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The use of social science in forensic psychiatry
International PrInted
in the
Journal U.S.A.
of Lawand All
nghts
Psychiatry,
Vol.
2, pp.
519-531,
1979
reserved.
0160.2527/79/040519-13$02.00/O Copyright
0
1980
Pergamon
Press
Ltd
The Use of Social Science in Forensic Psychiatry Henry J. Steadman”
One view of the uses of social science for forensic 1873 by this specialty’s founding father, Issac Ray:
psychiatry
was offered
in
Statistics which are not really statistics are worse than useless; and the reason is that they beguile the student with a show of knowledge and thus take away the main inducement to further inquiry. Why should he look further for truth when it already lies before him? Some of the prevalent errors respecting insanity and the insane are fairly attributable to these vicious statistics, for figures make a deeper impression on the mind than the most cogent arguments.’
Whether or not one agrees with Ray’s assertion of the primacy of statistics over “cogent arguments,” his observations epitomize the widely held view that statistics can be made to say anything and are to be considered suspicious in every instance. So, in the practice of any profession, including forensic psychiatry, it is the well reasoned argument based on precept and precedent plus sound clinical judgements upon which decisions must be made. It is my contention that forensic psychiatrists’ arguments often are not “well reasoned” and are deprecated due to their lack of systematic empirical data. The focus of this paper is not only the statistics produced by the social sciences, but also their perspectives and methods. Nevertheless, it is the data produced by these methods and perspectives that are most directly and obviously of use to the practice of forensic psychiatry and therefore will be the dominant thrust of this analysis. Returning to Issac Ray for a moment, it is important at the outset to recognize that the real problem with which he was dealing was the misuse of statistics or social science data. Such misuses have many sources both intentional and unintentional, ranging from the tendency to present only certain portions of a data set that support one’s arguments, to citing only those articles that support one’s position, and inappropriately applying a citation to a subject group significantly different from that on which the cited research was done. One example of this last type of problem is seen in A Human Condition developed by the English National Association for Mental Health (MIND) in response to a proposed revision of the 1959 English Mental Health Act. In their analysis of dangerousness they claim that “a behavioural scientist . . . can make reasonPresented at the Third International Symposium on Law and Psychiatry, Vancouver, British Columbia, Canada, May 10-13, 1979. This paper reflects the thoughtful comments of Jeraldine Braff, John Monahan, and Joseph P. Morrissey. *Director, Bureau of Special Projects Research, New York State Department of Mental Hygiene, Albany, New York 12229. ’ I. Ray, Contribution to Mental Pathology (1873). 519
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ably accurate predrctrons that terrain classes ot people will engage m vrolent behaviour in a short perrod of time” is not supported by the research on the mentally ill, assummg rhat one acceprs usual legal standards of’proof.’ Yet, the cttation for the assertron is research on juvenile offenders rather than on the mentally ill group to whom rne research f’indmgs arc applied. Obviously, in an arena as politically charged as the field of forensic psychiatry it is to be expected that advocacy periodically will lead to certain nrrsuses of available ini‘orrnarron. in fact, forensic psychiatrrsts, admimstrators, and support professionals in forensic facilities are only too aware of the manner in which skilled patrent aavocates have used social scrence data against them. What 1 will attcmpr to demonscraw here is how for forensic psychiatrrsts, especially those practrcirig in goverrlmenr corrtexts, social science can be of substantial use in clinical, adminrstrative, htigative, and legislative areas. The field ot forensic psychiatry could profit from much rnore attention to social scierrce both in the ‘-offensive” sense of improving treatrnent, assessment, adsense of more effectively reministratron. and statutes, and in a “defensive” sponding to litigatron and proposed legislation. Because of a wider range of examples, most of the illustratrons of social science applications to forensic psychiatry will center on the criminal realm. However, applications to other realms should be evident. First, let us exarnine some of the clinical uses ot’ social science. Clinical Applications A major potential use for social science data in the clinical process relates to admrssron and release decisions. Admission decisions may involve admission or non-admission or classification as to placement based on security precautions. Release decisions are rnore varied. For example, Petrunick describes a key Canadian ~SSLI~, A cation expiry made cause prove
major problem of concern to the crimmal justice system Iies in the certifiof offenders alleged to be mentally disordered and dangerous upon the of their sentence or release on mandatory supervision. Criticisms are by correctional officials that such certification is diffiult to accomplish beof the reluctance of mental health officiais to accept patients who may to be highly disruptive.3
A frequent American dilemma of release occurs after acquittal by reason of insanity where both medical and criminal court approval is required.4 In addition to decision-making at these key junctures, social science can be extremely helpful in the area of program evaluation of forensic treatment programs, and as follow-up to decisions by examining, for instance, recidivism after release or assessments of familiy functioning following a child custudy decision. Let us look at some specific situations. *L. 0. Gostin.
A Human Condition (1976, 1978).
3M. Petrunik. The Dangerousness Concept in Canadian Mental Health Legislation: The Case of Dangerous Mentally Disordered Persons and the Criminally Insane (Presented at World Congress of Sociology, Uppsala. Sweden. 1978). “W. Carnhan L. Kolb, H. J. Steadman and J. Wright, The Insanity Defense in New York (1978).
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The best example I have seen in the literature of the potential social science contribution to the admission decision-making process is in Kozol’s description of a program for dangerous sex offenders that was operative at Bridgewater State Hospital in Massachusetts in 1972. Each diagnostic study is based on clinical examinations, psychological tests, and a meticulous reconstruction of the life history elicited from multiple sources ~ the patient himself; his family, friends, neighbors, teachers, and employers; and court correctional, and mental hospital records. The clinical examinations are made independently by at least two psychiatrists, two psychologists. a social worker, and others .. Of paramount importance is a meticulous description of the actual assault. The potential for violent assaultiveness is the core of our diagnostic problem, and the description of the aggressor in action is often the most valuable single source of information. The patient’s version is compared with the victim’s version. In many cases we interview the victims ourselves. Our most serious errors in diagnosis have been made when we ignored the details in the description of the assault. How was the victim chosen? Was the choice specific and meaningful or was it random and incidental? What was the victim in the aggressor’s eyes?5
These procedures described by Kozol highlight two dimensions in the assessment process for the forensic psychiatrist for which social scientists may be constructively utilized. The first is a conceptual one ~ the specification of the situational contexts in which past behaviors of concern have occurred. with special emphasis on the community. The second contribution is in the systematic compilation of these factors in any given case. The adequate consideration of the situational context of violence, a dominating feature of most forensic psychiatric assessments for admission, placement and release. can benefit tremendously from a social science perspective and data collection. One proponent of a social science, situationally oriented approach to understanding violence in forensic settings is the correctional psychologist. Edwin Megargee, who has observed: The importance of situational factors has already been emphasized. These include immediate specific factors such as the availability of a weapon, the presence of onlookers, and the behavior of a potential victim, but more pervasive situational variables such as the level of frustration in the environment, or the social approval of violence in a particular subculture should also be considered. Situational factors can either facilitate or impede dangerous behavior. A gun in the hand of an angry man can facilitate his committing an act of violence, but if, instead, the gun is in the hand of his potential victim, it is more likely to inhibit his dangerous behavior. One reason behavioral scientists can predict college achievement more accurately than dangerous behavior is that academia presents each student with standard situations and similar stimuli, whereas the situations and milieus to be confronted by mental patients and parolees in the community seem infinitely more variable.6
This perspective suggests that social sicentists with varied levels of training and experience could productively contribute to many forensic workups as part 5Kozol, Boucher and Garofalo, The Diagnosis and Treatment of Dangerousness, 18 Crime and Delinquency (1972). 6 Megargee, The Prediction of Dangerous Behavior, 3 Criminal Justice and Behavior 3 (1976).
