Submitted by Mark Esposito, Guest Blogger
The bedrock of modern Western jurisprudence is the supposition that we are free to choose our actions from a range of choices. Some of these choices are socially acceptable and we deem them “legal.” Other choices made in specified contexts are socially unacceptable, and we deem these “illegal.” For those extremely unacceptable actions denominated as “crimes” we reserve progressive punishments to deter their occurrence. Gratuitous violence is one of the most important of these condemned actions, and we have striven for centuries to overcome this endemic feature of our nature. The basic assumption being that we can deter conduct that is the product of free will by imposing undesirable consequences on the actor. How have we done? I suppose the obvious answer is that despite a multitude of approaches ranging from severe punishment to compassionate rehabilitation, we haven’t yet mastered a way to banish senseless violence from our midst. Perhaps it is time to question that basic assumption that violence is purely volitional conduct.
The philosophical roots of free will stretch back at least to ancient times. Greco-Roman thinkers like Epicurus believed in causal determinism but allowed for an element of chance in the physical world by assuming that the atoms sometimes swerve in unpredictable ways, thus providing a physical basis for a belief in free will. Others like Cicero had doubts about the purity of free will observing:
“By ‘fate’, I mean what the Greeks call heimarmenê – an ordering and sequence of causes, since it is the connexion of cause to cause which out of itself produces anything. … Consequently nothing has happened which was not going to be, and likewise nothing is going to be of which nature does not contain causes working to bring that very thing about. This makes it intelligible that fate should be, not the ‘fate’ of superstition, but that of physics, an everlasting cause of things – why past things happened, why present things are now happening, and why future things will be.
Later, Christianity postulated free will as one of its basic tenets, arguing that grace is bestowed by acting in accordance with the Creator’s will and rejecting contrary temptations. In City of God, Augustine explained that, “For the first freedom of will which man received when he was created upright consisted in an ability not to sin, but also in an ability to sin; whereas this last freedom of will shall be superior, inasmuch as it shall not be able to sin. This, indeed, shall not be a natural ability, but the gift of God.” To depart voluntarily from God was then the foundation of sin.
For two centuries Western law has adopted this basis for meting out punishments as a means of modifying behaviors. Enter then the discipline of neuroscience and the strange case of Phineas P. Gage. Gage was a railroad worker living a peaceful life in late 19th Century New England. In 1848, Gage had the curious fate to suffer an iron crowbar being thrust squarely thorugh his left frontal lobe. He survived but changes to his demeanor and personality were so pronounced that his family and friends began to remark that “Gage was no longer Gage.” Damage to his prefrontal cortex had rendered a once courteous and diligent 25 year-old man unalterably and explicitly anti-social.
His physician John Harlow noted that:
He is fitful, irreverent, indulging at times in the grossest profanity (which was not previously his custom), manifesting but little deference for his fellows, impatient of restraint or advice when it conflicts with his desires, at times pertinaciously obstinate, yet capricious and vacillating, devising many plans of future operations, which are no sooner arranged than they are abandoned in turn for others appearing more feasible. A child in his intellectual capacity and manifestations, he has the animal passions of a strong man. Previous to his injury, although untrained in the schools, he possessed a well-balanced mind, and was looked upon by those who knew him as a shrewd, smart businessman, very energetic and persistent in executing all his plans of operation.
What are the implications then for free will in the context of obvious cases of impaired thinking like that suffered by Gage? The law has sought to address “crimes” committed by those without sufficient faculty to appreciate the moral character of their actions or those persons who act through irresistible impulse. The first attempts were the British M’Naghten rule which excused conduct, though volitionally done, which was the product of a diseased or impaired mind and which rendered the perpetrator so impaired as to extinguish his ability to divine right from wrong. The corollary irresistible impulse test sought to mitigate criminal responsibility for one who would have acted through the effects of mental disease or defect even though a constable was at his side at the time of the conduct. Both of these tests have proven unworkable and prison statistics continue to show that the psychologically impaired are statistically more likely to be incarcerated than “normal” persons.
