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Creation, Destruction, and the Ethics of “Murderabelia”

absratct image of ink painting

On March 30th 1981, 25-year-old John Hinckley Jr. attempted to assassinate President Ronald Regan. He was convinced that doing so would earn him the affection of the young woman with whom he was obsessed — the 19-year-old actress Jodie Foster, who had recently starred in the film Taxi Driver. Hinckley was successful at shooting the president in the chest, and in the process he also shot Press Secretary James Brady in the head, Secret Security Agent Timothy McCarthy in the side, and District of Columbia police officer Thomas Delahanty in the neck. Hinckley was found not guilty by reason of insanity and was committed to St. Elizabeth’s Hospital, a psychiatric institution.

Hinckley remained at St. Elizabeth’s for 34 years before he was conditionally released into the care of his mother in 2016. He now owns a shop that sells books and antiques. While institutionalized, Hinckley gained a fondness for expressing himself through art; he paints and also writes and plays music. For many years, if he wanted to display his work, he was required to do so anonymously because of statutes that prohibit convicted criminals from benefiting from the notoriety that they gained from committing their crimes. In October, 2020, he was granted permission by a District Court judge to sign, claim credit for, and sell his work.

Hinckley’s visual art consists mostly of landscapes. Other notorious criminals create art that is more disturbing and intimately connected to the crimes that they have committed. Serial killer John Wayne Gacy, who was convicted of killing 33 young men and boys and burying them in the crawlspace under his family home is infamous for creating art depicting himself as a killer clown. Before he was convicted, Gacy would often dress up as a clown to entertain patients at the local children’s hospital. His art is inseparable from who he was and is as a person; it is a manifestation of the murderous persona that he developed over the course of many tragic years. Arthur Shawcross, murderer of 14 people in the 1980’s, also created art related to his crimes, some of it surprisingly similar to the art created by Gacy. Other killer artists include Charles Manson, Richard Ramirez, Anthony Sowell, and Elmer Wayne Henley.

These artifacts produced by incarcerated criminals are trade items in the small but thriving business known as the murderabelia market. Those that deal in this kind of thing obtain letters, artwork, recorded music, and even the hair and skin of notorious criminals. Some true crime aficionados will pay a significant price for these items.

Over the years, many pieces of legislation have been passed in an attempt to ward off the possibility that the commission of a crime, in many cases a serious and violent one, will make various forms of artistic expression more profitable for the person or people who committed it. In the immediate aftermath of the Son of Sam murders that plagued New York City in the summer of 1977, New York passed the Son of Sam Law prohibiting criminals from profiting from expression that is lucrative because of the notoriety that they have gained from their crimes. Many other states quickly followed suit. The law was passed because people believed that David Berkokowitz, the person found legally responsible for the killings, was planning to sell exclusive story rights related to his life and crimes to the publishing company Simon & Schuster. They reasoned that if any money is made from the sale of such items, that money should go to the families of the victims. The company, which was attempting to publish the memoirs of Henry Hill, the FBI informant whose life story would later be dramatized in the movie Goodfellas, sued in 1989. They argued that preventing convicted individuals from expressing themselves in this way violated their First Amendment rights. They won the case in the Supreme Court, which held that the laws were constructed in a way that was too broad to achieve the state’s compelling interest.

Hinckley differs from the other figures listed above. He suffers from mental health issues and the court decided that he could not be held legally responsible for the crimes that he committed for that reason. The attitudes that we have toward criminals frequently turn on the extent to which we believe that they acted freely. If coercive factors were in play such that Hinckley had no real control over whether he shot Regan, we shouldn’t hold him fully responsible for doing so. Certain mental health problems are coercive in this way.

Freedom of expression is important for many reasons, and some of them are therapeutic. Art therapy is used in a variety of settings to deal with trauma and mental health problems. The therapeutic aspects of creating art don’t happen only at the individual level; sharing, interpreting, and discussing art is a social experience. Limiting this form of expression might violate access to our nature as creative and social beings who need these outlets in some form or other to survive and to be psychologically healthy.

