Many people have been asking, "Shouldn’t the Tucson shooter be considered a terrorist," and "Shouldn’t he be tried and executed if guilty?" It is hard to explain diminished mental capacity but let me give it a try.
Certainly the acts which Jared Lee Loughner committed are heinous. He has left an entire nation in shock, many dead, others clinging to an altered life, and the Jewish and immigrant communities in horror. Nothing I say here should be construed as justifying or excusing Loughner's acts.
Turning to the shooter, who is also a victim, what do we make of him? If your three-year-old daughter found an automatic pistol on the ground and shot people as Loughner did, would you charge her with first degree premeditated murder and seek the death penalty?
The analogy between a three-year-old and Loughner is not exact. If he had the mental capacity of a three-year-old at his age, he would be retarded. However, he likely is so mentally ill that he is out of touch with reality. Paranoid, he did not have the capacity to make rational decisions. Mental retardation and mental illness, while not the same, have one thing in common: the diminished capacity to make rational decisions.
In criminal law, two elements are required to make a person guilty of a serious crime: the mens rea, or guilty mind, and the actus reus, the guilty act. Proving the actus reus will be easy, considering the witnesses. However, proving the mens rea could be a challenge if the insanity defense is asserted.
If Loughner was insane when he committed the acts, then he is technically not guilty of the crimes of which he is accused. In that case, under criminal law theory, he was not capable of forming the mens rea. We don’t hold three-year-olds responsible for things they cannot understand. We should not hold a criminally insane person guilty either.
Loughner voluntarily withdrew from Pima Community College after five encounters with law enforcement and a series of angry and irrational acts. The school told him not to come back until he had an evaluation from a mental health professional stating he was not a danger. Loughner writes about a new form of currency, among other senseless ramblings. He writes in legible sentences but what he talks about does not make sense.