The new challenge for the law is just how to handle the logical implication of Gage’s case. What if all human actions were not simply the product of free will but a resulting phenomena of a host of organic and genetic markers causing conduct that is inevitable? And what if these behaviors are not the product of diease or defect but of predictable stimuli or dysfunction not rising to the level of that required by M’Naghten? Sort of an organic determinism free from the control of human “will,” but flowing not from a diseased mind but a substantially normal one. Not really such a radical position. Albert Einstein considered the question and posed the classic regressive conundrum:
Honestly, I cannot understand what people mean when they talk about the freedom of the human will. I have a feeling, for instance, that I will something or other; but what relation this has with freedom I cannot understand at all. I feel that I will to light my pipe and I do it; but how can I connect this up with the idea of freedom? What is behind the act of willing to light the pipe? Another act of willing? Schopenhauer once said: Der Mensch kann was er will; er kann aber nicht wollen was er will (Man can do what he will but he cannot will what he wills).
Sound far-fetched and too esoteric? Consider then the studies of Benjamin Libet who “showed that brain activity associated with deliberate decisions can be detected shortly before we are conscious of making the decision. In these studies, participants reported when they first felt the intention to make a spontaneous movement by noting the position of a dot moving on computer screen. They apparently first became aware of their intentions about 200 milliseconds before action execution, which is later than the onset of the so-called readiness potential (or “bereitschaftspotential”) recorded from the scalp prior to movement.” While the studies are controversial they point up a fascinating possibility — that human conduct originates organically from a host of chemical and electrical sources independent of any notion of mind/brain divergence. The mind then is the brain and functions according to incalculable threads of physical causation which we can neither differentiate nor completely understand.
The prefrontal cortex is not the only area of inquiry into brain physiology as neuroscience attempts to understand and explain human aggressiveness. “It has long been known that ablation of the monkey temporal lobe, including the amygdala, results in blunted emotional responses. In humans, brain-imaging and lesion studies have suggested a role of the amygdala in theory of mind, aggression, and the ability to register fear and sadness in faces. According to the violence inhibition model, both sad and fearful facial cues act as important inhibitors if we are violent towards others. In support of this model, recent investigations have shown that individuals with a history of aggressive behaviour have poorer recognition of facial expressions, which might be due to amygdala dysfunction. Others have recently demonstrated how the low expression of X-linked monoamine oxidase A (MAOA)—which is an important enzyme in the catabolism of monoamines, most notably serotonin (5-HT), and has been associated with an increased propensity towards reactive violence in abused children—is associated with volume changes and hyperactivity in the amygdala.”
These studies bring up an interesting derivative question: Are all murderers equal in terms of brain function? The answer is decidely “no.” “Professor Adrian Raine and colleagues reanalysed positron emission tomography data to tease apart functional differences between premeditated psychopaths and impulsive affective murderers. Compared to controls, the impulsive murderers had reduced activation in the bilateral PFC, while activity in the limbic structures was enhanced. Conversely, the predatory psychopaths had relatively normal prefrontal functioning, but increased right subcortical activity, which included the amygdala and hippocampus. These results suggest that predatory psychopaths are able to regulate their impulses, in contrast to impulsive murderers, who lack the prefrontal “inhibitory” machinery that stop them from committing violent transgressions.” For Raine then, free will should be viewed along a “dimension rather than a dichotomy”
An even more intriguing question revolves around whether we can predict anti-social behavior from an analysis of brain dysfunction. If so, would this not dispel notions of pure free will as the moral governor of our actions? “A systematic review of studies examining mental illness in 23,000 prisoners showed that these prisoners were several times more likely to have some form of psychosis or major depression, and ten times more likely to exhibit Anti-social personality Disorder (APD) than the general population. The authors suggest that, worldwide, several million prisoners have serious mental illness. Several studies also show levels of head injury to be higher in violent and death-row criminals, while birth complications, which can often result in neurological damage (e.g., hypoxic-ischemic encephalopathy) and parental mental illness, are higher in anti-social populations. More often than not, people with APD and violent behaviour have a history of childhood maltreatment or trauma; having such a history has been linked to anomalous development of regions associated with anti-social behaviour, including the PFC, hippocampus, amygdala, corpus callosum, and hypothalamic–pituitary–adrenal axis. Early damage to the orbitofrontal cortex in particular appears to result in poor acquisition of moral and social rules, thus showing the importance of the interaction between environment and brain development.”
