Lethal Predators and Future Dangerousness

In the summer of 1978, police in East Lansing, Michigan, arrested a baby-faced criminal justice student and youth minister witnesses had seen running from a house following the assault and rape of a 14-year-old girl and the stabbing of her 13-year-old brother. Fortunately, both children survived and ably assisted police during the investigation. The subject, then in his early 20s, was no stranger to Lansing police officers when they arrested him.

For many months, they had considered him a suspect in the disappearance of four area women, beginning with his fiancee who vanished on the first day of 1977 after spending New Year’s Eve with him. Local detectives and prosecutors believed that he was responsible, but, despite exhaustive efforts, they never developed enough evidence to charge him in any of the cases. Moreover, in three of the four cases, police never found the women’s bodies.

After the subject’s subsequent conviction, prosecutors offered him a plea bargain in the other cases. He would lead authorities to the bodies of his victims, allowing authorities to close the cases and the families to end their anguished uncertainty. In exchange, he would be prosecuted for manslaughter, with sentences to run concurrently with the 30- to 50-year term he already was serving. The missing women’s families agreed to the deal and so did the subject. Because of statutory sentencing guidelines, including mandatory “good time,” he was scheduled for release in February 1999.

1 The county prosecutor who oversaw the plea bargain remembered the subject as “cunning, religiously obsessed, deceptive. He did not look physically threatening or dangerous, anything but.”2 He remained calm and composed during the long investigation, “so composed that he went over to one victim’s house on the morning after the murder and offered to help search for her.”3 Twenty years later, this same individual maintained his earlier assessment, believing that the subject still would be dangerous if released, “I was positive to a moral certainty that he would kill again.”4 Concept The authors consider this subject representative of a small, identifiable, and exceptionally dangerous subpopulation of lethal criminals. Those who investigate their crimes and evaluate and study their behavior call these killers “lethal predators.”5 These offenders, almost always males, have killed at least once and are likely to keep killing as long as they are free to do so. They are deliberate, sadistic, and often highly intelligent. They tend to carry out their crimes in a ritualistic manner, to include a strong sexual component in their acts, and to rape or torture their victims. They formulate their plans, then pursue, capture, assault, and ultimately kill their prey. Some leave their victims’ bodies in poses that express and symbolize the feelings of power and pleasure they have achieved in the act of killing. They lack feelings of guilt or remorse. They typically become increasingly violent and cruel over time, driven by fantasies that feed their predatory desires and lead them to compete with themselves in a twisted game of “practice makes perfect.” They understand their misbehavior, know the difference between right and wrong, and can choose when and where to act upon their urges. They are criminally responsible for their acts and are not insane.

Many of these killers are skilled at covering their tracks and become more competent and confident with each crime. As a result, they often are convicted for lesser offenses leading to less severe sentences than their crimes and level of dangerousness should warrant. They have little or no motivation for treatment, which, in any case, is extremely unlikely to offer any kind of “cure.” Upon their release or, in some cases, their escape, they essentially are unchanged and as likely to assault and kill as they were before their incarceration.

No one knows the number of lethal predators, whether in prison or out, or how many are serving less than maximum sentences and might be released with their capacity and desire for violence still intact. In addition, no easy way exists to develop that information. Crime statistics, court records, and prison data do not distinguish lethal predators from the rest of the criminal population or from the more than 140,000 inmates now serving time for murder in U.S. prisons.6 These killers have several overlapping characteristics. They have a history of lethal violence, sexual predation, and certain types of mental abnormality. Law enforcement and mental health professionals agree that each of these factors independently is associated with violence and aggressive behavior. When all three coexist, a synergistic effect can form, greatly increasing the probability of violent acts that inflict extreme suffering on others. From a public safety standpoint, the most important concern about lethal predators is that they commit their crimes repeatedly. Policymakers in the criminal justice and mental health systems, as well as the public, legitimately may consider whether criminals of this type are too dangerous to ever be released. Definition In considering the questions surrounding sentencing issues and postsentence confinement of these predators, authorities should remember that potential at-risk victims exist both outside and inside prison. When someone is freed from imprisonment and then commits another highly publicized crime, especially likely when one of these killers is involved, it undermines public confidence in criminal justice and mental health professionals. In that sense, lethal predators have the capacity to endanger not just the people they stalk and kill but the bond of trust between citizens and their governmental institutions. For this reason, developing an understanding of lethal predators from both criminal justice and mental health perspectives is essential and has serious implications for public safety. Those, like the authors, attempting to combat these criminals understand the need to develop reporting procedures or other methods that will provide an informed estimate of where these predators are located. They also urge the development of protocols and a methodology for evaluating violent felons who may fit the definition of a lethal predator.

