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 considering the introduction of new legislation aimed at protecting the public from individuals with severely disturbed personalities. Previous schemes of preventive detention have ended in failure, and the dilemma facing the present Government is how to identify and contain the dangerous without endangering civil liberties.

The question, "what should the law do about this state of affairs?" is simply another way of asking, "what should we do through our Parliament?" Logically, the first issue to be addressed is whether those people presently categorised as psychopaths are mentally disordered: if not, they have no place in a hospital and there can be no justification for detaining them there. Related to this is the question of whether they are suitable for, or deserving of, punishment. Should their mental states entitle them to more or less lenient treatment than that ordinarily meted out for the offences they commit?

There has never been any agreement about whether persons described as psychopaths should be dealt with under mental health legislation. It has variously been argued that persons with disturbed personalities who commit violent or anti-social acts are nothing more or less than what used to be called evil people; that there is no such thing as wicked people, only people who are mentally sick; and that such persons would be mad if not bad, crime being an outlet into which their unsound tendencies are discharged.

These different opinions are associated with different ideas about responsibility and free will, and the extent to which some people's personalities do not enable them to refrain from anti-social conduct. For those who are concerned that the law concerning human liberty should be governed by some moral framework, and not merely be arbitrary and self-serving, such concerns merit careful consideration. How then can one respond to them? It can be said that our conscious thinking and deciding are embodied in the workings of our brains, and consequently our behaviour is determined by our thinking and choosing. That, while determinism provides an explanation for our choices and actions, it is humans beings, not deterministic rules, that cause events. That the fact that an individual's personality, as determined by his genes and previous experiences, dictates the choice he makes does not mean that he has not chosen between alternatives. And whilst not everyone has the same capacity to eschew the wrong, this does not preclude us from judging their actions, because whether an action is harmful is not affected by its antecedents. In short, our conscious decisions and actions are matters of personal choice: each chooses what suits his personality, not that of others, and must be accountable to others for that choice. The counterpart of freedom and autonomy is accountability for acts freely and autonomously done.

What then is the evidence which suggests that people said to be psychopaths have a disease or disorder which requires medical attention? Personality is what makes one individual different from another; the whole system of relatively permanent abilities and tendencies distinctive of a given individual's brain. Although limited development of the human personality may be caused by an innate structural defect, such as mental retardation, this is rare. No one has demonstrated any injury or disease which accounts for the characteristics of those with highly dissocial personalities (or those of their counterparts: empathic, law-abiding citizens). Although this is also the case with schizophrenia, there are important differences. Schizophrenia is a process which without intervention develops and interferes with the body in certain characteristic ways. It results in a marked deterioration in the individual's level of mental functioning, and this implies significant, corresponding, structural or physiological changes.

If the brains of people classed as psychopaths are not diseased are they, therefore, normal? That depends upon how one defines what is normal. The mental state and behaviour of an individual said to have a personality disorder is abnormal, in the sense that it deviates from the social norm, but normal in relation to his own individual norm: that is, it is consistent with what is known about his development and functioning over time. Here then, the individual is only abnormal by reference to a social norm and such a deviation cannot be said to constitute a disease, because mere social deviation is not evidence of biological disorder. This requires evidence of injury or deviation from the individual norm. If there is no evidence of either then one is simply confusing individuality with ill-health: treating as biologically abnormal an undiseased, uninjured, creature living its natural life, so that medicines are pesticides.

The motivation for this social control is transparent. People want to live in a cultivated society, and they cultivate society in much the same way that they cultivate nature in their gardens. This involves eradicating disease in the garden, but also weeding it and controlling pests, that is containing or destroying organisms which are doing nothing more than expressing their natures. There is nothing unique in this, for the same power is claimed over animals and unborn life, and most other things that interfere with personal survival or fulfilment. But it is why CS Lewis wrote that, 'To be cured against one's will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles and domestic animals. But to be punished ... because we have deserved it ... is to be treated as a human person made in God's image.'

