Criminal Justice, Risk and the Revolt against Uncertainty

John Pratt, Jordan Anderson, John Pratt, Jordan Anderson

• Publisher: Palgrave Macmillan
• Year: 2020
• Print ISBN:
  9783030379476
• eBook ISBN:
  9783030379483
• Topic: Social Sciences
• Subtopic: Civil Rights in Law
• Index: Social Sciences

This book examines the impact and implications of the relationship between risk and criminal justice in advanced liberal democracies, in the context of the 'revolt against uncertainty' which has underpinned the rise of populist politics across these societies in recent years. It asks what impact the demands for more certainty and security, and the insistence that national identity be reasserted, will have on criminal law and penal policy. Drawing upon contributions made at a symposium held at Victoria University of Wellington, New Zealand in November 2018, this edited collection also discusses the way in which risk has come to inform sentencing practices, broader criminal justice processes and the critical issues associated with this. It also examines the growth and making of new 'risky populations' and the harnessing of risk-prevention logics, techniques and mechanisms which have inflated the influence of risk on criminal justice. 

Part IThe Dynamics of Risk Assessment and Preventive Justice

© The Author(s) 2020

J. Pratt, J. Anderson (eds.)Criminal Justice, Risk and the Revolt against UncertaintyPalgrave Studies in Risk, Crime and Societyhttps://doi.org/10.1007/978-3-030-37948-3_2

Begin Abstract

Risk Assessment, Predictive Algorithms and Preventive Justice

Bernadette McSherry¹

(1)

Melbourne Law School, University of Melbourne, Melbourne, VIC, Australia

Bernadette McSherry

Email: [email protected]

End Abstract

Introduction

In 1753, Sir William Blackstone used the term “preventive justice” to refer to laws that aimed to prevent future crime by enabling the state to intervene where there exists a “probable suspicion, that some crime is intended or likely to happen” (Blackstone, Book IV, 2001 edition: p. 251). Andrew Ashworth and Lucia Zedner (2014: p. 11) make the point that “governmental concern about the prevention of harm is certainly not a new phenomenon; on the contrary, prevention motivated the very founding of the modern criminal justice system”.

However, while laws of preventive justice have long existed in English-speaking jurisdictions, their use and indeed, lack of use, have reflected dominant views about the role of the state in preventively detaining its citizens. John Stuart Mill (1859: p. 165) pointed out that “the preventive function of government … is far more liable to be abused to the prejudice of liberty, than the punitory [sic] function”.

During a large part of the twentieth century, proposed laws of preventive justice met with concerted opposition (Bottoms 2009) and existing laws, such as those dealing with “sexually violent predators”, fell into disuse (Petrila 2011). Judges have also displayed “their suspicion and distrust” of such laws (Pratt 1997: p. 190), particularly post-sentence indefinite detention, because such laws offend against the principle of proportionality in sentencing (McSherry and Keyzer 2009: p. 42) and the right to liberty (e.g. Fardon v Attorney-General (Qld) (2004) 223 CLR 575: p. 623 per Kirby J).

During the twentieth century, up until around the 1980s, indefinite sentence laws were rarely used (McSherry and Keyzer 2009: p. 4), but sometimes, a single offender, or single crime subject to extensive media coverage, prompted calls for preventive justice schemes to be reinvigorated (McSherry and Keyzer 2009, chap. 1). The next section provides an overview of modern laws of preventive justice and how risk assessment techniques have driven their use over the past four decades.

Laws of Preventive Justice and the Involvement of Mental Health Practitioners

The concept of preventive justice is now used to justify schemes across many English-speaking jurisdictions which are weighted in favor of the detention of certain individuals through a variety of means, from control orders to post-sentence detention and supervision.

One of the central justifications for preventive detention (and supervision) schemes is that removing those considered to be at high risk of serious offending from the community, or at the very least intensively monitoring them, is the best way to stop them from harming others. These schemes may be viewed as being on a continuum from pre-crime to post-sentence detention. They encompass not only detention of suspected terrorists without charge and accused persons held on remand, but also indefinite detention of high-risk recidivist offenders and post-sentence detention of sex offenders (McSherry 2014: pp. 77–88).

During the 1980s, mental health practitioners began to be called upon to assess the risk of future harmful behavior. Prior to that time, during the mid-twentieth century, there was skepticism about mental health practitioners’ ability to identify just who was dangerous. The case of Johnnie K Baxstrom exemplifies this concern. Baxstrom was convicted of up to three years’ imprisonment for assault, but during his incarceration, he was determined to be “insane” and transferred to a correctional hospital, which housed convicted offenders diagnosed with mental illness. Baxstrom was kept there after his sentence expired and he subsequently brought a writ of habeas corpus to be transferred to the civil system with a view to release. The United States Supreme Court held in Baxstrom v Herold (383 US 107 (1966)) that Baxstrom had been denied equal protection of the law by not being allowed the right of a jury trial as permitted under New York’s then civil mental health law and by being detained in a Department of Corrections facility without proper review as to whether he was “dangerously mentally ill” at the close of his prison term. A subsequent jury trial found that Baxstrom did not satisfy the criteria for involuntary hospitalization under the civil law and he was released. Unfortunately, he died shortly after release due to epileptic seizures.