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of a team. Their major contribution would be in combing record data, interviewing persons involved in recent and distant incidents of violence or any other behaviors considered crucial to the assessment process, and to compile the data in a manner that permitted it to be factored into the assessment, placement, or release process. An essential feature of any work in regard to situational factors would be the analysis of the environments into which the person might be placed. Evolving research is demonstrating quite convincingly the lack of relationship between behavior within maximum and regular security mental hospitals and in the community.7 Likewise, it is probable that behavior in one type of inpatient environment may not be associated with behavior in another type of inpatient environment.8 Thus, part of the social science input into clinical processes would be to research both the past environments and situations of violence (or any other behaviors of interest) and the environments and situations into which the various placement options might locate the patient.9 Then some recommendations about the possible implications of the various options might be offered. Such an assignment would require skills not only in data collection and analysys, but also in synthesizing the research literature with which most of the clinical staff would not be familiar. Thus far in this section on clinical applications, program evaluation has been given little attention. 1 have done this because program evaluation is probably the most obvious clinical application of social science for forensic psychiatry. Regardless of what treatment or custodial program may already exist, there is a need to determine how effective it is. Clearly, if security is a main program goal, a simple count of what may be very infrequent escapes provides the necessary data base. However, in other instances, either for units within larger programs or entire programs, the director, the staff, the press, the public, and the legislature want to know if the program is working. Usually what the public, press, and legislatures mean by “working” is whether people are escaping and whether recidivism is being reduced, even though neither may be the goal of the treatment program. Regardless, unless some sort of regular records are maintained and unless a facility or program has the capacity to design new programs in a manner that permits some determination of the results, forensic psychiatry becomes a high burn-out profession ~ in part due to the fact that the only results seen are the numerous failures who return over and over again. It is striking that while the state of New York, as one case in point, has a very well developed Bureau of Program Evaluation within its central office, and while practically all the civil mental hospitals have on-site program evaluators, one forensic center in the state has no program evaluators and the second has but one. Where others have been requested, at some stage of the budget review process the requests have been trimmed by budget analysts or legislative aides as not being important to the forensic programs. Such should not be the case. ‘H. J. Steadman, Special Problems in the Prediction of Violence Among the Mentally Ill (Presented at Symposium on Violence and the Violent Individual, Houston, Texas, 1978). a R. Moos, Assessing Treatment Environments: A Social Ecological Approach (1974). 9 Ben and Funder, Predicting More of the People More of the Time: Assessing the Personality of Situations, 85 Psychological Review 485 (1978).
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Program evaluation incorporating social science perspectives, methods, and data should be seen as a core feature of forensic psychiatry programs and a legitimately funded item within the clinical program.” A prime example of the manner in which program evaluation can assist in clinical decision-making is the analysis of North Carolina incompetency procedures by Roesch and Golding. l1 In order for that state to decide on appropriate modifications clinically, procedurally, and architecturally in its incompetency determinations, a major evaluation of its entire program was conducted. These findings, contrary to initial forensic intentions, supported more modest investments in new buildings and greater use of decentralized, prescreening by forensic paraprofessionals, as well as professionals, which would be both more effective and cheaper than current procedures. Such work does not, of course, assure desired outcomes for clinicians or administrators, but such systematic examinations of clinical processes and outcomes are sorely needed in forensic psychiatry. l2 Administrative
Applications
In many ways the program evaluation uses of social science are, or should be, very much a part of the administrative applications at both the facility level and at the county, state, provincial, and federal level. In fact, the one point that I want to make in this section could almost be included under program evaluation, but operationally it is sufficiently distinct to warrant some separate attention. This point deals with the potential contribution of social science to the development, maintenance, and use of central office forensic data systems. This idea is quite similar to program evaluation in that it centers on the systematic collection and analysis of data to aid decisions about program operations. It is distinct from clinical applications primarily in its emphasis on the data system itself and its location, i.e., in centralized location rather than localized evaluators who are responding to specific substantive questions and opportunities. To demonstrate, let me describe one example in New York. One summer we had a postdoctoral fellow who was interested in persons acquitted by reason of insanity and in their institutional careers. When he began the study it was apparent that the needed data did not exist in a centralized location. While many case folders were retained within the central office record files, many were missing and many that were available had incomplete information such as criminal charges and prior criminal activity. Moreover, in each location that was thought to hold all insanity acquittal records, case records were missing that were in the other location supposedly also containing all records. Thus, one could not determine which cases were actual acquittals and which were incor“An example of this is the proposed Federal Criminal Code (51437) that would mandate research to assess the actual effects of various sentencing provisions. ” Roesch, Determining Competency to Stand Trial: An Examination of Evaluation Procedures in an Institutional Setting, 47 Job Consulting and Clinical Psychology 5 (1979). Roesch, A Brief; Immediate Screening Interview to Determine Competency to Stand Trial, 5 Criminal Justice and Behavior 241 (1978). “The status of such efforts in criminal justice diversion is critically reviewed by Roesch, Does Adult Diversion Work? The Failure of Research in Criminal Justice, 1978 Crime and Delinquency 72.
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rectly filed. A major segment of his research became cleaning up the m-house clinical record system. While he was doing this, the Assistant Commissioner for Forensic Services asked if he would establish a card file system which the Commissioner’s staff could maintain to respond to the many facility, press, and legislative inquiries about insanity acquittals. Such a file was developed. On the one hand, this endeavor was productive in that shortly after the system was developed. an acquittee whose case had received widespread media coverage walked out of a state psychiatric center and the Commissioner was able to use the system for information about the number and location of other acquittees in response to media probings. On the other hand, this effort was a waste, since two years later when I returned to update the research for a special legislative committee. the cards had not been maintained and were of almost no use. Thus, the same procedures that the summer fellow had performed were repeated. I offer this one example to illustrate how social scientists can be productively used in the development and maintenance of administrative data systems. Such systems need not imply massive computerized systems. With the volume of insanity acquittals, incompetent defendants, sexual psychopaths or other legal categories that come under the care and custody of the state or province, well conceived and regularly maintained card systems, which may lend themselves on an ad hoc basis to computerization in local university and private systems are certainly adequate. Regardless of their size, the effective use of social science techniques for centralized forensic data systems can make the administration of forensic facilities much easier and enable administrators to be more responsive to outside demands for information from the whole array of persons, internal and external. to whom forensic administrators are required to respond.13 Litigation
Applications
The usual posture of the forensic psychiatrist in litigation is a defensive one. In this section two uses of social science to change this position will be discussed. The first relates to preparin, 0 briefs. the second involves the follow-up of litigation, especially class action suits. The first instance implies a very close link between the forensic psychiatrist and the social scientist, while the second involves more independent work by the social scientists that, when completed, can be of strategic use to the forensic psychiatrist and his attorneys in future litigation and for program change. Perhaps the dominant feature of the changing role of forensic psychiatrists in the past decade has been the increasing time spent in court in litigation initiated by the patient through various patient advocacy groups. There is no area that has felt the impact of the “revolt of the client”14 more directly than the treatment of the institutionalized mentally ill. While most professions have recently faced a questioning of their autonomy and knowledge, few have faced a ‘3F.urther
applications and ideas relevant to forensic psychiatry can be found in Monahan, ManageSystems, in Psychology and Community Change (Heller and Monahan eds. 1977). and Sussman, Pwfessional Autonomy and the Revolt of‘ the Client, 1 I Social Problems 153
ment Information I’ Haug (1969).
