The Political Diagnosis: Psychiatry in the Service of the Law

Perhaps one of the positive things to come out of the Kansas v Hendricks wave of sexually violent predator (SVP) commitment laws during the past decade is that our knowledge base on sex offenders has grown tremendously. Much of the research of value in this area has focused on better delineating characteristics of this heterogeneous group of offenders.¹ Our experience with sex offender treatment has also gained ground.^2,3

I begin this article with a silver lining, and bypass the dark cumulus clouds that have been gathering since the US Supreme Court issued the Hendricks ruling in 1997. Presently, there are significant limitations in the field, and the ones causing most of my apprehension lie in the area of sex offender risk assessment and SVP commitment hearings. But the most troubling matter of all has been how these laws have intermingled psychiatric science with public policy.

Sex, violence, and politics

The cause of my apprehension is what the late Michael Crichton referred to as bad science “tricked out” for public policy ends.⁴ To date, there are no rigorous scientifically established means of detecting high-risk sexual re-offending, or of determining whether an individual is a “sexually violent predator.”⁵ Although a variety of instruments have been developed (psychopathy checklist–revised [PCL-R], Static-99, phallometry, Minnesota Sex Offender Screening Tool, and so on), these tests are often challenged in court as not meeting admissibility standards (ie, Frye or Daubert legal standards for admitting expert evidence and testimony). So while the research database has grown, the question remains: is it reliable enough to be proffered as expert testimony? Approximately 10 years ago, a nationally recognized expert in the area did not think so.6 Experts in the field continue to have serious reservations and express caution about the (mis)use of these actuarial instruments for expert testimony.^7-9

Sex Offender Management and Treatment Act

In March 2007, the state of New York enacted the Sex Offender Management and Treatment Act.¹⁰ The new act, Mental Hygiene Law Article 10, is patterned after the sex offender commitment act in Kansas.¹¹ In New York, the jury must find by a unanimous verdict that the sex offender has the now infamous nonpsychiatric diagnosis of “mental abnormality.”¹² What exactly is a mental abnormality? The New York definition states that it is “a condition or disease that makes an individual behave in a way that causes the individual to commit a sex offense and causes that person to have serious difficulty in controlling that behavior.” Thus, embedded in its very definition is that mental abnormality “causes” the proscribed behavior.

So we see that mental abnormality is actually a somewhat tautologically defined legal term. But because forensic mental health professionals are the ones who are tasked with SVP evaluations, they have attempted to give this term meaning within their science. Have these attempts reached a consensus? It would appear that they have not. There continues to be substantial disagreement, for example, about whether antisocial personality disorder alone is a qualifying disorder for commitment under SVP laws.^13,14 In current SVP evaluations, qualifying disorders frequently end up being personality disorder or paraphilia disorders “not otherwise specified,” diagnoses that may be associated with questionable validity and reliability.^15,16 At the very least, this seems to raise concern about civil commitment based on some of the weaker links in psychiatric diagnosis. Furthermore, let us acknowledge the reality that SVP commitment is no ordinary civil commitment. The quid pro quo of liberty in exchange for treatment has been transmuted into indefinite confinement in exchange for treatment efforts.

Since Kansas v Hendricks, many individuals have been committed under SVP laws by the courts, yet the error rate for commitments is unknown.¹⁷ In the business of sex offender risk assessment, false-negative and false-positive errors carry serious consequences, such as miscarriage of justice, violation of individual liberty, stigmatization with the label “sexually violent predator,” or possibly endangering the public. Although the following is only 1 example, it illustrates the tragic circumstances of the very first offender to test New York’s new SVP law.

Junco and junk science

The first individual to test New York’s SVP law was a Mr Douglas P. Junco.¹⁸ Mr Junco had just finished a 15-year sentence for attempted first-degree rape and second-degree assault. For unknown reasons, Mr Junco chose to have a jury trial at his sex offender commitment hearing. Some have noted that juries in SVP commitment proceedings “typically vote to civilly commit, whereas judges tend to form opinions based on the merits of each individual case.”¹⁹ (For a different view on judicial deliberations, see “Blinking on the bench: how judges decide cases.”²⁰)

Despite his unpolished courtroom demeanor (he snickered and yawned throughout the victim impact statements), a 12-person jury found that he did not have a mental abnormality.²¹ Of interest was the observation that “conflicting testimony from mental health experts played a big part in the decision.”²² Jurors, perhaps concerned about the decision they had made, asked the judge to deliver Mr Junco a special admonition: “They wanted me to tell him not to throw away the opportunity they had given him.”²³ Soon after Mr Junco’s release, he traveled to Savannah, Ga, where he was required to register as a sex offender. Other than that, he had no other requirements or necessary supervision. Six months later, in February 2008, Mr Junco found himself facing new charges and a possible life sentence. He was charged with rape, kidnapping, and incest, which allegedly involved an unidentified female in the Savannah area. At the time of this writing, Mr Junco was awaiting trial on the new sex offense charges.

