Nora Gair Neuroscience and Criminal Justice Fall 2013

A Fair Trial: Exploring Juvenile Psychopathy from Legal and Medical Standpoints

In the early summer of 1968, eleven-year-old Mary Flora Bell (Fig. 1)was found guilty of strangling two toddler-age boys in Newcastle-upon-Tyne, England2. At her trial, she was deemed as demonstrating classic symptoms of psychopathy by court-appointed psychiatrists, as well as being externally described as cunning and a show-off by people who knew her. Dr. Samuel Orton, a psychiatrist who saw her soon after her incarceration, said I've seen a lot of psychopathic children...But I've never met one like Mary: as intelligent, as manipulative, or as dangerous. Though she was found guilty and sentenced to Detention for Life, she was released at age twenty-three and, with the daughter she had conceived during an escape years previously, she went on to lead a life under a new name, committing no acts of recidivism in any years since. Each of the three times she and her daughters identities were found out, she fought hard to get new identities to keep them both safe, an act of caring that seemed beyond the realm of a true psychopaths caring. Too, in one of the books written with her about her childhood, she is quoted as saying, ...what I want most of all is a normal life (Blanco, n.d.c) Whether or not these more human acts later in life are true remorse or from ulterior motives, and though testing for psychopathy has improved vastly in the past sixty years, there is enough doubt raised in this and several other accounts of juvenile psychopathy to beg deeper investigation into the validity of this diagnosis during adolescence from both legal and medical standpoints. This paper

seeks to look at both sides of the trends in sentencing for adult psychopathic murderers and then look at evidence supporting and opposing the current norm for the sentencing of juvenile psychopathic murderers found guilty. To begin to understand the nuances of the application of the diagnosis of juvenile psychopathy in the court system in regards to violent crime, we must first look at the general treatment of adult psychopathic violent criminals by the court system. Three of the most famous psychopathic murderers of all time--Edward Theodore Gein, Theodore Bundy, and Jeffrey Dahmer--were all sentenced in different ways--confinement to hospital, execution, and life in prison, respectively. Edward Theodore Gein (Fig. 2) of Wisconsin was found incompetent to stand trial by reason of insanity in 1957, the year he was accused of having murdered two women and the year police had found numerous female1 human body parts fashioned into gruesome objects--a necklace of lips, bowls made of skullcaps--all over his house, though many were found to have been from grave-tampering rather than murder. He underwent a wealth of tests and was deemed a borderline schizophrenic and a sexual psychopath, though the diagnosis of schizophrenia was inconclusive to an extent. He was sent to the Central State Hospital for the Criminally Insane for

This obsession with solely female body parts is attributed to his relationship with his mother, in line with other early suspicions about psychopathy resulting from purely environmental factors. In May Bells case, it was thought that her unstable home life with a prostitute for a mother and a professional thief for a father was the root of her psychopathy.

ten years, at which point his doctors deemed him sane enough for trial. He was found guilty of first degree murder, but then found not guilty by reason of insanity due to his diagnosis as a psychopath. He was sent back to the Central State Hospital for the Criminally Insane for the remainder of his life, and there he was touted by his doctors as the model patient, with zero acts of recidivism until his death. (Blanco, n.d.d) Thus at least in the mid-twentieth-century, psychopathy was a valid condition to rate insanity in the legal sense. Theodore Bundy (Fig. 3)was found guilty on every count of murder he was accused of and tried for, beginning in 1979 with the Chi Omega2 murders in Miami, Florida and beyond. He plead innocent, against the defense councils wishes, but was found guilty and sentenced to death, partly because, some argue, he served as his own lawyer and poorly so, but mostly because the evidence against him was so incontrovertible. Bundy, however, managed to get his actual execution put off for many years for various reasons. In 1987, during one of the appeals during which Bundy did not represent himself, Polly Nelson called to witness Dr. Emanuel Tanay, a psychiatrist who had studied Bundy back in 1979 during the first trial. Tanay defined him assuredly as a psychopath in his own expert opinion, and told the court that Bundy had sabotaged pretty consitently [sic] what the defense lawyers had worked out. His conduct was symptomatic of his illness, and it was outside his control. Tanay added that he had thought as much even before court proceedings went into effect, saying I did not think that Mr. Bundy would cooperate...with the advice of his lawyers [and] take the guilty plea, because...that would terminate the show, his ability to be the celebrity would come to an end, he would be just someone who was spared from the death sentence, and the show would be over. Whereas, his need was to have the proceedings go on and on in order to gratify his pathological needs. All of

