Sanetastic! Get A Grip On Your [Ableist Slur] Bias

It’s hard for indigent defenders to keep abreast of the cutting edge training that’s needed to fulfill their critical societal function. They’re overwhelmed. They’re underpaid. They have little time on their hands to waste.  And yet, there are important, no, vital, things that they must be taught.

Fortunately, the newly formed National Association for Public Defense exists to vet the plethora of courses, CLEs, lectures and programs, so that trench public defenders’ time won’t be squandered on worthless stuff like “advanced cross examination” and “effective jury selection.”  Instead, they can focus their very limited time and attention on matters that go to the core of their function.

How Sanism Poisons the Attorney-Client Relationship in Criminal Cases

Sanism, because there are still -isms left unmentioned. And if you think this is, well, nuts. think again.

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 affects all aspects of the legal system, but is most pernicious in its permeation of the legal representation process both in cases in which mental capacity is a central issue and those in which such capacity is a collateral question.

Sanist lawyers (1) distrust their mentally disabled clients, (2) trivialize their complaints, (3) fail to forge authentic attorney-client relationships with such clients and reject their clients’ potential contributions to case-strategizing, and (4) take less seriously case outcomes that are adverse to their clients. This is particularly odious in criminal cases in which lawyers may, variously, fail to see signs of incompetency to proceed to trial, seek to impose insanity defenses over clients’ objections, and inadequately fail to investigate potentially mitigating evidence in sentencing (both in death and non-death penalty cases). Such behavior flies in the face of prevailing principles of therapeutic jurisprudence, in which lawyers must work with clients to insure a sense of “voice” in such a way that validates clients’ voluntary choices in the litigation process.

Are you a sanist? Are you proud of yourself for harboring the “odious” prejudice of sanism?  Do you deprive your flaming nutjob clients of their “‘voice’ in such a way that validates clients’ voluntary choices in the litigation process”?  Why? Just because they’re crazy?  Are you one of those lawyers who allows his “irrational prejudice” against the insane to impair their agency to play a meaningful role in what you do?

Of course, few players in criminal defense are more painfully aware of the fact that mental illness is pervasive among criminal defendants, and that prisons have become the asylums of choice.  Private counsel can elect not to represent defendants whose sanity is at issue, and there aren’t a lot of defendants who suffer from debilitating mental illness who can afford to pay a lawyer anyway.

But clearly, someone thinks that public defenders are so prejudiced, so irrational, so odious, that their time is best spent on checking their sanist privilege.  And that person offers his scholarly bona fides at great length.

Michael L. Perlin is Professor of Law Emeritus at New York Law School (NYLS), founding director of NYLS’s Online Mental Disability Law Program, and founding director of NYLS’s International Mental Disability Law Reform Project in its Justice Action Center. He is also the co-founder of Mental Disability Law and Policy Associates. He has written 31 books and nearly 300 articles on all aspects of mental disability law. His most recent books are MENTAL DISABILITY AND THE DEATH PENALTY: THE SHAME OF THE STATES (Rowman & Littlefield, 2013), and A PRESCRIPTION FOR DIGNITY: RETHINKING CRIMINAL JUSTICE AND MENTAL DISABILITY LAW (Ashgate, 2013). His five-volume treatise, MENTAL DISABILITY LAW: CIVIL AND CRIMINAL (2d ed.) (Lexis-Nexis, 1998-2002), is universally seen as the standard text in the area; the third edition of that work (co-authored with Prof. Heather Ellis Cucolo) will be forthcoming in 2016, as will books on sexuality and disability (SEXUALITY, DISABILITY AND THE LAW: BEYOND THE LAST FRONTIER? (Palgrave Macmillan) (co-authored with Alison J. Lynch)), and on sex offender law (SHAMING THE CONSTITUTION: THE DETRIMENTAL RESULTS OF SEXUAL VIOLENT PREDATOR LEGISLATION (with Cucolo) (Temple University Press)). An earlier book, THE JURISPRUDENCE OF THE INSANITY DEFENSE (Carolina Academic Press, 1995) won the Manfred Guttmacher award of the American Psychiatric Association and the American Academy of Psychiatry and Law as the best book published that year. Before becoming a professor, Perlin was the Deputy Public Defender in charge of the Mercer County Trial Region in New Jersey, and, for eight years, was the director of the Division of Mental Health Advocacy in the NJ Department of the Public Advocate. He has represented thousands of persons with mental disabilities in individual and class actions, and has taught and worked with advocacy projects on every continent. He is also co-chair of the Disability Rights Interest Group of the American Society of International Law.

