READING - Risk Assessment (Textbook CH3.4)

3.3 Risk Assessment

The question of whether an accused is a risk to commit a future offence may arise at many points in the criminal justice system, although it most often comes up at either sentencing or release. Mental health professionals are increasingly being called upon by the criminal justice system to conduct assessments of an accused’s level of risk to commit a violent offence, a sexual offence, or some other type of criminal behaviour. Treatment options for the accused are partially determined by relevant risk factors for each individual. While the assessment of an individ- ual’s future risk may occur at any time, these assessments usually occur in one of two contexts: just before sentencing, when an individual’s level of risk may affect the type of sentence that is imposed and the type of treatment programming that is offered; and just before release, when they inform the court about strategies for reducing an offender’s level of risk, which may in turn affect the release decision or the conditions imposed upon that release. Risk assessment occurs in both the civil (e.g., risk for violence toward oneself or others) and criminal (e.g., risk for future sexual violence) arenas; however, the focus in this chapter is on the criminal arena. We begin this section by describing the various points at which a risk assess- ment may be conducted.

Learning Objective 3.3

Describe the points at which risk is assessed, the three approaches to risk assessment, and the factors used to assess risk.

Points at Which Risk Assessment Might Occur

Bail

Section 11(e) of the Canadian Charter of Rights and Freedoms states, “Any person charged with an offence has the right not to be denied reasonable bail without just cause.” Just cause exists if, for example, the accused poses a risk if released into the community. Accordingly, people in the criminal justice system must assess risk when an individual is brought before them to request bail. Often, these decisions are made quickly and without benefit of expert psychological evidence; however, the person making the decision to release does undertake a risk assessment.

Sentencing

Most offences carry maximum sentences but not minimum sentences, so judges have a great deal of discretion in terms of the length of sentence. The individual’s risk of offending in the future, as well as the possibility of managing this risk, are important factors to consider when deciding the most appropriate sentence in the circumstances.

Dangerous Offender Hearings

Section 753 (1) (a) of the Criminal Code states that a person may be designated a “dangerous offender” (and may be sentenced to detention in a penitentiary for an indeterminate period) if “the offence for which the offender has been convicted is a serious personal injury offence . . . and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons.” Section 752 of the Criminal Code defines a “serious personal injury offence” as “an indictable offence, other than high treason, treason, first-degree murder or second-degree murder, involving the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or an offence or attempt to commit an offence [that is a sexual assault].”

Long-Term Offender Hearing

Section 753.1(1) of the Criminal Code allows for a designation of “long-term offender” (which orders that “the offender be subject to long-term supervision for a period that does not exceed 10 years” following the period of incarceration) when it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted, there is a substantial risk that the offender will reoffend, and there is a reasonable possibility of eventual control of the risk in the community. When you consider dangerous offender legislation and long-term offender legislation, you should note that an important distinction is the potential management of future risk.

Remand Assessments

A remand facility is a provincial institution that detains individuals who are serving a sentence of less than two years, were given a federal sentence and are remaining in remand until their appeal period expires, have outstanding charges or are awaiting transfer to another facility, or are detained for other administrative or legal reasons (e.g., immigration holds). In a remand facility, brief assessments are done with a particular focus on identifying major mental illnesses and/or the need for short-term urgent intervention.

Intake Assessment

Upon arrival at a federal institution (where people are held for sentences of two years of more), all offenders are immediately assessed for suicide risk, risk of harm to others, and other issues (e.g., health care needs). The purpose of intake assessment is to determine the level of security needed, the type and intensity of treatment, and the likelihood of recidivism.

Probation/Parole

Generally, probation refers to conditional release from a provincial sentence, and parole describes conditional release from a federal sentence. A period of probation may be passed as the entire provincial sentence or as part of a provincial sentence. An important consideration when assessing probation is the risk that the offender will reoffend if released into the community. Unless there is a minimum sentence (e.g., first-degree murder), offenders are eligible to apply for parole after serving only one-third of their sentence, and it may be granted if the offender can convince the parole board that release is appropriate. Except in cases where there is a minimum sentence, offenders must be released after serving two-thirds of their sentence—this is called statutory release—unless the Crown can establish that the offender should not be released. When a parole hearing is conducted, an assessment of future risk is essential if the parole board is to make its decision.

Not Criminally Responsible on Account of Mental Disorder (NCRMD)

Individuals who have been found to be NCRMD and detained in a psychiatric institution may be assessed and released only if, among other things, they no longer pose a significant threat to the safety of the public. These individuals are evaluated for their risk of violence to others and to themselves on a regular basis while institutionalized, and they can only be released if a risk assessment indicates that they are not a significant threat to themselves or to the public.

