1. Princeton University Law Journal, Volume III, Issue 2, Spring 1999
PSYCHOPATHY, THE LAW AND INDIVIDUAL RIGHTS
Anselm Eldergill
The Home Office and the Department of Health are at present What then is the evidence which suggests that people said to
considering the introduction of new legislation aimed at be psychopaths have a disease or disorder which requires
protecting the public from individuals with severely disturbed medical attention? Personality is what makes one individual
personalities. Previous schemes of preventive detention have different from another; the whole system of relatively
ended in failure, and the dilemma facing the present permanent abilities and tendencies distinctive of a given
Government is how to identify and contain the dangerous individual's brain. Although limited development of the
without endangering civil liberties. human personality may be caused by an innate structural
defect, such as mental retardation, this is rare. No one has
The question, "what should the law do about this state of demonstrated any injury or disease which accounts for the
affairs?" is simply another way of asking, "what should we characteristics of those with highly dissocial personalities (or
do through our Parliament?" Logically, the first issue to be those of their counterparts: empathic, law-abiding citizens).
addressed is whether those people presently categorised as Although this is also the case with schizophrenia, there are
psychopaths are mentally disordered: if not, they have no important differences. Schizophrenia is a process which
place in a hospital and there can be no justification for without intervention develops and interferes with the body in
detaining them there. Related to this is the question of certain characteristic ways. It results in a marked
whether they are suitable for, or deserving of, punishment. deterioration in the individual's level of mental functioning,
Should their mental states entitle them to more or less lenient and this implies significant, corresponding, structural or
treatment than that ordinarily meted out for the offences they physiological changes.
commit?
There has never been any agreement about whether persons If the brains of people classed as psychopaths are not
described as psychopaths should be dealt with under mental diseased are they, therefore, normal? That depends upon how
health legislation. It has variously been argued that persons one defines what is normal. The mental state and behaviour
with disturbed personalities who commit violent or anti- of an individual said to have a personality disorder is
social acts are nothing more or less than what used to be abnormal, in the sense that it deviates from the social norm,
called evil people; that there is no such thing as wicked but normal in relation to his own individual norm: that is, it is
people, only people who are mentally sick; and that such consistent with what is known about his development and
persons would be mad if not bad, crime being an outlet into functioning over time. Here then, the individual is only
which their unsound tendencies are discharged. abnormal by reference to a social norm and such a deviation
cannot be said to constitute a disease, because mere social
These different opinions are associated with different ideas deviation is not evidence of biological disorder. This requires
about responsibility and free will, and the extent to which evidence of injury or deviation from the individual norm. If
some people's personalities do not enable them to refrain there is no evidence of either then one is simply confusing
from anti-social conduct. For those who are concerned that individuality with ill-health: treating as biologically abnormal
the law concerning human liberty should be governed by an undiseased, uninjured, creature living its natural life, so
some moral framework, and not merely be arbitrary and self- that medicines are pesticides.
serving, such concerns merit careful consideration. How then
can one respond to them? It can be said that our conscious The motivation for this social control is transparent. People
thinking and deciding are embodied in the workings of our want to live in a cultivated society, and they cultivate society
brains, and consequently our behaviour is determined by our in much the same way that they cultivate nature in their
thinking and choosing. That, while determinism provides an gardens. This involves eradicating disease in the garden, but
explanation for our choices and actions, it is humans beings, also weeding it and controlling pests, that is containing or
not deterministic rules, that cause events. That the fact that an destroying organisms which are doing nothing more than
individual's personality, as determined by his genes and expressing their natures. There is nothing unique in this, for
previous experiences, dictates the choice he makes does not the same power is claimed over animals and unborn life, and
mean that he has not chosen between alternatives. And whilst most other things that interfere with personal survival or
not everyone has the same capacity to eschew the wrong, fulfilment. But it is why CS Lewis wrote that, 'To be cured
this does not preclude us from judging their actions, because against one's will and cured of states which we may not
whether an action is harmful is not affected by its regard as disease is to be put on a level with those who have
antecedents. In short, our conscious decisions and actions are not yet reached the age of reason or those who never will; to
matters of personal choice: each chooses what suits his be classed with infants, imbeciles and domestic animals. But
personality, not that of others, and must be accountable to to be punished ... because we have deserved it ... is to be
others for that choice. The counterpart of freedom and treated as a human person made in God's image.'
autonomy is accountability for acts freely and autonomously
done.
