Another Minority Report

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Does the PCL-R test have a place in the criminal justice system? Henry Richards thinks so:

PCL-R scores can help predict how an offender might behave in a variety of situations. They’re useful to crime scene analysts who create profiles of perpetrators. Test scores can also help predict how someone might perform on conditional release (bail, probation, parole). And scores can guide choices about the type of institutional or community supervision that would work best for a particular offender and the likelihood that the offender will complete a rehabilitation program.

The test compares offenders with the successes and failures of other offenders. Among offenders with a previous violent offense, those with high PCL-R scores present the greatest risk for further violence. But the test can also can supply relevant information specific to an individual. For example, community supervision can start off on a firm footing with discussion of an offender’s history of pathological lying, one of the items rated on the PCL-R.

Of course, all of our sources of information have costs, and none are infallible. The PCL-R is sometimes introduced, with prejudicial intention, in contexts where it has dubious relevance or moral justification — such as in death penalty considerations. But such misuses should not negate its benefits.

The success indicators for offenders on conditional release — such as rates of employment and recidivism, the presence of family support — offer the corrections system a reason for optimism, but only when you remove psychopaths from the analysis. Because psychopaths don’t respond favorably to interventions or opportunities, they perform poorly on all these outcome measures relative to other offenders. And psychopaths typically have a spoiler effect on treatment programs — demoralizing others with their lies, hidden rule-breaking and readiness to exploit vulnerabilities.

Thanks to tools like the PCL-R, instead of wasting limited resources on a few bad apples, the justice system can focus those resources on the majority of offenders — those who can profit from a second chance and are, more often than not, motivated to change.

I know that’s a longish excerpt, but I think it’s important to see the reasoning behind the use of the test. Psychopaths do not respond as well to many of the conditions of release, and so identifying them can help in creating an individualized plan for the circumstances of each offender.

However, the creator of the PCL-R test isn’t so sure it is as effective as its proponents claim. One problem is that “psychologists hired by the prosecution consistently scored higher than psychologists employed by the defense”. The argument here is that maybe the test doesn’t work to identify psychopaths in the criminal justice system environment.

So why did I title this “Another Minority Report”? There’s a normative discussion going on here that’s leaving out an important element, isn’t there? Our “scientists were so preoccupied with whether or not they could, they didn’t stop to think if they should.”

Should the criminal justice system be based on picking and choosing who it considers the biggest threats to society? Or should all criminal offenses be punished the same, regardless of the identity of the offender? Not all psychopaths commit crimes. Should society punish them all anyways? Should being a psychopath be a status offense? If we do single out psychopaths for special treatment, are there other statuses that should be singled out? 

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About JohnJ

Law student, currently studying for the Illinois bar exam. Iraq vet.

9 Responses to Another Minority Report

  1. JohnJ says:

    Well that took long enough.

  2. Guy Fox says:

    As ‘improvements’ in weapons technology increased the distance from the operator of the weapon and the target, casualty rates in conflicts increased in step. The closer you have to get to your victim in war, the fewer losses you are willing to accept/inflict before you call it off, and the further away you can be, the more punishment you’re willing to inflict/accept. The test seems to be the criminal justice equivalent of a Predator drone. The guy who devised it doesn’t actually build it, the guy who builds it doesn’t actually use it, the guy who uses it doesn’t actually decide when/how it is to be used. Chain of delegation = collective responsibility = no responsibility. The law-talkin’ guys delegate the messy work to the shrinks, but the shrinks don’t want to bear the burden of responsibility, so they outsource their judgment to a questionnaire, and it’s the magic 8-ball that makes the decisions and bears the responsibility when those decisions turn out poorly. Guns don’t kill people, people don’t kill people (without guilt), but bureaucratic apparatus can do so without blinking.

    • boeotarch says:

      As much as I hate being “that guy:” the military analogy doesn’t really work. Ancient and medieval wars were short because logistics was primitive, and battles were shorter and less deadly because most participants were untrained and couldn’t be kept on the field. Besides populations being lower, governments having less resources, political aims being more limited, conscription being generally unworkable… Besides, most infantry battle still happens at fairly short ranges.

  3. The problem isn’t the prediction of violence, which is actually quite good. The problem is getting the timing right. If you knew 100% certainty that a guy was going to murder his wife, would you lock him up preventatively? Of course– and psychiatry even gives you a way to do it.

    But what if you knew 100% he was going to murder her… in 25 years. Not even within 25 years, let’s just say we know the exact date in 2036. Do you lock him up? Psychiatry only gives you 3-30 days advance on this stuff.

    And, like any movie about the future, you might know that this guy, right here in front of you, Hitler, is 100% for sure going to kill lots of people; but you don’t know if that lump of flesh, 25 years from now, will still be a murderer type. The PCL and other measures are snapshots extrapolated by epidemiology, but they aren’t sensitive to individual variability. They only are accurate on a population.

    The other hitch that no one ever talks about is the relative benefit of incarceration. If he’s going to molest kids, we incarcerate him. But if he’s going to commit genocide… we don’t? Hmm. But let’s say we did. What about rape? Lock them up for life, in advance?

    If you find me a guy who enjoys raping women, has done it before, and never been punished, chances are he’ll do it again. But he may also get hit by a bus in a year, making your prophylactic incarceration immoral. Or, he may become head of the IMF, and that’s a value to society that is hard to weigh, shouldn’t be weighted, but is going to inevitably be weighted if we start doing this.

    • cat says:

      OK, but if we know the psychopath will murder his wife in 25 years, do we not have a quarter of a century in which intervene and treat him in some way to prevent the explosion of violence?

      Or are psychopaths untreatable – I’m not asking whether they are incurable, but whether something can be done (other than locking people up prophylactically) with the knowledge of their psychopathy to avert violent crime.

    • JohnJ says:

      Of course, the problem is that no one can predict the future with 100% accuracy, not even psychiatrists.

    • Guy Fox says:

      Guilt doesn’t exist ex ante. The potential criminal bears no responsibility for society’s foreboding and dread.

  4. Pastabagel says:

    If you knew 100% certainty that a guy was going to murder his wife, would you lock him up preventatively?

    No, because the system is set up to assume that you can’t know this. So even if you did know it, the system doesn’t change.

    But let me change the hypothetical to one that is far more realistic: if you knew to a high degree of certainty that a black kid of a single mother growing up in a poor urban neighborhood would at some point in his life end up in trouble with the law, would we invest the time and money to alter the initial conditions to prevent that from happening?

    • JohnJ says:

      In point of fact, a lot of people do invest time and money to improve the conditions of the poor. For the most part, the question people ask is “how much can I afford to give?” And, of course, many people think that the best way to improve the conditions of the poor is simply to establish the rule of law so that the poor can begin to build their own wealth and start taking care of themselves. The old “hand up, not a handout” line. I think most would agree that helping people to be independent is better than encouraging dependency, although sometimes it’s difficult to find that fine line.

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