Papers by Michael Mullan
Richmond Public Interest Law Review, 2021
Persons with mental illness are incarcerated in prisons across the United States at disproportion... more Persons with mental illness are incarcerated in prisons across the United States at disproportionate rates compared to the general population. Understanding why this is so requires an examination of how society in general has treated persons with mental illnesses. This article relates a history of neglect and stigmatization in examining the entities responsible for care of persons with mental illnesses, including the family, asylums and prisons.
The article identifies trends of institutionalization, deinstitutionalization, and transinstitutionalisation, whereby large amounts of inpatients with mental illnesses moved out of psychiatric institutions, into the streets, and then into the criminal justice system. The article also analyses socioeconomic factors bearing on mental illness as a cause of crime, the high arrest rates and prison conditions experienced by those with mental illness, and public perceptions and myths about persons with mental illnesses.
The article claims the impact of social control via the criminal justice apparatus – policing, imprisonment, and subsequent labeling – is a predominant cause of the high rates of imprisonment. It is suggested that in order to reverse the trend towards the mass incarceration of those with mental illnesses, we should reject calls for a return to the asylum. Instead, our focus should be on providing community-based treatment and interventions that address the socioeconomic causes of crime.
Seattle Journal for Social Justice, 2021
In the 2020 case Kahler v. Kansas, the U.S. Supreme Court held that under the Due Process Clause ... more In the 2020 case Kahler v. Kansas, the U.S. Supreme Court held that under the Due Process Clause of the Fourteenth Amendment, it is constitutional to abolish the affirmative insanity defense. The Court accepted the view that Kansas’s provision for mental illness evidence to be introduced at the sentencing stage of a criminal trial, as well as to be adduced to deny mens rea at trial, was a constitutionally acceptable alternative to an affirmative insanity defense. This article focuses on the sentencing alternative. The alternative to the insanity defense of making mental illness solely relevant at the sentencing stage of a criminal trial is insufficient given the profound legal, historical, and moral underpinnings of the defense itself.
Mississippi Law Journal, 2019
In addition to the nationwide phenomenon of mass incarceration, there exists a sub-problem in th... more In addition to the nationwide phenomenon of mass incarceration, there exists a sub-problem in the U.S. of overrepresentation in prisons and jails of those with severe and persistent mental illnesses (SPMI). The disproportionate imprisonment of those with mental illnesses is one driving force of mass incarceration. Furthermore, we have reached an era characterized by the “criminalization of mental illness.” Driving this is another feature of the mass incarceration era, the change in the types of institutions that incarcerate those subject to social control in American society. With the deinstitutionalization movement, and the closure of mental health institutions (largely brought about by the 1963 Community Mental Health Act), there has been a shift towards incarcerating the mentally ill in criminal justice institutions such as prisons and jails. This essay will consider the role mental illness should play in sentencing, and how this might reduce the disproportionate levels of prisoners with mental illness. More specifically, this paper examines the sentencing rules where the defendant has a SPMI, but has failed to successfully meet the insanity defense.
Sociolegal Review, 2015
Victimology has received increasing attention in criminological circles and in the criminal law. ... more Victimology has received increasing attention in criminological circles and in the criminal law. Recent legislative changes to the criminal justice system (‘CJS’) in Ireland reflect this shift in focus. However, this dissertation will argue that while the interests of the overall group of victims has come into popular discourse, there is a dearth of analysis and study into a particular subgroup of victims - victims of crimes with disabilities. Moreover, a lack of critical commentary has been particularly acute in Ireland, until the recent publication by Kilcommins et al which provided an examination of the current academic literature in the area, and pointed to structural changes to be made. They highlighted areas requiring more investigation including the need for a qualitative analysis of the experiences of victims with disabilities (‘VWD’) in their dealings with the CJS. This study, building on the foundations laid by Kilcommins et al., attempts to understand the particular difficulties VWD face in the criminal justice process. The study undertakes socio-legal research based upon direct engagement in the form of interviews with victims who have disabilities.
A common theme running through the discourse, as unearthed in the literature review, is the identification of barriers to justice, but this phenomenon has yet to titled. This dissertation, in its concluding segments will put forward the hypothesis of ‘tertiary victimisation’ where the interaction of having a disability with the CJS results in a unique victimisation or suffering experience for VWD. The segments preceding that will discuss the unique factors that contribute to this experience of ‘tertiary victimisation’.
