Michael L. Perlin (New York Law School) has posted Ineffective Counsel in Death Penalty Cases and the Promise of Therapeutic Jurisprudence (Journal of the American Academy of Psychiatry and Law, Forthcoming 2022) on SSRN. Here is the abstract:
In this commentary, I discuss Hiromoto et al, PTSD and Trauma as Mitigating Factors in Sentencing in Capital Cases, available online at J Am Acad Psychiatry Law [online]. 2021 Mar; 50(1). doi: 10.29158/ JAAPL.210052-21. I argue that it is absolutely essential to consider the abject ineffectiveness of counsel in a significant number of death penalty cases involving defendants with serious mental disabilities and how such ineffectiveness is often (scandalously) accepted by reviewing courts, and then consider this article by Hiromoto and colleagues through the filter of therapeutic jurisprudence as a way to guide counsel to thoroughly investigate all aspects of such cases (especially those involving defendants with PTSD) and to present substantial mitigating evidence to the fact finders in the sorts of cases the authors are discussing.
I argue that counsel often neglects therapeutic jurisprudence principles, leading our entire system to “fail . . . miserably” from this perspective, and urge that attention be paid to our legal system’s abject failures here. I conclude that it is vital to explicitly articulate, from a TJ perspective, the burden on counsel to thoroughly investigate all aspects of cases in which issues of PTSD have been raised (or should have been raised).
This paper is currently available online at http://jaapl.org/content/early/2021/11/17/JAAPL.210089-21.