Again, Bundy only murdered women that we know of, in this case attributed by Bundys own testimony to early exposure to pornography, especially of the violent type.

this interview was in an attempt to invalidate Ted Bundys actions during his trials and render him insane at the time, corroborated by Tanays statement that Bundys behavior was a lifelong pattern. It was not a temporary phenomena. It was an expression of his basic persoanlity [sic] structure3 (Blanco, n.d.a). This defense did not exonerate him in any way, although only twenty years earlier a diagnosis of psychopathy, among other factors, had let Gein live out the rest of his days in hospital.

Here we see the evolution of the diagnosis of psychopathy to an integral part of ones nature, rather than solely an environmental issue, though both opinions were held at the time and, indeed still are.

Jeffrey Dahmer (Fig. 4), in 1992, was found guilty of fifteen murders and sentenced to fifteen consecutive life terms in jail, totalling just a couple of years fewer than 1000 years in prison (though he was beaten to death in a prison bathroom by a schizophrenic fellow prisoner two years after his conviction, after again being a model prisoner la Gein.) Pros to his final trial he had been accused of molestation and other crimes, but when police investigated him for the final specific murders he was suspected in they found decomposing body parts in his cupboard, four heads in his refrigerator and freezer, and countless Polaroids Dahmer had taken himself showing other gruesome, murderous corporal crimes. At the trial for these murders, in contrast to Bundy, Dahmer was nearly silent; the longest sentence he uttered the entire time was I understand, your Honor, when asked if he comprehended the charges against him at the preliminary hearing. He pled completely innocent originally, and then switched to not guilty by reason of insanity. This changed the entire trial. The defense now had to prove that he did it and incredibly so, while the prosecution had the prove he did it but with intent. As in the previous two cases, the defense eventually boiled down to something to this effect, a concise labelling of the debate over psychopathy as a defense of insanity:

Defense: ...This is Jeffrey Dahmer, a runaway train on a track of madness..."4 Prosecution: "He wasn't a runaway train, he was the engineer!"

Again, this underlines the developing theory of psychopathy as an implicit facet of the nature of the psychopath.

From the three above cases, it is clear that over the twentieth century psychopathy has been viewed in several different ways resulting in several different outcomes in the legal court system. As mentioned in passing in the footnotes, as well, it is evident that the expert opinion on the causes of psychopathy as a mental disorder have begun to evolve (this will be spoken of more in depth in the next section of the paper.) One can glean from the above cases that insanity is one of the preferred defenses for those deemed as psychopathic murderers. How, though, does that plea match with the current expert definitions for psychopathic culpability in terms of the law? The Law Library of American Law and Legal Information asserts in its entry on psychopathy that psychopaths are firmly in touch with reality...consequently, it appears that the law can affect the behavior of psychopaths (n.d.); this in no uncertain negates insanity as a defense for psychopaths. Many studies have been conducted on knowing objective right from wrong in psychopathic minds: In the journal Social cognitive and affective neuroscience, Cima, Tonnaer, and Hauser presented their findings after delivering a version of the Moral Sense Test to psychopathic criminals, non-psychopathic criminals, and non-psychopathic non-criminals. They wrote that subjects in each group judged cases of personal harms (i.e. requiring physical contact) as less permissible than impersonal harms, even though both types of harms led to utilitarian gains. These similarities can be seen in Fig. 5 below. They went on to add that, however, psychopaths pattern of judgments on different dilemmas was the same as those of the other subjects. This makes a clear distinction that the emotional part of morality, in this case when applied to law, need not apply to a criminal in order for him to understand what he has done wrong--again, insanity does not appear to be a viable plea. And yet, in what is self-described as a general overview of psychopathy as it is currently treated in the law about how responsible is the

