What about the really bad man?

-- By CameronLewis - 16 Feb 2012

"Will I be executed for what I have done?" asked Anders Breivik just after surrendering to police for the mass murder of 77 people in Norway this past July. Holmes writes, by way of introduction to the space between law and morality, that to understand law alone one must adopt the perspective of the bad man. The bad man cares only for the material consequences of his actions, his behavior guided by the risk of state punishment through fines, imprisonment, or execution. The desire to avoid punishment as the only check on individual behavior is a chilling prospect, but it is an indisputable part of the decisions we make every day. If there is no risk of being caught in deciding to pursue some temptation, the final decision made may be the same but the path taken is surely not. The fundamental self-interest of the bad man, and to a lesser extent every man, remains. But what about those individuals who go far beyond that threshold? What about those who disregard not only moral codes, but legal ones as well in pursuit of their goals? I am talking about the really bad man.

The really bad man, like the bad man, cares not at all for individual or societal morality. Unlike the bad man, however, he denies the state its punitive power and refuses to consider the legal consequences of his actions. What influence can a legal system have when the harshest available punishment holds no sway? Any attempt to further describe this state of mind is unlikely to be right, and any ex post facto analysis of such a person will always suffer from the uncertainty of speculation. What can be said is that it most often emerges from something like extreme desperation, even mental illness. But to say that only those with mental illnesses take such horrific action is a conclusory shortcut. Behavior so far outside a universal human norm is, by itself, mental illness, especially when the only evidence is the end result. Despite this difficulty, the inevitable societal response is a search for answers.

Society’s response

The storm of sensationalism and speculation that comes as a result of tragedy serves to apportion blame among all those involved. It is a process of collective rationalization where the people responsible are identified so the rest of us can ignore more fundamental problems. TV personalities are more than content to rant and rave on any given weekday, but it’s when tragedy strikes that stars are born. The first person to utter a thought that later comes to dominate the public discourse gains instant credibility, and will assuredly be called first the next time a talking head is needed.

Part of what these voices do is serve the societal purpose of finding someone or something blameworthy, thereby relieving the pressure on the rest of society. Such is what happened at my school, Virginia Tech, in April 2007. Within minutes of the nonstop media coverage that was to continue for weeks, innumerable analysts filled the void of information with righteous and provocative demands on the administration, the police, and the ‘system’. Yet the answer is simple. The person responsible is the one who pulled the trigger. The vortex of authority and social forces swirling around them, while certainly contributory, ultimately fails against the deliberate acts of a really bad man. So it is with the legal system, when precious outrage was directed at a judge that had let someone slip through the cracks. So it was with the police, when they mistakenly assumed that the first shooting was an isolated incident. And so it was with the administration, when their policies and communication failures led to the second shooting. Never mind the benefit of hindsight; the altar of public opinion requires a lamb. Of course there were crucial lapses and communication failures that contributed to the tragedy, and responsibility should rightly fall to those who were in a position beforehand to fix those problems. But considering the default of personal liberty in our society, such solutions can never prevent a determined really bad man.

Can anything be done?

What struck me then, and I struggle with now, is that once a person has decided to become the really bad man; the legal system is impotent. An individual, dwarfed by the power of the state, nullifies that power by denying its coercive effect. Simply put, if the worst you can do is kill me, then I’ll laugh at you as I take that right for myself. Whatever deterrence value institutionalized power has over the masses is lost against the individual who acts in the shadow of state execution. Either they end their own lives in a final act of defiance or, like Breivik, they bask in the revilement and attention, seeking execution by the state as final retroactive validation.

Surely we recognize that it’s these individuals that have the most potential to wreak havoc. So in the most desperate situations, where effectiveness of the law’s deterrence is most important, it fails its purpose. But can any legal system succeed in the face of a determined individual capable of circumventing the structures in place?

The question becomes whether a system where the ultimate state power lies in execution is really the best way to deter crime. Setting aside the many other problems with the criminal justice system, does the prospect of death as an inevitable outcome to any act beyond some threshold push really bad men past it? Perhaps, ultimately, labeling a person as mentally ill is just one way to express the inadequacy of any other option. To say that they are mentally ill is to rationalize the apparent inability to deal with the really bad man.

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