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Et tu, friend? Confessions and corroborating alibis among friends and strangers

Knowledge of a confession may alter the willingness to corroborate alibi even among friends. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 353–364

A novel paradigm for examining alibi corroboration and evidence interaction: Does a confession affect the likelihood of alibi corroboration for friends and strangers?

Authors

Megan R. Kienzle, University of Florida
Lora M. Levett, University of Florida

Abstract

We examined the possibility that hearing about a confession could influence potentially exonerating information proffered by a familiar or unfamiliar alibi corroborator. College students (N = 268) brought a friend to a team building session. After the team building session, we asked participants to corroborate an alibi for either their friend or a stranger accused of theft. We also manipulated whether the suspect confessed and the timing of when the confession information was presented to participants. Friends were more likely than strangers to be alibi corroborators across multiple scales and dependent measures. Further, potential corroborators who heard about the suspect’s confession were less likely than those who did not know of the confession to be willing to serve as an alibi corroborator; hearing about a suspect’s confession after making an initial alibi corroboration caused participants to change their decisions. Qualitative analyses also suggest several possible motivations given by corroborators and noncorroborators. Implications for police procedure and research design are discussed.

Keywords

alibi generation, evidence interaction, evidence contamination, forensic confirmation bias

Summary of the Research

“In 1986, John Kogut was wrongfully convicted of the rape and murder of a 16-year-old girl. During the investigation of these crimes, Kogut was subjected to an 18-hr interrogation, at the end of which he falsely confessed; he later recanted the confession. During the time of the crime, Kogut was actually at his girlfriend’s birthday party, and therefore theoretically should have had multiple alibi corroborators in the other people present at the party who could help to prove his innocence. Many of these individuals were willing to corroborate his story initially, but none testified in court. It is possible that hearing about Kogut’s confession caused the potential alibi corroborators to question their memory and ultimately withdraw their original statements. Thus, one piece of erroneous evidence (the false confession) may have corrupted potentially exculpatory evidence (the alibi corroborations). This paper explores that possibility, introduces a new paradigm for studying alibi corroboration, and addresses whether confession evidence can corrupt potentially exonerating evidence given by friend versus stranger alibi corroborators.” (p. 353)

“Basic psychological research supports the idea that pieces of evidence have potential to change other evidence through confirmation biases. Kassin and colleagues termed this forensic confirmation bias, or the idea that an individual’s beliefs, motivations, expectations, or situational context can influence their interpretation of other evidence in a criminal trial. Specifically, if investigators espouse beliefs about the suspect’s guilt or are given contextual information, those beliefs can affect their interpretation of subsequent evidence. […] knowledge of contextual information essentially focuses the investigation or trial on the inculpatory evidence, strengthening inculpatory evidence through affecting the focus on and interpretation of subsequent evidence.” (p. 353)

“Forensic confirmation bias has been demonstrated in decisions of fingerprint examiners, handwriting analysis, polygraph interpreters, DNA analysts, eyewitnesses, participants examining facial composites, crime scene investigation, and participants examining speech recordings—anywhere a human factors into the forensic decision making process. Further, the advent of rapid identification information technology provides investigators with on-the scene database matches which can impact the interpretation of relevant crime scene information from the moment the match is made and increase the importance assigned to that piece of evidence. The collective literature demonstrates the pervasiveness of the forensic confirmation bias, reaching from analysis of evidence in a field or laboratory setting to the memory based forms of evidence. Every stage of the investigation and evidence collection process, through the trial, can be impacted by prior knowledge or contextual information. […] Investigators are generally aware of the problematic influence that confirmation biases may have in their decisions. However, common recommendations to move to the other end of the spectrum where investigators are completely blind to all external context has problems as well.” (p. 353–354)

“Forensic confirmation bias seems to be most influential in cases where the evidence itself is somewhat ambiguous. […] There is also some evidence to support that the order in which evidence is perceived affects whether forensic confirmation bias will occur. […] Research has shown that forensic confirmation bias may be especially strong in an investigation in which the corrupting evidence provided is a confession. Learning of a confession may change the decisions of legal actors during the investigation.” (p. 354)

“The same confirmation biases that affect legal actors during investigation also appear to affect juries. Confessions influence jury verdicts, and this effect is persistent under less than ideal confession conditions. Jurors believe the likelihood of a false confession is low even with coercion, and confessions influence verdict even if the jurors believe the confession was coerced or obtained through a secondary source who may be motivated to lie. Exacerbating the problem, juries may hear other pieces of evidence that have been corrupted by the confession and more indicative of guilt. […] Further, research supports the idea that jurors may evaluate the confession evidence to be voluntary depending (1) on the strength of the rest of the case evidence and (2) on their chosen verdict, even after the fact” (p. 354)

“The problem of confessions corrupting other pieces of evidence through forensic confirmation biases becomes particularly problematic when the evidence corrupted is memory evidence. That is, if forensic confirmation biases affect physical evidence, it may be possible to retest the evidence under bias-free conditions (e.g., a fingerprint examiner who is blind to expected outcomes or contextual information could reexamine the fingerprint). However, in the case of memory evidence, the contextual information may permanently change the evidence. This is even more troublesome if the memory evidence is potentially exonerating.” (p. 355)

“A confession may affect an eyewitness’s or alibi corroborator’s memory through forensic confirmation bias. […] learning of a confession can not only affect other pieces of incriminating evidence, suggesting that sometimes weak evidence may be present in the courtroom, but also may contribute to keeping good (and potentially exculpatory) evidence out of the courtroom. In Kogut’s case, his false confession likely corrupted exonerating information from his potential alibi corroborators. In this study, we test this possibility that potential friend and stranger alibi corroborators are subject to the same cognitive confirmation biases as eyewitnesses, fingerprint examiners, police investigators, and judges and jurors when they hear about a suspect’s confession, expanding previous work examining forensic confirmation bias in alibi corroboration to include different types of alibi corroborators.” (p. 355)

“Research suggests that the relationship between the person and defendant may matter in whether a person will corroborate an alibi. Familiar alibi corroborators are less likely than nonfamiliar corroborators to be mistaken in their corroboration because the identity of the suspect is not in question. However, using experimentally induced friend relationships, researchers found that friends and strangers were equally likely to provide an alibi and instead, alibi corroborators based their decisions of whether to corroborate the alibi or not on the evidence present to suggest guilt. We expanded on that literature to examine alibi corroboration in preexisting friendships instead of experimentally induced friendships, hypothesizing that alibi corroborators who are true friends would be more likely than strangers to proffer an alibi corroboration, and that friends may be less subject to forensic confirmation biases than alibi corroborators who are unfamiliar with the suspect (i.e., strangers).” (p. 355)

“To address our research question, we created a new paradigm for examining person alibi corroboration through a false theft accusation. In this study, we recruited participants under the guise of participating in a team building activity over two sessions. All participants were required to bring a friend to the first team building session. In this session, participants and friends completed a variety of team-building activities, switching between new ‘teams’ in every activity. In the second session, participants were told individually that either their friend or a stranger was accused of a theft that took place during the first session, however in reality the theft never occurred. We varied whether participants were made aware of the suspect’s confession to the crime (and the timing of the presentation of that evidence). Participants were asked to provide an alibi corroboration for the suspect. The alleged crime never took place, so we explicitly were asking for a false alibi corroboration of a nonexistent crime. However, these variables were constant across conditions, allowing us to isolate the effects of the relationship between the alibi corroborator and the suspect and the confession information on alibi corroborator decision making.” (p. 355)

Participants included 268 students aged 17 to 32 (M = 24.62), 66% female, 34% male, mostly White (51%).

“Contrary to previous research that found friends and strangers were equally likely to provide an alibi corroboration, in this study, friends were more likely than strangers to be alibi corroborators, to be confident in that corroboration, believe the confession was coerced, and overall believe the suspect was (correctly) innocent. Friends also said they believed they had better memories and viewing conditions for the suspect’s actions than strangers (although they were less likely than strangers to cite their memories as a reason for proffering a corroboration). Thus, it appears that the relationship between the alibi corroborator and suspect affects whether a participant will corroborate a suspect’s alibi. It is possible that the reluctance of strangers to serve as an alibi corroborator could be understood through the lens of a bystander effect.” (p. 361)

“The idea that strangers may be less willing to serve as alibi corroborators than friends is troubling, especially given that jurors are more likely to believe alibi corroborators with no relationship to the suspect than those with a relationship. That is, the most believable alibi corroborator (the stranger) is not the most probable one (the friend). Consistent with jurors’ concerns, however, friends were more likely than strangers to cite reasons other than their memory (i.e., the person’s character or lack of motive to steal) in their justifications of the decision to be an alibi corroborator even though friends rated their memories and view for the time frame as higher.” (p. 361)

“It appears that friends and strangers may be equally susceptible to confirmation biases through the corruptive power of a confession. That is, familiarity with the suspect did not differentially affect willingness to provide an alibi corroboration in the confession conditions. Even though friends were more likely than strangers to believe the confession was coerced, friends and strangers were equally likely to change their corroboration decision after hearing about a confession, and friends were more likely than strangers to cite the confession as a justification for not serving as an alibi. It is possible that more power would be needed to detect this interaction; future research could explore this possibility. It is also possible that this is demonstrative of the power of the confession—the presence of a confession affected decision making regardless of the relationship between the alibi corroborator and suspect.” (pp. 361–362)

“The present study demonstrates that confessions can corrupt potentially exonerating evidence, even if that potentially exonerating evidence is an alibi corroboration from a friend. Thus, it appears that forensic confirmation bias can alter person evidence, as seen here with alibi corroborators and in previous research examining eyewitness decision making.” (p. 362)

“Unlike other forms of evidence, the potentially exonerating evidence of an alibi corroboration is likely discarded if the suspect’s alibi is not corroborated because of forensic confirmation biases. Thus, we have no way of knowing how many cases are missing potential alibi corroborators who could have helped to prove an innocent suspect’s case. In addition, while forensic experts and fingerprint analysts have the original evidence preserved to retest if necessary, person evidence given by alibi corroborators is forever changed by the knowledge of a confession; one cannot simply start over once this information has been revealed.” (p. 362)

Translating Research into Practice

“It may be premature to recommend change in the collection of information from alibi corroborators given this is a relatively new area of research. However, many recommendations have been put forth to attempt to correct for or protect against forensic confirmation biases in the legal context. […] [Forensic] analysts are not the only legal actors who need to focus on documentation to ensure the ability to (a) detect if contamination has occurred; (b) where the contamination came from; and (c) in cases where retesting is not an option, accurately describe the contamination effects to judges and jurors so they can appropriately account for the quality of evidence in determining whether it meets admissibility standards, or how to weigh it in combination with all other evidence in judging guilt or innocence. This study, as well as the others cited previously, suggest that it may be pertinent for investigators to use similar documentation and methods to preserve how an alibi corroboration is obtained and considered. Further, given that is it possible for alibi corroborators to be affected by contextual information, investigators should protect alibi corroborators from potentially corruptive information whenever possible.” (p. 363)

Other Interesting Tidbits for Researchers and Clinicians

“One limitation of this study is that all participants were innocent suspects. Thus, we were unable to determine whether participants were equally likely to corroborate a guilty suspect or innocent suspect’s alibi. Future research could examine this possibility, and examine the corruptibility of a known or unknown false alibi corroboration.” (p. 362)

“Another limitation of this work is that no crime actually took place, so there was no real need for an alibi corroboration. In that sense, all of the alibi corroborations were ‘false’ because they were false corroborations of a nonexistent crime. In addition, another limitation of the paradigm is the nature of the activity itself. Recall that during the team building session, it was difficult for participants to track the behavior of the others in the room. Therefore, it is possible that we may have created a situation in which we were the most likely to see an effect of the relationship between the alibi corroborator and suspect on alibi corroboration.” (p. 362)

“Further, it is possible that the familiarity manipulation we used in this study affected outcomes. For example, it is conceivable that the alibi corroborator felt a strong sense of responsibility for the friend because he or she brought the friend to the session, and this may have affected his or her decision making. A similar sense of responsibility may not exist in more realistic situations involving a familiar alibi corroborator. Further, it is impossible to know whether friends brought to the session actually shared study information with participants. Future research could attempt to correct these possibilities by altering the paradigm.” (pp. 362–363)

“Another limitation of this paradigm is that the theft represents a minor crime, and unlikely to advance to the stage of a criminal prosecution. It is possible that a more realistic, ecologically valid scenario might alter the results presented here. This simulated, false theft scenario may be limited in the ability to generalize to the many other types of alibi corroborations that are sought in investigation of crime. Additional research may want to examine the possibility that severity of the alleged offense may moderate the relationship effect on alibi corroboration decisions.” (p. 363)

“Further, while anecdotal information from the experimenter suggests that participants in the second session believed that someone was accused of a theft, it is possible participants may have not believed the experiment was real. That would limit the ability to capture participants’ real responses. Last, we were unable to capture the nonmotivated familiar other alibi corroborator in this paradigm. Future research could attempt to better capture this relationship in examining alibi corroboration.” (p. 363)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Extra! Extra! Read all about it: The impact of pretrial media coverage on the right to fair trial in capital cases

Pretrial publicity in capital cases tends to be highly negative, sensationalistic, and tends to contain prejudicial aspects that can potentially impact the jurors unless the venue is moved – which is rarely done. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 326–340

The media’s impact on the right to a fair trial: A content analysis of pretrial publicity in capital cases

Authors

Shirin Bakhshay, University of California, Santa Cruz
Craig Haney, University of California, Santa Cruz

Abstract

This study examines whether and how the right to a fair and impartial jury may be compromised by prejudicial news media coverage of death penalty cases. Using a unique data set of historic newspaper coverage of 20 capital cases in California in which defendants filed change of venue motions, we conducted a detailed content analysis of 1,831 newspaper articles to examine the nature and extent of the pretrial publicity in each case. We used a detailed coding scheme with 27 content categories to describe the types of information conveyed; analyze the relative amounts of negative, positive, and neutral content in the publicity; and determine whether the publicity included the kind of information that has been shown to bias prospective jurors. The publicity was overwhelmingly negative and we identified a number of highly prejudicial aspects, including heavy reliance on law enforcement and prosecution sources, numerous instances of sensationalized descriptions of the crime and criminal defendant, and the inclusion of legally excludable material. Despite the potentially biasing effects of the publicity analyzed, venue was rarely changed. Moreover, the trial courts’ decisions appeared largely unrelated to the substantial amount and prejudicial content of the pretrial publicity. Implications for a capital defendant’s right to an impartial jury, due process protections, and the adequacy and availability of effective legal remedies are discussed.

