This article has been published in The European Conference on Politics, Economics & Law (ECPEL) 2016, Brighton, U.K.

Prof. Gellin has aptly observed that “it is not the humanity within criminal but criminality within human being which needs to be curbed through effective administration of criminal justice” (Blackstone, p.5)


One of the challenges of crime is that any attempt at its understanding demands knowledge across a wide range of disciplines. The causes of crime are one of the important segments of the crime problem that require more discussion, investigation, research and call for more social, governmental and judicial action.

It is important to understand that punishing all type of criminal or deviant acts will not serve any purpose. Crime control can be achieved only by knowing the reason behind the crime and other correlated factors influencing the personality of the offender.

The principle of criminology and penology serves as effective guidelines for formulating the penal policy for such offenders. Both when applied together give a more effective explanation of crime as it explains the reason and causes for the same.

A knowledge of the inter-linkages between various key concepts is helpful in understanding the whole issue holistically. To transform anyone from an evil man to an innocent victim, we must understand the notions of responsibility and excuses. This requires an understanding of the whole institution of punishment and its justification. It is only with an understanding of the nature of the mental illness that one can appreciate concepts such as responsibility, excuse, punishment and evil (Reznek, 1997).

The present research work initiates the discussion on justice by explaining the procedure for sentencing and its practical application with respect to psychopaths. This is followed by a discussion on various opinions on mentally ill offenders. The whole issue is discussed in the backdrop of the sentencing policy evolved in other parts of the world, particularly the therapeutic approach being used in the U.S.A. and U.K.

Psychopaths and their traits

A psychopathy is a form of the mental disease mainly linked to anti-social personality disorder. The study of psychopaths reveals that they are incapable of feeling guilt, remorse or empathy for their actions. They are generally cunning, manipulative and know the difference between right and wrong. They are incapable of normal emotions such as love and generally react without considering the consequences of their actions and show extreme egocentric and narcissistic behaviour.

A narrower meaning of the term ‘psychopathic’ first appeared in the work of Koch(1891) who under the heading ‘Psychopathic Inferiorities’, grouped abnormal behavioural states, which he believed resulted from psychological weaknesses in the brain. Koch's work was succeeded by the writings of Schneider (1923) who established psychopathy as a subclass of abnormal personality and suggested ten different forms of the psychopathic syndrome.

Henderson (1939) contributed to the concept through his threefold subdivision of psychopaths into aggressive, inadequate and creative forms. Later authors such as Cleckley (1964) and McCord and McCord (1964) went even further by narrowing the category to aggressive psychopaths and establishing core criteria for the disorder centred on antisocial behaviours. Undeniably, Cleckley’s publication of The Mask of Sanity(1964) has proved to be one of the most influential sources of the view that the psychopathic personality is a distinct clinical entity.

In order to explain Psychopathy, several checklists were proposed by psychologists and psychiatrists. The most commonly used are called the Psychopathy Checklist-Revised (PCL-R), developed by Dr. Robert Hare and his colleagues. Hare's Psychopathy Checklist (1985) has been able to establish some validity to core diagnostic entities for psychopathy and as a result, these are now the most widely used classifications of the disorder (Coid,1993).

Robert Hare (1999) describes psychopaths as "intraspecies predators who use charm, manipulation, intimidation and violence to control others and to satisfy their own selfish needs. Lacking in conscience and in feelings for others, they cold-bloodedly take what they want and do as they please, violating social norms and expectations without the slightest sense of guilt or regret."

Remarkably, however, they understand from an early age that society expects them to behave in a conscientious manner and therefore they mimic this behaviour when it suits their needs. Dr. Newman (1998), a psychologist who has studied psychopaths, believes that psychopathy is essentially a type of "informational processing deficit" that makes individuals oblivious to the implications of their actions when focused on tasks that promise an instant reward. They are focused on a short-term goal such as sexual pleasure and are indifferent to other cues such as the victim’s fear and become insensitive to emotions entirely.

Psychopaths are diagnosed by their purposeless and irrational antisocial behaviour, lack of conscience and emotional vacuity. They are thrill seekers, literally fearless. Punishment rarely works, because they are impulsive by nature and unafraid of the consequences. Incapable of having meaningful relationships, they view others as fodder for manipulation and exploitation.

It is important to stress that psychopaths commit crime due to disease and not due to any other motive. They are victims, not criminals and for this reason, this paper suggests the need for a therapeutic approach towards psychopaths.

