The criminalisation of corporate psychopaths: a holistic inquiry

ABSTRACT

The destructive harm caused by corporate psychopaths has become an area of considerable interest to medical professionals, lawyers and philosophers. This paper analyses contemporary research forwarded by these distinct groups in order to determine if, in light of current scientific knowledge on this mental disorder, corporate psychopaths can be held fully responsible for their crimes, and if so, on what basis? In combining the often-disparate conclusions reached by the above groups in relation to the criminalisation of corporate psychopaths, this paper makes a significant contribution to the field by presenting novel methods of holding corporate psychopaths morally culpable for their crimes, as previous research of this kind has focused on clinical psychopaths, who tend to be involved in violent offences.

KEYWORDS:

• Corporate psychopath
• criminalisation
• moral culpability
• neuroscience and law
• white-collar crime

Introduction

Psychopathy, as a phenomenon, has captured the interest of scientific researchers, legal professionals and the lay public alike for decades. When psychopaths engage in criminal behaviour, which they often do, the criminal justice system is forced to balance oft-competing ideas on ‘the workings of the brain … the purposes of the criminal law … [and] the ideas of free will and responsibility’ (Kahler v Kansas (2020), 1037). This paper seeks to balance these competing ideas and apply them to a subset of psychopaths: corporate psychopaths. As will be discussed in the section ‘Defining corporate psychopathy’, psychopaths are overrepresented in the corporate world. As a result, it is becoming increasingly apparent that striking the correct balance between these competing ideas is of substantial importance to not only ensure the fair operation of the criminal justice system, but also to society as a whole.

Overall, this paper makes important contributions to the field of corporate psychopathy and the law by presenting novel and effective methods of holding corporate psychopaths responsible for their actions. This is complementary to the swathes of literature on responsibility and psychopathy, which tends to focus on holding clinical psychopaths responsible for heinous, violent crimes, as opposed to subclinical psychopaths engaged in white-collar crime (Clarkson & Darjee, 2022).

Corporate psychopathy is unfortunately sometimes a misunderstood or misapplied term, with some conflating it with related mental disorders, such as sociopathy or narcissism. This issue is further exacerbated by references to the corporation itself as a psychopath (Bakan, 2005; Brueckner, 2013). The focus of this paper is on individual culpability and, as a result, the matter of corporations as psychopaths will be left aside. Attention will be paid to the sentencing of corporate psychopaths, with the primary focus of investigation being the level of moral culpability attached to such offenders. To clarify the specific types of individuals who should fall within the classification of ‘corporate psychopath’, the section ‘Defining corporate psychopathy’ will set out the boundaries of corporate psychopathy based on contemporary scientific understandings of the mental disorder. Thereafter, the section ‘Holding psychopaths criminally responsible’ will ask whether such individuals may be held responsible for their commission of white-collar crimes. Several novel methods of attributing responsibility to corporate psychopaths will be presented: ‘tracing’; ‘wilful blindness’; and ‘role responsibility’. These methods, it will be argued, allow us to fairly hold a corporate psychopath morally responsible for their actions, despite the catastrophic effects this disorder can have on their moral reasoning abilities.

Defining corporate psychopathy

Psychopathy, as a phenomenon, has an almost unique ability to spark the interest of the general public. Whether a work of pure fiction in the form of a psychological thriller movie (Demme, 1991), a gritty novel (Easton Ellis, 1991), a New York Times Best Seller book (Ronson, 2011) or water-cooler gossip about a particularly callous colleague (see King v US Bank National Association (2020); SEC v Lemelson (2021)), people appear to have a certain fascination with labelling individuals as ‘psychopaths’. While this interest in the topic is relatively harmless in most instances, one must be cognisant of the fact that in various contexts, labelling an individual as a psychopath can have a profound effect on them, and their liberty. ‘Among laypersons, the term “psychopath” brings to mind images of intelligent and socially dominant, but also depraved and dangerous individuals, including serial killers and mass murderers’ (Edens, Petrila, & Kelley, 2018, p. 745). The term carries a lot of stigma. This is partly due to the prototypical psychopath being insincere, remorseless, unemotional, selfish, lacking empathy, manipulative and deceitful (Cleckley, 1976; Kreis, Cooke, Michie, Hoff, & Logan, 2012; Broadnax v Davis (2019); Sheehy, Boddy, & Murphy, 2021).

The potential negative effects of these lay beliefs around psychopathy come into sharp relief in the legal sphere. A juror’s perception of psychopathy can be altered by their previous exposure to non-clinical depictions of psychopaths on television, for example. This has even been shown to increase their support for the death penalty for criminal psychopaths (Toney-Smith, Edens, Clark, & Rulseh, 2014). A propensity amongst jurors to mete out harsher sentences to psychopaths has also been shown to occur where white-collar crimes have been committed (Cox, Edens, Rulseh, & Clark, 2016). Thus, ‘the public’s negative perception of psychopaths works against mitigation and may, in fact, lead to additional penalties’ (Thi, 2016, p. 177; Umbach, Berryessa, & Raine, 2015). As the Supreme Court of Florida similarly noted: antisocial personality disorders are traits which ‘most jurors tend to look disfavorably upon’ (Freeman v State (2003), 327). Rather than evoking widespread sympathy or understanding of their mental disorder, psychopaths tend to be viewed insensitively.

