Current legal practice holds that a diagnosis of psychopathy does not remove criminal responsibility. In contrast, many philosophers and legal experts are increasingly persuaded by evidence from experimental psychology and neuroscience indicating moral and cognitive deficits in psychopaths and have argued that they should be excused from moral responsibility. However, having opposite views concerning psychopaths’ moral responsibility, on the one hand, and criminal responsibility, on the other, seems unfortunate given the assumption that the law should, at least to some extent, (...) react to the same desert-based considerations as do ascriptions of moral responsibility. In response, Stephen Morse has argued that the law should indeed be reformed so as to excuse those with severe psychopathy from blame, but that psychopaths that have committed criminal offences should still be subject to some legal repercussions such as civil commitment. We argue that consequentialist and norm-expressivist considerations analogous to those that support punishing psychopaths or at least retaining some legal liability, might also be drawn on in favour of holding psychopaths morally accountable. (shrink)

Increasing evidence from psychology and neuroscience suggests that emotion plays an important and sometimes critical role in moral judgment and moral behavior. At the same time, there is increasing psychological and neuroscientific evidence that brain regions critical in emotional and moral capacity are impaired in psychopaths. We ask how the criminal law should accommodate these two streams of research, in light of a new normative and legal account of the criminal responsibility of psychopaths.

The psychological literature now differentiates between two types of psychopath:successful (with little or no criminal record) and unsuccessful (with a criminal record). Recent research indicates that earlier findings of reduced autonomic activity, reduced prefrontal grey matter, and compromised executive activity may only be true of unsuccessful psychopaths. In contrast, successful psychopaths actually show autonomic and executive function that exceeds that of normals, while having no difference in prefrontal volume from normals. We argue that many successful psychopaths are legally responsible for (...) their actions, as they have the executive capacity to choose not to harm (and thus are legally rational). However, many unsuccessful psychopaths have a lack of executive function that should at least partially excuse them from criminal culpability. Although a successful psychopath's increased executive function may occur in conflict with, rather than in consonance with their increased autonomic activity - producing a cognitive style characterized by self deception and articulate-sounding, but unsound reasoning - they may be capable of recognizing and correcting their lack of autonomic data, and thus can be held responsible. (shrink)

Research Articles Michael S. Moore, Social Philosophy and Policy, FirstView Article.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. (Article 1, Universal Declaration of Human Rights 1948) This resounding statement encapsulates a number of problematic themes for lawyers with respect to personality disorder, and acutely so for the extremes of personality disorder embraced by designations such as psychopathy or dangerous and severe personality disorder (DSPD). These designations are in themselves (...) contentious; they do not have commonly agreed definitions either across disciplines or across jurisdictions. Morse (2008), for example, argues in a fascinating account that .. (shrink)

Should offenders with psychopathy or those exhibiting extreme forms of antisocial behav- iour be considered criminally responsible? The current debate seems to have reached a stalemate. Several scholars have argued that neuropsychologi- cal data on individuals with psychopathy might be relevant for determining their criminal responsibil- ity. However, relying on such data has not produced a consensus among legal scholars and philosophers on whether individuals with psychopathy should be excused from responsibility. We offer a diagnosis about why this debate has (...) reached a standoff. We argue that part of the problem is that psychopathy, being a syndrome-based category, is too heterogeneous and thus offers low prospects for being integrated with neuropsychological data that might support significant conclusions about the criminal responsibility of individuals with psychopathy. Moreover, the construct of psychopathy was not originally devised to discriminate criminally accountable from unac- countable antisocial individuals. To overcome these difficulties and advance the debate, we extend a currently less discussed theoretical framework for bridging biopsychology and the law that focuses on neuropsychological constructs, domains, and processes that directly measure capacities of offenders that are relevant for criminal responsibility, without necessarily relying on mediating syndrome-based constructs. The novelty of our contribution is that the biopsy- chological bases of exculpation can be further devel- oped and used for determining more fine-grained cat- egorisations of antisocial personality types. We show how this framework provides guidelines for inter- disciplinary research that can significantly advance our understanding of the preconditions for criminal responsibility and help the legal practice of ascribing or withholding it. (shrink)

