The Futility of ‘Shrinking’ Evil

And Other Lessons From the Aurora

‘Dark Knight’ Massacre


Jay B Gaskill

→This article is also posted on The Policy Think Site at –

Grave wickedness, especially when it takes the form of real Evil is a deep puzzle for all the sophisticated modern and postmodern minds among us because it exposes the naked vulnerability of a weakened moral immune system.  When the “can’t we all get along?” models just don’t cut it; when “that nice young man” executes a bloodbath; when that ancient most ancient enemy of humanity surfaces – the bland face of intelligent malevolence – our modern sensibilities prompt us to seek refuge in the medical, therapeutic models.  We tend to do this because we are clinging to a monumental lie: that all human-on-human “badness” is psychosis, or a cry for help, the result of oppressive social conditions, or of neurological wiring issues.

None of these social, physiological or psychological conditions belong to the moral category.  That category is Evil, which is a topic about which I have often been asked to share my insights. As a criminal defense attorney, a careful observer of the human condition, my experiences in New York City near ground zero on 9-11-01 led to some reflection, then to a panel discussion in the Bar Area.  As a result, I arrived at some fresh (and old fashioned) insights. The elevator version: Evil with a capital “E” is real; it is an overused and underappreciated term; in my moral universe it a narrow and very dangerous moral category.  When encountered in the real world, Evil is that which entails a robust, intelligent – even ruthless – moral response among the morally aware. But Evil presents difficulties for modern minds, because for many of these misguided souls, Evil does not even exist.

{Two of my essays on Evil are here – and}.

James Egan Holmes (yes, we will name the perp.) was not a mental patient.  We are told that he was an honors graduate student in neurological science, one who had screwed up his comprehensive examinations the preceding semester, and was at risk of being dumped from the program. His fascination with neuroscience was evidently entangled with a fascination with the fictional icon of Evil, the Joker.  A faculty member at Colorado reportedly thought of Holmes immediately when he first heard about the murders. Why just the professor?  Why not earlier? Holmes stocked his apartment like a military fortress.  Yet it seems that no one alerted anyone else.  Why?

The anthropologist-columnist Dr. Gwen Dewar has written a very insightful piece –

The Colorado movie theater massacre: What can we do now?


Gwen Dewar, Ph.D.


“How do these people slip by? How do we miss the potential killers in our midst? It’s not that nobody notices. It’s that people rarely act or intervene. And that, I’m thinking, is a relatively new problem for human kind.

“For most of human history, our kind lived in villages or small, mobile, hunter-gatherer bands. Everybody knew each other and kept very close tabs. If somebody was antisocial, violent, or psychologically-disturbed, people recognized it and got involved. That had to, in fact, because they knew their lot was a common one. Our ancestors depended on their next-door neighbors for survival.”

For the whole column, go to .


We have lost what the social scientist, Francis Fukuyama calls social capital (see his book The Great Disruption: Human Nature and the Reconstitution of Social Order).  Mr. Holmes has evidently lost more than that – the vital connection to the common moral order.


It seems that Holmes was reportedly infatuated with the evil character from the earlier chapter in the Dark Knight trilogy, the Joker.

Holmes aped the Joker even to the point of dying his hair orange before he slaughtered as many of the Dark Night movie audience as he could.

Malevolence often is promoted and transmitted by art. I have coined the term “malogens” to describe how such culturally transmitted pathogenic images can deeply affect susceptible minds.  My analysis – and the introduction of the term – was prompted by my study of a Satanic criminal case in the Bay Area {See my article at }

The term malogens was picked up (with attribution) by the  political scientist, Dr. Maria Chang.

See her piece in the New Oxford Review, Peering into the Abyss, at ).

As Dr. Chang pointed out, “Ledger’s character, the Joker, is more than a sociopathic master criminal. Instead, reviewers use the language of the supernatural, calling him “demonic” and “diabolical” — “a hound fresh out of hell,” “a vivid, compelling picture of naked, nihilistic evil…with almost preternatural power,” “a truly frightening vision,” and “like Satan.” Michael Caine, who plays Batman’s butler Alfred, said that he found Ledger’s performance so terrifying and disturbing that he sometimes forgot his lines.”

I agree with Dr. Chang.  When the actor Heath Ledger played the Joker in the Dark Knight he inhabited that persona so fully that he tipped his own moral balance, falling far into the bleak abyss that he could not recover.  It was a case of malogenic infection.

