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Friday, June 19, 2015

Unpacking the "White Supremacist"/"Mentally Ill" dichotomy in the Charleston Mass Murder

[originally posted in California Correctional Crisis, with a lay audience in mind. I figured it might be helpful to those of us teaching criminal law, whose 1L students grapple with their emotional approach to affirmative defenses]

Goodbye, Friends.


As we were all still reeling from the horrific mass murder in Charleston, still too shocked to properly mourn the nine innocent victims--priests, coaches, students, parents, sons, daughters, siblings, spouses, coworkers, and friends, who got together to worship and were viciously attacked for no other reason than the color of their skin--the nomenclature debate began: what shall we call their killer? A terrorist? A mentally-ill person? A mass murderer?

Inevitable racial comparisons are made: Islam-motivated crimes tend to earn the label "terror" faster than white supremacy-motivated crimes (was the horrific murder of the Charlie Hebdo caricaturists "terror" or "mass murder"?). Personally, the word "terrorism" carries for me international law connotations, so I don't tend to us it in the context of domestic crimes; others may disagree. And while I would prefer devoting more energy to remembering the victims and supporting their families, I understand why it is inevitable, in the aftermath of a horrific crime, for all of us to try and make sense of what happened. One way in which people try to do that is debate the mental health of the perpetrator.

One obvious reason mental health becomes an important question is the question of legal accountability: it is really hard for us to experience the consequences of a heinous crime without wanting to see the perpetrator punished, and we worry that, if he is found insane, he will not bear this responsibility. South Carolina has a two-tiered standard for mental illness. Defendants bear no culpability at all ("not guilty") if they satisfy what is known as the M'Naghten Rules. Under these rules, which are law in many U.S. states, defendants claiming insanity have to prove, by preponderance of the evidence, that they suffered a mental disease or defect (usually this requires proof of psychosis, as opposed to neurosis, even though law lags some behind psychiatry in terms of the distinction), and as a result were unable to:

(1) distinguish right from wrong (e.g., a person with mental illness who believes that he or she are God's emissary, and that killing the victim is a moral right); or--
(2) understand their act in the framework of right and wrong (e.g., a person with mental illness who thinks his victim is a hologram or an inanimate object, and it is therefore not wrong to shoot her.)

The second tier in South Carolina law allows for a verdict of "guilty but mentally ill", which turns upon the "irresistible impulse" standard. Upon a finding that the defendant committed the crime beyond a reasonable doubt, the defendant has the burden to prove, by preponderance of the evidence, that because of her mental illness she could not refrain from committing the crime (e.g., a person with mental illness who hears voices commanding him to kill, which he can't resist, even though he knows it's wrong.) It should be noted that many countries, including common-law countries, accept "irresistible impulse" as an absolute defense (after all, it's about the denial of free choice, which is the underpinning of modern criminal responsibility!), but the United States has not followed that path.

Even though the standard for the insanity defense is legal, not purely medical, psychiatrists are in some ways the gatekeepers. After all, many people who commit horrific acts of mass murder might believe that their acts are justified (as the defendant in this case is, outrageously, arguing, evoking the tired cliché of the hypersexualized black male to justify his actions), without suffering from a recognized mental illness. But it is also important to keep in mind that what constitutes a mental illness is malleable, and changes periodically. The DSM has seen several editions over many decades; the elements of diseases change; some are categorized differently, and some (thankfully) cease to be defined as mental illnesses at all. Sometimes, the classification of a behavior as a mental illness is welcomed not because it delineates pathology, but because it allows people to receive health care in a country with no universal provision for health care.

