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Another Thorn in the Death Penalty’s Side: The Ethics of Executing the (Neurobio) Eccentric

I am simply copy and pasting this to get it out from behind the adult content warning forced on blogspot readers.
This article is perhaps the best I’ve ever read on this subject, and I want to share it, but the content warning makes that difficult.
Again, none of this is my work. The author unless otherwise cited is Mary Mayhem.
Enjoy.




Guilt does not necessarily equate to culpability. For instance, if someone experienced a stroke while driving and slammed into my car they would be guilty of damaging my car, but not held responsible punitively. The driver wasn’t culpable for their actions; they had a stroke. Of course, this is an extremely exaggerated example, but if you skim through the history of United States common law, you can find a few examples. Atkins v. Virginia and Roper v. Simmons are two landmark decisions.  If a person commits a capital crime, they should definitely suffer the consequences, but if they aren’t exactly “calling all the shots,” it is unethical to execute them. Ethics aside, it would also be unconstitutional. The cruel and unusual punishments’ clause of the eighth amendment to the United States Constitution, the highest law of the land, strictly prohibits it (JRank).
Since new research shows that psychopaths have neurobiological abnormalities that seriously impair their ability to interpret right from wrong, they should not be eligible for capital punishment when they commit a capital offense; instead, they should be sentenced to life in prison without the possibility of parole.
In the past decade, many studies have been done on the psychopathic brain. I know that you’re thinking “psychopath,” and scary images of Ted Bundy, Charles Manson, and Jeffrey Dahmer creep into your head (information obtained from survey). Please denounce these images (not every psychopath is a serial killer), and stick to the following explanation of psychopathy, and remember, justice is blind.
Psychopaths do not have a conscience. They cannot feel empathy, guilt, or remorse, and they cannot sense emotions such as fear in other people. Because of this, they don’t know when to stop taunting or victimizing. They exhibit extremely high degrees of antisocial and narcissistic behavior, compulsive lying, a very low emotional IQ, and a very high degree of socially parasitic behavior (Hare 1-71). The question is why?
Most scientists concur that one factor alone is not enough to make a person a psychopath.  If it was, psychopaths would be everywhere. According to Dr. Robert Hare,   a psychologist with over 25 years of dedicated research in this field, only one percent of the population is psychopathic (2). Current research points to violent psychopaths exhibiting abnormalities in the brain, abnormalities in DNA, and an abusive or violent upbringing. These are all things that are usually beyond a person’s control.
Multiple neurological studies, conducted over the past two decades, show that psychopathic brains have reduced amounts of gray matter in the prefrontal cortex, causing their inability to sense emotions, low emotional IQ, and lack of conscience. In other words, they cannot tell if you are sad, and they cannot tell if you are scared. Additionally, there are abnormalities present in the psychopathic brain’s amygdala and hippocampus, causing their compulsive lying, and complete lack of guilt and remorse. The wiring between the orbital frontal cortex and the amygdala often misfires which causes horrible decisions to be made (Freedman and Vernun-Jones 34, Gao et al. 814, Ferguson 167, Raine 324, Yang et al. 561-562).
How did these abnormalities come about? No one is 100% sure, but more and more studies are pointing to evolution and DNA. Can you imagine what it would be like to not have an inner voice telling you what to do or should do; to constantly be on the hunt; to have no concept of right and wrong, because you have no basis for comparison; to be continuously driven by an unknown force to make bad decisions over and over again; to not know or understand what anyone is feeling; to have to constantly keep your stories straight, because they are all made up to achieve some goal; and to not have the ability to ask yourself any of these questions that I am asking you to ask yourself right now, because you do not have the ability to empathize? Psychopaths, at no point in time, ever asked for any of these quirks.  Once again, things beyond a person’s control.
There has been some opposition to this line of reasoning, of course. Most informed people agree that psychopaths have these traits due to neurobiology, but still think they are culpable, because they are  able to learn right from wrong, and just don’t care to apply what they have learned to our society. You can read another blog with a somewhat different perspective than mine here.  This blogger’s argument states that if the psychopath’s frontal lobes are intact, then they should have the cognitive ability to learn society’s rules. The blog also suggests that psychopaths might actually get a high from breaking society’s rules (Anonymous). While I do agree with the blogger’s ideas somewhat, the argument is flawed. Here are two diagrams of a brain:
Please note that the prefrontal cortex is located in the frontal lobe, and since psychopaths have an abnormal prefrontal cortex, it’s not exactly true to state that psychopaths’ frontal lobes are “working.”  In fact, according to The Franklin Institute’s Resources for Science Learning website, dedicated to protecting the brain from injury, “Children who experience early damage in the prefrontal cortex never completely develop social or moral reasoning. As adults, even on an intellectual level, they cannot refer to such behavior because they have little concept of it.” The brain is our most complicated organ, and the one we know the least about. It’s just not as simple as the blogger makes it out to be; and remember, we are talking about life and death here. Guilt has already been determined. This is not a simple matter.
This is a video featuring Dr. Hare, comparing neurotypical and psychopathic MRI’s of the brain.

