If Mental Illness Made Him Do It, Why Punish Him?

The New York Times notes that it would be difficult, if not impossible, for Jared Lee Loughner's lawyer to mount a successful insanity defense: No matter how loony his ideas, no matter how delusional and paranoid he may have been, no matter how many people diagnose him at a distance as a schizophrenic, he will still be held responsible for his actions, under the assumption that at the time of his crime he knew right from wrong and was in control of his own behavior. I think that is how it should be. But there is a tension, if not an outright contradiction, between this position and the complaint that it's too hard to lock up crazy people like Loughner before they commit crimes. I suspect that defenders of forcible psychiatric treatment such as Joe Klein, William Galston, Mona Charen, and E. Fuller Torrey do not think Loughner should be acquitted by reason of insanity. Yet they suggest that Saturday's shooting rampage could have been prevented if only Loughner had been pre-emptively imprisoned and compelled to take antipsychotic drugs. Their basic premise, then, is that Loughner would not have shot 20 people but for his mental illness—i.e., that schizophrenia made him do it. If so—if Loughner truly was not in control of his actions—how is it just to punish him?

In a 2002 column, I noted that a similarly flexible understanding of individual responsibility underlies the treatment of sex offenders who are deemed sane enough to be tried, convicted, and imprisoned for their crimes (because of their ability to control their behavior) but not sane enough to be released when they complete their sentences (because of their inability to control their behavior). Clarification: I am talking here not about registration of sex offenders (a policy with problems of its own) but about their indefinite detention in mental hospitals after they have finished serving their sentences, a practice that has been upheld by the Supreme Court.