That said, there are great discrepancies from one state to the next and from one jury to the next when it comes to how seriously people are willing to take insanity defenses. The legal definition of insanity has nothing to do with whether a person has a diagnosed or diagnosable mental illness and has everything to do with whether the person in question knew the difference between right and wrong at the time that the crime was committed. Some people view mental health problems as coercive factors and others do not. Some of the other convicted criminals who make art could have also been deemed legally insane, had they had a different lawyer, a different jury, a different judge, or been tried in a different state. A similar problem arises when it comes to death penalty sentences — such judgments are often arbitrary and have more to do with where a defendant committed a crime than with the mental state of the accused at the time that it was committed.

Even if there are good reasons to allow the social experience of artistic expression to take place, there may also be legitimate medical and social reasons to prevent it. Hinckley was diagnosed with narcissistic personality disorder, and early on doctors feared that social recognition of his art and music might get in the way of his work on that condition. Human beings are both creative and destructive forces. Not all forms of creation are positive, but some of them are so positive that they are life-affirming. Does cutting off all pathways to creation disrespect the dignity of human beings?

There are other cases in which creation is really a form of destruction. Sometimes, the creation of art is a display of hate and violence — not all art is rainbows and rose petals, or even landscapes. What’s more, we often don’t want it to be; it can be important that art is cathartic. That said, sometimes an artist’s intent is to pass along their rage. The artist may want to revictimize the people that they’ve hurt, or to lash out against people they believe have hurt them. Indeed, some families feel crushed when art created by someone who killed their family member is sold. They feel that the perpetrator has not only robbed them of their loved one, but they are taking that crime all the way to the bank.

There are many artists who haven’t been convicted of crimes who have nevertheless done awful things and are terrible human beings. For example, the 20th century artist and architect Eric Gill is now known to have sexually abused his two oldest daughters, yet his art is still featured in exhibitions and is a fixture of private collections. Some of this work even features his nude daughters as subjects. The 16th century artist Caravaggio was violent and was sentenced to death for murder before he fled to Naples, yet his work is displayed at The Louvre in Paris, The Uffizi in Florence, and The National Gallery in London. All of these years removed, much of his art is likely to be more interesting rather than off putting to patrons as result of the profile of the artist. We don’t need to go centuries into the past to witness this phenomenon. The decisions of contemporary politicians may have been the cause of many unnecessary deaths, yet people are inclined to think of that art as charming some decades removed from the fact.

A critical component in the moral assessment of this issue has to do with the people who obtain, sell, and purchase this art. Why is it that a person might want a painting composed by a serial killer to feature prominently in their collection? Perhaps it is a desire to own something noteworthy and unusual that no one else has. It may be an instinct to be, somehow, close to infamy. The fact that these objects are available for sale gives people the opportunity to glorify the wrong people, to look to the worst possible individuals as role models. There is nothing “cool” about John Wayne Gacy. If this art was hanging in a gallery and the artist was unknown, no one would purchase it. It is because the art was created by a serial killer, and not in spite of that fact that led to the purchase of the work. Should we approach all works of art with an empathetic eye, or is there some art to which it is important that we do not relate? Does some art weaken our moral character rather than build on our capacity to view the world in new and diverse ways?

Art is a meaningful part of the human experience. The conditions under which it is made are rich and varied. Our aesthetic experiences and judgments are linked, in many cases, to other kinds of value judgments, which makes these questions very difficult to resolve.

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The Ethics of Dark Tourism

photograph of neon Cecil Hotel sign

In February 2020, Netflix released a four-part docuseries called Crime Scene: The Vanishing at the Cecil Hotel. The series focuses on the death of Elisa Lam, but along the way it tells the story of the building. It was built in the 1920s with all of the glamour that is often associated with hotels of that age in that area. The hotel struggled during the Great Depression. It is located on skid row, and eventually it became a common resting point for the city’s poor. The Cecil is infamous for the deaths that have taken place there and for the fact that two famous serial killers, Richard Ramirez and Jack Unterweger, stayed there during the period in which they were actively killing people. A season of American Horror Story was based on the folklore that surrounds the Cecil Hotel.

