After Tucson, Getting Involuntary Commitment Right

“If only” — fill in your favorite agency or person here — “had acted to deal with the shooter’s mental illness, the murders in Tucson, Arizona, would never have happened.” Many well-intentioned people have expressed similar concerns about the killer. And while it is certainly true that the involuntary commitment statutes of some states can be improved, that process is not as easy as some may think. It has taken about 40 years and a road littered with the tragic consequences of good intentions to bring us to where we are today in the identification and treatment of the mentally ill.


Many of the problems we now experience with the mentally ill and with involuntary commitment can be traced back to the early sixties, when a great many progressive attitudes, ideas, and policies began to take root. There is little doubt that the general state of mental health treatment in America at the time — particularly in state-run hospitals — was rife with neglect and abuse.

But as this sorry state became more widely known, did it lead to improvements? Not quite.

Remember that the sixties were the heyday of the counterculture, where the self-appointed intellectual elite enjoyed considerable persuasive power. Propounded by such luminaries as Harvard’s Timothy Leary, whose primary claim to academic fame was marinating his brain in LSD, slogans such as “tune in, turn on, drop out” and “don’t trust anyone over 30” became not only popular aphorisms but indicators of the paths to power — power which directly led to our current dilemma.

In the illuminating Do Gooders: How Liberals Hurt Those They Claim to Help (And The Rest of Us), Mona Charen speaks to the atmosphere of the time and some of its driving forces. Charen explains that Thomas Szasz, author of The Myth of Mental Illness, “popularized the idea that mental illness did not exist but was merely a label that a rigid and intolerant society placed upon those who were nonconformists of any stripe […]. Mental illness was a social construct, a prejudice, not a diagnosis.” Charen notes that Erving Goffman wrote an influential book called Asylums, in which he argued that all mental treatment institutions were essentially alike, and not for the better. Goffman “insisted that that most of the symptoms of mental illness displayed by residents of mental hospitals — raving, hearing voices, paranoia — were responses to being locked up, not evidence of illness […].” Also enormously influential was British psychoanalyst R. D. Laing. “Laing argued that modern society itself was twisted and unnatural […]. Laing taught that society’s coercion alienated human beings from their instinctive, natural, and intuitive selves. The people society called mentally ill were merely attempting to recapture the ecstatic and intuitive parts of their souls. Who were we, he asked, to label them insane when society itself was so sick?”


If this sounds familiar, that is because it is of a piece with the contemporary progressive meme expressed by Mr. Obama — who, on the 2008 campaign trail, often called America the greatest nation in the world and then exhorted crowds to help him fundamentally change it. (As those who have been keeping track know, that intention is one of the few promises he has faithfully kept.)

One must not underestimate the influence that people like Szasz, Goffman, and Laing had on society and those treating mental illness. Their ideas — however well-intentioned — essentially boiled down to an idea that, heard today, sounds utterly idiotic: the mentally ill aren’t really sick at all, but have a supernatural sense of perception, perhaps even a more evolved consciousness than the rest of the everyday dullards (such as those clinging to God and guns, of whom Mr. Obama and his followers are so contemptuous).

All of these attitudes were brilliantly depicted and exploited in Ken Kesey’s novel One Flew Over The Cuckoo’s Nest (1962), which dealt with just that theme. And in case the ideas were beginning to wear off, they were reinforced by Milos Forman’s movie adaptation of the book in 1975, with Jack Nicholson brilliantly portraying Randall P. McMurphy, a petty criminal who tries to worm his way out of jail by pretending to be mentally ill. He becomes the Messiah of a mental ward, fights bravely against the oppression of the establishment, and ends up lobotomized, but his sacrifice leads another inmate, the Chief, a huge Indian, to salvation. In the final scene of the film, the Chief, with a superhuman display of strength, breaks out of the hospital, and to a thumping, Hollywood Indian-like beat, runs back to purity and goodness: the wilderness from which he came and to which, thanks to the Christ-like sacrifice of McMurphy, he can finally return.
Mental hospitals were closed with the promise of more local, mental health “centers,” but states only too glad to shutter large facilities as a cost-saving measure tended not to establish the plethora of smaller centers that would likely cost even more. Many of those that were established in intervening years focused as much — even more — on social issues than the less glamorous and socially conscious treatment of the mentally ill. Perhaps the most dangerous effect was the watering down of involuntary commitment laws, which almost uniformly tilted toward empowering the individual and restricting the power of the state. One result is the relatively well-known fact that a great many of the “homeless” (who tend to disappear when Democrats hold the White House) owe that condition primarily to their mental illness rather than the cruelty of uncaring conservatives.


And here is the root of the problem. The issue of involuntary commitment (or IC) has always been one of balancing the need of society to protect the innocent against the right of the individual to avoid unnecessary, unconstitutional confinement. In order to construct an IC law that achieves the correct balance, two elements are essential: the law must allow the immediate IC of those who, due to mental illness, (1) pose a substantial (not imminent) danger to themselves or others, or (2) cannot, due to their condition, care for their own essential needs.

Let’s examine the current IC laws of Arizona. AZ statute 36-524 requires a written application for IC and may be made by a relative or friend, “a peace officer, the admitting officer” [commonly a doctor] or “another responsible person.” The application is made on a standardized form, and must include the following:

1. A statement by the applicant that he believes on the basis of personal observation that the person is, as a result of a mental disorder, a danger to self or others, and that during the time necessary to complete the prepetition screening procedures set forth in sections 36-520 and 36-521 the person is likely without immediate hospitalization to suffer serious physical harm or serious illness or is likely to inflict serious physical harm upon another person.

