The Response to Mass Killings Stirs Debate

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


In the wake of the December 14, 2012 shooting massacre in Newtown, the national news media has presented Connecticut as an idyllic place to live with a minimum crime rate. Newtown itself was called one of the safest places in America to live. There is some merit in this reporting. The U.S. Census Bureau reported that in 2006 Connecticut ranked 37th in violent crimes in America. Compared to Southern states, where violence is rooted in its culture as eloquently documented by W.J. Cash in his In the Mind of the South, Connecticut could be considered a safe place to live. For example, two of the five Deep South states rank in the top five of the most violent states: South Carolina (1) and Louisiana (5). Furthermore, Connecticut is safer than all the Southern states, two more of whom rank in the top five: Tennessee (2) and Florida (4).


But no matter where you live in America, an examination of the 2009 Census Bureau statistics clearly reveal that Americans are extremely (and tragically) violent towards each other. In 2009 alone, 13,756 human beings were willfully murdered in America.  In fact, Americans kill more of each other with their hands, feet, clubs, and hammers (815) than are murdered in England on any given year (640). Why, as a people, do Americans kill so casually? Below are some examples:


  • Romantic triangles (89)
  • Brawls committed under influence of alcohol (211)
  • Arguments related to property and/or money (205)
  • A host of other types of arguments (3,368)


These Homicides are classified as occurring in circumstances “Other than felony,” meaning murders for absolutely no good reason, except perhaps a fleeting “rage” or “feel good” sensation at the moment by the killer.

But Americans are also proficient at killing each other when it comes to greed, the desire to forcibly take something of value from someone else. For example:


  • Rape (20)
  • Robbery (858)
  • Burglary (110)
  • Larceny-theft (13)
  • Carjacking (23)
  • Arson (28)
  • Prostitution/Commercialized vice (6)
  • Other sex offenses (10)
  • Narcotics (495)
  • Gambling (5)
  • Other unspecified felonies (469)
  • Suspected felony type (59)

As a matter of fact, the Census Bureau reported that in 2009 Americans killed each other 2,051 times during the commission of a felony while killing each other three times as much in non-felony situations (6,803).

And Americans do not discriminate against whom they kill. In 2009 they killed 12,383 people 18 years of age or older and 1,363 under the age of 18. Below is a list of those under-18 homicides:

  • Years 1-4:    male (163), female (142)
  • Years 5-8:    male (35), female (39)
  • Years 9-12:  male (35), female (35)
  • Years 13-16: male (317), female (81)


And you know what is so tragic about these young people being killed? According to the American Anthropological Association, more than 200 women kill their children each year in the United States, and three to five children are killed each day by their parents. According to the FBI, parents are responsible for 57 percent of all the homicides of children under the age of 5 with women being responsible for about 50 percent of those murders. And it is generally conceded that a significant number of homicides of children go uncounted.


So while the nation grieves, and rightly so, for the 20 innocent children killed in the Sandy Hook Elementary School in Newton on December 14,there is scant grief for those hundreds of children killed each year in this country by their own parents.  Why? We suspect that the American media generally ignores isolated individual murders and focuses of mass killings because their scope and senselessness still grabs attention, even by those normally hardened by the daily violence in their lives.


And perhaps this explains why children in America have developed a taste for homicide themselves. During the two-year period, 1990 and 2000, some 3,240 children were convicted of murder in the United States; and as of June of 2012, there were some 2000 juvenile offenders serving life without parole for murder in this country. It can be fairly said that many of these children were taught to kill by their parents, just as Adam Lanza was taught to kill by his mother Nancy.


