Evolution, Prevention, andResponses to Aggressive Behvior and Violence - Robert M. Sade

remember vividly the first big operation I ever per- formed. I was a junior resident in surgery at Boston I City Hospital in the early 1960s, during a particularly

intense phase of a nasty gang war between South Boston and East Boston gangs. Before that hot summer night, I had done a large number of relatively simple operations: skin grafts, tendon repairs, and appendectomies, for example. But this one was to be a much bigger operation.

Late Friday night, a victim of gunfire was brought to the emergency room. He has been shot in the abdomen at close range with a shotgun. It took many hours of operat- ing to remove several badly damaged segments of small and large intestine, debride and repair numerous holes in those organs, remove part of a kidney, and construct a colostomy. The victim, it turned out when he awoke the next day, was a personable young man with a pleasant, engaging personality, in his late 20s. He also was a killer. As a member of an East Boston gang, he filled the role of hit man. My conversations with him during his two weeks of recovery provided fascinating insights into the psyche of a professional killer.

Frank, as I will call him here, was fully aware that what he did for a living was illegal, and that he would suffer severe penalties if the authorities could connect him to one of his murders. He did not think that what he did for a living was wrong; it was a necessary function to assure the survival of his friends, himself, and their gang. He saw avoiding being caught and prosecuted for his acts of violence as a challenge, but as far as the murders them- selves were concerned, he was merely doing his job.

I was rudely awakened to the potentially dangerous situation my conversations with Frank had created for me

Journal of Laui, Medicine G Ethics, 32 (2004): %17. 0 2004 by the American -society of Law, Medicine & Ethics.

when a detective from the Boston Police Department asked to speak with me. He wanted any information I had learned from Frank about the crimes he had committed; in particu- lar, he wanted to know where the bodies were buried. The police needed proof of a crime before they could arrest him. My imagination did not provide much comfort as it displayed for me, in vivid color (mostly red), all the ways the colleagues of my patient could deal with the surgeon who turned in their buddy to the police. Fortu- nately, Frank had given me no information that could be useful to law enforcement, so I could honestly plead igno- rance and remain a mere spectator in the “game” my patient was playing with the police. Frank was not a spectator, however. He returned to the emergency room the follow- ing year, this time with several well-placed bullets, no heart beat, and no future.

Health care workers in many disciplines have close contact with both victims and perpetrators of violent crime. In fact, they sometimes become victims of purposeful acts of violence. Perhaps the most egregious example of such victimization is the technique, commonly used by terror- ists, of exploding a small bomb in a crowd, then waiting for police and rescue workers to arrive.’ Thirty minutes or

at the reship.

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so after the first bomb explodes, when emergency health care workers and police have arrived in large numbers, a much bigger second bomb is detonated to do maximum damage to the most people, particularly highly valued health care personnel.

The fact of personalized aggression against health care personnel was brought very close to home at our academic medical center recently. A traffic accident involv- ing two vehicles occurred at a street corner adjacent to the medical center campus. Several nurses responded to an emergency call by rushing to the site of the accident. One of the drivers, asked if he was all right, pulled a gun from his car and shot two of the nurses, one of whom died shortly thereafter from massive chest injuries. The gunman fled the scene and was apprehended 20 minutes later after killing a police officer. The second nurse survived after a series of operations. That incident heightened our aware- ness of the intimate connection between violent behavior and health care.

Although a good deal of attention has been paid in the medical and bioethics literatures to domestic violence in recent years, less has been paid to the phenomenon of violence itself. We therefore held a conference in Septem- ber 2003 and invited some of the nation's leading experts to discuss some of the underlying biological and genetic associations and causes of aggressive behavior as well as to address questions of how we as a society and as profes- sionals in the health, legal, and law enforcement professions should respond to violence. One widely supported but politically controversial response is to limit the availability of the most lethal weapons used in homicides, guns, so we invited two well-known advocates of opposing positions on gun control to address that issue, Frank Zimring and Lance Stell. Two controversial measures designed to prevent violent acts through the use of law enforcement are preventive confinement of dangerous offender- particularly sexual predatorsand suppression of commu- nications believed to incite violent behavior. These topics were addressed by leading legal scholars, Stephen Morse and Lillian BeVier, respectively. Improvements in our approach to violent crimes, one focusing on recognizing and respecting the rights of victims as well as those of criminals and the other on using the tools and techniques of public health to address aggressive behavior were discussed by prominent scholars in those areas, Dean Kilpatrick and Deborah Prothrow-Stith.

A brief summary of the presentations will place them in context, the texts themselves constitute the content of the symposium section of the Journal.

THE FUNDAMENEMS OF VIOLENCE

Violent behavior toward others seems to be omnipresent in human societies. This suggests that such behavior may

somehow be determined, arising from hormones, neural connections, or other chemical, physiological, or anatomi- cal substrates, which in turn may arise from our common genetic heritage. On the other hand, there is evidence that aggression is largely learned and, at least to a large extent, environmentally or socially determined. It should not be surprising that we are eager to know where violent behav- ior comes from and, if there is an aggression gene or genes, what we might do with such information. These are the kind of questions addressed by our first two essayists.

