This article addresses the mental health issue of Reactive Attachment Disorder a defense counsel might encounter when representing the person charged with a serious crime, particularly a capital crime. Reactive Attachment Disorder is a major personality disorder and a condition that impacts many of those in the criminal justice system. Suggestions will include how to challenge a diagnosis that is damaging to your client, how to develop mental health evidence and present that evidence effectively.
Prosecutors like to categorize symptoms as personality disorders because such disorders are more likely to put the client in the worst possible light and scare the jury. While some personality disorders will “age out”1 such that the disorder will become less of an influence on behavior, there is a belief that a personality disorder cannot be treated. As noted in the DSM, counsel may be able to avoid the stigma of an Axis II personality disorder if the pattern of behavior is better accounted for as a manifestation or consequence of another mental disorder or the symptoms are due to the direct physiological effects of a substance (e.g., drug abuse or medication) or a general medical condition such as head trauma.2 In other words, counsel will need to learn as much as possible about the client’s bio-psycho-social history so that the explanation for the behavior is something other than a personality disorder.
The Major Personality Disorders
Major Personality Disorders are set out in the DSM.3 These are characterized as “an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible; has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” This definition seems to suggest that anything the client has been doing for a long time that the mental health professional finds to be irritating is a personality disorder.
The DSM lists the ten disorders as: (1) Paranoid Personality Disorder; (2) Schizoid Personality Disorder; (3) Schizotypal Personality Disorder; (4) Antisocial Personality Disorder; (5) Borderline Personality Disorder; (6) Histrionic Personality Disorder; (7) Narcissistic Personality Disorder; (8) Avoidant Personality Disorder; (9) Dependent Personality Disorder; (10) Obsessive-Compulsive Personality Disorder, and a “catch all” “Personality Disorder Not Otherwise Specified” (NOS). This essentially means that the client has been irritating for a long time, but science does not know what to call it.
These ten specific disorders are grouped into three clusters based on “descriptive similarities.” These clusters include Cluster A, which includes the Paranoid, Schizoid, and Schizotypal Personality Disorders. Cluster B includes the Antisocial, Borderline, Histrionic, and Narcissistic Personality Disorders. Cluster C includes the Avoidant, Dependant, and Obsessive-Compulsive Personality Disorders. The writer believes that the Cluster A and B disorders are those that the defense will most often encounter in the criminal justice system. Those disorders falling into the Cluster B category are likely the most challenging for defense counsel. Accordingly, this article will focus on the disorders within that cluster and will discuss methods to challenge a prejudicial diagnosis that has no basis in fact, or to humanize a diagnosis that is accurate.
As the behavior that underlies the disorder is required to be “enduring,” the diagnosis of Personality Disorders requires an evaluation of the client’s long-term patterns of functioning back to childhood. While the DSM suggests says it is possible to make the diagnosis after one interview, “it is often necessary to conduct more than one interview and to space these over time.”4 The importance of a thorough psycho-social history in making an accurate diagnosis of personality and mental disorders is discussed later in this article.
Reactive Attachment Disorder
The major personality disorders will certainly be seen in many clients charged with serious crimes. Counsel must do everything possible to challenge the unwarranted diagnosis attributed to the client. However, there will be situations where no matter how hard the defense challenges the diagnosis of APD, it may be an accurate one. How can we humanize the client that the state will describe to the jury as a remorseless criminal without a conscience?
The prosecution will often tell the jury that the client “had a choice,” and that his choice was to commit a violent crime. One way to humanize the client in this situation is to acknowledge that certain choices were in fact made by the client. However, those conditions and life experiences that shaped the client and made him who he was at the time of the crime were more than likely made by genetics, parents, caregivers, siblings, and others over whom the client had no control. The explanation for the client’s behavior may be found in the condition known as Reactive Attachment Disorder, or simply Attachment Disorder.
This disorder is briefly described in the DSM-IV-TR.5 The Diagnostic Features state that “[T]he essential feature of Reactive Attachment Disorder is markedly disturbed and developmentally inappropriate social relatedness in most contexts that begins before age 5 years and is associated with grossly pathological care.”6 Unfortunately, the Diagnostic Features as outlined by the DSM are not adequate to alert the criminal defense practitioner to the significance of this disorder. Reactive Attachment Disorder is another example of the expression that is often heard “Childhood matters.” How our clients are treated before, during, and after birth has a significant impact on the development of their brains and personalities. “It is the experiences of childhood that express the potential of the brain.” Bruce D. Perry, M.D., www.childtrauma.org.
