In 1927, a Supreme Court of Nebraska opinion quoted testimony from the physician who examined capital defendant Frank Carter: “[H]e belonged to a type of mind . . . which is generally classed, for lack of a better name, as being a psychopathic personality.”1 The court affirmed Mr. Carter’s death sentence,2 and he was executed by electric chair on June 24, 1927.3 Since then, antisocial personality disorder (ASPD), the modern incarnation of the “psychopathic personality,” has continued to serve as a justification for a wide range of legal sanctions, including the death penalty. Mental health professionals study and refine diagnoses to improve clinical understanding and treatment options. But the adversarial nature of the legal system incentivizes the continued inaccurate use of a diagnosis that triggers perceptions of monstrousness and crime as fundamental to an individual’s core being.4 This Note synthesizes scholarship about ASPD from an interdisciplinary perspective to critique the legal misuse of clinical knowledge and to alert mental health professionals thereof. Ultimately, the ASPD diagnosis is so severely flawed that it cannot reasonably be used in legal decisionmaking.
In Part I, the Note provides background regarding the ASPD diagnosis, starting with a discussion of the diagnosis qua diagnosis and then tracing how the history and development of the diagnosis have shaped negative clinical perceptions of ASPD. The lengthy discussion of clinical considerations in this Part is necessary to understand what goes unexamined by the legal system in later examples of the legal use of the diagnosis. Part II examines how clinical stigma infects the use of ASPD diagnoses in a legal context, where the adversarial process magnifies bias. Part III focuses on the role of the ASPD diagnosis in the imposition of the death penalty to demonstrate how dangerous the current legal regime really is. Part IV proposes humble, preliminary methods for addressing the issues the Note has raised.
I. Background and Context
A. The Diagnostic Process
This section provides a brief overview of the diagnostic process for ASPD, highlighting that mental health diagnoses structure categories based on symptom presentations rather than underlying, or causal, conditions. The Diagnostic and Statistical Manual (DSM) is an “authoritative guide to the diagnosis of mental disorders,” a text that standardizes diagnostic descriptions and criteria and provides clinicians with “a common language.”5 Scholars have described the DSM as “the definitive authority on psychiatric diagnosis.”6 This text is subject to both ongoing development and criticism.7 Psychiatrists tasked with planning the fifth iteration of the DSM noted the persistence of symptom-based diagnosis in their process: “Since DSM-III, disorders have been defined in terms of syndromes — that is, clusters of symptoms that co-vary together”8 — rather than underlying causes. In this descriptive approach, “disorders were characterized in terms of symptoms that could be elicited by patient report, direct observation, and measurement.”9 Subsequent research has indicated that many disorders co-occur at high rates, and “[t]he efficacy of many psychotropic medications cuts across the DSM-defined categories,”10 which calls the distinctness and value of these classifications into question.11 Diagnoses are made within this imperfect and evolving framework.
The antisocial personality disorder diagnosis is itself defined by observable symptoms, primarily conduct. The main diagnostic criterion for antisocial personality disorder is:
A pervasive pattern of disregard for and violation of the rights of others, occurring since age 15 years, as indicated by three (or more) of the following:
1. Failure to conform to social norms with respect to lawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest.
2. Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure.
3. Impulsivity or failure to plan ahead.
4. Irritability and aggressiveness, as indicated by repeated physical fights or assaults.
5. Reckless disregard for safety of self or others.
6. Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations.
7. Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.12
These criteria capture a broad variety of presentations without distinguishing underlying causal processes; “[d]efining a disorder of personality in terms of social deviance confounds the two universes” of “personality characteristics” and “antisocial behaviour.”13
B. Origins of Clinical Bias
A study of the history of the ASPD diagnosis reveals how the origins of the diagnosis have shaped its developmental trajectory. German psychiatrists first used the term “psychopathic” as a label for “psychological problems . . . involving significant disturbances of mood and thought” in the 1840s.14 Over time, “psychopath” was used in the context of what “eventually became known as personality disorders.”15 The “psychopathic personality” thus became an increasingly diffuse and meaningless categorization.16 The antisocial label emerged as a particular form of deviance with “profoundly rooted warps in the personality,” regarded by some as “constitutionally inferior and at the worst as morally imbecile.”17 The antisocial language prevailed, and the DSM I, published in 1952, subsumed the “psychopathic personality” within the “[a]ntisocial reaction.”18 Meanwhile, Dr. Hervey Cleckley, called “[t]he most influential figure in the study of psychopathy,”19 developed a separate clinical conceptualization of psychopathy, distinct from ASPD, that still informs ongoing research outside of DSM diagnoses.20 This history remains relevant to the modern diagnosis and its use in the law.
