AuthorElizabeth Kelley
Whenever there is a mass shooting like Las Vegas, Sandy Hook, or Aurora
or some other violent incident involving a person with a mental disability,
the public’s attention becomes focused on society’s inability to treat these
conditions and prevent these tragedies. And then we move on.
However, for criminal defense lawyers of all types, clients with mental
disabilities are a part of our practice. This ranges from the white-collar
criminal defense lawyer who represents an executive charged with tax eva-
sion who functions despite a variety of conditions he keeps hidden, to the
public defender assigned as standby or advisory counsel for the defendant
who wants to represent himself at trial, to the sole practitioner represent-
ing the man with Asperger’s charged with possession of child pornography
on his computer.
Depending on the statistics you read, approximately one-third of the
inmates in U.S. jails and prisons have some sort of mental disability. It
has become cliché to say that our jails and prisons have become de facto
mental institutions. How did we reach this point?
In 1963, before President John F. Kennedy traveled to Dallas, one
of his last official acts was to sign the legislation that began the process
of closing our nation’s mental institutions. This was desperately needed
because of the shameful warehousing and abuse of people with mental
disabilities. This was in part made possible by the development of drugs
that could treat many conditions. The plan was to implement a system of
community-based resources so people could live relatively independently
and productively. But for a variety of reasons, including failure to fund,
this has not come to pass. Some of these people have ended up homeless.
Some of these people have gotten in trouble with the law, often cycling
in and out of jails and prisons. In short, deinstitutionalization has become
replaced by transinstitutionalization.
At the same time, it is important to emphasize two points. The first
is that people with mental disabilities come from all economic, racial, and
social backgrounds. The second is that people with mental disabilities are
more likely to be victims rather than perpetrators of a crime.
Unfortunately, it is the perpetrators of major crimes, often murder,
who capture the headlines. But as criminal defense lawyers know, for
our clients, whatever they are charged with, every case is a major case.

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