Given the public’s understandable tendency to bring ‘viscerally appealing’, but false assumptions surrounding psychopathy, and mental disorders/illnesses more generally, to bear on legal trials (Kachulis, 2017, pp. 362–363; Lyon, 2018, p. 257), professionals working in the field should not repeat the errors of their lay counterparts. However, inaccuracies of language occur in legal cases; using ‘sociopath’ and ‘psychopath’ as synonyms being just one example (Commonwealth v Williams (2013), 748). This problem is compounded due to the panoply of related, and often overlapping, terms in the field, eg,: Narcissist/Machiavellian, successful/unsuccessful psychopath and clinical/subclinical psychopath (Gao & Raine, 2010; Paulhaus, 2014; Paulhaus & Williams, 2002). Given the serious implications that inaccurate labelling can have on a defendant, it seems prudent to briefly set out the parameters of corporate psychopathy at this early juncture in the paper.

Current scientific thinking on psychopathy and diagnosing psychopathy

Scientific research, primarily in the form of brain imaging studies, has long shown that individuals diagnosed with psychopathy have abnormally developed brains in both the prefrontal cortex and the amygdala (Blair, 2005; Ermer, Cope, Calhoun, Nyalakanti, & Kiehl, 2012; Koenigs, Kruepke, & Newman, 2010; Ling & Raine, 2018, pp. 299–300). The impulsivity associated with psychopathy has been linked to frontal lobe deformations (Morgan & Lilienfeld, 2000; Yang, Raine, Narr, Colletti, & Toga, 2009), while the callous, unemotional and antisocial behaviours most associated with psychopathy are thought to be linked to amygdala dysfunction (Ling & Raine, 2018, p. 300). Studies involving the use of fMRIs have demonstrated that, in psychopaths, the areas of the brain involved with empathy are activated to a lesser degree (Meffert, Gazzola, den Boer, Bartels, & Keyser, 2013; Nummenmaa et al., 2021). These abnormalities, in turn, affect the individual’s moral reasoning and emotional decision-making powers (Decety, 2010; Gannon, 2008; Grabenhorst & Rolls, 2011).

While the biological basis for psychopathy is not entirely unchallenged (Hardcastle, 2013; Koenigs et al., 2007, 2012; Wahlund & Kristiansson, 2009), as the scientific problems are ‘fearsomely difficult’ (Morse, 2019, p. 476), psychopathy tests, such as the Hare Psychopathy Checklist-revised (PCL-R) test,¹ are regularly used in courtrooms (DeMatteo & Olver, 2022; Edens, Cox, Smith, DeMatteo, & Sörman, 2015). Traditionally, diagnosis was binary in nature. However, there has been a move towards viewing psychopathy on a spectrum (Miller, Gaughan, & Pryor, 2008; van Dongen, 2020). Despite this more expansive view of psychopathy, research has shown that the vast majority of adults score low on any psychopathy measure, with approximately 1% of adults scoring very highly (Coid et al., 2009). However, the disorder’s prevalence within the prison population is many multiples higher, at up to 20%, according to some accounts (Hare, 1991; Jüriloo et al., 2014). When attention is paid to employment type, the disproportional distribution of this mental disorder also becomes evident. Babiak, Neumann, and Hare (2010) estimate that 3.5% of individuals at senior organisational levels are psychopaths. It is fair to conclude from this that psychopathy displays a notably uneven distribution across social strata.

Corporate psychopaths often are as remorseless, empathy-lacking, callous and amoral as clinical psychopaths, but they lack the severe anti-social behaviours associated with their clinical counterparts. They have greater impulse control (Sheehy et al., 2021). Such individuals are known as ‘subclinical’ psychopaths (Boulter & Boddy, 2021). It has been estimated that this group consists of between 5% and 15% of the general population (LeBreton, Binning, & Adorno, 2006; Salekin, Trobst, & Krioukova, 2001). A ‘corporate psychopath’ is, it is submitted, simply a subclinical psychopath in a corporate setting (Boddy, 2014). It is unsurprising, given the self-interestedness of subclinical psychopaths, that their presence is not evenly distributed across employment sectors: they seek power (Boddy, Taplin, Sheehy, & Murphy, 2022). As a result, there tends to be a disproportional representation of individuals with a high cluster of psychopathic traits in powerful corporate positions, eg, CEOs and lawyers (Boddy, 2011; Caponecchia, Sun, & Wyatt, 2012; Dutton, 2013). As Sheehy et al. (2021, p. 483) note: ‘The evidence of corporate psychopaths in practice reveals that they are particularly ruthless, conscience-free managers who are largely motivated by greed and aggrandisement’. The over-representation of psychopaths in high-ranking corporate positions is worrying, not just for their employees, but for society, because psychopathic traits are positively related to a propensity to commit white-collar crime (Lingnau, Fuchs, & Dehne-Niemann, 2017; van Scotter & De Déa Roglio, 2020).

