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Borderline Personality Disorder: Pre-plea and Pre-sentence Criminal Mitigation Strategies

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Borderline Personality Disorder: Pre-plea and Pre-sentence Criminal Mitigation Strategies

In this course, attorney and forensic expert Mark Silver delves into criminal mitigation strategies for the client suffering from Borderline Personality Disorder. Borderline Personality Disorder is among the least understood, and yet perhaps the most important mental health issues for criminal defense lawyers. As many as 6% of the population carry the diagnosis of Borderline Personality Disorder and the criteria for this mental health issue provide profound understanding regarding the criminal defendant's decision-making, behaviors and conduct, emotional instability, erratic conduct, impulsivity, depression and low self-esteem, and related matters. It is crucial for the criminal defense lawyer to be able to recognize borderline personality disorder in clients and know when to refer the case for an evaluation and/or how to use aspects of this disorder for mitigation purposes.Borderline Personality Disorder: Pre-plea and Pre-sentence Criminal Mitigation Strategies

Presenters

Mark Silver
Attorney & Clinical Social Worker
Criminal & Immigration Mitigation Expert

Transcript

Mark Silver: My name is Mark silver, and I am a criminal mitigation expert in New York. Today, I'm going to be presenting on what I think is one of the most important topics, because it is so infrequently examined for mitigation purposes, and that is the Diagnosis of Borderline Personality Disorder.

  For anybody who would like a redacted copy of this very important subject, a mitigation sample is available by simply emailing me at [email protected] and I will send back a redacted sample, meaning all pertinent matters regarding name, age, and so on will be changed or omitted for the client. I have a specific chapter on borderline personality disorder in my book. It is the Handbook of Mitigation and Criminal and Immigration Forensics. It's the seventh edition. It was just re-released a few months ago.

  The book subtitle is Humanizing the Client Towards a Better Legal Outcome and it's my contention that that is the core reason that mitigation exists, understanding the background and psychosocial development of our clients, and most importantly, mental health issues as a means to allow the prosecutor and the judge to really understand these clients as individual human beings so individual justice is possible.

  It's also absolutely crucial for the criminal defense lawyer himself or herself so that the lawyer is able to understand the mental health challenges and traumas and obstacle that the client has had to contend with in the earlier periods of their lives. I want to give you a brief overview of what we're going to look at today, and that is the different kinds of challenges specifically with this disorder, that is borderline mental health disorder.

  Really, there are many specialty areas for mitigation and I have separate CLEs on pre-sentence investigation critique, especially in the context of pornography and sex crimes, a CLE on complex trauma, white collar crime, domestic violence, the Adam Walsh Act, which is primarily pertinent for immigration defense lawyers and of course, criminal immigration itself.

  Really though, the best place to start then is a definition of criminal mitigation. Mitigation is a bio-psychosocial evaluation of the client's social and psycho logical history informed by the facts of the criminal case with appropriate recommendations as a means to minimize the negative legal outcome either in court or with a prosecutor. Mitigating circumstances reduces the degree of moral culpability or blame, which in fairness, sympathy or mercy may lead to a more favorable outcome for the defendant.

  Really in today's age, anything and everything that we can understand about the client's background and history can be relevant for mitigation. However, most importantly, we want to humanize the client so that the particular issues that they've had to contend with in their life, whether family or psychiatric issues will better inform the court and prosecutor of who this person is as an individual, so that we can have individualized justice and humanize the case.

  There are many purposes for mitigation. As I said, to humanize the case through a sympathetic narrative and induce empathy to the reader, especially in these kinds of cases where individuals with borderline personality disorder can be very impulsive and unlikable and difficult because of their moods and their conduct.

  We want to be able to document the client's life history, to contextualize his conduct and really to explain any major stressors and precipitating factors that have contributed to the client's decision making, particularly in the weeks and months prior to the criminal issue.

  Crucially important, we want to express the client's community, family, employment ties, express the client's contrition through remorse and regret. Very, very importantly for borderline personality disorder, many of these clients really need a lawyer clearly to represent and explain to them the law given the borderline's inability to process information and become confused and angry and so on.

  Similarly, professional expression through a mental health expert or a mitigation expert can replace self expression, meaning that people with borderline personality disorder have a very difficult time understanding their own needs, their own issues. They have even difficulty defining who they are. They may feel very empty and sad and chronically anxious, and so we need a mental health expert for the client to be able to relate over many hours and many days of evaluation, who they are, their needs and how they got into so much trouble.

  We're not producing a mitigation report just to explain a mental health problem. That is this diagnosis of borderline personality disorder as important as it is, but rather to explain holistically in a general and systemic sense who this client is, how they've gotten into so much trouble and more importantly, who they are as an individual, given their likes and dislikes, proclivities and who they are as human beings.

  We want to be able to document in a single report various aspects of the client's life, including educational, vocational and other aspects of their development, but most importantly, to disabuse the prosecutor and disabuse the judge of biases and prejudices and so on, which are so important in these kinds of cases because of the borderline's behavior and conduct.

  And really, these mitigation reports are simply crucial to counter the pre-sentence investigation report that's undertaken by the probation department because the probation officer so often misses mental health and family and background issues, and particularly in these kinds of cases, because the borderline personality disorder diagnosis, as we'll see, is extremely complex and there're nuanced pieces that help understand disparate parts of the individual's personality.

  Finally, I have on occasion been called by criminal defense lawyers to interview clients just so they can get a conceptual understanding of the client given the client's problems as a means to gain a better strategic sense of how to proceed, not only with the case itself, but with the client, given the client's own difficulties.

  The criminal mitigation cases now that we see are not simply done to support the case but rather criminal mitigation is an effective tool for the sake of argument, but also a necessary factual underpinning to support the factors of 18 USC 3553(a) and other relevant case law. The court really has unfettered discretion now to consider any and all evidence at sentencing in the post-Booker age.

  Of course, 18 USC 3661 notes, again, no limitation shall be placed on the information concerning background character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

  So especially with these clients with borderline personality disorder, as we're going to see in a few minutes, given their characteristics and symptoms and criteria, we want to be able to tackle these problems with the borderline very early on at a pre-plea stage, not just at the pre-sentence stage. We want to be able to explain at the earliest possible point to the prosecutor who this client is and their psychopathology.

  And that's psychopathology in the sense of labeling the individual, given their mental health problem, but rather to the contrary, explaining their decision making and judgment and in what ways the client is very fragile and vulnerable because of this terrible diagnosis that they've carried with them often since early adulthood or even since their adolescent period.

  And of course there's very commonly considered, the trial penalty theory, which basically says that, especially in these kinds of cases, it's so difficult to go to trial because of the incredible expense, the challenges, humiliation, the time involved and so on and so plea deals are extremely common now, and as a result, it becomes all the more crucial to explain who our client is at a very early stage in the process so that the prosecutor and so on can have an understanding of the challenges that the client has had to contend with both now and at previous points in their lives.

  And of course, this raises a question as is often asked and noted in mitigation seminars, is it obligatory? Of course, we have Wiggins V Smith where mitigation is necessary under that Supreme Court ruling in death penalty cases. But more generally we have Gideon V Wainwright from 1963, the famous Supreme Court case that really mandated counsel, that is legal representation in felony cases and other relevant criminal defendant situations.

  And should there be a parallel obligation on the part of the criminal justice system or the criminal defense lawyer to procure mitigation for clients, especially with the diagnosis of borderline personnel disorder, because it's extremely serious, it pervades every part of their life, but much more importantly, it helps inform the criminal defense lawyer and the prosecutor and judge how this client got to be in so much trouble.

  What I want to do now is focus on specific areas of borderline personality disorder to help explicate who these individuals are. Borderline personality disorder is obviously under the rubric of personality disorder and I want to provide a definition first. A personality disorder is an enduring pattern of inner experience and behavior that deviates from the norm of the individual's culture.

  The pattern is seen in two or more of the following areas, cognition, affect, interpersonal functioning or impulse control. Cognition is just a fancy word for how we process information and affect is a fancy word for mood. The enduring pattern is inflexible and pervasive across a broad range of personal and social situations. It typically leads to significant distress or impairment in social, work or other areas of functioning.

  The pattern is stable and of long duration and its onset can be traced back to early adulthood or adolescents. In other words, the personality disorders and borderline personality disorder in particular it's the kind of problem that helps inform every area of the person's life and functioning and not just mental health issues.

  That is we can better understand the person's decision making with regard to their family, employment choices, likes and dislikes, hobbies and interests, and so much more. There are many kinds of personality disorders. The most noted in the DSM-5 are paranoid, schizoid, schizotypal, antisocial, borderline, histrionic, narcissistic, avoidant, dependent and obsessive-compulsive.

  In fact, many clients we see through mitigation as criminal defendants do have personality disorders, but they're not a central area of focus, primarily because they're not seen as serious as perhaps schizophrenia, which is a psychotic disorder or bipolar disorder, which is another psychotic disorder. And also because they tend to be, in the eyes of some criminal defense lawyers, harmful.

  In other words, if a person is diagnosed with antisocial personality disorder, then the inferences that they're a sociopath or a psychopath, and so there's a general tendency to avoid personality disorders. However, it's extremely important to understand that they're explanatory, meaning that the personality disorders understanding how the criteria of the disorders match up with the individual, help us understand and explain the client's conduct and judgment.

  And if we can gain insight into the client's decision making and judgment through their criminal behavior or behaviors in general, we can help them a lot in the mitigation process. There are other reasons to consider personality disorders in the sense that personality disorders are very serious. They're mental health issues and they can be debilitating.

  They can be very harmful and they pervade a person's life. And I'll give you just two examples. The first two, paranoid and schizoid. Or maybe even take the first three paranoid, schizoid and schizotypal. These are all personality disorders that have psychotic components. Psychosis means out of touch with reality. We're going to look at this soon, and people with this problem may hallucinate, that is they have perceptual disturbances or they may have delusions, which are false beliefs.

