Document Type

Article

Publication Date

2015

Abstract

The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.

My thesis is that 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 may lead to more robust debates over the impact of mental disability generally on sentencing outcomes.

My optimism here is tempered by (1) the reality that courts deal teleologically with mental disability evidence in general (subordinating it when it is introduced by the defendant, and privileging it when introduced by the state), and (2) the power of sanism - an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry - in this entire inquiry.

On the other hand, we must also consider the impact of therapeutic jurisprudence on the question in hand. Therapeutic jurisprudence (TJ) presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti-therapeutic consequences. Although some scholars have considered TJ in the context of the Federal Sentencing Guidelines, it remains mostly an “under the radar” topic. I believe it is essential we give it a new and urgent focus.

I am convinced that, if courts take seriously the new treatment of PTSD in DSM 5, and couple that with an understanding of sanism and an application of TJ, that will lead to an important sea change in the ways that defendants with that condition - especially those who are Iraqi and Afghanistani war veterans - are sentenced. This paper proceeds in this manner. First, I briefly review the law of sentencing as it relates to persons with disabilities, focusing on developments that followed the Supreme Court’s decision in United States v. Booker (making the Federal Sentencing Guidelines advisory rather than mandatory) , the role of sanism, and the significance of therapeutic jurisprudence. Then, I look at how courts have, until this moment, treated PTSD in sentencing decisions. I will then look at DSM 5 to highlight its definitional changes. I then try to “connect the dots” to show how DSM 5 demands changes in sentencing practices, and explain how this change can be consonant with the principles of TJ. I will end with some modest conclusions.

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