As discussed, there exists a growing body of scientific evidence that psychopaths exist and are well-positioned to infiltrate corporate boardrooms. As a result, and as others have previously done (Morse & Newsome, 2013; Morse, 2019, pp. 481–482; Diamantis, 2021), this paper will assume that corporate psychopaths exist, and that scientific knowledge will continue to progress to a stage where such individuals are more readily and reliably diagnosed.

With the foregoing in mind, the primary question this paper seeks to address is: when a corporate psychopath commits a crime, can they be fairly held responsible for their actions despite the presence of a diagnosed mental disorder which can have a profound effect on their moral reasoning abilities?

Holding psychopaths criminally responsible

Psychopaths may only represent a small percentage of the general population, but they are significantly overrepresented in the prison population, at approximately 15%–25% (Hare, Hart, & Harpur, 1991; Poythress, Edens, & Lilienfeld, 1998). This figure is broadly consistent between North American and United Kingdom prisons (Hobson & Shines, 1998). Thus, one can conclude that psychopaths have an increased level of contact with the criminal justice system, oftentimes from a young age (Dhingra & Boduszek, 2013; Gretton, Hare, & Catchpole, 2004; Salekin, Leistico, Neumann, DiCicco, & Duros, 2004). Given their increased exposure to the criminal justice system, and high rates of recidivism (Dewey et al., 1996; Kiehl & Hoffman, 2011; Douglas, Vincent, & Edens, 2018; Weaver, Dargis, Kiehl, & Koenigs, 2022; see also AG for the State of Queensland v DXP [2019]; AG for the State of Queensland v OCA [2020]; State of New South Wales v Richardson (No. 2) [2011]), a significant amount of research has been conducted on whether it is morally/legally correct to hold a psychopath criminally responsible. This section will detail some of the primary debates on this problem. Attention will be paid to the potential application of these debates to subclinical, corporate psychopaths.

Moral responsibility and the subclinical psychopath

In discussing the scientific basis for psychopathy above, it was noted that psychopaths have a reduced capacity to engage in moral reasoning, though they are not universally incapable of recognising and responding to moral rules (Aharoni, Sinnott-Armstrong, & Kiehl, 2014; cf Stout, 2005). This impaired moral reasoning has garnered the attention of moral and legal philosophers for quite some time. The following will highlight arguments forwarded in the literature which favour holding psychopaths blameworthy for their actions. Thereafter, the related issues of potential sentence mitigation and moral culpability will be examined in the context of corporate psychopaths.

When assessing a psychopath’s blameworthiness, it is important to recall that the source of the psychopath’s amoral decision making is biologically based, and not self-induced. Therefore, they may be seen as lacking responsibility for their bad behaviour as they ‘could not help but be mistaken’ about the (im)moral quality of their actions (Wolf, 1987, p. 57, 1990; Yaffe, 2018b). It has been suggested that as morally impaired agents, the psychopath’s flouting of a moral norm is not of a type which can properly attract blame (Shoemaker, 2011; Watson, 2004). Others still have argued that psychopaths simply cannot comprehend moral issues to a degree which would allow for blame to fairly attach to them (Mason, 2017; Nelkin, 2015). In sum, psychopaths have been presented as not responsible for most instances of moral transgressions owing to their mental disorder being caused by physical defects in their brains, which in turn fundamentally affected their moral reasoning abilities.

However, it is well-documented that the criminal law routinely holds psychopaths responsible for their actions. Under the M’Naghten rules, for example, the insanity defence is not open to psychopaths because they appear to have the requisite knowledge and understanding (Duff, 1977; Maibom, 2008). They tend to have full reasoning powers, even if their moral assessments are flawed (R v Clarke [1972]). A similar exclusion may be observed with the US Model Penal Code, as a psychopath can ‘appreciate’ the illegality of their actions (US Model Penal Code, §4.01; Morse, 2010, p. 50). The overrepresentation of psychopaths in prison supports the point that the criminal law holds psychopaths responsible for their actions (Hare et al., 1991).

One approach to justifiably holding psychopaths responsible for their criminal actions is as follows: if the psychopath’s immoral actions stem from a lack of motivation to act morally, for example (Yoder & Decety, 2018, p. 288), then they may be held legally responsible for their actions because they have the ability to recognise and respond to (legal) rules (Glannon, 1997; Maibom, 2008; Reidy, Kearns, & DeGue, 2013). According to proponents of this approach, it works even if the psychopathic defendant does not fully appreciate the moral foundations of those rules (Blair, 2007; Fox, Kvaran, & Griffith Fontaine, 2013; Vargas & Nichols, 2007). Levy (2011) has suggested that holding psychopaths criminally responsible in this way upholds public confidence in the legal system because axiomatically bad people are seen to be punished. ‘One would then take punishment to be principally an expressive act which communicates the kinds of behaviour and actions which are impermissible’ (Godman & Jefferson, 2017, p. 136).

