LOS DISCURSOS DE ODIO DESDE LA PERSPECTIVA EUROPEA

One might argue that Appreciation-of-Moral-Wrongfulness

jurisdictions get it right; that the reason Killer can be justly punished for

154. See supra notes 78 and 146 and accompanying text. 155. See supra note 146 and accompanying text.

murder is not merely because he could have refrained from murdering

but because he had a moral (or emotional or affective) understanding of

the law against murder. He understood why murder is against the law.

And this moral understanding—an understanding not merely that murder

is against the law but also the moral basis for this legal prohibition—is

what entitles us to hold him responsible and punish him. If Killer lacked

this moral understanding, then it would not be just to hold him responsible

and punish him. And because this is the situation that psychopaths are

in—because they understand only what is against the law, not the deeper

moral basis for any given legal prohibition—we may not justly hold

them responsible, and punish them, for their crimes.

This objection, however, is flawed. There are situations in which

nonpsychopaths, people just like you and me, do not have a moral (or

emotional or affective) understanding of prohibitions against certain

behavior. And, despite their temptation to violate these prohibitions, they

still refrain from this behavior for no other reason than that it is

prohibited. It is not clear, then, why we cannot reasonably expect the

same (often self-interested) self-restraint from the psychopath.

Consider, for example, cocaine use. Many people who believe that

there is nothing morally wrong with snorting cocaine still refrain from

this activity for at least one of the first four reasons above: absence of

desire, conscience, respect for the law, or fear of the law. It is not at all

clear, then, why we cannot expect the same of everybody else, even if

they happen to lack a moral understanding of this law and are therefore

not deterred by the first two reasons (absence of desire or conscience).

Suppose that a person—Connie—has a strong desire to snort cocaine;

Connie strongly believes that snorting cocaine is not morally wrong;

Connie does not respect the laws prohibiting cocaine use and possession;

and Connie purchases and then snorts cocaine. The police somehow

get word of this and, after a lawful search and seizure, arrest Connie for

these criminal acts. At trial, Connie might claim that she did not really

know about the laws prohibiting purchase, possession, and use of

cocaine because she lacked any moral or emotional understanding of

these laws. But very few—including even most opponents of cocaine

laws—would agree that this defense is viable. Connie knew that cocaine

purchase, possession, and use were against the law and therefore that she

was assuming the risk of being caught and punished when she violated

these laws. The fact that she disagreed with, and therefore lacked a

moral or emotional understanding of, these laws does not excuse her.

So much the worse, then, for psychopaths. Like Connie, they lack

a moral/emotional understanding of laws prohibiting the crimes that they

commit. For this reason, they might even disagree with these laws. But,

for the same reason that this lack of a moral or emotional understanding

does not excuse Connie, it does not excuse psychopaths. Whether or not

they agree with, or morally/emotionally understand, the law is irrelevant.

Just as one does not need a moral/emotional understanding of why

purchasing, possessing, or using cocaine is against the law to be criminally

responsible for committing these crimes, so too one does not need a

moral/emotional understanding of why violating any other law is

morally wrong in order to be criminally responsible for violating that

law.

Again, all one does need to be criminally responsible for breaking the

law is knowledge of the law (and sufficient self-control, which will be

discussed in Part IX.C). And the fact of the matter is that psychopaths

generally know the criminal law. They know what the criminal law

prohibits and what the consequences are if they still violate the law and

get caught. At least there is nothing about their psychopathy that conflicts

with, or removes, this knowledge. So unless a given psychopathic

defendant can show that there are other reasons why he did not know

156. See supra notes 78 and 146 and accompanying text; see also HARE, supra note 5, at 143 (“[Psychopaths] are capable of controlling their behavior, and they are aware of the potential consequences of their acts. . . . They understand the intellectual rules of the game but the emotional rules are lost to them. This modern version of the old concept of ‘moral insanity’ may make some theoretical sense, but it is not relevant to practical decisions about criminal responsibility. In my opinion, psychopaths certainly know enough about what they are doing to be held accountable for their actions.”); Hart, supra note 3, at 166 (“[Psychopaths’] understanding of the physical consequences of their actions is intact; they can use this ability to compensate for or overcome their impairment (at least to some extent), and the law expects them to do so. . . . The law typically holds that people with psychopathy are capable of and can reasonably be expected to use their intact cognitive skills and abilities to overcome their impairments when making decisions with potentially serious consequences. Similarly, the law expects that people with serious color blindness should be aware of and compensate for their handicap—knowing they may have difficulty discriminating between red and green traffic lights, they should either avoid driving or develop strategies to ensure they can drive safely.”); Lippke, supra note 6, at 402 (“[G]iven the unattractiveness of the options other than preventive detention available to [psychopaths], the nonmoral reasons to which such individuals are responsive will likely counsel them to take their chances on remaining free . . . and attempt to avoid arrest and prosecution.”); Morse, supra note 6, at 51–52 (“[P]sychopathy does not prevent agents from acting as the law defines action, nor does it prevent psychopaths from forming prohibited mental states. . . . Further, psychopaths are not excused because they do possess many rational capacities. They usually know the facts and are generally in touch with reality, they understand that there are rules and consequences for violating them . . . and they feel pleasure and pain, the anticipation of which can potentially guide their conduct. . . . Finally, psychopaths do not suffer from lack of self-control as it is traditionally understood. They do not act in response to desires or impulses that are subjectively experienced as overwhelming, uncontrollable, or irresistible.”).

that an otherwise criminal action was against the law, the defendant’s

argument that he did not know—or understand—the law will, and

should, fail.