Behavioral Sciences and the Law Behav. Sci. Law 32: 596–607 (2014) Published online 3 October 2014 in Wiley Online Library (wileyonlinelibrary.com) DOI: 10.1002/bsl.2135
Decision-Making in Post-acquittal Hospital Release: How Do Forensic Evaluators Make Their Decisions? W. Neil Gowensmith, Ph.D.*, Amanda E. Bryant, M.A.† and Michael J. Vitacco, Ph.D.‡ A large number of individuals are acquitted of criminal charges after being found “not guilty by reason of insanity.” Most of these individuals are hospitalized and later seek hospital discharge under a court-ordered provision called conditional release (“CR”). Courts rely on opinions from forensic evaluators to determine acquittees’ readiness for CR. However, how evaluators make these decisions are unknown. Eighty-nine CR readiness evaluators from nine states were surveyed to understand which factors evaluators prioritize and to understand evaluators’ assessment methodologies and their beliefs about the CR process itself. Little uniformity was found among evaluators on any aspect of the decision-making process. Evaluators utilized a wide variety of methodologies when making their decisions on readiness for CR. Moreover, evaluators’ conceptualizations of the CR process itself varied widely. The results highlight the difficulty and confusion evaluators face when conducting CR readiness evaluations, and demonstrate the need for enhanced training, statutory guidance, and standardized evaluation protocols for these evaluations. Copyright # 2014 John Wiley & Sons, Ltd.
A large number of individuals are currently committed to inpatient psychiatric hospitals nationwide as a result of being acquitted as “not guilty by reason of insanity” (NGRI). Typically, courts mandate that these NGRI acquittees remain in locked facilities for several years to treat their psychiatric illnesses, promote behavioral stability, and protect society. But in most cases, courts eventually release NGRI acquittees back to the community if their symptoms and violence risk factors can be reasonably managed outside the forensic hospital. This type of discharge is called a “conditional release” (or “CR”), as continued release is contingent upon following court ordered conditions. These conditions often include taking psychotropic medications, abstaining from alcohol and drugs, and attending therapeutic activities (Callahan & Silver, 1998; McDermott et al., 2008; Segal & Burgess, 2006; Vitacco et al., 2008). Courts rely heavily on evaluations from forensic mental health professionals when making their decision on whether to place someone on CR (McNichols, Gowensmith, & Jul, 2011). Yet, significant questions remain regarding the factors clinicians rely on when making their release recommendations to the court.
*Correspondence to: W. Neil Gowensmith, Ph.D., University of Denver, Graduate School of Professional Psychology, Ammi Hyde Building, 2450 S. Vine St, Denver, CO 80208, U.S.A. E-mail: [email protected] † University of Denver ‡ Georgia Regents University
Copyright # 2014 John Wiley & Sons, Ltd.
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EVALUATING READINESS FOR CONDITIONAL RELEASE Many psycholegal questions are accompanied by carefully crafted statutes and/or empirically sound assessment instruments to aid in evaluators’ decision-making. Competency to stand trial (CST) evaluators use a wide array of specific and well-validated CST instruments to address the specific prongs of the Dusky standard; sanity evaluators address some combination of the M’Naughten rule and the irresistible impulse prong, depending on their jurisdiction; violence risk evaluators can employ a host of well-validated risk assessment instruments to categorize and predict risk levels for offenders. However, CR readiness evaluators typically have neither clear statutory guidance nor standardized assessment protocols to guide them. There are no assessments specifically designed to assess readiness for CR, and statutes often provide ambiguous guidelines for formulating an opinion. As an illustration, consider the statute from Hawaii (Hawaii Revised Statutes, 2013): §704-411 (1) (b) The defendant shall be granted conditional release with conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition.
Although the statute clearly identifies the legal criteria for determining post-acquittal commitment or release, it does not articulate any criteria regarding how the CR evaluation should be conducted or what criteria must be considered in determining if a “defendant can be controlled adequately.” Hawaii’s statute is representative of most CR statutes around the country. This ambiguous statutory guidance, coupled with the lack of specific assessment instruments for CR readiness, leaves most forensic evaluators largely to their own devices when assessing an acquittee’s readiness for conditional release. This lack of uniform standards is evidenced in recent research indicating that CR readiness evaluation reports have the lowest evaluator reliability and lowest evaluation report quality when they are compared with evaluations of competency to stand trial, legal sanity, and violence risk (Gowensmith, Murrie, & Boccaccini, 2012; Nguyen et al., 2011). Triads of evaluators on the same case showed disagreement levels between 50% and 60% (McNichols, Gowensmith et al., 2011; Nguyen et al., 2011). Further, pairs of evaluators in Virginia disagreed on 22% of cases in which evaluators were deciding if new insanity acquittees should be hospitalized or placed in the community on CR (Stredny, Parker, & Dibble, 2012). Overall, research suggests that forensic evaluators do not consistently agree upon issues related CR readiness.
CONDITIONAL RELEASE OUTCOMES However, this disagreement is not due to a lack of extant research regarding persons on CR. In fact, much is known about the CR population and their experiences. The recidivism rate for individuals on CR is substantially lower than general recidivism rates. Most studies place the CR recidivism rate between 2% and 10% (McNichols, Jul, & Gowensmith, 2011; Psychiatric Security Review Board, 2008; Vitacco et al., 2011), Copyright # 2014 John Wiley & Sons, Ltd.
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compared with general recidivism rates ranging from 30% to 60% (Langan & Levin, 2002). However, arrest and incarceration rates may not be the ideal outcome variables for the CR population, given that they are often returned to involuntary mental health services before – or in lieu of – arrest or criminal charges. Subsequently, rehospitalization rates for the CR population range between 10% and 30% (McNichols, Jul, & Gowensmith et al., 2011; Psychiatric Security Review Board, 2008; Vitacco et al., 2011). Rehospitalization rates include both short-term inpatient “tune-ups” for acute crises and long-term placements if a CR is revoked. In addition, researchers have an increasingly sophisticated understanding of the factors associated with success and failure for persons on CR. Persons on CR in Wisconsin were found to have longer community tenure and fewer rehospitalizations if they received intensive outpatient treatment services, substance abuse services, and a continuity of care from hospital to community placement (Vitacco et al., 2008). Vitacco et al. (2011) recommend short-term intensive hospitalizations to reduce rates of CR revocation based on their research with females on CR. Additionally, appropriate housing was found to be a significant predictor of success on CR in both Maryland (Marshall, Reed, & Vitacco, 2014) and Canada (Salem et al., 2014). Persons on CR who were supervised by officers with specialties in mental health were hospitalized for fewer days as compared with those persons on CR supervised by non-mental health officers (Gowensmith, Skeem, & McNichols, 2013). Researchers have suggested that while more attention to mental health factors should be given to individuals on CR relative to other offenders with mental health needs, overall the evidence-based models of risk–need–responsivity (RNR) and addressing criminogenic needs should provide the service foundation for the CR population (Vitacco et al., 2011, 2014). Certain assessment factors have been shown to be useful in predicting failure for persons on CR as well. Selected variables from the Historical-Clinical-Risk Management-20 (HCR-20) were significantly predictive of recommitment of acquittees to civil hospitals in a CR sample from New York (Green et al., 2013). Diagnoses of substance abuse and previous failures on CR are predictive of CR revocation (Vitacco et al., 2011). Disagreement among evaluators determining CR readiness on the same case was also found to be predictive of rehospitalization in a CR sample in Hawaii, showing that rehospitalization rates doubled when evaluators disagreed on readiness (McNichols, Gowensmith et al., 2011). Finally, some researchers have suggested that the RNR model (Palmer et al., 2007; Wormith et al., 2007; Wormith & Olver, 2002) could be an appropriate framework from which to manage CR populations. Accurately assessing risk level, as well as identifying and attending to a person’s individual criminogenic needs, could reduce revocations and recidivism, as has been found in persons on probation or parole (Palmer et al., 2007; Skeem et al., 2014; Wormith & Olver, 2002). This could include, at a basic level, placing a greater emphasis on the assessment and treatment of criminogenic needs.
WHAT INFLUENCES CONDITIONAL RELEASE DECISIONS? In short, the emerging literature has identified some measures predictive of community failure (and success) for persons on CR. However, the degree to which these factors are considered by forensic evaluators has not been sufficiently studied. Some related Copyright # 2014 John Wiley & Sons, Ltd.
