“I See What Is Right and Approve, but I Do What Is Wrong”: Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging

In this Article, we first consider the relevant differences between antisocial personality disorder (ASPD) and psychopathy. Then, we look at the meager cohort of federal sentencing cases in which the issue of psychopathy is even raised, and consider decision-making in this context from the perspective of implicit racial bias. Next, we present some background on the controversy of “psychopathy” diagnosis; here, we share what we call the “inside baseball” about the debate— on the differences between psychopathy and ASPD—that has rocked the world of the psychology academy. We will also analyze how our current ideas about punishment and recidivism could change by using psychopathy research as a case study, and consider how this new research creates extra responsibilities for both lawyers and expert witnesses in their representation of criminal defendants in such cases.

Specifically, we will focus on how the use of these terms has a disproportionately negative impact on persons of color, looking closely at the way the instruments that are used to assess these conditions are subject to significant racial bias. Finally, we unpack these issues through the lens of therapeutic jurisprudence, a school of thought that considers the extent to which the legal system can be a therapeutic agent.