The Right to Be Judged by What You Do, Not Who You Are

Posted in: Criminal Law

The U.S. Constitution guarantees us the right not to be punished for who we are but only for what we do. In Robinson v. California, the Supreme Court invalidated a law that criminalized addicts rather than the use and possession of illicit drugs. Though a central feature of a system that condemns discrimination and thought crime, the concept of “no status offenses” is sometimes controversial. In this column, I will consider the case for occasionally including “who we are” in assigning blame.

The Military’s Former Ban on Gay and Lesbian Members

When I was a judicial clerk, an internal email went around one afternoon from a conservative chambers. The message said that the Solicitor General of the newly inaugurated President Clinton should have asked the Court to review a ruling that struck down the military exclusion of gay men and lesbians. Clerks had not yet internalized the downsides of “reply all,” so the conversation continued to include all approximately forty of us.

I offered my view that if a President believes the military policy violates the Constitution, then he is right to leave in place a ruling that says as much. Can he truly be obligated to defend everything that the Executive branch does, even if it is plainly illegal? One of the O’Connor clerks chimed in at this point to express his agreement.

Emboldened by the growing consensus, I continued that the existing military policy was unconstitutional discrimination on the merits. The clerk with whom I was now “debating” replied that the policy in question was valid because it excluded people based on their actions rather than on their status. At the time, defenders of sexual orientation discrimination regularly made the argument that the government may not discriminate on the basis of sexual orientation (or “preference,” as some still said). But merely prohibiting particular conduct (same-sex relations) to the entire population, gay and straight, was not discrimination. Contemplating a similar claim, Anatoly France said that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

But in the case of the military policy that preceded “Don’t Ask, Don’t Tell,” it appeared that status was as important as conduct. A person could be gay for purposes of the military ban without having ever slept with anyone of the same sex. Desire was enough. In its own homophobic way, the policy thus appreciated something about the meaning of gay identity, a matter that goes beyond particular sexual acts. The policy made a point of targeting identity.

Narcissistic Personality Disorder

The issue of conduct versus status has been on my mind because our President appears to have a personality disorder that on many occasions seems to undermine or eliminate his capacity to act rationally. A personality disorder is a status rather than a particular action or set of actions. But as with other statuses, narcissistic personality disorder (NPD) has predictive or at least explanatory power in the case of Donald Trump. His unwillingness to offer condolences to Americans who have lost family members to COVID-19 or even to acknowledge COVID-19’s death toll in the U.S. because he takes it personally exemplifies a personality disorder. Demonstrating the breathtaking grandiosity that characterizes NPD, the President, at the Republican convention, offered, “I say very modestly that I have done more for the African American community than any President since Abraham Lincoln, our first Republican President.”

Clinical narcissism is one of the dreaded “Cluster B” personality disorders, a group that also includes psychopathic (or sociopathic), borderline, and histrionic as well. Like the psychopath, the narcissist experiences either shallow or no emotional empathy for others, though he might pretend that he does. Unlike the psychopath, however, the narcissist is fixated on what people think of him and may be unable to detect the circumstances under which such a fixation could itself subject him to public ridicule. Satisfying this criterion was Trump’s statement, in another speech celebrating the new unemployment numbers of early June, “[h]opefully, George [Floyd] is looking down right now and saying this is a great thing that’s happening for our country. This is a great day for him, it’s a great day for everybody. This is a great day for everybody. This is a great, great day in terms of equality.” George Floyd was an African American man who died in police custody under circumstances suggesting the use of excessive force. By contrast to a narcissist, a psychopath would likely understand that “empaths” (a pc term for people who are not psychopaths/sociopaths) would heap ridicule on Trump for a speech like this.

Psychopaths-Sociopaths (Potayto/Potahto)

Though narcissists are interesting in their own right, especially with Trump in the White House, I have a special place in my heart for psychopaths. To consider the difference between a “neurotypical” (another pc word for non-psychopathic) and a psychopath is to appreciate members of what can seem like two different species. One of the species, moreover, is capable of convincingly disguising itself as the other and is most interested, in its relations, in exerting power and dominance over those with whom it interacts. In a study, subjects found psychopaths’ counterfeit displays of emotion more authentic than those of non-psychopaths. A psychopath might describe himself as “Normal 2.0.”

Among the various books I have read about psychopaths, the most brazen by far was Confessions of a Sociopath, by M.E. Thomas.

Through her style and substance, the author of Confessions makes a compelling case for the proposition that she is indeed a psychopath. She appears to lack a conscience, so she never feels guilt or remorse about anything. She is a pathological liar and highly impulsive. The author feels very tempted, for instance, to kill someone who told her not to walk up the stairs of an out-of-order escalator. She says she came close to murdering the man. She even followed him to a secluded location where witnesses would be scarce. Thomas ultimately did not take his life (according to her story) because she enjoys being a law professor (yes, you read that correctly) and prefers not to throw everything away to satisfy a momentary desire. Nothing else, however, would appear to stop her from murdering an innocent man.