As the country debates these issues, legislators, the public, the criminal justice system, and the behavioral science community must reach an understanding of exactly which offenders might be subject to maximum sentences or indeterminate confinement. The criteria that the authors suggest are intentionally narrow, designed to identify a small number of killers who fall at the extreme end of the spectrum of offenders who commit murder or manslaughter.

The authors base their definition of a lethal predator on four elements: lethal violence, multiple acts of sexual predation, mental abnormality, and legal sanity. All four must exist for a criminal to be classified as a lethal predator. In addition, this definition of lethal predation is consistent with, but more restrictive than, the criteria the FBI uses to define sexual homicide. The FBI’s National Center for the Analysis of Violent Crime (NCAVC) distinguishes four types of sexual homicide: organized sexual homicide, disorganized sexual homicide, mixed sexual homicide, and sadistic murder.7 These subclassifications are related closely to the types of criminal acts committed by those the authors define as lethal predators. According to the FBI, sexual homicide, both organized and disorganized, “involves a sexual element (activity) as the basis for the sequence of acts leading to death. Performance and meaning of the sexual element vary with an offender. The act may range from actual rape involving penetration (either before or after death) to a symbolic sexual assault, such as insertion of foreign objects into a victim’s body orifices.”

Lethal Violence

Lethal violence is criminal killing, meeting the legal definitions of murder or manslaughter. To comply with the authors’ proposed constellation of factors, the killing must occur at least once in the context of sexual predation.

Multiple Acts of Sexual Predation

Sexual violence is “the threat or use of physical force either to coerce another person to submit to sexual behavior or to produce sexual excitement or release in the perpetrator.”8 Predation is not a legal term, but denotes an intentional act of selecting, pursuing, and overpowering a person and then inflicting harm on that person for the pleasure of the predator.

Sexual predators, whether they kill or not, will escalate their activities over the course of their careers. Typically, they will start with violent sexual fantasies and progress to acting out their imagined scenes with both willing and unwilling partners. The lethal predator also will demonstrate increasing skill in selecting, pursuing, capturing, and controlling the victim and carrying out the murder.

In analyzing sexual motivation, the authors point out that predators may find sexual gratification in activities most people would consider nonsexual, such as the infliction of pain, mutilation, or postmortem display of the body and collection of trophies.9 Those sexual predators who kill commit acts quite often that have nothing to do with the commission of the murder. For example, they may pose, move, mutilate, or dispose of the victim in an unusual way. These acts may be symbolic and designed to make an impact on others or for the predators’ perverse pleasure and enjoyment, or both. In some cases, no evidence is found of “normal” sexual arousal, such as erection and ejaculation. Such seemingly non-sexual behaviors, when they occur repetitively, also can establish the criterion of multiple acts of sexual predation.

These crime-scene behaviors also can indicate that a lethal predator is likely to re-offend. Law enforcement professionals trained in crime-scene analysis techniques and experienced in working with violent offenders are best able to assess evidence of predation based on their thorough review of case materials.

Mental Abnormality

Mental abnormality, the most elusive of the four elements in the authors’ definition, can become evident when someone exhibits the traits and characteristics of a variety of mental disorders without reaching the threshold of mental illness necessary for exculpability or diminished capacity. At the core, evidence will exist of severe personality disorder or paraphilia and may include, but is not limited to, traits associated with antisocial personality disorder, psychopathy, sexual sadism, pedophilia, and, in certain extreme instances, necrophilia.10 Other disorders may coexist with these, but, similarly, do not rise to the level of mental illness or defect that satisfies the legal standard of diminished criminal responsibility. Psychiatrists and psychologists are best able to assess mental abnormality based upon traditional mental health assessment techniques, such as using record reviews, interviews, and psychometric testing.

