Remorse and Psychopathy at the Penalty Phase of the Capital Trial – How Psychiatry's View of “Moral Insanity” Helps Build the Case for Death

Abstract

This chapter documents how the shift in psychiatric representation from the “morally insane” perpetrator of the 19th century to the modern psychopath or person with anti-social personality disorder involves a recasting of the offender from someone afflicted with an illness whose criminal misconduct is merely a symptom of their disorder to someone whose criminal misconduct is perceived as an expression of their true character. Drawing upon recent case law, the article then shows how prosecutors deploy this modern psychiatric reconfiguring during the penalty phase of the US capital trial to persuade jurors to decide in favor of death over life without parole. Central to the building of this narrative is the reframing of the offenders’ silences as well as what are taken as their unconvincing attempts to show remorse as evidence of a pathology whose primary manifestation is the incapacity to feel or experience moral emotions. Applying but also modifying Harold Garfinkel's work on degradation ceremonies, the chapter shows how the pathologizing of the offender's lack of remorse involves a rite of passage in which he or she is symbolically demoted from someone worthy of life in spite of their grievous crime to someone for whom death is the only appropriate penalty.

Citation

Weisman, R. (2007), "Remorse and Psychopathy at the Penalty Phase of the Capital Trial – How Psychiatry's View of “Moral Insanity” Helps Build the Case for Death", Sarat, A. (Ed.) Special Issue Law and Society Reconsidered (Studies in Law, Politics, and Society, Vol. 41), Emerald Group Publishing Limited, Leeds, pp. 187-217. https://doi.org/10.1016/S1059-4337(07)00008-7