  So I'm taking these three as examples. We're going to look at borderline specifically, but taking these three just to illustrate that these are individuals with diagnoses of borderline, schizoid and schizotypal personality disorder that are very, very serious. It's not just that the person generally has difficulty functioning or generally has difficulty with interpersonal relationships or in the workplace and so on.

  These are extremely serious diagnoses. Borderline personality disorder is extremely important to look at specifically and that's what our task is now. The main feature of borderline personality disorder is a pervasive pattern of instability and interpersonal relationships, self image and emotions.

  People with borderline personality disorder are also usually very impulsive, oftentimes demonstrating self injuries' behavior, risky behavior, including cutting, suicide attempts and so on. Borderline personality disorder occurs in most people in early adulthood. The unstable pattern of interacting with others has persisted for years and is usually closely related to the person's self image and early social interactions.

  The pattern is present in a variety of settings that is not just home or work and is often accompanied by similar lability that is fluctuations in mood and manner. Borderline personality disorder, as I said, is a systemic issue. I should also note that these individuals are very sensitive to environmental circumstances. That is their very important issues interpersonally, internally within their own world, but within the environment in general.

  Most importantly, the perception of impending separation or rejection or the loss of external structure can lead to profound changes in self image, affect, cognition and behavior. They experience intense abandonment fears and inappropriate anger even when faced with a realistic time limited separation or when there are unavoidable changes in plans.

  Borderlines may believe this is abandonment and it may imply in their own minds that they are bad. These abandonment fears are related to an intolerance of being alone and the need to have many other people with them. Relationships and the person's emotions may sometimes be seen by others or characterized as being shallow.

  Much of this information is taken from the National Institute of health. I really suggest you look at the National Institute of Health, the NIH, for any mental health problem. They have excellent summaries, excellent references and it's information that could be, I think, related to anybody that does not have an understanding of mental health issues in a very concrete, but also understandable manner in the absence of psychiatric or medical jargon.

  What I want to look at right now are the actual criteria, and this is the core of our CLE, the actual criteria of borderline personality disorder. They're extremely complicated and I want to take each one as we go. The first is frantic efforts to avoid real or imagined abandonment. This means that the borderline fears being alone or abandoned. They have perceived rejection. They perceive rejection in general as being fatal.

  They may be very dramatic or attention seeking because of this in an effort to keep loved ones or friends around them. They have a deep need to be loved and they may have this kind of panic-like or frantic effort to keep people around them, and when they fear that people will not be around who they need for their support, they may become very, very destabilized emotionally, psychologically, and so on.

  And the borderline may develop defenses in order to contend with this problem. There's this great line, she didn't know who would leave or stay so she pushed them all away. Meaning the borderline may act proactively to push people away, to undermine relationships in an effort not to feel rejected and not to have that fear or anxiety of being abandoned.

  This is extremely important. And what I want to do in this CLE is provide an actual case that I had and look at each criteria. This case provided a 34-year-old woman who had an eight-year-old daughter. She was the daughter of Holocaust survivors in Eastern Europe. Her Jewish family immigrated to New York and they have been living here.

  The father became educated and developed a medical practice and the daughter who was working in her father's medical practice would steal prescription pads, and she would take the prescription pads and give them to her drug-addicted boyfriend who would then obviously fake the signature and sell them on the streets for financial gain.

  It was an extremely serious case because, of course, these cases are not usually caught. And there were many, many, many prescriptions over many months that were stolen by the client from her father's medical office. This is a client because of her history of trauma, given her parents experiences as Jews during the Second World War in Europe. This is a woman who has profound fears of abandonment and being alone.

  She's actually quite intelligent. She has great capability, but her anxiety overwhelms her in such a fundamental way that when she has this destructive relationship with her drug-addicted boyfriend, he is always able to control her and manipulate her by saying, "I'm going to leave you if you don't do this for me." Or, "If you don't do this for me, I'm not going to show up for you Saturday night when you really need me the most because that's when you're the most anxious on the weekend."

  Now, to a normal person, this may sound ridiculous. If your drug-addicted boyfriend wants to leave you, that sounds like a blessing. But to people with borderline personality disorder, I cannot overemphasize enough their fears of rejection and abandonment. And this is all the more true for a client like this who grew up in a home where there was intergenerational trauma because her parents and grandparents were survivors of the Holocaust and she in turn had to contend with that and her borderline personality diagnosis.

  The next criteria is a pattern of unstable and intense personal relationships. Now, this client had grown up, as I said, in a home of Holocaust survivors. And clearly her parents tried to make a new life for themselves in the United States, going to school, college, finding professional careers and so on. But clearly they carried with them horrible trauma from the war. And they in turn, in dealing with their own trauma, became verbally and emotionally abusive toward the client.

  So the client herself grew up in a home with intense dysfunction and anger and animosity between and among family members. And this is something that she took into her adulthood and helped clearly to inform her borderline personality diagnosis. In this criteria, the clients alternate between extremes of idealization and devaluation in relationships. In other words, one day the client will say... And we see this with lawyers.