Definition of crime

In view of the recent spurt in the number of criminal acts allegedly committed by psychopaths, it is necessary to discuss the concept of crime, criminal responsibility, punishment and legal and medical issues pertaining to psychopaths, in order to explain the argument for therapeutic approach.

A crime is a violation of the criminal law, which meets with the disapproval of society. According to Sir William Blackstone (Volume IV), ‘A crime is an act that is capable of being followed by criminal proceedings, having one of the types of outcome (punishment) known to follow these proceedings.

This definition clearly has a number of important consequences. First and foremost an act has to be committed before a crime can be said to have occurred as thought without some action there is no crime. Further, the act must be legally forbidden because ‘anti-social’ behaviour in itself is not a crime unless specifically and explicitly prohibited by law (actus reus). Keeping this in mind, in the majority of instances, the individual must also have had criminal intent in committing the act (mens rea), the exception being crimes of strict liability. An interesting discrepancy arises here between what might seem morally wrong, as opposed to ‘wrong’ in the legal sense.

Criminal responsibility

It is worth noting that mentally ill offenders usually stand trial in the same way as the other offenders, but if proper care is taken at the time of sentencing of their mental state then there is a possibility of psychiatric treatment. Not only is it important to determine whether a person is guilty it is equally important to consider his mental state at the time of commitment of the act.

Before conviction, it is necessary to prove -

1. That he carried out an unlawful act (Actus reus) (Intent).

2. That he had a certain guilty state of mind at the time, namely mens rea (Guilty mind).

When a person is charged with an offence, the defence can be made that he is not capable because he did not have a sufficient degree of mens rea. Psychopaths never have mens rea, in fact, their act is due to disease.

Essentiality of mens rea

Mens Rea is an essential element in every crime. There may be no crime of any nature without an evil mind. The concurrence of act and guilty mind constitutes a crime (Srivastava, 2005). Lord Diplock in the case of Swet v. Parsley[1] said, ‘An act does not make a person guilty of a crime unless his mind is so guilty’. It is, however, important to distinguish mens rea from motive. Motive should be taken into consideration at the sentencing stage and not at the time of deciding the question of mens rea.

Many crimes include an element that actual harm must occur, in other words, causation must be proved. For instance, homicide requires a killing, aggravated battery requires serious bodily injury and without this outcome, no crime would have been committed (Srivastava, 2005).

Every crime is legally a wrong, but not every wrong is defined as a crime. Linking crime and morality, Garafalo (1914), an eminent Italian criminologist observed that “crime is an immoral and harmful act that is regarded as criminal by public opinion because it is an injury to the moral sense as possessed by a community” (Paranjape,2009).

Morality is defined as "the principle of right and wrong." As moral creatures, humans deserve praise for good deeds and punishment for bad ones. Punishment may range from a slap on the wrist to death, but the punishment must fit the crime. This is known as lex talionis, or in common jargon, "an eye for an eye"(Rodriguez). Abolitionists often insist that if we argue for lex talion justice we must be prepared to rape rapists, beat sadists, and burn down the houses of arsonists. Certainly, this is the case if lex talion is taken literally, as criminals do deserve severe punishments, but such a literal interpretation is unaccepted to any civilized criminal justice system"(Rodriguez).

Psychiatry and law

Psychiatry and law approach the problem of human behaviour from different philosophical perspectives. Psychiatry purports to be scientific and takes a deterministic position with regard to behaviour. Its view of human nature is expressed in terms of drives and dispositions which, like mechanical forces, operate in accordance with universal laws of causation. Criminal law is, however, a practical, rational, normative science which, although it draws upon theoretical science, its concern is also to pass judgment on human conduct. Their view of human nature asserts the reality of free choice and rejects the thesis that the conduct of normal adults is a mere expression of imperious psychological necessity (Judge leven, 1965).

In Courts of law, Psychiatrists talk of manic-depression, schizophrenia, and psychopathy while lawyers of insanity and diminished responsibility. Psychiatrists make deterministic assumptions and explain behaviour in terms of desire and beliefs and analyze the causes of behaviour, while lawyers assume free will and explain behaviour in terms of desires and beliefs. Psychiatrist analyses the cause of behaviour, while lawyer looks for the reasons. How do these different concepts and theories relate to one another? Is there a way of reconciling the assumption of determinism and free will? Is insanity a moral or legal concept with no relation to psychiatric concepts? Or is insanity a scientific concept, the presence of which is settled by facts? (Reznek, 1997)

Although considerable efforts are being made at various forums, generally due to the lack of information and awareness about psychopaths, they are considered as monsters, not patients. This mindset needs to be changed and they should be treated rationally, i.e. as a patient, not as an offender.