psychopath for criminal wrongdoing, it is concluded by the authors after looking at numerous texts that the nature of psychopathy appears to involve a sort of agency that bears a striking departure from that of a normally functioning adult (Fox, Kvaran, Fontaine, 2011), which agains brings psychopathy into the realm of perhaps a too-altered a state of mind for full culpability for ones own criminal actions. How, though, have these varying definitions of psychopathy affected sentencing? Surely these studies cannot attempt to exist in a vacuum outside of public use. Again, the Law Library of American Law and Legal Information takes a very hard line on the subject: since they can understand in at least some form the law, psychopathy would then rationally be considered an aggravating factor that would warrant a harsher sentence and even death in jurisdictions that impose capital punishment (n.d.). This is in line with one of the points made in the Supreme Court Case Jurek v. Texas from 1976. One of the Texas decisions granted a writ of certiori by the Supreme Court was to require the jury to answer three specific questions about the defendant in order to sentence him to capital punishment, including (2) whether it is probable that the defendant would commit criminal acts of violence constituting a continuing threat to society. There is a high rate of recidivism of psychopaths, which fits this question, as well as the ease with which psychopaths attain conditional release relative to other inmates, and the rate of unsuccessful conditional release once retained of

psychopathic criminals (Hkknen-nyholm, Hare, 2009). All of this would suggest that psychopaths are likely to receive harsher sentences than other, non-psychopathic accused of the same crime. And yet in the same study cited just above, Hkknen-nyholm and Hare found that out of 546 psychopathic murderers, 101 had been convicted and sentenced for a criminal offense that was less serious (e.g., manslaughter) than the crime for which they had been prosecuted (e.g., murder). And that out of those 101, 42 had been convicted for only involuntary manslaughter (2009).5 This again challenges the assertion of psychopathy as an aggravating factor warranting harsher sentence (Law Library of American Law and Legal Information, n.d.).

Too, they found that those individuals who ranked higher an individual scored on the PCL:R test (which will be discussed later, but it measures psychopathy by ratings of 0-2 on various statements) were more likely to get a reduced sentence. Interestingly, the variable that went along with the highest rate of reduced sentence--a rate of 4.3 times more likely to be given less time, to be exact--was pathological lying (Hkknen-nyholm, Hare, 2009).

As stated above, the nature of the thought process on the roots of psychopathy has been evolving over time, from purely environmental to environmental, yes, but also neurological. This recent news on this second biological derivation of psychopathy is looking to further cause sentence lengths to drop. In a study conducted on 181 state trial judges, all, in four groups (prosecution/(biological argument) present, prosecution/absent, defense/present, and defense/absent), were given a psychopathic violent assault case to evaluate. Though they all listed aggravating factors more than mitigating factors in their judgment, the half that was shown evidence of psychopathy took into account more than half again as many percent mitigating factors as those who hadnt seen the biological evidence (Aspinwall, Brown, Tabery, 2012) (see

Fig. 6 below).

(And the biological evidence for psychopathy is very much real. In a twin-based study on genetics-based callous-unemotional (CU) traits6, the monozygotic twin were 73% similar to one another in terms of CU, whereas the dizygotic twins, for whom psychopathy would allegedly arise more from environment than genetic make up (though they are still siblings), were only similar to one another at a rate of 39%. The study further claimed that the environmental effect appeared to be only around 5% responsible for the similarities (Viding, Blair, Moffitt, Plomin, 2005).) The past psychopathic murderer cases above have shown, in truth, each possible outcome for a psychopath who ends up admitting to having committed the crimes. However, with the rate that psychopaths recidivate and their ability to leave jail to do so through conditional release, and too the lighter sentences many get in the first place, perhaps the current view on psychopathy is

Again, discussed later, but its a list of characteristics thought to be indicative of socio - or psychopathic behavior especially useful in the evaluation of juveniles for these mental disorders.