At the time theories of quantifying and categorizing personality emerged, the concurrent development of eugenicist thinking informed the evolution of the ASPD diagnosis. Scholarship has explored connections between eugenics, psychiatry,21 and theories of crime;22 these historical influences affect beliefs about ASPD today, in ways that may go dangerously unrecognized. The term “eugenics” originated in 1865 with Francis Galton,23 who argued that character was quantitative and “ought to be measured.”24 The Treatise on Mental Diseases had been published five years prior,25 proposing that hereditary mental diseases stemming from a “pathological anatomy of the brain” would “inevitabl[y] . . . lead to degeneration.”26 For eugenicists, degeneration was the process of reverting to “lazier, weaker, less complex, less intelligent forms of life,” with some “believ[ing] that any kind of long-term aid to a creature would result in its eventual physical and cognitive decline.”27 Professor Cesare Lombroso, a criminologist, advanced the idea that “criminals were ‘throwbacks’ in the phylogenetic tree to early phases of evolution.”28 Psychiatrist Emil Kraepelin included Lombroso’s theories in Clinical Psychiatry: A Text-Book for Students and Physicians, writing that psychopathic degeneracy in its “severest forms” could be called “Moral Insanity” or “Moral Imbecility.”29 He continued: “The further life of these morally incapable personalities is a constant conflict with society. . . . [T]hey are wholly unable to appreciate that it is their own actions which necessitate their being condemned to pass their lives in prisons and penitentiaries.”30
As clinical knowledge has evolved, the ASPD diagnosis has retained a sense of immutability, an inability to benefit from treatment. In 1904, Kraepelin wrote that “[t]he treatment of born criminals unfortunately offers little opportunity and still less prospect of success.”31 In 1930, an American literature review concerning the “psychopathic personality” noted that it was “difficult to find much beyond pessimistic comment” about the possibility of treatment.32 In 1952, the DSM I advised that “chronically antisocial individuals who are always in trouble[] profit[] neither from experience nor punishment.”33 In 2004, Professor Otto Kernberg wrote: “The prognosis for psychotherapeutic treatment of the [Antisocial Personality Disorder] proper is practically zero.”34 This language can also be seen in the rhetoric of death penalty trials.35 Perhaps the persistence of these beliefs has, tautologically, arrested therapeutic innovation.
C. Antisocial Personality Disorder Today
That history of ASPD continues to color its use as a diagnosis today. Diagnosis is intended to be “the first step toward being able to appropriately treat any medical condition, and mental disorders are no exception.”36 Yet the ASPD diagnosis appears to operate as a signal that treatment is not possible. There is a deep tension between research showing that the ASPD diagnosis is associated with significant distress and social cost and prevailing therapeutic norms about the uselessness of working with ASPD-diagnosed clients. This section explores stigma in therapeutic settings, possible modern contributors to negative clinical perceptions of ASPD, and finally, the serious treatment needs of individuals that may go unassessed or be minimized due to an ASPD diagnosis. The clinical disutility of the diagnosis has both therapeutic and, as later discussed, legal implications calling into question the diagnosis’s continued use.
ASPD is highly stigmatized in therapeutic settings. Researchers theorize that mental health stigma results from “decreased pity, increased anger and fear, and believing those with mental health problems are personally responsible for their symptoms.”37 This kind of stigma can lead to denial of treatment and perceptions of individuals with an ASPD diagnosis as particularly culpable, even “evil.”38 ASPD has been used as “an exclusion criterion for” treatment or hospitalization.39 Those who are accustomed to watching others closely to survive, such as currently or formerly incarcerated persons,40 can become highly attuned to any signs of a threat in interpersonal interactions.41 Clinicians who expect and then have experiences with seemingly disengaged or hostile clients may entrench their own perceptions of the condition as untreatable.42 (Conversely, clinicians who better understand ASPD feel more positive about being able to treat clients with the diagnosis.43) The diagnosis can operate as a self-fulfilling prophecy of treatment resistance or failure.
