Brian Dugan raped and murdered three people, two of them children. When he came up for sentencing in 2009, neuroscience had reached the point where brain factors could make a difference between a life sentence and the death penalty.
Dugan’s defense attorney invited Dr. Kent Kiehl into the proceedings, hoping that a scan of Dugan’s brain might reveal such abnormality that the jury would consider it as a mitigating factor. It was a potentially pivotal moment, for the case and for the legal system.
Kiehl found an abnormally low density of grey matter in areas that monitor emotion, something he’d seen on the scans of brains of confirmed psychopaths. Dugan also had a high score on the Psychopathy Checklist-Revised (PCL-R). These factors suggested that Dugan might not have chosen as freely as many believed.
“The Dugan jury was highly sensitive to what I said about what we know about psychopathy and what we don’t know,” Kiehl told me. “They did come back with a life sentence.”
However, the judge instructed them to reconsider. They came back with a death sentence. (Dugan’s sentence was commuted to life when Illinois abolished the death penalty in 2011.)
Although Kiehl’s testimony did not have the full impact that he'd hoped in the Dugan case, he is chipping away at the notion that psychopaths are nasty evildoers who freely chose their vile actions. Kiehl is at the forefront of emerging neuroscience research on psychopathy and is considered one of its leading experts.
Kiehl’s work is likely to become a game-changer in the legal system, and could affect many cases, past, present and future.
Mentored by Robert Hare, the creator of the PCL-R, Kiehl is currently a professor of psychology, neuroscience, and law at the University of New Mexico and executive science officer at the nonprofit Mind Research Network in Albuquerque.
Those of us who have followed his work are pleased to see the publication this week of his first book, The Psychopath Whisperer: The Science of Those without Conscience (Crown). In it, he describes his career from his initial interest in psychopaths (thanks to Ted Bundy) to his work today. Along the way, we learn about his experiences interviewing psychopaths in Canadian prisons, his move into innovative programs in the U.S., his design for a portable MRI machine for scanning the brains of inmates, and his involvement in several cases (including juveniles at risk for becoming adult psychopaths).
When Kiehl first arrived for graduate work at the University of British Columbia in Vancouver, Hare sent him to a new prison that housed “the worst of the worst” to screen inmates. He received a quick education as he interviewed offenders who described egregious crimes as easily as providing a grocery list. The early chapters offer details of these interviews.
Among his most memorable was “Shock Richie,” a bold, unpredictable offender who kept everyone guessing. “When he came into the maximum security prison on his first day,” says Kiehl, “he walked around completely naked out in the rain.” Richie told Kiehl that he wanted to send the message that he was capable of anything.
Kiehl developed an interest in the emerging technology of functional magnetic resonance imaging (fMRI). By mapping blood flow during neuronal activation, fMRI provides a way to chart real-time functioning in areas of the brain during specific activities. Thus, the brains of diagnosed psychopaths could be studied as they completed tasks and then compared with the scans of normal people.
A serendipitous event one day revealed to Kiehl the possibility of creating a portable MRI that he could take onto prison grounds. It planted a seed.
He went to Yale for post-graduate work before the Mind Research Network lured him to Albuquerque in 2006. Acquiring grant funding, he had the portable MRI scanner built and he took it to several correctional facilities.
With thousands of scans now completed, it’s safe to say that Kiehl’s team has performed more neurological assessments on psychopaths than anyone in the world.
Many experts in this field believe that Kiehl’s work will soon have a significant impact on the legal system. I often tell my students to expect a sea change, with a lot of ripple effects, when juries start responding. Here’s the reason:
Kiehl suspects that psychopathy arises from a brain deficit and could qualify as a severe mental illness. To his mind, expecting psychopaths to understand and control their actions is like expecting someone with dyslexia to ably read Faulkner.
“I liken it [psychopathy] to an emotional disorder with an adjunctive impulsivity problem,” he says. “With those two facets, in conjunction in the right environment, psychopaths develop an unstable lifestyle that often leads to criminal behavior. That’s why we work with them in a forensic population, because they’re potentially the most costly and self-defeating.”
If they think differently, Kiehl believes, then they must have different brain structures or modes of processing. This idea has support from his research. The psychopathic brain showed differences from a normal brain, especially in the paralimbic system.
“A number of studies show reduced responsivity in those circuits during emotional processing and moral decision-making,” says Kiehl. “Psychopaths have 5 to 10 percent reduced grey matter density in and around the limbic regions.”
If the amygdala fails to function properly, for example, the affected person can fixate on a reward or have a disturbed sense of emotional values. The wrong signals can be a factor in an impaired ability to respond to the threat of punishment, make clear moral judgments, and grasp emotional implications of behavior.
So, it’s possible that psychopaths fail to experience remorse, not because they are “bad” but because their brains process the world differently than normal people. They might be unable to fully appreciate their behavior and would thus have reduced incentive to guide it in prosocial ways. This does not mean that the brain deficit causes them to offend, but like an atrophied muscle, it offers weak deterrence at best.
The idea of placing psychopathy on the list of mitigating conditions is certainly controversial. In fact, it’s a bit scary, and there's plenty of resistance.
Critics point out that brain scan results are not definitive. Within this uncertainty lies the possibility that, even with a brain disorder, psychopaths can appreciate the wrongfulness of their actions. They can still control their behavior and could thus be morally and legally responsible. At the very least, they do understand that there are consequences.
To this notion, Kiehl responds, “I would draw the analogy to the IQ. An individual who suffers from a low IQ is not fully responsible and doesn’t have the same amount of free will as the rest of us. We’re showing that psychopaths have a low emotional IQ, and they are suffering from a similar type of thing.”
In addition to the impact for the courts, Kiehl also hopes that his team’s projects will assist those who work with juveniles at risk for developing psychopathy. Based on what he has seen so far, in terms of focused programs that reduce recidivism, “for every $10,000 invested in treatment, you save $70,000 in the next four-year period. Over the life of that offender, it’s millions of dollars.” He covers this fully in his book.
Kiehl is excited by the scientific advances and grateful for the enormous support he’s received, but he’s aware that there is “still a lot of work to be done.” You finish his book with the sense that if anyone has the drive and energy to effectively challenge centuries-old legal concepts about psychopathy, it is Kent Kiehl. His enthusiasm for his mission is palpable on every page.
The Psychopath Whisperer should be a mandatory text for every criminal law and criminology course.