Mental Disability and the Death Penalty
The Shame of the States
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About the author
Michael L. Perlin is professor of Law at New York Law School (NYLS),director of NYLS's Online Mental Disability Law Program, and director of NYLS's International Mental Disability Law Reform Project in its Justice Action Center. He serves on the Board of Advisors of Disability Rights International, and has done advocacy work on behalf of persons with disabilities on every continent. He has written 21 books and over 250 articles on all aspects of mental disability law, most dealing with the intersection of mental disability law and criminal procedure. His book, The Jurisprudence of the Insanity Defense, won the Manfred Guttmacher Award given by the American Psychiatric Association and the American Academy of Psychiatry and Law as the best book in the field of law and forensic psychiatry in 1995. He has done extensive work in China with the American Bar Association’s Rule of Law—Asia office where, in conjunction with the All China Lawyers’ Association, and the Northwest University of Politics and Law, he has conducted “Training the Trainers” workshops in Xi’an, China, to teach experienced death penalty defense lawyers how to train inexperienced lawyers, employing the online distance learning methodologies used in the online program.
There is no question that the death penalty is disproportionately imposed in cases involving defendants with mental disabilities. There is clear, systemic bias at all stages of the prosecution and the sentencing process – in determining who is competent to be executed, in the assessment of mitigation evidence, in the ways that counsel is assigned, in the ways that jury determinations are often contaminated by stereotyped preconceptions of persons with mental disabilities, in the ways that cynical expert testimony reflects a propensity on the part of some experts to purposely distort their testimony in order to achieve desired ends. These questions are shockingly ignored at all levels of the criminal justice system, and by society in general.
Here, Michael Perlin explores the relationship between mental disabilities and the death penalty and explains why and how this state of affairs has come to be, to explore why it is necessary to identify the factors that have contributed to this scandalous and shameful policy morass, to highlight the series of policy choices that need immediate remediation, and to offer some suggestions that might meaningfully ameliorate the situation. Using real cases to illustrate the ways in which the persons with mental disabilities are unable to receive fair treatment during death penalty trials, he demonstrates the depth of the problem and the way it’s been institutionalized so as to be an accepted part of our system. He calls for a new approach, and greater attention to the issues that have gone overlooked for so long.
Rowman & Littlefield Publishers
; January 2013
200 pages; ISBN 9781442200586Read online
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Title: Mental Disability and the Death Penalty
Author: Michael L. Perlin
In the press
Mental Disability and the Death Penalty, by Michael L. Perlin, is an impressive, first-of-its kind
offering. Perlin states the impetus for his research in the book’s introduction: “There is no question
that the death penalty is disproportionately imposed on cases involving defendants with mental disabilities (referring both to those with mental illness and those with intellectual disabilities, more commonly referred to as mental retardation).” From there, Perlin dissects court cases and law studies that suggest why and how the problem has developed. He synthesizes the data and adds his insights in order to equip readers to identify ways to help solve the problem. Each chapter examines key issues that often arise in death-penalty cases such as sanism, pretextuality, future dangerousness, and
factual innocence. Citing numerous sources, Perlin meticulously examines how and when mental illness complicates and mitigates the requirements of the justice system—and the quest for true, adequate justice. Not only does he examine the intricacies of the law, but he also looks at the complications of jurors’ perceptions of the mentally ill and the effects different types of evidence have on jurors—such as whether neuroimaging may carry disproportionate weight with jurors
because its visual nature is more interesting than clinical testimony. The book is impeccably well documented, with over one hundred pages of notes and bibliography (articles, books, and court cases) at the end of the book. The account is bolstered by the author’s extensive legal background; he’s been a law professor, a legal representative for patients in psychiatric care, and the director of the New Jersey Division of Mental Health Advocacy. As a lawyer, Perlin relies more on research than personal experience or anecdotal evidence—a solidly academic approach. While he feels this phenomena is clearly tragic, the book is unequivocally unemotional in its presentation. Those with a more sociological background may find this method cold, but it’s the most effective tool at Perlin’s disposal. It’s perfect for readers with a legal background or those interested in or studying the legal system. Lack of familiarity with legal jargon makes it a very dense read for the uninitiated. Overall, the book is a compelling, rational examination that motivates readers to seek a more equitable form of justice that involves bold thinking and greater attention to the intricacies of the court system.