Who Is Responsible For An Act of Insanity?

Welcome to Politics Bites, where every afternoon at It's a Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on The Brian Lehrer Show, Dahlia Lithwick, senior editor at Slate, addresses the discussion around the Tucson shooter's mental health and the politics of the insanity defense.

As soon as Jared Loughner's picture went up on the internet, showing him smiling with a shaved head, the majority of the online commenting populace declared him crazy. Talk show hosts and ordinary citizens claimed he looked like a psycho and stamped him a loony toon. 

It's a fun game to play psychiatrist, but it's dangerous. You're going down a treacherous road when you start calling people "mentally ill" on the basis of how they look. Of course, in Jared Loughner's case, people are also diagnosing his behavior. But on the Brian Lehrer Show, Dahlia Lithwick reminded listeners that we actually know nothing concrete about his mental state and are not qualified to determine his sanity from afar.

I think to throw up this mental illness diagnosis on the left or the right as a way of deflecting what may or may not be fair criticism, but is certainly criticism, of the way we talk to each other and whether he was incited to violence, I just think is replacing one sin, the sin of laying blame, with the sin of armchair diagnosis.

Lithwick said we can't ignore the fact that the entire notion and use of the insanity defense has become entirely politicized, especially since the 1982 acquittal of John Hinckley Jr. who attempted to assassinate President Reagan. Conservatives claimed the insanity defense was a trick, and in the subsequent uproar, the Insanity Defense Reform Act of 1984 was passed, which made it much more difficult to win cases with the plea not guilty because of insanity. 

The insanity defense has been a political football for as long as murder has been a political football. In other words we have crafted the jurisprudence of the insanity defense to follow political feelings about the insanity defense. It's not a medical or psychiatric defense. It's a completely political animal.

There's a prevailing idea that most people using the defense get off—but that's not actually the case. It only has about a 26 percent success rate. The first famous use of the insanity defense was in the 19th century, by Daniel McNaughton, an Englishman who shot and killed the secretary of the British Prime Minister. The crucial question in the "McNaughton test" is whether or not the defendant knew what he or she did was wrong—and Lithwick says that's the test we still use today.

Whether the agent is conscious of wrongdoing, the question of who to blame is tied to the question of responsibility. In certain circles (most of talk radio) it all comes down to personal responsibility. In others, (President Obama's), we are all—the state, the society—partially responsible. Lithwick believes this tragedy is a moment for us to have a national conversation about mental health care.

There needs to be a much more sophisticated conversation about the real difference between the legal system and the moral system and right and wrong, and the mental health system just doesn't dovetail with that.

She says a staggering statistic is that 50 percent of the mental health recipients in Gabby Giffords' county were dropped from the rolls. Not only is it difficult for doctors to determine when someone will become violent, in America, it's also almost impossible to force the mentally ill to get treatment.

 It's not just that we don't have adequate mental health care in this country. We don't even know who's responsible for getting someone to acquire mental health care. We don't even have the vocabulary to talk about it.

And that makes Lithwick wonder if the same political pundits who claim Loughner's action is completely separate from the violent political rhetoric will defend Loughner or condemn him in court?