Reason Writers Around Town: Jacob Sullum on Jared Loughner's Sanity

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In a New York Daily News op-ed piece, Senior Editor Jacob Sullum says an insanity defense for Jared Lee Loughner, seemingly bolstered by a federal judge's conclusion that his untreated schizophrenia makes him incompetent to stand trial, follows logically from an argument that was widely heard after the Tucson massacre: To prevent such crimes, we should make it easier to lock people up before their mental illness drives them to violence.

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  1. I understand the logic of an insanity defense, but what is the logic behind the idea that a person must be competent to be tried in a trial where the insanity defense might be the ultimate outcome?

    1. If they are incompetant, they can’t assist their defense and therefore by definition can’t get a fair trial.

      1. That’s correct. The last thread this came up, I jumped right into the insanity defense, but competency is a different matter.

        I don’t know the law on this, but I think they can force medication on him to make him competent to stand trial. I think he has no hope once that happens.

        1. I think they can force medication on him to make him competent to stand trial. I think he has no hope once that happens.

          That is within the judges power, as I understand it, but would typically be done only if medically indicated.

          1. Agreed. I recall hearing that he went off of medication before all of this, so I imagine that putting him back on is the obvious next step.

            1. If he went off medication knowing that it would make him a threat to others, that means he IS responsible, right?

              1. I think there’s some legal precedent for that line of reasoning. However, I suppose it could mean the intent was “depraved heart” rather than to kill, which usually means second degree murder, I think. If that were all that was at issue, anyway.


  2. Both that freedom-denying prescription and the responsibility-relieving insanity defense rely on subjective, unverifiable judgments by experts who are not equipped to predict future actions or peer into past states of mind.

    We should not let their pseudoscientific pronouncements replace the moral principles that tell us when it is appropriate to punish someone or deprive him of his liberty.”

    Look, I’ll grant that psychology is not some exact science. But I think most people recognize that there is a class of people who don’t, via some kind of derangement, understand the nature or wrongness of what they are doing. And punishing someone who did not know that is like punishing someone who sleepwalks into a crime.

    Far from being a jab at personal responsibility the insanity defense pays homage to it. If personal responsibility is to have any meaning we must exclude people who had no f*cking clue what they were doing.*

    *Not saying whether this guy falls into that category, I think a rather high bar should exist here.

    1. Depends on what the purpose of punishment in our justice system is.

      Liberal and cosmotarian types tend to emphasize the need to keep people locked up to prevent them from committing more crimes — in which case whether they’re insane or not has nothing to do with whether they should be locked up.

      Law and order types like me believe that retribution is key, so again it doesn’t matter whether they’re insane.

      The only aim for which punishment would be seen as inappropriate for the insane is the aim of deterrence…and anti-death penalty pukes are always mocking the idea of deterrence.

      So I don’t see why it should even matter.

      1. I find it sort of strange that a mental illness is considered a mitigating factor. It seems to me that if the mental illness/problem/deficiency contributed to the criminal acts, then it should be an aggravating factor (if you follow the “liberal and cosmotarian” (God, that’s a stupid fucking word) approach to punishment.).

  3. Lock people up before they commit crimes? Is the libertarian magazine supporting enhanced police powers?

    1. Where does the post say that?

      1. The post says “To prevent such crimes, we should make it easier to lock people up before their mental illness drives them to violence.” That makes me nervous. Think about it. Either we need to be monitoring everyone to see who has mental illness. Or we identify people who are weird and put tabs on them, locking them up when the behavior seems to cross the line. Who knows? The government might say ranting about government spending like a tea partier is a mental illness.

        1. It’s simple. Ask everyone this question: “Do you like Oprah?” Yes means normal. No means involuntary commitment for life. . .or until you like Oprah.

        2. read the context. It’s not proposing that, but saying that’s the argument.

        3. Read the clause again, this time in context.

          There is language that precedes and qualifies it.

        4. The worst part of this, to me, is that the evidence of dangerousness and mental illness is HIGHLY, HIGHLY exaggerated. It’s a very salient idea, but not actually all that common. Less exagerated but still unimpressive is the predictive ability of psychiatrists and psychologists in patients who do not have a strong history of violence.

          Actuarial tables do a better job, on average.

