The influence of psychiatric pre-sentence reports

lniernatlonal

Journalof

Law

and

Psychtatry,

Printed in the U.S.A. All rtghts reserved

Vol. 4, pp.69-106.1961

0160.2527/81/010069-16$02.00/O Copyright@ 1961 PergamonPress Ltd

The Influence of Psychiatric Pre-Sentence Reports I. G. Campbell*

The 1970s was a decade of great significance for the treatment of persons in the criminal justice systems in those countries with a common law tradition. The often isolated and iconoclastic criticism of the rehabilitative ideal in sentencing during the previous twenty years gained influential support as the implementation of the ideal was examined in the prison milieu and in prison release procedures. 1The effect, in the late part of the decade, has been a serious contemplation of the abolition of parole.* The inevitable consequence of the critique of rehabilitation has been several equally influential re-examinations of the aims of, or philosophical justifications for, punishment; the purpose clearly in mind was examination of the rationale of imprisonment as a sentencing decision in the first place.” The effect has been several notable attempts to control judicial discretion in sentencing.4 Forensic psychiatry has, of course, operated in the criminal justice system under the umbrella of rehabilitation. As Halleck has written5 Traditionally punishment, responsibility and absence of mental illness have been linked together. If a man is believed to be psychologically intact, he is usually treated as responsible and punishable. Conversely, a mentally ill person is considered to be non-responsible and frequently is not punished. These dichotomies have dominated psychiatric and legal thinking since the nineteenth century . . . [thus the] most important reason for psychiatric participation in the criminal trial is a humanitarian zeal to temper the harshness of punishment. It is, therefore, no mere coincidence that serious re-examination of the role of psychiatry in the criminal justice system has also occurred. At the stage of guiltdetermination in the criminal trial, proposals for abolition of mental state *Semor Lecturer Australia 4001.

in La\v, Queensland

Institute

of Technology,

G.P.O.

Box 2434, Brisbane,

Queensland,

1A~~~~C~4~ SOCIETYOF FRIENDS,STRUGGLEFORJUSTICE(1971); MITFORD,THE AMERICANPRISONBUSINESS (1973); FRANREL.CRIMINALSENTENCING. ‘Morris, Senrencing and Parole, 51 Aust. L.J. 523 (1977); Australian Law Reform Commission, Sentencing qffederul Offenders 211-215 (1980) on U.S. Jurisdictions that have abolished parole. ‘See, e.g., VON HIRSCH. DOING JUSTICE:THE CHOICE OF PUNISHMENTS(1976); VAN DENHAAG, PUNISHING CRINVALS CONCERNNG A VERY OLD AND PAINFULQUESTION,(1975); and TWENTIETHCENTURYFUND TASK FORCEON CRNIN.\L SENTENCING.F.NR AND CERTAINPUNISHMENT(1976). 5uch as determinate sentencing recommendations by Von Hirsch, id., and by The Twentieth Century Fund Task Force; id. and adoptions, see Australian Law Reform Commission, supra note 2. ‘PSYCHIATRY AND THE DILE\IWS OF CRIME 35, 22.2 (1971).

89

I.G. CAMPBELL

90

defences (and the consequent exile of psychiatrists from the courtroom) have frequently drawn upon the considerable body of research demonstrating the inherently variable and negotiable nature of, and unreliability and invalidity in, psychiatric diagnoses .6 Such proposals were brought forward despite the frequently inextricable dependence of the fundamental notion of mens rea (and, particularly, voluntarism) upon testimony as to the mental state of an accused person; the dependence was apparent in California in the early 1960s when the separation of guilt and mental state was tried and found wanting.’ Curiously, some proposals for the abolition of mental state defences were made just at the time when the results of the international diagnostic research sponsored by the World Health Organization demonstrated a dramatic improvement in intersubjective reliability of diagnoses when standardization techniques were employed.8 Similarly, the now well known and on-going study of the efficacy and value of therapeutic endeavours in custodial regimes9 and the equally well known and ongoing study of the prediction of future violence based, inter alia, upon

6A~ to the unreliability (1975);

the suggestions

CRIMINAL LAW (1963);

Layman’s View, 76

and invalidity issue generally, see KENDELL. THE ROLEOF DIAGNOSIS IN PSYCHIATRY relating to abolition of mental state defences include WOOTON. CRI~IE AND THE SOCIAL SCIENCEAND SOCIAL PATHOLOGY 250 (1959),

L. QTLY. REV. 224 (1960)

PUNISHMENT AND RESPONSIBILITY 193 (1968); CRIME CONTROL 170-185

(1969);

Goldstein

Diminished Responsibilirv: A

and CRIME AND PENAL POLICY 235 (1978); H.L.A. Morris

and Katz,

and Hawkins,

HART.

THE HONEST POLITICIANS GUIDE TO

Abolish The Insanity Defence - Why Not? 72 Yale

L.J.

853 (1963); Morris Psychiarry and fhe Dangerous Criminal, 41 S. CAL. L. REV. 514 (1968), and Milte Bartholomew and Galbally, A bolifion of fhe Crime of Murder and Menrol Condition Defences, 49 AUST. L. J., 160 (1975). ‘Louise11 and Hazard,

Insanity as a Defence: The Bifurcated Trial, 49 C-IL. L. REV 805,

829-830

(1961);

this is not surprising,

given the fact that voluntarism is an essential feature of the concept of criminal responand yet the cause of involuntariness may be the very thing the insanity defence is concerned with,

sibility, such as psychoses

r_v[1963] A.C.

of organic

origin,

386; the borderline

sense of insane automatism,

see Charlson, between

[I9641 S.C.R.

561. Quick

Lipman

Kemp

or sane automatism,

[ 19571 I Q.B.

and insanity,

399,

Brar-

in the legal

has been the subject

Brofty. op. cit.; see Cottle [I9581 N.Z.L.R. same controversy

39 CR. APP. REP 37 (1955).

involuntarism,

and Paddison

of considerable controversy since the decisions in Kemp and 999, Meddings [1966] V.R. 306, Foy [1960] Qd. R. 225, Bleta

722 (1973)

57 Cr. App.

has arisen in relation to intoxication

[1969] 3 All E.R. 410, MacIsaac

(1968)

Rep. and Rabey

and automatism,

1 I GRIM. L.Q.

see D.P.P.

234, Haywood

(1978)

17 O.R.

2d 1; the

v. Beard 119201 A.C.

479,

[I9711 V.R. 755 and Quick and

Paddison, op. cif., and now O’Connor 54 A.L.J.R. 349 (1980); the attempt to separate the issues of guilt (and, perforce, voluntarism) and the defence of insanity (and, perhaps, organic psychosis) therefore amounted to a vain attempt to separate the existence of clouded consciousness or unconsciousness from the aetiological explanation for that state. *Wing and Nixon,

Discriminafing Symproms in Schizophrenia, 32 ARCH. GEN. PSYCH. 852 (1975); Hawk et Diagnosiic Criteria and Five- Year Ourcome in Schizophrema, 32 ARCH. GEN. PSYCH. 343 (1975); Carpenter et al., Signs and Svmpfoms as Predictors of Outcome: A Report from ihe Inrernalional Pilor Sfudy of Schizophrenia, 35 AM. J. PSYCH., 940 (1978); Endicott and Spitzer, Use of the Research Diagnosiic Criteria and ihe Schedule for Affective Disorders and Schizophrenia IO Stud-v Affective Disorders, 136 AM. J. PSYCH. Z( 1979); Spitzer, More on Pseudoscience in Science and /he Case for Psychiarric Diagnosis, 33 al.

