Wednesday, December 24, 2008

From Pedophiles to Retail Securities Con Men: On the Pathologies of Criminality and its Relation to the Public Policy of Legal Responses

Over the course of the last century, the movement to conflate criminality and pathology—to construct categories of mental illness and then to use that construction as a basis of controlling anti-social behavior beyond the criminal law, has continued to gain strength. In the United States, that conflation, and its relation to the law has become constitutionalized, producing a constitutional permission for a state to incarcerate individuals on account of the social ramifications of their illness.

The context in which this constitutionalization of commitment of pathological types—as such may be defined by the psychiatric class and, so defined, turned into a legal category—has been sex. (Backer 1993). In Kansas v. Hendricks, 117 S.Ct. 2072 (1997), an instrumentality of the state sought to deprive a person of his liberty by adjudging him a "sexual predator." Mr. Hendricks had a thirty year history of lewd and sexual activity with children, boys and girls. (See Hendricks, 117 S. Ct. at 2079). For these crimes Mr. Hendricks was sentenced in accordance with the provisions of the Kansas criminal statutes. Kansas filed a petition under the Kansas Sexually Violent Predator Act to commit Hendricks, who was scheduled for release from prison shortly after the Act became law. (See id. at 2076). After a trial, a jury determined Hendricks to be a "sexually violent predator" and the court ordered him to an undetermined period of time in civil confinement, pursuant to the Kansas Act. (See id.). The effect was to transfer Hendricks from criminal to civil commitment. Hendricks appealed on the grounds of "Substantive" Due Process, Double Jeopardy, and Ex Post Facto. (See id.). The Kansas Supreme Court invalidated the Act, holding its pre-commitment requisites to be inconsistent with the notion of "substantive" due process, and the state of Kansas petitioned for certiorari. See id. The United States Supreme Court granted certiorari and reversed the Kansas Supreme Court. (See id. at 2086). Justice Thomas wrote the five justice majority opinion, holding (1) the Act's pre-commitment conditions satisfy "substantive" due process requirements, and (2) the Act does not violate either the Constitution's Double Jeopardy clause or its prohibition on ex post facto lawmaking. (See id. at 2086). Justice Breyer's dissent, however, contended that the Kansas Act is not merely an attempt to commit Hendricks civilly, but an effort to "inflict further punishment upon him." Id. at 2088. Thus, Justice Breyer concluded, the Ex Post Facto clause of the Constitution prohibited the Act's applicability to Hendricks. (See id.).

Over a decade ago, I suggested the power of trend to conflate pathology and criminal activity, and to use medical technologies as a framework for developing the criminal law:

The relationship between the power to define deviance and dangerousness, on the one hand, and, on the other hand, the related power to confine people, under either the criminal or civil law, or both, who meet these definitions, provide another point of interest. We are all well aware of the long saga of the construction of sexual deviances of a number of different stripes as medical and even psychiatric (uncontrollable) illnesses, and the subsequent rehabilitation of a number of those "conditions," in medicine if not in morals. Masturbation, sodomy, and others have each, in turn, provided grist for the mill of the criminal law, as well as fodder for civil commitment.
We are also well aware of the cynical uses to which other less democratic nations have used psychiatry as a means of controlling dissidence, by defining it (conveniently) as dangerous, anti-social activity. The former Soviet Union provides a singular example of this practice, though we in this country have not historically been immune from the practice.
It is with this in mind that Justice Thomas' paean to the State of Kansas and its civil commitment scheme is so striking. Justice Thomas would clearly have us continue to applaud the power of the state to remove dangerous deviants from civil society. [FN120] That power is based on the principle that the interests of society as a whole exceeds that of an individual in her liberty, where that individual threatens the safety of other members of society. But what standards does the majority offer for the balancing to be effected between the safety of the whole and the deviance of the individual. Justice Thomas, in his rush to ensure that Mr. Hendricks trouble the children of Kansas no more, appears to give states a substantial amount of leeway in defining the conditions under which the weighing of interests will tilt heavily against the liberty interest of the individual. Thus, states are not required "to adopt any particular nomenclature in drafting civil commitment statutes,"] nor need the state even track accepted medical definitions when attempting a political definition of illness. But Justice Thomas would invite even more expansiveness than that:
"We recognize, of course, that psychiatric professionals are not in complete harmony in casting pedophilia ... as "mental illness[]." ... These disagreements, however, do not tie the State's hands in setting the bounds of its civil commitment laws. In fact, it is precisely where such disagreement exists that legislatures have been afforded the widest latitude in drafting such statutes."
The dissent, on the other hand, would limit the availability of legislative freedom where professionals disagree. Under either version, when some quantum of some portion of the medical professions defines some condition as abnormal, and the condition describes conduct which cannot be controlled, and it threatens the safety of the public, then the state may confine the individual until "cured." Hendricks and the cases cited in that case are relatively easy. But they are easy only because we continue to be revolted, as a society, by adults who would attempt sexual conduct with children. Yet just 40 years ago most of our society exhibited the same sort of revulsion with respect to adults of the same sex who engaged in sexual activity with each other.
Yet the fact that we as a society might be revolted by some action does not necessarily mean that it amounts to a mental disorder. On that theory, every criminal act, every violent anti-social activity punished by the criminal law, could conceivably also describe the symptoms of some mental abnormality equivalent to mental illness of some sort. Moreover, that our society ought to have the power to punish certain conduct (the limits of which I do not discuss here), does not necessarily also mean that the society ought to attempt to treat the crime as illness. (Backer 1997).
Recently, Jayne Barnard published a powerful argument for applying the pathology-law conflation to the practices of financial, rather than sexual, predators. (Barnard 2008). She proposes treating a particular type of securities law criminal in a way that mimics the treatment of sexual predators, suggesting the creation of a special governmental body to identify, monitor, and punish this type of criminality, and thus identified, she proposes “a user friendly registry, in which securities fraud recidivists can more easily be identified by prospective investors.” (Barnard 2008, 193).

