3.1. The legal consequences and responsibility for serial killing

If a person with schizophrenia breaks societies' rules by killing, he is typically deemed; "not responsible by reason of insanity" and probably gets convicted to treatment. When a person diagnosed as a psychopath breaks the same rules and kills, he is judged sane and usually sent to prison. Is it right?

3.1.1. What are the legal consequences for serial killing?

Court systems around the world have varying points of view in relation to intentionality and responsibility for serial killers (Ferreira, 2000, p. 5). In Denmark, “straffelov” § 16, considers responsibility and punishment in relation to criminality the following way: “Persons, who at the time of the crime were insane (“utilregnelige”) because of mental illness (“sindsygdom”) or conditions that must be equated with this, are not punished” (Adserballe, 2000, p. 598. My translation). What is at present included within the term “utilregnelig”, are conditions such as severe organic mental disorders, like dementia and also psychosis that are caused by drugs, schizophrenia, paranoia or affective sufferings (Poulsen, 2004, p. 310). Similarly § 44, first part, is a law in Norway that states that: “Persons, who at the time of the crime was psychotic or unconscious, are not punished” (Rosenquist & Rasmussen, 2001, p. 51. My translation). This way, both in Denmark and Norway, are individuals with personality disorders seldom considered exempted for punishment, if no other condition is also present. But, additionally, there is also a law (§56) in Norway that states that a person can be given milder punishment; “when the criminal at the time of the crime had a severe mental illness with a substantial weakened ability to realistic evaluation of its relationship to the outside world, but were not psychotic”. (p. 62. My translation). Even though there in the legal systems are not any totally clear definitions of whom are to be included in the insanity plea, or the sanction that can give milder punishment, personality disorders are not explicitly considered in these extenuating circumstances.

As for how the consequences for criminals are in the U.S., it has been stated that it is not only the presence of a mental illness or defect that is determining the legal responsibility, but also the criminal’s “intentionality” and “awareness” (Palermo & Knudten, 1994, p. 4). This way, antisocial PD or psychopathy is not accepted in the legal defense of insanity. This is because the

conditions do not qualify under the “McNaghtan rules” which have existed, though in different forms, since 1843. These rules are considered both in Great Brittan and in the US. The essence in these rules, is that punishment is not given or considered if; “the defendant did not know the nature of and quality of his actions, or if he did, that he did not know that what he was doing was wrong” (McCallum, 2001, p. 3).

This way, personality disorders like psychopathy and consequently, most serial homicide criminals, are not included in the insanity plea and are therefore considered legally responsible, both in Denmark, Norway and in the U.S. This is because serial killers are often considered not to be “mentally ill or out of touch with reality” and because they can be understood as rational and aware of what they are doing (Ferreira, 20001 p. 6). This can be seen in D.B.’s statement: “I knew what I was doing. I knew right from wrong, and I knew that my gun could snuff someone’s life.” (Abrahamsen, 1985, p. 100). However, the issue of mental illness in relation to personality disorders and serial killings will be further discussed in part 3.1.3.

The relevant question, then, is what happens with serial killers. In the U.S., serial killers are often getting death penalty, like Gary Ridgway (killed at least 49 women), Aileen Wuornos (a women who killed at least seven men) and Ted Bundy (killed at least 28 women) or life time sentences like D.B. and Jeffrey Dahmar (Dahmar killed at least 15 men and was sentenced to 936 years in prison) (Newton, 2000, p. 48). There are 37 states in the US uses death penalty (Internet guide), indicating that death penalty is a highly likely consequence in the US. In Denmark, there does not seem to have been murderers that can characterize as serial killers in modern times, and as there are no specific law that is specifically aimed at serial killers, it is not to be predicted what exactly will happen to them. However, Peter Lundin is a well known killer, who has assassinated his wife and her two sons. As there were no “cooling off’ period between the murders, it does not characterize as serial killing. Instead it characterizes as “mass murder”. To illustrate how the punishment system in Denmark reacts to this kind of violation of law, Lundin got life time in prison for this episode. This is as the hardest sentence (life time) can be given in cases of intentional (Danish; forsettelig) murder (§237). However, after 12 years in prison, the inmate can be given release on parole (Justisministeriet, p. 2). This is, however an issue of evaluation. This way, Lundin as an example, can in theory be released after 12 years, or never, depending on the courts decision. This is different from the legal system in Norway, where life time sentence was abolished in 1981 and where the hardest sentence is 21 years in prison (p. 2).