ARCH. GEN PSYCH., 459 (1976); DIAGNOSIS IN PSYCHIATRY.

9.See, e.g.,

see also CLARE. PSYCHIATRY IN DISSENT. 131 (1976);

supro

note 6, 33-37,

KEYDELL. THE ROLE OF

81-85.

LIPTON, MARTINSON and WILKS. EFFECTIVENESSOF CORRECTIONAL TREATMENT: A SURVEY OF

TREATMENT EVALUATION STUDIES (1975). LITERATURE (1976) PRISONMENT(1978).

and,

more

recently,

BRODY.THE EFFECTIVENESSOF SENTENCING: A REVIEW OF THE GUNN. ROBERTSON. DELL AND WAY. PSYCHIATRIC ASPECTS OF 1~.

THE INFLUENCE

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REPORTS

psychiatric evaluationI both reached conclusions detrimental to adherence to the rehabilitative ideal: that specific therapeutic endeavours and environments appeared to bring about no better results in reducing recidivism than more traditional regimes and that the -cost of using psychiatric predictions of future violence as a basis for release of prisoners appeared to be an extensive rate of false positives both seriously undermined the rehabilitative ideal. The Psychiatric

Pre-Sentence

Report

One feature at the sentencing stage of the criminal trial clearly based in the rehabilitative ideal is the calling for and reception of psychiatric reports or testimony designed to assist the court in imposing sentence. Internationally, it is recognized that the purpose is to assist the magistrate or judge to impose not simply any sentence, but the “most suitable,“” “proper,“12 “appropriate”13 or “effective”14 disposition. That this is the rationale of pre-sentence reports is echoed by the South Australian Criminal Law and Penal Methods Reform Committee, although that Committee adds several important pre-conditions for use. The Committee states that theI basic justification [of the pre-sentence reports] is that under appropriate circumstances it materially assists effective sentencing . . . such justification necessarily implies that pre-sentence reports are not used indiscriminately or automatically . . . a pre-sentence report is likely to be a constructive contribution only if it is reliable.

10Such as STE~DMAN and COCOZZA. CAREERS OFTHE CRIMINALLY INSANE (1974) on the Baxstrom v. Herold 383 U.S. 107 (1966) patients, STEADMAN and COCOZZA. Psychiu/r_y Dangerousness and fhe Repefi1ivei.v Violenr Offender, 69 J. GRIM. L. CRIMINOLOGV 226 (1978) on the People ex. rel. Anonymous v. Laugh, 351 N.Y. 2 d 594 (1974) patients and THORNBERRY & JACOBY. THE CRIMINALLY INSANE(~~~~) on the patients the subject of Dixon V. Pennsylvania, 325 F. Supp. 966 (1971). “Criminal Justice Act, 1948 (U.K.) s.25(1); Criminal Justice Act, 1954 (N.Z.), s.4(1); REPORT OF THE INTERDEPARTMENTAL COMMITTEE ON THE BUSINESS OF THE CRIMINAL COURTS, Cmnd. 1289, 94 (1960) (The Streatfield Committee). ‘*Criminal Code, 1899 (Qld.), s.650; Criminal Code, 1913 (W.A.), s.656. ‘SStreatfield Committee, supra, note 11, at 76; WCKITON, CRIME AND PENAL POLICY 45 (1978). 14See genera& The Streatfield Committee, supru note 11, at 84-85. ‘ICRIMINAL L&a AND PENAL METHODS REFORM COMMITTEE OF SOUTH AUSTRALIA, FIRST REPORT: Senfencrnp and Corrections

(1973): essentially the same point is made by the American

RELATING TO PROBATION (1970). mation

on “which

which states that the purpose

to base a rational

sentencing

see Miller,

The American

STANDARDS

report is to provide Bar Association

infor-

Looks

at

the National Advisory Commission on Criminal Justice Standards and Goals in its report CORRECTIONS 185 (1973), contents itself with stating that pre-sentence information “is essential if the [sentencing] decision is to be a knowledgeable one”; the Probation Division of the Administrative Office of the United States Courts in THE PRESENTENCEINVESTIGATIONREPORT 1 (1965) states the purpose, inter alia, as aiding Probarion,

FEDERAL PROBATION. 34:3-9

decision”,

Bar Association’s

of the pre-sentence

(1970);

the court in determining the appropriate sentence to aid the probation officer rehabilitative effort during probation and parole supervision . . It is not the purpose report to demonstrate the guilt or innocence of the defendant. All these point

fective sentence.

to essentially

the same thing:

the presentence

report

in his of the

is to assist the court to impose a more ef-

92

I.G. CAMPBELL

With these preconditions of selectivity and reliability it is of interest that very little research interest has focussed on the extent to which the criticisms of the rehabilitative ideal in general, and forensic psychiatry in particular, have influenced courts in seeking the assistance of psychiatrists in sentencing and in developing a doctrinal response thereto. The scattered pieces of research on psychiatric pre-sentence reports that consider the extent of use by courts of such reports make little attempt to relate this use to wider developments in the criminal justice field. A tentative step in this direction is the aim of this paper. The Extent of Use Whilst many commentators in England and Australia have noted the growth in use of probation officers’ pre-sentence reports,16 and in England the use of such reports is already substantial, I7 this does not appear to have been the case with psychiatric pre-sentence reports.18 Sparks,19 examining referrals for psychiatric reports by two London magistrates courts in 1961 (which he claimed not to be typical magistrates courts, let alone typical of those courts in London) observed that just under 3% of all offenders dealt with by those courts were so referred. Prins*O noted that only 0.5% of all offenders dealt with by courts in an unnamed English city in 1969 were so referred. Gibbens, Soothill and Pope,?’ in their extensive study of medical remands in custody by eighteen London magistrates courts and three Wessex magistrates courts, observed that total remands were just under 3% of offender turnover during 1969.**Woodside, in her study of reports by the staff of Royal Edinburgh Hospital, which reported for the Sheriffs Court and High Court in Edinburgh, claimed that reports were requested on only 0.66% of all offenders dealt with by, those courts in 1972. The aggregate use of psychiatric pre-sentence reports in England, Wales and Scotland appears, therefore, to be small. The same appears to be the case in

16White, The Presentation in Court of Social Inquirv Reports, [1971] GRIM. L. REV, D-ZVIES& KNOPF. SOCIAL ENQUIRY REPORTS AND THE PROBATION SERVICE. il973); Davies, Social Inquiry for the Courts, 14 BR _I. CRIMONOLOGY. 18 (1974); HOGARTH. SENTENCING ,~s A HUMAN PROCESS, 242-247 Toronto Press, Toronto (1971). Fox&O’Brien, Fact Finding For Sentencers, 10 MELB. U.L. REV 163 at 167 (1975); D~UUTON-FE&R. SENTENCING IN WESTERN AUSTRALIA. 114-l 18 (1977). “Davies and Knopf, id. at 1, claim that SERs were requested on 87% of all offenders appearing in higher courts in England and Wales in 1969; in Canada, the proportion seems about half that in England, Hogarth, id., who found only 42.3% of all offenders the subject of his study were reported on; in Australia, the figure seems lower still: Bleakley, Pre-Sentence Reports: Their Place in the Sentencing Process, QLD. I_A~ SOC. J., Jan. 1978: 29-31. lBHogarth, supra note 16 at 240-241, notes that whilst probation pre-sentence reports were prepared for 42.3% of all offenders dealt with during the period of his study, psychiatric reports were called for on only 4.3% of these offenders. BEAN. REHABILITATION AND DEVIANCE 100-101 (1976), reports roughly the same ratio of SERs to psychiatric reports in England in 1971, 162, 380:12, 960. 19The Decision to Remand for Mental Examination, 6 BR. J. CRIMINOLOGY. 17 (1966). *ORemandsfor Psychiatric Reports, 16 MED. SCI. LAW (1976). calculated from data supplied at 129. *‘MEDICAL REMANDS IN THE CRIMINAL COURT. Maudsley Monograph No. 25 (1977). **Which between them were said to request fully one quarter of all medical reports on remand in custody in England and Wales, id. at 10 and 26; the authors do not differentiate remands for information on fitness to plead, sanity or sentence, but they note, id. at 34, that almost 94% of the referrals were post-trial. 23Psychiatric Referrals From Edinburgh Courts, 16 BR. J. CRIMINOLOGY. 27 (1976).

