Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disabilities on the Insanity Defense, Civil Commitment, and Competency Law

23 Pages Posted: 2 Jul 2014 Last revised: 30 May 2015

Date Written: July 1, 2014

Abstract

A number of laws that are associated with deprivations of liberty, including the insanity defense, civil commitment, guardianship of the person and numerous competency doctrines in the criminal context, require proof of mental disability as a predicate. The Convention on the Rights of Persons with Disabilities commands signatory states to eliminate that predicate. Summarizing principles set out in my book Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty, I explain how this seemingly radical stance can be implemented. Specifically, this article proposes adoption of an "integrationist defense" in the criminal context, an "undeterrability requirement" when the state seeks preventive detention outside of the criminal process, and a "basic rationality and self-regard test" for incompetency determinations. None of these proposals requires proof of mental disability as a predicate condition.

Keywords: mental disability, discrimination, deprivations of liberty, Convention on Rights of People with Disability

Suggested Citation

Slobogin, Christopher, Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disabilities on the Insanity Defense, Civil Commitment, and Competency Law (July 1, 2014). Vanderbilt Public Law Research Paper No. 14-23. Available at SSRN: https://ssrn.com/abstract=2461279 or http://dx.doi.org/10.2139/ssrn.2461279

Christopher Slobogin (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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