Today we hear from Guest Bloggers Professor Michael Perlin and Alison Lynch.

The two of us recently finished writing a law review article that explores a group of topics rarely covered by either legal or criminological research: the racial implications and neuroscientific questions surrounding the differences between sociopathy and psychopathy, and how those differences can impact sentencing and treatment outcomes.

We’ve done this blog post to share some of our thoughts with all those in the TJ community.

Basically, we note that criminology research has devoted significant attention to individuals diagnosed with either antisocial personality disorder (ASPD) or psychopathy. Additionally, a great deal of research has recently been published establishing the differences between those two diagnoses, and how that can affect offending patterns and treatment outcomes.

This article first examines those differences in the legal context, and looks specifically at how the use (and conflation) of these terms has had a disproportionately negative impact on persons of color. The article then examines these differences in the context of emerging neuroscientific evidence establishing these diagnoses as separate, and finally, brings this discussion into the context of therapeutic jurisprudence (TJ).

Below are the main points:

The article by Michael Perlin and Alison Lynch entitled, “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, will be published in an upcoming symposium on criminal justice and racial bias in volume 25 of the LEWIS & CLARK LAW REVIEW (spring 2021).

The article can be found in its entirety for free and easy download on SSRN

1. The controversy of the “psychopathy” diagnosis

While antisocial personality disorder has been a part of the various iterations of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) for decades, the term “psychopathy” does not appear anywhere in it. The terms have been conflated for many years, without much research into key differences that have emerged in these two diagnostic groups. While there is a baseline similarity between groups in terms of some shared traits – including propensity for violence, a remorseless mind, indifference to others’ rights and not caring about ethical behavior or laws – there are also critical differences that can impact treatment outcomes. These terms, as Professors Kathleen Wayland & Sean D. O’Brien noted over seven years ago, cannot be used interchangeably (see their article, Deconstructing Antisocial Personality Disorder and Psychopathy: A Guidelines-Based Approach to Prejudicial Psychiatric Labels, 42 HOFSTRA L. REV. 519, 547 (2013)) .

While the two terms may share certain neurological similarities, and research into the intricate nature vs nurture debate surrounding these behavior patterns is picking up speed, there are a few more readily-agreed-upon distinctions that are being used clinically to differentiate the groups. For example, while the psychopath doesn’t experience feelings of remorse for behaviors that so clearly violate the rights of others, a person with ASPD may be capable of feeling guilt or regret after his actions. (However, he will continue to violate social norms without hesitation if it seems to serve his purposes). Additional features of psychopathy that are not present in “classic” ASPD include a strong need for stimulation, cunning and manipulativeness, and a “parasitic lifestyle.” Tedium and routine are unendurable for a person with psychopathy, leading to impulsive, self-centered, aggressive and opportunistic behavior. They are incapable of forming emotional bonds, but are skilled at pretending such bonds exist.

2. Issue of race inherent in this discussion

The clinical determination of psychopathy, as well as many of the diagnoses contained in the DSM, has a racist history that must be contextualized in order to appropriately use these diagnostic criteria in today’s world.

Psychopathy, along with ASPD, is a frequently-cited reason for prosecutors to seek the death penalty. While the decisions surrounding death-eligibility can, and are, written about in great detail as they apply to race, it is important to note that these decisions have also had a great impact on defendants of color. Racial bias in all aspects of the criminal process have been researched and debated. However, more recently, the use of statistical algorithms has come under scrutiny for their role in perpetuating bias. These instruments have been found to aid in overestimating psychopathology in cases with black defendants, and their ability to make unbiased determinations has not been well-researched despite these concerns. In particular, certain items on the Psychopathy Checklist Revised (PCL-R) appear to be particularly subject to bias and serve as the basis for differences in performances between racial groups on this measure.

