Running head: PSYCHOPATH LABEL

Effects of the Psychopath Label on Various Judicial Decisions Sarah Pink University of Western Ontario, London, Ontario March 30, 2012 Dr. Peter Hoaken Word Count: 2686

PSYCHOPATH LABEL

The word psychopath makes us think of people like Clifford Olsen, Jeffrey Dahmer and Paul Bernardo; people who we believe should be in prison for the rest of their lives in order to protect society. As a result of the harm done by offenders such as these and the media depictions of psychopaths, it is no wonder why the term psychopath can make us so uneasy and fearful since it is associated with words such as sleazy, dangerous or repugnant (Toch, 1998). But how do decision makers in the criminal justice system such as judges, juries, parole officers and members of parole boards react to a label such as psychopath? Is this a label that should continue to be used to classify offenders or is it doing more harm than good? Due to the potential negative outcomes for those labeled a psychopath, it is important to review the literature in order to make an objective decision as to whether or not this label should continue to be used in sentencing, release, and treatment decisions. Although this label seems to have negative connotations within the general public, it is suspected that those involved in criminal justice decision making will not be overly swayed by such a label in making their decisions. It is hoped that this label, as a result of Psychopath Checklist-Revised (PCL-R) assessments, will not have an undue negative effect on an offender and that those making the decisions will be able to look at the individual characteristics and circumstances when deciding their fate. Psychopathy is a personality disorder characterised by interpersonal, affective, and behavioural characteristics such as callousness, manipulation, lack of empathy and impulsivity (Bennell, Forth & Pozzulo, 2012). Psychopaths are generally instrumental offenders who commit crimes for their own personal gain. Much of the research on psychopathy has been done by Dr. Robert Hare who has been studying the topic for over 35 years and eventually developed the

PSYCHOPATH LABEL Psychopathy Checklist (PCL) which is now being used in a revised version (PCL-R). The checklist was initially created as an assessment tool to diagnose the disorder and is now being used as a part of risk assessments in the justice system. The PCL-R consists of 20 items scored from 0 (not present) to 2 (present) and is generally conducted through the use of an interview and review of offender case files, however the offender interview is not deemed necessary in order to complete the assessment. A total score is calculated by adding up the score to each item with possible scores ranging from 0 to 40. If an individual is given a score of 30 or above, they will be labeled a psychopath. This is potentially problematic since the assessment is somewhat subjective and if the same offender was rated by two different professionals, they may be scored under the 30 point cut off by one but over by the other. It is therefore possible that this arbitrary cut off line means some psychopaths go unlabeled where as others are unfairly labeled. This could happen, especially due to the fact that the PCL-R is comprised of two different factors, one of which is has more to do with antisocial and criminal history and the other has to do with the more psychopathic personality traits such as superficial charm, a grandiose sense of self, pathological lying and lack of remorse or guilt. It is then possible that someone could score very high on the criminal history aspect but only demonstrate a mid score on the personality characteristics factor and cross the 30 point threshold. This label is therefore is not something that should be used lightly seeing as its diagnosis is not infallible and the consequences are very high. A psychopath label has the potential to be very damaging: it could lead to a death sentence in states that still use the death penalty, longer sentences, a justification for the designation of a dangerous offender (DO) label, the move of a juvenile offender to adult court, or a refusal for access to treatment. These consequences are especially important as diagnoses

PSYCHOPATH LABEL obtained from PCL-R scores are increasingly being used in both state and federal death penalty cases and because prosecutors tend to rely heavily on presenting psychopath labels and traits when attempting to negatively sway the jurys perception of the offender (Cunnigham & Reidy, 2002; Costanzo & Peterson, 1994; DeMatteo & Edens, 2006; Edens & Petrila, 2006) The motivation for the current paper came from an example of a man named John Pinkney who was being denied treatment opportunities while incarcerated due to being labeled a psychopath. Pinkney had been convicted for armed robbery and drug dealing and breached his parole conditions by using drugs and alcohol. A PCL-R assessment had been done on Pinkney without his knowledge and without a personal interview through the use of his criminal files and was given a score above 30 deeming him a psychopath. This label subsequently led to the refusal of treatment for Pinkney when he asked to take part in a substance abuse program to overcome what he considered the reason for his crimes and parole violation. Because of the belief that psychopaths are less amenable to treatment and therefore cannot be successfully treated, those deemed a psychopath may not be eligible to take part in treatment (Edens, Guy & Fernandez, 2005). Further, as Pinkey explained, if programming is withheld, you are then not eligible to be transferred to lower security and therefore are set up to fail upon release since there has been no opportunity to gradually work your way out of the system (Hall & Pryor, 2006). This is exactly the kind of biased consequences that are not supposed to result from a score on the PCL-R, a solely diagnostic tool. Many studies have been done to assess the possible negative effects of labelling someone a psychopath. This label was found to have a negative effect on mock jury members in a study done by Edens, Desforges, Fernandez and Palac (2004). The researchers found that introducing a psychopath label to mock jurors was related with more jurors supporting a death sentence.