While numerous lawyers and mental health professionals have argued in favour of holding psychopaths criminally responsible (Fox et al., 2013; Hare, 1999; Pillsbury, 1992), Morse (2008) has suggested that this orthodoxy is rooted in the fact that legal practice reflects outdated scientific knowledge on the area. Morse (2011) proposes that those with extreme psychopathy, a category which would evidently exclude corporate psychopaths, should be criminally excused, but should, for seemingly consequentialist reasons, nonetheless face some legal repercussions in the form of commitment to a psychiatric facility. This is in contrast to the position held by many lawyers who view psychopathy with suspicion in relation to its exculpatory significance.

Similarly, one of the seminal Australian cases on the sentencing of offenders with mental health disorders and illnesses, R v Verdins, Buckley and Vo (2007), is mute on the specific issue of psychopathy (Freckelton, 2007; Maxwell, 2023; Walvisch, 2010). Though given the broader definitional approach adopted in Verdins, one which captures mental states that fall short of pathology under DSM-5 or ICD-11 (Supreme Court of Victoria, 2017, para. 7.2), the Australian approach is certainly more amenable than the approaches of either the United States, or the United Kingdom (Gee & Ogloff, 2014). A defendant would, however, need to show that their psychopathy ‘directly contributed to the commission of the offences’ (R v Shafik-Eid [2009], [27]), and that there was a causal link between the offending and the offender’s mental impairment (Carroll v The Queen [2011], [20]–[22]; DPP v O’Neil (2015)). Arguably, in the context of corporate crime, this causal link would be relatively easy to establish, as corporate psychopaths tend to be self-interested individuals who get involved in corporate crime in order to advance up the corporate ladder, or out of greed or lust for power.

Even if not purely exculpatory, when it comes to the potential sentencing of psychopathic offenders, post-Verdins courts are willing to reduce the sentence length of mentally impaired offenders based on the reduced need for specific and general deterrence owing to the offender’s reduced moral culpability (Byast v The Queen [2021], [5]; Supreme Court of Victoria, 2017, para. 7.1; DPP v Weidlich [2008], [15]). As Maxwell (2023, p. 4) notes: ‘[u]nderstanding the moral dimension is particularly important for the work of sentencing, in which the assessment of moral culpability plays a central part’. However, reductions in sentence length are not automatic (R v Verdins, Buckley and Vo (2007), [271]), and would not occur where the offender acted rationally, strategically and self-interestedly with full awareness of the risks of detection and potential punishment, for example, where the crime was committed based on purely financial motivations, which is a likely scenario in the context of corporate psychopathy. In such cases, psychopathy would not operate as a basis for a reduction in sentence length (DPP v Kumas [2021], [64]; see also R v Gommers [2005], [34]; R v Hemsley [2004], [33]–[36]).

Turning to the United Kingdom approach, the current UK Sentencing Council Guidelines (2020, Annex A) on mental disorders, unlike the Australian approach, describes ‘psychopathy’ or ‘psychopathic disorder’ as ‘pejorative’ and ‘unscientific’ terms which are to be avoided, as they are not ‘recognised’ diagnoses. Even if it were recognised, the English and Welsh Court of Appeal has stated that ‘mental illness … is not a passport to a medical disposal as many of the psychiatric opinions we have considered in this case appear to presume’ (Vowles and others [2015], [196]; Ashworth & Mackay, 2015; Peay, 2016). Given the absence of effective medical treatment for psychopathy, a hospital order would probably not be a viable option for a United Kingdom court in any instance (UK Sentencing Council, 2020, Annex C). Based on the above, it is reasonable to conclude that courts in Australia, the United States and the United Kingdom view psychopathy somewhat suspiciously, or do not engage with the topic to an appreciable degree. Furthermore, Morse’s previously expounded approach to dealing with psychopathic defendants via hospitalisation seems implausible in practice, at least as things currently stand.

Preventative detention has, however, been discussed as another viable option for dealing with psychopaths in numerous jurisdictions, including the United States, Germany and Australia (Corrado, 2013; Habermeyer & Passow, 2010; Levy, 2011; Williams, 1990). Preventative detention is presented by its advocates as a means of protecting society from these cold-hearted recidivists by physically preventing reoffending through incarceration (Fine & Kennett, 2004; Kiehl & Hoffman, 2011). Preventative detention is not without its critics, and as Robinson (2001, p. 1436) rightly notes, a ‘purely preventative portion’ of a criminal sentence ‘cannot be justified as deserved punishment’ (Clearwater, 2017; Husak, 2011). As preventative detention is primarily discussed as an option for violent and sexual offenders (Calkins Mercado & Ogloff, 2007; Elias, 2009, p. 110; Macken, 2011; Morse, 1996), it seems justifiable to leave this area of discussion aside, as corporate psychopaths do not fit this mould.

To recap, there is an evident tension between how some medical professionals view psychopathy and how it is treated by legislatures and courts. If corporate psychopaths are to be held responsible for their crimes, then a justification is required which respects their particular form of mental disorder. Conflating corporate psychopaths and clinical psychopaths misses the mark entirely. If one accepts that subclinical psychopaths are a distinct group which may consist of, but is not limited to, ‘successful’ corporate psychopaths, then philosophical, legal and scientific arguments on the criminal responsibility of psychopaths can be highly informative, but they should not be unthinkingly applied to the case of the corporate psychopath. Research on clinical psychopaths should inform the debate on the responsibility and moral culpability of corporate psychopaths, but it should not supplant it. Attention in the next section will therefore turn to possible methods of holding a corporate psychopath responsible for their crimes.