Since the 18th century, one of the key features of diagnosed psychopaths has been “moral colorblindness” or an inability to form moral judgments. However, attempts at experimentally verifying this moral incapacity have been largely unsuccessful. After reviewing the centrality of “moral colorblindness” to the study and diagnosis of psychopathy, I argue that the reason that researchers have been unable to verify that diagnosed psychopaths have an inability to make moral judgments is because their research is premised on the assumption that (...) there is a specific moral faculty of the brain, or specific “moral” emotions, and that this faculty or set of emotions can become “impaired”. I review recent research and argue that we have good reason to think that there is no such distinct capacity for moral judgment, and that, as a result, it is impossible for someone’s “moral judgment faculty” to become selectively disabled. I then discuss the implications of such a position on psychopathy research, the coherence of the disorder, and the moral responsibility of psychopaths. (shrink)

Many argue that psychopaths suffer from a stable pattern of neurobiological dysfunctions that should be taken into account in sentencing and treatment decisions. These arguments are compelling only if the neuroimaging data are consistent. It is possible that such consistency is created by reviewers who ignore contradictory findings. To evaluate this, we examined how accurately forensic literature reported neuroimaging findings on psychopaths in a theoretically central structure – the amygdala. We found that forensic commentators consistently under-reported null-findings, creating a misleading (...) impression of the data’s consistency. We discuss this misrepresentation from the perspectives of spin and neurohype, and examine their causes and consequences. (shrink)

There are some distinct methodological challenges, and possible pitfalls, for neuroethics when it evaluates neuroscientific results and links them to issues such as moral or legal responsibility. Some problems emerge in determining the requirements for responsibility. We will show how philosophical proposals in this area need to interact with legal doctrine and practice. Problems can occur when inferring normative implications from neuroscientific results. Other problems arise when it is not recognized that data about brain anatomy or physiology are relevant to (...) the ascription of responsibility only when they are significantly correlated with the psychological capacities contemplated by the legal formulations of responsibility. We will demonstrate this by considering two significant cases concerning psychopathy. Some paradigms that aim at measuring higher-order capacities, such as moral understanding, have limited validity. More robust paradigms for the study of learning in restricted controlled conditions, on the other hand, have limited ecological validity across individuals and context to be of any use for the law. (shrink)

Many states recognize a legal right to bodily integrity, understood as a right against significant, nonconsensual interference with one’s body. Recently, some have called for the recognition of an analogous legal right to mental integrity: a right against significant, nonconsensual interference with one’s mind. In this chapter, we describe and distinguish three different rationales for recognizing such a right. The first appeals to case-based intuitions to establish a distinctive duty not to interfere with others’ minds; the second holds that, if (...) we accept a legal right to bodily integrity, then we must, on pain of philosophical inconsistency, accept a case for an analogous right over the mind; and the third holds that recent technological developments create a need for a legal right to mental integrity. (shrink)

The harm usually associated with psychopathy requires therapeutically, legally, and ethically satisfactory solutions. Scholars from different fields have, thus, examined whether empirical evidence shows that individuals with psychopathic traits satisfy concepts, such as responsibility, mental disorder, or disability, that have specific legal or ethical implications. The present paper considers the less discussed issue of whether psychopathy is a disability. As it has been shown for the cases of the responsibility and mental disorder status of psychopathic individuals, we argue that it (...) is undecided whether psychopathy is a disability. Nonetheless, based on insights from disability studies and legislations, we propose that interventions to directly modify the propensities of individuals with psychopathic tendencies should be balanced with modifications of the social and physical environments to accommodate their peculiarities. We also suggest how this social approach in some practical contexts that involve non-offender populations might be effective in addressing some of the negative effects of psychopathy. (shrink)

Criminal liability for acts committed by AI systems has recently become a hot legal topic. This paper includes three different contributions. The first contribution is an analysis of the extent to which an AI system can satisfy the requirements for criminal liability: accomplishing an actus reus, having the corresponding mens rea, possessing the cognitive capacities needed for responsibility. The second contribution is a discussion of criminal activity accomplished by an AI entity, with reference to a recent case involving an online (...) bot, the Random Darknet Shopper. This discussion will provide the context for the analysis of commonalities and differences between criminal activities by humans and by artificial systems. The third contribution concerns the evaluation of different ways of addressing criminal activities by AI systems in a regulatory perspective. (shrink)

