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Full-Text Articles in Disability Law

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 Jan 2019

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.


'Your Old Road Is/Rapidly Agin': International Human Rights Standards And Their Impact On Forensic Psychologists, The Practice Of Forensic Psychology, And The Conditions Of Institutionalization Of Persons With Mental Disabilities, Michael L. Perlin Jan 2018

'Your Old Road Is/Rapidly Agin': International Human Rights Standards And Their Impact On Forensic Psychologists, The Practice Of Forensic Psychology, And The Conditions Of Institutionalization Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

An earlier version of this paper was presented as the Lynn Stuart Weiss lecture at the American Psychological Association yearly conference, sponsored by the American Psychology-Law Society and the American Psychology Foundation, August 2016, Denver, Colorado.

For years, considerations of the relationship between international human rights standards and the work of forensic psychologists have focused on the role of organized psychology in prisoner abuse at Guantanamo Bay and Abu Ghirab. That issue has been widely discussed and debated, and these discussions show no sign of abating. But there has been virtually no attention given to another issue of international human ...


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 Jan 2018

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 ...


Who's Pretending To Care For Him? How The Endless Jail-To-Hospital-To-Street-Repeat Cycle Deprives Persons With Mental Disabilities The Right To Continuity Of Care, Naomi Weinstein, Michael L. Perlin Jan 2018

Who's Pretending To Care For Him? How The Endless Jail-To-Hospital-To-Street-Repeat Cycle Deprives Persons With Mental Disabilities The Right To Continuity Of Care, Naomi Weinstein, Michael L. Perlin

Articles & Chapters

There is a well-documented “shuttle process” by which individuals committed to psychiatric institutions (having been charged with minor “nuisance”-type criminal offenses) are often stabilized, returned to jail to await trial, and then returned to the hospital following relapse. This shuttling or cycling is bad for many reasons, not least of which is the way that it deprives the cohort of individuals at risk from any meaningful continuity of care. Continuity of care is crucial in order to reduce the rate of incarceration and institutionalization for persons with mental illness. Without this continuity, it is far less likely that any ...


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 Jan 2017

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 skewed ...


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 Jan 2017

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 treatment of ...


Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin Jan 2016

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 contend ...


Your Corrupt Ways Had Finally Made You Blind: Prosecutorial Misconduct And The Use Of Ethnic Adjustments In Death Penalty Cases Of Defendants With Intellectual Disabilities, Michael L. Perlin Jan 2016

Your Corrupt Ways Had Finally Made You Blind: Prosecutorial Misconduct And The Use Of Ethnic Adjustments In Death Penalty Cases Of Defendants With Intellectual Disabilities, Michael L. Perlin

Articles & Chapters

In a recent masterful article, Professor Robert Sanger revealed that, since the Supreme Court's decision in Atkins v. Virginia, some prosecution experts have begun using so-called "ethnic adjustments" to artificially raise minority defendants' IQ scores, making such defendants-who would otherwise have been protected by Atkins and, later, by Hall v. Florida-eligible for the death penalty. Sanger accurately concluded that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. He relied further on epigenetics to demonstrate that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ ...


Current Issues In Therapeutic Jurisprudence, David Wexler Jan 2016

Current Issues In Therapeutic Jurisprudence, David Wexler

Articles & Chapters

No abstract provided.


In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch Jan 2016

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 ...


Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin Jan 2016

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 little ...


'Love Is Just A Four-Letter Word': Sexuality, International Human Rights, And Therapeutic Jurisprudence, Michael L. Perlin, Alison Lynch Jan 2015

'Love Is Just A Four-Letter Word': Sexuality, International Human Rights, And Therapeutic Jurisprudence, Michael L. Perlin, Alison Lynch

Articles & Chapters

One of the most controversial social policy issues that remains dramatically underdiscussed in scholarly literature is the sexual autonomy of persons with psychosocial and intellectual disabilities, especially those who are institutionalized. This population – always marginalized and stigmatized – has traditionally faced a double set of conflicting prejudices: on one hand, people with disabilities are infantilized (as not being capable of having the same range of sexual desires, needs and expectations as persons without disabilities), and on the other, this population is demonized (as being hypersexual, unable to control base or primitive urges). Although attitudes about the abilities and capabilities of persons ...


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 Jan 2015

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 ...


Creating A Building A Disability Rights Information Center For Asia And The Pacific Clinic: Of Pedagogy And Social Justice, Michael L. Perlin, Catherine Barreda, Katherine Davies, Mehgan Gallagher, Nicole Israel, Stephanie Mendelsohn Jan 2015

Creating A Building A Disability Rights Information Center For Asia And The Pacific Clinic: Of Pedagogy And Social Justice, Michael L. Perlin, Catherine Barreda, Katherine Davies, Mehgan Gallagher, Nicole Israel, Stephanie Mendelsohn

Articles & Chapters

No abstract provided.


Forensic Psychiatry And The Law: Litigation, Advocacy, Scholarship And Teaching, Michael L. Perlin Jan 2015

Forensic Psychiatry And The Law: Litigation, Advocacy, Scholarship And Teaching, Michael L. Perlin

Articles & Chapters

No abstract provided.


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 ...