Professor Barnard focuses on a segment of the underbelly of securities related criminality—“the population of offenders who engage repeatedly in retail securities fraud—securities fraud recidivists” (Barnard 2008, 191). This is a class of law breakers that tend to evade the best efforts of the federal enforcement agencies, and especially the Securities and Exchange Commission (SEC) to control them. These offenders are among the most innovative and successful entrepreneurs in an increasingly ossified and regulated industry. (Backer 2008).
The securities fraud recidivists of particular interest here are those who have engaged in three, four, or even more fraudulent schemes—they are career con artists. Over the course of their careers, they have adapted to new technologies, new sales techniques, and multi-continent financial arrangements. They are smart, personable, crafty, and cruel. (Barnard 2008, 191).
For Professor Barnard, lifetime criminality of this type is not merely anti-social, in the way that petty criminality tends to be viewed, but also something else, and a greater threat. She suggests that “many individuals who engage in securities fraud—and especially securities fraud recidivists—may be ‘hard-wired’ to engage in fraudulent schemes. Recent neuroscientific studies support this position.” (Barnard 2008, 192, 214-219). As a consequence the traditional mechanism of law enforcement “are inadequate to curb the harms that securities fraud recidivists inflict” (id., 192); indeed they may “not even be deterred by incarceration.” (Id., 193).

She starts fleshing out her argument by providing here illustrations of the type against which she believes the government ought to act. (Barnard 2008, 193-198). Each of the three—Frank J. Constable, Roc G. Hatfield, and Lloyd Benton Sharp—exhibited what for Professor Barnard appears to be an uncontrollable lust of a financial kind. Each worked tirelessly, and in a number of different media, to defraud the small retail investor—those least sophisticated—of what in the aggregate was sizable quantities of cash.
“These three stories, selected form the scores of securities fraud recidivists whose cases have been handled by the SEC in the past 10 years, share some characteristics: (1) relocation from venue to venue; (2) generation of new schemes; (3)the repeated (and obviously ineffective) se by the SEC of civil sanctions; (4) a shifting mix of civil sanctions with an emphasized on fines and ‘obey-the-law’ injunctions; and (5) only occasional (and often belated) criminal prosecution." (Barnard 2008, 198).
From these stories, and the generalizations of their modus operandi, Professor Barnard suggests a broader typology. (Barnard 2008, 198-214). That typology is easy to summarize: “They are, in a nutshell, thieves, liars and career criminals. They are also successful con artists.” (Id., 198). They are also, at least in the United States, white, male, married, homeowners, some of whom had a college degree. (Id., 199). To unpack these behavior and characteristics, Professor Barnard looks to “studies of such offenders generally, useful statistics, biographies and profiles, and some (more or less candid) autobiographies.” (Id.). It appears that con men have been with Western and other civilizations since the start of recorded history. (Id., 200). They present a uniform anti-social type—“con men, especially those involved in face to face schemes, are manipulative actors with superior cognitive and interpersonal skills.” (Id., 201).