Approaches to Risk Assessment

There are three different approaches to risk assessment. The first is known as clinical decision making or unstructured clinical judgment. This approach is ideographic (that is, it focuses on the specific individual rather than on groups of individuals) and qualitative (it relies on subjective judgments) in nature. Thus, clinicians who are conducting violence risk assessments in this manner will use their best clinical judgment to gauge the likelihood that the examinee will be violent in the future. The risk markers that are taken into consideration vary by clinician, as does the weighting of each of the relevant factors for each specific case.

In contrast to the clinical decision-making approach is actuarial decision making. The actuarial approach is nomothetic (based on research involving large groups of people) and quantitative (statistical) in nature. Thus, clinicians who conduct violence risk assessments in this manner will use a formal, algorithmic, objective approach to make a decision regarding the likelihood that the examinee will be violent in the future. Clinicians must incorporate their professional experience by using a formulaic approach that takes into consideration specific risk markers, each given a specific weight. When directly compared with decisions made using unstructured clinical judgment, actuarial decisions have been found to be considerably more accurate.

The third approach to risk assessment, structured professional judgment, involves a melding of the clinical and actuarial approaches. In this approach, a specific array of risk markers is considered, thus ensuring that all clinicians take into consideration the same set of risk factors for each examinee. In addition, clinicians are able to introduce their professional experience to temper or augment the actuarial prediction. Thus, the ztructured professional judgment approach to violence risk assessment ensures the consideration of a relatively comprehensive set of risk factors for every examinee and allows for additional, individual factors to be considered as a supplement to the structured assessment. It has long been recognized that the actuarial approach is superior to unstructured clinical judgment; however, a meta-analysis comparing the actuarial and structured professional judgment approaches indicated no distinct superiority for either actuarial or SPJ model (Guy, 2008). The author concluded that both models performed at comparably good levels of predictive accuracy, but that additional relevant factors should be considered when selecting an approach for clinical practice.

unstructured clinical judgment one of three approaches to risk assessment, and the least effective in predicting violence; in this approach clinicians use their best clinical judgment to gauge the likelihood that the examinee will be violent in the future; the risk markers that are taken into consideration vary by clinician, as does the weighting of each of the relevant factors for each specific case

actuarial decision making one of three approaches to risk assessment, based on actuarial data

structured professional judgment one of three approaches to risk assessment; in this approach, a specific array of risk markers is considered, and clinicians are also able to introduce their professional experience; structured professional judgment instruments are based on research identifying predictors of future risk that do not tell evaluators how risk factors should be weighted or combined and cannot be used to estimate the probability of future harm

Violence Risk Factors

Numerous risk factors have been identified as being related to an increased risk for violence. These risk factors include both static (stable, unchangeable) and dynamic (changeable) factors, as shown in Table 3.1.

These risk factors have formed the basis of a number of risk assessment instruments. Although many risk factors are important to consider across many contexts, the risk assessment instruments have, generally, been developed for a specific purpose. That is, some instruments have been developed to assist in the evaluation of risk for violence, while others focus specifically on intimate partner violence or sexual violence.

Risk assessment instruments fall into one of two categories—those that are actuarial and those that were developed to assist in structured professional judgments of risk for violence. Instruments such as the Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, 2005) and the Violence Prediction Scheme (VPS; Webster, Harris, Rice, Cormier, & Quinsey, 1994) are actuarial, whereas the HCR-20 (Webster, Douglas, Eaves, & Hart, 1997), the Spousal Assault Risk Assessment Guide (SARA; Kropp, Hart, Webster, & Eaves, 1998), and the Sexual Violence Risk-20 (SVR-20; Boer, Hart, Kropp, & Webster, 1997) were developed to assist in structured professional evaluations of risk (see Insight 3.2 for a description of risk assessment instruments).

INSIGHT 3.2. Forensic assessment instruments for risk assessment

Numerous risk assessment instruments have been developed to assist in the evaluation of an offender’s future risk for violent offending. An evaluator should always consider the reliability and validity of assessment instruments when selecting an instrument for use in a particular case. A discussion of the psychometric properties of these assess- ment instruments is beyond the scope of this chapter, but the interested reader is referred to Otto and Douglas (2009). The following are a few of the better-known instruments:

• HCR-20 (Webster, Douglas, Eaves, & Hart, 1997; Douglas, Hart, Webster, & Belfrage, 2013). This 20-item assessment tool includes information and criteria for evaluating 10 historical factors, 5 clinical factors, and 5 risk management factors, and encompasses past, present, and future risk considerations.

