Policy Responses To The Newtown Massacre

Earlier this month, a man stole three guns from his mother's collection, killed his mother, broke into a locked entrary at an area elementary school in Newtown, Connecticut, where he killed twenty-five people (mostly five and six year old children, as well as several adult school employees), and then killed himself.  We still have almost no idea what his motives were or what warning signs, if any, may have been misssed.

The immediate question that has come up in the wake of this tragedy is what policies governments could take to prevent these kinds of incidents from happening in the future.  Discussions have mostly focused on mental health treatment and the perpetual hot button issue of "gun control."

Other Recent Incidents And "Near Misses"

Not long before that, there was a mass shooting at a Washington State mall.

Earlier this year, a former graduate student at the University of Colorado Health Sciences Center in Aurora, Colorado went to a late night showing of the latest Batman movie, opened fire on a movie theater full of people killing many of them, and then was promptly apprehended.  We know that he had received some psychiatric care prior to the incident and made threats that had caused him to be banned from campus in the wake of learning that he had been dropped from his PhD program in neuroscience because of his poor academic performance.

There have been other incidents in Colorado in recent memory as well. 

The most famous was the Columbine High School shooting in Littleton, Colorado in 1999 where many students and teachers were killed by two disaffected students with guns who died in the incident who has also unsuccessfully tried to set off propane bombs that could have killed even more people. 

A Colorado man killed a couple of fellow college students in metropolitan Denver and then tried to go on massacre people at a Colorado Springs megachurch when he was killed by a female congregation member who was on duty as a private security guard at the church. 

A former student opened fire outside another suburban Denver public school, but was stopped by brave, unarmed faculty members at the school.

A man who had lost access to mental health prescriptions that had helped him manage his condition, opened fire and killed his ex-girlfriend at her place of work at a metropolitan Denver strip mall.

A mentally ill man attempted to assassinate Colorado Governor Ritter and would have killed others had a state trooper on his security detail not killed him.

A Douglas County woman who had a restraining order against her husband called law enforcement officials to let them know that he was armed and had taken their children and was likely to kill them, but Douglas County law enforcement officers ignored her pleas and he killed the children and himself before there was a law enforcement response.

Going Amok

The Indonesian language has a work for this kind of incident which English has borrowed as a loan work.  It is called "going amok".  These incidents have taken place at least once in all but three of the last thirty years in the United States, but are nevertheless very rare events.  There have been sixty-two such events over thirty years.  Frequently

The FBI statistics of multiple homicide incidents includes incidents like gang violence that don't fit this profile.  But, the incidents are much more similar to the more common incidents where someone kills a spouse and the family's children, and sometimes other family members or other people who happen to be present.  Another common fact pattern involves an attack at a workplace or former workplace of the perpetrator, or a school or former school that the perpetrator attended. 

Usually, far fewer people are killed in these incidents and usually few of the victims are total strangers.  But, a minority of these incidents, like the Newtown Massacre, do involve people who are predominantly total strangers to the perpetrator. 

The vast majority of the incidents in which large numbers of people are killed involve firearms, although not all of them do.  Many years ago, there was an elementary school massacre in the United Kingdom (where guns are almost completely banned) that was carried out with a sword, and in Japan (where guns are likewise almost completely banned) there was an incident in which a group tried to conduct a mass killing with poison gas.  Mass killings with machetes or other bladed weapons have been carried out with some frequency in Africa, although most of those incidents are more akin to insurgencies or tribal warfare than to "going amok" incidents.

Fewer than 80 people died in going amok massacres this year, and this year has been the worst such incident in (at least) the past thirty years.  More than 40 people died in the years that included the 2007 massacre at Virginia Tech and in the year that included the 1999 massacre at Columbine High School in Littleton, Colorado.  The average number of deaths per year over the last thrity years from this kind of incident has been less than twenty, and in additional there have been on average six or seven injuries from these events.  (Due to excellent work by first responders and Denver area hospitals, the Aurora theater massacre this year stands out as the incident with the highest percentage of victims who were shot but survived their injuries.)

There does seem to be an upward trend in the number of deaths from these incidents in the last few years, but the absolute numbers are very small and it is very hard to distinguish between random flukes and genuine trends in incidents that are so uncommon.

These incidents have never caused even 1% of all firearm homicides in the United States in a single year.  On average, over the last thirty years, they have accounted for about 0.2% of U.S. gun homicides.

Only two mass killings in the United States in recent memory, the 9-11 attack and the Oklahoma City bombing, were terrorist incidents rather cases of a homicidal and suicidal breakdown of a troubled individual whose problems were more personal than political.  (The shooting of Congresswoman Giffords and several people with her was arguably a third.)

