TRAUMA AND PTSD
ASSESSMENTS
PRESENTATIONS
PTSD and Application in Criminal Court from an Expert’s Perspective – Dr. Ryan Hall
The purpose of this lecture is to discuss concepts of PTSD and how it may be applied in a criminal/legal setting. The attendees will be educated about how the condition is diagnosed, factors that are often applicable to criminal court situations, areas of agreement and disagreement between experts, how to approach a case in order to be able to provide supporting documentations for experts’ testimony.
Beyond Addictions and Personality Disorders – Dr. John Briere
Survivors of trauma and early attachment disturbance are at elevated risk of a variety compulsive and self-endangering behaviors, ranging from suicidality and self-injury to substance abuse, indiscriminant sexual activities, and binge eating. Many of these difficulties are seen as symptoms of a personality disorder, behavioral addiction, or impulse control disorder. However, emerging research indicates that they are more accurately understood as coping/homeostatic responses to triggered childhood memories and inadequate emotional regulation capacities. Calling on his upcoming book Treating Risky and Compulsive Behavior in Trauma Survivors (Guilford), John Briere presents an integrated approach to self-endangering behavior. Based on new research, this treatment system directly targets memory/dysregulation dynamic, with interventions such as emotional regulation training; mindfulness, metacognitive awareness, and emotion surfing procedures; in vivo treatment of implicit memory activations; and harm reduction. A new treatment component, trigger management, increases client autonomy, resilience, and problem solving.
Trauma and Toxic Stress – Dr. Elizabeth Beck
Dr. Elizabeth Beck discusses how trauma and toxic stress affects an individual’s psychosocial development. Topics include exposure to violence, the impact of context, polyvictimization, how trauma becomes toxic stress, adverse childhood experiences (ACEs) and the use of juvenile victimization questionnaires, the biology of toxic stress, the effects of toxic stress, and how toxic stress can be used in mitigation.
Post-Traumatic Stress Disorder – Nancy Rosado
In this training, Nancy Rosado discusses post-traumatic stress disorder (PTSD). Rosado is the co-founder of Proyecto Somos Orlando, a retired NYPD sergeant, and a 9/11 first responder/survivor who was assigned the task of coordinating the long-term access to mental health care of other 9/11 first responders. Rosado received her Master’s in Social work from Fordham University.
Veterans with Trauma and PTSD: Considerations for Working with Veterans in the Justice System – Dr. Sophia Dziegielewski
This workshop is designed to cover the practical implications when working with veterans in the legal system who have experienced trauma. Historically, awareness has been limited when working with veterans suffering from conditions such as PTSD, substance use disorders, and depression, as well as, medical conditions, such as TBI and chronic pain. Once the type of trauma is identified, helpful hints are provided to help professionals gain a better understanding of what the veteran is experiencing. Techniques to improve the interview and support mitigation are highlighted.
Childhood Trauma: The Neurobiology of Adaption by Joanne Terrell
This workshop begins with a discussion of the effects of personal and environmental violence on children, the effects of trauma on brain development, and the three ways trauma causes emotional and behavioral problems in children.
Telling Our Clients Stories Through Trauma – Dr. Denny LaBoeuf
In order to litigate mental health, you must understand trauma. Dr. Denny LeBoeuf wants us to understand that trauma is dynamic and multi-faceted…and that the defense team needs to understand what the client is and has experienced. Understand childhood abuse and neglect and teach those in power that all traumatic events have psychological consequences.
“Developing and Presenting Trauma Evidence” by Larry Miller and Sara Cohbra, CACJ/CPDA Capital Defense Seminar (2013)
This PowerPoint presentation outlines the best practices for developing and presenting evidence of trauma for the purposes of mitigation. View the full presentation.
LEGAL AND SCIENTIFIC ARTICLES
Interaction of the ADRB2 Gene Polymorphism With Childhood Trauma in Predicting Adult Symptoms of Posttraumatic Stress Disorder
Israel Liberzon, Anthony P. King, Kerry J. Ressler, Lynn M. Almli, Peng Zhang, Sean T. Ma, Gregory H. Cohen, Marijo B. Tamburrino, Joseph R. Calabrese & Sandro Galea, Interaction of the ADRB2 Gene Polymorphism With Childhood Trauma in Predicting Adult Symptoms of Posttraumatic Stress Disorder, JAMA Psychiatry (2014).
