A MODEST PROPOSAL RELATING TO THE PREVENTION OF MASS SHOOTINGS

It’s been a while since I’ve posted anything. Although during my hiatus I have often had the urge to say something about current events, I never felt that I had anything productive that I could add to any discussion. With what has happened in Las Vegas, I believe that I can add something to the conversation. I have previously voiced the opinion that the problem with mass shootings is not gun control but people control, and I traced the origin of the trend toward mass shootings to the United States Supreme Court’s tightening of the requirements for involuntary hospitalization of the mentally ill. O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486 (U.S.Fla. 1975), made it nearly impossible to hold a mentally ill person for more than a few days. After that, the patient was often back out on the street acting strangely and getting into more trouble.

Most with mental health issues do not become mass shooters, but most mass shooters (excluding those with political motivations) have mental health issues. It hasn’t yet come out that Stephen Paddock had mental health issues, and the media have portrayed him as someone who was normal to all outward appearances. Other than the fact that he was a loner, his father was a professional bank robber on the FBI’s Top Ten Most Wanted List, he was a high-stakes gambler, and his brother said he was “not a normal guy”, Paddock was just like anyone else and nobody who knew him could have seen this coming. I don’t buy it. I predict that Paddock will have a history of mental health issues. All that investigators have to do to find out about that history is to penetrate the veil of secrecy thrown up by HIPAA and the patient-psychotherapist privilege.

If Paddock proves to have a perfectly normal mental health history, then there may be something to the Islamic State’s claim that he converted to Islam and carried out the attack “in response to [the Islamic State’s] calls to target coalition countries.” I, however, seriously doubt that the Islamic State’s claims have any truth value whatsoever. If an Islamic State spokesman were to tell me that the sun was shining, I’d go get my umbrella.

It is impossible to 100% completely prevent such incidents as happened in Las Vegas, and O'Connor v. Donaldson makes it even more difficult than it otherwise could be, but I think I know of a way to predict whether someone has a potential for acting out in the way that Paddock did. It will take some explaining. There is a school of thought in the field of statistics called predictive analytics or predictive modeling that employs the use of statistical algorithms to predict future behavior.

My first contact with such predictive algorithms came when I was a Sexually Violent Predator prosecutor. The predictive algorithm (which was called an “instrument”) was called the Rapid Risk Assessment for Sexual Offense Recidivism, or the RRASOR. The psychiatrist or psychologist (hereafter “psych”) simply looked to the RRASOR’s checklist, and checked off the boxes on the list. Each box had a number value. At the end of the checklist the psych added up the numbers for each box checked, and the total score gave a prediction for how likely it was that the sex offender would reoffend. The higher the score, the more likely the person was to reoffend. At that time the RRASOR was touted as being more accurate a predictor of recidivism than a traditional psych evaluation.

Another predictive algorithm that was used in connection with Sexually Violent Predator prosecutions was the Hare Psychopathy Checklist, which is now in a revised second edition (PCL-R). Its mechanics were similar to the RRASOR. The psych goes down a checklist, giving points for each variable, and totals the points at the end. The higher the score the more likely that the patient is a psychopath. The more likely it is that a person is a psychopath, the less likely it is that the person will respond to traditional psychiatric treatment.

Steven D. Levitt and Stephen J. Dubner, in their book Super Freakonomics: Global Cooling, Patriotic Prostitutes, and Why Suicide Bombers Should Buy Life Insurance, describe how the UK’s antiterrorism agencies used such an algorithm to thwart terrorist attacks. They come across a person who looks suspicious, run him through the algorithm, and the algorithm tells them how likely it is that the person is going to make a terrorist attack. Go down the list, check off the boxes, and add up the points, and the higher the score, the more likely the person is to make a terrorist attack. One of the criteria was whether or not the person had any life insurance. Life insurance policies are not going to pay off if the insured kills himself in a suicide attack, so why buy life insurance? The only reason to do so would be to lower your score on the terrorism algorithm.

Now, we’ve got enough data on enough mass shooters to look into their backgrounds and find the common characteristics that all or most mass shooters possess. Assemble a checklist like the RRASOR or the PCL-R, run the questionable individual through the checklist, and if the individual scores high on the algorithm, that person bears watching. We could call the algorithm the Gun Violence Assessment of Risk (GunVAR).

How would you apply it? Use a methodology similar to that used in Sexually Violent Predator prosecutions (See Fla.Stat. §§ 394.910-394.932). When a sex offender is released from prison, the offender is examined and a determination made as to how likely that person is to reoffend. If it is determined that the person has a high likelihood of reoffending, then a Sexually Violent Predator commitment proceeding is initiated. The flaw of Sexually Violent Predator commitment, is that the individual can be committed with no real prospects of being cured and consequently no real hope of release. I would propose a different protocol for proceedings relating to risk of gun violence.

When an individual has been involuntarily committed for mental health issues, upon his release, he will be assessed using the GunVAR. If he scores high enough on the GunVAR, then the psych has a duty to report this fact to the authorities. Proceedings can then be instituted to insure that the person is placed under a form of probationary supervision, he receives outpatient therapy to curb his violent tendencies, and maximum efforts are made to keep him separated from guns (including periodic unannounced inventories of his living quarters to make sure he hasn’t acquired any guns). When a psych certifies that he has a clean bill of mental health, then a judge can release him from supervision.

As I said at the outset, there is no 100% foolproof method of preventing mass killings. A truly determined killer doesn’t need a gun—a pressure cooker and some home-made explosives or a rented van loaded with ammonium nitrate and fuel oil will work just as well. But I do think a procedure similar to that described in the Sexually Violent Predator laws would cut down on such violence.