Law Enforcement Responses During The Incident

The law enforcement response to the Columbine Shooting in 1999 was faulted for being too timid.  While first responders arrived on the scene very quickly, rather than pro-actively rushing while the shooting was in progress, they waited for backup or more highly trained SWAT officers arrived.  By then, the perpetrators had killed themselves and the incident was over.  Since then, law enforcement agencies nationwide have made it a matter of standard operating procedure to rush in immediately with whatever deadly force is available during "active shooting incidents."

Law enforcement officers have followed that policy in all subsequent massacres of this type in the United States, and have no doubt saved lives as a result.  The lives of scores of children in Newtown, Connecticut were saved earlier this month by this law enforcement response; the shooter killed himself when he heard police moving in to stop him.

Post-Incident Consequences

A very large share of people who commit these acts commit suicide or are killed in the course of the incident itself, and often set out in the first place to kill as many people as possible during the course of what is basically a suicide attempt.  Perpetrators who don't die while committing these incidents are invarabily captured within hours, charged with first degree murder, and either sentenced to death, sentenced to a prison term that extends for the rest of that person's life (or very nearly so), or found to be innocent by reason of insanity and involuntarily confined to a mental institution from which the perpetrator is almost never released (or at least, is not released from many decades).

This was true not only in the "going amok" incidents, but also in all three of the case of the people who actually carried out incidents which had political dimensions. 

There were perhaps as many as a dozen or two non-participant organizers of the 9-11 attack who were not immediately incarcerated or killed after that incident.  But, military action authorized by Congress in the wake of that event, carried out by Presidents George W. Bush and Obama, has resulted in the death of mastermind Osama bin Laden and many of his key subordinates and succcessors and their associated.  This military action led to the exile of the Afghanistan branch that planned the 9-11 attack to the frontier provinces of neighboring Pakistan.  The U.S. has captured and militarily detained many other individuals involved sometimes tangentially and sometimes influentially in the organization that planned and carried out the 9-11 attacks.  All together, more people have died at the hands of the U.S. and its allies in military actions seeking retribution for the 9-11 attackes (even excluding entirely the Iraq War which Dick Cheney claimed counterfactually was justified in some way by the 9-11 attacks that Iraq had absolutely no involvement in), than were killed in the attacks themselves; far more than had any meaningful or even tangential involvement in the 9-11 attack itself.

In short, existing criminal laws have a perfect record of holding people who personally carry out these incidents accountable in a way that makes repeat incidents by the same person or an ordinary post-incident life for that person, impossible.  And, in the only incident with substantial non-participant organization that was a terrorist act by a significant group of individuals, rather than a "going amok" act or plot of just a couple of individuals (and incidentally, an incident that did not involve firearms or explosives), vengence has still be very complete and effective.

There is essentially no room for improvement in the criminal justice response to these incidents.

Preventing Future Massacres

Deterring the people who carry out these incidents with the threat of extreme, swift and certain consequences for their acts is futile.  These consequences are already in place and haven't prevented these incidents from taking place at a very low level.  Criminal justice consequences don't matter to someone who is planning on dying in the course of their killing spree anyway.

Improved Mental Health Treatment

One approach which has been proposed has been to do a better job of identifying people whose mental health problems and pre-incident behavior marks them as a threat to others and themselves, and to be more effective in treating them and denying them access to weapons. 

The Mental Health System Is Fundamentally Broken

The mental health treatment system in almost all parts of the United States is deeply flawed.  It has never recovered from the blow is suffered when the mentally ill were deinstitutionalized; it has been reconstructed in only a piecemeal and inadequate way.

It is underfunded.  It is not very proactive.  It does not communicate names of people who should be prohibited from purchasing guns to gun purchase background check agencies reliably as U.S. law ineffectively mandates.  It is conflicted by tensions between a core principle of client confidentiality and the exceptions to those principles in situations where someone poses a threat to others or himself.  There are far more mentally ill people who are incarcerated, often for misdemeanors or quite minor felonies, and receive no treatment while incarcerated, than there are inpatient mental health patients - when these inmates terms of incarceration expire, they are at high risk of reoffending, perhaps in more serious ways.

But, even a much improved mental health system might not have much of an impact.  While there are just a couple of going amok massacre incidents in any given year, the profile of people at risk of committing them is sufficiently vague that the number of people who pose a greatly elevated risk of committing them at any one time is not less than 200,000 and could easily be 2,000,000 or more.  The likelihood that someone who after the fact would seem to have had all of the warning signs that he was about to carry out a massacre would, before the fact, have presented only a 1 in 100,000 or a one in a million chance of doing so.

On the other hand, an across the board improvement in basic mental health care systems, not directed primarily at preventing incidents like the Newtown Massacre certainly would be a good thing for all sorts of reasons not closely related to public safety, and might prevent some of these incidents as well, without anyone ever knowing it.

