In this blog post, we take an in-depth look at the definition and limitations of diagnosing psychopaths, and how they should be dealt with legally.
Looking at examples from other countries, we can see that legal responses are most ambiguous when dealing with psychopaths. Whether due to a fundamental lack of understanding of psychopaths, existing cases show that legal responses have varied depending on the situation when a murderer was found to be a psychopath through psychiatric evaluation. A kind of “insanity defense,” such as “I am a psychopath. In other words, I have mental problems and need help,” has been used in the past to justify the murders of serial killers John Hinckley and David Bobbit, who received different legal punishments than ordinary people. Conversely, this defense was not applied in the case of serial killer Ted Kaczynski. Furthermore, there are cases where punishment is inflated, such as in the case of Tony, a murderer who was sentenced to 12 years in Broadmoor Special Hospital simply because he was diagnosed as a psychopath, even though he was supposed to serve a five-year prison sentence. As such, it can be seen that legal punishment for psychopaths is not clearly defined worldwide and is resolved somewhat subjectively. In Korea, there has not yet been much controversy over the punishment of psychopaths as in other countries, but since there are no clear guidelines for responding to ambiguous situations such as mental disorders and personality disorders, it is possible that this will become a major issue in the future. My argument is that, whether it is advantageous or disadvantageous to psychopaths, simply “proving” that someone is a psychopath should have no legal implications, because of a fundamental lack of understanding of psychopaths and the difficulty of “proving” it.
Before we begin in earnest, it seems appropriate to clarify the criteria for psychopathy. The American Psychiatric Association defines psychopathy as a type of antisocial personality disorder with the following seven characteristics.
1. Repeated criminal behavior
2. Repeated deception/lying/use of aliases
3. Total lack of empathy
4. Frequent violent behavior
5. Irresponsibility for safety
6. Antisocial behavior and difficulty following rules
7. Rationalization of others’ suffering
The first reason is that psychopathy may not be a serious mental disorder. Due to movies, TV shows, novels, and other forms of mass media, we often think of psychopaths as serial killers who have mental disorders but do not show any outward signs. However, they may not actually have mental disorders, and even if they do, it may not be a serious illness to the extent that “all psychopaths are destined to become serial killers.” In conclusion, although research on psychopaths is actively underway, there is still no definitive information about them. Therefore, in this situation, it is premature and unfair to subject psychopaths to legal sanctions.
To date, no accurate and specific brain analysis of psychopaths has been conducted. Although various conclusions have been drawn through numerous brain analyses and statistical surveys, no connection or fundamental understanding has been established between the different results. For example, one research institute claims that psychopaths have abnormalities in the neurons of the left brain, while several neurologists, including David Eagleman, claim that tumors have been found in the center of the brains of some psychopaths. It has not yet been determined which result is correct, or whether both essentially point to the same thing. In addition, James Holmes, a murderer with a tumor in his brain, was said to be schizophrenic, and statistical data shows that not only Holmes but many psychopaths actually have other mental disorders or personality disorders. Therefore, brain analysis cannot determine whether the behavior was caused by psychopathy or other factors, which undermines the reliability of the research. In addition, there is still much that is unknown about the relationship between psychopathy and other disorders and whether there are genetic factors involved. Even facts that were previously considered self-evident are being questioned and refuted. For example, according to a study in the Netherlands, psychopaths are not lacking in conscience or compassion, but simply do not respond to the suffering of others. When forced to feel compassion, they were able to do so. As a result, the definition of psychopathy has become difficult to determine, and some experts argue that environmental factors such as education play a greater role than genetic factors.
In addition, according to actual surveys, the most common occupations for psychopaths are CEOs and lawyers. However, this does not mean that all CEOs and lawyers are criminals who cannot control their murderous instincts. In the book The Wisdom of Psychopaths: What Saints, Spies, and Serial Killers Can Teach Us About Success (author: Kevin Dutton), psychopaths are not interpreted as a mental disorder, but simply as a personality trait or tendency. Just as every personality has its strengths and weaknesses, psychopaths have advantages such as quick calculation skills, objective judgment that is not swayed by emotions, strong mental fortitude, and a fearlessness that makes them unafraid of taking risks. Therefore, even if psychopaths do have a different brain structure, it is questionable whether they can be considered mentally ill. Of course, they do have a certain degree of inherent murderous tendencies. However, a psychopathic lawyer interviewed by the author said, “Somewhere deep inside me, there is a serial killer lurking. But I suppress him with cocaine, Formula One (car racing), and sex.” Therefore, it is somewhat unreasonable to conclude that impulsive murder is solely due to his psychopathic personality, as he suppresses his impulses through other means. If the lawyer interviewed had worked as a lawyer for 20 years and suddenly committed murder, it would be strange for him to claim, “I am a psychopath, so I couldn’t suppress my murderous instincts.” Impulsive murder is ultimately determined by a person’s impulsive tendencies, but there are still many uncertainties regarding the extent to which these tendencies are psychopathic, genetic, or influenced by other factors. Therefore, due to the lack of evidence regarding various aspects of psychopathy, it is premature and unfair to impose legal sanctions.
