“Take the Motherless Children off the Street”: Fetal Alcohol Syndrome and the Criminal Justice System

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome dis- order (“FASD”) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. In this Article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss the impact of FASD on the major fundamentals of criminal law and procedure, especially as it relates to questions of culpability. Under this broad umbrella of topics, we consider questions that may arise in the criminal trial process, such as those related to competency to stand trial (and, to a limited extent, other criminal competencies), the insanity defense, sentencing, and the death penalty. We look care- fully at the way that courts all too often dismiss effectiveness- of-counsel claims in such cases, and the implications of this case law. Finally, we investigate why it is so significant that the caselaw in this area has totally ignored the teachings of therapeutic jurisprudence and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, we hope, can (at least partially) ameliorate this situation

See This Empty Cage Now Corrode: The International Human Rights and Comparative Law Implications of Sexually Violent Predator Laws

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 more limited, and details are usually confined solely to police agencies. We believe that the implications of the laws and court decisions from other nations are necessary to consider when implementing US law reform in this area, and require far more attention than they have received from US scholars and legislators.This paper will proceed in the following manner. In Part I, we will consider the implications of international human rights law for cases involving the populations in question, and then assess how realistic it is that such law be embraced by domestic jurisdictions in dealing with relevant cases. We will also consider the human rights issues and violations that have resulted from the domestic enactment of “International Megan’s Law.” In Part II, we will apply comparative law, in an effort to determine how other nations have struggled with some of the basic issues that have been focused on by domestic jurisdictions, for the 20+ years since the Supreme Court’s decision in Kansas v. Hendricks, 521 U.S. 346 (1997). In Part III, we will assess the application of therapeutic jurisprudence (TJ) to the legal and human rights issues discussed prior, in an effort to determine whether other nations have more successfully implemented TJ principles to combat some of the seemingly-intractable problems raised in SVPA cases. In part IV, we offer some conclusions and some suggestions for US-based policy-makers in this contentious area of law and social policy

Things Have Changed: Looking at Non-Institutional Mental Disability Law Through the Sanism Filter

Almost all the literature about the influence of sanism and pretextuality on the development of mental disability law has dealt with questions of institutionalization and the rights of persons who are subject to commitment to in-patient psychiatric hospitals. Problems of mental disability, however, are not solely institutional problems. A significant percentage of the public - the vast majority of whom will never be in peril of institutionalization - exhibit some sort of serious mental illness during their lifetime. A much larger percentage exhibits some sign of mental disability or mental disorder. And this population - like the rest of the population - frequently has problems that require resolution by a lawyer and the legal system, among them, contract problems, property problems, domestic relations problems, and trusts and estates problems. In this paper, I consider why there has been so little literature dealing with these issues, and call on scholars to turn their attention to the way that sanism and pretextuality infect this aspect of mental disability law as well

I\u27ve Got My Mind Made up: How Judicial Teleology in Cases involving Biologically based Evidence Violates Therapeutic Jurisprudence

Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more. In this paper, I will consider what the implications of this behavior are for future criminal procedure developments, and will show how this behavior violates the basic precepts of therapeutic jurisprudence. First, I will consider a range of teleological judicial behaviors. Then, I will consider how biologically-based evidence (including, but not limited to neuroscience evidence, is especially susceptible to these sorts of misjudgments, with a specific focus on how this damages the application of constitutional criminal procedure doctrines. Finally, I will consider how this behavior flies in the face of the basic tenets of therapeutic jurisprudence

Justice Outsourced: The Therapeutic Jurisprudence Implications of Judicial Decision-Making by Nonjudicial Officers

Nonjudicial officers (NJOs) permeate the criminal justice and the forensic mental health systems in hidden ways. But what are the impact and consequences of non-lawyers and non- “real judges” hearing cases? Across the nation, numerous cases are outsourced to administrative and other NJOs to decide issues ranging from family court cases involving custody disputes and foster care, to alcohol, substance abuse, as well as mental health and institutionalization issues. Moreover, NJOs may also deal with probation sentencing, conditions of confinement, release restrictions, and even capital punishment. The editors and contributors to the indispensable Justice Outsourced examine the hidden role of these nonjudicial officers in the courtroom and administrative settings, as well as the ethical and practical considerations of using NJOs. Written from the perspective of therapeutic jurisprudence by judges, criminologists, lawyers, law professors, psychologists, and sociologists, this volume provides a much-needed wake-up call that emphasizes why the removal of a judge weakens a defendant’s rights and dignity and corrupts the administration of justice. However, Justice Outsourced also suggests effective employments of NJOs, revealing the potential of therapeutic principles and procedures to enhance the practical knowledge supplied by nonjudicial decision-makers. Contributors: Brandi Alfonso, Ashley Balavender, Colleen M. Berryessa, Judge Kevin S. Burke, Michael Cassidy, Brandi N. Diaz, Deborah A. Dorfman, Henry A. Dlugacz, Heather Ellis Cucolo, Mehgan Gallagher, Talia Roitberg Harmon, Richelle Kloch, Shelley Kolstad, Alison J. Lynch, Voula Marinos, Valerie R. McClain, Bernard P. Perlmutter, Victoria Rapp, Karen Snedker, Rae Taylor, Lenore E. A . Walker, Naomi Weinstein, Lisa Whittingham, and the editors.https://digitalcommons.nyls.edu/fac_books/1158/thumbnail.jp