Evolutionary &a, aggression, and violence: lessons from primate research Is aggression a drive that is hard wired in human beings as a response to threatening situations or is it merely one of several options for resolving conflicts? Many theories regarding the nature of aggressive behavior in people have been proposed in the past, but they are often difficult to study and verrfy. Some answers to these questions may be suggested by studying aggression in non-human primates, carrying out experiments that would be difficult or impos- sible to do in people.

Frans de Waal makes a strong case for the parallels between the aggressive behaviors of higher primates and human beings. A good deal of our early understanding of the nature of aggression came from an experimental model pioneered by Konrad Lorenz. This model led to the idea that aggression is an instinct that is essentially antisocial, arising out of frustration, pain, or other influences. More recent work, starting in the 1970s, has utilized a relational model, pioneered and championed by de Waal, that high- lighted the importance of social relationships. Reconciliation has been found to play a central role in moderating aggressive behavior. After a conflict, friendly reunions of one kind or another, depending on the situation and on the species, occur immediately after the conflict. Media- tion is another process that moderates aggression. For example, immediately following a fight, two chimpanzees sit opposite each other with no eye contact, making recon- ciliation virtually impossible. After a short time, however, a third player appears, always an elderly female, who serves as an intermediary between the two, until hostility abates.

Experimental observations have shown a higher frequency of friendly contact between pairs of individual monkeys after they fight than in the absence of aggression. This has been called post-conflict attraction. Aggression often seems actually to bring individuals together rather than drive them apart as a consequence of the reconcilia- tion mechanism, a counterintuitive conclusion of de Waal's studies.

Reconciliation mechanisms have been found in every primate species in which they have been studied, and investigators have consistently found the mechanism to be

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present also in non-primates, such as goats, hyenas, and dolphins. The only species in which no conciliatory behavior has been observed, despite appropriate study, is the domestic cat, not surprising to those who have ever lived with one. Reconciliation also has been documented after conflicts between children in schoolyards.

These and similar experiments have led to the ualuable relationship hypothesis: conciliatory behavior will be strongest between individuals who stand to lose a great deal if their relationship deteriorates. Among chimpanzees, for example, if two weaker males together can dominate a third male who is stronger than either of them, the great value of their relationship leads to rapid reconciliation after they fight with one another. Similarly, pairs of mon- keys who obtain their food by operating a machine that requires two operators reconcile after fighting far more quickly and frequently than pairs whose food is obtained without the need for cooperation. The valuable relation- ship hypothesis seems to hold in human relationships as well. For example, reconciliation by politicians after nasty primary campaigns is common, and some researchers have reported similar findings in studies of marital relationships.

Experimental evidence suggests that reconciliation is not instinctive, but is an acquired social skill. Rhesus monkeys are aggressive, unpleasant, and rigidly hierarchi- cal, while the closely related stumptail monkey is conciliatory and easygoing. When groups of rhesus monkeys are housed together with mentors-slightly older stumptail monkeys-their conciliatory response comes to resemble that of stumptails, and this behavior persists long after the subjects and their mentors are separated. Thus, it seems that reconciliation following conflict can be learned, further suggesting that aggression can be best understood in a social context and may be substantially undetermined by biological factors.

Monkeys have also been found to have what might be interpreted as a rudimentary sense of fairness or justice. De Waal recently reported an experiment in which a mon- key was given a pebble and was trained to give it back to the researcher in exchange for a piece of cucumber. When one of a pair of monkeys was given a grape, more highly valued than cucumber, its partner would no longer accept the cucumber about half the time. If a grape was simply given to a monkey without having to accept and return a pebble, its partner nearly always refused the pebble or cucumber, often with an aggressive reaction such as throw- ing pebbles and food out of the cage. This reaction seems similar to the outrage many human beings express in reaction to what they perceive as unfairness or injustice.

The degree to which observations and experimental conclusions in higher primates can be validly transferred to human individuals and communities is unknown. Many sociologists doubt that such findings can be mapped onto human behavior in human societies, given our much more

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highly developed capacity for abstraction and rational thought processes, as well as our far more com- plex social organization. Nevertheless, de Waal's data and the hypotheses they generate seem to bear close resem- blances to the human situation, permitting the reasonable speculation that, at the least, aggressive behavior and perhaps morality in primates and in man lie on more or less widely separated points on the same evolutionary line.

WHAT WOULD BE THE VALUE IN IDENTIFYING INDIVIDUAL GENETIC PREDLSPO!XIION TO VIOLENCE?

We hear and read a great deal about the tremendous potential of gene technology to make our lives better and cure diseases. De Waal's data suggest that aggression may be less biologically determined than many have believed; nevertheless, heritable material has been correlated with a variety of human behaviors. Studies of twins who are raised in the same or in different environments have been the main source of the observations that between 30% and 70% of many behaviors seem to be inherited, that is, seem to be related to genetic variations among individuals. The remaining 70% to 30% of those behaviors are related to environmental factors.

