Bibliography: Robert Weisberg, The Unlucky Psychopath as Death Penalty Prototype, in Who Deserves to Die: Constructing the Executable Subject, Amherst, Mass.: University of Massachusetts Press, 2011. Also Stanford Public Law Working Paper No. 2128963 available on SSRN.
The properly executable subject is, minimally, a kind of psychopath. He therefore has a personality disorder, but the legal and moral (and even psychological) significance of saying so is a question, not an answer, for those who have the power to condemn. In making that decision, sentencers may, if prodded by the defense, face the question of whether the person can truly be held responsible for acts that flow from so categorically alien and amoral a character. That the sentencers manage to do so without necessarily suffering grave intellectual agony suggests that they may be deploying standard philosophical moves. More cynically, it suggests that the researchers of psychopathology and the philosophers of moral luck are using sophisticated forms of academic inquiry to do what nonscientists and nonphilsophers who decide sentences do all the time half-intuitively.