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Articles 1 - 29 of 29
Full-Text Articles in Law
"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon
"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon
Articles & Chapters
One of the open secrets of death penalty law and policy is the astonishingly high percentage of individuals on death row with serious mental disabilities. This is well known to lawyers who represent this cohort (and presumably, equally well known to the district attorneys who nevertheless prosecute them and the judges who try and sentence them), but is not generally discussed in the press nor, certainly, in political discourse. In the aggregate, this is far beneath society’s radar.
It is now over 14 years since the US Supreme Court decided a case that clarified the underlying issues. In Panetti v. …
Some Things Are Too Hot To Touch: Competency, The Right To Sexual Autonomy, And The Roles Of Lawyers And Expert Witnesses, Michael L. Perlin, Alison Lynch, Valerie R. Mcclain
Some Things Are Too Hot To Touch: Competency, The Right To Sexual Autonomy, And The Roles Of Lawyers And Expert Witnesses, Michael L. Perlin, Alison Lynch, Valerie R. Mcclain
Articles & Chapters
No abstract provided.
A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt
A World Of Steel-Eyed Death: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt
Articles & Chapters
Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.
And, in the same vein, anyone who has been so involved with this area of law and …
Who Will Judge The Many When The Game Is Through: Considering The Profound Differences Between Mental Health Courts And Traditional Involuntary Civil Commitment Courts, Michael L. Perlin
Who Will Judge The Many When The Game Is Through: Considering The Profound Differences Between Mental Health Courts And Traditional Involuntary Civil Commitment Courts, Michael L. Perlin
Articles & Chapters
This paper is an expansion of a presentation given by the author at the annual Therapeutic Jurisprudence Workshop at Osgoode Hall Law School, York University, Toronto, Ontario, Canada, October 15, 2016. There is a developing robust literature about mental health courts (MHCrts) in the United States, and researchers have begun to focus on a broad range of empirical issues, such as the extent to which defendants are competent to waive their trial rights in such settings, the significance of diversion, etc. Also, advocates and other scholars have engaged in vigorous debates about the value of these courts, and the extent …
Life's Hurried Tangled Road: A Therapeutic Jurisprudence Analysis Of Why Dedicated Counsel Must Be Assigned To Represent Persons With Mental Disabilities In Community Settings, Alison Lynch, Michael L. Perlin
Life's Hurried Tangled Road: A Therapeutic Jurisprudence Analysis Of Why Dedicated Counsel Must Be Assigned To Represent Persons With Mental Disabilities In Community Settings, Alison Lynch, Michael L. Perlin
Articles & Chapters
This paper will be published as part of a symposium issue of Behavioral Sciences and Law.
Although counsel is now assigned in all jurisdictions to provide legal representation to persons facing involuntary civil commitment, such counsel is rarely available to persons with mental disabilities in other settings outside the hospital. In this paper, we strongly urge that such representation also be made available to this population in community settings. The scope of this representation must include any involvement with the criminal justice system that currently does not fall within the scope of indigent counsel assignment decisions such as Gideon v. …
I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin
I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin
Articles & Chapters
Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more.
In this paper, I …
Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin
Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin
Articles & Chapters
In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.
I …
Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin
Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin
Articles & Chapters
This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear …
Had To Be Held Down By Big Police: A Therapeutic Jurisprudence Perspective On Interactions Between Police And Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch
Had To Be Held Down By Big Police: A Therapeutic Jurisprudence Perspective On Interactions Between Police And Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch
Articles & Chapters
It is a truism that the largest mental health facilities in the nation are the nation’s largest urban jails. Most of the predictable solutions that are offered to curb the influx of individuals with mental illness into jails -- especially those that urge the loosening of civil commitment standards and the return to large psychiatric institutions -- are dreary at best, unconstitutional at heart, and mean-spirited at worst. However, we pay remarkably little attention to one of the primary causes of this reality: the decisionmaking processes "on the street" by police officers who choose to apprehend and arrest certain cohorts …
In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch
In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch
Articles & Chapters
This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.
Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to …
"Mr. Bad Example": Why Lawyers Need To Embrace Therapeutic Jurisprudence To Root Out Sanism In The Representation Of Persons With Mental Disabilities, Michael L. Perlin
"Mr. Bad Example": Why Lawyers Need To Embrace Therapeutic Jurisprudence To Root Out Sanism In The Representation Of Persons With Mental Disabilities, Michael L. Perlin
Articles & Chapters
Litigants with mental disabilities are taken less seriously by their own lawyers, trivialized by opposing counsel, and disparaged by judges. This is largely a result of “sanism,” an irrational prejudice of the same quality and character of other irrational prejudices such as racism, sexism or homophobia. Recognizing and combatting sanism creates extra burdens on lawyers who do seek to provide effective counsel for this population. Such lawyers need special tools to combat sanism, and we believe that lawyering skills rooted in therapeutic jurisprudence provide the best foundation through which to create a positive psychology of persuasion in this representation. Our …
I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin
I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin
Articles & Chapters
The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.
My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of …
How Teaching About Therapeutic Jurisprudence Can Be A Tool Of Social Justice, And Lead Law Students To Personally And Socially Rewarding Careers: Sexuality And Disability As A Case Example, Michael L. Perlin, Alison Lynch
How Teaching About Therapeutic Jurisprudence Can Be A Tool Of Social Justice, And Lead Law Students To Personally And Socially Rewarding Careers: Sexuality And Disability As A Case Example, Michael L. Perlin, Alison Lynch
Articles & Chapters
Therapeutic jurisprudence (TJ) asks us to look at law as it actually impacts people’s lives and focuses on the law’s influence on emotional life and psychological well-being. It suggests that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and — when consistent with other values served by law — should attempt to bring about healing and wellness. The ultimate aim of TJ is to determine whether legal rules and procedures or lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. An inquiry into therapeutic outcomes …
Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, Michael L. Perlin
Articles & Chapters
Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role ofcriminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice ofthe same …
You Have Discussed Lepers And Crooks. Sanism In Clinical Teaching, Michael L. Perlin
You Have Discussed Lepers And Crooks. Sanism In Clinical Teaching, Michael L. Perlin
Articles & Chapters
There is a robust clinical literature on how issues of race and gender may influence all aspects of the clinicalsetting: the relationship between student and client, the relationship between student and student, the relationship between student and clinical supervisor, the attitude of the fact-finder toward the clinical client. But there has been virtually no attention paid to the role of sanism in the clinical setting.
Sanism is an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia and ethnic bigotry. It permeates all aspects …
An Overview: International Human Rights And Mental Disability Law, Michael L. Perlin
An Overview: International Human Rights And Mental Disability Law, Michael L. Perlin
Articles & Chapters
No abstract provided.
Chimes Of Freedom: International Human Rights And Institutional Mental Disability Law, Michael L. Perlin
Chimes Of Freedom: International Human Rights And Institutional Mental Disability Law, Michael L. Perlin
Articles & Chapters
No abstract provided.
Stepping Outside The Box: Viewing Your Client In A Whole New Light, Michael L. Perlin
Stepping Outside The Box: Viewing Your Client In A Whole New Light, Michael L. Perlin
Articles & Chapters
No abstract provided.
