The efficacy of forensic psychological risk assessement reports issued by the penitentiary

The efficacy of forensic psychological risk assessment reports issued by the penitentiary surveillance courts of Madrid (Spain)

María del Rocío Gómez Hermoso Forensic Psychologist of Penitentiary Surveillance Courts of Madrid. Forensic Psychologist of the expert group of the International Criminal Court.

Law degree.

INTRODUCTION Currently, the penitentiary surveillance courts enshrined in Spanish Criminal Law have specific statutory powers to perform three undertakings: the enforcement of custodial sentences, the implementation of post-release security measures, and the jurisdictional supervision of the prison administration regarding the fundamental and specific rights of detainees to conditional release.

Thus, the penitentiary surveillance system focuses both on enforcing and supervising prison sentencing, and safeguarding the rights of detainees.

The procedure of penitentiary surveillance courts for the enforcement of sentencing entails the granting of conditional release orders to gradually facilitate the prisoner’s transition to early conditional release, first on temporary release orders before progressing to a grade 3 open prison regime, and finally by being eligible for parole. In this last stage the prisoner can serve the remainder of the sentence in the community under the parole conditions imposed by the judge.

Though the powers of the penitentiary surveillance courts are uniform throughout Spain, the assignation of experts advising judges vary considerably. Virtually every penitentiary surveillance court has a forensic pathologist, but only the penitentiary surveillance courts of Madrid, León, and Oviedo have forensic psychologists.

The statutory powers of the penitentiary surveillance courts come into force once the convicted offender has been sentenced to a term of imprisonment. Once classified, inmates begin serving their sentences in a prison regime whereby penitentiary judges supervise their prison sentences. Correctional institutions issue reports by psychologists, legal experts, educators, social workers, and so forth regarding the treatment of inmates and their progress as well as proposals for granting or refusing the gradual transition towards the open conditions of parole. In penitentiary surveillance courts with no access to a forensic psychologist, prison reports are often the sole or primary data source for judgment-making.

The judges of the penitentiary surveillance courts with state-registered forensic psychologists primarily request risk assessment reports of violent offenders. Though magistrates and judges have access to prison reports on the progress of prisoners, they often commission forensic reports to ensure standards of forensic objectivity and professional competence given that the professionals directly involved in the treatment management or therapy of a detainee may bias an assessment. Hence, prison reports on the progress and treatment of inmates are both necessary and convenient, but they are not considered to be forensic reports.

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The forensic psychologists of the penitentiary surveillance courts of Madrid have submitted forensic psychological reports for the magistrates and judges of the penitentiary surveillance courts since 1995. During this period, these court ordered reports have responded to the forensic enquiries and trepidations of judges, and have predominantly focused on assessing violent offenders The efficacy of forensic psychological risk assessment reports issued by the penitentiary surveillance courts of Madrid (Spain)

(convicted primarily for sexual offences, child sexual abuse, murder, homicide, and battery), the risk of recidivism, and the danger conditional release would pose to the general public (first on temporary release orders before progressing to a grade 3 open prison regime, and finally parole).

Thus, risk assessment must be substantiated by methodologically rigorous, in-depth, forensic psychological assessment since the conditional release of criminals convicted of serious violent offences, and the risk of reoffending may pose a grave threat to potential victims, cause public outrage and alarm, and undermine the prevailing judicial and penitentiary system.

Risk assessment reports are a prerequisite for all types of conditional release i.e., temporary release orders, grade 3 open prison regime, and parole.

Under Spanish Criminal Law, the concept of dangerousness underpins all forensic psychological assessment. Bearing in mind that aim of psychologists is to explore human behaviour, the prognosis of this behaviour is a basic professional endeavour. For a period of 23 years, the reports of the forensic psychologists of the penitentiary surveillance courts in Madrid have assisted judicial decision-making concerning the conditional release of convicted offenders serving prison terms for serious offences.

Risk assessment is legally valid and admissible since the concept of criminal dangerousness is contemplated in Spanish Criminal Law as equivalent to the prediction or reasonable prognosis that a prisoner will reoffend. This definition inscribed in art. 95.1.2º of the Spanish Penal Code (SPC) states that from the nature of the criminal offence and the detainee’s personal circumstances a prognosis may be made as to future behaviour and the risk of reoffending.