Behav. Sci. Law 32: 596–607 (2014) DOI: 10.1002/bsl
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studies have focused on factors influencing release decisions on CR cases. The largest study of this type examined CR cases in four states and found that the factors most significantly related to release decisions (diagnosis, crime severity, and demographic factors) differed substantially across those states (Callahan & Silver, 1998). Age and levels of psychopathy were also found to be predictive of hospital discharge on CR in a sample of 91 male forensic patients applying for conditional release in Louisiana (Manguno-Mire et al., 2007). Many clinicians appear to emphasize the index offense more heavily than clinical factors and current functioning, which research suggests are likely better indicators of success on CR. Additionally, a handful of studies have directly investigated the factors that the evaluators consider. Despite the different focus, the results remain largely mixed. McDermott et al. (2008) reviewed 81 CR cases in California and observed that evaluators considered several empirically-supported risk factors for violence, such as acquittees’ substance use, adherence to clinical treatment, and structured violence risk assessment information. Stredny et al. (2012) found that psychiatrists and psychologists relied on different sets of factors when formulating their release decisions, and that moderate variability existed in the factors that evaluators prioritized in the initial commitment of insanity acquittees in Virginia. For example, psychiatrists in their study prioritized substance abuse history and family/psychosocial issues more than psychologists, while psychologists prioritized use of weapons more often than psychiatrists. In addition, multiple studies have found that evaluators routinely prioritize non-empirically validated factors when making release decisions on psychiatrically hospitalized patients (however, no distinction has been made between insanity acquittees and civilly committed patients in these studies) (Elbogen, Mercado, Scalora, & Tomkins, 2002; Odeh, Zeiss, & Huss, 2006). Finally, researchers categorized the overall evaluation report quality in a sample of CR readiness evaluators in Hawaii as “poor” (Nguyen et al., 2011). The study found that less than 9% of evaluators used forensic assessment instruments in their CR readiness evaluations, and that less than 50% of evaluators outlined a relationship between the acquittee’s mental health symptoms and their associated risks for violence or recidivism upon release on CR. In summary, although the literature gives some guidance as to the most appropriate factors to consider in a CR readiness evaluation, decisions in the field seem to be made from a disparate and unpredictable set of idiographic factors prioritized by evaluators, which also vary across settings. However, there is no known research that examines which factors forensic evaluators find most important when assessing CR readiness for insanity acquittees after a period of hospitalization or how they interpret the psycholegal constructs related to CR.
PURPOSE OF STUDY Given that releasing an insanity acquittee back to the community is often a high-profile and politically volatile event, and that courts follow the recommendations of forensic evaluators in the vast majority of conditional release applications (McNichols, Gowensmith et al., 2011), it is important to explore which factors CR evaluators prioritize in these types of evaluations. To better understand how forensic evaluators make decisions on CR readiness evaluations, we surveyed certified forensic evaluators across nine states on a host of factors related to the assessment of readiness for CR. Copyright # 2014 John Wiley & Sons, Ltd.
Behav. Sci. Law 32: 596–607 (2014) DOI: 10.1002/bsl
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METHODS Sample The 89 evaluators were sampled from Hawaii, Georgia, Wisconsin, South Carolina, Minnesota, North Carolina, Colorado, California, and Oregon. Evaluators reported conducting CR readiness evaluations for an average of 8.2 years, with a total of 55.1% (n = 49) of evaluators reporting completing more than 20 CR readiness evaluations in their careers. A total of 78.7% (n = 70) of the evaluators were psychologists and 21.3% (n = 19) were psychiatrists. Virtually all of the evaluators worked primarily in outpatient settings (94.4%, n = 84); the remainder worked primarily in hospital settings. While every evaluator except one stated that they had attended training on forensic evaluation at least once in their careers, only 46.0% (n = 41) of evaluators reported that they had ever received specialized training in completing CR readiness evaluations.
Survey Participants completed 17 questions related to demographics (age, discipline, etc.), training, and experience. They then completed another seven questions directly related to making decisions on a CR readiness evaluation. The seven questions on the CR portion of the survey covered two topic areas. The first section included a list of 21 potentially relevant factors that evaluators might routinely consider in a CR evaluation. These factors were largely drawn from analogous studies in which practitioners were asked to rate potentially relevant factors in determining readiness for hospital discharge from civil settings (Elbogen et al., 2002; Odeh et al., 2006). However, factors also included questions that have been found to be predictive of success versus failure for persons on CR in the community. In total, the list of factors included seven “central eight1 ” criminogenic factors (Andrews, Bonta, & Wormith, 2006), five factors related to CR success derived from the larger CR outcome literature, and nine factors derived from common risk assessment factors found across several risk assessment instruments. The list of factors can be found in Table 1. Evaluators were asked to score each item on a Likert scale from 1 to 10 in terms of how important each factor is in their decision-making (with 1 labeled “unimportant” and 10 labeled “extremely important”). Each evaluator was asked to rank their “top three” most important factors out of the original list of 21 factors. The second section of the survey asked evaluators to respond to broader contextual questions about CR. In this section, evaluators were asked to describe their opinions about CR, their definitions of success and failure for persons on CR, and their understanding of the psycholegal foundation for determining CR readiness. Evaluators were also asked to describe the length of time post-discharge they consider when assessing readiness, as well as their assessment methodologies in determining readiness. After providing consent, participants completed online surveys through Qualtrics (Denver, Colorado, USA). Responses were analyzed in aggregate. “Central eight” criminogenic risk factors (Andrews, Bonta, & Wormith, 2006) include history of antisocial behavior, antisocial personality pattern, antisocial cognition, antisocial associates, family and/or marital relationships, school and/or work, leisure and/or recreation, and substance abuse.
1
Copyright # 2014 John Wiley & Sons, Ltd.
Behav. Sci. Law 32: 596–607 (2014) DOI: 10.1002/bsl
Decision making in post-acquittal hospital release
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Table 1. Ratings and rankings of factors considered by evaluators conducting readiness for conditional release (CR) evaluations Factor Risk for violence Adherence to medication Risk of substance use or abuse (drugs and/or alcohol) Ability to follow terms and conditions of CR Attending scheduled court hearings Risk of clinical decompensation Attending scheduled appointments with mental health personnel Adherence to clinical treatment (recovery) plan Motivation to follow terms and conditions of CR Attending scheduled appointments with supervising officer (i.e., probation) Risk of rehospitalization in state hospital due to violations of terms and conditions of CR The applicant’s criminal thinking (i.e., responsibility for behavior, scheming, etc.) The applicant’s criminal attitudes (i.e., rationalizing crime, negative attitude toward law) Housing/risk for homelessness Peer group/associates/family members the person is likely to return home to Financial stability/benefits being in place Applicants’ level of insight into their link between mental illness and criminal behavior Risk of rehospitalization in a civil hospital due to clinical reasons Applicant’s articulation of their motivation to succeed on CR Leisure activities/down time/recreational pursuits Employment
Likert score
Prevalence of top 3 ranking
9.37 9.12 8.97 8.75 8.58 8.56 8.48 8.45 8.40 8.37 8.00
93.44% 57.38% 37.70% 21.31% 1.64% 27.87% 8.20% 14.75% 9.84% 1.64% n/a
7.97
1.64%
7.79
3.28%
7.78 7.42 7.39 7.26
11.48% 4.92% n/a 3.28%
7.23 6.44 5.59 4.57
n/a 1.64% n/a n/a
RESULTS Section 1: Factors Considered When Assessing Readiness for CR Evaluators were asked to individually rate 21 items with potential relevance to a CR readiness evaluation on a Likert scale from 1 to 10 and were then asked to choose and rank their “top three” most important factors from the same list of 21 factors. Items and scores are provided in Table 1. Overall, evaluators agreed on the primary importance of “past violence” in determining an acquittee’s readiness for conditional release. “Past violence” had the largest average Likert score (n = 57, M = 9.37)2 and was the most frequent item chosen in the rankordered “top three” (93.4% of evaluators ranked it in their top three). However, little consensus existed beyond that singular violence factor. One additional factor (“adherence to medication,” M = 9.12) was rated higher than 9.0, while nine other items were rated between 8.0 and 9.0. Six of the nine factors centered on the person’s ability to adhere to CR or attend required appointments with mental health or legal supervision. The other three included risk of substance abuse, risk of clinical decompensation, and motivation to follow the terms and conditions of the CR. 2 Sample sizes for survey question range from 57 to 89, as some participants chose to skip certain questions. Questions pertaining to the Likert ratings and the ranked “top three” scores had between 57 and 62 responses each.