Elisa Lam was a 21-year-old student at the University of British Columbia. She vacationed in California in the early months of 2013. Several days into her trip, she checked into the Cecil Hotel. It was frequented by international travelers because it was inexpensive and functioned as a hostel. These travelers were also largely unfamiliar with the hotel’s past and as a result they were undeterred by it. During her stay, Lam initially shared a room with some of the hotel’s other international travelers. She was moved to her own room when those travelers complained about her erratic behavior. Shortly thereafter, Lam disappeared. The last known images of her are captured on a hotel security tape. Her behavior is unusual. The police released the tape and the video went viral, causing internet sleuths across the globe to speculate about what happened to her. At times, she appears to be checking for something or someone outside the elevator door. She moves her hands in unusual ways and presses the buttons to all of the floors. Finally, she walks awkwardly out of the elevator and down the hall. She was found weeks later, naked, dead in the water tower on top of the hotel which a maintenance worker checked after guests complained that their shower and tap water was coming out black.

After the series came out, there was renewed interest in staying at the Cecil Hotel. Crime aficionados and ghost hunters were eager to spend the night — preferably in a room in which Ramirez or Lam once stayed. The hotel has been closed for renovations since 2017, but this has not stopped “dark tourists” and social media personalities from sneaking in to take pictures and footage.

Many people would rather visit the home of a serial killer, the location where a famous murder happened, or the site of a natural disaster than a sandy beach or a world heritage site. Dark tourism isn’t new. People often feel powerful connections to some of the world’s most tragic events. This connection is so strong that thousands of people visit Gettysburg every year, not simply to observe a historical site or to pay their respects to the many human beings that died in that battle, but to actually take on roles and act out what occurred there.

People will engage in dark tourism even when there is risk that doing so might be dangerous to their health and safety. For instance, for years tourists have been visiting Chernobyl, the location of the nuclear disaster that led to agonizing death and long-term illness for so many people in the 1980s and beyond. The risk of exposure to radiation has been no source of concern for many tourists who just want to be close to tragedy.

One way of viewing this kind of behavior is as just one form that an interest in history can take, and there is no reason to be critical of anyone for taking an interest in history. Millions of people visit the Tower of London every year. The fact that terrible things happened there is part of what makes it an interesting place. Most cities and the buildings in them have a rich variety of stories to tell. The ability these destinations have to call up our sense of empathy and shared humanity is part of what makes many of us interested in traveling in the first place.

On the other hand, intentions may turn out to matter quite a bit. If a person gets a charge from visiting the home of a serial killer and their preferred vacation destination is a tour of death, that person may have some soul searching to do.

It also might matter whether it is “too soon” to treat the location in question as a place where tourists can get cheap thrills. Since the Battle of Bosworth happened in 1485, it may be the case that no one can be thought of as particularly perverse for experiencing excitement when visiting the location where it took place. If the event occurred in living memory, it may be wise to be more circumspect. There are actual living, breathing human beings that might be hurt by the decision to treat the location of their personal tragedy as if it is a great spot to grab an Instagram photo on spring break. In the case of Elisa Lam, there is good reason to believe that mental illness played a role in her death. When people visit the Cecil Hotel hoping to contact the ghost they believe killed her, it minimizes the real tragedy of what likely actually happened.

That said, it may be that some events were so inhumane that it is never appropriate to visit sites associated with them for kicks. For instance, over the years there has been much discussion about what to do with Hitler’s childhood home. There was discussion for a while of turning it into a museum dedicated to the memory of the victims of the Nazis. In recent years, Austria has decided to tear it down to reduce or eliminate the attraction the location has for neo-Nazis.