  4. Loughner planned and executed his crime.

    If his motive sounds “crazy” that has nothing to do with his intentions and actions.He knew exactly what he was doing.

    Court filings include notes allegedly handwritten by Loughner indicating he planned to assassinate Giffords

    The evil SOB hit Giffords in the head with his first shot. Only when she dropped, presumably dead, did he turn the gun and began effectively shooting everybody else including a 9 y/o girl. He only stopped because he was beaten into submission by the survivors.

    1. He knew what he was doing was wrong. In order for him not to be mentally responsible he would have to have been so whacked out he thought Giffords was going to kill him and thought he was acting in self defense or something. Almost impossible to win an insanity defense, especially post Hinkley.

    2. Uh, actually he stopped because he lost hold of his gun.

      1. He dropped a mag while reloading and then took a pro-wrestling style chairshot from a survivor.

        from wiki:
        After the gunman ran out of ammunition in the first magazine, he stopped to reload, but dropped the loaded magazine from his pocket to the sidewalk, from where bystander Patricia Maisch grabbed it.[23] A bystander clubbed the back of the assailant’s head with a folding chair in the process injuring his elbow and representing the 20th injury.[24] The gunman was then tackled to the ground by 74-year-old retired US Army Colonel Bill Badger,[25] who himself had been shot, and was further subdued by Maisch and bystanders Roger Sulzgeber and Joseph Zamudio.[26]

        Loughner was subdued by bystanders and was arrested by police, saying, “I plead the Fifth,” as he was taken into custody

  5. Going into psych. Not a huge fan of forced treatment in most cases that are currently legal for ethical reasons.

    Still think Sullum has shown time and time again that he has at best a superficial understanding of the state of psychiatric and psychological evidence. This article just seems inflammatory, which is an improvement for Sullum as on quick read I didn’t find any blatantly incorrect information or bizarre unscientific interpretation of data, which is normally evident.

    Glad to see you’re getting better at holding a principled, rather than factually incorrect, opposition to some medico-legal views.

    1. Neu? Is that you?

      (yes it is)

    2. Encourage you to explore the works of Thomas Szasz. I hated him when I was a naive college student, but as I matured I came to realize he was right.

      1. Neu is quite familiar with Szasz.

      2. Encourage you to explore the works of Thomas Szasz.

        Read critically, Szasz frames many of the important issues about the interface between medicine and government. His take on the validity of the diagnostic process in psychiatry and psychology, however, isn’t well reasoned, nor fact-based.

        1. The main problem with Szasz is that, philosophically speaking, he starts from assumed dualism. That isn’t even popular in philosophy nowadays, nevermind science. You can argue that a dualist point of view is correct, but that is different from so strongly assuming it’s correct.

          I actually pretty strongly agree with the criticism directed at the medical-legal interface in general, and the especially strong combination with psychiatry.

          I guess you could call me naive, as I’m only a few years out of college. Granted, I spent much of that time working in ERs and in psychiatric neuroscience research, and in medical school, where I was exposed to quite a plethora of things that most people wouldn’t consider idealized experiences. Szasz still is incredibly unimpressive, beyond the basic libertarian critique.

    3. Not me.
      I am not a psychologist nor a psychiatrist.

      I agree with the general take on JS’s work, however.

      Neu Mejican

      1. I agree with the general take on JS’s work, however.

        You’ve often expressed it in nearly the same words. As have other “one-shot” commenters who usually precede you in Sullum post-threads.

        1. I haven’t posted for maybe a year or two. Got busy. I used to post fairly regularly for a few years as J or libertarian democrat. Me and Neu did often agree on Sullum though.

        2. I haven’t posted for maybe a year or two. Got busy. I used to post fairly regularly for a few years as J or libertarian democrat. Me and Neu did often agree on Sullum though.

          1. The sock! It speaks!

            1. Dr. Dr. help me please, I know you’ll understand. There’s a time device inside of me, Im a self-destructin’ man. There’s a sock puppet, under my bed. And there’s a little green man in my thread. And he said, you’re not goin’ crazy, you’re just a bit sad
              cause there’s a man in ya, knawin’ ya, tearin’ ya into two.

