As I have addressed previously, despite what TV shows and movies might try to show you, serial killers are generally not at risk of “getting off” on an insanity defense. They usually wind up in prison, and get sentences that are expressly or by nature life sentences.
Serial killers scare and fascinate us. There are not only shows about serial killers like Dexter and, my personal favorite, Deadly Women, serial killers often pop up as a plot in crime shows or even as a plot twist in shows not about crime at all. But if you’ve ever watched a documentary or psychological analysis of serial killers, you know that our actual knowledge of why serial killers are serial killers is pretty sparse. And even among experts the conclusions reached are often tainted when bias begins at the very methodology of study. It is of course difficult to not have feelings about serial killers. Many of them target the most marginalized people in our society – sex workers, queer youth, Indigenous women, Black women, the mentally ill, etc. Killings are often paired with grotesque acts of sexual violence, cannibalism, and torture. The killings can be so brutal as to leave experienced police officers shaken.
While we do not understand serial killers, they represent the ultimate imbalance between prioritizing punishment over rehabilitation. We are told sociopaths do not change. They were either naturally this way or so constantly barraged by trauma in childhood as to be beyond “saving.” They either need to be locked away forever or murdered themselves by the State.
My argument is two-pronged: (1) is the evidence on serial killers being irredeemable accurate? (2) even if it is accurate, is incarceration still the best solution?
A quick scan of the literature on sociopathy turns up a lot of pop-science articles that are really more about asshole boyfriends than actual sociopaths. What is a sociopath? Well, perhaps non-existent. After all, the Diagnostic and Statistical Manual V, the Bible of psychiatry, does not have clinical definitions of psychopathy or sociopathy. Rather, their classifications are of personality disorders, particularly antisocial personality disorder, avoidant personality disorder, borderline personality disorder, narcissistic personality disorder, obsessive-compulsive personality disorder, and schizotypal personality disorder.
While these differ in various ways, the DSM V also specifies the following as general personality disorder traits: (1) Significant impairments in self (identity or self-direction) and interpersonal (empathy or intimacy) functioning. (2) One or more pathological personality trait domains or trait facets. (3) The impairments in personality functioning and the individual‟s personality trait expression are relatively stable across time and consistent across situations. (4) The impairments in personality functioning and the individual‟s personality trait expression are not better understood as normative for the individual‟s developmental stage or sociocultural environment. (5) The impairments in personality functioning and the individual‟s personality trait expression are not solely due to the direct physiological effects of a substance (e.g., a drug of abuse, medication) or a general medical condition (e.g., severe head trauma).
I know I probably have readers who are not keen on the DSM V, but it is important to understand the psychiatric definition of personality disorder because it is, at its best, a perspective outside of the criminal justice system focused on care rather punishment and, at its worst, a reminder that mental health treatment, such as involuntary commitment, mirrors incarceration. Personality disorders can be treated both medically and non-medically. Medically, people with personality disorders are often prescribed with antipsychotic agents or mood stabilizers. Non-medically, people with personality disorders are given incentives to shape their behavior to social expectations rather than their own. A key recognition here is that people with personality disorders do not respond to punishment as an agent of personal change. But of course, the purpose of incarcerating serial killers is not to rehabilitate but to punish and to protect society. It is precisely that dynamic that is out of line with both medical and non-medical treatments of personality disorders. 1 in 25 people have a personality disorder, and we know that 1 in 25 people are not serial killers. Further, we know that personality disorders have been on the rise, meaning that it is not statically coded into our genetics but at the very least an epigenetic, if not sociological, phenomenon.
Serial killers do not kill purely by having a personality disorder, and to say so stigmatizes people with personality disorders and glosses over the fact that people with mental disorders or illnesses are far more likely to be a victim of violence than to commit violence themselves. There isn’t an easy answer for what it is that pushes someone with a personality disorder into the realm of serial killer. And arguably, many of the worst killers of the world did not even have personality disorders if we include every military general, every company that stoked conflict to make profits, and other socially sanctioned forms of mass murder. I believe that no one should be given up on to have a meaningful life in their community, and much of the real scientific literature backs me up.
And even if there are these mythical people with personality disorders who are just predestined to try to mass murder and can never be changed or steered away from that purpose, we still do not benefit as a society from incarcerating them. Incarceration is a reactionary, punitive strategy – to at best prevent further problems. Incarceration does not prevent violence effectively, whether violence from a domestic dispute or from a serial killer. Rather, what will prevent killings by serial killers is substantive and objective research into how to pinpoint people at risk and intervene. There are some programs for this purpose, but they are poorly funded and usually within institutions with agendas outside of helping those with personality disorders (i.e. schools want to maintain order and conformity, the military wants to maintain its strength, etc.). And speaking of the military, we must end institutions that by their nature provide serial killers to be with the access to training and weaponry. Gerard John Schaefer, Jr. is the most obvious example of this, a police officer who used his impunity to kill ~30 girls and women. But the largest by far is the weapons industry. The constitutional focus of Second Amendment rights on the individual often leaves out of the conversation that the weapons industry literally profits off of murder. Particularly the lack of restrictions on ammo production, rather than ammo ownership, ensures that access to ammo is never a problem for someone who wants to commit a mass shooting.
This post is a bit different than most of mine: little legal analysis, mostly socio-political and psychological analysis. But it is no less topics of legal concern. The current laws of the United States are woefully out of touch with current empirical and scientific thought, and the focus on incarcerating people with personality disorders is just one example of this. We must stop accepting that the law is a system unto itself not bound to rationale’s outside of stare decisis. And with Justice Scalia in the grave, now might be the time to begin to push for such changes broadly.