Should Psychopathy Qualify for Preventive Outpatient Commitment?

This chapter argues that people diagnosed with psychopathy alone should not qualify for inpatient involuntary hospitalization or preventive outpatient commitment. Preventive outpatient commitment is controversial. Even though it involves a lesser intrusion on liberty than inpatient commitment, it nonetheless involves a deprivation of liberty protected by due process. As a result, the nature of such commitment must satisfy the reasons that serve to justify it. Outpatient commitment is justified largely based on parens patriae considerations, and this typically requires that the patient be incompetent to make treatment decisions for himself or herself. Moreover, such commitment contemplates that the individual will be provided treatment that is effective for his or her condition. As involuntary treatment generally is not effective for people suffering from psychopathy, the chapter argues that outpatient commitment is inappropriate for this population for parens patriae purposes. Furthermore, people with this condition do not suffer from cognitive impairments that render them incompetent. An additional purpose justifying commitment is protection of the community from harm, a purpose grounded in the state's police power. To justify commitment for this purpose, however, the person must suffer from a condition that makes it difficult for him to control his behavior. The chapter argues that individuals with psychopathy can control their conduct. As a result, the chapter concludes that outpatient commitment based on the police power also is inappropriate. Instead of inpatient or outpatient commitment, the chapter argues that the criminal law should be used for purposes of protecting the community from the antisocial conduct of those suffering from psychopathy.