It's not clear yet whether attorneys for Jared Loughner's lawyers will attempt the insanity defense in the shooting of Rep. Gabrielle Giffords (D-AZ), but John Hinckley's successful insanity claim after shooting President Ronald Reagan led Congress to raise the bar, making the task harder, says the Associated Press. It is expected that the Justice Department will seek a death penalty.
Before the attempted assassination of Reagan, Harvard Law School Prof. Alan Dershowitz told AP, “this would be a clear case of insanity, because the pre-meditation would not be seen as undercutting insanity, it would be part of demonstrating insanity.” Under the post-Hinckley rules, “that's a very uphill battle.” Public outrage over the jury's verdict in Hinckley's trial — not guilty by reason of insanity — prompted Congress to make it much more difficult to establish that claim in federal criminal trials. Arizona has modified the insanity defense so that a defendant there no longer can be found not guilty by reason of insanity. Instead, the jury can deliver a verdict of guilty but insane. “So the person is held at a state mental hospital, and if sanity somehow comes back, he's transferred to prison, not just let go,” said Prime County prosecutor Barbara LaWall said. More likely, Loughner's defense will argue that he was mentally impaired. That concedes that he bears some responsibility for what he has done but lacks the guilt necessary to face the death penalty. That state of mind sometimes is called “diminished capacity.”