The smell of a sociopath

Photo credit: mrbill78636's photostream per Creative Commons license.

Photo credit: mrbill78636’s photostream per Creative Commons license.

I once represented a guy who I will call SS.  He told me things I cannot get out of my head.

SS was a sociopath in the truest sense of the word.  If you want to know what a sociopath is like from a competent clinician’s point of view, read Martha Stout’s The Sociopath Next Door: The Ruthless Versus the Rest of Us, Random House (2005).  Dr. Stout provides this chilling insight into the qualities of a sociopath like SS:

Imagine—if you can—not having a conscience, none at all, no feelings of guilt or remorse no matter what you do, no limiting sense of concern for the well-being of strangers, friends, or even family members. Imagine no struggles with shame, not a single one in your whole life, no matter what kind of selfish, lazy, harmful, or immoral action you had taken. And pretend that the concept of responsibility is unknown to you, except as a burden others seem to accept without question, like gullible fools.

***
[N]ow let us say you are a person who has a proclivity for violence or for seeing violence done. You can simply murder your coworker, or have her murdered—or your boss, or your ex-spouse, or your wealthy lover’s spouse, or anyone else who bothers you. You have to be careful, because if you slip up, you may be caught and punished by the system. But you will never be confronted by your conscience, because you have no conscience. If you decide to kill, the only difficulties will be the external ones. Nothing inside of you will ever protest.

Id. at 1, 4.

Many years ago there was a psychiatrist at the big state mental hospital in Nebraska who was far less capable than Dr. Stout. Although he had trouble passing his boards, he claimed to have one highly sought after ability that even Dr. Stout would have envied. Diagnostically, and after years of dealing with them, this psychiatrist thought he could smell a sociopath. To be clear, he literally thought he could detect a particular odor given off only by a sociopath. I wish I would have had that ability before I was appointed to represent SS.  Unfortunately, I was just young lawyer with undeveloped olfactory powers.

SS was charged with multiple burglaries.  He was also suspected of viciously, and I mean viciously, raping several women as he rummaged and rampaged through their homes.  The evidence from the prosecutor’s open file showed that SS was careful to commit the burglaries and associated rapes at such times and in such ways that the women would have trouble identifying him.  For a moment, let your mind turn violently pornographic. After that, fill in the details for yourself.

SS was in real trouble.  If he was convicted, he would be an habitual criminal. Effectively, that would result in a life sentence. I knew this before I went over to meet him in Big John’s jail.

When we sat down for our first interview, I was surprised. SS was a good-looking man. He was glib and almost charming. SS made a very good first impression. I began to get a sick feeling, however, the more we talked. The specifics of what followed are privileged and I will not disclose what he told me.  It is enough to say that the conversation chilled me in ways I had never imagined possible. Before I left this first interview, I gave SS a legal pad and told him to write me if he thought I needed to know something more. I hurried away.

I saw SS infrequently after that. I only went to the jail every so often to keep him informed of what I was doing. He seemed perfectly content with my work on his behalf.

I did what lawyers typically do in criminal cases.  I investigated the facts, and I researched the law.  It became evident that the prosecutor’s case was largely based upon items that came from the burgled homes.  Those items, together with some very damning hand written notes, were found in SS’s apartment in a small Nebraska town following the execution of a search warrant.  This evidence tied SS to the burglaries in convincing detail.  That said, this was long before DNA testing was possible, so it was highly unlikely that the prosecution could proceed on the rape charges without also proving that SS was guilty of the burglaries.  After all, none of the women could provide a convincing identification.

As I was preparing the motion to suppress the search, I received a letter from SS. It was written on paper torn from the legal pad I had given SS.  Although hand written, the words were in neat and almost pretty cursive script. The letter accused me of providing SS with ineffective assistance of counsel.

What to do? I talked to my law partner and mentor, and he told me I had two choices. I could move to withdraw or I could take the matter head on. My partner and mentor said that the second course of action was fraught with danger, but it was also the most principled thing to do.  And, so I contacted the judge and asked for an ex parte hearing with the judge and SS.

