Wednesday, January 26, 2022
Michael L. Perlin (New York Law School), 'I Hope the Final Judgment’s Fair': Alternative Jurisprudences, Legal Decision-Making, and Justice, in The Cambridge Handbook of Psychology of Legal Decision-making (Monica Miller et al eds. 2022 forthcoming):
At the core of any legal decision is an assumption that the decision will be “fair,” yet this is an elusive term. A close study of cases involving criminal defendants with mental disabilities shows us that many (perhaps, most) of the decisions involving this cohort are not “fair” in the contexts of due process and justice. If legal decisions reflect principles such as procedural justice, restorative justice, and therapeutic jurisprudence, the chances of such fairness will be significantly enhanced.
Interestingly, the notion of “community sentiment” –urged as a potential solution to some of the underlying problems -- often has the exact reverse effect, and delegitimatizes the proceedings, relying as it often does on individuals false “ordinary common sense,” a factor that makes fair decisionmaking much more elusive.
This chapter will discuss these issues, and will explain why this goal of fairness, in the context of these cases, can never be met unless we also consider the virulence of sanism and pretextuality, and the misuse of heuristics that allow us to willfully blind ourselves to gray areas of human behavior, and predispose individuals to endorse beliefs in accord with their prior experiences.