On the moral culpability of corporate psychopaths: tracing, wilful blindness and role responsibility

Suppose a corporate executive commits a fraudulent act, and further suppose that if they were professionally evaluated, they would be considered a subclinical psychopath. As previously noted, philosophers and lawyers come to different conclusions in relation to whether a psychopath is responsible for their actions. The criminal law tends to make no allowances for a psychopath’s moral failures (Gonzalez-Tapia, Obsuth, & Heeds, 2017). Corporate psychopaths may also face further preventative detention based on the perceived need to reduce recidivism (DeMatteo & Edens, 2006; Hemphill, Hare, & Wong, 1998; Kiehl & Hoffman, 2011; Weaver et al., 2022; People v Madera (2011)),² though, as noted in the section ‘Holding psychopaths criminally responsible’, the soundness of this approach is highly questionable in the corporate context.

This is a stark contrast of approaches between philosophers and the criminal law, particularly when one considers, as Husak (2016, p. 41) propounds, that criminal law should ‘be based on, conform to, or mirror critical morality’ (Sarch, 2022). Similarly, Chan and Simester (2011, p. 385) state: ‘We don’t blame people for doing good things. We blame them only for doing things that are morally wrong’ (emphasis added).

This section will highlight ways in which corporate psychopaths may be held morally responsible for their crimes. In doing so, this section will build on the previous by assessing the effect a diagnosis of psychopathy can have on a corporate offender’s moral responsibility and the potential this assessment then has for mitigating sentence length/severity. A corporate psychopath’s level of moral culpability will be examined via three means: (i) tracing; (ii) wilful blindness; and (iii) role responsibility.

As discussed in the section ‘Moral responsibility and the subclinical psychopath’, some may view the psychopath’s actions as not blameworthy due to the source of their poor decision-making abilities being biological, rather than being self-induced in nature. However, if one views the criminal act not in isolation, but rather traces back culpability to a previous action which was done knowingly and led to the commission of the crime at a later time, then culpability for the criminal act may be justifiable.

Tracing: under this method, the moral culpability of the corporate psychopath is being assessed by tracing their actions back from the crime committed to a particular previous action (referred to here as a ‘benighting’ act). It will be argued that it is from their knowing participation in this earlier act that moral culpability may be grounded (Smith, 1983). This grounding of moral culpability, it is argued, stands against calls for the exculpation of, or mitigation of sentence length for, corporate psychopaths.

To be held culpable based on the performance of a benighting act, the corporate psychopath must: (i) knowingly engage in the benighting act; and (ii) know that they should not engage in this act (Levy, 2011; Zimmerman, 1997, p. 418). While criterion (i) is relatively straightforward, as it will only apply to actions which a corporate psychopath knowingly performed (Yaffe, 2018b), criterion (ii) warrants a more detailed assessment.

In relation to criterion (ii), what does it mean for a corporate psychopath to know that they should not engage in the benighting act? From an ex ante perspective, risks are often opaque to even the most prudential of individuals. To know that engaging in a particular act may result in a criminal act being committed at a later time can be difficult to determine, particularly as the likelihood of the illegal/immoral consequence materialising becomes less and less probable. To take an example, consider the doctor who fails to call for a routine blood test from a patient presenting with relatively benign symptoms. If they had ordered a blood test, they would have found a treatable illness which, if left untreated, results in death. Even if the actions of the doctor, in not ordering a blood test, fell far below the standards of a reasonable doctor, could we say that they should be found culpable of gross negligence manslaughter? The evidence before the doctor at the time when the patient first presented was minimal and the risk that failing to order a blood test would result in this patient’s death is highly opaque. If we were to hold this doctor responsible for gross negligence manslaughter, there would be a potential ‘mismatch between the culpability and the severity of the offence’ (Greenberg, 2021, p. 504). All this is to say that, in holding a corporate psychopath morally culpable for a crime based on the above tracing method, one must be careful to fully assess the evidence which was available to the psychopath when they performed the benighting act, and not to include evidence which became available at a later date. Evidence, here, relates to what the corporate psychopath knows or believes about their moral reasoning abilities.

In assessing the evidence available to a psychopath when performing the benighting act, three potential scenarios present themselves:

Scenario (a): The corporate psychopath knows that they suffer from this mental disorder, due to a previous diagnosis, for example.

Scenario (b): The corporate psychopath believes that they may make poor moral decisions based on previous experiences. Such experiences could include, but are not limited to, previous criminal prosecutions, or negative commentary from others within the industry.

Scenario (c): The corporate psychopath is entirely and justifiably ignorant of their mental disorder, and to date, they have not received any feedback which would make them suspicious of their moral reasoning abilities.