In Salem, Massachusetts, visitors can buy a ticket to the Salem Witch Dungeon, which is ostensibly a site to educate tourists about what the trials, imprisonment, and execution of people accused of witchcraft would have been like for those who experienced them. Unfortunately, at many turns the Witch Dungeon is more like a modern haunted house than it is a respectful educational opportunity. When people wearing spooky makeup are hired to generate screams, it can be easy to forget that everyone who was accused of witchcraft was innocent of that charge and that the events that are being reenacted in the dungeons are based on the last torturous days of the innocent.

Aristotle thought that part of what it is to be a virtuous person is to habituate the dispositions to have apt feelings and reactions to one’s circumstances. This requires practice and keeping a close eye on others who have well-developed characters. Having the right response to a location associated with tragedy may not be a matter of avoiding these locations, but, instead, visiting with the appropriate amount of respect and understanding.

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Sarah Everard and the Politics of Fear

photograph of palm protecting candle at vigil

In early March of this year, 33-year old marketing executive Sarah Everard vanished while walking alone at night through a neighborhood in south London. Days later, her body was found about fifty miles away in Kent. There was an instant outpouring of grief and rage from women around the world, many of whom shared their own stories of being assaulted or victimized while walking alone at night. Their collective rage only grew stronger when the police arrested Wayne Couzens, a London Metropolitan Police officer, for the kidnapping and murder of Everard. Couzens was still an active member of the force when he committed the crime, despite previous allegations of indecent exposure.

However, it isn’t just police corruption or misogynistic violence that make this case so troubling. In an article for The Cut, Angelina Chapin explains her perspective on this case as a Black American woman, and explains that this tragedy should make us question “how white women’s deaths are emphasized and whether fear is a logical response to random acts of violence.” Chapin argues that the media tends to focus on “good victims,” meaning attractive white women who are middle-class, often well-educated or members of the professional class, and not sexually promiscuous. Their deaths are certainly no less tragic,  The but the deaths (and sexual assaults) of women of color tend to receive far less attention in the press. Furthermore, the state often uses collective anxiety as an excuse to increase police presence and resources, a move which always has an overwhelmingly negative impact on people of color.

Chapin also points out that sensationalized cases like these tend to draw our attention away from other arenas where women more commonly experience sexual violence. She writes that

“what’s bothering me in the discourse around [Everard’s] death is the way that some people seem to universalize the feeling of terror women have being out on the street at night . . . While women do get attacked by strangers, it’s relatively uncommon. Women experience more risk in domestic settings than in the streets. So if this hypervigilance is warranted anywhere, it should be in the home.”

Data on sexual assault is notoriously tricky to gather, and conclusions will vary wildly depending on when the study was done, sample size, and demographics, but the existing body of research does seem to support Chapin’s assertion. The Department of Justice’s National Crime Victimization Survey, cited by the Rape, Incest, & Abuse National Network, reveals that only 7 percent of assaults committed against children and teens are perpetrated by a stranger. Another study conducted by the NSA claims that about 23 percent of assaults were committed by strangers. While this is not an insubstantial amount, it certainly feels less pressing than the 70 percent of assaults which were committed by people known to the victim. But at the same time, a recent study conducted by UN Women UK shows that a whopping 80% of women from all age groups have experienced street harassment, which can range from catcalling to verbal threats. For women walking home alone at night, verbal harassment (while also being deeply dehumanizing) may very easily become a precursor to physical harassment.

Women have every right to mourn Everard’s senseless death, but it’s also important to treat this less as an act of random violence and more the result of a rotten system. When we view violence as random and unavoidable, our fear increases, but if we acknowledge the well-substantiated link between police officers and violence against women, we have the power to address and eventually end structural violence. As the co-founder of the Women’s Equality Party in Britain, Catherine Mayer, wrote “We can best honour the victims of violence not only by demanding their assailants face justice, but by challenging the systems and cultures that enable violence and pin the blame on victims.” The tension between systems of power and individuals are becoming more and more apparent; at a recent vigil held in Everard’s honor, protesting women were arrested after confrontations with members of the Metropolitan police force, which is especially jarring given that the offender the women were protesting against was himself a cop. Hopefully this tragedy will bring positive rather than negative change, and everyone, regardless of gender or race, will be able to feel safe in their communities.

