How Brain Science Studies Raise Serious Doubts about the Government’s False Narratives Behind Antisocial Personality Disorder (ASPD) on Youth -- and Why Youthfulness Should be Considered in a Diminished Capacity Defense.
March 24th, 2022 | JoJo Deogracias Ejonga
1). The Evolution of Brain Science on Youth and the Court’s Rightful Intervention We often hear the common theme of a troubled, disenfranchised and marginalized youth at school or in the community being diagnosed with Antisocial Personality Disorder or having Antisocial Traits. We also often hear of a youth going to trial, presenting a mental defense such as diminished capacity, and being diagnosed with Antisocial Personality Disorder (ASPD) or Antisocial Traits by a so-called “expert government witness”. The practice of tagging the younger generation with such labels that undermine the presumption of innocence and dehumanize them is despicable. When a lay person hears the word Antisocial Personality Disorder, the first thing they think is: “Oh no, this person don't like people.” In reality, that is not what being diagnosed with ASPD means. Words can be deceiving, especially to a lay person, and not knowing the proper definition of diagnoses creates and leads to a lack of understanding of the danger and trauma caused by being labeled antisocial or having an Antisocial Personality Disorder on your medical record/file. A lay person is actually naive to the fact that when a youth is diagnosed with Antisocial Disorder or Antisocial Traits by the school or the government, what this really means is that the young person is a "CRIMINAL", or has a "CRIMINAL MINDSET". DSM- 5 (2013) identifies people with Antisocial Personality Disorder (ASPD) as habitually and pervasively disregarding or violating the rights and considerations of others without remorse. In other words: "a person who breaks the law". Looking back to 1994, the psychological and psychiatric communities did something that should raise every parent’s and every fair minded person's alarm. They replaced the diagnoses of "Sociopathy" (sociopaths) and "Psychopathy" (psychopaths) with "Antisocial Personality disorder", and the only reason for the radical and dangerous changes was because the primary diagnostic traits were similar. See (DSM-5). Such dangerous labeling should never be acceptable in the our society today and should have never been accepted before, especially where psychological and neurological brain science studies show that, "Part of the brain involved in behavior control continues to develop well into a person's mid to late 20's". It is especially saddening when experts in neurology, psychology, and psychiatry turn a blind eye to this, or even participate in promoting criminalization of non-fully developed youth. The studies that have been conducted on this subject reveal fundamental differences between the adolescent and mature brain (from the late twenties and beyond) in the area of risk and consequence assessment, impulse control, tendency toward antisocial behavior and susceptibility to peer pressure. These studies were widely embraced and elaborated on by the U.S. Supreme Court in a landmark case called Roper v. Simmons, 543 U.S. 551,560, 125 S.Ct. 1183, 161 L. Ed.2d 1(2005). This case invalidated the death penalty under the 8th Amendment to the U.S. Constitution, holding that the "diminished culpability" of juveniles dampened its penological justification and rendered the punishment unconstitutionally disproportionate for youth. The Roper Court ruled that "diminished culpability results from 3 key differences between youth and adults: a lack of maturity and an underdeveloped sense of responsibility that frequently lead to impetuous and ill-considered actions and decisions, an increased susceptibility to negative influences and outside pressures, including a reduced ability to control or escape their environments, and a more transitory, less fixed character that is not as well formed as that of an adult". Five years after the Roper decision, the U.S. Supreme Court used the same studies to strike down the mandatory life without the possibility of parole sentence for offenses committed as a juvenile in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825(2010). Two years after the Graham Decision, the U.S. Supreme Court affirmed its previous decisions on brain science and youth, but also further expanded on it in Miller v. Alabama, 567, U.S. 460, 479, 480, 132 S.Ct. 2455, 183 L.Ed.2d 407(2012) where the court stated that "age is relevant to the 8th Amendment and thus criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed". In each case, the court found it legitimate to invalidate sentences and laws that failed to meet constitutional standards as applied to youth based on the 3 key differences between youth/children and adults, as noted in the Roper decision (2005). The court found the differences made children less blameworthy, and likewise, the immaturity, recklessness, and impetuosity of youth diminished the goal of deterrence. (quoting State of Washington v. Houston-Sconiers,188 Wn.2d 1, 391 P.3d 409(2017). In a very bold move, the Washington State Supreme Court applied Miller, Copper, and Graham to Include youth under the age of 21 in: In re Monscke, No. 96772-5 and made its ruling retroactive. What these cases and studies have done is create a reasonable doubt on whether Antisocial Disorder diagnoses for youth are accurate. Evidence suggests that the same factors used by government forensic psychologists, clinical psychologists and psychiatrists to diagnose youth, most especially youths in communities of color or disenfranchised youth in general, are the same factors that brain science studies and case law show to be attributed to youthfulness itself, rather than clear criminal behavior. To be clear, it is hard to draw a line on what is acceptable in any society, but the evolution of technology and science has changed the world in many ways. New technology allows us to know things, see things, smell things, and even hear things, many of which were impossible to do not too long ago. Science is evolving, but our society and our laws are still left behind to catch up. As we begin to have a better understanding of human behavior, modern day technology has helped us understand our imperfect but bright youths and their behaviors -- it is imperative for us to embrace the science and help our youths, rather than throwing them away into the ocean called the "Criminal Injustice System" (AKA P.I.C.) and into the mouths of hungry sharks called prosecutors. 