I want to call your attention to two recent events. I’d hoped to write about them sooner but traveling to give speeches, getting my new book “put to bed” so that it can be published in January and launching a new book project caused me to fall behind.
The first is the ruling by San Diego based Judge Larry Alan Burns that Jared Lee Loughner, the twenty-two year old accused of killing six persons and wounding thirteen, including U.S. Representative Gabrielle Giffords, is so mentally disturbed that he cannot understand what is happening in a courtroom. This means he cannot be put on trial.
Judge Burns decided to send Loughner, who has been diagnosed with schizophrenia, to the U.S. Medical Facility for federal prisoners in Springfield, Missouri, where doctors will attempt to restore his competency.
I’m afraid that many people mistakenly believe that the judge’s decision means that Loughner is going to be treated for his mental disorder. While he certainly may benefit from the medical attention that he will receive, it’s important to note that restoring competency and providing someone meaningful treatment are not the same.
The goal of treatment is to help an individual recover by controling the symptoms of their mental illness. The goal of restoring competenacy is to get the accused to a state where he can understand the rudimentary legal procedures that happen in a courtroom.
Let me give you an example from my book, CRAZY. A judge decided that Alice Ann Collyer was not “competent” to be put on trial after she was arrested for shoving an elderly woman at a bus stop. Collyer was sent to a Florida hospital where each day she was taken into a room and shown three chairs. One chair had a sign on it that said JUDGE, another chair was marked with the words, DEFENSE ATTORNEY, and the third was labeled PROSECUTOR. When Alice Ann could correctly identify which person sat in which chair, she had passed one of the necessary standards that she had to achieve in order to be ruled competent and put on trial.
Obviously, being taught who sits in a chair in a courtroom has little, if nothing, to do with receiving help for a severe mental disorder.
And that’s point I want to make. Restoring competency is completely different from successfully treating someone who suffers from schizophrenia.
Another misnomer is that Loughner will automatically be forced to take medication. The fact that he has been arrested does not mean that he automatically loses the right to refuse treatment. While I was conducting research in Miami, a prisoner stopped eating because his mentally ill mind told him that all food was poison. It was only after the jail psychiatrist went before a judge and testified that the prisoner was nearing the point of death that the inmate was forcibly medicated. In his case, the medication helped clear his mind and he began eating again. But the psychiatrist had to wait until the inmate’s hunger strike was about to kill him before the state could legally intervene.
Because of my skeptical reporter’s temperament, I’m going to presume that federal officials will find a way to forcibly medicate Loughner because of the high profile of this case. They will claim that his actions proved that he was a danger to himself and others, and then use medication to help him become stable.
And what will happen if medication helps him and he can pass the rudimentary requirements that the court requires to put someone on trial?
According to news accounts, both the federal government and Arizona could seek the death penalty.
In short, we are currently in the process of taking the necessary steps to make him well enough so that we can execute him for crimes that he committed when he was so sick that he didn’t know what he was doing.
If doctor’s fail to restore Loughner’s competency, he could be held indefinitely in the federal hospital.
What’s missing from this tragedy is our legal system’s own complicity in the murders that Jared Loughner committed. There were plenty of people who recognized that Jared Loughner was not mentally stable. Students, teachers, and his own parents. But all of them were stopped from interfering because of Arizona’s involuntary commitment statute that requires a person to be dangerous before anyone can step in and provide him with help.
Arizona’s statute actually is fairly liberal. It reads:
ARIZ. REV. STAT. § 36-540 (A). “If the court finds by clear and convincing evidence that the proposed
patient, as a result of mental disorder, is a danger to self, is a danger to others, is persistently or acutely
disabled or is gravely disabled and in need of treatment, and is either unwilling or unable to accept
voluntary treatment . . . .”
Many states in recent years have realized that trying to predict when someone might become dangerous or already is dangerous is foolhardy. My friend, Clare Dickens, was bringing her son home from meeting with his psychiatrist when their car stopped in traffic on a New York bridge and, although Claire had been told her son was doing well, he opened the car door and jumped to his death.
The foolishness of the dangerous requirement is what led Arizona and other states to add “gravely disabled” or phrases such as “unable to care for self or others.”
After the Virginia Tech massacre carried out by Seung-Hui Cho, I was part of a task force that drafted new commitment language which the state legislature adopted. Virginia’s statute now reads:
VA. CODE ANN. § 37.2-817.C. (a) the person has a mental illness and there is a substantial likelihood
that, as a result of mental illness, the person will, in the near future,
(1) cause serious physical harm to himself or others as evidenced by recent behavior causing,
attempting, or threatening harm and other relevant information, if any, or
(2) suffer serious harm due to his lack of capacity to protect himself from harm or to provide for
his basic human needs, and
(b) all available less restrictive treatment alternatives to involuntary inpatient treatment, pursuant to
subsection D, that would offer an opportunity for the improvement of the person’s condition have been
investigated and determined to be inappropriate …”
Despite this more liberal language, dangerousness continues to be the threshold in nearly all of Virginia when it comes to sending someone into treatment.
I believe that our reliance and focus only on dangerousness is wrong. Obviously, we need safeguards to insure that persons are not wrongly detained and mistreated. But we must find a better way to protect people who are sick but also get them help rather than waiting for them to become dangerous.
Which brings me to the second news item that I want to highlight.
The U.S. Supreme Court ruled on May 23, 2011 that conditions in California’s prisons are so inadequate that the state is violating prisoners’ Eighth Amendment rights. The decision grew out of two suits that were consolidated. The first, filed in 1990, called Coleman v. Brown, argued that prisoners with serious mental illnesses were not receiving minimal, adequate care. A special master was appointed to oversee the state’s efforts to fix that problem, but after twelve years, he reported that the conditions in California’s prisons had gotten worse, not better. The main reason was overcrowding. California’s prisons are designed to house a population just under 80,000 but hold nearly double that number. In the second suit, Plata v Brown, filed in 2001, California conceded that it was not only deficient in providing care to prisoners with mental illnesses but also was failing to provide adequate health care to the general prison population.
The Supreme Court ordered California to reduce its prison population to 137.5 % of its designed capacity within two years.
Writing for the majority, Justice Kennedy described the overcrowding in stark terms:
“Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers…As many as 54 Prisoners may share a single toilet.”
To the surprise of no one, Justice Scalia complained in a dissenting opinion:
Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.
The Loughner case and U.S. Supreme Court decision reflect how foolish and cruel we have become in how we treat persons who suffer from brain disorders.
On one hand, we refuse to help someone when they first begin showing sings of becoming mentally unstable. Few communities have adequate mental health services — so even if an ill person wants help, it’s unlikely he will get it. When an untreated individual begins to become sicker and sicker, we protect his constitutional right to be crazy — until he becomes dangerous. At that point, we arrest him, lock him up and then give him just enough help so that we can take him to court and put him on trial for crimes that he committed when he wasn’t thinking straight. We then send him to death row to be executed or we incarcerate him in jails and prisons that are overcrowded and completely unable to meet his basic health care needs. We let persons with mental illnesses suffer in prisons where many of them get sicker and sicker and sicker.
We call this justice.
I call it insanity.