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

• Pages: 187-217
• Date: 05 December 2007
• Published date: 05 December 2007
• DOI: https://doi.org/10.1016/S1059-4337(07)00008-7
• Author: Richard Weisman

REMORSE AND PSYCHOPATHY AT

THE PENALTY PHASE OF THE

CAPITAL TRIAL – HOW

PSYCHIATRY’S VIEW OF ‘‘MORAL

INSANITY’’ HELPS BUILD THE

CASE FOR DEATH

Richard Weisman

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

Special Issue: Law and Society Reconsidered

Studies in Law, Politics, and Society, Volume 41, 187–217

Copyright r2008 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00008-7

187

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.

If, as one writer has recently suggested, the criminal trial has from its

inception served as a veritable ‘‘theater of contrition’’ (Kadri, 2005, p. 213

et.passim.) in which defendants come before court and community with

humility and remorse, perhaps in no other legal arena is this drama enacted

with greater intensity than in the modern bifurcated American capital trial.

If the first phase of the capital trial addresses the familiar questions of

culpability and intent, the second phase includes as part of its ambit not just

the enumerated aggravating and mitigating factors that are more or less

replicated in each of the states in which capital punishment is permitted but

what is more loosely described as considerations of character. It is in this

second phase of course that the jury that has already decided in favor of

conviction for a capital crime reconvenes and decides between life without

parole or death by execution.

Recent systematic inquiry – the prolific National Capital Jury Project

above all – has amply demonstrated the prime importance to jurors of

whether in their view the offender has demonstrated remorse when they

decide in favor of life or death.

1

One of the major articles from this project

shows that regardless of whether or not remorse is included statutorily as a

mitigating factor or its absence as an aggravating factor, it plays a larger

part in the actual decision-making process than all the other enunciated

factors except prior history of violent crime and predictions of future

dangerousness (Garvey, 1998, pp. 1560–1561) – the later of which I will

argue below is not independent of evaluations of remorse. Anecdotal

evidence as gleaned from the mass media supply even more dramatic

evidence of how evaluations of an offender’s remorsefulness contribute to

the ultimate decision. To cite from just one recent example, newspaper

reports of the jury deliberations in the penalty phase trial following

John Muhammed’s conviction for one of the murders committed during a

series of sniper attacks that resulted in 10 murders quote a number of jurors

as stating that it was his lack of remorse that finally persuaded them to

RICHARD WEISMAN188