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Australia. Bartholomew and Miite24 observe that between 1964 and 1976 Victorian judges (they do not supply data on magistrates) sought only an average of 91 reports per annum, whilst Warnerz5 in Tasmania noted that the Tasmanian Supreme Court and Hobart magistrates courts sought psychiatric pre-sentence reports on 8.2% of all offenders before those courts in 1969-1970, but that this proportion fell to 6.0% in 1974-1975. Within these small aggregates, however, uniformly high rates of referral are apparent in some subcategories. For example, Bohme+ in his study of the 824 convictions for varying degrees of sexual offence in Philadelphia between 1966 and 1970 observed that 425 of these offenders were referred for psychiatric presentence reports. Similarly, Gibbens, Soothill and Pope*’ noted great differences in report-seeking according to seriousness of offence: whereas less than one in 100 offenders in magistrates courts were so referred, this rose to one in 10 offenders dealt with on indictment. Bohmer indeed noted that his Philadelphia judges cited “criminal justice” criteria as the most frequent reasons for obtaining reports:*8 type and gravity of offence, possibility of imprisonment and prior criminal record rather than such cues as bizarre behaviour or request by court personnel such as prosecutor, defence counsel or probation officer. Such a finding is confirmed to some extent in Australia by Warner,z9 whilst in England Gibbens, Soothill and Pope30 observe both offence type and sex differences: one in five males convicted of indictable sexual offences was referred, but only one in 17 convicted of theft, shoplifting or handling stolen goods, whilst one in 18 females convicted of these latter offences but one in four females convicted of property offences with some physical violence were referred. Various studies report on both sex and age31 differences as indicating pre-conceptions as to the type of offender who should be referred for report. Sparks, 32however, poi nts out that any such demographic or criminal justice criteria hardly serve to differentiate the mentally abnormal from the normal offender, whilst Walshe-Brennan, 33after stating that in England it appears to have u Victorian Judges and the Psychiatric Pre-Sentence Report, 10 ANZ J. CRIMINOLOGY, (1977); see also Guile Psychiatric Reporrs for the Courts, 2 MED. J. AUST.. 157 (1965). z5The Use of PsychiatricReports in Sentencing, ANZAAS Conference, Melbourne, 1977 also in 13 ANZ J. CRIMINOLOGY.181 (1980).

26Bad or Mad: The Psychiatrist in the Sentencing Process, 4 J. PSYCH. LAW, 23-33 (1976); both the 1973 article, and the 1976 article are from his Ph.D. thesis, Judicial Use of Psychiatric Reports in the Sentencing of Sex Offenders, University of Pennsylvania, 1975. 171d. at 26. See also Bowden, Men Remanded Into Custod_vfor Medical Report: The Selection for Treatment, BR. J. PSYCH., 320-327 (1978), and Lewis, Shall We Ask for a Psychiatric Report?, 143 J.P. 518 (1979). 28Supra note 26 at 39-41, and in Judicial Use of Psychiatric Reports in the Senrencing of Sex Offenders, J. PSYCH. LAM. 223 at 230 (1973). 191d., at pp. 183-184. )OId., at p.18. For non-indictable offences, the frequencies fall dramatically but show the same offence rype and sex differences: for “indecent exposure, offences by prostitutes or importuning by males” one in 4 males was referred as against one in 6 females, for “begging or sleeping out” one in 5 males and one in 3 males, Id., p.23. )‘Warner, Id., at p.184; Prins, Id., at pp. 129-131 and 134; Dell and Gibbens, Id., at p. 120; Gibbens, Soothill and Pope, Id., at p. 90. 3zId., at p. 18. 3~Psych,arric Court Reporrs, 140 J.P., 443 at 444 (1976).

94

I.G. CAMPBELL

become fashionable to refer all offenders who commit certain types of sexual offences, decries the waste of scarce resources in the time spent in preparing reports, the vast majority of which find no mental abnormality. The charge, then, is that referrals for psychiatric pre-sentence reports are being made on an indiscriminate basis, according to criteria having no relevance to psychiatric assessment and treatment. On the other hand, Walshe-Brennan’s criticism seems too extreme. Even on Gibbens, Soothill and Pope’s figures, four out of five male sexual offenders were not referred for report and three out of four females convicted of property offences with violence were not referred. Moreover, “criminal justice” cues may be important in some cases, such as where the defence unsuccessfully raises insanity or successfully raises diminished responsibility to a murder charge, as indicating that a pre-sentence report would be helpful where information and evidence before the court on guilt-determination is not specifically addressed to sentence. Furthermore, the “criminal justice” cue of prior record, especially a long record of minor offences, may be a valuable indicator for an attempt at an alternative form of disposition or, alternatively, that such attempts in the past have failed.Jj Finally, the fact that “criminal justice” dues are employed does not necessarily exclude the fact that suspicion of mental illness, demeanour or knowledge of prior medical treatment may not also operate in alerting sentencers to the possibility of a referral.35 Suggestions have been offered as solutions to the number of “unnecessary” referrals. Specifically, both the Butler Committee36 and Lewis3’ suggest a greater use of SERs as screening devices: the probation officer is to indicate whether he thinks a psychiatric report would be helpful. Whilst this may be feasible in England, however, where SERs are used almost as a matter of course, in other countries such a solution would seem to simply transfer the decision which needs to be made to seeking a probation officer’s report rather than a psychiatric report without any greater discrimination in that decision. Moreover, there is evidence to suggest that the probation officer’s reports already recommend a psychiatric referral where appropriate, and such a recommendation is influentia1.38 Any suggestion that there is over-use of psychiatric referrals based simply on the proportion of findings which indicate no mental abnormality or indicate no

r4For example, circulating

prior record has been found to feature largely in the “stage army” of minor petty offenders

between court,

LAW 189 at 195 (1974);

id.,

Woodside amongst

at

29.

Similarly

Soothill

Soothill and Pope,

id.,

it has been found

that prior

Soothiil,

lot.

cir.;

at 59-61

Repeared Medical Remands, 14 MED and 71-72; Dell and Gibbens, id., at

mental

hospitalization

is frequently

Ser. 120:

found

id., at 28; Bearcroft and Donovan, Psychiatric Courts and Prisons, BR. MED J. at 1520 (1965). 1519; Gibbens, Soothill and Pope, id., at Men Remanded in Custody for Medical Reports: The Selection for Treatment, 132 BR. J.

this “stage army”,

Referralsfrom 51-52; Bowden,

prison and mental hospital,

Cibbens,

Woodside,

PSYCH. 320 at 322 (1978). “Several

authors

observe that these criteria

are employed

in the decision

id., at 28; Bearcroft and Donovan, /oc. cif.; Bowden, id., at ‘6Report of /he Committee on Menfolly Abnormal Offenders, Cmnd. “Shall We Ask for a Psychiatric Report?, id. 1BWarner, id., at 183; Dell and Gibbens, id., at 120; Faulk and Trafford, MED Ser. LAW, 276 at 278 (1975).

Woodside.

to refer:

Sparks,

rd.,

at 18;

324. 6244 (1975).

Efficacy of Medical Remands, 15

THE INFLUENCE

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treatment overlooks the fact that the referral may also be for “negative” reasons:j9 The judge or magistrate may simply want a confirmation of his opinion that there is no such abnormality. Moreover, demographic and “criminal justice” cues alone offer no insight into the decision-making process involved; for such data must be meaningful (either positively or negatively) to the judge or magistrate before a referral decision is actually made thereon. Scott notes that the case must still appear “unusual, puzzling or recalcitrant,“4n or, as Hogarth puts it, “difficult.“41 For these cues to indicate to the judge that a pre-sentence report might be valuable, a certain pre-conception about the value of such reports must exist. Hogarth noted that these pre-conceptions, gauged by penal philosophy score, were related to Ontario magistrates’ perceptions of cases as “difficult.“42 It would appear, therefore, that even though suggested bases for making a decision to refer an offender for a psychiatric pre-sentence report are extremely vague and perhaps variable, there are, on the evidence available, no grounds for believing that the use of reports is indiscriminate or automatic. Such research as is cited, however, gives no guidance as to change over time in the extent of report requests in response to the criticisms of psychiatry referred to earlier. Only Warner’s study purports to follow report request changes over time, and her study is inconclusive. Report requests fell in lower courts between 1969-70 and 1974-75 but rose in the Supreme Court of Tasmania over the same period.43 The only conclusion that can be reached, therefore, is that none of the surveyed empirical work on psychiatric pre-sentence reports enables a confident statement either way as to the effect on the aggregate of court requests for psychiatric reports of the contra-psychiatry and anti-rehabilitative critiques of the early and mid-seventies. It may, indeed, be the case that the research studies under consideration were (with the possible exception of Warner’s) too early to lend any help in this respect. The Extent of Concurrence Prominent forensic psychiatrists almost uniformly express the view that presentence reports ought to advocate lenient; individualized treatment. For example, Bartholomew observes that if4 the object of punishment . . . is to hurt without really considering any other matters then one may properly forget all about tailor-made f9See Gibbens, Soothill and Pope, id., at 125; Gunn, Sentencing: As Seen By a Psychiurrisf, 11 MED SCI. LAN. 95 at 95 (1971) observes that: . .‘IThe psychiatrist often has something important to contribute to the court situation, even if it is only what medical treatment cannot do.” 40“Psychiatric Reports for Magistrates Courts,” 4 BR. J. DELINQUENCY 82 at 82 (1953). 411d., at 243. 421dem; Hogarth further observes that penal philosophy is correlated with the perception of mental disorder in offenders (idem., at 84-85). the type of disposition most appropriate for certain types of offences (idem.. Table 19 at 81) and the importance for sentencing of certain items of information on the offender’s background (rdem., Table 76 at 235); HOOD, SENTENCING THE MOTORING OFFENDER 138-153 tends to confirm some of these observations (1972) ‘,Id., at 181. “Sotne Problems of the Psvchiorrisr in Relation fo Sentencing,

15 Cuhi.

L. QTLY..325 at 332 (1973).

I.G. CAMPBELL

96

as against tariff punishments; one may cease to be concerned with all pleas of mitigation, and the psychiatrist along with all other professional correction workers may as well seek other employment. This equation of “punishment” and standardized responses and the denial of a role for the psychiatrist in this respect is echoed by others. Thus, on the issue of whether psychiatrists’ reports should recommend any particular form of disposition, Scott counselled in 1953: “The psychiatrist should not make a positive recommendation for punishment . . . ,“45 a view endorsed by MacDonald in 1976,46although MacDonald did add that the psychiatrist should draw attention to contra-indications to imprisonment. Bartholomew disagrees on the specific point, allowing for psychiatric recommendations for imprisonment, but goes on to note that the psychiatrist’s prediction of the future course of any mental illness will be influential in the ultimate sentence; for “the better the prognosis . . . then the more lenient one might expect the sentence to be,“47 whilst Halleck clearly states how he perceives the role of the forensic psychiatrist in all-embracing and uncompromising terms: that the “most important reason for psychiatric participation in the criminal trial is a humanitarian zeal to temper the harshness of punishment.“48 It seems clear, therefore, that these psychiatrists submit that the role of the psychiatric pre-sentence report is to place data and predictions before the courts based on several assumptions: that mitigation of the severity of sentence (that is, lenience) is dependent upon how the offender will behave in future, that punishment (which may or may not include imprisonment) should not be standardized but tailor-made to the needs of the particular offender and should, preferably (if, as Scott appears to say, imprisonment can be equated with “punishment”) be non-custodial. The theory of justification of punishment emerging most distinctly is the rehabilitative ideal, and the theory urged upon the courts for reducing crime is by one, and only one, of the means at their disposal, namely reformation of the offender through lenient, individualized and preferably noncustodial treatment for the offender. There is a considerable body of evidence to suggest that although the extent of the use of psychiatric pre-sentence reports is not great, these reports are particularly influential in achieving these ends. Recommendations (whether for or against probation) in probation officers’ pre-sentence reports appear to be followed in the vast majority of cases. 49The same appears to be so for recom4sPsychiatric Reportsfor

Mogisfrores Courfs, 4 BR. J. DELINQUENCV82 at 95 (1953).

46P~~~~~~~~~ AND THE CRIMINAL446 (3 Ed., 47/d., at 341.

1976).

481dem. 49Jarvis, op. cit., found that 70% of the recommendations for probation and 86% of the recommendations against were concurred with in Cornwall Quarter Sessions between 1955 and 1960. Ford, op. cit., noted, however, a lower rate of concurrence following the Streatfield Committee’s recommendation when the reports made recommendations across a range of dispositions rather than simple for or against probation. Gibson, id., notes that a concurrence rate of 86% was evident in New England for the year 1968-1969 but although he notes that the recommendations were varied (16.3% of the recommendations, for example, were for imprisonment) he does not indicate the extent to which particular disposition recommendations were followed. Carter and Wilkins, Some Focfors in Sentencing Policy. 58, J. CRILI. L. CRIMINOLOGYAND POL. SCI.. 503 (1967) note that between 1959 and 1965 the Californian Superior Courts accepted recommendations for probation between 95.6% and 97.3% of the time and recommendations against between 78.4%