  The client will go into the lawyer's office and say, "You're very wonderful. Thank you for the help. You've been extremely good with providing me counsel and guidance and suggestions and so on. And three weeks later, the same client comes into the lawyer's office and devalues them. Now the client is the worst lawyer in the world. Their lawyer is providing terrible advice, terrible counsel and so on. Why is this?

  These kinds of clients with borderline personality disorder have intense interpersonal unstable relationships. One week they love you, the next week they hate you. They see things in all black and all white, and they can't really understand variances of gray. The clients are extremely unregulated. They're unhealthy because of this and their interpersonal relationships with friends and family, but also coworkers are also therefore unhealthy.

  These clients tend to be in and out of love. They have meaningless relationships. And something else which is very important is they have poor ego differentiation. That is, they have a difficulty understanding where they start and stop and someone else starts and stops. In other words, their needs and their personalities and their ego and so on is very much diffuse with other people around them and this was very true of the client with her drug-addicted boyfriend.

  Our client comes from a family with intense, unstable interpersonal relationships. And so too, she finds this intense, unstable relationship with her drug-addicted boyfriend. He's manipulating her, he's controlling her. They're in and out of love. And while it seems very unhealthy and a normal person would walk away, for a person with this disorder, it makes a strange kind of sense and as a result, she remains in this relationship.

  Moreover, her loser drug-addicted boyfriend probably has a lot of problems from his own background, right? He probably also suffered trauma or he may have been abused verbally, physically or emotionally by his mom or dad and grown up in a difficult socioeconomic situation. She probably, because of her poor ego boundaries, identifies with her drug-addicted boyfriend's problems.

  She can't deal with her own problems so she's, in a [Vicary 00:24:09] sense, dealing with her drug-addicted boyfriend problems through this intense unstable relationship. This really goes to the next criteria, which is very much related as its identity disturbance. And with identity disturbance there's significant and persistent unstable self image for the individual.

  The person has a poor sense of themself. Their self-concept is very poor. Most people, if you say, "Who are you?" You will describe yourself based on your educational accomplishments, your family relationships, your hobbies, your interests and so on. Borderlines have a very difficult time, really feeling comfortable with their own identity or even understanding it, and that's why this criteria really dovetails to the one previous.

  Because they're not very secure with their own identity, they may feel a need to attach themself to someone else whose identity is much stronger. So for example, the client, she has this very unhealthy relationship with her drug-addicted boyfriend, but the drug-addicted boyfriend may be quite self-confident.

  He may understand himself. He may know who he is. He may enjoy living his life on the streets and doing drugs and so on and selling them for a living. And she probably gains a bizarre sense of security. Her identity becomes more stable through her boyfriend's identity. The fact that his identity and his lifestyle is unhealthy doesn't necessarily detract from this stability that she gains from being in that relationship.

  The next example criteria is impulsivity. This is extremely complicated because it comes up in different areas of psychiatry, but for borderlines, it's potentially very self damaging and these clients tend to spend money impulsively, have sex impulsively, abuse drugs impulsively, drive recklessly, and have other problems, including binge eating.

  These are clients that tend to live on the edge and have knee jerk reactions without really thinking things through. And indeed our 34-year-old client does have impulsive sex. For example, she's had literally hundreds of partners and meaningless relationships. She spends money without really thinking about the consequences. She can be reckless in other ways and so on.

  In fact, even her relationship with her drug-addicted boyfriend is, in some sense, an impulsive decision. The problem with impulsivity is because you're not thinking things through, it's hard for you also to plan ahead and it impairs your overall judgment and long-term decision making. And clearly this is true here. Whenever she sees her drug-addicted boyfriend, he encourages her to steal the prescription pads from her father's doctor's office, well, clearly it's something she's not thinking through.

  The next criteria is recurrent suicidal behavior. This is very serious. Again, this pops up in several areas of psychiatry. It refers to gestures, threats or self-mutilating behavior. Many of these clients would just as soon be dead because they're in so much pain. And in fact, the client who we saw in this case had repeatedly undertaken a superficial cutting on her thigh and forearm and so on with various sharp objects, including razors as a means to regulate her emotions, as a means to alleviate her psychological pain paradoxically through causing superficial pain through self cutting.

  Many of these clients have self anger and self hatred, that is they're extremely and chronically disappointed in their own decision making and some may feel that they really need to be punished. Interestingly enough, it can be a problem with criminal defense lawyers because the client may want to take an early plea or may not want to participate in the case and they may seem very oppositional, but they're blaming themselves for their own poor decisions and therefore they're not being cooperative with their criminal defense lawyer.

  Some of the recurrent suicidal behavior may be very manipulative and controlling. These are clients who often, with family members, say, "I'm going to kill myself. I'm going to hurt myself unless you give me what I want, unless you give me the emotional support that I need and so on." And so this is an extremely serious matter that has to be considered with all clients with borderline personality disorder.

  The other thing about recurring suicidal behavior is that it's very empathetic. I mean, you really feel for these clients who have such a profound sense of helpless despair and deep psychological pain that they need to self harm.

