Michael L. Perlin

The hidden prejudice : mental disability on trial

Setting the Stage - Why Mental Disability is on Trial On Sanism On Pretextuality Involuntary Civil Commitment Law The Right to Treatment The Right to Refuse Treatment The Right to Sexual Interaction The Americans with Disabilities Act Competence to Plead Guilty/Competence to Waive Counsel The Insanity Defence The Federal Sentencing Guidelines Therapeutic Jurisprudence Unpacking Mental Disability Law.

Cross-Cultural Perspectives on the Classification of Children With Disabilities Part II. Implementing Classification Systems in Schools

This article is the second in a 2-part synthesis of an international comparative seminar on the classification of children with disabilities. In this article, the authors discuss classification frameworks used in identifying children for the purpose of providing special education and related services. The authors summarize 7 papers that addressed aspects of disability classification in educational systems in the United States and the United Kingdom. They discuss current policies for determining which children receive special education services, the origins and evolution of these policies, and current dilemmas and challenges associated with classification schemes and the provision of special education. The authors also describe emerging data and possible models and practices that might be used in educational systems. They conclude with the recognition that both formal and informal educational classification systems will continue to be required within a system that must address the competing priorities of individual needs and the broader social and community goals of education. However, as was argued in the previous article, by understanding the mix of intentions that underpin these policies, as well as periodically reviewing the norms that underlie them, it may be possible to move classification to descriptors that can be used to efficiently and effectively define educational needs and distribute resources.

The Legal Status of the Psychologist in the Courtroom

In discussing the legal status of the psychologist in the courtroom, the more important but hidden issue of the social status of the psychologist must also be explored. Thus, although psychologists now routinely testify as expert witnesses on a whole range of issues in criminal and civil matters, a perception lingers in the minds of judges and jurors that the psychologist is a “second-rate” expert compared to the forensic psychiatrist. The roots of this assumption are examined, and it is suggested that psychologists themselves have helped perpetuate this myth. On the other hand, psychologists clearly do have special skills and techniques uniquely preparing them for certain courtroom work; in addition, participation in the judicial process enables psychologists to serve as advocates for social change. Psychologists must thus confront the background of the anticourtroom bias and educate all participants in the litigation process as to the need for appropriate psychological testimony.

Fatal Assumption: A Critical Evaluation of the Role of Counsel in Mental Disability Cases

This article questions the assumption that mentally disabled individuals are regularly afforded competent counsel. It finds that such counsel is frequently not available and that our failure to challenge this assumption threatens to make illusory reform efforts by lawyers and mental health professionals alike. The presence of vigorous, independent counsel is critical, especially since legal rights are not self-executing. Such counsel serves an educative function in the entire process, seeks to assure the implementation of collateral legal rights, and avoids the “underidentification” of mental disability cases. These functions have become more important as the political and social climate has changed and as the subject matter has become more complex. A series of reform recommendations is offered to litigators, policy makers, judges, and legislators.

Reassessing the Aftercare Treatment of Individuals Found not Guilty Due to a Mental Disability in Hunan, China: Supplemental Study into the Disposition of Mentally Ill Offenders after Forensic Psychiatric Assessment

Objective: The purpose of the present paper was to examine the disposition of individuals in Hunan, China who are found not criminally responsible due to a mental disorder or defect. Method: Self-developed questionnaires were mailed to the family members of 240 patients who had received forensic psychiatric evaluations at the forensic psychiatric assessment center of Central South University, between 2001 and 2002. Results: One hundred and seventy questionnaires were fully completed and returned by the patients’ family members. According to the answers, 64.1% (109 patients) were found not criminally responsible due to a mental disorder or defect. In 87.6% of the cases, a judgement of guilty was in agreement with the psychiatrists recommendation concerning criminal responsibility. A total of 61.8% of the patients found not guilty were discharged to their families and did not receive any further psychiatric treatment. Conclusion: In most cases, judicial decisions are consistent with a psychiatrists opinion of criminal responsibility due to a mental disorder or defect. After such adjudication, further psychiatric treatment is often neglected due to the lack of resources and information. Hunan, China must make a continued investment into the availability and quality of outpatient mental health treatment for forensic patients after they have been discharged.

Dignity was the first to leave: Godinez V. Moran, Colin Ferguson, and the trial of mentally disabled criminal defendants

This article considers the Colin Ferguson trial in the context of the United States Supreme Courts decision in Godinez v. Moran, establishing a unitary standard for the determinations of competence to stand trial, competence to plead guilty, and competence to waive counsel. The Ferguson trial was widely seen as a “charade.” I argue that the Ferguson spectacle was the inevitable denouement of the Godinez decision. I then look at the Ferguson trial (through contemporaneous press and television coverage) under the filters of “sanism” and “pretextuality.” I conclude that the “dignity” value—a prerequisite for a constitutionally-acceptable fair trial—was, as a result of Godinez, lacking in the Ferguson case.

