Loughner: Defense and Prosecution Benefit from Guilty Plea in Exchange for No Death Penalty

According to recent news reports, Jared Laughner is now competent and will plead guilty in federal court tomorrow (Tuesday) in exchange for the prosecution’s agreement not to seek the death penalty. No additional details were reported. I have written the following article based on the assumption that these reports are true.

I believe both sides and the public benefit from this agreement for the following reasons.

The defense benefits because there is a significant probability that it would fail to convince the jury that Mr. Loughner was insane when he shot all of the victims. As I have explained in previous articles, the legal test for insanity requires proof that a defendant was suffering from a mental disease or defect when he committed the crime, such that he was unable to distinguish between right and wrong and conform his conduct to the requirements of law.

Most mentally ill defendants, including those who were psychotic and delusional when they committed the crime, cannot satisfy this test because they knew they did something wrong and would get in trouble with the law, if they were caught. That is, the defense will likely fail if there is any evidence that the defendant knew he was committing a crime or if he attempted to conceal evidence of the crime and his participation in it. In addition, a defendant does not go free, if he is found not guilty by reason of insanity.

The prosecution benefits from the agreement because it achieves the most probable outcome of a trial without having to expend all of the effort, time and money necessary to try the case. A guilty plea also avoids a lengthy appeal process and establishes a finality to the legal process. That in turn creates an important opportunity for victims and their families to begin the process of healing themselves and moving on with their lives.

There is no doubt that Mr. Loughner was psychotic and delusional when he committed the crimes and, even if the jury rejected the insanity defense and found him guilty, there is a significant probability that the jury would conclude that his impaired mental condition when he committed the crimes was a sufficient mitigating circumstance to justify sentencing him to life in prison instead of sentencing him to death.

The public benefits from the agreement because it produces a fair and equitable result, given Mr. Loughner’s serious mental illness and disabilities. Schizophrenia is a horrific disease that destroys lives by causing delusions that the person cannot distinguish from reality. Even though medication can reduce and often prevent delusions, it has unpleasant zombie-like side effects that eliminate joy and excitement. Since schizophrenia is a debilitating disease that no one would voluntarily choose, basic human decency, empathy and mercy call for a life sentence, rather than the death penalty.

Before the Court can accept a guilty plea, it must determine whether Mr. Loughner is competent. Mr. Loughner had refused to take anti-psychotic medication until the Ninth Circuit recently affirmed the trial court’s order to medicate him forcibly, if necessary. I think we can reasonably conclude that he has taken the medication and is now competent since this hearing would not have been scheduled, unless he were competent and his lawyers were able to explain and discuss the terms of the plea agreement, including the important constitutional rights he will be giving up, if he pleads guilty.

We can expect one or more mental health experts will testify tomorrow that he is competent. That is, that he is oriented as to time and place, understands his legal predicament and the possible consequences if convicted, can tell the difference between the truth and a lie, can communicate with his lawyers and assist them to represent him, is capable of making decisions that are in his best interest, and understands the obligation to answer the Court’s questions truthfully.

Assuming the Court finds him competent, it will ask him a series of questions about the guilty plea to determine if he has read and reviewed it with his lawyers, understands all of its terms, and knows that he will give up the right to go to trial if he pleads guilty.

After confirming that he has knowingly, voluntarily, and intelligently decided to waive his right to trial in order to receive the benefit of his agreement with the prosecution, the Court will ask him to state in his own words what he did.

Defendants usually follow the advice of their lawyers to provide a simple bare-bones set of facts that support the charges to which they are pleading guilty.

If the statement is sufficient, the Court will accept the guilty plea and approve the plea agreement.

Normally, sentencing takes place six weeks later to allow time for the United States Probation Office to prepare a report regarding the defendant’s role in the offenses, the applicable sentencing ranges for the offenses, and a sentencing recommendation. Since the parties and the Court will have agreed to the sentence, there will not be any need for the report. Do not be surprised if the Court waives the presentence report with the agreement of the prosecution and the defense and proceeds directly to impose a life sentence.

I believe this probably is a fair, just and equitable resolution of the case. I say “probably” because I do not know if the State of Arizona is satisfied with the outcome. The United States lacked jurisdiction to prosecute Mr. Loughner for four of the murders because those victims were not federal employees carrying out their official duties when they were killed.

The four private citizens were:

(1) Christina Taylor-Green (age 9);

(2) Dorwin Stoddard (age 76);

(3) Dorothy Murray (age 76); and

(4) Phyllis Schneck (age 79).

The State of Arizona has jurisdiction to prosecute Mr. Loughner for those four murders, since the crimes were committed in Arizona.

The State of Arizona also has a death penalty and it could prosecute Mr. Loughner for those murders and seek the death penalty, if he is convicted.

I believe the defense has attempted to do everything that it possibly can to persuade the state prosecutors to agree not to seek the death penalty against Mr. Loughner, if he pleads guilty to the federal charges.

