Some Notes on Preventive Detention and Psychopathy

Abstract

Assuming that the term “psychopath” refers only to those violent offenders who are incapable of responding to moral concerns, how to treat the psychopath is a wonderful test for any theory of responsibility, punishment, and preventive detention. In this paper I distinguish two (somewhat overlapping) approaches to the problem, the responsibility approach and the rights approach. According to the first, the psychopath should be punished for his behavior and not preventively detained if, and only if, he is responsible for what he does. The larger question of punishment versus preventive detention then depends upon the answer to the question, whether the someone who cannot respond to moral concerns is responsible for what he does. I find this approach in the work of Morse and Litton. According to the second theory, we have a right to be punished if, but only if, we respect the rights of others. I find this approach in the work of Murphy and Slobogin. This approach takes no notice of the question whether the offender is capable of respecting rights of others. I argue that the “responsibility” approach is the correct approach, but I also argue for a conclusion different from that of Morse and Litton, namely that the psychopath should in fact be “punished” and not detained. (I put the words “responsibility” and “punished” in scare-quotes to indicate that my position as an incompatibilist requires me to reject both punishment and responsibility as they are currently understood. As I argue in the paper, distinguishing between control over actions and the ability to originate actions requires us to distinguish cases in which preventive detention is appropriate – that is, cases in which the actor is not in control of his behavior – from cases involving actors in control of their behavior. These are cases for which some functional equivalent of the currently unjustified practice of punishment must be found, an equivalent that respects the offender’s ability to control his behavior and that does not result in indefinite confinement.)

Keywords: Psychopathy, preventive detention, criminal responsibility