If Jared Lee Loughner is too insane to be influenced, he's too insane to be executed.

The law, lawyers, and the court.
Jan. 11 2011 6:59 PM

The Insanity Defense

If the Arizona gunman is too insane to be influenced by anyone, he's too insane to be executed.

See Slate's complete coverage of the Gabrielle Giffords shooting and arrest of Jared Lee Loughner.

Jared Lee Loughner courtroom sketch.
A courtroom sketch of Jared Lee Loughner

One of the great ironies of the Tucson shootings is that the initial call for everyone in America to simply talk more civilly to one another has mainly resulted in everyone in America becoming angrier and crazier. Every attempt to turn the conversation in a more "constructive" direction—be it to criticize Arizona's gun laws or to question the state of political discourse—has been condemned by those who scoff at the sin of politicizing a personal tragedy that is merely the result of one man's obvious insanity. There is some truth to this criticism. In the absence of a coherent explanation, many of us have used this tragedy as we use every national tragedy: as an excuse to talk more about ourselves or our favorite cause.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

But if it's true that we can draw no more political meaning from Saturday's tragedy than we can from a Jackson Pollock painting—if David Brooks is correct in his assertion today that absolutely everything you need to know about Jared Loughner's lethal shooting spree is attributable to "the possibility that Loughner may be suffering from a mental illness like schizophrenia"—then this is also true: This apolitical explanation of Loughner's actions should also serve as a legal defense of them.

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Not everyone will feel bound by such intellectual honesty: Rush Limbaugh, for instance, has managed to argue simultaneously that Loughner is completely insane and irrational, but also colluding with the Democratic party to get himself acquitted.

It's not at all clear that Loughner will invoke the insanity defense anyhow, although, as several legal commenters were quick to point out, he may have to simply because he may be facing the death penalty and the case against him is so clear-cut. There were multiple eyewitnesses, there is video, and Loughner's safe contained a letter that said "I planned ahead," referred to "my assassination" and contained the name "Giffords," and included his signature. Moreover, Loughner's court-appointed lawyer, Judy Clarke, has made a name for herself defending infamous killers, including Unabomber Ted Kaczynski; abortion-clinic- and Olympics-bomber Eric Rudolph; Susan Smith; and Buford Furrow Jr., who went on a shooting spree at a Jewish center in Los Angeles in 1999. Clarke's claim to fame is a decadeslong gift for sparing high-profile clients from execution.

If it comes to pass that Clarke advances an insanity defense for her client, I wonder how many of the same people who are today arguing that Loughner was far too sick to be influenced by a toxic public discourse, will be arguing that he is too sane to plead insanity. The insanity defense has been a political football almost as long as political discourse has been toxic.

In fact, it's no small irony that the insanity defense has become almost impossible to prove, precisely because people just like Loughner have occasionally managed to prove it. And so I dearly hope that everyone who feels comfortable diagnosing him from afar today will stand by their diagnoses in the weeks to come. If you are going to advance the argument that he is neither culpable nor rational, then it follows that he should not be convicted for his actions.

To prevail in proving insanity in federal court today, the accused bears the burden of proving by "clear and convincing evidence" (a standard that was heightened in recent years) that "at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts." As Andrew Cohen noted this morning, no matter how crazy he may have seemed, the evidence already suggests that Loughner knew he was about to commit a crime.

The history of the insanity defense is almost completely political, and has only become more so in recent decades. As my colleague David Greenberg explained yesterday, it wasn't until modern psychiatry began to influence the criminal law that we began to question the "sanity" of political assassins, even when those assassins believed themselves to be acting on God's secret orders. And as my colleague Emily Bazelon has detailed, there is a long tradition in this country of tightening the legal definition of insanity in the wake of spectacular crimes committed by crazy people. As she noted: "The insanity defense has been a hated stepchild of American criminal law since John Hinckley's 1982 trial for shooting President Ronald Reagan. Hinckley's acquittal on the basis of his mental illness somehow convinced a lot of smart people that 'abolishing the insanity defense would rid the streets of dangerous people and reduce violent crime,' Lincoln Caplan wrote in his book, The Insanity Defense and the Trial of John W. Hinckley Jr." Indeed, Arizona is one of the states that has made it virtually impossible to advance a meaningful insanity defense at all, partly out of a broad public sense that mental-health experts are all paid charlatans, and because of the widespread belief that every criminal tries to "get off" by pretending to be insane.

The facts suggest otherwise. Contrary to popular belief, the insanity defense is used in fewer than 1 percent of all cases and only has about a 26 percent success rate. In 90 percent of the successful claims, the defendants had been previously diagnosed with mental illness. According to the American Psychiatric Association, defendants acquitted by reason of insanity are likely to spend as much if not more time incarcerated in a psychiatric institution as they would have had they had gone to prison for the same crime. Some studies say that those found insane spend twice as much time under lock and key as they would have spent in jail—and they remain under supervision long after their criminal counterparts are freed.

I am not going to try to diagnose Jared Lee Loughner from my desk today. My only long-distance observation is to say we should be doing a far better job of diagnosing and caring for those with serious mental illnesses, and of making sure that they can't get their hands on guns. And to anyone who claims to know today how much of Loughner's conduct last weekend was rational and how much was pathology, all I ask is this: Please stand by your words if and when Loughner and his experts and lawyers someday opt to make those very same arguments in court.

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