Note: My apologies for the delay in posting. It has been an insanely busy week at work. Throw in a bout of insomnia (still desperate for some shut-eye), and the blog slows down. I suspect I will fail to do The Guilt Project justice in this exhausted, frenzied state, but here goes nothing.
In my earlier response to Vanessa Place's forthcoming book, The Guilt Project: Rape, Morality, and Law, I posed a question about whether intentions matter in the context of sex offender civil commitments. That is, does it make a lick of difference if civil commitments are based upon an incapacitation model (in which the goal is to lock up offenders for the longest possible time in order to prevent future crimes), or a medical model (in which the goal is treatment and rehabilitation). And is it even possible to attempt both at the same time - as seems to occur in the US - given their inherent conflicts?
Place (2010) frames her critique in terms of how these conflicting models affect sex offenders' rights at the start and finish line (assuming there ever is a finish line, aside from death):
I understand the use of statistical analysis as a legitimate measure of probability. But the probabilities at issue in SVP determination can only be measured generally and retroactively. Not prospectively or individually. And justice, above all else, must be rendered individually. (p. 76)
We have to allow for real rehabilitation or true conversion, the fact of the thunderclap, the lightning bolt, the heaving collapse under the awful knowledge of absolute guilt, and the ridiculous hope of one person's puny atonement, one insignificant redemption that constitutes that flash of transcendence that passes for transcendence in our drive-by lives. (p.76)
By "statistical analysis," Place means the standardized, actuarial assessments used in conjunction with the diagnosis of "mental disorder" - instruments such as the Static-99, a risk assessment test used to calculate the probability of recidivism. As it stands, the "diagnostic" process often makes reference to the Static-99 results (Place, 2010)- a circular process in which the test results are confirmed by ... the test results.
Take these two points - standardized testing and the inability to recognize the "thunderclap" (Place, 2010, p. 76) - together, and you have a real conundrum when it comes to the concept of incapacitation. Incapacitation, after all, is not concerned with curing offenders; it is only concerned with locking them up. But because the Sexually Violent Predator status relies (at least partially) on a psychological diagnosis - and, of course, results in commitment to a mental health facility - it has an inherently medical component. The entire process rests on the assumption that sexually violent predators have a mental disorder that makes them dangerous to society at large. But unlike the medical model of crime, this process does not seem concerned with "treating" the disorder and "curing" the offender of his "criminal mind." If it were concerned with this, there would be, as Place (2010) writes so well, room for "the fact of the thunderclap" (p. 76).
I find Place's suggestion to rely on true clinical diagnosis - individual therapy, individual diagnosis, not standardized tests - intriguing because it suggests a "middle way." Rather than the typical either-or debate (should we or shouldn't we commit offenders?), she proposes a process that would, at the very least, take offenders for the complex, unique individuals that they are. Considering that a lifetime of freedom is at stake, it seems that individualized diagnosis is the only way to ensure "due process." Think of it this way: Would you want your whole future determined by a standardized test? How about a test that was not even designed for that purpose? How about a test that only measures "static" (in other words: set in stone) aspects of your personality?
Naysayers might suspect Place of looking for an easier target in court, but she is hardly playing it safe for the defense: Place admits that individualized clinical assessment would actually be a real pain in the ass to attack. "It would be," she writes, "professionally harder for me to tear apart something with the sound of informed common sense than it is to go for the more vulnerable statistical vein" (Place, 2010, p. 75).
Her idea is appealing in terms of the "medical model" for justice as well. Perhaps, with true clinical assessment and therapy, sexually violent predators can be more accurately "diagnosed" and therefore more effectively "treated" - individualized treatment to go with that individualized justice.
But here is where I get skeptical. This clinical process would rely on the DSM-IV, the diagnostic manual of the American Psychiatric Association. But the DSM-IV does not necessarily mesh neatly with the law. As Levenson (2004) writes, the DSM-IV "specifies that Pedophilia generally involves prepubescent children. However, all states have statutes rendering it unlawful for an adult to engage in sexual activity with a child under age 16, and many offenders being considered for civil commitment have adolescent victims" (p.360) - emphasis added.
To muddy the waters further, Levenson (2004) cites a study that examined offenders diagnosed with sexual sadism as compared to those without the diagnosis. The results? Offenders deemed "sexual sadists" were the least likely to commit the particular acts associated with that diagnosis. In other words, the clinical assessments failed to get it right. Anyone who has ever been to a shrink will not be surprised by this. Clinical psychology is notoriously subjective. To wit: Levenson (2004) also looked closely at SVP determinations in Florida, and found that "reliability was poor for most diagnoses" (p. 363). Different evaluators came to different diagnoses.
On the other hand, reliability for the actuarial instruments - the risk assessment tools, such as the Static-99 - was quite high (Levenson, 2004). In other words, separate evaluators consistently rated offenders with the same "score" on the risk assessment. Does that mean the risk assessment is better than clinical diagnosis? Not really. Accuracy and reliability are two very different animals. If you weigh yourself over & over on a poorly calibrated scale, you might get the same result, but it will not be an accurate one.
So my question is this: If individualized justice means unreliable diagnostic procedures, is it any better than the system we have now?
Again, it all depends on the aim. If the aim is to treat, then subjectivity is not as much of a problem. At the very least, it would allow for offenders to rehabilitate and change. And the defense and prosecution could potentially present opposite diagnoses. On the other hand, if the aim is to incapacitate, then reliability matters, because you need "confirmable" results to lock someone up and throw away the key.
Either way, the system will undoubtedly fail someone. The question is, on which side do we want it to err? I always thought reliability was at least one guarantee of "due process," but now, I am not so sure.
Next up: Place's chapter about pimps.
References
Levenson, J. (2004, August). Reliability of sexually violent predator civil commitment criteria in Florida.
Law and Human Behavior 28(4), 357-368. Retrieved on January 18, 2010, from ProQuest Criminal
Justice.
Place, V. (2010). The guilt project: rape, morality, and law. New York: Other Press. (forthcoming)
