The Sanist Lives of Jurors in Death Penalty Cases: The Puzzling Role of Mitigating Mental Disability Evidence
![handle is hein.journals/ndlep8 and id is 245 raw text is: THE SANIST LIVES OF JURORS IN DEATH PENALTY
CASES: THE PUZZLING ROLE OF
MITIGATING MENTAL DISABILITY
EVIDENCE
MICHAEL L. PERLIN*
INTRODUCTION
The relationship between mental disability and the death
penalty has always been a troubling and contentious one.1 It has
spawned some of the most pervasive and perplexing myths in all
of criminal procedure jurisprudence.2 It has occupied an impor-
tant place on the Supreme Court's docket for the past decade.3
* Professor of Law, New York Law School. A.B., Rutgers University; J.D.,
Columbia University School of Law.
The author wishes to express his thanks to Lori Kranczer and Ilene Sacco
for their invaluable research help, and Camille Brossard of the NYLS Library
for her equally invaluable assistance.
1. See Michael L. Perlin, The Supreme Court, the Mentally Disabled Criminal
Defendant, and Symbolic Values: Random Decisions, Hidden Rationales, or Doctrinal
Abyss?, 29 ARIz. L. REv. 1 (1987) [hereinafter Perlin, Doctrinal Abyss]; Michael L.
Perlin, The Supreme Court, the Mentally Disabled Criminal Defendant, Psychiatric
Testimony in Death Penalty Cases, and the Power of Symbolism: Dulling the Ake in
Barefoot's Achilles Hee 3 N.Y.L. SCH.J. HUM. RTs. 91 (1985) [hereinafter Perlin,
Barefoot's Ake].
2. For instance, despite reams of empirical evidence to the contrary, it is
taken for granted that both the insanity defense and the incompetency to stand
trial status exist primarily (if not solely) to cheat the hangman, that is, to
enable individuals facing the death penalty to avoid capital punishment
because of their mental status. Compare, e.g., Perlin, Barefoot's Ake, supra note 1,
at 95-97 (on this explanation of the insanity defense) and 3 MICHAEL L. PERLIN,
MENTAL DISABILrry LAw: CIVIL AND CRIMINAL § 14.02, at 207 n.2 (1989)
[hereinafter PERLIN, MENTAL DIsABILrrY LAW] (on this explanation of the
incompetency status) with Michael L. Perlin, Unpacking the Myths: The Symbolism
Mythology of Insanity Defense Jurisprudence, 40 CASE W. REs. L. Rv. 599, 649-50
(1989-90) [hereinafter Perlin, Myths] (only one-third of cases in which insanity
defense is pled involves a victim's death) and Michael L. Perlin, Pretexts and
Mental Disability Law: The Case of Competency, 47 U. MI L. REv. 625, 652
(1993) [hereinafter Perlin, Pretexts] (citing HENRY STEADMAN, BEATING A RAP?
DEFENDANTS FOUND INCOMPETENT TO STAND TRIAL 8 (1979) (murder was the
predicate charge in only 15% of incompetency to stand trial petitions in sample
studies)).
3. See generally Perlin, Doctrinal Abyss, supra note 1; Perlin, Barefoot's Ake,
supra note 1; 3 PERLIN, MENTAL DISABILrry LAw, supra note 2, §§ 14.01-17.17.
Since 1990, the Court has decided three additional cases with inconsistent
results: Riggins v. Nevada, 112 S. Ct. 1810 (1992) (violation of competent,
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The Sanist Lives of Jurors in Death Penalty Cases: The Puzzling Role of Mitigating Mental Disability Evidence
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