Keywords

pretrial publicity, change of venue, death penalty, content analysis

Summary of the Research

“The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to “an impartial jury.” This fundamental guarantee is part of a criminal defendant’s basic right to a fair trial, which encompasses the right to be judged by a jury of his or her peers and on the basis of evidence presented at trial. Information that jurors obtained before or outside of the trial itself and any pre-existing, case-related biases they may hold are not supposed to influence their decision-making. In practice, the Sixth Amendment right to an impartial jury has come to mean that jurors cannot have formed opinions about key aspects of the case—and certainly not the defendant’s guilt— before trial. Combined with the “presumption of innocence” that attaches to all criminal defendants at the start of trial, the Sixth Amendment requires jurors to be indifferent, unbiased, and open to the evidence presented at trial. However, in an increasingly media-saturated society, defendants in high profile cases may be tried—and essentially found guilty—by the news media before they reach a courthouse. Depending on the nature and amount of the media coverage that surrounds a particular case, potential jurors may be profoundly affected by what the press reports. As a consequence, criminal defendants may be deprived of basic Sixth Amendment protections.” (p. 326)

“Studies suggest that most people rely on the media as their principle source of information about crime. Moreover, people generally attach a great deal of credibility to news about crime. However, much empirical research has demonstrated that media coverage of crime is often skewed and one-sided. […] Media news coverage of criminal cases may also contain prejudicial information that may be legally inadmissible at trial, but which is disseminated to the public nonetheless. Specifically, certain types of evidence that the court believes will create a danger of “undue prejudice” can be excluded from being presented at trial, including mention of a defendant’s past criminal record, negative statements about a defendant’s character or reputation, prior confessions, and sensationalized or emotionally charged descriptions of the crime. […] There is also some evidence that the media relies very heavily on law enforcement and prosecution sources as the basis for their reporting. […] Because the source of information can influence both its interpretation and the weight it is given, such coverage not only presents just one side of the story but also lends greater legitimacy to the side that law enforcement officials and prosecutors, who are viewed as especially credible sources of information, convey. In combination, these factors can result in an unbalanced and biased media representation of crime, which may threaten a criminal defendant’s right to a fair trial.” (p. 326–327)

“A majority of Americans (over 70%) still follow the news closely and regard traditional news organizations as the largest and most trusted source of news. […] As traditional news media outlets compete for revenue, the tendency to focus on the most sensationalized accounts and cringe-worthy aspects of crime has become more pronounced. Although the idea of promoting the “news as entertainment” is not new, the explosion of online media outlets has added to the fervor and created more options for readers, if anything increasing the potential for biased, sensationalistic coverage to have a correspondingly prejudicial impact.” (p. 327)

“Despite changes in the media landscape, local news sources (both print and online editions) continue to be of significant importance to citizens and potential jurors. […] Local news outlets provide an easier way to access relevant local news without having to sift through the multitude of potentially irrelevant online material. Thus, even in an era of ever-increasing exposure to news and quasi-news stories, local crime coverage continues to be a relevant source of information about local crime.” (p. 327)

“Research has shown that biased news coverage of crime can affect public opinion and may influence the outcome of criminal cases. In specific cases, exposure to media coverage has been shown to have a prejudicial impact on potential jurors’ attitudes toward criminal defendants, including the perceived greater culpability and lessened credibility of the defendant. In some studies exposure to pretrial publicity has resulted in more guilty verdicts and harsher sentences.” (p. 327)

“Concerns over the potentially biasing effects of pretrial publicity are especially pronounced in death penalty cases. […] The fact that death penalty cases generally involve the most severe kinds of violent crimes also means that they tend to receive the most publicity. Such cases often lend themselves to sensationalistic and emotionally charged publicity that portrays the capital defendants as “monsters” and “evil.” […] Moreover, the process of “death qualification,” by which prospective capital jurors are questioned about their views on the death penalty and excluded if they are unwilling to consider the death penalty as an appropriate punishment, may result in the selection of jurors who are especially susceptible to pretrial publicity. […] The nature and amount of pretrial publicity that surrounds a capital case, in particular, can represent a significant threat to the defendant’s fair trial rights.” (p. 327–328)

“Courts have been long aware of the biasing effects that pretrial publicity can have on prospective jurors and the threat that its potentially prejudicial aspects pose to juror impartiality. In fact, a wide range of potential remedies have been established that judges have at their disposal ostensibly to minimize these effects. The remedies include ordering a continuance or delay (postponing the start of the trial until the case-related publicity has subsided); using enhanced or extended voir dire (more extensively questioning prospective jurors about the extent of their publicity-related knowledge about the case and, when the judge deems it necessary, excluding them on the basis of their potential bias); judicial admonitions (instructing jurors simply to disregard or set aside any pretrial publicity they may be aware of and focus only on the evidence presented at trial); and, finally, using jurors from another untainted venue either by importing them from a different county or, much more commonly, changing the venue of the trial itself to a new county that has not been exposed to the pretrial publicity surrounding the case. […] Unfortunately, research suggests that most of these remedies are ineffective and, in some instances, may even exacerbate the prejudice created by pretrial publicity.” (p. 328)

“In light of the limitations of delay, extended voir dire, and the use of judicial admonitions, the only truly effective way to limit or eliminate the potentially prejudicial effects of pretrial publicity is to avoid it altogether—that is, by selecting jurors from a pool of persons who have not been exposed to it. […] Moving a trial to a new venue effectively eliminates publicity-related concerns about pretrial publicity because, instead of attempting the nearly impossible task of curing the bias, it avoids it altogether. […] Despite the fact that moving a trial to a new venue is generally recognized as the most effective way to safeguard against potentially prejudicial pretrial publicity, it is generally believed that venue changes are difficult to obtain.” (p. 328–329)

“The present study focuses on the content of pretrial newspaper publicity associated with a sample of capital cases in California in which changes of venue were sought. Specifically, this study analyzes the publicity files for each case to determine what type of information was contained in the publicity itself, the relative amounts of negative versus positive information, and the extent to which the case-related stories relied on prosecution, law enforcement, or defense-oriented sources. A secondary aim of the study is to preliminarily examine whether the nature and amount of prejudicial pretrial publicity that surrounded the cases appeared to be related to the fate of the change of venue motions themselves (i.e., whether they were granted or denied). Finally, even more preliminarily and tentatively, we report on the final case outcomes—that is, whether the defendant was found guilty and, in those cases where he was, which sentence (life in prison without parole or death) was imposed—when venue was changed and when it was not.” (p. 330)

“This sample consists of the newspaper coverage from a total of 20 California capital cases in which change of venue motions were filed. The cases spanned a 26-year period, from 1979 to 2005, arose in 14 different California counties, and constitute a broad convenience sample of death penalty cases. Although all of the cases were filed capitally (i.e., they were ones in which the prosecution sought the death penalty), they varied considerably in terms of the nature of the crime (e.g., single vs. multiple homicides) as well as the demographic characteristics of the victims and defendants, providing a variety of different case-specific details to analyze. […] The 20 cases in our sample were selected for inclusion based on a number of criteria, including the case facts, procedural posture (i.e., cases in which pretrial change of venue motions were filed), and access to the entire publicity files. […] A total of 1,831 articles were collected across the 20 cases, averaging 92 articles per case, with cases having anywhere between 15 and 381 articles. […] Online forum discussions, such as blogs or Facebook pages, were excluded because they were not published content and could not be systematically reconstructed.” (p. 331)

“The prejudicial content of the extensive pretrial publicity in all 20 cases analyzed in this study was substantial. The publicity relied largely on police and prosecution sources, was overwhelmingly negative and sensationalistic, and included numerous instances of legally excludable information. Very little positive information was present in the pretrial publicity to remotely “balance” the messages conveyed, and almost none of it could be considered mitigating. These were all capital cases where the crimes were, by definition, the most serious, and, as we documented, the publicity extensive and one-sided. Therefore, these were precisely the kinds of cases in which motions to change venue are most typically made and the reasons weighing in favor of moving the trial venue seemingly the most compelling. Despite the fact that the publicity- and case-related factors favored granting a change of venue, as emphasized in pretrial motion hearings where defense attorneys not only argued for the need to move the trial but also typically presented expert consultants who documented the need to do so, judges nonetheless only agreed to change venue in 32% of the cases (six out of 19).” (p. 338)

Translating Research into Practice

“The finding that in none of the cases with the most negative publicity was venue changed suggests a potentially serious judicial bias, one that may threaten the due process rights of capital defendants in high profile cases. Although we are cautious to draw too many conclusions from a single study, our findings suggests that the legal standard that governs change of venue is being interpreted in potentially problematic ways that may deny certain capital defendants their constitutionally mandated fair trial rights. Change of venue is a procedural mechanism designed to give meaning to the right to an impartial jury in cases where it appears to be compromised. Yet this study raises a number of questions about whether and how effectively this mechanism is being implemented, including how many of the defendants in the capital cases included in our sample could truly receive the fair trials to which they were constitutionally entitled.” (p. 338)

“Courts may continue to be reluctant to move trials to new venues, even in the most highly publicized cases, even though moving a trial to a new, untainted venue has been shown to be the only consistently successful means for dealing with the biasing effects of pretrial publicity. This means that legal practitioners will need effective tools with which to argue for venue changes in the appropriate case, including empirical research on the content and impact of prejudicial pretrial publicity on jury bias and trial outcomes as well as a better understanding of the factors and circumstances that persuade judges to move trials.” (p. 339)

“It seems clear that the extreme amount of pretrial publicity that often accompanies a capital case can undermine the defendant’s constitutional right to be tried by an impartial jury. Of course, the potential impact of prejudicial pretrial publicity in a capital case is not only that it may significantly impact jurors’ assessments of the defendant’s guilt but also their culpability and their potential “deathworthiness.” Nonetheless, at least in the sample of cases we analyzed, these risks do not appear to be fully acknowledged or appreciated by the judiciary. Judges instead appeared willing to minimize the deep cognitive and psychological effects that negative pretrial publicity can have on prospective jurors by failing to take the one step that effectively minimizes or eliminates them.” (pp. 338–339)

“Although this study documented the nature and amount of publicity in cases from the largely predigital age, it provides a cautionary tale for the future of crime media and procedural justice. Crime coverage continues to be highly sensationalist, relying on graphic details and headlines to attract readers in an ever-increasingly competitive marketplace. […] To the extent that news organizations and other media outlets reiterate the crime master narrative and focus on sensationalized details to gain readers’ attention, they are arguably helping to undermine the fairness of the jury trial process.” (p. 339)

Other Interesting Tidbits for Researchers and Clinicians

“There were several limitations in our study that are worth noting. First and foremost, as mentioned above, is the small sample of 20 cases. Although our content analysis included a very large number of articles, the total number of cases included was too small to draw any causal conclusions. We hope to further explore this and several other issues raised by this research with a larger national sample of capital cases in which change of venue was sought, allowing us to better examine potential causal mechanisms. Our study is also limited to California cases. Although we have no reason to believe that the types of cases brought in California and the attendant media coverage of those cases differs significantly from the rest of the country, we did not include cases from additional jurisdictions in our sample and cannot speak to the widespread applicability of our findings. Future research on change of venue should include a larger sample of cases from California as well as other jurisdictions to bolster the generalizability of our findings and allow for further investigation of the impact that moving trial venue has on case outcomes.” (p. 338)

“It is also important to note that we did not include TV or radio coverage of the cases in our sample. Although TV news in particular was prominent during the timeframe studied (and remains so today), we were not able to include these sources because there are no reliable archives of this data and so their inclusion would have been incomplete at best. In future studies on this topic, it would be helpful to include an analysis of TV and radio news transcripts.” (p. 338)

“In addition, our data set consisted of capital cases that were mostly tried before the advent of online and social media and so our study did not include an analysis of purely online content concerning local crime. Although many aspects of local crime news coverage remain the same, especially the content of the coverage and its importance to local residents and communities, some aspects of the “new media” environment warrant further study. Future research might examine whether and how social media highlight certain sensational aspects of crime or act as conduits for dissemination and discussion.” (p. 338)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Guilty after proven innocent: Perceptions of exonerees’ innocence and reintegration support services

Exonerees who were wrongfully convicted based on false confessions were perceived to be less intelligent, more mentally ill, and more guilty – which impeded willingness to provide reintegration services. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 341–352

Perpetually stigmatized: False confessions prompt underlying mechanisms that motivate negative perceptions of exonerees

Authors

Kyle C. Scherr, Central Michigan University
Christopher J. Normile, Central Michigan University
Heidi Putney, Central Michigan University

Abstract

Even in the fortunate instances of being exonerated of their wrongful convictions, exonerees often struggle to assimilate back into society. Although research has established that exonerees experience stigma and a general lack of reintegration support, little is known about underlying reasons that motivate such negative perceptions. This research examined whether the evidence and crime associated with a wrongful conviction could initiate a process that alters people’s perceptions of exonerees’ intelligence and mental health status, and, in turn, undermine people’s judgments of exonerees’ guilt and subsequent willingness to support reintegration services. Participants (N = 253) read a news story about an exoneree who was wrongfully convicted of either murder or grand theft auto resulting from either a false confession or eyewitness misidentification. Participants then offered their perceptions of the exoneree’s intelligence and mental health followed by guilt-confidence judgments. Last, participants indicated their willingness to support reintegration services (psychological counseling, career counseling, and job training). Results indicated that wrongful convictions stemming from a false confession caused people to perceive the exoneree as less intelligent and these judgments, in turn, were associated with perceptions that the exoneree suffered from mental health issues which, subsequently, influenced participants’ uncertainty of the exoneree’s innocence. The string of perceptions and judgments consequently undermined people’s willingness to support each of the reintegration services. The observed effects provide empirical evidence for reforms that automatically guarantee support services for exonerees in order to overcome potential biases aimed as those who have been wrongfully convicted.

Keywords

wrongful convictions, exonerees, false confessions, stigma

Summary of the Research

“Although our legal system is experiencing a proliferation of exonerations which has, in part, led to the identification of a variety of factors that are associated with wrongful convictions, these innocents continue to face many obstacles long after release. Yet, very little research has identified underlying mechanisms associated with certain factors that influence people’s willingness to support services that help exonerees effectively reintegrate into society. This research examined whether two evidential factors associated with wrongful convictions—false confessions and mistaken eyewitness identifications—and two crimes varying in their degree of perceived severity—murder and grand theft auto—prompt underlying mechanisms that may exacerbate the difficulties exonerees’ face upon release. Specifically, we tested the ability of these factors to initiate a series of judgments, from intelligence and mental health perceptions through persevering culpability perceptions, to undermine people’s willingness to support reintegration services necessary to help exonerees rematriculate back into society. Research illustrating the stigma exonerees face is offered next followed by a discussion of how the relevant evidence and crimes can impact the obstacles exonerees confront upon release.” (p. 341)

“A growing literature has established that exonerees continue to face substantial difficulties after being factually exonerated of their wrongful conviction. Exonerees are often viewed more negatively than a person with no criminal history and, in some instances, are perceived as negatively as parolees who are actually guilty of criminal wrongdoing. The stigma associated with being wrongfully convicted is also evident in people’s unwillingness to support reintegration reforms—such as psychological counseling, job training, and career counseling—to help exonerees transition back into functioning members of society. For some exonerees, people are especially reluctant to fully believe their innocence which, in turn, motivates a hesitancy to support reintegration services. […] Research is now beginning to identify factors that perpetuate these negative patterns. One factor leading to wrongful convictions—false confessions—has been found to especially influence exonerees’ experiences after release.” (pp. 341–342)

“False confessions are associated with up to 27% of DNA wrongful convictions and ~ 12% of wrongful convictions, in general. A robust body of literature has established myriad situational factors not attributable to the suspect, such as interrogation tactics and length of interrogations, that increase the risk innocent suspects will falsely confess. However, most people do not appreciate the situational pressures that can lead to false confessions and, in fact, believe they themselves would never falsely confess. To make sense of the counterintuitive idea of false confessions, most people make an internal, dispositional attribution to explain why innocent suspects admit to crimes they did not commit. […] Thus, when wrongful convictions stem from false confessions, people may be more likely to believe the person is responsible for the outcome (Why did they confess in the first place?) and may believe that only people who are unintelligent or have mental health issues would falsely confess.” (p. 342)

“Compared to false confessions, mistaken eyewitness identifications are associated with a higher percentage of wrongful conviction cases. Mistaken eyewitness identifications are associated with almost three quarters of DNA exonerations and ~ 30% of wrongful convictions, in general. […] However, although mistaken identifications are associated with a higher percentage of wrongful convictions, research has not found that individuals who are mistakenly identified are perceived in a similar negative manner to those who have falsely confessed. […] Instances of wrongful convictions resulting from false confessions, then, are likely perceived differently than wrongful convictions produced by mistaken eyewitness identifications. […] One aim of this research, therefore, was to examine whether wrongful convictions stemming from a false confession, compared to mistaken eyewitness identification, could alter people’s perceptions of exonerees’ intelligence and facilitate a process leading to subsequent negative perceptions and judgments.” (p. 342)

“People tend to hold a range of negative perceptions about individuals convicted of criminal wrongdoing. These assumptions depend on the criminal behavior and include beliefs that convicted individuals are aggressive, violent, antisocial, manipulative, crazy, insecure, and maladjusted. Because research suggests that most people continue to believe, to varying degrees, that exonerees are still guilty of the original, wrongful conviction, exonerees may often be subjected to a range of stereotypes and beliefs used to characterized guilty offenders. People’s negative perceptions of criminals also appear to extend to convicted perpetrators’ intelligence. […] Research suggests that these intelligence-based perceptions vary depending on the type of criminal wrongdoing. Whereas violent criminals (e.g., murder) are likely to be viewed as unskilled, uneducated, unintelligent, and immature, nonviolent criminals are likely to be perceived as more educated and deemed intelligent and smart. Taking these literatures into consideration suggests that exonerees who have been wrongfully convicted of violent crimes such as murder, and continue to be associated with violent crimes, may be perceived as unintelligent. On the other hand, exonerees who have been wrongfully convicted of nonviolent crimes, such as grand theft auto, seem less likely to be perceived as unintelligent.” (pp. 342–343)