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The Castle Doctrine and the Murder of Botham Jean

photograph of entrance to a castle

On October 1st, former police officer Amber Guyger was convicted of second-degree murder in the shooting of her neighbor, Dallas-area accountant Botham Jean. According to Guyger’s defense, she was returning home from work when she entered the wrong apartment; finding Jean inside and, believing him to be an intruder, shooting Jean in (claimed) self-defense. Nevertheless, the prosecution argued that Guyger’s actions were intentional, her contentious history with her victim was suspicious, that it was unlikely she could have been mistaken about her location, and that her training as a police officer should have better prepared her to think rationally under pressure. After only an hour of deliberation, jurors sentenced Guyger to ten years in prison.

A key component of Guyger’s defense was her stated belief that she was in her own home when she attacked Jean. Under Texas law, a defendant can be justified in using deadly force against an assailant if, among other conditions, the person “knew or had reason to believe that the person against whom the deadly force was used…unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment.” Often dubbed the “Castle Doctrine” (after the adage that someone’s “home is their castle”), this concept is similar to so-called “Stand Your Ground” laws elsewhere in the country.

Passed in 2007, the Texas statute is designed to shield a defendant from legal penalties for killing a threat to their person. However, unlike many criminal proceedings, defendants making a self-defense claim must provide evidence that they were reasonably threatened and reacted rationally in the moment. Over the last decade, applications of the Castle Doctrine have ranged from homeowners fighting off armed robbers to the operator of a taco truck shooting and killing a man who had stolen and fled with a jar of about twenty dollars in tip money.

Asserting the Castle Doctrine is no guarantee that one’s defense will succeed – Raul Rodriguez, for example, was found guilty of murder after shooting his neighbor in 2010 during an argument over loud music – but several unusual cases, including Ezekiel Gilbert’s acquittal after killing a sex worker in 2009 and Joe Horn’s infamous 2007 murder of two men in his front yard just months after the rule’s passage (Horn was neither arrested nor indicted by a grand jury) exemplify the potentially problematic nature of the law. Since its creation, homicide rates have increased statewide with many of them evidencing racial bias against non-white defendants.

Philosophically, considerations of how one is allowed to protect themselves tend to emphasize two key factors for justifying an act of self-defense: proportionality and necessity. Proportionality captures the sense that self-defensive actions are only allowed to meet, but not exceed, the degree of threat posed to an agent: so, if someone is about to flick your nose with their fingers, it would violate proportionality if you shot them with a gun. Necessity, however, is simply whether any other option is available to the person considering lethal action; if you’re attacking me and I could either fight you or easily escape, necessity would require me to flee.

The interplay of these (and other) concepts results in several intuitively familiar principles: for example, if a person is able to run away from a threat, then they have a Duty to Retreat (because of necessity); or the Imminence restriction, which allows lethal force (because of proportionality, constrained by necessity) only in cases where threats are clearly about to result in harm.

The Castle Doctrine amounts to a denial of the necessity principle if certain other facts are true. Even if a defendant could feasibly escape from their attacker, defenders of the Castle Doctrine argue that, because of their property rights (for one example), they should not have to flee. Details beyond this vary from case to case; some argue that castle-defenders are also allowed to do whatever they want to a trespasser (on the notion that intruders forfeit all rights by breaking into a home), while others maintain that home-based self-defensive actions are still constrained by proportionality considerations.

Which returns us to the case of Amber Guyger, who (reportedly) thought she was in her own home, but was actually not. Many were surprised to learn that the presiding judge explicitly allowed jurors to consider the Castle Doctrine when deliberating over the case’s verdict; Guyger’s claim that she mistakenly entered the wrong apartment may have seemed unlikely enough to disqualify this as a potential legal shield. Nevertheless, a key element of the ethics of self-defense is often the perceived facts about the case, not necessarily the actual facts – given that self-defense often (though not necessarily always) happens in a momentary reaction without the opportunity for much reflection upon the available evidence. If Guyger somehow genuinely believed that she was in her own home, then there may indeed have been a legal case for applying the Castle Doctrine here.