Furthermore, the SPC employs the term «favourable prognosis of social reintegration», in opposition to «criminal danger of the delinquent», which accords with the definition stipulated in art. 95.1.2ª of the SPC i.e., the prognosis of future behaviour indicating a prisoner is unlikely to reoffend. This expression is explicitly contemplated in arts. 36.2-III, 78.3, 90.1.c, 90.1-III, and 106.3-III of the SPC, and implicitly mentioned in art. 88. 1-II of the SPC. Besides risk assessment reports, Spanish Law (Ley Orgánica 5/2010,art. 192.1) establishes that prisoners convicted of one or more offences stipulated in the above law are subject to conditional parole after completing their terms of imprisonment. The duration of the parole license is from 5 to 10 years for serious offences, and from 1 to 5 years for one or more for less serious offences. In the latter case, when only one offence has been committed by one primary delinquent, it is entirely the Court’s discretion whether to refuse or grant probation on the mitigating grounds a detainee poses no serious threat to the community.

The first offences to be legally assessed are convictions for offences described in Part VIII of the Spanish Penal Code, that is, crimes against sexual liberty and indemnity.

Thus, forensic psychologists are required to provide risk assessment reports for detainees convicted of sexual offences who, prior to completing their sentences and in accordance with this law, the judge will impose the conditions, duration, and content of parole.

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Recent Spanish legislation (Ley Orgånica 5/2010) asserts that [...] In relation to prison security measures or the conditions of parole following imprisonment, the Penitentiary Surveillance Judge must draft at least once a year a proposal for the extension, cessation, substitution or suspension of each prison’s sentence. The proposal of the Penitentiary Surveillance Judge must appraise the reports of health professional and other experts whose advice serve to enhance security measures, the reports from the competent Public Administrations and, under certain circumstance, the result of other measures designed to enforce this order.

Several conclusions may be drawn from this precept.

First, besides being convicted for crimes against sexual liberty and indemnity; the accused must also be sentenced to a term of imprisonment. That is, if an accused is found to be unfit to plead on the grounds of diminished responsibility under the provisions outlined in arts. 101 to 105 of the SPC, security measures will be applied, that shall never run concurrently with these specific security measures. The same provisions are applicable when imposing fines i.e., a prison sentence is mandatory.

Second, imprisonment is mandatory in cases of conviction for serious offence, or several less serious offences.

Third, incarceration is discretional in cases of conviction for one less serious offences, and if mitigated by the offender posing a minor threat to the community.

Fourth, the statutory maximum period for supervised parole orders is 5 to 10 years for serious offences, and 1 to 5 years for less serious offences.

The legal implications are patent i.e., the currently closed catalogue of crimes typified in the Spanish Criminal Code may be extended, and it is only a matter of time before this model is applied to other criminal categories, particularly to reoffenders of violence against women, domestic violence, murder, homicide, and so forth.

Thus, this law is clearly intended to oversee the parole of convicts serving prison sentences for serious offences e.g., sexual assault or charges of terrorism (as stipulated in this law), but it would be advisable if it were extended to other serious violent crimes.

Extending these post-release measures to other offences is highly controversial, and underscores the importance of forensic psychological risk assessment reports, and the need for evidence-based research to determine the efficacy of these reports.

The predicament and rationale underlying the judicial penitentiary system

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The judicial penitentiary system and prison management must comply with two statutory principles which are occasionally at odds i.e., safeguarding victims and the general public, and the rehabilitating nature of the prison sentence.

The efficacy of forensic psychological risk assessment reports issued by the penitentiary surveillance courts of Madrid (Spain)

Forensic psychologists of penitentiary surveillance courts are fully aware of the impact of their risk assessment reports on prisoner eligibility for parole, and the wider-ranging consequences of granting or refusing conditional release. Given that the public is alarmed when criminals convicted for serious offences are allowed to walk the streets freely and may reoffend while on conditional leave, reports recommending parole come under intense scrutiny and rigorous precautions must be enforced. Bearing in mind the grave personal and public consequences of these offences, favourable reports should not be issued without ensuring that all of the conditions under evaluation are favourable, since public safety is an overriding priority, and any possible risk should be minimized to prevent new victims.

Though the aim is to ensure public safety without infringing the rights of prisoners, conditional release may be refused if prisoners fail to meet these rigorous criteria, which particularly vital when dealing with prisoners convicted for serious violent crimes, but are eligible for conditional release after a few months of imprisonment.

Nonetheless, as previously stated in the introduction, penitentiary surveillance courts in Spain work in two quite different scenarios i.e., in most penitentiary surveillance courts judgements rests solely on the judge’s own personal criterion and on prison reports whereas in Madrid, León, and Oviedo judgements primarily rest on the risk assessment of forensic psychologists.

The requirement of a forensic psychologist is vital for both technical and deontological reasons given that the judgement of a psychologist involved in the therapeutic management of a detainee may bias an evaluation; thus, treatment and evaluation should be performed by two separate and independent professionals.

Moreover, this issue raises further questions such as: To what extent are the risk assessment reports of the forensic psychologists of the penitentiary surveillance courts efficacious for detecting recidivism, particularly in the case of serious violent offenders? What impact do these reports have on judicial judgment-making and in reducing recidivism among serious violent offenders? Are forensic psychological reports more efficacious at detecting the risk of recidivism than prison reports? In short: Have recidivism rates for these offences fallen? In other words, can forensic psychological reports accurately pinpoint which prisoner should be granted parole, and which shouldn’t? These are the issues this study seeks to explore.

OBJECTIVES OF THE STUDY

The objectives of this study were two fold: to assess the recidivism rates among serious violent offenders; and to assess the efficacy of the recidivism risk assessment reports of the forensic psychologists of the penitentiary surveillance courts in Madrid in comparison to prison reports.

PROCEDURE

A total of 150 forensic psychological reports of serious violent offenders submitted to penitenColegio Oficial de Psicólogos de Madrid

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tiary surveillance courts of Madrid (Spain) from 2003 to 2006 were assessed. The crime typology was as follows: – 37 Sexual offences.

– 36 Domestic Violence.

– 31 Homicide.

– 23 Murder.

– 16 Child sex abuse.

– 7 Illegal detention.

Recidivism rates were in assessed for each crime typology from 2003 to July 2012. A 5 to 6year follow-up period was considered to be satisfactory for the reliable assessment of recidivism using the Penitentiary Information System (PIS) programme.

Moreover, data from the following reports were gathered: – Favourable or unfavourable prison reports.

– The favourable or unfavourable reports of the forensic psychologists of the penitentiary surveillance courts of Madrid.

ANALYSIS

1st objective: The assessment of recidivism rates for serious violent crimes in Madrid

Of a total of 150 cases 18 reoffended i.e., 12% of the total. This figure reveals a low recidivism rate for serious violent crime. The data suggests that public outcry in response to every new direct victim of a reoffender is somewhat unwarranted since 88% of prisoners did not reoffend.

TABLE 1 SHOWS THE RECIDIVISM RATES FOR THE CRIME TYPOLOGIES

Typology

Sexual assault (n=37)

Child sexual abuse (n=16) Murder (n=23)

Homicide (n=31)

Domestic violence (n=36)

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Illegal detention (n=7)

Recidivism (Typology)

Robbery, Theft, and Domestic violence (3/37) Child sexual abuse (2/16) Homicide (1/23)

4 Armed Robbery (4/31)

2 *Drug trafficking, 1 Fraud, 5 Domestic violence (8/36) (0/7)

Recidivism (Percentage) (8.1%) (12.5%) (4.3%) (12.9%) (22.2%) (0.0%)

*Drug trafficking PHO

The efficacy of forensic psychological risk assessment reports issued by the penitentiary surveillance courts of Madrid (Spain)

The data revealed that domestic violence was the crime typology with the highest recidivism rates (22.2%), followed by homicide and sexual abuse with considerably lower levels (slightly more than 12%).

Domestic violence exhibited the highest recidivism rates (13.9%) in the same crime typology.