Is a tendency to aggressive behavior genetically deter- mined? Several years ago, a great deal of consternation and debate arose in response to a correlation that was found between violent behavior and the presence of one X and two Y chromosomes in somatic cells. It now seems likely that XYY males exhibit no more criminal activity than X Y males of similar intellectual levels. Nevertheless, interest in identifying genes that might predispose to violence has persisted. Recent information suggests that such genes may, in fact, exist. About 12% of the male popu- lation is likely to commit the majority of the violent crime in our society. If genetic profiling could identdy some of those individuals, what could we or should we do with that information?

That is the central question David Wasserman addresses in his essay. He reviews the heritability studies showing that many behavioral traits are roughly half related to heredity. Those studies were mostly done before our manipulation of genetic material had developed to its current level of sophistication. The main criticism of those studies is that they are merely statistical associations and cannot define exactly what material is inherited or how that material affects development of specific traits.

Study of the genetics of behavioral traits gained impe- tus in the 1980's and the 1990's when several genetic markers were found to be associated with a few psychiatric and behavioral disorders, such as schizophrenia and alcoholism, Later, a gene was found to be associated with violence and aggression. Simplistic associations, however, rapidly gave way to the realization that psychological traits probably

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are affected by many genes, and each of those genes prob- ably affects many different areas of development and function. For those reasons, a causal connection between genes and behavior will require a great deal more knowl- edge about physiological process than is currently available.

An interesting recent finding was an association between the commission of violent crimes and the combi- nation of maltreatment during childhood and a low monoamine oxidase A (MAOA) activity level, which is genetically determined. These findings suggest a protec- tive effect of high levels of MAOA activity against the damaging psychological outcomes of childhood maltreat- ment. Yet, Wasserman argues, MAOA genotyping is unlikely to be useful in developing active treatment for individuals, and he adduces a wide range of persuasive reasons for supporting that position.

Even if genetically low MAOA males could be both identified and treated, it is not clear how effectively violence would be reduced. In the social context of a community with low rates of violent crime, identdying and treating high risk children might significantly reduce crime, but this effect might be hard to detect because of the already low crime levels. Any genetic factor that predis- poses to violence is likely to be much less important in societies with widespread violence than in those in which it is relatively uncommon. This is because many sociopolitical factors are likely to contribute to violent activities in such societies, diluting the influence of genetic factors. Moreover, even if pharmacological prevention of low MAOA activity were available, it could have substan- tial negative affects. For example, those with low MAOA levels might be more likely to behave heroically in combat situations or in life-saving Good Samaritan interventions. As a society, we many not wish to forego the value of such positive behaviors.

Wasserman suggests that genetic factors predisposing to violence may be most useful in retrospect, that is, if used in the moral and legal assessment of individuals who have predisposing genetic and environmental factors for violence. Assignment of responsibility for violent acts may vary with two aspects of volition and action: the extent to which the individual’s actions are the result of normal deliberation, and the extent to which the individual identi- fies with or endorses the desires underlying his action. Thus, a man who robs banks because that is where the money is seems more responsible for his actions than the man who robs banks because he has a delusional belief that he already owns the money that the bank is withhold- ing from him. Also, those who embrace their desires and act wholeheartedly, such as my patient, Frank the hit man, seem more responsible for their actions than those who are unhappy about the desires underlying their actions. Thus, if an individual has committed a violent act and was maltreated as a child, we might be more lenient in judging

him if we knew that he had a genetically low MAOA level. This would not excuse his act, but could be an additional mitigating factor.

An individual with a simple genetic predisposition to violence might have reduced accountability for his action, but at the same time, would have more am’&utability, that is, the extent to which violent acts are thought to be in character. Alternatively, violent behavior due to genetic vulnerability to environmental stressors, as occurs in individuals with low MAOA levels in an abusive environ- ment, might have the effect of decreasing accountability without increasing attributability, that is, the second individual might not seem as inherently violent as the first. The abused low MAOA transgressor would appear to some to be victimized twice, first by maltreatment during child- hood, and second by unlucky absence of genetic protection from that maltreatment.

CON’I’ROUNG~IREARMS: WHAT CAN W E EXPHX?

The gun control debate has been underway in this country for decades. Some see guns as the b&e noire of civil society: they are the reason our counuy has the highest violent crime rate of all industrialized countries, and there- fore they should be strictly controlled. Others see guns as the great equalizer, the means for smaller and weaker indi- viduals to defend themselves against bigger and stronger predators, so should be widely available to those who feel the need for such self-protection. There is no question that firearms play a prominent role in the way Americans view violent behavior, but what, if anything, should be done about it is a question that is still hotly debated as our national policy remains unsettled.