“Based on extant literatures, we tested the perspective that exonerees who have falsely confessed and exonerees wrongfully convicted of a violent crime would be perceived as unintelligent and these intelligence perceptions, in turn, would predict perceptions that these exonerees’ suffered from mental health issues. Furthermore, we tested the possibility that perceiving exonerees’ as suffering from mental health issues could, subsequently, predict a reluctance to fully embrace exonerees’ innocence. Support for taking this sequential approach is offered by research establishing the strong relationship between people’s perceptions associating those with mental health issues as threatening and dangerous—perceived associations that have become stronger despite people reporting better understanding of mental health issues. […] We further tested the potential that any change in people’s perceptions of the exoneree and uncertainty of the exoneree’s innocence could ultimately influence people’s willingness to support reintegration services for the exoneree. Accordingly, this is the first research to test the possibility that intelligence and mental health perceptions can serve as underlying mechanisms that drive people’s distrust of exonerees’ innocence and unwillingness to fully support reintegration services. (p. 343)

“Based on the reviewed literatures, two hypotheses were examined. Although the following hypotheses are framed in terms of support for reintegration services as the outcome, three separate reintegration outcomes—psychological counseling, career counseling, and job training—were used. Each reintegration outcome was tested separately in an attempt to provide a more nuanced understanding of how people’s perceptions and judgments relate to specific reintegration aids. The False Confession hypothesis predicted that wrongful convictions stemming from a false confession, compared to mistaken eyewitness identifications, would result in (a) the exoneree being perceived as less intelligent, which would subsequently undermine people’s (b) perceptions of the exoneree’s mental health, and, in turn, their (c) willingness to fully acknowledge the exoneree’s innocence, and, consequently, (d) their willingness to fully support reintegration services for the exoneree. The Murder hypothesis predicted that wrongful convictions based on murder, compared to grand theft auto, would result in (a) the exoneree being perceived as less intelligent, which would subsequently undermine people’s (b) perceptions of the exoneree’s mental health, and, in turn, their (c) willingness to fully acknowledge the exoneree’s innocence, and, consequently, (d) their willingness to fully support reintegration services for the exoneree.” (p. 343)

Participants: 253 individuals (44.3% women) – mean age of 34.46 years with a standard deviation of 9.87; the majority were White. Participants were recruited using Amazon MTurk website.

“The study used a 2 (evidence: false confession vs. eyewitness misidentification) X 2 (crime: murder vs. grand theft auto) between-subjects design. Participants were randomly assigned to read one of four news stories regarding a wrongfully convicted man named Chris. Some participants read that Chris was wrongfully convicted of murder while others read that Chris was wrongfully convicted of grand theft auto. Whereas some participants were informed that Chris was wrongfully convicted based on a false confession, other participants were informed that Chris was wrongfully convicted based on a mistaken eyewitness identification. Participants’ offered their perceptions of Chris’s intelligence and mental health, guilt judgment and confidence in this judgment, willingness to support three reintegration outcomes (i.e., psychological counseling, career counseling, and job training), and then responded to informational and attention check items and demographic information.” (pp. 343–344)

“The results of this research extend the literatures bearing on wrongful convictions and are the first to illustrate underlying mechanisms that contribute to the obstacles many exonerees continue to face after release. The observed effects indicated that wrongful convictions stemming from false confessions initiate a series of processes that culminate in a decreased willingness to support efforts to help the exoneree reintegrate into society. People who were informed that an exoneree had falsely confessed perceived the exoneree as less intelligent which, in turn, was associated with people’s subsequent perceptions that the exoneree suffered from mental health issues, was not entirely innocent, and was less deserving of psychological and career counseling and job training.” (p.348)

“The observed effects also indicate that people’s perceptions of those they characterize as having mental health issues extend to culpability judgments. One possible reason, as alluded to earlier, stems from people’s perceptions connecting mental health issues with dangerousness, threat, and social distance. People may judge individuals who they perceive to have mental health issues as more culpable in order to justify incarcerating or committing these individuals to mental health units as ways to maintain order and safety. Although only approximately three percent of violent crimes are committed by individuals with a nonsubstance abuse related mental health issue, people continue to perceive mentally ill people as dangerous and violent. People who characterize an exoneree who falsely confessed as suffering from mental health issues may then continue to believe the exoneree is dangerous and violent and may resist believing the exoneree is entirely innocent as a way to maintain social distance and defend continued incapacitation.” (p. 349)

“Exonerees continue to face many obstacles upon release. One factor that can lead to wrongful convictions—false confessions—was found to prompt a process that motivates people to perceive the exoneree as less intelligent, likely suffering from mental health issues, not entirely innocent, and less deserving of reintegration services. These findings contribute to a growing literature establishing the need for, and use of, empirically based policy reforms to help the growing exoneree demographic. Building awareness of the issues leading to wrongful convictions, factors that contribute to exonerees’ struggles after release, and reforms that effectively help them rematriculate into society is imperative going forward.” (p. 350)

Translating Research into Practice

“The results of this study further demonstrate that people have reservations about supporting reintegration services for exonerees, particularly those who have falsely confessed. Perhaps because reforms and legislation have not mirrored the pace of exonerations, many states do not have explicit policies that address providing reintegration services for exonerees. Indeed, only 32 states, Washington, DC, and the federal government have statutes specifically for instances of wrongful conviction […] Policies need to be developed across the US that are supportive and overcome decision makers’ biases in order to beneficially aid all exonerees’ journeys to reintegrate back into their communities and rebuild their lives.” (p. 349)

“Accordingly, policies should be developed that guarantee exonerees access to reintegration services. The idea of providing automatic access to such services is especially important given the biases exonerees who have falsely confessed will face. Automatically providing all exonerees reintegration services circumvents such biases. […] many individuals who are released from prison struggle with mental health issues and exonerees struggle with unique psychological issues related to their wrongful conviction. Precluding certain exonerees (i.e., those who have falsely confessed) from guaranteed access to services constrains their ability to overcome any mental health issues engendered by the wrongful conviction.” (p. 349)

“Guaranteeing access to reintegration services is also critical to reducing the likelihood of future offenses because a fair percentage of exonerees who are released without access to reintegration services (~ 38%) commit at least one crime after release. […] In summary, when exonerees falsely confess and the wrongful conviction is based (fully or partly) on the confession, people remain reluctant to endorse supporting these individuals and some states in the US prevent these individuals from accessing reintegration services. Consequently, these exonerees are not able to obtain needed psychological services and training to become functioning members of society and are at an increased risk of becoming actual offenders.” (p. 349)

“Another straightforward policy recommendation focuses on guaranteeing that exonerees’ records are expunged of the wrongful conviction. Problematically, almost a third of one sample of exonerees found that exonerees’ records were not purged. […] Failures to expunge exonerees’ wrongful convictions provide an official record that people can search and use to defend stigmatizing and discriminating against some exonerees. A failure to expunge their record, due to living in a state that has a contributory provision preventing the false confessor from expungement, corroborates and reinforces the biased perceptions that may undermine professionals’ willingness to provide job training, career advice, and mental health services. […] In order to eschew such barriers and potential problems for exonerees, their wrongful conviction should automatically be expunged upon release regardless of contributory provisions.” (pp. 349–350)

Other Interesting Tidbits for Researchers and Clinicians

“Although the current research extends the literature on wrongful convictions and exonerees, there are some limitations that would be beneficial for future research to address. Being wrongfully convicted of murder did not initiate the series of negative perceptions and beliefs to the magnitude that was expected. Yet, the ability of certain crimes to precipitate negative perceptions and beliefs should be further investigated. It could be the case that certain crimes, regardless of perceived severity, only matter to the extent that they interact with other factors associated with the wrongful conviction.” (p. 350)

“Participants’ continued belief of the exoneree’s guilt was assessed using a combined measure of a binary culpability judgment multiplied by participants’ confidence in the judgment. This approach results in an outcome ranging from completely confident in the exoneree’s guilt (– 9) to completely confident in the exoneree’s innocence (+9). Overall, participants’ guilt-confidence judgments were positive indicating that, on average, people’s judgments trended more innocent than guilty. Nonetheless, this finding shows that people’s judgments were not all at + 9 (i.e., 100% confident in the exoneree’s innocence). This finding is troubling because, despite being informed that the exoneree was factually proven innocent via DNA evidence, participants did not, on average, believe the exoneree was entirely innocent. Furthermore, people were especially unwilling to entirely concede that the exoneree was innocent when he falsely confessed to the criminal wrongdoing. The fact that all participants’ guilt-confidence judgments were not at + 9 is meaningful because of its strong impact on people’s willingness to support necessary and important reintegration services for the exoneree. It would be beneficial for future research to precisely capture what degree people’s culpability beliefs have on people’s behaviors who heavily influence exonerees’ outcomes.” (p. 350)

“This research established some mechanisms that motivate several difficulties exonerees continue to face upon release. Still, many important questions remained unaddressed. One issue not addressed by this research is the ability of other risk factors associated with wrongful convictions (e.g., police and prosecutorial misconduct) to initiate a similar process that perpetuates the difficulties exonerees face. A related issue is the degree to which people are cognizant of their beliefs and judgments and the influence those beliefs and judgments have on exonerees. Identifying the degree to which both conscious and nonconscious beliefs and judgments influence people’s perceptions of, and behaviors toward, exonerees is imperative to developing effective policy reforms to help exonerees.” (p. 350)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Locally- v. globally-developed actuarial tools and professional judgment in predicting sexual recidivism

When assessing risk for sexual recidivism, use of actuarial tools that were developed using relevant local samples—as opposed to professional judgment and global actuarial tools—is recommended. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 3, 269–279

The Home-Field Advantage and the Perils of Professional Judgement: Evaluating the Performance of the Static-99R and the MnSOST-3 in Predicting Sexual Recidivism

Authors

Grant Duwe, Minnesota Department of Corrections, St. Paul, Minnesota
Michael Rocque, Bates College

Abstract

When sex offenders in Minnesota are assigned risk levels prior to their release from prison, correctional staff frequently exercise professional judgment by overriding the presumptive risk level per an offender’s score on the Minnesota Sex Offender Screening Tool – 3 (MnSOST-3), a sexual recidivism risk-assessment instrument. These overrides enabled us to evaluate whether the use of professional judgment resulted in better predictive performance than did reliance on “actuarial” judgment (MnSOST-3). Using multiple metrics, we also compared the performance of a home-grown instrument (the MnSOST-3) with a global assessment (the revised version of the Static-99 [Static-99R]) in predicting sexual recidivism for 650 sex offenders released from Minnesota prisons in 2012. The results showed that use of professional judgment led to a significant degradation in predictive performance. Likewise, the MnSOST-3 outperformed the Static-99R for both sexual recidivism measures (rearrest and reconviction) across most of the performance metrics we used. These results imply that actuarial tools and home-grown tools are preferred relative to those that include professional judgment and those developed on different populations.

Keywords

risk assessment, recidivism, sex offender, MnSOST-3, Static-99R

Summary of the Research

“Meta-analyses have indicated the average recidivism rate for sex offenders tends to be around 13% within 4–5 years, which is lower than estimates made by the public. This does not mean, of course, that sex offenders necessarily represent a low threat to public safety, because sexual offending is often seen as more dangerous and potentially damaging than are other types of criminal acts. Yet, not all sex offenders are created equally, for some are more at risk for sexual recidivism than are others.” (p. 269)

“Because sex offenders do not represent a monolithic class of high-risk offenders but rather vary tremendously with respect to recidivism risk, assessing their sexual recidivism risk is important for guiding treatment strategies and improving public safety. Given that research has demonstrated that clinical judgment does a poor job in predicting recidivism, a number of actuarial risk-assessment tools have been created specifically to classify sex offenders. […] Although risk-assessment tools have long been utilized, the ongoing revisions to the primary tools available suggest they are works in progress. Among the unresolved issues within the sex offender risk-assessment literature, there are two in particular that have received relatively little empirical scrutiny to date. First, even though it is now generally accepted that actuarial instruments outperform clinical judgment in predicting recidivism, the question of whether clinical judgment is a useful supplement to actuarial tools remains open. […] Second, it is unclear whether tools developed and validated specifically for one population are appropriate or as effective for other populations.” (p. 269–270)

“To address these questions, we analyzed sexual recidivism outcomes over a 4-year follow-up period for 650 sex offenders who had been scored on both the Static-99R and the Minnesota Sex Offender Screening Tool–3 prior to their release from Minnesota prisons in 2012. […] Although most of the sex offenders in our sample received a presumptive risk level according to their MnSOST-3 score, MnDOC [Minnesota Department of Corrections] staff can override the MnSOST-3 and assign a different risk level based on their professional judgment. The presence of these overrides enabled us to assess whether the use of professional judgment, in addition to actuarial tools, increases the accuracy of classification decisions. Moreover, because the 650 offenders were each assessed on the Static-99R and the MnSOST-3, we compared the predictive performance of these two instruments to determine whether there is a home-field advantage in sex offender risk assessment. Finally, we carried out a comprehensive assessment of predictive performance by using six different metrics.” (p. 270)

“Research has shown that clinical observations are relatively ineffective in discriminating between those who present higher from lower risk of reoffending. Studies evaluating the performance of actuarial tools and unguided clinical observation have tended to indicate clinical observation degrades predictive ability. […] In analyses of whether professional overrides improve predictive performance, research has also suggested actuarial tools work best without such changes. […] Although actuarial instruments generally outperform clinical judgment, their overall performance in predicting recidivism has varied widely across validation studies. Therefore, the question remains as to whether clinical judgment remains a useful tool for practitioners in the face of uncertainty or when information not considered by actuarial instruments is available. […] Some have suggested that due to the highly political nature of sex offender management, as well as the highly variable nature of the population, some degree of professional judgment is needed. Others, however, have suggested that risk-assessment approaches using actuarial tools often fail to translate to risk reduction. […] Whether some degree of “judgment” is necessary or even practical as a supplement to actuarial tools has not been determined.” (p. 270)

“Prior to their release from prison, sex offenders in Minnesota are assigned risk levels, which, in turn, determine the extent to which the community will be notified. Prisoners subject to predatory offender registration are assigned a risk level prior to their release from prison by an End of Confinement Review Committee (ECRC), which is composed of the prison warden or treatment facility head where the offender is confined, a law enforcement officer, a sex offender treatment professional, a caseworker experienced in supervising sex offenders, and a victim services professional. Following the ECRC meetings, sex offenders are assigned a Level 1 (lower risk), Level 2 (moderate risk), or Level 3 (higher risk). […] Before receiving a risk-level assignment from ECRCs, offenders are assessed for sexual recidivism risk by MnDOC staff from the Risk Assessment/Community Notification (RACN) unit. […] In assigning risk levels, ECRCs consider scores from actuarial risk-assessment tools as well as additional factors that ostensibly increase or decrease the risk of reoffense (e.g., an offender’s stated intention to reoffend following release or a debilitating illness or physical condition). As a result, ECRCs may override the risk level suggested by the risk-assessment tool. […] ECRCs overrode the MnSOST-3’s presumptive risk level in roughly half the cases involving offenders released from prison in 2012.” (p. 270–271)

“Actuarial tools, which draw upon a combination of empirically informed measures to create an overall risk score, can provide both absolute and relative risk assessments of offenders. Relative risk assessment simply provides information concerning whether an individual is more or less likely to reoffend than are others. Absolute risk assessment, on the other hand, provides an estimate of how likely it is that the individual will reoffend within a specific period of time. […] Estimates of absolute recidivism risk, however, are influenced by the base rate observed within the offender sample used to develop an instrument. […] In addition to the base rate, other differences between a tool’s development sample and the population on which the instrument is administered could potentially affect predictive validity. […] [It is imperative] to ensure tools are effective in populations outside of those in which they were developed.” (p. 271)

