Emerging Issues in Forensic Services: Legal

and Practical ImplicationsFMHAC 2007 Annual Conference

John Petrila, J.D., LL.M.Professor, University of South Florida

petrila@fmhi.usf.edu

Context Then and Now

The major forensic issues 25 years ago Competency to stand trial Responsibility/insanity defense Decentralization

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

Today’s Talk

The emergence of risk assessment tools

The emergence of therapeutic courts

The “remedicalization” of civil commitment

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

Evolution of Forensic Instruments

1960s: Forensic assessment was like clinical assessment

Diagnosis controlled (McGarry 1965)

No research; no standards

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

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)

1990s: FAIs and FRIs Explode

Four major foci Risk Malingering Competency Psychopathy

Four Types of Risk Assessment

Unstructured Professional Judgment

Anamnestic Risk Assessment

Actuarial Instruments

Structured Professional Judgment

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)

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

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

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)

“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)

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

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)

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)

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”

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)

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)

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.

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)

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

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

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

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

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

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

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

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)

Drug Cts Mental Health Cts

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

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

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

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 do specialized courts imply specialist judges? 37 Court Review 22.

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.

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

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)

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)

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

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

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

Potential Problems

Potential sacrifice of rights Potential for criminalization of mental

illness Potential for jumping the queue Potential for increasing jail time

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)

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

Are These Courts Diversionary?

Mean Time from Referral to Referral Decision

CA 1 1 dayNC 11 daysPA 47 daysNV 19 daysNY 38 daysID 21 daysCA 2 36 daysTotal 29 days

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

Civil Commitment At the Beginning:

A Clash of Paradigms 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

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

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

In-Patient Commitment: The Wisconsin 5th Standard

Mental illness Incompetent to make treatment decisions Substantial probability that treatment necessary to

prevent further deterioration Substantial probability that will lack necessary

services if left untreated Impact of non-treatment on condition

Wisconsin Supreme Court (2002)

“By permitting intervention before a mentally ill person's condition becomes critical, the legislature has enabled the mental health treatment community to break the cycle associated with incapacity to choose medication or treatment, restore the person to a relatively even keel, prevent serious and potentially catastrophic harm, and ultimately reduce the amount of time spent in an institutional setting.

This type of ‘prophylactic intervention’ does not violate substantive due process.”

In re Dennis H, 647 NW 2d 851 (2002)

Lessard v. Schmidt (1972)

It is obvious that the commitment adjudication carries with it an enormous and devastating effect on an individual’s civil rights…just as serious, are the difficulties that the committed individual will face in attempting to adjust to life…following release Lessard v. Schmidt, 349 F. Supp. 1078 (ED Wis)

AOT: Kendra’s Law

18 years or older Mental illness Unlikely to survive in community alone History of treatment non-adherence Unlikely candidate for voluntary treatment

Kendra’s Law, continued

Needs AOT in order to prevent a relapse or deterioration which would be likely to result in:

a. a substantial risk of physical harm to the individual as manifested by threats of or attempts at suicide or serious bodily harm or conduct demonstrating that the individual is dangerous to himself or herself; or

b. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm

New York Court of Appeals

Access to treatment “may enable patients who might otherwise require involuntary hospitalization to live and work freely and productively through compliance with necessary treatment.”

Legislative interest in “warding off the longer periods of hospitalization that, as the Legislature has found, tend to accompany relapse or deterioration.” In the Matter of K.L., 1 NY3rd 362 (2004)

Does It Work?

Long-term commitment, with long-term access to services, appears to decrease hospitalization and jail time while improving health status (Swartz, et al. (2001), A randomized controlled trial of outpatient commitment in North Carolina. Psychiatric Services, 52: 325-

329).

However…

Applied to comparatively few people (New York an exception)

Lack of enforcement a major issues Other implementation issues (e.g.

transportation by law enforcement) Medication non-compliance a separate legal

issue

Impact on Clinical Assessment

“Risk assessment” in a medical model statute focuses on clinical issues and impact on future functioning

Diminished role of “risk” Similar to a traditional clinical exam Medication generally considered separately and

capacity to consent a separate but core issues State law the likely source of law in civil contexts Assessment of capacity will be key

Sexually Violent Predators as a Separate Class

Mental disorder, broadly defined Impaired ability to control sexual impulses Increased likelihood of recidivism Indefinite commitment Individual must prove no longer a risk to be

released The central clinical and resource issue: They

come in, but they never leave

We Will Treat You (maybe…)

"[A] small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute] . . . .

In contrast to persons appropriate for civil commitment under the [general involuntary civil commitment statute], sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior.”

Hendricks

While we have upheld state civil commitment statutes that aim both to incapacitate and to treat, we have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others

It would be of little value to require treatment as a precondition for civil confinement of the dangerously insane when no acceptable treatment existed.

Treatment not Required

Treatment promises yield to legislative findings of non-treatability

“there is no broad constitutional right of treatment for persons involuntarily confined as dangerous and mentally impaired, at least where ‘no acceptable treatment exist [s]’ or where they cannot be ‘successfully treated for their affliction” Hubbart v. Superior Court, 19 Cal. 4th 1138

(1999)

This Is (Almost) Just Like Civil Commitment

Individuals committed under SVP statute in Washington have no right to LRA consideration at initial hearing (In re Thorell, 72 P. 3rd 708 (2003)

Legislature could rationally distinguish between individuals committed under the SVP statute and others (SVPs had different, more complex needs)

Summary

Legislatures have more freedom with civil commitment than they have had in 40 years

Civil commitment laws may become increasingly medical

Capacity to provide treatment is lacking in most states

People committed under SVP laws have no real legal expectation of treatment

The drain on resources will only grow