The DSM5 is the official diagnostic manual for mental health conditions published by the American Psychiatric Association. It provides a standardized set of criteria for diagnosing certain mental disorders.

A defendant must be diagnosed with a recognized mental illness identified within the DSM5, such as:

• Bipolar disorder
• Major depressive disorder
• Anxiety disorders
• PTSD
• Schizophrenia or schizoaffective disorder
• Borderline personality disorder

Excluded disorders:

• Antisocial personality disorder
• Borderline personality disorder (sometimes excluded, sometimes allowed—depends on the judge and the evidence)
• Pedophilic disorder

The diagnosis must be made by a qualified mental health professional (LMFT, LCSW, psychologist, psychiatrist).

There must be a nexus between the disorder and the criminal behavior. The standard is not strict causation; it’s whether the disorder contributed to the offense in a way that can be meaningfully argued before the judge.

Examples:

• Manic episode leading to impulsive property damage
• Severe depression contributing to drug use or self-medicating
• PTSD resulting in defensive or hyper-reactive behavior
• Psychotic symptoms contributing to erratic or unlawful conduct

The clinician or treating medical expert must indicate that treatment is realistically expected to:

• Reduce symptoms,
• Reduce criminal behavior, and
• Improve functioning.

This is voluntary. The defendant must inform the judge that they are willing to participate in treatment.

A proposed treatment plan must be submitted. Acceptable programs include:

• Private clinicians
• VA mental health services
• County behavioral health
• Psychiatric medication management
• Psychotherapy (CBT, DBT, EMDR, etc.)
• Substance-abuse treatment when related to the disorder

The judge must determine that the defendant does not pose an unreasonable danger to the community if treatment is granted. This often becomes the primary battleground in serious cases.

The district attorney routinely argues that a person is unsuitable for this program because their actions are causing a danger to the public. This comes in a variety of ways–but it’s argued in almost every case against my clients.

The key is to address the “dangerous person” narrative with details, background, context, and preparation. It’s very easy to simply argue that an accused person is dangerous and that their behavior is going to continue or accellerate–I will typically put together a plan of action for my clients to complete before we enter into this motion so that we have the best chance of success when the argument hearing takes place. Again–I rely on my clients to be active partners and participants in this area.