“One of the earlier actuarial tools developed was the MnSOST, which was updated to the MnSOST-3. […] In 2012, Duwe and Freske (2012) significantly revised the MnSOST–R with their development of the MnSOST-3. The sample used to develop the MnSOST-3 consisted of 2,535 sex offenders released from Minnesota prisons. […] The most popular tool in North America among criminal justice agencies is the Static-99, developed in the 1990s and updated to its Static-99R version. […] Originally developed using data from samples of sex offenders in Canada and the United Kingdom, the Static-99 is a “global” risk-assessment instrument that is the most widely used around the world. […]” (p. 276, 271–272)

“Our overall sample consists of 650 sex offenders released from Minnesota prisons in 2012 who had been scored on both the MnSOST-3 and the Static-99R. […] In comparing professional judgment with actuarial assessments in predicting recidivism, we used a subsample of 441 cases from the overall sample of 650 offenders. […] The predicted outcome in this study is sex offense recidivism, which we measured as a rearrest and reconviction. Consistent with the development of the MnSOST-3, we measured recidivism over a 4-year follow-up period from the date of the offender’s release from prison in 2012. Recidivism data were collected on offenders through December 31, 2016.” (p. 272)

“Among the 650 sex offenders in this study, 26 (4.0%) were rearrested for a new sex offense within 4 years of their release from prison in 2012. Of the 26 who were rearrested, 13 (2.0% of the 650) were reconvicted.” (p. 273)

“This study directly compared the MnSOST-3 and the Static-99R within a sample of Minnesota sex offenders who were scored with each tool. Findings demonstrated that the MnSOST-3 performed better than did the Static-99R on virtually all the metrics we used for both measures of sexual recidivism. Moreover, we examined the impact of professional judgment or clinical override on classification decisions by comparing the performance of presumptive and assigned risk levels in predicting sexual recidivism. If the ECRC overrides, which are professional judgment supplements to the actuarial tool, add incremental predictive validity, this would be evidence of the value of professional judgment. However, our results indicated unequivocally that clinical judgment in the form of overrides decreased predictive performance, which offers additional evidence that empirically based actuarial tools are superior to professional judgment.” (p. 276)

“It is interesting that the literature seems clear that professional judgment performs worse than do actuarial methods irrespective of the background of the professional making the observation or whether that judgment is structured or unstructured. This is true even for clinical judgment used in combination with actuarial tools. Some research has noted that raters are unfamiliar with or do not use base rate information appropriately in assigning risk. Another possibility is that judgment, whether structured or not, necessarily involves a higher degree of subjectivity than do actuarial measures and therefore are poorer in terms of prediction. Finally, it may be the case […] that clinical judgment often utilizes factors that are not related to recidivism.” (p. 276)

Translating Research into Practice

“Our study holds several important implications for research, policy, and practice. […] Given that the MnSOST-3 outperformed the Static-99R for our sample of Minnesota sex offenders, the results suggest local instruments may have a home-field advantage. To be sure, there are differences between the two instruments in terms of the items included and the classification methods used to develop the tools. In fact, to better demonstrate whether local instruments have a home-field advantage over global assessments, future research should attempt to more effectively isolate the effects of using a customized assessment compared to an imported instrument. Still, the evidence presented here suggests there may be value in applying an instrument to the same, or at least similar, population on which it was developed and validated.” (p. 277)

“In our view, home-grown instruments developed and validated within a particular population are the best option when considering tools for that population. Of course, many jurisdictions will not have a validated actuarial tool that was customized specifically for their own offender populations. In that case, universal tools (i.e., those developed using several populations, such as the Static-99 family) may be a good option, although such tools should be developed and validated on samples that are truly universal. Put another way, the population on which an instrument is being used should be very similar to the one on which the assessment was developed and validated. When a global instrument is used, it cannot be assumed the tool will deliver the same performance for a different assessment population. […] To understand whether a particular tool is effective with an agency’s population, one must evaluate the tool’s predictive performance on that population.”

“Our findings provide one more “nail in the coffin” for the value of clinical judgment in making recidivism predictions. Although some evidence exists that certain factors (dynamic ones in particular) may improve tools like the Static-99, the vast majority of empirical research has demonstrated that actuarial tools significantly outperform professional judgment. This does not mean clinical judgment is not important for the purposes of guiding treatment. Rather, when sex offenders are classified for recidivism risk-assessment purposes, actuarial tools should be the preferred method.” (p. 277)

“Given the consistently demonstrated superiority of actuarial assessments in predicting recidivism, we suggest it may be prudent to limit the extent to which professional judgment is used. Reducing the use of clinical judgment may involve restricting not only the types of cases in which overrides would be admissible but also how much an override would be allowed to deviate from an actuarial assessment. […] To develop guidelines that provide greater structure and clarity on when overrides are permissible, future research is needed to examine the conditions under which clinical judgment actually improves classification decisions or, at a minimum, does no worse than do actuarial assessments.” (p. 277)

Other Interesting Tidbits for Researchers and Clinicians

“Existing research on the validation of sex offender risk-assessment tools has often relied a single metric—namely, the AUC. As we noted earlier, the AUC has its strengths, but it also has some weaknesses. We suggest that future validation research begin using alternative measures of predictive discrimination such as Hand’s (2009) H measure and the precision-recall curve. But given that predictive discrimination addresses only one dimension of predictive validity, metrics that assess accuracy and calibration should also be used to provide a more comprehensive evaluation of predictive performance. As this study illustrates, accuracy metrics are informative for imbalanced data sets so long as there are at least some predicted positives in the data set. Moreover, if researchers and practitioners must rely on a single metric, we suggest that either the SAR or SHARP statistics would be preferable because both tap into multiple dimensions of predictive validity.” (p. 277)

“The AUC values for both the Static-99R and MnSOST-3.1 were lower in comparison to what most of the existing research has reported for either instrument. Much of this research, as we indicated earlier, has consisted of assessments that were scored for research purposes. In this study, we used assessments that had been scored by correctional staff for operational purposes, which provide what is arguably a truer test of predictive performance. Compared to field assessments, those administered strictly for the sake of research may yield overly optimistic estimates of predictive performance due to more favorable conditions in which raters are likely to have had more recent, thorough training. To provide a more realistic estimate of how sex offender risk-assessment tools perform in practice, future research should begin relying more on assessments performed by field staff. In addition, the results suggest that caution may be warranted in using an instrument whose predictive performance has yet to be evaluated on real-world assessments” (p. 277)

“Due to several limitations, however, these findings should be regarded as somewhat preliminary. First, because our study was confined to sex offenders from a single jurisdiction, it is unclear the extent to which the findings are generalizable. Second, the sample we used was relatively small (N = 650), and it was limited to releases over one calendar year. Third, similar to the case in prior research, the better findings for the MnSOST-3 may reflect an “allegiance effect” in which its scoring and use by MnDOC staff has been more consistent with its design in comparison to the Static-99R.” (p. 276)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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The link between risk assessment and management: Not as straightforward as it seems

When applied to risk management, risk assessment tools are not sufficient in and of themselves: They should be considered in context of their implementation and potential utility. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 3, 181–214

Do Risk Assessment Tools Help Manage and Reduce Risk of Violence and Reoffending? A Systematic Review

Authors

Jodi L. Viljoen, Simon Fraser University
Dana M. Cochrane, Simon Fraser University
Melissa R. Johnson, Simon Fraser University

Abstract

Although it is widely believed that risk assessment tools can help manage risk of violence and offending, it is unclear what evidence exists to support this view. As such, we conducted a systematic review and narrative synthesis. To identify studies, we searched 13 databases, reviewed reference lists, and contacted experts. Through this review, we identified 73 published and unpublished studies (N = 31,551 psychiatric patients and offenders, N = 10,002 professionals) that examined either professionals’ risk management efforts following the use of a tool, or rates of violence or offending following the implementation of a tool. These studies included a variety of populations (e.g., adults, adolescents), tools, and study designs. The primary findings were as follows: (a) despite some promising findings, professionals do not consistently adhere to tools or apply them to guide their risk management efforts; (b) following the use of a tool, match to the risk principle is moderate and match to the needs principle is limited, as many needs remained unaddressed; (c) there is insufficient evidence to conclude that tools directly reduce violence or reoffending, as findings are mixed; and (d) tools appear to have a more beneficial impact on risk management when agencies use careful implementation procedures and provide staff with training and guidelines related to risk management. In sum, although risk assessment tools may be an important starting point, they do not guarantee effective treatment or risk management. However, certain strategies may bolster their utility.

Keywords

systematic review, risk assessment, violence, offending, risk management

Summary of the Research

“In the past several decades, researchers have developed over 400 different tools designed to assess risk of violence and offending. Professionals, such as psychologists, probation officers, nurses, psychiatrists, and police, have widely adopted these tools in as many as 44 countries. In addition, administrators and policymakers have created policies and, in some cases, laws mandating the use of tools. […] Risk assessment tools are also commonly used in forensic psychiatric facilities, general psychiatric hospitals, treatment programs, correctional centers, and in a variety of court evaluations, such as those involving the transfer of adolescents to adult court and the civil commitment of individuals who have sexually offended.” (p. 181)

“Broadly speaking, risk management refers to the process of planning and implementing strategies to help prevent violence and other forms of offending. It is carried out by a variety of professionals (e.g., psychologists, probation officers, nurses, police) and encompasses not only treatment (e.g., therapy), but also strategies such as supervision, case management, and placement decisions. […] There is widespread agreement, among risk assessment researchers, that risk management is a key goal of risk assessment. […] As a result, the field of risk assessment has evolved to focus increasingly on the management and reduction of risk, rather than solely its prediction. […] However, even though many risk assessment tools aim to help manage and reduce risk, it is unclear whether tools do, in fact, achieve this goal.” (p. 182)

“Although the mechanism between risk assessment and risk management is not especially well-articulated, the primary hypothesized mechanism appears to be twofold. First, it is thought that tools will increase professionals’ level of adherence to the risk-need-responsivity (RNR) model of offender treatment. Second, it is believed that this will, in turn, decrease offending. […] [Risk assessment] tools are viewed as a means by which to deploy interventions that are evidence-based and individually tailored, thereby avoiding a “one size fits all” approach.” (p. 182–182)

“Although many researchers believe that risk assessment tools can help manage and reduce risk, some researchers have noted that the impact of tools may be contingent upon other factors, such as the type of tool and whether the tool is followed through on to match individuals to appropriate interventions. Whereas some tools focus primarily on historical or static factors, such as history of offending, other tools include dynamic or modifiable factors, such as anger management difficulties (i.e., criminogenic needs). In addition, on some tools (i.e., actuarial tools), evaluators add up risk factors to generate a total score. On other tools (i.e., structured professional judgment tools), evaluators use their discretion to make a separate summary risk rating after considering the items and additional case-specific considerations. As a result of these variations, tools may differ in their utility for various risk management decisions.” (p. 183)

“Besides variation in item content, risk assessment tools also vary in terms of their validity or their ability to predict reoffending. Some tools have been found to significantly predict reoffending in multiple studies, with effect sizes falling in the moderate range. However, other risk assessment tools have poor predictive validity, or have not yet been tested at all. Presumably, unless a tool has adequate validity in predicting reoffending, it will have limited value for risk management.” (p. 183)

“Finally, tools vary in the extent to which they include a focus on risk management. Whereas most risk assessment tools do not include explicit instructions or guidance regarding how to manage risk, some tools aim to bridge risk assessment to risk management by providing greater structure and support for risk management, such as by including case management planning forms.” (p. 183)

“Not only does the utility of risk assessment depend on the nature of the tool, it could also depend on how professionals use and apply tools. In particular, as is true of any type of assessment, the value of risk assessment likely lies primarily in what happens after the assessment. Although risk assessment tools may be a starting point for treatment and risk management, they are not a treatment in and of themselves. As such, it may be unrealistic to expect that using a tool will help manage risk or reduce reoffending unless (a) appropriate treatments are, in fact, available, and (b) professionals meaningfully apply tools to match individuals to these treatments.” (p. 183)

“Despite the debate about whether some tools may be better suited for risk management than others, most risk assessment researchers appear to believe that tools can, in principle, aid in risk management. However, this viewpoint is not embraced by everyone. Some critics have expressed concern that risk assessment tools, in general, are not only ineffective in managing risk, they might even cause harm to patients and offenders. […] Furthermore, some critics have questioned the motives that underlie the adoption of risk assessment tools. […] Finally, critics have pointed out that despite claims that risk assessment tools help to manage risk, there is little evidence to support such assertions.” (p. 183–184)

“In sum, opinions about the value of risk assessment tools for risk management efforts range considerably. […] It is concerning that many assertions about the utility of tools (or lack of utility) have been offered without reference to research findings. One possible explanation for the lack of empirical grounding for these assertions is that relevant research simply does not exist, as of yet. However, another possibility is that existing research has not yet been adequately integrated into the literature due to a lack of comprehensive reviews.” (p. 184)

“To our knowledge, only one systematic review has examined the utility of risk assessment tools for risk management, and this review was not designed to focus on risk assessment per se. […] The goal of the present systematic review was to expand on [that] review. First, rather than focusing exclusively on psychiatric patients in acute care settings, we included a range of populations (e.g., patients, offenders) and settings (e.g., jails, forensic hospitals). Second, rather than restricting our review to RCTs, our review encompassed a variety of designs (e.g., RCTs, prepost studies). […] Third, instead of solely examining whether the use of risk assessment tools reduce violence, we also investigated their impact on professional practices. […] As such, we reviewed research on whether tools facilitate professionals’ adherence to the risk and need principles, as these are the hypothesized mechanism by which tools might help manage risk. We also examined whether professionals perceive tools as useful for risk management and whether they use tools to guide their risk management effort; tools are unlikely to be effective if professionals do not apply them or view them as useful. […] Our goal was to understand, more thoroughly, the pathway between risk assessment and risk management. Furthermore, to develop an agenda for future research, we reviewed studies on strategies to enhance the utility of risk assessment tools for risk management, such as staff training.” (p. 184)

“To examine our research questions, we chose to conduct a systematic review rather than a traditional literature review because systematic reviews are more transparent, comprehensive, and objective. […] To synthesize findings, we used a narrative approach. An empirical synthesis (i.e., meta-analysis) was neither feasible nor appropriate because our review included a wide range of designs (e.g., RCTs, surveys), populations (e.g., offenders, patients), tools (i.e., 34 different risk assessment tools), and outcomes.” (p. 184–185)

“In total, 73 studies met inclusion criteria. Sixteen of these studies were unpublished; nine of the unpublished studies were dissertations or theses and the remaining seven were reports by researchers, government, or other organizations. These studies included 31,551 offenders or patients, 10,002 professionals, and 34 risk assessment tools. Most tools included dynamic or modifiable factors (i.e., criminogenic needs; 76.5%, k = 26), and were validated (i.e., have been found to significantly predict violence or reoffending; 82.4%, k = 28).” (p. 187)

“If professionals do not “buy-in” to tools or perceive them as useful, they may not adequately utilize them. Thus, as an initial step, we examined professionals’ attitudes toward risk assessment tools. We found that, although some professionals held positive views about tools, in many studies, professionals had mixed views about the utility of tools for risk management (e.g., treatment planning, placement decisions). This is not particularly surprising; professionals often feel reluctant to adopt new assessment and intervention approaches even when these approaches have strong research support. Furthermore, manuals and training for risk assessment tools often focus on how to complete item ratings rather than how to apply the tool to risk management efforts. As such, professionals’ questions about the utility of tools may be understandable.” (p. 203)

“Not only did professionals have mixed views about the utility of tools for risk management, in most of the identified studies, the use of risk assessment tools for risk management was mixed. Specifically, although some professionals reported that they relied on tools to guide their risk management decisions (e.g., decisions about services or placements), others reported that they did not use tools, even when employers mandated their use. As such, these findings illustrate that risk assessments do not necessarily flow through to risk management efforts. Slippage might be more likely to occur when risk assessors do not have direct control over risk management decisions, but instead act as intermediaries to decision-makers (e.g., judges). In such cases, the application of tools to risk management may depend not only on evaluators’ use of tools, but also on whether subsequent decision-makers perceive tools as useful and relevant.” (p. 203)

“Despite the mixed application of tools to risk management efforts overall, match to the risk principle was moderate following the use of risk assessments tools. In a number of studies, high-risk individuals were referred to more services than low-risk individuals. They were also more likely to receive secure placements. However, most studies did not have a comparison group of individuals who did not receive risk assessments. As such, it is difficult to determine if such findings are attributable to the use of the tool; some research suggests that high-risk individuals receive more intensive risk management strategies than low-risk individuals even when a risk assessment tool is not used.” (p.203)