Copyright # 2014 John Wiley & Sons, Ltd.
Behav. Sci. Law 32: 596–607 (2014) DOI: 10.1002/bsl
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The seven items relating to criminogenic factors (Andrews et al., 2006) were generally rated lower than other factors. Although risk for violence and risk for substance abuse received the first- and third-highest Likert scores, the five other criminogenic factors were all rated below 8.0 and were all found in the ten lowest-rated factors. Two criminogenic factors – employment (M = 4.57) and leisure time activities (M = 5.59) – provided the two lowest Likert scores of all factors. Substantial variability existed in evaluators’ rankings of their “top three” factors as well (see Table 1). A total of 16 different factors were chosen by at least one evaluator as a “top three” risk factor, with five different factors chosen by more than 10 evaluators. Of those five factors – risk for violence (n = 57, 93.4% of evaluators), adherence to medication (57.4%), risk for substance abuse (37.7%), risk for clinical decompensation (27.9%), and ability to follow the terms of CR (21.3%) – only “past violence” and “adherence with medications” were endorsed by more than 50% of evaluators. These five top-ranked factors represent a mix of criminogenic and violence risk assessment factors. Eleven additional factors were endorsed in at least one evaluators’ top three and present in 1.6% to 14.8% of evaluators’ top three lists, again largely comprised of a mix of criminogenic and violence risk assessment factors. Only one other factor from the CR outcome literature was ranked in any evaluator’s top three list (housing, at 11.5%).
Section 2: Evaluator Beliefs about CR Conditional release evaluators were also asked questions regarding their beliefs and knowledge of the CR process. Evaluators were asked to define successful tenure on CR; evaluators scored “absence of violence” as significantly more important than other factors of “absence of recidivism,” “clinical stability,” and “absence of rehospitalization” [n = 22, F(4,105) = 5.35, p = 0.01]. When evaluators were asked about the time period after hospital release that they consider when determining an acquittee’s readiness for CR, evaluators reported an average of 10.2 months (n = 43, s = 7.8), but the range was large (1–48 months). Evaluators were also asked to describe the psycholegal question of CR readiness; 57.6% of evaluators said that it was their job to review the viability of existing treatment plans, while 42.4% said their job was to independently ascertain what factors should be present before deciding on CR readiness. The difference between the two groups was not significant (n = 59; z = 1.43, p > 0.05). Finally, we asked evaluators which (if any) formal forensic assessment instruments (FAIs) they routinely administer during CR readiness evaluations. More than half of the evaluators that responded (58.4%, n = 45/77) reported using at least one FAI in their evaluations for CR readiness. Most of these evaluators (n = 38) reported routinely using a risk assessment instrument, while others (n = 7) reported using a malingering measure (no crossover existed).
DISCUSSION Forensic evaluator opinions on insanity acquittees’ readiness for conditional release (CR) have important implications far beyond those of the acquittees themselves. The nature of the CR application raises several political and social issues encompassing Copyright # 2014 John Wiley & Sons, Ltd.
Behav. Sci. Law 32: 596–607 (2014) DOI: 10.1002/bsl
Decision making in post-acquittal hospital release
603
public safety, consumer civil rights, financial costs, and public perception of persons with mental illness. Courts rely on forensic evaluators to provide reliable, valid opinions on an applicant’s readiness in order for them to make informed rulings addressing these issues. However, how forensic evaluators make these decisions – or their basic beliefs about the CR process – has remained largely unknown. The primary finding from this study is that no clear rubric for decision-making on evaluations of readiness for CR exists. Evaluators showed substantial disagreement on nearly every aspect of the CR evaluation process. Most notably, the evaluators disagreed on both the relative importance of various predictive factors and on their beliefs about various aspects of the CR process itself.
Factors Evaluators Consider in CR Readiness Evaluations Evaluators agreed on the importance of past violence when conducting a CR readiness evaluation. However, past violence was the lone factor on which a majority of evaluators agreed. Only one other factor – adherence to medication – even reached a consensus from a simple majority of evaluators. Factors prioritized most highly in CR readiness cases included a mishmash of 16 out of 21 potential factors. Although the Likert scale items on our survey did not have anchor points (thereby making firm conclusions about individual items being rated as “high” or “low” on their own merit impossible), the item scores did provide evidence of how the evaluators ranked the items relative to each other. Overall, there was more disagreement than agreement regarding which factors are most important in CR readiness evaluations. While evaluators rated many individual factors as very important, they showed very little agreement on which of those factors were most important.3 Evaluator differences may stem in part from both ambiguous statutory guidance and the lack of standardized assessment measures for CR readiness. CR evaluators in this study defined success on CR primarily as a lack of post-discharge violence. It is not surprising, then, that evaluators of CR readiness more often prioritized violence risk assessment variables compared with criminogenic variables or factors derived from CR outcome studies. Similarly, most CR readiness evaluators defined failure on CR primarily as involving commission of a violent act. This pattern suggests that CR evaluators may, in principle, view the CR readiness evaluation primarily as a violence risk assessment. However, assessing readiness for CR goes beyond exclusively performing a violence risk assessment. Other contextual factors are important to consider – the acquittee’s clinical stability, suitability of housing placements, or the ability to maintain commitments to mental health and other supervisory agencies, to name a few (Vitacco et al., 2014). Also, the primary importance of mental illness on the acquittee’s risk for criminal behavior is paramount and is likely significantly more important than in other offenders with mental illness. Specifically, in NGRI populations, risk for violence is
3 In this study, we restricted the number of “top choices” to three. We understand that in practice, evaluators are not restricted to a discrete number of factors to which they must adhere. In fact, researchers have reviewed the unlimited number of factors documented in evaluation reports (as opposed to selected by the evaluators themselves) in real CR readiness reports (Stredny et al., 2012); the most predictive factors included previous placement of the defendant, risk for self-harm, and family relationships. However, in attempting to elicit the factors that evaluators prioritize most highly, we felt that listing three factors forced evaluators to carefully consider which factors were most important to them.
Copyright # 2014 John Wiley & Sons, Ltd.
Behav. Sci. Law 32: 596–607 (2014) DOI: 10.1002/bsl
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firmly tied to mental illness. Finally, the political context of the release also looms large in the decision to release an insanity acquittee to the community (McDermott et al., 2008). If an individual on CR commits a serious offense, entire CR programs are at risk. All of these different subtexts affect the CR readiness evaluation in ways not often found in other forensic evaluations, and in ways that go beyond simple violence risk prediction. The lack of well-defined statutory guidance, along with the absence of standardized assessment protocols for determining readiness, makes it nearly impossible for CR readiness evaluators to agree on which variables to prioritize as they sift through the various competing demands inherent in making release recommendations. Beyond levels of disagreement, results indicate that CR evaluators may consistently de-emphasize potentially important factors; five of the lowest-ranked ten factors, including the two lowest-ranked factors, have been consistently supported by the literature as being among the “central eight” – a constellation of the most robust predictors of future recidivism (Andrews et al., 2006). Additionally, evaluators did not routinely prioritize those factors that previous research has shown to be most predictive of success or failure on CR. Research has shown that substance abuse treatment, intensive case management, stable housing, and good continuity of care from hospital to community are important factors in differentiating those persons on CR who succeed from those who have their CRs revoked (Marshall et al., 2014; Salem et al., 2014; Vitacco et al., 2008). However, evaluators in this study consistently rated these predictive factors lower than most other factors.
How Forensic Evaluators Understand CR Conditional release is more firmly placed in the political landscape than most other forensic evaluations. Definitions of success and failure on CR differ among mental health professionals, legislators, and community residents. The results from this study indicate that evaluators themselves have a wide range of methodologies and beliefs about the CR process. First, CR readiness evaluators showed variability on methodologies used to assess readiness. How evaluators approach the evaluation split the evaluators nearly in half, with 57.6% stating that they review existing treatment plans to assess the viability of the potential discharge and the remainder reporting that they independently ascertain which factors should be present to ensure a successful discharge. Additionally, 58.4% reported using some sort of FAI when conducting a CR readiness evaluation, with most of those evaluators using a formal risk assessment measure. Of the other assessment measures used, 9.1% of all evaluators reported using malingering measures. Although the existence of mental illness is routinely established as part of the insanity defense, the use of malingering measures in a CR evaluation is not as peculiar as it may seem at first glance; for example, acquittees may attempt to misrepresent symptoms in order to gain or thwart release. External CR readiness evaluators may be in an ideal position to confirm diagnoses, symptoms, severity, and motivation for release. Perhaps more important, nearly half of the evaluators reported using no FAIs at all, and no two evaluators reported using an identical FAI battery. Simply put, methodologies for these evaluations are idiographic, following no discernible standard protocol. Similarly, CR evaluators reported a variety of beliefs about the CR process itself. Most evaluators agreed that avoidance of violence was their primary definition of a successful discharge, but other definitions were endorsed positively as well (absence of Copyright # 2014 John Wiley & Sons, Ltd.
