Law Commons^™

Take The Motherless Children Off The Street: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.

In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts …

"My Bewildering Brain Toils In Vain": Traumatic Brain Injury, The Criminal Trial Process, And The Case Of Lisa Montgomery, Alison Lynch, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced …

Before And After Hinckley: Legal Insanity In The United States, Stephen J. Morse

All Faculty Scholarship

This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20^th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that …

God Said To Abraham/Kill Me A Son: Why The Insanity Defense And The Incompetency Status Are Compatible With And Required By The Convention On The Rights Of Persons With Disabilities And Basic Principles Of Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Interpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the …

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 …

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 …

His Brain Has Been Mismanaged With Great Skill: How Will Jurors Respond To Neuroimaging Testimony In Insanity Defense Cases, Michael L. Perlin

Articles & Chapters

The robust debate over neuroimaging has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility and availability. When we consider the topic that I will be addressing in this paper - the impact of this evidence on juror decision-making in insanity defense cases - we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely, more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence - apparently, less inherently easy to falsify - have on jurors whose inherent suspicion of mental state opinion testimony is …

Beyond Dusky And Godinez: Competency Before And After Trial, Michael L. Perlin

Articles & Chapters

Scholars have carefully considered all aspects of the incompetency to stand trial process, questions involving incompetency to confess, questions involving incompetency to be executed, and, to a lesser extent, questions related to incompetency to plead guilty or to waive counsel, but little attention has been paid to the relationship between incompetency and the full range of other criminal procedure issues: sentencing, appeals, consent to searches, and others. This article discusses this range of issues, assesses the factors relied upon by courts in deciding these cases and attempts to offer an agenda for future scholarly developments in this area.

She Breaks Just Like A Little Girl: Neonaticide, The Insanity Defense, And The Irrelevance Of Ordinary Common Sense, Michael L. Perlin

Articles & Chapters

No abstract provided.

Where The Winds Hit Heavy On The Borderline: Mental Disability Law, Theory And Practice, Us And Them, Michael L. Perlin

Articles & Chapters

No abstract provided.

There's No Success Like Failure/And Failure's No Success At All: Exposing The Pretextuality Of Kansas V. Hendricks, Michael L. Perlin

Articles & Chapters

No abstract provided.

No Direction Home: The Law And Criminal Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

No abstract provided.

Corrections Law: The Supreme Court And Treatment In Correctional And Forensic Mental Health Facilities: Recent Trends And Decisions, Michael L. Perlin

Articles & Chapters

No abstract provided.

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 …

The Supreme Court, The Mentally Disabled Criminal Defendant, Psychiatric Testimony In Death Penalty Cases, And The Power Of Symbolism: Dulling The Ake In Barefoot’S Achilles Heel, Michael L. Perlin

Articles & Chapters

No abstract provided.

Book Review Of The Insanity Defense And The Trial Of John W. Hinckley, Jr., By Lincoln Caplan, Michael L. Perlin

Other Publications

No abstract provided.

The Sounds Of Silence: Can Post-Miranda Silence Be Used To Rebut An Insanity Defense, Michael L. Perlin

Other Publications

No abstract provided.

Public Opinion Of Forensic Psychiatry Following The Hinckley Verdict, Dan Slater, Valerie P. Hans

Cornell Law Faculty Publications

The authors obtained opinions of forensic psychiatry in a community survey following the not guilty by reason of insanity verdict in the Hinckley trial. A majority of respondents expressed little or no confidence in the specific psychiatric testimony in the Hinckley trial and only modest faith in the general ability of psychiatrists to determine legal insanity. Respondents' general and specific attitudes were strongly related. Younger people and women were more positive in their views of psychiatry in the courtroom.

"Plain Crazy:" Lay Definitions Of Legal Insanity, Valerie P. Hans, Dan Slater

Cornell Law Faculty Publications

The 1982 Not Guilty by Reason of Insanity (NGRI) verdict in the trial of John Hinckley, Jr., would-be assassin of President Reagan, again has brought to the forefront long-standing public dissatisfaction in the United States with the insanity plea. In the wake of the Hinckley verdict, proposals for reform or abolition of the insanity defense have been submitted to both houses of the U.S. Congress and to state legislatures throughout the nation (Cunningham, 1983). Fueling this reform movement is apparent public dissatisfaction with the insanity plea as it is currently defined.

In contrast to voluminous literature concerning legal and psychiatric …

John Hinckley, Jr. And The Insanity Defense: The Public's Verdict, Valerie P. Hans, Dan Slater

Cornell Law Faculty Publications

Public furor over the Not Guilty by Reason of Insanity verdict in the trial of John Hinckley, Jr. already has stimulated legal changes in the insanity defense. This study documents more systematically the dimensions of negative public opinion concerning the Hinckley verdict. A survey of Delaware residents shortly after the trial's conclusion indicated that the verdict was perceived as unfair, Hinckley was viewed as not insane, the psychiatrists' testimony at the trial was not trusted, and the vast majority thought that the insanity defense was a loophole. However, survey respondents were unable to define the legal test for insanity and …

The Insanity Defense Under Siege: Legislative Assaults And Legal Rejoinders, Joseph H. Rodriguez, Laura M. Lewinn, Michael L. Perlin

Articles & Chapters

No abstract provided.

Après The Acquittal, Le Déluge: Release Procedures And Allocation Of The Burden Of Proof In Subsequent Review Hearings Following A Finding Of ‘Not Guilty By Reason Of Insanity’ In State Of New Jersey V. Herta Fields, Michael L. Perlin

Articles & Chapters

No abstract provided.

Competency To Stand Trial In Federal Courts: Conceptual And Constitutional Problems, William T. Pizzi

Publications

No abstract provided.

Psychiatry And Criminal Responsibility, Jerome Hall

Articles by Maurer Faculty

No abstract provided.