(Psychopathic MRI).
You can really see the differences in this video, and Dr. Hare does an excellent job of explaining the method behind his madness, but I am agitated by the way the video ends so abruptly. Just a question for both my opposing blogger and Dr. Hare; please explain how you can be expected to “learn” something when the part of your brain that is supposed to process that specific kind of information doesn’t work properly (or up to society’s expected norms)? You can’t just tell your brain, “Hey, my prefrontal cortex is acting up again today. I’m gonna need you to go ahead and transfer all of my reasoning and empathy to my left temporal lobe for the rest of the week. Thanks.” Yes, a different part of the brain might take over and continue the processing, but can we really hold the person accountable for the results if they aren’t typical? If I break my right hand and have to write with my left hand for a while (I’m right-handed), the writing is going to be sub par, because I’m using a different hemisphere of the brain and a different hand, and my biology dictates that I use the left hemisphere and right hand for writing. Yes my right brain is meant to control my left hand, but not for writing. Miffed yet? The brain is a complex organ that has yet to be mastered.  We cannot place full blame on people for things we do not understand just because we haven’t figured them out yet, especially when we have enough research to show that there is something there.
This is another reason to keep capital offender psychopaths alive. While they are incarcerated for the rest of their lives, neurologists could study the faulty wiring and abnormalities of their brains. I’m in no way suggesting poking and prodding around inside psychopaths’ heads, but more functional imaging type testing could be done. This could be beneficial for other disorders hypothesized to originate in the brain such as depression, ADHD, Alzheimer’s, bipolar disorder, fibromyalgia, borderline personality disorder, etc., since they share some of the same symptoms. Psychopaths might actually appreciate the extra attention, since they can be egocentric.

Another phenomenon that my opposing blogger was inaccurate about, was the high that psychopaths feel when doing something wrong. An NPR Interview, conducted in March of 2010, relayed facts concerning a study conducted at Vanderbilt University, where a new system in the brain was found to be involved with psychopaths’ antisocial behavior. This system is called the mesolimbic dopamine system. Yes they do get high, but not because they are doing something wrong; in fact, it’s the dopamine that drives them to do wrong in the first place. Theoretically, the mesolimbic system pumps quantities of dopamine into the brain which creates a surge of radical stimulus in the psychopath, and this combined with the aforementioned abnormal orbital frontal cortex, amygdala, and hippocampus, makes the psychopath intentionally go out on the prowl, seeking out money, sex, and power; often leading to antisocial behavior. So the dopamine high is not a result, it’s part of the continuous cycle of faulty equipment located in the psychopathic brain (“Study: Psychopaths’ Brains”). Who can be held culpable for that? I think society is under this fallacious impression that psychopaths roam the earth, doing wrong purposely, because it feels good, just because they can, when really it’s more of an instinct.

An article from 2010, written by Dr. Christopher Ferguson, a professor in forensic psychology at Texas A&M, analyzed a study where over 50% of psychopathic behavior was found to be caused by genetics, 33% from all other influences, including biological and social (other than family), and less than 15% from family upbringing. The study was conducted on adopted children, especially twins, and focused a lot on the MAOA “warrior” gene.  Having this gene does not guarantee psychopathy, but it does greatly increase your chances (160-176).