Yonder Stands Your Orphan With His Gun: The International Human Rights And Therapeutic Jurisprudence Implications Of Juvenile Punishment Schemes, Michael L. Perlin Jan 2013

Yonder Stands Your Orphan With His Gun: The International Human Rights And Therapeutic Jurisprudence Implications Of Juvenile Punishment Schemes, Michael L. Perlin

Articles & Chapters

In the last decade, the US Supreme Court has ruled that the death penalty, a life sentence without possibility of parole (LWOP), and mandatory LWOP for homicide convictions violate the Eighth Amendment when applied to juvenile defendants. These decisions were premised, in large part, on findings that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds," and that those findings both lessened a child's "moral culpability" and enhanced the prospect that, as the years go by and neurological development occurs, his "deficiencies will be reformed."

These decisions have, by and large, been ...


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 ...


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 ...


Online Mental Disability Law Education, A Disability Rights Tribunal, And The Creation Of An Asian Disability Law Database: Their Impact On Research, Training And Teaching Of Law, Criminology Criminal Justice In Asia, Michael L. Perlin, Heather Ellis Cucolo, Yoshikazu Ikehara Jan 2013

Online Mental Disability Law Education, A Disability Rights Tribunal, And The Creation Of An Asian Disability Law Database: Their Impact On Research, Training And Teaching Of Law, Criminology Criminal Justice In Asia, Michael L. Perlin, Heather Ellis Cucolo, Yoshikazu Ikehara

Articles & Chapters

Two professors at New York Law School (NYLS) and the director of the Tokyo Advocacy Law Office are engaged in initiatives with the potential to have major influences on the study of law, criminology, and criminal justice: the creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP), and expansion of NYLS’s online mental disability law program (OMDLP) to include numerous Asian venues.

DRTAP seeks to create a sub-regional body (a Commission and eventually a Court) to hear violations of the UN’s Convention on the Rights of Persons with Disabilities. This will explicitly inspire scholarship about ...


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 ...


Abandoned Love: The Impact Of Wyatt V. Stickney On The Intersection Between International Human Rights And Domestic Mental Disability Law, Michael L. Perlin Jan 2011

Abandoned Love: The Impact Of Wyatt V. Stickney On The Intersection Between International Human Rights And Domestic Mental Disability Law, Michael L. Perlin

Articles & Chapters

Wyatt v. Stickney - the first case to find (40 years ago) a constitutional right to treatment for persons institutionalized because of mental disability - is the most important institutional rights case litigated in the history of domestic mental disability law. It spawned “copycat” litigation in multiple federal district courts and state superior courts, led directly to the creation of “Patients’ Bills of Rights” in most states, and inspired the creation of the Developmental Disabilities Assistance and Bill of Rights Act, the Mental Health Systems Act Bill of Rights, and the federally-funded Protection and Advocacy System. Its direct influence on the development ...


"With Faces Hidden While The Walls Were Tightening": Applying International Human Rights Standards To Forensic Psychology, Michael L. Perlin Jan 2010

"With Faces Hidden While The Walls Were Tightening": Applying International Human Rights Standards To Forensic Psychology, Michael L. Perlin

Articles & Chapters

Although there are now robust bodies of literature in both Alaw and psychology and in international human rights law, there has been remarkably little written about the specific relationship between forensic psychology and international human rights standards (and about the relationship between mental disability law and such standards in general). Attention is paid when it appears that state psychiatry or psychology is used as a tool of political oppressions e.g., in the former Soviet Union or in China, but the literature is strangely silent on questions dealing with the extent to which forensic psychology practice comports withinternational human rights ...


Equality, I Spoke That Word/ As If A Wedding Vow: Mental Disability Law And How We Treat Marginalized Persons, Michael L. Perlin Jan 2009

Equality, I Spoke That Word/ As If A Wedding Vow: Mental Disability Law And How We Treat Marginalized Persons, Michael L. Perlin

Articles & Chapters

No abstract provided.


A Change Is Gonna Come: The Implications Of The United Nations Convention On The Rights Of Persons With Disabilities For The Domestic Practice Of Constitutional Mental Disability Law, Michael L. Perlin Jan 2009

A Change Is Gonna Come: The Implications Of The United Nations Convention On The Rights Of Persons With Disabilities For The Domestic Practice Of Constitutional Mental Disability Law, Michael L. Perlin

Articles & Chapters

As recently as fifteen years ago, disability was not broadly acknowledged as a human rights issue. Although there were prior cases decided in the United States and in Europe that, retrospectively, had been litigated from a human rights perspective1 the characterization of "disability rights" (especially the rights of persons with mental disabilities) was not discussed in a global public, political or legal debate until the early 1990s. Instead, disability was seen only as a medical problem of the individual requiring a treatment or cure. By contrast, viewing disability as a human rights issue requires us to recognize the inherent equality ...


His Brain Has Been Mismanaged With Great Skill: How Will Jurors Respond To Neuroimaging Testimony In Insanity Defense Cases, Michael L. Perlin Jan 2009

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 well-documented, (2) will this ...


The Witness Who Saw, He Left Little Doubt: A Comparative Consideration Of Expert Testimony In Mental Disability Law Cases, Michael L. Perlin, Astrid Birgden, Kris Gledhill Jan 2009

The Witness Who Saw, He Left Little Doubt: A Comparative Consideration Of Expert Testimony In Mental Disability Law Cases, Michael L. Perlin, Astrid Birgden, Kris Gledhill

Articles & Chapters

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper ...


Introduction: Challenging The School-To-Prison Pipeline, Deborah N. Archer Jan 2009

Introduction: Challenging The School-To-Prison Pipeline, Deborah N. Archer

Articles & Chapters

No abstract provided.


Simplify You, Classify You: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin Jan 2008

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 the labeling of a ...