Scenario (a) presents a strong case in favour of undiminished moral culpability, but is, admittedly, the least likely of the three. Corporate psychopaths are self-interested individuals who are not self-critical in nature (Babiak et al., 2010). Therefore, it seems implausible that many, if any, would voluntarily seek out a formal diagnosis. More likely, individuals falling under scenario (a) are recidivists and were diagnosed during the course of a previous criminal investigation/trial. In such an instance, full moral culpability could be justified on the following basis: they know that their moral reasoning is impaired and nonetheless engage in a benighting act. A benighting act in this instance would consist of engaging in any activity which involves moral reasoning, the results of which could be described as being (im)moral.

For example, a diagnosed psychopath sits down at a board meeting to decide how their company should dispose of its toxic waste. Here, the corporate psychopath knows that making such decisions come with moral consequences. They know that they should not engage in these moral exercises (at least not without independent advice on the matter),³ but they nonetheless decide to knowingly engage in this board meeting and reach a conclusion regarding the disposal of the firm’s hazardous waste. If it transpires that the corporate psychopath subsequently commits a crime involving the illegal disposal of hazardous waste, they may be held responsible. Perhaps they cannot appreciate the immorality of dumping waste in the nearby lake (Ray & Jones, 2011). It is a cheaper alternative, after all, to proper disposal, and cost-cutting boosts their profile within the firm. However, if we trace back to their earlier decision to engage in moral decision making which could have serious consequences, despite knowing of their moral frailty, culpability for their immoral actions may be justified based on this ‘foreknowledge’ (DPP v Arvanitidis [2008], 34; DPP v PS [2023]). It is justified based on their knowing participation in the board meeting (the benighting act), when they knew that they should not do so. Their moral ignorance in relation to the crime of improper disposal of hazardous waste should be of no mitigatory assistance to a corporate psychopath.

Furthermore, unlike the example of the negligent doctor above, the harm ultimately caused by the corporate psychopath’s wrongful participation in the benighting act is a highly foreseeable risk. They run an unacceptable moral risk by participating in the board meeting, and it is this knowing acceptance of risk which links the corporate psychopath’s actions to the wrongful and immoral crime of improper disposal of hazardous waste.

Scenario (b). Here, the corporate psychopath has reason to believe, but does not know, that they suffer from a serious deficiency in moral reasoning. They need not necessarily believe that they are a psychopath, as they may believe that others are simply wrong to make such an assessment of them. The inflated sense of self-worth and poor view of the opinions of others displayed by the prototypical corporate psychopath makes this a highly likely scenario.

Their beliefs, however, are grounded in objective evidence (Husak, 2010, pp. 208–209; R v Da Silva [2006], [16]), such as negative commentary from others, but they turn a blind eye to their potential moral shortcomings (Coffee, 1977; Marcus, 1993; Robbins, 1990; United States v Ferrarini (2000); Roiphe, 2011). While beliefs can fall short of blind-eye knowledge, as beliefs can include ungrounded suspicions (Group Seven v Notable Services [2019], [60]), the United Kingdom’s House of Lords clarified that blind-eye knowledge requires that a deliberate decision be made ‘to avoid obtaining confirmation of facts in whose existence the individual has good reason to believe’ (Manifest Shipping v Uni-Polaris Shipping and Others [2001], [116]). This formulation has been repeatedly cited with approval before the superior courts of England and Wales (see, eg, Natwest Markets v Bilta [2021]; Group Seven v Notable Services [2019], [60]; Michaela Joy Hall v Deepak Bhatia [2022]; see similarly Hon Yen Le v DPP [2007], [23]; Solak v Registrar of Titles [2009], at [32]) and is adopted in this paper.

It is worth remembering that we are talking about holding the corporate psychopath morally responsible for being wilfully blind, and this in turn prevents a corporate psychopath from availing of, inter alia, a mitigated sentence length due to their mentally impaired state. We are ‘tracing’ back from a committed corporate offence to find an earlier moral failing which could justify the corporate psychopath’s current criminal inculpation. While wilful blindness is generally used by the courts as a substitute for ‘knowledge’ for a particular offence, this section is solely focused on fairly attributing moral responsibility based on the tracing method outlined previously. As a result, the justifications for this substitutionary approach to mens rea need not be explored further here (Lanham, 1985; Sarch, 2019).

A corporate psychopath who has been presented with evidence of their poor moral reasoning, but which falls short of a formal diagnosis of psychopathy, may be said to have wilfully shut their eyes to information they had a moral duty to investigate (Smith, 1983, p. 547; Jams 2 v Stubbings (No 3), 2019, [316]). This evidence of poor moral reasoning may have come to light, for example, during previous criminal/civil cases, or via explicit commentary made to them by colleagues or regulators. Had they investigated this further, a formal diagnosis of psychopathy would have been possible, and the businessperson could then, one would hope, opt out of making serious moral decisions at the firm. However, in choosing to deliberately shut their eyes (Tadros, 2002, pp. 240–241; von Hirsch, 1996), the corporate psychopath opens themselves up to moral and (potential) legal condemnation. If the evidence before a corporate psychopath further suggests that it is ‘highly probable’ that they are suffering from psychopathy, then the case in favour of moral responsibility becomes all the clearer (Global-Tech Appliances v SEB 2011, p. 2070; United States v Valle-Valdez (1977), 914; United States v Heredia (2007), 924; US Model Penal Code, §2.02(7)).

