What Mitigation is NOT: Defending Against A Lethal Diagnosis

1. What Mitigation is NOT: Defending Against A Lethal Diagnosis Danalynn Recer Gulf Region Advocacy Center www.gracelaw.org

2. Not Just Any Diagnosis • No Diagnosis is Mitigating outside the context of a whole life • Not every diagnosis is mitigating • Diagnoses are just labels

3. Anti-social Personality • Never Mitigating • Not a medical dx for treatment purposes • Punitive labeling

4. ASPD = Dehumanization masquerading as science • It’s justifiable “to kill those who are monsters or inhuman because of their abominable acts or traits, or those who are ‘mere animals’ (coons, pigs, rats, lice, etc.) . . .” because they are excluded “from the universe of morally protected entities.” • Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 35 Santa Clara L. Rev. 547, 559 (1995).

5. Lucrative Quasi-Science!

7. “For the Worst of Us, The Diagnosis May be ‘Evil’” NYT, February 8, 2008 “Hierarchy of evil”

8. “Evil” (ASPD) is convenient and marketable! • “Locating the causes of capital crime exclusively within the offender—whose evil must be distorted, exaggerated, and mythologized—not only makes it easier to kill them but also to distance ourselves from any sense of responsibility for the roots of the problem itself.” • Craig Haney

9. Quantifying Value Judgments for the Courts? “To minimize the arbitrariness of how courts determine the worst of crimes, and to eliminate bias in sentencing, the Depravity Scale research aims to establish societal standards of what makes a crime depraved, and to develop a standardized instrument based on specific characteristics of a crime that must be proven in order to merit more severe sentences. “ https://depravityscale.org/depscale/ 9

10. Hare Psychopathy Checklist Revised (PCL-R) Glibness / Superficial Charm Grandiose Self-Worth Need for Stimulation Pathological Lying Conning / Manipulative Lack of Remorse Shallow Affect Callous / Lack of Empathy Parasitic Lifestyle Poor Behavioral Controls Promiscuous Sexual Behavior Early Behavior Problems No Long-Term Goals Impulsivity Irresponsibility Failure to Accept Responsibility Many Short-Term Marriages Juvenile Delinquency Revocation of Conditional Release Criminal Versatility

11. Taking the PCL-R Into Capital Cases “…convergent data…leads to an inescapableconclusion: Mr. X has significant psychopathic qualities which make him an aggressive and dangerous individual…he is more aggressive than typical violent offenders…” “…even in prison, managing his aggressive tendencies will present an ongoing challenge…” 11

12. Penalty-Phase Testimony “The psychopath, as I say, has the ability to look very normal. However, if you know what you are looking for, it is kind of like seeing a bowl of fruit, and you say to yourself, gosh that bowl of fruit looks wonderful, it looks very good. But when you get close to the bowl of fruit and pick it up you realize that it’s fake fruit. And the psychopath is a lot that way.” U.S. v Barnette (2002) 12

13. The Take-Home Message(s) Clearly, labeling someone with psychopathic traits and calling him a psychopath is highly stigmatizing and has a critical impact on how defendants are viewed. 13

14. Requirements for Diagnosis • Rule Out: Must eliminate other causes of behavior • Must have had conduct disorder prior to age 15

15. Is psychopathy a viable scientific construct? Hare (1998):“…single most important clinical construct in the criminal justice system” OR Lewis (1974): “…diagnostic subgroupings … seldom have sharp & definite limits … Worst of all is psychopathic personality” Blackburn (1988): It “…remains a mythical entity…” & “…should be discarded” Gunn (1998): “An elusive concept with moral overtones” 15

16. Is it just a tautology or post-hoc descriptor? …for most if not all things society considers “bad” or “evil”? Or at least people we really dislike? “Why’d he do that?” “Must be a psychopath.” “What’s a psychopath?” “Someone who’d do that.” Ellard (1998) 16

17. Uncritical Acceptance within the Clinical/Forensic Field? “…unparalleled as a measure for making risk assessments” Salekin, Rogers, & Sewell (1996) “…single most important clinical construct in the criminal justice system” Hare (1998), Hemphill & Hare (2004) “…failure to consider psychopathy when conducting a risk assessment may be unreasonable (from a legal perspective) or unethical (from a professional perspective)” Hart (1998) 17

18. Concerns about the ethics, reliability, and validity of using the PCL-R and assessment of future dangerousness • Peer-Reviewed Journal Articles • Prediction of Future Dangerousness in Capital Murder Trials: Is it Time to Disinvent the Wheel? John Edens, et al., 2005. Law and Human Behavior, 29:1, 55-86.

