Many Murderers Are No More Mentally Ill than You

Elaine Sharp is quoted in Lane Wallace’s shallow and amateurish Are All Murderers Mentally Ill? article (which somehow made it into the Atlantic):

You see, I truly believe that murderers are mentally ill. … Their brains don’t work like the rest of ours do. To deliberately kill someone requires crossing a profound boundary. Most of us couldn’t do it. We couldn’t even think about it. But they can. They do. Why? Because they’re mentally ill. And fundamentally, as a society, I believe it is barbaric to kill people who are ill.

(H/T Simple Justice.)

I have never known Sharp to suffer from silliness, but that’s just silly.

If you define “mentally ill” as “doing things that most people don’t do,” then all murderers are mentally ill—as are all geniuses. Even if you add a normative element to the test (“mentally ill people are people who do antisocial things that most people don’t do”), you still paint with too broad a brush, and you add an unscientific “you’re mentally ill because the rest of us agree that you’re mentally ill” component. Mental illness—like any illness—should not be a matter of popular consensus.

Sharp might not be able to think about killing someone, but I’ll bet most of us can. No two people’s brains work exactly alike, but the “profound boundary” of killing someone is one that we were genetically programmed to cross: your genes wouldn’t have survived if some of your ancestors hadn’t been willing to crush a few skulls.

Even in a civilized society, there are times when it is appropriate to cross that boundary. Not all killings are antisocial acts. Not even all killings that the law calls murder are antisocial acts. Most of the murderers I’ve represented, I would allow to babysit my kids (I can’t say the same of the people prosecuting them).

And that’s just the intentional killings. A person can be convicted of murder (and sentenced to death) as a party even if he doesn’t cross that boundary—see, for example, the felony murder rule and the law of parties. (Would Sharp hold that the guy who drives the robbers to the convenience store for the robbery is mentally ill?)

Regular readers know that I’m an incompatibilist determinist: I believe that every action we take is determined by our nature and nurture (themselves determined ultimately at the big pool break at the moment the Universe became). Free will is an illusion; we think  that we have free will in much the same way that the ancients think that Helios drove his chariot across the sky every day.

So I am comfortable with the idea that we do what we do because of pathways in our brains that were wired by forces beyond our control. But “his brain made him do it” is not the same as “he is mentally ill.” If all antisocial behavior is a result of mental illness, all of us are more or less mentally ill; if all of us are mentally ill, “mentally ill” means nothing. And “mentally ill” is a potentially useful term that really should mean something.

Treating criminal behavior as a mental-health issue is a bad idea, not just because it defines the meaning out of mental illness, but also because it allows the government to “treat” it without the Constitutional protections that attach to criminal accusations. It subjects every accused person (every murderer, in Wallace’s world, but why not everyone accused of a crime?) to the tender mercies of consequentialist psychological testimony and proof by clear-and-convincing evidence. Greenfield raises the specter of lifetime preventative incarceration for potential murderers; the mechanisms, I say, are already in place.

I’ve pondered the criminal-justice consequences of my determinism at some length. If I am correct that we behave only as we are programmed to behave, most of the penal goals are still on the table—if bad behavior is a matter of programming, it makes sense for society to correct a bad actor’s programming (specific deterrence and rehabilitation), to correct other people’s programming (general deterrence), and to put the bad actor into a position where he can’t reoffend (incapacitation). Even if the death penalty doesn’t work as a general deterrent, incapacitation might sometimes justify execution.

I would do away with retribution, though, for it seems to me unjust that society should seek retribution against someone for something that he did as the result of his nature and nurture. Sharp calls it “barbaric,” and I tend to agree, but I can see no clear rational reason for society to follow our impulse for justice rather than someone else’s impulse for retribution—as humans, we seem to be predisposed to both retribution and justice, and retribution might be its own good, even if justice be damned. We were, after all, barbarians for a long time before we were civilized.

Wallace wraps up with this:

Or, to put it in Constitutional terms, if someone’s acts are a result of an illness they can’t control, even if the acts are deliberate, conscious and cold-blooded, does it violate the 8th Amendment’s ban on cruel and unusual punishment to condemn them to death because of those acts? It would be interesting to know where Justice Stevens would come down on that one.

Wallace apparently knows nothing about death-penalty procedure: mental-illness evidence that falls short of M’Naghten, as well as evidence of abuse and head trauma, is mitigation evidence in the punishment phase of any competently tried death-penalty case.

Is it cruel and unusual to execute people who are not insane or mentally retarded, but who are mentally ill? Juries often say, “no.” But Wallace, for some reason, wants to know if Justice Stevens agrees. Well, we know already how Justice Stevens feels about the death penalty:

[It] represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.

[Internal quotation marks omitted.]

Justice Stevens’s position on mental illness in death-penalty cases would be worthy of note only if he thought that executing the mentally ill contributed to some public purpose in a way that executing the mentally healthy did not. I think it unlikely that he would make an exception to execute people who are mentally ill but who fall short of M’Naghten; if he did, I will concede, that would be interesting to know.

It would also be interesting to know that one or more of the sitting Justices thought that mental illness short of legal insanity was, as a matter of law, sufficient mitigation to avoid the death penalty. The Court’s 2006 opinion in Clark v. Arizona gives no hope. It wasn’t a death-penalty case, true, and it was argued on Due Process (rather than Eighth Amendment) grounds, but in Clark six of the Nine were hunky-dory with a murder defendant being sentenced to life in prison when he was not even permitted to present evidence of his (diagnosed) paranoid schizophrenia to negate mens rea.

