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This paper will be published as part of a symposium issue of Behavioral Sciences and Law.

Although counsel is now assigned in all jurisdictions to provide legal representation to persons facing involuntary civil commitment, such counsel is rarely available to persons with mental disabilities in other settings outside the hospital. In this paper, we strongly urge that such representation also be made available to this population in community settings. The scope of this representation must include any involvement with the criminal justice system that currently does not fall within the scope of indigent counsel assignment decisions such as Gideon v. Wainwright and Argersinger v. Hamlin, and in state statutes and court cases implementing these US Supreme Court decisions. Such representation would best fulfill the Supreme Court’s goal of “restor[ing] constitutional principles established to achieve a fair system of justice” and ensuring that “every defendant stands equal before the law,” (Gideon, 372 U.S. 335, 344 (1963)) and would make it far less likely that this population would end up in jail or prison on minor, nuisance charges, as is so frequently the case today.

We believe that without this mandated representation, we will not be able to reverse the current state of affairs that results in the wholesale institutionalization of this population; further, without this mandated representation, it is far from likely that this population will ever be able to enjoy meaningful freedom in community settings, as they will inevitably face the ongoing and deadeningly-familiar cycle of arrest-institutionalization-release-arrest-institutionalization. In this paper, we will show how the current state of affairs further flies in the face of all precepts of therapeutic jurisprudence, a legal theory that seeks to reshape legal rules, procedures, and lawyer roles to enhance their therapeutic potential while not subordinating due process principles, in accordance with the key principles of voice, validation and voluntariness.

In this paper, we make the following arguments:

• There is a shocking lack of such counsel available to persons with mental disabilities in community settings. No state currently provides regularized and dedicated counsel to this population, and without the presence of such counsel, it is likely that the massive changes in the law and in the operations of state hospital systems will not be replicated in the community.

• The issues here are exacerbated in cases involving persons enmeshed in the criminal justice system, a cohort that generally has little access to meaningful counsel. Even the most salutary solutions (e.g., the Memphis model) fail to provide counsel for this population at the “drop off centers” that are often mandated by such programs.

• As indicated above, “voice, validation and voluntariness” are now universally seen as the core therapeutic jurisprudence values; the current system – in which the population discussed in this paper – has no access to dedicated, effective counsel – insures that these mandates cannot be met.

• To remediate this situation, we recommend:

o TJ must be integrated into all community practices, with a special focus on the need to mandate the right to counsel as “the core of therapeutic jurisprudence”;

o Communities must learn from the experiences where a TJ-centric approach has been tried, focusing on the successes and failures of the Protection and Advocacy Systems so as to better mold a regulatory scheme for provision of counsel in the community;

o Counsel must be provided to this population where they will be in the community –the development of drop-off centers as part of the New York Police Department’s crisis intervention program is an important starting point at which to make this connection;

o Systems must be put in place to ensure quality; competent, effective counsel for this population is a requirement, not only because of the difficult, intractable legal issues faced but because of the omnipresent biases that come from this population’s association with the mental health system and the criminal justice system, and the resultant taint of sanism (the irrational and stigmatizing prejudice faced by persons with mental disabilities enmeshed in the criminal justice system, and often exhibited by their own attorneys).


Behavioral Sciences & the Law, Vol. 35, Issue 4 (July/August 2017), pp. 353-363