              Silly boy ya self-destroyer.
              Paranoia, the destroyer

              Self-destroyer, wreck your health
              Destroy friends, destroy yourself
              The time device of self-destruction
              Light the fuse and start eruption

              Paranoia, the destroyer

            2. I remember you SIV, even if you don’t remember me. Just a few short years, and I am completely forgotten. Alas.

              1. NM uses “alas” with unusually high frequency too.

        3. It’s tough to disguise one’s aliases when one has such an idiosyncratic writing style.

          1. Actually, you can just use the search and jump a few pages back in the results and see me posting quite a bit. So either NM had an equally or more active sock puppet for a few years, or we just agree on certain things (and both like the word alas).

        4. I am not, however, a 1 shot commenter. I’m not sure how you search comments, but if you look back for “libertarian democrat” ld, or J, you’ll find there was quite a while where I was pretty active here. Maybe 2007-09, I would imagine.

          I know you can search them, however, since I saw someone did that with the sad news about J sub D (which I was very sorry to hear of as well, he was always interesting and more polite than the average commenter, by far).

          1. Neu, your recurring sockpuppets are so lame I mistook them for one-shots. The writing style is the same and the disdain for Sullum is unique among “all of you”.

            1. SIV,
              It has come time to reveal the truth to you. There are only 4 actual readers that comment on H&R. In addition to yourself and Tulpa, there is Joshua Corning and one other, who shall remain unnamed at this time. All the rest of the H&R comments are written by a team of specialists at out headquarters. Comments are carefully designed to give you a skewed view of what we have trained you to call “the left” and their attempts to control via worldwide government. This is, of course, done as a way to throw you off the trail of our true plans for world dominance.

    4. Glad to see you’re getting better at holding a principled, rather than factually incorrect, opposition to some medico-legal views.

      I suspect the improvement has more to do with the New York Daily News’ editorial process being stricter than a H&R blog post than any improvements by JS, but,then again, it is the New York Daily News.

      1. If you disagree with involuntary hospitalization on ethical grounds, there are huge areas to argue a libertarian point of view without going full Szasz.

        Heck, even if you agree with involuntary hospitalization in extreme circumstances, there’s still tons of leeway to argue a more libertarian point of view. When reason gets all Szaszian, I get embarrassed.

  6. Jared Loughner? Sounds familiar. I’m trying to picture what this guy looks like. Is there a picture of him somewhere?

    1. Shortly after Elvis’ birthday, when the story was still that Palin’s voices in the shooter’s head told him to shoot a relatively pro-gun congresswoman, I remember the media using a picture of Loughner not looking like a shaved maniac. Can’t we go back to those heady days and use that one?

  7. OK, if he’s been declared incompetent to stand trial that means there will be no trial (duh!) until he’s declared competent. Which may be years. Or never. That doesn’t mean he’s going to walk, but he’ll be confined to a high security loony bin for a very long time.

    IF he is ever declared competent to stand trial, it is quite possible that he’ll employ an insanity defense. Which still doesn’t mean he’ll ever walk free.

    Reporters who report on these stories are well advised to educate themselves on the subtle but important difference between competence to stand trial and M’naughten (NGRI, aka insanity) defenses.

  8. ] The FBI attempted to question the suspect, but he reportedly refused to cooperate with authorities and invoked his Fifth Amendment right
    Do people who can’t tell right from wrong invoke their 5th Amendment rights?

    1. No one seems to be saying he can’t tell right from wrong (and in any case, crazy people say a lot of things that don’t make sense, that’s why they’re crazy). They are saying he is incompetent to stand trial.

      What I wonder is whether if he gets treatment for schizophrenia and becomes competent if they try him then.

      1. Yes. See my 11:44 post above.

      2. Many comments on the last Loughner thread equated incompetence to stand trial with “not responsible for his actions” when he murdered his victims.

        1. I think it’s natural to start talking mens rea when competence issues are raised. It’s the logical next step, once the trial begins.

  9. To prevent such crimes, we should make it easier to lock people up before their mental illness drives them to violence.

    Or ban guns. We all know that laws are magic and that banning things makes them go away.
    Works for drugs, why can’t it work for guns?

    1. Why don’t we cut out the middle-man and make it against the law to be mentally ill?

      Law! Is there anything it can’t do?!?