Behav. Sci. Law 32: 596–607 (2014) DOI: 10.1002/bsl
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recidivism, absence of rehospitalization, absence of clinical decompensation). Remembering the political context of these discharges, CR evaluators may not be prioritizing the same measures of success considered by health administrators or politicians. Finally, evaluators expressed a vast range of lengths of time for which they are assessing readiness – from 1 month post-discharge up to 4 years. Clearly evaluators will utilize different schema and decision-making criteria when predicting behavior from weeks versus months versus years. Interestingly, most of the CR outcome literature follows persons granted CR for 3–5 years, well beyond the ranges of time assessed by all but one evaluator. This is not to say that evaluators are predicting success for periods of time that are too short, or that researchers are following persons on CR for periods of time that are too long – merely that practice seems to be out of sync with research. Perhaps evaluators, looking at shorter time periods for success, have good reason to minimize some factors that may be less relevant in the months after hospital release (potentially employment or risk for rehospitalization, for example). However, without additional rationale in the reports, we cannot infer why evaluators prioritize certain factors over others. Again, our results demonstrate substantial disagreement between evaluators and the evidence-based literature, as well as among the evaluators themselves.
Improving CR Readiness Evaluations When compared with other forensic evaluations, CR readiness evaluations seem to embody a much higher degree of disagreement and confusion among evaluators. Not only do evaluators disagree on which factors are most important in CR readiness evaluations, they also disagree on the methodologies needed to make their decisions – and they disagree on the most fundamental definitions of CR in the first place. Given that the reliability and quality of CR readiness evaluations are lower than other forensic evaluations completed by similarly trained evaluators (Gowensmith, Murrie, & Boccaccini, 2013), disagreement does not seem likely to be a product of poor evaluators. Evaluators who reliably perform high-quality forensic evaluations in other contexts seem to struggle with CR readiness evaluations. Therefore, external factors shaping the CR evaluation seem to be more culpable for the inherent confusion found in CR readiness evaluations: ambiguous statutes, lack of standardized methodologies, and lack of training opportunities. Perhaps if relevant statutes contained more specific guidance, CR evaluators would be better able to address the concerns of the court. While CR evaluators generally prioritize violence risk in their evaluations, this may not be the focus of the court. Perhaps courts place a higher priority on recidivism or rehospitalization than the evaluators. Specific statutory guidance would assist evaluators in addressing and prioritizing uniform factors. Similarly, CR readiness evaluators suffer from a complete absence of targeted assessment measures for CR readiness. Some researchers have opined that such an instrument may be impractical in most contexts, given the varying political nature of CR and the wide variety of CR policies among different states (McDermott et al., 2008). However, it does seem that short of a specific CR readiness measure, a more standardized protocol could be offered to evaluators. Such a protocol should incorporate those outcome variables found to be most predictive of success and failure. A standardized CR readiness evaluation protocol could, for example, require evaluators to assess the acquittee’s standing on variables related to violence risk, criminogenic factors, mental Copyright # 2014 John Wiley & Sons, Ltd.
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health factors, and outcome variables – perhaps through the use of separate sections focusing on the potential for recidivism, violence risk, rehospitalization, and clinical decompensation. Lengths of time for post-discharge assessment would ideally be standardized and articulated in evaluation reports. Training opportunities, similar to those now commonly found for competence to stand trial or legal sanity, could be created to standardize these evaluation protocols. Such trainings should carefully attend to the specifics of local jurisdictions and would ideally incorporate expertise and insight from legal experts.
Limitations and Directions for Future Research The results of this paper, although informative on nature of CR in the United States, need to be considered in the context of some methodological limitations. First, this study sampled 89 evaluators across nine states. Clearly, we cannot be certain if this group accurately represents CR evaluators across the entire country. Also, CR evaluators were given a prescribed set of factors from which to choose; perhaps other factors exist that were not represented in our survey. Similarly, factors rated as less important in this study may legitimately be critical in certain cases and therefore worthy of broader attention. Finally, as mentioned earlier, evaluators are not restricted to choosing certain factors when determining an acquittee’s readiness for CR; evaluators in practice are likely to draw inferences and conclusions from a wider array of factors than were provided in this study. Yet, this study does provide some direction for future research. First, the lack of strong methodological models place evaluators doing CR evaluations at a considerable disadvantage as they are left to their own devices to determine relevant factors that predict success on conditional release. Based on the results of this paper, it is clear that there is a need for the development of empirically based structured assessments that outline factors relevant to CR. Moreover, the development of standardized instruments would likely improve agreement among forensic evaluators as to who is an appropriate candidate for potential community release. Finally, there appears to be a lack of specialized training for evaluators who conduct CR evaluations. A primary goal should be improving, through the use of empirically based factors linked to success and failure, both the quality and methodology of CR reports and recommendations.
REFERENCES Andrews, D. A., Bonta, J., & Wormith, J. S. (2006). The recent past and near future of risk and/or need assessment. Crime & Delinquency, 52(1), 7–27. doi: 10.1177/0011128705281756 Callahan, L. A., & Silver, E. (1998). Factors associated with the conditional release of persons acquitted by reason of insanity: A decision tree approach. Law and Human Behavior, 22(2), 147–163. doi: 10.1023/ A:1025790003139 Elbogen, E. B., Mercado, C. C., Scalora, M. J., & Tomkins, A. J. (2002). Perceived relevance of factors for violence risk assessment: A survey of clinicians. International Journal of Forensic Mental Health, 1(1), 37–47. doi: 10.1080/14999013.2002.10471159 Gowensmith, W. N., Murrie, D. C., & Boccaccini, M. T. (2012). Field reliability of competence to stand trial opinions: How often do evaluators agree, and what do judges decide when they disagree? Law and Human Behavior, 36, 130–139. doi: 10.1037/h0093958 Gowensmith, W. N., Murrie, D. M., & Boccaccini, M. T. (2013). Forensic mental health evaluations: Reliability, validity, quality, and other minor details. The Jury Expert, 25(1), 1–4. Copyright # 2014 John Wiley & Sons, Ltd.
