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Lessons of the Virginia Tech Shooting: Should We Lock Up All of the Maniacs?


Monday, Apr. 30, 2007

In the wake of the Virginia Tech massacre, many commentators have raised questions about how things could have been better handled to minimize the loss of life. Some of these questions have concerned the reportage itself, on the theory that repeat airings of the killer's own "press package" risks inspiring future would-be assassins.

Alongside debates about how to respond to the shooting, inevitably, occur discussions of how it might have been prevented altogether. The shooter had emotional problems; he wrote violent prose in his creative writing class; he was apparently taking psychiatric medication; he had been subject to a psychiatric evaluation at an earlier point. In this column, I will explore some of the assumptions that underlie these discussions and ask the following question: Should efforts to protect students include a focus on confining the mentally ill population?

The Tarasoff Case: A Therapist's Duty to Protect Potential Victims

The idea that mental health professionals should protect the population from their dangerous patients is not a new one. In 1976, the California Supreme Court held in Tarasoff v. Regents of the University of California that a mental health professional owes a duty of care to people whose safety is threatened by her patients. A professional must take steps to protect a potential victim if the professional either does, or should be able to, predict violence toward a victim. The Tarasoff decision spurred changes in the law around the country. Some state courts reached similar conclusions. In other states, legislatures passed statutes of a piece with the Tarasoff decision.

In Tarasoff, a graduate student at the University of California became enraged with a young woman who had kissed him but who subsequently told him that she was involved with other men and was not interested in entering into an intimate relationship with him. The man, Prosenjit Poddar, carefully plotted his revenge killing of the young woman, Tatiana Tarasoff, and ultimately stabbed her to death. Poddar had told his therapist at the University Health Service of his homicidal plans, but no one in Tatiana's family was told anything that might have alerted them to her need for protection.

In reading about Tatiana Tarasoff, it is difficult not to wish that the University Health Service professionals had acted decisively to disable her killer from carrying out his plot. If your loved one is in danger, and a mental health professional knows about it, shouldn't it be incumbent upon him or her to do something?

The Dangers of Judgment Based On Hindsight

In response to the Virginia Tech shootings, some proposals have focused on the importance of gun control. Reacting to such suggestions, at least one commentator expressed the view that there are always going to be maniacs and that it would therefore be better to lock up the maniacs than to lock up the guns.

Whether or not people share the commentator's evident hostility to gun control, I suspect that many feel that the shooter should have been confined and removed from the school environment. For purposes of clarity, let us examine the various components of what such a view entails.

If psychiatrists had known that the shooter, Seung-Hui Cho, would go on to kill thirty-two other students, almost no one would contend that he should nonetheless have remained free to do so. Indeed, if we were able to travel back in time to a point before these tragedies occurred, virtually all of us would choose to confine Cho in a hospital or some other place where he could not hurt people. Whether to confine a mentally ill person who we know will kill if he is released is a no-brainer, so to speak.

As I have argued in some of my own academic work, moreover, if we knew to a certainty that anyone would kill other people, we would be justified (and even morally obligated) in confining the would-be killer, regardless of whether or not he is mentally ill. This latter proposition is more controversial, but it strikes me as straightforward as a matter of both equal treatment and public safety.

The problem in carrying out such safety initiatives, however, is that we - and by "we," I mean members of the public, including mental health professionals - are almost never in a position to predict with anything approaching certainty that a particular person will kill or do violence to others.

As a group, mentally ill people are not significantly more likely to kill others than are mentally well people. Furthermore, even among the categories of mentally ill people who may pose a somewhat elevated risk of violence, the risk is still very low for any given individual. As a consequence, locking up the "maniacs" (whom I define as those who will kill others) would entail confinement of extremely large numbers of mentally ill people who pose no threat to anyone.

Handling Mental Illness

Some readers might respond to the above realities by saying, "It's still worth it; lock them all up and save lives." As a matter of civil rights and civil liberties, of course, such a position is untenable. Among the "sane" population, we do not simply lock up everyone who falls into a group that carries a statistically-elevated risk of committing acts of violence. If we did, we might confine the entire male population between the ages of 18 and 24. It is accordingly unfair to single out the mentally ill, a statistically less dangerous group than some others, and devalue their liberty relative to that of everyone else.

But don't we already permit preventive confinement of the mentally ill and dangerous? So this population does not have (nor, perhaps, should it have) the same rights as other citizens (such as young males), one might argue.

For those who take this view, it is worth considering that the dangerousness of even a severely mentally ill individual is not a constant, unchanging fact. That is, a person who suffers from a severe mental illness can be "reached" and helped, in many cases, by competent psychiatrists and psychologists who offer care, support and treatment to those in trouble.

Not only can the availability of competent treatment help avoid violence, but it can also enhance the overall wellbeing of the population more generally. Many mentally well people become mentally ill at some point in their lives, a condition that might be temporary or permanent, depending in part on how an episode is handled. As more of our soldiers return from multiple tours in Iraq, for example, we will continue to see many cases of post-traumatic stress disorder (PTSD) in people who previously exhibited no signs of mental or emotional disturbance.

Why do I mention the utility of therapeutic treatment for chronically and episodically mentally ill? Because very few of those who suffer from mental illness will take advantage of available psychiatric treatments - whether in a university setting or elsewhere - if doing so makes it likely that they will find themselves confined, expelled from school, or otherwise branded a potential "maniac." In an environment in which mentally ill people are treated as threats to the public safety (which is not, as I mentioned, justified by the facts), a college student experiencing symptoms of mental illness is likely to avoid the student health services altogether and attempt to keep his distress a secret with which he, alone, must cope. The resulting isolation may well exacerbate existing emotional difficulties.

Paradoxically, then, a "zero tolerance" policy of preventive confinement could increase, rather than diminish, the small threat that mentally ill students and others might pose to the general population. This outcome would serve no one's interests.

What About Explicit Threats?

Notwithstanding the foregoing arguments, I support the existing legal framework in which psychiatrists and psychologists have the power to bring a truly dangerous patient to the attention of the authorities and to move for involuntary hospitalization when appropriate. There are patients who pose a clear risk to their own safety and, occasionally, to those of others. Therapists already - rightly - view intervention in such circumstances as part of their professional obligation.

But it is rare that a threat to the public safety announces itself with such clarity. By understanding that the overwhelming majority of mentally ill people are no more dangerous to their peers than the rest of us are, and by extending to them the same rights that all of us enjoy, we do more to facilitate their successful treatment and the public's collective safety than we do by undertaking any plan to "lock up all of the maniacs."

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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