Some Prosecutors Said to Unfairly Target Those With Mental Illness

Mental disability, prosecutorial misconduct, and the death penalty are a grim triad in the mind of Michael Perlin, J.D., a professor of law at New York Law School and director of its Online Mental Disability Law Program.

“There is no question that the death penalty is disproportionately applied in cases involving defendants with mental illness or intellectual disabilities,” said Perlin at the American Academy of Psychiatry and the Law’s annual meeting in Chicago in October.

Such defendants are significantly overrepresented at every stage of the criminal justice system, he emphasized, from precontact to interrogation to prosecution and sentencing. Of the Innocence Project’s first 130 death penalty exoneration cases, 85 involved false confessions, most of them from people with mental disabilities.

“Some prosecutors consciously use mental disability evidence to play on the fears and exploit the ignorance of jurors,” he said. Also common is prosecutors challenging the existence of intellectual disability or minimizing its significance and suppressing exculpatory psychiatric evidence that would cast doubt on confessions or the testimony of witnesses.

They also have made inflammatory statements about mental illness to juries, failed to turn over documents, or mischaracterized the insanity defense or expert testimony regarding the defendant’s mental state, Perlin maintained. Yet these actions usually are not seen by courts as fundamentally unfair.

One defense attorney told him of a case in which he heard nothing from the prosecutor for nine months, but when the defense notified the court that it would use an insanity defense, the prosecutor immediately said that he would seek the death penalty.

“There are great political incentives for prosecutors to go for the death penalty and for judges to grant it,” he said. “Convictions enhance re-electability, reversals are rare, and prosecutors are rarely disciplined.”

Perlin recalled the words of a Supreme Court justice in the 1930s who said that the role of the prosecutor should be to seek justice, said Perlin. “That is something I teach my students, but to a great extent, it gets eye rolls in a lot of district attorneys’ offices.”

Magical thinking by many in the general public leads them to believe that an innocent person cannot be convicted, he said. “The Innocence Project has done a heroic job [of proving the opposite], but its work has still not significantly shifted attitudes.”

Perhaps someday, prosecutorial misconduct in death penalty cases involving mentally ill or disabled defendants finally will move public opinion the way the Birmingham church bombing or the Triangle Shirtwaist fire did, by creating a sense of outrage that is too great to ignore, he said.

Some states do better than others in addressing questionable actions by prosecutors. After New Jersey began allowing lay people to serve on county judicial ethics boards, ethics complaints were more often validated, Perlin noted.

In what may be a hopeful sign, law professors are finally starting to talk about the issue. The legal and psychiatric professions must begin discussing strategies to deal with the problem on a national basis, he said. Such strategies might work through state legislatures or the courts. Alternatively, prosecutors, judges, and defense attorneys might heed the words of influential and enlightened judicial leaders who address the subject. “If you’re a lawyer in trial practice, you’ve got to take pretty seriously what the chief justice says,” he noted. “I would think there would be some kind of effect, even if it takes a while.” ■