Emerging Issues in Forensic Services: Legal and Practical Implications

1. Emerging Issues in Forensic Services: Legal and Practical Implications FMHAC 2007 Annual Conference John Petrila, J.D., LL.M. Professor, University of South Florida petrila@fmhi.usf.edu

2. Context Then and Now • The major forensic issues 25 years ago • Competency to stand trial • Responsibility/insanity defense • Decentralization

3. Context Then and Now • Today • Forensic services are decentralized • “Criminalization” is one of the three dominant issues in public mental health • Forensic issues are at the heart of public mental health

4. Today’s Talk • The emergence of risk assessment tools • The emergence of therapeutic courts • The “remedicalization” of civil commitment

5. Categories of Forensic Instruments • Forensic Assessment Instruments (FAIs) • Directly relevant to a legal standard and designed to assess the individual against that standard (MacArthur Competence Adjudication Tool—Criminal Adjudication; Poythress, et al 1999) • Forensically relevant instruments • PCL-R; Malingering • Clinical measures • E.g., Wechsler Adult Intelligence Scale (WAIS-III); MMPI/MMPI-2

6. Evolution of Forensic Instruments • 1960s: Forensic assessment was like clinical assessment • Diagnosis controlled (McGarry 1965) • No research; no standards

7. Evolution of Forensic Instruments • 1970s • The development of competency assessment tools • Checklist of competency to stand trial • Competence screening test • Georgia court competency test • Interdisciplinary fitness interview

8. Evolution of Forensic Instruments • Additional competency tools • Adult and juvenile right to remain silent and avoid self-incrimination (Grisso) • Criminal Responsibility Assessment Scales (Rogers) • Child custody evaluation measures • Bricklin Perceptual Scales; Perception of Relationships Test (Bricklin) • Focused on factors relevant to child custody decision making • Limited validity data, inadequate test manuals etc (see Melton, et al for a critique)

9. 1990s: FAIs and FRIs Explode • Four major foci • Risk • Malingering • Competency • Psychopathy

10. Four Types of Risk Assessment • Unstructured Professional Judgment • Anamnestic Risk Assessment • Actuarial Instruments • Structured Professional Judgment

11. Risk Assessment Instruments as Growth Industry • Psychopathy Checklist-Revised (Hare, 1991) • Rapid Risk Assessment for Sex Offender Recidivism (Hanson, 1998) • Minnesota Sex Offender Screening Test (Epperson, et al 1998) • Sex Offender Risk Appraisal Guide (Quinsey, et al, 1998) • Sexual Violence Recidivism-20 (Boer, et al, 1997) • Static-99 (Hanson & Thornton, 2000) • Violence Risk Appraisal Guide (Quinsey, et al 1998) • HCR-20 (Webster, et al 1994) • Spousal Assault Risk Assessment (Kropp, et al 1995)

12. The Good (and the Bad) • Low reliability for unstructured decisions • Kappas 0-.34; MDD, Panic (Steiner et al., 1995) • High reliability for structured decisions • Poythress et al. (2002) – MacArthur Competence • IRR = .75-.90 for features of competence • More consistency across cases and evaluators

13. Some Major Issues • Over-reliance on static factors • Instruments are not predictive for the individual • The use of a faux actuarial approach • Myth presented as fact • Risk assessment and treatment are not integrated

14. Is This Science? • The RRASOR is “highly predictive of sexual offenses” (In re Wilson, 2000 WL 156908) • “Regardless of whether or not the actuarial instruments in this case are novel (the VRAG, the MnMost), it appears that the relevant scientific community generally accepts them…Defendants’ complaints go to the weight of the evidence and not the admissibility of the testimony” • Washington v Strauss, 20 P. 3d 1022 (2001)

15. “Actuarial” Is A Relative Term Apparently • The VRAG was “integrated” with clinical information by the prosecution’s expert • As a result, the probability of future risk was increased by “at least 10 percent” above the VRAG score • The court ruled for the prosecution (State v Kienitz, 585 NW 2d 609, Wis App 1999)

16. Some Issues With Psychopathy • Construct drift • Language: “Psychopathy” in sex offender statutes and “psychopathy” may be two different things • Legal Irrelevance: It has doubtful utility in capital cases and juvenile waiver cases • Unwarranted downward extension: Its validity with adolescents (particularly) and women (perhaps) is at least questionable

17. Psychopathy and Expert Testimony(or how plastic fruit is relevant) • “The psychopath, as I say, has the ability to look very normal. However, if you know what you are looking for, it is kind of like seeing a bowl of fruit, and you say to yourself, gosh, that bowl of fruit looks wonderful, it looks very good. • But when you get close to the bowl of fruit and pick it up you realize that it’s fake fruit. And the psychopath is a lot that way.” (Government witness in U.S. v. Barnette, 1998)