"Half-Wracked Prejudice Leaped Forth:" Sanism, Pretextuality, And Why And How Mental Disability Law Developed As It Did, Michael L. Perlin
"Half-Wracked Prejudice Leaped Forth:" Sanism, Pretextuality, And Why And How Mental Disability Law Developed As It Did, Michael L. Perlin
Articles & Chapters
Mental disability law jurisprudence is often incoherent Much of its incoherence can be explained by two concepts that dominate this area of the law: sanism (the irrational prejudices that cause, and are reflected in, prevailing social attitudes toward mentally disabled persons, and those so perceived) and pretextuality (the courts' acceptance -- either implicit or explicit -- of testimonial dishonesty and their decisions to engage in dishonest decisionmaking in mental disability law cases). Mental disability law is frequently premised on stereotypes and on prejudice, on typification and fear. These distortions reflect sanism; cases that sanction the use of such stereotypes and …
Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, And Why And How Mental Disability Law Developed As It Did, Michael L. Perlin
Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, And Why And How Mental Disability Law Developed As It Did, Michael L. Perlin
Articles & Chapters
Mental disability law jurisprudence is often incoherent Much of its incoherence can be explained by two concepts that dominate this area of the law: sanism (the irrational prejudices that cause, and are reflected in, prevailing social attitudes toward mentally disabled persons, and those so perceived) and pretextuality (the courts' acceptance -- either implicit or explicit -- of testimonial dishonesty and their decisions to engage in dishonest decisionmaking in mental disability law cases). Mental disability law is frequently premised on stereotypes and on prejudice, on typification and fear. These distortions reflect sanism; cases that sanction the use of such stereotypes and …
No Direction Home: The Law And Criminal Defendants With Mental Disabilities, Michael L. Perlin
No Direction Home: The Law And Criminal Defendants With Mental Disabilities, Michael L. Perlin
Articles & Chapters
No abstract provided.
Rashomon And The Criminal Law: Mental Disability And The Federal Sentencing Guidelines, Michael L. Perlin, Keri K. Gould
Rashomon And The Criminal Law: Mental Disability And The Federal Sentencing Guidelines, Michael L. Perlin, Keri K. Gould
Articles & Chapters
No abstract provided.
The Sanist Lives Of Jurors In Death Penalty Cases: The Puzzling Role Of Mitigating Mental Disability Evidence, Michael L. Perlin
The Sanist Lives Of Jurors In Death Penalty Cases: The Puzzling Role Of Mitigating Mental Disability Evidence, Michael L. Perlin
Articles & Chapters
No abstract provided.
Hospitalized Patients And The Right To Sexual Interaction: Beyond The Last Frontier, Michael L. Perlin
Hospitalized Patients And The Right To Sexual Interaction: Beyond The Last Frontier, Michael L. Perlin
Articles & Chapters
No abstract provided.
Fatal Assumption: A Critical Evaluation Of The Role Of Counsel In Mental Disability Cases, Michael L. Perlin
Fatal Assumption: A Critical Evaluation Of The Role Of Counsel In Mental Disability Cases, Michael L. Perlin
Articles & Chapters
No abstract provided.
Unpacking The Myths: The Symbolism Mythology Of Insanity Defense Jurisprudence, Michael L. Perlin
Unpacking The Myths: The Symbolism Mythology Of Insanity Defense Jurisprudence, Michael L. Perlin
Articles & Chapters
The insanity defense has been the subject of great controversy. A review of the jurisprudential debate, infamous cases, judicial and legislative decision-making, media coverage, as well as public attitudes, when read in light of scientific and empirical research, reveals a gaping disparity between what we know and how we think about the mentally ill and the insanity defense. The Author argues that this disparity is the result of several operational myths about the mentally ill and the insanity defense. In this Article, the Author focuses on the role of psychiatry, psychology, and mental illness in the law, specifically addressing how …
Ten Years After: Evolving Mental Health Advocacy And Judicial Trends, Michael L. Perlin
Ten Years After: Evolving Mental Health Advocacy And Judicial Trends, Michael L. Perlin
Articles & Chapters
No abstract provided.
State Constitutions And Statutes As Sources Of Rights For The Mentally Disabled: The Last Frontier?, Michael L. Perlin
State Constitutions And Statutes As Sources Of Rights For The Mentally Disabled: The Last Frontier?, Michael L. Perlin
Articles & Chapters
No abstract provided.
The Supreme Court, The Mentally Disabled Criminal Defendant, And Symbolic Values: Random Decisions, Hidden Rationales, Or Doctrinal Abyss, Michael L. Perlin
The Supreme Court, The Mentally Disabled Criminal Defendant, And Symbolic Values: Random Decisions, Hidden Rationales, Or Doctrinal Abyss, Michael L. Perlin
Articles & Chapters
No abstract provided.