Many people have been asking me about the insanity defense and about charging Jared Loughner, the mentally deranged youth who shot Congresswoman Gabrielle Gifford's. Of course, a court will weigh in on the topic as will attorney for the prosecution and defense. However, in short, here are some thoughts.
When an attorney writes these kinds of articles there is always someone who misunderstands. We are so used to rooting for “our side”, we take anyone who makes points about the other side as a traitor. What Jared Loughner did was a horrible thing. However, you can bet at least his attorney is looking at this case from every angle. That is what an informed person does.
Many people have been asking, "Shouldn’t the Tucson shooter be considered a terrorist," and "Shouldn’t he be tried and executed if guilty?" It is hard to explain diminished mental capacity but let me give it a try.
Certainly the acts which Jared Lee Loughner committed are heinous. He has left an entire nation in shock, many dead, others clinging to an altered life, and the Jewish and immigrant communities in horror. Nothing I say here should be construed as justifying or excusing Loughner's acts.
Turning to the shooter, who is also a victim, what do we make of him? If your three-year-old daughter found an automatic pistol on the ground and shot people as Loughner did, would you charge her with first degree premeditated murder and seek the death penalty?
The analogy between a three-year-old and Loughner is not exact. If he had the mental capacity of a three-year-old at his age, he would be retarded. However, he likely is so mentally ill that he is out of touch with reality. Paranoid, he did not have the capacity to make rational decisions. Mental retardation and mental illness, while not the same, have one thing in common: the diminished capacity to make rational decisions.
In criminal law, two elements are required to make a person guilty of a serious crime: the mens rea, or guilty mind, and the actus reus, the guilty act. Proving the actus reus will be easy, considering the witnesses. However, proving the mens rea could be a challenge if the insanity defense is asserted.
If Loughner was insane when he committed the acts, then he is technically not guilty of the crimes of which he is accused. In that case, under criminal law theory, he was not capable of forming the mens rea. We don’t hold three-year-olds responsible for things they cannot understand. We should not hold a criminally insane person guilty either.
Loughner voluntarily withdrew from Pima Community College after five encounters with law enforcement and a series of angry and irrational acts. The school told him not to come back until he had an evaluation from a mental health professional stating he was not a danger. Loughner writes about a new form of currency, among other senseless ramblings. He writes in legible sentences but what he talks about does not make sense.
That is why Loughner is not a terrorist. A terrorist acts with a full deck. He may be consumed with anger or allegiance to a cause, but he is rational. He is not marching to the voices in his head or having paranoid delusions. He may justify his actions by a belief in God, but God or the Devil or irrational thinking is not screaming in his ears to wreak total destruction on society. He does it anyway.
If, by a long shot, Loughner is found "guilty but insane," meaning the prosecution can prove the actus reus but the defense can show lack of the mens rea, he could be sentenced to a mental institution under Arizona Revised Statutes 13-502(D) for the same term he would have been sentenced to prison if he were found guilty without being insane. That means life. The insanity defense will leave Loughner in an institution for the criminally insane instead of prison if he is prosecuted under state statutes. Hence, the insanity defense may not be a rational option if Arizona's facilities for the criminally insane are as abysmal as their draconian mental health laws.
After John Hinckley took the insanity defense for shooting President Reagan, a host of states passed “guilty but insane laws.” They were afraid Hinckley would be cured of his mental illness through medication. He likely was cured. He would then escape responsibility and be out of the institution in a year. The thinking shows ignorance about how the system works. Hinckley is still not free.
Should we put our three-year-old girl who finds a gun on the sidewalk and shoots people in prison when she turns 18? By then, she will understand the nature of her actions, even though she didn't at the time. Should we force a person committed to a mental hospital to stay for life even after a cure for his condition is found? When cured, he, like the three-year-old turned 18, will understand the nature of what he has done, although he didn't at the time.
It is vindictive to punish a person with a diminished mental capacity once he regains that capacity. At the same time, Arizona refused to provide mental health treatment when it could do the most good. Under Arizona law, presuming medication cures him, Loughner would take up valuable space in a mental institution as if he were in a prison. How draconian to punish a person who regains his mental capacity for acts he committed before he had the capacity.
It is bad enough to say Loughner is a victim of a health care system which ignores mental illness, but he is not the only victim. Congresswoman Giffords and the other people shot on Saturday are also victims of the same uncaring health care system. If Arizona had adequately funded health care for the mentally ill, Loughner would have been treated or institutionalized until sane.
Rather than fund health care, the Arizona legislature is spending millions of dollars defending the law which makes them famous, SB 1070, the most vicious anti-immigrant law in the state's history. A national boycott is costing the state billions. Rather than fund health care on a national basis, the Republican Senate Caucus enacted a “No Vote Pact” in which they refused to vote on any issues including the START Treaty to reduce nuclear proliferation until Democrats conceded to give every millionaire a $139,000 unfunded tax cut. With their pockets stuffed full of taxpayer money, the Republicans vow to repeal health care for the poor.
Shortly, Congresswoman Giffords and all of us will become victims one more time. Despite surely suffering extreme mental illness, Loughner will likely be judged mentally ill, but with enough capacity to know right from wrong. The Court will distinguish between mental illness and insanity. Rather than get treatment in a mental institution, Loughner will spend his life on death row. The message to other mentally ill people is, don’t reveal yourself, because you won’t get treated and your acts will be judged harshly. The mentally ill remain in the closet for a reason and that makes every one of us the next potential victim.
As time goes on we will hear more about what makes Jared Loughner a disturbed person. Whether or not his mind rises to the level of insanity remains to be seen. My heart goes out to all of those who have been hurt by Loughner, including the victims and their families.