The Social and Political Review, 2015
The Irish prison system is in a state of crisis as evidenced by chronic overcrowding, budgetary c... more The Irish prison system is in a state of crisis as evidenced by chronic overcrowding, budgetary cuts, high recidivism rates, endemic fear of crime, poor prisoner conditions, and in particular accusations of discrimination as elements of the crisis; yet the existence of prison remains largely unquestioned. This article, while relying on an interdisciplinary approach of critical perspectives on law, sociology, penology and criminology uses an abolitionist perspective to determine whether prison is a viable solution in dealing with offenders of the criminal law in the context of these failures, especially in terms of its arguable classist nature. More particularly, relative abolitionism seeks the abolition of prison for the majority of prisoners that pose no known physical danger to the public, while acknowledging the need to physically confine a minority of dangerous offenders but not in a prison-like system. The need to abolish prisons resides not only in its clear failure to reduce offending but also in the proposed classist nature of the Irish prison system which means the majority of prisoners are likely to come from poor socio-economic backgrounds.
The article asks; what purpose does prison supposedly serve, whether this is a valid purpose, what its impacts are, and whether it actually achieves that goal, and how prison persists if it does not achieve its aims.
Finally, the article considers whether partial abolitionism is a laudable and practical solution.
Conference Presentations by Michael Mullan
2015 Irish Society of Comparative Law Conference 06 June 2015, 2015
Penology and penality examine the impact that the prison and other elements of the wider penal an... more Penology and penality examine the impact that the prison and other elements of the wider penal and punishment systems have on those who have transgressed the criminal law. Within penology certain groups of prisoners have received particular attention, looking at their unique experiences of ending up in prison and their condition therein, such as female , elderly , and disabled prisoners. In Ireland, and also in the UK gay, lesbian, bisexual and transgender (LGBT) prisoners have been largely ignored by academics. Literature from other jurisdictions, particularly the US, confirms LGBT prisoners have very unique and different experiences in prison compared to their heterosexual counterparts, which warrants an examination in an Irish context. As Irish society becomes more liberal and more accepting of individuals identifying as LGBT, as evidenced by the progressive granting of rights to and protection of members of the LGBT community, more and more citizens within Ireland will ‘come out’ openly as LGBT. As the LGBT population increases in size comparable to the general population, the percentage of individuals within prison who identify as LGBT will correspondingly increase. Furthermore, there is reports that LGBT individuals are disproportionately represented in prisons. Furthermore, their prison experience can be adversely harsh for various reasons that pertain only to those who are LGBT. In Ireland, there has yet to be desk-bound or empirical research into, or a gathering of data on, the unique issues and challenges of LGBT prisoners. This essay attempts to spark the Irish discourse in this regard.
This essay relies heavily on the UK literature and data, given the dearth of both in an Irish context, and given the similarity between both societal and penal cultures of Ireland and the UK. The UK and US experience of dealing with LGBT prisoners will be indicative of the present and future state of the Irish prison experience for LGBT prisoners.
Drafts by Michael Mullan
This paper examines the interactions between the police and citizens with mental illnesses. There... more This paper examines the interactions between the police and citizens with mental illnesses. There has been a rise in the numbers of interactions between both parties, particularly in the form of emotional disturbance calls. This paper will concentrate on such interactions, as well as the use of force by police against persons with mental illnesses. The changing role of the police means that they act as service providers to those with mental illnesses. This role means that police have three options to conclude an emotional disturbance call or mental breakdown of a person with a mental illness. These options are to arrest, to send the individual into civil commitment or to resolve the situation informally. The ADA also plays a role in such interactions including reasonable accommodations. The paper also addresses the role of guns, and in doing so considers Ireland given the lack of guns on the part of police and their less forceful treatment of those with mental illnesses. Finally solutions such as the use of CIT training will be provided.
America is obsessed with sex, and has been for a long time. However, the realization that peopl... more America is obsessed with sex, and has been for a long time. However, the realization that people with disabilities have sexual desires is a relatively new idea. Before the 1970s, there was little to no research in this area of sexuality and disability, even within the disability studies literature. To start, it is worth noting what we mean by sexuality. The Sexuality Information and Education Council of the United States (SIECUS) defines sexuality “as multifaceted, having biological, social, psychological, spiritual, ethical, and cultural dimensions”. As we will see, this paper adopts the social model of disability. In terms of the quantity of persons with disabilities, over 56 million of US people (almost 20%) have a disability according to the most recent data in 2010. In terms of the amount of people engaging in sex in the US, among adults aged 25–44, about 98% of women and 97% of men had vaginal intercourse, and with 89% of women and 90% of men ever had oral sex with an opposite-sex partner.
