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Mental Disability and the Death Penalty The Shame of the State
Perlin, Michael L.
Rowman & Littlefield / Hardcover / 2013-01-01 / 1442200561
reg price: $53.50 our price: $ 48.15 (may be subject to change)
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.

--- from the publisher


Prominent mental disability legal scholar Perlin (law, New York Law Sch.; Competence in the Law) has written a compelling account of the many ways in which people with mental illness are disadvantaged in death-penalty trials. Using analysis of actual cases, Perlin shows how pervasive bias against people with mental illness and those with intellectual disabilities permeates all aspects of the criminal justice system. He argues persuasively that this bias—“sanism,” as he calls it—contaminates how juries view defendants with mental disabilities, allows judges and juries to overlook false or distorted testimony from supposed experts, and leads to inadequate representation by counsel. The author’s passion comes through clearly and his palpable disgust and frustration with the institutionalized discrimination he sees in the U.S. justice system lend the book urgency. His writing is clear, concise, and quite readable despite the often complicated subject matter. VERDICT This is a meticulous, readable account of the ways in which those with mental illness and intellectual disabilities receive unfair treatment in death-penalty cases. Though not necessarily suited to general readers, the work is indispensable for legal and public-policy scholars and students and those interested in mental-disability law and death-penalty law.
— Library Journal, Starred Review

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.
— ForeWord Reviews

This book is unique in bringing together much of the Supreme Court’s jurisprudence in capital cases involving individuals with mental disabilities. . . . I applaud Perlin for tackling such an important topic and for bringing together various aspects of the Court’s jurisprudence in this area. The book covers tremendous ground—examining no fewer than eleven subtopics related to mental disability and the death penalty. ... it may serve as a useful review of various death penalty topics for those who are regularly researching, writing, and working in this area. Moreover, Perlin’s extensive quotations and citations to the Supreme Court and other scholars makes the book a good starting point for someone looking to write new scholarship in the field, or even begin a practice working with mentally disabled individuals who may face capital punishment. Overall, this book. . . will probably be most useful for scholars and practitioners who want to learn some of the basic issues facing mentally disabled persons at risk of being sentenced to death. In addition to serving as a good reference source for some important topics related to capital punishment, Mental Disability and the Death Penalty provides a distinguishing lens through which to view these issues.
— Criminal Law and Criminal Justice Books

Mental Disability and the Death Penalty is a meticulous and compassionate account of one of the most contentious issues in contemporary American criminal jurisprudence. Michael Perlin views the execution of prisoners with mental disability through the exacting lens of international human rights and finds the practice deeply morally and legally troubling.
— John Monahan, Shannon Distinguished Professor of Law, Psychology, and Psychiatry, University of Virginia

Mental Disability and the Death Penalty is a devastating indictment of the administration of criminal justice in capital cases involving mentally disabled defendants.
Michael Perlin shows in distressing detail why justice for defendants with mental disabilities is jeopardized at every stage in the criminal process – from the moment of arrest to the last minute plea for a stay of execution.
Even death penalty supporters will find this book unsettling. Although Perlin drives home his message that people with mental disabilities are especially vulnerable to bias and mistake, his disquieting account prods the Supreme Court to abandon its 40-year effort to save the death penalty.
— Richard J. Bonnie, Harrison Foundation professor of law and medicine, professor of psychiatry and neurobehavioral sciences, professor of public policy, director of the institute of law, psychiatry and public policy, University of Virginia

For more than three decades, Michael Perlin's bold, sensible, and comprehensive work has informed and shaped mental health law in the United States. In what may be his most important work so far, Perlin has framed a devastating case against the manner in which capital punishment has been used against people with serious mental illnesses. While his view is unabashed, Perlin always does his homework and treats his readers with refreshing respect and integrity. The result is both extremely readable and very persuasive.
— Joel A. Dvoskin, Ph.D., ABPP (Forensic), former president, American Psychology-Law Society, University of Arizona College of Medicine

Professor Michael Perlin, perhaps the most well-known author on Mental Health Law, has added a most significant and comprehensive book on Mental Disability and the Death Penalty. He is courageous in his assault on the criminal justice system that has perverted the punishment of death, especially for those who are mentally retarded or mentally ill. He is forceful in his critique of all parties participating in death penalty cases involving the mentally disabled, including attorneys, judges, juries and expert witnesses. His experience as a former public defender, director of a state mental health advocacy program, and currently law professor have given him the broad perspective to analyze the death penalty as it is administered in the United States and throughout the world in an uneven and unfair manner. He expresses his hope that his treatise will bring sanity to the administration of justice when the death penalty is imposed on the mentally disabled. I share his concerns and his hopes: his book is an important beginning.
— Robert L. Sadoff, MD, clinical professor of forensic psychiatry, University of Pennsylvania Perelman School of Medicine, Philadelphia, PA



1: An Introduction and the Dilemma of Factual Innocence
2: Sanism, Pretextuality, the Role of Dignity, and Therapeutic Jurisprudence
3: Future Dangerousness and the Death Penalty
4: Mental Disability Evidence and Mitigation
5: Competency to be Executed: The Case of Mental Retardation
6: Competency to be Executed: The Case of Mental Illness
7: Competency to be Executed: The Question of Medication
8: Neuroimaging and the Death Penalty
9: The Role of Jurors, Prosecutors, and Judges
10: The Death Penalty, Mental Disability and Adequacy of Counsel
11: The Death Penalty and International Human Rights Law
12: Conclusion

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.

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