07.30.11

Should He Be Forced to Take Meds?

A fierce court battle is raging over whether Jared Loughner, diagnosed as schizophrenic but not wishing to be medicated, should be restored to mental competency for an Arizona shooting trial—and face execution.

Nearly three months after he allegedly killed six people and injured Rep. Gabrielle Giffords and 12 others during a January shooting rampage in Tucson, Jared Lee Loughner sat in a Tucson courtroom, where his mental competency to stand trial was being evaluated. Gone were the shaved head and leering smile from his mug shot released after the shootings. Now Loughner wouldn’t stand out in a crowd—he’d grown a full head of brown hair, sideburns, and a goatee. He appeared benign.

And then, unexpectedly, he yelled at the judge: “Thank you for the free kill. She died in front of me. Your Cheesiness.”

The 22-year-old unemployed community-college dropout, who had just been diagnosed with schizophrenia, was later deemed mentally incompetent to stand trial. He was whisked back to a federal Bureau of Prisons medical facility in Springfield, Mo. Since then, he’s been at the center of a vicious court battle over whether he should be forced to take psychotropic medicines.

In the past few weeks, courts have ordered Loughner, who does not want to be medicated, to be put on meds, then taken off meds, then put on meds again, as lawyers prepare for yet another appellate-court hearing in late August over his forced medication.

The intense legal fight between Loughner’s defense team, led by star San Diego lawyer Judy Clarke, and federal prosecutors raises serious medical and ethical questions. Should prosecutors wage a legal war to force Loughner to take medicines that will render him mentally “competent” to stand trial and possibly be sentenced to death? And should Clarke fight for him to live off meds with his paralyzing mental illness indefinitely in order to spare him a trial and keep him alive?

There’s no easy answer, Harvard Law professor Alan Dershowitz tells The Daily Beast, but clearly medications should not be “strategically advantageous,” either to prosecutors or to defense attorneys.

And although there’s a pressing need for the medical and legal professions to figure out how to “disincentivize” the use of medicine as a legal strategy, no one is doing much to fix the problem, notes Dershowitz. Some defendants can be so drugged up by psychotropic meds, he adds, that they exhibit a flat affect in the courtroom, persuading the jury to convict because the accused shows “no remorse.”

The purpose of medicating defendants, Dershowitz repeats, is to “heal, not give legal advantages.”

The purpose of medicating defendants, Dershowitz repeats, is to “heal, not give legal advantages.”

Prosecutors for the Loughner case declined to be interviewed for this story; Clarke did not return a phone call seeking comment.

Loughner was first forced to take Risperidone, a psychotropic drug used to treat schizophrenics, in mid-June, after he’d spent nearly six months in custody without medications.

In court records, prosecutors say it was necessary to give him Risperidone because he threw chairs, spat, swore, tried to disarm a video camera with a roll of wet toilet paper, and barricaded himself behind his bed to avoid a mental-health hearing.

Killer Smiles
Photos: The Happy Faces of Evil ()

Clarke, who is known for her compassion for her mentally ill clients as much as for her legal skills, in court records says other inmates have exhibited more bizarre behavior, such as hurling feces and urine at their jailers, without being forcibly medicated. Yet Loughner, who did neither, was considered a “danger to himself and others,” she says.

The defense attorney called the prosecutors’ “dangerousness” excuse an “end run”—prosecutors with a keen interest in restoring Loughner’s mental competency managed to get him on just the right meds without a so-called Wells hearing mandated by the Supreme Court. In such a hearing, forcible medication of a defendant is ordered only after a judge carefully weighs the prisoner’s constitutional rights against the government’s right to take a defendant to trial.

So far, though, the courts have mostly sided with prosecutors, who cited a different Supreme Court case that allows forced medication of prison inmates without judicial review if they are a danger to themselves or others.

Clarke had a brief victory when Loughner was taken off Risperidone by court order in early July.

But an appellate panel ordered him back on the drug after prison officials reported that he had deteriorated without the Risperidone. Prison officials said Loughner exhibited disturbing behavior that included constant weeping, feeling hopeless, expressing regret for the “circumstance that led to his arrest,” pacing so much he injured his ankle, “keeping his hands in his underwear and touching himself sexually,” and asking for a lethal injection.

Steve Pitt, a forensic psychiatrist based in Scottsdale, Ariz., says “starting and abruptly stopping” a psychotropic medication like Risperidone is generally “ill advised.”

In the Loughner case, he says, “when you have someone who is reportedly showing signs of clinical improvement while on medication and then deteriorates when off the medication, you don’t need to be a psychiatrist to know that he has benefited from the medication and needs to resume taking it.”

For doctors “to stand by and not do anything” as a patient “destabilizes” in a “clinical emergency,” says Richard J. Bonnie, the director of the Institute of Law, Psychiatry, & Public Policy at the University of Virginia, would be unethical. Bonnie, who opposes the death penalty in most cases, says it is entirely ethical for the prosecution to seek to restore a mentally ill defendant competent to stand trial. He also says a defense lawyer representing a seriously mentally ill patient often must work hard to establish trust, and establishing trust could include advocating for the client’s wish not to take medications.

Elizabeth Kelley, a Cleveland defense attorney who chairs a mental-health committee for the National Association of Criminal Defense Lawyers—of which Judy Clarke is a past president—says medicating someone against his will is not often appropriate. She calls forced medication of Loughner a “perversity” and a “way to perhaps execute him.”

Kelley doesn’t fault Clarke for asking the court to take away Loughner’s meds, because he never wanted to be medicated in the first place. And she wonders whether Loughner, whom she calls “profoundly mentally ill,” could ever truly be “restored” to competency to stand trial.

The only one who hasn’t weighed in on the matter, beyond expressing a wish not to be medicated, is Loughner himself, who sits in a Missouri prison cell. He’s on Risperidone now, but he may not be taking the drug for long. Clarke is preparing for an Aug. 31 Ninth Circuit Court of Appeals hearing on his forced medication. “She has a huge up-road battle,” says former federal prosecutor Kurt Altman, who has successfully prosecuted a federal death-penalty case.

“Her job,” he says, “is to keep Loughner off death row.”