Moreover, the people who are in the best position to gain advanced knowledge of some sort of planning to commit a massacre (which is often fragmentary or entirely undocumented, as perpetrators often act alone and are private loners in their everyday lives), are often not part of the corps of professionals who can be feasibly taught to recognize the kind of conduct that is a warning sign for conduct that could cause deadly harm to others.

An overly pro-active response could produce vast numbers of false positive warnings on the basis of non-specific and non-definitive warning signs with consequences that could be as harmful as they are helpful and could simply cause people at risk of avoiding voluntary treatment for their mental health issues entirely.

Intermediate Responses To Mental Health Risks

One possibility to encourage precautions in gray areas would be to have options for concerned informants that are intermediate between calling 9-1-1 or seeking a short or long term mental health commitment, and doing nothing.  This could prevent incidents in the common cases where a threat is less than clear.

One would be the possibility of allowing concerned individuals to put a "yellow card" in a gun purchase background check database, based upon a reasonable suspicion, rather than probable cause or some higher standard of certainty, that there are concerns about someone's fitness to purchase a gun.  This "yellow card" might expire after some set period of time, but while in effect would trigger more of an investigation by authorities than a bare record check before granting permission to purchase a firearm.  The yellow card concerns would be made known to the person who would have an opportunity to rebut them, but there would be genuine investigations rather than mere record checks in cases where someone had flagged a concern.

Another would be to have a category of mental health determination below that for which a civil commitment was authorized, in which the individual adjudicated to be subject to it would remain in the community, but would be subject to search and check ins with officials similar to those for people on probation.  These kind of determination might require the same kind of probable cause needed for an ordinary search warrant (in this case, probable cause to believe that individual is a threat to himself or others), might be limited in duration, might come with a temporary gun ban while it is in force, and like a temporary restraining order might be capable of being undone in a hearing scheduled promptly after it is imposed.

Juvenile and Educational Disicpline Privacy

The sealing of juvenile deliquency records and secrecy surrounding juvenile delinquency proceeding and education insitution disciplinary records can deprive communities that include people who were involved in these incidents of the capacity to connect dots from prior behavior to current risks and from recognizing risks when they are present. 

Details of a juvenile delinquency and educational institution disciplinary record are frequently excellent predictors of future anti-social activity, and in the case of fairly young offenders who have recently had their records sealed, are far more probative of the risk that they pose to the public than their adult criminal records which are matters of public record.

On the other hand, the desire to give youthful offenders a fresh start is a major commitment of the current juvenile deliquency and educational discipline system that is deeply embedded in the current system both as a matter of state and federal law, and as a matter of the institutional culture of the organizations that administer these laws.

Gun Control

Gun control can dramatically reduce going amok massacres, murders, gun based violent crimes, and suicides.  But, it is only more than slightly effective if it involves, at least, a comprehensive ban in an entire border controlled country.  However, increased efforts to crack down on failures to secure guns from theft and on gray and black market gun transfers, and to improve background databases for gun purchasers might help somewhat.

American Exceptionalism

The United States in almost the only country in the world that has meaningful constitutional protection of the right to bear arms, and has levels of gun ownership which are stunningly high compared to most developed countries (the most notable counterexamples would be countries like Israel and Switzerland where there is mass gun ownership as a result of very comprehensive citizen militia membership as a matter of national security).  The United States is especially unrestrictive when it comes to the ability of private individuals to own handguns and to possess concealed weapons.

It is also clear that most of these massacres would have no have occurred at all, or would have been far less deadly, if the perpetrators had not had access to guns (in 54 of 62 cases, in particular, to handguns). 

Gun Control That Actually Works Is Mostly An All Or Nothing Affair

But, as the Newtown incident where the perpetrator stole the guns from his mother who was legally in possession of them, and the NRA slogan that if guns are illegal only criminal will have guns, illustrate, gun control measures can be only slightly and incrementally effective in the context of a nation where there are no internal border controls and there is widespread gun ownership. 

For example, a large share of the guns used in crime in both the Northeastern U.S., where the entire region long had strict gun control laws, were purchased in the South where gun control laws were more liberal and brought across unpatrolled borders to that region. 

Similarly, while Mexico has strict gun control law, enforcing those laws is difficult because internal policing efforts are deeply corrupted and rendered ineffectual by the illegal drug trade there (which is mostly financed by U.S. based consumers of illegal drugs).  And, while border crossing trips out of Mexico into the U.S. are highly regulated, trips from the U.S. to Mexico are not.  As a result, criminals have widespread access to guns in Mexico, most of which are purchased in the U.S. in states with weak gun control laws and then illegally exported to Mexico. 

In any situation where there are many people who can potentially have their guns stolen from them, or illegally sell their guns to people not allowed to own them, formal legal prohibitions on gun control will not be very effective in stopping the potential perpetrators who pose the greatest threat to public safety.