Following the decision in Baxstrom’s case, the New York State Department of Mental Hygiene transferred 967 individuals from two correctional hospitals to 18 civil facilities with few adverse consequences. Henry Steadman (1973: p. 190) concluded that these individuals “caused much less trouble than most people expected”. Steadman argued (2000: p. 266) that clinical assessments of dangerousness leading to more individuals than necessary being incarcerated in correctional hospitals involved “issues of legal judgment and definition, as well as issues of social policy”.

The concerns about assessing dangerousness led to a search for other, more certain, ways of assessing future harm. The next section examines the revolt against uncertainty that clinical prediction methods then represented in identifying dangerous people. The chapter then turns to the role of mental health practitioners in assessing risk for current regimes of preventive detention and supervision. It outlines the rise of actuarial risk assessment tools for both management and predictive purposes. It argues that while there are serious ethical, legal and human rights concerns with the movement toward algorithms alone to predict the risk of future harmful behavior, risk assessment tools have become a part of preventive justice schemes because of an increasing political emphasis on public protection rather than on safeguarding the rights of individuals.

Identifying “Dangerous” People: From (Potential) Offender Characteristics to Actuarial Justice

The quest to identify just who will commit crimes has provided fodder for psychiatrists, psychologists and criminologists for centuries. The French psychiatrist, Félix Voisin, posited that phrenology could assist in diagnosing criminal tendencies. An offender could be diagnosed as “insane”, “an idiot” or “a brute”, and once labeled, an appropriate course of action could be taken (Staum 2003: p. 76). Similarly, the Italian criminologist and physician, Cesare Lombroso, in his 1876 work L’Uomo Delinquente (Criminal Man), attempted to classify individuals according to their physical “defects” (p. 152). For him, offenders were throwbacks to primitive “savages” (Staum 2003: p. 166).

As outlined above, during the twentieth century, there was skepticism expressed as to whether clinical assessments of dangerousness were little more than guesswork. John Monahan (1981), for example, concluded that predictions of future violence were only accurate in about one third of cases.

Using data to classify potential offenders and recidivists can be viewed as an extension of this quest for certainty. “Actuarial justice” is the term used by Malcolm Feeley and Jonathan Simon (1994: p. 173) to explain a growing reliance by governments on “techniques for identifying, classifying and managing groups assorted by levels of dangerousness”. Their thesis is that the prevalence of concerns about risk and the impact of actuarialism on the construction and delivery of criminal justice amount to a “new penality”. This is seen as a key shift not just in terms of crime management, but also in terms of how the individual is viewed within the system.

According to Feeley and Simon (1992: p. 455, 1994: p. 197), there has been a shift away from a focus on individual offenders and the prospect of rehabilitating them. Now, the focus is on large groups of offenders, who are sought to be managed by reference to actuarial inferences from statistical data sets. As a result, risk assessment is now based on classifying the individual within a large group, the profile of which is derived from large scale data sets rather than direct clinical knowledge of the individual.

The use of data sets parallels the rise of what has been termed the “precautionary principle” in public policy. This principle stems from environmental science and posits that, where the risk of harm is unpredictable and uncertain, and where the damage wrought will be irreversible, any lack of scientific certainty in relation to the nature of the harm or its consequences should not prevent action being taken (Ericson 2007). Thus, in 2007, the then Australian Prime Minister, John Howard, was quoted as saying “it’s better safe than sorry”, in justifying preventive detention measures for suspected terrorists (Smiles and Marriner 2007). Zedner (2009: p. 84) points out that although the precautionary principle might have originally been permitted on “grave and irreversible harms”, it has broadened “to provide a warrant for decision making in situations of uncertainty even where the anticipated harms are of a lesser gravity”. Therefore, Zedner concludes (2009: p. 85), incarceration becomes “increasingly central to the security complex” and it becomes the norm for those who pose potential threats to public safety.

Having statistical data sets available to classify who is likely to commit crimes in the future gives an air of legitimacy to an emphasis on precaution outweighing individual rights. While there has been debate about the extent to which actuarial justice has in fact displaced traditional penal practice (Pratt 2000: p. 50; Garland 2003: pp. 140–141), when it comes to preventive detention regimes, the reliance on actuarial methods of risk assessment is clearly manifest.

In Australia and New Zealand, for example, risk assessment tools are widely used for risk management purposes in correctional settings. They are also used for predictive purposes in relation to post-sentence detention and supervision schemes. It is in relation to such schemes that the use of risk assessment tools is the most problematic.

Forensic psychologists and psychiatrists are often called upon to provide predictive risk assessment for the purposes of preventive detention schemes. Forensic psychologists in particular have developed a role in providing evidence of risk based on actuarial tools that combine previously empirically identified risk factors into a numerical risk score using an algorithmic approach.

The next section outlines how evidence of risk has developed through the court system and the section following this summarizes the criticisms that have been made of risk assessment tools.

The Rise of Actuarial Risk Assessment Tools and Structured Professional Judgment

During the 1970s and early 1980s, there was a focus on making clinical assessments of “dangerousness” which did not merely provide a medical diagnosis, but involved “issues of legal judgme...

Table of contents

• Cover
• Front Matter
• Introduction
• Part I. The Dynamics of Risk Assessment and Preventive Justice
• Part II. Risk and Penal Policy
• Part III. New Dimensions of Risk
• Part IV. Living with Risk
• Back Matter