“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

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy. While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns. In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation. Specifically, we will focus on how the use of these terms has a disproportionate negative impact on persons of color.Current research estimates that one in five violent offenders can be classified as a psychopath, a term fraught with controversy and 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 individuals with antisocial personality disorder, which 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 research continues, it is critical for criminologists, attorneys and judges to begin thinking about whether brain science should affect our modern views of punishment, and whether individuals should be punished differently 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 present some background on the controversy of psychopathy diagnosis, sharing in this context what we call the “inside baseball” about the debate – on the differences between psychopathy and ASPD – that has rocked the psychology academy. We focus next on how the instruments that are used to assess these conditions are subject to significant racial bias. We then unpack these issues through a lens of therapeutic jurisprudence, a school of thought that considers the extent to which the legal system can be a therapeutic agent. We will also analyze how our current ideas about punishment and recidivism could change, using psychopathy research as a case study. Finally, we will consider how this new research creates extra responsibilities for both lawyers and expert witnesses in their representation of criminal defendants in such cases