But since the Newtown massacre, the public debate about why and how the slaughter was committed has focused on two primary issues: gun control and mental health. Again, what do the numbers illustrate on these issues? Of the 13,756 murder committed in the United States in 2009, the following methods were used to kill the victims:


  • Handguns (6,503)
  • Rifles (352)
  • Shotguns (424)
  • Firearm type not reported (1828)
  • Other firearm type not specific (96)
  • Knives or cutting instruments (1836)
  • Blunt objects (623)
  • Personal weapons—hands, feet, pushed, club, hammer—(815)
  • Poison (7)
  • Explosives (2)
  • Fire (98)
  • Narcotics (52)
  • Drowning (8)
  • Strangulation (122)
  • Asphyxiation (84)
  • All other (905)


While the number of murders committed with firearms far exceeds murders with all other devices combined, there is nothing in the numbers alone that support either the similarly extreme gun control or gun possession positions. For example, more people were killed by shotguns (424) than rifles (352)—some of which would certainly include military assault-type weapons like the ones used in the Aurora and Newtown massacres. In fact, twice as many Americans were killed by knives (1836) than were killed by both rifles and shotguns (776). While there are good, sound reasons for debating the ban on semi-automatic weapons and their rapid-fire ammunition clips, we believe that human behavioral control is probably a more pressing issue for legislative discourse than the divisive issue of gun control.


This brings us to the issue of mental health. To say that Adam Lanza, James Holmes, and Jared Loughner had “mental health” issues would be a classic understatement. In the weeks and months prior to their horrific mass shootings/murders, it was clearly evident to people around them that the three men were spiraling out of control in the real world. Yet none of these people reacted in any meaningful way to intervene or report the three men’s deteriorating mental conditions.


It has been reported that in 2009 there were an estimated 45.1 million adults 18 or older in the United States who suffered from some sort of mental issues. That same year there were nearly 550,000 “mentally ill” persons on criminal probation in the community and another 35-50 percent of the nation’s 2 million-plus prison population suffered from serious mental problems—many of whom have since been released and most of the rest who will also be released. While we acknowledge that most mass shooters in this country did not have “criminal records” and three out of four were able to obtain their weapons legally, the decision by lawmakers, at both the state and federal level, to either cut funding or refuse to provide funding for mental health services in the general community (not to mention the prison community) creates a situation where many non-criminal but violent people (as well as those actually convicted of violent crime) can walk around not only untreated but undetected as well. Thus, psychological background checks cannot in any meaningful way prevent someone with severe mental health problems from legally purchasing a firearm of any sort in this country.


Mental health professionals will say that most mentally challenged individuals never commit a crime, particularly a violent one. Although those assertions are true, they are misleading at best and disingenuous at worst. The National Review reported on December 17, 2012, that as of 2002, “about 26,000 inmates in state prisons across the United States who were convicted of murder were also mentally ill.” Though not reported in the conservative magazine, it is common knowledge among mental health professionals working in the nation’s prison systems that “mentally disturbed” inmates—especially those suffering from schizophrenia (the same mental affliction suffered by many mass shooters—are responsible for a disproportionate number of the violent attacks in prison, including incidents of self-mutilation and suicide. Violent paranoia and schizophrenia are as common in the prison community as heart disease in the free community, while treatment of these mental disorders is as scarce as treatment for polio is in the free community.


What is the answer then?


In the short term, civil commitment seems to be the favorite option. Four out of five states, as well as the federal government, have laws that allow for the civil commitment of “sexually dangerous” persons who are mentally ill and who pose a threat to others. We have in the past railed against these laws, and will continue to do when the situation demands it. But if our society, and the lawmakers who enact the laws designed to protect our society, can accept civil commitment of diagnosed dangerous sex offenders as a way of protecting the general community from possible future sex predation, then the same can be done against those who have been diagnosed with mental health problems that make them a threat to others and themselves.


The National Review cited the work of Professor Stephen P. Segal who recently examined state-by-state murder rates and mental health services which resulted in the publication of a report titled “Civil Commitment Law, Mental Health Services, and U.S. Homicide Rates.” Professor Segal’s study found that “less access to psychiatric inpatient-beds and more poorly rated mental health systems were associated with increases in the homicide rates of 1.8 and 0.26 per 100,000, respectively.” The stark reality, as concluded by Professor Segal, is that there is a significant difference in the homicide rates of states that have stronger “involuntary civil commitment (ICC) laws” than those with weaker such laws. The states with stronger ICC laws had 1.42 less homicides per 100,000. Translated, that means that states that have strong ICC laws and use them have “roughly a third less murders” than those states that are tepid about taking mentally disturbed individuals out of community circulation through involuntary civil commitment.


