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Psychopathic Criminals: Punishment or Therapy?

What makes formulation and understanding of the law and the judicial system so challenging is that it demands knowledge and application of a wide array of disciplines. Understanding why a person commits a crime is one of the most important aspects of the investigative, governmental, and judicial fields.

It is vital to discern that punishing all types of offenders the same way is not an efficient way to control crime. Each criminal has a different reason for perpetrating a crime. Crime control can be achieved only when the concepts of behavioural science and criminology are used as guidelines for devising penal laws for criminals.

Psychopathy remains one of the most abstruse mental disorders to understand. There are multifarious mistaken beliefs about this disease, which affect the legal proceedings against those who suffer from the disorder. This study aims to shed light on who psychopaths are, whether they should be given punishment or therapy and how a couple of western countries deal with them. The goal is also to give suggestions that would kindle sentience regarding psychopathy.

Introduction to Psychopathy

Psychopathy, known as Antisocial Personality Disorder (ASPD) in the APA guidebook is a disorder that is linked to the dysfunction of the orbitofrontal cortex of the brain and causes a person to be unable to experience deep emotions or regret and lack morals and conscience. Being selfish, manipulative, and self-centred are also some traits that such people have.[1] This mental disorder affects 1-3% of the total world population, howbeit, they make up around 20-30% of people in prisons.[2]

One of the prominent misconceptions regarding psychopaths is that they commit extreme and violent crimes such as serial killing to experience excitement and thrill without feeling any guilt or remorse. However, most of them are not berserk criminals. Generally, psychopaths are impulsive, do not keep up to their social or professional commitments, tend to borrow money or items and not return them and commit petty thefts.[3]

Criminal Responsibility of Psychopaths

In order to convict a person, it is important to acknowledge:
  1. If the wrongful act was carried out by the accused (known as Actus Reas)
  2. If the accused was in a guilty state of mind, that is, perpetrated the wrongful act intentionally (known as Mens Rea)
The Indian judicial system follows the maxim “actus non facit reum nisi men sit rea”, which means that an act does not make a person guilty unless the said act is performed with a guilty mind.[4]

It is to be noted that in the case of psychopaths mens rea is absent as they are not capable of having it. Their actions are not a result of a guilty mind but their mental disorder.

Punishment v. Therapy

Offenders are punished by law to induce fear in their minds and prevent them from committing a similar act in the future. However, a case study conducted by Lancet Psychiatry in 2015 found that psychopaths process punishments and even rewards differently than the rest of the population.[5] Sheilagh Hodgins, one of the authors of the study, observed that psychopaths are not only different on the basis of brain function, but brain structure as well. Even when asked to do simple tasks, dramatic contrasts were observed in the MRI results.

The study determined that psychopaths are over-optimists. They believe that their actions will always be rewarded and do not think about punishment, which hinders them from determining if their behaviour is inappropriate. Another author of the study, Nigel Blackwood stated in a press release that the psychopaths failed to learn from the punishments given to change their behaviour when they completed neuropsychological tasks and made poorer decisions although the periods of deliberation were longer.[6]

As per the legal procedure, an accused party is subjected to clinical tests and psychiatric tests in cases where the party appears to lack mens rea. However, the issue with psychopaths is that they seem mentally fit for trials. Furthermore, they tend to accept their crime without overtly showing any remorse and are hence a great many times considered to be heinous criminals with no feeling of contrition by the court. Therefore, observation of such behaviour in an accused should be immediately acknowledged and be subjected to psychological and medical assessments to confirm the mental condition of the offender.

The emphasis on the treatment of psychopathic criminals was made by Robert D. Hare and his associates in 1999. They devised a set of diagnostic ideas after being influenced by Hervey Cleckleys observations. The list of behaviours and personality traits was named Psychopathy Checklist (PCL). Robert Hares study suggested that some behaviour can change with age and intervention by someone may redirect a psychopaths behaviour.[7]

Therapeutic Approach in Other Countries

Countries such as the United States of America and the United Kingdom have already framed laws that not only identify psychopaths but also prescribe measures to deal with them appropriately.

The laws of England and Wales align themselves in conformity with the fact that the behaviour of psychopaths stems from their mental abnormality.[8] Thus, it was deemed beneficial to expose them to therapy and rehabilitation centres rather than punishing them.