All of these studies raise serious ethical questions for the justice system. Is the basic premise of pure free will suspect as a producing cause of aberrant conduct? Can we say with certainty that actions are in any meaningful sense volitional if they are the product of immutable laws of science which manifests themselves in a predictable, albeit undesirable, results? Are we punishing for poor conduct choices by individuals or for organic brain function over which the individual has only limited control?
Valid questions that may need answering and soon. In 1995, “Stephen Mobley, 25 with a long and violent criminal record, admitted shooting a pizza store manager in the back of the head during a failed robbery four years before. His lawyers argued he should be spared the death penalty because of a defect in his genetic make-up. Mobley’s family tree is littered with incidents of criminal and violent behaviour. His mitigation focused on a direct chain of antisocial behaviour that could be traced from his great- grandfather.
His lawyers tried to adduce expert evidence to show that a gene mutation had been passed along this line and was ultimately responsible for the disastrous events on 17 February 1991 at the pizza parlour in County Hall, Georgia. As long ago as 1969, genetic evidence was first admitted in a New York court. Lawyers then put forward a genetic-defect defence concerning the XYY chromosome syndrome. They argued that the extra Y chromosome indicated greater “maleness” or aggression. However, it failed to gain widespread judicial acceptance.
Mobley’s lawyers introduced evidence of a recent Dutch study, which associated this sort of family aggression with chemical imbalance caused by a mutating gene. Nevertheless, the Georgia Supreme Court held this evidence to be inadmissible on the basis that the theory of ‘genetic connection is not at a level of scientific acceptance that would justify its admission.'”
Now 16 years later science is grappling with proofs that might impress a court with the idea that certain human predispositions exist which bear directly on anti-social conduct. If neuroscience can answer this proposition affrimatively, the larger question will be how will we deal with this knowledge and how then will we deal with the perpetrators.
Sources: The Independent; Plos Biology; Wired; Neurophilosophy; and SamHarris.org
~Mark Esposito, Guest Blogger
Frank,
It’s good to hear from you as well. Next time I’m in N.O., I’ll eat an extra order of barbeque shrimp for you. It’s no problem. Really.
Buddha Is Laughing : It takes a southern boy to cut to the chase!
Good to hear from you. I’m missing some good Nawlins’ bar-b-que shrimp and a po’ boy at Pasquale’s Manelli!
Judges and juries are hard pressed to buy into a mental health defense. In my state, if a lawyer is very good, he’ll get an Instruction on the mental health defense ” Guilty But Mentally Ill”. The jury doesn’t know the punishment is the same to serve in the pen. Rarely do they not serve the sentence in a state facility of corrections. We do not have a true mental health long term facility in which to serve a sentence. We need an institution for the long term care and treatment of the mentally ill.
Unfortunately, neither taxpayers nor politicans support these projects. Until then, they’ll be prosecuted, convicted, sent to the pen with little or no mental health treatment. So whether their acts were intentional or not, product of a free-will or not, the system is designed almost the same. It’s sad to practice law and see the really mentally ill get prosecuted.
Is DUI and intentional crime? You intended to drink, you intended to get in a vehicle and drive, and so you are accountable for your intentional actions? What if you are an alcoholic and you do not possess the “blocker genes” that non-alocholics have? Is this a disease, a medical condition? Is this condition inherited from your gene-pool providers? Is it really an intentional act, a product of your own free will? There are many books written on this subject. I would humbly submit most convicted “criminals” have in their life history to that point, some factors that influenced their otherwise unfettered free will.