When considering the appropriate consequences for individuals that have committed multiple murders, punishment is not the only aspect involved. It is also of importance to prevent the society against them. This is mainly due to the risk there are for the murders to recur. In relation to this, multiple researchers studying criminal psychopaths in general, have found that they have a frequent recurrence to criminality (Forth et al., 1990; Hemphill et al., 1998).

psychopathy and leagel rightsIn relation to this, there is in Denmark and Norway, also another form for legal consequence for criminal offenders. This is called “forvaring” which is an indefinite sanction, and is given when “the convicted is posing a danger for others life, body, health or freedom” (Det offentlige Danmark. My translation). What is meant by “forvaring” is quite similar in Norway and Denmark. With forvaring, the purpose is to protect the society by not giving a sentence of a fixed duration. With this, the inmate is being evaluated as time goes by, whether or not to be released. This conviction is also finding place in prison, and the kind of section in prison, is adjusted to the specific prisoners. This way, they can in principle also in Norway, be kept in prison for lifetime Even though there are not examples in the modern time of serial killers in Denmark and Norway, it can only be said that it seems highly likely that they would get “forvaring”. Peter Lundin did not, however. But a similar case in Norway, where two children were raped and killed, the leader was deemed to 21 years of “forvaring”. The question however, is whether they are receiving treatment. The aim with “forvaring” as a sanction, is to protect the society, and thus not as aimed at giving treatment, in which “insane” criminals will get (Rosenquist & Rasmussen, p. 69; Kriminalomsorgen). Herstedvester Detention Center however, is a well-known institution in Denmark that treats criminals with mental disorder (Poulsen, 2000, p. 115). This is both criminals that have got “forvaring” and criminals that have got life time sanctions. However, there are no general guidelines for treatment aspects of criminal psychopaths, herein serial killers. § 74 in the Danish laws, state that it is the Minister of Justice in Denmark that is deciding the roles about treatment for the persons that are placed in “forvaring” (Straffeloven).

In relation to the criminal behavior of psychopaths and the claim that they are responsible for it, Hare (1999) has stated: “Their behavior is the result of choice, freely exercised.” (p. 22). But are serial killers really free in their choices? Did D.B. for example have, with the background and personality he had developed, any choice? Did he want to be a feared man?

Finding answers to this is dependent on the view of humanity one have. Therefore, a discussion of whether individuals have a free will or whether they are determined to their behavior is the theme in the following.

3.1.2. Do serial killers have a free will?

The debate concerning whether individuals in general have a free will, can be seen as involving three main positions. These are hard determinism, soft determinism and libertarianism (Sappington, 1990). Determinists state that people are never responsible for their behavior, because their behavior is always determined by prior factors (mental, physiologic or sociologic) and one does not have an ability to choose ones behavior, and therefore not responsibility for ones actions (Ltibcke, 1996, p. 187). This position can be attributed to the behavioristic perspective, with the front persons John B. Watson and Burrhus F. Skinner and also to Sigmund Freud. The radical behavioristic psychology that Watson and Skinner represent, stresses that human behavior is controlled by genetic and environmental factors and this way, they regard human behavior to be determined. This position can be seen to exclude the existence of free will and freedom to make ones choices (Schultz & Schultz, 2000, p. 302). Also Freud is often termed as a determinist, in that he sees drives and traumas in the childhood as being determinants for the behavior of the individual and it is the unconscious factors that are seen as controlling the behavior. This way, he is of some seen as having the view that everything is predetermined and that nothing happens as a result of a free will or an opportunity to choose (Christensen, 2002, p. 134; Sappington, 1990; Schultz & Schultz, 2000, p. 413). As hard determinists probably would consider free will and moral responsibility as meaningless (Sappington, 1990), a hard-deterministic view on a serial killer, might entail in the assumption that, because of the killer’s life conditions, this was the one and only alternative. Thus, taking a hard deterministic stand would carry the assumption that nobody, including serial killers, is responsible for their behavior.

Contrary to the deterministic point of view are the libertarianists in which someone name indeterminists. They are proponents to the assumption that ones choices are not determined by uncontrolled factors and consequently, that, individuals are free to make their own choices (Sappington, 1990). Sartre, Heidegger, Kirkegaard and Kant are high-profiled philosophers with this point of view. This way, individuals are always being responsible for their behavior (at least all their intentional actions) (Ltibcke, 1996, p. 188). As a consequence to the assumption of the possession of a free will, the philosopher Kant has, according to Abrahamsen (1945) stated: “Before the earth perishes the last thief should be hanged in the guts of the last murderer.” (p. 4). This way, based on individual’s free will, he showed no mercy for the criminal and at least not for the murderer.