Professor Barnard divides the characteristics of the anti-social pathology of the con man into nine categories: (1) intellectual ability (Id., 206-207); (2) skills in deception (id., 207); (3) skills in building trust (id., 207-209); (4) ‘heart’ and ‘larceny sense’ (id., 209); (5) business savvy (id., 209-210); the ability to ‘read’ one’s victims (id., 210); (7) lack of empathy (id., 210-211); lack of remorse (id., 211); and a quest for power over others that can be rationalized (id., 211-212). To these, Professor Barnard adds superb internet skills. (Id., 212-214). Ironically, the outstanding abilities of this anti-social type also garners a bit of perverse admiration that Professor Barnard cannot help but point to. They are an object of fascination among scholars. (Id., 201). They are also “thought to be the elite of the criminal underworld, revered for their artistry, sharpness, and guile.” (Barnard 2008, 201). Indeed, Professor Barbnard notes the problem—a willingness to underestimate the effect of these pathological types because “Americans often admire the audacity of such men, until we become their victim.” (Id., 226).

Yet there is a reason for this admiration, and in that rationale further irony. Many of these characteristics describe the most successful members of the political, economic and religious classes in most countries of the world. Even skills in deception, lack of empathy and lack of remorse have been used to laud great leaders—signs of decisiveness, of knowing one’s mind, of acting with command. Where con men exploit their skills in socially acceptable ways—even ways that breach the strictures of law and morality, they are heroes—great people. Consider, in this light, the archetypal leader of Western culture—Odysseus. Who better than the man who would help wage a decades long war against a state as punishment for the act of a single individual and who helped end that war by a remorseless act of deception can claim as high a place within Western culture. (Homer Iliad). And what better expression of the con man type than the man who spent an additional ten years trying to get home? (Homer Odyssey). Asian values also laud the qualities of the con man as signs of greatness. (SunTzu 1910 trans).

The point isn’t that the con man is not anti-social, and for that reason, dangerous. Rather, the point is that the cultural understanding of the con man—of the type described by Professor Barnard, is more complicated and ambivalent. What seems to distinguish the criminals Professor Barnard describes from, say, the President of the United States or the Premier of the People’s Republic of China, or the Chief Executive Officer of Sony Pictures, appears the object rather than the talent. What one is looking for is the obsessive drive, the talent, turned toward anti-social activity. And not just turned to anti-social activity; but turned there with an intensity that the normal forms of social coercion to righteousness—to social behaviors or objects—are ineffective. In a sense, then, the pathology is not the talent, or even the obsessions, or the deception or lack of empathy. Instead, it is the use of those talents in the service of goals or projects objectionable to the political community. But worse, it is the use of those talents in that way that are not subject to effective management through the usual mechanisms of state power—either law or the disciplines of social control. (Foucault 1977). And that, in a sense, is what Professor Barnard touches on in her discussion of the nature of the pathology of this criminal class—and the medicalized topology of criminal behavior now known as Antisocial Personality Disorder (APD). (Barnard 2008, 214-218).

A careful reading of the discussion of APD suggests the contours of the illness as grounded in a “Failure to conform to social norms with respect to lawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest.” (Barnard 2008, 214; citing American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 2000). But the language is open to the broadest interpretation—permitting, to the extent the state might find it useful—a powerful mechanism for social management of a type that might well be liberty defeating, though infinitely useful in the construction of an orderly and well behaved community—from gross criminal activity of the type described by Professor Barnard—to shopping! (Backer October 25, 2008). In that congtext, I suggested that “For Americans, the last great product of Enlightenment sensibilities, it is science that has come to order reality. This is particularly the case with respect to the construction of the normal individual as a complex nexus of expected behaviors of utility to the individual. . and more importantly perhaps, to the community of which she is a part.” (Backer October 25, 2008).
In all societies the ability to manipulate healing can be used to reinforce selected social relations, classes, and ideologies. While this is most obviously the case in psychotherapy, which entails premises about what behavior should be, numerous studies demonstrate that the way in which other forms of medicine can be involved in the management of society. . . . Therapies may align themselves with the interests of specific classes and groups of a given society, may mediate and reinforce certain ideological elements. They are created within a given social order, but also reproduce that order. (Mullings 1984, 1).
Thus, Professor Barnard finds a way in which the state can profit from the scientism of psychiatry in a way that might advance public policy for a greater end.