The second reason why “proving” psychopathy should not have any influence is because it is difficult to “prove” with current technology and knowledge. Before presenting this argument, let us first accept the premise that psychopathy is a serious mental disorder. (Of course, we have already confirmed that this point is questionable in the first argument.) Looking at existing cases, there have been two methods of proving psychopathy: The first was brain scans using brain imaging devices, and the second was through mental evaluation procedures by experts.
Through experiments conducted by neuroscientist Kent Kill, it was revealed that when psychopaths were shown cruel photos and videos of other living beings suffering, the areas of their brains that were activated were different from those of normal people. Therefore, in the past, this process was used as one method of proving psychopathy. However, I believe that there are several fundamental and practical problems with using these brain analysis photos as evidence of psychopathy. First, it is not reasonable to claim that someone is a psychopath based on abnormalities in the left brain. The proposition that “psychopaths have defects in the left brain” has already been proven to a certain extent based on statistical data (although the scientific correlation has not yet been clearly established). However, the truth of the opposite proposition, “if you have defects in the left brain, you are a psychopath,” is not known. In fact, it is entirely possible to have abnormalities in the left brain without being a psychopath. Second, it is very easy to manipulate brain analysis images to produce the desired results. In fact, alcohol, drugs, and depression can cause momentary delays in the brain, and even external physical stimuli can cause momentary side effects in the brain. Therefore, it is possible for ordinary people to use brain analysis photos to disguise themselves as psychopaths in order to avoid punishment. Finally, even if a criminal is a psychopath, brain analysis photos cannot be used to determine the mental state of the criminal at the scene of the crime or the type of crime committed. Looking at past cases where legal punishment for psychopaths was applied differently, the basis for this was that the criminals were all determined to have mental disorders that prevented them from controlling their instincts. In other words, it is clear that this controversy only applies to impulsive crimes committed by psychopaths, and that punishment for premeditated crimes should be applied equally to psychopaths. However, brain analysis is performed after the crime has been committed, so it is impossible to obtain practical information from the crime scene. For example, brain analysis may reveal that a criminal is a psychopath who cannot control his murderous instincts, but in reality, he may have committed the murder in a clear state of mind and with premeditation. (Of course, as mentioned earlier, it is wrong to label a criminal as a psychopath based on brain analysis images. In such cases, it is appropriate to punish them in the same way as ordinary people, but brain analysis images may lead to wrongful convictions. It is possible to prove that there is something wrong with the brains of psychopaths without showing them horrific videos. However, all brain images have these problems, and as mentioned earlier, it is not possible to determine with certainty which brain defects are directly related to psychopathy based on current knowledge. Therefore, it is virtually impossible to prove psychopathy with brain images in the current situation.
The second method is a mental evaluation procedure conducted by experts (mostly psychiatrists, criminologists, and psychologists). psychological evaluation process conducted by experts (mostly psychiatrists, criminologists, and psychologists). However, this method also lacks objectivity and is inevitably subjective. The main reason for this is that even experts have different opinions and standards regarding psychopaths. For example, psychopaths have both impulsive and calculating tendencies, so the interpretation of a criminal’s behavior will inevitably differ depending on the expert. Therefore, this method is not objective. Of course, it is possible to restrict experts who have such authority legally, but as explained in the first reason, accepting only the interpretations of some experts in a situation where information on psychopaths is lacking is not correct from an academic standpoint and may be controversial. In addition, diagnostic tests such as the Hare Psychopathy Checklist and the Psychopathic Personality Inventory, which are commonly used by experts, have several limitations. First, the test items in diagnostic tests differ slightly. Second, diagnostic tests are inevitably dependent on the respondent’s tendencies, as they are beyond the control of the expert. Not only do all people have different criteria for judgment, but the results must ultimately be left to the conscience of the respondent, which raises questions of reliability. For example, to an outsider, two respondents may both appear to be a 4 (on a scale of 1 to 5), but because the respondents are judging based on their own subjective criteria, one may answer 5 and the other 3. Finally, these diagnostic tests are extremely black-and-white in nature. Journalist John Ronson’s book, The Psychopathy Test: A Journey Through the Madness Industry, explains that these diagnostic tests are overly obsessed with black-and-white logic and attempt to classify respondents as either completely normal or abnormal. According to John Ronson, everyone has at least some psychopathic tendencies, depending on the situation. Therefore, while these diagnostic tests can serve as a rough indicator of who may have potential psychopathic tendencies, it is somewhat unreasonable to label someone as a psychopath based solely on the results of a diagnostic test without any other scientific basis.
