Article on “Rethinking Criminal Responsibility”

Tina Minkowitz, Esq.
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My law review article entitled “Rethinking criminal responsibility from a critical disability perspective: The abolition of insanity/incapacity acquittals and unfitness to plead, and beyond” has been published in Griffith Law Review (2014) 23(3).

I invite readers to access the article on the publisher’s website, where 50 free copies are available (Version of Record).  The manuscript is also posted on the CHRUSP website with the same content but in the format in which it was submitted (Accepted Manuscript).

The article attempts to find a way to deal with concerns for a degree of toleration towards socially disruptive behavior that may be criminalized, without making some people categorically and legally irresponsible as happens with the insanity defense.  I am using the framework of the Convention on the Rights of Persons with Disabilities to explore the outlines of what this might look like.  In particular I consider what might be an analogue to supported decision-making, recalling that the shift from substitution to support (which must respect the person’s will and preferences) was key to acceptance of full and equal legal capacity for all people with disabilities.

Earlier on Mad In America, I posted some thoughts on the insanity defense and received useful feedback.  I remain open to conversations on the issue.  I expect that collaborative thinking will be needed to move towards a useful approach to criminal responsibility under the CRPD, whether it ends up being a simple abolition of insanity defense with nothing more, or some other re-working of criminal responsibility as a universal design approach to greater justice for all.

You are welcome to post your comments here about issues raised in my linked article, and also to email me through the MIA website.

5 COMMENTS

  1. I couldn’t access the publisher’s website. I’ll try again.

    Ms. Minkowitz, now covered by the ADA, those with disabilities are afforded legal protection once denied to us. In your opinion, do these special laws entitle us to be free of public hate speech; those kinds of statements directed specifically at people who are medically defined as having certain mental illnesses?

    Thanks for your work.

  2. Tina – I read as far as your second main section “Criminal responsibility;” and want to intersperse Slobogin at this point. From what you say, it’s instructive to read him, and although you couldn’t use the word yourself to good effect, his views seem to result in noxious effects on public discourse. My understanding and experience of the pertinent arguments here about fair trial issues are minimal, but my acquaintance with the issues that constitute substantial impact for defining and including or setting aside discussion of mental capacity is more broad. In that debate, my knowledge is not well-rounded enough, however, with comparative judgments as for the issue of intelligence testing or–as you explicitly mention–let’s say, unconventional, primitive, anarchic, or antisocial worldviews. Thanks and best wishes