We condemn the actions of the drug mule who refrains from looking inside their suitcase, which happens to be filled with illegal drugs, as this action runs an objectively unacceptable risk that illegal drugs will be illegally transported across a border. So too, do we condemn the actions of the corporate psychopath. They ran an unacceptable risk that their future moral judgment would be extremely warped by their mental disorder, and this risk bears no countervailing social utility whatsoever. This risk is run out of self-interestedness and greed alone. This action is morally condemnable as it can have a serious impact on the rights and interests of others (Alexander, Kessler Ferzan, & Morse, 2009; Sarch, 2019, pp. 112–114): rights and interests which the corporate psychopath has incorrectly devalued in favour of their own self-promotion.

As outlined in the section ‘Moral responsibility and the subclinical psychopath’, reductions in sentence length will not occur where the offender acted rationally, strategically and self-interestedly with full awareness of the risks of detection and potential punishment (DPP v Kumas [2021], [64]). This limitation placed on the mitigatory significance of psychopathy, and other mental disorders, to a defendant post-Verdins, supports the above argument from a purely legal standpoint.

To recap, they shut their eyes or ‘refrained from enquiry because [they] suspected the truth but did not want to have [their] suspicions confirmed’ (Westminster City Council v Croyalgrange Westminster City Council v Croyalgrange [1986], 684; R v Crabbe (1985), [421]; Stubbings v Jams 2 (2022), [166]; Williams, 1961, p. 159). As psychopaths have been shown to lack empathy and concern for others, it is highly plausible that many would choose to turn a blind eye to their potential mental shortcomings, rather than seek a formal medical diagnosis and treatment. Studies have shown that even clinical psychopaths may possess moral knowledge on an issue, but they lack the motivation to act on it (Mahmut, Homewood, & Stevenson, 2008; Marsh et al., 2013; Yoder & Decety, 2018). Thus, a corporate psychopath may have the capacity to understand that their moral reasoning may be defective, but they may not be motivated to act upon this information. They are instead motivated to remain wilfully blind to their mental disorder (Husak, 2010, p. 209), all in the pursuit of personal gain, which oftentimes comes at the expense of others and society. These vices are a strong grounding point for moral condemnation. This is because the corporate psychopath, in remaining blind, has ‘an objectionable valuation of the importance of [their] own as compared to other people’s welfare’ (Sher, 2009, p. 28; Yaffe, 2018a, p. 26).

Scenario (c). In this scenario, the corporate psychopath is entirely, and justifiably, ignorant of their defective moral reasoning skills. They have no evidence on which to base a reasonable suspicion that they may have such shortcomings. The previously discussed approaches to justifying the moral opprobrium attached to criminal responsibility therefore do not work as well here. There are, however, multiple ways of thinking about responsibility in the criminal law (Vincent, 2010, p. 81), and when one considers a corporate psychopath’s responsibility as being linked to their role within the firm, as an executive for example, then full moral culpability for their actions under scenario (c) becomes a possibility. It is argued that ‘role responsibility’ offers a firm grounding for holding a corporate psychopath responsible for their actions.

Corporate compliance programs are not a new phenomenon (Huff, 1996; McKendall, DeMarr, & Jones-Rikkers, 2002; Weber & Wasieleski, 2013), and individuals within a firm are expected to engage with these programs on various levels depending on their role. A C-suite executive may be expected to be part of the team which develops, implements and enforces the program. A lower-level employee will, at a minimum, be expected to comply with the program, and so on. One may argue that businesspersons have a duty to refrain from unethical or illegal practices, as such activities can have seriously harmful consequences for individuals, the environment, relevant markets and the firm itself. This general duty is further bolstered where a corporate compliance program is in place.

This is a strong moral duty, even in the case of the corporate psychopath. This position is based on their ability to acquire the capacity to refrain from making unethical or illegal decisions in their role. Businesspeople are conscious of the need to refrain from illegal/unethical activities. Even if the corporate psychopath in scenario (c) is unaware of their defective reasoning skills, they are aware of the expectation that they comply with the governing law and the firm’s compliance programmes. A failure to acquire such capacity should not excuse the psychopath’s illegal or immoral actions (Vincent, 2010, p. 94).

What, then, does acquiring capacity look like in this scenario? Clearly the corporate psychopath cannot ‘learn’ to make ethical decisions; their brains simply do not allow for this. They do not have the capacity to fully engage in moral reasoning. Their brains however allow them to recognise the potential harm their actions may cause, and the more serious the crime, the more we should expect the psychopath to resist making these decisions. Greenspan (2016, p. 275) presents this account in the following terms: ‘the threshold for counting someone as blameworthy is set according to the moral seriousness of the act in question’.

A psychopath may very well know that their particular choice of action is illegal, or they ought to do so, but what they do not know is that their actions are morally wrongful (Fine & Kennett, 2004). If moral and practical reasoning is seen as being ‘interconnected’ (Gannon, 2008, p. 162), then the ignorant corporate psychopath in scenario (c) may be said to have the capacity to at least engage in practical reasoning. They can therefore choose to engage in risky behaviour, or not (Vincent, 2010, p. 84).