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Gowensmith, W. N., Skeem, J., & McNichols, B. (2013). Specialty community supervision practices for insanity acquittees: How well do they work? Paper presentation at the American Psychology-Law Society Conference, Portland, OR. Green, D., Belfi, B., Wood, H., Schreiber, J., Yagoda, J., West, M. L., & Kunz, M. (Winter, 2013). Evaluations of dangerousness among those adjudicated not guilty by reasons of insanity. American Psychology and Law Society Newsletter, 6–10. Hawaii Revised Statutes, HI Rev Stat § 704-411-1-b (2013). Langan, P. A., & Levin, D. J. (2002). Recidivism of prisoners released in 1994. Federal Sentencing Reporter, 15 (1), 58–65. doi: 10.1525/fsr.2002.15.1.58 Manguno-Mire, G. M., Thompson, J. W., Bertman-Pate, L. J., Burnett, D. R., & Thompson, H. W. (2007). Are release recommendations for NGRI acquittees informed by relevant data? Behavioral Sciences & the Law, 25(1), 43–55. doi: 10.1002/bsl.724 Marshall, D., Reed, J., & Vitacco, M. J. (2014, March). Predicting voluntary and involuntary re-admissions to forensic hospitals by insanity acquittees in the state of Maryland: A three year follow-up. Paper presentation at the American Psychology-Law Society Conference, New Orleans, LA. McDermott, B. E., Scott, C. L., Busse, D., Andrade, F., Zozaya, M., & Quanbeck, C. D. (2008). The conditional release of insanity acquittees: Three decades of decision-making. Journal of the American Academy of Psychiatry and the Law, 36(3), 329–336. Retrieved from http://psycnet.apa.org/ McNichols, B. J., Gowensmith, W. N., & Jul, E. (2011). Forensic evaluators, conditional re-lease evaluations, and community success: Is evaluator agreement of CR readiness related to longer community tenure? Paper presentation at the American Psychology-Law Society Conference, Miami, FL. McNichols, B., Jul, E., & Gowensmith, W. N. (2011). Conditional release in the state of Hawaii: A qualitative and quantitative analysis. Poster presentation at the American Psychology-Law Society Conference, Miami, FL. Nguyen, A. H., Acklin, M. W., Fuger, K., Gowensmith, W. N., & Ignacio, L. A. (2011). Freedom in paradise: Quality of conditional release reports submitted to the Hawaii judiciary. International Journal of Law and Psychiatry, 34(5), 341–348. doi: 10.1016/j.ijlp.2011.08.006 Odeh, M. S., Zeiss, R. A., & Huss, M. T. (2006). Cues they use: Clinicians’ endorsement of risk cues in predictions of dangerousness. Behavioral Sciences and the Law, 24(2), 147–156. doi: 10.1002/bsl.672 Palmer, E. J., McGuire, J., Hatcher, R. M., Hounsome, J. C., Bilby, C. L., & Hollin, C. R. (2007). The importance of appropriate allocation to offending behavior programs. International Journal of Offender Therapy and Comparative Criminology, 52(2), 206–221. doi: 10.1177/0306624X07303877 Psychiatric Security Review Board. (2008). Conditional Release and Community Treatment Facilities. Retrieved from March 1, 2014 http://www.communitycares.info/wp-content/uploads/2008/09/psrb_factsheet_070208.pdf Salem, L., Crocker, A., Charette, Y., Seto, M., Nicholls, T., & Cote, G. (2014) The influence of intermediary housing on the recidivism patterns of individuals found not criminally responsible on account of mental disorder. Paper presentation at the American Psychology-Law Society Conference, New Orleans, LA. Segal, S. P., & Burgess, P. M. (2006). Conditional release: A less restrictive alternative to hospitalization? Psychiatric Services, 57(11), 1600–1606. doi: 10.1176/appi.ps.57.11.1600 Skeem, J. L., Winter, E., Kennealy, P. J., Eno Louden, J., & Tatar, J. (2014). Offenders with mental illness have criminogenic needs, too: Toward recidivism reduction. Law and Human Behavior, 38(3), 212–224. doi: 10.1037/lhb0000054 Stredny, R. V., Parker, A. L., & Dibble, A. E. (2012). Evaluator agreement in placement recommendations for insanity acquittees. Behavioral Sciences and the Law, 30(3), 297–307. doi: 10.1002/bsl.1995 Vitacco, M. J., Bailey, K., Zavodny, D., Waggoner, C., & Tabernik, H. (2014). Risk assessment and decision making in forensic patients under consideration for release. Paper presentation at the American Psychology-Law Society Conference, New Orleans, LA. Vitacco, M. J., Erickson, S. K., Kurus, S., Apple, B. N., Lamberti, J. S., & Gasser, D. (2011). Evaluating conditional release in female insanity acquittees: A risk management perspective. Psychological Services, 8 (4), 332–342. doi: 10.1037/a0025613 Vitacco, M. J., Van Rybroek, G. J., Erickson, S. K., Rogstad, J. E., Tripp, A., Harris, L., & Miller, R. (2008). Developing services for insanity acquittees conditionally released into the community: Maximizing success and minimizing recidivism. Psychological Services, 5(2), 118–125. doi: 10.1037/1541-1559.5.2.118 Wormith, J., Althouse, R., Simpson, M., Reitzel, L. R., Fagan, T. J., & Morgan, R. D. (2007). The rehabilitation and reintegration of offenders: The current landscape and some future directions for correctional psychology. Criminal Justice and Behavior, 34(7), 879–892. doi: 10.1177/0093854807301552 Wormith, J., & Olver, M. E. (2002). Offender treatment attrition and its relationship with risk, responsivity, and recidivism. Criminal Justice and Behavior, 29(4), 447– 471. doi: 10.1177/0093854802029004006
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Decision-Making in Post-acquittal Hospital Release: How Do Forensic Evaluators Make Their Decisions? W. Neil Gowensmith, Ph.D.*, Amanda E. Bryant, M.A.† and Michael J. Vitacco, Ph.D.‡ A large number of individuals are acquitted of criminal charges after being found “not guilty by reason of insanity.” Most of these individuals are hospitalized and later seek hospital discharge under a court-ordered provision called conditional release (“CR”). Courts rely on opinions from forensic evaluators to determine acquittees’ readiness for CR. However, how evaluators make these decisions are unknown. Eighty-nine CR readiness evaluators from nine states were surveyed to understand which factors evaluators prioritize and to understand evaluators’ assessment methodologies and their beliefs about the CR process itself. Little uniformity was found among evaluators on any aspect of the decision-making process. Evaluators utilized a wide variety of methodologies when making their decisions on readiness for CR. Moreover, evaluators’ conceptualizations of the CR process itself varied widely. The results highlight the difficulty and confusion evaluators face when conducting CR readiness evaluations, and demonstrate the need for enhanced training, statutory guidance, and standardized evaluation protocols for these evaluations. Copyright # 2014 John Wiley & Sons, Ltd.
A large number of individuals are currently committed to inpatient psychiatric hospitals nationwide as a result of being acquitted as “not guilty by reason of insanity” (NGRI). Typically, courts mandate that these NGRI acquittees remain in locked facilities for several years to treat their psychiatric illnesses, promote behavioral stability, and protect society. But in most cases, courts eventually release NGRI acquittees back to the community if their symptoms and violence risk factors can be reasonably managed outside the forensic hospital. This type of discharge is called a “conditional release” (or “CR”), as continued release is contingent upon following court ordered conditions. These conditions often include taking psychotropic medications, abstaining from alcohol and drugs, and attending therapeutic activities (Callahan & Silver, 1998; McDermott et al., 2008; Segal & Burgess, 2006; Vitacco et al., 2008). Courts rely heavily on evaluations from forensic mental health professionals when making their decision on whether to place someone on CR (McNichols, Gowensmith, & Jul, 2011). Yet, significant questions remain regarding the factors clinicians rely on when making their release recommendations to the court.
*Correspondence to: W. Neil Gowensmith, Ph.D., University of Denver, Graduate School of Professional Psychology, Ammi Hyde Building, 2450 S. Vine St, Denver, CO 80208, U.S.A. E-mail: [email protected] † University of Denver ‡ Georgia Regents University
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EVALUATING READINESS FOR CONDITIONAL RELEASE Many psycholegal questions are accompanied by carefully crafted statutes and/or empirically sound assessment instruments to aid in evaluators’ decision-making. Competency to stand trial (CST) evaluators use a wide array of specific and well-validated CST instruments to address the specific prongs of the Dusky standard; sanity evaluators address some combination of the M’Naughten rule and the irresistible impulse prong, depending on their jurisdiction; violence risk evaluators can employ a host of well-validated risk assessment instruments to categorize and predict risk levels for offenders. However, CR readiness evaluators typically have neither clear statutory guidance nor standardized assessment protocols to guide them. There are no assessments specifically designed to assess readiness for CR, and statutes often provide ambiguous guidelines for formulating an opinion. As an illustration, consider the statute from Hawaii (Hawaii Revised Statutes, 2013): §704-411 (1) (b) The defendant shall be granted conditional release with conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition.
Although the statute clearly identifies the legal criteria for determining post-acquittal commitment or release, it does not articulate any criteria regarding how the CR evaluation should be conducted or what criteria must be considered in determining if a “defendant can be controlled adequately.” Hawaii’s statute is representative of most CR statutes around the country. This ambiguous statutory guidance, coupled with the lack of specific assessment instruments for CR readiness, leaves most forensic evaluators largely to their own devices when assessing an acquittee’s readiness for conditional release. This lack of uniform standards is evidenced in recent research indicating that CR readiness evaluation reports have the lowest evaluator reliability and lowest evaluation report quality when they are compared with evaluations of competency to stand trial, legal sanity, and violence risk (Gowensmith, Murrie, & Boccaccini, 2012; Nguyen et al., 2011). Triads of evaluators on the same case showed disagreement levels between 50% and 60% (McNichols, Gowensmith et al., 2011; Nguyen et al., 2011). Further, pairs of evaluators in Virginia disagreed on 22% of cases in which evaluators were deciding if new insanity acquittees should be hospitalized or placed in the community on CR (Stredny, Parker, & Dibble, 2012). Overall, research suggests that forensic evaluators do not consistently agree upon issues related CR readiness.