Our society does seem to care about either the causes or cures for mental disease, more commonly referred as “mental illness” or “mental disorders.” But we do know that it can be both life-threatening and dangerous to others as the horrific mass shootings in Newtown, Aurora, and Tucson exemplify. After going through a constitutionally-protected hearing process, individuals diagnosed with severe mental disease, making them dangerous to themselves and society, should be civilly committed just as sexual predators currently are—and any ultimate release of these individuals should depend both on their willingness to accept treatment and their response to that treatment.


Locking people up for the danger they may pose to others is offensive but not as much as allowing them to walk around in the free community waiting to explode. We certainly do not propose the widespread use of ICC laws. That would be an over-reaction to the problem of mass shootings which, incidentally, have decreased, not increased, since 1980. This according to James Alan Fox, the famed criminologist at Northwestern University in Boston. This past August Fox wrote for that: “There is one not-so-tiny flaw in all these theories for the increase in mass shootings. And that is that mass shootings have not increased in number or in overall body count, at least not over the past several decades.”


The FBI reported that between 2006-2010 there were 156 mass murders involving at least four victims in the United States during which 774 people were killed, including 161 young children. Grant Duwe, director of research at the Minnesota Department of Corrections who has studied mass murders, said these figures do not necessarily reflect either an increase or a spike in mass shootings because they have become less common since the mid-1990s. He seemed to draw a distinction between mass murderers and mass shooters who generally target strangers. He explained with the following points carried in USA Today in its December 19, 2012 edition:


  • Lone gunmen—like Adam Lanza, James Holmes, and Jared Loughner—who account for less than half of the nation’s mass killers while one quarter of mass murders involve two or more killers.
  • A third of mass murders do not involve guns—15 incidents between 2006-2010 involved fire while 20 others involved a knife or blunt object. When guns were used, the killers were more likely to use handguns than any other type of weapon.
  • Of the 161 children killed in the mass murders during that four-year period, one in five were 12 years of age or younger.
  • And, finally, most mass murderers (unlike Lanza, Holmes and Loughner) are older than other killers—being an average age of 32.


Fox informs that between 1980 and 2010 there was an average of 20 mass murders (at least four victims) per year with a death toll of about 100. He said that while the body count sometimes “fluctuated wildly,” the number of attacks remained steady. While Fox did not say as much, some of these mass murders involved attacks at the home or in the workplace where the victims were known to the killer while others occurred during the commission of a felony (the need to eliminate witnesses, as in the William Petit family murders in Cheshire, Connecticut in 2007).


Thus, whether there is a clear distinction between Adam Lanza, who committed the mass murders in Newtown, and Steven Joseph Hayes and Joshua Komisajevsky, who committed the Petit family murders, is subject to debate. What is not open for debate is that both types of mass murderers are mentally ill (some would say evil) and should not be in the free community. Like sexually dangerous persons or legitimate suspected terrorists, potential mass murderers/shooters should be civilly committed and given treatment until we, as a society, find a better, more humane way of identifying and treating them before they visit their senseless violence on an unsuspecting public.


It pains us to reach that conclusion, but, like so many others, the need for protecting the general public, especially our children in classrooms, demands drastic remedies. Our criminal justice system has responded to career criminals with enhanced sentencing, including those infamous three-strike laws that produce often inhumane, lengthy penal incarceration. While society can never really protect itself from killings that occur in alcohol-inspired brawls or senseless killings caused by stupid arguments over spilled mustard on new shoes, it can protect itself from mentally ill individuals who pose a clear threat to others.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization