Diagnosed Criminals: The Misuse of Antisocial Personality Disorder in the Legal System

Antisocial Personality Disorder (ASPD), also referred to as psychopathy, sociopathy, or dyssocial personality disorder, is characterized in the fifth edition of The Diagnostic and Statistical Manual (DSM-5) by a recurring failure to respect the rights of others. ASPD diagnosis is based primarily on a cluster of symptoms largely derived from observable behaviors, rather than underlying etiology or internal personality structure. [1] The DSM-5 diagnostic criteria for ASPD are as follows:

1. A pervasive pattern of disregard for and violation of the rights of others, occurring since age 15 years, as indicated by three (or more) of the following:

   1. Failure to conform to social norms with respect to lawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest.

   2. Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure. 

   3. Impulsivity or failure to plan ahead.

   4. Irritability and aggressiveness, as indicated by repeated physical fights or assaults.

   5. Consistent irresponsibility as indicated by repeated failure to sustain consistent work behavior or honor financial obligations.

   6. Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.

2. The individual is at least age 18 years.

3. There is evidence of conduct disorder with onset before age 15 years.

4. The occurrence of antisocial behavior is not exclusively during the course of schizophrenia or bipolar disorder. [2]

Psychoanalysts contest these criteria, arguing that they lack substantial context and thus invite misinterpretation; does deceitful behavior (Criterion A2) include lying to evade abuse? Neglect, child abuse, and unstable parenting are all cited in the DSM-5 as environmental risks for the development of ASPD, yet their consideration is omitted in the diagnostic process. [3] Research links adverse childhood experiences, notably physical and sexual abuse, to a heightened risk of receiving an ASPD diagnosis. [4] Critics question if behaviors labeled as ‘antisocial’ or ‘personality defects’ may actually be responses to a dysfunctional environment. [5] Moreover, such criteria do not incorporate symptom weight, creating equivalencies between behaviors of differing severity. Criterion A1, for example, regarding conformity to social norms with respect to lawful behaviors, could be satisfied both by someone who has committed minor offenses and someone guilty of violent criminal acts. [6] In this way, ASPD diagnoses collapse under their own variety; because the DSM requires a certain threshold number of symptoms from a greater list, there are abounding symptom combinations that call for an ASPD diagnosis. Hofstra Law Review identifies this as an “innumeracy problem,” noting, “[m]any researchers have found it troubling that individuals can be diagnosed with the same disorder, yet have few, if any, features in common.” [7] This diagnostic structure may create the appearance of uniformity among diagnosed individuals, flattening personal differences into one single, stigmatizing category. Legal specialists suggest that by casting such a wide net, diagnosis ceases to act as a tool to identify precise mental pathology, but becomes a euphemism for common criminality. In prioritizing observable, unfavorable acts over psychological processes, the diagnostic criteria catalog criminal history as opposed to pathology. The Journal of the American Academy of Psychiatry and Law contextualizes this diagnostic saturation in the legal framework of sexual offence: 

In this view, the ASPD sex offender’s behavior reflects criminal inclinations, not psychiatric impairments. In other words, they are ‘bad but not mad.’ That is, ASPD is not a paraphilic disorder that impairs emotional or volitional regulation and predisposes to deviant sexuality, but a condition defined by chronic criminality. As a result, sex offenders with ASPD may return to sexual crimes after criminal sanctions; they are no different than the ordinary criminal recidivist whose recurrent nonsexual crimes are similarly undeterred by punishment. [8] 

Research indicates that diagnosis provides little clinical utility in a forensic setting, but functions instead as a label for anyone who has repeatedly broken the law. Notably, the first listed criterion is directly in reference to unlawful conduct (Criterion A1), which raises concerns regarding the extent to which the diagnosis relies on legal status as a defining feature. [9] Defining a disorder of personality in terms of social deviance introduces the potential to misidentify personality traits as antisocial defects, all while implying clinical merit. [10]

