Academic journal article Law and Psychology Review

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

Academic journal article Law and Psychology Review

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

Article excerpt

ABSTRACT  I.     INTRODUCTION: THE CONVENTION ON THE RIGHTS OF        PERSONS WITH DISABILITIES II.    THREE MODELS OF LIBERTY DEPRIVATION III.   THE PUNISHMENT MODEL: INTEGRATIONISM IV.    THE PREVENTION MODEL: UNDETERRABILITY V.     THE PROTECTION MODEL: BASIC RATIONALITY AND SELF-REGARD VI.    CONCLUSION 

ABSTRACT

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 Disabilities 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 that defines criminal defenses in terms of subjective mental states, 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 a mental disorder as a predicate condition but all still capture the normative core of laws that deprive people of liberty for punitive, preventive or protection purposes.

I. INTRODUCTION: THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Mental disability has long been a predicate for laws that deprive people of liberty. Most obviously, civil commitment laws premise involuntary hospitalization and treatment on a finding of mental disability that causes either dangerousness to others or to self.' Statutes that permit involuntary hospitalization and treatment of persons found unfit to undergo a criminal adjudication due to mental disability are another example." And although mental state defenses, such as insanity, are meant to avoid imprisonment, they still count as doctrines that rely on mental disability to determine who shall be deprived of liberty.

The Convention on the Rights of Persons with Disabilities (CRPD) directs signatory states to undo all of this. (3) Article 14 of the Convention states that "the existence of a disability shall in no case justify a deprivation of liberty" and article 12 provides that states "shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." (4) These are radical provisions. As the official commentary to article 14 states, under the CRPD detention is "unlawful" when it "is grounded in the combination between a mental or intellectual disability and other elements such as dangerousness, or care and treatment." (5) The commentary explains, "[s]ince such measures are partly justified by the person's disability, they are to be considered discriminatory and in violation of the prohibition of deprivation of liberty on the grounds of disability ... prescribed by article 14." (6) The commentary to article 12 makes equally dramatic pronouncements. It states that any law that "allows the interdiction or declaration of incapacity of persons on the basis of their mental, intellectual or sensory impairment and the attribution to a guardian of the legal capacity to act on their behalf ... conflicts with the recognition of legal capacity of persons with disabilities enshrined in article 12." (7) The commentary to this article also refers to criminal defenses and states that "recognition of the legal capacity of persons with disabilities requires abolishing a defence based on the negation of criminal responsibility because of the existence of a mental or intellectual disability." (8)

The CRPD is not necessarily meant to prohibit all in voluntary care of people with mental disabilities, nor is it aimed to prevent legal recognition that some people have difficulty making decisions or adhering to criminal prohibitions. …

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