I suspect they have decided not to seek the death penalty because they probably realize they would have no better chance than the federal prosecutors of convincing a jury to sentence Mr. Loughner to death, given the powerful mitigation evidence of mental illness.

Should this be the case, they may do nothing or they may have already agreed to charge Mr. Loughner with the four murders and the remaining crimes that the United States lacked jurisdiction to prosecute, but forego seeking the death penalty, if he pleads guilty to those offenses.

Although such an agreement would not add any time to his sentence, it might appease the prosecution’s desire to obtain convictions of record for crimes that Mr. Loughner committed but could not be prosecuted for in federal court due to lack of jurisdiction.

Mr. Loughner would not have much incentive to plead guilty in federal court to avoid the death penalty only to have Arizona seek the death penalty. Since he has agreed to plead guilty, I am inclined to believe that the State of Arizona has agreed not to seek the death penalty.

Three party global resolutions are tough, but not impossible to pull off. We will find out if that happened tomorrow.

20 Responses to Loughner: Defense and Prosecution Benefit from Guilty Plea in Exchange for No Death Penalty

  1. Nef05 says:

    Fortunately, my question is not specific to Loughner, but highly publicized crimes, in general. I noticed that there have been two potential copycat “Batman” arrests. Well, to be specific, the guy in Maine claimed he had seen the movie, with a loaded weapon, the night before he was arrested going over 100mph, hazard lights flashing, with several articles on CO shooting and with a small arsenal (including AK-47) in his vehicle, on his way to murder his former boss. The guy in OH was in the theatre, with his weapons. There is a third guy, who was arrested in costume, at Home Depot and claimed he was there to help and protect people and he did so (costumed) regularly. He was unarmed.

    My question is: Have you, or someone you know, defended a person who was a “copycat”? And, if so, is there any insight you can share with us, as to motivation, defense strategy, etc? Although I realise one would defend such a person from a legal charge, and not the “copycat” label, it would seem that label (and the evidence generating it) would make the task more difficult. But, what seems to motivate them? Is it a desire for the perceived “fame”?

    • You said,

      My question is: Have you, or someone you know, defended a person who was a “copycat”? And, if so, is there any insight you can share with us, as to motivation, defense strategy, etc? Although I realise one would defend such a person from a legal charge, and not the “copycat” label, it would seem that label (and the evidence generating it) would make the task more difficult. But, what seems to motivate them? Is it a desire for the perceived “fame”?

      I have not defended a person who was accused of committing a copycat crime and I have not studied that phenomenon. I know so little about it that I’m going to plead ignorance and decline to answer your question.

      You’ve asked a good question.

      • Nef05 says:

        Thanks for the response. The guy in Ohio’s attorney has chosen an interesting strategy. But, in my opinion, not very well thought out, since I believe most persons would immediately ask, “if the man was so scared, why did he go?”

        Here’s a brief portion of his attorney’s statement:
        “Bruce said his client “felt a sense of fear” about going to a theater, and chose the Batman movie by complete coincidence.

        “Any weapons he may have had on him were solely for protection,” he said.”

      • aussie says:

        Perhaps they lack the imagination to come up with their own criminal persona.

        Many many decades ago I worked on a newspaper. Every now and then the weekend edition would do a piece about the “scourge of vandalism”, illustrated with photos of destroyed public phones. The phone operator used to complain bitterly that after every such article, vandalism of public phones went up by 500% for several weeks.

  2. Digger says:

    Zhickel, NEVER would I ever consider anyone’s life WORTHLESS life, NEVER! I am stating this clearly, This is stated clearly so no way can it be misrepresented. Sometimes when commenting I try to shorten the thought and perhaps don’t go into detail to satisfy every opposing thought of another. If I am pinned under a 3 ton bolder and no way out to continue a useful life, I certainly would want to have someone decide that I would not be left there to suffer endlessly. If I am pinned under a 3 ton bolder and have use of my body and mental, not suffering unbearably endlessly, surely there would be purpose to my life.

    Natural death is helped on by what is called “comfort measures” every day, and I hope I am fortunate to receive that comfort when my time comes. End

  3. Good morning everyone.

    Here’s a link to an AP story in the Seattle Post-Intelligencer confirming that the competency and guilty plea hearing is scheduled for today.

    Mark Kelly, Gabby Gifford’s husband, told the reporter that they support the plea agreement.

    No indication yet whether Arizona is on board.