So no, not bloody likely.

16 responses to “Many Murderers Are No More Mentally Ill than You”

      • Well, I meant “funny” as in “ironic,” actually.

        If I understand incompatibilist determinism correctly, I disagree that it is a sensible position; I highly doubt it is veridical. I guess, however, it is possible to imagine a world where “everything is predestined” is not incompatible with causation. It just seems odd.

        You no doubt recognized the second sentence of my original post was a play on the irony to which I referred/refer.

        • I know what you meant. That you think it ironic suggests that you don’t understand incompatibilist determinism correctly, as does the phrase, “incompatible with causation.”

          Is there some reason, other than “I seem to have free will,” that you think that we have free will?

        • I guess, however, it is possible to imagine a world where “everything is predestined” is not incompatible with causation.”

          Determinism presupposes causation, so, yeah, maybe not so much “possible” as “trivially easy.”

          Anyway, on the substantive point – my leaving this comment “matters” in a deterministic universe because others who read it may thereby be determined to appreciate or respond (whether approvingly or critically) to its contents. It is completely unclear to me why anyone would think any of these effects turns on whether those involved are metaphysically “free,” though perhaps you will be determined to clear things up for me.

          • If everything is predestined, there’s no way to know if causation is real, or not; everything is going to happen anyway.

            Your comment matters “because” others “may” thus be determined to respond or appreciate? Well, hmmm. They “may” be. They “may not” be. If your comment was predestined, I don’t think the vacuousness of that statement matters.

            I just don’t happen to think I’m seeing anything that convinces me one way or the other.

          • This isn’t rocket science, and you’re coming across as a bit of a knucklehead, for not figuring out, after my last comment, what “incompatibilist determinism” is.

            Compatibility with causation has nothing to do with it. (Reasonable people, whether they believe in free will or not, can agree that gravity causes my pen to fall to the floor.)

            That we seem to have free will is not evidence of free will: you or I could write a computer program that would, to itself, seem to have free will.

            Benjamin Libet’s experiments are viewed by some as evidence against free will. I’m not entirely convinced, but they’re interesting nonetheless.

            Riddle me this: what, other than environment and heredity, made Rick Horowitz who he is today?

          • I was actually responding to Michael Drake with my comment.

            I agree that the fact that we seem to have free will is not sufficient evidence that we do. “Sufficient” is the key word in that sentence. I disagree that it cannot be counted as evidence at all. To argue that it is no evidence at all seems to me to be an epistemological problem which, if accepted, calls into question whether we are capable of knowing anything. At all.

            And while that’s an interesting question which may have, as its answer, that we cannot know anything at all, I’m just not prepared to go there.

            I also would, however, agree that anyone who thought that JUST BECAUSE we seem to ourselves to have free will does not, in and of itself, prove that we do. Many things which seem to be true to us have been shown to not be so.

            It may not be rocket science. In fact, it’s obviously not, since rocket science involves building rockets. But as this paragraph impliedly demonstrates, the problem may go farther and be deeper than you’re giving me credit for recognizing.

          • That free will is only an illusion has no effect on most of our perceptions. That you have free will is apparent only to you; most of our perceptions can be checked against others’ observations. Do I seem to you to have free will? You have no idea.

          • If everything is predestined, there’s no way to know if causation is real, or not.”

            Assuming that you are using “predestined” as a synonym for “determined,” then your claim amounts to saying that if everything is causally determined, then we can’t know whether things are caused. Think about that.

  1. I dunno, I agree with you both. I would think that someone who goes ape, robs a barber shop killing everyone inside while giggling like Renfro, is classically insane …no matter his IQ. To execute him would not be “justice” …that would be mere retribution. I agree with her that we really need to distinguish between Justice and Retribution as it is more of a reflection of our mental health as a nation. From what I see, I agree with you, we’re scarcely down from the trees.

  2. “[It] represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

    Since I also know my share of murderers, and agree that ~some~ of them would be excellent babysitters, my personal notion regards to “any discernible social or public purposes” be that a lifetime commitment to a “ashram” of sorts, where they could be employed to do tasks that have benefit to society and gain education towards those tasks while apart from the “real world”.

    I forget the name of the order, but there are monks in Virginia who remain cloistered while doing research for companies on the web. A good purpose. Plus, inmates do work pretty cheap, so why not use them in like fashion? One could become the Master of the Universe at C++ programming with nothing else to do for life. It’s a notion that beats the heck out of just pulling the switch. Ric

  3. Oh puleeez!

    Sure, go ahead! Take all accountability away…there’s no longer right or wrong?…everyone can just white wash their actions, and just do as they see fitting for their own selfish benefit? No more responsibility for one’s actions? Everyone can just do as they see fit in their own eyes, and just blame in on how your brain’s hardwired? Pssssh! We are soon to follow suit with Rome, our fall is imminent.

    • Really, Cindy? That’s what you would do if you thought that free will was an illusion? Just do as you saw fit in your own eyes? That shows—you’ll forgive my saying it—flaws in your nature and nurture, which we might call “want of character.”

      The illusion of free will doesn’t cause people to do right. The recognition that the illusion is an illusion doesn’t cause people to do wrong; it does, however, cause them to treat the less-fortunate more compassionately, which is, I think, doing right.

      (Despite reading the anonymity policy, you inadvertently omitted your name when you posted this. I was able to find it elsewhere, and corrected your information accordingly. You’re welcome. I find that people are much more likely to be rational when their words are googleable, don’t you?)

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