Even as scientific understanding progresses, new forms of treatment and sources of hopefulness have failed to reach ASPD. Pharmaceutical companies have been “major sources of support for th[e] symptom-based approach to diagnosis.”44 Researchers found that fifty-five of ninety-two United States–based physicians involved in developing the DSM-5-TR had financial ties to the pharmaceutical industry, receiving a total of at least $14.2 million in payments.45 Researchers have also shown that “academic-industry relationships lead to pro-industry conclusions, non-evidence based prescription practices, and untrustworthy guideline recommendations.”46 And researchers have “found that financial conflict of interest is prevalent among clinical trials” in “the most frequently cited general psychiatric journals that commonly publish clinical trials.”47 Medical researchers with a financial conflict of interest may “be more likely to agree to study designs or reports biased toward the sponsored drug or be less likely to publish negative results.”48 Symptoms that can be medicated thus appear to have better treatment options.
But ASPD does not benefit from research incentives or curated reports of positive treatment outcomes. So far, “no medications” have been approved to treat ASPD, “and only very few clinical trials directly address[]” the diagnosis.49 Medication availability, or lack thereof, can intersect with other factors, such as systemic racism, to impact an individual’s life course. Children diagnosed with attention-deficit/hyperactivity disorder (ADHD) “are diagnosed with a condition that is supported with pharmacotherapy, behavioral interventions, and educational accommodations,” while physicians may be more “pessimistic” about future criminality of children who receive a conduct disorder diagnosis,50 the childhood precursor for an adult diagnosis of antisocial personality disorder.51 Research has shown that Black and Latine children are less likely to receive an ADHD diagnosis, even when it is indicated, and more likely to receive conduct-related diagnoses.52 Reactions to conduct disorder diagnoses can cascade across treatment, social relationships, and educational settings, resulting in less supportive care, greater isolation, harsher discipline, and ultimately increased risk of contact with the law.53 Here again, the self-fulfilling prophecy of ASPD: Hopelessness about an unwritten future prescribes the path forward.
And yet ASPD diagnoses frequently signal clinically significant distress and impairment, suggesting the importance of providing treatment. ASPD as a diagnosis has “high rates” of comorbidity with “mood, anxiety, substance use, and somatoform disorders, and [Borderline Personality Disorder]” diagnoses.54 ADHD is “[a]n important clinical antecedent of A[S]PD,” and conduct disorder in youth may co-occur with ADHD and bipolar disorder, which can be associated with a “higher risk of substance abuse” and “poorer response to treatments.”55 The ASPD diagnosis alone also correlates with indications that treatment is needed, including reported poor quality of life,56 increased mortality,57 and a heightened risk of suicide.58 A longitudinal study found that people with ASPD diagnoses had “a striking 13-year difference in . . . median survival time,” a “hazard ratio of dying by suicide . . . almost three times” higher than individuals without ASPD,59 and “an eightfold increase in the risk of death due to HIV.”60 The ASPD diagnosis as it currently exists ultimately operates to prevent people in real distress from receiving treatment, which defeats the purpose of making a diagnosis to begin with.
Finally, the social and environmental factors implicated in the developmental experiences underlying an ASPD diagnosis call into question the notion of inherent traits. The DSM-5 identifies “[c]hild abuse or neglect, unstable or erratic parenting, or inconsistent parental discipline” as environmental risk factors,61 and the prevalence of antisocial behavior increases in settings with “high rates of child maltreatment or exposure to violence.”62 Studies estimate some varying degree of genetic contribution.63 Adverse childhood experiences such as physical and sexual abuse have been linked with an increased likelihood of receiving an antisocial personality disorder diagnosis as compared to children who did not experience similar abuse.64 The connection may be indirect — physical abuse may foster hostility and distrust and “serve as the impetus for out-of-home placement,” which can become “the first step in a long procession of institutional placement.”65 Put differently, early exposure to violence and trauma can result in perceptions of individuals as particularly blameworthy and “bad.”