Professor Barnard finds a principled means of targeting a class of offender without offending constitutional restrictions on punishing people because of their status (Robinson v, California 1962), or invoking the criminal law for incarceration (Kansas v. Hendricks 1997). If, she notes, she is “correct, or even close to correct, a significant percentage of securities fraud recidivists, especially those with multiple frauds on their record, may suffer from APD.” (Barnard 2008, 219). And thus, a class of individuals devoid of the free will of adults—these are ripe, as a class, for therapeutic intervention for the better management of the state. Medicine serves to reduce these individuals to “types” without capacity—they are the product of their uncontrollable lusts and thus incapacitated may be reached by the state in ways denied it with respect to social conformists. As Professor Barnard nicely evidences, a “Society, organized on scientific principles, tends to reflect the realities of the normal extracted from a science of individuals that in turn reflect and reproduce the forms of social organization and individual responsibility within it.” (Backer October 25, 2008).

In the last three sections of the article, Professor Barnard wrestles with the consequences. What can be done with a smart, determined, amoral class of pathological individuals who are deemed to cause social stress? The answer, for Professor Barnard, does not lie in the law. Law is meant to manage normal, social individuals. Law is not a system suitable for managing pathology. As such, neither the current system of civil penalties nor that of criminal sanction is suitable. (Barnard 2008, 220-222). The reasons are institutional. The financial system is meant to provide incentives to sophisticated, highly intelligent people who are presumed to understand the legal regime under which they operate and to facilitate their participation within it. The system is not designed to deal with a class of individuals who, like anarchists, are devoted to either exploiting or destroying that system by taking advantage of system mechanics for their own benefit. “Of course, it is understandable that the SEC husbands these cases for itself rather than referring them to the Department of Justice. This reluctance may be due to territorialism and a sense that the U.S. Attorneys’ offices are not very good at prosecuting certain types of securities fraud.” (Barnard 2008, 222).

The logical recourse, then, is one grounded in the realities of the pathology. (Id., 222-223). For this purpose, Professor Barnard briefly lays out six proposals:

1. A one bite rule for the SEC, limiting the recourse to civil enforcement proceedings in the case of recidivism. (Barnard 2008, 223-224).

2. The creation of a special governmental institution, a Securities Fraud Recidivist Task Force, to include bureaucrats and medical personnel to ferret out pathological personalities for appropriate coercion by the state. (Id., 224).

3. The development of a monitoring regime of persons who after psychological assessment are deemed to be pathological anti-social types, requiring a judicial order to permit monitoring. (Id., 224-225).

4. Copying from the patterns of regulation of sexual pathology beyond criminal sanctions, a multi-institutional coalition would develop and maintain a data base of offenders. (Id., 225).
5. In the alternative enforcement institutions ought to adopt policies of progressive discipline. (Id., 225).

6. The SEC, “perhaps in collaboration with the National Institute of Mental Health,” ought to conduct studies of the pathological type drawing on the incarcerated population to further refine understanding of markers of pathology deemed severe enough for government control. (Id., 225-226).

Sex and money—the great foundations of order and disorder in the state—are conflated again in the search for social control. And thus a greater role for the state suggests both opportunity and danger. Professor Barnard is right to suggest the difficulties of law to control pathological behaviors. She is right to suggest that Foucault’s notions of governmentality and surveillance might be a better form of management. (Backer 2008a). Law is neither effective nor efficient.

Surveillance in our time is being transformed from a general and undifferentiated technique of governance, to the active embodiment of governance itself. Surveillance is both the repository of governance norms and the discipline of those norms within any regulatory system. Surveillance is thus a bundle of assumptions, factors, assessments and actions incarnated on the bodies of the regulated. Surveillance in its modern form, represents another step in the perfection of social panopticism, of the creation of systems of social order that are self regulating and internalized among those regulated. It represents a shifting of coercive power from the external—the state, the police, the institution, to the individual and the private. (Id., 112).
Surveillance, reporting, transparency are the new law making for social control. And the power to determine the markers of monitoring is the new power of regulation. (Id.).

