The vast majority of people who experience mental disorders never find themselves negatively involved in the criminal justice system. This text, of course, is focused on the people who do come into contact with this system, appropriately or not.

When people with mental disorders do become involved in the criminal justice system, this can sometimes be related to harmful or antisocial behaviors that are separate from symptoms of a mental disorder but may be perceived as or related to a mental disorder. Two important considerations when working with the criminal justice-involved population are described in this section: malingering and psychopathy. Both of these issues can impact diagnoses of mental disorders and understanding of a person’s conduct.

Malingering

Malingering occurs when a person fakes or greatly exaggerates symptoms of a medical or mental health condition for some sort of personal gain, such as avoiding a responsibility or attaining some benefit (Psychology Today, 2019). There are many situations where this may occur. A person with a substance use disorder, for example, may falsely report pain to obtain a drug from a medical provider. There are numerous occasions when malingering may occur within the criminal justice system, and some estimates suggest up to 20% of justice-involved people engage in malingering to some degree (Psychology Today, 2019).

Malingering may occur in lower-stakes criminal justice situations, such as when a person exaggerates mental health symptoms to gain access to special housing in a prison or jail. Of greater public concern are situations when a person reports wholly false information to appear mentally ill and avoid responsibility for criminal actions. However, successfully avoiding criminal responsibility via malingering is quite rare, given the caution around malingering and the resistance of the criminal justice system overall to excusing behavior that is attributable to mental disorders, even when that might be appropriate.

An infamous example of an apparent malingerer was Los Angeles’s “Hillside Strangler,” Kenneth Bianchi (figure 2.23), who horribly tortured and murdered at least 10 young women in the late 1970s. Although he convincingly claimed to have the rare diagnosis of dissociative disorder, or multiple personality disorder, Bianchi was disbelieved by skeptical law enforcement officials. Bianchi’s defense story was debunked with a later evaluation, and he eventually pled guilty to his crimes (Biography, 2023).

Psychopathy

Psychopathy is a condition or set of traits that is clinically recognized, but it is not a DSM diagnosis. Examples of psychopathic traits include a lack of empathy, callousness, deceitfulness, and grandiosity (Burton & Saleh, 2020). It is important to be familiar with these traits when working in the criminal justice system, where they are found in much higher numbers than in the general population. According to the American Psychological Association, “About 1.2% of U.S. adult men and 0.3% to 0.7% of U.S. adult women are considered to have clinically significant levels of psychopathic traits. Those numbers rise exponentially in prison, where 15% to 25% of inmates show these characteristics” (DeAngelis, 2022).

Dr. Robert Hare created the Hare Psychopathy Checklist-Revised (PCL-R), a tool that screens for these traits to aid in diagnosis. The tool is essentially a “checklist” of various traits related to an overall “score” of psychopathy. Traits reviewed by the checklist include things like superficial charm and cunningness (Encyclopedia of Mental Disorders, 2024). Generally, the PCL-R is used by mental health professionals working with forensic populations (incarcerated people or people involved in the criminal justice system) to determine their level of risk, because people who exhibit these traits are more likely to engage in criminal activity (Risk Management Authority, 2019).

Licenses and Attributions for Additional Behavioral Considerations

Open Content, Shared Previously

“Additional Behavioral Considerations” by Kendra Harding, revised and expanded by Anne Nichol, is licensed under CC BY 4.0.

Figure 2.23. Kenneth Bianchi mugshot by Los Angeles Sheriff’s Department is in the public domain.