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REPORTS

97

mended dispositions in psychiatric reports. Thus de Berker,so in his study of reports made in 1957 by the Brixton Prison Hospital staff noted that the courts appeared to follow 92% of the recommendations for disposition. Bearcroft and Donovansl reported an apparent following of the same magnitude in their study of reports to courts or prisons by the senior author from Long Grove Hospital in London during 1963 (although they did indicate that not all referrals were for pre-sentence examination and report). Sparks, 52who examined reports obtained by two London magistrates courts in 1961 (which courts remanded males to Brixton Prison and females to Holloway Prison but which, Sparks claims, were not typical magistrates courts generally or even typical of metropolitan magistrates courts) noted a 90% concurrence between recommendation and disposition. Dell and Gibbens’J examined reports on females remanded to Holloway Prison in 1967 (which in that year accepted 72% of all females remanded in custody for report in England) and found concurrence between recommendation and disposition in 91% of the cases. Varying studies have been done of reports presented to courts in 1969 in England. Prins,s* commenting on dispositions in an unnamed English city in 1968-1969, reported a 95% concurrence of dispositions with recommendations made with respect to juveniles and 86% concurrence with respect to adults, and cited other studies reporting rates on concurrence consistent with his own. Gibbens, Soothill and Pope,’ in their extensive study of remands for medical reports by the staffs of Brixton Prison and Ashford Remand Centre (both servicing London courts) and Winchester Prison and Dorchester Prison (both servicing 38 magistrates courts in the Wessex Regional Hospital Board area), found in their selected sample of reports a somewhat lower rate of concurrence between recommendation and disposition of 77%. In her study of report made by the staff of the Royal Edinburgh Hospital in 1972, WoodsideS reported an 80% rate of concurrence, whilst in his study of reports, made on males convicted of sex offences in Philadelphia between 1966 and 1970, Bohmer5’ provided data that are slightly confusing and contained only in footnotes, but which appear to suggest a fairly low rate of overall concurrence of 56%. Warner,58 in her study of psychiatric reports in Hobart and 87.2% of the time. WITZTUM, THE UTILIZATION OF PRE-SENTENCE REPORTS IN KINGS COUNTY AN ANALYSIS OF THE V+LUE OF MANDATORY PRE- SENTENCE REPORTS FOR PLEA-BARGAINED DISPOSITIONS (1972) (quoted in Pre-Senrence Reporrs: Uriliry or Furility, 2, FORDHAM URBAN L.J., 27 at 39 (1973) reports a 79% correlation between recommended and actual dispositions, but further breakdown is not apparent. Most recently, Thorpe and Pease, The Relationship Between Recommendafions Made IO the Court and Senrences Passed 16, BR J. CRVVIINOLOC~.393 (1976) noted a total concurrence of 78% in a sample of SERs on offenders convicted in Kent and Nottingham and so statistially significant differences in acceptance of different types of recommendation. See also Thorpe’s fuller study, SOCIAL INQUIRV REPORTS: A SURVEY. 1979) White, The Effecr qf Social InqurrJ, Reporrs on Senrencing Decisions, BR. J. CRIMINOLOGY. 230 at 237-241 (1972) “‘S/a/e of M/nd Reporrs: The lnadequare Personality, 1, BR. J. CRIMINOLOGY. 6 at IO (1960). “Id., at.1521. ‘?ld.. at 21, 531d..at 121. !‘Id.. at 136-137. s51n’.. at 67-69. These authors do not state this proposition themselves but furnish raw numbers from which the calculation may be made. $“ln’., at 30. The same comments with respect to calculation, supra, apply here also. “In the 1976 report of his study, Bad or Mad. id., at 33-35. 5Sld.. at 188.

98

I.G. CAMPBELL

magistrates courts and the Supreme Court of Tasmania in 1969-1970 and 1974-1975, noted a concurrence in magistrates courts in 1969-1970 of 70% and in 1974-1975 of 7670, whilst in the Supreme Court the concurrence was 100% in 1969-70 (although only 10 offenders were the subject of report in those years) and 73% in 1974-75. Warner noted that the concurrence she observed was somewhat lower than has generally been found in England, but it is higher than that noted in Philadelphia by Bohmer. Finally Bowden, on a sample of reports made on remand in Brixton Prison in a three month period in 1975, which prison accepted in excess of one-quarter of all those remanded in custody for medical reports in England and Wales in that year, reported a concurrence rate of 80% on recommendation for custodial treatment.59 Since these studies are from differing jurisdictions at differing times, it cannot be concluded that any change in following (or at least concurring with) recommended treatments or dispositions is evident. Warner’s study in Tasmania may be the nearest to a study of changing patterns in response to critiques of psychiatry, but she notes several factors that prevent any clear conclusion being drawn: a greater proportion of female offenders were remanded in the early period than in the latter, a growth in dissatisfaction by magistrates with the hospital order was apparent (although not with other methods of in-patient psychiatric care) and, finally, the psychiatrist who prepared most of the reports in 1969-70 was not the same psychiatrist who prepared most of the reports in 1974-75. Based on concurrence data such as these, however, critics have suggested that either pre-sentence reports should not be used in criminal courts or that recommendations as to disposition ought not be made, because courts defer to the expertise of the scientist in blindly following recommendations.60 Others have pointed out, however, that concurrence between recommendation and sentence need not necessarily imply deference to experts: Carter and Wilkins,“’ for example, offer four reasons for concurrence, only one of which is deference (the others being a disposition which is “obvious”, common criteria in decisionmaking and “second guessing” of the court’s decision) and found all four reasons operating in their study. Both Bohmer and Warner caution against interpretation of their perceived rates of concurrence as being following of recommenda5VBowden,

The Ourcome

bOFor example, CONTEMP blind

Kittrie.

the traditional

Friends

Service

Background ibid.. This

at 5-6, process

tolerate

amounts

safeguards Committee,

Paperin

of divestment

indicated

as severe as those applied

from criminal

by institutional

of the citizen Impediments

justice

fo Penal

of other

on the whole,

designated

sanctions

cultural

23, L.xM’ \ND

have pointed

out that a

values in favour

erected in the former: ReJorm,

td..

Sentencing,

by racial

as criminal

to a different

of health

Szasz, id., at 4-6. Allen, ibrd.,

id.,

Der-

at 93-106;

willingness

divestment

to

has most

system of social controls

process.

Uv\ofT

FAITH AkTtR

NWIESIS~ THF EYPROPI,%TIOY ok HF,~I TH. (1976) medicine

and Correct/on, others

thus

by the criminal

See U/SO R~rbr;. THF TRIuhfmi nt THF THERAPEUTIC

6’ Id.

of criminal

been motivated,

previously

frequently

divestment

IO Crime

Fund Task Force on Criminal

usurpation

has not

or condition a shift

Morris,

Century

often

TO MVIEIX~IYI;: MFIK~I

id., at 334.

Approach

to a jettisoning

for the liberty id.,

Twentieth

poses the supposed

the conduct

Recommendation,

of rhe Psychiatric

SZASZ. LAW. LIBERTY AND PSYCHIATRY. (1974);

of recommendations

values without rhowitz,

A Critique

PROB.. 650 (1958).

following

American

of the Treatment

Hakeem,

values.

FRF~IIX (1968) and II for

a more

general

I KH.