Case in point, if you are a carrier of the MAOA “warrior” gene, your brain’s wiring and chemistry are on the abnormal side (I’m assuming that if you are a psychopath, you probably know you are), and to top it off, you grew up in an abusive home, please don’t live in a death penalty state; especially Texas.  You might as well just lock yourself up in a room so that you don’t hurt anyone, because you never really had a chance. I conducted a survey of 44 normal, everyday people; the kind of people juries are selected from. Out of those surveyed, 76% would be more likely to sentence a convicted capital offender to death if they were assessed by a mental health professional to be psychopathic.
Specific Jury instructions for sentencing phases of capital trials vary from state to state, but they all centralize around the same idea.
  • Aggravating factors being introduced to the jury, which must proven by the prosecution beyond a reasonable doubt.
  • Mitigating evidence being produced by the defense to sway the jury away from handing down a death penalty verdict; this must only be proven by a preponderance of evidence (US Code § 3593).
  • Aggravating Factors are facts and secrets about the offender that really have nothing to do with the current trial, but the prosecutor will bring them up anyway. This dirty laundry is intentionally meant to make the jurist vengeful toward the offender. The prosecution wants a death verdict, because they work for the District Attorney, an elected or appointed official, so they always feel that their job is on the line, and they think this verdict will make them appear competent, so right off the bat, this is a competition and a trial.
  • Mitigating evidence also has nothing to do with the trial, and serves the opposite purpose. It’s meant to make the juror rationally sympathetic toward the defendant and less likely to vote to kill them. The Supreme court ruled in Bigby v. Dretke that it is an eighth amendment violation to not instruct the jury about mitigating evidence concerning the mental health of the offender.
  • Each state has different standards for what can be entered as aggravating and mitigating factors, but they are governed by US Codes.
  • These state set standards were all adopted in 1976 after Gregg v. Georgia, a Supreme Court Decision, that set a country wide precedent to standardize death penalty sentencing procedures so that they didn’t violate the cruel and unusual punishments clause of the eighth amendment. The decision made it clear that once you’re dead, you’re dead, and you just can’t go around handing out automatic final sentences like death, based on the nature of the crime; you’ve got to get down to the very core of the human being. An automatic “eye for an eye” was sent packing. Wait, what year was this again? 1697? No 1976.
  • If this murderer is not eliminated from society, will they still continue to be a threat? “Future Dangerousness” is considered an aggravating factor in 21 states (La Fontaine). Prosecution attorneys love this. They love to confuse jurists into thinking that if they don’t send the convicted psychopath to death row, there might be a chance they will get out in a few years. The defense attorney can object to this all he wants to. The Judge can strike it from the record, and advise the jury to disregard, but we all know that once the jury hears something and develops a schema, they are forever tainted; and let me tell you something, it’s NOT going to happen. A person convicted of a capital crime is either sentenced to death, or life in prison without parole. The only way they are getting out is by a governor or the president pardoning them. In all seriousness, would this happen for a convicted psychopath? No.
The prosecution will try to convince a jury that psychopaths will continue to kill in prison, and most potential jurists are already biased into thinking this way. According to my survey of 44 people, 76% answered that they thought a psychopathic defendant would be more likely to act aggressively in the general population of prison. The truth is that no one can predict the future. An article published in Behavioral Sciences and the Law, written by Dr. John Edens et al., states that expert testimony, given by forensic psychologists, stating that psychopaths will definitely pose “Future Dangerousness” is garbage. The article goes further to state that “all” published studies show that there is absolutely no relationship between high PCL-R scores and a higher amount of physical violence in prison populations. In fact, studies point to the opposite (Edens et al. 605-606).   Dr. Hare estimates that 20% of all male and female prisoners are psychopathic (87). Maybe psychopaths work well with other psychopaths. Shouldn’t this be something else to observe and study?
I know many people are currently feeling wrath of the economic mess we’re in. Believe it or not, the death penalty actually wastes taxpayers money. People that get sentenced to death waste our money with appeals. From the Death Penalty Information Center‘s website’s information about California,“The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate. With California’s current death row population of 670, that accounts for $63.3 million annually.” California is not the only state with these findings. Nine other states’, the federal courts, and the nation as a whole had studies that were posted, all reporting the same thing (DPIC). According to economist Katherine Baicker’s article published on the National Bureau for Economic Research‘s website, “Capital cases burden county budgets with large unexpected costs. Counties manage these high costs by decreasing funding for highways and police and by increasing taxes . . . between 1982-1997 the extra cost of capital trials was $1.6 billion.” How can you not see the incongruousness here? Taking money away from the police and then redistributing it to the courts is reprehensible; the presence of extra police might have acted as a deterrence to the problem in the first place.