  The next criteria is emotional instability. Emotional instability is very common with borderlines. It means that they have reactivity of mood. Their moods go up and down. They may be anxious, irritable. They may be dysphoria and so on. It could last for a few hours, a few days. There may be emotional volatility with terrible rage. If you've ever heard the term rageaholic.

  They may have very strong reactions to stress and anxiety. They may have very strong reactions when they feel they have been slighted or wronged. In general, this speaks to obviously their emotional dysregulation. Emotional dysregulation sounds like it's emotional, but it's more profound because the truth is we make decisions in our lives based on emotions, not based on rational thinking.

  There's a whole rational thinking school of thought that's very important in political science and jurisprudence supported by Judge Posner in the Ninth Circuit. But we don't make decisions based on a rational actor model based on our rationality and our best interest. We make decisions based on emotionality and then we later justify those decisions through rational justification.

  In other words, the emotional instability of the person with borderline personality disorder is absolutely crucial because it's so detrimental to what they may think are, in fact, not rational decisions. So with our client, clearly with the emotional instability, with her constant anger and frustration towards her parents who were verbally and emotionally abusive towards her when she was growing up, her emotional instability interferes with her ability to really keep herself at a level playing field.

  In other words, to think through decisions to consider before being reactive and so on and clearly emotional instability therefore is very much informed by the other criteria we saw before, which is impulsivity. Now, emotional instability also works with this client because her manipulative drug-addicted boyfriend probably is able to tap into the client's emotional instability and because he understands it or can see that she feels very anxious because of it, can take advantage of her in various ways.

  Another criteria which is somewhat difficult to understand is chronic feelings of emptiness, and this refers to borderlines who have an internal empty world. They may feel worthless and helpless. They may devalue themselves. It's hard to explain, but usually when you talk to people and you understand who they are, you understand them based on their emotional health and their choices and so on. But borderlines may feel that they have an internal emptiness, that is, they don't really know who they are. And the worst part is that void internally can't be filled.

  They try to fill it with drugs and sex and these unhealthy interpersonal relationships and all sorts of other things, but they don't really fill it. And because they don't fill it as a result, they feel increasingly empty. In other words, if you have emptiness and you're try and fill it by drugs or alcohol and the drugs and alcohol don't work, then in a sense you're even worse off than when you started.

  Paradoxically, a lot of these clients also have a sense of entitlement and even power because they feel so powerless. And these are clients who may go to their criminal defense lawyer and drive them crazy because they feel so helpless and powerless and they feel no one's ever listened to them that they really attach themselves to their criminal defense lawyer and become overly needy, perhaps to the point of even jeopardizing their own case.

  The next criteria is inappropriate, intense anger. This was noted somewhat, but these are clients with difficulty controlling their anger. They may be very rageful. They're hypersensitive to everything. As you can see from these criteria, there's a lot of overlap which is why it's so important to understand each criteria separately, but also to understand them systemically as a whole.

  Many of these clients just feel that they're at war with the entire world. They're always angry as I said, and much of it is inappropriate. And we see these criminal defense lawyers, you're trying to help your client, you return telephone calls, you're patient, you meet them an extra two or three times when they don't need to be met at your office. And yet those clients are somehow just beneath the surface always angry and irritable and think you're not doing enough for them.

  Also, these clients respond disproportionately and rapidly, that is they have raw skin. That's the idea that they seem to be so hypersensitive that their hypersensitivity, when they think they've been wronged results in this intense anger or emotionality. Many of these clients also have transient stress related paranoid thoughts.

  As I mentioned earlier, the first couple of personality disorders, including paranoid, schizoid, and schizotypal also have psychotic ideation. We see it here as well. Psychosis means out of touch with reality. That's the best definition, and it's characterized by hallucinations and delusions. Many of the clients with borderline personality disorder do have this and they become at times quite paranoid, especially when they're under stress.

  They can be very suspicious, guarded. They may have a little trust in others and they can hold grudges. You do something such as forgetting to return a phone call to the client and then you call them back the next day or two and you explain, "I was very busy. I was on trial. I had another mitigation client," whatever, and the person with a borderline personality disorder may become very angry and paranoid thinking you are out to get them.

  They may become suspicious, even though you previously had a good working relationship with the individual. Some may also have severe dissociative symptoms, which may also be very serious. So it's very important because if any other client had a psychotic issue with them such as, because of a diagnosis of schizophrenia or bipolar disorder, the criminal defense lawyer would be all over thinking, of course, impaired capacity in terms of impaired decision making.

  And really, we have to think about this for persons with borderline personality disorder as well because their impaired judgment is clearly understood and better construed in the context of these symptoms and especially psychotic ideation.

  Now, I also want to introduce a few things that are not in the DSM-5 because I think it's crucial to understanding the borderline, and one is cognitive dysregulation. Cognitive means thinking. Cognition is about how we process information, information about ourselves and things around us. It includes short-term and long-term memory and so on.

  Borderline seem to have difficulty with processing information. They have confusion, self-doubt. This leads to terrible disorganization of their daily lives in-attention, poor focus. They're often preoccupied because of this and there can be distortions of their self, that is cognitively they may see themselves not as they really are.