18. Or Maybe It Was Lunch… • When the defendant was talking about the murders, and none of us had lunch, and the prison guards brought in a sack of lunch for the defendant. And I was struck by defendant’s ability to sit and discuss his actions during the murders and at the same time he was not missing a bite on his bologna and cheese sandwich. (Barnette)

19. You Know, Your Honor, The More I Thought About It… • Defendant in Barnette scored 0 on IQ question asking for definition of compassion • Expert did not consider it originally but “later it kind of in my mind lended support to one’s ability to really understand what feelings are”

20. Maybe the Score Isn’t That Important… • Though the juvenile’s score (on the PCL-R) was “slightly below the cutoff used to classify individuals as psychopathic…it suggested a considerable risk for violent or criminal recidivism and a relatively poor prognosis for psychological interventions” (U.S. v. Doe, 2000)

21. The Myth of Untreatability • Treatment may make psychopaths more not less prone to violence (Rice, et al. 1992) • “We believe that there is no evidence that any treatments yet applied to psychopaths have been shown to be effective in reducing violence or crime…the reason…is that psychopaths are fundamentally different from other offenders and that there is nothing ‘wrong’ with them in the manner of a deficit or impairment that therapy can ‘fix’” (Harris and Rice, 2006)

22. Treatment May Matter • Skeem, Monahan and Mulvey conducted secondary analysis of MacArthur risk data (871 civil patients; 72 psychopathic and 195 potentially psychopathic) • Psychopathic patients appear as likely as nonpsychopathic patients to benefit from adequate doses of treatment, in terms of violence reduction.

23. Why Does the Myth Matter? • Stigmatization (particularly with adolescents) • We’ve heard this before (schizophrenia, e.g.) • It assumes that deficiencies in the individual not in our technology are to blame • It makes future research less likely • “Testimony by mental health professionals that psychopaths are untreatable offers judges a hard-to-resist justification for the imposition of a harsher disposition…” (Zinger & Forth, 1998)

24. Lack of Integration of Risk Assessment and Treatment • Risk is the ultimate clinical issue today • Risk is the lever for treatment access • Treatment plans often ignore risk assessment • A focus on dynamic and contextual factors is critical

25. Brief Risk Assessment Tools • Most instruments take time to administer • Most instruments have been normed on in-patient populations • Most focus on static factors • Most risk assessments occur in community settings

26. The Classification of Violent Risk (COVR) • An interactive software program designed to estimate the risk of an acute civil psychiatric patient becoming violent to others over the next several months after discharge into the community. • Uses a classification tree method • Brief chart review and 10 minute patient interview • Generates estimate of violence risk plus confidence interval for the estimate • Relatively good at sorting into low and high risk cohorts for community discharge

27. Short-Term Assessment of Risk and Treatability (START) • 20-item clinical guide for the dynamic assessment of seven risk domains (violence to others, suicide, self-harm, self-neglect, unauthorized absence, substance use, and victimization). • Takes into account both risk and protective factors and dynamic as well as static factors • Assessment done with manual as guide • Good inter-rater reliability

28. Structured Assessment of Violence Risk in Youth (SAVRY) • A risk assessment tool composed of 24 items in three risk domains (Historical Risk Factors, Social/Contextual Risk Factors, and Individual/Clinical Factors) • For individuals 12-18 years of age • No assigned numeric values or cutoff scores • Coding and recording information for the SAVRY takes about 20 minutes

29. HCR-20 • 10 Historical Items (previous violence, age at first violent offense, family and vocational background, etc.). • Five Clinical Items (current symptomatology and psychosocial adjustment). • Five Risk Management Items (release and treatment plan, necessary services and support). • Low, moderate, or high risk as conclusion • Problem: Includes administration of the PCL-R

30. Summary • Unstructured risk assessment is negligent • Actuarial tools are often misused • Clinical modesty is an important virtue • Psychopathy exerts undue influence • Major challenges for the future include integrating treatment with risk assessment and the further development of brief risk assessment tools

31. Emergence of Therapeutic Courts • Therapeutic jurisprudence: • A way of looking at law that examines “the extent to which substantive rules, legal procedures, and the roles of lawyers and judges produce therapeutic or antitherapeutic consequences” • Wexler and Winick, Essays in Therapeutic Jurisprudence (1992)

32. 1991 Today about 1,000 Therapeutic Punishment routine Usually felony courts Probation routine Federal support/conceptual model 1997 Today, about 135 Therapeutic Punishment varies Sometimes felony, sometimes misdemeanor, or both Mixed forms of supervision Little federal support/no single model Drug Cts Mental Health Cts

33. Court Characteristics • Aspire to achieve non-traditional goals, e.g. sobriety or access to treatment or cultural relevance • They are part of diversion (or are they?) • Aspire to create partnerships between service agencies and the legal system • “Formal lawyering” is viewed as a barrier to achieving goals • The judge as a member of the treatment team

34. Why This Approach Now? • Prevalence of mental disorder • The “revolving door” defendant • Judicial dissatisfaction with service system • Failure of traditional legal vehicles to create access to treatment

35. The Role of Counsel and Judge • “Specialized courts…are manifestations of a change in the role of the judge from ‘dispassionate, disinterested magistrate’ to that of a ‘sensitive, emphatic counselor” • Rottman, Does effective therapeutic jurisprudence require specialized courts (and dospecialized courts imply specialist judges? 37 Court Review 22.