Tolling For the Aching Ones Whose Wounds Cannot Be Nursed’: The Marginalization of Racial Minorities and Women in Institutional Mental Disability Law

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 legal decisionmaking. Beginning with a consideration of disparities in the access to and quality of mental health care among individuals with mental disabilities who are women, racial and ethnic minorities, we need to focus on why thestruggle to overcome rights violations is often greater for persons with mental disabilities who are not of thedominant race or gender, and why it is essential that this area of law must be studied in the context of prevailing social policies as they relate to these topics. Here we cannot avoid consideration of the significance of the interrelationships between social biases and “scientific” judgment, as reflected in expert testimony in cases in all the sub-areas of mental disability law referred to above.In our paper, we will thus consider:• How race and gender relate to decisions made about the civil commitment process, and the implications of these findings, considering issues involving state-sanctioned racial segregation, mis- and over-diagnosis, thepernicious use of racial and gender stereotypes, the deeper significance of disparities in access to health services, and cultural competency, and• How race and gender relate to decisions made about institutional rights, and the implications of these findings, considering issues related to restraint and seclusion, administration of antipsychotic medication, dual diagnosis (along with substance abuse), and the extent to which information about side-effects of medication is shared with patients. Our findings are not a surprise: our most vulnerable populations — racial, cultural and gender minorities — are consistently harmed by marginalization that targets persons with mental disabilities.In an attempt to understand how the current state of affairs developed, we then consider the four key factors that permeate and poison all of mental disability law: sanism, pretextuality, heuristic reasoning, and (false) “ordinary common sense” (OCS), and we contextualize all of this within the model of therapeutic jurisprudence, a vehicle through which we can assess the impact of case law and legislation on the subjects of such law. The ultimate aim of therapeutic jurisprudence is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. We conclude by offering some modest suggestions as to how the current situation might best be remediated, using therapeutic jurisprudence as the basis of our proposed solutions. By way of example, current practices — based on statistically invalid and socially pernicious stereotypes of “dangerousness” in matters involving African-Americans or of women — make a mockery of the “validation” principle that is at the heart of therapeutic jurisprudence

Promoting Dignity and Preventing Shame and Humiliation by Improving the Quality and Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Cases

In Strickland vs. Washington, the Supreme Court acknowledged that the role of counsel is critical to the ability of the adversarial system to best insure that just results are produced. Yet, the Court did not elaborately define the Sixth Amendment constitutional right to counsel and lower courts, have set the bar shockingly low.In this article we examine the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and conclude that a failure to apply a higher standard of adequate counsel – beyond what was set out in Strickland – results in humiliation, shame and lack of dignity for clients. Effective and competent counsel must be cognizant of how shame and humiliation corrupts our legislation, court proceedings and subsequent management of the sex offender population.We explore the concepts of shame and humiliation and how the effects of these concepts damage not only the client, but the integrity of the court proceeding and subsequent goals of treatment rehabilitation. We focus on the volatile “arranged marriage” of law and psychology in sex offender civil commitment cases that require attorneys to have a particular set of skills and knowledge in order to conduct a fair, judicious and ethical trial, and to secure an accurate verdict. This is necessary to not only preserve the dignity of the legal system but additionally preserve the dignity of clients facing – what is most likely considered – one of the most undignified adjudicative determinations: that of “sexual violent predator”. We propose that without specialized training and expert collaboration, attorneys cannot provide even remotely adequate or effective representation.We consider these issues through the prism of therapeutic jurisprudence, which we believe is vital to any authentic understanding of the underlying issues and offer suggestions to prevent and minimize client shame, humiliation and lack of dignity (including sample dialogues that counsel might have with her client)