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My Brain Is So Wired; Neuroimaging's Role In Competency Cases Involved Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch Jan 2018

My Brain Is So Wired; Neuroimaging's Role In Competency Cases Involved Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch

Articles & Chapters

In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas.

There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than ...


A Contextual Approach To Harmless Error Review, Justin Murray Jan 2017

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal ...


There's A Dyin Voice Within Me Reaching Out Somewhere: How Tj Can Bring Voice To The Teaching Of Mental Disability Law And Criminal Law, Michael L. Perlin Jan 2015

There's A Dyin Voice Within Me Reaching Out Somewhere: How Tj Can Bring Voice To The Teaching Of Mental Disability Law And Criminal Law, Michael L. Perlin

Articles & Chapters

In this article, I discuss my historical involvement with therapeutic jurisprudence (TJ), how I use it in my classes (both in the free-standing TJ class and in all the others that I teach), its role in my written scholarship, and its role in conferences that I regularly attend. Although this is all positive and supportive of all efforts to widen the appeal of TJ as well as its applicability in the classroom, in scholarship and in “real life,” I also share some information that is far from optimistic with regard to the way that TJ is being reacted to by ...


You Might Have Drugs At Your Command: Reconsidering The Forced Drugging Of Incompetent Pre-Trial Detainnes From The Perspectives Of International Human Rights And Income Inequality, Michael L. Perlin, Meredith Schriver Jan 2015

You Might Have Drugs At Your Command: Reconsidering The Forced Drugging Of Incompetent Pre-Trial Detainnes From The Perspectives Of International Human Rights And Income Inequality, Michael L. Perlin, Meredith Schriver

Articles & Chapters

Ever since the Supreme Court's 2003 decision in Sell v. United States, 539 U.S. 166 (2003), there has been a cottage industry of commentary on the question of whether the state can medicate an incompetent defendant for the purpose of making him or her competent to stand trial. Moreover, there have been multiple cases interpreting Sell broadly and narrowly, both in the context of medication issues and in the context of other treatments. Because of the vagueness of certain terminology, questions such as what a "serious" crime is, what "substantially" meant to the Court in Sell, and how ...


They’Re Planting Stories In The Press: The Impact Of Media Distortions On Sex Offender Law And Policy, Heather Ellis Cucolo, Michael L. Perlin Jan 2013

They’Re Planting Stories In The Press: The Impact Of Media Distortions On Sex Offender Law And Policy, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

Individuals classified as sexual predators are the pariahs of the community. Sex offenders are arguably the most despised members of our society and therefore warrant our harshest condemnation. Twenty individual states and the federal government have enacted laws confining individuals who have been adjudicated as “sexually violent predators” to civil commitment facilities post incarceration and/or conviction. Additionally, in many jurisdictions, offenders who are returned to the community are restricted and monitored under community notification, registration and residency limitations. Targeting, punishing and ostracizing these individuals has become an obsession in society, clearly evidenced in the constant push to enact even ...


The Judge, He Cast His Robe Aside: Mental Health Courts, Dignity And Due Process, Michael L. Perlin Jan 2013

The Judge, He Cast His Robe Aside: Mental Health Courts, Dignity And Due Process, Michael L. Perlin

Articles & Chapters

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is ...


Due Process In Islamic Criminal Law, Sadiq Reza Jan 2013

Due Process In Islamic Criminal Law, Sadiq Reza

Articles & Chapters

Rules and principles of due process in criminal law—how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted—appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law ...


Wisdom Is Thrown Into Jail: Using Therapeutic Jurisprudence To Remediate The Criminalization Of Persons With Mental Illness, Michael L. Perlin Jan 2013

Wisdom Is Thrown Into Jail: Using Therapeutic Jurisprudence To Remediate The Criminalization Of Persons With Mental Illness, Michael L. Perlin

Articles & Chapters

The common wisdom is that there are two related villains in the saga of the “criminalization of persons with mental illness”: the dramatic elimination of psychiatric hospital beds in the 1970s and 1980s as a result of the “civil rights revolution,” and the failure of the deinstitutionalization movement. Both of these explanations are superficially appealing, but neither is correct; in fact, the causal link between deinstitutionalization and criminalization has never been rigorously tested. It is necessary, rather, to consider another issue to which virtually no attention has been or is being paid: the near-disappearance of mental status issues from the ...


Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray Jan 2012

Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray

Articles & Chapters

Prosecutors, like mostAmericans, view the criminal-justice system asfundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices-and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors-contribute to the staggering and disproportionate incarceration of black Americans. In ...


Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches And Specialized Community Integration, Heather Cucolo, Michael L. Perlin Jan 2012

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches And Specialized Community Integration, Heather Cucolo, Michael L. Perlin

Articles & Chapters

The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment are often inaccurate and that meaningful treatment for this population is often unavailable and ineffective. Yet, society continues ...


Tangled Up In Law: The Jurisprudence Of Bob Dylan, Michael L. Perlin Jan 2011

Tangled Up In Law: The Jurisprudence Of Bob Dylan, Michael L. Perlin

Articles & Chapters

A a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek to create ...


Less Than We Might: Meditations On Life In Prison Without Parole, Robert Blecker Jan 2011

Less Than We Might: Meditations On Life In Prison Without Parole, Robert Blecker

Articles & Chapters

Today, death penalty opponents mostly claim life without parole (LWOP) as their genuinely popular substitute punishment for the worst of the worst. These abolitionists embrace LWOP as cheaper, equally just, and equally effective - a punishment that eliminates the state’s exercise of an inhumane power to kill helpless human beings who pose no immediate threat. Furthermore, they insist, LWOP allows the criminal justice system to reverse sentencing mistakes. Some even characterize it as a punishment worse than death.

Thousands of hours in several states, interviewing and observing more than a hundred convicted killers, along with dozens of correctional officers who ...


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 Jan 2010

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 ...


Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, Michael L. Perlin, Valerie Mcclain Jan 2010

Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, Michael L. Perlin, Valerie Mcclain

Articles & Chapters

The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: 1) an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical, 2) a defendant's competency to consent to the imposition of a neuroimaging test; and 3) the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article will ...


The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait Jan 2007

The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait

Articles & Chapters

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American ...


Reflections On The Essential Role Of Legal Scholarship In Advancing Causes Of Citizen Groups, Nadine Strossen Jan 2005

Reflections On The Essential Role Of Legal Scholarship In Advancing Causes Of Citizen Groups, Nadine Strossen

Articles & Chapters

No abstract provided.


A Double Due Process Denial: The Crime Of Providing Material Support Or Resources To Designated Foreign Terrorist Organizations, Randolph N. Jonakait Jan 2004

A Double Due Process Denial: The Crime Of Providing Material Support Or Resources To Designated Foreign Terrorist Organizations, Randolph N. Jonakait

Articles & Chapters

No abstract provided.


Violence Against Aboriginal Women In Australia: Possibilities For Redress Within The International Human Rights Framework, Penelope Andrews Jan 1997

Violence Against Aboriginal Women In Australia: Possibilities For Redress Within The International Human Rights Framework, Penelope Andrews

Articles & Chapters

This Article addresses the issue of violence against Aboriginal women. Part I concerns the historical violenceagainst Aboriginal people generally, and Part II concerns violence against Aboriginal women in particular. Part III considers how the priorities and perspectives of Aboriginal women and non-Aboriginal women differ insignificant ways despite their congruence in others. In particular, the Article evaluates the awkward relationship between Aboriginal women and the largely white feminist movement in Australia as a consequence of these different priorities and perspectives, and suggests how political victories for white or non-Aboriginal women could be translated into gains for Aboriginal women. The fourth part ...


Overbroad Civil Forfeiture Statutes Are Unconstitutionally Vague, Deborah Duseau, David Schoenbrod Jan 1994

Overbroad Civil Forfeiture Statutes Are Unconstitutionally Vague, Deborah Duseau, David Schoenbrod

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 Jan 1987

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.


Due Process Versus Data Processing: An Analysis Of Computerized Criminal History Information Systems, Donald Doernberg, Donald H. Zeigler Jan 1980

Due Process Versus Data Processing: An Analysis Of Computerized Criminal History Information Systems, Donald Doernberg, Donald H. Zeigler

Articles & Chapters

This article, based on a comprehensive empirical study of New York's computerized criminal history information system and on national surveys of similar systems, concludes that current regulations governing the dispersion of criminal history information are grossly inadequate. Although information drawn from computerized criminal history files is often inaccurate, incomplete, ambiguous or inappropriate, criminal justice officials and judges routinely use such information in making decisions affecting defendants' liberty. This practice is unconstitutional, and the article suggests ways to regulate criminal history information systems that would protect a defendant's right not to be deprived of liberty without due process of ...