After wading through the initial shock and horror of the murder of 32 students and faculty at Virginia Tech on April 16 by student Seung-Hui Cho, there is a natural impulse to rush to enact laws to prevent this type of tragic event from ever happening again in our schools. As professionals, as parents, as concerned members of a community, we have a felt need for an immediate response to ensure that schools are safe and secure places to learn and grow. Action is demanded. Not only must this opportunity/obligation not be squandered, but we must make sure that by our actions we do not make things worse.
Legal reform and unintended consequences
Law reform always involves a risk of unintended negative consequences. Legislation designed to fix one problem often creates others. Even under the best of circumstances, it is difficult to anticipate all of the unintended consequences of any legislation. We can reduce those unintended consequences with careful planning but never eliminate them completely.
Law reform in the wake of the Virginia Tech killings involves some known negative consequences to be avoided. From the mental health standpoint, one known risk is reinforcing a link between mental illness and dangerousness. Much effort has been put into decoupling mental illness and dangerousness in order to destigmatize mental illness to encourage people to come forward for treatment, to encourage legislators to fund mental health care adequately, and to encourage employers to hire the mentally ill. Given the violence at the heart of this incident, it will require great care to proceed in a way that does not reinforce a link between mental illness and violence and turn back the clock on public opinion. It would make the Virginia Tech incident even more tragic if the price to be paid included discouraging people with mental illness from seeking treatment voluntarily, discouraging government support for research and treatment, or discouraging employment of persons with mental illness.
This incident of violence in Blacksburg and its consequences risk undermining many therapeutic innovations in dealing with persons with mental illness in the judicial system. One interesting judicial innovation is mental health courts, which abound across the country. Typically, with the consent of the prosecution, the defendant, and the court, criminal defendants charged with minor crimes whose underlying problem is a mental disorder are given the option of putting the criminal charges on hold and pursuing mental health care under close monitoring. If treatment is successful, the criminal prosecution is dismissed. Although these programs have been remarkably successful, they inevitably result in some antisocial behavior. Thus, these programs require the goodwill of the prosecution and the judge and the support or tolerance of the community. The Virginia Tech shooting is the kind of event that can result in the loss of tolerance of any antisocial behavior, thereby undermining support for mental health courts and similar diversion programs.Considering a legal response
Conscious of the risk of these unintended consequences, how should we proceed with a legal response? Thinking about what is the right legal response to this tragic event, one is reminded of H.L. Mencken's caustic observation that for every complex problem in society there is a solution that is simple, straightforward, and invariably wrong. No magic pill exists. There is no law that will solve a problem that encompasses our attitudes about coercion, economics, autonomy, culture, violence, and the availability of firearms and mental health care. Law must be part of the response but is never theresponse. Ironically, even if there were a legal panacea, it is unlikely that we could reach agreement on what it was. In response to these events, one governor has already suggested that we make guns less available and another has suggested that we make guns more available!
What description of the problem to be resolved should frame a legal response? It is important that we not let these events singularly define the mental health legal agenda. John Hinckley's trial misrepresented the insanity defense for millions of Americans who were unaware that it was atypical and unrepresentative both in the number of experts on each side and in the outcome. The events that took place at Virginia Tech on April 16 are unrepresentative of life at most schools, which are not violent places. In order to identify the mental health problems that exist at most schools, careful fact gathering is required. This fact gathering requires the input of a broad range of representatives from mental health professionals, law enforcement, students and their families, and advocacy groups. These events should precipitate a reexamination of the rules that govern confinement of the mentally ill, but examination should be broader than the particulars of this shooting. What is it that makes some schools safer than others? Are the statutory standards for emergency intervention being interpreted or applied inconsistently? What mental health resources are available across the states, and what are the barriers to their use?
An irony of letting an event as unrepresentative as this shooting define a mental health legislative agenda is that it loses sight of the problems that affect more Americans. It is not that they need but will not accept mental health care, but rather that they want but cannot afford mental health care or that it is not available. Mental health parity, funding mental health research, and funding of mental health care got lost in the immediate aftermath of the Virginia Tech shooting.Defining a threshold for intervention
Of course there is good reason to conclude, in this case, that the threshold for emergency intervention failed to do what it ought to do. The goal of a revision of this threshold should be an optimal convergence of public safety, evidence-based medicine, and personal autonomy. Different communities have different risk tolerances and therefore the optimal level of public safety will vary from state to state. That is a policy question for the citizens of the state to decide. One suspects that public policy in Virginia will demand less risk tolerance after this incident.
In Virginia, on April 16, 2007, emergency intervention was conditioned on a finding that a person with a mental illness "presents an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill as to be substantially unable to care for himself . . . , is in need of hospitalization or treatment, and . . . is unwilling to volunteer or incapable of volunteering for hospitalization or treatment."1 For that expression of the public pulse to result in an optimal level of public safety, autonomy, and effective treatment, it must be clinically as well as legally meaningful. While imminence may have a popular meaning, it has no grounding in evidence-based medicine. Thus, it is unlikely to result in psychiatric input that will bring about reliable or sensible decisions.
Finally, personal autonomy has an important role to play here that is not only about civil rights and liberties ("rotting with your rights on"2for the skeptics) but also about how the mental health and criminal justice system fit together. To punish those who make decisions to do bad things requires that we give people the choice of whether to act within the law. We intervene preventively because we conclude that a person is making bad or dangerous choices because of a mental disorder and cannot be trusted to make good decisions. Thus, indirectly, civil commitment standards for preventive intervention also define the scope of insanity defense and other defenses that exculpate because of mental incapacity. To achieve a broader reach in civil commitment, society must be willing to tolerate broader exculpation of "crazy" criminal behavior. Given his extensive planning and preparation for his acts, if Seung-Hui Cho had been captured after these killings, should he have been found not guilty by reason of insanity?
A word of caution: There will be no simple, single fix for what went wrong in Blacksburg at Virginia Tech on April 16, 2007. Although failing to respond to it is not viable, each potential response is fraught with risk. But the biggest risk is that we have determined the answers before a full investigation of the problem is complete.