This case seems to be a prime example of when “science and policy have become inextricably mixed to the point where it will be difficult, if not impossible, to separate them out.”⁴ Who can blame jurors for being confused when experts in the field have yet to clarify a legal construct that was “designed to satisfy legislation without any concern for diagnostic criteria that are currently acceptable within the confines of mental health practice”?²⁴ Science must stand on its own to remain meaningful. When science is mixed with public policy agendas, policy invariably dissolves science. The resulting cloudy solution obscures what can be discerned with certainty.

Policy versus psychiatry

When psychiatry-the medical specialty concerned with the diagnosis and treatment of mental illness²⁵-becomes co-opted by a political agenda, it creates an unhealthy alliance. For science-based fields, it is science that will always be the host organism to be taken over by political viruses. In the case of SVP laws, once psychiatry has been taken over by “public policy DNA,” the autonomous functioning, and thus the reliability, of the science is in jeopardy. Furthermore, psychiatry may come to resemble a new organism entirely-one that serves the ends of the criminal justice system.

As technology advances, there is the potential for a neoplastic growth of “risk assessment industries” that will cling to, and feed off, such political trends like scavenger fish on a great white shark. This will lead to more collected data, resulting in greater concern, which then justifies more risk assessment and commitment. Indeed, forensic mental health professionals now have a vested interest in this public policy agenda. It was reported that in California, forensic evaluators “billed the state for millions of dollars” in sex offender commitment evaluations, “with one psychologist bringing home $1.5 million. State officials defend the expense as necessary to defend public safety in the face of inadequate staffing.”²⁶ Note how the public policy emphasis has excluded any arguments about the scientific reliability of the methods, rendering them irrelevant. One trusts (and hopes) that in the United States, sex offenders will be the line at which public policy ceases to shape science. Yet this is not the first time psychiatric science has been drafted in such a manner, nor is the US alone in this tradition.

Dangerous and severe personality disorder

A recent article in Current Opinion in Psychiatry, “Assessment and Management of Dangerous and Severe Personality Disorders,” gave me a chance to further reflect on the phenomenon of political diagnoses.²⁷ Just as in Kansas v Hendricks, high-profile cases led the British government to adopt the term “dangerous and severe personality disorder” (DSPD) to protect the public from individuals who had committed serious crimes but in whom only a personality disorder could be diagnosed. Australia followed suit in the 1990s, after an episode of extreme violence was committed by Garry David. Preventive detention laws were directed, it could be said, at specific-named individuals to protect the public.²⁸

Unless you are already familiar with DSPD, you may be saying to yourself (preferably in a civilized British accent): “Right! What’s all this then about a dangerous, severe personality?” Well, the UK Ministry of Justice and the Department of Health have given us the proper definition. The diagnosis of DSPD can be made if “(1)(a) the patient is more likely than not to commit an offense that might be expected to lead to serious physical or psychological harm; (b) the patient has a severe disorder of personality; (c) there is a link between the disorder and the risk of offending; (2) severity of the disorder is defined as having (a) a PCL-R score of more than 30; (b) a PCL-R score of 25 to 29 with at least 1 DSM-IV personality diagnosis other than antisocial personality disorder; or (c) 2 or more DSM-IV personality disorder diagnoses.”

As you might guess, “there is no agreement in the scientific literature on how to identify those with severe personality disorders.”²⁷ Equally predictable is the conclusion that “evidence for the effectiveness of any intervention for dangerous and severe personality disorders is limited.”²⁷ Of course, despite this limitation, individuals who have been adjudicated as having DSPD can be detained for potentially indefinite periods of time for “treatment” in a secure forensic hospital. If you are developing a strong feeling of dj vu at this point, do not be alarmed. The similarities between the DSPD commitment programs of the United Kingdom and the SVP commitment laws of the United States are striking and are listed in Table 1.

