Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Case

NYLS Legal Studies Research Paper No. 2910541

69 Pages Posted: 3 Feb 2017 Last revised: 27 Mar 2018
Heather Cucolo

New York Law School
Michael L. Perlin

New York Law School

Date Written: February 2, 2017
Abstract

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

Suggested Citation:
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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4 References

    offenders to write, but not send, letters to victims
    Posted: 2002
    Michael L Perlin, Keri K Gould & Deborah, A Dorfman
    Therapeutic Jurisprudence and the Civil Rights of Institutionali zed Mentally Disabled Persons: Hopeless Oxymoron or Path to Redemption?, 1 PSYCHOL
    PUB. POL’Y & L, volume 80
    Posted: 1995
    Crossref
    Jonathan Simon, & Stephen, A Rosenbaum
    Dignifying Madness: Rethinking Commitment Law in an Age of Mass Incarceration
    70 U. MIAMI L. REV, volume 1
    Posted: 2015
    See Perlin, & Weinstein
    holding that “a right of selfb. Tests are normed on certain groups of individuals (e.g., that fact-finders’ false “ordinary common sense” leads them to make fatally Lawyers need to be trained to understand and incorporate trauma-informed lawyering, 255 as well as the basic language and concepts of mental health law (to understand the possible effects of a mental disability or personality disorder on the client, the significance of diagnoses, and the success/failure rates of common treatment methods with this population, volume 32

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