In Kansas v. Hendricks,11 the U.S. Supreme Court upheld the constitutionality of Kansas’ Sexually Violent Predator Act12 against a claim that the act violates the due process clause of the Constitution.

The act provides for the civil commitment of persons who, because of mental abnormality or personality disorder, are likely to engage in predatory acts of sexual violence.13 Mental abnormality is defined in the act as “congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such people a menace to the health and safety of others.”14 The Court ruled that the statute satisfies constitutional due process because it requires a precommitment finding that these individuals are dangerous and suffer from a mental abnormality or personality disorder that renders them dangerous beyond their control. Because those two conditions are satisfied, the Court was untroubled by the fact that the Kansas statute does not require a finding of mental illness as it is understood by the medical community.15

Legal Sanity

In saying that lethal predators are mentally abnormal but legally sane, the authors recognize that mental abnormality and mental illness are not precise terms. They use the term mentally ill to refer to a condition that diminishes people’s abilities to understand the nature and quality of their acts or to commit them with conscious intent. The authors use the term mental abnormality to describe a mental state that is surely perverse, but does not diminish criminal responsibility.

Individuals with a mental abnormality may lack the ability to experience remorse and empathy. They may be able to control their predatory behavior when witnesses are present or if they are unlikely to escape without being identified and apprehended. Conversely, when a victim is available and their assessment of risk to themselves suggests a high probability of a successful escape, they will not stop themselves. Mental abnormality can include traits of mental illnesses or severe personality disorders, but not necessarily to the point of meeting strict clinical diagnostic requirements. While the mental health community has no uniform definition of abnormality, the authors believe that it is a diagnosable condition and that trained professionals can reach valid, reliable conclusions about its existence when evaluating cases. Similarly, the legal world has no commonly accepted meaning for mental abnormality. However, the authors believe that the concept can be defined and diagnosed clearly enough to satisfy the legal requirements for civil commitment after criminals have completed their prison terms.16

Findings

Across the country, other cases have continued to demonstrate the extreme danger that lethal predators can represent. A particularly relevant example occurred in Great Falls, Montana, and involved the kidnapping and murder of a fifth-grade boy missing for nearly 5 years.17 According to prosecutors, the subject raped and tortured the boy before killing him, then dismembered, cooked, and ate the remains. In the subject’s garage, detectives dug up 21 bone fragments that DNA tests showed belonged to another child. In the house, police found other evidence, including photographs and a handwritten list with names and dates that appeared to link him to dozens of cases of child abduction and molestation in several states.

Montana residents and state officials were outraged to learn that the subject had come to Great Falls following his release from 12 years of confinement in his home state of Massachusetts. The judge who freed him determined that he was “not dangerous,” even though several evaluations had concluded the opposite and even though his original sentence for attempted murder and kidnapping of two 13-year-old boys had called for 18 to 20 years in prison. Evaluations of the subject, while confined in Massachusetts, contained such descriptions as “a borderline personality with marked passive-dependent and psychopathic features and a dangerously disturbed young man whose prognosis for recovery seems questionable.”18 One psychologist noted that the subject’s “sexual fantasies, bizarre in nature, outline methods of torture extending to dissection and cannibalism; he expresses a curiosity about the taste of human flesh.”19 Another reported that fantasies of violence appeared as his primary source of sexual excitement. Those ominous evaluations proved accurate when authorities arrested the subject in another child-molesting incident barely a month after his release.

Like the man in the opening scenario, this subject appears to fit the definition that the authors have developed for the lethal predator. The devastation both men left behind among the families of their victims and the terror they created in their communities stand as compelling reasons for further study of this special type of criminal and for informed and careful decisions about how best to guard against the danger they represent. While further research must occur, the authors believe that present knowledge clearly establishes three primary facts.

1) Lethal predators are dangerous and a high probability exists of their future behavior remaining consistent with their past behavior. 2) Lethal predators can be identified by specific criteria. 3) Lethal predators can be confined beyond criminal sentences, according to current U.S. Supreme Court holdings of constitutionality.