Firearms, violence, and the potential impact of gun control. Guns are used in only 4% of all crimes, and in only 20% of all violent crimes. Why, then, do guns get such a bad rap? Frank Zimring provides the reason: guns are responsible for twice as many deaths during criminal acts as all other means of killing combined; fully 70% of all criminal killing result from the use of a gun. During criminal assaults, guns are seven times more likely to kill than all other kinds of assaults combined and about five times more likely to kill than knives.

The lethality of guns during assaults is related to mechanics: the large injury impact of bullets, the long range of firearms, and the capacity of guns to be used in multiple attacks. There are also social features that relate to lethality of gun use: an attacker may fear that his adversary has a gun, an adversary may actually have a gun, thereby requir- ing a deadly response, and guns are generally available, leading to their relatively frequent use in personal conflict.

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On the positive side, a gun carried by a potential victim may deter assaults and attempted assaults.

Attacks with guns are so deadly, Zimring points out, because wounds from gunfire produce more damage than do other weapons. Many assaults with weapons are not motivated by a single-minded intent to kill, and, in those cases, a more damaging weapon is more likely to result in death. Almost half the households in this country have some kind of gun and about 1/4 of all households have a handgun. Clearly, only a small percentage of all gun owners become attackers. Guns are not dangerous attack weapons if they are not used to attack. Gun use is not a necessary nor is it sufficient cause of violent death; rather, it is a contributing cause. When guns are used frequently in assaults, the death rate from assaults will be high. The assault rate in this country is no higher than many other countries, but our death rate from assault is extraordinary. A large number of loaded handguns, say 1O,ooO, introduced into a relatively non-violent society will produce few addi- tional violent deaths. The same large number of loaded guns in a society with high assault rate and willingness to use a gun in an attack will produce a large number of deaths. The United States more closely resembles the latter.

The objective of gun control is to decrease the death rate from criminal assault by decreasing the use of loaded guns in those assaults. Gun control strategies have included prohibiting dangerous uses of guns-no concealed hand- guns in airports, churches, schools, etc.--restricting dangerous users from obtaining guns-convicted felons, young persons, the emotionally disturbed-and prohibiting personal ownership of particular types of guns-automatic weapons, sawed-off shotguns, and semiautomatic assault weapons. These approaches are used in one mixture or another in every jurisdiction in this country.

In answering the question of whether gun control strat- egies can work, it is a category error to assert that they either will or won’t work. The need is for identification of specific policies and contexts in which such strategies can decrease the use of guns in violent assaults while simulta- neously aiming at reasonable public and personal costs.

The production of crimlnal violence in Amerim is strict gun control the solution? Lance Stell agrees with many of Zimring’s statements. He takes vehement exception, however, to the idea that the key to decreasing the homicide rate in this country is reducing the percentage of homicides committed with guns. He carries the discussion further by arguing, Zimring’s assertion of category error notwithstanding, that all policies intended to produce a scarcity of handguns in the general population are useless.

He begins with an analogy to suicide, which is not a crime, but is nonetheless commonly counted as a violent

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death. Zimring’s instrumentality hypotbeskassaults with guns are five to seven times more deadly than with other weapons because of their greater inherent lethality-&ould apply to suicides. The instrumentality hypothesis predicts that countries with a relative scarcity of guns, resulting in a smaller and lower percentage of gun-related suicide, should have lower suicide rates than this country. In fact, how- ever, countries with very restrictive gun policies and lower gun prevalence than this country have higher suicide rates, even though fewer suicides are committed with guns.

Over the last century, homicides rates in this country have varied widely, from 1.2 to 10.7 per 100,000 popula- tion. Yet, the percentage of homicidescommitted with guns has been relatively constant, between 62% and 71%. These data clearly demonstrate that the homicide rate in this coun- try is virtually independent of the proportion of homicides committed with guns.

Stell rejects the claim that a large number of homicides resuh from assaults that lacked a single minded intent to kill, until someone offers clear and convincing evidence of the falseness of two widely held and reasonable assump- tions: competent adults, including criminals with guns, both intend the reasonably foreseeable outcomes of their acts and intentionally perform acts such as carrying a loaded gun and pulling the trigger. No one has provided such evidence.

Several facts are noteworthy. In recent years, guns have remained highly prevalent in this country; while the use of guns in criminal acts has fallen dramatically; the rate of non- fatal attacks with gun5 has dropped to its lowest level ever; the homicide rate has declined to the level of the 1 W s . The percentage of homicides committed with guns has re- mained virtually unchanged. For all these reasons, the instrumentality hypothesis that lies at the root of the case for restriction of access to guns is almost certainly false.

It is also clear that guns are not necessarily more lethal than other weapons, notwithstanding the fact that they are five to seven times more likely to kill during an assault. Personality factors, intent, and willingness to pull the trigger are also important. It may well be that criminals who are more willing to kill and who want to be perceived in that way by others are more likely to use guns in their crimi- nal acts. The intimidation value of guns is unknown, but, at least in part, their use in cntninal acts conveys a high level of seriousness of purpose. Intimidation by the presence of a gun deters victims’ resistance and increases compliance.

