It will come as no surprise that the lawyers for Jared Loughner, the alleged shooter in the Tuscon murders, are thinking of raising the insanity defense at trial. But as all students of first year criminal law know, successfully raising the insanity defense is easier said than done--one can be medically insane without necessarily meeting the threshold for legal insanity.
This very topic, of who qualifies for the insanity defense, is being discussed at the NYTimes' Room for Debate blog today, featuring comments from Alan Dershowitz, James Whitman, and Kurt Scheidegger, among others. An interesting read!
There are, as several of the comments from the NY Times' blog make clear, substantial, long-standing and highly contested questions raised by the topic of legal insanity having to do with conceptual, moral, and psychological issues surrounding insanity and mental illness, legal culpability, and punishment. It seems the only occasions in which these become the subject of public discussion are the occurrence of a high-profile cases (e.g., John Hinkley's verdict of not guilty by reason of insanity), the result being legislators reflexively (i.e., in the heat of the moment) reacting to something bordering on mass hysteria and irrational fear with draconian or simply regressive legislation. It strikes me as more than a tad inhumane that meeting the threshold for legal insanity is virtually impossible in our criminal justice system. No doubt this is of a piece with our untutored attitudes and inexcusable ignorance about mental illness in general and a disturbing inability to sublimate an unquenchable thirst for vengeance beyond any reasonable (and legal) retribution.
It's also interesting to consider the likelihood that those on the Right who believe cultural ethos and political rhetoric are completely irrelevant variables (to think otherwise is not to thereby claim they are somehow implicated as direct causal links in a chain that lead back, as it were, to attributions of responsiblity to, say, Sarah Palin or the Tea Party, etc.) with regard to Loughner's actions, stressing rather the paramount importance of his (apparent) madness or mental illnes, will sing a different tune when it comes to the question of legal accountability, whereupon they'll focus exclusively on his episodic rationality, cognitive planning skills, awareness of the distinction between right and wrong....
Posted by: Patrick S. O'Donnell | January 21, 2011 at 06:42 PM