Contemporary forms of punishment

The term punishment is defined as, "pain, suffering, loss, confinement or other penalty inflicted on a person for an offence by the authority to which the offender is subjected to (Julican, 1922-23 ).”Punishment is a social custom and institutions are established to award punishment after following criminal justice process, which insists that the offender must be guilty and the institution must have the authority to punish.

Mainly there are four theories of punishment (Dutta online):-

  1. Deterrent: - This is one of the primitive methods of punishments which believes in the fact that if severe punishments were inflicted on the offender it would deter him from repeating that crime.

  2. Retributive: - This theory underlines the idea of vengeance and revenge rather than that of social welfare and security. They believe in the theory of ‘an eye for an eye and tooth for a tooth’.

  3. Preventive: - Unlike the former theories, this theory aims to prevent the crime rather than avenging it. Looking at punishments from a more humane perspective it rests on the premise that the need of a punishment for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the society is, in turn, trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social element.

  4. Reformative: - The most recent and the most humane of all theories is “Reformatory theory”, based on individual treatment and rehabilitation. This theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crimes. This theory condemns all kinds of corporal punishments.

It is interesting to note that according to the contemporary approach of punishment, the intention is to transform the offenders into a normal citizen through reformation and rehabilitation. The prisons or correctional homes promote vocational training for the inmates to lead a good life in the society. They even release them early on the ground of good conduct. In the cases of mentally ill patients, they are sent to the hospital for treatment rather than prisons for punishing them. But unfortunately in the case of psychopaths mostly punitive approach is taken rather than reformative.

Psychopaths and present judicial system

In this paper, an attempt has been made by discussing some cases; to point out that psychopathy is generally a non-emphasised area in the present judicial system. It is a challenge to criminal law and the criminal justice system in general because psychopaths are very difficult clients. They are very complicated at times because at one point they understand the nature of charges; on the other hand, they do not have any mens rea behind it. They admit the entire criminal act without showing any remorse. However, these entire acts are due to disease but it appears to be an act of a blatant criminal, which eventually punished them severely. They appear to be fit to stand trial but medically they are sick.

Psychopaths may be at a risk of malingering incompetence if they believe that it would be in their interest to be found incompetent, but the risk of malingering is distinguishable from genuine incompetence to stand trial or from any other criminal law criterion related to mental abnormality (Cleckley, 1976).

The nature of the crime committed by psychopaths is very heinous in nature, at first glance, anyone can allege to award severe punishment to them, but after understanding the reason behind the crime it is evident that the crime committed is not due to any mens rea but only under the influence of serious mental disease. As per law, any crime committed by a mentally ill criminal is subject to treatment, not punishment. On the contrary, there are many cases in which severe punishment has been imparted to the psychopaths. Some of the notable cases are:-

  1. Albert Fish (truetv, online)

Albert was a sado-masochist who had a bizarre behaviour of self-flagellation and sticking needles in his body, as well as religious delusions, he declared: "I always had a desire to inflict pain on others and to have others inflict pain on me. I always seemed to enjoy everything that hurt." He believed that God had ordered him to torment and castrate little boys. He actually killed fifteen children and mutilated about a hundred others, in 23 states, but the figures may be much higher. He tortured, decapitated, castrated, drank their blood and ate several parts of his small victims cooking them with delicacies. Albert Fish was executed for his crimes in the electric chair in 1936, totally without shame or remorse

2.Ted Bundy(truetv, online)

Bundy (Theodore Robert Cowell) was a handsome man with an attractive personality, who was initially a Grocery clerk and later a Stocker. He was a necrophile who abused the bodies of his victims until they began to rot. He decapitated at least 12 of his victims and kept some of the severed heads in his apartment for a period of time as mementos. He was given the death penalty twice for those crimes.