Of 31 homicides, the4 reoffenders were convicted for armed robbery with knives or sharp lethal weapons that may produce grievous bodily harm or even death. It is worth noting that only a small number of sexual aggressors reoffended in different crime typologies (under 10%), whereas child abusers reoffend in the same crime (12.5%), indicating the latter are more dangerous, particularly if one considers the nature of their crime.

As for the recidivism follow-up period, the closer reoffending occurred to the submission of the report, the less efficacious it was. Thus, 3 prisoners with favourable forensic psychological reports from the penitentiary surveillance courts, reoffended during the fourth and fifth year of follow-up. As for the 11reoffenders with a favourable prison report, 3 coincided with the prison reports, 1 reoffended during the first temporary conditional release order (a release order which prisoners are eligible after serving three months of their prison sentence), a further case involved reoffending on 3 occasions (in the 4th year of follow-up), in 2 cases reoffending occurred after1 year, in 1 case after 2 years, and in 3 cases after 3-year follow-up.

2nd objective. To assess the efficacy of the recidivism risk assessment reports of the forensic psychologists of the penitentiary surveillance courts in Madrid in comparison to prison reports

Table 2 shows the data of Table 1 and the estimated recidivism rates that would have been obtained if the criterion of the psychological forensic reports had been adopted. This figure was calculated by subtracting the reoffenders with unfavourable psychological report. The results show a considerable fall in recidivism rates in all crime typologies. Thus, sexual assault witha8.1 % recidivism rate would fall to2.7%. The most notable reduction was observed in domestic violence, with recidivism rates falling from 22.2 % to 5.6%.

TABLE 2. RECIDIVISM RATES FOR FAVORABLE PSYCHOLOGICAL REPORTS AND CRIME TYPOLOGY

Typology

Recidivism (Typology)

Recidivism (%)

SexualAssault (n=37)

Armed robbery, Theft, and Domestic violence (3/37)

(8.1%)

Murder (n=23)

Homicide (1/23)

Child sexual abuse (n=16)

Child sexual abuse (2/16)

Recidivism (withfavourable psychological report) 1/37 (2.7%)

(12.5%)

0

(4.3%)

0

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Typology

Recidivism (Typology)

Recidivism (%)

Homicide (n=31)

4 Armed Robbery (4/31)

(12.9%) (22.2%)

2/36 (5.6%)

Illegal detention (n=7)

(0/7)

(0.0%)

0

Domestic violence 2 *Drug trafficking, 1 Fraud, 5 Domestic (n=36) violence (8/36)

Recidivism (withfavourable psychological report) 0

*Drug trafficking PHO

The forensic psychological report, like any other diagnostic test, is a signal detection process designed to assess dangerousness, particularly in terms of the risk of recidivism. In line with the terminology of Signal Detection Theory, four outcomes are possible – The report detected an assessment of the danger, thus it was unfavourable, and the parolee reoffended: hit or true positive (Hit type I).

– The report detected an assessment of no danger, thus it was favourable, and the parolee did not reoffend: correct rejection or true negative (Hit type II).

– The report detected an assessment of danger, thus it was unfavourable, but the parolee did not reoffend: false alarm or false positive.

– The report detected an assessment of no danger, thus it was favourable, but the parolee reoffended: miss or false negative.

The percentage of false alarms, and misses in any particular diagnostic test varies according to the detection criterion that is established. The more rigorous the detection criterion, the fewer the misses, but the greater the number of false alarms. In theory, if all of the reports were unfavourable, the number of misses would be 0, but false alarms would be 100%. Thus, these figures must be offset by minimizing the number of misses for the reasons stated above.

CHART 1. RISK ASSESSMENT OF THE FORENSIC PSYCHOLOGICAL REPORTS IN PENITENTIARY SURVEILLANCE COURTS

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REOFFENCE

NO REOFFENCE

TOTAL

ASSESSMENT OF DANGER UNFAVOURABLE REPORT

HIT TYPE I: 15

FALSE ALARM: 77

MISS: 3

HIT TYPE II: 55

5

TOTAL

18

132

150

ASSESSMENT OF NO DANGER FAVORABLE REPORT

The efficacy of forensic psychological risk assessment reports issued by the penitentiary surveillance courts of Madrid (Spain)

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In accordance with the traditional representation of Signal Detection Theory, two Tables are shown: one with the results for the risk assessment of forensic psychological reports of the penitentiary surveillance courts, and the other the risk assessment of prison reports.

