Law Commons^™

See This Empty Cage Now Corrode: The International Human Rights And Comparative Law Implications Of Sexually Violent Predator Laws, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

From every perspective, our sexually violent predator (SVPA) laws are a miserable failure. In this paper, we present a new approach: a turn to international human rights law as a source of rights for the population in question, and a consideration of the matter from the perspective of comparative law.

To briefly summarize, many nations have enacted laws that both mirror and contradict early developments in United States civil commitment jurisprudence. In these nations, though, challenges to community containment and preventive detention laws have been more successful when based upon international human rights law. Also, registry notification is generally far …

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 …

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Lynch

Articles & Chapters

Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those acquitted …

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 …

All His Sexless Patients: Persons With Mental Disabilities And The Competence To Have Sex, Michael L. Perlin, Alison Lynch

Articles & Chapters

With the growth in the field of mental disability law over the past 50 years, very few topics involving persons with mental illness remain taboo or off limits to scholars and judges who face these issues daily. However, discussions of the question of whether persons with mental disabilities have a right to voluntary sexual interaction often touches a raw nerve in conversations about mental disability law, even with those who are practicing in the field, and the discomfort people feel in examining this topic is exacerbated when discussing individuals who are institutionalized.

Although this often appears to be a difficult …

'Friend To The Martyr, A Friend To The Woman Of Shame': Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior. The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the …

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 welcomed …

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 issues such …

Striking For The Guardians And Protectors Of The Mind: The Convention On The Rights Of Persons With Mental Disabilities And The Future Of Guardianship Law, Michael L. Perlin

Articles & Chapters

In many nations, entry of a guardianship order became the “civil death” of the person affected. It has been accurately characterized as “civil death” characterization because a person subjected to the measure is not only fully stripped of their legal capacity in all matters related to their finance and property, but is also deprived of, or severely restricted in, many other fundamental rights, [including] the right to vote, the right to consent or refuse medical treatment (including forced psychiatric treatment), freedom of association and the right to marry and have a family.

Guardianship is also frequently entered. In Hungary, for …

Promoting Social Change In Asia And The Pacific: The Need For A Disability Rights Tribunal To Give Life To The Un Convention On The Rights Of Persons With Disabilities, Michael L. Perlin

Articles & Chapters

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission onHuman Rights.

In Asia and the Pacific region, however, there is no such body. Many reasons have …

Online, Distance Legal Education As An Agent Of Social Change, Michael L. Perlin

Articles & Chapters

New York Law School (NYLS) created its online, distance learning mental disability law program in an effort to provide education in an area of the law that remains hidden in most law school curricula. Since 2000, it has offered its mental disability law courses in an online, distance learning format to its own students, to law students from other US-based law schools, to mental health professionals, to students in all the allied mental health professions and in the fields of criminology and criminal justice, and to activists and advocates (including members of the psychiatric survivor movement). It has offered the …

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 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 …

Where The Home In The Valley Meets The Damp Dirty Prison: A Human Rights Perspective On Therapeutic Jurisprudence And The Role Of Forensic Psychologists In Correctional Settings, Astrid Birgden, Michael L. Perlin

Articles & Chapters

The roles of forensic psychologists in coerced environments such as corrections include that of treatment provider (for the offender) and that of organizational consultant (for the community). This dual role raises ethical issues between offender rights and community rights; an imbalance results in the violation of human rights. A timely reminder of a slippery ethical slope that can arise is the failure of the American Psychological Association to manage this balance regarding interrogation and torture of detainees under the Bush administration. To establish a “bright-line position” regarding ethical practice, forensic psychologists need to be cognizant of international human rights law. …

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 withDisabilities 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 to …

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 …

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 …

International Human Rights And Comparative Mental Disability Law: The Universal Factors, Michael L. Perlin

Articles & Chapters

An examination of comparative mental disability law reveals that there are at least five dominant, universal, core factors that must be considered carefully in any evaluation of the key question of whether international human rights standards have been violated. Each of these five factors is a reflection of the shame that the worldwide state of mental disability law brings to all of us who work in this field. Each is tainted by the pervasive corruption of sanism that permeates all of mental disability law. Each reflects a blinding pretextuality that contaminates legal practice in this area.

These are the factors …

International Human Rights And Comparative Mental Disability Law: The Role Of Institutional Psychiatry In The Suppression Of Political Dissent, Michael L. Perlin

Articles & Chapters

For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons …