What Is the Insanity Defense?

In the wake of the tragic mass shooting in Tucson, Arizona, speculation is growing that the accused shooter, Jared Lee Loughner, will invoke the insanity defense. Find out why this defense rarely works.

Adam Freedman
3-minute read

Today’s topic: The Tucson shooting and the insanity defense. 

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Can Jared Lee Loughner Plead Insanity?

There’s been a lot of discussion in the media about the insanity defense since January 8, 2011, when a young man named Jared Lee Loughner allegedly shot and killed 6 people, and wounded 14 others, including a US Congressman, outside a Safeway store in Tucson, Arizona.  Because of Loughner’s reported mental instability, speculation is growing that he will try to mount an insanity defense.  As I’ll explain in a minute, Loughner may well invoke the insanity defense, but it will be very difficult for him to prevail at trial.

What is the Insanity Defense?

As I explained in an earlier article, criminal law generally requires prosecutors to prove not only the physical act of a crime, but also a mental element (technically known as “mens rea”), meaning that the defendant committed the crime intentionally. 

When it comes to murder, the mental element--known by the somewhat archaic phrase “malice aforethought”--consists of an intent to kill, or an intent to do something that was substantially certain to result in death.  In some states, there may be other mental states that qualify as murder, such as “extreme indifference” to human life.

The insanity defense is essentially an attempt to prove that the defendant was incapable of forming the intention required for criminal guilt.   If a defendant can establish this defense, the verdict is “Not Guilty by Reason of Insanity.”  This does not mean that the defendant can go free--the usual consequence of such a verdict is incarceration in a government mental hospital.

Insanity May be Loughner’s Best Strategy

Loughner has been charged in federal court with the murder and attempted murder of the federal employees involved.  Arizona state officials are also expected to file charges soon with respect to the non-federal employees.  Based on the criminal complaint filed in federal court, and various press reports, the case against Loughner appears overwhelming.  Various analysts have stated that the insanity defense may be Loughner’s best hope to avoid the death penalty or prison.


About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).

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