Punishing people for their experiences of adversity with a stigmatizing and essentializing label that can create self-fulfilling prophecies is deeply troubling. This Note covers only a sample of the research on ASPD, but there is ample literature challenging the narratives surrounding the diagnosis.66 The Note now turns to the legal use of ASPD.
II. Amplification of Bias in the Law
This Part identifies ways in which an adversarial legal system is not only poorly prepared to recognize and defend against bias but can also exacerbate prejudice. Courts are ill-equipped to sift through the non-clinical moralistic judgments mental health professionals deliver under the guise of expert testimony.67 Judges and juries are susceptible68 to the influence of biased experts offering unsound opinions.69 Conversely, individuals who speak on their own behalf may seem less credible because of both their personal involvement and the nature of the ASPD diagnosis.70 Courts continue to treat the constellation of ASPD symptoms as stable or increasing with age71 and to take for granted the controversial view that the ASPD diagnosis is intractable or immutable.72 These beliefs persist despite decades of research to the contrary.73 (The “reduction or cessation” of symptoms of ASPD “is common, typically beginning by the fifth decade,”74 or sooner.75) The legal context of testimony related to antisocial personality disorder in criminal defendants often serves to confirm preconceptions of those diagnosed with ASPD as inherently criminal. This Part explores these and other issues.
Beliefs can turn into self-fulfilling prophecies. Conduct that develops as “adaptations to and consequences of contact with the criminal justice system”76 can fuse with notions of enduring disordered personality functioning situated within the individual. Put differently, an “antisocial trait” can be mistaken for an “underlying essence . . . [of] deviancy”: Social factors such as “[a]cademic failure and peer rejection” combined with “substance use and . . . arrest” can be misunderstood to reflect, rather than aggravate, underlying personality traits.77 Repeated exposure to traumatic and violent environments may further fuel this feedback loop.78 But an ASPD diagnosis may undermine mitigating information related to mental health, including weaponizing underlying traumatic experiences.79 And diagnoses of ASPD can “become powerful vehicles for exacerbating [racial] disparities” already affecting people of color in the criminal legal system.80 Individuals carry the burden of these systemic issues.
Legal scholarship covers antisocial personality disorder extensively, yet the diagnosis remains misunderstood. Negative perceptions of ASPD abound.81 Researchers note how poorly jurors receive labels like “antisocial” and “psychopath.”82 And many criticize a diagnosis that exists to dehumanize,83 or argue for a fundamental reconceptualization of how to address the ASPD diagnosis in court.84 Dr. Kathleen Wayland and Professor Sean O’Brien argue that “[t]estimony labeling a capital defendant antisocial or psychopathic has one overriding purpose: to obtain and carry out a sentence of death.”85 The DSM contains a warning that “there is a risk that diagnostic information will be misused or misunderstood . . . because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis.”86 As the Supreme Court has acknowledged, “Psychiatry is not . . . an exact science,” and “there often is no single, accurate psychiatric conclusion on legal insanity in a given case.”87 Yet courts call for the assessment88 that the DSM advises against.89
At a basic level, the law lacks a consensus on the terms used to refer to ASPD and what those terms mean. The diagnosis is sometimes called “sociopathic personality,”90 “dissocial personality disorder,”91 or “dyssocial personality disorder.”92 Experts link ASPD with a lack of conscience,93 a nonclinical moral judgment given seemingly as a result of clinical expertise. “Antisocial behavior” may be used nonclinically, describing unpleasant or criminal conduct,94 with or without a linkage to the clinical diagnosis.95 In Moore v. Texas,96 the Supreme Court proscribed the use of “lay stereotypes” instead of “medical and clinical appraisals” for individuals with intellectual disabilities in capital cases.97 The hazy lines between clinical appraisal and lay stereotypes used to describe ASPD should also “spark skepticism.”98
While the DSM does standardize the language clinicians use,99 the law has no similar corrective method. In addition to terms used imprecisely, conflations of psychopathy and ASPD link ASPD with additional sources of prejudice. This is nothing new — a wave of “sexual psychopath” laws, passed in “twenty-six states and the District of Columbia” from 1937 to 1967,100 appears to have been a response to public outrage in the face of sensational media coverage of crimes involving sexual assault and murder.101 Professor Molly Ladd-Taylor links Minnesota’s 1939 sex psychopath statute, extended from “a 1917 law permitting the compulsory eugenic commitment of persons ‘alleged to be feeble minded, inebriate or insane,’”102 with modern “involuntary civil commitment.”103 The terms “psychopath” and “psychopathic personality” may appear in cases related to sexual psychopath laws104 and cases concerning the ASPD diagnosis105 — or both.106 In this manner, laws that equate mental illness with violence can also confuse the meaning of clinical terms used nonclinically.
