New York Law School: Heather Ellis Cucolo and Michael L. Perlin; 2017
In Strickland v. Washington, the Supreme Court defined the Sixth Amendment constitutional right to counsel to include the right to the effective assistance of counsel. In its decision, the Court acknowledged that the role of counsel is critical to the ability of the adversarial system to best ensure that just results are produced. The Court did not elaborately define this constitutional requirement; subsequently, lower courts have set the bar shockingly low. This Article examines the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and concludes that a failure to apply a higher standard-beyond what was set out in Strickland-results in humiliation, shame, and lack of dignity for clients.
We define shame as the emotion we experience when we realize that we are not living up to our standards or ideals. “On a cognitive level, there is the painful awareness of being a failure, deficient, or inadequate. Shame can occur alone or with another who causes or heightens the experience. The shamed person feels exposed and wants to hide. Humiliation is the emotional experience of being lowered in status, usually by another person. There is the associated sense of powerlessness. Shame and humiliation are often felt in combination with one another, and thus we will refer to both and detail how these emotions are generated as a direct result of our treatment of individuals who have been labeled as sexual offenders.
The volatile “arranged marriage” of law and psychology in sex offender civil commitment cases requires 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 also to preserve the dignity of their clients facing what is most likely considered one of the
most undignified adjudicative determinations: that of “sexually violent predator.” Without specialized training and expert collaboration, attorneys cannot provide even remotely adequate or effective representation.
In this Article, we explore how an understanding of the concepts of shame and humiliation is critical to an understanding of the legal issues we discuss here, and we will “tease out” the meanings of these concepts in the specific context of the way that representation is (or is not) provided in SVPA cases.
We will consider these issues in this manner: Part II will discuss the application of the Strickland standard in SVPA cases; Part III will consider the significance of shame and humiliation in the legal process and the need for the judicial process to enforce standards of dignity; Part TV will demonstrate the harms caused by the failure to comply with even the minimal Strickland standards; Part V will explain the bases of
therapeutic jurisprudence, which is vital to any understanding of the underlying issues, and will offer suggestions to prevent and minimize client shame, humiliation, and lack of dignity; and Part VI will offer some modest conclusions.
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