Predictions of future dangerousness in capital murder trials: is it time to "disinvent the wheel"?

Use of the Psychopathy Checklist-Revised in Legal Contexts: Validity, Reliability, Admissibility, and Evidentiary Issues

The construct of psychopathy has received considerable attention from clinicians, researchers, and legal practitioners because of its demonstrated association with a range of outcomes of interest to the criminal justice system. The Psychopathy Checklist-Revised (PCL-R) is generally regarded as the premier assessment tool for measuring psychopathy in correctional and legal contexts, and the PCL-R is being used with increased frequency to address a variety of legal questions. This article provides a comprehensive examination and review of the PCL-R's use in legal contexts. We begin by reviewing various uses (appropriate and inappropriate) of the PCL-R in legal contexts, using the risk-need-responsivity (RNR) model as the conceptual framework. After reviewing available data regarding the use of the PCL-R in legal contexts, we review and synthesize psychometric research with psycholegal relevance, with a focus on the PCL-R's construct validity, predictive validity, and interrater reliability. We then discuss the scientific acceptability and clinical utility of the PCL-R's structural, predictive, and measurement properties for credibility in court, followed by sample cross-examination questions. We conclude with a review of admissibility issues relating to the use of the PCL-R in various legal proceedings.

Prison Homicide: An Extension of Violent Criminal Careers?

This study investigated prison homicide perpetrators through the lens of the career criminal perspective. Prison homicide, while a rare event, has critical implications for the prison environment. Despite its importance as a form of institutional violence that must be addressed, only four studies in the past five decades have explored the characteristics of homicide perpetrators/victims, the motives, and circumstances of the crime. The goal of the current study was to develop a better understanding of prison homicide by examining 54 perpetrators who committed 37 inmate homicides over 40 years in a mid-Western state prison system. Results showed that prison homicides typically involved a younger male inmate perpetrator, acting independently, murdering an older inmate, in his cell, by stabbing or beating the victim during an altercation. Perpetrators, in comparison with victims and prisoners in general, had a record indicating more prior community homicides, elevated institutional risk scores, and higher rates of serious and assaultive prison misconduct, all indicative of prior community and prison maladjustment. Consistent with career criminal research, prison homicide perpetrators constitute a small but distinct subset of habitually deviant criminals that perpetrate high rates of criminal and violent behavior regardless of context.

An examination of the effects of mental disorders as mitigating factors on capital sentencing outcomes

Mentally ill and emotionally disturbed offenders comprise a significant component of those whose criminal conduct has swept them into the criminal justice system, including a subset who are tried and convicted of capital murder. The present study employs the population of capital cases advanced to penalty phase in the state of North Carolina (1990-2009) to examine whether presentation to the jury of the statutory mitigators of extreme mental and emotional disturbance and capacity impaired, and specific mental illness diagnoses, often referred to as mental disorders, at the sentencing phase mitigate against a sentence of death. Mental disorders included mood disorders, psychotic disorders, anxiety disorders, brain disorders, multiple mental illness diagnoses, learning disabilities, and personality disorders. Results from these 835 cases indicate that with the exception of one, the diagnosis of a learning disability, the capital jury's acceptance of various mental health conditions does not effectively mitigate against a capital sentence. In addition, jury rejection of a diagnosis of mental illness or the two mental health statutory mitigators, capacity impaired and extreme emotional disturbance, as a mitigating factor has a counter-mitigating effect in that it significantly increases the odds of a death penalty recommendation by about 85-200%.

An update and expansion on the role of the Violence Risk Appraisal Guide and Historical Clinical Risk Management-20 in United States case law

An individual's risk for future violent behavior may be considered in various legal contexts, including civil commitment, criminal sentencing, or suitability for parole. Among the assessment tools forensic evaluators use to assess violence risk are the Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, ) and the Historical Clinical Risk Managment-20 (HCR-20)/Historical Clinical Risk Management-20, Version 3 (HCR-20^V3 ) (Webster, Douglas, Eaves, & Hart, and Douglas, Hart, Webster, & Belfrage, , respectively). Previous surveys and case law research suggest that these measures are widely used and perceived to be useful in aiding forensic clinicians. This study provides an update to Vitacco, Erickson, Kurus, and Apple () and examines the use of the HCR-20 and VRAG in United States case law. A LexisNexis review revealed 134 cases decided between 1 January 2010 and 21 December 2016 that included the HCR-20, VRAG, or both. Results revealed that these measures are typically introduced by the prosecution to inform opinions regarding general violence risk. In addition, consistent with previous research, these data suggest the introduction of the HCR-20 and VRAG is rarely challenged and, when challenged, these challenges are rarely successful. However, data suggest that courts and parole boards may focus on specific risk factors (e.g., lack of insight) at the expense of other, more objective factors. Finally, we offer suggestions for clinicians who have transitioned to the newest version of the HCR-20.