But a reliance on experts for elucidation cannot solve these problems. The adversarial nature of the court system converts treatment records into evidence of characterological defects, pitting client against clinician and undermining the therapeutic role of treatment providers. In 1998, a group of law and psychology professors wrote a paper proposing that mental health professionals should be barred from testifying about their patients.107 They argued that “there is an irreconcilable professional conflict of interest between the therapeutic and forensic roles.”108 Treating clinicians do not structure their work to meet evidentiary standards, and individuals’ psychotherapeutic practices are not subject to the same “level of judicial or societal scrutiny” forensic experts are accustomed to.109 Clinicians’ notes may be written with an awareness of potential liability, which affects what records contain.110 And testifying may put a therapist “in a judgmental position that virtually all therapies seek to avoid.”111
Expert testimony about the ASPD diagnosis is a separate and distinct concern. Expert testimony influences courts’ decisionmaking.112 The history and prejudice underlying the clinical use of the ASPD diagnosis undermine the “evidentiary reliability”113 of expert testimony about the nature and meaning of the diagnosis. There are many cases in which a psychiatrist or psychologist testifies to the effect that someone with ASPD can be “neither cured nor treated.”114 Others testify that ASPD is “difficult to treat,” but individual factors can indicate “a more positive prognosis,”115 or that “treatment might serve a useful purpose.”116 Yet other experts testify that “treatment has been effective to change behavior and attitudes.”117 How can courts give testimony about the diagnosis any weight when experts disagree about basic questions such as whether ASPD can be treated?
III. The Death Penalty
The nature of the ASPD diagnosis as a label for criminality and the underlying history of clinical bias invert the use of mental health information as a source of understanding and mercy. The ASPD diagnosis arises in many areas of the law, including civil commitment,118 child custody hearings,119 parole,120 pre-trial diversion programs,121 and state statutory exemptions from insanity defenses.122 This Note focuses on the death penalty because the use of mental health diagnoses to sanction executions123 is appalling. When the State kills people who are “unfit” to live, it replicates a project of eugenics124 and perversely models violence as a proper response to grief and trauma. This Part considers how the bias in the law identified in the previous Part manifests in the context of capital cases.
A. (Mis)Understanding Mental Health Factors
The case of Quincy Allen illustrates the dangers of introducing an ASPD diagnosis into a capital trial, particularly when experts produce ambiguity that can lead to different conclusions about a defendant’s state of mind. Allen had a history of extensive childhood abuse,125 early onset of mental health conditions,126 and increasingly evident impairment and dysfunction as an adult.127 He began to experience psychotic symptoms as a teenager, starting with a voice that told him to “kill a lot of people at . . . school tomorrow.”128 As his hallucinations and delusions continued, he reported “that he wanted to buy a gun and kill his family,” but was nonetheless diagnosed with depression and discharged from inpatient treatment.129 He repeatedly attempted suicide and eventually “reported feeling immortal because of his repeated lack of success in killing himself.”130 Hoping to get “a job as a mafia hit man,” he “decided to embark on his own killing spree” after he “got tired of waiting for his first assignment,”131 resulting in his capital case. The government acknowledged in closing that Allen had “anti-social personality disorder,” and “the judge sentenced Allen to death.”132
Throughout this process, mental health providers, expert witnesses, and legal actors arrived at dramatically different understandings of Allen’s symptoms, need for treatment, and culpability. During trial, experts disagreed about whether he was “malingering,”133 and what that would mean: One psychiatrist testified that malingering “does not mean you also do not have a mental illness,”134 while another “noted that ‘the problem with malingering’ is that ‘[y]ou cannot be entirely sure that someone doesn’t have a severe mental disorder.’”135 A third diagnosed him with ASPD and discontinued his medication to “rule out psychosis.”136 The sentencing judge determined that “Allen was NOT conclusively diagnosed to be mentally ill.”137 On appeal, the Fourth Circuit held that “the record plainly and unequivocally belie[d] th[at] conclusion.”138 The Fourth Circuit disagreed with the sentencing judge that “no mitigating circumstances existed,”139 given Allen’s lengthy history of multiple mental health diagnoses,140 and overturned Allen’s death sentence.141 Vague diagnostic categories with overlapping, indistinct symptom presentations meant the difference between life and death.