Criminal sentencing, which often looks to these diagnostic criteria for guidance, also has a deeply racist history that continues to impact communities of color today. The federal sentencing guidelines, meant to eliminate disparities in sentencing, have continued to be applied disproportionately against people of color. One particular aspect of the guidelines, relevant for the purposes of this article, is an allowance for a downward departure when the defendant committed a “non-violent offense while suffering from significantly reduced mental capacity.” Further changes and amendments to the guidelines made it significantly more difficult for judges to consider downward departures in light of significant mental illness, including a clinical finding of psychopathy. Remarkably, only one case (United States v. Fell, 531 F. 3d 197 (2d Cir. 2008), post-conviction relief granted on other grounds, 2014 WL 3697810 (D. Vt. 2014)) discussed the categorization, and that case was based primarily on the PCL-R, the Violent Risk Appraisal Guide (VRAG) and the Historical/Clinical/Risk Management (HCR-20). Beyond the statistical instruments, it is clear that judges and jurors are more likely to perceive a black defendant as having antisocial or psychopathic traits. These kinds of labels affect both the individual and the wider community as they continue to perpetuate bias against persons of color, and stigmatize mental illness.

3. Neuroscience considerations for diagnosis, racial justice, treatment and outcome

Research into the neurological correlates of psychopathy has focused on several areas, including the hippocampus, corpus callous, amygdala and the anterior cingulate cortex (ACC). Structural differences in those areas, as well as findings of reduced gray matter in the frontal lobes and increased striatal volume, all contribute to current research into why the brains of individuals with psychopathy are different from non-psychopaths, and from people with ASPD. Many of the abnormalities noted, interestingly, are associated with interruptions to development in early stages of life. This connects nicely with another area of increased research: the “nurture” component in the nature vs nurture debate. Childhood abuse and trauma are often cited as key indicators of antisocial behavior development, but research is ongoing as to why some individuals develop psychopathic behavior patterns rather than sociopathic behavior patterns. This interconnection of biological and environmental will likely be strengthened as research in this area continues to develop.

4. Therapeutic jurisprudence

Linking these issues together in this article is the concept of therapeutic jurisprudence. Readers of this blog are likely familiar with the general concepts of TJ – the effects of the law, used as a therapeutic agent, on individuals in the civil and criminal justice system. One important concept developed throughout the years of TJ research and scholarship is the idea that the use of mental health information to improve therapeutic functioning cannot impinge upon justice concerns. TJ concerns about the use of statistical instruments and unreliable testing are myriad. Not only are the racial implications problematic, but as a framework, TJ itself requires individualism, and demands that defendants are not simply grouped by label. Instruments like the PCL are, by this measure, inherently anti therapeutic.

TJ-based principles of individualism would have an impact on many areas in which people with diagnoses of psychopathy and ASPD reside, ranging from the screening processes used to make the diagnosis to the treatment received post-sentencing, and the possibility of reducing automatic discipline provisions for mentally ill prisoners who may be more likely to react with aggression when confronted with trauma or conflict. Rather than a reliance on inherently biased diagnostic criteria, TJ offers a way to take what is now known about the impacts of nature, nurture, and a historically racist and unequal system and allow for a renewed focus on treatment, rehabilitation, and understanding of these conditions.

We conclude the article by writing about our hope to raise awareness of these complex, nuanced and often-intertwined issues. Recognizing the significance of implicit racial bias in all aspects of inquiries into the criminal justice system must be ongoing work that criminologists, lawyers, judges, and researchers agree to undertake in order to work towards equality for all marginalized groups.

3 thoughts on “Psychopathy, Punishment, Racial Bias and Therapeutic Jurisprudence

  1. Ginger, Thank *you*! Alison Lynch and I will be presenting a short-form version of this at a symposium run by Lewis and Clark law School on Sat, April 17. If you’re interested, I can send u a link when that is available. The whole symposium is on racial injustice in the criminal justice system and may be of great interest way beyond what we will be saying.

    Best and thanks, Michael


  2. And here is the registration info for tomorrow’s talk:

    On April 17, Michael Perlin and Alison Lynch will speak at the Lewis & Clark Law School annual symposium, this year on “Justice, Race and Reform: Examining Proposals for Responsive Change.” They will present on the topic “Psychopathy, Punishment and Racial Bias.” The full title of their related paper is “‘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.”

    Go here to register:!view/event/event_id/327820!


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