Nature, nurture, and capital punishment: How evidence of a genetic-environment interaction, future dangerousness, and deliberation affect sentencing decisions

Research has shown that the low-activity MAOA genotype in conjunction with a history of childhood maltreatment increases the likelihood of violent behaviors. This genetic-environment (G × E) interaction has been introduced as mitigation during the sentencing phase of capital trials, yet there is scant data on its effectiveness. This study addressed that issue. In a factorial design that varied mitigating evidence offered by the defense [environmental (i.e., childhood maltreatment), genetic, G × E, or none] and the likelihood of the defendant's future dangerousness (low or high), 600 mock jurors read sentencing phase evidence in a capital murder trial, rendered individual verdicts, and half deliberated as members of a jury to decide a sentence of death or life imprisonment. The G × E evidence had little mitigating effect on sentencing preferences: participants who received the G × E evidence were no less likely to sentence the defendant to death than those who received evidence of childhood maltreatment or a control group that received neither genetic nor maltreatment evidence. Participants with evidence of a G × E interaction were more likely to sentence the defendant to death when there was a high risk of future dangerousness than when there was a low risk. Sentencing preferences were more lenient after deliberation than before. We discuss limitations and future directions.

A Statistical Consideration Regarding the Threshold of the Psychopathy Checklist-Revised

The Psychopathy Checklist-Revised (PCL-R; Hare, 2003 ) is one of the most commonly used measures of psychopathy. Scores range from 0 to 40, and legal and mental health professionals sometimes rely on a cut score or threshold to classify individuals as psychopaths. This practice, among other things, assumes that all items contribute equally to the overall raw score. Results from an item response theory analysis (Bolt, Hare, Vitale, & Newman, 2004 ), however, indicate that PCL-R items differ in the amount of information they can provide about psychopathy. We examined the consequences of these item differences for using a cut score, detailing the consequences for a previously applied cut score of 30 as an example. Results indicated that there were more than 8.5 million different response combinations that equaled 30 and more than 14.2 million that equaled 30 or more. This raw score, like others, corresponded to a broad range of PCL-R-defined psychopathy, indicating that applying cut scores on this measure results in imprecise quantifications of psychopathy. We show that by using the item parameters along with an individual's particular scores on the PCL-R items, it is possible to arrive at a more precise understanding of an individual's level of psychopathy on this instrument.

Incremental Validity Analyses of the Violence Risk Appraisal Guide and the Psychopathy Checklist: Screening Version in a Civil Psychiatric Sample

This study compares two instruments frequently used to assess risk for violence, the Violence Risk Appraisal Guide (VRAG) and the Psychopathy Checklist: Screening Version (PCL:SV), in a large sample of civil psychiatric patients. Despite a strong bivariate relationship with community violence, the VRAG could not improve on the predictive validity of the PCL:SV alone, even though the VRAG includes several ostensible violence risk factors other than psychopathy. Moreover, incremental validity analyses indicated that the remaining VRAG items accounted for little or no variance in violent outcomes once psychopathy scores were controlled. Conversely, the PCL:SV continued to account for considerable variance after controlling for the VRAG. These results reflect the limited validity of the VRAG items in civil psychiatric samples beyond the variance that is explained by the PCL:SV alone.

Actuarial Models for Assessing Prison Violence Risk

An investigation and extension of the Risk Assessment Scale for Prison (RASP-Potosi), an actuarially derived scale for the assessment of prison violence, was undertaken through a retrospective review of the disciplinary records of the first 12 months of confinement of a cohort of inmates entering the Florida Department of Corrections in 2002 and remaining throughout 2003 (N = 14,088). A near replication of the RASP-Potosi and additional analyses based on other weighted logistic regression models were performed on an inmate subsample for whom all information categories were available (n = 13,341). Younger age and shorter sentences were associated with increased violent misconduct. Older age, drug conviction, and higher educational attainment were associated with reduced violent misconduct. Regardless of whether the original RASP-Potosi or its progeny were utilized, or the custody level of the inmate sample, the models were modestly successful in predicting prison violence, with the area under the curve (AUC) ranging from .645 to .707.