L~\rir\

cie\b of the

THE INFLUENCE

OF PSYCHIATRIC

PRE-SENTENCE

REPORTS

99

tions. Indeed, the expressed attitudes of courts to the reception and treatment of pre-sentence reports indicates that such a conclusion ought not to be drawn. Courts and Pre-Sentence

Reports

Just as courts insist, on the issue of guilt determination, that juries are the triers of fact and are not therefore obliged to follow psychiatric evidence (for example, as to state of mind of accused at the time of the offence)” so courts also appear to insist that trial judges and magistrates are not obliged to follow advice or recommendations for treatment or disposition in pre-sentence reports.63 The only errors which appear to be reason for reversing a trial judge’s sentence are that the judge appears to ignore particularly strong indications for following recommendations without stating any reason therefore, or that he fails to even request a report in the face of particularly strong indications for such a report.M Not only have courts insisted that they are at liberty to disregard recommendations in pre-sentence reports, they have also not infrequently referred to the critiques of psychiatry as the basis in law for rejecting the recommendations. Thus, the unreliability and invalidity of diagnoses formed the basis for the judgments of two of the majority members of the High Court of Australia in its recent decision in Veen.65 In quashing the sentence of life imprisonment for manslaughter and, by a majority of three to two substituting 12 years’ imprisonment, Stephens and Jacobs JJ. both drew attention to the fact that the prediction of future violence due to alleged organic brain damage was given by a psychologist, based on one afternoon’s testing only and whose qualifications were disputed by a psychiatrist. They counselled trial judges and magistrates to act only upon “the result of a thorough psychiatric investigation and assessment by experts possessing undoubted qualifications for the task” and upon “ . . . psychiatric evidence . . . accompanied by substantial and more or less prolonged confirmatory b2Although

jurv verdicts have been quashed on appeal as unreasonable

given at trial which, 87. &i/e>,

if accepted,

would have resulted in a different

828, Dick [I9661 Qd.R.

[I9611 CKIYI. L.R.

in light of psychiatric

verdict,

301 and Kc//j> (1971)

see Murheson I6 C.R.N.S.

ru_ggested that juries may be told that they are not at liberty to disbelieve psychiatric and symptoms ultimate

illness, Hi/chins

of a diagnosed

Tas.

S.R.

72, and it has been

diagnoses and the signs

35, courts also appear

to insist that the

issue of the state of mind of the accused at the time of his offence is one for the jury, i.e.. whether or the diagnosed illness at the time, Hirchins, suprrr, or even to disbelieve psychiatric

not he suffered

on this issue mhere there is contradictory n’.A.L.R. E.R.

[I9621

testimony

[1958] 2 All E.R.

174. Ritwr

34 CR APP REP. 87, Thomas (No. 2) [I9601 W.A.R.

(1950)

I, Jenniort [I9621

Pritrcc (1972)

I \‘.L.R.

317, AhmedDin

[I9621

73: at the same time, Schlffer,

I6 C.R.N.S.

214. argues that the Rtatheson

line of authority

tion of sanity on which to base a verdict moreover.

evidence which need not be by psychiatrists,

upon the factual

testimony (1914)

I6

129, B_vrne [I9601 3 All

I W.L.R. 682, Lmfear(l968) 1 All E.R. 683 and Menral Disorders in the Crimrnal Trial Processs. at

is wrong, since the jury is entitled to rely upon the presump-

contrary

to psychiatric

even where that evidence is not contradicted

adversely

Ar~ranusco

testimony,

even if it is not contradicted:

courts have occasionally

bases relied on in the formation

of psychiatric

examined

opinions

and commented

and diagnoses,

monweolrh 1. E’oodhouse 164 A.2d 98 (1960), Shearsmith [I9671 Qd.R. 576, Rosik (1970) 2 C.C.C. and Twxer (1975) 60 Cr. App. Rep. 80 at 82. hJDom-e/ [I9711 I O.R. 705, Summers\. Bartlert (C.C.A., W.A., No. 90 of 1973), HalesC.C.A.,

Cow

(2d) 351 W.A..

No. 6 of 1975).

6aEckard/ (1971) ballace

1 S.A.S.R.

J.

6‘(1979)

53 A.L.J.R.

305.

347,

Tillman (1965) 49 Cr. App.

Rep. 340, Summers

\. Bar//err, supra, per

100

I.G. CAMPBELL

history . . . [and opinion which is] overwhelming and most frequently unanimous. . . .“@j Similarly, in the Queensland Court of Criminal Appeal, unreliability and invalidity of diagnosis has been referred to by Hanger C. J. as a reason for quashing a probation order (based on psychiatric pre-sentence recommendation) and substituting a six year prison sentence for manslaughter.h8 After referring to the Handbook of Psychiatry he stated: many of these problems of diagnostic reliability are serious enough to call into question the value of psychiatric diagnosis as it is presently accomplished. Even greater doubts are raised when one considers the unproved validity of psychiatric diagnosis . . . Traditionally the medical clinician has assumed that a diagnostic formulation based on knowledge of the origins, signs and symptoms of an illness ultimately permit its successful treatment. Since the origins and course of most functional illnesses are not known, the diagnosis of these illneses from signs and symptoms is both largely unreliable and of unproven validity . . . It would, in any case, seem clear that the diagnosis of a patient who is mentally ill is fraught with extreme difficulty. . . . At the same time, the skepticism about treatment in more traditional prison regimes was filtered into judicial consciousness and formed the basis for the judgment of Jacobs J. in Veen.The issue for decision was whether the sentence of life imprisonment is merciful. English authority,bg followed by Canadian,“’ suggests it is. The mercy is said to lie in the fact that rapidly successful treatment in custody may result in early (and therefore merciful) release on license. Crucial to the English rule is that Grendon Underwood is a prison devoted to psychiatric treatment and with considerable differences from traditional prisons. Yet in Canada and Australia, where official reports suggest that prison psychiatric facilities are primitive, 71the English rule had been adopted. Jacobs J. stated in Veen that, whilst conditions in New South Wales prisons for psychiatric treatment remained as they did, the faith in early release through effective custodial

%tephen

J. at 308 Mason and Aitkin

J.J. concurring.

67At 318 per Jacobs J. 68Brown (C.C.A.

Qld.

No.

109 of 1972). Campbell

REV

J. concurring.

CRihi. L. REL. 193, Gruiham [I9551 CRIV. L. (1967) 52 Cr. App. Rep. 113; numerous later decisions are to like effect, e.g., [I9741 GRIM. L. REV 130, Thornton [I9751 GRIM. L. REV. 51 and Anderson [1977] CRIV L. REV

69The leading English authorities

are Cunnrngham

[I9551

306 and Hodgson

Ashdown 489.

70Hi11(1974) I5 C.C.C.

(2d) 145, Harg, (1974) 26 C.R.N.S.

247, Head (1970)

tion of the merciful sentence of life has also been adopted in Australia: trial judge specifically contemplated on the other hand, a thirty-year piration

at 201, specifically

referred

a life sentence, but noted that the offender

sentence, under which the offender

of I5 years, was imposed,

but overturned

to Cunningham

I C.C.C.

in Breckenridge

189, the

could be released at any time:

would be eligible for parole after the ex-

on appeal; the Court of Criminal

and Grunrhum,

(2d) 436. The no-

(1966) Qd.R.

Appeal,

supru, and quoting Lord Goddard

per Douglas J. In the former

case to the effect that a life sentence may be more merciful. ‘ISee the REPORT OF THE CANADIAN COMMITTEE ON CORRECTIONS. 237 (1969). REPORT OF THE Roy 41 CO~IVISSION INTO NEW SOUTH W.41 ES PRISONS. (1978)

and subsequently,

SENTENCINCI FEDERAI OFFENDERS. id., at 138-143

especially

142.