• SVR-20 (Boer, Hart, Kropp, & Webster, 1997). This 20-item assessment tool includes information and criteria for evaluating 11 psychosocial adjustment, 7 sexual offence, and 2 future plans variables for the evaluation of violence risk in sex offenders.

• Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, 2005). This 12-item actuarial scale is used to predict the probability of violence within a particular time frame in offenders with mental disorders.

• Sex Offender Risk Appraisal Guide (SORAG; Quinsey, Harris, Rice, & Cormier, 2005). This 14-item instrument is used to predict the probability of violent and sexual recidivism in previously convicted sex offenders.Rapid Risk Assessment for Sex Offense Recidivism (RRASOR; Hanson, 1997). This brief, four-item screening instrument is used to evaluate risk for sexual violence in previously convicted sex offenders.

• STATIC-99/STATIC-2002 (Hanson & Thornton, 1999). These ten-item instruments are used to determine the long-term potential for sexual recidivism in male sex offenders.

• Sex Offender Need Assessment Rating (SONAR; Hanson & Harris, 2000). This nine-item scale is used to measure changes in the level of risk for sex offenders.Minnesota Sex Offender Screening Tool (MnSOST-R; Epperson, Kaul, & Hesselton, 1998). This 16-item instrument is used to determine level of risk for sexual recidivism among rapists and intrafamilial child molesters.

Psychopathy

psychopathy a personality style epitomized by a blatant disregard for others, both behaviourally and emotionally

Psychopathy is a personality type that encompasses both behavioural and affective (emotional) components. Individuals who exhibit psychopathy are, among other things, glib, grandiose, callous, remorseless, reckless, manipulative, impulsive, dishonest, parasitic, and unable to experience the normal range and depth of emotional experience. Psychopathy plays an important role in risk assessment, because the available research has consistently demonstrated a significant relationship between psy- chopathy and violence. That is, individuals with psychopathic personality styles are more likely to engage in general criminal behaviour and violent behaviour than their nonpsychopathic counterparts. Moderate to major associations between psychopathy and violence have been found (Hemphill, Hare, & Wong, 1998; Salekin, Rogers, & Sewell, 1996). As Douglas and Webster (1999) have concluded, “Psychopaths, in comparison with nonpsychopaths, are at an increased risk for acting violently and for doing so more quickly and in more diverse ways and across various settings, whether they are mentally disordered, sex offenders, young offenders, or just ’regular’ nonmentally ill offenders” (p. 204). Given the robustness of the relationship between psychopathy and violence, it is important to take this personality type into consideration in every risk assessment.

Violence Risk Assessment

Violence risk assessment attempts to take into consideration many different fac- tors, including (a) the nature of the violence or the types of violence that may occur; (b) the severity or seriousness of the violence; (c) the frequency of the violence, or how often violence might occur; (d) the imminence of violence, or how soon it might occur; and (e) the likelihood or probability that violence will occur. Evaluators are often called upon by the courts to assess an individual’s risk for violence, whether for sentencing or release purposes, and therefore must attempt to delineate each of these factors.

An informative and useful risk assessment will provide the court with information on the probability that the examinee will commit a particular type of violence within a particular time frame and under certain conditions. Thus, risk management is a crucial component of risk assessment. Risk management refers to the strategy of attempting to reduce the probability that an individual will be violent by describing the conditions under which that individual’s risk for violence may increase and those under which it may decrease. Thus, to manage an individual’s risk, one must know the conditions that may serve to increase and/or decrease the probability of violence so that these conditions can be monitored and/or adjusted accordingly. For instance, the use of alcohol or drugs may serve to increase an individual’s risk for violence; therefore, an appropriate risk management strategy would include treatment for substance abuse and careful monitoring to ensure that the individual abstains.

Sentencing and release decisions by the courts can then be made based on the information provided in a risk assessment, and specific sentencing and/or release conditions may be implemented in an attempt to manage the individual’s risk for future violence.

As in other types of criminal forensic evaluations, an interview with the offender as well as a review of all available records and interviews with other individuals who know the offender well are involved in an assessment of an offender’s risk for future violence. In addition, most risk assessments also entail the use of one or more of the specific forensic assessment instruments that have been developed to assist in making a determination about an offender’s level of risk.

risk management a crucial component of risk assessment that refers to the strategy of attempting to reduce the probability that an individual will be violent by describing the conditions under which that individual’s risk for violence may increase and those under which it may decrease