Without Conscience

by Robert D. Hare

  ENTER “DR. DEATH”

  The destructive potential of diagnostic labels in court takes on awesome reality in the figure of Dr. James Grigson, a Texas psychiatrist known in both the popular and psychological literature as “Dr. Death.” The most serious category of murder in Texas carries only two possible sentences: life imprisonment or death. Following conviction for such a crime, a separate court proceeding is conducted before the jury to determine the sentence. To decide for the death penalty in such a sentencing hearing, the jurors must agree unanimously on three “Special Issues”:

  1. that the murderer “deliberately” sought the death of his victim

  2. that there is “a probability that the defendant will commit criminal acts of violence” in the future

  3. that there was no reasonable “provocation” for the defendant’s murderous conduct

  It is Special Issue No. 2—the question of dangerousness—that usually poses the greatest problem. In an article about Grigson,2 Ron Rosenbaum wrote:

  This is where the Doctor comes in. He’ll take the stand, listen to a recitation of facts about the killing and the killer and then—usually without examining the defendant, without ever setting eyes on him until the day of the trial—tell the jury that, as a matter of medical science, he can assure them the defendant will pose a continuing danger to society as defined by Special Issue No. 2. That’s all it takes, [p. 143]

  The writer went on to recount his harrowing travels with Grigson, who testified in three capital sentencing trials in two days—and whose testimony resulted in a jury decision to execute in all three cases. His description of the doctor on the stand is undoubtedly very worrisome to any conscientious researcher or clinician. Substituting for a detailed examination of the defendant is what’s known in legal parlance as “a hypothetical.” The prosecutor verbally paints a detailed hypothetical picture of an offender drawn from the defendant’s criminal record and other files. Then he asks the doctor, based on that description, “Do you have an opinion within reasonable medical probability as to whether the defendant ... will commit criminal acts of violence that will constitute a continuing threat to society?”

  In the case of Aaron Lee Fuller, convicted of beating an old woman to death and sexually assaulting her corpse in the course of his robbery of her home, Rosenbaum quoted Grigson’s answer to the question of whether a hypothetical killer resembling Fuller, the defendant, would kill again:

  “What is your opinion, please, sir?”

  “That absolutely there is no question, no doubt whatsoever, that the individual you described, that has been involved in repeated escalating behavior of violence, will commit acts of violence in the future, and represents a very serious threat to any society which he finds himself in.”

  “Do you mean he will be a threat in any society, even the prison society?”

  “Absolutely, yes, sir. He will do the same thing there that he will do outside.” [p. 166]

  And that was it, remarked Rosenbaum. All the “medical,” “scientific” testimony the jury needed—in any case all they’d get—to justify a judgment that Aaron Lee Fuller was too dangerous to live, beyond hope of redemption, and should be put to death.

  Grigson described a defendant as a “severe sociopath” when he gave a positive response to a particular “hypothetical.” However, it is apparent that the term is a synonym for psychopathy as described in this book.

  In an article on the ethics of predicting dangerousness,3 Charles Ewing noted that Grigson alone testified in this manner in more than seventy capital sentencing hearings, sixty-nine of which resulted in death sentences. He went on to point out that Grigson “is not unique,” that juries base their decisions on expert testimony of this kind all across the country.

  The United States Supreme Court has upheld as admissible expert testimony by psychiatrists such as Grigson on the condition that the expert state the prediction in language that indicates that it represents his or her opinion only. The adversarial nature of the trial system allows such an opinion to be challenged by other experts. But some experts are a great deal more convincing than others. Rosenbaum noted that Grigson, as one of the more flamboyant expert testifiers, has the charismatic power to override any obstacle in the way of convincing a jury that he is right.

  Grigson’s approach to expert witnessing is unusual, to say the least. Proper diagnostic procedure, as defined by the standards of practice of psychological and psychiatric associations, requires a careful examination and testing of the individual and adherence to widely accepted, reliable diagnostic criteria.

  A FORENSIC PSYCHIATRIST in a southern state recently told me that he was able to argue successfully in court that his client, whom he had diagnosed as a psychopath, was not responsible for a murder because “your research shows that psychopaths suffer from organic brain damage.” It soon became clear that he was referring to a recently published neuropsychological study in which we actually concluded that psychopaths did not suffer from organic brain damage, as measured by standard tests. His submission to the court on behalf of his client was based on an erroneous reading of our study.

  The psychiatrist’s mistake was a lifesaver for his client: He avoided the death penalty.

  In my view, not only are Grigson’s diagnostic procedures and the facile conclusions he draws objectionable on scientific and clinical grounds, but they reflect an odd belief in his own infallibility as a judge of character. Even under the most ideal conditions, with access to high-quality information and using strict diagnostic criteria, psychiatric diagnosis and predictability are not error-free. When a diagnosis has profound implications not only for the treatment but the very life of an individual, we must make certain that it is accurate within acceptable limits. We must also be aware of the fact that even if perfect diagnoses were possible (and they are not), their ability to accurately predict recidivism or violence is limited, simply because the variables that constitute a diagnosis represent only a fraction of the individual, social, and environmental factors that determine antisocial behavior. Nevertheless, there is ample evidence that a careful diagnosis of psychopathy, based on the Psychopathy Checklist, greatly reduces the risks associated with decisions in the criminal justice system. Properly used, it can help to differentiate those offenders who pose little risk to society from those who are at high risk for recidivism or violence.