3.Elizabeth Bathory (Positivemed, online)

Elizabeth Bathory is notoriously known for the brutal serial killing of hundreds of girls and women. She was a countess who belonged to the Bathory noble family of Hungary during the late 1500s. Atrocities inflicted by her include severe beatings; burning or mutilation of hands, faces, and genitalia; freezing of victims; biting of the flesh of faces and other body parts; surgery on victims; starving of victims; and rape and molestation of victims.

Though unconfirmed, it is said that she killed up to 650 women. She believed that blood from virgin can keep her skin forever young. There were more than 300 witnesses who were willing to testify against her. She was eventually sentenced to home arrest, where she died in 1614.

4. The Nithari killer (Scoopwoop, online)

Surinder Koli was the domestic help of Moninder Singh Pandher, a wealthy businessman from Noida. Initially, in 2006, they were both arrested in connection with the discovery of skulls of missing children in Nithari village on the outskirts of Noida. The case took many twisted turns and there was a huge media furore over what was really going on. There were accusations of rape, cannibalism, pedophilia and even organ trafficking - some of these had substance, while others were mainly rumours. As of now, Surinder Koli has been found guilty of 5 homicides and is on death row while Pandher awaits his fate as there are 11 other unsolved murders under the same investigation.

5. John Wayne Gacy (Reitwiesner, online)

John Wayne Gacy, Jr. was an American serial killer active between 1972 and 1978. Until he was arrested, Gacy raped and murdered at least 33 young men and boys, mostly teenagers. Although some of his victims' bodies were found in the river, he buried 26 of them in the small crawl space underneath the basement of his home and three more elsewhere on his property. He was sentenced to death.

6. Raja Kalinder-The brain eater (Express News Service, online)

Raja Kalinder was a low-level employee at the Central Ordinance Depot (COD) in Naini who was convicted nearly 12 years after Kalinder’s nefarious activities including killing people on the slightest pretext, dismembering their bodies and keeping their skulls in his house came to light in 2000. He admitted to killing at least 11 other people following his arrest. During the course of the investigation, the police found that he killed people almost without reason, or if he got angry. He behaved "as a king", who would "hand out punishment" to anyone who crossed his path. He was sentenced to life imprisonment.

From the cases stated above it is evident that mostly death penalty is given to the psychopath. However, it is undeniable through facts and figures that they are patients, not the criminals. As discussed earlier, it becomes a challenge for the medical and judicial system, whether to penalise them or send them for treatment because psychopaths appear to be fit for trial.

Grounds for Therapeutic approach

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” (UNICCP, 1966).

According to the principle of penology the very idea of punishment is: -

  • to make a criminal understand the consequences of his act,

  • to create a feeling of fear in society in order to stop the repetition of the crime

  • to formulate a feeling of regret and guilt in a particular person for his act,

  • to help an offender to become a better person and to live a better life through a reformative or correctional method.

  • to abolish crime not the criminals.

Psychopaths do not have a feeling of “guilt” and “regret” and hence punishing them is not a solution to the problem. They commit a crime only due to disease and not due to guilty mind. They do not understand the nature of the crime.

As per procedure, almost every offender is subjected to clinical test and psychiatric test in these cases. The problem with psychopaths is that they seem to be fit for trial. Moreover, they do not hide anything and admit their crime with no remorse. This attitude and acceptance of crime commission mislead the case and they are deemed as a gruesome offender with no repentance for their act. Hence, it should be mandatory that such type of behaviour should be immediately taken into account and as a matter of standard procedure, such offenders should essentially be subjected to a medical test involving psycho-analysis for confirming the mental state of such offenders.

Therapeutic approach in U.K. and U.S.A

In U.K. and U.S.A. laws have already been framed for psychopaths in which they not only identify them but also deal with them suitably.

In England and Wales, the law has accepted the medical view that antisocial behaviour may result from a psychological abnormality, distinct from mental illness and that it may be appropriate to divert offenders suffering from this disorder to the mental health system for treatment rather than punishment (Higgins,1995). According to Chiswick (1992), tests with those who have been legally defined as psychopathic indicate that the disorder has a high comorbidity with other clinical syndromes, and this has an important bearing on their treatment.

