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Interpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the treatment of this population in prison settings, and ignores other articles of that Convention that support the continuation of this defense and this status, as well as other international human rights conventions that speak to the right to a “fair trial.” The abolition position is short-sighted and will lead to a worsening of the lives of an especially-marginalized and ignored segment of the population of persons with disabilities.

This paper (a version of which was presented as a keynote address at the fourth international therapeutic jurisprudence conference at the University of Auckland, NZ) first discusses the significance of the CRPD, and why, when it is read as an integrated document, the interpretations in the General Comment and the supporting literature must be unequivocally rejected, looking at other Articles and other foundational documents of international human rights law. It then looks at the singular role of the insanity defense and incompetency status in legal history, (1) acknowledging that, while pleading insanity may be a bad option, it is still one that needs to be retained, and (2) pointing out that raising the incompetency status is not an admission of factual guilt (in contrast to the insanity defense, which is), and that trying a person who is unable to cooperate with her counsel and rationally understand the proceedings against her makes it more likely that she will be convicted of crimes of which she may not be guilty, a base and basic violation of human decency.

It then considers the Comment that is at the center of this controversy, concluding that it makes no conceptual sense, and that, if implemented, it would violate due process, dignity and fair trial mandates, and, inevitably, lead to the torture of persons with mental disabilities who are charged with and convicted of crimes (in the case of those who “should be” found incompetent to stand trial, including those who are factually innocent), a denouement that is even more staggering when we realize that there is no indication that this outcome was ever in the minds of the drafters, that it was never debated, and that there is nothing to suggest that the populations in question were ever consulted.

Finally, the abolition of the defense and status violates every precept of therapeutic jurisprudence, the aim of which is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles, premised on the core values of voice, validation and voluntariness. Elimination of the insanity defense and incompetency status make it virtually impossible that these values will be privileged, and make it more likely that sanist values in jails and prisons will fester to an even greater extent than they do now.