  A TOOL IS ONLY

  AS GOOD AS ITS USER

  The Psychopathy Checklist serves a vital function as a descriptive and predictive tool, and clinicians have been quick to adopt it for a variety of purposes. However, having a tool and using it properly are two separate things. The following scenario dramatically illustrates the dangers of failing to use proper procedure in applying this diagnostic tool.

  Dr. J, a forensic psychiatrist, well known as an expert witness for the prosecution, testified during a sentencing hearing that, in his opinion, a convicted criminal with several prior convictions for violent offenses presented a continuing danger to society. This opinion was based on the man’s criminal record and on Dr. J’s determination that he was a psychopath, as defined by the Psychopathy Checklist, and therefore unlikely to change his ways. Dr. J’s report and testimony were important factors in the prosecution’s attempt to have the man declared a dangerous offender and sentenced to an indefinite prison term.

  A junior member of a prestigious law firm represented the offender in the sentencing hearing, a decidedly unenviable task given the formidable reputation of Dr. J. As it happens, the lawyer knew a former student of mine, who brought the case to my attention and showed me a copy of the report Dr. J had submitted to the court. I had some reservations about the report, and the lawyer then asked if it would be possible to obtain independent assessments of the offender. Two of my associates, both highly experienced in the use of the Psychopathy Checklist, administered the scale to the offender. Each concluded that he was not a psychopath.

  I explained to the lawyer, and subsequently to the court
, the procedures for administering and scoring the Psychopathy Checklist. The lawyer then proceeded to examine Dr. J on his use of the Psychopathy Checklist, and he soon established that the psychiatrist in fact had not followed the very specific instructions in the manual. Instead, he had used the checklist as a sort of framework to form his professional opinion and to tap the extensive scientific literature that was then available. (This is not an uncommon practice for clinicians; that is, they often use formal diagnostic criteria only as guidelines for forming opinions based on their own clinical experience.) The judge rejected Dr. J’s diagnosis of psychopathy and turned down the prosecution’s bid to have the offender sentenced to an indefinite term in prison.

  The ethical problems addressed in this chapter stem from two sources: the lack of scientifically sound procedures and questionable professional practice. Diagnoses yield sticky labels; faulty predictions based on inaccurate diagnoses can result in confusion and disaster. The antidote to the problem, the preventive against disaster, lies in the careful use of procedures derived from solid scientific research. Anything less is unacceptable.

  Chapter 12

  Can Anything Be Done?

  Dear Ann Landers: I am writing this letter on behalf of my sister who is the stepmother of a 22-year-old high school dropout. I’ll call him “Denny.” The boy’s father was divorced from his first wife when Denny was an infant. He has been married to my sister for seven years.

  My sister has spent thousands of dollars on the boy, including $10,000 for a military boarding school, from which he was dismissed for cheating, lying and stealing. She has hired tutors to help him with his schoolwork, taken him to three psychologists who told her he was full of hostility, and had him examined by doctors who ruled out physical problems.

  Denny has lived with my sister and her husband, with his grandmother, and with his own mother. He is now living with an aunt. He does not work, does not pay rent and is happy to be supported by anyone who is willing.

  My sister and brother-in-law have found him jobs which he cannot seem to keep. They have supported his interest in sports without overindulging him, and now they are out of ideas.

  Denny does have some good qualities. He does not drink or take drugs. However, he has been cruel to my sister’s dogs and horses. He has been seen kicking and hitting them.

  How can this boy be motivated? We fear he will turn to a life of crime unless something is done.

  Up Against It in Virginia

  Dear Virginia: Why should a 22-year-old work when he can live rent-free and be supported by relatives? Obviously, Denny has been spoiled rotten.

  He is an angry, disturbed young man whose life is going to be a litany of trouble unless he is willing to go for therapy and come to terms with himself. It will take a lot of hard work but the rewards will be worth it. The next thing he should do is get his high school diploma.

  Show him this column and tell him if he’d like to write, I’d be happy to hear from him.

  —Ann Landers, Press Democrat, January 8, 1991

  I don’t know if “Up Against It in Virginia’s” sister has a psychopathic “boy” on her hands. But if she does, it would be difficult to find a more characteristic response by a layperson in our society: Quit indulging him and send him for therapy. You might even urge him to write to Ann Landers.

  It’s a well-meaning approach and one that most people with the financial resources are inclined to take. But where the person in question meets the criteria for psychopathy, it is an approach doomed to failure unless the circumstances and the therapist—and the patient—are very unusual indeed.

