Representing Criminal Defendants in Incompetency and Insanity Cases: Some Therapeutic Jurisprudence Dilemmas

20 Pages Posted: 17 Apr 2008

Date Written: April, 15 2008


Little attention has been paid to the importance (if any) of the relationship between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, 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, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, and is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

In Part I of this paper, I examine the literature that seeks to apply TJ principles to the criminal law process in general, drawing mostly on the work of Professor David Wexler. In Part II, I will consider why the lack of attention that I have referred to already is surprising (given TJ‘s mandate and the fact that many TJ issues are inevitably raised in any insanity or IST case). In Part III, I will then consider why this lack of attention is not surprising, given the omnipresence of sanism. I will then offer some modest conclusions.

As part of this work, I will address these TJ related-issues that are raised by cases involving criminal defendants pleading the insanity defense or for whom the incompetency status has been raised (issues that have never been previously been addressed in any unified way in the literature):

* If a defendant is, in fact, incompetent to stand trial, that means that he does not have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and/or a "rational as well as factual understanding of the proceedings against him"; how can TJ principles be invoked in such a case?

* If a defendant is initially found to be incompetent to stand trial, will the lawyer act as most lawyers and consider him to be de facto incompetent for the entire proceeding (as a significant percentage of lawyers do act for any client who is institutionalized)?

* If a defendant is found to be incompetent to stand trial, will the lawyer assume that he is also guilty of the underlying criminal charge?

* What are the issues that a lawyer must consider in addition to the client‘s mental state in assessing whether or not to invoke an incompetency determination?

* What are the TJ implications for a case in which the incompetency status is not raised by the defendant, but, rather, by the prosecutor or the judge?

* Are there times when TJ principles might mandate not raising the incompetency status (for example, in a case in which the maximum sentence to which the defendant is exposed is six months in a county workhouse but the defendant is in a jurisdiction in which IST defendants are regularly housed in maximum security forensic facilities for far longer periods of time than the maximum to which they could be sentenced)?

* What are the TJ implications of counseling a defendant to plead - or not to plead - the insanity defense?

* Can a defendant who pleads NGRI ever, truly, "take responsibility"?

* Does the fact that the insanity-pleading defendant must concede that he committed the actus reus distort the ongoing lawyer-client relationship?

* To what extent do the ample bodies of case law construing the "ineffective assistance of counsel" standard established by the US Supreme Court in Strickland v. Washington even consider the implications of TJ lawyering?

* To what extent does the pervasiveness of sanism make it obligatory for lawyers in such cases to educate jurors about both sanism and why sanism may be driving their decisionmaking, and to what extent should lawyers in such cases embark on this educational process using TJ principles?

I conclude the paper by concluding that we must rigorously apply therapeutic jurisprudence principles to each aspect of the insanity defense, so as to strip away sanist behavior, pretextual reasoning and teleological decision making from the insanity defense process, so as to enable us to confront the pretextual use of social science data in an open and meaningful way. This gambit would also allow us to address - in a more successful way than has ever yet been done - the problems raised by the omnipresence of ineffective counsel in cases involving defendants with mental disabilities.

Keywords: Therapeutic jurisprudence, counsel, insanity, incompetency, criminal procedure, mental disability

Suggested Citation

Perlin, Michael L., Representing Criminal Defendants in Incompetency and Insanity Cases: Some Therapeutic Jurisprudence Dilemmas (April, 15 2008). NYLS Legal Studies Research Paper No. 07/08-30, Available at SSRN: or

Michael L. Perlin (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2183 (Phone)

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