Pure Retributivism and the Problem of Psychopathy: A Preliminary Investigation

AutorThomas Nadelhoffer
CargoCollege of Charleston, Charleston, SC, USA
Páginas156-180
Pure Retributivism and the Problem of
Psychopathy: A Preliminary Investigation*
Retributivismo Puro e o Problema da Psicopatia: Uma
Investigação Preliminar
Thomas Nadelhoffer
College of Charleston, Charleston – SC, USA
All too often these different ways of writing about punishment are treated
as if they are separate disciplines which can proceed independently
of one another. The result is that philosophical discussions are often
far removed from the realities of penal practice, while penology and
the sociology of punishment are frequently crude or evasive in their
handling of complex normative issues…Philosophies of punishment
must therefore be assessed not merely as they appear on the page,
but as they are (or could practicably be) realized in specif‌ic practices.
Pragmatic penology must be subjected to close moral and political
scrutiny as well as to rigorous empirical testing. And sociologies of
punishment must remember that what they are trying to describe,
analyze, and explain is itself a normative practice which must be
understood accordingly.
--R.A. Duff & D. Garland (1, 1994)
* I presented earlier versions of this paper at the following institutions and conferences: The Pontif‌ical Catholic
University of Rio Grande do Sul (Porto Alegre, Brazil), and The Southern Society for the Philosophy and
Psychology (Charleston, SC), Ohio State University (Columbus, OH), Florida State University (Tallahassee,
FL), The University of San Francisco (San Francisco, CA), and The Pontif‌ical Catholic University of Rio de
Janeiro (Rio de Janeiro, Brazil). I would like to thank the audience members for their helpful suggestions–
many of which have been incorporated into the f‌inal draft.
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1. Introduction
The construct of psychopathy has a long and contentious history. The
term “psychopathic inferiority” was f‌irst coined by German psychiatrist
J.L. Koch in 1891 to refer to individuals who had previously been diag-
nosed with “moral insanity”1 or “madness without delirium”2. From the
beginning, “psychopath” was a fairly vague blanket term used to label an
otherwise heterogeneous group of individuals who happened to share a
proneness to violence and other forms of immoral behavior. Consequently,
while some researchers have treated psychopathy as a clinical construct3,
others have suggested that it is really a moral judgment of character rather
than a medical diagnosis4. Given the uncertainties and controversies that
have traditionally surrounded the construct of psychopathy even amongst
clinicians themselves5, it is perhaps unsurprising that there is a long-stand-
ing debate concerning whether individuals with psychopathy are “mad or
bad”–i.e., whether these individuals are mentally ill rather than merely im-
moral6. But there is gathering data from social psychology, cognitive neu-
roscience, and genetics which suggest that psychopaths appear to be mad
after all–indeed, it turns out that badness is an integral part of their partic-
ular form of madness7. These f‌indings raise multiple complex issues–one
of which is how psychopaths ought to be treated from the dual standpoints
of legal philosophy and public policy.
In this paper, I brief‌ly explore the relevance of the gathering data on
psychopathy to but one of several versions of retributivism about punish-
ment – which I will be calling “pure retributivism” – whereby punishing
wrong-doers and giving them their just deserts is inherently or intrinsi-
cally valuable. My goal here is intended to be an exercise in the type of
1 PRICHARD, 1835.
2 PINEL, 1801.
3 CLECKLEY 1941; HARE 1991.
4 KARPMAN 1948; KERNBERG 1975.
5 See ANDRADE, 2008 for a detailed account of the history of the construct of psychopathy.
6 See, e.g., DEIGH, 1995; DUFF, 2010; FINE; KENNETT, 2004; GILLETT, 2010; GLANNON, 1997;
GREENSPAN, 2003; HAJI, 2003; LEVY, 2007a; Id., 2007b; LITTON (forthcoming); MAIBOM, 2005; Id.,
2010; MORSE, 2008; Id., 2010; NADELHOFFER; SINNOTT-ARMSTRONG, 2013; WARD, 2010.
7 For a recent discussion of the status of psychopathy as a mental illness (and the legal relevance of this
status when it comes to the insanity defense) see NADELHOFFER; SINNOTT-ARMSTRONG, 2013.
Pure Retributivism and the Problem of Psychopathy:
A Preliminary Investigation
02_PUC_rev direito 47_fm.indd 157 17/02/16 11:22

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