NYLS Legal Studies Research Paper No. 2910541
69 Pages Posted: 3 Feb 2017 Last revised: 27 Mar 2018
New York Law School
Michael L. Perlin
New York Law School
Date Written: February 2, 2017
In Strickland vs. Washington, the Supreme Court acknowledged that the role of counsel is critical to the ability of the adversarial system to best insure that just results are produced. Yet, the Court did not elaborately define the Sixth Amendment constitutional right to counsel and lower courts, have set the bar shockingly low.
In this article we examine the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and conclude that a failure to apply a higher standard of adequate counsel – beyond what was set out in Strickland – results in humiliation, shame and lack of dignity for clients. Effective and competent counsel must be cognizant of how shame and humiliation corrupts our legislation, court proceedings and subsequent management of the sex offender population.
We explore the concepts of shame and humiliation and how the effects of these concepts damage not only the client, but the integrity of the court proceeding and subsequent goals of treatment rehabilitation . We focus on the volatile “arranged marriage” of law and psychology in sex offender civil commitment cases that require attorneys to have a particular set of skills and knowledge in order to conduct a fair, judicious and ethical trial, and to secure an accurate verdict. This is necessary to not only preserve the dignity of the legal system but additionally preserve the dignity of clients facing – what is most likely considered – one of the most undignified adjudicative determinations: that of “sexual violent predator”. We propose that without specialized training and expert collaboration, attorneys cannot provide even remotely adequate or effective representation .
We consider these issues through the prism of therapeutic jurisprudence, which we believe is vital to any authentic understanding of the underlying issues and offer suggestions to prevent and minimize client shame, humiliation and lack of dignity (including sample dialogues that counsel might have with her client).
Keywords: Sex offender law; right to counsel; therapeutic jurisprudence; expert testimony; sexually violent predator acts; SVPA laws; institutionali zation; actuarial tests; criminal procedure; jury attitudes; right to experts; judicial decisionmaking; shame and humiliation; dignity
Cucolo, Heather and Perlin, Michael L., Promoting Dignity and Preventing Shame and Humiliation by Improving the Quality and Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Cases (February 2, 2017). NYLS Legal Studies Research Paper No. 2910541. Available at SSRN: https://ssrn.com/abstract=2910541 or http://dx.doi.org/10.2139/ssrn.2910541
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