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Tuesday, August 25, 2009

International Human Rights, Forensic Evaluations, and Correctional Conditions Litigation

Perlin Two recent manuscripts address international human rights law as it bears on two separate problems related to the criminal process.

Michael L. Perlin (New York Law School) and Valerie Rae McClain (Neurology and Physical Therapy Centers of Tampa Bay) have posted 'Where Souls are Forgotten': Cultural Competencies, Forensic Evaluations and International Human Rights (Psychology, Public Policy and Law, Vol. 15, 2009) on SSRN. Here is the abstract:

Cultural competency is critical in criminal forensic evaluations. Cultural competency eschews reliance on stereotype, precluding the mistake of assuming that cultural dictates apply with equal force to all who share a cultural background, thus allowing the forensic examiner to provide a comprehensive picture of the defendant to the factfinder. While raised frequently in death penalty cases, it is equally important to the entire criminal process. Cultural sensitivity in test selection and interview techniques that enhance validity of results are addressed. In a parallel fashion, ratification of the UN Convention on the Rights of Persons with Disabilities has drawn importance to cultural competency. Although international human rights and cultural sensitivity have been considered with regard to race, gender and religion, applications to criminal matters are still in their infancy. This paper considers strategies to enhance the effectiveness of testimony and mitigation efforts.


Professor Perlin and Henry A. Dlugacz  (New York Medical College - Graduate School of Health Sciences) have posted 'It's Doom Alone that Counts:' Can International Human Rights Law Be an Effective Source of Rights in Correctional Conditions Litigation? (Behavorial Sciences and Law, Vol. 27, 2009)  on SSRN. Here is the abstract:

Over the past three decades, the US judiciary has grown increasingly less receptive to claims by convicted felons about the conditions of their confinement while in prison. Although courts have not articulated a return to the 'hands off' policy of the 1950s, it is clear that it has become significantly more difficult for prisoners to prevail in constitutional correctional litigation. The passage and aggressive implementation of the Prison Litigation Reform Act has been a powerful disincentive to such litigation in many areas of prisoners' rights law.

From the perspective of the prisoner, the legal landscape is more hopeful in matters that relate to mental health care and treatment. Here, in spite of a general trend toward more stringent applications of standards of proof and a reluctance to order sweeping, intrusive remedies, some courts have aggressively protected prisoners’ rights to be free from 'deliberate indifference' to serious medical needs, and to be free from excessive force on the part of prison officials.

A mostly hidden undercurrent in some prisoners' rights litigation has been the effort on the part of some plaintiffs' lawyers to look to international human rights doctrines as a potential source of rights, an effort that has met with some modest success. It gets support by the inclination of other courts to turn to international human rights conventions, even in nations where such conventions have not been ratified, as a kind of 'best practices' in the area.

The recent publication and subsequent ratification (though not, as of yet, by the United States) of the UN Convention on the Rights of Persons with Disabilities (CRPD) may add new support to those using international human rights documents as a basis for litigating prisoners' rights claims. To the best of our knowledge, there has, as of yet, been no scholarly literature on the question of the implications of the CRPD on the state of prisoners' rights law in a US domestic context. In this paper, we raise that question, and offer some tentative conclusions.

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