ASPD is the most common psychiatric disorder among incarcerated persons, with an 8.9% prevalence rate of inmates executed between 2000 and 2015. [11] Given its prevalence among correctional populations, reliance on ASPD in capital proceedings carries significant constitutional implications. The Eighth Amendment demands capital sentencing determinations “aspire to a heightened standard of reliability”; legal analysis maintains that the use of ASPD in capital trials is fundamentally misaligned with this principle given its aforementioned flawed diagnostic methodology. [12] The Supreme Court has upheld the use of psychiatric testimony to predict prospective risk, though skeptics denounce the inclusion of ASPD in relation to expected threat, given that predictions of violence on the basis of ASPD diagnosis are limited in reliability. [13] In practice, courts rely on ASPD diagnosis to establish that the defendant is a continuing threat to society, however, research indicates that violational conduct tends to remit with age. [14] The employment of ASPD as an indicator of long-term “future dangerousness” fails to account for the natural maturation and subsequent behavioral de-escalation that occurs in most individuals. [15] Moreover, research suggests that the empirical track record for anticipated violence on the basis of ASPD diagnosis is infirm, with "limited utility for making differential predictions of institutional adjustment, response to treatment, and behavior following release from prison.” [16] A psychologist’s court testimony further supports this, noting that despite the overlap between criminal conduct and ASPD, a diagnosis is not entirely indicative of criminal behavior, as there are numerous individuals with ASPD who do not partake in illegal conduct. [17] This lack of predictive validity, in tandem with the contested scientific integrity of diagnosis, suggests that the use of ASPD in capital proceedings may be incompatible with the constitutional requirement of elevated reliability.

The Eighth Amendment also commands that capital sentencing accord each defendant the “degree of respect due to the uniqueness of the individual” by establishing that the sentencer is not restricted from considering any aspect of the defendant’s character. [18] Legal scholars argue that the application of ASPD in court violates such doctrine and often erases uniqueness, portraying incarcerated peoples as inhumane, thus justifying execution. [19] The usage of ASPD in capital trials often acts as a stigmatizing label that may significantly influence sentencing outcomes. By categorizing a defendant as antisocial, the legal system reduces a diagnosed individual to a catalog of personality defects. [20] Some jurisconsults go so far as to say that ASPD evidence is intentionally designed to neutralize mitigating factors, particularly the accused's disposition and circumstances. In this way, ASPD becomes weaponized to reframe survival strategies in the face of poverty or abuse as confirmation of an innate ethical defect. [21] Such framing is enabled by the aforestated decontextualized diagnostic criteria of ASPD. Consequently, ASPD diagnosis in court may shift from clinical assessment towards moralized interpretation of behavior. [22] One testimony has compared individuals with such diagnoses to “fake fruit,” asserting that they appear normal, but are fundamentally devoid of humanity. [23] This rhetorical dehumanization reflects the eugenic origins of the diagnosis, where individuals were sorted based on their “worth” to the state. [24] Scholars highlight that in using a medical facade to declare a defendant “constitutionally inferior,” the legal system may rely on ASPD diagnoses in ways that undermine the defendant’s individualized consideration. [25] The diagnostic label encourages jurors to view the defendant through a limited outlook, functionally impeding the empathy of the jury. Accordingly, the routine admission of ASPD evidence in capital cases risks converting a doctrine of individualized sentencing into an instrument of categorical exclusion. [26]

Beyond its rhetorical impact on jurors, ASPD serves a more systemic function, marked by doctrinal inconsistency and strategic convenience. Jurists and psychiatrists identify a significant paradox of convenience for the state, maintaining that the legal system selectively defines ASPD for the sake of detention. [27] They assert that in the context of a criminal trial, the justice system generally declines to recognize ASPD as a valid excuse for criminal conduct, thus indicating that the defendant has volitional control and is fully culpable. [28] As follows, the defendant is denied the right to a psychiatric defense, ensuring they are held criminally responsible. [29] However, once the offender has served the entirety of their sentence, the state’s argument often adjusts to rationalize keeping offenders with ASPD incarcerated under civil commitment statutes. [30] Supreme Court precedent upholds that the presence of a “mental abnormality” is a sufficient legal standard for indefinite civil commitment, provided it is paired with proof of future dangerousness—in which the legitimacy of such evidence is contested. [31] More importantly, the legal definition of “mental abnormality” posits that the condition affects the individual's emotional or volitional capacity, a direct contradiction to the rationale behind the offender’s criminal responsibility. [32] Legal experts claim that this operates as a punitive mechanism of convenience, masked as correctional psychiatric detention; if ASPD does not allow an offender to avoid criminal sentencing, it should not later warrant psychiatric incarceration. [33] 

When offenders with ASPD are psychiatrically committed, the label of ASPD may categorize them as fundamentally different from the rest of humanity. The conflation of criminality with personality disorder may reinforce assumptions about inherent criminality, potentially undermining any rehabilitative goals held by the justice system. [34] Ultimately, legal evaluation indicates that managing criminals under the guise of mental health raises concerns for both justice and clinical psychology. It may place forensic psychiatry in a conflicted role by positioning clinicians as agents of social control, while conditioning the public to view mental illness as closely associated with crime. [35] The literature reflects that criminals who are not psychiatrically impaired should be handled within the criminal justice system, as maintaining a clear distinction between criminal conduct and clinically recognized mental disorders remains important for both legal and medical clarity. [36] The broad criteria and limited predictive reliability of ASPD complicate its use in capital sentencing and civil commitment proceedings. Jurisprudential analysis recognizes that clinical labels are designed to guide treatment, and their use in legal decision-making should remain attentive to the limits of psychiatric diagnosis. [37]

