Civil Commitment: When and Why? A Pained Response to George Savage
When I read George Savage’s moving column on the Tucson shootings, I did not know whether to cry or to scream. The issue that he talks about is simple to describe but it is impossible to solve, or so it seems at the moment.
As a formal matter, the question George asks is this: how do we respond collectively to uncertainty with respect to the future behavior of ominous individuals who as of yet have committed no harm? We have no crystal ball for the future, and thus do not know when the state acts in advance, whether it puts someone under lock and key who in fact will do no harm, or whether its decisive action has saved the lives of many innocent people.
Reading George's account of the situation with Jared Loughner, it is easy to conclude that all the warning signs were there, so that it was a matter of simple public dereliction that he was allowed to remain free. But the nagging question in the case is whether there are thousands like him, troubled and disturbed, who have remained on the streets without causing any harm. We don’t know what the number is, and we don’t know whether a more aggressive system of incarceration would have tapped the people who should be put into custody. Indeed if Loughner had been incarcerated, it would have been hard to tell whether the decision was correct precisely because no harm could take place. So there is a part of me that says George is embarking on a fool’s errand, and that we just have to accept with gritted teeth that in any society with millions of people and millions of opportunities for destructive behavior, we shall not be lucky all the time. Better it is therefore to think about other solutions, none of which work all that well either. Gun control is far from proven. Great surveillance at political events may just lead attackers to shift their focus. It is hard to say.
And yet...In my heart I don’t believe what I just wrote. I can still recall the first time I encountered the issue of civil commitment, and the nervous pit that it left in my stomach. The issue seemed clear enough in favor of the practice when the party subject to commitment had been lawfully incarcerated for an offense that had been committed, only to have served his appointed time. Civil commitment was then sought, and sometimes granted, because prison authorities thought that he still posed a large danger to society. Within that well-constructed universe, there is good reason to credit those findings, for it is not as though we are looking at a random subset of the population.
Unfortunately, we have to dig deeper and take bets with longer odds when the person to be incarcerated does not have a criminal record. I would be comfortable with the conclusion in an individual case that concluded that incarceration was not appropriate if I thought that it resulted from an even-handed judgment of the odds.
But that is not what happened with Jared Loughner. There were warning signs in abundance. The students who protested did so on a prolonged basis. They had chapter and verse about behavior that was too bizarre to be ignored. His college suspended him and told him that he could not return until he had undergone psychiatric testing. Yet nothing coercive was done, even though Loughner’s was not a random case. It was a case where everyone conceded that something bad, real bad, had happened.
So what should have been done? The first point is never—repeat never—let someone who is perceived to be a threat to others determine whether he undertakes treatment and if so of what sort. The coercive power of the state must be introduced. There is no need to leap from preliminary investigation to civil commitment in one easy step. But there is a need first to retain the person for an in depth psychiatric examination and to keep him in custody until that is completed, preferably at all possible speed. It is then critical to obtain a search warrant to inspect his home, his car and his computer to see if they offer, as they did in this case, evidence of a violent streak, especially one targeted to a particular individual.
If evidence of that sort is found, the case should be taken before a magistrate to see if that person should be kept in custody. That hearing should allow him at state expense to hire his own expert to review the evidence and contest the order for incarceration. If, as seems likely with the Loughner case, incarceration is ordered, medical treatment should be provided, but release should be done only on strong proof of a return to a normal condition. There are too many cases on the books of persons with psychiatric disorders who are released only to promptly kill.
These are not criminal procedures, but they are very serious. The blunt truth is once a college or a firm thinks that it has evidence to require treatment, it should take measured coercive steps for the protection of others. And as a society we must not condemn these officials for callous indifference to individual rights, or expose them to tort suits for incarceration at any time. No one likes to incarcerate the innocent. But no sane person could ever be indifferent to the blood and gore that happened Saturday in Tucson Arizona. George Savage is right after all.