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steadier or more profound attack than psychiatry, especially forensic psychiatry. Unlike the attacks against most other professions which have been spearheaded by the clients themselves, the major source of questions to psychiatry’s professional autonomy has been the legal profession. The increasing flow of mental health litigation and legislation. especially in the past decade, has wrought basic changes in the rights of the mentally ill and conversely has been associated with severely strained relationships between psychiatrists and the legal profession. This state of affairs for psychiatrists has led one psychiatrist to characterize his group as the “belegaled profession.“” In most instances the key cases in the United States have resulted from the efforts of groups such as the American Civil Liberties Union and the Mental Health Law Project. These groups represent some of the most visible examples of a new specialty within law that has burgeoned over the past decade, the mental health legal advocate. In addition to such national groups as the ACLU and the MHLP, some states have developed their own mental health advocacy programs. These usually have been established on ad hoc bases responding to perceived needs for legal services within the context of available resources and on-going state governmental systems. The first statewide service in the U.S. was New York’s Mental Health Information Service founded in 1965. This program was staffed by lawyers and social workers to inform patients of their rights, to assist in revising their legal statuses, and to compile relevant information for the court on hearings for involuntary commitment. Currently, there are approximately 340 mental health advocacy programs in the United States.16 While much of this advocacy and litigation activity has been in the civil area, the forensic psychiatrist too is involved in cases of right to treatment, right to refuse treatment, due process in transfers between prison and mental health facilities, and habeas corpus release petitions. In all of these areas and others a major factor in the effectiveness of patient advocates has been their ability to provide the court with data their staffs have compiled for the facilities in question and to integrate these data with relevant social science and psychiatric research. On the other side, the state attorneys representing the psychiatrists rarely have similarly well developed capabilities. Accordingly, many cases are lost because equally compelling briefs are not developed, although a defense brief with social science inputs could have been developed. In this context, I would like to refer to a section of a report that Professor Alex Brooks and I wrote for the state of Pennsylvania evaluating a pilot mental health advocacy project established by the American Bar Association’s Commission on the Mentally Disabled: Any type of patient rights advocacy system instituted will be functioning within the American legal system which is postulated on an adversarial model. This means that the legal rights and responsibilities are resolved through arguments formulated by counsel for the opposing parties. For this adversarial sys-
“Balance
OfPatients’Righthts, Care Argued,
I6 American Bar Association, vey and Directory (1977).
Legal Advocay
11 Psychiatric Programs
News, 18 (1976). for the Mentally
Disabled:
A Preliminary
Sur-
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tern to work it is assumed that comparable competence is offered by the counsels for each side. If such balance is not realized decisions are made not on the basis of informed judgments from a full set of facts in the context of the appropriate legal precedents, but instead on the greater competence of one side’s counsel. One area of jurisprudence in which such developments have occurred in the last five years is in the area of mental health law. With the advent of patients’ rights advocacy programs throughout the country, such as the Mental Health Law Project, many legal issues have been decided in the courts with state representatives significantly less knowledgeable about mental health law than their adversaries. When this has occurred, neither the state service providers nor the state’s tax payers were properly represented. Also important are the very positive experiences Hospital Legal Advisors have had in programs such as that of the District of Columbia in heading off litigation and staff-patient-lawyer confrontations. It was quite clear in our interviews of the staff at St. Elizabeth’s Hospital that the patient advocates and the hospital staff felt that the patient rights were much more efficiently and pleasantly protected by the presence of staff legal advisors to respond to questions that occurred on a day-to-day basis as well as to represent the hospital when litigation did occur . Without doubt, a crucial feature of any statewide patient advocacy program should be the development of Hospital Legal Advisors assigned on a regional basis to be full-time lawyers informing and representing treatment staff of their duties and rights and working with the patient advocates to best effect the protection of the rights of the person both receiving and providing this treatment.17
New Jersey’s Division of Mental Health Advocacy is as good an example as is available of the sophistication with which the mental health advocates have developed these capabilities. In the mid-1970’s, Division staff initiated a suit against the State of New Jersey’s Greystone Hospital claiming that its treatment program was so inadequate that the facility should be closed. In developing its brief, this office hired a Ph.D. psychologist to scour the hospital records and develop data about the treatment regimes of its patients and the characteristics of the clients including such things as diagnosis, length of stay, prior hospitalization, number of treatment activities per week, demographics, and so forth. This suit never reached trial since a consent order was agreed to by the state in late 1977. While this example is taken from the civil realm, it is directly applicable to the forensic area. The same issues and the same litigation approaches characterize both systems. Likewise, the very successful and skilled mental health advocates’ devices, which include social science data as core segments of their briefs, can also be effectively used by forensic psychiatry. A second manner in which social science can benefit forensic psychiatry in litigation is in assessing the impacts of various class action or individual suits whose decisions are applied to a broader class of patients. A major example of this approach was our “Baxstrom” research. A decision was handed down in February 1966 by the United States Supreme Court which found the state of New York had not given Johnnie Baxstrom equal protection under the 14th Amendment when it detained him in a maximum security mental hospital run by the Department of Correctional Services at the termination of his sentence.
“H
J Steadman
and A. Brooks,
A Program
for Mental Health
Advocay
for Pennsylvania
(1977).
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As a result of this decision, 967 patients were transferred from two maximum security facilities housing mentally ill inmates and defendants incompetent to stand trial to regular security civil mental hospitals between March and August 1966. In 1970, we undertook a follow-up to determine how much trouble patients had caused and encountered after their transfers. these “Baxstrom” Generally, they produced much less trouble than anyone had expected.18 A very similar follow-up study of a Pennsylvania decision, Dixon v. Attorney General of the Commonwealth of Pennsylvania, l9 dealing with the same issue, has been completed recently by Thornberry and Jacoby.” In New Jersey, Singer *’ studied the sequelae of a New Jersey Supreme Court decision specifying equal protection rights for persons acquitted by reason of insanity. In State v. Krol ** it was determined that persons acquitted by reason of insanity must be treated substantially the same as civilly committed patients. Thus, after acquittal a person was committed for a 60-day examination period during which his/her present mental state and dangerousness were evaluated. Singer examined the characteristics of the 46 Krol cases in one county to assess the actual impact of the decision. She carried out this study while working in New Jersey’s Division of Mental Health Advocacy whose use of social science data in litigation was discussed above. She concluded that much detention continues to exist which would not be permitted if medical standards alone were applied. There are two further examples of follow-up research on court decisions that are both worth noting in this context. Harris23 examined the impact of judicial decisions and guidelines for mental health services to local jails in four jurisdictions. She concluded that the main direct effects were decreased jail brutality and less inappropriate punishment. However, she felt that the experience in these four jurisdictions provided no demonstration that the courts could be expected to be sources of affirmative social change. In a number of ways these findings are similar to those of Leap4 on the impact of the Wyatt v. Stickney decision on state mental hospitals in Alabama. He concluded that while there were some improvements, they were much more limited than might have been anticipated by the comprehensiveness and specificity of the guidelines. Both follow-up analyses strongly suggested that the actual impacts of local and federal court decisions on mental health services in jails are unclear, but probably more limited than is often presumed. In sum, for litigation in which forensic psychiatrists more and more frequently find themselves involved and in the evaluation of the impacts of judicial decisions and consent decrees, social science can be of great use to forensic laH. J. Steadman and J. J. Cocozza, Careers of the Criminally Insane (1974). I9325 F. Supp. 966 (1971). “T. P. Thornberry and .I. E. Jacoby, The Criminally Insane: A Community Follow-Up of Mentally Ill Offenders (1979). ” Singer, Insanity Acquittals in the Seventies: Observations and Empirical Analysis of One Jurisdiction, 2 Mental Disability Law Reporter 406 (1978). “68 N. J. 236; 344 A 2d 289 (1975). 23 K. Harris, Implementation of Court Orders (Presented at Mental Health Services in Local Jails Conference, Baltimore, 1978). z4P ,. J Leaf , Whatever Happended Sociological Society, St. Louis, 1976).
to Wyatt v. Stickney?