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Sources

1. American Psychiatric Association., & American Psychiatric Association. DSM-5 Task Force. (2013). Diagnostic and statistical manual of mental disorders : DSM-5. (5th ed.). American Psychiatric Association. 659

2. Ibid.

3. Wayland, Kathleen, and O'Brien, Sean D. "Deconstructing Antisocial Personality Disorder and Psychopathy: A Guidelines-Based Approach to Prejudicial Psychiatric Labels." Hofstra Law Review 42, no. 2 (2013): 519-588. HeinOnline.

4. Matt DeLisi et al., The Etiology of Antisocial Personality Disorder: The Differential Roles of Adverse Childhood Experiences and Childhood Psychopathology, 92 Comprehensive Psychiatry 1, 1 (2019) (citing four studies with different rates of heritability).

5. Wayland and O'Brien,  "Deconstructing Antisocial Personality Disorder and Psychopathy”

6. DeLisi et al., “Etiology of Antisocial Personality Disorder,” Comprehensive Psychiatry 92:7.

7. Wayland and O'Brien,  "Deconstructing Antisocial Personality Disorder and Psychopathy”

8. Sreenivasan S, Rokop J, DiCiro M et al: Case law considerations in the use of ASPD in SVP/SDP evaluations. J Am Acad Psychiatry Law 48:000–000, 2020

9. American Psychiatric Association, DSM-5, 5th ed., 659.

10. Bias Baked In: How Antisocial Personality Disorder Diagnoses Trigger Legal Failures. (2025). Harvard Law Review, 138(4), 1101–1122.

11. Schnittker J, Larimore SH, Lee H. Neither mad nor bad? The classification of antisocial personality disorder among formerly incarcerated adults. Soc Sci Med. 2020 Nov;264:113288. doi: 10.1016/j.socscimed.2020.113288. Epub 2020 Aug 17. PMID: 32858490; PMCID: PMC8278498.; Baumgartner, Frank R., and Betsy Neill. “Does the Death Penalty Target People Who Are Mentally Ill? We Checked.” The Washington Post, April 3, 2017. https://www.washingtonpost.com/news/monkey-cage/wp/2017/04/03/does-the-death-penalty-target-people-who-are-mentally-ill-we-checked/. 

12. Ford v. Wainwright, 477 U.S. 399 (1986)

13. Barefoot v. Estelle, 463 U.S. 880 (1983); Wayland and O'Brien,  "Deconstructing Antisocial Personality Disorder and Psychopathy”

14. Ibid.

15. “Bias Baked In,” Harvard Law Review 138:1101.

16. Robert D. Hare, Psychopathy and Antisocial Personality Disorder: A Case of Diagnostic Confusion, Psychiatric Times, Feb. 1, 1996, at 2–3.  

17. United States v. Doe No. 3, 113 F. Supp. 2d 604, 609 (S.D.N.Y. 2000)

18. Lockett v. Ohio, 438 U.S. 586 (1978)

19. Wayland and O'Brien,  "Deconstructing Antisocial Personality Disorder and Psychopathy”

20. Ibid.

21. “Bias Baked In,” Harvard Law Review 138:1101.

22. Wayland and O'Brien,  "Deconstructing Antisocial Personality Disorder and Psychopathy”

23. United States v. Barnette, 211 F.3d 803, 821, 823 (4th Cir. 2000)

24. “Bias Baked In,” Harvard Law Review 138:1101.

25. Ibid.

26. Wayland and O'Brien,  "Deconstructing Antisocial Personality Disorder and Psychopathy”

27. Sreenivasan et al., “Case Law Considerations,” J. Am. Acad. Psychiatry Law 48:215.

28. Wayland and O'Brien,  "Deconstructing Antisocial Personality Disorder and Psychopathy”

29. Sreenivasan et al., “Case Law Considerations,” J. Am. Acad. Psychiatry Law 48:215.

30. Ibid.

31. Kansas v. Hendricks, 521 U.S. 346 (1997); Robert D. Hare, Psychopathy and Antisocial Personality Disorder: A Case of Diagnostic Confusion, Psychiatric Times, Feb. 1, 1996, at 2–3.  

32. Hendricks, 521 U.S. at 350.

33. Sreenivasan et al., “Case Law Considerations,” J. Am. Acad. Psychiatry Law 48:215.

34. Wayland and O'Brien,  "Deconstructing Antisocial Personality Disorder and Psychopathy”

35. Ibid.

36. Ibid.

37. Ibid.