Abstract: Importance: Posttraumatic stress disorder (PTSD), while highly prevalent (7.6% over a lifetime), develops only in a subset of trauma-exposed individuals. Genetic risk factors in interaction with trauma exposure have been implicated in PTSD vulnerability.
Objective: To examine the association of 3755 candidate gene single-nucleotide polymorphisms with PTSD development in interaction with a history of childhood trauma.
Design, Setting, and Participants: Genetic association study in an Ohio National Guard longitudinal cohort (n = 810) of predominantly male soldiers of European ancestry, with replication in an independent Grady Trauma Project (Atlanta, Georgia) cohort (n = 2083) of predominantly female African American civilians.
Main Outcomes and Measures: Continuous measures of PTSD severity, with a modified (interview) PTSD checklist in the discovery cohort and the PTSD Symptom Scale in the replication cohort.
Results: Controlling for the level of lifetime adult trauma exposure, we identified the novel association of a single-nucleotide polymorphism within the promoter region of the ADRB2 (Online Mendelian Inheritance in Man 109690) gene with PTSD symptoms in interaction with childhood trauma (rs2400707, P = 1.02 × 10−5, significant after correction for multiple comparisons). The rs2400707 A allele was associated with relative resilience to childhood adversity. An rs2400707 × childhood trauma interaction predicting adult PTSD symptoms was replicated in the independent predominantly female African American cohort.
Conclusions and Relevance: Altered adrenergic and noradrenergic function has been long believed to have a key etiologic role in PTSD development; however, direct evidence of this link has been missing. The rs2400707 polymorphism has been linked to function of the adrenergic system, but, to our knowledge, this is the first study to date linking the ADRB2 gene to PTSD or any psychiatric disorders. These findings have important implications for PTSD etiology, chronic pain, and stress-related comorbidity, as well as for both primary prevention and treatment strategies.
How The Effects Of Trauma Can Be Passed Down From One Generation To The Next
Carolyn Gregoire, How The Effects Of Trauma Can Be Passed Down From One Generation To The Next, Huffington Post, December 8, 2014.
This article outlines research on the passing of the effects of trauma from generation to generation. While early research found that trauma’s negative effects were transmitted, a new study from the University of Zurich found that, in some case, positive effects, such as the ability to better cope with stress, can also be passed down.
‘I Expected It to Happen/I Knew He’d Lost Control’: The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5
Perlin, Michael L., ‘I Expected It to Happen/I Knew He’d Lost Control’: The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5 (November 11, 2014). Utah Law Review, Forthcoming; NYLS Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2523164.
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.
Military Service-Related PTSD and the Criminal Justice System: Treatment as an Alternative to Incarceration
Erinn Gansel, Military Service-Related PTSD and the Criminal Justice System: Treatment as an Alternative to Incarceration, 230S. Calif. Interdisc. L.J. 147 (2013).
Abstract: The article discusses the application of military service-related post-traumatic stress disorder (PTSD) and the criminal justice’s system as an alternative to incarceration. Topics discussed include the history, modern understanding, and treatment of veterans with PTSD, PTSD’s use in the criminal justice system in the insanity defense, the diminished capacity defense, and in mitigating sentencing, along with the shortcomings of these criminal defenses and alternative sentencing.
Neuroscience, PTSD, and Sentencing Mitigation
Betsy J. Grey, Neuroscience, PTSD, and Sentencing Mitigation, 33 Cardozo L. Rev. 53 (2012).
This law review article from Cardozo Law Review discusses PTSD, highlighting legislative and judicial developments and federal sentencing guidelines when dealing with PTSD in criminal cases. It reviews the theoretical justifications of sentencing mitigation and how they relate to PTSD. The article also discusses advances in neuroscience research that shows the biology involved when a person undergoes extreme stress and whether these advances justify changing our approach to PTSD in sentencing. Lastly, the article suggests that these advances may cause lawmakers and judges to come up with definitive polices on the use of PTSD in sentencing mitigation.
Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Posttraumatic Stress Disorder
Thomas L. Hafemeister and Nicole A. Stockey, Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Posttraumatic Stress Disorder, 85 Ind. L.J. 87 (2010).