Gun control is close to useless if it is not comprehensive within an entire border controlled region in which law enforcement is otherwise generally able to maintain the kind of civilized, orderly societies where legal prohibitions are capable of having real meaning.

The only kind of gun control that has been proven to be effective, in places like Canada, the United Kingdom, Australia and Japan, is a nearly comprehensive ban on private handgun ownership.  Even in countries like Israel and Switzerland, where gun ownership is nearly universal as a result of large citizen militias, handgun ownership and possession are quite rare.  Comprehensive handgun ownership bans reduce the number of gun related homicides by 98% of more, and also materially reduce gun related suicides (the number of accidental deaths from guns would also be reduced, but is very modest relative to the number of gun related homicides and suicides).  A nearly comprehensive ban on handgun ownership might not reduce going amok massacres by the same percentage as these individuals might be more likely than most to use long guns if handguns weren't available, but it would surely reduce the number of people killed in going amok incidents materially as well.

This point was made nicely (via a Volokh Conspiracy post) by "Charles Krauthammer — a conservative, but one who is distinctly anti-gun — writing in the Washington Post in 1996:

The claim of the advocates that banning these 19 types of “assault weapons” will reduce the crime rate is laughable.... Dozens of other weapons, the functional equivalent of these “assault weapons,” were left off the list and are perfect substitutes for anyone bent on mayhem....

In fact, the assault weapons ban will have no significant effect either on the crime rate or on personal security. Nonetheless, it is a good idea, though for reasons its proponents dare not enunciate. I am not up for reelection. So let me elaborate the real logic of the ban:

It is simply crazy for a country as modern, industrial, advanced and now crowded as the United States to carry on its frontier infatuation with guns. Yes, we are a young country, but the frontier has been closed for 100 years. In 1992, there were 13,220 handgun murders in the United States. Canada (an equally young country, one might note) had 128; Britain, 33.

Ultimately, a civilized society must disarm its citizenry if it is to have a modicum of domestic tranquillity of the kind enjoyed in sister democracies like Canada and Britain. Given the frontier history and individualist ideology of the United States, however, this will not come easily. It certainly cannot be done radically. It will probably take one, maybe two generations. It might be 50 years before the United States gets to where Britain is today.

Passing a law like the assault weapons ban is a symbolic — purely symbolic — move in that direction. Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation. Its purpose is to spark debate, highlight the issue, make the case that the arms race between criminals and citizens is as dangerous as it is pointless.

De-escalation begins with a change in mentality. And that change in mentality starts with the symbolic yielding of certain types of weapons. The real steps, like the banning of handguns, will never occur unless this one is taken first, and even then not for decades....

As Krauthammer notes, in the short run, the only kind of gun control that could really work well is politically impossible.  Indeed, recent U.S. Supreme Court interpretations of the Second Amendment would very likely be held unconstitutional now as well, something that makes the prospect of meaningfully effective gun control seem even more distant now than it was in 1996 when he wrote his article.

Regulating Illegal Gun Transfers And Failure To Safeguard Guns

Still, cracking down through civil liabilty or criminal penalties, on people who transfer guns to people who are not allowed to have them and use them in crimes, or fail to secure guns that are as result fall into the wrong hands and are used in crimes, may be one of the most fruitful ways, short of outright gun prohibition, to prevent gun crime.  In particular, it is the most viable gun control approach to preventing some future going amok massacres like the one in Newtown, Connecticut.

This would be particularly the case if a crack down on sources of illegal guns was accompanied by more effective incorporation of mental health and juvenile delinquency and educational disciplinary information in databased that must be checked for someone to be eligible to legally purchase a gun.

While mentally deranged massacre perpetrators and violent criminals may not be deterred or influenced in their actions by laws further criminalizing those acts, legal gun owners or minor criminals who contemplate getting involved in the black market or gray market gun trade might be very persuaded to secure their own guns more effectively and to refrain from making technically illegal gun transfers, by threats of serious civil and criminal liability for doing so.

The community might also consider the acts of people who make it possible for perpetrators to gain access to guns might also be more strongly condemned morally, if the law clearly and specifically made their conduct illegal.  A shift in community moral norms about transferring guns to people in the gray market or black market, and about failing to secure guns from theft adequately, could bring about widespread voluntary compliance and reporting of third parties who fail to honor these widely accepted moral obligations to law enforcement.  Yet, this kind of reform might be moderate enough in its impact on lawful gun owners to potentially overcome resistance of the vast majority of people who legally own guns in time.  Legal gun owners right now often proudly talk about the importance that they place on training and safety precautions.  Moral disapproval of gray and black market gun transfers and inadequate gun safeguards could be incorporated into that ethos.

For example, in the Newtown case, the perpetrator's mother might have more effectively secured her guns if these kinds of laws were on the books and has made their way into the ethos of lawful gun owners.  It might very well not have done that, but the chance of that happening would have been greater if these laws were on the books at the time.