Constitutional Law

Thoughts on the Tucson shooting

From all accounts, the shooter appears to be schizophrenic, probably paranoid schiz, and was giving significant signs of being dangerous long before the shooting. Fellow students and teachers were fearful enough to where the college suspended him unless he could provide a psychiatric evaluation showing he wasn't dangerous, and they sent campus police to make sure he got the message. But nobody seems to have given a thought to getting the guy committed for treatment -- perhaps because doing so would have been so burdensome that running the risk of his going violent was the easier course.

Our present system for commitment is the result of the movement to deinstitutionalize the mentally ill, which hit its peak in the early 1970s. I recall an issue of the Arizona Law Review back then on the subject. Back then, there were few limits on committing a person beyond the fact that they had some mental disorder, and there was little in the way of medication. Of course being locked up in a sort of barracks with dozens of other screaming lunatics didn't do much to improve mental health. The end result was that a lot of people who were disordered but harmless wound up being warehoused for the rest of their lives. Of course, books and movies such as One Flew Over the Cuckoo's Nest, in which the protagonist (not insane) winds up under a tyrannical nurse, is tortured by electroshock treatments, and turned into a lobotomized zombie, popularized the concerns.

Can't help but wonder if the pendulum swung too far the other way, The present Arizona standard is that the person must be a danger to self or others, or utterly incapable of caring for themselves. A county attorney once told me of a mental case who would walk down the street "keying" cars. Someday she was going to get beaten up over it, but it was impossible to show sufficient danger to self or others, and arresting her was useless because she was solidly within the criminal law's standard for not guilty by reason of insanity.

I was just looking over the Arizona statutory system... very complex, designed to make it very difficult. A person must apply to have someone committed, and it must be based on their own observations, not hearsay; then a peace officer can be requested to take them in. The officer cannot act on his own unless he does so on personal observations and it is an emergency. Then there are procedures to get a court hearing; if an application isn't filed within 24 hours, the person must be released. He may not be treated during this time without his consent. He must be informed of the right to an court-appointed attorney. If the court allows him to be held for evaluation, it cannot exceed 72 hours.

At the subsequent hearing, doctors must testify based on their own observations (again, no hearsay, altho experts are generally allowed to use such), two doctors must attest to dangerousness. What they must address is spelled out: "Such testimony shall state specifically the nature and extent of the danger to self or to others, the persistent or acute disability or the grave disability. If the patient is gravely disabled, the physicians shall testify concerning the need for guardianship or conservatorship, or both, and whether or not the need is for immediate appointment. Other persons who have participated in the evaluation of the patient or, if further treatment was requested by a mental health treatment agency, persons of that agency who are directly involved in the care of the patient shall testify at the request of the court or of the patient's attorney. "

The court's decisionmaking is likewise dictated. Among many other requirements:

"B. The court shall consider all available and appropriate alternatives for the treatment and care of the patient. The court shall order the least restrictive treatment alternative available.
C. The court may order the proposed patient to undergo outpatient or combined inpatient and outpatient treatment pursuant to subsection A, paragraph 1 or 2 of this section if the court:
1. Determines that all of the following apply:
(a) The patient does not require continuous inpatient hospitalization.
(b) The patient will be more appropriately treated in an outpatient treatment program or in a combined inpatient and outpatient treatment program.
(c) The patient will follow a prescribed outpatient treatment plan.
(d) The patient will not likely become dangerous or suffer more serious physical harm or serious illness or further deterioration if the patient follows a prescribed outpatient treatment plan."

My gut feeling is that all this procedure, and heavy stacking of the deck against commitment, may be outmoded in an era when physicians are not reflexively inclined toward commitment, when the standard is dangerousness, and when real treatment is often possible. Clayton Cramer blogs a lot on this issue. Here's one of his recent posts; he's even working on a book on the subject.

Full post as published by Of Arms and the Law on January 13, 2011 (boomark / email).