A Primer on Evil and the Insanity Defense

Reflecting on yet one more school massacre…

By Jay B Gaskill, Attorney at Law

Even the crooks I defended in my former life of crime were offended by crimes against children, to the point that the 20 year old Connecticut child killer would never be safe in the general prison population. I agree with those who want to shield all of the little children in our lives from news of this ghastly story, but only if we are willing to shield them in real life from this kind of harm.

I am sick to the core of gesture politics, the all-too convenient tendency to expurgate a horror like this by making sweeping, mostly unobtainable policy proposals.

No, we do not need to round up all those who have Asperger’s syndrome, nor…for that matter… should we punish all owners of high powered rifles with large magazines.  We do need to pay immediate, sharp attention to five basic things:

(1)   School security. It is already a criminal offense in almost all jurisdictions to bring a firearm inside schools where small children dwell, except under specific, approved conditions.  We need to do much better than that. We need safe perimeters around our school children, and robust enforcement of those perimeters. The approach will vary, but the seriousness of purpose should not.  Those signs we once saw about not bringing firearms within 1,000 feet of a school were more gesture than reality.  Let’s cut to the chase here.  The recent attack was functionally indistinguishable from a terrorist one.  And the task of hardening the targets is exactly the same.

So I propose that we divert some Homeland Security services to school protection, security consultation, facility evaluation and ratings, establishing cross trained and tightly coordinated security personnel, police, homeland Security and faculty.  Nothing deadlier than a baseball bat should find its way into a school where vulnerable children are gathered, unless the weapon is in the hands of a trained and vetted employee or volunteer charged with the duty of their protection.

(2)   Home security. It is already a minor criminal offense in many states for an adult to keep unsecured firearms where children live.  This is not enough.  Not by half.  Any firearm with a magazine that is capable of rapid fire must be locked and secured at all times that it is not in the immediate practical control of the owner or designated responsible adult.  No more open home armories for parents or other adults to leave for the amusement of some loosely wrapped idiot to pick up.  And we need traceable accountability for such weapons, such that when they are stolen or lost by the owner or designated responsible party, an immediate notice to the authorities is made.  It is not realistically possible to disarm American citizens.  But it is possible to make all of us who have firearms much more accountable for their safe use and storage.

(3)   Cultural repair. The postmodern culture is damaged.  We have allowed the therapeutic model to overwrite the moral law. What?  …The moral law? What about medicine, psychology and behavioral science? The latest politically correct fad is to substitute medical terms for moral categories. It’s almost as if we are being asked to worship a secular savior – the Great Therapist.  A few of my former clients had a version of this, referring to some pervert as a sick bleep (the bleep word rhymes with luck).  The attempt to medicalize anti-moral behavior is one of the worst mistakes of the last two centuries.  All these years, I had naively assumed that the K-12 educational curriculum included the essential moral injunctions of the bible, the Torah and the Gospels. But the doctrine of separation of church and state has become the doctrine of the separation of moral law from all state ceremonies and institutions. This is as self-defeating as refusing to teach Newton’s laws of mechanics because he believed he was decoding the mind of God, or refusing to teach the Golden Rule as if it were just Christian doctrine, or refusing to celebrate the American Revolution because its architects taught that human freedom was a gift from the Creator. We can start by re-teaching the central tenets of morality, as in – not lying, cheating, stealing, bullying, raping, assaulting or killing, and relearning that a deep respect for human dignity is deeply embedded in the very definition of human. At every level of education the required curriculum needs to remind us that these values are protected by boundaries and rules, and that those repositories of ancient moral wisdom like that captured in the Decalogue, cannot be discarded because “they ain’t my religion.”

(4)   Firewalling the “malogens”. Too few families and too few schools are even aware of the moral toxins seething through the modern culture, let alone are they aware of the urgent need to provide vulnerable young minds with effective firewalls in the form of actual ethical / moral instruction. These toxins are malogens, a term of my invention, now gaining wider attention.  We need to protect vulnerable minds.  An excerpt from my article follows.