During the first 36 months of life, humans learn to trust others and feel a sense of security in their world. This feeling will customarily arise from the bonding that the infant has with the caregiver (usually the mother) and the love that the caregiver feels and exhibits for the child. This interaction tells the infant that he or she is safe and the caregivers can be trusted to meet the child’s needs when they arise. When the infant expresses a need (usually by crying), the caregiver satisfies the need (feeding, holding, diaper-changing), and a sense of trust and reliance (healthy attachment) is created by that interaction. As the needs of the child are routinely met, the health attachment becomes a secure attachment and the infant’s development can take on a normal course. Kate Allen, Ph.D., “Attachment Disorder,” Capital Mitigation Seminar, Center for American and International Law, (August 26, 2006).
However, when the needs are not met, often because of parental abuse or neglect, the necessary attachment to the caregiver is not formed and the message to the child is that he (or she) is on his own, he cannot rely on anyone else to meet his needs, he can trust only himself, and he must be in control in order to meet the needs. The sense of trust is replaced by anger and rage, and his very survival depends on his ability to control and meet his needs.
Some of the causes of attachment disorder include:
- Separation from the primary caregiver;
- Changes in the primary caregiver;
- Frequent moves and/or placements;
- Traumatic Experiences;
- Maternal depression;
- Maternal addiction to drugs or alcohol;
- Undiagnosed, painful illness such as colic, ear infections, etc.
- Lack of attunement between mother and child;
- Young or inexperienced mother with poor parenting skills
Counsel has likely represented clients who could not trust the trial team, exhibited an unreasonable level of anger, was hyper-vigilant to minor or misperceived threats, had difficulty telling the truth even when the truth would serve them better, appeared to have no conscience about their criminal behavior and no empathy for those who were harmed. Reactive Attachment Disorder may provide an explanation, and while it is not termed a “Major Personality Disorder,” it can be the cause of an antisocial personality, the borderline personality, or the narcissistic personality. These are among the most difficult of clients to represent. In order to fully understand who the client is, counsel must seek a thorough bio-psycho-social history developed by a competent mitigation specialist.
Counsel might ask, “Why are those charged in the criminal justice system so often victims of attachment disorder?” A bulletin from the Office of Juvenile Justice and Delinquency Prevention’s Study Group on Serious and Violent Juvenile Offenders devoted two years to analyzing the research on risk and protective factors for serious and violent juvenile offending, including predictor of juvenile violence derived from the findings of long-term studies. Hawkins, J.D., et al. (April 2000), “Predictors of Youth Violence,” Juvenile Justice Bulletin, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. The predictors of juvenile violence were arranged in five domains: individual, family, school, peer-related, and community and neighborhood factors. It has been shown that attachment disorder is most commonly caused by abuse, neglect, or disinterest by the caregiver, usually the mother.
The family sector risk factors are:
- Parental criminality;
- Child maltreatment;
- Poor family management practices;
- Low levels of parental involvement;
- Poor family bonding and family conflict;
- Parental attitudes favorable to substance use and violence;
- Parent-Child separation.
If one were to compare the common causes of Reactive Attachment Disorder with those Family Factors identified in the OJJDP Bulletin, the similarities are striking.
Performing the thorough bio-psycho-social history that will allow the defense to identify conditions that might lead to a conclusion that the client suffers from Reactive Attachment Disorder is critical. However, realizing that the disorder can form the basis of those personality disorders that can be so damaging, it is important for counsel to again focus on the concept that the diagnosis is not what is important. What is important is an explanation for the behavior and the behavior can be explained through the genetics, pre-natal, peri-natal, and life experiences of the client.
1. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revised (Washington, D.C), at 704.
2. DSM-IV-TR at 688–689.
3. Id. at 685.
4. Id. at 686. DSM-IV-TR at 127–130.
5. DSM-IV 313.89.
A 1971 UT Law School graduate, John initially practiced in El Paso, where he was President of the El Paso Young Lawyers Association and chosen Outstanding Young Lawyer. He served as a member of the Board of Directors of the Texas Young Lawyers and past Director of the Texas Criminal Defense Lawyers Association. From 1992 until February of 2000, John practiced law in Kentucky, during which time he was contract manager for Kentucky’s Department of Public Advocacy (DPA). He also served as directing attorney of the Warren County public defender office and was one of five regional managers for DPA. The recipient of countless awards for his work, John has been Director of the Texas Defender Service (TDS) Capital Trial Project since May 2000. There he consults with, and provides training to, lawyers across the country on death penalty issues.