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Whether or not one accepts this, the legal presumption in favour of liberty means that it is for psychiatrists to establish that a certain manner of thinking or behaving is a form of mental disorder which is sufficiently severe to justify giving them powers of compulsory detention and treatment. This cannot be demonstrated. The evidence suggests that present medical interventions have, like liberal prison regimes, the reformation of the individual as their aim. This is unacceptable because the proper function of medical science and practice is to treat individual suffering attributable to disease or injury, not to alleviate the suffering of society; and, in the field of mental health, to treat those diseases or injuries which interfere with the development or expression of an individual's personality, not to reform his personality by reference to some social, or political, norm.

If medical intervention is inappropriate, how tolerant should society be of violence, and of individuals who seem to have a pronounced, natural, inclination towards violent acts? The view presented here has been that those persons presently dealt with as psychopaths are not mentally disordered, and that they should be excluded from mental health legislation. Believing that, there is no contradiction or inhumanity in holding that they should be imprisoned or detained if their offence and forensic history merits that. However, if this argument is ever accepted by Parliament, it will be necessary to confer on courts alternative powers to deal with violent or sexual offenders, and in particular that group of persons for whom hospitalization will no longer be an option.

Paradoxically, the problem may best be dealt with in a manner similar to that already used in the criminal courts to try issues of insanity and unfitness to plead. The procedure would be as follows. If an offender who is not mentally ill or impaired is convicted before the Crown Court of a sexual or violent offence and, in order to protect the public from serious harm, he is imprisoned for a term which exceeds that commensurate with the offence, the court may empanel a jury to determine the following issue: whether they are satisfied beyond all reasonable doubt that the defendant is a person who, if released at the end of the sentence, will commit an offence involving sexual assault or the infliction of grievous bodily harm. If the jury are satisfied, the court shall also make a secure accommodation order, directing that he be detained in civilian accommodation after his sentence expires, until the Home Secretary or the Lifer's Panel is satisfied that the safety of others no longer requires this.

Under such a scheme, therefore, a person will only be liable to indefinite detention if it is established beyond all reasonable doubt that he has committed a violent or sexual offence; a judge is satisfied that the public need to be

protected from serious harm; and a jury is satisfied beyond all reasonable doubt that he will commit further serious violence unless further detained. Those who observe society's laws may reasonably expect to be protected from such people, as indeed they generally are at present. If the lesser of two evils is always to be chosen, this seems to be the lesser of them, and a reasonable balance of the different legitimate interests.

What cannot be justified as a lesser evil is any system which permits the preventive detention of non-offenders whose dangerousness has not been demonstrated. It would be unjust to detain them for crimes they have not committed and are actuarially unlikely to commit. It would be immoral, because the old maxim that 'you shall not do evil that good may come' is applicable in law as well as in morals. It would be inutile, because any impact on the rates at which serious offences are committed is likely to be marginal. There is little gain in detaining a handful of notionally dangerous civilians each year when guilt in criminal proceedings must be proved beyond all reasonable doubt, because every year we release without penalty thousands of rapists and other violent offenders. Lastly, it would be unwise. For, when the public perceives that they are no safer despite such a reform, rather than realise and learn from their folly, they will demand that basic freedoms be further curtailed and the penalties made more severe. Such demands misunderstand the functions of the law and its natural limits. It is not within the power of the law, given the venality of the times, to cleanse the Augean stable. As Montesquieu observed, in 'moderate governments, the love of one's country, shame, and the fear of blame are restraining motives, capable of preventing a multitude of crimes. Here, the greatest punishment of a bad action is conviction ... In those states a good legislator is ... more attentive to inspire good morals than to inflict penalties.' Only those who know the cost but not the value of our freedoms would embark upon such a journey. Nothing which has great value is without cost, and the value of anything is what one is prepared to sacrifice for it. The value attached to trial by one's peers is the financial cost of the jury system; the value of justice is demonstrated by a willingness to see the guilty go free rather than risk convicting the innocent; and the value of liberty is demonstrated by stoically bearing the many evils which liberty permits. If the defence of these freedoms was worth the sacrifice of millions during two wars then, unless society has become wholly degraded, it must withstand the death of a few during peacetime. Such a scheme has no utility which can justify its innate immorality and the infliction of such great injustice; and it would be highly imprudent to interfere with public liberties in the name of public safety when the necessity of such a scheme has not been firmly established.

ABSTRACT

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