Re-Arranging Deck Chairs on the Titanic
\\server05\productn\H\HHL\5-1\HHL101.txt unknown Seq: 1 4-MAY-05 12:06 5 HOUS. J. HEALTH L. & POL’Y 1–73 1 R Copyright 2005 Jennifer S. Bard, Houston Journal of Health Law & Policy ISSN 1534-7907 RE-ARRANGING DECK CHAIRS ON THE TITANIC: WHY THE INCARCERATION OF INDIVIDUALS WITH SERIOUS MENTAL ILLNESS VIOLATES PUBLIC HEALTH, ETHICAL, AND CONSTITUTIONAL PRINCIPLES AND THEREFORE CANNOT BE MADE RIGHT BY PIECEMEAL CHANGES TO THE INSANITY DEFENSE Jennifer S. Bard* Anyone who has spent any time in the criminal justice system—as a defense lawyer, as a district attorney, or as a judge—knows that our treatment of criminal defendants with mental disabilities has been, forever, a scandal. Such defendants receive substandard counsel, are treated poorly in prison, receive disparately longer sentences, and are regularly coerced into confessing to crimes * Associate Professor of Law, Texas Tech University School of Law, Lubbock Texas; J.D., Yale Law School, 1987; M.P.H., University of Connecticut, 1997; A.B., Wellesley College, 1983. This work grew out of an invitation to give the second Nordenberg Lecture at the University of Pittsburgh Law School in October 2002, where I had the honor of Chancellor Nordenberg’s presence at the lecture. I very much appreciate the questions and comments following the lecture, which informed this article. Thank you also to Professor Elyn Saks, Orrin B. Evans Professor of Law, Psychiatry and Behavioral Sciences, University of South- ern California Law School, who read a late draft and made many helpful comments; Donna Vickers of the University of Texas Medical Branch; and to my primary research assistant at Texas Tech Law School, Kristi Ward ’05, for her invaluable contributions to the project.
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