not serving justice and the courts well enough. If so many found guilty are receiving lighter charges for the same crime as compared to other criminals, perhaps the hard line suggested by the Law Library of American Law and Legal Information (n.d.) is not the best nor most rational approach when dealing with this particular mental illness. With all the above information in mind, we can now turn to the questions of juvenile psychopathy as in play in the courtroom. To be able to make judgements on this topic, we must look at first the norms for the sentencing of this specific type of criminal, the juvenile psychopath, and then weigh the evidence for and against the application of this diagnosis in the first place from both legal and medical standpoints. The general trend in sentencing for juvenile psychopathic murderers can be summed up in one modern case example, rather than several, as this is the only real viable sentence these days for psychopaths who are not pleading innocence is a long jail time, rather than execution 7. Because of the Supreme Court Case Roper v. Simmons (2004), execution of minors or juvenile offenders, even if being tried as adults as some juvenile psychopaths are (to be discussed below), is now considered a violation of the Eighth and Fourteenth Amendments. Young Andrew Conley (Fig. 7) pled and was found guilty in an adult court in 2010 of the murder of his younger brother by strangulation. He was deemed a psychopath by police psychologist Dr. James Daum, who cited characteristics such as his fantasies about skinning people alive, setting them afire and making them drink bleach, as well has Conleys exhibition of boredom after the murder, signifying his dissociation of emotional responses and his self-admitted fascination with and desire to emulate the protagonist from the television show
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Not guilty by reason of insanity is a negligible choice, as it is assessed as a possible plea even less of the time for psychopathic juveniles (at 1.3% of the time) as compared to adult psychopaths (7.4% of the time) (Viljoen, McLachlan, Vincent, 2010)

Dexter. Conley pled guilty, and the speculation of a long prison sentence as his desserts was confirmed by the judges decision. He was sentenced to life in jail without parole. This is the trend and the norm for any cases pertaining to psychopathic juvenile murderers of the modern era. If this sentencing is so black-and-white from the get-go, at least in the eyes of the justice system, why delve deeper? Juvenile psychopaths can be tried in either an adult court or in the juvenile system. In deciding which system to go with, judges typically consider the youth's potential for future violence and amenability to treatment in the juvenile system (MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, n.d.b) Therefore, to validate even considering trying them in adult courts and possibly giving these individuals the harshest sentence possible-life without the possibility of parole--we must look at both their potential for recidivism and the ameliorability of their condition.

To understand these points at all, we must look at how one is diagnosed with psychopathy as a juvenile in the first place. The three main methods of diagnosing psychopathy in youths are the the Psychopathy Checklist: Youth Version (PCL:YV), the Youth Psychopathic Traits Inventory (YPI), and the Inventory of Callous-Unemotional Traits (ICU). The PCL:YV is the 2004-revised version for juveniles aged 13-18 of the Psychopathy Checklist: Revised (PCL:R), devised by Dr. Robert Hare in the 1970s to be administered by clinicians. The PCL:R is a twenty-item list of factors that are rated at zero, one, or two for manifestation in the subject of the test. The factors have to do with either antisocial behavior or affective personality functions. The PCL:YV and the PCL:R differ in very few ways, the differences largely having to do with the availability for the subject involve himself in the behavior indicated (MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, n.d.a) (see Fig. 8 above). The PCL in any context, juvenile or not, is the most relied upon and common assessment of psychopathy. The typical cutoff score for psychopathy with the PCL-R (adult version) is 30. No common cutoff currently exists for the PCL:YV. Some

suggest 25, others 30, but the research on these topics is so young there has been no consensus as of yet (Kimonis, Monahan, 2010). The YPI, created in 2002, is a fifty-item self-reporting test for individuals 12-18. With this scale, they rate themselves again on a scale of zero to two on various psychopathic traits that are listed as positive attributes (e.g. dishonest charm is listed as When I need to, I use my smile and my charm to use others.), though there is no yet data on whether this creates false positives of any type (MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, n.d.a). The major difference between PCL:YV and YPI is that the YPI focus[es] more tightly on core interpersonal and affective features (Skeem, Cauffman, 2003) than behavior (MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, n.d.a). Finally, there is the (least commonly used) ICU, a 24-item test from 1998 that has five iterations: Youth Self-Report, Parent Report, Teacher Report, Parent Report (Preschool Version), and Teacher Report (Preschool Version) (Frick, n.d.), which unlike the previous two tests can be used separately or in conjunction with one another for a fuller picture of the subjects behavior and characteristics. Scoring high on the ICU is indicative of a unique temperamental style, [and] low behavioural inhibition, which [make] the child poorly responsive to socialisation8 and at high risk for a later diagnosis of socio- or psychopathy. In any case, officially diagnosing a juvenile with psychopathy by using any of these tests is still fraught with danger regarding the possibility of making an incorrect diagnosis of this