PSYCHOPATH LABEL Similarly, Lloyd, Clark and Forth (2010) found that when an expert labeled an offender as a psychopath, the offender will be considered as being at a higher risk to violently reoffend (r=.62) and less amenable to treatment (r= -.52). This finding, if replicated in other studies is very important as it shows that the use of a label such as psychopath should not be used in judicial decision making if not completely necessary. Additionally, this label is increasingly being placed on adolescents in the judicial system. This label could be more harmful to an adolescent than an adult as psychopathy is seen as a stable personality disposition and due to the fact that they will spend more time in the judicial system (Monahan & Steadman, 1994). Edens, Skeem, Cruise, and Coffman (2001) caution against labelling an adolescent as a psychopath due to the fact that no long term studies have been conducted to assess the stability of psychopathy from adolescence to adulthood and due to the fact that vast developmental changes are occurring during adolescence. Due to those changes from adolescence to adulthood, we should not make long term decisions based on such a label. Edens et al. (2001) also note that some of the characteristics that are common to the diagnosis of psychopathy are characteristics that are common to adolescents and therefore many youth may be misdiagnosed with the disorder, creating negative long term outcomes such as transfers to adult courts, longer sentences and restricted access to treatment (Hart, Watt, & Vincent, 2002; Edens et al., 2001; Vincent & Hart, 2002; Zinger & Forth, 1998). The American Psychological Association even declared it unethical to apply the label of psychopathy upon an adolescent due to concern over the labels potentially negative effects (APA, 1992). There is however some more positive evidence from Murrie, Cornell, McCoy (2005) that reported findings that a history of antisocial behaviour was more influential than the label alone in judicial decisions regarding adolescents.

PSYCHOPATH LABEL It has been suggested in the research that there are different labelling effects than can influence how a label will be perceived. Rockett, Murrie and Boccaccini (2007) outlined three possible sources of labelling effects: general labelling effects, specific labelling effects and diagnostic criteria effects. In this study the label of a psychopath alone did not seem to have an effect on clinicians ratings of treatment amenability however the psychopathy diagnostic criteria such as glibness and superficial charm did have a negative influence on perceptions of treatment amenability. Clinicians were however more likely to anticipate higher risk for someone with a psychopath label than an antisocial label when there was little antisocial history. This demonstrates a specific labelling effect against the psychopath label when there was little historical information to base a judgment on. Specific labelling effects were also demonstrated when expert testimony described a defendant as psychopathic, psychotic or not mentally disordered and 60%, 30% and 38% respectively supported the death penalty (Edens, Colwell, Desforges & Fernandez, 2005). These results demonstrate a specific labelling effect against the label psychopath but not a general labelling effect against those with a mental disorder since the death sentence conviction of those who were psychotic was much lower than those deemed psychopathic. The discrepancy between the 60% of those endorsing the death penalty for a psychopath and the 38% of those endorsing the death penalty for those with no mental illness does show a labelling effect against those labeled a psychopath. This was thought by the authors to reflect that people rely on simplifying heuristics, especially when faced with complex tasks and that once they categorize an individual, people use stereotypes to guide their subsequent decisions. Therefore, once people hear the term psychopath, they may use stereotypical knowledge such as what they have seen in movies and the media to make decisions about the offenders level of risk or treatment amenability.

PSYCHOPATH LABEL Additionally, there is concern over how a label such as psychopath is perceived and understood by both the different members of the criminal justice system and the general public. Lloyd et al. (2010) made the distinction between how the general public and jury members may differ from criminal justice decision makers in how they perceive psychopaths, the former who think psychopaths are unalterably delinquent and the latter who seem to accept that treatment gains are possible. The distinction between how different professionals react to labels of psychopathy has also been a topic of study. Cox, DeMatteo and Foster (2010) stated that it is possible that the education and experience of legal professionals allows them to avoid being influenced by labels alone yet it is equally possible that the clinicians who diagnose an offender may believe so strongly in their diagnosis that they are more susceptible to labelling effects. Cox et al. (2010) used a 2x2 ANOVA involving a psychopath label opposed to no label and a predicted level of violence as being either low or high. It was found that an offender being at a high risk for violence had more of an effect on participants opinions that an offender would commit a future murder than did the label alone. However, when the offender was labeled a psychopath and had a low risk of violence, participants seemed to rely on the label somewhat more in assessing future risk. The results of this study show that the label may not be the most influential factor but that when there is little other information, such as a low risk of violence, it is more heavily relied on in jurors decision making. This finding is promising since it tells us that the label alone is not producing undue prejudice against an offender and that jurors are looking to more pertinent information such as a risk of violence. A similar effect was found in a study that explored how a mock jury would sentence someone when they were presented with a familiar (psychopath) vs. unfamiliar (paraphilia) label given either by clinical testimony or actuarial testimony and how this information would be