“Contrary to the positive findings relating to the risk principle, match to the need principle appeared limited following the use of risk assessment tools (match was rated as mixed or low in all but one study). This means that many of offenders’ and patients’ needs remained unaddressed even when risk assessment tools were used. This could indicate that professionals are not paying adequate attention to risk assessments when they are making decisions about services. Alternatively, these low rates of overall match could occur because professionals opt to focus on only a couple “high impact” needs at a given time, as it may not be feasible to simultaneously target all needs. Another possibility is that low rates of match occur because services to address needs are simply not available. Clearly, identifying needs has limited value if there are no viable means by which to address these needs. Finally, low match to the needs principle may, in part, arise from limited compliance; offenders and patients may not necessarily attend or engage in the services to which they are referred.” (p. 203–204)

“In light of the preceding findings, it is perhaps not surprising that evidence on whether tools reduce violence and offending was inconsistent. Although two RCTs found that the use of the BVC resulted in decreases in violence, another RCT did not find significant changes in violence or other criminal incidents when another tool, the START, was implemented. In addition, although two pre-post studies found that the implementation of risk assessment tools was associated with decreases in violence or offending, the bulk of pre-post studies (k _ 7) did not. Thus, at present, there is insufficient evidence to conclude that tools reduce violence or offending. One possible explanation for these findings is that it may be unrealistic to expect risk assessment tools to directly reduce violence or offending. […] Another possible explanation for the modest findings is that the effectiveness of tools might vary by factors such as the setting, population, or tool. […] It is also possible that some tools may be more effective than other tools.” (p. 204)

“Overall, our results suggest that there is a disconnect between the theory of risk assessment and what actually happens in real-world practice. However, although research is limited, preliminary evidence suggests that it may be possible to enhance professionals’ risk management practices by combining the use of risk assessment tools with approaches such as risk management training and structured risk management guidelines. Though such approaches may not directly reduce violence and offending, they have been found to improve match to the risk and need principles, thus providing potential avenues by which to enhance the utility of tools. Sound implementation practices, such as policies and protocols to guide the use of tools, are also critical” (p. 204)

“Overall, this review suggests that even though risk assessment tools may be a starting point for risk management, they are not sufficient in and of themselves. Although some studies found positive results, indicating that tools might help achieve better match to the risk principle or even reductions in violence in some circumstances, the findings also revealed that “there is no guarantee that the results of these protocols flow through to front line service provision”. […] To ensure that risk assessment instruments are optimally used and do not degenerate into merely a bureaucratic exercise further efforts are needed. In particular, rather than focusing exclusively on predictive validity studies and the development of new tools, researchers need to pay greater attention to how tools are applied to guide real-world decisions, such as by testing the pathways between risk assessment and risk management, identifying areas of slippage, and developing strategies to facilitate the ability of risk assessments to translate into better risk management efforts.” (p. 205)

Translating Research into Practice

“Our findings suggest that risk assessment tools are not sufficient to guarantee sound risk management practices or reductions in violence. Thus, researchers and tool developers should be careful to not overstate the potential value of risk assessment for risk management. Likewise, professionals, agencies, and policymakers should not rely on risk assessment tools as their sole or primary risk management strategy. Instead, agencies who use risk assessment tools should work to build staff buy-in, regularly monitor adherence, and ensure that they are providing effective treatment, rather than funneling all their resources into assessment.” (p. 204)

“That said, even though risk assessment tools have limitations, they remain a best available practice. Although tools may not reduce violence or offending in and of themselves, there is no evidence that alternative approaches, such as assessing risk via unstructured clinical judgment or not assessing risk at all, do so either.” (p. 204)

Other Interesting Tidbits for Researchers and Clinicians

“To ensure that our systematic review met best practice standards and followed relevant reporting guidelines, we followed the criteria set forth in the Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRISMA) statement and the Assessment of Multiple Systematic Reviews (AMSTAR) tool.” (p. 185)

“Studies were required to meet the following inclusion criteria: (a) empirical study that was published or disseminated in English; (b) included a sample of individuals who were assessed with a structured risk assessment tool in real-world practice and/or a sample of professionals who used risk assessment tools in practice; and (c) included an outcome relevant to at least one of our research questions (e.g., perceived utility, adherence to the risk principle). We defined structured risk assessment tools as tools that included a designated list of risk factors and an overall rating of risk level for violence or offending. Thus, we did not include measures of psychopathy. Also, we did not include qualitative research, as systematic reviews of qualitative studies use different methodologies, nor did we include research on the responsivity principle, as this principle encompasses a wide range of constructs (i.e., culture, trauma, mental health) and is not as well-researched as the risk and need principles. When disseminations were based on the same sample, we selected the study that was the most comprehensive and rigorous (e.g., largest sample).” (p. 185)

“In interpreting our findings, several limitations of this review are important to note. Although we systematically searched 13 databases, reviewed reference lists, and contacted experts, our review likely missed some studies, such as studies written in languages other than English. In addition, although we attempted to summarize our findings with terms such as low, mixed, or high, definitions of such terms are somewhat subjective by nature. As such, to increase transparency and objectivity, we provided operational definitions of our summary terms, and summarized study findings in more detail using evidence tables. In addition, two independent raters coded each study and we conducted consensus ratings. Another limitation of this systematic review is that there is a lack of appropriate tools for appraising risk of bias in risk assessment studies. As such, we drew items from other tools, and adapted the wording for this context. However, the approach that we used to appraise observational and survey studies was brief and, as such, our review likely failed to capture some relevant study limitations. Finally, although we examined differences in general patterns of results across published and unpublished studies, it is difficult to evaluate publication bias in narrative reviews.” (p. 204)

“On the basis of this review, there are number of important areas for future research. First, many studies have lacked appropriate comparison groups, making it impossible to determine if tools improve practices per se. As such, there is a strong need for further research with comparison groups of individuals who were not assessed with a risk assessment tool, including studies with both mental health and justice populations. Second, to determine if certain tools may have a more beneficial impact on risk management than other tools, head-to-head comparisons of tools are needed. Third, adherence to risk assessment tools appears to be poor in some cases, making it difficult to evaluate the impact of tools. As such, research should routinely measure and report adherence. Fourth, given that the utility of tools for risk management likely depends heavily on what happens after the risk assessment, researchers examine the pathway between risk assessment and risk management, such as by developing and testing conceptual models. Finally, researchers should create and evaluate approaches to improve the utility of tools for risk management, such as training initiatives, structured risk management guidelines, and quality improvement or audit systems.” (p. 204–205)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Building a bridge between assessment and practice: Risk assessment tool and RNR principles adherence in probation case plans

Although the LS/CMI was found to be a valid tool for appraising recidivism risk in community-supervised adult male and female offenders, in order to translate risk appraisal tools into the real world case plans application, probation officers require a quality field training with the application of RNR principles. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 3, 258–268

Real-World Use of the Risk–Need–Responsivity Model and the Level of Service/Case Management Inventory With Community-Supervised Offenders

Authors

Heather L. Dyck, Glenrose Rehabilitation Hospital, Edmonton, Alberta, Canada and University of New Brunswick—Fredericton
Mary Ann Campbell, University of New Brunswick—Saint John
Julie L. Wershler, University of New Brunswick—Fredericton

Abstract

The risk–need–responsivity model (RNR; Bonta & Andrews, 2017) has become a leading approach for effective offender case management, but field tests of this model are still required. The present study first assessed the predictive validity of the RNR-informed Level of Service/Case Management Inventory (LS/CMI; Andrews, Bonta, & Wormith, 2004) with a sample of Atlantic Canadian male and female community-supervised provincial offenders (N = 136). Next, the case management plans prepared from these LS/CMI results were analyzed for adherence to the principles of risk, need, and responsivity. As expected, the LS/CMI was a strong predictor of general recidivism for both males (area under the curve = .75, 95% confidence interval [.66, .85]), and especially females (area under the curve = .94, 95% confidence interval [.84, 1.00]), over an average 3.42-year follow-up period. The LS/CMI was predictive of time to recidivism, with lower risk cases taking longer to reoffend than higher risk cases. Despite the robust predictive validity of the LS/CMI, case management plans developed by probation officers generally reflected poor adherence to the RNR principles. These findings highlight the need for better training on how to transfer risk appraisal information from valid risk tools to case plans to better meet the best-practice principles of risk, need, and responsivity for criminal behavior risk reduction.

Keywords

risk-need-responsivity model, case management, Level of Service/Case Management Inventory, best practices

Summary of the Research

“The risk–need–responsivity (RNR) model provides guidance for effective offender risk assessment and case management. This model reflects an integrated theory of criminal behavior drawn from personality, cognitive, and social learning approaches and contains three foundational principles: the risk, need, and responsivity principles. The risk principle states that supervision and intervention intensity should match the individual’s recidivism risk (more intensive services for high-risk offenders). The need principle calls for the identification, and targeted intervention, of criminogenic needs (e.g., procriminal thinking, substance use, family problems) driving the criminal behavior. The responsivity principle outlines guidelines for how to provide intervention services; namely by means of cognitive-behavioral skill building techniques rooted in social learning theory that are individualized to match the offender’s characteristics (e.g., age, ethnicity, learning style, motivation).” (p. 258)

“Generally, correctional programs and case plans that more strongly adhere to the RNR model show decreased levels of recidivism in males and females, youth and minority offenders, and in community and custodial settings with recidivism reductions of 10–50%. Stronger adherence to the RNR model is associated with decreases in substance abuse relapses and a variety of criminal behaviors, including nonviolent, violent, gang-related, and sexual offenses. […] Research has demonstrated that the RNR model is cost effective when compared to traditional sanctions for criminal behavior, with a $2 cost for each 1% decrease in recidivism compared with $40 for each 1% decrease when using sanctions. These results indicate that correctional services that implement a RNR model framework can significantly reduce recidivism without a significant increase in cost.” (p. 259)

“A key aspect of the RNR model and evidence-based case management is the use of risk assessment measures. Using a risk assessment instrument to inform decision-making increases the agreement in case management plans across probation officers. Contemporary risk tools are advancing into a framework that integrates the risk appraisal process with case management planning and progress assessments until discharge. The Level of Service/Case Management Inventory (LS/CMI) is one instrument that aligns with this integrative case management process. The LS/CMI is designed to assist professionals in justice, forensic, correctional and crime prevention agencies with the management, supervision, and case planning of offenders over the age of 16 years. The LS/CMI was developed as an extension of the Level of Service Inventory– Revised (LSI-R). […] The LS/CMI has demonstrated moderate to high predictive validity for general recidivism with male and female offenders in both incarcerated and community-based settings, and is moderately predictive of violence.” (p. 259)

“Despite the importance of evidence-based assessment for informing how best to reduce recidivism risk, risk assessment is not without its criticisms. Some scholars have noted the inherent challenges with holding someone accountable for something they “might” do in the future, for the failure of group data to apply to individuals and the risk of harm of such approaches to marginalized groups, for the failure of group data to apply to individuals and the risk of harm of such approaches to marginalized groups, and greater need for culturally informed risk assessment. Thus, the value of risk assessment must be contextualized within these concerns.” (p. 259)

“Real-world use of risk instruments and their integration into case planning is often less than ideal. […] Challenges with RNR adherence may depend on the quality of the risk assessment tool used to inform the case plan. […] Given that the RNR model was foundational to the practices of the community supervision agency assessed in the current study, we took the opportunity to examine the degree of RNR adherence in their case management plans. These plans were informed, as per policy, by completion of the LS/CMI. Thus, consistent with past research, we expected the LS/CMI to have strong predictive validity for general recidivism for males and females. Furthermore, in accordance with the RNR model, we predicted that high-risk cases would receive higher intensity intervention and support services (e.g., more sessions, longer duration) than lower risk offenders. For all offenders, regardless of risk level, it was predicted that offenders with LS/CMI identified criminogenic needs would be referred to services that appropriately targeted these needs. Finally, it was predicted that the intervention services to which offenders were referred would follow the responsivity principle— use of effective intervention strategies for offenders (e.g., cognitive–behavioral strategies) and tailored delivery to the client’s strengths and weaknesses (e.g., motivation level, cognitive ability).” (p. 259–260)

“Data were drawn from case files generated between 2007 and 2012 by a provincial community correctional service in Atlantic Canada. Cases were randomly selected for inclusion, resulting in a sample of 136 offenders (101 male, 35 female; M age = 30.0 years, SD = 9.86; age range 18.05 – 70.07 years). Most (80.1%) were sentenced to probation, 9.6% were serving a conditional sentence, 2.2% were on house arrest, and 8.1% were on a combination of community supervision types. Thirty-one percent had a preindex history of criminal behavior. The sample was primarily Caucasian (93.4%), with the remaining 6.6% comprised of African Canadian, Asian, and Indigenous persons. A majority (78.7%) completed high school and/or had more advanced training/education.[…] The total sample available for pre–post comparisons in LS/CMI scores was 78 [cases].” (p. 260)

Materials included Level of Service/Case Management Inventory (LS/CMI), Adherence to the risk–need–responsivity (RNR) model (higher intensity treatment for higher risk individuals, primary treatment goals were related to identified criminogenic needs, case plan was tailored to individual’s strengths and limitations and when evidence-based interventions were used), and Index offense and recidivism data.

“Consistent with past research, the LS/CMI was a valid predictor of general recidivism for both male and female offenders in the current study. As expected, LS/CMI-identified high-risk cases reoffended at a significantly faster and higher rate than low-risk cases. Thus, the LS/CMI is useful for appraising recidivism risk in community supervised adult offenders. […] LS/CMI total scores did not significantly change from intake to the time of reassessment for the subgroup of cases for which such data were available. Reassessment cases did not differ from clients without reassessment on age, gender or LS/CMI intake risk scores. Nevertheless, being reassessed for risk was associated with a lower risk of general recidivism (52.6%) relative to clients only assessed at intake (67.2%). Thus, although risk scores did not change, the rate of reoffending may have been impacted by the reassessment. Although causation cannot be inferred, reassessment offers the opportunity to adjust case plans to mitigate the real-world expression of the identified risk (i.e., better risk management).” (p. 264)

“Despite use of a valid risk assessment instrument, the present study’s data did reflect challenges with the transfer of assessment information into RNR-informed case management planning. Notably, only 44.1% of reviewed plans met the risk principle and only 59.6% met the need principle. Other studies also identify problems with the translation of risk assessment information into RNR-informed case plans. Collectively, these results highlight the need to provide better training to facilitate the integration of these two processes. When stronger adherence to the RNR model was achieved, the rate of general recidivism was lower in the current study, as has been found by others. Adhering to both the risk and need principles in the current sample was associated with a 26.5% rate of reoffending, whereas this rate was 60.6% when neither of these two core principles were met. However, it was the lower risk case files that received the strongest RNR adherence ratings, which may bias interpretation of these differential recidivism outcomes.” (p. 265)

“For need principle adherence, there was little indication of overintervening with low-risk offenders. The exceptions were in the criminogenic need domains of employment/education and family/marital issues where interventions tended to be provided despite being assessed as low need areas. Probation officers may have viewed these areas as strengths to build on, but this is not clear from the current data. The importance of incorporating assessment of individual strengths or protective factors into risk assessment and case planning is increasingly being recognized and advocated for in the RNR model. Although some probation officers may have considered protective factors, it was not clearly documented. In addition, the way in which individual strengths were incorporated into case plans was likely inconsistent across probation officers without a structured protocol to inform which factors to consider and how to integrate them into the case plan.” (p. 265)

“In line with RNR recommended practice, high risk offenders in the current study were referred to a significantly greater number of services than low-risk offenders.[…] It is the quality of these services that matter more to risk/need adherence than the quantity of services per se. […] We found that high-risk cases were less likely to have their criminogenic needs targeted for intervention relative to low-risk cases. It may be that probation officers had difficulty teasing apart criminogenic and noncriminogenic interventions when working with higher risk cases, and the criminogenic focused interventions may not have been prioritized appropriately. Understanding of the process of intervention and how to target criminogenic needs in supervision meetings is a new responsibility for probation officers.” (p. 265)

