Read Part 1 of 2 here.
With the affirmative insanity defense working only two percent of the time, it’s safe to say that we reject it in this country. We dislike excuses and justifications, especially for crime; we prefer retribution. If we turn our diagnostic eye toward an offender’s own history of trauma, we assign victim status to the perp and this upends the culture of blame and shifts it towards therapeutic justice and away from the pound of flesh we want to measure on our all-knowing scales.
Who can we impugn if the perpetrator is a victim? If we start feeling sympathy or even empathy for defendants in criminal cases, we start admitting that we’re like those defendants because we’re all victims in some way. The PTSD-qualifying events in the Diagnostic and Statistical Manual, every shrink’s playbook, are restricted to experiences that hover around death. The truth is that trauma lurks everywhere, even those benign places we frequent every day. Divorce. Humiliation. Rejection. Glass ceilings. Childhood illness. Getting arrested. Racial profiling. Failure in anything. Any experience of utter powerlessness is traumatic and even the most powerful people have experienced powerlessness at some point in their lives. Those prosecutors with especially severe avenging-angel complexes probably developed their stances from experiencing their own trauma. I don’t care what court you appear before; no judge grants immunity from pain.
Many people balk at the idea that everyone’s traumatized in some way but I think it’s true. Trauma was once explained to me using the analogy of a stack of china plates. If you drop the stack, then you would expect the bottom-most plate (Plate #1) to shatter in the worst way and the degrees of damage to the plates to decrease as you move away from the plate of first impact (i.e. if the bottom plate is No. 1, one would expect that No. 3 would bear more cracks than No. 7 and No. 7 more than No. 10). Bu trauma doesn’t work that way. The bottom plate usually sustains the most damage but often Plate No. 2 remains intact while Plate No. 6 shatters, or Plate Nos. 2 and 3 are unbroken while Plate No. 8 breaks; the plates don’t always respond they way we think they would. They’re unpredictable, kind of like people who break the law.
Trauma is like that plate-breaking force. It has different effects on different people depending on their circumstances at the time of impact so trauma’s tear through society will be neither neat nor expected. Who’s to say that, because your divorce didn’t shatter you,then no one else’s divorce should have shattered them? Or a that a car accident can’t have the same effect as watching your mother get beaten to death by your father? There many gradations in trauma make which make seeing it as universal counterintuitive. But let’s face it – each of us does battle every day. Everyone’s a combat veteran of daily life.
Because it’s so prevalent is probably why PTSD remains really only a sort-of diagnosis in criminal courtrooms; it clearly has a second class status. At most, it’s an adjunct to other “real” mental illness and rarely the operating diagnosis in determining punishment of an offender. When PTSD alone anchors an insanity defense, prosecutors frequently dismantle it because trauma is from the un-evidenced past – it only reaches the court record through someone’s self-report, and that someone is considered an inveterate liar by the system. It’s possible people are malingering to avoid responsibility so prosecutors’ suspicions aren’t baseless. But forensic psychiatrists know about them and shy away from the diagnosis of PTSD for an insanity defense almost in an attempt to help the defendant.
Recently, researchers discovered a way to test objectively for PTSD; the gene p11 has been found to be significantly more expressed in the mitochondrial RNA of people who suffered trauma. Patients – and doctors and prosecutors – can know more definitively what treatment avenues to pursue and which to ditch. Technically, now they can rely on something as conclusive as a serum blood test instead of someone’s word.
When evidence of a PTSD diagnosis is confirmed by prosecutors, studies have shown that the courts incarcerate those defendants less often, almost always sentencing them to probation, not prison. You would think that lawyers everywhere would be clamoring for these tests for their clients. I know better. I’m sure they’re smugly unaware of how this new discovery could help the people they represent.
Like I said, it’s safe to assume every woman in here has bipolar in their charts instead of PTSD. The ladies that had proper PTSD diagnoses never came inside. All that epidemiology everyone has on us in corrections? It’s totally incorrect. It’s bullshit.
THREE IDEAS IN CRIMINAL JUSTICE FROM JULY 10 – 16, 2017
Senators Cory Booker (D-NJ) and Elizabeth Warren (D-MA) introduced a new bill, the Dignity for Incarcerated Women Act, which will, among other things, assure federal prisoners access to quality tampons and pads free of charge, keep pregnant women out of solitary confinement, and give them free phone calls to speak to their children. If passed, it would be the first legislation that specifically addresses how prisoners are treated and their humanity. But it’s been proposed by Democrats in a Republican Congress with a White House that wants to get tough on crime. Not only will it not pass, it won’t get a vote. Remember it’s the thought that counts.
The U.S. Sentencing Commission released data that show that there are more white people getting sentenced to mandatory minimum terms than people of color. You will notice that this hasn’t made much of a splash in the news.
A columnist in Minnesota wrote a compelling piece on looks in the courtroom and a recent study about the effect of appearance in sentencing. The study found that, when defendants with scars on their faces were sentenced, they received less time. Researchers suspect it’s because the facial scars are objective evidence of trauma that judges can rely on and feel some sympathy for the defendant before them. Read the post above again.