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Introduction:
How the world has changed during the six years between the publication of the first edition of this book in 2018 and the second in 2024. The pandemic touched virtually every life and institution across the planet. And because of the pandemic, the awareness of mental health issues has heightened due to the impact of the lockdown during that time and the trauma many are still dealing with because of social isolation and the reordering of the world as we knew it.
To the degree that the criminal legal system reflects society at large, it too has become more aware of mental health issues. Indeed, even before the pandemic, a disproportionately high number of people in jails and prisons had mental health issues. But now, there is a growing awareness, a thirst for more information, and a quest for solutions. Thus, this is a perfect time for a second edition of Representing People with Mental Disabilities: A Practical Guide for Criminal Defense Lawyers.
This second edition is significantly different than the first. Several chapters are new: “Testing,” “Substance Use Disorder,” and “Post-Conviction Remedies.” Some chapters have changed or expanded in scope; Chapter 10 about false confessions includes a more thorough discussion of Miranda, and Chapter 13 about mental health courts is now titled “Mental Health Courts and Other Diversion Options.” The chapter on juveniles has been renamed “Youthful Offenders.” Other chapters have been updated by their authors from the first edition.
The format remains the same. I have written a short introduction to each chapter. The content is still meant to be practical and readable. Chapters can be read in one sitting. All authors, notwithstanding their
scholarly and professional qualifications, were asked to keep endnotes to a minimum. If readers want to learn more about a topic, they are encouraged to consult the Suggested Works section at the back of the book, which is arranged by chapter.
The content in one chapter may necessarily overlap with that in another. On the one hand, it is sufficient to read one chapter. On the other hand, for a broader understanding of a topic, a reader may want to explore a related chapter. For example, you may want to know the difference between competency and sanity (otherwise known as criminal responsibility). Thus, you should read Chapter 1, “Competency to Stand Trial” by Dr. Eric Y. Drogin and Chapter 2, “Criminal Responsibility” by Professor Lucy Guarnera and Professor Richard Bonnie. But curiosity takes you to Chapter 6 on malingering by Richard Rogers, Kamar Tazi, and Dr. Drogin. Similarly, you read Chapter 14 on veteran’s courts by Professor Julie Marie Baldwin, which may lead you to Chapter 13 on mental health courts and other diversion options by defenders Katherine Bujak and Jeffery Berman. That discussion may motivate you to read Chapter 19 on ethical issues by federal public defender Peggy Cross-Goldberg.
As with the first edition, I am deliberate about my word choice. “Mental disabilities” is my global term for mental illness (issues like bipolar disorder and schizophrenia), intellectual/developmental disabilities (like
autism spectrum disorder and fetal alcohol spectrum disorder), and neurological conditions like dementia. That being said, many people have co-occurring disorders or dual diagnoses. Moreover, it is important to
understand what something is and is not; for example, some people on the autism spectrum do not have an intellectual disability but they may have a co-occurring disorder. In the meantime, autism is a developmental disability. All of this is important in terms of understanding a client’s complexity, knowing what expert or experts to seek, and knowing how to most effectively advocate for your client.
I have many colleagues to thank for their contributions to this book. First and foremost, I would like to thank the authors of each chapter. I respect the time, knowledge, and creativity they channeled into their
chapters. I would also like to thank the ABA for again supporting one of my writing adventures. In particular, I thank Bryan Kay, who was a staunch advocate for this volume, as well as Lorraine Murray. Also, I appreciate the leadership of the Criminal Justice Section, namely Chairs Justin Bingham and Tina Luongo, who understood the need for a second edition.
Special recognition goes to those who peer-reviewed chapters, including Justin Murphy, Esq., Dr. Kenneth P. Rosenberg, Dr Charles Samenow, Dr. Michael Santa Maria, and Lizett M. Schreiber.
Finally, I thank the members of my team who help me in my law practice: Christine Andraus, Amber Fayerberg, Hannah Friedman, Kathryn Koontz, Julia Milan, and Starr Oldorff. In particular, I thank Lisa Johnson, who kept track of the thousands of moving parts that comprise this volume and always did so with grace and good humor.
I have devoted my practice and my life to representing people with mental disabilities. I am appalled by the fact that we criminalize people for manifesting the symptoms of their disabilities. In addition to advocating for my clients in my practice, I do a good deal of writing and speaking in order to educate criminal defense lawyers, judges, and anyone who will listen about the intersection of mental disabilities and the criminal legal system. But all the education in the world will not meaningfully help people with mental disabilities unless and until we first have a robust system of resources in the community to prevent criminal conduct from ever occurring; second, we return to rehabilitation and treatment as goals of our criminal legal system such that they are not eclipsed by punishment, incapacitation, and retribution; and finally, we modify our laws at the state and federal levels in order to give prosecutors and judges the discretion they need in order to wisely and humanely resolve these cases.
Elizabeth Kelley
Editor
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