Forensic Writer

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)

writer as forensic psychiatrist

When I was studying criminology, my professors spent a great deal of time differentiating mental illness from a medical standpoint, and insanity from the perspective of a court of law.  This distinction is good and necessary.  We cannot - and should not - assume that mental illness causes crime. If that were the case, we could expect criminal behavior from almost everyone with, say, severe clinical depression or Schizophrenia, but that simply does not hold true.  On the contrary, mentally ill individuals are more likely to fall victim to crime. 

From the legal perspective, we look at insanity as a defense against legal responsibility only if certain standards have been met.  These vary by state, but one widely accepted standard is the M'Naughten Rule, for which defendants admit they committed the act, but claim that they did not understand the act was wrong, or that they did not understand what they were doing at the time the act was committed.  In other words, they could not distinguish right from wrong; therefore they are not criminally responsible. 

Other standards exist, too.  One of the toughest is the Durham Rule, in which defendants must show that their actions directly resulted from mental illness.  Direct result: therein lies the rub. As I already mentioned, causality is tricky business.  Can anyone really claim that mental illnesses cause particular actions?  After all, if other people with Bipolar Disorder or Schizophrenia do not commit crimes, direct causality in a singular criminal case becomes a matter for serious debate.  

Irresistible Impulse provides another standard. It means exactly what it sounds like it means: defendants may have known right from wrong, but the impulse to commit the act was irresistible, and therefore they cannot be held responsible. Maybe a father discovers the babysitter beating his kids, and in that moment, cannot stop the impulse to attack.  As one might expect, this standard is tough to meet.

This is where forensic psychiatrists come in - expert witnesses who apply their clinical knowledge and expertise to legal cases to form objective opinions to a reasonable degree of medical certainty. Of course, the degree of certainty often comes into question, with battles of the experts on both sides of a case: insane, not insane, maybe insane but in control, etc. 

How often do writers play "forensic psychiatrist," perhaps without even realizing it?  I have been thinking about this lately as I write about the death of one of my siblings - a death that blew up like a tripped land mine, shooting debris long thought buried straight into my heart. When I think back to the allegations against him, and the source of those allegations, I find it impossible to understand to any degree of certainty why he acted as he did, and more importantly, why he should or shouldn't be held responsible. 

I mean this less in the legal sense than in an emotional one: To what degree do I hold him responsible? Can I - should I? - forgive him because of his own troubled frame of mind?  Is it possible to forgive if I do not hold him responsible?  Is it possible to hold him responsible if I forgive?  Of course, in a strict legal context, the question of forgiveness never comes into play, but it does in the court of public opinion, where people feel empathy and sympathy for the father who attacks the babysitter, or the mother with severe PPD psychosis who drowns her baby in the bathtub.  That is a kind of forgiveness, however different in quality from the one I mean. 

More importantly, I wonder if I have the capacity to make such a determination about my own sibling - if this is something I should even take on in the first place. And what standard would I apply?  I will be exploring this question further in future posts.