A Prescription for Dignity

Rethinking Criminal Justice and Mental Disability Law

Michael L. Perlin

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317187059
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Examining the treatment of persons with mental disabilities in the criminal justice system, this book offers new perspectives that are crucial to an understanding of the ways in which society projects onto criminal defendants prejudices and attitudes about responsibility, free will, autonomy, choice, public safety, and the meaning and purpose of punishment, all with a focus on ways to enhance dignity in the criminal trial process. It is a detailed exploration of issues of adequacy of counsel; the impact of international human rights law, following the ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD); the role of mental health courts; and the influence of therapeutic jurisprudence, procedural justice, and restorative justice on the legal process. It considers all of these perspectives in the context of criminal justice system issues such as competency findings, the insanity defense, and sentencing. Demonstrating how the question of treatment of persons with mental disabilities in the criminal justice system is not only a vital one for both scholars and practitioners, but also a central facet of international human rights law, this book suggests policy development, further scholarly inquiries, and newly invigorated thinking and action to place dignity at the core of the criminal justice system.

Chapter 1
Introduction

The relationship between mental disability and the criminal justice system is complex, and it serves as a screen upon which society projects bundles of attitudes, emotions and feelings about responsibility, free will, autonomy, choice, public safety and the meaning and purpose of punishment.1 Too often, it serves as an escape valve through which society’s prejudices and stereotypes overwhelm our commitment to fairness and justice.2 Too often, it creates an atmosphere in which society winks its collective eye at known-to-be-false expert testimony, teleologically offered to meet an approved social end.3 Twenty-five years ago, I characterized the relationship between the judicial process and persons with mental disabilities as a “doctrinal abyss”;4 the reality is that all too little has changed in the intervening two and a half decades.5

I have written about these issues before, in a series of law review articles and in full-length books on (1) the insanity defense,6 (2) the ways that what I call “sanism” and “pretextuality” permeate and infect the entire legal process,7 (3) the relationship between international human rights and mental disability law,8 and (4) the relationship between mental disability law and the death penalty.9 Here, I widen my range to include the entire criminal justice system as it affects persons with mental disabilities.

Sanism is 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. It permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, expert and lay witnesses. Its corrosive effects have warped mental disability law jurisprudence in involuntary civil commitment law, institutional law, tort law and all aspects of the criminal process.10

Pretextuality defines the ways in which courts accept testimonial dishonesty (either implicitly or explicitly) and engage similarly in dishonest (and frequently meretricious) decision-making. It is especially poisonous where witnesses, especially expert witnesses, show a “high propensity to purposely distort their testimony in order to achieve desired ends.”11 This pretextuality infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blasé judging, and, at times, perjurious and/or corrupt testifying.12 It continues to this day.13

In this volume, I am broadening my substantive focus to consider multiple substantive criminal law topics, and my theoretical focus to move beyond the attitudinal factors that I have already discussed extensively.14 I have chosen to do this because my teaching, my writing, and my involvement in the public sector over the past 25 years have led me to focus on several additional principles that, I think, require greater scrutiny.

• It is meaningless (perhaps fatuous) to engage in any sort of serious discussion of these issues without looking carefully at issues of adequacy of counsel in the specific context of the representation of persons with mental disabilities.15

• It is essential that we begin to think seriously about the impact of international human rights law, specifically, the recently ratified United Nations Convention on the Rights of Persons with Disabilities (CRPD),16 on the issues in question.17

• It is time to restructure the dialogue about mental health courts,18 and to begin to (1) consider whether the development of such courts will finally allow us to move away from society’s predominantly currently-held position that mental illness reflects “a defect of morality or will,”19 and (2) take seriously the potential ameliorative impact of such courts on the ultimate disposition of all cases involving criminal defendants with mental disabilities.20

• It is necessary to consider the impact of therapeutic jurisprudence,21 procedural justice22 and restorative justice23 (what I will call “alternative jurisprudences”)24 on these issues.25

This is emphatically not to say that I am abandoning my focus on the impact of sanism and pretextuality (or my collateral considerations of the impact of false “ordinary common sense” (OCS)26 and the use of cognitive-simplifying heuristic devices27 on this body of the law) in our thinking about these issues. On the contrary, I think it is essential that we take these concepts even more seriously than ever. Rather, I am suggesting that we must add new perspectives to our inquiry: a counsel-adequacy-based perspective, an international human rights-based perspective, a mental health courts-based perspective and a comprehensive “alternative jurisprudences”-based perspective.28

It is also essential that we consider the importance of dignity to this entire area of law and policy. Human rights are necessary for all individuals—human rights violations occur when persons are treated as objects or as a means to others’ ends.29 All citizens—including ones who are institutionalized, whether in jails, prisons, facilities for persons with intellectual disabilities, or psychiatric facilities—have enforceable human rights.30 Professor Aaron Dhir has written, “Degrading living conditions, coerced ‘treatment,’ scientific experimentation, seclusion, restraints— the list of violations to the dignity and autonomy of those diagnosed with mental disabilities is both long and egregious.”31 So are a failure to provide adequate and effective counsel and honor human rights an affront to the dignity that must be the bedrock of our legal system.32 Importantly, perceptions of systemic fairness are driven, in large part, by “the degree to which people judge that they are treated with dignity and respect.”33 The words of a federal district court judge from nearly 40 years ago still ring true: “[i]f there is to be the reality of a fair trial, both in fact and in appearance, it must be conducted in an atmosphere of respect, order, decorum and dignity befitting its importance both to the prosecution and the defense.”34 Each of the chapters in this book must be read through this lens of dignity.

I hope that, by adding these perspectives to this project, I will offer a blueprint for policy development, further scholarly inquiries, and, optimally, social change. I hope that by focusing on counsel issues, and stressing that, in many areas (using that term both in its geographic and its substantive sense), we have not shown any incremental improvement in the 38 years since Judge David Bazelon charged that lawyers in his court representing criminal defendants with mental disabilities were “walking violations of the Sixth Amendment,”35 this book will encourage law schools, bar associations, and other lawyers’ “trade groups” to take this issue more seriously.

I hope that, by focusing on international human rights issues in the specific context of the criminal trial process, a focus almost entirely absent from the otherwise-robust debate about interpretation and implementation of the CRPD,36 this book will encourage policymakers in criminal justice, and international human rights activists and scholars, to, again, take this issue more seriously.37

I hope that, by looking at mental health courts in this context, we will begin to change public attitudes towards persons with mental disabilities,38 to begin to decrease the attendant stigma,39 and to consider more seriously the ways that such courts can bring additional dignity, respect and fairness to the criminal justice system.40

Finally, I hope that, by focusing on the therapeutic jurisprudence/procedural justice/restorative justice implications of all that takes place when a person with a mental disability is involved in the criminal trial...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Preface
• 1 Introduction
• Part I The Four Factors
• 2 The Four Factors: Sanism, Pretextuality, Heuristics and “Ordinary Common Sense”
• Part II The Five Perspectives
• 3 Counsel
• 4 International Human Rights Law
• 5 Mental Health Courts1
• 6 Alternative Jurisprudences
• 7 Contextualizing Dignity
• Part III The Substantive Areas
• 8 Competencies
• 9 The Insanity Defense
• 10 Sentencing
• 11 Conclusion
• Index