CONDITIONAL RELEASE OUTCOMES However, this disagreement is not due to a lack of extant research regarding persons on CR. In fact, much is known about the CR population and their experiences. The recidivism rate for individuals on CR is substantially lower than general recidivism rates. Most studies place the CR recidivism rate between 2% and 10% (McNichols, Jul, & Gowensmith, 2011; Psychiatric Security Review Board, 2008; Vitacco et al., 2011), Copyright # 2014 John Wiley & Sons, Ltd.
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compared with general recidivism rates ranging from 30% to 60% (Langan & Levin, 2002). However, arrest and incarceration rates may not be the ideal outcome variables for the CR population, given that they are often returned to involuntary mental health services before – or in lieu of – arrest or criminal charges. Subsequently, rehospitalization rates for the CR population range between 10% and 30% (McNichols, Jul, & Gowensmith et al., 2011; Psychiatric Security Review Board, 2008; Vitacco et al., 2011). Rehospitalization rates include both short-term inpatient “tune-ups” for acute crises and long-term placements if a CR is revoked. In addition, researchers have an increasingly sophisticated understanding of the factors associated with success and failure for persons on CR. Persons on CR in Wisconsin were found to have longer community tenure and fewer rehospitalizations if they received intensive outpatient treatment services, substance abuse services, and a continuity of care from hospital to community placement (Vitacco et al., 2008). Vitacco et al. (2011) recommend short-term intensive hospitalizations to reduce rates of CR revocation based on their research with females on CR. Additionally, appropriate housing was found to be a significant predictor of success on CR in both Maryland (Marshall, Reed, & Vitacco, 2014) and Canada (Salem et al., 2014). Persons on CR who were supervised by officers with specialties in mental health were hospitalized for fewer days as compared with those persons on CR supervised by non-mental health officers (Gowensmith, Skeem, & McNichols, 2013). Researchers have suggested that while more attention to mental health factors should be given to individuals on CR relative to other offenders with mental health needs, overall the evidence-based models of risk–need–responsivity (RNR) and addressing criminogenic needs should provide the service foundation for the CR population (Vitacco et al., 2011, 2014). Certain assessment factors have been shown to be useful in predicting failure for persons on CR as well. Selected variables from the Historical-Clinical-Risk Management-20 (HCR-20) were significantly predictive of recommitment of acquittees to civil hospitals in a CR sample from New York (Green et al., 2013). Diagnoses of substance abuse and previous failures on CR are predictive of CR revocation (Vitacco et al., 2011). Disagreement among evaluators determining CR readiness on the same case was also found to be predictive of rehospitalization in a CR sample in Hawaii, showing that rehospitalization rates doubled when evaluators disagreed on readiness (McNichols, Gowensmith et al., 2011). Finally, some researchers have suggested that the RNR model (Palmer et al., 2007; Wormith et al., 2007; Wormith & Olver, 2002) could be an appropriate framework from which to manage CR populations. Accurately assessing risk level, as well as identifying and attending to a person’s individual criminogenic needs, could reduce revocations and recidivism, as has been found in persons on probation or parole (Palmer et al., 2007; Skeem et al., 2014; Wormith & Olver, 2002). This could include, at a basic level, placing a greater emphasis on the assessment and treatment of criminogenic needs.
WHAT INFLUENCES CONDITIONAL RELEASE DECISIONS? In short, the emerging literature has identified some measures predictive of community failure (and success) for persons on CR. However, the degree to which these factors are considered by forensic evaluators has not been sufficiently studied. Some related Copyright # 2014 John Wiley & Sons, Ltd.
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studies have focused on factors influencing release decisions on CR cases. The largest study of this type examined CR cases in four states and found that the factors most significantly related to release decisions (diagnosis, crime severity, and demographic factors) differed substantially across those states (Callahan & Silver, 1998). Age and levels of psychopathy were also found to be predictive of hospital discharge on CR in a sample of 91 male forensic patients applying for conditional release in Louisiana (Manguno-Mire et al., 2007). Many clinicians appear to emphasize the index offense more heavily than clinical factors and current functioning, which research suggests are likely better indicators of success on CR. Additionally, a handful of studies have directly investigated the factors that the evaluators consider. Despite the different focus, the results remain largely mixed. McDermott et al. (2008) reviewed 81 CR cases in California and observed that evaluators considered several empirically-supported risk factors for violence, such as acquittees’ substance use, adherence to clinical treatment, and structured violence risk assessment information. Stredny et al. (2012) found that psychiatrists and psychologists relied on different sets of factors when formulating their release decisions, and that moderate variability existed in the factors that evaluators prioritized in the initial commitment of insanity acquittees in Virginia. For example, psychiatrists in their study prioritized substance abuse history and family/psychosocial issues more than psychologists, while psychologists prioritized use of weapons more often than psychiatrists. In addition, multiple studies have found that evaluators routinely prioritize non-empirically validated factors when making release decisions on psychiatrically hospitalized patients (however, no distinction has been made between insanity acquittees and civilly committed patients in these studies) (Elbogen, Mercado, Scalora, & Tomkins, 2002; Odeh, Zeiss, & Huss, 2006). Finally, researchers categorized the overall evaluation report quality in a sample of CR readiness evaluators in Hawaii as “poor” (Nguyen et al., 2011). The study found that less than 9% of evaluators used forensic assessment instruments in their CR readiness evaluations, and that less than 50% of evaluators outlined a relationship between the acquittee’s mental health symptoms and their associated risks for violence or recidivism upon release on CR. In summary, although the literature gives some guidance as to the most appropriate factors to consider in a CR readiness evaluation, decisions in the field seem to be made from a disparate and unpredictable set of idiographic factors prioritized by evaluators, which also vary across settings. However, there is no known research that examines which factors forensic evaluators find most important when assessing CR readiness for insanity acquittees after a period of hospitalization or how they interpret the psycholegal constructs related to CR.
PURPOSE OF STUDY Given that releasing an insanity acquittee back to the community is often a high-profile and politically volatile event, and that courts follow the recommendations of forensic evaluators in the vast majority of conditional release applications (McNichols, Gowensmith et al., 2011), it is important to explore which factors CR evaluators prioritize in these types of evaluations. To better understand how forensic evaluators make decisions on CR readiness evaluations, we surveyed certified forensic evaluators across nine states on a host of factors related to the assessment of readiness for CR. Copyright # 2014 John Wiley & Sons, Ltd.
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METHODS Sample The 89 evaluators were sampled from Hawaii, Georgia, Wisconsin, South Carolina, Minnesota, North Carolina, Colorado, California, and Oregon. Evaluators reported conducting CR readiness evaluations for an average of 8.2 years, with a total of 55.1% (n = 49) of evaluators reporting completing more than 20 CR readiness evaluations in their careers. A total of 78.7% (n = 70) of the evaluators were psychologists and 21.3% (n = 19) were psychiatrists. Virtually all of the evaluators worked primarily in outpatient settings (94.4%, n = 84); the remainder worked primarily in hospital settings. While every evaluator except one stated that they had attended training on forensic evaluation at least once in their careers, only 46.0% (n = 41) of evaluators reported that they had ever received specialized training in completing CR readiness evaluations.
Survey Participants completed 17 questions related to demographics (age, discipline, etc.), training, and experience. They then completed another seven questions directly related to making decisions on a CR readiness evaluation. The seven questions on the CR portion of the survey covered two topic areas. The first section included a list of 21 potentially relevant factors that evaluators might routinely consider in a CR evaluation. These factors were largely drawn from analogous studies in which practitioners were asked to rate potentially relevant factors in determining readiness for hospital discharge from civil settings (Elbogen et al., 2002; Odeh et al., 2006). However, factors also included questions that have been found to be predictive of success versus failure for persons on CR in the community. In total, the list of factors included seven “central eight1 ” criminogenic factors (Andrews, Bonta, & Wormith, 2006), five factors related to CR success derived from the larger CR outcome literature, and nine factors derived from common risk assessment factors found across several risk assessment instruments. The list of factors can be found in Table 1. Evaluators were asked to score each item on a Likert scale from 1 to 10 in terms of how important each factor is in their decision-making (with 1 labeled “unimportant” and 10 labeled “extremely important”). Each evaluator was asked to rank their “top three” most important factors out of the original list of 21 factors. The second section of the survey asked evaluators to respond to broader contextual questions about CR. In this section, evaluators were asked to describe their opinions about CR, their definitions of success and failure for persons on CR, and their understanding of the psycholegal foundation for determining CR readiness. Evaluators were also asked to describe the length of time post-discharge they consider when assessing readiness, as well as their assessment methodologies in determining readiness. After providing consent, participants completed online surveys through Qualtrics (Denver, Colorado, USA). Responses were analyzed in aggregate. “Central eight” criminogenic risk factors (Andrews, Bonta, & Wormith, 2006) include history of antisocial behavior, antisocial personality pattern, antisocial cognition, antisocial associates, family and/or marital relationships, school and/or work, leisure and/or recreation, and substance abuse.