Not every death sentence based on a misdiagnosis gets overturned, and states kill people because of ASPD.142 Mental conditions “are well known for their ‘double-edged’ quality,”143 and defense counsel may make a strategic decision to avoid presenting evidence that aggravates more than mitigates.144 “Involving experts before” investigating a client’s history and mitigation themes “can be dangerous.”145 Counsel must decide whether to obtain an expert witness who can provide impartial testimony that humanizes clients, while also risking raising prejudicial diagnoses146 or opening the door to rebuttal evidence.147 In one capital appeal, the Seventh Circuit observed that the defendant’s “lawyers faced a difficult choice”: to present their client “as somehow redeemable, and thus not deserving of death, or . . . as so mentally damaged that the death penalty was inappropriate.”148 In another capital case, the defendant argued that his defense team should not have ceased investigating his mental health following a psychologist’s initial diagnosis of antisocial personality disorder149 — the Tenth Circuit disagreed.150 Judgments about the culpability and moral worth of a person diagnosed with ASPD can prematurely end investigations into mitigating circumstances and foreclose empathy. Mental health conditions simply should not be used this way in the legal system.
B. Predictions of Future Dangerousness
In addition to stripping defendants of mitigating narratives, an ASPD diagnosis tells jurors that the condition is evidence of inhumanity. In death penalty states, future dangerousness functions as an aggravating factor or prosecutors are allowed to make broad arguments about future dangerousness during the penalty phase.151 In Texas, “capital juries must answer the question of future dangerousness in every capital case.”152 In Jurek v. Texas,153 the Supreme Court upheld the Texas capital sentencing scheme: While recognizing that it is “not easy to predict future behavior,”154 the Court held that such predictions are “an essential element in many of the decisions rendered throughout our criminal justice system.”155 Justice Stevens stated in an interview after retiring that Jurek was “a mistake” and the “single decision he regretted.”156 A diagnosis of ASPD is considered relevant to findings of future dangerousness.157
Future dangerousness predictions based on ASPD capitalize on the same prejudicial beliefs about inherent criminality that underlie the deepest flaws in the ASPD diagnosis. Expert testimony about ASPD “medicalize[s] all the characteristics typically associated with future violent behavior.”158 The American Psychiatric Association has argued that “predictions of future behavior characterized as ‘medical opinions[]’ serve only to distort the factfinding process,” and that “the prejudicial impact of such assertedly ‘medical’ testimony far outweighs its probative value.”159 Expert testimony is generally unreliable on the subject of future dangerousness.160 And juries have not done a good job of predicting future violence based on the evidence, either. In a Texas study of 111 people sentenced with a special issue predicting future violence whose sentences were later reduced, only 4.5% “engaged in serious assaultive misconduct . . . in prison post-relief.”161 Evoking “erroneous impression[s]” of what an ASPD diagnosis means only contributes to the unreliability of the future dangerousness prediction process.162
IV. Proposals for the Future
This Note is itself an intervention aimed at increasing awareness of the prejudice and imprecision deeply embedded in the ASPD diagnosis. One simple conclusion from this project: An ASPD diagnosis is not a sound basis for legal decisionmaking, much less the decision to execute someone. Beyond the scope of this Note is an argument to end the death penalty and, relatedly, conversations about how society responds, or fails to respond, to child abuse and neglect, violence, and trauma,163 and how to reckon with systemic racism. This Note urges readers to think deeply on these issues. The proposals presented here aim to address the narrower problems discussed in Parts I through III: biased narratives, imprecise and prejudicial language, and the misuse of mental health tools to contribute to human suffering and death. These proposals are not mutually exclusive.
