Your Constitutional right to be crazy

The man who killed six people and seriously wounded a Congresswoman in Tucson was crazy. But not crazy enough to be locked up.
Theron Bowers | Feb 24 2011 | comment  

Jared Lee Loughner

I will never forget him even though I never met him, never saw his face or knew his name. He wasn’t a relative, a friend, a celebrity or even a patient. But I met his mother. She came to our hospital one morning looking for help. Her drug-addicted son's life was spinning out of control. She tearfully reported that a few days earlier, he had begged her to come to a crack house and pay his debts. Fearing for his life, she went and turned over the money as she stared at a dope dealer’s gun. Her son was not as desperate as she was. Addicts would say that he had not hit rock bottom. A few days later, though, he did hit rock bottom. Hard. He killed his mother and then killed himself.

When I look at the grinning face of Jared Loughner, the Tucson shooter, I see that mother’s desperation and sorrow.

Since the Tucson tragedy frustrated and angry citizens, politicians and pundits have asked: why can’t we prevent this violent lunacy? The controversial and dedicated advocate for those with severe mental illness, Dr E. Fuller Torrey, provided a quick diagnosis -- no beds. In the Wall Street Journal, Torrey claimed that the tragedy was predictable and blamed Arizona's lack of mental health beds for Loughner’s rampage. Dr Torrey used a simple formula to arrive at his diagnosis. He noted that Arizona ranked next to last in psychiatric beds per person. From this factoid, he concluded that this tragedy was “more likely to happen in Arizona because mentally ill individuals are less likely to receive treatment in Arizona.”

Dr Torrey’s formula doesn’t account for the recent rampages in New York and Virginia, both of which rank higher than Arizona in their bed counts. More importantly, Torrey ignores legal barriers to treatment. If Arizona had a gazillion psychiatric beds and an army of white coats, Loughner would have remain untreated because he has a right to be crazy.

Four decades ago the civil rights movement reached those with severe mental illness and busted down the doors of state asylums. The first blast against asylums came from a 1974 Federal Court decision in Wisconsin, Lessard v Schmidt.

Alberta Lessard, who had been involuntarily hospitalized after threatening suicide, filed a class action suit on behalf of adults involuntarily locked away in psychiatric facilities. Lessard won and the Federal Court changed the commitment process and standard for locking someone away. Mental health courts became more like criminal courts. The court decided that mentally ill patients facing hospitalization should have the same rights as a citizen threatened with imprisonment. The court ruled that an individual could only be forced to receive treatments if he were dangerous.

In 1975, the Supreme Court ripped the doors of the asylum off its hinges. In 1956, Kenneth Donaldson went to Florida to visit his elderly parents. Donaldson had been treated for mental illness before in Pennsylvania. After he told his parents that his food was being poisoned, he was granted an extended stay with free room and board in the Sunshine State. For 15 years, Donaldson, a man who had no history of violence, was locked away with men who were criminally insane.

The available treatment was inadequate. His doctor was an obstetrician. He refused treatment and was given none. Every year for 15 years he asked to be released. He was turned down because of concerns that he would fail to adjust to the outside. When he finally was released, he sued the superintendent of the state hospitals, Dr O’Conner. Recognizing the dignity of those with mental illness, in a 9-0 decision, the US Supreme Court ruled that Donaldson had both the right to treatment and the right to refuse treatment. The justices declared that the state could not confine a non-dangerous individual “who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”

In 1979, the Supreme Court ruled in Addington v. Texas that evidence of dangerousness must be “clear and convincing” if someone is to be involuntarily committed.

These little-known court decisions have as much of a visible impact on our community as Brown v Topeka or Roe v Wade. We've all seen mumbling men wearing three coats digging in garbage. The Supreme Court has given us the right to be crazy.

Supporters of these decisions would correctly argue that the courts were only recognizing the liberty and freedom of those with severe mental illness. However, can the insane be truly free? Freedom for Jared Loughner meant "lucid dreaming," solipsism and obsessions with the government, grammar and currency.

Critics of the mental health system like Dr Torrey assume that Loughner could have easily been committed under the laxer Arizona law. Most states allow involuntary hospitalization only for imminent threats of harm or danger. Arizona revised its mental health code in 2002 and added "gravely disabled" as grounds for commitment.

Even under Arizona law, Loughner would have been a tough sale to a judge. Although Loughner was said to be scary, creepy and weird, he apparently made no threats. His infamous genocide video did not contain threats. If accusing someone of genocide were grounds for commitment, our hospitals would be full of politicians.

Prior to his attack, Loughner was not clearly and convincingly dangerous. According to the usual interpretations of grave disability as the inability to obtain food and clothing or shelter, Loughner was not gravely disabled. Loughner was well cared for at his parent’s home.

Tragedies such as Arizona aren’t about our hospital beds but about the tension in Western society between the community and the individual, freedom and chaos, responsibility and rights. In our age of no judgmentalism, homelessness is a lifestyle and crazy talk is not a symptom but free speech. In 1949, Supreme Court Justice Robert Jackson wrote a famous dissenting opinion in in Terminiello v. Chicago:

"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

I think that we need more than a little practical wisdom. Kenneth Donaldson’s 15-year incarceration was bad medicine and bad law. Yet too many people with severe mental illness and addiction, in jails or on the streets, exist in a state of Constitutional anarchy. Are they being sacrificed on the altar of liberty?

Theron Bowers MD is a Texas psychiatrist.

Copyright © Theron Bowers . Published by You may download and print extracts from this article for your own personal and non-commercial use only. Contact us if you wish to discuss republication.

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