An examination of the interrater reliability between practitioners and researchers on the static-99

Many studies have validated the psychometric properties of the Static-99, the most widely used measure of sexual offender recidivism risk. However much of this research relied on instrument coding completed by well-trained researchers. This study is the first to examine the interrater reliability (IRR) of the Static-99 between practitioners in the field and researchers. Using archival data from a sample of 1,973 formerly incarcerated sex offenders, field raters' scores on the Static-99 were compared with those of researchers. Overall, clinicians and researchers had excellent IRR on Static-99 total scores, with IRR coefficients ranging from "substantial" to "outstanding" for the individual 10 items of the scale. The most common causes of discrepancies were coding manual errors, followed by item subjectivity, inaccurate item scoring, and calculation errors. These results offer important data with regard to the frequency and perceived nature of scoring errors.

Assessment of aggression in inpatient settings

The threat of violence is a major concern for all individuals working or receiving treatment in an inpatient psychiatric setting. One major focus in forensic psychology and psychiatry over the past several decades has been the development of risk assessments to aid in the identification of those individuals most at risk of exhibiting violent behavior. So-called second- and third-generation risk assessments were developed to improve the accuracy of decision making. While these instruments were developed for use in the community, many have proven to be effective in identifying patients more likely to exhibit institutional aggression. Because the purpose of risk assessment is the reduction of violence, dynamic factors were included in third-generation risk instruments to provide opportunities for intervention and methods for measuring change. Research with these instruments indicates that both static factors (second-generation) and dynamic factors (third-generation) are important in identifying those patients most likely to engage in institutional aggression, especially when the aggression is categorized by type (impulsive/reactive, organized/predatory/instrumental, psychotic). Recent research has indicated that developing a typology of aggressive incidents may provide insight both into precipitants to assaults as well as appropriate interventions to reduce such aggression. The extant literature suggests that both static and dynamic risk factors are important, but may be differentially related to the type of aggression exhibited and the characteristics of the individuals exhibiting the aggression.

Examining the prevalence, role and impact of evidence regarding Antisocial Personality, sociopathy and psychopathy in capital cases: a survey of defense team members

Although anecdotal case accounts suggest that evidence concerning Antisocial Personality Disorder (APD), sociopathy and psychopathy is frequently introduced by the prosecution in capital murder trials, to date there has been no systematic research to determine the actual prevalence, role, or perceived impact of such evidence in these cases. Survey data collected from attendees at a national capital mitigation conference (n=41) indicated that prosecution evidence concerning APD was quite prevalent, with "sociopath" and "psychopath" labels being introduced less frequently. Evidence concerning these disorders, which were assessed primarily via DSM criteria and self-report personality inventories, was most often introduced by the prosecution in the sentencing phase to address a defendant's ostensible risk of future dangerousness and/or to rebut mitigating evidence-although it was also introduced frequently in the guilt/innocence phase of these trials to rebut mental health evidence offered by the defense. Survey respondents believed that evidence concerning APD, sociopathy, and psychopathy had a considerable impact on trial outcomes. Also, although defense objections were common, such evidence was rarely ruled to be inadmissible in these cases.

Life and death in the Lone Star State: three decades of violence predictions by capital juries

The accuracy of three decades of Texas jury predictions of future violence by capital defendants was tested through retrospective review of the disciplinary records of former death row (FDR) inmates in Texas (N = 111) who had been sentenced to death under this "special issue" and subsequently obtained relief from their death sentences between 1989 and 2008. FDR inmates typically had extended tenures on death row (M = 9.9 years) and post-relief in the general prison population (M = 8.4 years). FDR prevalence of serious assault was low, both on death row (3.6%) and upon entering the prison population (4.5%). None of the assaults resulted in life-threatening injuries to the victims. Violence among the FDR inmates was not disproportionate compared with life-sentenced capital offenders. Consistent with other research, juror expectations of serious prison violence by these offenders had high error (i.e., false positive) rates. The confidence of legislators and courts in the violence prediction capabilities of capital jurors is misplaced.

Assessing violence risk and psychopathy in juvenile and adult offenders: a survey of clinical practices

This study surveyed 199 forensic clinicians about the practices that they use in assessing violence risk in juvenile and adult offenders. Results indicated that the use of risk assessment and psychopathy tools was common. Although clinicians reported more routine use of psychopathy measures in adult risk assessments compared with juvenile risks assessments, 79% of clinicians reported using psychopathy measures at least once in a while in juvenile risk assessments. Extremely few clinicians, however, believe that juveniles should be labeled or referred to as psychopaths. Juvenile risk reports were more likely than adult reports to routinely discuss treatment and protective factors, and provide recommendations to reevaluate risk. The implications of these findings are discussed.