However, the fact that there was considerable evidence to doubt the authenticity of Guyger’s belief regarding her location was clearly sufficient for the jury to rule against her claim of self-defense.

 

1 My thanks to Blake Hereth, Adam Blehm, and Stephen Irby for discussions regarding the ideas underlying this article.

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Cyntoia Brown and the Limitations of “Self-Defense”

Photograph of an empty courtroom

Cyntoia Brown’s name has frequently been in the news.  Her cause was taken up by celebrities including Rihanna, Kim Kardashian, Lebron James, and Ashley Judd. Cyntoia Brown is also the subject of a 2011 PBS documentary. Brown, 30, is currently serving a fifty-one year prison sentence for killing a man when she was sixteen years old.  

 In 2004, sixteen-year old Cyntoia was involved with twenty-four year old Garion “Cut-Throat” McGlothen. The teenaged Brown was assaulted by McGlothen and trafficked into sex work.  One day, a man named Johnny Allen, 43, picked up Brown and brought her to his house to sexually assault her (at sixteen, she was below the minimum age of consent, which is eighteen years of age in Tennessee). Brown testified that Allen engaged in intimidating behavior, showing her his gun collection, and pacing and watching her as she tried to sleep. He reached out to grope her. Brown rebuffed his move, and he rolled over, reaching for something. Fearing he was reaching for a gun, Brown grabbed her own gun from her purse and shot him.  

 Prosecutors argued that the case did not look like self-defense, emphasizing Allen’s bodily position (which did not necessarily contradict Brown’s version of events) and the fact that Brown took Allen’s wallet and a couple rifles after the shooting. They contended that the subsequent taking of his wallet and guns was Cyntoia’s premeditated motive for the killing, rather than an afterthought. When Cyntoia displayed erratic behaviors, they were paraded as evidence of a wilful, premeditated behavior instead of the actions of a traumatized teen (in addition to her trauma, Cyntoia may have been a sufferer of Fetal Alcohol Syndrome and was theorized by her counsellors to have borderline personality disorder). Cyntoia was tried as an adult and sentenced to fifty-one years of prison.

 Today, fourteen years later, Cyntoia would not be tried as an adult. Her state of Tennessee now recognizes that underage sex workers are not a category: children are de facto sex-trafficking victims rather than sex workers in virtue of being unable to consent. This is one way in which Cyntoia’s case was shamefully handled: using an archaic framework that did not take her childhood and her victimhood into account. These point to systemic issues. Other systemic issues concern her gender and race, and logical problems with the ways in which criminal law articulates our notion of justifiable self-defense.

 Self-defense as a legal argument has several requirements, among them imminent threat and reasonable fear of harm. The prosecutors argued that Allen did not pose an imminent threat to Cyntoia.  

 The notion of “imminent threat” and “reasonable fear of harm” has already been nuanced by advocates for women pointing out that some victims of intimate partner violence and sexual assault exhibit “battered women syndrome” (BWS), a state of fear and helplessness brought on by the cyclical tactics of an abuser. BWS is a legal concept more than a clinical one, but psychologists have associated its symptoms with those of post-traumatic stress disorder (PTSD). Individuals who suffer repeated sexual and physical trauma at the hands of intimate partners develop a fear of the partner, attributing extensive power to the partner due to a history of violence and threats on the abuser’s part. This is not an irrational fear, as nearly three women are killed every day by a male partner.  

 One of the features of victims of sexual and physical violence is that what looks like an “imminent threat” to a woman or child so habituated to being the object of violence may look very different to a person not regularly subject to abusive behaviors. In fact, what appears to be an “imminent threat” and “reasonable fear of harm” to two parties of roughly equal power in a roughly equal situation without a history of abuse will look different from that of a woman or child in the power of a much stronger male or grown individual. Our notions of “self-defense” do not adequately capture this power imbalance. The same goes for the idea of “proportionate response,” also central to the legal notion of legitimate self defense. A man facing an assault from an equally or less strong man could theoretically ward off the attack with a lesser show of force than a child or less physically imposing person. A person with much weaker strength who responds with minimal force could merely risk being harmed more vehemently by angering their opponent with an ineffective show of resistance inadequate to the other’s strength.    