Sadly, the event date of this critical program, scheduled unsurprisingly for February 29th, has come and gone, and so your opportunity to bask in the warm glow of anti-sanism is gone.  But, expect Professor Emeritus Perlin to reprise this event in the future.  You would be crazy to miss it.

H/T Kathleen “Who you callin’ [Ableist Slur]” Casey

22 thoughts on “Sanetastic! Get A Grip On Your [Ableist Slur] Bias

  1. Enjoin This!

    It sounds much like the creation of a “self-licking ice cream cone.” Does one get CLE credits for the $10 registration fee? If so, I can see buying into it. Um, no. Because shame.

    The phrase that queased me was: “prevailing principles of therapeutic jurisprudence”. Wait, wut? What exactly is “therapeutic” justice? I thought those “therapeutic” practices were Strickland-type norms. Lawyers are therapists? I guess some DO call themselves “counselors.” Does this mean we now need to be licensed by our state? Oh, I see. By adding “therapeutic” to an otherwise-pedestrian subject, one might reach the social butterflies who don’t realize this is coals-to-Newcastle to the typical CDL.

    Maybe I can repurpose my own CLE: “The therapeutic jurisprudence of pre-judgment remedies under FRCP 64(a)”



  2. JD

    That’s just crazy.

    I had a client once who delighted in tossed word salad, as in “I came to court on the C train like the C because Moses parted the red sea red red red better red than dead dead dead as a doornail cause I ain’t got no doors or drawers I aint got no drawers but I got pants but no pants because my pants are at the cleaner being the steamer …. etc.

    Then there was the client who brought a badly decomposed dead rat to court. It smelled funny.

    1. Michael Cox

      He was a rapper. You’re too culturally insensitive to acknowledge his sage direction in his own defense.

  3. Noel Erinjeri

    When I was an APD, the state nut hut was in the same town, and they were always getting charged with beating on the staff and each other. I friggin’ *hated* those cases, not least because it’s hard to communicate with crazy people. While accusing anyone of “sanism” is silly and over the top, a CLE that teaches how to build a better attorney/client relationship with mentally ill defendants could actually be pretty valuable, and Perlin seems to have a fair amount of experience in representing actual clients. There’s a fuzzy line between hating the case and hating the client.

    1. SHG Post author

      You think a guy promoting the odious prejudice of sanism is going to teach you how to build a better attorney/client relationship, so that the client can play a more meaningful role in decision-making?

    2. Kathleen Casey

      “Before becoming a professor” now emeritus, Perlin represented actual clients, a long time ago. And then he stopped. Then he made a living teaching and writing about “sanism.” What does that tell us about him?

  4. Richard G. Kopf


    Are you guilty of the sin of sanism, if you have a client (1) who is charged with discharging his weapon in a public place despite the SWAT team’s demand that he drop it (2) who explains to you that he was merely protecting himself and everyone else by shooting at a dinosaur that was flying over his town carrying Jesus Christ on the beast’s back and (3) you conclude that providing your client with a “sense of voice” is insane?

    All the best.


    1. DaveL

      you conclude that providing your client with a “sense of voice” is insane?

      Presumably, that still wouldn’t be sanist if you had no aversion to doing insane things.

  5. Osama bin Pimpin

    Ok this is bullshit that obscures the real problem. But there is a real problem.

    Take the following typical fact pattern:

    Crazy homeless guy brought in by cops on the minor but crazy charge of throwing stuff at people. Based on the charge crazy guy can take a plea a few months in county jail. DA offers PD an NGRI plea. That means no conviction involves being sent to the loony bin on an indefinite period of time which will likely exceed the incarceration term.

    Crazy homeless guy just wants to be on the streets up to his old antics ASAP. Under the ideal attorney-client model, PD would explain the options to crazy homeless guy and likely consequence and the latter would choose. But since PD does not respect decisional autonomy of his client, so in what he sees as the best interests of incompetent client, will collude with the DA on an NGRI plea so his client can “get help.”

    Maybe this doesn’t bother others because the dude’s crazy and he needs his fiduciary to make his decisions for him. But consider if you were that crazy homeless guy. Would you rather be out on the street living your life or be indefinitely locked up in a place that is a prison but won’t call itself a prison.

    1. SHG Post author

      This is why you don’t understand principles of therapeutic jurisprudence. Have you no empathy?

      1. Osama bin Pimpin

        I know lawyers aren’t therapists but am implicitly practicing therapy from my Quakers before Benjamin Rush and his waterboarding quackery: treat children like adults and they will start acting like them. Decisions create deciders not vice-versa.

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