Forensic Writer

The Guilt Project by Vanessa Place (part two)

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)

The Guilt Project: A Response (part one)

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)

The Guilt Project by Vanessa Place : Why this book matters

In this Nancy Grace culture, in which suspects are all guilty until proven worthy of being considered innocent (usually by producing the requisite number of tears or volunteering to be hooked up to electrodes for a lie detector test, or forgoing the representation of a good attorney, despite being entitled to said representation), it is rare to find a discussion about crime & justice that avoids the strict dichotomy of "good vs. evil" or "tough-on-crime vs. criminal coddling." This is especially true when it comes to sex offenders: legislators are for the children or against them; against the sex offenders or coddling them.  While the emotions driving these sentiments are certainly understandable, given the heinousness of sex crimes and the horrors that victims face, they are not necessarily healthy for public policy - especially where it concerns basic constitutional protections.  This is why Vanessa Place's book, The Guilt Project: Rape, Morality, and Law is so important. It asks questions - legal, cultural, ethical, and moral - that heretofore have been swept under the rug. Even if one disagrees vigorously (and righteously) with all of Place's contentions, questions, criticisms, and legal interpretations, the point is to have the conversation.

Place, an appellate criminal defense attorney who specializes in sex offenders and sexually violent predators, never pretends that the great majority of her clients are innocent (legally or factually, although some may be the latter), or that they are "good men."  In fact, she refers to them as the "very bad men" that many Americans fear. "Most of my clients," she writes, "are factually guilty by virtue of their acts; all are legally guilty by virtue of their convictions.  They are the very bad men, those who trigger the question, 'How can you defend people like that, knowing that they're guilty?'" But for Place, the question is larger than that.  For in this Nancy Grace and Dateline culture, where either-or fallacies are tossed around for entertainment and "very bad men" are no longer considered human, something very important is at stake: "our own humanity." In a culture where the innocence of the victim is the yardstick for the evil of the perpetrator, we risk losing our "mercy":

At heart, mercy is simply the steady responsibility to safeguard the humanity of all, including those we hate. There will always be people guilty of great evil.  But evil is an act, not a cultural metaphor, not a social backdrop, and not entertainment.  As a people, we have to resist the temptation to make our morality contingent on anybody's innocence.  You might hate my clients, and you might be right.  My clients routinely disprove God.  But we can't use them to undo our own humanity.

And so with "our own humanity" at stake, Place approaches everything from the reliability of DNA evidence to involuntary commitments for sex offenders to intoxication and legal consent with a critical eye, posing questions readers will never see on cable news (scratch that: they might see them uttered by one of the talking heads on the Brady Bunch-style grid, but they will be quickly and summarily squashed by the host).

I do not interpret this to mean that Americans need to coddle sex offenders, or feel sorry for them, or care for them more than for victims, or any of those false dichotomies.  This is not an invitation (or exhortation) to throw a pity party.  Rather, this is about placing larger questions of humanity above fear and hate - or to ground it to something more concrete, to care about the integrity of America's ideals so much that we are willing to uphold them even when it disgusts us to do so.

Place herself is not afraid to divulge (or confess) her own complicated feelings at times; nor is she afraid to "play prosecution" and consider the other side.  In fact, reading her book at times feels like a wrestling match of sorts: an adversarial trial in which the system itself is charged with breaking its own ideals. Place is not afraid to say when the state is right, or when the state is acting on good principles or ideals but needs to change its tactics.  This is not an "us vs. them" or "defense attorney vs. evil, oppressive state" sort of book.  That is what makes it such a remarkable and important addition to the discourse.  That is why this book matters.

In the coming days and weeks, I will blog some initial responses to select chapters and sections in Place's book, some of which I find myself vigorously nodding my head to in agreement, and others of which have raised serious questions for me, and I do not quite know where I stand (which I think is a good thing).  First up will be the chapter regarding involuntary commitments, in which Place steps outside the box of "should we or shouldn't we/can we or can't we" and poses questions about the kinds of actuary models and testing instruments we use to determine whether someone is a sexually violent predator (and likely to re-offend).