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Elizabeth Holmes, indicted CEO of now-defunct Theranos, is apparently to going to mount an insanity defense in her federal fraud trial. Crazy clever, no? The standard she must meet is, as described by Noah Feldman, is
whether the defendant knew what she was doing, and whether she knew it was wrong.
Unlike some states, federal law does not permit irresistible impulse or substantial capacity defenses. It focuses solely on awareness of one’s act and whether those acts were known to be wrong. According to Feldman:
What would make this defense so difficult to prove is that, at least based on public reports, there appears to be plenty of evidence that Holmes sought to conceal not only the fact that the company’s devices didn’t work, but also the fact that she was lying about that. Ordinarily, prosecutors can show the jury that a defendant wasn’t insane under the federal definition by demonstrating consciousness of guilt. A defendant who has tried to hide her crimes must’ve known that she did something wrong. And if she knew she was doing something wrong, she wasn’t legally insane under the federal standard.
And herein lies an important point: even if you don’t see it as wrong to do something, you are not insane if you understand that most other people do. And that is the reason that psychopaths don’t have a “get out of jail free” card. A psychopath is a person who can easily flout social convention for their own preferences in ways that harm others to various degrees without hesitation or guilt–
The triarchic model suggests that different conceptions of psychopathy emphasize three observable characteristics to various degrees. Analyses have been made with respect to the applicability of measurement tools such as the Psychopathy Checklist (PCL, PCL-R) and Psychopathic Personality Inventory (PPI) to this model.
- Boldness. Low fear including stress-tolerance, toleration of unfamiliarity and danger, and high self-confidence and social assertiveness. The PCL-R measures this relatively poorly and mainly through Facet 1 of Factor 1. Similar to PPI Fearless dominance. May correspond to differences in the amygdala and other neurological systems associated with fear.
- Disinhibition. Poor impulse control including problems with planning and foresight, lacking affect and urge control, demand for immediate gratification, and poor behavioral restraints. Similar to PCL-R Factor 2 and PPI Impulsive antisociality. May correspond to impairments in frontal lobesystems that are involved in such control.
- Meanness. Lacking empathy and close attachments with others, disdain of close attachments, use of cruelty to gain empowerment, exploitative tendencies, defiance of authority, and destructive excitement seeking. The PCL-R in general is related to this but in particular some elements in Factor 1. Similar to PPI, but also includes elements of subscales in Impulsive antisociality.
Not all psychopaths are criminals, but many of our most devastating criminals are psychopaths.
I am not a psychiatrist or a psychologist (but I did stay at a Holiday Inn at least once). But I am prepared to state that Elizabeth Holmes is a psychopath. And because I am not a psychiatrist or a psychologist there is no consequence for me diagnosing her from afar. It will become evident to the jury that Ms. Holmes is a psychopath, but it will apparently be asserted she was made so and has some mental damage that excuses her from punishment.
And if the jury is comprised of a bunch of Karens fearing COVID-19 more than “mere economic damage,” she just might get away with it. I hope the prosecution features some of those retirees that invested in her company to their great harm. “It’s only money” is a great slogan unless it was your bank account that was drained.
Remember psychopathy is different from delusional. Psychopaths don’t feel bad about what they are doing, but they know what they are doing and, when the possibility exists that they will be stopped from doing it, they take action to assure that they can continue to do it. That’s not insane, it’s evil.Published in