Commentary: When standards of justice clash with compassion for mentally ill

The Kansas City StarJuly 18, 2011 

However mesmerized we may be by television's neatly packaged but predictable crime dramas, the ones that play out in real life are so much more intriguing.

Few crimes have stirred so much debate on a number of social and legal questions as the murderous rampage of Jared Lee Loughner. His gun attack at a political gathering in Tucson, Ariz., in January left six dead and 14 others wounded, including the amazingly resilient Congresswoman Gabrielle Giffords, D-Ariz.

Almost immediately, Loughner's attack prompted a spirited debate about the tenor and tone of political discourse. Or, more accurately, it prompted tedious rounds of blame and name-calling, when in fact the only person who should be held accountable is the gunman himself.

But now it appears possible that Loughner may never face justice due to his mental illness, but even that fact is stirring controversy. The latest quandary pits prosecutorial ethics against medical ethics and our legal system's regard for the rights of the accused.

Loughner has been declared incompetent to stand trial. (This is not the same as the insanity defense.) He has been living at the U.S. Medical Center for federal prisoners in Springfield, Mo., where he was sent so doctors could render him fit for trial, able to assist in his own defense. But Loughner is reportedly being administered anti-psychotic drugs against his will. If he is allowed to refuse the drugs, his illness will not be treated and he will likely remain incompetent to stand trial. A panel of federal judges has ruled that Loughner has the right as an adult to refuse the drugs.

So a permanent stalemate seems likely. No medical treatment for Loughner. No justice for his victims.

The July ruling upholding Loughner's right to refuse medication reasoned, "Because Loughner has not been convicted of a crime, he is presumptively innocent and is therefore entitled to greater constitutional rights than a convicted inmate." And it is those very rights that may keep him from ever being convicted.

Science knows a lot about how to treat people with schizophrenia, which is Loughner's diagnosis. In fact, it would be cruel NOT to treat a person with his affliction. Medical ethics would seem to mandate treatment, yet to do so would expose Loughner to the possibility of a death sentence. So should a doctor bring someone to mental competency, knowing that it could bring them closer to death by the state? As someone who opposes the death penalty, the question gives me pause.

There is also the matter of the side effects that come with many of these drugs. And until the drugs are administered, doctors can't know for sure if they will improve Loughner's condition.

Prosecutors have argued that Loughner's condition must be treated because it presents a danger to others (he spat at his attorney and threw a chair), but his defense team charges that this argument is a ploy to get him in a psychological state in which he's fit to stand trial.

The U.S. Supreme Court has ruled on such matters before. Prosecutors must meet high standards if they wish to force medication on a non-dangerous person solely for the purpose of getting them fit for trial.

Loughner is charged with 49 felonies, and the many families of the dead and wounded deserve justice. Yet there aren't any easy answers.

It bears stressing that the vast majority of mentally ill people are not violent. Loughner is an anomaly in that regard. His predicament now is far more representative of mentally ill people who reach adulthood without proper diagnosis and care. In fact, one of the cruelest aspects of some forms of mental illness is that it seems to manifest fully when people are of legal age to refuse help.

That's devastating for families left unable to insist on help for their sick loved ones. And, as the Loughner case illustrates, it can frustrate attempts to seek justice as well.

ABOUT THE WRITER

Mary Sanchez is an opinion-page columnist for The Kansas City Star. Readers may write to her at: Kansas City Star, 1729 Grand Blvd., Kansas City, Mo. 64108-1413, or via e-mail at msanchez@kcstar.com.

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