(Presented
at Annual
Meeting
of Midwest
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psychiatry. In many ways some of the oppressive litigation pressure they are currently encountering can be attributed to the effective use of these very devices by mental health advocates. There is no reason why these tools should not be employed by the psychiatrists and administrators themselves. In fact, were these tools to be more frequently used and more honed, there well may be instances where the psychiatric community would wish to instigate litigation to better conditions or to provide what they perceive to be more adequate checks and balances for forensic psychiatry in the courts. Legislative Applications This final set of social science applications is closely allied with litigation uses. Again, the social science capability may be used in either a “defensive” or “offensive” posture. It can provide information to take issue with proposed legislation or it can be the basis for drafting legislation. Let us look at three examples of the latter situation first. A well known instance of using social science data in proposing draft legislation was the position paper of the English National Association for Mental Health (MIND), A Human Condition, which researched its effectiveness and proposed modifications of the 1959 Mental Health Act. A core portion of this document was its analysis of the medical model in both civil and criminal realms and the manner in which it restricted patients’ rights. This document is a good example of the use of social science to develop legislative proposals. One important point that is demonstrated both by MIND’s development of specific conclusions that reflect the political realities of implementation and by their dissemination via legislative committees is the need for social science data to be presented with political savvy. This does not mean avoiding unpopular positions that flow from the data. Rather, it means that effective impact requires an understanding of fiscal and political contexts in which the forensic programs function. From this understanding and from the data, proposals can be constructed that will not necessarily remain only the grist for academic jousting. Social science becomes an optimum device for legislative reform when it is skillfully interwoven with fiscal realism, legal precedent and moral principle. In addition to the MIND report, there are at least two other useful examples of this type of use of social science that cut across all types of psychiatric legislative reform. The first is a White Paper developed to aid in revising the insanity defense statutes.25 This document was written by an attorney, two psychiatrists and a sociologist. The arguments were developed from case law, psychoanalytic theory, administrative realities, and empirical data on the actual outcomes of acquittals and professionals’ views of the defense’s use. While legislative change has yet to result due to a variety of political and substantive factors, this report is a prime example of how social science can be effectively employed for forensic psychiatry. A final example is drawn from the Canadian data reported by Quinsey and
25Sup~a
note 4
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Boyd.26 Thev did a nationwide survey of persons detained under warrants of the Lieutenant Governor (WLG’s) to determine just how dangerous these persons were. Their concern was whether release statutes for WLG’s, which were more restrictive than for involuntary civil patients, were warranted empirically. In their sample of 652 WLG’s they concluded that this group was no more dangerous than involuntary civil patients held in the same facilities or persons convicted of similar crimes serving fixed sentences in correctional facilities. Thus they found no empirical support for stricter, more extensive review procedures for WLG’s release. While this study was not commissioned to initiate or to respond to proposed legislative change, the application of its findings to such change is obvious. Of course, this study also shows the need to supplement social science data with the other trappings of the political reform process mentioned above. No single study, whether written and disseminated in a style that might be digested by legislators or, worse, simply published in a professional journal can be expected to generate statutory change. However, when such studies are combined with the legal, medical, and administrative forces that are involved in the forensic detention and treatment systems, social science approaches can facilitate change. Before leaving the legislative area, it is important to note that just as with litigation, social science can be productive in evaluating the impacts of revisions which do occur. The one example I would offer here is our study analyzing the impacts of a revision in New York’s Criminal Procedure Law (CPL) in 1971 which shifted the responsibility for the treatment of defendants found incompetent to stand trial from the Department of Correctional Services to the Department of Mental Hygiene. The 539 defendants found incompetent during the first year of the CPL were followed for three years to determine what happened to them and whether their treatment program under Mental Hygiene was able to move beyond the merely custodial arrangements under Corrections. Overall, the defendants were found to be incapacitated about as long as if they had passed through normal criminal justice procedures27 and the facility did become more humane, although it did not attain during the study period the treatment orientation it sought at the time of the changeover.28 Going beyond this one case study, it should be apparent that the use of social science to monitor the effects of legislation that directly or indirectly impacts on the practices of forensic psychiatry are numerous, but virtually undeveloped. When these possibilities are linked with the potential for initiating legislation reviewed at the beginning of this section, it is clear that there are many untapped uses of social science that can be effectively used by forensic psychiatry. Conclusions I have attempted here to indicate some ways in which social science perspectives, methods and data can be productively used by forensic psychiatry in clin26Quinsey and Boyd, An Assessment of Characteristics and Dangerousness of Patients Held on Warrants of the Lieutenant Governor, 4 Crime and Justice 268 (1977). 27H. .I. Steadman, Beating a Rap?: Defendants Found Incompetent to Stand Trial (1979). “Steadman, Cocozza and Lee, From Maximum Security to Secure Treatment.. Organizational Constraints, 37 Human Organization 276 (1978).
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ical, administrative, litigative, and legislative settings. Before concluding this overview there are a couple of implications that need to be made explicit. The first is the relationship implied between the social scientist and the forensic psychiatrist or administrator. What should be evident in the proposed applications is that the social scientist and forensic practitioners may have a variety of working relationships. There is the integrated team model employed by Kozol and colleagues. In the other areas analyzed here it may be as productive to think more simply of collaborators. That is, while it may be crucial for clinical applications and certain program evaluations to have a fairly close, regular working relationship, for the litigation and legislative work, much less direct and regular contact would be required. What is required is a clear and shared understanding by the forensic practitioners and social scientists of the program goals, the necessary timetable, and the form of the final product. This point about collaboration brings me to my closing thrust. All is not rosy between social scientists and forensic psychiatry. This results from often opposing models of social control and fundamental discrepancies in the acceptance of any medical model. Many times, however, even when these core differences are resolvable, social science delivers little in the areas discussed here due to scientists’ inability to translate their findings into intelligible, basic findings that are applicable to the programs or statutes in question and are delivered in a timely fashion. Further, too often academic deadlines permit much more leeway than the matters of state or the exigencies of court hearings can accept. On the other side, there is often the need in program evaluation endeavors for the evaluation component to be developed prior to, or at least simultaneously with, the service program. Within the regulations dealing with the protection of human subjects, program evaluation may require randomized assignments or special control groups that necessitate adjustments to the normal institution routine. Thus, to optimize, or even to produce minimally rigorous data, forensic psychiatrists and administrators must be flexible and open, not rigid and combative as has too often been the case. In closing, it is crucial to mention that much of the collaboration being suggested here cannot be expected to occur unless more consideration is given to the inclusion of social scientists as both students and faculty in forensic psychiatry training programs. It is important at both the predoctoral and postdoctoral level for social scientists who might wish to become involved in forensic psychiatry to have the opportunity to be introduced at a relatively sophisticated level to the concepts, techniques, and law of this field. Likewise, it is important that psychiatric residents become aware of the potential value that social science can have when effectively applied to their substantive concerns. An ideal point to do this would be residency programs in forensic psychiatry. One excellent example of this approach in the field of general psychiatry has been described by Klerman, and colleagues.*’ It is frustrating to encounter groups such as the American Academy of Psychiatry and the Law whose name implies some interdisciplinary group inter29Klerman, Morrissey 35 Arch. Gen. Psychiatry
and Goldman, 1469 (1978).
Training Psychiatrists
in Social Research:
Problems
andProspects,
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ested in forensic psychiatry only to find that this group is open to psychiatrists and is primarily concerned with issues of certification in forensic psychiatry. Whether more interdisciplinary groups such as the Law and Society Association which is not presently focused on forensic psychiatry issues can help fill this void remains to be seen. Meanwhile, social scientists have much to learn to maximize their contributions to forensic psychiatry. We need more opportunities to demonstrate what these contributions can be so that ideologies and practices may change. In addition, pressure needs to be exerted by forensic psychiatrists and administrators on local, state, provincial, federal and professional groups to develop funding and job titles to more effectively use social science in their own behalf rather than settling for being the victims of social science in the courts and legislatures.
in the
Journal U.S.A.
of Lawand All
nghts
Psychiatry,
Vol.