Abstract: As more psychologically scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Posttraumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.
Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury
Anthony E. Giardino, Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury, 77 Fordham Law Review 2955 (2009).
Abstract: More than 1.5 million Americans have participated in combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation ‘s criminal justice system. This essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumatic brain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, Atkins v. Virginia and Roper v. Simmons offer a framework for establishing a legislatively or judicially created categorical exclusion for these offenders, exempting them from the death penalty as a matter of law. By understanding how combat service and service-related injuries affect the personal culpability of these offenders, the legal system can avoid the consequences of sentencing to death America’s mentally wounded warriors, ensuring that only the worst offenders are subject to the ultimate punishment.
“Incidence of Drug Problems in Young Adults Exposed to Trauma and Posttraumatic Stress Disorder” by Philip L. Reed, James C. Anthony, and Naomi Breslau, Archives of General Psychiatry (2007)
Abstract:
CONTEXT: Most estimated associations of posttraumatic stress disorder (PTSD) with DSM-IV drug dependence and abuse are from cross-sectional studies or from prospective studies of adults that generally do not take into account suspected causal determinants measured in early childhood.
OBJECTIVE: To estimate risk for incident drug disorders associated with prior DSM-IV PTSD.
DESIGN: Multiwave longitudinal study of an epidemiologic sample of young adults first assessed at entry to first grade of primary school in the fall semesters of 1985 and 1986, with 2 young adult follow-up assessments.
SETTING: Mid-Atlantic US urban community.
PARTICIPANTS: Young adults (n = 988; aged 19-24 years) free of clinical features of DSM-IV drug use disorders at the first young adult assessment and therefore at risk for newly incident drug use disorders during the 1-year follow-up period.
MAIN OUTCOME MEASURES: During the 12-month interval between the 2 young adult follow-up assessments, newly incident (1) DSM-IV drug abuse or dependence; (2) DSM-IV drug abuse; (3) DSM-IV drug dependence; and (4) emerging dependence problems (1 or 2 newly incident clinical features of DSM-IV drug dependence), among subjects with no prior clinical features of drug use disorders.
RESULTS: Prior PTSD (but not trauma only) was associated with excess risk for drug abuse or dependence (adjusted relative risk, 4.9; 95% confidence interval, 1.6-15.2) and emerging dependence problems (adjusted relative risk, 4.9; 95% confidence interval, 1.2-20.1) compared with the no-trauma group controlling for childhood factors. Subjects with PTSD also had a greater adjusted relative risk for drug abuse or dependence compared with subjects exposed to trauma only (adjusted relative risk, 2.0; 95% confidence interval, 1.1-3.8) controlling for childhood factors.
CONCLUSIONS: Association of PTSD with subsequent incident drug use disorders remained substantial after statistical adjustment for early life experiences and predispositions reported in previous studies as carrying elevated risk for both disorders. Posttraumatic stress disorder might be a causal determinant of drug use disorders, possibly representing complications such as attempts to self-medicate troubling trauma-associated memories, nightmares, or painful hyperarousal symptoms. Read the full article.
“A Practitioner’s Guide to Defending Capital Clients Who Have Mental Disorders and Impairments” by Anne James and Matthew Cross (2006)
Abstract: This manual focuses on the issues arising solely in the representation of persons with mental disorders and impairments in death penalty cases. It does not address the legal excuses for criminal responsibility, the various affirmative defenses such as not guilty by reason of insanity or diminished capacity, available in both capital and non-capital contexts. Clearly, the assertion of such defenses implicates myriad strategic considerations in death penalty cases—most notably, how to resolve the inherent conflict between offering mental health evidence as an excuse in the first phase of a trial and then, if it is rejected for that purpose, arguing that the same evidence is not an excuse, but a reason to spare an individual’s life. In most jurisdictions, insanity defenses may also expose the client to early discovery of defense work product and a wide-ranging evaluation by a prosecution expert. It is simply beyond the scope of this manual to discuss these complex legal and strategic questions. Instead, the manual focuses on the issues unique to capital cases (especially mitigation evidence). Competency questions are addressed because of the unusual ways in which they implicate every phase of capital litigation. Read the full guide.
