Civil Rights Law & Policy Blog

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Tuesday, August 12, 2014

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

The title of this post comes from this recent paper by Professor Christopher Slobogin, the abstract of which states:

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 Disability 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.

http://lawprofessors.typepad.com/civil_rights/2014/08/eliminating-mental-disability-as-a-legal-criterion-in-deprivation-of-liberty-cases-the-impact-of-the.html

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Comments

We do not need criteria for such things as a mental impairment defense. We can all just raise our hands in court and say: Hands Up! Don't Shoot! That should be enough to justify a felony robbery of a convenience store.

Posted by: Liberty1st | Aug 18, 2014 10:27:50 AM

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