Despite the numbers of persons with disabilities, the barriers facing sexual expression by this group are so extensive that Siebers argues that those with disabilities are a sexual minority. This category of persons are denied access to sexual experiences and control of their own bodies. Historically the topic of sex and disability “has been stigmatized as taboo.”
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Papers by Michael Mullan
The article identifies trends of institutionalization, deinstitutionalization, and transinstitutionalisation, whereby large amounts of inpatients with mental illnesses moved out of psychiatric institutions, into the streets, and then into the criminal justice system. The article also analyses socioeconomic factors bearing on mental illness as a cause of crime, the high arrest rates and prison conditions experienced by those with mental illness, and public perceptions and myths about persons with mental illnesses.
The article claims the impact of social control via the criminal justice apparatus – policing, imprisonment, and subsequent labeling – is a predominant cause of the high rates of imprisonment. It is suggested that in order to reverse the trend towards the mass incarceration of those with mental illnesses, we should reject calls for a return to the asylum. Instead, our focus should be on providing community-based treatment and interventions that address the socioeconomic causes of crime.
A common theme running through the discourse, as unearthed in the literature review, is the identification of barriers to justice, but this phenomenon has yet to titled. This dissertation, in its concluding segments will put forward the hypothesis of ‘tertiary victimisation’ where the interaction of having a disability with the CJS results in a unique victimisation or suffering experience for VWD. The segments preceding that will discuss the unique factors that contribute to this experience of ‘tertiary victimisation’.
The article asks; what purpose does prison supposedly serve, whether this is a valid purpose, what its impacts are, and whether it actually achieves that goal, and how prison persists if it does not achieve its aims.
Finally, the article considers whether partial abolitionism is a laudable and practical solution.
Conference Presentations by Michael Mullan
This essay relies heavily on the UK literature and data, given the dearth of both in an Irish context, and given the similarity between both societal and penal cultures of Ireland and the UK. The UK and US experience of dealing with LGBT prisoners will be indicative of the present and future state of the Irish prison experience for LGBT prisoners.
Drafts by Michael Mullan
Despite the numbers of persons with disabilities, the barriers facing sexual expression by this group are so extensive that Siebers argues that those with disabilities are a sexual minority. This category of persons are denied access to sexual experiences and control of their own bodies. Historically the topic of sex and disability “has been stigmatized as taboo.”
The article identifies trends of institutionalization, deinstitutionalization, and transinstitutionalisation, whereby large amounts of inpatients with mental illnesses moved out of psychiatric institutions, into the streets, and then into the criminal justice system. The article also analyses socioeconomic factors bearing on mental illness as a cause of crime, the high arrest rates and prison conditions experienced by those with mental illness, and public perceptions and myths about persons with mental illnesses.
The article claims the impact of social control via the criminal justice apparatus – policing, imprisonment, and subsequent labeling – is a predominant cause of the high rates of imprisonment. It is suggested that in order to reverse the trend towards the mass incarceration of those with mental illnesses, we should reject calls for a return to the asylum. Instead, our focus should be on providing community-based treatment and interventions that address the socioeconomic causes of crime.
A common theme running through the discourse, as unearthed in the literature review, is the identification of barriers to justice, but this phenomenon has yet to titled. This dissertation, in its concluding segments will put forward the hypothesis of ‘tertiary victimisation’ where the interaction of having a disability with the CJS results in a unique victimisation or suffering experience for VWD. The segments preceding that will discuss the unique factors that contribute to this experience of ‘tertiary victimisation’.
The article asks; what purpose does prison supposedly serve, whether this is a valid purpose, what its impacts are, and whether it actually achieves that goal, and how prison persists if it does not achieve its aims.
Finally, the article considers whether partial abolitionism is a laudable and practical solution.
This essay relies heavily on the UK literature and data, given the dearth of both in an Irish context, and given the similarity between both societal and penal cultures of Ireland and the UK. The UK and US experience of dealing with LGBT prisoners will be indicative of the present and future state of the Irish prison experience for LGBT prisoners.
Despite the numbers of persons with disabilities, the barriers facing sexual expression by this group are so extensive that Siebers argues that those with disabilities are a sexual minority. This category of persons are denied access to sexual experiences and control of their own bodies. Historically the topic of sex and disability “has been stigmatized as taboo.”