“The responsivity principle is the most understudied component of the three main principles of the RNR approach, but is generally viewed as a valuable component. Unfortunately, the responsivity principle could not be meaningfully examined in the present study due to the condition of the case files. Limited information relating to the responsivity principle is consistent with previous community research.” (p. 265)

“The present study provides additional evidence for the use of the LS/CMI in community-supervision environments, especially in Atlantic Canadian populations. Furthermore, it highlights the difficulty with real-world application of the RNR model. The present study also provides evidence of challenges probation officers may experience when asked to alter their roles from a focus on supervision to a therapeutic/intervention focus. Field training with ongoing mentorship and fidelity checks is essential for ensuring appropriate implementation of the RNR model.” (p. 266)

Translating Research into Practice

“Transitioning from a role in which supervision of offenders was the primary task into one that balances supervision and intervention, as advocated by the RNR model, is one that takes time for employees to achieve.” (p. 265)

“Changes in probation officers’ approach to intervention are expected to be gradual as they adapt to a new system of practice. It is through the integration of the assessment and rehabilitation processes that the strongest outcome results are obtained. […] Quality field training with the application of the RNR model is essential and should include educational workshops about the model, why adherence to it matters for risk reduction and enhanced client outcomes, and intervention skill learning (e.g., cognitive restructuring, motivational interviewing). Over time, individual mentorship, booster sessions and skill upgrading will be key as the field of evolves. The Strategic Training Initiative in Community Corrections model is an example of this type of training, with effective results for reducing criminal risk in the clients supervised by probation officers trained in this manner relative to clients supervised by untrained probation officers. Further evaluation of such training models is needed.” (p. 265–266)

Other Interesting Tidbits for Researchers and Clinicians

“A major strength of the present study was its use of offender case files that reflect the real-time practices and implementation of the RNR framework. However, using data gathered from records maintained by professionals without a focus on research has its limitations. First, although Section 1 of the LS/CMI had strong predictive validity for general recidivism events and time to first recidivism, the majority of files did not have the other LS/CMI sections completed despite being intended to inform case management and supervision practices. […] Furthermore, many files did not have a follow-up LS/CMI completed or any information on the program(s) the offender was referred to (e.g., intervention orientation, main intervention goals). […] Examining RNR adherence with a larger sample size may reveal greater nuances in practices and limitations, including the value of reassessment. Another limitation of the current study was the limited information available for the offender rehabilitation programs. […] Finally, it should be acknowledged that the sample used in the current study was modest relative to other risk prediction studies using the LS/CMI which tend to exceed 500+ cases for analyses, often into the thousands. Although our smaller sample may influence the generalizability and reliability of the current findings, our risk prediction and RNR adherence results are fairly consistent with the broader research literature on the LS/CMI and RNR adherence use in the field.” (p. 266)

“Future research should focus on the integrity of implementing the RNR principles in real world case management as these principles, and more widely the RNR model, become foundational for more organizations. The most fruitful research may come in the form of full prospective program evaluations during times of organizational transition and policy changes.” (p. 266)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Do Risk Formulations Differ Depending on which Version of the HCR-20 is used?

The results of the current study suggest that the quality of risk formulation needs improvement but that HCR-20-V3 formulations of risk are better than those of the HCR-20 Version 2. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | International Journal of Forensic Mental Health | 2018, Vol. 17, No. 2, 195-201

An Evaluation of the Quality of HCR-20 Risk Formulations: A Comparison between HCR-20 Version 2 and HCR-20 Version 3

Authors

Jenny Hopton, Partnerships in Care, United Kingdom
Adrian Cree, Partnerships in Care, United Kingdom
Sean Thompson, Partnerships in Care, United Kingdom
Russell Jones, Partnerships in Care, United Kingdom
Roland Jones, Partnerships in Care, United Kingdom

Abstract

In recent years more attention has been given to the crucial role of formulation when assessing and managing risk. There is evidence to suggest that not all clinicians are competent at producing formulations, despite this being a key competency. We investigated the quality of risk formulation in routine clinical practice in 121 forensic psychiatric hospital patients in the UK using the Case Formulation Quality Checklist Revised (CFQC-R). Next, we compared the quality of formulations in Version 2 and Version 3 of the HCR-20. The results overall showed that the quality was in the intermediate range, however, Version 3 formulations were of slightly better quality than Version 2. When formulations were considered in terms of word count, the findings suggested that longer formulations were not necessarily associated with higher quality. It appears that formulation quality has improved with the new version of the HCR-20, but there is a need for training in risk formulation for clinicians to improve the quality of those being produced.

Keywords

Formulation quality, risk formulation, HCR-20

Summary of the Research

Introduction
“Risk formulation has become central to the process of risk assessment in recent years. Approaches to risk assessment have evolved from unstructured risk assessment and actuarial risk assessment to structured professional judgement (SPJ), which incorporates formulation and treatment planning, to the current focus on the formulation . . . Formulation is defined as an organization framework for producing a narrative that explains the underlying mechanism and proposed hypotheses regarding action to facilitate change. Information gathered (most commonly using structured professional judgement tools) is synthesized so as to produce a narrative understanding or hypothesis of how and why factors contribute to the risk” (p. 195).

“There are two categories of risk formulation: theoretically informed and pragmatically grounded. Theoretically informed formulations draw from an accepted theoretical model to inform the understanding of risk. In contrast, pragmatically grounded formulation are derived using a validated structure or checklists to facilitate information integration, such as Weerasekera’s (1996) “Four P’s” model which considers predisposing, precipitating, perpetuating, and protective factors, and also the HCR-20 . . . However, the core elements of formulation are the same regardless of the model used, and as no individual theory or model to date has been able to adequately explain violence, pragmatically grounded formulations have been suggested to be better suited to the risk assessment of violence” (p. 195).

“The third edition of the HCR-20 placed a greater emphasis on formulation than previous versions. Despite growing recognition of the importance of formulation in risk assessment and risk management, there has been little research on it. While there has been much research on the HCR-20 and its reliability and validity, there has been very little study of the quality and completeness of formulations in routine clinical practice. Indeed, although formulations are considered central to risk assessment, there is no empirical evidence as to what an adequate formulation should comprise . . . There is also no evidence as to the appropriate length of a formulation, or whether length of formulation is related to quality” (p. 196).

“Sturmey and McMurran (2011) stress the importance of accurate case formulation in forensic settings and highlight that errors in formulation could lead to reoffending, harm to others and also large costs of detention and treatment. Ensuring accuracy of formulations can be a complex task due to them being frequently revised and adapted. Different clinicians depending on their training and preferred theoretical models could also draw varying conclusions regarding an individual. In order to begin to assess the quality of a formulation, Hart et al. (2011) suggested that perhaps the first step is to agree on criteria for judging adequacy in formulations. They suggested ten criteria that should be apparent
within a good formulation. These criteria formed the basis for the Case Formulation Quality Checklist Revised (CFQC-R)” (p. 196).

Current Study
“The purpose of our study was to systematically evaluate the quality of risk formulations in a large clinical service in the UK using the CFQC-R. Given the increased emphasis on formulation in the HCR-20 Version 3 compared with HCR-20 Version 2 we also aimed to compare the quality of risk formulations, derived using the HCR-20 V2 and the HCR-20 V3. Finally, we aimed to evaluate the length of risk formulations and to investigate whether there was a relationship between word count and quality” (p. 196).

“HCR-20 risk formulations were randomly selected from those carried out on inpatients in 20 independent secure psychiatric hospitals in the UK from 2013–2015. The final sample included 121 cases derived from 17 of the 20 hospital sites . . . There were 58 cases from which a HCR-20 V2 was extracted, and 63 cases from which a HCR-20 V3 was extracted. The cases were then divided approximately equally between three assessors to assess the quality of the formulation using the CFQC-R” (p. 197).

Results
“The median overall score on the CFQC-R was 6. Comparing V2 and V3 formulations, V3 formulations were rated significantly higher than the V2 cases on 6 of the CFQC-R criteria, namely narrative, external coherence, factual foundation, internal coherence, events understood over time, completeness, and the overall rating of quality. We found no item of the CFQC-R that scored significantly higher in V2 cases than V3 cases. Generally, we found that formulations were scored highest on the criteria of internal coherence and completeness. The items that were scored lowest were external coherence and action orientated” (p. 198).

“The mean length of the risk formulations was 519.6 words and there was a large variation between them. There was no significant difference in mean word count between V2 and V3. With regard to the relationship between length of formulation and quality, the scatter graph showed a nonlinear relationship. The optimal length appeared to be those that were approximately 400–800 words in length. Longer formulations were not rated as being of higher quality” (p. 198).

Translating Research into Practice

“We found that in general, the formulations were of poor to intermediate quality, scoring 6 or less out of 10 on the CFQC-R. These findings are similar to those that have investigated the quality of diagnostic case formulations in general mental health settings. Notwithstanding the moderate overall quality of formulations, we found significantly higher quality in the V3 compared with the V2 on 6 out of the 10 quality criteria” (p. 198).

“It is possible that there was a measurable improvement in the quality of formulations in V3 cases compared with V2 in our study due to the emphasis placed on formulation in the V3 as compared with the V2. The structure of the V3 may have helped clinicians consider and organize the importance of risk factors, and how they relate over time. For example, the addition of the age subheadings for history of violence and antisocial behavior items, the requirement to consider whether risk factors are both present and relevant, and the addition of a scenario planning section. It is also possible that the training delivered on the V3 prior to its implementation in all the hospitals increased the quality of formulations by the clinicians. Although similar training on the V2 was given to staff prior to its implementation, the recency of the training, as well as added emphasis on formulation in the V3 manual may have had a positive effect” (p. 199).

“Overall, the ability to go beyond description of facts to make testable predictions in the formulations was poor in our sample, and the least difference was found between V2 and V3 on this criteria. Clinicians may have hypotheses regarding why a patient behaves the way they do, but may not feel confident to detail these in documents mainly consisting of factual information. This task also requires significant reflection and is time consuming, and there are likely to be competing demands on clinicians in busy services. Work needs to be done to address this short-fall in risk formulations as going beyond descriptions of behavior to understanding risk is essential to make accurate decisions regarding treatment options and risk management” (p. 199).

“Formulations that prioritized and planned treatments were low in frequency in our sample, especially within the V3 category where this was the lowest scored item. The push for risk formulation use within forensic practice was to help bridge the gap between assessment and management, however, we found this did not happen explicitly. One potential reason for this was that the HCR-20 V3 includes a section on scenario planning in which treatment plans may be recorded. A limitation of this study was that only the risk formulation section was analyzed and not the scenario planning section. This may suggest that, in practice, formulation and scenario planning are being completed as one task, despite the HCR-20 V3 authors explicitly stating that formulation and scenario planning are separate stages of the administration process” (p. 199).

“When we explored how length of formulations was related to quality, we found that increased length did not improve quality of formulations as measured by the CFQC-R. Similarly, the shorter formulations in our sample had the lowest quality scores. The results showed that the highest quality formulations were approximately 400–800 words, with quality not improving for word counts beyond this mark. We would expect that these formulations scored well as they were clear, concise and free from unnecessary or irrelevant details” (p. 199).

Other Interesting Tidbits for Researchers and Clinicians

“Our findings suggest not only that formulation quality needs improvement but the specific areas to address in order to achieve this. We have found that particular attention needs to be paid to making sure formulations are consistent with theory (external coherence criteria), make detailed and testable predictions (predictive criteria), and prioritize and plan treatments (action orientated criteria)” (p. 200).

“It has previously been highlighted that the process of researching the validity and reliability of formulations is an area that has been long overlooked and requires investigation. There have also been suggestions about how to start with this enormous task, one of which was to first define a good quality formulation and measure it. In this study, using validated criteria, we have found that more work is needed to train clinicians to enable them to produce higher quality risk formulations. Future research is also needed to investigate whether there is a relationship between quality of formulation and efficacy of clinical risk management” (p. 200).

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Becca Cheiffetz

Becca Cheiffetz is a master’s student in the Forensic Psychology program at John Jay College of Criminal Justice. She graduated in 2015 from Sam Houston State University with a BS in Psychology and plans to continue her studies in a Clinical/Forensic Psychology PhD program in the near future. Her professional interests include providing clinical evaluations and treatment for individuals in prison as a prison psychologist and conducting forensic assessments for defendants in criminal court.

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MMPI-2-RF Scales Have Limited Utility in Predicting Competency Restoration

The present study evaluated whether specific aspects of psychopathological constructs assessed by the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF) and specific cognitive abilities assessed by the Wechsler Abbreviated Scale of Intelligence (WASI/WASI-II), were associated with length of competency restoration of a sample of male pretrial defendants in a maximum security forensic psychiatric hospital. No MMPI-2-RF or WASI/WASI-II scales predicted restoration status at 180 days when controlling for age. Overall, the results suggested that externalizing behaviors are among factors that may play a role in predicting restoration status at certain time points. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | The International Journal of Forensic Mental Health | 2018, Vol. 17, No. 2, 167-180

Personality, Psychiatric, and Cognitive Predictors of Length of Time for Competency to Stand Trial Restoration

Authors

Laura M. Grossi, MA, Fairleigh Dickinson University
Debbie Green, PhD, Fairleigh Dickinson University
Melanie Schneider, MA, Fairleigh Dickinson University
Brian Belfi, PsyD, Kirby Forensic Psychiatric Center
Shanah Segal, PsyD, Kirby Forensic Psychiatric Center

Abstract

Certain defendant characteristics, including psychiatric diagnosis, externalizing problems, and cognitive deficits, are associated with longer periods of restoration of competency to stand trial and general lack of treatment success. Prior research has called for a more detailed examination of symptom-level differences between defendants rapidly restored to competency and those who require lengthier treatment for competency restoration. The present study evaluated whether specific aspects of psychopathological constructs assessed by the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF), and specific cognitive abilities assessed by the Wechsler Abbreviated Scale of Intelligence (WASI/WASI-II), were associated with length of competency restoration among 344 male pretrial defendants hospitalized at a maximum security forensic psychiatric hospital. Higher Juvenile Conduct Problems (JCP) scores were associated with restoration within 90 days, and Antisocial Behavior (RC4) predicted restoration status at 90 days; no MMPI-2-RF or WASI/WASI-II scales predicted restoration status at 180 days when controlling for age. Overall, results suggested that externalizing behaviors are among factors that may play a role in predicting restoration status at select time points.

Keywords

Competency to stand trial, competency restoration, symptoms, MMPI-2-RF, WASI-II

Summary of the Research

“The psychological treatment of incompetent (IST) defendants as preparation for adjudication, termed, competency restoration, is largely educational and aimed at helping defendants gain a factual and rational understanding of the legal system. In addition, symptom and behavior management of those deemed IST plays an important role in various aspects of the restoration process…Although there is no standard competency restoration treatment protocol, treatment typically involves psychotropic medication, group therapy focused on psychoeducation, and when resources are available, individual therapy…Approximately two-thirds of IST defendants are deemed CST within 6 months of competency restoration treatment and more than 80% are restored to competency within one year…” (p.167-168).

“A relatively small literature has identified factors that are predictive of restoration/restorability, or length of time for competency restoration more generally…Even so, several demographic, historical, and clinical factors appear associated with restoration of competency or restorability…diagnoses of non-psychotic disorders, a criminal history, younger age, and/or female gender are typically associated with a determination that a defendant is restorable. In contrast, diagnoses of psychotic disorders and irremediable/organic cognitive disorders, greater number of days previously hospitalized, lack of prior convictions, current violent charge, older age, and male gender are frequently associated with a determination that a defendant is IST and/or unrestorable…The present study examined the extent to which specific psychological measures assessing personality, psychopathology, and intelligence may assist forensic evaluators in estimating the requisite length of treatment for competency restoration, in a sample of male IST pretrial defendants. Specifically, we examined the utility of the Minnesota Multiphasic Personality Inventory-2 Restructured Form…and Wechsler Abbreviated Scale of Intelligence…for informing predictions of competency restoration” (p.168).