Therapeutic jurisprudence and the civil rights of institutionalized mentally disabled persons: hopeless oxymoron or path to redemption?

This article examines, from a therapeutic jurisprudence (TJ) perspective, the rights of institutionalized mentally disabled persons to determine whether TJ is compatible with positions advancing civil rights and liberties, and whether lawyers for such individuals should look more closely to TJ as a source of rights. It concludes (a) that despite harsh criticisms of mental disability law reform, most of the important decisions in the areas of involuntary civil commitment, right to treatment, and right to refuse treatment law have a strong TJ component and (b) that TJ analyses may be the appropriate tool to reinvigorate this area of mental disability law.

‘Tolling for the luckless, the abandoned and forsaked’: Therapeutic jurisprudence and international human rights law as applied to prisoners and detainees by forensic psychologists

Objectives. There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing the extent to which the legal system serves therapeutic or anti-therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. The paper aims to provide an intersection between human rights, therapeutic jurisprudence, and forensic psychology. Method. Human rights are based on legal, social, and moral rules. Human rights literature generally considers legal rights but such policy statements do not provide principles to guide forensic psychologists in addressing moral or social rights. Therefore, a framework to guide forensic psychologists is required. Conclusion. As duty-bearers, forensic psychologists need to address the core values of freedom and well-being in rights holders (in this instance, prisoners and detainees with a mental illness). The paper proposes that human rights principles can add to the normative base of a therapeutic jurisprudence framework, and in-turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights.

'The Ladder of the Law Has No Top and No Bottom': How Therapeutic Jurisprudence Can Give Life to International Human Rights

In the past two decades, therapeutic jurisprudence (TJ) has become one of the most important theoretical approaches to the law. But, there has, as of yet, been puzzlingly little written about the relationship between TJ and international human rights law. To be sure, there has been some preliminary and exploratory work on the relationship between TJ and international law in general, but virtually nothing on its relationship to international human rights law in a mental disability law context. This paper seeks to focus on this lack of consideration, to speculate as to why that might be, and to offer some suggestions as to how to infuse some new vitality and vigor into this important area of law and social policy. In this article, first, I offer a brief explanation of TJ. Next, I discuss, also briefly, the impact (and the potential future greater impact) of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities (CRPD) on this area. Then, I consider the sparse commentary currently available on the intersection between TJ and international law in general, and will speculate as to why this is so sparse. Then, I offer some thoughts as to the TJ/international human rights law connection, looking specifically at three questions that require far more attention from this perspective (access to counsel, the use of state-sanctioned psychiatry as a tool of political oppression, and the potential redemptive power of the CRPD), and describe a research agenda that scholars might turn to in furtherance of the investigation of the relationships between therapeutic jurisprudence, international human rights law and mental disability law. I conclude by calling on scholars, activists, advocates and practitioners to begin to take this connection seriously in their future work.

'There Must Be Some Way Out of Here': Why the Convention on the Rights of Persons with Disabilities is Potentially the Best Weapon in the Fight Against Sanism

It is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system – judicial opinions, legislation, the role of lawyers, juror decision-making – and the entire fabric of society. For those unfamiliar with the term, I define “sanism” as an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, 1 that permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses. 2  Notwithstanding over two decades of anti-discrimination laws 3 and, in many jurisdictions, an impressive corpus of constitutional case law and state statutes, 4 the attitudes of judges, jurors and lawyers often reflect the same level of bigotry that defined this area of law half a century ago. 5 The reasons for this are complex and, to a great extent, flow from centuries of prejudice – often hidden prejudice, often socially acceptable prejudice 6 – that has persisted in spite of prophylactic legislative and judicial reforms, and – at least superficially – an apparent uptick in public awareness. I have railed multiple times about the “irrational,” “corrosive”, “malignant” and “ravaging” effects of sanism, but its “pernicious power” still poisons all of mental disability law. 7  The recently-ratified Convention on the Rights of Persons with Disabilities (CRPD) is the most revolutionary international human rights document – ever – that applies to persons with disabilities. The Disability Convention furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most every aspect of life. It firmly endorses a social model of disability – a clear and direct repudiation of the medical model that traditionally was part-and-parcel of mental disability law. It calls for “respect for inherent dignity” and “non-discrimination.” Subsequent articles declare “freedom from torture or cruel, inhuman or degrading treatment or punishment,” “freedom from exploitation, violence and abuse,” and a right to protection of the “integrity of the person.”  In this paper, I consider the impact that the Convention is likely to have on sanism. First, I will briefly discuss both our sanist past and our sanist present. Then, I will consider how the CRPD has the greatest potential for combating sanism, and for changing social attitudes. In this latter inquiry, I will also draw on the tools of therapeutic jurisprudence. Then, I will offer some brief and modest conclusions.