I presented the letter to the judge in the presence of SS.  For each segment of the allegation, I outlined what I had done or not done and why I had pursued that course of action. Because SS had not disclosed in his letter anything about what he had told me during our interview, I could not and did not disclose what he had told me. The judge then asked SS what he thought after hearing my explanation. SS responded in the same almost charming way I had first observed at our initial interview.  He indicated that perhaps he was mistaken and, if so, he apologized to everyone. However, if the judge did not appoint a new lawyer, SS wanted his letter filed as a record of his complaint. The judge ruled that there was no persuasive evidence that I had provided ineffective assistance of counsel. As requested, the judge made the letter a matter of record. SS thanked the judge profusely, and we left. As the deputy sheriff took him away, SS smiled nicely at me but said nothing.

Shortly thereafter, my motion to suppress was heard.  The motion was granted after it became evident that the authorities searched SS’s residence but his true address was different from the one listed in the affidavit and warrant.  In the little town where the warrant was executed, the addresses were very odd.  The authorities had been authorized to search a residence at 2014, but  my client’s correct address was 2014½. The suppression of the evidence was the death knell of the case against SS. Shortly after the judge ruled, the prosecution dismissed the charges and SS was freed.

By that time, I had come to hate SS and I still do. If he is not already doing so now, and although I am an agnostic in religious terms, I fervently pray that he rots in hell.

RGK

14 responses

  1. Judge, is your hatred for SS primarily based upon the “sick feeling” he gave you, or did it arise from his unfounded accusations regarding your representation?

    More broadly, you say that SS was likely guilty in fact of the burglaries (and, I infer, the violent attacks that accompanied them). Does your success at the suppression hearing and the resultant dismissal of the charges have an impact on your distaste for SS?

  2. Dear Strunk(I can’t make out the last character),

    All good questions.

    Setting aside a more sophisticated psychoanalytic answer, people of the lie (sociopaths) who actively prey upon others by committing criminal law violations are evil in every metaphysical sense of that word. The lack of conscience coupled with a criminal act perpetrated on the innocent is what I hate.

    I didn’t so much care about the accusations of IAC. What was frightening about that, however, was the cold and calculating manner in which he played it out. Charming, glib, and utterly manipulative.

    While I would have been happy if SS ended up in prison had I been a regular citizen and not a lawyer, the fact that I did what lawyers do and was successful did not bother me.

    The intent of this post, frankly speaking, is to inject the question of evil into our discussions on this blog and to talk about (1) how lawyers and judges must be able to recognize the true evil of the criminal sociopath and (2) how lawyers and judges must walk a fine and difficult line when they deal with them. Please don’t misunderstand. The number of true sociopaths are, as an empirical matter, quite low (perhaps around 4% of the general population). Of course, you see more of them in the criminal justice system than compared with the general population. But, the vast majority of criminals are not sociopaths. And therein in lies the problem.

    Finally, if you want to read a fascinating book written from the perspective of a sociopath, read “Confessions of a Sociopath.” Here is a very recent review.

    All the best.

    RGK

  3. …inject the question of evil into our discussions on this blog and to talk about (1) how lawyers and judges must be able to recognize the true evil of the criminal sociopath and (2) how lawyers and judges must walk a fine and difficult line when they deal with them.

    I can see how these might apply in the sentencing phase (but see below). How would such skills alter, especially, a defense lawyer’s trial behavior? How would such skills alter a judge’s behavior in any phase of the trial prior to his having to begin his own deliberations on sentencing?

    Come to that, how would such a skill alter anyone’s behavior even in sentencing? The sociopath, after all, will have been convicted of a particular crime, and it’s not illegal to be evil; only certain outcomes of acting on that evil are illegal.

    Eric Hines

  4. Great questions.

    Here are two brief examples of why “evil” (as that word is related to a true sociopath) is relevant to a judge and to a lawyer:

    1. Under the federal law, the judge, when sentencing someone, must take into account the history and characteristics of the defendant in order to provide “just punishment.” I presume you would agree that someone who has no remorse is far more culpable (deserving of greater punishment) than someone who has remorse.

    2. At trial, a defense lawyer, who was aware that his client was a sociopath, should be especially careful about putting his client on the witness stand given the client’s natural propensity to lie and perjure himself.

    All the best.

    RGK

  5. I presume you would agree that someone who has no remorse is far more culpable (deserving of greater punishment) than someone who has remorse.

    No, I wouldn’t agree. I assert that I am a fundamentally honorable man and that I have a conscience. With that going-in assumption, let’s say someone commits an offense against my wife that is serious enough to warrant my killing him–but I do so after some time has passed, and so the killing looks, legally, like premeditated murder and not a carefully thought out preemptive act of defense against the possibility he’ll return and commit that offense again, either against my wife or against me, possiblywith even more serious consequences against either of us.

    I would have no remorse for my own act of killing. But I’ll be punished for my act, not for my lack of remorse. It’s conceivable, in fact, that the circumstances of my killing the other might lead to a lesser sentence.

    Now look at the sociopath who, by his nature, has no remorse for anything. You do get to–need to–consider the sociopath’s history in arriving at his punishment. But he has a history of transgressions (let’s say–if he’s a first time offender, his sociopathic condition might be harder to show–the Arias case comes to mind), and that history provides plenty of material with which to color his sentence for the present crime. There’s no need–and I suggest no justification–to go to his lack of remorse.

    Your second point is something I hadn’t thought of, perhaps because I’m spring-loaded not to put a defendant on the stand–the distortions of the Zimmerman prosecutors are a good reason for that (maybe why you’re the lawyer, and I’m the layman).

    Eric Hines

  6. Interesting. It is worth pointing out, however, that very few crimes are committed that would fit your hypothetical murder.

    But, let’s take your hypothetical straight on. First, I admit that crawling down the “evil” rabbit hole is dangerous for a sentencing judge. Second, and in that same vein,I wonder if “empathy” for those whom the judge sentences is similarly troublesome to you. For example, should I select a sentence for the murderer in your hypothetical in part based upon empathy for the offender and the grief and rage the offender felt when the victim harmed the offender’s wife?

    All the best.

    RGK

  7. I think a judge should be as coldly objective as possible; although it’s that empathy that suggests to me the possibility that murderer Hines, in that specific case, might–might–get a lesser sentence than another murderer who did the same deed in the same manner, but without the prior cause.

    Against that, I think empathy by a judge is entirely appropriate. It’s what keeps you human and not a robot. It’s what lets you temper the legally proper with actual justice. And the conflict is what gives you ulcers and leads you to blow up at the…odd…lawyer.

    I agree that my hypothetical occurs rarely, but it does occur, and it’s useful for its illustration of a principle. Francine Hughes of the burning bed comes to mind. I’m not sure temporary insanity was entirely accurate, but it made a handy vehicle for letting her have justice as opposed to rote sentencing for what could have been taken as premeditated murder. An empathetic judge would have been better suited to dispense justice in sentencing her, rather than a rote application of the sentencing guidelines.

    The answer likely works out to the same thing in most instances, but it’s the corner cases where a judge really comes into his own.

    Eric Hines

  8. Eric,

    Briefly, if you believe that “just punishment”–that is “just deserts”–is an appropriate goal of sentencing, then the mental state of the actor is always appropriate for consideration by the sentencing judge. Indeed, it is the central focus. The two “Es”–evil and empathy–are two sides of the same coin. Over simplified, if you believe in “just deserts,” a sentencing judge should not have empathy for evil. If that is so, you must know what evil looks like.

    Thanks very much.