CHART 2. RISK ASSESSMENT OF PRISON REPORTS REOFFENCE

NO REOFFENCE

TOTAL

ASSESSMENT OF DANGER UNFAVOURABLE REPORT

HIT TYPE I: 7

FALSE ALARM: 51

MISS: 11

HIT TYPE II: 81

92

TOTAL

18

132

150

ASSESSMENT OF NO DANGER FAVORABLE REPORT

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As forensic psychological reports are considered to be diagnostic tests on the danger of reoffending, the diagnostic efficacy of these reports can be assessed in terms of sensitivity and specificity indexes.

The sensitivity of the reports (or the percentage of true positives) refers to the probability of correctly classifying a prisoner as dangerous (likely to reoffend). Thus, sensitivity refers to the ability of the report to detect the degree of danger. Specificity (or the percentage of true negatives) is complementary to the criterion of sensitivity. It implies that a report will correctly classify a prisoner as not dangerous i.e., the probability that a prisoner classified as not dangerous will obtain a favourable report. Thus, in terms of risk assessment, specificity may be defined as the ability to detect those prisoners who are not dangerous. Hence, both sensitivity and specificity indexes are complementary. In general, the more rigorous the criteria for issuing favourable reports, the higher the sensitivity and the lower the specificity; and inversely the less rigorous the criteria for issuing favourable reports, the higher the specificity and the lower the sensitivity. This underscores the need for integrating both sensitivity and specificity. However, in relation to prisoners convicted for serious violent offences greater priority should be given to sensitivity over specificity to minimize misses.

SENSITIVITY OF FORENSIC REPORTS FROM PENITENTIARY SURVEILLANCE COURTS

Of a total of 150 case reports assessed in this study, 18 were reoffenders of which 15 had received unfavourable reports from the forensic psychologist of the penitentiary surveillance courts refusing conditional release, and the remaining 3 were issued favourable reports. Of these 3 cases, one parolee, who had initially been convicted for sexual assault, reoffended by committing an armed robbery; and of the two parolees who had initially been convicted for domestic violence, one reoffended in a drug trafficking offence and the other was convicted of fraud. None of the reoffenders physically harmed a victim, and only the armed robber had actually threatened a victim without actually causing physical injury.

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The data revealed that sensitivity was 83% for the forensic psychological risk assessment reports from the penitentiary surveillance courts i.e., the forensic reports detected 83% of recidivism.

In other words, in 15 of the 18 reoffenders the reports detected a high risk of recidivism. Moreover, of the 3reoffenderswithfavourable reports, only 1 case involved a violent crime (armed robbery), and the other 2 were for non-violent crimes (fraud, and drug trafficking). Thus, if recidivism is classified according to serious or non-serious offences, the sensitivity of the forensic psychological risk assessment reports of the penitentiary surveillance courts rises to 94% for recidivism in serious offences (17 out of 18 cases).

As for the sensitivity indexes of prison reports, 92 reports were favourable, and 58 unfavourable. Of the 18 reoffenders, 11 had received a favourable report, and 7 unfavourable report. Thus, the sensitivity index for prison reports was 39% i.e., 62% of dangerous reoffenders were omitted.

Of the 11 reoffenders with favourable reports, 7 committed serious violent offences such as domestic violence or armed robbery; thus, the sensitivity index for serious offences was 61%.

SPECIFICITY

In relation to specificity, this index determined the degree to which psychological reports accurately detected non-reoffenders. In general, the higher the sensitivity, the lower the specificity and vice versa.

The specificity for the risk assessment reports was 41.7% for the forensic reports of the penitentiary surveillance courts, and 61% for prison reports. Nevertheless, we should take into account that the procedure employed in this study may have overestimated specificity given that we are dealing with parolees who did not reoffend on parole, but some of them might have reoffended had they received a favourable report when they applied for a conditional release order.

