The DSM-5 and Criminal Defense: When Does a Diagnosis Make a Difference?
In June 2013, the American Psychiatric Association published the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). The DSM-5 was intended to be an updated guidebook for the clinical diagnosis of mental disorders. It received mixed reviews from the mental health community. The reception from the forensic mental health community is likewise varied. The evolution of conceptualizing mental illness, its origins and treatment efficacy, may weaken the authority of the DSM and further confuse its application in forensic situations.2 This Article explores the possible effects of the DSM-5 in criminal cases.
2015 Utah L. Rev. 847| (Download PDF)
"I Expected It to Happen/I Knew He'd Lost Control": The Impact of PTSD on Criminal Sentencing After the Promulgation of DSM-5
Michael L. Perlin
The expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM-5 with the same deference with which they have treated earlier versions of that Manual, it will force them to seriously confront—in a wide variety of cases—the impact of PTSD on sentencing decisions. And this, I believe, might lead to more robust debates over the impact of mental disability generally on sentencing outcomes.
2015 Utah L. Rev. 881| (Download PDF)
Diagnosis Dangerous: Why State Licensing Boards Should Step in to Prevent Mental Health Practitioners from Speculating Beyond the Scope of Professional Standards
Jennifer S. Bard
This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death penalty, it most frequently occurs in Texas because of a statute that makes it mandatory for juries to determine the future dangerousness of the defendant they have just found guilty. Both the American Psychiatric Association and the American Psychological Association have protested the use of mental health professionals in this setting because there are no scientifically valid methods to make these predictions for people who face long periods of incarceration in maximum-security prisons. Existing models of prediction consider the behavior of individuals in the free world. Moreover, the Supreme Court has upheld these predictions of dangerousness in capital sentencing hearings on the grounds that neither of the protesting professional organizations actually license mental health professionals. Therefore, this Article suggests that these state licensing boards be held responsible for assuring mental health professionals do not testify beyond the scope of medical support or evidence. In so doing, it analyzes cases in which health care professionals, in general, have been held responsible by state licensing boards for testimony that is beyond what is acceptable practice in that profession.
2015 Utah L. Rev. 929| (Download PDF)