Ineffective Counsel in Death Penalty Cases and the Promise of Therapeutic Jurisprudence

Journal of the American Academy of Psychiatry and Law, 2022 Forthcoming

NYLS Legal Studies Research Paper No. 3965574

5 Pages Posted: 9 Dec 2021

Date Written: November 17, 2021

Abstract

In this commentary, I discuss Hiromoto et al, PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases, available online at J Am Acad Psychiatry Law [online]. 2021 Mar; 50(1). doi: 10.29158/ JAAPL.210052-21. I argue that it is absolutely essential to consider the abject ineffectiveness of counsel in a significant number of death penalty cases involving defendants with serious mental disabilities and how such ineffectiveness is often (scandalously) accepted by reviewing courts, and then consider this article by Hiromoto and colleagues through the filter of therapeutic jurisprudence as a way to guide counsel to thoroughly investigate all aspects of such cases (especially those involving defendants with PTSD) and to present substantial mitigating evidence to the fact finders in the sorts of cases the authors are discussing.

I argue that counsel often neglects therapeutic jurisprudence principles, leading our entire system to “fail . . . miserably” from this perspective, and urge that attention be paid to our legal system’s abject failures here. I conclude that it is vital to explicitly articulate, from a TJ perspective, the burden on counsel to thoroughly investigate all aspects of cases in which issues of PTSD have been raised (or should have been raised).

This paper is currently available online at http://jaapl.org/content/early/2021/11/17/JAAPL.210089-21.

Keywords: effectiveness of counsel, PTSD, therapeutic jurisprudence, mitigation

Suggested Citation

Perlin, Michael L., Ineffective Counsel in Death Penalty Cases and the Promise of Therapeutic Jurisprudence (November 17, 2021). Journal of the American Academy of Psychiatry and Law, 2022 Forthcoming , NYLS Legal Studies Research Paper No. 3965574, Available at SSRN: https://ssrn.com/abstract=3965574

Michael L. Perlin (Contact Author)

New York Law School ( email )

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

HOME PAGE: http://https://www.nyls.edu/faculty/faculty-profiles/emeriti_faculty/

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