Forensic Writer: Contaminating Evidence

As mentioned in my previous post about The Guilt Project: Rape, Morality, and Law by Vanessa Place, I plan to spend several posts responding to chapters and issues in the book. It seems to me that this is one of the best ways to do the book justice: to wrestle with the questions it presents.

The book is divided into four major sections:

Section I: Guilt and Me

Section II: Guilt and Science

Section III: Guilt and Culture

Section IV: Guilt and Politics

The "Guilt and Science" section rightly - and brilliantly - begins with a chapter about DNA evidence and the probability game it entails. That probability game, it turns out, is "most analytically thorny" where it concerns a "mixed-source sample" (Place, 2010, p. 43). By calling into question the most ironclad of forensic science, Place makes it possible for readers to accept questions and problems in other areas of procedural justice and law, too. After all, if even DNA has its problems, what other dirt might be lurking under the rug?

I suppose it depends on your definition of dirt. Having studied criminology for a time, my definition of dirt is pretty open-minded.

I will start with the other chapter in the "Guilt and Science" section, entitled "Sexually Violent Predators: The Parapsychology of Guilt," which explores involuntary commitments for sexually violent predators. Most Americans respond to civil commitment laws the same way they do DNA evidence: unflinching, unquestioning belief. And with good reason. Who wants a real-life bogeyman man lurking by the middle-school bus stop?

First, some background is in order: In several states, the law allows for the civil commitment of sex offenders who have been designated Sexually Violent Predators (SVP). In practice, this means commitment to a state mental hospital for an indefinite period of time - often, for life. The designation of SVP might seem simple enough on its face; after all, these offenders have already been found guilty of a sex crime. Doesn't that make them predators by definition? Not quite. The designation involves more than just a review of the offender's prior acts. Otherwise, it would never pass constitutional muster. After all, civil commitment occurs after an offender does his time for the crime.

The Supreme Court has specified that offenders who are designated SVP must have "a mental abnormality or personality disorder predisposing the individual to sexual violence, and a likelihood of future sexually violent behavior" (Levenson, 2004, p. 357). Since the offender can lose his liberty as a result of the SVP designation, due process is in order. In California, where Place (2010) practices, SVP designation requires "two or more sexually violent offenses" and "a diagnosed mental disorder making him a present danger to others" + being "likely to engage in sexually violent criminal behavior in the near future" (p. 59).

Neat and Tidy Theories

When I studied criminology, my classes approached civil commitments in terms of correctional strategies + theories about the root causes of crime. Ideally, a theory about the roots of crime led to a related correctional theory to address that root cause. In fact, a good portion of our studies were dedicated to the policy implications of theories about "born" vs. "made" criminals - nature vs. nurture.

We studied commitments primarily as an incapacitation theory phenomenon. Incapacitation is fairly simple: Lock up the bad guys for as long as possible, and they cannot re-offend (at least, not outside the prison walls - anything on the inside is apparently fair game). Mandatory life sentences, truth in sentencing, and three-strikes-you're-out-laws: incapacitation, all of them (Lilly, Cullen, & Ball, 2002). Where such sentences do not exist, the law has found a way to incapacitate sex offenders all the same: through civil commitments.

Incapacitation theories are not concerned with rehabilitation. The sole aim is to stop criminals from committing future crimes (Lilly, Cullen, & Ball, 2002). Note that this is entirely different from a "just desserts" approach, wherein punishment is inflicted as harshly as possible solely for retribution (although, there is obvious overlap here - incapacitation can be retributive & vice versa). Incapacitation theories, by their nature, believe criminals "are beyond reform and must be incapacitated behind thick walls and sturdy bars" (Lilly, Cullen & Ball, 2002, p. 227).

The problem with civil-commitment-as-incapacitation - at least from a criminological perspective - is that it runs headlong into an entirely incompatible correctional and criminological theory: the medical model of crime and corrections. The medical model, predictably, sees crime as treatable. If you can cure the hormone imbalance or psychosis or whatever, then you can stop an offender from striking again. Rehabilitation, obviously, drives correctional programming under this theory.

When I was a criminology student, the question of civil commitments made me queasy precisely because of this clash of correctional and criminological theories. I liked my theoretical underpinnings neat, tidy, and logically coherent. (Oh, the idealism of naive criminology students! If only we could land on that one perfect theory. We could stop crime and create the perfect correctional system at the same time. Never mind that those two ideals are incompatible, too.)