  4. Digger says:

    Zhikzel, I have compassionate feelings in weighing which would cause less suffering. I don’t think I ever used the term “putting them down” though I am considerate of possible long lifetime suffering in mental health conditions. If facilities are secure in treatment and comfort so there is NO suffering then life is of the utmost importance and I would hope no physical punishment exist.
    From my first comment I stated it depends on the circumstances.
    I don’t think I have addressed the same situation as you at all.
    I am not unwilling to have my attention directed to where I error
    but error is not considered same as different opinion. Of course
    some are better off incarcerated than on the street, meals, medical
    warm roof and blankets. There are exceptions to the niceties. Some worse than hell. Would I want to live THAT way? No!
    I think if you zhikzel study my comments I was initially addressing
    does the family of one who commits a crime have any say in what
    happens to that member of their family as in a mental health facility.
    It would not be my place to speak for them, but certainly my place to speak about what would disturb ME about mine and their possible long time torturous existence. You have your position for yours as well and you have my respect.

    • Zhickel says:

      Digger my point is that what you consider a worthless life is unique to you. Others may find what you describe as tortuous, to be an acceptable way of living.

      I do apologise for misrepresenting your words. When you used the term ‘put to sleep’ in your post above, I confused you with a poster in the previous thread who used ‘put down’. I’m sorry about that.

  5. Digger says:

    Excuse me “Loughner” (Holmes) with both in posts I crossed up but I guess my thought can apply to either. Too much head work!

  6. Digger says:

    Thanks TBT and as lynp says, a horrible existence! It just came to me also, if the Holmes parents also have opportunity to request any preference for his benefit. This is a son, and speaking for myself if I were a parent in this situation I honestly think I would rather have my son put to sleep than spend years in such a mental non existence. Although I have heard that Andrea Yates has done quite well. This came only came from her husband a year ago who I felt actually contributed to her unfortunate mental collapse by forcing he to live the servant life he held her under. Apparently he is married and living quit a good life.

    • Zhickel says:

      Digger, it disturbs me that on several ocassions you suggested ‘putting them down’ would be an act of kindness.

      In response to a previous post by the Professor, I posited that no living being is completely good or completely bad but resides somewhere along the continuum between the polar opposites. I’m not a religious person and therefore will not use terms such as ‘sanctity’ or ‘reverence’ when talking about life – human or animal. That does not preclude me from allowing any living creature to value their own life or existence as highly as they see fit.

      The majority of humans are extraverted personalities. A quick and dirty definition is that they gain their energy, fulfillment and pleasure in life by interacting with other humans. The introverted minority recharge their batteries with solitude, contemplation and avoidance of social situations. They may legitimately be labelled ‘loners’ but this is in no way synonymous with being psychopathic, dangerous or anti-social. They have a strong and healthy inner life and self-assurance that is often lacking in classic extraverts.

      Let me present a hypothetical situation; I am convicted of a serious crime and sentenced to say, 15 years imprisonment. Would I want to be ‘put down’ knowing that at my age, I would probably die incarcerated? Not on your sweet life! Room and board, three squares a day and all the time in the world to let my mind meander around the complex question of what it means to be human. There are worse ways to spend your old age.

      The above, of course, was an imaginary situation but I hope it illustrates that a lengthy prison sentence would not be the living hell – to some people – that it may be to you. I am thankful that Australia has no death penalty as murder-by-state is unacceptable to civilized people.

      And remember…… Freedom’s just another word for nothing left to lose.

  7. lynp says:

    I would quess Lougher will housed in a Maximun Security Mental Hospital for the Criminally Insane. They are loud Bedlam madhouses. It is an awful place to be for a day or the rest of their lives. Jared has a terrible suffering disease that tortures the Schizophrenics every minute of every day almost no matter what Andrea Yates is in one and Hickley in the John Howard Building for the Criminally Insane.

    • Two sides to a story says:

      I have visited a person in the Phoenix state hospital, which also includes a ward for the criminally insane, which I was accidentally sent to at the time. It’s not the worst place in the world, but it’s not the best, either, and it’s depressing to think about anyone spending a lifetime there . . .

  8. Digger says:

    Being psychotic when he committed the crime, if no death penalty does this mean he will be housed in a medical mental health facility and not in a criminal facility? He is young and assuming he is at this time heavily drugged for his illness I doubt he will survive long in either. How violent is he thought to be if no weapon available.
    If enough to have to be” restrained” and/or held separate from other patients or celled individuals, it would be torturous existence
    and he would imo be better off to have been put to death, than suffer long years but maybe the victims families would like him to have to do that. Are the families wishes taken into consideration in
    a trial such as this.

    • TruthBTold says:


      I’m not the Professor, but from my understanding a victim or victim’s family cam make a Victim Impact Statement during the sentencing phase. However, I don’t really know how influential these statements are considering judges typically being bound by sentencing guidelines or what the jury decides if it’s a death penalty case.

  9. TruthBTold says:


    This is interesting. Not too long ago, during my studies, I did a paper on the benefits, who benefits, etc., of plea agreements and you echoed the same points. I know there are detractors or opponents of plea agreements. Some have cited it as being unconstitutional while others, feeling that justice really don’t get served and that defendants “benefit” from it.

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