Psychiatrist, Irvin D. Yalom, with his existential position, states that a deterministic point of view is a serious problem. He claims that humans abilities to come with resolutions and to choose what aspects of themselves they want to present, is a proof of the free will. He also states that even though Freud’s model is considered deterministic, Freud too, agreed at some level with the indeterminism. This is, as Yalom sees a determinism perspective as a rejection of psychotherapeutic relevance, as he sees responsibility as an obvious prerequisite for the possibility to change (Yalom, 2003, pp. 303-305). Schulz and Schulz (2000, p. 302) states that if the assumption of determinism is right, then there would be no point in making any efforts, either for one self or for any one else in this world. This way it can be seen within a psychological frame, a problem to take a hard deterministic position to understand humans. But it also seems problematic to assume that external factors will never influence ones ability to freely make ones choices. Most reasonable seems to be a soft deterministic stand, in which seems to be the most widespread view within philosophy (Greenspan, 2003), psychology (Hare, 1999) and legal justice (Poulsen et al., 2000). Within this perspective, one will probably see people as normally having the ability to make their own choices and that they are therefore normally responsible for their behavior. This might be the explanation for how it is usually decided that psychopathic individuals are not only considered legally but also as psychologically responsible for their behavior as they are seen to have the ability to freely exercise their action and that they therefore can make a choice to kill, for example, and additionally be responsible for their actions whereas they get punished to jail. Psychotics, on the other hand, are not seen as possessing that skill, and are therefore usually perceived as non-responsible. But, however, even though a soft deterministic stand is taken, this does not necessarily mean that there is consensus in the opinion about the presence of freedom in individuals. In relation to this, one might wonder if an individual with a psychosis and an individual that is a psychopath, can be as sharply divided as that (treatment versus punishment). Does D.B. really have a free will and did he freely choose to kill? In relation to this, Adrian Raine, who has written a book about the pathology of crime in 1993, has a statement that seems to adequately denote how free will is manifested in D.B.’s behavior:

“It seems much more likely that free will lies on a continuum and that there are differing degrees to which each of us as individuals have a free choice in most of our daily actions as well as those most extreme acts such as killing another individual. While it is true that in most cases a criminal has a choice regarding whether or not to commit a criminal act, the decision is likely to be heavily weighted by a large number of preceding events, including the individual’s social history and the presence/absence of both social and biological predispositional influences.” (Raine, 1993, p. 310).

This way, Raine does not see free will as something one either have or do not have, but instead as something one might have more or less of, depending on previous events in life. Based on an agreement with this point of view, it seems like D.B.’s ability to make choices have been substantial influenced by his “preceding events” and that this also has affected his acts of destruction. This is, as has been meticulously illuminated in the self psychological analysis of him, because the killings seem, quite clear, to be closely linked to his earlier experiences of having been rejected and neglected and an accompanying deep wish of being recognized in the terms of giving nurture to the grandiose pole of his self. This way, it seems like it should be singled out, that his choice was “heavily weighed” by his experiences in his childhood and upbringing, where this also should have some influence upon the degree in which he should be termed as responsible for the murders.

Responsibility, free will and choice are often discussed in relation to evil and illness. This is, as one might argue, that evil is a matter of choice, and thereby something people are responsible for, whereas sickness is an absence of choice and thus indicating non- responsibility (Vachss, 2002). Because of this widespread hypothesis, the next will discuss more closely the responsibility of a criminal, with a focus on the debate about whether serial killers should be characterized as evil or ill.

3.1.3. Are serial killers evil or/and ill?

The debate about madness and badness can be related to philosophic positions regarding whether individuals are seen as inherently good (Rousseau) or born with the potential to do bad things (Hobbes). If one takes the perspective of Hobbes, then it is up to the rest of the society to prevent the evil potentials of individuals (Ltibcke, 1996, pp. 243-245, 482). Many theoretics are critical to the tendency to excuse destructive actions with pathological explanations. Riidiger Safranski is a German philosopher who posits a version of this view (Andkjxr Olsen & Karpatschof, 2003, p. 12). Also Douglas and Olshaker (1998) state, based on their FBI work with criminals that: “We have to stop excusing the inexcusable and insist that people be held accountable for their actions”. (p. 348). Hare (1999) also states that psychopaths behaviour “result not from a deranged mind but from a cold, calculating rationality combined with a chilling inability to treat others as thinking, feeling human beings”. (p. 5). For this reason they are usually referred to as “bad” instead of “mad” and the law has not developed special considerations for “bad” criminals (Ogloff & Lyon, 1998, p. 403). Cleckley (1978) has stated that even though it is popular to call murderers sick, he himself refers to them as “vicious”. (p. x). He is critical to the idea of relating this to psychiatry. He states: “1 have not encountered vehemently expressed opinions that Hitler, however many features of psychiatric illness he may have shown, should be exonerated of blame and responsibility for the tragic disaster he brought upon the world.” (p. x). Another psychiatrist, Thomas Szasz (1987), is also critical to “excusing” criminality. He is doing this based on his rather radical view of claiming that mental illness does in fact not exist and that it is based on mistakes: “Clearly, if mental illness did not exist, it would be necessary to invent it” (p. 359).

