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Judges are biased in favor of psychopaths whose “brains made them do it”

Friday, August 24, 2012
posted by Douglas Keene

Got an upcoming trial and a psychopath for a client? First, please accept our sincere condolences. “Then go to Neurolaw in terms of causation and your client gets a lesser sentence (and returns to society faster)”.

Time Magazine has done a thorough writeup on the study and all the various conditions the researchers built in to assess the impact of specific information about psychopathy on 200 trial judges across the country.

Essentially, what the researchers did was to explore whether judges would punish psychopaths less severely if their behavior was blamed on genetic brain differences. And, they also wondered if these judges would instead punish more severely due to the high rate of recidivism we see in psychopaths. The answer to both questions is yes. They punish more severely and they punish less severely. We accept your thanks for clearing this up for you.  Ahem…

Researchers presented one of four versions of the hypothetical case to 181 judges in 19 states. In all versions, judges read scientific evidence that the convicted criminal was a psychopath and what that meant, namely that psychopathy is incurable. Half of the judges also received expert testimony on the genetic and neurobiological causes of the criminal behavior, presented either by the defense as a mitigating factor, or by the prosecution, which argued that it should increase the convict’s sentence. The other judges got no mention of the idea that biological differences in the convict’s brain could have caused his behavior. Researchers controlled for the fact that different states have different sentencing laws.

The judges who were given a biological explanation for the convict’s psychopathy issued shorter sentences, but notably, all judges committed the criminal to significantly more prison time than their average nine years for aggravated battery. And while all judges viewed psychopathy as an aggravating factor in sentencing, the judges who heard evidence about the genetic and neurobiological causes of the condition from the defense reported viewing it as less aggravating. Nearly 9 in 10 judges listed at least one aggravating factor in their reasoning for their sentence, but when they heard the expert testimony from the defense, the percentage of judges who also listed mitigating factors rose from 30% to 66%. And judges who received this evidence were 2.5 times more likely than other judges to report actually having weighed aggravating versus mitigating factors in deciding their sentence.

“The judges did not let the defendant off,” said lead author Lisa Aspinwall of the University of Utah in a statement. “They just reduced the sentence and showed major changes in the quality of their reasoning.” The researchers noted that they were surprised the judges reduced their sentencing at all, considering that they were dealing with psychopaths who are in general a highly unsympathetic bunch.”

The results are intriguing. Even though we can be educated about realities of how the psychopath is hardwired differently and feels no empathy for their victim–we still feel a twinge of sympathy when we hear it isn’t something they cannot help. “His brain made him do it.” It is as though we are impressed by neurolaw explanations but don’t really realize how much it impresses us–even when “we” are a judge. We’ve written about real cases where neurolaw explanations for behavior worked to result in acquittals and those where the jurors simply didn’t buy it. It’s a fascinating area of emerging law.

The good news is that the judges in this study all chose to levy a sentence harsher than that demanded by aggravated battery. The disconcerting news is that when you hear mitigating evidence presented by the defense attorney, you are likely to cut the defendant some slack– even when you are a judge. It will be intriguing to watch how neurolaw explanations continue to affect more naive dispensers of justice: the jurors.

Aspinwall LG, Brown TR, & Tabery J (2012). The double-edged sword: does biomechanism increase or decrease judges’ sentencing of psychopaths? Science (New York, N.Y.), 337 (6096), 846-9 PMID: 22904010

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