What about the really bad man?

-- By CameronLewis - 16 Feb 2012 -- Revised - 27 Mar 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 may end up 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.

Maybe the "really bad man" is actually crazy rather than bad? That will surely be the issue concerning Anders Breivik.

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. The result is that when the harshest available punishment holds no sway, society scrambles to avoid the notion that the law may be powerless in the face of such a person.

Demonstrating once again that law is not the force that holds society together.

Attempts to understand the really bad man's mental state are inevitably speculative, and any ex post facto analysis of such a person will always suffer from the adversarial, identity-based nature of our public discourse.

Really? It seems to me that the "really bad man," which means so far probably the insane man, has a mental state that is if anything easier to identify than that of the "bad man," whose unconscious may have developed in any one of a number of subtle directions.

What ends up being decided about the really bad man is that their actions often emerge 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.

Not conclusory unless independent of the available evidence.

Behavior so far outside a universal human norm could plausibly be, by itself, mental illness, especially when the only evidence is the end result.

No, especially when accompanied by other behavior or ideation accompanying particular disorders in other patients.

Despite this difficulty, the aggregate societal response is an attempt to adequately reconcile the illusion of control with its apparent failure.

One prominent social response.

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 and reducing any nagging hint of complicity. 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 actual information with righteous and provocative demands on the administration, the police, and the ‘system’. Yet the answer is simple.

Probably not as simple as we will unconsciously need to believe, right?

The person responsible is the one who pulled the trigger.

Unless the person who pulled the trigger is not responsible because of some intervening condition, like severe mental illness or duress, that we consider defeats legal as well as moral responsibility for acts.

The vortex of authority and social forces swirling around them, while certainly contributory, ultimately fails against the deliberate acts of a really bad man.

Also fails against the not-deliberate acts of a really insane one.

So it was with the legal system, when precious outrage was directed at a judge who 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 apparent failure to communicate with students under existing policies preceded the second shooting. Never mind the benefit of hindsight; the altar of public opinion requires a lamb.

There are both rational and unconscious motives lying behind the behavior of investigating and criticizing the performance of social actors following catastrophic events. Describing the causes does not seem to me to result in an argument against holding such inquiries, anymore than understanding grief and mourning results in an argument against holdings funerals.

Of course there were crucial lapses and communication failures that contributed to the tragedy, and responsibility moving forward should rightly fall to those who will be in a position to fix those problems and prevent recurrences. But considering the presumption of personal liberty in our society, such efforts can hardly prevent the next determined really bad man.

Preventing insane people from doing insane things may be theoretically impossible, but this is not a rational, let alone resonant, argument against being more careful and effective in our care for the mentally ill, or in being more scrupulous in preventing mentally-ill people who are at risk for violence from acquiring sophisticated weapons.

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 rest of us is lost against the individual who seeks to prove himself above that authority. 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.

You have not explained what this analysis contributes when the offender is insane, as Breivik surely is, and Cho Seung-hui also surely was.

Afterward, the public consensus eventually settles on those people bearing responsibility for it. Blame is assigned to counter the frustration of being unable to punish the actor, and to restore our jarred illusions about the efficacy of state power in keeping us safe.

Maybe. I think both the conscious and unconscious motives lie elsewhere. How did you establish that these are the only ones?

Perhaps, ultimately, the social process of assigning blame and the labeling of the really bad man as mentally ill are ways to express the inadequacy of any other alternative. To say that they are mentally ill is to rationalize society's apparent incompatibility with the really bad man. Similarly, to say with certainty that fault rests with these few parties is to cooperatively settle nagging doubt at the ability of our law and order to stop or save the really bad man once he has turned against all.

I don't understand what this means. We say people are mentally ill for the same reason we say people are physically ill: because we have examined them and arrived through the collection and analysis of evidence at diagnostic conclusions. We may misunderstand or misinterpret the evidence for any number of reasons, and it is appropriate to assume that some diagnoses will be faulty. Of course conclusions presented in the course of high-stakes litigation will be hotly controverted with apparent success on both sides, but that does not prevent facts from existing, or even consensus from developing outside the crucible of litigation.

Now that Anders Breivik has given days of public testimony, I do not think it will be difficult for people to reach the conclusion that he is insane. In Cho Seung-hui's case, the presence of past diagnostic recognition of his illness sufficiently probative of dangerousness to self and others to justify mandatory treatment is pretty conclusive.

I don't understand why you are at a loss for things to do. Cho should not have been able to acquire firearms. Obvious, reasonable national enforcement of existing national firearms regulations that prohibit people in his situation from gaining access to killing machines would have been sufficient to save all those lives.

Commentary on commentary

Carl, I appreciate your thoughtful comments on my essay. Part of what was frustrating as I finished it was knowing that it didn't fit all that well together and not being able to understand why. Your fresh perspective made me realize a couple of things:

1. My best conclusion doesn't have anything to do with imposition of the death penalty, as I wrote it. Instead, I work part of the way through the frustration and confusion I (and society, in my opinion) feel when faced with a problem like this and ignore analysis of that response.
2. Your point that I address both society's assignment of blame and the labelling of the RBM as mentally ill made me realize that approaching both of these together as two indications that society has an urgent need (great phrase). In short, they both do the work of relieving society of the burden, in addressing the two unanswered questions: Why did they do this? and, Why were they able to do this?
3. My two statements regarding mental illness are arguably contradictory, but like you I feel that both of them aren't wrong. What is clear is that any treatment of mental illness, and the role of such illness in mass shootings and other reprehensible crimes can't adequately be addressed in my paper. Not only because of space and relevance, but I don't know nearly enough about it to say anything conclusory. As it is now, I hope not to offend anyone with my characterization of it.
4. Lastly, there are a few things I would have liked to address more in this paper, among them:
   • Fixing the narrow view I have of law and authority as merely deterrent, especially in relation to Eben's comments this semester and today about how law is the weakest form of social control.
   • Paying no attention whatsoever to the fact that other people commit these horrific acts and have justifications for them that they believe to be larger than themselves (Breivik's motivations among them),
   • My invocation of the capital punishment issue at the end was irrelevant to the first two thirds of the paper, and serves more as an interesting idea to jump off to than the proper conclusion to the argument.

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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