The “Malogens” in Our Culture

“For too many parents, evil is no longer something devoutly to be resisted and from which children are to be fiercely guarded. In part this is a result of a cultural sea change – from right and wrong (including gray areas) to a morally neutral therapeutic model.  For these parents, evil is irrelevant, meaningless, or marginalized.  Why?  The ethics and morality that give meaning to evil are themselves considered outmoded ideas. In this sub-culture, everything that is really important has been subsumed in the narcissistic agenda of self-healing.  Without more it might be unfair to peg Scott’s mother as a card carrying member of this sub-culture, but the signs and suggestions are clearly there.

“Even the more conventional parents, those who of us who cling to the ‘antiquated’ notion that morality is deeply relevant (‘Yes, Virginia, there may not be a Santa Clause, but good and evil are very, very real’) have a sharply uphill course, given the gravely wounded state of our culture. For traditional parents (dare I call them ‘normal’?) the job of protecting the innocence and moral grounding of our children is vastly more challenging than in earlier times.

Children and young adults are subjected to a seductive torrent of bizarre, unfiltered material, both emotionally and morally disturbing; it seethes through the culture and the adolescent sub-cultures like a computer virus. This toxic material is relatively harmless to those who are well rooted in the deep ethical traditions that have upheld humanity, but it is highly contagious to New Age addled juvenile minds. These are the malogens, the information-carried toxins (really they are moral pathogens); they saturate the internet; they are carried by computers, cell phones and personal contact wherever “modern” juveniles congregate.

“Last year I was pleased to exchange some of these ideas with a political scientist, Maria H Chang.  Professor Chang is author of “Falun Gong: The End of Days” – Yale 2004.  She has written a paper,“Christology in Popular Culture: Christ Images as Antidotes to ‘Malogens’”.

‘“Transmitted via the media are cultural pathogens, for which retired Alameda County public defender Jay B. Gaskill has coined the word ‘malogens.’ These are ‘malevolent’ ideas, images, and themes in popular culture that are ‘as dangerous to the developing mind as biological pathogens are to the developing body.’ The pathogens are transmitted through personal contact and the media—in music, movies, television, video (or virtual) games, and on the Internet. The malogens behave as opportunistic infectious agents seeking fertile breeding grounds, sometimes attacking and overtaking entire subcultures. The teen subcultures especially are vulnerable because they are among the most under-protected targets in American society. [Fn. Jay B. Gaskill, “Reading the Defense: The killing of Pamela Vitale-Horowitz,” September 23, 2006, http://www.jaygaskill.com/Vitalehorowitzdeath.htm . ]

“That the malogens are malevolent or evil can be seen in two ways. Gaskill identifies the first ‘telltale’ sign to be ‘the celebration of violent, even homicidal imagery’; the second is “a nihilist, even anti-life ethos.’[Ibid.] Indeed, Gaskill’s conception of malogens as being malignant is consistent with a definition of evil among psychiatrists. Erich Fromm saw evil as ‘all that serves death’ and “ll that stifles life, narrows it down, cuts it into pieces.’ [Fn. Erich Fromm, The Heart of Man: Its Genius for Good and Evil (New York: Harper and Row, 1964), p. 47.] M. Scott Peck similarly observed that evil is ‘live’ spelled backward. ‘Evil is in opposition to life. It is that which opposes the life force. It has, in short, to do with killing. Specifically, it has to do with murder.’ [Fn. M. Scott Peck, M.D., People of the Lie: The Hope for Healing Human Evil (New York: Touchstone, 1983), p. 42.]

“The cultural pathogens of anti-life nihilism suffuse contemporary popular media—in the ubiquitous pornography on the Internet, in increasingly violent images in motion pictures and television, in macabre role-playing computer games, and in the death-obsessed music of alternative rock.”

“So we are entitled to ask: Why are these toxins able to propagate so freely?

“There is no effective resistance.

“The New Age fog has disabled the faculty of critical intelligence among thousands of Northern Californians. These are the putative adults for whom the traditions of integrity and courage that animated the “Greatest Generation” have long been forgotten.

“We inhabit a culture that is paralyzed by moral ambivalence and remains apparently unable – like the characters in Harry Potter who couldn’t utter the name of Harry’s nemesis, Lord Voldemort – to actually recognize and name evil, even when it makes one of its blatant appearances.

“All parents have a unique and essentially non-delegable responsibility to protect their children from evil influences.”

(5) A Modest Proposal. While we’re at it. Let’s devote some resources to identify the malign influences on the killer-of-the-day, Adam Lanza.  What were the malogenic influences that destroyed his humanity and turned him into a willing agent of Evil?


