WiP Session: ‘Psychopathy, cognitive neuroscience and criminal responsibility: problems with focusing on insanity’ – Simon Barnes (Edinburgh)

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A number of commentators have asked whether psychopathic persons might be legally insane, and in recent years empirically-minded academics have asked whether findings in cognitive neuroscience might support this. In this paper I advance three arguments against this particular focus. First, arguments that it may be unreasonable or unfair to hold some psychopathic persons criminally responsible may be blunted by the need, should a defence be successful, for lengthy or indefinite hospital detention. Second, evidence in cognitive neuroscience only suggests rather subtle abnormalities in moral cognition. Third, the dimensional nature of psychopathy means that should, in the future, a subset of psychopaths be identified with severe impairments of moral cognition, these persons would likely occupy only the extreme end of a continuum. It is argued that, while insanity may have a theoretical appeal, any practically useful examination of psychopathy, cognitive neuroscience and criminal responsibility should, for now at least, focus on the possibility of responsibility impairments falling short of insanity.