Therapeutic communities (TCs) were developed after the Second World War. One of the oldest is the Henderson Hospital which has had some success in treating patients with personality disorder, some of which would be regarded as severe. HMP Grendon Underwood (operating since 1962) deals with prisoners who may be regarded as having moderate to severe personality disorders. High-security hospitals Ashworth, Rampton and Broadmoor all have some provision specifically for people with severe personality disorder, who pose a high risk. There are a few specialised prisons or wings which concentrate on treating particular disorders. Grendon Prison, for instance, has a therapeutic community treatment programme for personality disorder and ‘C’ wing in Parkhurst Prison runs a programme for inmates with severe personality problems. Dangerous Severe Personality Disorder (DSPD) individuals are held in both the prison system and health service facilities. The majority of this group is managed by the prison service. The government in U.K. first introduced the term DSPD in a consultation paper, ‘Managing Dangerous People with Severe Personality Disorder’ in 1999, which proposed how to detain and treat a small minority of mentally disordered offenders who pose a significant risk of harm to others and themselves. Specialist services to deal with these people, most of whom are thought to be serious violent and sex offenders, were proposed in the white paper Reforming the Mental Health Act in December 2000.

In U.S.A. various states have enacted laws specific to dealing with psychopaths. Washington State Legislature defined a "Psychopathic personality" and "sexual psychopath” and proposed Sentencing Reform Act of 1981.

California enacted a psychopathic offender law in 1939. In 1995, California and many other states in the US have passed a special statute for psychopaths.

To a certain extent, this is due to the intense demand for medical and legal practitioners as well as some civic groups who are convinced that the commissions of the sex crime are usually, if not always, evidence of a mental disorder which should be treated rather than punished. Approximately 20 states in U.S have statutes that address dangerous sex offenders and sexual psychopaths (Federick and Marchel, 1995).

These statutes permit the state to retain custody of the sexual psychopath, or sexually dangerous person until he or she is cured of the mental illness. In effect, this allows the state to impose an indeterminate and often lifetime, sentence.

In 1939, Minnesota enacted a "psychopathic personality" (PP) law that provides for indefinite civil commitment of dangerous sex offenders to the Department of Human Services for treatment. The State of Minnesota uses civil commitment to institutionalize certain sex offenders in highly secure treatment facilities.


The paper concludes firstly, that psychopaths are complex, dangerous and serious mentally ill criminals/patients. The nature of the crime they commit is mostly heinous, but at the same time, they do not have any mens rea behind that. The driving force behind the crime is their serious mental disease. This has led to the rethinking that Psychiatry and law approach human behaviour from different philosophical perspectives. Psychiatry professes scientific and psychological approach towards the disease, whereas, law stress upon reason, mens rea and actus reus. Every offender has a different state of mind and reason to commit any offence or it may be due to a certain disease.

Secondly, when the competence of the accused is questionable, the Court should order an evaluation, which should be performed by a psychiatrist or psychologist. Hearing should then be held to determine whether the defendant is competent enough to stand a trial. In the case of mentally ill criminals, it is essential to stress upon the disease and accordingly quantum of punishment should be decided.

Thirdly the paper proposes therapeutic approach towards psychopaths rather than punitive because they are victims in their own way. They do not understand the nature of the crime. They do not have any guilt or remorse of their action. They need to be kept in hospital or asylum for the treatment because they are very dangerous. U.S.A and U.K. have set an example for other countries by implementing a therapeutic approach for psychopaths.

The paper additionally tries to highlight the fact that the fundamental problem in the implementation of the therapeutic approach is that most people are not aware of this disease and its implications. To address this issue certain measures have to be taken, for instance, a proper training program must be designed for the police to make them familiar with the psychological aspect of criminal behavior, crime and mental illness. Subjects like ‘Mental Illness and the Criminal Mind’, must be included as a subject for law graduates so that advocates and judges are sensitised towards this problem from the beginning. Lectures and workshops by Psychiatrists, visits to the mental hospital, meeting mentally ill offenders and frequent interaction with doctors dealing with such patients must be made an integral part of legal teaching. Separate wards must be made in the hospitals for psychopaths and if they are serious then proper asylums should be made for their treatment. Provision for separate high-security prisons or Psychiatric Prisons where only mentally ill prisoners can be housed for treatment and management of the psychiatric illnesses will further help this cause. The Correctional home staff and Medical officers of such institutions should be trained in the art of mental illness screening, identification, counselling, and referral services. All stakeholders like NGO’s, parents, schools, etc should also be included in mass awareness programme by involving the media.

In summary, stress should be given to the therapeutic approach than the punitive approach on the humanitarian, medical and legal ground. Justice for psychopaths can only be imparted through therapy and not by inflicting punishment because patients should always be treated not punished.


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