Will Loughner be the next Hinckley?

Ann Woolner is a columnist for Bloomberg News.

Jared Lee Loughner, wearing a taunting smile in his mug shot, is likely now to find himself at a shifting juncture of U.S. law. It's the place where holding criminals responsible for despicable crimes meets restraint against penalizing people too mentally at sea to comprehend what they've done.

However premature the speculation over what will happen to the 22-year-old charged in the murderous actions in Tucson, some things we know. There's scant doubt that cops nabbed the right man: Eyewitnesses not only saw the shooting but wrestled Loughner to the ground. We also know the shooting spree ranks with some of the bloodiest in American history. State authorities are planning to seek indictment, though the U.S. attorney's office has so far gone first by charging him with the murders and attempted murders of the five victims who were federal employees.

And given reports about Loughner's unstable history, you can figure that mental illness will be part of his defense.

So this brings us to the hard question: How disturbed do you have to be to win acquittal by reason of insanity?

When a Washington, D.C., jury found President Ronald Reagan's would-be assassin, John Hinckley Jr., not guilty by reason of insanity, a public uproar ensued and Congress tightened the law as applied to federal crimes. State lawmakers ratcheted up their statutes, too. To be acquitted because of insanity now, criminal defendants charged with federal crimes must prove by "clear and convincing evidence" that a "severe mental disease or defect" rendered them "unable to appreciate the nature and quality or the wrongfulness" of their conduct.

Put simply, they must be diagnosed with an illness that kept them either from understanding what they were doing or knowing right from wrong.

It wasn't easy to win an insanity defense before Reagan was shot, and it's harder now. Federal prosecutors used to have to prove that the accused was sane. Now the law shifts the burden of proof to the defense to show insanity.

Although you can claim insanity no matter what the crime, it's mostly used when the defendant is facing the possibility of death or a very long time behind bars, says Robert Batey, who teaches law at Stetson University near St. Petersburg, Fla. Only then does it make sense - because if you win, you'll be sent into treatment until doctors find, and a judge rules, that it's safe to release you.

Still, it's better than the alternative for some defendants.

Almost 30 years after Hinckley shot and wounded Reagan and three others, he passes time at Saint Elizabeths Hospital in Washington playing guitar, reading and anticipating his next journey to visit his mother in Williamsburg, Va. He's been granted 12 of those trips, lasting 10 days each.

Hinckley's mental condition keeps improving, a federal judge has found. As it does, he's allowed more time and freedom outside the hospital. He must tell authorities in advance where he plans to go and carry a GPS system so his whereabouts can be monitored.

The eventual aim is full-time release into the outside world. However unsettling that notion, it makes sense to release someone whose crime resulted from an illness no longer plaguing him, assuming he really is OK.

But for every Hinckley in treatment, there are others who claimed insanity and failed to prove it.

It's too early to know how Loughner's case will proceed, but the crimes are such that prosecutors will want to seek his execution. If he claims insanity and fails to persuade all 12 jurors, they might still balk at sending to his death someone as troubled as he may seem. If that happened, Loughner would be sentenced to life, and the federal system allows no parole.

But that probably wouldn't be the end of it. Whatever happens in federal court, Loughner could still be tried in state court for all six murders. And if anyone thinks the federal statute makes it hard to prove insanity, Arizona has one of the toughest laws in the country.