We don’t know if the Aurora shooter, Mr. Holmes, had a mental illness, but if media reports are true, there are hints that he might have:
• Holmes is 24, the age at which schizophrenia starts.
• He is delusional (believes he is “the Joker”).
• He was “normal” and then became withdrawn. (Withdrawal is a common reaction to hallucinations.)
• There are reports of lack of affect (“shows no remorse”).
• He is reported to be acting insane in jail, spitting on everyone.
• The owner of a shooting range who called his home said his voice message was “bizarre.”
The fact that someone is highly educated and their attack was well-planned does not rule out mental illness. The disorder often starts after a normal education. The Unabomber was also mentally ill, despite his education and the well-planned nature of his attacks.
If mental illness did play a role, the legal system is incapable of delivering justice.
1. The legal system has no way to prevent these incidents
Real justice would have meant preventing the incident in the first place. There are many — albeit, unused — legal procedures to stop people who already have serious mental illness and a history of violence from becoming repeat offenders. These include incarceration, involuntary commitment, and assisted outpatient treatment — an order to stay in treatment as a condition for living in the community. But like Jared Loughner, who allegedly shot Representative Gabrielle Giffords, James Holmes has not been shown to have a prior history of serious mental illness. There are no laws that allow intervention prior to a first episode because it is important that we protect people’s rights. Even a gun-control law that prevents persons with mental illness from owning arms would not have affected someone with no prior history.
The theoretical foundation for a possible future approach would be to have someone suspected of having a first break or serious mental illness to undergo a “capacity” or “competency” hearing. These hearings determine whether someone is lucid enough to make his own decisions. Someone who believes he is the Joker may not be. The court would appoint a guardian, someone else to help make decisions for him, which could include violence-preventing antipsychotic treatment.
Competency hearings are frequently held for people with Alzheimer’s, dementia, or developmental disabilities, but rarely for people with mental illness. They would have to be changed slightly, because people experiencing their first episode of serious mental illness will likely have diminished capacity, but not total lack of capacity. A more difficult problem with this approach is that even ordering the hearing is, to an extent, a constraint on freedom. What should the threshold be for ordering the hearing?
2. The legal system has difficulty bringing mentally ill to trial.
The next difficulty faced by the legal system in delivering justice may be bringing Mr. Holmes to trial. Mr. Holmes’s lawyers will likely ask for a psychiatric evaluation to determine if he has the ability to participate in his own defense. If he does, the trial moves forward.
Judges sometimes rule the person can help in their defense no matter how psychotic. Colin Ferguson, who killed six on a Long Island Rail Road train, defended himself while apparently floridly psychotic, and was promptly convicted. It was a shameful charade masquerading as justice. Fortunately, that is rare.
When a judge determines a person is unable to aid in his own defense, the judge will involuntarily commit him until sanity is restored. This usually involves the administration of medicines. The defendant’s lawyers may object because their best chance to avoid the death penalty may be to prevent the trial. If they are successful, someone who could be made sane is intentionally kept permanently insane. That’s not justice.
If prosecutors ask the judge to allow involuntary medication, the judge will likely agree. That’s what happened to Jared Loughner, accused of shooting Gabrielle Giffords. The same courts that won’t allow anyone with mental illness to be involuntarily medicated to prevent violence eventually ruled he can be medicated after the violence, and over objection, so they can try and fry him.
3. The jury will not get to see the “real” defendant at trial.
Once an allegedly mentally ill defendant becomes “synthetically sane” through involuntary medication, the jury will be asked if the defendant “understood the difference between right and wrong” at the time of the crime, which largely defines “not guilty by reason of insanity.” The jury will see a sedated compliant young man, rather than a raving lunatic, which makes conviction more likely. But is withholding the reality of his condition justice, or a way to work around it?
4. “Not Guilty By Reason of Insanity” allows people to go free and become dangerous again, and keeps people who are not dangerous incarcerated.
If Mr. Holmes is found Not Guilty By Reason of Insanity (NGRI) he will be put in a locked forensic unit until his sanity is restored, at which point he can be released and is free to go off treatment and could become violent again. That’s certainly not justice. Realistically, few judges will risk that, which means even when sanity is restored, he will likely be kept committed. As I wrote in the Wall Street Journal, that is what happened to Andrea Yates, who drowned her five babies in a tub in Texas due to postpartum psychosis, and John Hinckley, who tried to get a date with Jodie Foster by shooting President Reagan. Both are involuntarily committed even though they are not insane. Is that justice or 1950s Russia?
To protect against the possibility of release, some states enacted “guilty because of mental illness” laws. Individuals found guilty because of mental illness go to a hospital until their sanity is restored, and then to jail to finish out their sentence. This forces individuals who had no culpability for their actions to go to jail when incarceration is no longer needed — after they’ve regained their sanity. Huh?
5. Not guilty by reason of insanity should require treatment for the maximum amount of time someone would serve had they been found guilty, maybe even longer.
There is a just alternative. If the reason for the crime was mental illness, the solution is treatment if it works, and confinement if it doesn’t. We propose that individuals found NGRI be “sentenced” to treatment for the maximum amount of time they would have received had they been found guilty. This treatment could be in a locked ward if needed, or in the community if safe. Treatment would be monitored (much like parole or assisted outpatient treatment). The individual could be moved back and forth between inpatient and outpatient treatment as needed with no further court proceedings necessary. This would keep them safe, save money, and keep communities safer . . . and deliver real justice.
The shooting in Colorado should make us all think about reforms that are needed.