 Arguably, the law has in place a softer interpretation of self-defense that can allow for these power differentials, called “imperfect self-defense.” Imperfect self-defense describes those individuals who honestly anticipate imminent harm and act accordingly.  Such honest belief might be unreasonable (in reference to a presumably objective observer) but the genuine motive of the actor would be an extenuating circumstance, as malice would be lacking to their action.  This notion extenuates individuals who do not match up to an “objective” observer (i.e. an observer who is presumably at the height of intellectual, physical, and social access, i.e. an observer who is an adult male).

 Cyntoia’s prosecution and the jury did not appear to find it overwhelmingly plausible that a child in a vulnerable position to being sexually and physically assaulted by a grown man would subjectively or objectively be in fear for her safety. They could arrive at the judgment they did in part by erasing Cyntoia’s victimhood as a child trafficked into sex, and by interpreting behaviors understandable in a traumatized teen as the willful malice of a fully-formed adult able to negotiate her situation. It is also extremely likely that the final verdict depended upon a limited default understanding of self-defense as between parties of equal strength and power. Martha Nussbaum’s Frontiers of Justice notes that much of our political theory is built upon this inaccurate notion. It appears that some of the foundational concepts of widespread legal theory are still bound by similar limitations, to the immense detriment of those who do not match the “default” adult male paradigm. Cyntoia bears a heavy cost for her difference – both in terms of her initial exploitation and in receiving an inhumanly harsh penalty for her action.

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Making a Murderer, Brain Fingerprinting, and the Ownership of Thoughts

Photograph of a billboard that says Avery's Auto Salvage and 24-Hour Towing

In 2015, Netflix released the first season of the docu-series Making a Murderer.  The series follows the story of convicted murderer Steven Avery. Avery’s case is noteworthy because, in 1985, he was wrongfully convicted for the rape and attempted murder of Penny Beernsten. The Innocence Project used DNA technology that did not exist at the time at which Avery was convicted to prove that Avery was innocent and that a different man had committed the crime. Avery was released in 2003 and subsequently filed a $36 million lawsuit for unlawful conviction against Manitowoc County, among others.

In 2005, photographer Teresa Holbach went missing. Her most recent scheduled appointment was to photograph a van at Avery’s home for his family business, Avery’s Auto Salvage. Charred fragments of Holbach’s bones were later found in a fire pit on Steven Avery’s property. Avery and his young cousin, Brendan Dassey were convicted of Holbach’s murder.

As a docu-series, Making a Murderer was widely successful. Many viewers were left with the impression that the evidence against Avery was planted and that the police misconduct was motivated, at least in part, by a desire to affect the outcome of the impending lawsuit. Many were also left with the impression that Brendan Dassey was wrongly convicted as well because, when interrogated, he was a minor with a particularly low IQ. Many feel that the officers who interrogated him fed him the information that comprised his false confession.

One might think that the way that the details were presented in the first season of Making a Murderer was morally questionable. The producers of the series left many details out, including the fact that a sample of Steven Avery’s touch DNA was found on the hood latch of Teresa Holbach’s car. Many viewers of the Netflix series became very personally invested in the case, going so far as to write letters to Avery, Dassey, and the law enforcement officials they hold responsible for what they view as the wrongful conviction of two innocent men. The series also had the effect of opening old wounds for those who loved Teresa. True crime is a popular form of entertainment. We should, perhaps, put more thought into the fact that these stories that serve as entertainment for so many are quite real for the people involved.

