cleckley (1941) published the Mask of Sanity, which included the first formal criteria for psychopathy. His description contained items reflect- ing a problematic emotional life including poverty in affective reactions, incapacity for love, and unresponsiveness in interper- sonal relationships. Based in part on Cleckley’s work, Hare cre- ated the Psychopathy Checklist (PCL; 1991) and its revised version (PCL-R; 2003) to formally evaluate individuals. Higher scores on the PCL/PCL-R have been linked with violent behav- ior (Leistico, Salekin, DeCoster, & Rogers, 2008). As such, psy- chopathy is often used by forensic practitioners to evaluate violence risk (Viljoen, McLachlan, & Vincent, 2010) and is fre- quently introduced in legal proceedings (Walsh & Walsh, 2006). Recent scholarship suggests psychopaths should be excused for their unlawful conduct (Levy, 2007; Morse, 2008). Although dif- ferent statutory definitions of insanity exist, many rely on some

variation of the definition propagated by the American Law Institute (ALI). Developed in 1962 and upheld by the Court of Appeals in the District of Columbia (U.S. v. Brawner, 471 F2d 969, 1972), the ALI insanity defense states “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to con- form his conduct to the requirements of law” (American Law Institute, 1985, Sec. 4.01). The ALI rule expressly excludes any abnormality manifested by repeated criminal or antisocial conduct. Proponents of excusing behavior on the basis of psychopa- thy have advocated for a fundamental change in how insanity laws are constructed. In an article authored by Glenn, Raine, and Laufer (2011) published in Emotion Review, the authors endorsed changing existing law on culpability based on studies implicating brain areas associating psychopathy with deficits in moral behavior, culminating in failure to appreciate conse- quences ascribed by the law. Glenn, Raine, and Schug (2009) proposed excusing behavior in psychopaths in a manner typically reserved for individuals with psychotic disorders (Cochrane, Grisso, & Frederick, 2001).

Psychopathy, Emotions, and Criminal Behavior

Psychopathy is characterized by deficits in moral judgment and behavior that frequently lead to criminal sanctions (Erickson & Vitacco, 2012). The increasing evidence of the emotional issues associated with psychopathy is underscored by brain imaging. An emerging body of neuroimaging data links psychopathy with atypical activation in areas of the brain relating to emotional modulation and moral judgment (Marsh et al., 2011; Yang & Raine, 2009). And yet, studies implicating brain areas in psychopathy have done little to shed light on the


Emotion Review Vol. 5 No. 4

lack of emotion phenotypically expressed by individuals with high levels of psychopathy. Although research has shown brain differences between “normal brains” and “psychopathic brains,” proponents of changing not guilty by reason of insan- ity (NGRI) laws to include psychopathy have not sufficiently made the case that brain differences in the areas believed to be responsible for moral emotions is an adequate linchpin to place nonresponsibility claims. Simply demonstrating brain “abnormalities” does not answer the responsibility question. Specifically, these studies have not shown that those higher in psychopathy are unable to act in a responsible manner. After all, psychopathy does not entail deluded perceptual abnormal- ities that could impair an ability to understand the law. And, they have not proven that the law—as a social institution— would support excusing these types of folks, even if they man- ifest emotional impairment and deficits in moral decision making. Moreover, the behavior of high-psychopathy individuals is frequently instrumental and often emerges from self- serving motivations (Erickson & Vitacco, 2012). Such behavior indicates evidence of responsible conduct accord- ing to norms enshrined within the legal code. For instance, Woodworth and Porter (2002) found higher levels of instru- mental homicides committed by offenders with psychopathic characteristics, even though their self-report descriptions of the homicides are remarkably similar to their low-psycho- pathic counterparts (Porter & Woodworth, 2007). Porter, Woodworth, Earle, Drugge, and Boer (2003) found murder- ers who scored high in psychopathy demonstrated greater levels of “gratuitous and sadistic violence than nonpsycho- pathic offenders” (p. 459). The behavior of high-psychopathy individuals postarrest provides additional insight into their appreciation for the court system and criminal charges. For instance, Häkkänen- Nyholm and Hare (2009) reported on the postoffense behav- ior of Finnish homicide offenders. Offenders with higher levels of psychopathic traits, especially callousness, were more likely to deny their charges and get their charges reduced via appeal. Porter, ten Brinke, and Wilson (2009) found Canadian offenders with high psychopathy scores were more than twice as likely to convince parole boards to grant them conditional release. New research on psychopathy is applicable to the appre- ciation of moral and legal wrongfulness. Young, Koenigs, Kruepke, and Newman (2012) studied moral judgment and concluded: “In a sense, psychopathy in the current study was associated with the more rational response–greater forgive- ness for an accident” (p. 664). Using a task of moral wrong- fulness, Aharoni, Sinnott-Armstrong, and Kiehl (2012) evaluated 109 inmates, concluding: “The present study cau- tions that there is insufficient evidence to support insanity defenses based simply on the inability of these individuals to understand moral wrongfulness” (p. 492). Moreover, research with NGRI acquittees found no meaningful differences in affective empathy as a function of psychopathy (Lishner et al., 2012).


In a 2011 issue of Emotion Review, Glenn et al. (2011) proposed using psychopathy to avoid criminal responsibility. With little doubt, psychopathy is associated with significant deficits in the emotional ability to relate to others and concomitant deficits in interpersonal affect. In addition, areas of the brain that control and modulate emotional behavior have been implicated in the expression of psychopathy. Despite the involvement of brain areas and a long history of descriptions of emotional deficits associated with psychopathy, these deficits should not parlay into a change of current insanity standards that could hold high-psychopathy individuals criminally nonresponsible.


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but he started it”:

Porter, S., & Woodworth, M. (2007). “I’m sorry I did it

A comparison of the official and self-reported homicide descriptions

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Vitacco et al.

Psychopathy and Culpability


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