Society is having a moment of reflection about the role of law enforcement and correctional facilities in addressing societal problems. During this moment, psychiatry is being asked by courts to arbitrate who qualifies and ultimately deserves certain judgments.
Dr. Nicolas Badre
In particular, we are asked to assess how dangerous an individual may be using violent risk assessment tools and measures of antisocial disorders. As such, we are tasked with pointing out the negative factors of defendants. Alternatively, psychiatry is also asked to explain, using biopsychosocial determinants, what led an individual to act in a deviant manner. As such, we are tasked with pointing out mitigating factors of defendants. In this article, we attempt to look at limitations in both paradigms to encourage a more prudent forensic approach.
Negative factors
The criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM) are not composed of rigid rules with validity markers to measure their veracity but leave room for clinical judgment, variance across individuals, and future research and treatment needs.
Dr. Benjamin Amendolara
There are some benefits to having room for clinical judgment, but it can also lead to overdiagnosis.1 This problem is particularly reflected in the diagnosis of antisocial personality disorder (ASPD), the criteria of which includes failure to conform to social norms, deceitfulness, impulsivity, irritability, recklessness, irresponsibility, and lack of remorse. Each of these criteria is ripe for subjectivity by an inexperienced or biased reviewer.
Dr. Jackie Ngo
For example, it is common in our practice to see only two discrete events interpreted as a “pattern of behavior.” Such events could include two lapses in judgment to demonstrate a pattern of behavior meeting the criteria for ASPD. Using this logic, however, most Americans would meet those criteria. According to the National Survey of Drug Use and Health, the majority of Americans have tried illicit substances.2 We presume that many have tried illicit substances at least two times in their lives – in theory creating a pattern – and that subsequently they omitted that information on standard employment application forms. In doing so, they could easily be interpreted in court to have demonstrated failure to follow rules, deceitfulness in wrongfully filing an employment application, impulsivity in deciding to use drugs, recklessness in choosing to use drugs, irresponsibility for using drugs, and a lack of remorse by not acknowledging the use on an employment application, thereby meeting criteria for antisocial personality disorder.
The well-respected Hare Psychopathy Checklist contains similar opportunities for subjective interpretation by a biased evaluator. Conning, glibness, lack of guilt, lack of realistic goals, and irresponsibility are easily diverted to pathologize an individual into an exaggerated sense of menace. Journalist Jon Ronson famously challenged those concepts in his book, “The Psychopath Test: A Journey Through the Madness Industry,” a New York Times bestseller. It is common in our practice to see evaluators list dozens of scales allegedly proving someone’s dangerousness, without realizing the recurrent subjectivity involved in all those assessments.
Forensic evaluators arguing for conviction often rely on violence risk assessments to establish defendants’ propensity for future violence and to predict recidivism. There are numerous violence risk assessment tools, including: the Violence Risk Scale,3 the HCR-20 version 3 (HCR-20 v3),4 and Correctional Offender Management Profiling for Alternative Sanctions (COMPAS). Yet, despite their perceived rigor and reliability from being established assessments, their usefulness continues to be challenged.5Julia Dressel and Hany Farid, PhD, showed in 2018 how people with little to no criminal justice expertise and given only the sex, age, and previous criminal history of defendants were no less accurate than COMPAS.6 Those findings are concerning and should give us pause when we are tempted to rely on seemingly objective measures that can lead us astray. Not only can such reliance result in injudicious court decisions, but it can saddle defendants with a documented report of their perceived elevated risk for violence.
In the forensic setting, ASPD is often treated like a lifelong diagnosis. This is in part because of personality disorders being defined since the DSM-III as “enduring patterns ... [that] continue throughout most of adult life.” Even if a defendant who is diagnosed with ASPD no longer behaves antisocially, a historical ASPD diagnosis is difficult to escape. Historical behavior is part of the diagnosis, and there are no guidelines to determine at what point a person can be rid of it or what redeeming qualities or circumstances make a prior diagnosis inappropriate.
Yet, some evidence suggests that ASPD is one of the least reliable psychiatric diagnoses and that the agreement between providers of such a diagnosis was “questionable.”7Robert D. Hare, PhD, himself has been described as believing that “an awful lot of people misuse his checklist.”8 And a recent study found no “evidence for the claim that [Hare Psychopathy Checklist] psychopaths are untreatable ... on the contrary, there was replicated evidence of positive treatment outcomes.”9 Unfortunately, legal structures often help enshrine an erroneous ASPD diagnosis by imposing more punishing sentences to those diagnosed. Instead, we should recognize that ASPD can also be the culmination of biological as well as changing social and environmental circumstances.