The Insanity Defense in modern Western jurisprudence dates to the 1843 Daniel McNaughton case in England, a time when “mental illness” was poorly understood. There are earlier and later versions, but the same principles apply. When one’s mental condition seemed to preclude the very capacity to make a moral judgment or – in some rare instances – the capacity to act in accordance with morality, many jurists felt compelled to carve out a different legal category:  the legally insane miscreant was to be committed to an asylum, sparing him or her from the gallows or the prison.

I doubt very much whether Lanza would have been able to successfully use the insanity defense, had he lived.  For that matter, not all US states allow the insanity defense.  The liberal Justices on the US Supreme Court are – for the moment – one vote short of granting a hearing on the question of whether the due process clause requires that all states must permit the defense.  But in California, a jurisdiction where the defense is allowed, it almost never works in front of juries in murder cases.

Clinical insanity, when relevant to the moral issue, is more about delusions that, if true, would exonerate – as in mistaking a neighbor for a monster. I have little doubt that this killer knew his victims were harmless children. Simply put, evil is not merely slipping from the moral path for personal gain, but radically turning against the path, a true reversal of valance. It is a profoundly important moral category, not a medical one.

It seems that the latest 20 year old mass murderer of innocent children was once diagnosed with Asperger’s Syndrome.  But no one seriously contends that, had he not killed himself, that such an impairment could reasonable have constituted a legal defense to those sickening killings, although it might in some death penalty jurisdictions have persuaded jurors to spare his life.

I’ve written so extensively on the topic of murder, crime and evil, that I really don’t have the heart for an even more extended commentary here.  Thankfully, Professor Maria Chang, has done my work for me.

“There is something very wrong with our society and with American families. We are breeding heartless, soul-less, evil psychopaths.”



“On Friday afternoon, I heard an expert on the psychology of mass murderers like Adam Lanza interviewed on the Mark Levin radio show. John Lot said shooters like Lanza are bent on committing suicide. What distinguishes them from other suicides is their grandiosity — they want to go out in a blaze, taking as many innocent lives with them as they can, because they want to make a name for themselves, albeit in the most perverse way. But their names will be emblazoned in the media and in our consciousness nevertheless.

“We need to stop finding excuses — Lanza had Asperger Syndrome! — to minimize their deeds. We need to call these mass murderers what they are: EVIL.”


Professor Chang is correct because the postmodern culture does not recognize evil as a relevant category.  This is a grave error.

Evil – in my particular moral framework – is a narrow, highly dangerous category, distinguishable from mere villainy and wickedness.  Most criminals – a category of humanity I learned to know quite well over a long career – are not actually evil, though their individual acts can fall into that category. Their offenses, including murder, tended to represent grave failures of character and morality that did not challenge the moral order itself, most often representing some lame, “my wants first” exceptions or a series of impulsive “lapses”.  Evil, as difficult as it is for modern and postmodern minds to grasp, represents a truly chilling mindset in which the moral valence itself is reversed, the oft-enthusiastic embrace of anti-values.

Evil is, in part, a mindset that can overcome moral instincts and training – if any. The pattern in the recent child-killing horror, is almost certainly an instance of malignant narcissism (Scott Peck , People of the Lie). In this mindset, one is highly susceptible to evil ideation and conduct, the wellness of others becomes an intolerant affront to an aggrieved narcissist who becomes obsessed with bringing them down. This is the thread that links Nazism and the jihad to the homicidal postal employee.

My own view was outlined in my reaction to the Batman / Joker murders in aurora Colorado.  See The Futility of Shrinking Evil — http://jaygaskill.com/ShrinkingEvil.htm This, in turn, was based on an earlier study of a Goth murder in Lafayette, CA, from which I’ve already quoted.


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.

Consider this tragedy a wakeup call.


Except for the quoted material this article, first published on the Policy Think Site (www.jaygaskill.com ), is Copyright © 2012 by Jay B Gaskill, Attorney at Law.  Links, forwards and attributed pull quotes are welcome.  For other permissions, please contact the author via email – law@jaygaskill.com .

The author is the California attorney who served as the 7th chief Public Defender for the County of Alameda, CA (headquartered in Oakland).

Leave a Reply