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Professor Stephen Morse on the law’s perspective of the Aurora mass shooting

August 06, 2012

Even as more specific information comes to light, what we learn about the motives of Colorado shooting suspect James E. Holmes is unlikely to help avert the next mass shooting, according to University of Pennsylvania Law School Professor Stephen J. Morse. For all the attention such horrific events command, he says, they are quite rare, which makes them difficult to predict and almost impossible to prevent.

Morse, the Ferdinand Wakeman Hubbell Professor of Law, who is also Professor of Psychology and Law in Psychiatry in the School of Medicine, is a leading expert on criminal and mental health law and the editor of a forthcoming book on neuroscience’s relation to criminal law.

In the aftermath of the massacre in an Aurora, Colo., movie theater that took the lives of 12 people and wounded 58 others, Morse spoke with Penn Law about the profile of mass murderers, the relationship between mental illness and criminal responsibility, and the insanity defense.

Penn Law (PL):  What have we learned about the profiles of such killers?

Prof. Stephen Morse: (SM):  They tend to be young and male, and they tend to nurse resentments. We don’t know much more than that. Any profile of potential mass murderers will be vastly over-inclusive, meaning that the predictive variables also apply to tens of thousands of young men who wouldn’t remotely do something like this. If we try to identify the people at risk, virtually none of those identified will do it. Under these circumstances, there is nothing society and the law can effectively do to prevent future shootings, without intervening in the lives of tens of thousands of people for no good reason. The civil liberties issues would be immense. Further, it’s not clear which interventions would be effective, even if we were willing to invest in the expense.

PL:  Will we ever know why James E. Holmes did what he did?

SM:  At the moment we don’t know very much, but let’s assume that Holmes is willing to tell us why he did it. We’ll know what his conscious reasons were, but will we know all the background factors motivating him? We can’t understand the full causal chain for many behaviors, especially infrequent behaviors, and Holmes is unlikely to be an exception. In his particular case, whatever we discover is still not going to give us any handle on who is going to do it next. Let’s assume for a moment—and it’s only an assumption – that he had a “troubled youth” and was angry because he didn’t do well in graduate school. How many young males with troubled youth and resentment about failure are there? No one knows the number, but it is large.

PL:  Does a psychological explanation of Holmes’ actions excuse his crime?

SM:  In the modern scientific era, we believe that all behavior is caused. We don’t always know the causes, but all behavior is caused. Therefore, if causation were an excusing condition, no one would be responsible for anything. That’s certainly not the law we have, and I don’t think it’s the desirable law. Even in a causal world, we are creatures who are responsive to reason, and that is the basis of responsibility.   If we think about those classes of human beings who, in general, are apt subjects for potential excuse – young children, some people with severe mental disorders, people with dementia – they all have in common impaired capacity to be rationally responsive to reason. The fact that a defendant was mentally disordered at the time of the crime isn’t sufficient to justify an excuse. The question is not whether the person’s mental disorder played a causal role in the criminal conduct.  The crucial issue is whether it sufficiently interfered with the person’s capacity to rationally understand the nature or wrongfulness of his conduct.

PL:  How does the law treat that distinction?

SM:  All but four jurisdictions in the United States have some form of the insanity defense. The terms of the test vary, but basically they ask, “Do you have a rational understanding of what you did, and did you understand or appreciate the difference between right and wrong?” Again, the question is whether mental disorder sufficiently interfered with the person’s ability to reason. That’s a continuum concept that is capable of broad or narrow interpretation. How broadly or narrowly this criterion should be interpreted is not a scientific question; it’s a moral question and a legal question.

PL:  How can you determine whether someone knows right from wrong?

SM:  It requires reconstruction of their mental state at the time of the crime. That’s often difficult, especially as time passes and memory changes. People talk to mental health professionals and lawyers, and every time they open a memory, the memory changes. Ideally we would like to reconstruct from multiple, contemporaneous sources what was in the defendant’s mind at the time of the crime.  If the defendant was severely disordered at the time of the crime, it will often be apparent to those who had contact with the defendant.  Further, if the defendant had a history of mental health care, it will aid the evaluation. Thus, although reconstruction of past mental states can be difficult, it can be accomplished with reasonable accuracy.

PL:  You’ve recently written an amicus brief on behalf of 52 law professors urging the Supreme Court to accept a case that asks whether the availability of the insanity defense is a constitutional right. Do you think it is?

SM:  Yes. I and the other amici, who are a philosophically and politically diverse group, firmly believe that some form of the insanity defense is constitutionally required. It was universal in the United States from the founding of the republic to the time of John W. Hinckley, Jr.’s attempted assassination of Ronald Reagan in 1981. In the aftermath of that attempt and Hinckley’s unpopular acquittal by reason of insanity, four states unwisely abolished the insanity defense because they were mistaken about its alleged problems. So, except for these few outlier jurisdictions, the defense is otherwise universal; 46 states and the federal government have it. The British have had it going back to the 14th century.  It’s part of our Anglo-American legal tradition. I take no position on what the test should be. In our federal system, that’s up to individual jurisdictions to decide. But every jurisdiction should have some form of the insanity defense as a matter of fundamental justice.

PL:  What can society do to prevent massacres like the one in Colorado?

SM:  I dislike being pessimistic, but almost nothing can be done. It’s a low-frequency event, and all the mental health or other types of interventions we may provide are still probably not going to prevent it. Some people say we should not think about intervening in the lives of these potential killers, but we should simply keep guns out of their hands. That’s not so simple, however, because that horse is out of the barn. There are so many guns in circulation that they are going to get into the hands of people who really want to get them, even assault rifles. Would it be better if it were harder to get guns? Sure, but there are many law-abiding people who dispute that, and I think the data are unclear one way or the other. Unfortunately, gun control is not going to prevent these massacres, although some believe that it may reduce the risk somewhat.