Thomas R. Litwack

The assessment of dangerousness and predictions of violence: Recent research and future prospects

Recent research on clinical and actuarial assessments of dangerousness leaves many important questions unanswered regarding the relative validity and utility of such assessments. Moreover, the focus that has existed on determining the false-positive and false-negative rates of predictions of violence may be fundamentally misplaced. Clinical evaluations of dangerousness should be viewed as assessments of risk rather than as predictions of violence; and future research should focus on understanding and evaluatinghow clinical assessments of dangerousness—regarding truly representative types of possibly dangerous patients—are (or should be) made. In the meantime, the research to date on clinical assessments of dangerousness cannot properly be taken to conflict with the Supreme Courts recent affirmations of the admissibility of such assessments in courtroom proceedings.

Some Questions for the Field of Violence Risk Assessment and Forensic Mental Health: Or, “Back To Basics” Revisited

This paper addresses two related questions: (1) How can we best evaluate and compare clinical and actuarial assessments of dangerousness? (2) Should there not be more systematic qualitative (narrative and descriptive) studies in the field of forensic mental health (including violence risk assessment)? It is argued that adequate studies of both clinical and actuarial assessments of dangerousness have yet to be done, and that more qualitative studies of clinical assessments are necessary to better elucidate and evaluate clinical assessments and to better compare them to actuarial assessments. Furthermore, it is argued, many other areas of forensic mental health are also in need of systematic descriptive (i.e., qualitative and narrative) studies.

Assessments of dangerousness: Legal, research, and clinical developments

This article explores recent groundbreaking court decisions regarding permissible preventive detentions that are based on assessments of dangerousness. It is concluded that courts are increasingly receptive to upholding such preventive actions, and that the research to date has left unresolved important questions regarding the validity of these assessments. Basic principles of risk assessment are also presented and discussed.This article explores recent groundbreaking court decisions regarding permissible preventive detentions that are based on assessments of dangerousness. It is concluded that courts are increasingly receptive to upholding such preventive actions, and that the research to date has left unresolved important questions regarding the validity of these assessments. Basic principles of risk assessment are also presented and discussed.

The Defense of Extreme Emotional Disturbance: A Qualitative Analysis of Cases in New York County.

The cases of all defendants pleading the partial, mitigating defense of extreme emotional disturbance (EED) to charges of intentional murder or attempted intentional murder in New York County over a 10-year period (1988–1997) were analyzed to determine what factors, if any, distinguished the cases that resulted in a verdict or accepted plea of manslaughter or attempted manslaughter (the “successful” cases) from those cases in which the defendant was found guilty of, or ultimately pleaded guilty to, the ultimate charge of murder or attempted murder (the “unsuccessful” cases). The major finding was that jurors, judges, and prosecutors were much more likely to accept a defense of EED when the defendants homicidal behavior was motivated significantly by an understandable fear that he or a loved one would be physically harmed by the victim than when the defendant acted out of anger without fear of physical harm. This finding among others, and New York case law regarding the EED defense, are discussed with regard to recent criticisms of the EED defense in the scholarly legal literature.

A Model for a Doctor of Psychology Program in Forensic Psychology: Curriculum and Rationale

Being a proposal for a new doctoral training program in an applied field and a curriculum which has been developed in some detail.

THE INSANITY DEFENSE, THE MENTALLY DISTURBED OFFENDER, AND SENTENCING DISCRETION

In recent years, proposals for reforming the adjudicatory aspect of our criminal justice system have increasingly stressed two suggestions: (a) that the insanity defense be abolished; and (b) that sentencing discretion on the part of judges be likewise abolished, or at least severely circumscribed. For example, in New York State, the Department of Mental Hygiene has officially adopted the position that “mental disease or defect” should be abolished as a complete defense to a criminal charge;’ and a special commission headed by Manhattan District Attorney Robert Morgenthau has advocated significantly curtailing the sentencing discretion now wielded by criminal court judges in New York. Similar proposals have accompanied bills to codify, and amend, the federal criminal code. Proposals to abolish the insanity defense and sentencing discretion are obviously related in that they both are aimed at reducing the arbitrariness and capacity for error of our criminal justice system and, conversely, at enhancing both the actual fairness and theperceived fairness of that system. Indeed, both proposals attack very real and serious problems and, taken individually, have much merit. The points I wish to argue here, however, are (1) that the insanity defense-though it may be very narrowly circumscribed and divorced from the term “insanity”-cannot be completely abolished under the Constitution of the United States; and (2) that in any event, proposals to limit-if not abolish-the insanity defense and proposals to limit sentencing discretion seek to obtain goals that, however laudable, are incompatible with one another. For one of the aims of abolishing the insanity defense is to gain greater flexibility in our capacity to deal with mentally disturbed offenders; but to the extent that limits upon sentencing discretion were rigidly mandated and enforced, much of this sought-after flexibility would be lost. I shall return to the issue of sentencing discretion and the mentally disturbed offender later in this presentation. For now, however, I would like to amplify upon my first point-that the insanity defense cannot, constitutionally, be totally abolished. This is so, I believe, for a simple reason: the Supreme Court has clearly indicated that it would be unconstitutional to subject to criminal penalties one who has violated the law without mensrea, that is, without any awareness of wrongdoing or the ability to control one’s wrongdoing. Consider the example of an individual who genuinely believes that he has heard God speak to him and that God has ordered him to kill another person. Or consider the example of someone who kills another in the delu-

COMPETENCY TO STAND TRIAL: DISCUSSION

Dr. Bahn’s finding that policemen regularly bring assaultive individuals whom they consider to be “mental cases” to hospitals rather than to jails was interesting but not altogether reassuring. Presumably, many such individuals are soon released from the hospitals only to engage again in assaultive behavior. As a citizen, I am not sure that I would not prefer that such individuals be arrested and processed through the criminal justice system, at least initially, even if they were detained-prior to trial, to release on bail, or to some other agreed upon disposition-in a department of corrections hospital rather than jail. At least, then, they would not be released simply to reduce the population of a hospital ward or because they were difficult to manage-as might well be the case now. However, if such individuals are being brought to hospitals, it should not be surprising to discover-as certain studies referred to by Dr. Bahn suggest-that the patient populations of the psychiatric wards of certain municipal hospitals have higher arrest rates, upon release, than that of the general population. Nevertheless, we have to be careful about how we interpret and present such results. For example, one of the studies cited by Dr. Bahn that found such higher arrest rates for released psychiatric patients was titled “Crime and Violence among Mental Patients.”’ But the patient pool involved was entirely that of Bellevue Hospital patients-hardly a representative sample of “mental patients” generally. Undoubtedly, the title “Crime and Violence among Mental Patients” is likely to stir more interest than the more accurate title: Crime and Violence among Psychiatric Patients Released from Bellevue Hospital. The use of the former title, however, does a great and inexcusable disservice to “mental patients” as a group. As for the papers of Drs. Exner and Weinstein, I of course agree with Dr. Exner’s observation that a particular IQ or psychiatric diagnosis does not render a defendant competent or incompetent-especially since a defendant’s competency may depend upon the particular circumstances of the case as well as on his or her state of mind. In one case that I know of, for example, a defendant charged with murder was found competent to stand trial-and properly so-even though he harbored the delusion that his victims had onlyfeigned dying. Since the defendant was willing to allow his attorney to enter a plea of not guilty by reason of insanity, and since the attorney had access to the hospital records necessary to establish that defense, the fact that the defendant was delusional about the events in the indictment would not, and did not, prevent him from receiving a fair trial upon the issue of his insanity.’ Indeed, his