In the long unfolding villianization of the term “liberal,”  law and order issues have probably played a key role as any other issue.  The end result is the meme that liberals are among other things soft on crime and care more the criminals than the victims.  Put a liberal into power and they will put the murderers and rapists back on the streets.  The pinnacle moment on this front came in 1988 presidential election with the Willie Horton campaign ads. 

And while much of the political liberal-conservative debate of the Arizona shooting has been wrangled over gun control laws, the impending trial for Jared Lee Loughner has brought back another of one the classical battles in the law and order arena: the insanity plea.

Amen

Jodie isn't plastic nor does she
cry
at the sight of me writhing in
pain
down in the gutter of Anystreet USA
because Jodie will always be
Jodie.

Don't cry for me Arizona
the truth is 
I brought it on myself
in a calculated way
and by means which
I would postively hurt 
everyone around me.

--- John W. Hinckley, Jr.

Years before Mr. Horton unwittingly helped defeat Dukakis and send H.W. to the White House, the previous president was involved in another incident that would radically change how insanity is treated in our courts. 

Doug Linder of the University of Missouri-Kansas City School of Law summed up the impact of the Hinckley Trial this way:

The Hinckley trial highlights the difficulty of a system that forces jurors to label a defendant either "sane" or "insane" when the defendant may in fact be close to the middle on a spectrum ranging from Star Trek's Mr. Spock to the person who strangles his wife thinking that he's squeezing a grapefruit.  Any objective evaluation of John Hinckley's mental condition shows him to be a troubled young man--not, as one prosecution witness described him, "a normal, All-American boy." But how troubled? The prosecution contended that Hinckley suffered only from "personality disorders" of the type affecting five to ten percent of the population, whereas the defense saw the same evidence as demonstrating Hinckley's serious mental illness.

The Hinckley trial, perhaps better than any other famous trial, reveals the difficulty of ascertaining what exactly is going on in the head of another human being--and then in using that imperfect knowledge to answer a legal question that reduces complex and changing mental states to two oversimplified categories.

At the same website, Kimberly Collins, Gabe Hinkebein, and Staci Schorgl provide a decent outline of the evolution of the insanity plea.  They state the ramifications of the Hinckley’s sentence as:

June 21, 1982. The Hinckley verdict was read. "NOT GUILTY BY REASON OF INSANITY." The public outcry and backlash that followed the acquittal of John Hinckley, Jr. by reason of insanity was tremendous and had far-reaching effects. Eighty percent of the insanity reforms that took place between 1978 and 1990 occurred shortly after the Hinckley verdict. Within a month of the trial's conclusion, committees of the House and Senate held hearings regarding use of the insanity defense.

During the three years following the Hinckley acquittal, Congress and half of the states enacted changes in the insanity defense, all limiting use of the defense. Congress and nine states limited the substantive test of insanity; Congress and seven states shifted the burden of proof to the defendant, eight states supplemented the insanity verdict with a separate verdict of guilty but mentally ill (GBMI), and one state, Utah, abolished the defense outright. Congress passed revisions in the defense embodied in the Insanity Defense Reform Act of 1984, which reads: 

"It is an affirmative defense to a prosecution under any federal statute 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. Mental disease or defect does not otherwise constitute a defense." 

The legislation changes the former approach by requiring a "severe" mental disease and eliminating the volitional aspect of the defense. The Act also reshapes the cognitive aspect of the insanity defense by replacing "unable to appreciate" with "lacks substantial capacity" to delineate boundaries between a total lack of understanding and partial comprehension.

The New York Times recently provided provided an interesting summary of the life of Mr. Loughner, during which this issue of the insanity plea was raised: .  It raised this issue of the insanity plea being used.

Since last Saturday’s shooting frenzy in Tucson, investigators and the news media have spent the week frantically trying to assemble the Jared Loughner jigsaw puzzle in hopes that the pieces will fit, a clear picture will emerge and the answer to why will be found, providing the faint reassurance of a dark mystery solved.

Instead, the pattern of facts so far presents only a lack of one, a curlicue of contradictory moments open to broad interpretation. Here he is, a talented saxophonist with a prestigious high school jazz band, and there he is, a high school dropout. Here he is, a clean-cut employee for an Eddie Bauer store, and there he is, so unsettling a presence that tellers at a local bank would feel for the alarm button when he walked in.

