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 Psychopaths cannot understand punishment—what does that mean for the courtroom?

Wednesday, February 18, 2015
posted by Rita Handrich

hannibal lecterAt least that is the headline we’ve been reading about this research. We’ve written before about the psychopath. They are typically characterized as scary and “other” than us—not like us at all. They have been described as without conscience, and yet some of them are involved in corporations rather than prison. There actually are researchers who would say that because the brains of psychopaths are abnormal—they should not be punished for their behavior. Today’s spotlight is on an article which is of that ilk. These researchers say “one in five violent offenders is a psychopath”. That number is not really surprising since prevalence rates for psychopathy have been estimated at 15% to 25% of the male offender population. The researchers continue by saying psychopaths have higher rates of recidivism and do not seem to benefit from rehabilitation. The researchers say they know “why” this happens and they hope their work will improve childhood interventions to prevent or at least decrease violent behaviors in those with psychopathy.

They begin by reviewing the literature on the cold and premeditated aggression of the psychopath and posit that the behavior is due to abnormal and distinctive brain development that can be seen from a young age. The researchers recruited 50 men (aged 20 to 50 years; reading age higher than 10 years; no history of major mental or neurological issues) to participate in the study. Obviously, they chose some men who reported they were healthy, and others with a documented history of violent offenses. The study used the fMRI to examine brains, looking for similarities and differences in the brains of healthy non-offenders and violent offenders (some with psychopathy and some with antisocial personality disorder but who did not meet the criteria for psychopathy).

Their subjects were paid minimum wage for their time and included:

12 violent offenders with both antisocial personality disorder and psychopathy, and

20 violent offenders with antisocial personality disorder but not psychopathy, and

18 healthy non-offenders.

The offenders had been convicted of various violent crimes (e.g., murder, rape, attempted murder, grievous bodily harm) and the researchers recruited them from Britain’s probation system. The non-offenders were recruited from unemployment offices and from community webpages. All participants were interviewed and scored on the Psychopathy Checklist and the offenders’ criminal records were reviewed. Participants were asked to not use alcohol or illicit drugs for 2 weeks before and during the study and were given urine and saliva tests at each research session. They were also given an IQ test (the Wechsler Adult Intelligence Scale, third edition) and completed a reactive-proactive aggression questionnaire.

The researchers reported differences in brain regions related to empathy and the lack of empathy, processing prosocial emotions (like guilt and embarrassment) and moral reasoning. These regions are also associated with the ability to learn from rewards or punishment. If you don’t experience discomfort when you do something incorrectly, you are less likely to change your behavior the next time. As in “why can’t that boy stay out of trouble?” These researchers believe they have an idea about why junior keeps messing up.

Contrary to the attention grabbing headlines, it is not that psychopaths cannot learn from punishment. And they do “register” punishment. It is just that they do not modify their behavior after being punished. The researchers believe that the psychopath may fail to consider the negative consequences of an action and instead only focus on the positive. When caught, the psychopath is punished, and often incarcerated. Upon release, however, the psychopath is much more likely to re-offend and thus, is seen as not changing behavior as the result of punishment.

The researchers recommend that parents of children with psychopathy be taught “optimal parenting skills” in order to reduce the conduct problems among their children “except amongst those who are callous and insensitive to others”. They believe this sort of disciplined parenting, which works consistently to teach conduct disordered children the consequences of their actions, can interrupt the abnormalities of brain structure and actually modify behavior (and modify the brain at an age when the brain is more plastic and susceptible to change).

There are obvious concerns with this recommendation. In short, the impact of such a label (especially for pre-teens) is frightening. The New York Times wrote a plain language article on whether you can call a 9-year-old a psychopath which generated more than 600 comments. How would parents change their view of their child if they were told the child was a budding psychopath? How would teachers change their view of a child labeled a psychopath? How would parents and teachers change their behavior if a child was given that label? We know what happens when children are diagnosed with learning disorders, labeled “slow” and so on in the school system. They are expected to perform at a lower level and they do.

There is a huge body of literature on the “halo effect” (easily found through internet searches). Among kids in school, if even well-intentioned teachers are told that a student is a slow learner or a discipline problem, they later report that the student couldn’t understand as well as others, or had problems getting along. Conversely, if the reputation of a student is positive, the teacher is likely to spend more time and attention being helpful and supportive. Labels are dangerous, because they tend to allow people to stop looking carefully and using objective judgment. And with children, it can put them on paths for good or ill that are later very difficult to change.

From a litigation advocacy perspective, what does this mean? Let’s assume that these researchers are correct and the brain of the psychopath is different, and you can see those differences from a very young age. Does that mean psychopaths should not be held responsible for their behavior? That would likely not play well with an audience of jurors since the violent crimes of the psychopath are often heinous and clearly premeditated. Could they perhaps be thought of as legally responsible but not morally responsible? It is truly a dilemma for the attorneys involved and for the jurors who hear the case facts.

From the perspective of a world in which genetic coding or fMRI data is centrally and digitally maintained for entire lifetimes, there have long been concerns about how the data could be (mis)used. Of course it is highly confidential and protected by numerous laws, but so is my credit card information, my social security number, et cetera. If it was communicated to schools, employers, medical professionals, etc., it could permanently alter opportunities to live successful lives. And if the person already has psychopathic markers, surely knowing that isn’t going to improve their ambition toward good citizenship.

Gregory, S., Blair, R., ffytche, D., Simmons, A., Kumari, V., Hodgins, S., & Blackwood, N. (2015). Punishment and psychopathy: a case-control functional MRI investigation of reinforcement learning in violent antisocial personality disordered men The Lancet Psychiatry, 2 (2), 153-160 DOI: 10.1016/S2215-0366(14)00071-6

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