Therapeutic Communities such as the Henderson Hospital were established after the second world war to treat people with personality disorders. There are special prisons such as Her Majesty Prison in Grendon Underwood and high-security hospitals like Broadmoor, Rampton and Ashworth that deal with those who suffer from severe psychological issues and pose a high threat to society, also known as Dangerous and Severe Personality Disorder (DSPD) individuals.[9]

A number of states in the United States have enacted laws to specifically manage psychopaths. The state legislature of Washington introduced the terms Psychopathic Personality and Sexual Psychopath. The Sentencing Reform Act of 1984, part of the Comprehensive Crime Control Act, 1984 was passed by both houses of Congress which established the United States Sentencing Commission to articulate sentencing guidelines for the federal courts.[10]

The state of California enacted the Psychopathic Offender Law in 1939. In the same year, Minnesota enacted the Psychopathic Personality Law which indefinitely commits dangerous offenders to the Department of Human Service for treatment in highly secure facilities.[11]

In 1995, California along with various other states passed special statutes related to Psychopaths.[12] These allow the states to retain custody of the psychopathic offenders until their mental illness is treated. This allows the authorities to confine them sine die and often, for their whole life.

Psychopathy is a complex mental disorder caused due to dysfunction of parts of the brain which causes them to have different brain structures and functions from the general population. Not all psychopaths commit heinous crimes such as serial murder, but sometimes they can commit dangerous crimes though there is no mens rea behind their actions. The lack of conscience and remorse stems from their mental illness which causes a lack of understanding of reward and punishment.

The Indian judicial system believes that a guilty act is not enough to convict a person if there is a lack of guilty mind.

Although the courts order psychological assessments in cases where the absence of mens rea is suspected, psychopaths often admit to their crimes and do not express guilt either overtly or covertly which leads to them being convicted as normal criminals. In such cases, the disease should be identified and treated accordingly.

A therapeutic approach should be opted for instead of punishment because psychopaths are themselves victims of their minds. Countries like the USA and the UK already follow this approach.

The main issue is the unawareness and misconceptions that surround the topic of Psychopathy and psychological disorders in general. Therefore, it is necessary to educate people especially those involved in the enforcement and interpretation of the law to sensitize them towards this worriment from the beginning.

Training programs should be launched for the police and subjects related to how mental illness can cause deviance in people should be included in the syllabus of law and related fields. Visits to mental asylums, interviews with psychiatrists and mentally ill offenders should be made part of the higher education system. Launching short-term or online certificate courses in institutes such as IGNOU and SOL-DU can also aid the process of raising awareness on this issue and possibly undo the demonisation of this mental disorder gradually.

End Notes:
  1. Dr.Scott A. Bonn, Understanding Psychopathic Criminals, Psychology Today (Mar. 4, 2021, 4:32 PM),
  2. Dr George Simon, More Evidence of Abnormal Brain Functioning in Psychopaths, Counselling Resource (Mar. 15, 2021, 11:48 PM),
  3. Saundra K. Ciccarelli & Glenn E. Meyer, Psychology: South Asian Edition 594-95 (Twentieth Impression)
  4. Sumit Ghai, Justice to Psychopath: Punishment or Therapy?, Lawunison (Mar. 18, 2021, 1:13 AM),
  5. Dr. Sarah Gregory et al., Punishment and psychopathy: a case-control functional MRI investigation of reinforcement learning in violent antisocial personality disordered men, LAN. PSY., Feb 2015, at 133, 134
  6. Kate Kelland, Study Finds Psychopaths Have Distinct Brain Structure, REUTERS, May 8, 2012
  7. Priya Sepaha, Psychopaths: An Unrevealed Area in Indian Judicial System, Manupatra (Mar. 19, 2021, 12:54 PM),
  8. James Higgins, Crime and Mental Disorder: II: Forensic Aspects of the Psychiatric Disorder, Seminars In Practical Forensic Psychology (1995)
  9. David Hosier, Dangerous and Severe Personality Disorder, Childhood Trauma Recovery (Mar. 19, 2021, 10:23 PM),
  10. Kate Stith & Steve Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, Yale Law School (Mar. 20, 2021, 3:21 AM),
  11. Priya Sepaha, Justice for Psychopaths: Punishment or Therapy, ACADEMIA (Mar. 20, 2021, 9:32 AM),
  12. Archita Choudhary, Justice for the Criminal Psychopaths: Punishment or Treatment?, 4 J.C.I.L. 271, 278 (2018)

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