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Excerpted From: Gabriella Argueta-Cevallos, A Prosecutor with a Smoking Gun: Examining the Weaponization of Race, Psychopathy, and Aspd Labels in Capital Cases, 53 Columbia Human Rights Law Review 624 (Spring, 2022) (190 Footnotes) (Full Document)


GabriellaArguetaCevallosCarrie Buck was only seventeen years old when, in March of 1924, Virginia passed an act permitting the involuntary sexual sterilization of patients under the state's care who were afflicted with “hereditary forms of insanity” such as idiocy, imbecility, feeble-mindedness, or epilepsy in an attempt to combat their propagation. Buck's foster parents, John and Alice Dobbs, had involuntarily committed her to such an institution--the State Colony for Epileptics and Feeble-Minded--purporting to be concerned about her alleged mental impairment. In reality, Buck was being shunned for her alleged sexual and social deviance, as she had become pregnant at seventeen after she was raped by Alice Dobbs' nephew. She was only a child when she was victimized by this man and when she was selected as the first person to undergo involuntary sterilization under the 1924 act.

In 1927, the Supreme Court, in an opinion by Justice Holmes, upheld the Virginia Eugenical Sterilization Act of 1924 against Buck's due process and equal protection challenges, legitimizing the aims of the eugenics movement as well as the ableist, racist, and classist logic underlying it. Nevertheless, it is now a known fact that Carrie Buck's diagnoses were unsupported and erroneous. Carrie Buck's institutionalization--a deprivation of her constitutional right to liberty--was not supported by a single formal assessment or quantitative metric, but rather solely premised on the word of her foster parents and a brief interaction with a pair of doctors. Decades later, scholars and mental health professionals have disproven the diagnoses underlying Buck's forced sterilization. Buck's story, along with the subsequent repudiation of the term “feeble-mindedness” itself, points to a troubling issue: the extensive weaponization of unreliable psychiatric labels to control, punish, and impose irreversible harm upon society's “undesirables,” who are often its most vulnerable members.

In 1983, nearly fifty years after Buck v. Bell, the Supreme Court again faced some of these underlying issues in a different context. Thomas A. Barefoot was convicted for the murder of a police officer and thus eligible for the death penalty. In capital cases, Texas state law requires that a jury determine whether it is probable that the defendant would, in the future, commit criminal acts that would pose a continuing threat to society. To address the question of future dangerousness during the sentencing proceeding, the prosecution presented two psychiatrists who had never personally examined Barefoot. Both psychiatrists diagnosed Barefoot with sociopathy, grounding their opinions on the prosecutor's hypothetical questions, which themselves were embellished with controverted facts. The experts each testified that Barefoot presented a future danger to society. One of these experts, Dr. James Grigson, went as far as stating that “there was a 'one hundred percent and absolute’ chance that Barefoot would commit future acts of violence that would constitute a continuing threat to society.”

The American Psychiatric Association (“APA”) submitted an amicus curiae brief condemning the testimony presented by the prosecution's expert witnesses, psychiatrists Dr. Holbrook and Dr. Grigson. Despite this, the Supreme Court struck down Barefoot's challenges to their testimonies and affirmed the lower court's simultaneous denial of Barefoot's application for habeas corpus relief and his motion for a stay of execution. The brief first sheds doubt upon the psychiatrists' diagnoses by noting that the APA has declared it unethical for a psychiatrist to offer a professional opinion without first conducting an examination. It also highlights that a sociopathy diagnosis cannot technically be made based on hypothetical questions, as such a complex diagnosis requires psychiatrists' exclusion of alternative diagnoses. Furthermore, psychiatrists' testimony on future dangerousness dresses up actuarial data with a heightened aura of credibility that will likely receive undue weight despite not being scientifically supported. In fact, psychiatric predictions of long-term future dangerousness are wrong two times out of three. Antisocial Personality Disorder (“ASPD”) diagnoses are especially prejudicial, given the link between the disorder and perceived social deviance. The APA concludes that given the difficulty of challenging the prejudice resulting from such testimony, psychiatrists should be prohibited from advancing predictions of long-term future violent behavior at the sentencing stage of a capital case or be restricted to testifying as lay witnesses.

The Court's decision ultimately rested upon confidence that the adversarial system enables jurors to uncover and recognize for themselves the shortcomings of expert testimony. Unlike in Buck v. Bell, where the credibility of crucial expert testimony was neither at issue nor particularly salient, in Barefoot it was both. The Barefoot Court explicitly upheld the admission of what has been roundly criticized as unqualified testimony. The death sentence was carried out, and Barefoot, like Buck, suffered irreversible harm at the hands of the State on the basis of controversial testimony on a contentious construct.

Buck and Barefoot both demonstrate how expert testimony on psychological labels may be used to facilitate substantial harm against groups who are already vulnerable to exploitation. Nevertheless, both Buck and Barefoot-- although underprivileged and, for one reason or another, considered socially deviant--benefitted from white privilege. It is likely that Black, Indigenous, and People of Color (“BIPOC”) are at a higher risk than white people to be victimized by the weaponization of psychiatric labels. Even though the construct of “feeble-mindedness” has been dismantled, the diagnoses of ASPD and psychopathy persist. Furthermore, while the prevalence of involuntary sterilization has declined, 1,542 people have been executed in the United States since 1976.

This Note will explore the extent to which the weaponization of personality disorder labels--particularly ASPD and psychopathy diagnoses--can be racialized in capital cases. Part I will explore how the criminal legal system has historically been utilized as a tool of oppression against BIPOC as well as persons bearing ASPD or psychopathy diagnoses in capital cases. Part II will explore which mechanisms are central to both of these processes and how these commonalities heighten the risk that personality disorder labels will be misused against BIPOC. In particular, this Part will explore the role of the prosecutor in driving these mechanisms and propagating harm upon BIPOC, people whom they have burdened with a personality disorder label, and especially people who fall into both of these categories. Part III will present potential incremental solutions to these issues, with a particular eye to abolitionist interventions and reimaginings.

[. . .]

Applying an abolitionist framework to the issues described in this Note provides by far the most holistic and effective solution to arbitrary death sentences. In addition to addressing the systemic injustices often underlying criminal activity, this framework does so, in part, through efforts that aim to shift societal attitudes away from prejudiced forms of thinking, which often produce and entrench the systemic injustices in question. Such an approach would eliminate not only arbitrary applications of the death penalty based on race and personality disorders, but it would eliminate criminal activity that is arguably enabled or necessitated by the precarious conditions created by social inequality. In a post-death penalty, post-carceral society centered around compassion, dignity, and mutual respect, the death penalty itself would be replaced with rehabilitative responses to crime, thus completely eliminating the issues discussed here. Of the potential solutions discussed, abolition is the only path that completely addresses the issue of arbitrary death sentences and goes beyond that problem to the core of the injustices underlying the criminal legal system.

JD Candidate 2022, Columbia Law School; B.A. 2019, New York University.

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