Despite these concerns, Netflix recently released a second season of Making a Murderer. One might naturally wonder whether reviving the story was an ethically defensible thing to do. This season focuses on both Avery’s and Dassey’s quest for post conviction relief. In 2016, defense attorney Kathleen Zellner took on Avery’s case, and the new season of the show focuses heavily on her efforts to prove Avery innocent. One tool she uses in this endeavor is a relatively new technology known as “brain fingerprinting.” Brain fingerprinting involves showing an individual (in a criminal case, presumably a suspect) a series of images or words. Some of the images will be associated with the case at hand, some will not. The individual is hooked up to electrodes that monitor their brain activity. When an image is familiar to the person, there will be electrical activity in their brain in predictable locations within 300 milliseconds. When the images or words are unfamiliar, there will be no such activity, or the activity will be of a different type. Brain fingerprinting, then, serves as a far more sophisticated lie detector test. While lie detector tests detect physical changes like sweat and heightened blood pressure, brain fingerprinting looks directly at the location the thought is taking place. Zellner claims that brain fingerprinting of Steven Avery reveals that he does not remember key features of the crime committed against Teresa Holbach and could not, therefore, be guilty of the crime for which he has been convicted.

In this case, brain fingerprinting was used by a defense attorney to establish that a particular perpetrator could not have committed a specific crime. At this stage, then, it doesn’t appear as if there is a lot of potential for abuse. But is this a technology we should be comfortable with governmental officials making use of? There are a number of reasonable concerns about the use of this practice.

The first set of concerns has to do with accuracy. Making a Murderer’s Larry Farwell contends that the technique has a 100% success rate—a claim that is rather difficult to believe. Even if the test is 100% effective at measuring something, surely what it measures will be highly contingent on nature of the images or words shown to the potential suspect.

Another concern is that the test has the potential to be more prejudicial than probative. Even if the test reliably indicates that a person remembers something, the test cannot reveal precisely why they remember that thing. What’s more, human minds are complex. Events and crime scenes are nuanced. So, though the test might indicate that the suspect remembers something, it cannot establish with certainty what exactly is being remembered. Finally, the fact that a suspect’s scan indicates that they are familiar with, say, an, object, location, or event, does not entail that the suspect’s association with what they remember is indicative of a mens rea—a guilty mind.  

Concerns about this new technology don’t end there. Even if the accuracy of the procedure was perfect—even if we could establish that a suspect remembers something, what it is they are remembering, and why they are remembering it, there still be may significant moral reasons that speak against the use of this procedure by the government. It may be that human beings have a fundamental right to bodily autonomy and privacy, the importance of which outweighs the government’s interest in catching criminals. Seeing to it that criminals are held accountable for their actions is a laudable goal. One might think, however, that our own personal thoughts are inherently, inviolably ours. This might be the right place to draw an insuperable line.

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Opinion: Kevin Williamson Is Right (About One Thing)

photograph of an anti-abortion protest

Kevin Williamson, a flame-throwing National Review contributor for many years, was recently hired by The Atlantic as part of the magazine’s effort to include conservative voices, and then he was fired. The bridge too far was not the fact that he had once tweeted out a call for women to be hanged for having abortions, but the fact that this wasn’t just an impulsive tweet. In a podcast unearthed by his critics, he can be heard saying that he does indeed think women who have abortions should be treated however we treat murderers. He also expresses doubts about capital punishment, so—rejoice?—the bit about hanging was just a rhetorical flourish.

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Social Media Vigils and Mass Shootings

In the wake of the largest mass shooting in the United States to date, Facebook and other social media sites have been flooded with posts honoring the victims in Orlando. Many such posts include the faces of the victims, rainbow banners and “share if you’re praying for Orlando” posts. Although there is nothing particularly harmful about sharing encouraging thoughts through social media, opinions are surfacing that it might do more harm than good.

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A Hazing Death at Baruch, 2 Years Later

Charges have finally been brought against 37 members of the Pi Delta Psi fraternity at Baruch College (as well as the national organization), in relation to the death of 19 year old freshman pledge Chun Hsien “Michael” Deng back in 2013. Five members face murder charges, while the others face various charges of assault, conspiracy and hindering investigation.

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