Changing Madness to Badness
| Author | Gary Slapper |
| Published date | 01 October 2011 |
| Date | 01 October 2011 |
| DOI | http://doi.org/10.1350/jcla.2011.75.5.719 |
| Subject Matter | Opinion |
OPINION
Changing Madness to Badness
Gary Slapper*
Professor of Law, and Director of the School of Law, at the Open University,
door tenant at 36 Bedford Row
Should a mad defendant be forced to take medication to make him sane
so that he can be prosecuted and possibly executed for being bad?
This question is raised in the USA by the case of Jared Lee Loughner.
He is being prosecuted for crimes arising from the horrific shootings in
Tuscon, Arizona on 8 January 2011 when six people were killed includ-
ing John Roll, the chief federal judge for Arizona, and 13 were injured
including the politician Gabrielle Giffords.
Shortly after his arrest, Loughner was diagnosed with severe schizo-
phrenia and declared unfit to stand trial.
A Supreme Court decision in 1960 requires that, to be put on trial, an
individual must have ‘sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding’ and must
have ‘a rational as well as factual understanding of the proceedings
against him’.1Doctors who examined Jared Lee Loughner stated that he
had neither of those abilities.
Loughner was sent to a prison hospital. A federal judge recently ruled
that Loughner can be forced to take antipsychotic drugs. The judge
rejected a plea by defence lawyers that the decision by prison doctors to
force medication warranted greater scrutiny.2
In the USA, the law concerning the circumstances in which the state
can force a defendant to take medication are covered in the Supreme
Court’s decision in Sell v United States.3
The case concerned Charles Thomas Sell, a St Louis dentist who had
a long history of a delusional disorder but no prior history of criminal
behaviour. He was charged with various serious crimes including mail
fraud, six counts of medical insurance fraud, and one count of money-
laundering. He fought legally to resist being forcibly medicated with
antipsychotic drugs.
The Supreme Court ruled that under the framework of two earlier
cases,4the constitution permits the government:
. . . involuntarily to administer antipsychotic drugs to render a mentally ill
defendant competent to stand trial on serious criminal charges if the
treatment is medically appropriate, is substantially unlikely to have side
* The views expressed in this article are those of the author and do not necessarily
reflect the views of The Open University, 36 Bedford Row, or The Journal of Criminal
Law.
1Dusky vUnited States 362 US 402 (1960) at 403.
2 Marty Graham, ‘Judge rules prison can forcibly medicate Loughner’, Reuters, 30
June 2011.
3 539 US 166 (2003).
4Washington vHarper 494 US 210 (1990) and Riggins vNevada 504 US 127 (1992).
337The Journal of Criminal Law (2011) 75 JCL 337–340
doi:10.1350/jcla.2011.75.5.719
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