What to do with the man who shot Gabrielle Giffords?

The hard case of Jared Lee Loughner adds a new chapter to the history of the insanity defence


The history of the insanity defence, from M’Naghten to Hinckley, is a history of hard cases. The case of Jared Lee Loughner is turning out to be the latest—yet this evolving history appears to be beneath the notice of the American press, for the time being. Loughner is the 23-year-old schizophrenic who wounded Congresswoman Gabrielle Giffords and killed six people in a January 2011 shooting spree at a Tucson parking lot. He was a massive nuisance as an undiagnosed free man attending community college, and he is a major problem now. There is no doubt he committed the act with which the U.S. justice system is trying to charge him criminally. But what do you do with him? As things stand, Loughner is, or has the right to be regarded as, a sick person who has been found guilty of no crime.

The enthusiasm for Giffords’ story of incremental recovery has been much greater than that shown for the legal puzzle Loughner poses. He cannot, according to the most ancient traditions of Anglo-Saxon justice, be put on trial until he is able to understand the proceedings and assist in his own defence. The system self-evidently does not want to let go of Loughner and turn him over to the healing professions, but the pretence that he is likely to become lucid while still in pre-trial custody may be crumbling.

On March 5, the U.S. Court of Appeals for the 9th Circuit upheld a decision by federal prison officials that Loughner could be involuntarily medicated for his own safety and for the convenience of his jailers. The two-judge majority in the case accepted that the prison had to meet a pretty low standard for due process: what they did, basically, was have a couple of head-shrinkers look at Loughner, without a judge or lawyer present, and say “Yep, the dude’s cuckoo for Cocoa Puffs.” (Loughner obliged them, of course, with the schizophrenic’s full repertoire of addled, destructive behaviour and obscenities.) The judges took an attitude of deference to medical expertise: legal training, they essentially ruled, had no place in determining or adjusting Loughner’s relationship with his captors and his doctors.

But in a stinging dissent, Circuit Judge Marsha Berzon pointed out that there are two potential, quite separate purposes for medicating Loughner: (1) prison policy and safety, and (2) restoring Loughner’s ability to participate in a trial. To the degree that involuntary medication might affect Loughner’s future criminal defence, she argued, it should probably be agreed to by a judge in the first place, and a high standard of due process should be observed. The prison officials and the shrinks constantly conflated the two goals in medicating Loughner, and were left to restore or try to restore him to a state of triability without judicial oversight. There is a danger here, Berzon argued, of railroading:

“The tendency of psychotropic medications to flatten or deaden emotional responses” could prove particularly damaging if the government seeks the death penalty, as it very well might in this case, because “the jury would then be especially sensitive to [Loughner’s] character and any demonstrations of remorse (or lack thereof).” …Even the intended effects of psychotropic drugs may infringe Loughner’s fair trial rights. Assuming Loughner will put on an insanity defence, manifestations in court of how his mind works may well be his own best evidence. …The government’s decision to restore Loughner’s trial competency may therefore prevent him from putting on his chosen defence by altering the material evidence for that defence.

…There is no point in restoring a defendant’s trial competency, through commitment to a medical facility and involuntary administration of psychotropic medication, if the means necessary to effect restoration will so infringe the defendant’s fair trial rights as to render the trial itself unconstitutional.

This goes to show what huge difficulties the concept of legal insanity creates for the justice system. Berzon’s point could not possibly have more urgency, and her dissent’s logic runs circles and does a few figure-eights around the majority decision. Yet her reasoning does have a tendency to reward the cultivated appearance of insanity. After all, she is literally saying that an accused who wishes to deploy the insanity defence has a right to display convincing insanity in court. Really?

As Bill James observes in his 2011 book Popular Crime, there were a fair number of American criminals in the period between 1945 and 1980 who basically specialized in making themselves impossible to try. (By 1970 the U.S. courts were experimenting with shackling and gagging “recalcitrant defendants”—surely the awkward “due process” hack to end all due process hacks. This solution was used most notoriously against Bobby Seale in the trial of the Chicago Seven, Seale being the ultra-recalcitrant Eighth.) The situation eventually became too objectionable to tolerate; yet the equally objectionable solution, at least from the looks of how Loughner is being handled, seems to be to let prison officials fudge due process a little so they can drug five-alarm nutbars into a complacent stupor. (And maybe that is in fact the best practical solution.)

On Tuesday the 9th Circuit refused another petition from Loughner asking the court to stop the medical treatment. His condition is to be reviewed by a district judge on June 27. If Loughner has not improved, and there are indications he hasn’t, then the judge may have to commit him to a mental institution—with the alarming possibility of a sudden improvement in his mental state, and subsequent release. At some point, one way or another, this story is going to get a lot more interesting.


What to do with the man who shot Gabrielle Giffords?