A. Standardizing Language
Improving consistency and accuracy in the usage of a term like “antisocial personality disorder” is imperative in monitoring the basis for expert testimony. Mental health conditions could be the focus for an American Law Institute–type treatise expanding on advice for attorneys working with clients who have diagnoses.164 Lawyers and mental health professionals could collaborate to develop standardized definitions for mental health vocabulary in the law and to indicate areas with a lack of consensus or a need for further research. Pursuant to the development of standardized terms, requirements for expert witnesses could ensure consistent, uniform usage. Mental health professionals have to adapt their forensic practice to meet “the exact legal insanity standard utilized in the jurisdiction at the time of the crime”165 and to keep up with legal developments;166 they can surely also learn to use terms with standardized legal definitions in the legal setting. These methods might facilitate greater communication between legal and mental health professionals and increase both professions’ awareness of practices in other fields. However, this intervention does not address the deeper problems with the use of ASPD in the law.
B. Legislative and Grassroots Advocacy
Advocates can work toward systemic change outside the narrow confines of the legal system. Borderline Personality Disorder (BPD) may provide a useful model for advocacy efforts to humanize stigmatizing diagnoses. Like ASPD, BPD has “acquired a pejorative meaning, describing a class of . . . clients whose symptoms were thought to be untreatable[] and who are difficult to engage with.”167 Scholars and activists have advocated for a reconceptualization of BPD informed by perspectives of persons with the diagnosis and for “understanding of the social context of survivors of chronic childhood trauma.”168 Separately, the California legislature recently removed169 borderline personality disorder from the list of exclusionary conditions preventing criminal defendants from participating in pretrial diversion programs for mental health treatment.170 The bill’s author, Assemblymember Gregg Hart, commented that “harmful stigma about the disorder . . . limits access to care for people at high risk of suicide”171 and committee staff noted the “Disparate Treatment of Personality Disorders in the Criminal Justice System.”172 These approaches can counter narratives about the inhumanity or immutability of an ASPD diagnosis.
C. Reconceptualizing Diagnoses
Finally, legal actors can start working now to reduce the risks and consequences attendant with the use of a deeply misunderstood and flawed clinical term. Two pathways are self-education and communication about these efforts with others. Attorneys who are unfamiliar with the ASPD diagnosis may encounter this Note in an effort to better understand a client and walk away with a sense that an “ASPD” label alone presents an incomplete picture. There are ways to explain nonconformity with social norms and laws beyond designating someone as “evil” or “incurable.” For example, there is a rich literature studying a developmental condition (“psychopathy” — another pejorative label) associated with differences in brain structure and function,173 which may serve to mitigate perceptions of culpability even in the context of violence.174 And other clinical concepts may reduce stigma. Dr. Judith Herman studied “a complex form of post-traumatic disorder in survivors of prolonged, repeated trauma.”175 Complex PTSD (CPTSD) is now recognized in the International Classification of Diseases; essential features include exposure to a “threatening or horrific” event or series of events, such as “repeated childhood sexual or physical abuse,” followed by the development of trauma symptoms of re-experiencing, avoidance, and heightened perceptions of threat.176 “CPTSD may be particularly germane to understanding traumagenic dysfunctions in forensic contexts,” as research has repeatedly shown that youth in the criminal legal system report multiple traumatic experiences, many of which “are characterized by interpersonal victimization.”177
* * *
This Note cannot change the DSM, but it can sound an alarm. The ASPD diagnosis lacks clinical utility; it operates as a barrier to treatment and engenders prejudice.178 Reform is necessary — perhaps discarding this label entirely. Mental health professionals must also realize that a disclaimer in the DSM does not go far enough to protect against the way the legal system interprets and applies clinical knowledge. Clinical and legal professionals must learn from the past and work against perpetuating biases and harmful self-fulfilling prophecies.