19. Edens, et a., 2005 “Clinical assertions that a defendant is likely to commit future violent acts appears to be highly inaccurate and ethically questionable, at best… …available research offers little support…that prediction will be appreciably improved by relying on more structured risk assessment [measures].”

20. Peer-Reviewed Journal Article Does Interrater (Dis)agreement on Psychopathy Checklist Scores in Sexually Violent Predator Trials Suggest Partisan Allegiance in Forensic Evaluations? Daniel Murrie, et al., 2008. Law and Human Behavior, 32:352-356.

21. Murrie, et al., 2008 “Differences between scores from opposing evaluators were usually in a direction that supported the party who retained their services….Results raise concerns about the potential for a forensic evaluator’s “partisan allegiance” to influence PCL-R scores in adversarial proceedings.”

22. Peer-Reviewed Journal Article Do Some Evaluators Report Consistently Higher or Lower PLC-R Scores than Others: Findings from a Statewide Sample of Sexually Violent Predator Evaluations. Boccaccini, Murrie & Turner. (2008). Psychology, Public Policy and Law, 14(4), pp. 262-283.

23. Boccaccini, et al., 2008 “More than 30% of the variability in PCL-R scores was attributable to differences among evaluators…these findings raise concerns about the field reliability of the PCL-R…” “[A]s the amount of variance attributable to evaluators approaches the amount of variance attributable to the offender, any score or opinion from the evaluator becomes less useful and fails to serve the purpose for which evaluators testify in court: to provide nonbiasing assistance to the trier of fact.”

24. Peer-Reviewed Journal Article On Individual Differences in Person Perception: Raters’ Personality Traits Relate to Their Psychopathy Checklist-Revised Scoring Tendencies. Audrey Miller, et al., 2011. Assessment, online version of publication.

25. Miller, et al., 2011 “[T]his study is the first to demonstrate that raters’ personalities may explain some variability in scores they assign to offenders.”

26. Peer-Reviewed Journal Article Do Core Interpersonal and Affective Traits of PCL-R Psychopathy Interact with Antisocial Behavior and Disinhibition to Predict Violence? Kennealy, et al., 2010. Psychological Assessment, 22(3), 569-580.

27. Kennealy, et al., 2010 The interpersonal/affective scale of the PCL-R did not interact with the Social Deviance scale to predict violence “Use of the PCL-R…invites mistaken assumptions that violence risk reflects emotional detachment, predation, and inalterable dangerousness.” “[T]he results of this study challenge common assumptions about the interactive relationship assumed to exist between the PCL-R factor scores and violence.”

28. Peer-Reviewed Journal Article The Efficacy of Violence Prediction: A Meta-Analytic Comparison of Nine Risk Assessment Tools. Yang, et al., 2010. Psychological Bulletin, 136(5), 740-767.

29. Yang, et al., 2010 (con’t) “After almost five decades of developing risk prediction tools, the evidence increasingly suggests that the ceiling of predictive efficacy may have been reached with the available technology….Although it may be possible to improve on our understanding about predicting what an individual may do in a hypothetical situation, it will be much more difficult to predict the situation that the individual actually encounters in the open community. Even predicting violence within an institutional environment is difficult, where the assessor has much more information about that environment.”

30. Yang, et al., 2010 Sophisticated analysis of the accuracy of nine leading violence risk assessment tools, including the PCL-R All nine had only moderate predictive accuracy, with none leading the pack “The moderate level of predictive accuracy of these tools suggests that they should not be used solely for some criminal justice decision making that requires a very high level of accuracy…”

31. Hare’s response to critique Robert Hare threatened to sue the authors and publisher of a peer-reviewed journal to prevent publication of an article critiquing the PCL-R

32. Letter from Hare’s attorney “…[We] have no choice but to seek financial damages from your publication and from the authors of the article, as well as a public retraction of the article…” “[The paper] was fraught with misrepresentations…and a completely inaccurate summary of what amounts to [Hare’s] life work…”

33. Long delay before paper was published “Is criminal behavior a central component of psychopathy? Conceptual directions for resolving the debate.” Skeem, J.L. & Cooke, D.J. (2101) Psychological Assessment, 22(2), 433-445.