Killers are usually not ordinary people like you and me. They are more likely than us to have below average intelli- gence, a brain injury, or mental illness, and abuse alcohol or drugs. They also frequently were abused as children, and eventually became abusers of other children and animals. They tend to be male, young, have criminal records, (aver- aging four arrests for felonies). Yet, even most individuals who fit into that profile will never murder anyone.

Zimring’s claim that the introduction of 10,000 guns into a community will produce additional deaths-it’s only a question of how many more-ignores the possibility that adding guns might have no net effect on number of deaths or actually result in fewer violent deaths. In the last 20 years, manufacture’s of guns in this country produced 77 million firearms, including 34 million handguns, nearly all sold in the American retail market. During that period, the homicide rate did not increase but actually declined. Yet, the percentage of homicides committed with guns changed very little.

Over the last 15 years, licenses to carry a concealed handgun have been issued to more than three million people in 34 states that permit them. This has been associ- ated with a substantial reduction in criminal violence in those jurisdictions, in inverse proportion to the number of licenses issued. The defensive use of guns, around 2.5 million episodes a year, is more frequent than criminal assault with guns. To accommodate this evidence into their viewpoint, those who favor gun control have come to label all deadly force as malignant, whether used by criminals or in self-defense.

In effect, strict gun control preserves unbalanced preda- tory power of large, strong, and violence-prone individuals while placing no responsibility on law enforcement agen- cies to offset the resulting increased risks. Every citizen has a fundamental interest in bodily integrity, yet strict gun control unequally disadvantages the less well off who can not afford alarm systems, professional body guards, or homes in gated communities. This disproportional disad- vantage is magnified when inexpensive guns, such as Saturday night specials, are banned, because they may be the only means of self-defense available to poor but other- wise law-abiding citizens.

Imperfect compliance is a major flaw in any law purporting to limit firearms; prohibiting handgun is unlikely to make them scarce, much less to disappear. For example, cocaine, crack, and marijuana are still readily available despite decades of a ruinous war on drugs. Finally the idea that state monopoly on the availability of guns is a good thing should be weighed in the context of officially authorized but immoral violence, as in Saddam’s Iraq, Pol Pot‘s Cambodia, Mao’s China, Hider’s Germany, and Stalin’s Soviet Union.

TOWARD EVENTI ION OF VIOIENCE Many uses have been made of the law in attempting to reduce the prevalence of violence in our society. Several of them have raised controversies related not only to their effectiveness, but also to whether they are permissible in a free society. Two such controversies are preventive confiement of people known to be dangerous to others and suppression of offensive or dangerous material in

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comunicatiom media, They raise legal issues of many kinds, including constitutionality, but the most important problem they engender is the question of trade-offs between liberty-our ability to speak and to move freely- and security-our right to be free from physical endangerment by others.

preventtve cod3nement of dangerous ofknders Dangerous o f l i are individuals who commit violent acts that are especially dangerous and likely to be persis- tent, While identifying which crimes are dangerous is straightforward, predicting future repetition is considerably more difficult, and often involves medical-usually psychiatric-judgments. In his essay, Stephen Morse ad- dresses the fundamental conflicts between the need to reduce predatory violence, the desire to treat offenders fairly, and the need to maintain a free society.

Acts of violence of one person against another must be minimized in a civil society. This can be accomplished by taking steps to prevent such acts from occurring and punishing those who commit them. Liberty, that is, our ability to act freely, requires a degree of relative safety. The state’s power to confie people who are dangerous to others requires either non-responsibilit’at is, they are suffering from a disease rendering them not responsible for their acts--or deserb--that is, they are guilty of crimes and deserve punishment. Our legal system does not confiie people simply because they are dangerous; they must also lack responsibility or be culpable.

People who are dangerous because disease makes them non-responsible can be confied involuntarily on civil as opposed to criminal grounds, even in the absence of actually causing harm. On the other hand, nearly all crimi- nals are rational and responsible, so punishment by confinement is justified only when they have committed a crime. There is a gap between confiement for the guilty and for the ill: confinement for the dangerous offender who has served his prison term, yet, is at very high risk for repeating his crime. The knowledge that such criminals are free puts a great deal of pressure on our judicial system to expand either our usual definitions of desert or our definitions of non-responsibility,

Predicting future behavior is extraordinarily difficulty and inaccurate. Desk for safety is very strong, however, so judicial decisions regarding confinement are heavily influ- enced by such predictions. Falsely c o n f i g an individual predicted to be dangerous is both very expensive and a dangerous infringement of liberty; yet, these costs are invis- ible, because the individual is out of public view, under confinement. In contrast, however, serious harm done by a released aiminal results in public outrage. Thus, mental health evaluators and the judges who rely on their opinions tend to err on the side of confinement rather than freedom.

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The term purepreventiw detention refers to confine- ment in the absence of both criminal acts and non-responsibility, based only on predicted dangerousness. Although such confinement is generally held not to be part of our judicial system, in fact, it is, in several subtle ways. Moreover, the desert or non-responsibility l i ta t ion on detentions has been undermined by the US. Supreme Court in a variety of ways, by permitting: modifications of culpability requirements, sexual predator commitments, expanded sentencing laws, such as California’s “three strikes and you’re out” law, and conflation of punishment and civil confinement, such as permitting civil commitment of a defendant who refuses to take medication. In some other cases, however, the Supreme Court has held that preven- tive detention should not be based solely on dangerousness.

There is a case to be made, Morse argues, for pure preventive detention. Two fundamental rights guaranteed by our political system-the right to be left alone, the right to be safesometimes conflict with one another. The right of self-defense could be used to justify preemptive action when the predicted danger is very serious and we can be nearly certain that harm will take place in the absence of preemption. It may then be unreasonable to wait until harm is imminent, the usual standard for preemptive action. The technology available for prediction of future behavior, how- ever, is not well enough developed now to justify preemptive action. But if accuracy of prediction were high, our moral and legal commitments might be adjusted accordingly. There is some evidence that accurate predic- tion is being approached for some people with a history of sexual predation.

The gap between desert and non-responsibility as criteria for confinement is now being filled in part by pathologizing dangerous conduct, as well as by the other measures noted above. Yet, most crime does not arise from psychopathology and most criminal acts are perpetrated by responsible agents. Rather than pursing policies that are both unfair and erosive of the liberty we highly prize, punishment of dangerous criminals should be done fairly and transparently, within the criminal justice system. Public safety can be promoted in many ways with little undermining of the culpability standards. For example, sen- tences for serious crime should be severe and f m , involving a minimum of plea-bargaining, particularly when future risk is great. Extremely long sentences for crimes that are less serious, such as those imposed by three-strike laws, are both unfair and expensive, so should not be used. Recidivism can be markedly reduced for some offenders whose crimes are committed to support a drug habit by providing treatment for their addictions. These and other measures could go a long way to deterring and confining dangerous criminals without greater punitive measures than they deserve or treating them as if they were not respon- sible agents. It is true that some dangerous people will

continue to be released, but a free society should be will- ing to bear such a cost. Complete prevention of all harm to others by dangerous people is not possible, but attempts to achieve it would require programs that are disrespect- ful, illiberal, and draconian.

Controlling communications that teach or demonstrate violence: The movie made them do itw What kinds of external influences and experiences moti- vate human behavior, particularly violent behavior? Can movies, books, television, music, and other communica- tion media so compellingly depict violent acts that we, especially the young, are incited to commit those acts? How should the law respond to evidence of such influence? There is, in fact, substantial evidence that repeated expo- sure to depictions of violent acts is associated with increased likelihood of future aggressive acts. Many industries are extensively regulated and tort law requires corporations to protect from harm caused by their products both custom- ers and by-standers, yet the same kind of regulation and duties to sell safe products have not been applied to com- munication companies. Lillian BeVier provides an account of why portrayals of violence in the communications me- dia have not been regulated, and explores various aspects of common law that could provide for media accountably.

Questions of media accountability have been raised in three settings: publications of books that provide detailed instructions on how to commit a crime such as building a bomb or successfully murdering others; “copy-cat” crimes arising from violent acts depicted visually in movies or on television; and involuntary brainwashing by repeated ex- posure to violent acts, resulting in murder or suicide. Victims of crimes allegedly induced by media exposure have sued media producers, usually on one of three grounds: negli- gence, product liability, or aiding and abetting the commission of a crime.

Suits based on negligence have usually failed because of the requirement for proof that the company owed the victim a duty to protect them from unreasonable risks and that the depiction of violence were both the cause in fact and the proximate cause of the resulting harm. Unfortu- nately for the plaintiffs, the crimes in question were actually committed intentionally by a third party. Another stum- bling block for plaintiffs is that the duty to protect requires that the criminal act could or should have been foreseen by the company as an effect of its product. To prove neg- ligence, the media portrayal of violence must actually have caused the violent behavior. This is highly problematic, because a large variety of factors can lead to aggression. BeVier reminds us that although there is a clear correlation between viewing aggressive acts and carrying out similar aggressive acts later, correlation does not prove causation. The range of causes of violence includes biological,

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psychological, sociological, social, and cultural factors, as well as socioeconomic and educational level and influ- ences by peers and family.

Product liability has also been used in legal action against communication media. In general, liability is imposed on manufacturers, distributors and retailers by injuries arising from a defect in manufacture or design of a product and failure to warn users of the product of the danger. Such liability is strict liability if a product is defec- tive there is no excuse that can relieve the manufacture of liability once an injury has occurred. Plaintiffs have claimed that the communication medium is a product and that the depicted violence was a defect that caused the harm. Courts have in general been unsympathetic to such claims, because the harms resulting from exposure to the medium occur consequent to the viewer’s or reader’s reactions to violent content, not because of an alleged defect in the product itself. Court have generally treated the containers of ideas and images, such as a television set or a video game cassette, as products for the purpose of liability, but the ideas and images themselves have not been treated in this way.

Civil liability can be incurred by media defendants on the basis of adding and abettingthe commission of a crime. This legal theory has been successful only under rare cir- cumstances, such as the publication by Paladin Enterprises of Hit Man, a book containing detailed instructions on how to kill people professionally. A triple murder had been committed and Paladin ultimately was found liable because it intended to assist would be killers, knew that the book would be used by criminals to commit murder, had the declared purpose of facilitating murder, and marketed the book as a textbook for murder. The only genuine use for the book was to assist in the act of murder.

Bevier addresses the critically important question of whether the First Amendment does or should protect against liability in such situations. Our nation’s commitment to free speech and robust, uninhibited discussion of public issues might be valued more highly than policies making the com- munication media accountable and perhaps liable for such events as violent crimes. The coult’s fmding against Paladin was, in the view of the judge, not at all a threat to First Amendment protections. He believed that the uniqueness of the facts of the case narrowly limited its precedent value.

Liability law provides a means of social control in two ways: it settles a dispute between two parties and it affects future behavior of potential defendants by signaling a risk of future liability. This “chilling effect” on future speech is very likely to render liability findings by courts unconstitu- tional on First Amendment grounds. Liability rules intended to suppress works that might induce copycat crimes and that have no redeeming value aim at too broad a target. Such rules would prevent the production of communica- tions that are not only harmless but may be quite valuable.

Not only is it impossible to know ahead of time which works might lead to the commission of a crime (which are rare events in any case), but also whether the accused work was the actual cause of harm. Works that may induce some people to commit crimes rarely have no redeeming value, such as education, information, enter- tainment, or art. The chilling effect of legal rules imposing liability on the media may well inhibit the production of many works that do not lead to violence and would be valuable in some way. The loss of valuable works that were never produced is the source of our unwillingness to place tight consmints on our tradition of free expression. While freedom of expression undoubtedly imposes costs on society, it is likely that constriction or loss of that free- dom would cost far more.

WHAT SHOUID THE POLICY am? A wide range of responses to aggressive behavior and violence have been used to provide security to ordinary citizens, to allow them to pursue their life’s goals without unwanted and inappropriate interference from others. Protective responses can be personal, community-based, or grounded in governmental law, including statutes and regulations, as well as policy. When gaps in the protective mechanisms are identified, new policies and approaches to providing security are developed. Two such gaps have been relatively recently identified and steps to close them proposed and begun. One is insufficient attention to primary and secondary means of preventing violent acts; the methods and tools of public health are being brought to bear on this issue. Another is the virtual absence, until recently, of consideration of rights of victims of violent crime; this is now being addressed at the state level, but to an inadequate degree. Discussions of these two relatively recent developments in policy related to violence consti- tute the final two papers of this symposium.

Interpersonal violence and public policy: Whataboutthevictims? Violent acts can be committed against one’s self, other individuals, or groups of others. Attacks upon other indi- viduals, or intetpetsonal violence, has been defmed in many different ways, always including actual and threatened use of physical force, and sometimes including psychological abuse or neglect. The problem of violent crime in the United States has been addressed primarily through the criminal justice system and, more recently, through a public health approach. In the view of Dean Kilpatrick, both approaches place too much emphasis on those who commit violent acts and too littie on their victims. He aims toward mod^- ing public policy in order to improve the handling the victims of violent crime.

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Public policy should focus more on the victims, in Kilpatrick’s view, for a number of reasons. Violent crime is costly in terms of increasing major mental as well as physi- cal illness. Criminal justice requires the cooperation of victims, but this will not be optimal without restoration of confidence in the system. Improved services to crime victims would be consistent with our national ideals of fairness and justice. Moreover, violent acts against children are risk factors for later substance abuse, which, in turn, is a risk factor for future criminal activity. Thus, improved services to youthful victims of crime may effectively prevent later violent behavior.

The criminal justice system has two core missions: processing crimes and criminals and preventing crime. A primary form of prevention is opportunity reduction, in which a potential target is made less attractive and less profitable to the criminal, such as neighborhood watch or self-defense training. Problems with this strategy include substitution by the perpetrator of another target, placing responsibility to prevent crimes on potential victims rather than on potential perpetrators, and reduction of freedom (a problem particularly for women). Another method of crime prevention is laws that deter criminals or provide long terms of incarceration. The effectiveness of deterrence is questionable because most violent perpetrators are not reported, apprehended, or convicted.

Violence has been understood as a public health prob- lem since 1985, and since then many public health approaches have been used to prevent violence. Primary prevention is attractive but the causes of violent behavior are complex and few primary prevention strategies have been shown to be effective. Primary prevention should not attract so much attention that too little is paid to secondary and tertiary prevention, such as better treatment of crime victims.

Although the constitutional rights of criminal defen- dants have been recognized and protected, the same is not true for victims. Over the last three decades, some states have enacted crime victim compensation programs, but other rights, such as the right (already possessed by crimi- nals) to be present and heard in judicial proceedings, have been highly controversial. By 1997, all 50 states had en- acted a crime victim bill of rights and 29 states had enacted constitutional protections. Such rights parallel defendants’ rights to participate in criminal proceedings, as well as the right to restitution, as ordered by the sentencing judge. The effectiveness of these policies is not known but is needed.

While it is clear that victims’ rights are important both to the public and to crime victims, their implementation has been problematic. Most victims are never mformed about their rights, perhaps because there are usually no legal remedies when the rights are violated. One study of the implementation of victims’ rights in states with strong

versus weak legal protection for those rights found that in strong protection states, victims were more likely to be: informed about their rights, a participant in criminal justice proceedings, satisfied with the criminal justice system. A contrary finding was that restitution was more likely to be ordered in weak than in strong protection states. Thus, although there has been progress in providing and honor- ing victims’ rights, there remain many problems with their implementation.

Kdpdtrick makes several concluding recommendations: a US. Constitutional Amendment should guarantee crime victim rights; a higher degree of collaboration among federal agencies should be encouraged through changes in law and policy; adequate mental and physical health care services should be provided to crime victims; and public policy regarding crime victims should be grounded in sound empirical research.

Strengthening the collaboration between public health and crimimd justice to prevent violence. Public health is different from medical care in several important ways. Medical care focuses on prevention and treatment of diseases of individuals while public health ad- dresses health issues in populations. The sciences underlying medical care -physiology, pathology, anatomy, etc.-and those underlying public health-epidemiology, economics, political science, etc.- substantially Merent. Public health is much younger and less well funded than medicine. Nevertheless, public health has made critical contributions to improving health and longevity and may hold great promise for similar affects on preventing violence.

Deborah Prothrow-Stith makes the case for interper- sonal violence as an important concern of public health on several grounds. Health professionals regularly have contact with both victims and perpetrators in emergency rooms and other health care settings. This close contact has fueled strategies, materials, and protocols for preven- tive interventions in clinical settings. The magnitude of violence in the US. is huge compared with other devel- oped nations; homicide rates, for example, are 10% to 25% higher. Non-fatal violence is not as clearly documented, but is also very large; for example a recent survey of youth behaviors reviled that 43% of boys and 24Yo of girls (33% overall) were in engaged in at least one physical fight in the previous year. Domestic violence is extremely com- mon, yet the criminal justice system focuses primarily on violence between strangers. Thus, the characteristics of violence in this country suggest a prominent role for public health strategies. The analytic approach of public health could complement and strengthen criminal justice. An important gain resulting from the recognition of violence as a public health issue is the understanding that violence is preventable.

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Public health and the criminal justice system have some fundamental differences, including proactive versus reac- tive strategies, preventive versus punitive responses to violence, different jargons, and competition for funding. The two disciplines also conceptualize violent behavior differently: public health as preventable through identifi- cation and strategic reduction of risk factors, the criminal justice system as controllable through @st hoc identifica- tion of violent acts, assignment of blame and meting out punishment, and removal of violent actors from the community. Certain assumptions underlie criminal justice: violent acts are chosen by individuals, punishment deters violence, and violence is inevitable for some people. This system has had only limited success in reducing violence because deterrence is only partially effective and rehabili- tation as a form of prevention is only variably available and occurs only after conviction. Because the system focuses on predatoly violence among strangers, violence among friends, acquaintances, and family have not been as well addressed.

An important tension between public health and crimi- nal justice is the apparent threat of public health’s multilevel socioecological models of human behavior to the principles of individual choice and responsibility. This tension can be resolved by the spirit of collaboration; the qualities and strengths of both systems can be comple- mentary and highly productive, but only if professional differences are respected and jealousies put aside.

Prevention of interpersonal violence can be conceptu- alized at three levels: primary prevention] essentially public education; secondary prevention, idenwing and focusing on high risk subgroups or circumstances; and tertiary

prevention, reduction of the negative aftermath of violence or efforts to minimize Occurrence of similar incidents in the future. The criminal justice system has addressed all three levels, focusing mostly on tertiary prevention, but increasingly on the primary and secondary levels as well, for example, by funding initiatives to reduce children’s access to guns, teaching conflict resolution, and providing needed social services.

Similarly, public health has engaged in primary prevention efforts: gun control and safety, public aware- ness of violence risk factors, and modifying societal values regarding violence. These have been done in broad settings (primary prevention) and in focus groups of medium to high-risk adolescents (secondary prevention).

Over the last two decades, a model program has been developed in Boston for prevention of youth violence, featuring integration of public health and criminal justice strategies, and development of an extensive set of youth programs. This collaborative model has resulted in dramatic and sustained declines in youth violence.

Although national rates of violent crime have fallen in recent years, they appear to be on the rise among girls, in young children] and in small towns. Although public health will always emphasize prevention and criminal justice must emphasize vigorous response to violent acts, much can be gained by their intense collaboration and strategic integration.

REpwwcEs 1. D. Scoville, “One Man, One Bomb,” Police Magmine

26, no. 9 (2002): 44-51.

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