Taking these relatively recent “political diagnosis” commitment acts into consideration, it is not difficult to delineate the historical trend in the criminal justice system during the past 50 or so years. That trend can be summarized as: rehabilitation gave way to retribution, which is now giving way to preventive detention-albeit after full retribution has been achieved. In our current preventive detention stage, one may be inclined to wonder about the reliability of the evaluative instruments and/or tools we currently use to justify such commitments. Given the seriousness of the consequences-indefinite detention-this curiosity does not seem misplaced. The PCL-R, the purported gold standard of tools being used in court hearings, is the subject of debate, revision, and controversy.^29-32

Experts in the field have noted the ease with which PCL-R scores may be “presented in court” in a manner “biased toward the side that called the examiner to testify.”^33(p178) While the PCL-R has found support for its ability to assist in assessing risk of violence and/or criminal behavior in the community, it is also used in ways that are not scientifically supported. Myths and scientifically unsupport-ed uses of the PCL-R are listed in Table 2.³

To be clear, the PCL-R is a well-researched tool, which has spawned innumerable scholarly articles. It is certainly a well-respected instrument and, if used correctly in an objective manner, may be helpful in a forensic and correctional treatment setting. But this is quite different from using it to proffer expert witness opinions in court, where methods must be reliable and data run the risk of being biased.

Conclusions: science and social control

Given the distinct similarities between the SVP laws of the United States and the DSPD laws of the United Kingdom, is it too outrageous to speculate that a psychopathy, or DSPD-equivalent, commitment law might be on the distant horizon in the United States? While this is too hard to predict, it is not at all inconceivable. Remember, the driving force behind such initiatives is usually only 1 highly publicized, egregious offense away. The question will then be, Can American psychiatry embrace yet another political diagnosis at the behest of the criminal justice system? We have the technology. We have the “tricked out” science. We most certainly have the greed. Once bending psychiatric science into a shape that fits public policy becomes acceptable, one more twist or bend in the name of “social control of perceived dangerousness” becomes effortless, and even commendable.

References:

References

1.

Hanson RK, Morton-Bourgon KE. The characteristics of persistent sexual offenders: a meta-analysis of recidivism studies.

J Consult Clin Psychol.

2005;73:1154-1163.

2.

Briken P, Kafka MP. Pharmacological treatments for paraphilic patients and sexual offenders.

Curr Opin Psychiatry.

2007;20:609-613.

3.

Duwe G, Goldman RA. The impact of prison-based treatment on sex offender recidivism: evidence from Minnesota.

Sex Abuse.

2009;21:279-307.

4.

Crichton M. Aliens cause global warming. Lecture given at California Institute of Technology; January 17, 2003; Pasadena, CA.

http://www.michaelcrichton.net/speechalienscauseglobalwarming.html#

. Accessed January 26, 2010.

5.

Sadoff RL, Dattilio FM.

Crime and Mental Illness: A Guide to Courtroom Practice.

Mechanicsburg, PA: PBI Press; 2008.

6.

Zonana H. Sex offender testimony: junk science or unethical testimony?

J Am Acad Psychiatry Law.

2000;28:386-388.

7.

Hart SD, Michie C, Cooke DJ. Precision of actuarial risk instruments: evaluating the “margins of error” of group v. individual predictions of violence.

Br J Psychiatry.

2007;190(suppl 49):s60-s65.

8.

Glancy GD. Caveat usare: actuarial schemes in real life.

J Am Acad Psychiatry Law.

2006;34:272-275.

9.

Rogers R, Jackson RL. Sexually violent predators: the risky enterprise of risk assessment.

J Am Acad Psychiatry Law.

2005;33:523-528.

10.

New York State Division of Criminal Justice Services. Mental Hygiene Law Article 10. Sex offenders requiring civil commitment or supervision. 2007.

http://criminaljustice.state.ny.us/legalservices/ch7_som.htm

. Accessed March 9, 2010.

11.

Kansas v Hendricks,

521 US 346, 117 SCt 2072, 138 LEd2d 501.

12.

New York State Division of Criminal Justice Services. Frequently asked questions regarding New York’s Civil Management Law.

http://criminaljustice.state.ny.us/nsor/som_faqs.htm

. Accessed March 9, 2010.