1
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Table 1. Ratings and rankings of factors considered by evaluators conducting readiness for conditional release (CR) evaluations Factor Risk for violence Adherence to medication Risk of substance use or abuse (drugs and/or alcohol) Ability to follow terms and conditions of CR Attending scheduled court hearings Risk of clinical decompensation Attending scheduled appointments with mental health personnel Adherence to clinical treatment (recovery) plan Motivation to follow terms and conditions of CR Attending scheduled appointments with supervising officer (i.e., probation) Risk of rehospitalization in state hospital due to violations of terms and conditions of CR The applicant’s criminal thinking (i.e., responsibility for behavior, scheming, etc.) The applicant’s criminal attitudes (i.e., rationalizing crime, negative attitude toward law) Housing/risk for homelessness Peer group/associates/family members the person is likely to return home to Financial stability/benefits being in place Applicants’ level of insight into their link between mental illness and criminal behavior Risk of rehospitalization in a civil hospital due to clinical reasons Applicant’s articulation of their motivation to succeed on CR Leisure activities/down time/recreational pursuits Employment
Likert score
Prevalence of top 3 ranking
9.37 9.12 8.97 8.75 8.58 8.56 8.48 8.45 8.40 8.37 8.00
93.44% 57.38% 37.70% 21.31% 1.64% 27.87% 8.20% 14.75% 9.84% 1.64% n/a
7.97
1.64%
7.79
3.28%
7.78 7.42 7.39 7.26
11.48% 4.92% n/a 3.28%
7.23 6.44 5.59 4.57
n/a 1.64% n/a n/a
RESULTS Section 1: Factors Considered When Assessing Readiness for CR Evaluators were asked to individually rate 21 items with potential relevance to a CR readiness evaluation on a Likert scale from 1 to 10 and were then asked to choose and rank their “top three” most important factors from the same list of 21 factors. Items and scores are provided in Table 1. Overall, evaluators agreed on the primary importance of “past violence” in determining an acquittee’s readiness for conditional release. “Past violence” had the largest average Likert score (n = 57, M = 9.37)2 and was the most frequent item chosen in the rankordered “top three” (93.4% of evaluators ranked it in their top three). However, little consensus existed beyond that singular violence factor. One additional factor (“adherence to medication,” M = 9.12) was rated higher than 9.0, while nine other items were rated between 8.0 and 9.0. Six of the nine factors centered on the person’s ability to adhere to CR or attend required appointments with mental health or legal supervision. The other three included risk of substance abuse, risk of clinical decompensation, and motivation to follow the terms and conditions of the CR. 2 Sample sizes for survey question range from 57 to 89, as some participants chose to skip certain questions. Questions pertaining to the Likert ratings and the ranked “top three” scores had between 57 and 62 responses each.
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The seven items relating to criminogenic factors (Andrews et al., 2006) were generally rated lower than other factors. Although risk for violence and risk for substance abuse received the first- and third-highest Likert scores, the five other criminogenic factors were all rated below 8.0 and were all found in the ten lowest-rated factors. Two criminogenic factors – employment (M = 4.57) and leisure time activities (M = 5.59) – provided the two lowest Likert scores of all factors. Substantial variability existed in evaluators’ rankings of their “top three” factors as well (see Table 1). A total of 16 different factors were chosen by at least one evaluator as a “top three” risk factor, with five different factors chosen by more than 10 evaluators. Of those five factors – risk for violence (n = 57, 93.4% of evaluators), adherence to medication (57.4%), risk for substance abuse (37.7%), risk for clinical decompensation (27.9%), and ability to follow the terms of CR (21.3%) – only “past violence” and “adherence with medications” were endorsed by more than 50% of evaluators. These five top-ranked factors represent a mix of criminogenic and violence risk assessment factors. Eleven additional factors were endorsed in at least one evaluators’ top three and present in 1.6% to 14.8% of evaluators’ top three lists, again largely comprised of a mix of criminogenic and violence risk assessment factors. Only one other factor from the CR outcome literature was ranked in any evaluator’s top three list (housing, at 11.5%).
Section 2: Evaluator Beliefs about CR Conditional release evaluators were also asked questions regarding their beliefs and knowledge of the CR process. Evaluators were asked to define successful tenure on CR; evaluators scored “absence of violence” as significantly more important than other factors of “absence of recidivism,” “clinical stability,” and “absence of rehospitalization” [n = 22, F(4,105) = 5.35, p = 0.01]. When evaluators were asked about the time period after hospital release that they consider when determining an acquittee’s readiness for CR, evaluators reported an average of 10.2 months (n = 43, s = 7.8), but the range was large (1–48 months). Evaluators were also asked to describe the psycholegal question of CR readiness; 57.6% of evaluators said that it was their job to review the viability of existing treatment plans, while 42.4% said their job was to independently ascertain what factors should be present before deciding on CR readiness. The difference between the two groups was not significant (n = 59; z = 1.43, p > 0.05). Finally, we asked evaluators which (if any) formal forensic assessment instruments (FAIs) they routinely administer during CR readiness evaluations. More than half of the evaluators that responded (58.4%, n = 45/77) reported using at least one FAI in their evaluations for CR readiness. Most of these evaluators (n = 38) reported routinely using a risk assessment instrument, while others (n = 7) reported using a malingering measure (no crossover existed).
DISCUSSION Forensic evaluator opinions on insanity acquittees’ readiness for conditional release (CR) have important implications far beyond those of the acquittees themselves. The nature of the CR application raises several political and social issues encompassing Copyright # 2014 John Wiley & Sons, Ltd.
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public safety, consumer civil rights, financial costs, and public perception of persons with mental illness. Courts rely on forensic evaluators to provide reliable, valid opinions on an applicant’s readiness in order for them to make informed rulings addressing these issues. However, how forensic evaluators make these decisions – or their basic beliefs about the CR process – has remained largely unknown. The primary finding from this study is that no clear rubric for decision-making on evaluations of readiness for CR exists. Evaluators showed substantial disagreement on nearly every aspect of the CR evaluation process. Most notably, the evaluators disagreed on both the relative importance of various predictive factors and on their beliefs about various aspects of the CR process itself.
Factors Evaluators Consider in CR Readiness Evaluations Evaluators agreed on the importance of past violence when conducting a CR readiness evaluation. However, past violence was the lone factor on which a majority of evaluators agreed. Only one other factor – adherence to medication – even reached a consensus from a simple majority of evaluators. Factors prioritized most highly in CR readiness cases included a mishmash of 16 out of 21 potential factors. Although the Likert scale items on our survey did not have anchor points (thereby making firm conclusions about individual items being rated as “high” or “low” on their own merit impossible), the item scores did provide evidence of how the evaluators ranked the items relative to each other. Overall, there was more disagreement than agreement regarding which factors are most important in CR readiness evaluations. While evaluators rated many individual factors as very important, they showed very little agreement on which of those factors were most important.3 Evaluator differences may stem in part from both ambiguous statutory guidance and the lack of standardized assessment measures for CR readiness. CR evaluators in this study defined success on CR primarily as a lack of post-discharge violence. It is not surprising, then, that evaluators of CR readiness more often prioritized violence risk assessment variables compared with criminogenic variables or factors derived from CR outcome studies. Similarly, most CR readiness evaluators defined failure on CR primarily as involving commission of a violent act. This pattern suggests that CR evaluators may, in principle, view the CR readiness evaluation primarily as a violence risk assessment. However, assessing readiness for CR goes beyond exclusively performing a violence risk assessment. Other contextual factors are important to consider – the acquittee’s clinical stability, suitability of housing placements, or the ability to maintain commitments to mental health and other supervisory agencies, to name a few (Vitacco et al., 2014). Also, the primary importance of mental illness on the acquittee’s risk for criminal behavior is paramount and is likely significantly more important than in other offenders with mental illness. Specifically, in NGRI populations, risk for violence is
3 In this study, we restricted the number of “top choices” to three. We understand that in practice, evaluators are not restricted to a discrete number of factors to which they must adhere. In fact, researchers have reviewed the unlimited number of factors documented in evaluation reports (as opposed to selected by the evaluators themselves) in real CR readiness reports (Stredny et al., 2012); the most predictive factors included previous placement of the defendant, risk for self-harm, and family relationships. However, in attempting to elicit the factors that evaluators prioritize most highly, we felt that listing three factors forced evaluators to carefully consider which factors were most important to them.