2, pp.
519-531,
1979
reserved.
0160.2527/79/040519-13$02.00/O Copyright
0
1980
Pergamon
Press
Ltd
The Use of Social Science in Forensic Psychiatry Henry J. Steadman”
One view of the uses of social science for forensic 1873 by this specialty’s founding father, Issac Ray:
psychiatry
was offered
in
Statistics which are not really statistics are worse than useless; and the reason is that they beguile the student with a show of knowledge and thus take away the main inducement to further inquiry. Why should he look further for truth when it already lies before him? Some of the prevalent errors respecting insanity and the insane are fairly attributable to these vicious statistics, for figures make a deeper impression on the mind than the most cogent arguments.’
Whether or not one agrees with Ray’s assertion of the primacy of statistics over “cogent arguments,” his observations epitomize the widely held view that statistics can be made to say anything and are to be considered suspicious in every instance. So, in the practice of any profession, including forensic psychiatry, it is the well reasoned argument based on precept and precedent plus sound clinical judgements upon which decisions must be made. It is my contention that forensic psychiatrists’ arguments often are not “well reasoned” and are deprecated due to their lack of systematic empirical data. The focus of this paper is not only the statistics produced by the social sciences, but also their perspectives and methods. Nevertheless, it is the data produced by these methods and perspectives that are most directly and obviously of use to the practice of forensic psychiatry and therefore will be the dominant thrust of this analysis. Returning to Issac Ray for a moment, it is important at the outset to recognize that the real problem with which he was dealing was the misuse of statistics or social science data. Such misuses have many sources both intentional and unintentional, ranging from the tendency to present only certain portions of a data set that support one’s arguments, to citing only those articles that support one’s position, and inappropriately applying a citation to a subject group significantly different from that on which the cited research was done. One example of this last type of problem is seen in A Human Condition developed by the English National Association for Mental Health (MIND) in response to a proposed revision of the 1959 English Mental Health Act. In their analysis of dangerousness they claim that “a behavioural scientist . . . can make reasonPresented at the Third International Symposium on Law and Psychiatry, Vancouver, British Columbia, Canada, May 10-13, 1979. This paper reflects the thoughtful comments of Jeraldine Braff, John Monahan, and Joseph P. Morrissey. *Director, Bureau of Special Projects Research, New York State Department of Mental Hygiene, Albany, New York 12229. ’ I. Ray, Contribution to Mental Pathology (1873). 519
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ably accurate predrctrons that terrain classes ot people will engage m vrolent behaviour in a short perrod of time” is not supported by the research on the mentally ill, assummg rhat one acceprs usual legal standards of’proof.’ Yet, the cttation for the assertron is research on juvenile offenders rather than on the mentally ill group to whom rne research f’indmgs arc applied. Obviously, in an arena as politically charged as the field of forensic psychiatry it is to be expected that advocacy periodically will lead to certain nrrsuses of available ini‘orrnarron. in fact, forensic psychiatrrsts, admimstrators, and support professionals in forensic facilities are only too aware of the manner in which skilled patrent aavocates have used social scrence data against them. What 1 will attcmpr to demonscraw here is how for forensic psychiatrrsts, especially those practrcirig in goverrlmenr corrtexts, social science can be of substantial use in clinical, adminrstrative, htigative, and legislative areas. The field ot forensic psychiatry could profit from much rnore attention to social scierrce both in the ‘-offensive” sense of improving treatrnent, assessment, adsense of more effectively reministratron. and statutes, and in a “defensive” sponding to litigatron and proposed legislation. Because of a wider range of examples, most of the illustratrons of social science applications to forensic psychiatry will center on the criminal realm. However, applications to other realms should be evident. First, let us exarnine some of the clinical uses ot’ social science. Clinical Applications A major potential use for social science data in the clinical process relates to admrssron and release decisions. Admission decisions may involve admission or non-admission or classification as to placement based on security precautions. Release decisions are rnore varied. For example, Petrunick describes a key Canadian ~SSLI~, A cation expiry made cause prove
major problem of concern to the crimmal justice system Iies in the certifiof offenders alleged to be mentally disordered and dangerous upon the of their sentence or release on mandatory supervision. Criticisms are by correctional officials that such certification is diffiult to accomplish beof the reluctance of mental health officiais to accept patients who may to be highly disruptive.3
A frequent American dilemma of release occurs after acquittal by reason of insanity where both medical and criminal court approval is required.4 In addition to decision-making at these key junctures, social science can be extremely helpful in the area of program evaluation of forensic treatment programs, and as follow-up to decisions by examining, for instance, recidivism after release or assessments of familiy functioning following a child custudy decision. Let us look at some specific situations. *L. 0. Gostin.
A Human Condition (1976, 1978).
3M. Petrunik. The Dangerousness Concept in Canadian Mental Health Legislation: The Case of Dangerous Mentally Disordered Persons and the Criminally Insane (Presented at World Congress of Sociology, Uppsala. Sweden. 1978). “W. Carnhan L. Kolb, H. J. Steadman and J. Wright, The Insanity Defense in New York (1978).
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The best example I have seen in the literature of the potential social science contribution to the admission decision-making process is in Kozol’s description of a program for dangerous sex offenders that was operative at Bridgewater State Hospital in Massachusetts in 1972. Each diagnostic study is based on clinical examinations, psychological tests, and a meticulous reconstruction of the life history elicited from multiple sources ~ the patient himself; his family, friends, neighbors, teachers, and employers; and court correctional, and mental hospital records. The clinical examinations are made independently by at least two psychiatrists, two psychologists. a social worker, and others .. Of paramount importance is a meticulous description of the actual assault. The potential for violent assaultiveness is the core of our diagnostic problem, and the description of the aggressor in action is often the most valuable single source of information. The patient’s version is compared with the victim’s version. In many cases we interview the victims ourselves. Our most serious errors in diagnosis have been made when we ignored the details in the description of the assault. How was the victim chosen? Was the choice specific and meaningful or was it random and incidental? What was the victim in the aggressor’s eyes?5
These procedures described by Kozol highlight two dimensions in the assessment process for the forensic psychiatrist for which social scientists may be constructively utilized. The first is a conceptual one ~ the specification of the situational contexts in which past behaviors of concern have occurred. with special emphasis on the community. The second contribution is in the systematic compilation of these factors in any given case. The adequate consideration of the situational context of violence, a dominating feature of most forensic psychiatric assessments for admission, placement and release. can benefit tremendously from a social science perspective and data collection. One proponent of a social science, situationally oriented approach to understanding violence in forensic settings is the correctional psychologist. Edwin Megargee, who has observed: The importance of situational factors has already been emphasized. These include immediate specific factors such as the availability of a weapon, the presence of onlookers, and the behavior of a potential victim, but more pervasive situational variables such as the level of frustration in the environment, or the social approval of violence in a particular subculture should also be considered. Situational factors can either facilitate or impede dangerous behavior. A gun in the hand of an angry man can facilitate his committing an act of violence, but if, instead, the gun is in the hand of his potential victim, it is more likely to inhibit his dangerous behavior. One reason behavioral scientists can predict college achievement more accurately than dangerous behavior is that academia presents each student with standard situations and similar stimuli, whereas the situations and milieus to be confronted by mental patients and parolees in the community seem infinitely more variable.6
This perspective suggests that social sicentists with varied levels of training and experience could productively contribute to many forensic workups as part 5Kozol, Boucher and Garofalo, The Diagnosis and Treatment of Dangerousness, 18 Crime and Delinquency (1972). 6 Megargee, The Prediction of Dangerous Behavior, 3 Criminal Justice and Behavior 3 (1976).