This would seem to indicate environmental factors are the major ones in the development of psychopathy, but subsequent studies in children with conduct disorder indicated that the style parents use to socialise their child has less impact on the development of conduct problems than others had previously conjectured. (Dolan, 2004)
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disorder particularly tricky to identify correctly in adolescents. These caveats largely sort into two categories: problems with testing, the nature of adolescence, and Many sources point out various inconsistencies between the results of the different methods for testing for psychopathy in adolescents. When testing a group of youths with three different methods, Kimonis and Monahan found that the subjects were often identified as psychopathic by 1 measure but not by others...the inconsistent psychopathy designations...raise serious questions about the use of such measures as the basis for legal or clinical treatment decisions (2010). This serious disparity, also demonstrated in a separate study focusing on the difference between YPI and PCL:YV outcomes, seems inconsistent with the notion that adult models of psychopathy can simply be extended downward to youth (Cauffman, Skeem, 2003). The other question is about the wisdom of diagnosing a person with such a serious disorder during the stage of life that is adolescence. Relative to adults, adolescents [sic] psychopathy scores are not as stable (Cauffman, Skeem, n.d.), with a good portion of youth deescalat[ing] in psychopathic characteristics over time (Salekin, Rosenbaum, Lee, Lester, 2009), these characteristics including proneness to boredom, thrill-seeking, impulsivity, and poor behavioral control, which are also normal and often transient developmental characteristics of adolescence, not just markers of an irredeemable character as they are seen in adults (MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, n.d.a). However, these claims or adolescent exceptionalism to the diagnosis are refuted with a similar vehemence elsewhere, with sources saying that although adolescents exhibit impulsivity, irresponsible behavior, and egocentricity, the bulk of research would suggest that youth do not exhibit these characteristics to [as] high [a] degree as confirmed psychopaths do (Salekin, Rosenbaum, Lee, Lester, 2009). Too, psychopathic traits as currently assessed in

youths puts a juvenile on a path that sets him up to have an earlier onset of offending...commit more crimes, and reoffend more often... and more violently...than non-psychopathic criminal youth (Dolan, 2004). These data underscore the validity of the diagnosis of psychopathy, at least insofar as it matches the predicted dangerousness of the subject. As concisely summed up by Salekin, Rosenbaum, Lee, and Lester, findings on child psychopathy raise many more questions than they answer (2009). For a while yet, we may not know the direct ins and outs of juvenile psychopathy from a medical or neurological standpoint, but it is accepted as a diagnosis legally as yet, no matter any doubt, and so we must proceed as such until any doubt is ultimately erased or confirmed. The above information discusses the medical aspects of juvenile psychopathy. In the eyes of the court, however, juvenile psychopathy is another beast entirely. This side of the debate deals almost exclusively with the possibility of recidivism, and the possibility of treatment. In Jurek v. Texas, determining future delinquency is only a question necessary to answer if considering the death penalty; however, since capital punishment is off the table, and this is one of the factors a judge considers when sending a young psychopath on his way to the adult justice system, this is simply the best way to deal with whether or not a juvenile deserves chance of early/conditional release or not. According to many studies, having psychopathic tendencies, however tested, is a robust predictor of violence and reoffending (Viljoen, McLachlan, Vincent, 2010). However, there needs to be conducted more research that looks specifically within the adolescent population at the predictive utility of those elements of psychopathy that are not themselves indicators of current antisocial behavior (Steinberg, 2001) because the non-antisocial variables, especially on

