Responsibility, Dysfunction and Capacity

Abstract

The way in which we characterize the structural and functional differences between psychopath and normal brains – either as biological disorders or as mere biological differences – can influence our judgments about psychopaths’ responsibility for criminal misconduct. However, Marga Reimer (Neuroethics 1(2):14, 2008) points out that whether our characterization of these differences should be allowed to affect our judgments in this manner “is a difficult and important question that really needs to be addressed before policies regarding responsibility... can be implemented with any confidence”. This paper is an attempt to address Reimer’s difficult and important question; I argue that irrespective of which of these two characterizations is chosen, our judgments about psychopaths’ responsibility should not be affected, because responsibility hinges not on whether a particular difference is (referred to as) a disorder or not, but on how that difference affects the mental capacities required for moral agency

The brains of psychopaths are structurally and functionally different to the brains of normals (e.g. see [29]). However Marga Reimer points out that these differences can be characterized¹ in at least two ways, and that each characterization impacts differently on how we assess the psychopath’s responsibility for criminal misconduct. On the one hand, when these differences are characterized as “biological disorders”—i.e. as deficits, pathologies, malfunctions, impairments or diseases (e.g. see [4])—we tend to view psychopaths as less than fully blameworthy for the crimes which they commit, perhaps because their actions tend to be viewed as symptoms of their brain’s malfunction or disease rather than as expressions of their genuine characters or selves. But, on the other hand, when these differences are characterized as mere biological differences, though not ones that involve a deficit, disorder, malfunction, pathology or disease, then we may even tend to view psychopaths as more morally blameworthy, since now we will tend to view their actions not as symptoms of a pathology or disease, but as expressions of their personality or self which, as the brain scans starkly reveal, is rotten at its most basic implementation level [30].

That the “language of deficit” favours exculpatory judgments while the language of “mere difference” maybe even favours greater condemnation of psychopaths ([30]:1, 12), is one kind of claim—I take it to be an empirical observation on how our responsibility assessments tend to be affected by the way that we characterize differences between psychopath and normal brains. However, instead of looking for further evidence either for or against this empirical claim,² in this paper I want to focus on a different issue which Reimer raises towards the end of her paper where she asks: “Should how we conceptualise psychopathy (as a biological or merely normative disorder) influence our attitudes toward practical issues, such as... responsibility?” ([30]:14, original emphasis). I will argue that our assessments of psychopaths’ responsibility should not be affected by how these brain differences are characterized (or even by what is the correct way of characterizing these differences)—i.e. as biological disorders or as mere biological differences—because neurological conditions do not undermine responsibility simply in virtue of being disorders, but rather they do so in virtue of the effect which they have on our mental capacities—capacities which are required for moral agency.

Disorder is neither necessary nor sufficient for reduced responsibility

Should our characterization of psychopaths’ brains, as either disordered or as merely different, affect our judgments concerning their responsibility? A positive answer to this question would entail that disorder but not mere difference reduces responsibility, or put another way, that disorder is sufficient or necessary for reduced responsibility.³ However there are at least two reasons to reject the claim that disorder is sufficient or necessary for reduced responsibility.

First, that disorder is not sufficient for reduced responsibility is evidenced by the fact that people suffering from hypomania may sometimes even be more rather than less responsible. Hypomania, one of two alternating mood fluctuations of Bipolar II Disorder, is characterized by the following symptoms: “elevated (euphoric) and/or irritable mood, plus at least three of the following symptoms (four if mood is only irritable): grandiosity, decreased need for sleep, increased talking, racing thoughts, distractibility, overactivity (an increase in goal-directed activity), psychomotor agitation and excessive involvement in risky activities” ([3]:727). These symptoms can be distressing and harmful to those afflicted by them since they may lead them to take unreasonable risks, to take on more projects than what they can handle, or to act in ways which make them seem brash, dismissive and unfriendly. And although the precise causes are still not known, a growing body of literature now suggests that Bipolar II Disorder (and thus hypomania) has a neurological basis (e.g. [6, 19, 28, 26]).