2). The Similarity Between Diminished Capacity Defense and Brain Science. (a). To maintain a diminished capacity defense, a defendant must prove by expert testimony that a mental disorder, not amounting to insanity, impaired the defendant's ability to form the culpable mental state to commit the crime charged (State of Washington v. Atsbeha, 142 Wn.2d 904, 16 P.3d 626(2001)). Evidence of such a condition is admissible only if it tends to logically and by reasonable inference prove that a defendant was incapable of having the required level of culpability (State v. Ferrick, 81 Wn.2d 942, 944,506 P.2d860(1973)cert. denied 414 U.S. 1094(1973)) Diminished capacity allows a person to undermine a specific element of the offense, which is a culpable mental state. In Washington State for example, the Washington State Supreme Court requires a diminished capacity instruction to be given whenever there is evidence that shows a connection between a person’s mental condition and the inability to possess the required level of culpability to commit the offense charged. See State of Washington v. Griffin, 100 Wn.2d, 417, 670 P.2d 265(1983). The condition itself doesn't have to be primarily mental in nature, but as long as the effect of such a condition affects the mental state of the accused, it thus satisfies the diminished capacity standard. (b). Diminished capacity deals with two things that are both present in the youth brain science studies. First, we must address findings regarding brain science and the youth. The studies show that the part of the brain involved in behavior control continues to develop well into a person's mid-20's, meaning that before this stage, the brain is not fully developed and it is virtually not effectively functioning as it would be once it is fully developed. By default, this conclusion insinuates that the youth brain is defective, equivalent to a condition sufficient enough to satisfy the first prong of diminished capacity -- mental defect/condition. Next, we can address the other part of the studies, which includes the findings stated in Roper v. Simmons, 543 U.S. 551(2005). Diminished culpability dampened penological justifications for particular offenses. As a result of a lack of maturity and an underdeveloped sense of responsibility that frequently leads to impetuous and ill-considered actions and decisions based on an increased susceptibility to negative influences and outside pressures, as well as a reduced ability to control or escape their environments and a more transitory and less fixed character that is not as well-formed as that of an adult, youth are in general less culpable for particular crimes. These are sufficient reasons to satisfy the second prong of diminished capacity requirements, namely the inability to possess the required level of culpability to commit the offense charged (State of Washington v. Griffin(1983). It is very clear that there is a nexus between diminished capacity and youth brain development, but it makes no sense why youth and young adults are not able to utilize youthfulness and brain science as part of a Diminished Capacity Defense. 3). Is it Really Worth Throwing Away Our Youth and Should Society Really Take it? Is it really worth throwing away the next generation by locking them up? It is a dangerous thing when the government uses the power of its agents and institutions to label a youth as Antisocial for the sole purpose of their criminalization, and as a result, paving the way for the modern day slavery machine, AKA "THE PRISON INDUSTRIAL COMPLEX". The government uses behavior such as the simple exchange of blows in the school yard, smoking weed, skipping classes, or acts that could be easily considered as simple and small misbehaviors as evidence of Antisocial Disorder. But does that make them criminals or antisocial? No, it doesn't. In the eyes of the government, although these are children have no sensibility of crime or law, they are still viewed as criminals. It is very clear within the stated hypothetical scenarios that behaviors that could simply be attributed to youthfulness have been mis-characterized or intentionally misapplied to criminalize youth through the use of the label of Antisocial Personality Disorder/Antisocial Traits. This society as a whole must decide NOW on how to effectively help our next generation of youths and look for alternative ways of doing so, because lengthy sentences are getting our society nowhere, and labeling our youth as criminals is not doing us any good. Rather, it is subjecting them to trauma and abuse through the Criminal Justice System that administers no justice, but exacts vengeance and retribution. The conversation about youth and crime is very hard and controversial, but so what! It is a very needed conversation that our society must confront and address because our youths do not deserve to be called criminals. Such a label should be reserved for the worst of the worst, not our youths and young children. 4). Conclusion My position is not to advocate for a lack of responsibilities or accountability when a youth does something wrong. NO. NO. NO. Rather, my position is: (I). For the reevaluation of the Antisocial Personality Disorder diagnosis on youth, when applying any of the DSM's(IV or V), and a more equitable, just, and fair system. (II). Reevaluation of DSM-5 and it's applications in criminal cases for forensic purposes. (III). Expanding the Diminished Capacity defense to include youthfulness as part of what is needed to be considered when a youth goes to trial. (IV). Initially considering alternatives to incarceration as part of youth sanction for the offense committed. A single diagnosis by a single government expert can affect a youth's trial or education, destroy a youth's life, and ultimately shatter a youth's future. These issues can either be addressed now, or it can be pushed down the road. However, the latter would be a continued destruction of our youth and a total dereliction of duty and responsibility, which is a betrayal to them. The time to act is now, not later, and the time to kick the can down the road is past. JOJO DEOGRACIAS EJONGA. AKA. JONATHAN DEOGRACIAS EJONGA-LIHAU. Twitter@JoJoEjongaLihau March-10-2022