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of a team. Their major contribution would be in combing record data, interviewing persons involved in recent and distant incidents of violence or any other behaviors considered crucial to the assessment process, and to compile the data in a manner that permitted it to be factored into the assessment, placement, or release process. An essential feature of any work in regard to situational factors would be the analysis of the environments into which the person might be placed. Evolving research is demonstrating quite convincingly the lack of relationship between behavior within maximum and regular security mental hospitals and in the community.7 Likewise, it is probable that behavior in one type of inpatient environment may not be associated with behavior in another type of inpatient environment.8 Thus, part of the social science input into clinical processes would be to research both the past environments and situations of violence (or any other behaviors of interest) and the environments and situations into which the various placement options might locate the patient.9 Then some recommendations about the possible implications of the various options might be offered. Such an assignment would require skills not only in data collection and analysys, but also in synthesizing the research literature with which most of the clinical staff would not be familiar. Thus far in this section on clinical applications, program evaluation has been given little attention. 1 have done this because program evaluation is probably the most obvious clinical application of social science for forensic psychiatry. Regardless of what treatment or custodial program may already exist, there is a need to determine how effective it is. Clearly, if security is a main program goal, a simple count of what may be very infrequent escapes provides the necessary data base. However, in other instances, either for units within larger programs or entire programs, the director, the staff, the press, the public, and the legislature want to know if the program is working. Usually what the public, press, and legislatures mean by “working” is whether people are escaping and whether recidivism is being reduced, even though neither may be the goal of the treatment program. Regardless, unless some sort of regular records are maintained and unless a facility or program has the capacity to design new programs in a manner that permits some determination of the results, forensic psychiatry becomes a high burn-out profession ~ in part due to the fact that the only results seen are the numerous failures who return over and over again. It is striking that while the state of New York, as one case in point, has a very well developed Bureau of Program Evaluation within its central office, and while practically all the civil mental hospitals have on-site program evaluators, one forensic center in the state has no program evaluators and the second has but one. Where others have been requested, at some stage of the budget review process the requests have been trimmed by budget analysts or legislative aides as not being important to the forensic programs. Such should not be the case. ‘H. J. Steadman, Special Problems in the Prediction of Violence Among the Mentally Ill (Presented at Symposium on Violence and the Violent Individual, Houston, Texas, 1978). a R. Moos, Assessing Treatment Environments: A Social Ecological Approach (1974). 9 Ben and Funder, Predicting More of the People More of the Time: Assessing the Personality of Situations, 85 Psychological Review 485 (1978).
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Program evaluation incorporating social science perspectives, methods, and data should be seen as a core feature of forensic psychiatry programs and a legitimately funded item within the clinical program.” A prime example of the manner in which program evaluation can assist in clinical decision-making is the analysis of North Carolina incompetency procedures by Roesch and Golding. l1 In order for that state to decide on appropriate modifications clinically, procedurally, and architecturally in its incompetency determinations, a major evaluation of its entire program was conducted. These findings, contrary to initial forensic intentions, supported more modest investments in new buildings and greater use of decentralized, prescreening by forensic paraprofessionals, as well as professionals, which would be both more effective and cheaper than current procedures. Such work does not, of course, assure desired outcomes for clinicians or administrators, but such systematic examinations of clinical processes and outcomes are sorely needed in forensic psychiatry. l2 Administrative
Applications
In many ways the program evaluation uses of social science are, or should be, very much a part of the administrative applications at both the facility level and at the county, state, provincial, and federal level. In fact, the one point that I want to make in this section could almost be included under program evaluation, but operationally it is sufficiently distinct to warrant some separate attention. This point deals with the potential contribution of social science to the development, maintenance, and use of central office forensic data systems. This idea is quite similar to program evaluation in that it centers on the systematic collection and analysis of data to aid decisions about program operations. It is distinct from clinical applications primarily in its emphasis on the data system itself and its location, i.e., in centralized location rather than localized evaluators who are responding to specific substantive questions and opportunities. To demonstrate, let me describe one example in New York. One summer we had a postdoctoral fellow who was interested in persons acquitted by reason of insanity and in their institutional careers. When he began the study it was apparent that the needed data did not exist in a centralized location. While many case folders were retained within the central office record files, many were missing and many that were available had incomplete information such as criminal charges and prior criminal activity. Moreover, in each location that was thought to hold all insanity acquittal records, case records were missing that were in the other location supposedly also containing all records. Thus, one could not determine which cases were actual acquittals and which were incor“An example of this is the proposed Federal Criminal Code (51437) that would mandate research to assess the actual effects of various sentencing provisions. ” Roesch, Determining Competency to Stand Trial: An Examination of Evaluation Procedures in an Institutional Setting, 47 Job Consulting and Clinical Psychology 5 (1979). Roesch, A Brief; Immediate Screening Interview to Determine Competency to Stand Trial, 5 Criminal Justice and Behavior 241 (1978). “The status of such efforts in criminal justice diversion is critically reviewed by Roesch, Does Adult Diversion Work? The Failure of Research in Criminal Justice, 1978 Crime and Delinquency 72.
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rectly filed. A major segment of his research became cleaning up the m-house clinical record system. While he was doing this, the Assistant Commissioner for Forensic Services asked if he would establish a card file system which the Commissioner’s staff could maintain to respond to the many facility, press, and legislative inquiries about insanity acquittals. Such a file was developed. On the one hand, this endeavor was productive in that shortly after the system was developed. an acquittee whose case had received widespread media coverage walked out of a state psychiatric center and the Commissioner was able to use the system for information about the number and location of other acquittees in response to media probings. On the other hand, this effort was a waste, since two years later when I returned to update the research for a special legislative committee. the cards had not been maintained and were of almost no use. Thus, the same procedures that the summer fellow had performed were repeated. I offer this one example to illustrate how social scientists can be productively used in the development and maintenance of administrative data systems. Such systems need not imply massive computerized systems. With the volume of insanity acquittals, incompetent defendants, sexual psychopaths or other legal categories that come under the care and custody of the state or province, well conceived and regularly maintained card systems, which may lend themselves on an ad hoc basis to computerization in local university and private systems are certainly adequate. Regardless of their size, the effective use of social science techniques for centralized forensic data systems can make the administration of forensic facilities much easier and enable administrators to be more responsive to outside demands for information from the whole array of persons, internal and external. to whom forensic administrators are required to respond.13 Litigation
Applications
The usual posture of the forensic psychiatrist in litigation is a defensive one. In this section two uses of social science to change this position will be discussed. The first relates to preparin, 0 briefs. the second involves the follow-up of litigation, especially class action suits. The first instance implies a very close link between the forensic psychiatrist and the social scientist, while the second involves more independent work by the social scientists that, when completed, can be of strategic use to the forensic psychiatrist and his attorneys in future litigation and for program change. Perhaps the dominant feature of the changing role of forensic psychiatrists in the past decade has been the increasing time spent in court in litigation initiated by the patient through various patient advocacy groups. There is no area that has felt the impact of the “revolt of the client”14 more directly than the treatment of the institutionalized mentally ill. While most professions have recently faced a questioning of their autonomy and knowledge, few have faced a ‘3F.urther
applications and ideas relevant to forensic psychiatry can be found in Monahan, ManageSystems, in Psychology and Community Change (Heller and Monahan eds. 1977). and Sussman, Pwfessional Autonomy and the Revolt of‘ the Client, 1 I Social Problems 153
ment Information I’ Haug (1969).