Violence Risk Assessment and Facet 4 of the Psychopathy Checklist: Predicting Institutional and Community Aggression in Two Forensic Samples

The Psychopathy Checklist and Psychopathy Checklist—Revised (PCL/PCL-R) were used to predict institutional aggression and community violence in two groups of forensic patients. Results showed that Facet 4 (Antisocial) of the PCL/PCL-R or one of its parcels consistently achieved incremental validity relative to the first three facets, whereas the first three facets failed to achieve incremental validity relative to Facet 4. One of the two Facet 4 parcels, Parcel G (General Acting Out), was the only PCL-R measure to consistently achieve success in classifying individual cases using the receiver operating characteristic approach. These findings suggest that Facet 4 and its parcels may play a role in violence risk assessment, although the generalizability of these findings to various forensic settings and contexts requires further study.

Examining the role of static and dynamic risk factors in the prediction of inpatient violence: variable- and person-focused analyses

Although the construct of psychopathy is related to community violence and recidivism in various populations, empirical evidence suggests that its association with institutional aggression is weak at best. The current study examined, via both variable-level and group-level analyses, the relationship between standard violence risk instruments, which included a measure of psychopathy, and institutional violence. Additionally, the incremental validity of dynamic risk factors also was examined. The results suggest that PCL-R was only weakly related to institutional aggression and only then when the behavioral (Factor 2) aspects of the construct were examined. The clinical and risk management scales on the HCR-20, impulsivity, anger, and psychiatric symptoms all were useful in identifying patients at risk for exhibiting institutional aggression. These data suggest that factors other than psychopathy, including dynamic risk factors, may be most useful in identifying forensic patients at higher risk for exhibiting aggression.

Assertions of "future dangerousness" at federal capital sentencing: rates and correlates of subsequent prison misconduct and violence

The federal prison disciplinary records of federal capital inmates (n=145) who were sentenced to life without possibility of release (LWOP) by plea bargain, pre-sentencing withdrawal of the death penalty, or jury determination were retrospectively reviewed (M=6.17 years post-admission). Disaggregated prevalence rates were inversely related to infraction severity: serious infraction =0.324, assaultive infraction =0.207, serious assault =0.09, assault with moderate injury =0.007, assault with major injuries or death =0.00. Frequency rates of misconduct were equivalent to other high-security federal inmates (n=18,561), regardless of infraction severity. Government assertions of "future dangerousness" as a nonstatutory aggravating factor were not predictive of prison misconduct. These findings inform federal capital risk assessments and have public policy implications for procedural reliability in death penalty prosecutions.

Neurophilosophical perspectives of neuroimaging in forensic psychiatry-giving way to a paradigm shift?

Forensic psychiatry is concerned with the relationship between psychiatric abnormalities and legal violations and crimes. Due to the lack of available biological criteria, evaluation and therapy in forensic psychiatry have so far been restricted to psychosocial and mental criteria of offenders' personalities. Recent advances in neurosciences allow a closer approach to the neural correlates of personality, moral judgments and decision-making. We propose to discuss the introduction of biological criteria in the field of forensic psychiatry and to establish rules as to what extent such biological criteria will be a better and more reliable choice in judging mentally ill criminals by using all available information that can be obtained by biological means. Psychosocial and subjective criteria in forensic evaluation will be more and more accomplished by biopsychosocial and objective criteria. The responsibility of having committed a criminal act will no longer be exclusively defined by judging free and voluntary decision-making, but rather by brain-behavior relationships. What is often referred to as psychosocially determined mental processes thus could be complemented by estimating the degree of biopsychosocially determined neural processes. We conclude that such a process could contribute to a paradigm shift in forensic psychiatry, which will have profound implications for offenders, forensic psychologists and psychiatrists, the law and society in general.

Risk Factors for Institutional Misconduct Among Incarcerated Women: An Examination of the Criterion-Related Validity of the Personality Assessment Inventory

Although widely researched in male offender samples, relatively little is known about the clinical utility of the Personality Assessment Inventory (PAI; Morey, 1991) among female prisoners. In this study, we examined the utility of various theoretically relevant PAI scales to predict 3 types of institutional misconduct (general, aggressive/defiant, and covert infractions) in a sample of 113 female inmates incarcerated for at least 1 year. The Antisocial Features (ANT) scale was the most consistent and effective predictor of misbehavior, with limited evidence to suggest that other PAI scales could demonstrate any incremental validity beyond this measure. More important, ANT continued to be associated with institutional misconduct even after controlling for criminal background variables such as prior convictions and a history of violence.