    RGK

  9. Briefly, if you believe that “just punishment”–that is “just deserts”….

    (Sorry, I haven’t been able to figure out how to keep nesting replies…). That’s just it–I don’t believe that “just punishment” is, of necessity, limited to “just deserts.” There remains the possibility of rehabilitation. That our prison system sucks at rehab shouldn’t mean that judges don’t attempt it in their sentencing (I’m one of those kooks who believes in the possibility of redemption for (nearly) all). This is why I support the concept of community service, with the service geared toward both recompense (a thief should work to replace the stolen stuff, and to repair damage done in the stealing) and rehab (not just “why what you did was wrong” but also, via community service learn, or start to learn, a useful trade) and a form of internal exile (you can’t go back to your old neighborhood for x years–go live somewhere else in a different county/state. Get the miscreant out of the environment where he learned/was under pressure to do what he did). Of course the devil in these are in the details.

    “Just punishment,” to me, is punishment that does justice to all concerned–which justice must include the above concerns for rehab and redemption as well as for outright punishment. Justice needs to consider the cost to the State as society’s representative in carrying out the sentence, the moral cost to society for exacting only a vengeance-oriented punishment, the costs to the miscreant and to the victim (or his survivors), and so on.

    The value of a punishment derives from its purpose and from its effect on the miscreant. Is he more or less likely to repeat his offense as a result? My hypothetical murderer is unlikely to repeat, and that should color the sentence. Might he have already learned his lesson and so the punishment has no likelihood from that perspective to alter his future behavior? Does any of this do justice for the victim/victim’s family?

    It’s why I think sentencing guidelines, while useful, should emphasize the “guide” part of that, and it’s why I’m not that troubled by a judge deviating from them–so long as he explains why (noting that the existence of the reasoned explanation is as important as the reasoning. It’s important that the judge, as well as his broad audience, understand the rationale for his deviation, and if he can’t articulate his rationale, he does not understand it). And it’s at this point in sentencing that empathy should follow cold objectivity–this is where a judge can do justice and not be limited to “just deserts.”

    It’s also at this point where an understanding of good and evil (if not empathy for either) becomes important. Our sociopath, whether he’s evil or just without any sort of remorse (and there will be a difference), may or may not be beyond redemption; he may or may not be susceptible to rehab given our current levels of technology and understanding of the humanity of humans.

    Thus, studying evil, as you want to do in this blog, is important. I think such an endeavor is necessary to understand the nature of evil, and the nature of good, and the differences between them, perhaps most especially in the secular, practical world in which we live. There is little practical value in confining such studies to the world of academe and philosophy. Which may make such a study in a blog like this one (and in the warrior philosopher’s blog I mentioned a while ago) especially important.

    Thanks for the reference, by the way (I’ll elide the liberal (mis)use of terms like “political right” and “right-wing”).

    An aside from that reference: British criminologist Barbara Hudson has argued that just deserts, with its emphasis on treating similar crimes alike, takes no account of structural or economic factors such as poverty. She states that there is no acknowledgment of the inequalities in society and thus no room for mitigation on the grounds that some people have less opportunity to remain law-abiding.

    This strikes more a failure to think through the concept of “just deserts,” for instance in arriving at a sentencing guideline, than a failure of the theory itself. I suggest, for instance, that the poverty-ridden man who steals a loaf of bread commits a different crime than the well-off man who steals a loaf of bread. “Just deserts,” properly applied would apply different punishments to these different crimes. Guidelines–whether in a pure “just deserts” framework, or in some hybrid that allows for rehab, or something else entirely–need to take into account differing circumstances in arriving at their categorization of “crimes.” Which might make guidelines so complex as to be non-existent, and which puts even more of a premium on judicial discretion.

    Eric Hines

  10. Phooey–bad proof reading. The whole final paragraph in my last comment above should not be in italics–it’s my remark about Hudson’s argument.

    Eric Hines

  11. A few second ago, I changed the “nesting” rules on the platform and I hope that will make more comments available for “nesting.”

    RGK

  12. Thank you very much. The study is fascinating.

    If it is true that sociopaths can switch empathy on and off to be charming one moment and do a wicked deed without empathy the next, then there is a strong argument that draconian sentences for sociopaths are fully justified on normative grounds.

    All the best.

    RGK

  13. Pingback: I smell another one « Hercules and the umpire.

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