What gives her pleasure? As she explains it, “I have to have a way to blow off steam. So I ruin people. It’s not illegal, it’s difficult to prove, and I get to flex my power.” Elsewhere she says that “ruining people is my practical reality.”

What exactly does she mean by “ruining people”? She says it is often innocuous. She relates the story of a pretty young woman she met. Thomas, like psychopaths generally, is comfortable sleeping with people almost without regard to their sex. Indeed, sex seems almost secondary to Thomas’s love life; the real point is exercising power over another person. She creates a love triangle between the young woman, a man who seems obviously attracted to Thomas but whom the young woman likes, and Thomas herself. She creates drama by going back and forth between expressing interest in the woman and acting indifferent to her, the latter of which motivates the woman to go to the man, with the game proceeding for many rounds. What distinguishes the psychopath’s “triangulation” from the love triangles that naturally occur sometimes is that the psychopath creates them deliberately.

When neurotypicals cheat on a partner, they attempt to prevent the partner from learning of the betrayal. The psychopath, by contrast, tends to rub the partner’s nose (and those of other interested fans of the psychopath) in the infidelity. Such behavior predictably triggers a great deal of jealousy, which then distorts the target’s own conduct, making her seem unstable. The psychopath can then shake her head and say her target is not right in the head. If her victim calls her out on the behavior, then the psychopath can act perplexed at the accusation, and the reality is “difficult to prove.” Indeed, because empaths almost never intentionally wave their infidelities in their partners’ faces, neurotypicals might find the target’s triangulation accusations implausible. The target might in turn wonder whether she is losing her mind, the predictable response to a form of gaslighting.

The Motive-Hunting of Motiveless Malignity

Why do psychopaths do these things? One theory is that their inability to feel more than a superficial version of most human emotions (such as sadness, love, empathy, guilt, or remorse) generates a profound boredom, and provoking dramatic emotions in others relieves the boredom and thrills the psychopath. This may be why some have called people with this condition “emotion eaters” and parasites. They feed on the victims of their manipulation. And they do tend to believe their manipulations are relatively harmless because they are not (necessarily) illegal. Lacking a conscience, one might look to the law to define the boundaries of right and wrong. Another common trait among psychopaths, and one that Thomas readily acknowledges, is pathological lying. What distinguishes such lying from that of empaths or neurotypicals is that the lying itself is often the goal rather than a mere means to accomplishing some other objective. If you lie because you want to avoid punitive consequences, you are an ordinary liar. If you lie because you find it exciting and fun to play with people’s trust and watch what they do and what they go through when they assume you are telling the truth, you may be pathological.

A shorthand way of characterizing the above is to say that psychopaths are evil. Thomas attempts to show that some psychopaths are productive members of society who do not commit a lot of crime. I cannot say that a law professor who torments or “ruins” people for fun is “productive,” regardless of how intelligent she tells us she is. The emotional thunderstorms that she deliberately provokes in others likely cause a lot of suffering that no one should have to experience. She tells us she has committed no serious crimes. Even if we assume she tells the truth here, it is a far cry from demonstrating that, as she might say, having her in our midst confers a net positive benefit to burden ratio.

Ordinarily, we feel comfortable looking to a person’s evil character in determining how to punish him for committing a crime. We do not think of ourselves as punishing people for who they are rather than for what they have done in such a case. Thomas tells us, however, that when we look to what sort of person we have before us in calculating prison time, we are effectively punishing people for a psychological diagnosis. She says, at one point, “[i]f ever I were sent to jail, I could be denied parole solely based on a psychological profile,” and she finds this state of affairs unjust, harking back to how the psychiatric profession used to describe gay people.

E.M. raises an interesting question about psychopathy and sentencing. Can we consider it aggravating in assessing a person’s past or future conduct? Is that unfair? Have we stopped looking at conduct and begun the invidious process of punishing people for who they are, for their status, like Mr. Robinson in California v. Robinson?

There is something playfully amusing and audacious about Thomas’s asking judges to ignore psychopathy in making assessments of whether to parole a convicted criminal whose dangerousness a judge is charged with assessing. It resembles the case of the young man charged with killing his parents and pleading for mercy on the grounds that he is an orphan.

Is Thomas gaslighting us? Does she believe we might be brought to rule evil immaterial to sentencing and parole? Perhaps the most generous thing we can say of this argument is that Thomas is inadvertently teaching us that there are limits to the conduct/status distinction. When it comes to punishing a convicted criminal, we may legitimately look to status where status is relevant. And the status of having an evil character appears to be highly relevant when it comes to deciding whether and how severely to punish. E.M. Thomas disagrees, but she also admits that she cannot make moral judgments, so her rejection of my criteria for punishment may be less consequential than she thinks.

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