That’s it for Frank.
After reading the rest of this thread, I still come to the same conclusion:
Free will is manifest on a sliding scale that is limited by biology.
By analogy, like all people have vocal chords, all people have free will, but their ability to express through it runs the gamut from mute to opera singer.
@Mike S: I see no reason that incarceration cannot be safe and humane; there is no need to be cruel, and I believe people can interact with each other just fine without ever being in touching distance. In the natural course of my work year, I can interact with hundreds of people and never touch a one of them. (I often shake hands at introductions, but I certainly do not think that is a necessity for my mental health).
I do agree that for capital punishment we have too few safeguards to exclude the innocent, and our legal system has allowed innocents to be executed. That should stop, but I have no problem with the philosophy of capital punishment. I think those opposed are being overly sentimental, there is danger and expense in keeping a person alive that we do not owe them if they have ended somebody else’s life. I believe their right to life ceased the moment they violated somebody else’s right to life, and if we are certain they did that, we should turn them off as humanely as possible.
IMO they are broken, they will never be fixed to the point where we can feel safe with them in society, so they should spend the rest of their lives in prison, meaning they will die there. Either way the sentence is a death sentence, the only difference is they either suffer in prison for the rest of their natural life (which I think is inhumane) or they enjoy the rest of their natural life at our expense, and I think the latter case is unfair, considering they stole that from somebody else. I think the fair thing to do is end their life, painlessly.
mespo727272 : “Crime as malice versus crime as neural dysfunction? is it a matter of public safety or public health or both?”
Wow. This was a very thought provoking discussion. In no particular order here are the thoughts of a demented criminal defense attorney who has wandered around the “criminal ” minds of thousands of clients in 34 years:
1. When I began practicing law in 1977 the mindset of judges in criminal cases at sentencing was at least a consideration of the “rehabilation” prong. Not that is trumped by “punishment” and “protection of society” by most state and federal judge I appear before on serious crimes. It also is fueled by raw politics and the desire to be reelected. Handing down a long sentence to punish and to protect vs. granting a defense motion on a technicality freeing an obviously gulity man, you be the judge and think about how your decision will be reported in the local news media the next day.
2. This country has become much more conservative over these 34 years and the opinions by the U.S. Supreme Court mirror local judges views on criminal cases. Or is the reverse true? In almost all criminal cases on review by the US Supreme Ct., involving constitutional rights of the defendant vs. the power of the state/law enforcement, defendants lose 5-4! When I speak at bar functions, I frequently state that I may not see another meaningful Supreme Court decision in my lifetime (I’m around 61) that supports the individual constitutional rights asserted by a criminal defendant vs. the power or the actions of law enforcement.
3. Most all motions I have filed (or are aware of) in my jurisdiction claiming insanity or a mental disease or defect fall upon deaf judicial officers. The state uses state mental health evaluators and almost always find the client competent to stand trial. The threshold level is so low under KY law that they can honestly justify their positions and conclusion. That does not make it right!
4. Several years ago I represented an older indigent black man who was charged with serious sexual offenses. He had a low IQ, lacked a high school education and lived alone in a basement of a church building when he cleaned up in return for his room. I challenged his competency under our statute KRS, Chapter 504, and the state appointed evaluator found him competent. I was convinced in my discussions with him, he was not. My pretrial motions failed, my client arrived in court in a red t-shirt that read ” I am your worst nightmare” ( he was charged with several counts of sexual offenses on a boy). I went to my office and gave him one of my shirts and we bgan jury selection and my client was sleeping (at noted by me and the judge). I begged the state prosecutor to stop the trial and he refused. I objected so many times to these proceedings, the judge finally gave in and allowed me to voir dire my client in open court outside the presence of the jury. At counsel table he answered my questions: he had a MD from NYU and invented the artifical heart, was a Louisville police officer, played football with Joe Namath at Alabama, played in the NBA with the New Jersey Nets, etc. He clearly was living in his own world becoming part of all the television he watched alone in the basement for decades. Only after this live in court experiment, did she encourage the prosecutor to make an offer where my client could get a probated sentence. He did and she did. The point is, I have seen mentally ill clients, found competent, get convicted and go to the pen. This is a very sad commentary on the criminal justice system.