CASE LAW
United States v. Oldani, CRIM.A. 3:09-00010, 2009 WL 1770116, at *7 (S.D.W. Va. June 16, 2009)
In this case, the defendant pled guilty to conspiracy to steal property from the Marine Corps. The defendant guideline range was 46-57 months. The judge departed from this range to give the defendant 5 months, with 3 months of probation, based on the defendant’s veteran status and, more specifically, because the Bureau of Prisons (BOP) would not be able to adequately address his need for medical care.
At the appellate level, the court detailed the defendant’s role as a Marine Corps combat engineer responsible for disposing of IEDs. Additionally, the court took note of two “extreme incidences” of combat experienced by the defendant and recognized that the defendant’s combat experience had left him with PTSD.
“The Bureau of Prisons (“BOP”) would undoubtedly be able to provide basic treatment for the conditions of PTSD, TBI and tinnitus. See Mark Simpson Ph.D., Letter to U.S. Attorney’s Office, May 26, 2009, Def.’s Exh. 2 Doc. 36. This treatment, however, would not be equivalent to that which Timothy Oldani could receive from the VA. The BOP is not uniquely situated, as is the VA, to treat the signature injuries from the United States’s current military engagements. Counselors at the BOP would be less likely to have received specific training to treat veterans and deal, for example, with the type of events that brought on a soldier’s PTSD. Finally, group sessions conducted by the BOP would likely be available to the entire prison population (at least those subject to a specific disability) rather than being limited to veterans. For these reasons the Court FINDS that the defendant’s medical condition warrants a prison sentence lower than that recommended by the guidelines so that he may benefit, as much as possible, from the treatment provided by the VA.”
State v. Mizell, 773 So. 2d 618, 620-621 (Fla. Dist. Ct. App. 2000)
War veterans in some jurisdictions can raise self-defense claims when there is a diagnosis of PTSD “supported by findings that the disorder impacted a defendant’s cognitive and emotional state and causes him or her to react to a situation differently than would otherwise be expected” in a reasonable person. In State v. Mizell, the First District Court of Appeal for Florida held that the Defendant’s service-related PTSD was admissible as state of mind evidence, as opposed to diminished capacity evidence. The court also held that the expert testimony of PTSD is relevant to the defendant’s actual belief that the danger was real in the same way that battered women’s syndrome is admissible and relevant. Read the full opinion.
United States v. Perry, 1995 WL 137294 (D.Neb., 1994) (unpublished)
The court granted a five-level downward departure under §5K2.13 (Diminished Capacity). The court found that the defendant’s criminal activities were related to a substance abuse problem that he had developed after serving in the Persian Gulf War and developing PTSD.
United States v. Risse, 83 F.3d 212 (8th Cir. 1996)
In this decision, the U.S. Circuit Court of Appeals upheld a downward departure from a range of 57-71 months to 18 months under 5K2.13 (Diminished Capacity), because the defendant’s suffered from PTSD after serving in the Vietnam War. Read the full opinion.
Johnson v. Singletary, 612 So. 2d 575, 581 (Fla. 1993)
In this case, the defendant was sentenced to death, but Justice Gerald Kogan’s concurring opinion acknowledges several facts that the trial judge neglected to consider during the sentencing phase. Justice Kogan’s opinion covers the level of detail that should be reached when investigating military service as a mitigating factor. “I am gravely disturbed that [Larry Joe] Johnson was not even permitted the tiniest mitigating value for his physical and mental disabilities, nor for the one thing that caused them: his years of good and productive service in the military.” Justice Kogan highlights that the trial court seemed to wholly ignore the fact that the defendant was “decorated during two tours of duty totaling some fifteen month in Vietnam.” Johnson v. Singletary, 612 So. 2d 575, 578 (Fla. 1993). Moreover, Justice Kogan points out “[t]here was psychological testimony at trial suggesting the reasons why the Defendant lost control of his own mind. An expert in post-traumatic stress disorder suffered by Vietnam veterans indicated that “the 1974 injury not only may have left some brain damage, but it also reawakened the nightmarish experiences that Johnson had endured in Vietnam.” Johnson v. Singletary, 612 So. 2d 575, 578–79 (Fla. 1993). Additionally, Justice Kogan comments on the psychological effect watching friends die in combat had on the defendant. Read the full opinion.