  1. The real issue is that the US doesn’t like ANYONE to be found not guilty by reason of insanity. Providing medication to a person who is suffering from psychosis is a humane act. The auditory hallucinations they suffer from are rarely pleasant. Most involve derogatory voices directing them to do terrrible things. Often patients self injure by hitting their heads or wrapping things around their throats because the voices tell them to. Failure to ensure these patient’s safety and try to provide them with some sort of relief through medication would be negligent on the part of medical staff.
    Further, it is disengenous to suggest that antipsychotics cause emotions to be flattened when flattened emotions are a common after-effect of a psychotic episode, whether antipsychotics were used to treat it or not. Psychosis is believed to be caused by an assault of neurotransmitters on the brain and all of the studies have shown that brain injury results from this assault. It can take considerable time and much rest for the brain to recuperate and for a person to get back their “personality”.
    Also to say that people who are given antipsychotic medications are “drugged into a complacent stupor” is ridiculous. When patients are no longer tortured by awful voices and thoughts, they tend to calm down and although it may be necessary to initially give larger doses, once a patient is well, they often can go to work while taking these medications.

    • “Psychosis is believed to be caused by an assault of neurotransmitters on the brain and all of the studies have shown that brain injury results from this assault. It can take considerable time and much rest for the brain to recuperate and for a person to get back their “personality”.”
      If I recall, Ms Giffords also suffered a severe brain trauma. She seems to be progressing at a much more rapid and favorable rate than Mr. Loughner. I have little sympathy for Mr. Loughner.
      One way or another, Mr. Loughner needs to take a very long sleep.

      • I was not commenting on Mr. Loughner’s crime against Ms. Giffords which was horrendous. I was merely saying that withholding medication because it might ‘flatten” the emotions of a person with schizophrenia is not valid given that following a psychotic episode (which causes severe trauma to the brain) those emotions are flat anyway.
        You can blame Mr. Loughner but he did give every indication that he was suffering from psychosis and his university professor did contact the campus police when he “acted out” in the classroom. They dropped the ball when they didn’t have him taken to a hospital and assessed. He likely would have been commited to a locked mental health unit, undergone treatment and this tragedy never would have occured.

  2. Save the time and money, exacute, this person will never be well, or rehabilatated.

    • Wow….lets just execute all sick people. Next time don’t go to the hospital, just fix yourself up a noose.

      • I think the dissenting judge was brave, given the emotions behind this case, in putting forth the logic that a man using the insanity defense does do harm to that defense as the evidence may have indeed disappeared. though he may have been insane at the time, appearing not insane, or even calm, may have an effect on a jury’s perception of him not only now, but in the past. given that this may be a death penalty case, we have the duty to make sure the defendant can present all evidence that pertains to his defense. in an insanity case, this is a unique but important point.

        • Perhaps but I think that could be solved by having the university professor and a few of the students testify as to the defendant’s behavior in the classroom. Also, they have the testimony of the psychiatrist and they must have videotape of their interviews with him after the arrest. The truth of the matter is that he would not be able to stay in the courtroom were he to be brought in in the throws of psychotic episode. He would be yelling out and thrashing. He would make the jury afraid. I am not at all sure that they would not want him put away in jail for life just to ensure he never hurt anyone again. Meanwhile, he has to suffer from listening to demeaning voices. Someone once likened it to be in a room with 5 tvs on, all on different channels and you cannot turn them down or off….all of them saying horrible things to you and about and telling you to do awful things.

          • True, there are classmates and other associates that could testify to his past state of mind, but it is anecdotal and therefore not as compelling. Video, if it exists, may or may not be sufficient in fully showing his state of mind. And whether or not witnesses and video is sufficient in showing his state of mind at the time should be left to the determination of his lawyers–whose only interest is the most robust defense of their client.

          • I disagree. His physician (psychiatrist) has to weigh in on whether Mr. Loughner is being harmed by not being treated. Everytime a person has a psychotic episode it is more difficult and more unlikely that they will make a full recovery. Therefore by not treating Mr. Loughner, they may be ensuring that he won’t ever get sufficiently well to enter society ever again, even if he is found not guilty.

  3. The problem is, some insanity is only “cured” while the patient voluntarily takes his/her medication. How many stories have we heard of mentally ill people committing crimes while off their medications? Too many.
    Unfortunately for everybody involved, schizophrenia is a life sentence. Unless a tamper-proof automatic delivery system exists that negates the patient’s ability to discontinue his medication, I see no alternative to keeping insane offenders locked up for the rest of their lives.

    • There are infact injectable “depo” medictions that last up to four weeks. In Alberta if a patient misses an injection and he/she is under a “treatment order”, the police bring the patient into custody. Perhaps we will see a time in the near future where there will be an implanted medication dispensing system underneath the skin that will last for years.
      It is a bit unfair to single out mentally ill people in regard to commiting crimes while off medication when the truth is that they are much more apt to be the victims of crime than to commit a crime against another person. What about criminals who are let out of prison….what is their rate of re-offending? If we follow your logic, we would never let anybody out who has commited any crime.