  More than twenty years ago, in a book directed at psychologists and psychiatrists, I wrote this:

  [With] few exceptions, the traditional forms of psychotherapy, including psychoanalysis, group therapy, client-centered therapy, and psychodrama, have proved ineffective in the treatment of psychopathy. Nor have the biological therapies, including psychosurgery, electroshock therapy, and the use of various drugs, fared much better.1

  At this writing, in early 1993, the situation with regard to treatment remains essentially the same as it has always been. Indeed, many writers on the subject have commented that the shortest chapter in any book on psychopathy should be the one on treatment. A one-sentence conclusion such as, “No effective treatment has been found,” or, “Nothing works,” is the common wrap-up to scholarly reviews of the literature.

  However, with our social institutions threatened by soaring crime rates and our legal, mental health, and criminal justice systems overburdened to the point of paralysis, it is essential that we continue the quest for methods to reduce the enormous impact that psychopaths have on society.

  CLINICIANS OFTEN DESCRIBE psychopaths as individuals whose powerful psychological defense mechanisms effectively squelch anxiety and fear. Laboratory research supports this view and suggests that there may be a biological basis to their ability to cope with stress. This may sound as if psychopaths are to be envied. However, the downside is that the boundary between fearless and foolhardy is fuzzy: Psychopaths are always getting into trouble, in large part because their behavior is not motivated by anxiety or guided by cues that warn of danger. Like individuals who wear dark sunglasses indoors, they look “cool” but they miss much of what goes on around them.

  Some particularly gruesome examples of the ability to remain cool in what should be an extremely fearful situation have recently come to light. Jeffrey Dahmer, the Milwaukee man who committed unspeakable crimes, including serial murder, mutilation, and cannibalism, calmly and deliberately convinced police that a naked and bleeding teenager who had escaped from his apartment was actually an adult lover who had been with Dahmer by consent. Dahmer’s story was that the two were merely involved in a lover’s spat, and the police left, apparently reassured, with the boy stilt in Dahmer’s hands. Dahmer murdered the boy soon after they left. During his trial, in which he pleaded guilty but insane to fifteen murders (the jury found him sane), evidence of other close calls came to light. For example, an Associated Press report (February 11, 1992) described an incident in which Dahmer was stopped by police while he was driving the body of his first victim to the dump. When an officer pointed his flashlight at a plastic bag containing the body, Dahmer calmly said he was upset about his parents’ divorce and was taking a late-night drive when he decided to take some trash to the dump. He was allowed to drive away.

  WHY NOTHING SEEMS

  TO WORK

  A basic assumption of psychotherapy is that the patient needs and wants help for distressing or painful psychological and emotional problems: anxiety, depression, poor self-esteem, shyness, obsessive thoughts, compulsive behaviors, to name but a few. Successful therapy also requires that the patient actively participate with the therapist in the search for relief of his or her symptoms. In short, the patient must recognize that there is a problem and must want to do something about it.

  And here is the crux of the issue: Psychopaths don’t feel they have psychological or emotional problems, and they see no reason to change their behavior to conform to societal standards with which they do not agree.

  To elaborate, psychopaths are generally well satisfied with themselves and with their inner landscape, bleak as it may seem to outside observers. They see nothing wrong with themselves, experience little personal distress, and find their behavior rational, rewarding, and satisfying; they never look back with regret or forward with concern. They perceive themselves as superior beings in a hostile, dog-eat-dog world in which others are competitors for power and resources. Psychopaths feel it is legitimate to manipulate and deceive others in order to obtain their “rights,” and their social interactions are planned to outmaneuver the malevolence they see in others. Given these attitudes, it is not surprising that the purpose of most psychotherapeutic approaches is lost on psychopaths.

  There are other reasons why psychopaths are such poor candidates for therapy. Consider the following:

  • Psychopat
hs are not “fragile” individuals. What they think and do are extensions of a rock-solid personality structure that is extremely resistant to outside influence. By the time they enter a formal treatment program their attitudes and behavioral patterns have become well-entrenched, difficult to budge even under the best of circumstances.

  • Many psychopaths are protected from the consequences of their actions by well-meaning family members or friends; their behavior remains relatively unchecked and unpunished. Others are skilled enough to weave their way through life without too much personal inconvenience. And even those who are caught and punished for their transgressions typically blame the system, others, fate—anything but themselves—for their predicament. Many simply enjoy their way of life.

  • Unlike other individuals, psychopaths do not seek help on their own. Instead, they are pushed into therapy by a desperate family, or they enter treatment because of a court order or as a prelude to applying for parole.

  • Once in therapy they typically do little more than go through the motions. They are incapable of the emotional intimacy and deep searching for which most therapies strive. The interpersonal relations crucial to success have no intrinsic value to the psychopath.

  Here’s a psychiatrist’s dispirited description of psychopaths—whom he refers to as sociopaths—as patients:

  ... sociopaths have no desire for change, consider insights [to be] excuses, have no concept of the future, resent all authorities, including therapists, view the patient role as pitiful, detest being in a position of inferiority, deem therapy a joke and therapists as objects to be conned, threatened, seduced, or used.2