Specifically, I wondered: Would the state attempt to "treat" or even "cure" an offender if it meant releasing him out of custody? After all, the point is incapacitation, not rehabilitation. (Or is it?) Are doctors being asked to abandon their oaths and care for the state rather than the patient? Can treatment be ethically administered in these conditions? How could anyone know if a "patient" is "cured" enough to be released (and what did "cured enough" mean)?

Theory vs. Practice in a Procedural Context

The Guilt Project approaches the issue in a different context: procedural justice. While criminology & procedural justice/law do overlap, they are not always one and the same. Criminology certainly has direct policy implications (particularly where it concerns correctional programming or lack thereof), but it does not always (and I would contend, rarely) considers questions of constitutional rights. Place's (2010) chapter challenges readers to consider several issues:

If the courts can qualify "crime as a mental disorder, then real treatment would be the protocol" (p.73) But are the state hospitals engaging in "real treatment" or just plain "warehousing" (p. 73)?
Can the current testing instruments and diagnostic procedures + expert testimony accurately (and beyond reasonable doubt) identify sexually violent predators?
Are the same instruments incapable of detecting genuine rehabilitation?
Is there any way to know that incapacitation policies even prevent further sex crimes in the first place?

That third question is the one that haunts me, and when you really think about it, it drags most of the others with it. If the state cannot detect (or simply refuses to acknowledge) legitimate rehabilitation, it likewise has no yardstick by which to measure its "treatment," which implies it has no intention to treat in the first place.

But the second question is also key when it comes to bringing theory & practice together: As Place (2010) eloquently points out, standardized tests are hardly individual, which automatically places them in conflict with the idea of "real treatment" (p.73) - and importantly, constitutional protections.

So the question I have is this: Do intentions matter in a procedural context? Does the theory need to match the practice? And if it doesn't, what are the consequences? This, of course, is encapsulated in those questions about the diagnostic processes, testing instruments, and expert testimony. So I will start there on the next post and try my best to wrestle with "intentions."

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.

Lilly R.J., Cullen, F. T., & Ball, R.A. (2002). Criminological theory: Context and consequences. London:

Sage.

Place, V. (2010). The guilt project: rape, morality, and law. New York: Other Press. (forthcoming)

A new "bullet fingerprinting" technique holds the promise to reveal fingerprints left behind on metal surfaces - bullets in particular - without inflicting damage on valuable pieces of evidence. Unlike previous techniques, nothing is done to alter the bullet. No powders or chemicals are required - only heat and humidity. The heat and humidity act on traces of sweat left behind from ridges on fingertips, "developing" fingerprint lines like a Polaroid in the surface of the metal.

I wish there was an equivalent for memory - a way to develop the "fingerprints" in my brain and see, right there in black and white on the ridges of my hippocampus, the specific trace a moment left behind on my life - without destroying any gray matter. The closest I ever came to this was wearing a portable EEG to monitor my brainwaves. The hope was to catch a seizure and record it. Unlike the EEG's my neurologist performed in his lab, nobody flashed lights in my eyes in an attempt to induce seizure; rather, my brain was left to its own devices, its waves recorded, patterns noted. I wish I had demanded back then to keep a printout. I could have tried to correspond the crests and troughs with specific moments. Right here: This is the day everyone from the ward took a field trip outside to plant a tree. Or maybe not. Maybe the very act of remembering would have changed my interpretation of a wave or trough. Maybe seeing a memory as a trough would have tainted how I felt about it - something I thought of as positive suddenly seeming suspect. I will never know.

In its own way, the act of writing destroys evidence. The process of uncovering memories, emotions, and images is similar to that of an archaeologist uncovering a new dig site. One difference, though, is that the archaeologist systematically marks the site with a grid and brushes dirt away slowly, one layer at a time, noting the specific micro-context for every artifact. I attempt to do this sometimes with my notebooks, pasting in "napkin notes," news clippings, photographs, obituaries, letters, anatomy cards - anything to keep ideas in their contexts. But given the non-linear nature of memory - and of writing - I cannot help but jumble up the strata and contaminate the evidence. I need to destroy in order to create.