SENSITIVITY AND SPECIFICITY INDOMESTIC VIOLENCE

Due to the relatively high rate of recidivism among cases of Domestic violence (22.2%, see Table 1), the same statistical analysis was performed for the 36 cases of Domestic violence.

10 The efficacy of forensic psychological risk assessment reports issued by the penitentiary surveillance courts of Madrid (Spain)

CHART 3. FORENSIC PSYCHOLOGICAL RISK ASSESSMENT REPORTS OF PENITENTIARY SURVEILLANCE COURTS IN CASES OF DOMESTIC VIOLENCE REOFFENCE

NO REOFFENCE

TOTAL

ASSESSMENT OF DANGER UNFAVOURABLE REPORT

HIT TYPE I: 6

FALSE ALARM: 17

MISS: 2

HIT TYPE II: 11

13

TOTAL

8

28

36

REOFFENCE

NO REOFFENCE

TOTAL

ASSESSMENT OF NO DANGER FAVORABLE REPORT

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CHART 4. FORENSIC PSYCHOLOGICAL RISK ASSESSMENT OF PRISON REPORTS IN CASES OF DOMESTIC VIOLENCE ASSESSMENT OF DANGER UNFAVOURABLE REPORT

HIT TYPE I: 1

FALSE ALARM: 18

MISS: 7

HIT TYPE II: 10

17

TOTAL

8

28

36

ASSESSMENT OF NO DANGER FAVORABLE REPORT

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The data show that the sensitivity for the risk assessment of recidivism in domestic violence was 75% for the forensic psychological reports of the penitentiary surveillance courts, that is, 75% of recidivism was detected. In other words, 6 of the 8 reoffenders received unfavourable reports indicating a high risk of reoffending, and of the 2 cases with favourable reports, one reoffender was convicted for fraud and the other for drug trafficking. Therefore, there was no recidivism in serious violent crime, and domestic violence in particular. However, when recidivism was classified as serious or non-serious offences, the sensitivity of the forensic psychological reports of the penitentiary courts for detecting recidivism in domestic violence was 100% i.e., general specificity would fall to 39%, and specific specificity for serious offences to 46%.

In contrast, the general sensitivity of prison reports for detecting domestic violence was 12.5% (37.5% for serious offences), but alarmingly with very moderate specificity levels (35.7% and 42.8%, respectively).

CONCLUSIONS

First, the level of recidivism was low i.e., 88% of those convicted of serious offences did not reoffend within the first 6-month follow-up period. This figure is striking if one considers it refers to serious violent crime, and would suggest rehabilitation and treatment are effective in modifying criminal behaviour in addition to the deterring and punitive nature of incarceration.

Second, initial data analysis revealed the efficacy of forensic psychological reports in the risk Colegio Oficial de Psic贸logos de Madrid

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assessment of offenders convicted of serious and extremely serious violent offences. The lower sensitivity for prison reports may be explained in terms of the conflicting roles between custodial agent/treatment provider and researcher/evaluator that may bias objectivity. The findings suggest that forensic psychological reports may contribute to a 44% reduction in recidivism.

Third, general specificity for serious offences was lower for forensic psychological reports due to the strict criterion applied for these types of offences owing to the grave consequences of recidivism.

Fourth, in relation to sensitivity, forensic psychological risk assessment reports exhibited greater discriminative sensitivity than prison reports, which highlights that forensic psychological reports should be issued by professional psychologists with no relationship with prisoners to avoid any bias in objectivity.

Fifth, the sensitivity of forensic psychological reports for the detection of recidivism in domestic violence was 100%; that is, all of the domestic violence reoffenders were detected as dangerous in the risk assessment.

Sixth, the specificity of forensic psychological reports in domestic violence offences was slightly lower than for serious crime in general, which implies an even stricter criterion should be applied for issuing a favourable report for this type of criminal offence. Surprisingly, both sensitivity and specificity were low in prison reports as well as being lower than in forensic reports.

12 The efficacy of forensic psychological risk assessment reports issued by the penitentiary surveillance courts of Madrid (Spain)

12 Informe sobre la eficacia de las predicciones sobre peligrosidad de los informes psicol贸gicos forenses emitidos en los juzgados de vigilancia penitenciaria de madrid