5. I have seen what I believe are really “bad seeds”, truely intentional free will actors. I have seen many more clients acts not truely “intentional”.I’ve seen RX alter behaviors. Many of my clients charged with “crimes” used or abused drugs, had limited education, had challenging lives in challenging environments, little home upbringing, bad role models, no true family unit, exposed to violence, etc., all the factors that affect a person to commit a crime. Some are stronger than others, some have more skills, some have more resources, some have a greater intellect, etc. Are their acts ones of “free will”? I don’t know. But I would suggest their actions are rarely ever clear-headed, thought-out intention acts to accomplish a criminal result. Unfortunately in the criminal justice system, hese are mitigators of puinishment they, are not exonerateors.
“What will have to come next, if we indeed have the will to do it, is to rethink our whole system of incarceration and its methodology.”
For some time now, without being able to put my finger on it, I’ve had such an immense feeling of sadness stemming from a belief that somehow, someway, our entire system of incarceration is a total failure.
I don’t know what the solution is, but it isn’t what we have.
“To be considered competent, Loughner must have a factual and rational grasp of the charges against him and the potential consequences, and be able to assist his lawyers in his legal defense.”
Frankmascagniiii
As has been mentioned this is a fairly low standard to achieve. Your quote from Dr. Duckworth:
“We’re well short of a perfect treatment, but we have enough medication choice that a skilled doctor will find something that the patient will tolerate,”
Does little to comfort me having worked professionally with this type of patient. We can medicate them and we can make them lucid, but the attempt to actually try this person and those of his type, is I think, little more than show. Personally, while I have seen many good results from patient medication, the art is far from the realm of proven science. The ending should be that Loughner should never get out of the State’s custody as you alluded, but I think a trial now or later dependent upon his lucidity, especially in Arizona, would be a mockery.
We need to rethink our concept of what is the nature of punishment, what is the effectiveness of our “tried and true” methods and what are we really trying to accomplish? It’s a hard question since the effects of many crimes are devastating to the victims and those who care for them. They must be comforted and protected, but does the punishment we mete out ever make them whole?
It may be after much thought that socially we finally again conclude that Draconian punishment is necessary, despite any inhumanity in its application. I just wonder if its application doesn’t lessen us all. I say this even though I feel it would have been best to just shoot the guy down, but then no one is immune from wanting vengeance. Are we better though for these visceral feelings and their concurring thoughts? I’m not sure we are, and I suspect that we are not.
Mike S.
I am going to show your post to my wife for we have just gone through some things with her Father which your post seems to address .
OS
” Just making and transporting the stuff is dangerous.”
It was the transportation part on my end,for all the medicines sat in the rear of our vehicles.
And on the other side in the pharmacy there was always a potential for a slight spill or a empty needle being mishandled at the point of disposal.
And then the checking of our radioactive sensors to make sure we weren’t being exposed
to any levels of radiation in our daily routine with the medicine.
In other words making sure that when you went home and went to bed that you weren’t “glowing in the dark”:=)
“If neuroscience can answer this proposition affirmatively, the larger question will be how will we deal with this knowledge and how then will we deal with the perpetrators.”
Mark,
One of the best posts I have ever read here. It creates so much to think about and its ending above leaves us with among the most complex of questions that need to be solved if we are ever truly to attain the justice we all aspire to. The comments have also been thoughtful, thought provoking and first rate.
In pondering my own thoughts I must admit that they are somewhat influenced by Bob’s statement:
“Lest we forget how unreliable the foundation of medical science is; i.e. induction.”
The science cited by OS, Tony and Buddha has much to persuade within it,
but when it comes to science as a finished product, I am skeptical of the validity of specific conclusions drawn, especially in medicine, skeptical even though I find much of it persuasive in the context of human behavior.
Year ago I read “The Selfish Gene” by Richard Dawkins, where he concluded in effect that we have no actual “selves,” but only exist as the repository of our genetic makeup. Dawkins is a persuasive writer, yet I came away from the book thinking, well if that’s true how does that impact my life? My answer personally has to be that I can only continue to go on if I continue to believe that I am in control and that would be true as well with respect to “free will.”
My deficiency with respect to most of you here that I so respect, is that I am limited by being more of a concrete thinker. Therefore, experience informs
much of my thinking. In that respect I think relating something that occurred to me last winter, after my heart transplant, might be somewhat instructive as to how physical processes affect behavior and mental processes.
It was unseen by my Doctors, that after my transplant I had developed sacs in my lungs that affected the amount of oxygen going to my brain. Since steroids used during transplants are known to sometimes have psychotic effects, my having hallucinations and other symptoms, was seen as the after effects of the medication, that would soon go away. Although my oxygenation levels were lower than normal, it was felt that this was just my body being accustomed to a new heart. My wife was distraught because I didn’t seem to be the “Mike” she knew and she kept confronting the hospital staff about it. Almost ten days later they sent me home, over my wife’s protests. Three days later my wife called 911, having noticed I wasn’t breathing properly, I wound up back in the hospital and underwent lung surgery within another two days.
When my wife called 911 I became angry with her because I didn’t even know I was sick. I had noticed when I was first in the hospital, after the transplant I was vaguely aware of the hallucinations since I would be having verbal conversations with people in my room, who turned out not to be there, when someone would enter the room and ask who I was talking too. The realization of psychotic behavior crept up on me, someone who so prides himself as being “together” and in control. The short of it was that I was in a psychotic state for almost three weeks, with only a vague awareness that something was wrong. Had I been stronger and more mobile, who knows what harm I could have wreaked, while in this state.
My point is obvious, if a fairly stable and “together” individual can display highly uncharacteristic behavior from simply a dearth of oxygen,
what behavior then could be explained by brain injury and/or genetics.
I think the examples shown by others here and Mark show with some certainty that behavior can be affected by ones physical condition. To add to that I personally believe that the mind/body split is the effect of religious dogma, rather than physical reality. We are an organism and not a body commanded by our brains. How then is our behavior affected by organic aspects other than brain function? I believe far beyond current knowledge.
This takes me back to Mark’s original question how do we deal with criminal behavior in light of this onset of knowledge. My answer, certainly not profound, is that we have to first eliminate capital punishment, for obvious reasons. What will have to come next, if we indeed have the will to do it, is to rethink our whole system of incarceration and its methodology. Without this scientific insight it is cruel and inhumane. We are treating miscreants as a whole in a way that only reinforces their bad behavior even if it isn’t an organic deficiency, but merely moral/ethical misjudgement. In the process our behavior then loses any moral high-ground it can claim.This is most probably a utopian solution, since too many humans feel as did OS’ judge, that there is no mental illness. The effect of religious belief is also a powerful force against such reforms.
Again though re: Free Will I go with gbk’s quotation from Carroll ““If it was so, it might be; and if it were so, it would be; but as it isn’t, it isn’t so.”
OK, you are referring to the radioactive dye. I am familiar with that. There are all kinds of radioactive media, and none of it is cheap. Just making and transporting the stuff is dangerous.
When my daughter was still a teenager, she had thyroid problems. Instead of disfiguring and potentially dangerous surgery, they decided to use radioactive iodine to treat the problem. She said later it did nothing to inspire confidence when the nurse came in with her pill. The nurse wore a lead-lined full-body hazmat suit. She was carrying the pill in a little cup at the end of four-foot long tongs. Came in with the pill and told my daughter to take it. Wow!
OS:
The PET which I refer to is the dose of radioactive medicine that allows those machines to see whats going on inside you at the time of the scan.
These doses were in a needle which was housed in a medal cylinder which weighed about 25 t0 30lbs.