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steadier or more profound attack than psychiatry, especially forensic psychiatry. Unlike the attacks against most other professions which have been spearheaded by the clients themselves, the major source of questions to psychiatry’s professional autonomy has been the legal profession. The increasing flow of mental health litigation and legislation. especially in the past decade, has wrought basic changes in the rights of the mentally ill and conversely has been associated with severely strained relationships between psychiatrists and the legal profession. This state of affairs for psychiatrists has led one psychiatrist to characterize his group as the “belegaled profession.“” In most instances the key cases in the United States have resulted from the efforts of groups such as the American Civil Liberties Union and the Mental Health Law Project. These groups represent some of the most visible examples of a new specialty within law that has burgeoned over the past decade, the mental health legal advocate. In addition to such national groups as the ACLU and the MHLP, some states have developed their own mental health advocacy programs. These usually have been established on ad hoc bases responding to perceived needs for legal services within the context of available resources and on-going state governmental systems. The first statewide service in the U.S. was New York’s Mental Health Information Service founded in 1965. This program was staffed by lawyers and social workers to inform patients of their rights, to assist in revising their legal statuses, and to compile relevant information for the court on hearings for involuntary commitment. Currently, there are approximately 340 mental health advocacy programs in the United States.16 While much of this advocacy and litigation activity has been in the civil area, the forensic psychiatrist too is involved in cases of right to treatment, right to refuse treatment, due process in transfers between prison and mental health facilities, and habeas corpus release petitions. In all of these areas and others a major factor in the effectiveness of patient advocates has been their ability to provide the court with data their staffs have compiled for the facilities in question and to integrate these data with relevant social science and psychiatric research. On the other side, the state attorneys representing the psychiatrists rarely have similarly well developed capabilities. Accordingly, many cases are lost because equally compelling briefs are not developed, although a defense brief with social science inputs could have been developed. In this context, I would like to refer to a section of a report that Professor Alex Brooks and I wrote for the state of Pennsylvania evaluating a pilot mental health advocacy project established by the American Bar Association’s Commission on the Mentally Disabled: Any type of patient rights advocacy system instituted will be functioning within the American legal system which is postulated on an adversarial model. This means that the legal rights and responsibilities are resolved through arguments formulated by counsel for the opposing parties. For this adversarial sys-
“Balance
OfPatients’Righthts, Care Argued,
I6 American Bar Association, vey and Directory (1977).
Legal Advocay
11 Psychiatric Programs
News, 18 (1976). for the Mentally
Disabled:
A Preliminary
Sur-
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tern to work it is assumed that comparable competence is offered by the counsels for each side. If such balance is not realized decisions are made not on the basis of informed judgments from a full set of facts in the context of the appropriate legal precedents, but instead on the greater competence of one side’s counsel. One area of jurisprudence in which such developments have occurred in the last five years is in the area of mental health law. With the advent of patients’ rights advocacy programs throughout the country, such as the Mental Health Law Project, many legal issues have been decided in the courts with state representatives significantly less knowledgeable about mental health law than their adversaries. When this has occurred, neither the state service providers nor the state’s tax payers were properly represented. Also important are the very positive experiences Hospital Legal Advisors have had in programs such as that of the District of Columbia in heading off litigation and staff-patient-lawyer confrontations. It was quite clear in our interviews of the staff at St. Elizabeth’s Hospital that the patient advocates and the hospital staff felt that the patient rights were much more efficiently and pleasantly protected by the presence of staff legal advisors to respond to questions that occurred on a day-to-day basis as well as to represent the hospital when litigation did occur . Without doubt, a crucial feature of any statewide patient advocacy program should be the development of Hospital Legal Advisors assigned on a regional basis to be full-time lawyers informing and representing treatment staff of their duties and rights and working with the patient advocates to best effect the protection of the rights of the person both receiving and providing this treatment.17
New Jersey’s Division of Mental Health Advocacy is as good an example as is available of the sophistication with which the mental health advocates have developed these capabilities. In the mid-1970’s, Division staff initiated a suit against the State of New Jersey’s Greystone Hospital claiming that its treatment program was so inadequate that the facility should be closed. In developing its brief, this office hired a Ph.D. psychologist to scour the hospital records and develop data about the treatment regimes of its patients and the characteristics of the clients including such things as diagnosis, length of stay, prior hospitalization, number of treatment activities per week, demographics, and so forth. This suit never reached trial since a consent order was agreed to by the state in late 1977. While this example is taken from the civil realm, it is directly applicable to the forensic area. The same issues and the same litigation approaches characterize both systems. Likewise, the very successful and skilled mental health advocates’ devices, which include social science data as core segments of their briefs, can also be effectively used by forensic psychiatry. A second manner in which social science can benefit forensic psychiatry in litigation is in assessing the impacts of various class action or individual suits whose decisions are applied to a broader class of patients. A major example of this approach was our “Baxstrom” research. A decision was handed down in February 1966 by the United States Supreme Court which found the state of New York had not given Johnnie Baxstrom equal protection under the 14th Amendment when it detained him in a maximum security mental hospital run by the Department of Correctional Services at the termination of his sentence.
“H
J Steadman
and A. Brooks,
A Program
for Mental Health
Advocay
for Pennsylvania
(1977).
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As a result of this decision, 967 patients were transferred from two maximum security facilities housing mentally ill inmates and defendants incompetent to stand trial to regular security civil mental hospitals between March and August 1966. In 1970, we undertook a follow-up to determine how much trouble patients had caused and encountered after their transfers. these “Baxstrom” Generally, they produced much less trouble than anyone had expected.18 A very similar follow-up study of a Pennsylvania decision, Dixon v. Attorney General of the Commonwealth of Pennsylvania, l9 dealing with the same issue, has been completed recently by Thornberry and Jacoby.” In New Jersey, Singer *’ studied the sequelae of a New Jersey Supreme Court decision specifying equal protection rights for persons acquitted by reason of insanity. In State v. Krol ** it was determined that persons acquitted by reason of insanity must be treated substantially the same as civilly committed patients. Thus, after acquittal a person was committed for a 60-day examination period during which his/her present mental state and dangerousness were evaluated. Singer examined the characteristics of the 46 Krol cases in one county to assess the actual impact of the decision. She carried out this study while working in New Jersey’s Division of Mental Health Advocacy whose use of social science data in litigation was discussed above. She concluded that much detention continues to exist which would not be permitted if medical standards alone were applied. There are two further examples of follow-up research on court decisions that are both worth noting in this context. Harris23 examined the impact of judicial decisions and guidelines for mental health services to local jails in four jurisdictions. She concluded that the main direct effects were decreased jail brutality and less inappropriate punishment. However, she felt that the experience in these four jurisdictions provided no demonstration that the courts could be expected to be sources of affirmative social change. In a number of ways these findings are similar to those of Leap4 on the impact of the Wyatt v. Stickney decision on state mental hospitals in Alabama. He concluded that while there were some improvements, they were much more limited than might have been anticipated by the comprehensiveness and specificity of the guidelines. Both follow-up analyses strongly suggested that the actual impacts of local and federal court decisions on mental health services in jails are unclear, but probably more limited than is often presumed. In sum, for litigation in which forensic psychiatrists more and more frequently find themselves involved and in the evaluation of the impacts of judicial decisions and consent decrees, social science can be of great use to forensic laH. J. Steadman and J. J. Cocozza, Careers of the Criminally Insane (1974). I9325 F. Supp. 966 (1971). “T. P. Thornberry and .I. E. Jacoby, The Criminally Insane: A Community Follow-Up of Mentally Ill Offenders (1979). ” Singer, Insanity Acquittals in the Seventies: Observations and Empirical Analysis of One Jurisdiction, 2 Mental Disability Law Reporter 406 (1978). “68 N. J. 236; 344 A 2d 289 (1975). 23 K. Harris, Implementation of Court Orders (Presented at Mental Health Services in Local Jails Conference, Baltimore, 1978). z4P ,. J Leaf , Whatever Happended Sociological Society, St. Louis, 1976).
to Wyatt v. Stickney?