  In other words, we want to understand not only the client's emotional dysfunction, right? But we got to understand their cognitive dysregulation. That is how they process information is also dysfunctional and even pathological. Borderlines also communicate in a dysfunctional way. This is something else you won't find in the DSM, but I think it's crucial for lawyers to understand this.

  The borderline says to you, "I'm fine," and what they really mean is, "I'm not fine. I need help." They say to you, "I'm just tired," and what they really mean is, "I just can't take this anymore. I can't take this psychological pain. I'm suffering." They say, "I already ate," and what they really mean is, "I'm trying to starve myself." They say, "Go away. Just leave me alone," and what they really mean is, "Show me enough you care to stay away or to really help me in some concrete way."

  They say, "I'm just cold," and they really mean, "I don't want you to see the scars on my body because of the self cutting." They say, "I promise I'm better. I feel much better today," and what they really mean is, "It's just never been this bad." They say, "Oh, I'm okay." And what they really mean is, "I just want to die."

  In other words, how they communicate with themselves and friends and family is very indirect and very dysfunctional and it's important for understanding this when undertaking the evaluation. Another very important thing that's not in the DSM is something called the quiet borderline. And this is a diagnosis in which the borderline may be seen as very depressed or anxious or isolated or withdrawn, but really the diagnosis is there.

  These are individuals who don't contend with their borderline psychopathology in an external way. In other words, when they become anxious or nervous because of the criteria that we noted before, they don't externalize it but rather they contend with it through their own coping mechanisms internally when they're very quiet about it.

  It's very important to understand, because as I said, many of these people are understood to be very just depressed or withdrawn and that's why you really need a clinical interview in the context of the mitigation evaluation in order to understand who the person is and what their issues really are.

  I have some other slides that you can look at during the CLE. I'm not going to read them. They're also from the National Institute of Health, but I included them to give you a broader understanding of what these criteria are and some examples with them. What I want to look at now are special considerations of the borderline and particularly in the context, obviously, of mitigation for criminal defense lawyers.

  First, research has shown that outcomes can be quite good for people with borderline personality disorders, particularly if they're engaged in treatment. With specialized therapy, most people with borderline personality disorders find their symptoms are reduced and their lives are indeed improved. Although not all symptom may ease, there is often a major decrease in problem behavior and suffering.

  Under stress, some symptoms may come back. When this happens, people with BPD should return to therapy and other kinds of support. Many individuals with BPD experience a decrease in their impulsive behaviors in general, in their 40s. It's very important to note that this is not only a very identifiable and useful diagnosis for mitigation purposes, but we also understand who these people are and specifically what can help them and where they're going to be in five and 10 years from now.

  The problem is the demographics is that the roughly 75% of these individuals are female, but it means that a quarter are male and when is the last time you saw a male criminal defendant in your office with a diagnosis of borderline personality disorder? And I would venture to say almost never.

  In other words, this is frequently being missed out on and we know that because 1.6 to around 5.9% of the population have this diagnosis and that's more than schizophrenia. About 10% of these individuals have this diagnosis end in death. Often these clients have been victimized through sexual or other kinds of abuses in childhood and that's certainly true of the client who we were talking about, the 34-year-old woman who's stealing prescription pads from her father's medical office.

  These clients often have self-destructive behaviors in terms of drugs or very unhealthy interpersonal relationships, which we also saw with the client. And I always ask criminal defense lawyers when I teach, just to test themselves, "How often do you see this with clients in general or clients that you have in your office or that you're preparing mitigation for?"

  These clients have almost always, as I noted, other issues that very much negatively impact their lives, including other serious mental health problems, depression, anxiety, eating disorders, learning disorders, including severe learning disorders that may have reflected severe developmental delays and deficits.

  Some clients really look like they have attention-deficit/hyperactivity disorder because of their constant level of intense distraction. And many of these clients have really come from situations where there's been terrible family dysfunction or alcoholism or drugs in the family in various ways.

  It's also very important to note that with these clients, many of these symptoms can be really explained in a positive way as well. You can't really do that for other diagnoses, but many of these clients who are overly sensitive and can become quite unstable. It also shows that they could be very quite empathic and very kind and considerate of other people in a very paradoxical way.

  Their impulsivity may make them very spontaneous and excitable. They may lack boundaries, but it may mean that they also have ways to identify and interact with other people. They may have terrible fears of abandonment, but fears of abandonment may also mean they have strong personal attachments to friends and family.

  So one of the things about this diagnosis is that you can really turn around this diagnosis in a positive way when doing the mitigation report and explaining not only their negative aspects of their lives and so on, but also show how positive aspects of this have impacted their lives.

  Many of these clients, as I noted, because of this disorder really undermine their own best interests. They may refuse good legal advice and undermine their lawyer's strategy. They never feel satisfied. They may be exceedingly needy and so on. And it's very important for lawyers to really be aware of their counter-transference, that is the feelings that come into their mind when dealing with these difficult clients.

  And it's something that I've written about in my books and lecture elsewhere about also because really can help the client, not only with this particular client, but help the lawyer with their private practice in general, to help the lawyer really contend with this client in a healthy way while also providing proper attention to other clients and legal issues and memorandums of law that they have to write and so on and so forth.