As far as other expenses associated with the PET and FMRI, a dedicated area of the hospital has to be set aside for them. In the case of MRI scanning, the area has to be insulated and made magnetic proof, because of the very high gauss levels present when scanning.
Also, not just any x-ray technician can do the work. It takes advanced training. That impacts pay scales.
e, the PET and FMRI are not medicines. They are massive machines that scan the brain. They are a marriage of space age scanning technology and powerful computers. PET stands for Positron Emission Tomography. FMRI is Functional Magnetic Resonance Imaging.
And yes, they are expensive. When a hospital or clinic pays a million or more dollars for a machine, the fees are high.
For some interesting reading on the subject, I call your attention to the work of Dr. David Lykken at the University of Minnesota. Lykken and his associates studied twins separated at birth, who had little or no knowlege of each other. The results address some of the questions in this thread.
This is the Wikipedia link which gives an overview of the study and some informative links.
http://en.wikipedia.org/wiki/Minnesota_Twin_Family_Study
This link goes to a PDF of a paper by Lykken, et al, which presents powerful evidence in the findings.
http://bernard.pitzer.edu/~dmoore/psych199s03articles/Bouchard.pdf
Lykken’s other work debunked the polygraph. See his book, “A Tremor In The Blood.”
OS:
Kind of off point/post but you mentioned PET/MRI scans,I delivered Nuclear Medicine awhile back and was astounded at the cost of these medicines.And for awhile there was some talk going around of Doctors and Hospitals using these medical treatments more than they should.
An interesting article was in USA Toady on “mental illness” in the criminal justice sytsem: “About 85% of mentally ill defendants become well enough to return to court, Bonnie says.”
Loughner likely to stand trial eventually
Enlarge By Chris Morrison, AP
This courtoom sketch shows marshals restraining an agitated Jared Loughner after his outburst during a May 25 competency hearing in Tucson.
By Donna Leinwand Leger, USA TODAY
Jared Loughner, accused of killing six people and wounding Rep. Gabrielle Giffords and 12 others at a supermarket near Tucson, will spend the next four months at a prison psychiatric hospital where doctors will attempt what they do with thousands of defendants each year: get him well enough to face the charges in court.
Chances are doctors eventually will be able to get the symptoms of his newly diagnosed schizophrenia under control, and a judge will find him competent to stand trial.
“It’s a fairly routine part of criminal justice,” says Richard Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. He says 60,000 to 80,000 defendants in state and federal criminal courts are evaluated for mental competence each year.
Of those, judges find 15,000 to 20,000 defendants too mentally ill or disabled to face the charges against them, Bonnie estimates. They are sent to prison psychiatric facilities for treatment intended to make them competent to stand trial. About 85% of mentally ill defendants become well enough to return to court, Bonnie says.
STORY: Judge: Loughner not competent to stand trial
“It’s a pretty rare scenario that someone stays incompetent and never faces their charges,” says Daniel Murrie, a forensic psychologist and professor of psychiatry at University of Virginia School of Medicine.
Steps leading to a grim day in Arizona
Loughner exhibited increasingly bizarre behavior in the year before the Jan. 8 shooting at a political meet-and-greet with Giffords, an Arizona Democrat. On Sept. 23, 2010, officials at Pima Community College suspended him and told him he would not be readmitted until a doctor evaluated his mental health. Loughner dropped out.
Police arrested Loughner at the scene, and he is charged in federal court with murdering two federal officials: U.S. District Judge John Roll and Giffords’ staffer Gabe Zimmerman. Giffords, who was shot point-blank in the head, is undergoing rehabilitation at a Houston hospital.
Last month, federal Judge Larry Burns found Loughner incompetent to stand trial after a prison psychologist and a San Diego psychiatrist concluded he likely has paranoid schizophrenia. Burns sent Loughner to the prison hospital in Springfield, Mo., for treatment and will re-evaluate Loughner’s mental status at a hearing Sept. 21.
Even if Loughner is found to be mentally competent and is tried, his attorneys can argue that Loughner was insane at the time of the shooting.