the PCL tests, are more correlated with recidivism in adults and there is a gap in the knowledge with this in regards to adolescents. Too, there is doubt if these predictions of recidivism in psychopaths are enough to form firm opinions on the matter. for example, of the studies done on inmate violence perpetrators in US prisons, none has obtained a significant correlation between psychopathy (as operationalized by the Hare PCL measures) and physically violent behavior (Edens, Guy, Fernandez, 2003). Too, Edens, Guy, and Fernandez argue that despite the connection established between psychopathic tendencies and future run-ins with the law, research fails to support the claim that psychopathy predicts the types of violence that are at issue in capital cases (2003) (which the majority of these cases would be were the defendants older, so the statement stands.) This casts doubt onto the true predictability of exact replicas of crimes committed if allowed back into the general society, especially with some doubt already cast onto the validity of the diagnosis in the first place. No one is arguing that individuals admittedly having committed these crimes are not dangerous or are entirely blameless in their guilt. But, as it is a mental disorder, and as they are evaluating juveniles, it bears some amount of right thinking that each and every danger of prejudice or incorrectness be looked at twice for these individuals. As Cunningham and Reidy state in conclusion of their study, in common usage the terms used to describe [psychopathy] have a connotation of dangerousness and arguably an emotional flavour that strongly militates against rational evaluation of their objective value in predicting assaultive conduct (1998). This unfair leaning should be prevented at all costs, especially in regard to adolescents. As such, it would seem that life without parole being applied to an adolescent who has been diagnosed with psychopathy is a choice fraught with risk of incorrectness and injustice.

There is so very much room for doubt among all the legal and medical cautions dealing with this diagnosis that it seems foolhardy to apply the harshest sentence possible--life without parole--to the individuals. But if not harsh jail time, then what? Rehabilitation9 is an angle rarely thought of for psychopathic individuals. Because the definition of psychopathy largely includes the descriptor untreatable, it would follow that treatment be rarely applied to them. As stated in one study, few clinicians who work with psychopathic [prisoners]...offer much optimism for rehabilitating a truly psychopathic youth in that period of time (Petrila, Skeem, 2003). Steinberg adds that juveniles who are branded as psychopaths are more likely to be viewed as incorrigible, less likely to receive rehabilitative dispositions (2001). However, some are now coming to think that assumptions of untreatability are just that: assumptions, with recent evidence [suggesting] that psychopathic youth could develop into nonpsychopathic [sic] adults as a result of various therapies (Petrila, Skeem, 2003). In fact, six of eight studies on psychopathic youth under treatment show them to be improving or becoming less psychopathic as a result (Salekin, Worley, Grimes, 2010). This is promising because it shows that the effects of this disease, previously thought to be incurable, can be mitigated somewhat over time, even if not fully erased10. Similarly, and more explicitly, as noted by Reidy, Kearns, and DeGue, after reviewing certain juvenile psychopaths rehabilitated at one center, no relation between psychopathy scores and violent or general recidivism existed at 4 year follow-up, despite the past associations made

There are many strategies currently being used and improved upon for the rehabilitative therapy of psychopaths, but the pros and cons and type of those are another paper entirely. 10 Three out of the eight studies also showed improvement in the adult psychopathic group--a less promising estimate, but impressive nevertheless (Salekin, Worley, Grimes, 2010).

about this correlation(2013). Also, they noted that the high ps ychopathy youths incarcerated and treated [there] were signicantly less likely to violently recidivate at two year follow-up (Reidy, Kearns, DeGue, 2013). This research is in its infancy, and there are of course some studies where rehabilitation or treatment have been shown not to have helped the mental condition of these juvenile psychopaths, like the two out of eight not showing improvement to Salekin, Worley, and Grimes (2010), or several others noted by Reidy, Kearns and DeGue (2013). However, with the glimmers of hope for treatment and rehabilitation in the very near future as the burgeoning area of research is furthered in every direction, who is anyone to deny a youth at least a gleam of a chance for a future not defined by their condition? The real concern is, as Steinberg puts it, that assessments of juvenile psychopathy are not being used to recommend further evaluation but are instead forming the basis for definitive dispositional decisionmaking [sic] (2001). With the possibility that the disease is nigh undiagnosable in juveniles, or at least not as a stable condition; with the past view of the disease being so negative any hope now for these individuals is squashed out; with the possibility of real treatment just over the horizon--how can we condemn these adolescents in this so bleak and defined way? It looks as if we shouldnt. And with more research conducted, now and in the future, we can keep improving our picture of juvenile psychopathy to keep us all safe, yes, but to keep our country fair and just.