  What I want to look for the remainder of the time is specific mitigation considerations for persons with borderline personality disorder. First, borderline personality disorder is perfect for mitigation. Usually, major mental health problems are not, right? You're just using that, I wouldn't say as an excuse, but as an explanation of who they are in their judgment and so on.

  But with borderlines, especially with this case that I've given you, this woman is stealing her father's prescription pads from the medical office, dovetails exactly with her criteria. We know exactly why she's behaving this way. Even she understands it to some extent and it really helps explain her conduct.

  Many of these clients really have a history of this kind of emotional dysregulation, poor decision making and so on. And it's not as if the criminal issue stands in isolation, but rather as a larger pattern of decision making and behavior and conduct often for many, many years that helps us to really place into context this current problem. And that doesn't mean that the person with borderline personality disorder doesn't have a history of criminal problems.

  In fact, there is clearly a tendency, especially those with impulsivity in the areas of drugs, alcohol unhealthy sexual relationships and so on to indeed have a history of criminal conduct in other areas, many of these clients may appear high functioning. And I saw this with this particular 34 year old, but in fact, they're low functioning.

  By that, I mean, even though this client is working in her father's office every day, she's taking care of her eight-year-old daughter and so on, these clients you just scratch underneath the surface they're extremely fragile and vulnerable, and there's a real human pathos that you can relate to for these clients.

  There are many treatment options for these clients, which is also perfect for mitigation, in particular dialectical behavior therapy sometimes called DBT. It specifically looks at the client's mental health criteria within borderline personality disorder and helps develop life skill strategies for coping in everyday situations with family, work and so on.

  Many of these clients you really have to disabuse the prosecutor and judge of biases and prejudices because of their behavior. Many of these clients are thought to be simply manipulative or almost psychopathic or coercive, and there is certainly that element within borderline personality disorder.

  However, it needs to be understood in the context of specific criteria that helps us understand who they are and their mental health problem just as we want to understand the history perhaps of a person with diabetes, their pancreatic dysfunction, their cultural patterns of poor eating within a family, perhaps the person has been eating poorly or go eating to sweets or other unhealthy foods because of anxiety or stress.

  Just like we want to understand a person's history of eating habits and health and so on to fully understand where the diagnosis of diabetes comes from, so too in the case with persons with mental health problems including, of course, borderline personality disorder. It's also extremely important to understand this because in some cases we see people with borderline personality disorder who clearly have had no other mental health issues in the past.

  And by that, I mean the person has been functioning generally in a what I would call stable pattern, okay? In other words, they have a job that they have held for five years. They don't get along great with their family, but they show up for holidays and they keep in touch with parents and siblings. They may have had the same partner for many years and so on. And then this criminal issue comes up.

  This is why I noted the extra criteria of quiet borderline. These are people who probably present as kind of depressed and sad, somewhat isolated, not so much engaged in activities and community and interpersonal relationships, and so when the criminal issue comes up, it doesn't look like they have a history of mental health problems, but really they do. And in fact, many of these individuals have not sought proper psychiatric support and maybe anathema to their cultural background.

  The diagnosis of borderline personality disorder is terribly stigmatized and it's really something that people are somewhat reluctant to talk about in a very open way. And that was certainly true for the client who we had. This was a woman who had been reacting to the trauma, really the intergenerational trauma from her family who had, as I noted, survived persecution in Eastern Europe.

  She had been contending with her own internal, emotional and cognitive dysfunction and trying to find her way in the world. But the truth is she had not really had proper psychiatric care. She had had some problems for which she was referred to a counselor or a therapist here and there, but it's really different than having the problem accurately identified and then accurately identifying how the symptoms or criteria really inform the person's behavior and thinking and feeling and general conduct and judgment.

  It's also very important to understand that usually with mitigation, there are standard considerations for strategy. And I have this in other CLEs, but I'll mention it here. We often think, "Did this criminal defendant undertake this conduct because of an aberrant decision? Was it misguided behavior? Just an error in judgment? Was it foolish? Did it happen in an unthinking moment?" And so on.

  With borderline, we're not really looking at momentary decisions or poorly impulsive decisions just because of a single thing that happens, although it can occur. What we're looking at is, in contrast, a much broader scope. We're looking at a holistic understanding of this person's decision making and conduct in a much broader way given their development, family, educational background, vocational direction and so on.

  And what we really want to do is understand that this person has had a history of impulsivity or misguided behavior or foolish judgment and so on, not just with regard to this criminal issue, but with regard to their behavior and decision making very generally. And that these things in general probably contributed to a diminished capacity because of these cumulative life stresses over not just weeks and months, but over many, many years.

  That's why it's so important for these kinds of clients, as I said before, to really disabuse the prosecutor and judge of the sense that they're evil or bad. That these are people with sincere and well researched and understood mental health problems. And while we're still in the early stages of understanding psychiatry, we're probably in the equivalent of an adolescent stage, we have decades and decades of research and clinical understanding that still has to progress.