But it's important not to leave unexamined the impulse of some commentators to see mental illness before any official diagnosis is on the horizon--that is, the idea that just the fact that a heinous crime has been committed in itself suggests that the perpetrator is mentally ill. South Carolina law explicitly rejects this notion, stating that "[e]vidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity." Nonetheless, in our appetite to make sense of a horrible tragedy, we try to go there. In my current study of the Manson "family" parole hearings, I'm coming across many people for whom the question whether Manson himself is mentally ill, or whether his followers suffered from some form of collective psychosis, is still relevant and hotly debated; I can see how and why people would use the mental health framework to try and understand a shocking crime, which is now seen by many as having put an end to the romantic notions of the sixties.  Assuming that someone who is capable of committing heinous murders has to be mentally ill might be a protective mechanism, distinguishing"us", the healthy, from "them", the sick, and reassuring us that "we" could never do such a thing. As sociologist Emile Durkheim argued in the late 19th century, defining another's deviance fosters social solidarity. And as Michel Foucault argued in Madness and Civilization, one of the main features of modernity is the need to cleanse and categorize and separate the sane from the insane.

It is also, of course, telling that the labels are applied in a racialized manner; even though the murders in Charleston easily lend themselves to being understood as a murder in the context of racial supremacy (if you will, a mental illness that has characterized this country for centuries), there are commenters who intuitively gravitate to individual mental illness as an explanation, preferring the medical context to the political one. Ely Aaronson's new and terrific book From Slave Abuse to Hate Crime speaks extensively of the mechanisms that led to the framing of anti-black violence as hate crime. Aaronson problematizes the usual arc-of-progress linear narrative, that "things are better than they used to be", by showing how, with every iteration of an effort (usually by white moral entrepreneurs sympathetic to black plight) to criminalize white-on-black crime as hate crime, there are new barriers for the effective enforcement of the new label.

We know a few things about the suspect in the Charleston murder already: he is a confirmed and proud racist, with a long history of activism in white supremacy groups (he is also in his early twenties, which is the typical age for early onset schizophrenia, but it also happens to be the typical age at which people tend to commit violent crime in general, so that's neither here nor there). If he is not insane, in the legal sense of the world, why does his deed still seem so "crazy"? is it just the heinousness of the act? In his new book Listening to Killers, psychiatrist James Garbarino says that, while most killers do not meet the official parameters for an insanity defense, they nonetheless kill for reasons that are "crazy" to us:

Most of the killers I listen to commit their crimes in states of mind that mimic the conditions that define legal insanity: they believe that in their world what they are doing is necessary and therefore right. They are so emotionally damaged that in their minds they have lost sight of the relevance of “right and wrong.” They are responding to powerful emotional forces—often unconscious forces—over which they have little if any control, at least in the moment of their violent action. It is in this sense that they make “crazy” choices.

The more than fifty murder cases in which I have been involved over the past twenty years have included many different explanations for the violent choices made. When looked at from the outside observer’s point of view, many seem crazy. However, each makes sense when looked at from the inside of their minds (and hearts in some cases).

Garbarini lists, in his typology of "crazy" reasons to kill, the following: survival (preemptive violence when feeling threatened); lust for power; monstrous narcissism; existential honor (real concerns that without honor one will cease to exist as a person); retaliation for sexual abandonment; panic; criminal practicality (crime as part of a criminal business enterprise); and even curiosity, or thrill. Really, it's hard (but not impossible) to think of a "not crazy" reason to kill (self defense, duress, and necessity are all efforts to define such reasons; there's a reason why they are so few and so narrowly defined).

That we are horrified, shocked, angry, sad, upset at a horrific crime, that we cannot understand how someone could do such a thing, does not mean that the perpetrator is necessarily legally or medically insane. Mental illness is not a blanket explanation for everything that the "sane" world does not understand. Also, plenty of people who are severely mentally ill do not commit crime. Moreover: whether or not a particular perpetrator suffers from mental illness does not negate the observation that this country suffers from a collective sociopolitical illness of white supremacy. The two categories are not mutually exclusive, and people often do good and bad things for a variety of reasons. As Maslow said, "while behavior is almost always motivated, it is also almost always biologically, culturally and situationally determined as well."

Deep condolences to the families of Cynthia Hurd, Susie Jackson, Ethel Lance, Rev. DePayne Middleton-Doctor, Hon. Rev. Clementa Pinckney, Tywanza Sanders,  Rev. Daniel Simmons Sr., Rev. Sharonda Singleton, and Myra Thompson. If only our efforts to make sense of the murder of your loved ones could bring them back.

Posted by Hadar Aviram on June 19, 2015 at 01:09 PM | Permalink


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