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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A reaction and response to your essay:

-- By CarlJohnson - 23 Mar 2012

First of all, I think this essay is very well written. Your word choice is careful and describes your ideas with admirable precision, and your tone is sophisticated, but not overly academic. I also like the overall topic of the essay, asking us to move beyond Holmes’s bad man and contemplate the really bad man, for it is an inquiry that leads to the solid points you go on to make, but also can serve as a jumping off point for other ideas.

Stylistically, despite your overall clarity of writing, I think the following passage from the second paragraph could use some revision:

"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."

The rhetorical question is nicely stated and introduces a major point that you elaborate later, but the phrase “any attempt to further describe…” confuses me because preceding it you don’t offer any description of the state of mind. The word “further” seems odd. Also, I think you can find a more descriptive word than “right” later in that sentence--perhaps “illuminating” or “comprehensive.” As for the final clause of that sentence, wouldn’t any analysis of such a person always suffer from the uncertainty of speculation? I don’t think that uncertainty is unique to ex post facto analysis, unless you’re suggesting that ex ante the really bad man would actually tell us about his state of mind, or that we could otherwise learn of it with certainty. I think the last sentence of this passage is a point worth making, but you might want to rephrase it after you revise the previous sentence for better flow.

Moving on to substance, I think you’ve made two somewhat contradictory statements about really bad men being mentally ill, but, oddly enough, I actually agree with both of them. The first is, “Behavior so far outside a universal human norm is, by itself, mental illness…” The second is, “To say that they are mentally ill is to rationalize the apparent inability to deal with the really bad man.” Setting aside the brainwashing and heavy narcotics forced upon, say, child-soldiers in parts of Africa, I think it is true that to slaughter innocent people as did the gunman at Virginia Tech, one’s mind must be fundamentally very different than most humans; it must lack a certain moral faculty that most of us have. I think the lack of a pervasive mental faculty without which one cannot be fully functional in society is a reasonable definition of mental illness. For example, it works just fine for cognitive impairments and disorders concerning mood regulation. On the other hand, I also agree that for society to say that an extreme deviant, the really bad man, is mentally ill is to artificially label him as “other,” so that the rest of us can maintain our comfortable definition of “us.” It’s a way for us to reject the reality that the really bad man is one of us, that he is a fellow human, that he is a member of our society.

I think that that labeling of the really bad man as “other,” as mentally ill, is what does the work of, as you say, relieving the pressure on the rest of society, but you argue that it is the blaming of policemen and school administrators that does this work. You say that pointing the finger at people besides the gunman allows us to ignore “more fundamental problems,” like the inability of our legal system to have any effect on the really bad man. I guess that’s true, but even if we admit to that fundamental problem, so what? There’s nothing we can do to fix it. The really bad man, by his very nature, exceeds the reach of the system and is subversive to it. No amount of systemic reform can change that. I think the more interesting insight stemming from our finger pointing lies in the urgent need for us to finger point. I think that urgent need reflects the fact that we are pathologically unable to accept that there is no tangible solution to a problem. Faced with an atrocity such as the massacre at Virginia Tech, we think there must be someone somewhere who dropped the ball and allowed this to happen, there must be a way to prevent this in the future. The sobering reality, though, is that no matter how much we want these atrocities to be explainable and preventable, they simply are not. We cannot rationally explain why the really bad man is as bad as he is, and we cannot prevent him from carrying out these attacks. The most we can do is hope that we don’t cross paths with him at the wrong time.

--Carl

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