“We hypothesized that scores on the MMPI-2-RF scales assessing problems in thinking and externalizing problems would be positively associated with length of time for competency restoration, with the length of restoration variable defined (1) continuously, reflecting the number of days from hospital admission until a passed formal CST evaluation, and (2) dichotomously, representing restoration status at 90 days and 180 days. This was predicted as the constructs assessed by these MMPI-2-RF scales are negatively associated with treatment adherence and completion in other settings. Further, this hypothesis was developed with the assumption that traits assessed by the MMPI-2-RF scales may not be necessarily reflected in a defendant’s behavioral history…” (p. 170).

“We additionally hypothesized that composite scores (FSIQ-2) and subtest scores (Vocabulary and Matrix Reasoning) of the WASI/WASI-II would be negatively associated with length of time for restoration of competency to stand trial. Based on the limited literature described above, we anticipated that the strongest associations with length of competency restoration would include FSIQ-2 and Vocabulary, and that Matrix reasoning would be less strongly related. Overall, we expected that pathological traits and impaired abilities, assessed by MMPI-2-RF scales and WASI/WASI-II subtests, would contribute to impairment of examinee’s competency-related abilities (i.e., defendants’ factual understanding, rational understanding, and ability to consult with a defense attorney) and thus prolonged hospitalization for competency restoration. Finally, the present study explored whether reasons for MMPI-2-RF profile un-interpretability were predictive of time to achieve competency restoration” (p.170).

“As standard practice, all defendants were evaluated for diagnostic clarification and treatment planning within a few weeks of admission to the hospital. As part of that assessment, the Wide Range Achievement Test – 4th Edition (WRAT-4), MMPI-2-RF, and WASI/WASI-II were administered. For the purposes of the present study, the results of these measures, along with defendants’ demographic and legal information, were obtained from defendants’ hospital records…Analyses examining whether IST and CST defendants could be differentiated at 90 days based on MMPI-2-RF and WASI/WASI-II scores indicated that only JCP [Juvenile Conduct Problems] scores significantly differentiated those who were restored and those who were not, although RC4 [Antisocial Behavior] also approached significance. However, both the results of JCP and RC4 analyses were contrary to prediction, with those defendants who remained IST endorsing fewer conduct-related problems in childhood and adolescence, and fewer antisocial beliefs, than those who were CST at 90 days” (p.176).

“None of the MMPI-2-RF or WASI/WASI-II scores differentiated between IST and CST groups at 180 days, although Vocabulary approached significance. The scales in combination were predictive of restoration status at 180 days; however, age, which was entered as a covariate, was the only variable that uniquely contributed to the model. Thus, the hypothesis that MMPI-2-RF and WASI/WASI-II scales would be predictive of restoration status at 180 days was not supported. Instead, older age appeared to be a stronger indicator of continued incompetency at 180 days, consistent with the literature” (p.177).

Translating Research into Practice

“It is imperative for clinicians to be able to identify those defendants who are likely to require hospitalizations for restoration of competency to stand trial early in their treatment for several reasons. Such defendants might have treatment needs that are distinct from those of defendants who are on a more typical restoration trajectory. For example, such defendants may benefit from intensive or specialized treatment (e.g., cognitive remediation or individual therapy), among other resources that will help them move more rapidly through the restoration process…Further, identifying such individuals and intervening appropriately may pre-empt a potential standstill in the legal process, and help to ensure that defendants’ legal rights and liberty are protected. In particular, treatment providers and defendants may benefit from reliable early identification of those defendants who are not restorable, so that Jackson relief can be applied for appropriately and in a timely fashion” (p.176).

“As measures of behavioral instability and oppositionality…the JCP and RC4 scales likely have implications for management in the forensic psychiatric hospital, in terms of reflecting chronic behavior problems and lack of cooperation. We had presumed that the characteristics assessed by these scales, including antagonism, antisociality, and lack of responsibility, might persistently impair a defendant’s ability to work with a lawyer. Instead, the ability of JCP to differentiate IST and CST defendants at a time point as early as 90 days may indicate that forensic psychiatric hospitals are well-equipped to work with defendants with antisocial characteristics and to ensure that legal and hospital resources are allocated appropriately” (p.177).

“Furthermore, these scales may be indicators of familiarity with the legal system, and thus better response to educational aspects of competency restoration. Alternatively, these scales may serve to differentiate patients whose traits are more criminogenic, and less psychiatric in nature, and thus require a lesser degree of pharmacological intervention than their peers. Regardless, JCP (and potentially RC4) may be clinically useful for the early identification of those defendants who will be successfully restored to competence with treatment as usual…Overall, exploratory findings suggest that estimated general intelligence and level of education may be more robust predictors of requisite time for competency restoration, such that low intelligence is associated with greater time until competency is restored. Further, these findings are applicable to the entire sample of defendants…These findings raise important implications for clinicians, who can quickly assess estimated general intelligence, gaining information regarding a defendant’s relative time for competency restoration, without the administration of more extensive cognitive tests or other additional measures” (p.176-177).

“Ensuring that defendants who have the potential to gain competency do so as quickly as possible is also important for economic reasons…the minority of IST defendants hospitalized for competency restoration for more than six months received a disproportionate amount of state mental health resources, when compared with those restored within six months…institutional and political pressures (e.g., to make room for new admissions, and to prosecute a violent offender, respectively) may influence determinations of competency status, particularly in cases of long-term hospitalization for competency restoration. As biases deriving from such pressures may impact decision-making about competency status and restorability, it is particularly important for evaluators to pay attention to relevant historical and empirical test data in forming empirically supported opinions” (p. 176).

Other Interesting Tidbits for Researchers and Clinicians

“These findings were somewhat consistent with prior research indicating that a lengthy criminal history is associated with restoration. However, findings are inconsistent with literature indicating that elevated RC4 and JCP scores (i.e., scores above the manual-recommended T-score cut-off) predict treatment failure in non-forensic contexts. The achievement of competency is not necessarily comparable to treatment success in other therapeutic contexts, and this finding may be interpreted in a straightforward manner, to mean that different personality characteristics have different predictive utility in different contexts. Notable tendencies toward antisocial or criminogenic behaviors (i.e., captured by psychological testing data including RC4 and JCP) may lead evaluators to believe that a defendant in this context (i.e., a maximum security forensic hospital) is more likely to possess competency-related abilities (e.g., due to familiarity with the legal system and prior experiences successfully completing the trial process) which would not be typically perceived as beneficial in non-forensic clinical contexts (e.g., civil hospital)” (p.176).

“Given the exclusion rate, future research might examine the ability of tests of personality and intelligence to predict time until competency restoration using a much larger sample. Larger samples might include female participants, as the present findings are not necessarily generalizable to the broader population of incompetent pretrial defendants. With a much larger sample, future research might examine whether elevations on specific scales (i.e., scores above the manual-recommended cut score) are predictive of time for competency restoration, as opposed to relatively high or low scores. Such an approach would be more informative for clinicians, who could then interpret scores above or below a particular threshold as indicative of alternative treatment…” (p.178).

“Further research might also examine the ability of self-report personality inventory scores to predict restoration status or restorability using less conservative exclusion criteria, as well as with alternative measures of personality and psychopathology (e.g., the Personality Assessment Inventory). Given the rate of exclusion and limited significant results related to personality and psychopathology in the present study, the MMPI-2-RF scales demonstrated little clinical usefulness in predicting length of competency restoration. This is important, as the administration of measures such as the MMPI-2-RF can take precious time and resources that could otherwise be allocated. It may be more efficient to obtain information relevant to behavioral instability and antisociality through brief clinical interviews and archival review of RAP sheets or hospital records” (p.178).

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amber Lin

Amber Lin is a volunteer in Dr. Zapf’s research lab at John Jay College of Criminal Justice. She graduated from New York University in 2013 with a B.A. (honors) and hopes to obtain her PhD in forensic clinical psychology. Her research interests include forensic assessment, competency to stand trial, and the refinement of instruments used to assess the psychological states of criminal defendants.

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Attorneys’ perspectives on their clients’ abilities to plead guilty

A substantial minority of attorneys may have faced a professional quandary in terms of doubting a client’s competence to plead but choosing not to raise the issue—a conflict for which little professional guidance exists. This is the bottom line of a recently published article in Psychology, Public Policy and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy and Law | 2018, Vol. 24, No. 2, 171-179

Attorney Perspectives on Juvenile and Adult Clients’ Competence to Plead Guilty

Authors

Amanda NeMoyer, Drexel University
Sharon Kelley, Drexel University
Heather Zelle, University of Virginia
Naomi E. S. Goldstein, Drexel University

Abstract

An overwhelming majority of juvenile and criminal cases result in admission or guilty plea. Standards of competence apply at this stage of the proceedings, so the issue can be raised if someone—usually a defense attorney— believes the defendant lacks competence to plead. It is unclear how often defense attorneys question their clients’ competence to plead guilty and what factors lead to such decisions. This study surveyed defense attorneys about their experiences raising this issue in juvenile and criminal court and investigated factors that made them raise this issue and made them decide against formally questioning competence, despite suspecting their clients lacked requisite abilities. Most of the 199 responding attorneys reported having raised a competence issue at this stage, with more attorneys indicating they had done so at least once for an adult client than for a juvenile client. However, when asked about the number of times they raised this issue, attorneys reported doing so more frequently for juvenile clients than for adult clients. Client cognitive deficits, inadequate ability to assist counsel, and mental illness were reported to drive decisions to question competency in both courts. Attorneys endorsed choosing not to raise this issue because of concern about the low legal threshold for competence and that consequences would negatively affect their clients. Results of this study suggest a professional quandary for defense attorneys—who receive little guidance in this area—and add weight to the pressing need for meaningful examination of how the plea process works in principle and in practice.

Keywords

guilty pleas, admissions, competence, attorney perspectives, competence to plead

Summary of the Research

“The Supreme Court has historically adopted a laissez-faire approach to plea bargains, lauding them for their conservation of judicial resources and declining to scrutinize the practices that have developed around them. In addition, the Supreme Court has handed down few holdings specific to plea bargains because they are commonly believed to occur within the “shadow of the trial,” such that defendants engage in a rational decision making process and accept plea deals based on the strength of existing evidence. Thus, the Supreme Court has often rotely applied the Dusky standard of adjudicative competence (i.e., factual and rational understanding and ability to assist counsel) as the appropriate standard for questions surrounding adult competence to plead guilty. No national standard for juvenile adjudicative competence exists: some jurisdictions apply the Dusky standard used in criminal court, other jurisdictions apply a modified version of the Dusky standard, and one state (Oklahoma) has declined to apply any competence standards to defendants in juvenile court. Competence to plead guilty is therefore generally considered to include factual understanding, rational understanding, and ability to assist counsel” (p. 171-172).

“Defendants who plead guilty waive a multitude of rights—a total of 40 according to Redlich and Bonventre (2015). As a result, the waiver of rights standard (i.e., that a waiver be knowing, intelligent, and voluntary) also applies when a defendant seeks to plead guilty. As Justice Thomas articulated in Godinez: The focus of a competence inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the “knowing and voluntary” inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the defendant is uncoerced.

In sum, then, there are several requisites for a valid guilty plea, each of which could be a point of concern for a defense attorney. The process for bringing a potential case of incompetence to the court’s attention mirrors the process for other competencies—both in theory and in practical application. Because of the importance of proceeding only with competent defendants, any of the three actors (prosecutor, defense attorney, judge) may serve as gatekeeper and raise questions about competence to plead guilty. Nevertheless, this role typically falls to the defense attorney, who has relatively more interaction with the defendant and is duty bound to discuss pleas with his or her clients. Given the weight of responsibility associated with this gatekeeper role, it is critical to understand defense attorneys’ experiences related to questioning clients’ competence to plead guilty. Nevertheless, little is known about which considerations are of greatest concern to attorneys, whether attorneys view certain client characteristics as likely related to deficits of certain requisites, or other perspectives attorneys might have regarding application of the standards to their clients” (p. 172).

“Despite evidence suggesting that a considerable number of juvenile and adult clients demonstrate deficits that implicate the ability to plead guilty, no empirical studies have examined defense attorneys’ perspectives on their clients’ abilities to plead guilty. The few existing inquiries into defense attorneys’ experiences with competence to plead guilty have typically been speculative in nature, with conclusions drawn from a small number of individual defense attorney interviews rather than a systematic survey. Further, no researchers have examined the proportion of lawyers who have faced this issue, nor have researchers examined the underlying reasons for why attorneys have or have not raised the issue. To fill these gaps and add more quantitative data to literature in this area, the current study surveyed defense attorneys about their experiences questioning clients’ competence to plead guilty— both for juvenile clients in juvenile court and for adult clients in criminal court” (p. 173).

“Results indicate that a considerable majority of attorneys have raised questions about their juvenile and adult clients’ competence at the pleading stage. It is interesting to note that although a greater proportion of attorneys endorsed [factors that had] ‘ever’ [contributed to] having raised this issue for their adult clients, attorneys who had raised this issue before tended to report having done so more frequently for juvenile clients than for adult clients. It may be that, in general, attorneys are more inclined to raise this issue for adult clients given the increased severity of direct and collateral consequences for pleading guilty in criminal court as compared with juvenile court (e.g., prison sentence vs. juvenile probation). However, once attorneys decide that they will raise this issue for juvenile clients, they might raise it more often because of the frequency with which cognitive deficits and other challenges related to developmental immaturity contribute to questions related to the ability to competently proceed at the plea stage. Of course, the fact that attorneys with criminal court experience reported representing more adult clients (as compared with the number of juvenile clients represented by attorneys with juvenile court experience) may have contributed to the difference in whether they had ‘ever’ raised this issue for their adult clients; however, the fact that attorneys reported raising this issue more frequently for juvenile clients despite representing fewer juvenile clients overall seems to strengthen the suggestion that this issue is particularly relevant for clients in juvenile court.” (p. 177).

“Further, the focus on the ability to assist prong of the competence standard—of all the available components of the competence and waiver standards—may be the product of practical necessity. That is to say, attorneys in the preplea context are likely to find themselves more reliant on their clients than in later stages because they have not yet had the opportunity to review materials or develop a defense strategy. This reliance could be further increased in “closed-file” jurisdictions, where prosecutors are not required to provide as much preplea discovery. Thus, of all the prongs, the ability to assist prong is more pressing at this stage than the need for a client to understand the consequences of a plea bargain (which the attorney will likely address as plea bargaining progresses) or the need for a waiver to be knowing (which will be addressed later by the court via a plea colloquy)” (p. 177).

“Finally, our hypothesis that attorneys would report not raising the issue to avoid negative consequences for their clients was arguably supported—length of detention/incarceration and obtaining a better plea were among the most often cited reasons; however, concern about timely resolution of a case and maintaining relationships in the court (which might have an indirect negative effect on a client) were not frequently reported. It is worth highlighting that the clear ‘lead’ reason for not raising the issue in the case of both adult and juvenile clients was attorneys’ belief that, despite their perceptions of clients’ deficits, their clients would not be found to fall below the low threshold of the competence standard. Further suggesting the salience of this issue, 18% of participants who voluntarily responded to a final, open-ended request for additional information reported a belief that the competence threshold is far too low as currently defined” (p. 177-178).

Translating Research into Practice

“It appears that attorneys are raising this issue for juvenile clients based on a wider variety of reasons than they are for adult clients, for whom mental illness appears to be the major motivating factor. This trend might suggest that attorneys working with juvenile clients, in particular, could benefit from additional training focused on identifying the appropriate reasons to raise this issue and how to do so in a successful manner” (p. 177).

“It is generally accepted that the decision to plead guilty is in the purview of the client, which would seem to require, by extension, that an attorney raise the issue of competence when in doubt—a decision to plead guilty can hardly be the meaningful client choice countenanced by legal ethics and guidelines if it is made by a client who is incapable of making informed decisions. Yet, defense attorneys are also aware of the many external forces at play in the justice system and the paradoxical negative outcomes that might flow from their attempts to prevent a client from making this decision while incompetent. This diametric tension seems to defy resolution, leading even the recently revised ABA (2016) Criminal Justice Standards on Mental Health to simply leave the problem at the feet of defense attorneys: “If the defense attorney has a good faith doubt concerning the defendant’s competence to make decisions within the defendant’s sphere of control . . . , the defense attorney may make a motion to determine the defendant’s competence” (Standard 7–5.2, emphasis added). This dilemma underscores the need for additional guidance for defense attorneys as well as system-wide changes that reduce the tension in the first place” (p. 178).