(Presented
at Annual
Meeting
of Midwest
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psychiatry. In many ways some of the oppressive litigation pressure they are currently encountering can be attributed to the effective use of these very devices by mental health advocates. There is no reason why these tools should not be employed by the psychiatrists and administrators themselves. In fact, were these tools to be more frequently used and more honed, there well may be instances where the psychiatric community would wish to instigate litigation to better conditions or to provide what they perceive to be more adequate checks and balances for forensic psychiatry in the courts. Legislative Applications This final set of social science applications is closely allied with litigation uses. Again, the social science capability may be used in either a “defensive” or “offensive” posture. It can provide information to take issue with proposed legislation or it can be the basis for drafting legislation. Let us look at three examples of the latter situation first. A well known instance of using social science data in proposing draft legislation was the position paper of the English National Association for Mental Health (MIND), A Human Condition, which researched its effectiveness and proposed modifications of the 1959 Mental Health Act. A core portion of this document was its analysis of the medical model in both civil and criminal realms and the manner in which it restricted patients’ rights. This document is a good example of the use of social science to develop legislative proposals. One important point that is demonstrated both by MIND’s development of specific conclusions that reflect the political realities of implementation and by their dissemination via legislative committees is the need for social science data to be presented with political savvy. This does not mean avoiding unpopular positions that flow from the data. Rather, it means that effective impact requires an understanding of fiscal and political contexts in which the forensic programs function. From this understanding and from the data, proposals can be constructed that will not necessarily remain only the grist for academic jousting. Social science becomes an optimum device for legislative reform when it is skillfully interwoven with fiscal realism, legal precedent and moral principle. In addition to the MIND report, there are at least two other useful examples of this type of use of social science that cut across all types of psychiatric legislative reform. The first is a White Paper developed to aid in revising the insanity defense statutes.25 This document was written by an attorney, two psychiatrists and a sociologist. The arguments were developed from case law, psychoanalytic theory, administrative realities, and empirical data on the actual outcomes of acquittals and professionals’ views of the defense’s use. While legislative change has yet to result due to a variety of political and substantive factors, this report is a prime example of how social science can be effectively employed for forensic psychiatry. A final example is drawn from the Canadian data reported by Quinsey and
25Sup~a
note 4
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Boyd.26 Thev did a nationwide survey of persons detained under warrants of the Lieutenant Governor (WLG’s) to determine just how dangerous these persons were. Their concern was whether release statutes for WLG’s, which were more restrictive than for involuntary civil patients, were warranted empirically. In their sample of 652 WLG’s they concluded that this group was no more dangerous than involuntary civil patients held in the same facilities or persons convicted of similar crimes serving fixed sentences in correctional facilities. Thus they found no empirical support for stricter, more extensive review procedures for WLG’s release. While this study was not commissioned to initiate or to respond to proposed legislative change, the application of its findings to such change is obvious. Of course, this study also shows the need to supplement social science data with the other trappings of the political reform process mentioned above. No single study, whether written and disseminated in a style that might be digested by legislators or, worse, simply published in a professional journal can be expected to generate statutory change. However, when such studies are combined with the legal, medical, and administrative forces that are involved in the forensic detention and treatment systems, social science approaches can facilitate change. Before leaving the legislative area, it is important to note that just as with litigation, social science can be productive in evaluating the impacts of revisions which do occur. The one example I would offer here is our study analyzing the impacts of a revision in New York’s Criminal Procedure Law (CPL) in 1971 which shifted the responsibility for the treatment of defendants found incompetent to stand trial from the Department of Correctional Services to the Department of Mental Hygiene. The 539 defendants found incompetent during the first year of the CPL were followed for three years to determine what happened to them and whether their treatment program under Mental Hygiene was able to move beyond the merely custodial arrangements under Corrections. Overall, the defendants were found to be incapacitated about as long as if they had passed through normal criminal justice procedures27 and the facility did become more humane, although it did not attain during the study period the treatment orientation it sought at the time of the changeover.28 Going beyond this one case study, it should be apparent that the use of social science to monitor the effects of legislation that directly or indirectly impacts on the practices of forensic psychiatry are numerous, but virtually undeveloped. When these possibilities are linked with the potential for initiating legislation reviewed at the beginning of this section, it is clear that there are many untapped uses of social science that can be effectively used by forensic psychiatry. Conclusions I have attempted here to indicate some ways in which social science perspectives, methods and data can be productively used by forensic psychiatry in clin26Quinsey and Boyd, An Assessment of Characteristics and Dangerousness of Patients Held on Warrants of the Lieutenant Governor, 4 Crime and Justice 268 (1977). 27H. .I. Steadman, Beating a Rap?: Defendants Found Incompetent to Stand Trial (1979). “Steadman, Cocozza and Lee, From Maximum Security to Secure Treatment.. Organizational Constraints, 37 Human Organization 276 (1978).
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ical, administrative, litigative, and legislative settings. Before concluding this overview there are a couple of implications that need to be made explicit. The first is the relationship implied between the social scientist and the forensic psychiatrist or administrator. What should be evident in the proposed applications is that the social scientist and forensic practitioners may have a variety of working relationships. There is the integrated team model employed by Kozol and colleagues. In the other areas analyzed here it may be as productive to think more simply of collaborators. That is, while it may be crucial for clinical applications and certain program evaluations to have a fairly close, regular working relationship, for the litigation and legislative work, much less direct and regular contact would be required. What is required is a clear and shared understanding by the forensic practitioners and social scientists of the program goals, the necessary timetable, and the form of the final product. This point about collaboration brings me to my closing thrust. All is not rosy between social scientists and forensic psychiatry. This results from often opposing models of social control and fundamental discrepancies in the acceptance of any medical model. Many times, however, even when these core differences are resolvable, social science delivers little in the areas discussed here due to scientists’ inability to translate their findings into intelligible, basic findings that are applicable to the programs or statutes in question and are delivered in a timely fashion. Further, too often academic deadlines permit much more leeway than the matters of state or the exigencies of court hearings can accept. On the other side, there is often the need in program evaluation endeavors for the evaluation component to be developed prior to, or at least simultaneously with, the service program. Within the regulations dealing with the protection of human subjects, program evaluation may require randomized assignments or special control groups that necessitate adjustments to the normal institution routine. Thus, to optimize, or even to produce minimally rigorous data, forensic psychiatrists and administrators must be flexible and open, not rigid and combative as has too often been the case. In closing, it is crucial to mention that much of the collaboration being suggested here cannot be expected to occur unless more consideration is given to the inclusion of social scientists as both students and faculty in forensic psychiatry training programs. It is important at both the predoctoral and postdoctoral level for social scientists who might wish to become involved in forensic psychiatry to have the opportunity to be introduced at a relatively sophisticated level to the concepts, techniques, and law of this field. Likewise, it is important that psychiatric residents become aware of the potential value that social science can have when effectively applied to their substantive concerns. An ideal point to do this would be residency programs in forensic psychiatry. One excellent example of this approach in the field of general psychiatry has been described by Klerman, and colleagues.*’ It is frustrating to encounter groups such as the American Academy of Psychiatry and the Law whose name implies some interdisciplinary group inter29Klerman, Morrissey 35 Arch. Gen. Psychiatry
and Goldman, 1469 (1978).
Training Psychiatrists
in Social Research:
Problems
andProspects,
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ested in forensic psychiatry only to find that this group is open to psychiatrists and is primarily concerned with issues of certification in forensic psychiatry. Whether more interdisciplinary groups such as the Law and Society Association which is not presently focused on forensic psychiatry issues can help fill this void remains to be seen. Meanwhile, social scientists have much to learn to maximize their contributions to forensic psychiatry. We need more opportunities to demonstrate what these contributions can be so that ideologies and practices may change. In addition, pressure needs to be exerted by forensic psychiatrists and administrators on local, state, provincial, federal and professional groups to develop funding and job titles to more effectively use social science in their own behalf rather than settling for being the victims of social science in the courts and legislatures.