Disability Law Commons^™

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.

There's Voices In The Night Trying To Be Heard: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism -- an 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 -- permeates all aspects of the legal system and the entire fabric of American society.

Notwithstanding nearly …

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 …

On Desolation Row: The Blurring Of The Borders Between Civil And Criminal Mental Disability Law, And What It Means To All Of Us, Michael L. Perlin, Deborah Dorfman, Naomi Weinstein

Articles & Chapters

One of the great tensions of mental disability law is the unresolved, trompe d’oeil question of whether it is a subset of the civil law, of the criminal law, or something entirely different. The resolution of this question is not an exercise in formalism or pigeonholing, but is critical to an understanding of the future direction of mental disability law, the deeper meaning of US Supreme Court cases and important state legislative initiatives, and the whole array of hidden issues and agendas that lurk under the surface of mental disability law-decision making. As mental disability law has matured, a dual …

Tolling For The Aching Ones Whose Wounds Cannot Be Nursed’: The Marginalization Of Racial Minorities And Women In Institutional Mental Disability Law, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Individuals with mental disabilities have traditionally been and continue to be subjected to rights violations and pervasive discrimination because of their mental disabilities. Seen as “the other,” individuals who are racial minorities and/or are women are marginalized to an even greater extent than other persons with mental disabilities in matters related to civil commitment and institutional treatment (especially involving theright to refuse medication).

It is impossible to examine these questions critically without coming to grips with the ways that expert testimony — testimony that is essential and necessary in all these cases — is infected with bias that leads to …

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 …

Sexuality, Disability, And The Law: Beyond The Last Frontier? (2016), Michael L. Perlin, Alison Lynch

Books

Sexuality, Disability, and the Law approaches issues of sexual autonomy and disability from multiple perspectives, including constitutional law, international human rights, therapeutic jurisprudence, history, cognitive psychology, dignity studies, and theories and findings on gender constructs and societal norms. Perlin and Lynch determine that if our society continues to assert that persons with mental disabilities possess a primitive morality, we allow ourselves to censor their feelings and their actions. By denying their ability and desires to show love and affection, we justify this disparate treatment. Our reliance on stereotypes has warped our attitudes and our policies, and has allowed us to …

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 …

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 …

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 …

Simplify You, Classify You: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Articles & Chapters

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

* The need to insure that all children receive adequate education

* The need to insure that the cure is not worse than the illness (that is, that …

Through The Wild Cathedral Evening: Barrier, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us …

Baby, Look Inside Your Mirror: The Legal Profession's Willful And Sanist Blindness To Lawyers With Mental Disabilities, Michael L. Perlin

Articles & Chapters

The legal profession has notoriously ignored the reality that a significant number of its members exhibit signs of serious mental illness (and become addicted or habituated to drugs or alcohol at levels that are statistically significantly elevated from levels of the public at large). This is no longer news. What has not been explored is why so much of the bar has remained willfully ignorant of these realities, and why it refuses to confront the depths of this problem.

The roots of this puzzle are found in the social attitude of sanism, an irrational prejudice of the same quality and …

Through The Wild Cathedral Evening: Barriers, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us …

Commentary: Mental Health Legislation, Michael L. Perlin

Other Publications

No abstract provided.

What's Good Is Bad, What's Bad Is Good, You'll Find Out When You Reach The Top, You're On The Bottom: Are The Americans With Disabilities Act (And Olmstead V. L.C.) Anything More Than 'Idiot Wind', Michael L. Perlin

Articles & Chapters

Mental Disability law is contaminated by "sanism," an irrational prejudice similar to such other irrational prejudices as racism and sexism. The passage of the Americans with Disabilities Act (ADA) - a statute that focused specifically on questions of stereotyping and stigma - appeared at first to offer an opportunity too deal frontally with sanist attitudes and, optimally, to restructure the way that citizens with mental disabilities were dealt with by the remainder of society. However, in its first decade, the ADA did not prove to be a panacea for such persons. The Supreme Court's 1999 decision in Olmstead v. L.C. …

What Is Therapeutic Jurisprudence?, Michael L. Perlin

Articles & Chapters

No abstract provided.

On Sanism, Michael L. Perlin

Articles & Chapters

No abstract provided.