Jared Lee Loughner's shooting rampage in Tucson in January 2011 killed six people, including a federal judge, and wounded 13 others, among them Congresswoman Gabrielle Giffords. Two months later, a federal grand jury indicted Mr. Loughner on charges of attempted assassination of a member of Congress, murder of a federal judge, murder and attempted murder of federal employees, various weapons offenses, and injuring and causing death to participants at a federally sponsored activity (1). Immediately, Loughner began a legal odyssey that has raised serious questions about current rules for dealing with criminal defendants who are mentally ill and incompetent to stand trial.

Shortly after the indictment was handed down, the government, having recognized that Loughner was suffering from a serious mental disorder, requested that the federal district court order an evaluation of his competence to stand trial. The standard for competence in the federal courts, established in 1960 by the U.S. Supreme Court in Dusky v. United States, presumes that a defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and a “rational as well as factual understanding of the proceedings against him” (2). Evaluations of competence to stand trial are the most common forensic assessment for the criminal courts, and in complex or high-profile cases they are typically performed in an inpatient facility.

Thus Loughner was sent for evaluation to the U.S. Medical Center for Federal Prisoners in Springfield, Missouri, where both staff and an independent psychiatrist concluded that he met criteria for schizophrenia and was incompetent to stand trial. Five weeks after his arrival in Springfield, he was returned to Tucson. At a court hearing, Loughner's inability to proceed to trial was confirmed by the judge in charge of the case, who reportedly had watched hours of videotape chronicling Loughner's bizarre behavior (3). Loughner was recommitted to the Springfield facility for treatment to restore his competence.

Back at Springfield, Loughner consistently refused to take antipsychotic medications. Whether he reached that decision on his own or upon the advice of legal counsel is not clear. In cases in which prosecutors may seek the death penalty, defense attorneys will often pursue any strategy likely to prevent their clients from going to trial, even if that means keeping them locked in a psychotic state. Without medications, Loughner became threatening to those around him. As reported at a later hearing, he “had become enraged while being interviewed and yelled obscenities; had thrown objects, including plastic chairs and toilet paper; and had spat on his attorney, lunged at her, and had to be restrained by staff” (4). The treatment staff, therefore, considered whether it might be possible to treat Loughner against his will to prevent him from injuring people.

Current rules governing psychiatric treatment of federal defendants over their objections are controlled by the 2003 U.S. Supreme Court decision in Sell v. United States (5). In an opinion written by Justice Breyer, the court found that the government's interest in bringing incompetent defendants to trial was sufficient to override their refusal of treatment. However, the opinion hedged that finding with a number of conditions. The defendant had to be accused of a serious offense and face substantial prison time; medication had to be necessary to render the defendant competent and likely to be effective in doing so; and the treatment had to be in the person's medical best interests. Perhaps most odd, the decision in Sell required the government to seek an alternative means of imposing involuntary treatment if one is available. That could include treating the defendant under procedures established for involuntary medication of dangerous prisoners or even pursuing a civil finding of incompetence to make treatment decisions that would result in appointment of a guardian for the purpose of deciding on treatment.

In Loughner's case, the defendant's threatening behavior appeared to open the door to treatment on the grounds of dangerousness to others. But before they could treat him, staff of the Springfield facility needed to conform to yet another U.S. Supreme Court decision, Washington v. Harper (6). In that case, the court had upheld Washington State's approach to treating dangerous prisoners with mental illness who were unwilling to take medication. Such prisoners, the court found, were entitled to a hearing by a neutral decision maker (who did not have to be a judge), the chance to present objections, and the assistance of an advocate (who could be an employee of the facility and who need not be an attorney) (7).

At Springfield, a psychiatrist who was not otherwise involved with Loughner's treatment conducted a Harper-type hearing that, because of Loughner's condition, took place in his cell. Refusing to participate, Loughner barricaded himself behind his bed, claimed he was not an American citizen, and said he would “plead the Fifth.” The psychiatrist found that he was dangerous, in need of treatment, and not likely to respond to measures that were less intrusive than medication. On that basis, involuntary medication was authorized, and treatment was begun. However, consistent with an apparent strategy of creating roadblocks to a trial, Loughner's attorneys sought a preliminary injunction blocking his treatment. When the federal district court turned them down, they went to the Ninth Circuit Court of Appeals, which granted a stay of treatment pending a full-fledged hearing on the issue (8).

Loughner's attorneys argued before the Ninth Circuit that a pretrial detainee—even if dangerous—should not be medicated under the procedure established by Harper, which dealt with a convicted prisoner, but must be governed by the rules laid down in Sell. They claimed that because treatment for dangerousness could render the defendant competent to stand trial, the stricter procedures and criteria embodied in Sell should apply. In practical terms, were that argument to be accepted, a court hearing would replace a facility's internal review and a defendant would be represented by an attorney rather than by a lay advocate. Moreover, the standard to be applied would go beyond whether a person is dangerous and likely to be helped by the medication; a court would have to consider the additional criteria in Sell, including whether treatment might have an adverse impact on the defendant's ability to participate at trial, for example, as a result of sedation.

