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March 12, 2013

"'The Judge, He Cast His Robe Aside': Mental Health Courts, Dignity and Due Process"

Bob-dylan-drifters-escape-1968Hard-core Bob Dylan fans will should appreciate the title of this new Michael Perlin article available via SSRN, and all criminal justice fans should appreciate the importance of the substance of this new piece. Here is the abstract:

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in the United States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is certainly not without controversy.

These courts offer a new approach – perhaps a radically new approach – to the problems at hand. They become even more significant because of their articulated focus on dignity, as well as their embrace of therapeutic jurisprudence, their focus on procedural justice, and their use of the principles of restorative justice. It is time to restructure the dialogue about mental health courts and to begin to take seriously the potential ameliorative impact of such courts on the ultimate disposition of all cases involving criminal defendants with mental disabilities.

There has been much written about these courts, but little attention has been paid to two issues that must be considered seriously: the quality of counsel available to persons in mental health courts, and the question of whether the individual is competent to engage in mental health court proceedings. These are both discussed extensively in this paper.

Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. This entire discussion, while important and helpful, bypasses the critical issue that is at the heart of this paper: do such courts provide additional dignity to the criminal justice process or do they detract from that? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant.

In Part I of this paper, I will first discuss the underpinnings of therapeutic jurisprudence. I will next, in Part II, look at the structure of mental health courts, and will then raise the two concerns about such courts that are, I believe, of particular relevance to which I just alluded: questions of adequacy of counsel and the competency of defendants to voluntarily participate in such court proceedings. In Part III, I will then consider the role of dignity in this process, and look to ways that therapeutic jurisprudence can promote dignity in this context.

March 12, 2013 at 09:05 PM | Permalink


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"Well, my daddy, he didn't leave me much, you know he was a very simple man, but what he did tell me was this, he did say, son, he said...he say..." --Bob Dylan - 1991 Grammy Lifetime Achievement Award Speech

{{{"his comments were apparently an allusion to a 19th century German rabbi's commentary on a passage from Psalm 27, (!) rather than actual advice from his dad."}

But the words of his speech aside, Dylan's behavior is quite bizarre. He appears to possibly be on cocaine. He circles around and also loses his train of thought for long spells. He seems distracted and bewildered...Is he drunk & stoned?}}}

[["I don't know for sure, but my guess would be drugs. I saw him a few months later in Portland, Oregon and the show was pretty much the same... unrecognizable songs and incoherent mumbling between them."

Posted by: Adamakis | Mar 13, 2013 2:34:59 PM

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