36. The Role of Counsel and Judge • In therapeutic courts, “the lawyers also have new roles. The prosecution and defense are not sparring champions, they are members of a team with a common goal: Getting the defendant off drugs. When this goal is attained, everyone wins. Defendants win dismissal of their charges…the public wins safer streets and reduced recidivism” • Kaye, Lawyering for a new age. 67 Fordham Law Review 1.

37. A Dissenting View • “A reduced advocacy role for defense counsel is not warranted” • Defendants face coercive interventions and possible punishment • The “therapeutic relationship” between the judge and defendant may further compromise the role of counsel • Boldt, Rehabilitative punishment and the drug treatment court movement. 76 Wash U. Law Quarterly 1206

38. Could They Be This Bad? • The scandal of America’s drug courts is that we have rushed headlong into them—driven by politics, judicial pop-psychopharmacology, fuzzy-headed notions about ‘restorative justice’ and ‘therapeutic jurisprudence’ and by the bureaucrats’ universal fear of being the last on the block to have the latest administrative gimmick. We have embraced the drug court panacea without asking, let alone resolving the most basic of questions: …do drug courts work?” Hoffman, Commentary, the drug court scandal, 78 N.C.L.R. 1437 (2000)

39. Existing Courts Differ • Approximately 135 in the United States • Referral process/time to admission varies • 36 clients (median); 3-1,977 as range • Charges: • 43% primarily misdemeanor court • 14% primarily felonies • 43% mixed • (taken from Redlich, Steadman, Robbins, Monahan, & Petrila)

40. Client Characteristics (7 Courts) BJA/MHC U.S. Detainees Age 36 31 % Female 40% 12% % White) 58% 44% *Prison and Jail Inmates at Midyear 2003, Bureau of Justice Statistics, July 13, 2004

41. Supervision of Defendants • Mixed forms of supervision (mental health & criminal justice) common • Status hearings vary: Majority either weekly or monthly • Use of jail as sanction • 8% never use it • 33% used jail less than 5% of cases • 39% use jail between 5%-20% of cases • 18% use jail between 20%-50% of cases • 2% used jail in more than one-half of cases

42. What Do We Know? • Courts may increase access to services • Courts may reduce recidivism • Courts may be viewed as non-coercive • Courts may increase judicial satisfaction • Courts may create new political alliances

43. Potential Problems • Potential sacrifice of rights • Potential for criminalization of mental illness • Potential for jumping the queue • Potential for increasing jail time

44. Rights Issues • Sacrifice of rights • A loss of perspective • “Your honor, I really don’t think 1 year is enough, I think you should extend probation by 2 years”. (A defense attorney in chambers before mental health court resumed, responding to a suggestion by the prosecutor that probation be extended by 1 year)

45. Duration of Oversight • In misdemeanor courts, defendant may have 1-3 years of oversight • In plea and probation felony courts, issue may be less significant • The emergence of juvenile mental health courts

46. Are These Courts Diversionary? Mean Time from Referral to Referral Decision CA 1 1 day NC 11 days PA 47 days NV 19 days NY 38 days ID 21 days CA 2 36 days Total 29 days

47. What Do We Need to Know? • Whether these courts work, for whom, and why • What is the impact of the judge as therapist? • Do they have sustainability? • Is this a logical way to run a mental health system? • Impact over time of new political alliances

48. It makes people better Mental illness is a disease The criteria must be vague Doctors should decide Result is treatment It takes away liberty Mental illness is only a myth The criteria must be specific Judges should decide Result is worse than prison Civil Commitment At the Beginning: A Clash of Paradigms

49. The Outcome • The quasi-legalization of civil commitment • Redefined as a deprivation of liberty • A shift from medical to legal decision making • A shift from diagnosis to dangerousness • The birth of mental health law and its segregation from general health care law

50. The “New” 21st Century Medical Model of Commitment • Three major developments • Medical criteria for in-patient commitment • Grave disability as the initial expansion of “danger” • Debate over out-patient commitment • Sexual predator laws • Why is this relevant? • Changing clinical roles • Risk assessment and actuarial instruments