The opposition (prodeathpenalty.com) argues that under perfect circumstances, and with new Habeas Corpus laws in place, which limit the amount of years between receiving a death sentence and actually being executed, and also severely limiting the amount of appeals a convicted capital offender can file, the death penalty could cost less that life in prison without parole (Hall). We all agree that most U.S. Courts are known for being quick and efficient even with the current laws in place. The opposing side also claims that a capital offender only waits six years on death row before being executed, but according to the Bureau of Justice Statistics, it’s actually eleven and a half years on average (“Capital Punishment”). Almost twice as much.
While there is no way to determine how many psychopaths are on death row, we do have an estimate of how many take up residence in our prison system (20%), and due to the current bias against psychopaths, held by potential jurists, and psychopaths’ propensity to act on impulse without reasoning or guilt, we can assume there are probably many on death row. From what you know of the psychopathic personality, do you really think that they are going to take a death sentence, at the district court level, and then just quietly sit in prison, reading books, waiting to die? Of course not. Their personality dictates that they will likely file appeal after appeal (a la Ted Bundy), until the appeals have been exhausted, or the decision is reversed. If states could just make it mandatory to give psychopaths life without parole from the start, they’d probably be saving a substantial amount of money; our money.
The 2002 Supreme Court Decision, Atkins v. Virginia , holds that it is against the eighth amendment to execute a mentally retarded person. The opinion was delivered by the honorable Justice Stevens and part of it reads, “Because of their disabilities in areas of reasoning, judgment, and control of impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Even though the research tells us that psychopaths show severe disabilities in areas of reasoning, judgment, impulse control, and other serious disabilities, probably worse that mental retardation, the current “trend” in law is, that Atkins v. Virginia does not apply to psychopaths. In Roper v. Simmons, the Supreme Court holds, “By protecting even those convicted of heinous crimes, the eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper v. Simmons holds that it is against the eighth amendment to execute someone for a crime committed under the age of 18. So why is it not unconstitutional to execute a psychopath? From the Atkins v. Virginia decision, “We held that standards of decency have evolved . . . and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment.” As simple as that. One day we kill people, and the next day we don’t. What does this quote tell us?  When it comes to our “sophisticated” judicial system, the appointed justices of our Supreme Court choose not to try cases, involving matters of life and death, based on the facts; instead, they choose to try cases based on opinions. Should we just go ahead and refer to judges and juries as triers of opinion now, rather than triers of fact?  Based on my survey of 44 people, if these neurological studies were introduced during the sentencing phase of a trial, 61% of those surveyed would be more likely to view these findings as mitigating evidence as opposed to aggravating factors.  Does that say anything about the evolution of our standards of decency?
You will never see a vote on this; it has to be a trend, a wave of sentiment, spread throughout the nation. One day evidence of psychopathy will be entered into mitigating evidence (instead of aggravating). Experts will show the jury pictures of brains scans, functional MRI’s, DNA lab reports, etc. Friends, acquaintances, and possibly family members will testify to the abuse and violence the offender was subject to, and then the jury will vote, probably for death. Hopefully sooner before later, the Supreme Court will catch one of these cases over a matter of constitutionality (eighth amendment), and our “standards of decency” will have “evolved” even more, through the spread of information.  Just think of the many things in this country’s past that used to be within our “standards of decency” but are now considered shameful. If the Supreme Court were to finally apply one of these landmark cases correctly and overturn a decision, it would be a huge step in the right direction for moral decency, and the only way to change these things is through the continuous promotion of information to progress our standards even more.
Works Cited after the Jump…
Works Cited
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Baicker, Katherine. “The Budgetary Repercussions of Capital Convictions.” National Bureau of Economic Research. N.p., July 2001. Web. 14 Nov. 2010. .

Bigby v. Dretke. 402 F. 3d. 551. US Court of Appeals, 5th Circuit. 2005. FindLaw. Web. 14 Nov. 2010. .

“Capital Punishment, 2008 — Statistical Tables.” Bureau of Justice Statistics. Office Of Justice Programs, 3 Dec. 2009. Web. 14 Nov. 2010. .

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Updated: October 25, 2011 — 2:42 pm
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