  We certainly have a sufficient understanding of persons with borderline personality disorder to be able to look at their life from their earliest stages of development or even prenatal development, given their family culture, supports and so on throughout their early childhood periods, latency, adolescents and young adulthood to look at how they have progressed, both in very positive ways in their accomplishments, how they've been able to cope and in particular specific coping mechanisms, which we sometimes call resiliency versus how they have at times felt terribly overwhelmed and unable to cope.

  How they have felt that their decisions have always been ones that have been self injurious and have undermined relationships and jeopardized their progress in their workplace and so on. What I'm trying to say here is that in some sense we want to use mitigation quite generally for these kinds of clients, but perhaps usual mitigation strategies that we employ, we need to rethink because we're not just looking at a specific instance of harm.

  We're looking at this person's life generally. And that's so true in this case. This woman, it's not just that over a period of many months she's stolen all these prescription pads for her boyfriend simply so her boyfriend would remain in a relationship with her and her boyfriend could sell these prescription pads on the street. It's much more complex than that.

  It reflects this woman's history of dysfunctional interpersonal relationships and poor decisions and impulsivity and so on and how she relates to these very self destructive individuals, such as her boyfriend in an effort to reclaim some sense of identity or stability in her life so that she can feel secure. And if you think about it, of course, it's really horrible. It's terribly pathetic.

  I mean, this boyfriend is very destructive to her, but it really points to a larger pattern of behaviors in this person's life that we can write in the mitigation report that really then in turn contextualizes the criminal issue. Really there are a wide set of mitigation considerations that I use in any case, and I have included them here because it's so important with borderline personality disorder and I'll go through them quickly.

  The first is, what did the client's past look like? What roles did the client play? In other words, who is this client outside of the criminal issue? How does this borderline function in her family at the age of two, three, four, as an adolescent and so on. Clearly with such individuals, past is prologue. In other words, there's a history of what this person was like that helped us inform and relate to their current functioning.

  Next question, will the client likely repeat this behavior? That's very important for borderlines because we have specific therapeutic supports and intervention, such as dialectical behavior that can very much help them. Will incarceration promote deterrence? Another huge mitigation consideration. For person with borderline personality disorder, probably not. They need specific treatment programs.

  What will promote justice and promote respect for the law? It's important to understand that for the borderline they don't commit these crimes because they're oppositional. It's not an oppositional defiant disorder phenomenon. It's a phenomenon of emotional and cognitive dysregulation. What will the client's experience be like in jail?

  Well, for a person like our client, the 34-year-old woman who suffered such terrible trauma already, how is she going to cope in jail? How is she going to become a better mother to her eight-year old? How is she going to possibly contend with her symptoms while incarcerated? Does the client require educational, vocational or medical or psychiatric assistance?

  This is almost always a yes for people with borderline personality disorder. They need all kinds of supports and assessments and interventions that will help them get from point A to point B to point C to really become rehabilitated. And in fact, rehabilitation for such individuals is on the horizon. It is a real possibility.

  It's important that borderlines really accept responsibility for what they've done, that they really show remorse and regret because sometimes borderlines, as I said, because of their emotional dysregulation, can be quite manipulative and coercive and they may try to squirm out of responsibility by explaining it or justifying it and so on. And this is a pattern that the client has probably done in the past, trying to justify their behavior.

  What we want to do to is say to the borderline, "Look, we understand that these are serious mental health problems. We want you to get help. These are programs for you, but at the same time you need to show contrition. You need to show and take ownership of your behavior in this criminal matter."

  So this really dovetails into what is a fit punishment for people with borderline personality disorder given their particular criminal issue. What is the least harsh alternative and supports outside of jail, including family, mental health clinics and programs and so on and who's going to be harmed.

  This client is going to be further harmed. In this particular case she had an eight-year old and despite the client's impulsivity and problems in life, she's providing generally positive and healthy support for this eight-year old who does not have a father who's immediately in the picture. And most importantly, what will the client's future look like? Well, this client is a client whose future would best be understood in the context of mental health support and intervention.

  Finally, the 10 Rs of mitigation. I have this in all my CLEs. It's important to understand, especially for borderlines, exactly what has occurred, because borderlines sometimes have difficulty leading the narrative of their life and the particular criminal issue and understanding mens rea, not just the client's intent in the crime, but more broadly their volition, their decision making. To understand the client's past and history and to what extent we can really justify and explain in the context of their mental health issues where they've really gone astray.

  What I've tried to do today is provide an overview in this hour of borderline personality disorder for criminal defense lawyers to use as a key mitigation consideration and as a key mitigation strategy, understanding, of course, the criteria and challenges and how these are individuals whose symptoms and presentation and decision making really serve to explain how they got into so much trouble.

  And more importantly, how we can help them within the context of the criminal justice system, given specific therapeutic interventions and consideration for the real challenges and traumas and obstacles that they have faced and how hopefully in future years they will find greater sense of stability and contentment and safety in their lives and their families. Thank you very much. And as I said at the beginning, please don't hesitate and I would be happy to send a redacted copy of a borderline mitigation sample.


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