Abstract
The way in which we characterize the structural and functional differences between psychopath and normal brains – either as biological disorders or as mere biological differences – can influence our judgments about psychopaths’ responsibility for criminal misconduct. However, Marga Reimer (Neuroethics 1(2):14, 2008) points out that whether our characterization of these differences should be allowed to affect our judgments in this manner “is a difficult and important question that really needs to be addressed before policies regarding responsibility... can be implemented with any confidence”. This paper is an attempt to address Reimer’s difficult and important question; I argue that irrespective of which of these two characterizations is chosen, our judgments about psychopaths’ responsibility should not be affected, because responsibility hinges not on whether a particular difference is (referred to as) a disorder or not, but on how that difference affects the mental capacities required for moral agency
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Notes
Sometimes Reimer talks about how these differences are conceptualised rather than how they are characterized, though given that the focus of her paper is meant to be on “the language used to characterize the empirical facts of psychopathy” ([30]:3), and nothing in her argument seems to hang on which of these terms is used, I will use the term “characterize” throughout this paper.
As an empirical observation this claim seems warranted, since the language of disorder is pervasive in many contexts, and it often performs this exculpatory function. For instance, disease of the mind, mental impairment, deficit, pathology or malfunction (and other similar deficit concepts) is supposed to be the basis of diminished responsibility in the American Law Institute’s Model Penal Code 1962 ([32]:1790), the Australian Criminal Code Act 1995 ([24]:187–193), in Israeli criminal law [31], in the Durham test, the “irresistible impulse” test, and in the famous McNaghten rule ([20]:417, quoting Regina v. McNaghten, 1843; [32]:1789–1790). Eigen provides a detailed and fascinating historical account of how the notion of insanity has played an increasingly important role in determinations of responsibility within the law [10]. More recently, descriptions of psychological deficits have been given a neuroscientific rendering – for instance, various bodies including the American Psychological Association [2] submitted documents to support the respondent in Roper v. Simmons [8] which cited neurological deficits in adolescents’ developing brains [5, 15] as the causes of their reduced responsibility. The idea that neurological deficits exculpate adolescents from responsibility has even been embraced within the commercial sector – for instance a recent advertisement by the Allstate Insurance Company reads “Even bright, mature teenagers sometimes do things that are ‘stupid.’ But when that happens, it’s not really their fault. It’s because their brain hasn’t finished developing” [1]. (I thank an anonymous reviewer for a pointer to Allstate’s advertisement.) In the popular press, the case of the “middle-aged Virginian man with no history of any misdemeanour [who] began to stash child pornography and sexually molest his 8-year-old stepdaughter” ([7]:42), and whose personality changes and “powerful sex addiction w[ere] caused by an egg-sized tumor in his brain”, is also discussed in terms of the notions of disease, damage, illness and abnormality, all of which are seen as exculpating him of responsibility (e.g. [27]). Even those who are critical of what they see as the over-use of modern neuroimaging techniques within the courtroom (e.g. [33]) caution that although genuine diseases of the mind do exist, we must be careful to look for these and not merely for the presence of brain activity when examining neuroimaging scans in the courtroom; however this is after all nothing less than tacit acceptance of the claim that the presence of mental disorder, but not of mere difference (or simply of biological causation), is an exculpatory condition.
This follows from the claim that we tend to see brain differences as exculpatory when we think of them as disorders, but not when we view them as mere differences.
Reimer cites three reasons which “mitigate against the idea that both [schizophrenia and psychopathy] are disorders”: (i) “schizophrenia is associated with genuine neurological impairment”, (ii) “schizophrenics often seek treatment for their condition”, and (iii) schizophrenia is harmful and disadvantageous ([30]:10), emphasis and internal quotation marks removed). These features are present in hypomania, which provides some reason to think of it as a disorder.
Contra the previously-cited claims supporting the respondent in the Supreme Court of the United States case Roper v. Simmons (at note 2 above).
Naturally, we may still speak firmly to them and chastise them for being careless, but our assessment of their blameworthiness would be calibrated to their lower capacities, and even if we do treat them a bit more harshly than what they would otherwise deserve given their reduced capacities, this is probably done to morally educate them (I thank an anonymous review for this point) and, in the shorter term, to ensure that they do not do it again.
Walter Glannon also suggests that the way to think about children’s reduced responsibility is not by claiming that they suffer from a disorder, but that due to their brains not yet being fully mature they lack certain mental capacities that are important for moral agency ([13]:74).
Heidi Maibom’s recent discussion [18] suggests that this capacity-theoretic conception of responsibility is fairly prevalent in the philosophical literature on responsibility – for instance, Walter Glannon explicitly defends a “capacity-theoretic conception of ... responsibility” ([13]:71) – and H. L. A. Hart’s discussion of responsibility (e.g. [17]:218, 227) suggests that something like the concept of “capacity responsibility” plays a crucial role in legal reasoning about responsibility. See Nicole Vincent’s discussion ([34]:105–108, especially points (ii.a) and (ii.b) on p. 108) for an elaboration of the role which this capacity responsibility plays in legal reasoning about people’s responsibility.
Whether we are justified in attributing responsibility to the alcoholic and to the spendthrift for their respective lack of the relevant capacities is a complex issue which I shall not discuss here; my point is only that if they are indeed responsible for their lack of those capacities then the mere fact that they now actually lack those capacities will not exculpate them of their responsibility.
Thus, to be responsible an agent needs the skills required by the roles they consent to play (I thank an anonymous reviewer for helping me put this point more clearly), but also the more general skills required to determine whether they should consent to playing this or that role. After all, if we suspect that our next door neighbour’s daughter is highly unreliable, then in the first instance we would be failing in our duties as parents by asking her to baby sit our child (which may place some of the responsibility for the drowning tragedy onto us), and in the second instance it may even be unreasonable to expect her to be a reliable judge of her own abilities (which may conceivably reduce her responsibility). Stephen Morse also recognizes this context-dependence of the capacities which are required for moral agency when he points out that “[t]he requirements for competence to contract and for criminal responsibility are not identical” ([25]:38).
My apparent reservation here and in these last two paragraphs – i.e. my use of the word “probably” – reflects not my lingering doubts about Reimer’s claims, but simply the fact that the focus of my paper has not been the same as Reimer’s focus; while her discussion addressed the question of whether there is any reason to prefer characterizing the raw scientific data about the differences between the brains of psychopaths and normals using the language of deficit or the language of mere difference, I have focussed on addressing what she called the “difficult and important question” of whether our choice of either one of these characterizations should be allowed to affect how we view the psychopath’s responsibility. Since I have added nothing further, either by way of additional support for the points which Reimer was trying to make, or by analyzing her arguments for those points (other than the examples cited in note 2 above, which support her claim that the language of disorder does indeed seem to play a pervasive exculpatory role in various contexts), I therefore prefer to abstain from endorsing her particular conclusions.
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Vincent, N.A. Responsibility, Dysfunction and Capacity. Neuroethics 1, 199–204 (2008). https://doi.org/10.1007/s12152-008-9022-8
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DOI: https://doi.org/10.1007/s12152-008-9022-8