Due to the disagreements that exist concerning the nature and meaning of evil, a clear definition of it is not an easy task. However, in the introduction part, evil was limited and defined, based on Kuschel and Zand’s (2004) understanding of it. They see evil as involving an individual’s aim to reduce others’ quality of life and characterized by the individual’s lack of empathy for the person that are affected by the “extreme” act (p. 17). If this definition is what one considers as a correct understanding of what evil is, it can seem like psychopaths, with their characteristic lack of empathy, are synonymous to evil, and that also serial killers are necessarily incorporated in the understanding of what evil is. The definition reminds significantly of the nature of a serial killer, with its “extreme” and “cross-frontier” character and that they indeed can be said to “reduce others’ quality of life” (p. 17). Psychotic killers will, on the other hand not be defined as evil as their purpose is not understood as being aimed at reducing others life, but that it is often more a matter of defending oneself.

An acceptance of Kuschel and Zand’s definition seems to indicate that serial killers and thus D.B. are evil. Is this an adequate conclusion of D.B. and his behavior? Should it not be considered that pathology is something that potentially can influence the momentum of what one call evil? It does from literature seem like evil is something that exist when pathology/illness is not present and thus that evil is a contra-indication of illness. This can be seen in the frequently used problem formulations: Bad or mad? (Krober & Lau, 2000), crime or sickness? (Szasz, 2002), monsters or victims? (Online crime library). The most frequent conclusion to this problem is that murderers are evil and that consequently, pathology is not considered. They might have a mental disorder, according to DSM-IV, but is can seem like it is not considered “severe” enough that it is of relevance to consider their pathology when judging their actions. This is seen both in court and in the additional population. Among others, Hare (1999, p. 22) states, that psychopathy is not to be understood as a mental illness, as the psychopaths are calculated and not mad and insane and that they don’t have a distorted experience of reality, like that of the psychotic individuals, in which Hare claims to be the mentally ill. Also professor in psychiatry, Michael Stone and his co-workers, who have studied 500 cases with violent criminals, claim that serial killers are evil. They reject any psychiatric explanation for it. Stone has made a 22-level hierarchy of evil behaviour, in which several “calculated” serial killers are at the highest level. He is now working on a book, where he suggests that evil should not be considered within psychiatric diagnoses (Carey, 2005) In relation to this, one might wonder how, based on the Raine and Reisby’s definitions (introduced in the introduction), one can relate serial killers to mental disorder.

As for the eight different definitions that Raine (1993) is considering, it can seem like a serial killer can be seen to fall into most of them. First, it can be discussed whether a serial killer is experiencing distress himself, but “distress/suffering to self or others” is indeed an adequate description (p. 8). Second, serial killing can seem to be defined as a “deviation from ideal mental health”. This is as mental health can be defined, like it has of WHO; “a state of complete physical, mental and social well-being…” (p. 7). Even though, an issue of controversy, it can be argued that an individual a psychopath is characterized with an inside pain and sadness (Reid, 1978), thus indicating that they might not often feel “complete well-being”. Third and forth, are the definitions of a mental disorder as a “deviation from the social norm” (Raine, 1993, p. 7) and as “impairment in functioning/efficiency” (p. 11). These also seem to suit a description of a serial killer. The fifth definition is that it is listed in DSM (p. 13). As antisocial PD is listed in DSM, it is likely that a serial killer will also fall into this definition. Sixth is the definition of mental disorder as a “biological dysfunction” (p. 17). Related to this is the argument that psychopathy can be characterized as involving some biological factors. (This will be discussed in part 3.3.3.).

