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