Those who see premeditation in the acts Mr. Loughner is accused of committing can cite, for example, his pleading of the Fifth Amendment or the envelope the authorities found in his safe that bore the handwritten words “Giffords,” “My assassination” and “I planned ahead” — or how he bided his time in the supermarket, even using the men’s room. Those who suspect he is insane, and therefore a step removed from being responsible for his actions, can point to any of his online postings, including:

“If 987,123,478,961,876,341,234,671,234, 098,601,978,618 is the year in B.C.E then the previous year of 987,123,478,961,876, 341,234,671,234,098,601,978,618 B.C.E is 987,123,478,961,876,341,234,671,234,098, 601,978,619 B.C.E.”

What the cacophony of facts do suggest is that Mr. Loughner is struggling with a profound mental illness (most likely paranoid schizophrenia, many psychiatrists say); that his recent years have been marked by stinging rejection — from his country’s military, his community college, his girlfriends and, perhaps, his father; that he, in turn, rejected American society, including its government, its currency, its language, even its math. Mr. Loughner once declared to his professor that the number 6 could be called 18.

In the New York Times website’s opinion section Room for Debate recently, the issue of who qualitifes for the insanity plea was the topic of the day given this possible legal strategy by Loughner and his attorney, taking into account the changes in the law since the Hinckley trial:

In the three decades since the Hinckley case, brain research and brain scans have made many advances in diagnosing and categorizing mental illness. Yet this seems to have little bearing on how society deals with insanity and culpability in the legal arena.

What has been learned in the decades since the Hinckley case? Should a better medical understanding of mental illness alter our legal definitions of insanity? Or is the insanity defense rooted in principles or traditions that actually don't have much to do with medicine?

The following are some of the points made by the various participants in the debate.  In “Abuses After the Hinkley Case,” Alan Dershowitz offers this writes:

The result [of changes since Hinckley’s trial] has been an even further marginalization of the defense. The most severely mentally ill defendants never even make it to trial, because they are found incompetent to stand trial. Others tend to use their mental illness as a plea bargaining chip to mitigate their sentence.

But under the post-Hinckley insanity regime, there have been some horrible abuses. Several years ago I argued an appeal for John DuPont, who recently died in prison. DuPont shot his best friend in cold blood in front of his friend’s family. No one disputed the fact that DuPont was a paranoid schizophrenic who honestly believed that the man he was shooting was not his friend, but rather a Russian spy who was sent to kill him and who had taken over the body of his friend.

DuPont also believed he was the Dalai Lama and the Pope. He had no idea what he had done. He did not appreciate the wrongfulness of his conduct. Nor did he understand the nature of what he was doing. He believed he was acting out of patriotic and self defense motives and that the public would admire him for his actions. He was found guilty and mentally ill, a compromise verdict devised by the Pennsylvania legislature to curtail use of the insanity defense. Although the jury found DuPont mentally ill, he was sentenced to life imprisonment and received no psychiatric treatment.

Dr. Beatrize Luna in “Understanding Voluntary Behavior” writes:

Neuroimaging methods can potentially inform the law as to whether someone has the capacity to make knowing and purposeful acts. In cases where a person with a psychiatric disorder commits a crime, it may very well be knowingly and purposeful.

For example, Jared Loughner’s criminal act appears to have involved careful planning that required voluntary and well-thought out steps. However, the aim of this planned behavior may reflect a disordered, diseased state. Neuroimaging studies could show that such a criminal engages brain systems to support voluntary acts in a similar way as the normal population. However they could also show abnormalities in brain processes that support the ability to have empathy and control over anger, or show that reported hallucinations recruit brain processes that support real sensory experiences. Although such a person would be able to operate in a voluntary planned manner, their acts would reflect brain abnormalities that contribute to their urge to commit crimes.

Should such a disorder be an excuse for their voluntary behavior? Probably not, but it might provide extenuating circumstances that could influence sentencing.

James Q. Whitman in “When the Focus is Retribution” writes:

America is generally a harsh place when it comes to criminal punishment, and the insanity defense is no exception. Compared to western Europe or Japan, we lock offenders up for much longer stretches, and in much tougher conditions.

Contemporary American law is unique among advanced industrial countries in its focus on blame and retribution.

We are also much less willing to shift mentally ill offenders out of the criminal justice system and into psychiatric treatment.

…

Continental European governments maintain vigorous and well-financed public health systems, which, of course, include mental health facilities. In the U.S. by contrast, deinstitutionalization — the elimination of residential mental institutions, largely as cost-saving measure — has had an immense impact since the 1960s.