Australian

Law Reform

Commission,

THE INFLUENCE

OF PSYCHIATRIC

PRE-SENTENCE

REPORTS

101

treatment was misplaced. 72His judgment was, properly, confined to New South Wales prisons, but his conclusion is not beyond the generalization.7” In addition, the courts have, on occasion, refused to follow recommendations in pre-sentence reports by observing that they appear to be partial and to consider only the interests of the offender, whereas the courts are obliged also to take into account, in sentencing, the interests of the community (meaning thereby that the rehabilitative concern with reducing recidivism is a means, but only one means, of reducing crime in the community). Thus, Bohmer’s observation that concurrence is likely except where the court perceives the recommended disposition as “molly-coddling”74 seems indicated by the judgment of the New Zealand Court of Appeal in Lindman,75 in which it was said that “the reports of psychiatrists must be read by judges subject to the realization that they are primarily directed . . . to the cure of the patient. The lawyer and the judge, on the other hand, must have regard principally . . . to the public interest.” A later example in England, albeit dealing with a probation officer’s pre-sentence report, illustrates the point more fully. Lawton L.J. in Smith and WoolfanP said: Recommendations by probation officers can be very valuable indeed, but they are not likely to be of much value if they are not realistic . . . [the probation officer] was in court and was asked to explain why he thought that a fine was an adequate sentence for a youth who had joined with others in turning a home upside down and stealing a considerable amount of property. He told us that he was concerned about the future of this young man. He may be. This court is concerned about the security of citizens’ houses and it is with regard to that object that the courts have to decide what should be done in this class of case. The courts, therefore, have sufficient doctrinal means for avoiding following or concurring with recommended treatments or dispositions by drawing upon the critiques of psychiatry referred to above or by casting forensic psychiatry in the strict mould of the adversary model and disregarding psychiatric recommendations as being in the interest of offenders only e77Of course, the statements by Scott, MacDonald and those psychiatrists quoted above, Bartholomew, Halleck, suggest that it would not be unreasonable to so regard recommendations. The empirical evidence suggests, however, that recommendations as to disposition are largely tempered with what Lawton L. J. referred to as “realism,” “Supra at 313-315. “See footnote 71 above. ‘aThe 1973 report. id., at 238. “119731 I N.Z.L.R. 97 at 98 per Turner P., Richmond and Macarthur JJ. ‘b(1978) 67 Cr. App. Rep. 211 at 213. -‘And indeed have resorted to such arguments when so minded; see Schloss (C.C.A., Qld., No. 64 of 1974), Starr and Kiriazis [1973] Qd.R. 472 at 481 per Stable J., Smirh (1975) 12 S.A.S.R. 8 at loper Bright J.. Laredo and Enrrghr 119781 2 CRI~I. L.J. 46 at 47 per Neasey and Cosgrove JJ., Murph_v (1972) 15 CRIB L.Q. 13 at 15 and Mbrren (19791 Qd.R. 268 at 272per Wanstall C.J.

102

I.G. CAMPBELL

and that many recommendations as to disposition do not necessarily involve leniency or what might be considered individualized dispositions. Sparks,‘” for example, noted that recommendations in the reports the subject of his study encompassed hospital orders, probation, imprisonment and discharges conditional on seeking out-patient psychiatric treatment, although he did not indicate the extent of concurrence for each recommended disposition. Dell and Gibbens” noted that 38% of the reports they studied contained no recommendation, but the remainder contained recommendations for probation, psychiatric probation, psychiatric treatment as well as borstal and imprisonment, although they offered no further details on the extent of concurrence with each recommendation. The same is apparent in Prins’s study.80 On the other hand, Gibbens, Soothill and Pope (although the figures they deal with are small) note a significant difference in concurrence with custodial recommendations and non-custodial recommendations. They stated, “Recommendations for in-patient treatment were with one exception accepted by the courts.X’ The exception was one of 17 such recommendations, or a concurrence rate of 94%. They continued, “A recommendation for psychiatric probation order was accepted in 69% of cases . . . ” The recommendations observed by Woodsidex2 were also accepted differently: 17% of the recommendations for discharge and 77% of the recommendations for probation 91% of the custodial recommendations were followed. Warner noted that the recommendations in Tasmania encompassed imprisonment, prison activity, hospital orders, medical treatment, psychiatric treatment and even deportation, and noted “the courts of petty sessions and the Supreme Court appeared to follow recommendations for psychiatric treatment in about 75% of cases and non-psychiatric sentencing recommendations, such as gaol or with British studies . . . probation, in about 64% of cases . . . A comparison shows that the courts here appear to follow recommendations less often.“XJ In the later report of her study, Warner furnished tabular data, but it is not clear what is encompassed in “other treatment” or how courts differed when they refused to follow, for example, recommendations for psychiatric probation. Bohrnet+ observed a difference between custodial and non-custodial recommendations and dispositions: 42% of the recommendations for imprisonment met with this disposition, 37% of the recommendations for probation, and 54% of the recommendations for “medical probation” (which terms appeared to be employed to cover, inter alia, commitment to a mental hospital for in-patient treatment). Finally, Bowden@ observed a concurrence rate of 80% with recommendations for compulsory admission to mental hospitals, but concurrence in only three of 13 cases in which psychiatric conditions in a probation order were recommended. Interestingly, the recommendations for psychiatric probation 7a/d., at 21-24. “Id., at 119-121. Ruld.. at 132-133,

137.

81![I.. at 96-97. X2Calculated *‘Her

from data the furnishes,

conference

sJThe 1976 report,

id., at 30.

paper, id., at I I; see ako

her article,

id., 188.

id.. at 34-35.

RsThe Ou~cotne of /he Treurmenf

Recommendorion.

id.,

at 334.

THE INFLUENCE

OF PSYCHIATRIC

PRE-SENTENCE

REPORTS

103

which were not followed were generally met with less restrictive dispositions. It is not generally possible, however, to determine from Bowden’s data whether a medical treatment recommendation that involved some custodial confinement resulted in a more restrictive disposition than would otherwise have been the case; this is suggested, but suggested only, by the proportions given custodial sentences after recommendation in comparison with those for whom no recommendation was made, but the opposite is suggested by the disposition of those for whom recommendations for psychiatric probation were not followed.R6 The evidence, then, is far from conclusive of the question whether a more restrictive psychiatric recommendation increases the likelihood the sentence will concur, although the inference that this is the case does not appear to be unreasonable. White,87 in his review of studies on the effect of social enquiry reports on sentencing in England, observed that these reports appear to result in more lenient sentences (that is, greater use of probation) than would otherwise be the case, but a clear distinction can be made between the choice facing a sentencer on a probation officer’s recommendation for or against probation and the choice on a psychiatrist’s recommendation for or against psychiatric treatment: in the case of recommendations for psychiatric treatment, this may be a condition of a bond, a deferred sentence, a suspended sentence, probation, a hospital order (if such a disposition exists in any particular jurisdiction), or, of course, imprisonment. That the more restrictive recommendations in psychiatric reports appear to be more readily accepted gains further credence from the observations, noted above, that a frequent method of obtaining psychiatric pre-sentence reports is by remands in custody, which normally require prison staff, rather than consultants in private practice, in most cases to prepare such reports.g8 This may have the *fiBowden found that only 87 of the total 634 persons referred for report during the period of the study in “The Selection for Treatment, ” id., at 327; of these the 1975 were recommended for psychiatric treatment, courts adopted 80% of the recommendations which resulted in some deprivation of liberty; a sample of 100 of the remaining 547 were traced, and, it was found, had been sentenced as follows: imprisonment (mean sentence6.6months) suspended sentence (mean 22 months) conditional discharge (bond mean 9.6 months) probation (mean 17 months) fine (mean f60) bond absolutedischarge

