North Carolina Criminal Law NC Criminal Law

The American Psychiatric Association is about to release the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly abbreviated DSM-V and pronounced “DSM five.” This is important to criminal lawyers because mental health issues are litigated in so many criminal cases, and the DSM is the generally accepted authority on mental health diagnoses. By all accounts, the new DSM will be a significant departure from prior editions. There are several implications of interest to criminal lawyers:

• The new DSM is controversial. While previous editions of the DSM have been widely accepted, the new version has received considerable criticism. Dr. Allen Frances, a Duke psychiatry professor who chaired the committee that produced the previous edition of the DSM, wrote in Psychology Today that the approval of the DSM-V was the saddest moment in his professional career. He views the DSM-V as “deeply flawed . . . unsafe and scientifically unsound.” In his view, the new DSM paves the way for overdiagnosis and overmedication by creating new disorders and expanding existing ones without justification. Furthermore, the National Institutes of Mental Health, which administers federal grants for research into mental illness, has announced that it will be “re-orienting its research away from DSM categories,” because of the manual’s “lack of validity” and the fact that DSM diagnoses are not “based on any objective laboratory measure,” but instead reflect the collective judgment of a group of practitioners. Scientific American reports on NIMH’s stance here. The President of the APA argues for the excellence of the new DSM here. NPR has a terrific 8-minute report on the new DSM here.
• The controversy may spill over into criminal cases. Whether a defendant suffers from a particular mental disorder, and if so, how that relates to his or her sanity, capacity, or appropriate sentencing, are familiar issues in criminal cases. But they have generally been litigated within the framework established by the DSM. The disagreement about the validity of the new DSM may result in an increasing number of disputes about whether a particular mental disorder listed in the book even exists, or whether the diagnostic criteria in the DSM properly define the disorder. These would largely be new frontiers. (Of course, it is also possible that the controversy will blow over and the book will continue in its role as “the Bible” of the mental health community.)
• More mental illnesses may mean more litigation about mental illness. Because it expands the number and scope of diagnoses, more people, including more criminal defendants, will be classified as mentally ill. This will lead to more disputes about sanity, capacity, and mitigation, including whether a defendant is eligible for the mitigating circumstance set forth in G.S. 15A-1340.16(e) (“suffering from a mental or physical condition [that] . . . significantly reduced the defendant’s culpability”). In other words, mental health concerns likely will play an ever-larger role in criminal litigation.
• The new definition of mental retardation may impact capital cases. The DSM-V changes the definition of intellectual disability, the disorder formerly called mental retardation. Reuters summarizes: “Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms . . . . Based on that IQ benchmark, the . . . Supreme Court ruled in Atkins v. Virginia . . . that it is illegal to execute a mentally handicapped person. But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual’s behavior to determine if he or she meets the developmental standards.” Litigation over mental retardation in North Carolina capital cases has focused heavily on IQ scores. Because G.S. 15A-2005(a)(1) defines mental retardation for purposes of the state’s statutory ban on executing the mentally retarded as an IQ of 70 or below plus limitations in “adaptive functioning,” that strain of litigation will continue. But the more flexible definition in the DSM-V may make it easier for defense attorneys to argue that a defendant with an IQ above 70 is still mentally retarded for purposes of the Supreme Court’s constitutional prohibition on executing the intellectually disabled. And that argument may find some support in the current definition of intellectual disability adopted by the American Academy of Intellectual and Developmental Disability. As explained here, the Academy believes that “[g]enerally, an IQ test score of around 70 or as high as 75 indicates a limitation in intellectual functioning.”

I’m sure that others are more versed on the intersection of criminal law and mental health than I am, may have followed the evolution of the new DSM more closely than I have, and may have additional or different thoughts about the issues presented by the new edition. If so, please post a comment about the significance of the new manual.