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The Loughner Decision

As Kent mentioned yesterday, a divided panel for the Ninth Circuit has upheld the involuntary medication of accused Tucson shooter Jared Loughner. The decision is long and traverses the mess that is our present-day involuntary medication doctrine.  But after my initial reading I'm reminded of this insight:

The issue is not whether psychiatrists should medicate people who are obviously psychotic and dangerous-- you don't need an APA amicus curiae brief for that.  The issue is whether you want to force all prison psychiatrists to be responsible for the "treatment" of every violent person out there, simply because they are "dangerous." 

The APA has always wanted the answer to be yes.  And here, again, they do not understand the consequences of this.  I can thus say, according to the strictest definition of the term, that the APA is completely insane.

There is, of course, much more to it than that - the opinion raises a number of issues related to standard of review, whether an administrative hearing is sufficient or judicial review is necessary, who's interests should form the standard, and whether Sell v. United States, 539 U.S. 166 (2003) eviscerates Washington v. Harper, 494 U.S. 210 (1990) once a defendant is committed for determination and restoration of competency to stand trial. 

I'm still thinking about the case but wanted to highlight two areas with some (very) initial thoughts. 

First, it may be the case that Harper's penological interest standard is more accommodating to the government's interest than the medically appropriate standard offered in Riggins v. Nevada, 504 U.S. 127 (1992), but they are not contrary.  For someone like Loughner, the overwhelming medical and scientific evidence strongly suggests pharmacological treatment is not only appropriate but necessary and vital.  For people with schizophrenia, psychiatric medication is indispensable whether they are dangerous or not.   

Second, Harper's dangerousness criterion is vague but is also necessary.  It is vague because saying someone is dangerous always begs the question of determinacies: for how long and under what conditions will someone be dangerous?  We often do not know the answer to this question but prison officials do need swift ways of handling dangerous and mentally ill inmates.

I hope to have more thoughts in the coming days.  

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