PSYCHOPATH LABEL interpreted if motivated to process the information experientially or rationally (Liberman & Krauss, 2009). In the clinical testimony group, an expert stated their opinion based on an interview with the offender and their clinical knowledge. In the actuarial testimony condition the clinician stated an opinion based on the use of two instruments conducted to predict recidivism. Those who were given a psychopath label and were motivated to process the information experientially were more influenced by the clinical testimony while those who were motivated to process the information rationally were more influenced by the actuarial testimony (Lieberman & Krauss, 2009). In real life settings, situational demands and individual differences determine which system will be activated and therefore how information will be used. In a court setting, the formal nature could promote an enhancement in rational processing leading to a greater reliance on actuarial testimony, however that emotional language, topics or exhibits (i.e. pictures) could promote experiential processing causing greater reliance on clinical testimony (Lieberman, 2002). This finding is problematic because if information is perceived differently based on who is providing it and the unique situational demands and individual differences, we should be careful about what information is allowed to be presented and how. Perhaps it would be beneficial to make jurors aware of such findings in an effort to minimize such effects. While both clinical and actuarial testimony are beneficial in helping to reach a decision about an offenders future, one type of testimony should not be given more weight than others based on situational demands. Consistent with Rockett et al. (2007) and Cox et al. (2010), the greater effect of psychopath traits over a label was shown in Edens, Guy and Fernandez (2003) who found that when psychopathic traits were described, participants were more likely to support the death penalty and no treatment options in prison. This effect was found by the use of fabricated article

PSYCHOPATH LABEL in which psychopathic traits were described in a few sentences or not present, which raised the issue of whether or not more elaborate and detailed information, such as that given in a court proceeding, would have an even greater effect. This is consistent with other results that found that the label was used secondary to an individuals history of antisocial and psychopathic traits in assessing future risk (Cox et al., 2010; Rockett et al., 2007; Edens et al., 2003). Again, diagnostic criteria were found to have a greater influence on judicial decisions than the diagnostic label alone in Murrie, Boccaccini, McCoy and Cornell (2007). The psychopath label specifically had no effect on recommendations for intensive supervision and probation, transfer to adult court, incarceration or posing a risk of violence to others, however it did have a slight positive effect on recommending psychological treatment but only when the label was used in conjunction with psychopathic personality traits. In another study by Murrie, Cornell and McCoy (2005), it was again not the label alone but the defendants history of antisocial behaviour that had an effect on juvenile probation officers formation of hypothetical evaluations. It has consistently been demonstrated that it is not the label of psychopath per se, but the characteristics that are a part of it that has a negative influence on judicial outcomes (Guy & Edens, 2006; Edents et al., 2003; Edens et al., 2005; Murrie et al., 2005; Murrie et al., 2007). Although the results show a general tendency for the use of a psychopath label to somewhat to negatively affect judicial decisions, it has consistently been shown that the personality characteristics and diagnostic criteria are what really resonate with decision makers and are related to harsher sentences and the death penalty. This result is encouraging as it is evidence that decision makers are not swayed by a simple label but are instead looking at the unique characteristics of an offender in order to deem whether or not they should be treated, released or as to what length of sentence they should be given.

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PSYCHOPATH LABEL Edens, J. F., Guy L. S. & Fernandez K. (2003). Psychopathic Traits Predict Attitudes Toward a Juvenile Capital Murderer. Behavioural Sciences and the Law, 21, 807-828. Edens, J. F. & Petrila, J. (2006). Legal and Ethical Issues in the Assessment and Treatment of Psychopathy. In C. J. Patrick (Ed.), Handbook of Psychopathy (pp. 573-588). New York: Guilford. Edens, J. F., Skeem, J. L., Cruise K. R. & Coffman, E. (2001). Assessment of Juvenile Psychopathy and Its Association with Violence: A Critical Review. Behavioural Sciences and Law, 19, 53-80. Guy, L. S. & Edens, J. E. (2006). Gender Differences in Attitudes Toward Psychopathic Sexual Offenders. Behavioural Sciences and the Law, 24, 65-85. Hall, V. (Producer) & Pryor, H. (Producer/Director). (2006). Checklist: A Measure of Evil [Motion Picture]. Canada. (Available from Filmoption International, 26 Cambridge Ave., Toronto, ON, M4K 2L1) Hart, S. D., Watt K. A. & Vincent, G. M. (2002). Commentary on Seagrave and Grisso: Impressions of the State of the Art. Law and Human Behaviour, 26, 241-245. Lieberman, J. D. (2002). Head Over the Heart or Heart Over The Head? CognitiveExperiential Self Theory and Extra-Legal Heuristics in Juror Decision-Making. Journal of AppliedSocial Psychology, 32, 2526-2553. Lieberman, J. D. & Krauss, D. A. (2009). The Effects of labelling, Expert Testimony, and Information Processing Mode on Juror Decisions in SVP Civil Commitment Trials. Journal of Investigative Psychology and Offender Profiling, 6, 25-41. Lloyd, C. D., Clark, H. J. & Forth, A. E. (2010). Psychopathy, Expert Testimony, and Indeterminate Sentences: Exploring the Relationship Between Psychopathy Checklist-

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