I just finished reading a very interesting article titled “Dangerous Psychopaths” written by Ken Levy, an Associate Professor at the LSU Law Center, in which he argues that although psychopaths may not be morally responsible for their actions, they should be held criminally responsible, and even subject to preventive detention under certain circumstances (preventive detention is essentially civil commitment based on a person’s dangerousness to themselves or others because of some mental illness).
This is a thoroughly researched article (read: “long, but well worth the time”) that nicely explains current thinking on psychopathy before addressing a variety of theories as to why diagnosed psychopaths may not be morally answerable for their crimes (for example, they can’t understand, and therefore be guided by, moral reasons). Levy essentially accepts that proposition (that psychopaths are not morally responsible for their crimes), but breaks with those who also adopt this same position and reason that psychopaths should, therefore, not be criminally punished. In Levy’s view, criminal responsibility does not flow from moral responsibility. To him, they are separate (although often overlapping) issues.
I find his reasoning about criminal responsibility to be compelling (although I’m not as sure about his view on preventive detention), but I am predisposed to that feeling. The longer I’m involved in the “criminal justice system” the more I come to believe it is not about “justice” at all; it’s simply about rules and whether those rules were knowingly violated (and, yes, that definition depends legal nuances like what is meant by “knowing”, but it’s still a ways from notions of goodness and principle). Criminal cases may raise questions of “justice” and “morality”, but these are neither central nor dispositive in the way our legal system operates. In fact, I sometime think that the U.S. Department of Justice, where I used to work, should be called the U.S. Department of Order.