As for the definition of Reisby (2000), he sees mental disorders as lying on a continuum, where the most severe disorder has less ability to participate in the “normal societies activities” (p. 31. My translation). It can be argued that a serial killer does in fact have this possibility, as he often is going on the loose a great amount of time, until he (potentially) is found. This can indicate that he is actually very good at making activities, as he is not suspected or imprisoned. As an example D.B. worked at a post office the last five months before he was arrested, meaning that he also worked there when several of the murders found place, without being suspected (Abrahamsen, 1985, p. 118). But, still, how far from a normal activity is the activity of a serial killer? Regarding this question, serial killers seem to adequately be characterized as having a mental disorder that is in fact quit severe, and that it is deviating in a large extent from what is normality.

This way, it is in this understood that when one is, in accordance to Kuchel and Zand’s definition, naming serial killers as evil, this evil can be seen as a result of some kind of pathology. This is as; “those of us who function “normally” could not possible have the propensity to commit these acts (serial killing. My remark). They are deviant and engaged in only those with noticeable signs of psychopathology.” (Ferreira, 2000, p. 15). The way I see it, it is not of relevance to put the term evil aside when describing the actions of a serial killer. The definition of Kuchel and Zand does indeed seem to fit their behavior. What is nevertheless important is that the aspect of evil in a serial killer is probably not an isolated condition. The existence of evil/”badness” does this way seem to be closely correlated with illness/”madness”. This way, it is hypothesized that what is usually termed as evil, is existing as a consequence of pathology.

3.1.4. Concluding remark

If a person with schizophrenia breaks societies’ rules by killing, he is typically deemed; “not responsible by reason of insanity” (Hare, 1999, p. 22) and probably gets convicted to treatment. When a person diagnosed as a psychopath breaks the same rules and kills, he is judged sane and usually sent to prison (p. 22). The differences in consequences for the two different cases, seems to be based on; 1) The presence of a mental illness in the schizophrenic person and the absence of one, and consequently the assumption of evil intend for the psychopath and; 2) The assumption of an absence of a free will in the schizophrenic person and the presence and the acting on it, in the psychopath. In relation to this, James P. Ogloff & David R. Lyon (1998, p. 404) who work with psychology and law, have made an illustration of the relationship between the Law, mental illness and determinism. Additionally, I have added how evil and illness seems to traditionally be related to the rest of the terms.

Psychopaths and free will

The remaining question is, in relation to the illustration, where serial killers are to be inserted. As for today, they seem to be put in the criminal responsible (evil) circle, with a high degree of free will and a small, if any, degree of mental disorder. This is especially for the procedure in the U.S., where death penalty is often given. In this context, a statements of Raine (1993) will be given to illustrate how it seems relevant to consider serial killers’ will; “…predispositions clearly place constraints on the individual’s free will, though not in the dramatic way as some severe mental disorders such as schizophrenia may place constraints on free will.” “…acknowledge that there are clear predispositions that form the basis for recidivistic crime, and acknowledge that in most cases these predispositions are beyond the individual’s control”. (p. 312). Also to use a statement of Raine to illustrate the accompanying implication this have for the punishment aspect; “…then the implication is that criminal offenders should not be punished as severely as they are currently for their actions” (p. 312).

It is right that the pathology of psychopaths is not manifested as delusions, like it can be, for schizophrenics as an example. For an individual with a personality disorder, however, pathology is instead manifested as lasting and deviant patterns of internal experiences and behavior (Karterud, 2001, p. 20). These patterns have probably also affected the ability to behave in accordance to a free will, which thereby should have influence on how to consider their responsibility.

treatment or prison for psychopathsWhen one is considering the responsibility and thereby pros and cons with this aspect, it is worth noticing, that there are in fact two possible, totally different outcomes in such a discussion. Getting prison or getting treatment are two oppositions, as punishment can be seen aimed at “inflict suffering”, whereas treatment can be seen to “ease suffering” (Hansen, 2003, p. 458). Most prisons are not exactly aimed at being a place to harvest positive behavioral or attitudinal change, and they are often found to worsen the prognosis for the inmates. This might indicate that, with its accompanying increased risk for offending after imprisonment, it is not especially constructive for the offender or society (Fishbein, 2000, p. 5). There seem to be disagreements between the two opposites (treatment or punishment). Some times in Denmark criminal psychopaths can get treatment at the institution, Herstedvester but in the U.S., there does not seem to be any alternative sanction for criminal psychopaths that have killed. The question is however, whether serial killers can be treated, in the sense of not longer be a threat to kill. If one is having the opinion that evil actions (like that of serial killers) are something that one can not administer, manage or change, this might lead to a view of treatment as meaningless. However, this work has gone in the direction of an understanding of serial killers as psychopathological, and that evil is a definition one might use to describe the actions, but that it is to be understood as a consequence of psychopathology. Consequently, the following will be aimed at looking at treatment aspects for serial killers.