In my review of the Dark Knight movie, Bleak Knight (written from a Nevada motel after just seeing the flick) I believe I may foreshadowed the lasting effect of the Joker’s malevolence on another susceptible mind, that of the Aurora, Colorado movie murderer, James Holmes.  These were my thoughts:


I think the Joker killed Heath Ledger.

The Dark Knight is a toxic film – its release without further drastic editing was irresponsible. The silent disappointment of the Batman fans who walked out of the film without waiting for the credits was a warning sign. Heads-up for the producers: This film might even doom the franchise – even if it makes money. Please don’t do this again. ‘Do what?’ you ask…

Whenever a film does as well as this one does in presenting a vivid, compelling picture of naked, nihilistic evil, then endows that evil with almost preternatural power, you need to add a balancing grace and core optimism.

This was a movie with fine performances and no grace.

In the film, the evil Joker, brilliantly portrayed by the late Heath Ledger, sets up a malign ‘social experiment’ in which the people in two crowded ferries, rigged with explosives, are invited to blow up the other boat before midnight – in order to escape the same fate themselves. When each boat declines to blow up the other, the film presents an opportunity for balancing grace. But that opportunity was one thrown away in the ensuing mayhem.

The end piece, in which the crusading DA, now hideously disfigured, has been successfully degraded by the Joker, attempts a kidnapping, then is killed, amounts to one measure of darkness too much. The film ends with Batman scurrying away, chased by the police for crimes he did not commit.


We live in a video game culture in which the boundaries between the real and the virtual are thin indeed.  Without a robust moral firewall, an increasingly large number of morally weakened minds are left vulnerable to the pervasive influence of the malogens that seethe though our lives, carried by the amoral miracle of modern technology.  In a lecture on the criminal mind (see I concluded with this observation–

“We ignore malogens at our peril.  Because we live in an information saturated age, we will never shut off all the malogenic input.  We need a firewall.  Fortunately, the firewall technology already exists.  It is moral character… eight thousand year old technology.

“But character is inspired, not installed like a computer program. Character is forged by trial, not played like a video game. Character is sustained by faith.  Yes, faith. All trust relationships are founded in faith. No institution, whether religious or secular, owns the patent.  Faith is open source software.  It was issued along with the human capacity for moral intelligence by the Author of the Moral Law.”

Old fashioned?  Perhaps.  Obsolete? Never.

Copyright © 2012 by Jay B Gaskill The author is a California lawyer; who served as the 7th chief Public Defender for the County of Alameda, State of California.

Forwards, links and quotations with attributions are welcome and encouraged.  For everything else, please contact the author by email at .



Political Analysis


Jay B Gaskill


Also on The Policy Think Site

“I think when you spread the wealth around, it’s good for everybody.”

Barack Obama

“Fools tend to be much better at campaign rhetoric than governing.”


“I could have possibly beaten Senator McCain in the primary. Then I could have been the candidate who lost to Barack Obama.”
Mitt Romney

“Wise men speak because they have something to say; Fools because they have to say something.”


Rating the Candidates –

What if you Leave Ideology Aside?

Permit me to share four propositions that ought to be reasonably uncontroversial, except among the hyper-partisan set.  These represent the key factors that (in concert with the weakening economy) prompted members of the Obama campaign team to identify Governor Mitt Romney as the biggest potential threat to the president’s reelection prospects among all the GOP contenders.  I concede that many of the Obama campaign staffers will disagree with my assertions, but in moments of private candor some of them will concede that a credible case exists for each of the following four propositions.

Romney is smarter than Obama;

Evidence –Romney earned better academic grades as an undergraduate and at Harvard. This is a compelling indication that Romney is actually brighter than Obama or at the very minimum that he is functionally smarter – taking into account young Obama’s legendary academic laziness. A personal observation: A dual post graduate professional degree from Harvard is no cake walk, and it cannot be earned in the time frame that Mr. Romney did except by someone endowed with high intelligence and great diligence.

Romney is more disciplined than Obama;

Evidence – Romney has a clear track record of actual achievements that required disciplined effort and attention. Two post graduate, professional degrees simultaneously earned at Harvard – a law degree and an MBA, require more discipline that young Obama demonstrated during his entire formal education.  Mr. Romney’s service as a state governor, and his significant business success, post-graduation, demonstrates a consistent discipline that is simply not evident in young Obama’s pre-campaign exploits; nor in Mr. Obama’s Illinois legislative career; nor in his comparative brief tenure in the US Senate.

Romney is more accomplished at executive tasks than Obama;

Evidence – As an executive, Romney rescued the Salt Lake City Olympics and the state of Massachusetts from fiscal distress (e.g., Governor Romney eliminated Massachusetts’ 1.5 billion dollar deficit). Contrast Obama’s absence of any meaningful pre-election executive experience, and couple that with the failure to rescue the US economy or keep his promise to “cut the deficit in half”.

Romney is more morally grounded than Obama;

Evidence – consider the presence or absence of illegal controlled substances; the extent of each candidate’s charitable giving over time; and the reputation of each for honest dealings. I submit that the historical record favors Romney over Obama. Now many of my friends on the left are very uncomfortable with any candidate who has strong moral convections because they fear the condemnation of drug use and other peccadillos that (in the left’s canon) are evidence of moral flexibility, tolerance and sophistication. They argue that Mr. Obama is equally moral, just differently so.  But when issues of Trust are presented (see my “Three T” discussion below), those men and women endowed with a more traditional moral foundation have the edge.  It is no coincidence that the straight-laced LDS employees at Los Vegas casinos are favored because of a culture of honesty.


Obama’s defenders will make the contrary case, of course, and some will simply say that the candidates are close enough, and that the policy differences matter more.

But these ideologically neutral attributes matter primarily among a large and often decisive subgroup of Americans for whom the various competing ideological catechisms do not dictate individual voting decisions.  Let’s call them the soft-partisans. This is an even larger group than the self-identified independents among whom Romney tends to poll better than Obama.  There are swing states and there are swing voters.  The soft-partisans are the swing voters.

But do considerations of competence, discipline and character really matter in politics?  If they were decisive considerations, President George Herbert Walker Bush would not have lost to Governor William Jefferson Clinton.

The pivotal question of the current presidential campaign for those voters who are not primarily driven by ideology comes down to whether Governor Romney is or is not an acceptable alternative to the incumbent president.  The conventional wisdom is that, unless the economy improves, Romney wins…unless, for reasons that are not captured by intelligence, discipline, executive accomplishments or personal moral character, he has been somehow disqualified.


The core of the Obama campaign’s strategy is to whittle away at the soft-partisans on the emotional level.  For example, Mr. Obama has taken the risk of alienating some socially conservative black voters in order to embrace the gay marriage issue. This move was calculated to sour otherwise conservative and libertarian gays on the former Massachusetts governor by exploiting the anti-Mormon subtext.

Why such an exercise in micro-manipulative politics? The Obama campaign is operating on the theory that a sufficiently large aggregation of micro-constituencies can deliver an electoral majority.

The 2012 election is taking place in in a political environment where large urban voting blocs remain firmly in the grip of the democrat-left, but are not sufficient to deliver victory.  Victory or defeat is in the swing states.  This is why the Obama campaign’s “whittle away” strategy seems to be aimed at the margins.

This will be a pivotal election for the Democratic Party because the Obama presidency no longer has the secure loyalty of blue collar males, the former Reagan democrats; this is the subgroup that returned to the fold under the “good old boy” charm of Bill Clinton; this is a subgroup that is once again up for grabs.  This is why the Obama campaign is devoting money and time to generate an image of Romney as a heartless businessman, an out-of-touch rich guy who lacks empathy for the common folk.

The overriding issue in a failing economy is usually just that: The failing economy. Obama campaign is fully aware of this.  The “whittle-away” strategy is designed for a hoped-for turn of events that emerges later in the year, when signs of a slight economic recovery become apparent, one that can plausibly be sold as the beginning-of-the-end of the bad times.   But that may not happen in 2012. Watch the European crisis closely. If the economy gets any worse, think of Hoover trying to whittle-away at FDR.

The nominating conventions (8-27-12 for the GOP in Tampa Bay, Florida and for the Democrats 9-3-12 in Charlotte, North Carolina) historically generate a bounce in the polls for the respective nominees. But this is an afterglow that can swiftly be extinguished by harsh reality.

I note that August 5 and September 7 are the scheduled “official” release dates for the government-collected unemployment numbers based on data from the immediately preceding months.  At the moment, the release of that news will precede the GOP convention and closely coincide with Obama’s renomination.  If at that time, the official unemployment figures (which understate actual unemployment, as almost everyone knows) remain at or above 8% and Mr. Obama’s job approval poll numbers remain below 49%, then the Obama campaign will be staring at a Romney upset scenario.  This turn of events can only be averted (so the thinking goes) if the cumulative effect of the negative whittling campaign has succeeded in moving the former Massachusetts governor into the unacceptable column among all those soft-partisans.


Whittling at an opponent’s character goes only so far, until it hits a hard core.  From conservative sources outside the Romney campaign, some Obama whittling is also taking place, essentially revisiting much of the same material that the Hillary Clinton campaign tried without success to float through surrogates in 2008. The left-wing supporters of the president will be unaffected by “new” background information suggesting that the president has always been a member of the hard left.  But the real game is not with those whose support is solid.

In the end, this whittling process is about the core character of the two candidates. After all the whittling and drilling, the remaining questions are all about each candidate’s essential moral character:  Does it exist? What is it? How strong is it? How will it affect presidential judgment and leadership? Romney’s essential decency will probably not amount to Reagan’s legendary Teflon, but will operate as a bulwark against most of the character-based attacks.

In an earlier essay, I advanced the view that the 2012 presidential race will be decided the “Three T’s” – Trauma, Trust and Turnaround. That analysis still is the best predictor of the election’s outcome.  The electorate has been traumatized; it is suffering from a loss of trust in the political elites that have led us to this pass; it will support a credible turnaround.

There is not enough time left in this election cycle to dispel the Trauma. The erosion of Trust in an incumbent who so dramatically overpromised and under-delivered cannot be so quickly repaired among the plurality of voters who are increasingly disillusioned. For these and other reasons, I am persuaded that the election outcome will turn on a single question: whether Governor Romney is the credible agent of an economic Turnaround. After all the smoke has cleared, that will remain the right question, posed at the right moment in history.

Caveat: That question, however it is framed or presented, has been pre-decided or preempted in much of the country.  We are still living in a sharply polarized red state vs. blue state political and ideological environment. For example, New York and California are in the tank for Obama. Romney can count on a number of smaller states that counterbalance these two coastal liberal behemoths.  But I note that Karl Rove’s latest Electoral College survey puts “Mr. Obama at 194 Electoral College votes and Mr. Romney at 101”. See – . Defeating any incumbent president is a tall order.

Romney will probably win in Texas, Arizona and Florida, but for now, the secure-for-Romney states deliver 93 fewer Electoral College votes than the secure-for-Obama ones.  The Rasmussen Poll, using a very reliable methodology has consistently placed Romney a bit ahead of Obama for the last 19 months, but neither candidate has polled 50% or higher.

The undecideds still rule this contest.

Given the uncertainties, a bit of historical perspective is in order.

“For weeks before the presidential election, the gurus of public opinion polling were nearly unanimous in their findings. In survey after survey, they agreed that the coming choice between President Jimmy Carter and Challenger Ronald Reagan was ‘too close to call.’ A few points at most, they said, separated the two major contenders.

“But when the votes were counted, the former California Governor had defeated Carter by a margin of 51% to 41% in the popular vote—a rout for a U.S. presidential race.”


There is really no apt precedent for the current race.  I personally believe that public opinion will remain fairly volatile through mid-October. This strongly implies that the race will be decided by the soft-partisans of Wisconsin, Virginia, Pennsylvania, Ohio, Nevada, New Hampshire, North Carolina, Iowa, Missouri, Florida, Indiana, Colorado and Arizona and a few other venues where the persuadable undecideds can still  make the difference.

Further erosion in the hoped-for economic recovery will have an opinion multiplier effect, measurably tipping the presidential race against the incumbent.  A prosperity breakthrough will have the opposite effect. Maintaining the same, fairly stagnant economic pattern through Halloween will produce a leadership opening for each candidate (advantage Romney, if he can move persuasively). One central question will frame the nation’s collective decision: Who can best serve as the architect of an economic turnaround?

Fear of that very question, and of its likely answer, is the force driving the Obama campaign’s “whittle-away” strategy. Follow the fear index and you will have a handle on the likely outcome of the 2012 election.


Copyright © 2012 by Jay B Gaskill, Attorney at Law

Links, quotations with attribution and forwards are welcome and encouraged.  For everything else, please contact the author via email at

RUGGED INDIVIDUALISM Is NOT the Essential Value of Freedom



Is NOT the Essential Value of Freedom



Jay B Gaskill

How far the ideal has strayed from the real world? …Very far, if a recent New York Times piece is at all representative.

My attention was recently drawn to the New York Times’ blog section, where a piece dated June 29, 2012 by Uwe E. Reinhardt, a Princeton economics professor, appeared under the title  Health Care: Solidarity vs. Rugged Individualism.


According to the professor –

“In essence, the struggle over the mandate is merely part of this country’s struggle over a fundamental moral question: to what extent must I be my poorer brothers’ and sisters’ keepers in health care? Americans are far from united in their response to this question.”

The author went on with a thought experiment[1], but the main point was flagged in the tag, “Rugged individualism” vs. “solidarity”.


This slogan or some variation thereof is the Twitteresque distilment of a false dichotomy that has “informed” progressive – liberal discourse for almost a century. The conceit that conservatism and other liberty-friendly movements are all about rugged individualism is at least 30 years out of date.

Think about it.

Are conservatives living on islands inhabited by rugged individualists? Are liberals living in egalitarian solidarity gulags along with the poor and bereft?

No thinking liberal lusts after true solidarity, though he or she might wish it inflicted on someone else.  No thinking conservative wants the nasty, brutish and short[2] life of the “free” savage. None of us can survive for long without the blessings of civilization.

Liberty is a precious and intensely valuable condition that is enjoyed by the individual or not at all.  But it exists only under modern conditions and only when a given civilization is committed to its protection.  When we speak of ordered liberty we are describing the result when liberty is held as a reciprocal value, protected by law on condition that one may forfeit one’s claim to liberty by trampling on the liberty of another.  In the most sophisticated, liberty-friendly civilizations, liberty is protected vis-a-vis other citizens and from the depredations of the government itself – accomplished through a robust protective legal mechanism like the US constitution.

Without a liberty-friendly civilization, capable of protecting freedom, no individual is free to be or not to be a liberal, to be or not to be a conservative.

The modern dichotomy is an entirely different animal.  It is between authoritarian bureaucracies and the activities of non-conforming creative individuals and communities.  I suspect that the dichotomy between “Nanny Bureaucrats” vs. “Civilized Individualists” will prove more descriptive, more relevant and more apt.

The health care debate (to the extent we were allowed to have one) was never about whether to make access to health care more widely available in the USA.  It was about how to do so without degrading the quality of care of the 80% of Americans who were happy with their present arrangements.  The Affordable Care Act (a three trillion dollar violation of truth in advertising, if there ever was one) supplied a bureaucratic bulldozer approach to every non-bureaucratic, creative solution to the health care delivery problem that was proposed.

As someone who is firmly in the free and creative individual camp, I hope that there is another chance to get this right.  In that to-be-hoped-for debate, I strongly recommend the class of  solutions that build-in price and quality transparency (instead of the prevalent bureaucratic and accounting obfuscation); provide meaningful individual choice (aided by intelligent consumer advocacy); support robust respect for the doctor-patient relationship (free from political “oversight”); and grant sensible assistance for the poor or high risk patients that does not degrade the quality of care for all the rest.

Above all, we must preserve the tradition of medical innovation that provides most realistic hope over time for more effective, efficient, affordable and patient-friendly health care.

In this, we should be guided by four precepts:

[1] Incremental reform with results-testing beats comprehensive reform that risks irreversible harm.

[2] Absolute equality is the enemy of reasonable individuation.

[3] Trust the marketplace to operate rationally over time.  Every really valuable medical innovation was expensive and limited in practice before it became standard practice and inexpensive.

[4] Bureaucracies are the enemy of creative innovation.

We need to repeal of the Affordable Care Act. Whether the repeal is partial or complete, it will provide an opportunity to make something significantly better…and actually affordable.

There is no crisis.

We have – and should insist on taking – all the necessary time needed for discussion and review.  At a minimum we need to honor that duty to which every physician is charged by his or her oath- First, do no harm.


First published on The Policy Think Site

Links, forwards and quotations with attribution are welcome and encouraged.  For everything else, contact the author via email – .

[1] Reinhart proposes –“Let us set up two distinct systems for health care within our nation. Call one the Social Solidarity system and the other the Libertarian system. Ask young people — at age 25 or so — to choose one or the other. People joining the Social Solidarity system would know that they will be asked to subsidize their less fortunate fellow citizens in health care through taxes or premiums or both. They would also know, however, that the community will take care of them, and they will not go broke, should serious illness befall them. People choosing the Libertarian system would not have to pay taxes to subsidize other people’s health care, and they would pay actuarially fair health insurance premiums — low for healthy people and high for sicker people. Libertarians, however, would not be allowed to come into the Social Solidarity system, unless they were so pauperized as to qualify for Medicaid. Hospitals would have every right to use tough measures to make them pay their medical bills in full, to prevent freeloading at the expense of others.”

[2] Described by Thomas Hobbes (1588-1679), the British philosopher – author of the notion of the “social contract.”