Professor Barnard is also right to suggest that the methodologies of the control of sex might be useful in controlling a pathological obsession with other people’s money. “Above all, we must learn much more about the biological and social determinants of the people who commit fraud.” (Barnard 2008, 226). But has Professor Barnard minimized the dangers of that approach in her focus on the wrong to be remedied. Giving the state this sort of power to control anti social behavior—in tandem with a group of professional over which there is little control—a priesthood of psychiatric science, poses its own dangers. Science and pathology deployed in this capacity runs the great risk of abandoning science for politics. The politics of psychiatry’s engagement with homosexuals remains a very recent case in point. Focusing on the pathology might also tend to shift the analysis from the wrong itself to the status of the person accused.

And to an important extent, it is not clear that Professor Barnard’s pathology centered approach would preserve notions of proportionality—there appears to be no difference in treatment between someone who perpetuates a very large fraud against many people and the person who technically violates the law. (Ristroph 2005, 271-279). Indeed, there is a parallel here between this status oriented approach and the difficulties of the “three strikes” rule that makes no distinction among the sorts of felonies that might qualify an individual for the maximum criminal penalties. (Collins, Lieb Markal 2008, 1368). These dangers were apparent but not sufficient to avoid constitutional prohibition of this approach in the context of sexual predators.

But with the expansive power of incapacitation Justice Thomas seems to approve, the state appears to have a tremendous power. It has the power to confine individuals under its criminal and civil laws. Moreover, it has the power to define those actions with respect to which it can then assert the power to commit an individual under the civil law. Deviance and dangerousness sufficient to warrant civil commitment are legal, not necessarily medical terms, especially where at least some arguably qualified group of medical practitioners support the definitions used. Justice Thomas and the Hendricks majority, though, would seem to go further: not only does the state have substantial power with respect to those two critical aspects of incapacitation, but having defined deviance and dangerousness in the form of some identifiable condition over which the person has substantially no control, and having labeled that condition dangerous, the state will be entitled to a large degree of deference. This will be especially the case where the conduct subject to incapacitation elicits some substantial revulsion among the general population. In many cases the "result" will appear "right," but the danger of medicalizing social deviance is substantial, and the power given to the state to limit the liberty of those subject to that condition can be great, and, in retrospect, "wrong." (Backer 1997).

What Professor Barnard proposes is logical, and tempting. It is also certainly constitutional in the way she proposes it. But it may merit some additional protection from the pathologies of politics—and the state—to use medicine as a cover for the destruction of liberty in the name of science. While the normal usually have nothing to fear—the lack of control of the definition of normality—or its usurpation by the political classes, might constitute a perversion as dangerous as the con men against whose profession Professor Barnard rightly labors.



Larry Catá Backer, Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence, 21 AMERICAN JOURNAL OF CRIMINAL LAW 37 (1993).

----------, Fairness as a General Principle of American Constitutional Law: Applying Extra-Constitutional Principles to Constitutional cases in Hendricks and M.L.B., 33 TULSA LAW JOURNAL 135 (1997).

----------, Monitor and Manage: MiFID and Power in the Regulation of EU Financial Markets, 27 YEARBOOK OF EUROPEAN LAW 349-386 (Oxford U. Press, 2008); reprinted in MIFID: A COMPETITIVE LANDSCAPE (Hyderabad, India: ICFAI University Press, forthcoming 2008).

----------, A Mania for Pathology: The Science of Behavior and American Governance, Law at the End of the Day, October 25, 2008.

----------, Global Panopticism: Surveillance Lawmaking by Corporations, States, and Other Entities, 15(1) INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 101 (2008).

Jayne W. Barnard, Securities Fraud, Recidivism, and Deterrence, 113(1) PENN STATE L. REV.189 (2008).

Jennifer M. Collins, Ethan J. Leib, Dan Markel, Punishing Family Status, 88 B.U. L. REV. 1327 (2008).

Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan, trans., 1977, NY: Vintage Books 1995)).

Homer, The Iliad (Alexander Pope, trans., 1713)(700 B.C.?).

----------, The Odyssey (Alexander Pope, Trans., 1713) (700 B.C?).

Leith Mullings, Therapy, Ideology and Social Change: Mental Healing in Urban Ghana 1 (Berkeley, CA: University of California Press, 1984).

Alice Ristroph, Proportionality as a Principle of Limited Government, 55 DUKE L.J. 263 (2005).

Sun Tzu, On The Art Of War (Lionel Giles, trans. 1910).


Kansas v. Hendricks, 117 S.Ct. 2072 (1997).

Robinson v. California, 370 U.S. 660 (1962).

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