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The Unlucky Psychopath as Death Penalty Prototype

Who Deserves to Die: Constructing the Executable Subject (eds. Austin Sarat and Karl Shoemaker, 2011), pp. 40-72

Stanford Public Law Working Paper No. 2128963

18 Pages Posted: 14 Aug 2012 Last revised: 16 Aug 2012

Robert Weisberg

Stanford Law School

Date Written: 2011


The death penalty puts special focus on a figure that has always lurked in the shadow of all criminal law. This is the psychopath (also sometimes called the sociopath), the person who while perfectly sane and cognitively competent, simply inherently lacks any empathy for the suffering of others. In Tison v. Arizona, 481 U.S. 187 (1987), the Supreme Court indicated that the minimum mens rea needed for death-eligibility is “reckless indifference to human life,” a standard that is the legal equivalent of psychopathy. Moreover, even though most capital defendants exhibit the more egregious mental state of intent, the notion of reckless indifference captures the kind of immoral or amoral character that capital juries impute to those they condemn. This focus on the psychopathic capital defendant implicates deep dilemmas in both psychology and philosophy. The so-called Antisocial Personality Disorder (ASPD) is part of the cluster of conditions that psychology and psychiatry call personality disorders, and its controversial status as a mental disorder illustrates the more general and fundamental problem with thus cluster. Although they are listed as diagnoses in the medical manual (the DSM), personality disorders are arguably just verbal summaries of their alleged symptoms, not useful diagnostic categories or illnesses for which there is treatment. They are simply ways that certain people are constituted, or descriptions of the typical behavior of certain people. (Ironically, the psychopath or the ASPD is the one example in the criminal law of a supposedly medical diagnosis is offered in aggravation by the prosecutor -- whereas “medicalizing” defendants otherwise is always done as mitigation by the defense.) But the psychopath troubles moral philosophy as well, because he raises the question whether under assumptions of free will, a person can be held responsible for his innate incapacity to empathize. In this regard, the figure of the homicidal psychopath invokes and illustrates the modern fascination of philosophers with the notion of “moral luck,” a problem that has led to interesting conceptual solutions and rationalizations. Thus, the identification of the prototypical death-deserving defendants strikes at key dilemmas across these fields.

Keywords: death penalty, criminal law, psychopath, sociopath, mens rea, capital defense, Antisocial Personality Disorder, ASPD, personality disorder, mental disorder

JEL Classification: K14

Suggested Citation

Weisberg, Robert, The Unlucky Psychopath as Death Penalty Prototype (2011). Who Deserves to Die: Constructing the Executable Subject (eds. Austin Sarat and Karl Shoemaker, 2011), pp. 40-72; Stanford Public Law Working Paper No. 2128963. Available at SSRN:

Robert Weisberg (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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