In this article, we will identify two issues that deserve greater attention from those researching lay people’s attitudes to moral responsibility and determinism. The first issue concerns whether people interpret the term “moral responsibility” in a retributive way and whether they are motivated to hold offenders responsible for pre-determined behaviour by considerations other than retributivism, e.g. the desires to condemn the action and to protect society. The second issue concerns whether explicitly rejecting moral responsibility and retributivism, after reading about determinism, (...) would have any impact on “implicit” retributivism when recommending a sentence for a hypothetical offender. We will report the results of an exploratory study that investigated these questions. Our preliminary findings raise the possibility that a significant proportion of participants either i) may not interpret “moral responsibility” in the basic, retributive sense of the term, which is at issue in the determinism debate, or ii) may be unconsciously motivated by non-retributive considerations to judge that the offender is morally responsible, in the basic, retributive sense. If this is confirmed by future research, a wider implication would be that theorists’ arguments against retributivism are more likely to affect public attitudes to punishment when non-retributive ways of achieving important punishment goals are emphasised. Our preliminary findings also suggested that explicit retributivism did not correlate with implicit retributivism. If this is confirmed in future research, it would imply that free will theorists who wish to affect public attitudes toward punishment should, when communicating their research to the public, give detailed consideration to the implications for sentencing. (shrink)

I defend an instrumentalist account of moral responsibility and adopt Manuel Vargas’ idea that our responsibility practices are justified by their effects. However, whereas Vargas gives an independent account of morally responsible agency, on my account, responsible agency is defined as the susceptibility to developing and maintaining moral agency through being held responsible. I show that the instrumentalism I propose can avoid some problems more crude forms of instrumentalism encounter by adopting aspects of Strawsonian accounts. I then show the implications (...) for our understanding of responsibility: my account requires us to adopt a graded notion of responsibility and accept the claim that certain individuals may not be responsible because they are not susceptible to being influenced by our moral responsibility practices. Finally, I discuss whether the account is committed to allowing the instrumentalization of non-responsible individuals in cases where blaming them may benefit others’ moral agency. (shrink)

Editorial introduction to the special issue of the European Journal of Analytic Philosophy.

Recently it has been argued that certain neuropsychological findings on the decision-making, instrumental learning, and moral understanding in psychopathic offenders offer reasons to consider them not criminally responsible, due to certain epistemic and volitional impairments. We reply to this family of arguments, that collectively we call the irresponsibility of the psychopath argument. This type of argument has a premise that describes or prescribes the deficiencies that grant or should grant partial or complete criminal exculpation. The other premise contends that neuropsychological (...) evidence shows that psychopaths have incapacitates that are sufficient to ascribe complete or partially exculpatory deficiencies. The focus of our criticism is this latter premise. We argue that it requires that psychopathy should correlate significantly with certain rational incapacities that manifest across contexts. We show that the available neuropsychological data do not support the claim that psychopaths have such general exculpatory incapacities. (shrink)

The question of whether psychopaths are criminally and morally responsible has generated significant controversy in the literature. In this paper, we discuss what relevance a psychopathy diagnosis has for criminal responsibility. It has been argued that figuring out whether psychopathy is a mental illness is of fundamental importance, because it is a precondition for psychopaths’ eligibility to be excused via the legal insanity defense. But even if psychopathy counts as a mental illness, this alone is not sufficient to show the (...) insanity defense is applicable; it must also be shown that, as a result of the illness, specific deficits in moral understanding or control are present. In this paper, we show that a diagnosis of psychopathy will generally not indicate that a defendant is eligible for an insanity defense. This is because the group of individuals subsumed under the diagnosis is so heterogeneous that while some psychopaths do show significant impairments in affect and control which may impact on their responsibility, many psychopaths are not incapacitated in a way relevant to responsibility. (shrink)