41 23 20 10 17 3 3

Some of these dispositions were for one offender for differing offenses, The Ourcome of /he Treurmenr Recommendarion. id.. at 334. Thus a far greater proportion received a disposjtion involving deprivation of liberty following a pre-sentence recommendation for treatment in comparison with the sample of those not reported on or those reported on without recommendation. However, distinct differences were observed between the group recommended for treatment and the group reported on but for which no recommendation was made. including on thecriterion of prior record for drunkenness convictions, TheSelectionfor Trearmenr, id., at 327, so it is not possible to draw any firm conclusions as to whether or not a recommendation for custodial treatment results in a more restrictive disposition than would otherwise be the case; the opposite is suggested, but suggested only, with respect to those recommended for psychiatric probation. R. The Effecr sf Social Inquirv Reporrs on Senlencing Decisions, id., at 242-245. R8G~esok TIME SPEW AUITING TRIAL. Gibbens, Soothill and Pope, id.; Bearcroft and Donovan, id., Prins. rd.

I.G. CAMPBELL

104

tendency to result in more restrictive recommendations, as Gibbens, Soothill and Pope have suggested.89 It would therefore appear that the rhetoric of securing lenience for the offender and individualized disposition is not matched by the reality ofrecommendations for some confinement or custodial form of punishmentm (whether with or without psychiatric treatment) and the extent to which such recommendations appear to be followed by the courts. The rhetoric, however, has apparently had one effect, namely persuading the courts that those preparing reports are concerned with only the issue of lenience towards the offender. It is not unreasonable to conclude that whenever a recommendation is made (ostensibly against the offender’s interest in liberty) courts will more readily accept that recommendation as being almost consensual and therefore appropriate. On the other hand, the inference arises from the empirical studies that the courts reject more frequently recommendations for lenience. This inference, moreover, seems supported by the cases cited above when the courts have chosen to dismiss recommendations. For example, in each of the instances where the courts have alleged that pre-sentence recommendations are coloured by partiality to the interests of the offender, the consequence has been an ignoring of a recommendation for lenience and a more restrictive sentence employed than that recommended. In Browngl the Court of Criminal Appeal in Queensland referred to the unreliability and invalidity of psychiatric diagnoses to quash a sentence of psychiatric probation and to substitute a sentence of six years’ imprisonment following a conviction for manslaughter. In Murphy9* concurrent sentences for three offences with an effective total of two years were quashed and an effective total of seven years substituted. In Lindeman93 an appeal against a three year prison sentence was rejected, the argument on appeal relying, inter alia, on a recommendation for probation. In Starr and Kiriazisg4 fines of $300 were upheld but the Court of Criminal Appeal added a three year prison term because the trial judge was said to have taken too much notice of the lenient recommendations in pre-sentence reports. In Schloss9s a five year prison sentence (with a two

891dem. at 96-97. Y”The most valued good of the epoch has been asserted to be liberty and that the major punishments epoch have been the deprivation

of that liberty,

FOUVAUI T. DISCIPI INE AND PUNISH: THE BIRTH OF THE PRISON. 7-l I (1975).

Values and The Rehabrlitarive

Measures which subjects individuals to the substantial and involuntary tions that prompt

.Allen, Critninal

Ideal, 50 J. GRIM. L. CRIXIINOL.OGY ~ZNDPOI SU

ty are essentially punitive in character, incarceration

ot’the

R.XDZINOWIC%. IIEO~O~;Y .XND CRILIE. 1 I (196). and see also 226 (1959).

deprivation

Jusrice. Le,gal therefore

states

of their liber-

and this reality is not altered by the fact that the motiva-

are to provide therapy or otherwise

contribute

to the person’s

well-being or reform.” To the same effect, the American punishment

Friends Service Committee,

is not a particular

or her will.” Y’C.C.A.

Qld. No. I09 of 1972.

u2(1972) I5 CRll

L.Q.

p’[1973] 2 N.Z.L.R. p4(1973] Qd.R. 9’C.C.A.

I

3.

97.

472.

Qld. (No.

64 of 1974.)

rd.. at p. 22 state “The distinguishing

motive, but the result: theapplication

of force toanother

feature of

person against hi5

THE INFLUENCE

OF PSYCHIATRIC

PRE-SENTENCE

REPORTS

105

year non-parole period) was increased on appeal to eight years. In Smith96 a recommendation for probation (based on the offender’s “pathological reaction to gaol” on a prior occasion) was rejected and 15 months effective imprisonment affirmed. In Smith and Woo/land97 the probation officer’s recommendation for probation was rejected and borstal detention upheld on appeal. In Laredo and Enright98 sentence of three years’ probation and two years’ imprisonment on each defendant (the former sentence specifically based on psychiatric presentence recommendation) were quashed on appeal and prison terms of three years and four years were substituted. Finally, in Warren,99 although Wanstall C.J. was in dissent, his comments on the interest favoured by the psychiatrist’s recommendation prompted him to order the two year probation order quashed and to substitute a two year prison term. Of course the one contrary instance is the High Court decision in Veen, in which the cautious attitude of the majority of the High Court to forensic psychiatry resulted in a reduced sentence. Perhaps it is the case, however, that Veen may not represent a significant departure. It has, for example, been cited and followed in the Queensland case of Harrattloo but, significantly, it was a minority judgment in Veen, that of Mason J., which was cited and followed, and a judgment which, by implication at least, appears to place some faith in psychiatric evaluations when the logical consequence is a long-term, indefinite or life imprisonment. Conclusion The assessment of the influence of psychiatric pre-sentence reports on criminal sentencing is an issue which appears to have received relatively little research attention. Certainly some studies have attempted to quantify the extent to which criminal courts call for such report and the extent to which treatment or dispositional recommendations accord with the sentence of the court. Some of the more significant of these studies have been considered, with the general conclusion to be drawn that (at least in those jurisdictions the subject of these studies) the use of psychiatric pre-sentence reports is not numerically great, but that their influence appears to be quite significant, in so far as concurrence rates can signify this influence. Caution must be exercised, of course, in drawing a causal conclusion from observed concurrence, but whether pre-sentence reports are confirmatory or constructive, they do appear to be influential. The studies do indicate a fairly high level of concurrence generally, although some interesting temporal and jurisdictional differences have emerged. One perspective that has been relatively neglected, however, is a qualitative perspective, one that this paper has sought to explore. The exploration has suggested that a tantalizing inference arises. By drawing upon anti-psychiatry critiques or characterizing reports as partial or biased, courts appear to be ready to 9a(1975) 9’(1978) 98[1970] ‘-[1979] ‘oo[1980]

12 S.A.S.R. 8. 67 CR APP. REP. 211 2 CRlhl L.J. 46. Qd.R. 268. Qd.R. 132.

106

I.G. CAMPBELL

discount or devalue psychiatric pre-sentence recommendations for lenience or lenience-related treatments (specifically, non-custodial dispositions) but rarely exhibit reluctance in accepting recommendations for long custodial dispositions or treatment recommendations that entail close security. The exploration gave rise to an inference only, but it is an inference that appears to be born out by the empirical studies (in so far as they examine the extent to which different forms of recommendation are met with concurrence in sentence) and also by the appellate dicta in those English, Canadian and Australian cases examined. At this stage it is inference only, but it is an inference which merits specific research design and testing.