13.

Vognsen J, Phenix A. Antisocial personality disorder is not enough: a reply to Sreenivasan, Weinberger, and Garrick.

J Am Acad Psychiatry Law.

2004;32:440-442.

14.

DeClue G. Paraphilia NOS (nonconsenting) and antisocial personality disorder.

J Psychiatry Law.

2006;34:495-514.

15.

Levenson JS, Morin JW. Factors predicting selection of sexually violent predators for civil commit-ment.

Int J Offender Ther Comp Criminol.

2006;50:609-629.

16.

Zander T. Civil commitment without psychosis: the law’s reliance on the weakest links in psychodiagnosis.

J Sex Off Civil Comm Sci Law.

2005;1:17-82.

17.

Rogers R, Shuman DW.

Fundamentals of Forensic Practice: Mental Health and Criminal Law.

New York: Springer; 2005.

18.

In re Douglas Junco, 16 Misc3d 327, 836 NYS2d 856.

19.

Krueger R, Lau K. Association for the treatment of sexual abusers New York state chapter: commentary on the Sex Offender Management and Treatment Act.

http://tiny.cc/xpe1q

. Accessed March 9, 2010.

20.

Guthrie C, Rachlinski J, Wistrich A. Blinking on the bench: how judges decide cases.

Cornell Law Rev.

2007;93(10):1-44.

http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Blinking-on-the-Bench.pdf

. Accessed March 9, 2010.

21.

Lehman D. Civil case goes to trial. PostStar.com. May 4, 2007.

http://poststar.com/news/local/article_67cab9ea-12b4-5315-b3df-b67abd9c8055.html

. Accessed March 9, 2010.

22.

Yusko D. Released sex felon arrested in Georgia: man tried under civil confinement law not deemed a threat accused of rape.

Timesunion.com

. March 13, 2008.

http://www.timesunion.com/AspStories/story.asp?BCCode=HOME&storyID=671665&category=FRONTPG

. Accessed March 9, 2010.

23.

Lehman D. Sex offender released after local trial arrested for rape, kidnapping in Georgia. PostStar.com. Tuesday, March 11, 2008.

http://poststar.com/news/latest/article_4c9966d8-f925-5dab-b8dd-56510029b422.html

. Accessed March 9, 2010.

24.

Zonana HV, Bonnie RJ, Hoge SK. In the wake of

Hendricks:

the treatment and restraint of sexually dangerous offenders viewed from the perspective of American psychiatry. In: Winick BJ, LaFond JQ, eds.

Protecting Society From Sexually Dangerous Offenders: Law, Justice, and Therapy.

Washington, DC: American Psychological Association; 2003:131-145.

25.

Hensyl W, ed.

Stedman’s Medical Dictionary.

25th

ed. Baltimore: Williams & Wilkins; 1990.

26.

Foreman M. California therapists rake in millions under sex offender law: billed $24 M for 2007 Jessica’s Law services. Newser.com. August 10, 2008.

http://www.newser.com/story/34572/calif-therapists-rake-in-millions-under-sex-offender-law.html

. Accessed January 27, 2010.

27.

Völlm B. Assessment and management of dangerous and severe personality disorders.

Curr Opin Psychiatry.

2009;22:501-506.

28.

Zdenkowski G. Community protection through imprisonment without conviction: pragmatism versus justice.

Aust J Human Rights.

1997;3:2.

29.

Hall JR, Benning SD, Patrick CJ. Criterion-related validity of the three-factor model of psychopathy: personality, behavior, and adaptive functioning.

Assessment.

2004;11:4-16.

30.

Marcus DK, John SL, Edens JF. A taxometric analysis of psychopathic personality.

J Abnorm Psychol.

2004;113:626-635.

31.

Murphy C, Vess J. Subtypes of psychopathy: proposed differences between narcissistic, borderline, sadistic, and antisocial psychopaths.

Psychiatr Q.

2003;74:11-29.

32.

D’Silva K, Duggan C, McCarthy L. Does treatment really make psychopaths worse? A review of the evidence.

J Pers Disord.

2004;18:163-177.

33.

Edens J, Skeem J, Kennealy P. The Psychopathy Checklist in the courtroom. In: Skeem J, Douglas K, Lilienfeld S, eds.

Psychological Science in the Courtroom: Consensus and Controversy.

New York: Guilford Press; 2009:175-201.