Given these symptoms and their apparent neurological basis, hypomania can probably be legitimately viewed as a disorder,⁴ and so if the presence of disorder were a sufficient condition for reduced responsibility, then hypomanic individuals should be less responsible on account of their hypomania. However, as Stephen Morse points out, “a business-person with hypomania who is especially energetic and sharp in some stages of his illness” may actually be more rather than less responsible—because of their heightened senses and increased acuity of thought, they may for instance be “hyper-responsible” and “undoubtedly competent to contract in this state [despite their] abnormality” ([25]:40). Thus, the mere fact that someone is suffering from a disorder per se need not entail that their responsibility will necessarily be reduced—i.e. disorder is not sufficient for reduced responsibility.

Second, that disorder is not necessary for reduced responsibility either, is plain when we consider young children—a group whose responsibility is reduced despite the absence of neurological disorder.⁵ We do not typically think that young children (e.g. 5 year olds) are fully responsible for the things that they do. For instance, when a young child runs through a room and accidentally knocks a cup off a table, we do not typically think that they are as blameworthy for doing this as an adult would have been had they done exactly the same thing, and the reason for this is that children do not yet realize that certain behaviour is dangerous—i.e. they lack the wisdom, foresight and the capacity to steer away from certain risky conduct.⁶ Similarly, the very reason why we employ baby sitters to take care of young children when we go out at night, rather than leaving them at home by themselves, is because we know that they lack the capacity to look after themselves properly. Admittedly, recent studies suggest that the human brain takes years to fully mature (e.g. [5, 15]), and so it is plausible that the reason why children fail to have certain capacities is indeed because their brains have not yet fully matured. However, despite the fact that there are undeniably some neurological reasons why children fail to have certain capacities and why they act like they do, it stretches the meaning of the term to claim that this brain immaturity is an instance of some kind of a disorder, and hence that the reason why children are not fully responsible is because they suffer from this disorder—it is simply another stage in the normal process of human development—since the simple reason why we normally claim that children are not fully responsible is not because we suppose that they suffer from some neurological disorder, deficit, malfunction or illness, but simply because their immature brains lack the capacities which a person must have to be a fully responsible agent.⁷ Children’s responsibility is reduced despite the fact that they do not suffer from any disorder, and so disorder is not necessary for reduced responsibility either.

Given that disorder is neither sufficient nor necessary for reduced responsibility—responsibility can plausibly be enhanced by some disorders, and it can also be reduced even in the absence of any disorder—I therefore submit that simply labelling psychopathy as a disorder should not affect our judgments about their responsibility.

Responsibility hinges on capacities

The above discussion hopefully shows that whether someone’s responsibility is reduced or not depends not on whether their neurological condition is a disorder per se, but rather that it depends on how that neurological condition affects the mental capacities which are required for moral agency—i.e. that capacity and not disorder is what determines responsibility.⁸ However this point requires further clarification.

Firstly, what determines whether someone is responsible for their actions (or for the outcomes of those actions) is not just what capacities they actually had, but also whether they are responsible for their lack of those capacities. After all, an intoxicated person will indeed lack the capacity to drive safely, but should they cause a car accident due to their drunken state then we would not want to deduce from the mere fact that they actually lacked the capacity to drive safely on that occasion that they are not responsible for that accident. Similarly, a person who has gambled away all of their money will indeed be unable to repay their debts, but again we would not want to deduce from the mere fact that they now actually lack the capacity to repay their debts, that they are therefore not to blame when they default on their loan. In both of these cases, despite the fact that the said parties lacked their respective capacities, we might still be justified in attributing responsibility to them if they are responsible for the fact that they lacked those capacities.⁹

