'Infinity Goes Up on Trial': Sanism, Pretextuality, and the Representation of Defendants with Mental Disabilities

Abstract

This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear little or no relationship to case law or to statutes, and engage similarly in dishonest (and frequently meretricious) decision making, specifically where witnesses, especially expert witnesses, show a high propensity to purposely distort their testimony in order to achieve desired ends - and to show how these two factors infect all aspects of the criminal process.It further discusses how it is also necessary to understand the power of cognitive-simplifying heuristics and false “ordinary common sense” in decision making in these cases, and how defense lawyers often fall prey to the same prejudices that plague judges, prosecutors, jurors, the media and the general public. It concludes by discussing the school of thought known as therapeutic jurisprudence, and why that approach is the only way that the sanist and pretextual facade can be stripped from the criminal justice system, giving lawyers the opportunity to provide best possible representation for their clients.