NBC News
updated 6/27/2011 5:21:32 PM ET 2011-06-27T21:21:32

Jared Lee Loughner, the 22-year-old man who allegedly shot Congresswoman Gabrielle Giffords in the head, killed six and wounded a dozen more last January in Tucson, Ariz., has been declared so mentally ill that he can't be tried. While Giffords is now recuperating as an outpatient in Texas, Loughner is in a Springfield, Mo., prison medical facility where federal prison officials have said they'll need to force him to take antipsychotic drugs.

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Loughner's defense attorneys are now wrestling over whether he should be given drugs that could tamp down his mental problems, and allow him to stand trial. On Friday, his attorneys filed an emergency motion to stop him from being medicated.

I think he should be given the drugs, even though forcing anyone to take medication violates a core right to be able to refuse medical care and puts Loughner at risk of being convicted and sentenced to death.

Experts who have seen him during his prison stay think he is mentally ill. They have said he suffers from schizophrenia. He is likely beset with hallucinations, delusions, voices and disorganized thinking.

Loughner’s mental problems were evident for years before the shooting. Classmates at Pima County College thought he was “obviously very disturbed.” He was eventually kicked out of classes due to frequent outbursts and disruptive behavior.

Loughner has pled not guilty to all charges. His lawyers are trying to keep him out of court on the grounds that he is not competent. If he is going to be put on trial for what happened to Giffords and the others slaughtered and maimed during the January shooting, then he must be able to understand the charges against him and assist his lawyers in his defense. 

There are antipsychotic drugs which may help restore some degree of sanity to him and also allow him to sit through a trial. They may have side effects, including weight gain, diabetes or possibly shortened longevity. If he does not receive treatment, then it is likely he will stay in a mental health facility indefinitely.

The usual standard for treating someone against their will with psychiatric medications is that they are a danger to themselves or others. Loughner might well meet this standard. But, since he can be isolated in prison or in a mental hospital, the courts might not let him be medicated against his will.

The Supreme Court in the 2003 case of Charles Thomas Sell -- who was charged with fraud, but was deemed incompetent to stand trial -- ruled that a person can be forced to take medication against their will or without their explicit consent. But the judges held that to force meds to try to create competency, a key legal issue must be at stake: There must be a good chance the medication will help, and there must not any other way to create competency. 

Loughner would appear to meet these tests. Despite his lawyers' worries that he could face death if drugged, he ought to be medicated.

As horrific as the acts were that Loughner is alleged to have committed, it is still exceedingly likely that he was deeply disturbed when he did them. That means that even if he can be medicated now to the point of competency, he still might not deserve the death penalty or even a life in prison. Medicating him against his will may make him understand what happened. 

But it does not show that he was sane on Jan. 8.  If he was not, a life spent in a mental hospital trying to come to terms with the horror he caused may be the right punishment. 

Arthur Caplan, Ph.D., is director of the Center for Bioethics at the University of Pennsylvania.

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