34. Skeem & Cooke (2010) Skeem, J.L., & Cooke, D.J. (2010). Is criminal behavior a central component of psychopathy? Conceptual directions for resolving the debate. Psychological Assessment, 22, 433-445. “The development of the PCL-R fueled intense clinical interest in the construct of psychopathy. Unfortunately, a side effect of this interest has been conceptual confusion, and … the conflating of measures with constructs. Indeed, the field is in danger of equating the PCL-R with the theoretical construct of psychopathy. …a convenient fiction about the PCL-R and its relation to violence must be examined to avoid the view that psychopathy is merely a violent variant of APD…the authors believe the evidence favors viewing criminal behavior as a correlate, not a component, of psychopathy.”

35. Fallout: What is he afraid of? Chilling effects on academic freedom “[T]he threat of litigation constitutes a serious threat to academic freedom and potentially to scientific progress… Norman Poythress & John Petrila, International Journal of Forensic Mental Health

36. Trial Strategy & Credibility Issues “…a zealous attorney may attempt to discredit the scientific underpinnings of the PCL-R by drawing attention to this threat to sue and accompanying demand to withhold publication of a paper that is critical of the PCL-R and which has been judged by peer review to be appropriate for dissemination in the professional literature. • Poythress & Petrila (2010)

37. What You Must Do in Response • Thorough investigation • Of all prior bad acts • Narrative of mental health status over time • Thorough social history investigation • Circumstances of prior diagnoses • Testing and Evaluation for other diseases and disorders

38. ASPD: What Else Could it Be? (a non-inclusive list) PTSD or Traumatic Stress Responses Bipolar Disorder or Major Depression Schizophrenia or Delusional Disorder Mental Retardation Frontal or Temporal Lobe Brain Damage Fetal Alcohol Syndrome or Effect Learning Disabilities and their Effects Pervasive Developmental Disorders Obsessive Compulsive Disorder and/or Tourette’s Syndrome

39. ASPD or Brain Damage? Inconsistent work performance Irritability & aggression Failure to plan ahead Recklessness regarding safety Lack of remorse Trouble in academic/ occupational settings Difficulty managing emotion; impulsivity Planning deficits Unable to anticipate consequences Emotional flatness

40. Neuropsychological Factors “…[T]he fact that children, adolescents, adults and elderly patients with prefrontal deficits are characterized by antisocial, aggressive behavior makes a compelling lifespan case for a prefrontal dysfunction theory of antisocial, aggressive behavior.” “Annotation: The role of prefrontal deficits, low autonomic arousal, and early health factors in the development of antisocial and aggressive behavior in children.” Adrian Raine, 2002. Journal of child Psychology and Psychiatry, 43 (4), 417-434.

41. ASPD or Post-Traumatic Stress Disorder? ASPD Irritability & aggression Impulsivity Failure to follow social norms Recklessness regarding safety Lack of remorse PTSD Affective lability, emotional reactivity Hypervigilance Persistent expectation of betrayal, distrust Traumatic reenactments Psychic numbing

42. ASPD or Bipolar Disorder? ASPD Irritability & aggression Failure to plan ahead, irresponsibility Recklessness regarding safety Superficial charm, glibness Bipolar Disorder Irritable mood states; mixed states Impairment in functioning Driven, goal-directed behavior Grandiosity, flight of ideas

44. “Truancy” – antisocial / conduct disorder language What is really going on? What is the factual predicate?

45. Truancy – antisocial label Factual predicate: misses school days What might be going on? Mood symptom: can’t concentrate Anxiety/PTSD symptom: intrusions Psychotic symptom: can’t function Brain dysfunction symptom: LD/ID Social symptom: hiding bruises, peer rejection

46. “Pathological liar” What is really going on? What is the factual predicate?

47. “Pathological Liar” Factual predicate: Statement contradict evidence What might be going on? Mood symptom: delusions of grandeur Anxiety/PTSD symptom: survival mode, protecting siblings Psychotic symptom: misperceives reality Brain dysfunction symptom: confabulation Social symptom: covering up shame

48. “Cold-blooded killer” What is really going on? What is the factual predicate?

49. “Cold-blooded killer” Factual predicate: Shows no emotion What might be going on? Mood symptom: anhedonia, flat affect Anxiety/PTSD symptom: psychic numbing Psychotic symptom: catonia, psychotropic meds Brain dysfunction symptom: altered emotionality Social symptom: cultural stoicism

50. DSM Text for Avoiding a Diagnosis ofConduct Disorder May be misapplied in settings where patterns of undesirable behavior are sometimes viewed as protective Immigrant youth from war-ravaged countries would not necessarily warrant a diagnosis Social and economic context must be considered