Psychopathy is a disorder characterized by severe and frequent moral violations in multiple domains of life. Numerous studies have shown psychopathy-related limbic brain abnormalities during moral processing; however, these studies only examined negatively valenced moral stimuli. Here, we aimed to replicate prior psychopathy research on negative moral judgments and to extend this work by examining psychopathy-related abnormalities in the processing of controversial moral stimuli and positive moral processing. Incarcerated adult males (N = 245) completed a functional magnetic resonance imaging protocol (...) on a mobile imaging system stationed at the prison. Psychopathy was assessed using the Hare Psychopathy Checklist–Revised (PCL-R). Participants were then shown words describing three types of moral stimuli: wrong (e.g., stealing), not wrong (e.g., charity), and controversial (e.g., euthanasia). Participants rated each stimulus as either wrong or not wrong. PCL-R total scores were correlated with not wrong behavioral responses to wrong moral stimuli, and were inversely related to hemodynamic activity in the anterior cingulate cortex in the contrast of wrong > not wrong. In the controversial > noncontroversial comparison, psychopathy was inversely associated with activity in the temporal parietal junction and dorsolateral prefrontal cortex. These results indicate that psychopathy-related abnormalities are observed during the processing of complex, negative, and positive moral stimuli. (shrink)

We argue that philosophy has an important role to play in bridging certain social practices with certain scientific advancements. Specifically, we describe such a role by focusing on the issue of how and whether neuropsychological data concerning psychopathic offenders reflect on their criminal culpability. We offer some methodological requirements for this type of philosophical application. In addition, we show how it might help in addressing the problem of determining the criminal responsibility of psychopathic offenders.

Neuroimaging showing brain abnormalities is increasingly being introduced in criminal court proceedings to argue that a defendant could not control his behavior and should not be held responsible for it. But imaging has questionable probative value because it does not directly capture brain function or a defendant’s mental states at the time of a criminal act. Advanced techniques could transform imaging from a coarse-grained measure of correlations between brain states and behavior to a fine-grained measure of causal connections between them. (...) Even if this occurs, bias and other attitudes may unduly influence jurors’ interpretation of the data. Moreover, judges’ decisions about whether neuroimaging data is legally relevant and admissible are normative decisions based on more than empirical evidence. Advanced neuroimaging will better inform assessments of criminal responsibility but will not supplant or explain away the psychological and normative foundation of the criminal law. (shrink)

What if neurofeedback or other types of neurotechnological treatment, by itself or in combination with behavioral treatment, could achieve a successful “rewiring” of the psychopath’s brain? Imagine that such treatments exist and that they provide a better long-term risk-minimizing strategy compared to imprisonment. Would it be ethical to offer such treatments as a condition of probation, parole, or prison release? In this paper, I argue that it can be ethical to offer effective, non-invasive neurotechnological treatments to offenders as a condition (...) of probation, parole, or prison release provided that: the status quo is in no way cruel, inhuman, degrading, or in some other way wrong, the treatment option is in no way cruel, inhuman, degrading, or in some other way wrong, the treatment is in the best interests of the offender, and the offender gives his/her informed consent. (shrink)

Psychopathy is a disorder involving personality and behavioral features associated with a high rate of violent aggression and recidivism. This paper explores potential psychopharmacological therapies to modulate dysfunctional neural pathways in psychopaths and reduce the incidence of their harmful behavior, as well as the ethical and legal implications of offering these therapies as an alternative to incarceration. It also considers whether forced psychopharmacological intervention in adults and children with psychopathic traits manifesting in violent behavior can be justified. More generally, the (...) paper addresses the question of how to weigh the psychopath’s presumptive right to non-interference in his brain and mind against the public interest in avoiding harm. (shrink)

Theoretical arguments that psychopathy eliminates individual responsibility for illegal behavior and can therefore serve as a basis for an insanity defense are largely premised on emotional characteristics of psychopathy that impede the individual’s capacity to appreciate right from wrong. We offer arguments and countervailing evidence indicating psychopaths do have the capacity to appreciate right from wrong and therefore should not be absolved of criminal responsibility.

Psychopathy presents a difficult challenge to moral and criminal responsibility theorists. Persons with the disorder have an impaired capacity for empathy and other moral emotions, and fail to feel the force of moral considerations. They have some rational impairments, but they reason adequately to manipulate, con, and exploit their victims, and otherwise to engage successfully in antisocial behavior. Is it appropriate to hold them morally responsible for their wrongdoing? Should the law hold psychopaths criminally responsible? This essay discusses philosophical debates (...) involved in addressing these questions. (shrink)