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Before Tucson rampage, a powerful law went unused

By Andrew Longstreth

NEW YORK, Jan 13 (Reuters Legal) - As evidence mounts that Jared Lee Loughner exhibited disturbing behavior months before the rampage in Tucson, it's increasingly clear that Arizona authorities could legally have detained him for psychiatric evaluation and treatment -- and potentially have been able to avert the tragedy. But officials in other states might not have had that power, a review of state laws on involuntary commitment suggests.

Arizona has one of the least restrictive laws when it comes to detaining apparently mentally ill people against their will. Under the state's broad involuntary-commitment statute, the government can mandate in-patient treatment for anyone determined to be "persistently or acutely disabled." That could include a broad range of seemingly troubled individuals. By comparison, many other states limit involuntary commitment only to people shown to be a danger to themselves or others, or who are found to be completely unable to take care of themselves.

Under Nevada's involuntary-commitment law, for example, prior to confining someone the state must demonstrate that the person "is mentally ill and, because of that illness, is likely to harm himself or others if allowed his liberty." In Connecticut, someone can be committed only if he or she has "psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled" -- and "gravely disabled" has usually been interpreted to mean that the person is unable on his own to obtain adequate food, shelter and clothing. Under those standards, some mental-health law experts say it might have been hard to make a case for committing Loughner.

"I've never read about him threatening anyone or brandishing a gun," said Jonathan Stanley, a board member of Treatment Advocacy Center, a nonprofit organization that lobbies for the treatment of severe mental illnesses. "He was pretty creepy, and that's not grounds for commitment in the strict states."

ARIZONA GOES FARTHER

Arizona also goes farther than many other states in defining who may initiate involuntary-commitment proceedings. In Arizona, virtually anyone who had suspected that Loughner had mental problems and needed help could have filed an application to a state-licensed healthcare agency for a court-ordered evaluation. Some states require that the application be initiated by someone close to the troubled person, among other discrete categories.

Loughner's behavior had caused serious concern among students and faculty at Pima Community College where he was a student. Police documents released on Wednesday show that some even feared for their safety, according to reports in The New York Times and The Wall Street Journal. A professor requested that a campus-security officer be on guard outside one of Loughner's classes. One student told school officials she was scared Loughner had a knife after he made disturbing comments in a poetry class such as, "why don't we just strap bombs to babies."

The area of involuntary-commitment law highlights a tension within any democracy: balancing the rights of the individual against public-safety concerns. A landmark 1979 decision by the U.S. Supreme Court, Addington v. Texas, made it harder for the government to commit people against their will, requiring officials to justify any such detention with "clear and convincing" evidence. Earlier, the standard had been a "preponderance of the evidence," which is used in most civil cases.

HARD TO IMPLEMENT

Harvey Silverglate, counsel to the Boston-based firm Zalkind, Rodriguez, Lunt & Duncan, said that while the constitutionality of involuntary-commitment laws is generally settled, they can be hard to implement effectively because they require distinguishing between the merely eccentric and the pathological. "The line is extremely hard do draw in practice," he said.

When states first enacted statutes relating to involuntary commitment -- in the late 1960s and early 1970s -- the emphasis was on protecting the rights of the mentally ill. But beginning in the 1980s, partly in response to John Hinckley's assassination attempt on President Ronald Reagan, the pendulum started to swing the other way. Some states began amending their laws to broaden the range of circumstances under which an individual could be involuntarily committed.

Arizona amended its law in 2002, and the statute's constitutionality has never been challenged. It would almost certainly survive any such scrutiny, said Charles Arnold of Frazer Ryan Goldberg & Arnold in Phoenix, who often represents people with mental illness. Arnold noted that the statute gives judges options regarding the nature of the treatment to be ordered, including outpatient treatment. Under Arizona law, once an application for a court-ordered evaluation is granted and health professionals determine that the person needs treatment and is unwilling to accept it, they can petition a court for involuntary commitment.

At least three state supreme courts have upheld constitutional challenges to involuntary treatment laws. In 2004, for example, New York's highest court upheld a law that provides for court-ordered out-patient medical treatment for individuals who have a history of not taking their medication. The statute, known as Kendra's Law, was enacted in 1999 following the death of Kendra Webdale, who was pushed in front of a moving subway car by a man diagnosed with paranoid schizophrenia.

It is too early to say whether the Arizona tragedy will prompt other states to broaden their involuntary commitment laws. But Stanley, the Treatment Advocacy Center board member, predicts action. "The laws change and they only go in one direction," he said. "No state that has adopted these modified standards has gone back."

(Editing by Amy Stevens and Eric Effron)

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