Secondly, although I have suggested that assessments of responsibility depend in part on what capacities a person has, I have said little about precisely which capacities people must have in order to be responsible agents, and there are two broad reasons for this omission. First, it is because the capacities which a person must have in order to be a responsible agent will differ from context to context: for instance, although a person who accepts the role of being a surf life saver is expected to have one set of capacities (e.g. ability to swim, bravery, etc), a person who accepts the role of being a baby sitter is expected to have a different set of capacities (e.g. patience, knowledge that children can get up to terrible strife without proper supervision); and thus although it might be unreasonable for us to expect the next door neighbour’s daughter to save our child from drowning once the child has fallen into the deep end of our swimming pool (and thus to blame her when she fails to save our drowning child), it would presumably still be reasonable for us to expect her to look after our son properly if that is what she agreed to do and to ensure that he does not accidentally fall into the swimming pool in the first place.¹⁰ Second, although the law has typically assumed that people must reach a certain threshold of rationality before they will be treated as responsible agents—for instance, Stephen Morse argues that “[t]he capacity for rationality is the touchstone of responsibility” within the law ([25]:38)—recent studies suggest that rationality is not the only capacity which a person must have to be a responsible moral agent since our affective/emotional capacities also play a role in securing moral agency.¹¹ Thus, although it is plausible that there might be a certain common core of mental capacities which any person must have in order to be a responsible or competent moral agent—for instance, the capacity to perceive the world as it actually is rather than to suffer from persistent and intractable delusions, to not be too susceptible to irrationality, and to have the right set of affective responses to morally-laden scenarios (e.g. see [20]), as well as perhaps the more general “capacity to recognize and react to moral reasons” [14] which fits under the broader umbrella heading of acting from a mechanism that is responsive to reasons in John Martin Fischer and Mark Ravizza’s sense¹²—beyond these general comments a more detailed answer to the question of what capacities are required for moral responsibility must take into account both the fact that different capacities will be required within different contexts (i.e. different roles may require different sets of mental and other capacities—see note 10 above), and that future neuroscience may reveal a range of capacities that we were not even aware of but which never the less are actually used by competent moral agents within their various respective contexts.

Finally, my claim is not just that our responsibility judgments should not be affected by how we think or talk about the differences between psychopath and normal brains, but it is rather that even if there were some fact of the matter about how these differences ought to be conceptualised or characterized, then this would still make no difference to what we ought to say about the psychopath’s responsibility, because whether someone is responsible for something or not depends on their capacities (though note the aforementioned qualifications), and not on whether their condition is per se a disorder. Irrespective of whether someone actually/really has a malfunction in their brain or not, their responsibility will only be diminished if that malfunction decreases the relevant capacities, and their responsibility will only be enhanced if that malfunction increases the relevant capacities. Thus, differences in the brain have little if any significance for responsibility qua disorder, deficit, malfunction, disease or whatever else, but only in virtue of the effect which they have on those people’s capacities.

Conclusion

In conclusion, Reimer is probably right in her claim that the differences between psychopath and normal brains can be characterized either as biological disorders or as mere differences, or at least that a strong case can be made out in favour of either of these characterizations.¹³ She is also probably right that the way in which we characterize the differences between normal and psychopath brains tends to bias our judgments about their responsibility for criminal misconduct—that when we think of these differences as biological disorders then we are more inclined to excuse them, and that when we think of these differences as mere differences but not as biological disorders then we are more inclined to not excuse them.

However, if this paper’s arguments are right then Reimer’s two observations should be taken not as reasons to conduct further empirical research or conceptual analysis to determine how various neurological conditions—and specifically how the differences between psychopath and normal brains—should be characterized, but as reasons (i) to pay closer attention to how the language that we use to describe various conditions may without our knowing it later bias our assessments of responsibility, (ii) to use neutral language whenever possible to describe the biological bases of various conditions, and importantly (iii) to conduct further empirical research into how various conditions affect our mental capacities, since it is such facts about people’s mental capacities (along with assessments of what capacities different contexts require of us, as well as of what it is reasonable to expect of whom under various circumstances and why) which should ultimately inform our assessments of people’s responsibility.