Mental Disability and the Death Penalty: The Shame of the States (Rowman & Littlefield, 2012) (in Press) Chapter 1: An Introduction and the Dilemma of Factual Innocence

27 Pages Posted: 8 Sep 2012

Date Written: 2012


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 underdiscussed in the literature, and I have written this book to explore the relationship between mental illness and the death penalty so as to explain why and how this state of affairs has come to be, 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.

In this introductory chapter, I set out the roadmap of the book, and look, substantively, at the issue of factual innocence in cases involving defendants with mental disabilities, stating the reality that it is more likely that a person with a serious mental disability will be convicted and sentenced to death in a case in which he is factually innocent. In later chapters, I consider: • the ways that sanism and pretextuality dominate this entire area of law and social policy, • the role that dignity should play in this consideration and the meaning of therapeutic jurisprudence in this context, • the significance of the “future dangerousness” inquiry in death penalty decisionmaking, • the textures of the mitigation doctrine, • questions of execution competency, involving defendants with intellectual disabilities and with mental illness, with special focus on the question of whether a defendant with severe mental illness can be medicated as to make him competent to be executed, and the potential role of neuroimaging evidence in such cases, • the roles of the jury, the prosecutor, and counsel (focusing on the abject and global failure of counsel to provide effective assistance in this cohort of cases), and • the potential significance of international human rights conventions and caselaw. I conclude with some recommendations and some policy suggestions.

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Keywords: death penalty, mental disability, criminal justice, factual innocence, right to counsel, mitigation, future dangerousness, competency to be executed, medication, neuroimaging, international human rights, therapeutic jurisprudence, dignity, sanism, pretextuality

Suggested Citation

Perlin, Michael L., Mental Disability and the Death Penalty: The Shame of the States (Rowman & Littlefield, 2012) (in Press) Chapter 1: An Introduction and the Dilemma of Factual Innocence (2012). NYLS Legal Studies Research Paper No. 12/13 #37, 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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