2. The specific nature of the danger.

3. A summary of the observations upon which the statement of danger is based.

The statue goes on to authorize a telephonic application to be followed within 24 hours by a written application, which essentially allows a doctor, on the notification of a police officer, to authorize an IC. Statute 26-525 is essentially an emergency provision that gives the police the power to make an on-the-spot IC when it wouldn’t be practical to obtain a doctor’s permission first. It also absolves officers of civil liability if they make “a good faith effort to follow the requirements of this section [.]”

The Arizona law does include the two elements I consider necessary for a rational IC law, but here is where unintended consequences come into play. With nearly two decades of experience in civilian police work, I can attest that police officers are averse to making mistakes. They are, in essence, expected to make decisions that would have caused Solomon to sweat, to make them in seconds, and to be 100% correct. And they are held accountable to those expectations. As a result, officers tend to enforce only those laws with which they are familiar.


Those who are tempted to look up the related Arizona statutes might well find them confusing. They might not know exactly what they, as police officers, are allowed to do, or how and when. In addition, contrary to popular mythology, most police officers are careful not to make false arrests. Such mistakes can not only be professionally embarrassing but costly. Most officers avoid dealing with IC laws accordingly. It’s true that the AZ statute offers immunity from civil liability, but even so, police officers hate to make mistakes, and in using unfamiliar forms (which they probably don’t have or have no idea where to find — you’d be surprised at the profusion of forms officers have to use, all of which must be perfectly completed), making arrests according to highly specialized and seldom used statutes is something most simply choose to avoid.

Scene 1: the mid-1980s in a western boom town. By the time citizens are ready to call the police about a given person, things have usually deteriorated to the point that an IC is usually necessary. As I am well acquainted with the law and the necessary paperwork, I carry copies with me (as all officers routinely do with the paperwork they commonly use).

Take the case of “Karen” (not, of course, her real name). The incident that resulted in my making a successful and relatively routine IC occurred one bright day with a call about Karen wandering around in the downtown area with a bow and arrow, taking random potshots. Fortunately, she didn’t hit anyone. Taking her into custody was anti-climactic, too. It was off to the state mental hospital for Karen.

But within a week, Karen was back on the street in our little community — which was literally across the state from the hospital. This time, she was removing her clothing from the waist up and standing on a street corner smearing mud on her breasts. (Don’t get excited. Police officers and doctors will tell you that most people look best with clothes on.) Of course, I got the call and made a rapid IC. That’s when things got interesting. I called the state mental hospital and had the following conversation:


Me: “This is Officer McDaniel of the **** Police Department. May I speak to the doctor who most recently treated Karen **** please?”

Doctor: “This is Doctor Screwluse” (no, not his real name).

Me: “Doctor, last week we sent Karen **** to you on an IC. Today I find her back on the street, half naked in public, smearing mud on her breasts. Why isn’t she still there with you?”

Doctor: “We can’t handle her. She’s crazy.”

Me: “You’re the state mental hospital!”

Doctor: “Well, she has a character disorder, and our programs really aren’t set up to treat character disorders, and…”

The conversation went downhill from there. From that point on, Karen became our local problem until we were able to put her on a bus to another city (another common police tactic) in a distant state where an apparently uninformed relative expressed a willingness to be a good Samaritan.

Scene 2: the late 1990s in a Midwestern city of 50,000, which serves as a regional hub for medicine, shopping, and entertainment. The IC laws were also similar to Arizona’s current law. While police officers could make an IC without the permission of a medical professional, protocol (not required by statute) dictated that they make a good faith attempt to contact them before taking matters into their own hands.

Unfortunately, there were two psychologists on the on-call list afflicted by a pathological hatred of the establishment — and particularly of those evil shock troops of the establishment, the police. Any officer calling them — and because I was also the go-to-guy on this police force, I often did — got an earful of crude abuse ending in an inevitable refusal to authorize an IC regardless of the circumstances.

At that point, I and any officer had two choices: ignore someone who desperately needed to be taken into custody for treatment, or ignore the cop-hating shrink who would testify at the commitment hearing of his refusal to authorize an IC. Prosecutors hated to pursue cases where the presumed expert’s opinion was the exact opposite of that of the police. The protocol was eventually changed and officers made ICs without calling rabid cop-haters first, but for years, the good intentions of legislators and others were routinely thwarted.


It would appear that the legislature of Arizona has written a well-intentioned set of statutes that balance the two competing concerns relating to an IC. Yet there are a variety of reasons why the local police may not have taken the killer into custody:

  1. Local agencies, in an effort to avoid bad publicity or civil liability, may have adopted over-restrictive procedures that dissuade officers from acting in all but the worst circumstances.
  2. Local agencies may have dysfunctional working relationships that make an IC excessively time-consuming, difficult, or practically impossible.
  3. The police may have had the oft-repeated experience of seeing people who are obviously, dangerously mentally ill released back to the street as if through a revolving door.
  4. Officers may have not been properly trained on all aspects of dealing with the statutes, causing cop psychology to take over. Most could have chosen to avoid IC situations or didn’t know enough to take the correct actions. Perhaps their go-to-guy — if they had one — was simply off duty when needed. (College police forces, under normal circumstances, have even less training and experience with such matters than the regular police.)
  5. Perhaps the killer, in his several encounters with college and regular officers, was able to appear to be sufficiently normal such that an IC was not a reasonable option. There is some evidence, particularly in the case of the wildlife officer who stopped him for a traffic violation some three hours before his attack, that this was the case. Remember that no statute allows an IC for someone who is merely socially awkward, odd, or behaving unusually, regardless of how uncomfortable his behavior makes some people feel.

The lesson to be learned is that the right legislation, no matter how brilliantly written or well intentioned, always has unintended consequences. All the more reason why it’s time to retire the tragic, misbegotten view of mental illness that took root so many decades ago.


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