I know enough to know what I don't know, and then I turn to the experts. Prof. Mark Heyrman has taught at The University of Chicago Law School's Edwin F. Mandel Legal Aid Clinic since 1978, where he supervises students in litigation and legislative advocacy on behalf of persons with mental illness, and teaches a course on Law and the Mental Health System. Among his accomplishments is that in the late 1980s he served as executive director of the Governor's Commission to Revise the Mental Health Code of Illinois, with dozens of his proposals becoming law.
I interviewed him by email today.
Q: From the news reports so far, it sounds like some of Jared Loughner's professors were sufficiently concerned with his mental health that he was required to seek a "mental health clearance" in order to return from school post-suspension. He refused. From that point, what else could those concerned about Loughner have done, and what were his corresponding rights?
Heyrman: This is somewhat complicated but I will try. I must give you a caveat that mental health law is primarily created at the state level and there is substantial variation among the 50 states. I am not an expert in Arizona law. But here is what is generally true in all 50 states:
Any adult (there are special rules for children) can be involuntarily committed if s/he meets the commitment standard. These standards vary among the states. There is an ongoing and vigorous debate about what standard should be used for commitment. Most states uses something like the following:
- Due to mental illness the respondent is reasonably expected to inflict serious physical harm on her/himself or another in the near future or is unable to care for her/his basic physical needs so as to guard her/himself from serious harm.
- The debate often centers on how imminent the harm must be and what evidence, if any, of past dangerous behavior exists. Almost everyone agrees (at least in principle) that commitment should be about preventing future harm rather than simply responding to past behavior. The problem is that is much easier to predict future behavior from a record of past behavior—so we often wait (perhaps too long) before we intervene the very first time.
- Some states allow commitments based upon non-physical harms—this could include harm to property or emotional or financial harms.
- There has been a move to allow outpatient commitment—commitment to treatment in the community rather than a hospital—often under a lower standard. I don’t know whether this option is available in Arizona.
Any adult may initiate the commitment of another adult by filing a petition alleging that s/he meet the commitment criteria. In most states, this petition will be heard ex parte and if the judge is satisfied as to the factual basis, the respondent can be detained (briefly) for an examination. If the examiner supports the need for hospitalization, the respondent can be confined for several days pending a full hearing in front of a judge (or, in some state, a jury). The respondent gets a lawyer in this hearing and in some states may get an independent expert. Proof by clear and convincing evidence is required.
Although the use of involuntary commitment is the subject of a great deal of debate in the mental health community, the real problem is a lack of resources. Experienced community mental health providers are often able to reach out to even very troubled persons and engage them in treatment without the use of the legal system or any coercion. The reason they don’t do this is that funding is lacking.
Two of the most serious mental illnesses (schizophrenia and bi-polar affective disorder) typically develop between ages 18 and 28. Colleges usually lack the resources to cope with these illnesses. Residential schools (think The University of Chicago) often respond by (a) providing some help; (b) suspending the student; (c) sending her/him home to parents with a recommendation for treatment; and (d) requiring a mental health evaluation as a condition of re-admittance. Community colleges are much less likely to think of themselves as having an on-going relationship with their students since, even with non-mentally ill students, enrollment is often sporadic due to financial and work demands on the student.
In my perfect world, when a student was suspended from school for mental health reason, the college would be required to link the student to mental health services or at least an evaluation by a community mental health provider. That, of course, would require the state to make services available to those who were unable to pay.
Q: So when we see articles that note that Arizona cut its budget for mental health services by $36 million last year (37% of the total budget), that matters. Is the test different based on whether it's a parent versus a school administrator who's seeking to have the individual evaluated and/or committed?
Heyrman: 1) It matters A LOT! You are going to see more people with untreated mental illnesses across the country as states deal with the financial crisis. Some will be homeless, some will get arrested, some will commit/attempt suicide, some will suffer in silence (or burden their relatives) and some will end up in hospital emergency rooms. Almost every state is facing this problem.
And 2) The standard for commitment is the same no matter who brings a petition. However, in most states, it is easier to INITIATE a commitment if your commitment petition is accompanied by a certificate from a mental health professional.
So if a student went to the student health office and was seen by a psychiatrist/psychologist/social worker who was willing to sign such a certificate, that would make it easier to get a judge to order detention and evaluation preliminary to a commitment. The state would still have to meet the same standard at the commitment hearing and if the pre-trial evaluation was negative the student would be released without a commitment hearing.
Q: At this point, of course, we have no idea whether Loughner has a mental illness, or what type of defense he might raise to these charges (if any). That said, what are the questions and burdens under federal law in raising such a defense?
Heyrman: After the Hinckley assassination attempt on Reagan and his successful insanity defense, Congress amended the federal insanity defense—returning it to Mc’Naghten—unable to appreciate the criminality of one’s conduct. The defendant must prove this by clear and convincing evidence.
Of course it is stupid to diagnose someone based upon newspaper accounts and particularly stupid if you are a lawyer and not a mental health professional. However, I am willing to bet that Loughner has a serious AXIS I diagnosis—some type of psychotic disorder. My guess would be schizophrenia. I think that it is very sad that he did not get appropriate attention from someone who could help. Even if true, that does not mean he has an insanity defense. 15% of the folks in our prisons have serious mental illnesses. That fact does not mean that they should have been acquitted by reason of insanity.
Q: What else should people keep in mind as this case progresses?
Heyrman: There is likely to be a great deal of silly stuff said in the news media about the insanity defense—if only because it is hard to imagine any other defense. Here are some important facts:
- The defense is rarely asserted (less than 1% of felonies).
- The defense is rarely successful (25 to 30%).
- It is practically impossible to feign insanity for the purpose of winning an acquittal by reason of insanity. That is because judges and juries are skeptical of claims that a defendant was “temporarily insane” (even thought this phrase is nonsensical). As a practical matter, successful insanity defenses usually require substantial evidence of a pre-existing mental condition which is testified to by folks who have credibility due to their independence from the defendant—no reason to want to help the defendant’s claim.
- If the defense is asserted and is successful (about which I am quite skeptical), Mr Loughner will spend the rest of his life in a mental hospital—most likely a special facility for the “criminally insane”.