It’s the next logical question. After the rush to judgment about Jared Loughner’s mental health and the apparent inability of his community college or anyone else to compel him to receive counseling (Pima Community College told The New York Times it had suspended Loughner and said he would have to see a mental-health professional before he could return), psychiatrists are being barraged with inquiries about what could have been done to prevent the Tucson murders. Chief among the questions: couldn’t this guy have been locked up before he tried to kill someone?
According to forensic psychiatrists, the answer is “not easily.” But in an ironic twist, Arizona makes it easier than any other state to do so.
Ever since the 1960s it has become more and more difficult to get courts to sign off on involuntary civil commitments, as confining mentally ill people against their will is called. That reflects several forces, says Dr. Paul Appelbaum, professor of psychiatry, medicine, and law at Columbia University College of Physicians & Surgeons. Psychiatry found that patients actually did better if they were treated in the community, often as outpatients, rather than being shipped to a far-off mental hospital. In addition, establishments of all kinds were under attack 50 years ago, and psychiatry was no exception—especially with books such as 1961’s The Myth of Mental Illness gaining popularity. Finally, mental hospitals were taking a huge chunk out of state budgets, and with the emerging emphasis on the rights of groups perceived as marginalized (which included the mentally ill) there was an irresistible impetus to stop throwing people into mental hospitals against their will.
Led by California, every state eventually adopted a three-pronged test for involuntary commitment, at least one standard of which had to be met. One, the person had to pose a danger to others, meaning that as a result of the mental disorder “the person’s continued behavior can reasonably be expected, on the basis of competent medical opinion, to result in serious physical harm” to others, as Arizona’s law puts it. Alternatively, the person had to pose a “danger to self.” Finally, he or she could be “gravely disabled”—the category for people who are “likely to come to serious physical harm or serious illness because the person is unable to provide for the person’s own basic physical needs.” These are the people who stand outside in freezing weather without a coat.
Arizona is unique in having a fourth way to commit someone: if he or she is “persistently or acutely disabled.” That means—again, in the words of the statute—that without treatment there is “a substantial probability” that the person will “suffer severe and abnormal mental, emotional or physical harm that significantly impairs judgment, reason, behavior or capacity to recognize reality,” that the mental illness “substantially impairs the person’s capacity to make an informed decision regarding treatment,” and that there is “a reasonable prospect of being treatable by outpatient, inpatient or combined inpatient and outpatient treatment.” All three criteria must be met.
“ ‘Persistently or acutely disabled’ has been used to civilly commit folks in Arizona, albeit rarely,” says forensic psychiatrist Steven Pitt, a clinical associate professor of psychiatry at the University of Arizona College of Medicine and a consultant to the Phoenix Police Department.
The fact that Arizona, of all states, allows this fourth avenue to involuntary commitment is odd on several fronts, says Columbia’s Appelbaum. “It’s very close to the old [pre-1960s] ‘needs treatment’ standard, which is very strange in a very strong individual-rights state.”
To demonstrate that someone meets any of these three (or, in Arizona, four) criteria requires at minimum “clear and convincing evidence.” Some states—Arizona not among them—go further, requiring evidence “beyond a reasonable doubt.” That evidence can come from experts, from laypeople, or from the target’s writings (or, these days, from his YouTube rantings). Some states—again, not Arizona—also have an “overt acts” requirement: the person must have done something, such as mail a clearly threatening letter.
But while Arizona makes it easier than any other state to forcibly commit a mentally ill person, experts are highly skeptical that Loughner would have qualified. “Bizarre behavior isn’t enough,” says Appelbaum. “Lots of people exhibit bizarre behavior and never harm a fly.” Loughner’s reported penchant for laughing inappropriately in class, keeping his head down when neighbors greeted him on the street, wearing a hoodie in summer, making incoherent comments in class, laughing to himself, going on antigovernment rants about U.S. currency—as The Daily Beast reported—almost certainly would not have sufficed. “The students even said they were afraid that he’d bring a gun to class,” adds Appelbaum. “But in a gun-friendly state like Arizona, that wouldn’t have been nearly enough.”
After a horror like the Tucson massacre, hindsight bias leads acquaintances to recall all sorts of warning signs, says Pitt. “But I promise you that’s only a fraction of the behavioral information that will come out” about Loughner, he says. “Do I think it’s more likely than not that this was a troubled individual? Absolutely. But whether he should have been involuntarily committed, we just don’t know.” “Should have” and “would have” are two very different beasts, however, and even in Arizona—where it’s easier to do so than in any other state—it’s unlikely that courts would have committed Loughner.
And given the state of mental-health care in the country, it is unlikely Loughner would have stayed behind locked doors for long. Typically, hospitals and other facilities stabilize a patient, give him medications, watch him for a couple of days and, if he seems functional and non-delusional, send him on his way. According to several psychotherapists interviewed at the annual meeting of the American Psychoanalytic Assocation in New York, Loughner—who was functional enough a few months ago to fill out court papers expunging an old arrest record and to buy a Glock—would likely have been out in no more than two days.