Any businessperson, psychopath or otherwise, should act within the confines of the law, and in order to do so, they must either learn the relevant legal provisions, or seek professional legal advice before acting. Seeking legal advice before acting, and following it (Markovits, 2012, p. 306), may be seen as a morally praiseworthy course of action. This is due to the subsequent decision being based on a ‘reliable moral authority’ (Markovits, 2012, p. 291), ie, a lawyer’s professional legal advice. Seeking legal advice, which is not a difficult duty to perform (Greenspan, 2016, p. 276), is praiseworthy, even where the corporate psychopath cannot display the appropriate level of concern for the moral principles which make seeking advice important in the first place (Field, 2022, p. 5). While seeking legal advice operates as a defence to the United Kingdom cartel offence for example (Danagher, 2015; Stephan, 2014; Whelan, 2015), this is not what is being argued for here. Rather, seeking legal advice and following it may be viewed as a morally praiseworthy action which may, in turn, favour sentence mitigation, but not exculpation in the case of the corporate psychopath.

Importantly for present purposes, if a corporate psychopath fails to seek and follow legal advice, which is likely to occur, they cannot later rely on a subsequent diagnosis of psychopathy to exculpate them or mitigate against sentence length/severity. Moral and legal condemnation of their actions may be justified on the basis that they failed to exercise practical reasoning in choosing not to seek/follow legal advice before making a commercial decision which, if poorly chosen, could have serious consequences for others.

In short, taking legal advice may ipso facto be a morally praiseworthy action in scenario (c) (cf Harman, 2011, p. 460), but failing to heed legal advice on matters which may have serious consequences for others is morally condemnatory. They are thus responsible and accountable for their failure to mitigate against the potential effects of their psychopathy (Byast v The Queen [2021], [40]–[42]). In failing to seek and adhere to independent legal advice, the ignorant corporate psychopath in scenario (c) may be held morally culpable for their illegal actions. Corporate psychopaths are individuals whose understanding of the requirements of the law is undiminished by their mental disorder, and the imposition of sentences of unmitigated length are justifiable on this basis (R v Engert (1995), 72).

To summarise: tracing, wilful blindness and role responsibility offer fertile grounds for holding corporate psychopaths morally culpable for their crimes. The most effective method of the three depends on the facts of the case at hand. Scenarios (a), (b) and (c) sought to provide plausible examples of corporate psychopaths in operation, but this list is not intended to be exhaustive.

Conclusion

Corporate psychopaths can cause enormous damage to a company’s reputation and financial stability, but more than this, when such individuals occupy powerful roles, they can inflict serious harm on society. This issue is compounded by the frequent underenforcement of corporate crime laws, particularly at the highest levels (Crofts, 2020, p. 400; Crofts & van Rijswijk, 2023). The criminogenic nature of psychopathy has led to frequent interactions between psychopaths and the criminal justice system. As a result, the section ‘Defining corporate psychopathy’ stressed the importance of differentiating clinical and subclinical psychopaths. Many of their traits are different, even if a lack of sound moral reasoning ability is common to both. A corporate psychopath, it was argued, is a type of subclinical psychopath who occupies a corporate position, often at an executive level. It was posited that the primary difference between the two classifications lies not in their respective abilities to engage in moral reasoning, as both are defective in this area, but in the corporate psychopath’s lack of prior contact with the criminal justice system and general ability to suppress the behavioural deficits displayed by their ‘clinical’ counterparts.

It was contended that courts and legal philosophers have tended to diverge in their assessment of a psychopath’s responsibility for criminal acts based on the mitigatory or exculpatory significance of a diagnosis of psychopathy. While evidently not an uncontentious area, this paper, like many before it, concluded that psychopathy exists to an appreciable extent within the general population, and to an even greater degree in the general prison population and the upper echelons of the corporate world. Potential methods for holding corporate psychopaths morally responsible for their crimes were explored, which is a key aspect of sentencing mentally disordered offenders after Verdins.

Building on existing philosophical, scientific and legal literature, the section ‘Holding psychopaths criminally responsible’ presented three methods which can be used to hold a corporate psychopath morally responsible for their criminal wrongdoing. It was submitted that whether the defendant knew of their mental disorder, suspected it or was justifiably ignorant of their psychopathy, a different method of attributing full moral culpability was required, namely: tracing, wilful blindness and role responsibility. This novel approach advances the argument that corporate psychopaths should be held morally and legally responsible for their crimes and that their mental disorder should not be of mitigatory significance.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Other psychopathy tests exist, but are less commonly used, especially in the courtroom. See, eg, the Psychopathic Personality Inventory-Revised; the Elemental Psychopathy Assessment; and the Triarchic Psychopathy Measure.

2 While not designed as a risk assessment tool, the PCL-R test has been used as such in the courtroom, notably in relation to a defendant’s high potential for recidivism, particularly in the United States.

3 For more on the role of independent moral and legal advice, see the discussion of scenario (c) below.