  10. Since I do not believe the state should be in the revenge-killing business, I am completely untroubled by the fact that he has been ruled unfit to stand trial. It’s not like they going to turn him loose.

    However, I find the notion of “pre-crime detention” extremely troubling.

    1. I want him tried. Holding people indefinitely isn’t my idea of due process.

      1. Not to suggest that he should be tried whether he’s competent or not.

        1. How “competent” does he have to be? Defendants are often tried who refuse to participate in, or outright sabotage, their own defense.

          1. We try people in abstentia. I assume this is because the defendent willfully chose not to participate in his or her defense.

            It’s not totally surprising that Loughner’s mental condition could have gotten worse since the crime — there’s no way to know if he was at the bottom of his decline after stopping his medication or merely taking the crazy train down a steep hill at the time.

        2. The vast majority of defendants just sit back and do what their lawyer says, so forgive me for not caring whether he’s “competent” to direct his defense. Your average inner city gangbanger high school dropout on trial for murder is not “competent” to direct his defense except in a meaninglessly broad sense of the word, but that doesn’t stop us from trying him anyway.

    2. Since I do not believe the state should be in the revenge-killing business

      Then who do you think should be?

      Because barring a hugantic sea change in human nature, there will always be revenge killing.

      1. It doesn’t seem to be a big problem in states with no death penalty. Seems to me that most of western culture has already undergone that hugantic sea change in human nature. I think some people probably do deserve to die. I just don’t think that the state has proven competent to decide who those people are. A good rule of thumb is that you should only kill people when you absolutely have to. Otherwise, it’s just murder.

  11. Since I do not believe the state should be in the revenge-killing business

    I’m opposed to the state’s monopoly on revenge killing.

  12. As other people have noted, not competent to stand trial means not competent to stand trial. Imagine some one completely sane who commits a crime, then this person has a total breakdown at a later time. You cannot try this person because he or she cannot participate is his or her defense. If, at some future time, this person becomes competent, then the trial can begin.

    Loughner’s trial is postponed until such time as he can participate in his defense. This has nothing to do with whether or not he was legally culpable at the time of the crime.

    1. You cannot try this person because he or she cannot participate is his or her defense.

      Why not? I don’t mean legally speaking; my question is, why do we have this as a principle of the legal system to begin with?

      1. Well, I guess I don’t really know why we treat the guy that shot his neighbor because the neighbor was fucking the guy’s wife differently than a guy that shoots his neighbor because the guy thinks the neighbor is podperson trying to take over the world.

        But since the legislature and the courts seemed to be hell bent on stripping mens rea from the judicial system, that problem will go away eventually.

  13. I want him tried. Holding people indefinitely isn’t my idea of due process.

    You’re absolutely right, but in order to hold him, there will (I assume/hope) there will be a legal process which will include a “finding of facts” which establishes a justification for holding him.

    I don’t think the burden of proof is insurmountable.

    1. In Florida, they Baker Act the defendant, which requires a hearing of some sort before involuntary commitment.

    2. My problem with that is that I think it gets weighed down in some very subjective analysis.

  14. Proofreading is hsrd.

    1. Srue is.

  15. In Russia, state drive YOU crazy!

  16. Who needs a trial? He’s guilty… hang him. Trials should be reserved for when there is some presumption of innocence left.

    In a sane society someone would have shot him during or immediately after the crime. Then we wouldn’t be having a stupid, handwringing discussion about whether or not it’s appropriate to try, much less execute a murderer.

    1. This is a joke of course, but a danger of having a justice system that fails to punish obviously guilty people is that this is exactly what will happen. People at the scene of the crime will obey the saying that if you want something done right, do it yourself.

      1. Define “guilty”

  17. I have little faith in the competence of the psycho professiions… too prone to accept fads, psuedo-science… Frued? Come on, did it really take a century to figure out his ‘science’ was bunk?

  18. From the article:

    Both that freedom-denying prescription and the responsibility-relieving insanity defense rely on subjective, unverifiable judgments by experts who are not equipped to predict future actions or peer into past states of mind.

    We should not let their pseudoscientific pronouncements replace the moral principles that tell us when it is appropriate to punish someone or deprive him of his liberty.

    + 50 Sullum

    Great article.

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