As a result, there are both more mentally ill people on the streets in the U.S., and fewer institutional alternatives to prison. Americans are more likely to encounter seriously disturbed persons, and less likely to find an acceptable placement for them in psychiatric facilities. In these circumstances, it is no surprise that American prisons end up heavily populated by the mentally ill.

Dr. William T. Carpenter, Jr. in “Little to With Science” writes:

The insanity defense is not based on the presence of illness, but on whether the person, because of the illness, met the standard at the time when the crime was committed. Science has not, and probably cannot, answer this question. This is for the jury. If the diagnosis of psychosis is in doubt, the jury may conclude that the defense is not based on a qualifying diagnosis. If psychosis is present, the jury must the weigh all the information and determine whether, at the time of the crime, the standard is met.

In the post-Hinckley era, the standard in many states has become a simple cognitive test that has little relationship to the scientific or clinical knowledge regarding psychotic illness. Rather than state of mind and the defendant's understanding of his or her actions, the standard is close to simply whether the defendant knew the act was unlawful. Insanity acquittals, already rare, now face an almost impossible standard.

Kent Scheidegger in "A Moral, Not a Medical Question" writes:

Guilt is a legal and moral construct, not a medical one.  The traditional test is whether the defendant was able to understand the nature of the act and understand that it was wrong. This test was established by an English court in a 19th century assassination case and reestablished by Congress after John Hinckley was acquitted for shooting President Reagan. It remains the proper legal and moral test. A person who understands what he is doing and that it is wrong but does it anyway is morally responsible for his act.

David I. Bruck in “Justice vs. Fear” writes:

We tell ourselves that we convict and punish criminals to hold them responsible for the harm that they have chosen to inflict on others. But what about an offender who is actually not responsible due to severe mental illness? Punishing him — with the especially harsh sentences that characterize the American criminal justice system — carries no moral message. It just hurts and degrades someone who could have been any of us, or anyone we love.

That’s why the insanity defense — and the fairness with which our courts evaluate it — is a measure of our commitment to a system of criminal law based on justice rather than fear. And by that measure, 30 years after Hinckley, our commitment to justice looks a little shaky.

Bruck makes a point which I think needs to further exploration and why this impending trial and how it is represented in the media and blogosphere is so important. 

In my previous blog as to why I am a defeatist liberal, I asserted we are a country that does not widely embrace a liberal perspective.  In that I blog, numerous times I pointed out that there were reasons why explaining this would require more than a single a blog.  This topic and the way most Americans respond to this issue is one of those “reasons.”  While most Americans would give lip service to a “system of criminal law based on justice” they instead tend to respond not only through fear, but also hatred. 

This fear and hatred leads Americans to in essence redefine justice, where the death penalty is morally acceptable to the majority of Americans. 

There is another deeper dynamic at work here, one which I will need to be explored further in another blog, but is rooted in the in Bruck’s sentence:  “It just hurts and degrades someone who could have been any of us, or anyone we love.”  I have no idea how Bruck fully understands this sentence, but for me, it points out that the line between you or me and Loughner or Hinckley is not a very strong one. The fear that is present is not only that the insane person will return to the streets to kill and maim, but also that when looking at Loughner or Hinckley doing the perp walk the notion, as some might phrase it, “there but from the grace of God go I” pops in there.    

It can be said that we all live once-removed from the world around us.  Caught in the prisonhouse of our language as Neitzche would say.  We don’t perceive and respond to the world around us, but rather we perceive and respond to the representation of that world in our mind’s eye.  The delusions that form the paranoid schizophrenic’s world are not fundamentally different from the non-delusions that form our world. 

How often is the term “delusional” thrown out at those on the other side of an issue in the socio-political blogosphere?  We want to believe that the truth (reality) is not only obvious, but easily and directly accessible.  We want to believe the crazies out there have somehow lost that access we have.  We want to be believe in a coherent, stable identity for ourselves and the world, that these are not merely mental constructs of the symbols in our head.

I will just end this by saying that confronting the question of justice in cases like Loughner’s can lead us to confront our self, as Rainer Maria Rilke wrote:

We discover that we do not know our role; we look for a mirror; we want to remove our make-up and take off what is false and real. But somewhere a piece of disguise that we forgot still sticks to us. A trace of exaggeration remains in our eyebrows; we do not notice that the corners of our mouth are bent. And so we walk around, a mockery and a mere half: neither having achieved being nor actors. 

And we would rather punish someone like Loughner or Hinckley in ways that are not justified given their mental state than to deal with piece of disguise.