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firmly tied to mental illness. Finally, the political context of the release also looms large in the decision to release an insanity acquittee to the community (McDermott et al., 2008). If an individual on CR commits a serious offense, entire CR programs are at risk. All of these different subtexts affect the CR readiness evaluation in ways not often found in other forensic evaluations, and in ways that go beyond simple violence risk prediction. The lack of well-defined statutory guidance, along with the absence of standardized assessment protocols for determining readiness, makes it nearly impossible for CR readiness evaluators to agree on which variables to prioritize as they sift through the various competing demands inherent in making release recommendations. Beyond levels of disagreement, results indicate that CR evaluators may consistently de-emphasize potentially important factors; five of the lowest-ranked ten factors, including the two lowest-ranked factors, have been consistently supported by the literature as being among the “central eight” – a constellation of the most robust predictors of future recidivism (Andrews et al., 2006). Additionally, evaluators did not routinely prioritize those factors that previous research has shown to be most predictive of success or failure on CR. Research has shown that substance abuse treatment, intensive case management, stable housing, and good continuity of care from hospital to community are important factors in differentiating those persons on CR who succeed from those who have their CRs revoked (Marshall et al., 2014; Salem et al., 2014; Vitacco et al., 2008). However, evaluators in this study consistently rated these predictive factors lower than most other factors.
How Forensic Evaluators Understand CR Conditional release is more firmly placed in the political landscape than most other forensic evaluations. Definitions of success and failure on CR differ among mental health professionals, legislators, and community residents. The results from this study indicate that evaluators themselves have a wide range of methodologies and beliefs about the CR process. First, CR readiness evaluators showed variability on methodologies used to assess readiness. How evaluators approach the evaluation split the evaluators nearly in half, with 57.6% stating that they review existing treatment plans to assess the viability of the potential discharge and the remainder reporting that they independently ascertain which factors should be present to ensure a successful discharge. Additionally, 58.4% reported using some sort of FAI when conducting a CR readiness evaluation, with most of those evaluators using a formal risk assessment measure. Of the other assessment measures used, 9.1% of all evaluators reported using malingering measures. Although the existence of mental illness is routinely established as part of the insanity defense, the use of malingering measures in a CR evaluation is not as peculiar as it may seem at first glance; for example, acquittees may attempt to misrepresent symptoms in order to gain or thwart release. External CR readiness evaluators may be in an ideal position to confirm diagnoses, symptoms, severity, and motivation for release. Perhaps more important, nearly half of the evaluators reported using no FAIs at all, and no two evaluators reported using an identical FAI battery. Simply put, methodologies for these evaluations are idiographic, following no discernible standard protocol. Similarly, CR evaluators reported a variety of beliefs about the CR process itself. Most evaluators agreed that avoidance of violence was their primary definition of a successful discharge, but other definitions were endorsed positively as well (absence of Copyright # 2014 John Wiley & Sons, Ltd.
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recidivism, absence of rehospitalization, absence of clinical decompensation). Remembering the political context of these discharges, CR evaluators may not be prioritizing the same measures of success considered by health administrators or politicians. Finally, evaluators expressed a vast range of lengths of time for which they are assessing readiness – from 1 month post-discharge up to 4 years. Clearly evaluators will utilize different schema and decision-making criteria when predicting behavior from weeks versus months versus years. Interestingly, most of the CR outcome literature follows persons granted CR for 3–5 years, well beyond the ranges of time assessed by all but one evaluator. This is not to say that evaluators are predicting success for periods of time that are too short, or that researchers are following persons on CR for periods of time that are too long – merely that practice seems to be out of sync with research. Perhaps evaluators, looking at shorter time periods for success, have good reason to minimize some factors that may be less relevant in the months after hospital release (potentially employment or risk for rehospitalization, for example). However, without additional rationale in the reports, we cannot infer why evaluators prioritize certain factors over others. Again, our results demonstrate substantial disagreement between evaluators and the evidence-based literature, as well as among the evaluators themselves.
Improving CR Readiness Evaluations When compared with other forensic evaluations, CR readiness evaluations seem to embody a much higher degree of disagreement and confusion among evaluators. Not only do evaluators disagree on which factors are most important in CR readiness evaluations, they also disagree on the methodologies needed to make their decisions – and they disagree on the most fundamental definitions of CR in the first place. Given that the reliability and quality of CR readiness evaluations are lower than other forensic evaluations completed by similarly trained evaluators (Gowensmith, Murrie, & Boccaccini, 2013), disagreement does not seem likely to be a product of poor evaluators. Evaluators who reliably perform high-quality forensic evaluations in other contexts seem to struggle with CR readiness evaluations. Therefore, external factors shaping the CR evaluation seem to be more culpable for the inherent confusion found in CR readiness evaluations: ambiguous statutes, lack of standardized methodologies, and lack of training opportunities. Perhaps if relevant statutes contained more specific guidance, CR evaluators would be better able to address the concerns of the court. While CR evaluators generally prioritize violence risk in their evaluations, this may not be the focus of the court. Perhaps courts place a higher priority on recidivism or rehospitalization than the evaluators. Specific statutory guidance would assist evaluators in addressing and prioritizing uniform factors. Similarly, CR readiness evaluators suffer from a complete absence of targeted assessment measures for CR readiness. Some researchers have opined that such an instrument may be impractical in most contexts, given the varying political nature of CR and the wide variety of CR policies among different states (McDermott et al., 2008). However, it does seem that short of a specific CR readiness measure, a more standardized protocol could be offered to evaluators. Such a protocol should incorporate those outcome variables found to be most predictive of success and failure. A standardized CR readiness evaluation protocol could, for example, require evaluators to assess the acquittee’s standing on variables related to violence risk, criminogenic factors, mental Copyright # 2014 John Wiley & Sons, Ltd.
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health factors, and outcome variables – perhaps through the use of separate sections focusing on the potential for recidivism, violence risk, rehospitalization, and clinical decompensation. Lengths of time for post-discharge assessment would ideally be standardized and articulated in evaluation reports. Training opportunities, similar to those now commonly found for competence to stand trial or legal sanity, could be created to standardize these evaluation protocols. Such trainings should carefully attend to the specifics of local jurisdictions and would ideally incorporate expertise and insight from legal experts.
Limitations and Directions for Future Research The results of this paper, although informative on nature of CR in the United States, need to be considered in the context of some methodological limitations. First, this study sampled 89 evaluators across nine states. Clearly, we cannot be certain if this group accurately represents CR evaluators across the entire country. Also, CR evaluators were given a prescribed set of factors from which to choose; perhaps other factors exist that were not represented in our survey. Similarly, factors rated as less important in this study may legitimately be critical in certain cases and therefore worthy of broader attention. Finally, as mentioned earlier, evaluators are not restricted to choosing certain factors when determining an acquittee’s readiness for CR; evaluators in practice are likely to draw inferences and conclusions from a wider array of factors than were provided in this study. Yet, this study does provide some direction for future research. First, the lack of strong methodological models place evaluators doing CR evaluations at a considerable disadvantage as they are left to their own devices to determine relevant factors that predict success on conditional release. Based on the results of this paper, it is clear that there is a need for the development of empirically based structured assessments that outline factors relevant to CR. Moreover, the development of standardized instruments would likely improve agreement among forensic evaluators as to who is an appropriate candidate for potential community release. Finally, there appears to be a lack of specialized training for evaluators who conduct CR evaluations. A primary goal should be improving, through the use of empirically based factors linked to success and failure, both the quality and methodology of CR reports and recommendations.
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