Conclusion

Lethal predators, a small group of killers, form a relatively homogeneous subpopulation of criminals who are cruel, predatory, violent, and likely to kill again if released from criminal or civil incarceration, regardless of the length of their confinement. The authors, along with others, have studied the characteristics of such individuals to find ways of preventing future acts of violence and cruelty committed by these killers.

By offering a clear and comprehensive definition of lethal predators, calling for an informed accounting of their numbers and whereabouts, and encouraging the development of protocols and policies for evaluating potential members of this dangerous and perverse class of criminals, the authors hope to break the cycle of suffering these felons can create. To this end, the criminal justice community along with mental health professionals, legislators, and the public must join in a concerted effort to find ways of identifying and removing these predators from society. Only then can those in the public safety arena protect law-abiding citizens from such senseless acts of cruelty and perversion.

© FBI Law Enforcement Journal ALAN C. BRANTLEY, M.A., and FRANK M. OCHBERG, M.D. April 2003

Endnotes

1 Amid growing community anxiety as the release date approached, Dr. Ochberg assembled a group of detectives, judges, legislators, prosecutors, prison psychologists, and victim advocates to explore ways to prevent the subject’s release. Under Michigan state law, he could not be confined in a mental hospital because he was not insane. In the absence of viable alternatives, the group approached Michigan lawmakers, asking for new legislation consistent with the recently issued Kansas v. Hendricks ruling. In the meantime, guards found a homemade garotte in the subject’s cell, and prosecutors filed a felony charge of weapon possession while in prison. Because it was his third felony under Michigan’s habitual offender law, he received an additional sentence of 20 to 40 years in prison.

2 Chief Judge Peter D. Houk, 30th Judicial Circuit of Michigan.

3 Ibid.

4 Ibid.

5 The authors based this article on a larger project to define and examine the “lethal predator” so that legal interventions may prevent future acts of violence. This project has received support from the Critical Incident Response Group of the FBI; the Dart Foundation of Mason, Michigan; and the Critical Incident Analysis Group based at the University of Virginia. Individuals involved in the project

include the authors and Robert D. Hare, professor emeritus of psychology, University of British Columbia; Peter D. Houk, chief judge, 30th Judicial Circuit of Michigan; Robert Ianni, assistant attorney general in charge, Criminal Division, Department of Attorney General, state of Michigan; Earl James, president, International Forensic Services, Inc.; Mary Ellen O’Toole, special agent, National Center for the Analysis of Violent Crime, FBI; and Gregory Saathoff, associate professor of clinical psychiatry, University of Virginia School of Medicine.

6 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Prisoners in 2000 (Washington, DC, 2001).

7 J.E. Douglas, A.W. Burgess, A.G. Burgess, and R.R. Ressler, Crime Classification Manual (New York, NY: Lexington Books, 1992).

8 A.J. Reiss, Jr. and J.A. Roth, eds., Understanding and Preventing Violence (Washington, DC: National Academy Press, 1993).

9 K.V. Lanning, “Sexual Homicide of Children,” American Professional Society on the Abuse of Children Advisor 7, no. 4 (1994): 40.

10 As defined by the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

11 521 U.S. 346 (1997).

12 Kan Stat. Ann Sections 59-29a01 et seq. (1994).

13 Id. Section 59-29a02(a).

14 Id. Section 59-29a02(b).

15 Kansas v. Hendricks, 521 U.S. at 359.

16 Foucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d, 112 S. Ct. 1780 (1992).

17 The authors culled details on this case from various press accounts, specifically “Bar-Jonah’s Life History Full of Tales of Violence,” Boston Herald, January 7, 2001; “Long History of Dangerous, Bizarre Acts,” Boston Herald, January 7, 2001; “Tragic ‘Transfer’ to Montana: Mass. Sex Offender Charged in Boy’s Death,” Los Angeles Times, January 9, 2001; “Cannibalism Alleged in Disappearance: Child Molester Held in 5-Year-Old Montana Case,” The Washington Post, January 12, 2001; “Mass. Officials Praise Sex-Predator Ruling,” Boston Herald, January 18, 2001; “Critics Cite Flaws in Sex-Predator Lockup Law,” Boston Herald, January 14, 2001; and “System Stands Accused in a Montana Man’s Case,” New York Times, January 23, 2001.

18 Ibid.

19 Ibid.