What might seem to be an arcane argument over the legal precedents that apply in these cases actually has significant implications for the treatment of pretrial detainees. If Sell is the operative precedent, even dangerous defendants would have to await space on a court docket before they could receive treatment, except short-term treatment in true emergencies. Detainees would need to be transported to court for hearings, accompanied by facility staff and by the mental health professionals expected to testify. This would constitute a particular burden in the federal system, where, as in Loughner's case, the court in which a hearing takes place may be more than a thousand miles from the facility where the defendant is detained. In addition, the rigor of the Sell criteria might result in situations in which demonstrably dangerous defendants could not be treated because medication would be unlikely to restore their competence to stand trial or for some other reason.

Perhaps even more important for the question of whether the process in Harper or in Sell should be followed is the likelihood that little would be gained by transferring the treatment decision from a psychiatrist to a judge. Indeed, the Supreme Court relied on precisely this rationale in Harper when it held that a judicial decision maker was not required to review requests to treat dangerous prisoners. The court wrote, “We do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing.… Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real.” In other words, turning to judges to make inherently medical decisions is not likely to offer defendants greater protection and might have exactly the opposite result.

Once medication was withdrawn by order of the Ninth Circuit, Loughner deteriorated rapidly, necessitating emergency treatment by the medical staff at Springfield, who believed that he may have become suicidal. Again, his attorneys went to the Ninth Circuit to block use of medication, but this time, perhaps having perceived the dangers of remote, lay decision making about medical issues, the judges declined to intervene. Eight months later, a three-judge panel of the Ninth Circuit ruled two to one that Harper's nonjudicial procedure, as reflected in the Federal Bureau of Prisons regulations, should apply to dangerous defendants, even if there is some possibility that treating dangerousness will restore trial competence (4). A majority of the panel agreed that resort to a nonjudicial procedure to determine dangerousness seemed to comport with the clear implication of Sell—an insistence to first pursue alternative justifications for treatment and to rely on the government's interest in bringing a defendant to trial only as a last resort. As of now, Loughner's attorneys, continuing to seek to delay a trial, have filed a petition with the Ninth Circuit for rehearing en banc by a panel of 11 circuit judges (9). Should that be denied, a petition for review by the U.S. Supreme Court may be forthcoming.

The Supreme Court in Sell insisted that a facility consider dangerousness as a basis for treatment before seeking authority to treat to restore competence to stand trial. But why? Why not, as Loughner's attorneys argued, simply require that all pretrial detainees undergo a judicial hearing and be evaluated under the Sell criteria? In the majority opinion, Justice Breyer explained the rationale this way: “For one thing, the inquiry into whether medication is permissible, say, to render an individual nondangerous is usually more ‘objective and manageable’ than the inquiry into whether medication is permissible to render a defendant competent.” However, that contention seems dubious. Whether a detainee is likely to harm other people and medication will reduce that risk seems no easier to determine than whether he is competent to stand trial and, if not, will be rendered competent with medication. Psychiatrists make both sets of judgments routinely; contrary to the court's suggestion, extensive literature on the inaccuracies in predicting dangerousness indicates that it may be the more difficult of the two determinations—indeed, the litigation to date in Loughner seems to prove that point.

Some months after the opinion in Sell was issued, I had the unusual opportunity to ask Justice Breyer directly about this puzzling aspect of the decision, and I seized the chance. His response was surprising. He believed that the criminal court judges who would conduct the hearings on treatment for the purpose of restoring competence were largely unfamiliar with issues related to treatment of mental illness. Thus, he believed, whenever possible the determinations should be kept out of their hands. Under Harper, treatment for dangerousness would be handled by a nonjudicial decision maker at the facility; should determinations of incompetence to consent to treatment be pursued, they would be adjudicated in probate and other specialized courts accustomed to ruling on these issues. From Justice Breyer's perspective, either was preferable to a hearing in criminal court applying the criteria in Sell—criteria that he and his colleagues in the majority had formulated.

Thus a concern about judicial competence to deal with issues related to medication—albeit unstated in the opinion—was precisely the reason that the Supreme Court in Sell created the current process. Ironically, Loughner's attorneys make exactly the opposite argument when they claim that a judicial hearing is essential to protect their client's rights. As awkward as it might have been for the justices to raise questions about the abilities of their colleagues in the lower courts, they might have saved others a great deal of time and effort by more clearly explaining the rationale for their opinion. Perhaps the tortuous, complex, and by no means completed litigation in U.S. v. Loughner might remind the Supreme Court of the importance of laying out the reasons for the approach they choose to take.

The author reports no competing interests.