February 7, 2013
The Honorable Ted Cruz
The United States Senate
Dear Senator Cruz:
Thank you for inviting me to share my expertise concerning the problem of gun violence in America. My published books and law review articles examine, among other subjects, black history, the origins of American gun culture, the judicial interpretation of both federal and state right to keep and bear arms provisions, and the history of mental health care in the United States. My work has been cited in D.C. v. Heller (2008), McDonald v. Chicago (2010), and many decisions of the U.S. Courts of Appeal and state supreme courts.
Attached please find an article from the Federalist Society publication Engage published last year: “Madness, Deinstitutionalization & Murder.” The Engage article examines the role that the deinstitutionalization of the mentally ill, starting in the 1960s and reaching full fruition in the 1970s, played in increasing murder rates. Of most relevance to the recent tragedy in Connecticut, deinstitutionalization turned what had been a shockingly rare event — random acts of mass murder — into something that horrifies us but no longer shocks us because such incidents happen several times a year. This article is adapted from a chapter in My Brother Ron: A Personal and Social History of the Deinstitutionalization of the Mentally Ill (2012).
That deinstitutionalization increased murder rates is not an impressionistic or anecdotal claim: as the article points out, multivariate correlation analysis by Prof. Bernard Harcourt of the University of Chicago demonstrates a statistically significant negative correlation between murder rates and total institutionalization rates (the sum of prison and mental hospital occupancy) for the years 1928 to 2000. Using an entirely different technique, Prof. Stephen P. Segal of University of California, Berkeley demonstrated in 2011 that three measures of mental health care systems are statistically significant in relation to state-to-state variations in murder rates. Indeed, one-third of this variation can be explained by one factor alone: the relative ease of involuntary commitment of the mentally ill.
The evidence for this is includes not only the many examples in the Engage article, but also the details of many of the most recent and most horrifying of these mass murders. James Holmes is the man being tried for the murders in Aurora, Colorado. Several weeks before those murders, his psychiatrist was sufficiently concerned about him to contact local police. The exact nature of those contacts, of course, is now tied up in court proceedings, but for a psychiatrist to break doctor/patient confidentiality suggests that she believed she had a Tarasoff obligation to inform the police that her patient was a danger to others. Unfortunately, Colorado’s current emergency commitment statute creates an extraordinarily high standard of what constitutes “imminent danger to others or to himself”, and James Holmes apparently was not considered an “imminent risk.”
Similarly, news reports quote a friend of the Lanza family claiming that Mrs. Lanza was attempting to have her son committed at the time he went on the rampage in Newtown, Connecticut. Because court records on such proceedings are not public, the most that local police officials could confirm was that there was some discussion about future mental health care for the son.
Yet while the connection between deinstitutionalization and these random acts of mass murder is abundantly clear, the focus on these relatively rare crimes (totaling less than 1% of all U.S. murders each year) obscures the far more common murders by mentally ill offenders that receive only local news coverage, because they involve only one or two victims.
As the Engage article points out, at least 18% of Indiana inmates convicted of murder are mentally ill: a more detailed examination of the data shows that 11% of Indiana murder convicts are suffering from psychotic conditions that have caused them to lose connection to reality. By my estimate, it is likely that there are 1,300 to 1,400 murders a year in the U.S. by such severely mentally ill offenders.
Of these, about 500 likely involve weapons other than firearms. (One example from last Tuesday: a mentally ill woman in Sebastopol, California, charged with stabbing her mother to death.) Any gun-control measures are guaranteed to be ineffective at reducing non-gun murders by mentally ill offenders. At best, they can only reduce murders with guns — and only the very optimistic believe that gun-control laws will make anything but a marginal improvement in murder rates.