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40 2 The Unlucky Psychopath as Death Penalty Prototype Robert Weisberg Much commentary on the death penalty sets out to identify the type of character that American criminal law deems worthy of the death penalty, the set of moral or psychological traits that define the person who, for some deontological reasons, deserves death or whom, for various practical reasons, we need to execute. Some of that commentary is descriptive observation about the sorts of evidence prosecutors deploy and the narrative and imagery in which they frame it, thereby inducing jurors to fit the defendant into what the prosecutor thinks will be their conception of the deathworthy character.1 Some of this commentary is empirical jury survey research that extrapolates from actual jurors’ behavior or memories their conceptions of the qualities of defendants they find influential in the sentencing decision.2 Any effort to extract from this research some common denominator of the traits of the deathworthy figure is at best impressionistic. With that caveat, I suggest that the modal character who plays this core role in this effort is the character often referred to as a psychopath or sociopath. These terms refer to people who are perfectly sane, perfectly oriented in time and space, perfectly perceptive about causes and effects, and perfectly cognitively able to comprehend and assess the wrongfulness and illegality of their conduct, but simply uncaring in the extreme, and unaffected by the suffering they inflict. That is often the figure presented by prosecutors to jurors, an alien creature, one who exhibits what Samuel Taylor Coleridge famously called the “motive-hunting of a motiveless malignancy ” of William Shakespeare’s Iago.3 It is a figure that so challenges our psychological frameworks as to be a kind of sociobiological mutant. With just two notable exceptions—important work by Susan Schmeiser4 and Paul Litton5 —the psychopathic character has received little attention in recent legal commentary. We condemn such persons because we can- the unlucky Psychopath as Death Penalty Prototype 41 not understand them, and “judgment” gets redefined as a response of uncomprehending disbelief. We are used to scientific explanations of human choice that destabilize notions of free will at the heart of morals and law, but the psychopath presents a different problem. Figures who lack free will seem less than human if they are the product of forces outside them in some mechanical way. The psychopath is in some ways a more recognizably human figure because he or she shares all the cognitive and volitional powers of the normal human and yet lacks a subtler quality associated with being human in a more affective way. So in a more discomfiting sense, it is a person who seems to lack a normal human self. I suggest that our vexation over this figure helps us understand the frustration many have with death penalty law, where the most drastic legal and moral judgment has been so awkwardly captured by the complex verbal formulas of the statutes and where all the verbiage converges into the crude question of whether aggravators outweigh mitigators. My approach is to first address how the legal equivalent of psychopathy —the state of mind of reckless indifferent to human life—has emerged at the center of the legal doctrine. I then link that legal concept to its equivalent in psychology and address how the psychological vocabulary has therefore insinuated itself into death penalty litigation. I close by examining how, at the same time, modern moral philosophy is acting out a parallel inquiry. On the psychological side, the indifference standard isolates the antisocial personality or antisocial personality disorder that not only describes our iconic killer but is also a rough name for the syndrome that prosecutors rely on to condemn these killers. Ironically, as I note in more detail below, this mental disorder may be the singular example in criminal law where medical language is proffered to define an offense, not a defense. Indeed, this notion helps us see the scientifically unstable role that the concept of the personality disorder plays in modern psychology and the unstable relationships among the various personality disorder types. On the moral side, however, the recklessly indifferent killer is an exemplum for a much-discussed problem in philosophy: that of “moral luck” and its component “constitutive moral luck.” The latter term refers to the dilemma over to what degree a person is morally responsible for the arguably inherent limitations of his or her capacity for moral empathy, limitations that arguably “cause” the immoral actions or the...

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