There are two main perspectives on this issue in other countries. First, there are those who interpret psychopathy as a mental disorder and argue that a differentiated punishment system should be introduced to prioritize treatment for the disorder. For convenience, I will refer to them as the progressive camp, as they have emerged recently. The second perspective, which opposes the first, is that psychopaths should not receive special treatment, and even if they do, they should be punished more severely. I will refer to those who hold the second view as conservatives, as they existed before psychopath research began.
Progressives argue as follows on this issue: Psychopaths are socially disadvantaged because they do not understand the law morally due to their conscience, which functions differently from that of normal people. Therefore, this violates the fairness of the law and should be reflected in their punishment. However, as mentioned earlier, this argument has not yet been scientifically proven. Based on the results of research to date, it is not clear how the conscience of psychopaths works or whether there are genetic factors involved. Furthermore, they do not suffer as much disadvantage as one might think. This is because even if psychopaths do not understand the law morally, they are capable of rational judgment. Psychopaths are calculating and quick to weigh the pros and cons, so even if they do not understand the law ethically, they know that there is no benefit to be gained from breaking it.
Furthermore, as mentioned in the first argument, psychopaths are cunning and calculating opportunists. Therefore, some conservatives argue that introducing a stricter punishment system will make psychopaths behave more cautiously, citing examples of crime rates decreasing in the past when new laws were introduced as empirical evidence. However, I believe this is a logical fallacy. First, it is impossible to know whether the decrease in crime rates actually applied to psychopaths. Furthermore, this phenomenon may have been simply a “digression to the means.” “Digression to the means” refers to a phenomenon in which external factors, including luck, combine to produce an unusual value at a certain point in time, after which the value returns to its original state (the mean). This term is generally used when there are an infinite number of external factors, such as bombing skills or the frequency of traffic accidents. The same is true for crime rates: There are countless factors that affect crime rates, such as the law itself, the country’s economy, and politics. It is even possible that crime rates may be high at a certain point in time simply by chance. However, over time, they return to their original state (average crime rate). This can be likened to throwing a die with your right hand. By chance, you may roll a 6 three times in a row. To prevent the number 6 from appearing frequently, you try throwing the dice with your left hand, and from then on, the number 6 never appears again. Saying that the newly introduced punishment system was effective is like claiming that changing from throwing with your right hand to your left hand changed the probabilistic nature of the dice. This approach may overestimate the uncertainty of crime. In any case, there are many flaws in using past cases to argue that this “effect” will appear in the case of psychopaths. Above all, however, introducing a stricter punishment system for psychopaths violates the fairness of the law mentioned in the first argument and leads to misperceptions about psychopaths through the mass media. Strict punishment for psychopaths is tantamount to generalizing that all psychopaths are criminals, and is therefore unfounded discrimination that spreads misconceptions in a situation where the facts are still unclear. Therefore, it should not be introduced regardless of whether or not it has the “effect” of reducing crime rates.
So far, I have described my reasons why criminals should not be discriminated against in terms of legal punishment even if they are psychopaths, and my responses to the counterarguments. In conclusion, it is too early to impose legal sanctions when there is a lack of information about psychopaths, and the process of proving psychopathy has many loopholes in reality. Furthermore, the claim that psychopaths suffer social disadvantages is unfounded, and even if stricter regulations are imposed on them, there is no guarantee that the crime rate among psychopaths will decrease.
Unlike other countries, this topic has not been controversial in Korea. Therefore, the debate over the human rights of minority groups such as psychopaths and sociopaths has not been addressed as much in Korea as it has been in other countries, and many people may be unfamiliar with it. However, I believe that it will become an issue at some point, and that we need to prepare and consider it in advance, especially at a time when interest in psychopaths is rapidly increasing through the media.