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2. Whether or not one accepts this, the legal presumption in protected from serious harm; and a jury is satisfied beyond all
favour of liberty means that it is for psychiatrists to establish reasonable doubt that he will commit further serious violence
that a certain manner of thinking or behaving is a form of unless further detained. Those who observe society's laws
mental disorder which is sufficiently severe to justify giving may reasonably expect to be protected from such people, as
them powers of compulsory detention and treatment. This indeed they generally are at present. If the lesser of two evils
cannot be demonstrated. The evidence suggests that present is always to be chosen, this seems to be the lesser of them,
medical interventions have, like liberal prison regimes, the and a reasonable balance of the different legitimate interests.
reformation of the individual as their aim. This is
unacceptable because the proper function of medical science What cannot be justified as a lesser evil is any system which
and practice is to treat individual suffering attributable to permits the preventive detention of non-offenders whose
disease or injury, not to alleviate the suffering of society; and, dangerousness has not been demonstrated. It would be unjust
in the field of mental health, to treat those diseases or injuries to detain them for crimes they have not committed and are
which interfere with the development or expression of an actuarially unlikely to commit. It would be immoral, because
individual's personality, not to reform his personality by the old maxim that 'you shall not do evil that good may come'
reference to some social, or political, norm. is applicable in law as well as in morals. It would be inutile,
because any impact on the rates at which serious offences are
If medical intervention is inappropriate, how tolerant should committed is likely to be marginal. There is little gain in
society be of violence, and of individuals who seem to have a detaining a handful of notionally dangerous civilians each
pronounced, natural, inclination towards violent acts? The year when guilt in criminal proceedings must be proved
view presented here has been that those persons presently beyond all reasonable doubt, because every year we release
dealt with as psychopaths are not mentally disordered, and without penalty thousands of rapists and other violent
that they should be excluded from mental health legislation. offenders. Lastly, it would be unwise. For, when the public
Believing that, there is no contradiction or inhumanity in perceives that they are no safer despite such a reform, rather
holding that they should be imprisoned or detained if their than realise and learn from their folly, they will demand that
offence and forensic history merits that. However, if this basic freedoms be further curtailed and the penalties made
argument is ever accepted by Parliament, it will be necessary more severe. Such demands misunderstand the functions of
to confer on courts alternative powers to deal with violent or the law and its natural limits. It is not within the power of the
sexual offenders, and in particular that group of persons for law, given the venality of the times, to cleanse the Augean
whom hospitalization will no longer be an option. stable. As Montesquieu observed, in 'moderate governments,
the love of one's country, shame, and the fear of blame are
Paradoxically, the problem may best be dealt with in a restraining motives, capable of preventing a multitude of
manner similar to that already used in the criminal courts to crimes. Here, the greatest punishment of a bad action is
try issues of insanity and unfitness to plead. The procedure conviction ... In those states a good legislator is ... more
would be as follows. If an offender who is not mentally ill or attentive to inspire good morals than to inflict penalties.' Only
impaired is convicted before the Crown Court of a sexual or those who know the cost but not the value of our freedoms
violent offence and, in order to protect the public from would embark upon such a journey. Nothing which has great
serious harm, he is imprisoned for a term which exceeds that value is without cost, and the value of anything is what one is
commensurate with the offence, the court may empanel a jury prepared to sacrifice for it. The value attached to trial by
to determine the following issue: whether they are satisfied one's peers is the financial cost of the jury system; the value
beyond all reasonable doubt that the defendant is a person of justice is demonstrated by a willingness to see the guilty
who, if released at the end of the sentence, will commit an go free rather than risk convicting the innocent; and the value
offence involving sexual assault or the infliction of grievous of liberty is demonstrated by stoically bearing the many evils
bodily harm. If the jury are satisfied, the court shall also which liberty permits. If the defence of these freedoms was
make a secure accommodation order, directing that he be worth the sacrifice of millions during two wars then, unless
detained in civilian accommodation after his sentence society has become wholly degraded, it must withstand the
expires, until the Home Secretary or the Lifer's Panel is death of a few during peacetime. Such a scheme has no utility
satisfied that the safety of others no longer requires this. which can justify its innate immorality and the infliction of
such great injustice; and it would be highly imprudent to
Under such a scheme, therefore, a person will only be liable interfere with public liberties in the name of public safety
to indefinite detention if it is established beyond all when the necessity of such a scheme has not been firmly
reasonable doubt that he has committed a violent or sexual established.
offence; a judge is satisfied that the public need to be
ABSTRACT
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