Your Constitutional right to be crazy

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
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.


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