A recent event has led me to make a major change to the series, replacing the section on alternatives to incarceration with a discussion on broken windows. That event is the decision by Manhattan District Attorney Cyrus Vance declaring that his office would no longer prosecute so-called “quality of life” crimes. His office is downplaying how this does or does not fit into the standing NYPD policy of the past two decades (begun by Bill Bratton during his first tenure as Chief). But Ed Mullins, president of the Sergeants’ Benevolent Association, is a bit more upfront: “They are now sending a message that minor offenses are no longer important to address as quality of life issues in New York City. This must be the new version of Bratton 2.0. This totally contradicts everything he has preached, philosophized and lectured about across the nation. Now, these offenses are no different than parking tickets.” Bratton himself remains fairly silent and minimally supportive on the issue. Now to be clear, as noted by Mullins, these offenses are not going away completely, but are merely being reduced to violations where you get a ticket.
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.
This week, 02/29 – 03/04, is the National Lawyers Guild’s Week to End Mass Incarceration. It is part of a shift for the Guild, since NLG passed a resolution last year supporting prison abolition.
First, this series is not going to be completely inline with this resolution. Particularly my own vision of prison abolition, while aiming for an ideal world without cages, I differentiate incarceration and detention. Incarceration is punitive or allegedly rehabilitative deprivation of freedom. Even in the case of the picturesque prisons of Norway, which look nicer than any apartment I’ve lived in these past years in New York City, the wardens are very clear that the relative freedom they have is still very much limited, and that they believe withholding freedom is rehabilitative. I do not agree, and my prison abolition views are centered in this disagreement which I will outline at length.
But while I do not think deprivation of freedom is beneficial to the person, I do think that it is sometimes necessary as an intermediary measure with the current material conditions of the world. While the hysteria of safety used in carceral propaganda is obviously blown well out of proportion, it would be disastrous to open every holding facility in the world right now and let everyone go without the infrastructure to handle it. Further, in a multitude of situations, detention is immediately necessary to prevent violence. I do not believe that people should have to so drastically give up their safety to fight for prison abolition. I did not always think this way: a couple of years ago, I would have called these views limited, reformist, and violent for essentially making a “trade” of the value of life a person detained versus those lives preserved by their detention. However, that was before I had worked for years and been friends for years with people currently or formerly incarcerated. While most of them thought the current system was sadistic and unproductive, the thought of absolute prison abolition was almost as bad. It would be one thing if they were telling me that other people they knew needed to be in there – that could be written off as a product of the Hunger Games mindset that incarceration instills. Rather, it was the number of people who described how incarceration had not so much benefited them as prevented their downward spiral from hurting others. While incarceration is hardly beneficial for communities overall, detention can stop the escalation of violence when done so with that goal in mind.
And that is my major differentiation between incarceration and detention. Incarceration is meant to be violent for the sake of its violence, even in its Scandinavian hippy forms. While I echo Lenin’s sentiment that state action will always be, to a certain degree, violent and coercive, I also share his view that it is necessary for the exploited and oppressed people of the world to seize this state power in the transition between the current capitalist power structure and a future world of real communal democracy. I see detention as the last resort, a final tool to be triggered when anti-violence and prevention methods have failed. It really would be no different than the de-escalation I have done at community gatherings: isolating the person on the verge of or engaging in violence from the people or situation that is facilitating the rise in tension, and if necessary have them leave (I am against permanent bans, but sometimes a person should just take a break).
I think the biggest flaw with “community policing” is that it is an add-on: they police, and on the side they engage with the community. As soon as you’re profiled as a criminal, which can be for as little as being young and Black on the wrong street at the wrong time, the community engagement stops and the policing begins. In a society transitioning to prison abolition, laws are enforced for the good of all people rather than for those who are complacent and conforming. We would try to stop people from committing violence not only for the harm it will cause to others, but the harm it will cause to themselves: damaging their psyche and relationships with others. Detention unfortunately would probably have to be a part of that.
Part 1 of this series will be on the snarky question that many prison abolitionists have gotten – but what about serial killers? Part 2
will highlight alternatives to incarceration: which ones are changing the game and which ones are wielding the very same principles as the prisons they replace.EDIT: because of DA Vance’s recent decision, I decided to write a post on Broken Windows instead. Part 3 of this series will explore how sexual violence would be dealt with in a prison abolition framework, and whether victim-centered responses to sexual violence are compatible with abolition. Part 4 will talk about the Thirteenth Amendment and immediate, constitutional strategies for chipping away at its prison provision. Part 5 will be on those we would actually probably enjoy seeing go to prison, like neo-Nazis or ultra-wealthy bankers, and how we must temper the fury of our quest for justice with radical forgiveness. Part 6 will be on a Marxist conception of prison abolition, and how guilt is a market force even when imposed by the state.