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
FILE - This Jan. 8, 2011 file photo provided by the Pima County Sheriff’s Office shows Jared Loughner. A federal appeals court ruled Friday, Oct. 7, 2011, that Loughner, the suspect in the Tucson shooting rampage, can be returned to a Missouri prison facility where he will undergo more treatment to try to make him mentally fit to stand trial. (AP Photo/Pima County Sheriff’s Department via The Arizona Republic, File)

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.