San Diego Law Review


Ken Levy

Document Type



How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are often not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or criminal punishment requires criminal responsibility, which itself requires moral responsibility. I will argue, however, that the virtually universal assumption that just criminal punishment requires moral responsibility—whether or not through the middle term of criminal responsibility—is false; that although psychopaths are not morally responsible, they are still criminally responsible and criminally punishable.

If I am correct, then contrary to many scholars but consistent with the current law, psychopaths are not in fact insane and should therefore continue to be criminally punished for their criminal acts. One drawback of this position is that it will be slightly more difficult for the state to justify preventively detaining psychopaths who have not committed any criminal acts but have signaled in one way or another that they are inclined in this direction. Still, this drawback is hardly a reason to call psychopaths something that they are not—again, insane. Moreover, slightly more difficult does not mean too difficult. Even if dangerous psychopaths are not insane, the state still can, and should, preventively detain them. The reason is that the state is allowed to involuntarily commit people who are both mentally ill and dangerous to themselves or others. And although psychopathy is not currently considered to be a mental illness, no less a form of insanity, I will argue that it should be.