To be considered competent, Loughner must have a factual and rational grasp of the charges against him and the potential consequences, and be able to assist his lawyers in his legal defense.
“It’s a very low standard,” says Thomas Hafemeister, a mental health law expert and professor at the University of Virginia School of Law.
In the majority of cases, competency is restored within a year, Murrie says.
Treatment can take far longer. Brian David Mitchell of Utah spent six years in psychiatric treatment before facing charges of kidnapping Elizabeth Smart from her Salt Lake City home in 2002. He was sentenced May 25 to life in prison. A judge had twice declared him incompetent to face trial.
Justice delayed
In at least one high-profile case, treatment has failed.
Russell “Rusty” Weston, charged with killing two U.S. Capitol Police officers and wounding a third on July 24, 1998, has never gone to trial. In 1999, a judge found that Weston suffered from paranoid schizophrenia and was incompetent to stand trial. In 2001, a judge ordered hospital doctors to forcibly medicate Weston.
Weston took medicine for four months, with little improvement. He remains in the prison hospital in Butner, N.C., and could face the charges if his condition improves.
Schizophrenia, which can include delusions, false beliefs and disorganized thinking and behavior, is most often treated with anti-psychotic medicines, says Ken Duckworth, a psychiatrist who is the medical director for the National Alliance on Mental illness and a clinical professor of psychiatry at Harvard Medical School.
“We’re well short of a perfect treatment, but we have enough medication choice that a skilled doctor will find something that the patient will tolerate,” he says.
First, doctors will have to persuade Loughner to accept treatment, often challenging if the illness has progressed to the point that patient cannot understand that he or she is ill, Duckworth says.
If paranoia accompanies the schizophrenia, a mentally ill person may believe his doctor is out to get him and may refuse treatment, he says.
A judge can order doctors to forcibly medicate Loughner if they determine he is dangerous to himself or others. The judge can also order forced medication if the public interest in getting him to trial is sufficiently great and there’s a reasonable expectation that the treatment will succeed, says David Bruck, a law professor at Washington & Lee School of Law.
Many defendants willingly take medication. “Some people will be very compliant, very eager, because it’s just hell on Earth to have severe mental illness,” Hafemeister says.
If the medications fail and Loughner’s competence can’t be restored, prosecutors can seek a civil commitment that would send him to a psychiatric hospital for life, Bruck says.
“The possibility of Jared Loughner being released now or at any time is not on the menu. That is not an option,” Bruck says. “That is not going to happen. Not now. Not
My second reaction was IRONY. On Friday I received a court order granting my motion for shock probation on a motion I filed earlier this week on a client who just served 25.5 months in federal custody on a drug charge that was now being held in state custody on a felony assault charge conviction. In support of my motion, I noted, among other things, that my client was married and had two young children: GAUGE and Cash.
Now, your very interesting views on Mr. GAGE. I commented to my client’s wife about the unusal two names of their children. She was indicted with her husband on the same drug charges and she did 12 months house arrest. Are these children’s names a product of free will or something more?
Believe it or not?
@Mespo: or a mental disease derived from neural circumstances beyond the province of willful actions.
I admit I haven’t thought this through entirely, but my first reaction to this statement is that I think the primary characteristic of mental illness, caused by biology or maldevelopment or some emotional trauma, is precisely an inability to choose.
What should be prosecuted as crime is a choice to commit a crime. People that are out of control of their actions, unable to choose, should be sequestered and controlled for the good of society. I believe in the insanity defense, but I also believe that if we deem somebody insane then, unless we can find an underlying physical cause of the insanity for which we can be certain (beyond a reasonable doubt) treatment will completely cure the insanity, that person should be sequestered for life. Even if their crime was unwitting and beyond their control, they have proven they are a danger to others. They must be institutionalized.
I do not, by the way, believe in the “temporary insanity” defense. Even if people have long stretches of sanity, if they have proven by example that they are prone to a bout of temporary insanity that harms others, then they have proven they are a permanent danger to society, and should be institutionalized.