“The sheer volume of cases that are processed via plea bargaining should already be enough to spur meaningful scrutiny of how the plea process works, and data regarding the proportion of defense attorneys who have faced internal questions about their clients’ competence without raising the issue add to that pressure. These findings—and the results of future research in this area—ought to prompt serious dialogue about and examination of the extent to which justice systems are (not) effecting due process via their uncritical reliance on an expedient, but largely unregulated, procedure” (p. 178).

Other Interesting Tidbits for Researchers and Clinicians

“The current study was merely an early step in identifying potential issues related to attorneys’ decisions to raise—or not raise—questions about their clients’ competence to plead guilty and was limited in several ways. First, the data were gathered by a self-report survey and, therefore, were likely affected by issues such as participant self-selection and cognitive bias. For example, few attorneys endorsed maintaining relationships with the court as a reason for not raising competence to plead guilty; it may be that this reporting reflects reality, but it also may be that social desirability effects deterred participants from endorsing some of these reasons. In addition, the item options were not randomly ordered, which may mean that the frequency with which they were endorsed was affected by where they were located within each option list. As noted in the Methods section, we chose not to inquire about how many times attorneys doubted clients’ competence but did not raise the issue. An estimate of how frequently this professional quandary arises would further strengthen the call for clearer guidelines and potential system reform, but we felt the current survey design was not the best approach for obtaining accurate information on that point. Finally, because the study focused solely on juvenile clients in juvenile court and adult clients in criminal court, we did not examine juvenile clients who are tried in criminal court. Because this group can face more severe sanctions than defendants in juvenile court while still demonstrating cognitive and developmental immaturity, questions of competence to plead guilty may arise more frequently for these clients. Future research should address this omission” (p. 178).

“Future studies should also examine judges’ perspectives on the issue, with attention to both standards that apply at the pleading stage (i.e., competence to plead, rights waiver validity). Attorneys might also be asked more explicitly about both standards, as well, given that the current study included rights waiver standard prongs as item options but phrased all questions in terms of competence to plead guilty. It would be informative to know whether attorneys and/or judges see the two standards as complementary or effectively the same—or perhaps they may even view one or the other as rather ineffectual or redundant. To build upon the current study, future research should also collect more qualitative data that will allow for a more nuanced understanding of the reasoning and tensions at play when defense attorneys are faced with clients who may be incompetent to plead guilty” (p. 178).

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Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

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Living with the War Inside: How Posttraumatic Stress Symptoms and Substance Use are Related to Violent and Nonviolent Charges among Veterans

Posttraumatic stress symptoms, particularly intrusion symptoms, are associated with violent charges, while cocaine use is associated with nonviolent charges among veterans who use substances. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 2, 135–144

Associations Between Posttraumatic Stress and Legal Charges Among Substance Using Veterans

Authors

Diana C. Bennett, Veterans Affairs Ann Arbor Healthcare System, Ann Arbor, Michigan, and University of Michigan
David H. Morris, Veterans Affairs Ann Arbor Healthcare System, Ann Arbor, Michigan, and University of Michigan
Minden B. Sexton, Veterans Affairs Ann Arbor Healthcare System, Ann Arbor, Michigan, and University of Michigan
Erin E. Bonar, University of Michigan
Stephen T. Chermack, Veterans Affairs Ann Arbor Healthcare System, Ann Arbor, Michigan, and University of Michigan

Abstract

Substance misuse is prevalent among veterans entering the criminal justice system, and is related to recidivism. Research demonstrates that trauma exposure and posttraumatic stress (PTS) symptoms, which commonly co-occur with substance misuse, also increase the risk of legal involvement and recidivism. However, it is unclear whether the associations between trauma, PTS symptoms and violent and nonviolent crime may be conflated by substance use. The aim of the present study was to understand the association between PTS symptoms and criminal justice involvement (both violent and nonviolent crime) among substance-using veterans seeking Veterans Affairs (VA) specialty mental health care after accounting for substance use frequency and demographics including age, gender, and ethnicity. Further, this study examined whether specific clusters of PTS were associated with violent and nonviolent veteran offending. Participants included 697 veterans (52 women) aged 21 to 75 (M=47.49, SD=13.51) with a history of trauma exposure. Veterans self-reported past-month PTS symptoms, substance use, and lifetime legal charges. Logistic regression results indicated total PTS symptoms were associated with violent, but not nonviolent charges, above and beyond age, sex, race, cocaine use, and heavy alcohol use. Intrusion symptoms, in particular, were associated with violent charges. Results highlight the utility of examining PTS as a multifaceted construct and have implications for the assessment and treatment needs of justice-involved veterans. For example, the findings suggest that treatment needs appear to differ for those reporting violent or nonviolent offending, with a greater need for assessing and treating PTS for those involved with violent crime.

Keywords

posttraumatic stress, legal involvement, violence, veterans

Summary of the Research

“Criminal behavior in veterans is a growing concern as estimates suggest as many as 181,500 veterans are incarcerated annually, more than half for violent offenses. Substance use disorders (SUDs) are particularly prevalent among individuals entering the criminal justice system compared with the general population, especially among military veterans. […] Strong evidence suggests substance use, particularly alcohol and cocaine use, is inextricably linked to higher risk of physical aggression and increased violent offending. However, other mental health and psychosocial problems (e.g., trauma exposure, PTS) also increase risk of perpetrating violence and criminal involvement among both military and veteran samples and civilians. Given that these other problems often co-occur with substance use problems, it is important to understand the impact they have on criminal offending in veterans who use substances.” (p. 135–136)

“Trauma exposure has been found to correspond with greater incidences of violence perpetration among veterans and civilians which may, in turn, contribute to criminal offending. [The] association between trauma exposure and violence perpetration also has been reported among those with SUDs. [The] acts of violence may result in criminal charges, followed by conviction and incarceration. Indeed, some studies have reported that a vast majority of criminal justice-involved adults report a history of trauma exposure.” (p. 136)

“However, other research has failed to find direct associations between trauma exposure and the perpetration of violence or criminal involvement. These discrepant findings have led some to propose that there are other intermediate mechanisms that account for the effect trauma exposure has on violence and criminal involvement. […] Trauma exposure indirectly increases the risk of antisocial behavior through the development of posttraumatic negative affect, including among veterans. While most individuals recover in the first few months following a trauma, a substantial number retain their PTS symptoms and develop posttraumatic stress disorder. PTS symptoms are divided into four clusters—intrusive recollections, avoidance, negative alterations in cognitions/mood, and arousal—and include features such as emotion dysregulation, anger/irritability, and difficulty sleeping. It is these symptoms, and not merely trauma exposure, that are believed to increase the likelihood of antisocial behavior (e.g., aggressive actions, impulsive/dysregulated behavior) and criminal involvement.” (p. 136)

“Substantial evidence supports the link PTS symptoms have with violence perpetration and criminal involvement and its mediating role in trauma’s effect on criminal offending. […] To date, no study has examined the association PTS symptoms have with criminal offending among substance-using veterans. PTSD and substance use problems commonly co-occur at high rates in the veteran population, resulting in more functional problems among veterans compared with each condition alone. It is possible that PTS symptoms have an additive effect on criminal offending in veterans with a history of trauma and recent substance use problems.” (p. 136)

“The present study aimed to fill a gap in the literature by examining how PTS symptoms correspond with higher occurrences of criminal offending in a sample of substance-using veterans with a history of trauma, military or nonmilitary related. We focused on violent (e.g., assault, rape) and nonviolent (e.g., forgery, theft) offenses separately as they have different interpersonal, societal, and legal implications. […] We hypothesized that given the correlation between PTSD and aggression, veterans reporting greater PTS symptoms would be more likely to have a violent legal charge.” (p. 136)

“An ancillary aim of the present study was to examine whether different PTS symptom clusters demonstrate unique associations with violent and nonviolent crimes. […] We anticipated that only the PTS symptom cluster of hyperarousal [such as anger and irritability, p. 136] would be associated with violent criminal offenses. No other a priori predictions were made about the differential associations PTS symptom clusters would have with criminal offending.” (p. 136–137)

“Data for the present study were collected as part of the screening process for a randomized controlled trial (RCT) of an intervention for substance use and violence prevention. Participants were recruited from a Midwestern Veterans Healthcare System (VHS) hospital and an associated VHS community-based outpatient clinic using posters, presentations, and clinician referrals.” (p. 137)

“Eight hundred thirty-nine veterans completed self-report measures during the screening process. Only those reporting any lifetime history of military (e.g., friendly or hostile incoming fire, military sexual trauma, prisoner of war) or nonmilitary (e.g., nonmilitary sexual trauma, vehicle accident, natural disaster) trauma exposure at screening (N = 719) were included in the present analyses. An additional 22 participants who had missing data for variables of interest were excluded, resulting in a final sample of 697 participants (7.5% women). The age range for this sample was 21 to 75 years old (M = 47.49, SD = 13.51), and the majority identified as White (73.0%), with 20.1% Black/African American, 3.4% Other/Multiracial, 2.2% Hispanic/Latino, 1.0% American Indian/Alaskan Native, and less than one percent Asian/Pacific Islander.” (p. 137)

The measures utilized in the study included: For violent and nonviolent legal charges—adapted items from the legal section of the Addiction Severity Index; For heavy drinking and cocaine use—modified open-ended items from the Substance Abuse Outcome Module; For combat exposure—single item drawn from the Traumatic Life Events Questionnaire; For PTS symptoms—the 17-item PTSD Checklist for Civilians.

“The current study is among the first to empirically investigate the differential relations of PTS symptoms with violent and nonviolent legal charges among veterans with substance use. We found greater PTS symptoms were associated with higher likelihood of violent legal charges even after adjusting for variance accounted for by other known risk factors for violence (e.g., age, race, substance use), and results were not attributable to combat exposure. As hypothesized, this pattern was specific to violent criminal offenses and did not generalize to charges for nonviolent offenses, marking a contribution to the field as the extant research to date has examined violent but not nonviolent crimes.” (p. 139)

“Among the symptoms clusters for PTSD, only the intrusion cluster was significantly associated with violent legal charges in multivariate analyses, and specifically, for each one unit increase in severity of intrusion symptoms reported, an individual’s likelihood of being charged with a violent crime increases by 7%. None of the symptom clusters were related to nonviolent legal charges. […] Our finding involving intrusion symptoms is contrary to our hypotheses based on prior research linking hyperarousal symptoms, in particular, to aggression and violence. […] Our current findings emphasizing intrusion appear to relate to general strain theory by identifying a link between the emotional distress and dysregulation present in PTS symptoms with antisocial behavior, but further research is needed to clarify how, over time, symptom clusters may operate together. […] Our results suggest that perhaps veterans with more severe intrusion symptoms are at greater risk of being charged with a violent criminal offense, or violent offending may be associated with increased frequency or intensity of intrusion symptoms.” (p. 139–140)

“The present study expands previous efforts attempting to disentangle the combined effects of PTS symptoms and substance use on violent behavior and legal involvement. Our findings suggest substance use, specifically cocaine use, is uniquely associated with the risk for nonviolent legal involvement, whereas PTS symptoms are uniquely related to violent charges. […] The lack of a significant relation between heavy drinking and legal charges in the current sample is surprising, given that this association is well-documented in previous literature. The null finding may be attributable to the restriction of range in our use of a substance-using sample, sample differences, or our use of a single item to measure past month heavy drinking. Additionally, it may be that the interaction of alcohol and other substances, such as cocaine, contribute to greater risk for legal charges. We also found that men were more likely to receive a violent charge, and ethnic minorities were more likely to receive any legal charge, consistent with previous research.” (p. 140)

“The current study included a large clinical sample that is highly generalizable to specialty treatment-seeking veterans with substance use issues and PTS symptoms, a common clinical presentation (although exclusion criteria, described above, does limit this generalizability). Results extend previous literature and aid our understanding of the intersection between substance use, PTS symptoms, and legal involvement among veterans. Further, examination of different types of legal charges and distinct clusters of PTS symptoms provide more detailed information than has been identified in the literature to date about the role of PTS symptoms above and beyond substance use in the association with violent legal charges.” (p. 141)

Translating Research into Practice

“One contribution of the current study is the identification of differential relations between PTS symptoms and violent and nonviolent legal charges. […] The current study offers one possible connection in observing that, among individuals with a history of trauma exposure, PTS symptoms may be related to engagement in violent legal offenses, in particular. This result, if replicated, would serve to help bridge the well-established findings of high rates of trauma exposure and PTS symptoms among incarcerated individuals to expand our understanding of how these factors are associated with offending. In our sample, participants reporting having served in a war zone were actually less likely to have legal charges, indicating that among veterans, combat exposure alone does not increase likelihood of legal charges, and rather, other variables such as PTS may be more important.” (p. 140)

“Our findings suggest substance use, specifically cocaine use, is associated with the risk for nonviolent legal involvement, whereas PTS symptoms are uniquely related to violent charges. Veterans with dual diagnoses of substance abuse disorders and PTSD, in particular, may be at escalated risk for legal involvement. […] Assessment of PTS symptoms among substance-using veterans is critical, and provision of evidence-based trauma-focused or substance use treatment for veterans with substance use problems may be invaluable in decreasing the likelihood of legal involvement, particularly violent crime. […] Trauma-informed treatment may be especially important for reducing violence and aggression among justice-involved veterans with PTS symptoms, and a one-size-fits-all approach to rehabilitation may not be appropriate.” (p. 140–141)

“The present findings yield potentially important implications for evaluating mental health problems among veterans involved in the criminal justice system. For instance, the Department of Veterans Affairs developed the Veterans Justice Outreach (VJO) program to advocate for justice-involved veterans with mental health care needs to be given the option to pursue clinically indicated treatment as an alternative to lengthy incarceration or other sanctions. VJO coordinators are currently available at all VA medical hospitals and facilitate case management services, psychiatric assessments, outreach, and liaison to mental health services for treatment planning and intervention. Through VJO programming, veterans are able to utilize treatment for SUD, PTSD, and other mental health concerns as part of their adjudication. Recent meta-analyses suggest concurrent trauma-focused treatment for PTSD with SUD treatment is effective in reducing PTS symptoms compared with treatment as usual. However, treatment initiation and retention among those with PTSD and SUD can be challenging. Results from the current study suggest that screening VJO-involved veterans for PTSD in addition to substance use, and offering evidence-based trauma-focused treatment, may be integral for successful diversion from further legal involvement.” (p. 141)

Other Interesting Tidbits for Researchers and Clinicians

“Exclusion criteria included inability to read/speak English, inability to consent due to cognitive problems, current suicidal ideation, active psychosis, acute substance-induced cognitive impairment, current involvement in another intervention study, or residency outside the study catchment area. Those with legal guardians also were excluded.” (p. 137)

“Duration of the screening process was approximately 45–60 min, and participants were compensated for their time with gift cards totaling $10.” (p. 137)

“Although this study identified a connection between PTS and violent legal charges, it is important to note that most individuals with PTSD have not engaged in violent crime, and a diagnosis of PTSD alone is not indicative of elevated risk for violence. Rather, it is important for other risk and protective factors, such as substance use and engagement in violent crime, to be considered.” (p. 140)

“The findings should be considered in light of some study limitations. These data are cross-sectional in nature, and thus temporal associations and causality cannot be determined. We are limited in our interpretation of the data, given that we cannot determine the order of whether legal charges predate or follow military service and the development of PTS symptoms, and thus the direction of effects is unclear. […] In addition, the focus of the present study was to ascertain relationships specific to overall symptom severity and specific symptom clusters. As such, we did not utilize PCL-C cutoff scores indicative of probable PTSD. Therefore, our results may differ for veterans who meet full diagnostic criteria for PTSD. We also were limited in our measures of heavy drinking and cocaine use such that each were single-item only, which may help explain the weak or relative lack of findings involved with the SUD variables. […] Additionally, results may not generalize to all veterans, as the study was limited to those with recent substance use seeking specialty mental health care at the VA and without current suicidal ideation, psychosis or significant cognitive issues. […] Study data, including legal charges, were self-reported. […] Additional treatment studies are also needed to examine how clinical intervention can work to reduce recidivism among substance-using veterans, including case management, brief interventions targeting SUD, or trauma-focused treatment, and additional work is needed to determine the factors related to engagement and retention among this population.” (p. 141)

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Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.