Mental Disability and the Death Penalty: The Shame of the States

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Rowman & Littlefield Publishers, Jan 17, 2013 - Law - 200 pages
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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.
 

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Contents

Chapter 1 An Introduction and the Dilemma of Factual Innocence
1
Chapter 2 Sanism Pretextuality the Role of Dignity and Therapeutic Jurisprudence
11
Chapter 3 Future Dangerousness and the Death Penalty
19
Chapter 4 Mental Disability Evidence and Mitigation
29
The Case of Mental Retardation
45
The Case of Mental Illness
69
The Question of Medication
85
Chapter 8 Neuroimaging and the Death Penalty
93
Chapter 10 The Death Penalty Mental Disability and Adequacy of Counsel
123
Chapter 11 The Death Penalty and International Human Rights Law
139
Chapter 12 Conclusion
149
Notes
157
Bibliography
273
Index
279
About the Author
283
Copyright

Chapter 9 The Role of Jurors Prosecutors and Judges
109

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About the author (2013)

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.

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