Capital offenders in Texas prisons: rates, correlates, and an actuarial analysis of violent misconduct

This study analyzed the records of 136 recently incarcerated capital murder offenders in the initial phase (M = 2.37 years, range = 6-40 months) of their life sentences in the Texas Department of Criminal Justice. Prevalence rates of institutional violence were inversely related to severity: potentially violent misconduct (36.8%), assaultive violations (14%), serious assaults (5.1%), and homicides (0%). Consistent with prior studies, factors correlated with assaultive misconduct included age (inversely), prior prison confinement, and concurrent robbery or burglary in the capital offense. A simplified Burgess scale entitled the Risk Assessment Scale for Prison-Capital (RASP-Cap) was moderately successful in identifying varying levels of improbability of committing violence-related misconduct however defined (AUC = .715-.766).

Assessment of interpersonal aggression and violence: introduction to the special issue

Violence and interpersonal aggression are considered major public health problems throughout the world. Yet there is considerable variability in how these terms are operationalized, measured, and studied in the social sciences, which can lead to ambiguity and confusion in the field. In this introduction to the special issue, the authors highlight some of the difficulties inherent in studying interpersonal aggression and violence and briefly review the heterogeneous nature of the research conducted in this area. The authors conclude with a summary of the key findings of the articles that appear in this special issue.

The short-form Buss-Perry Aggression Questionnaire (BPAQ-SF): a validation study with federal offenders

The 12-item short form of the Buss-Perry Aggression Questionnaire (BPAQ-SF) was originally developed by Bryant and Smith (2001) and modified and confirmed using confirmatory factor analysis with mentally ill offenders by Diamond, Wang, and Buffington-Vollum (2005). In the current study, construct validity of the BPAQ-SF was assessed with a sample of 1,181 male and 435 female general population federal offenders. Confirmatory factor analysis supported the four-factor structure. Tests confirmed factorial invariance across gender for all loadings and covariances. Reliabilities were found to be adequate and comparable to those found in the studies cited above. Concurrent validity was supported by high correlations between the subscales of the BPAQ-SF and several relevant subscales on the Personality Assessment Inventory (PAI). In addition, those offenders with prior history of violence, head injuries, childhood abuse, residential treatment, custody, or foster care as a child had higher scores on the BPAQ subscales.

Psychiatry and the death penalty

Psychiatrists conducting forensic evaluations of defendants facing a potential death penalty must understand the legal and ethical parameters governing these assessments in addition to the important clinical issues. Important areas to review with each defendant include the role of the evaluator, the party requesting the evaluation, circumstances in which the evaluation is not confidential, the nature, scope, and purpose of the evaluation, and the parties to whom the results of the evaluation are to be forwarded. In those circumstances in which the defense attorney has not retained the psychiatrist, the defendant's attorney must be aware that an evaluation has been ordered by the court or requested by the prosecution. The psychiatrist also must be prepared for passionate challenges to their findings from the defense or prosecution and in some instances for vigorous attacks on their own personal ethics. To weather such storms, the mental health evaluator must base their opinion on objective evidence rather than letting any personal bias guide their assessment.

Ethical issues in the evaluation and treatment of death row inmates

PURPOSE OF REVIEW

To summarize recent ethical analyses of psychiatrists' participation in the evaluation and treatment of death row inmates.

RECENT FINDINGS

Psychiatric participation in death penalty cases remains highly controversial in the United States, whereas there appears to be a more worldwide consensus that it is ethically inappropriate.

SUMMARY

Psychiatrists working in death penalty settings are functioning in a complex ethical arena, and must consider the implications of their decisions to participate and/or abstain from various activities with great care and attention to the circumstances of the individual cases at hand.

On the validity of validity scales: The importance of defensive responding in the prediction of institutional misconduct

This study examined the effects of defensive responding on the prediction of institutional misconduct among male inmates (N = 349) who completed the Personality Assessment Inventory (L. C. Morey, 1991). Hierarchical logistic regression analyses demonstrated significant main effects for the Antisocial Features (ANT) scale as well as main effects for the Positive Impression Management (PIM) scale in some instances. Significant ANT x PIM interactions also were evident, particularly when examining recommended cut scores on these scales. These results demonstrate the predictive validity of ANT with prisoners and reinforce the importance of context when considering whether validity scales are in fact valid.

Does psychopathy predict institutional misconduct among adults? A meta-analytic investigation

Narrative reviews have raised several questions regarding the predictive validity of the Hare Psychopathy Checklist-Revised (PCL-R; R. D. Hare, 2003) and related scales in institutional settings. In this meta-analysis, the authors coded 273 effect sizes to investigate the association between the Hare scales and a hierarchy of increasingly specific forms of institutional misconduct. Effect sizes for Total, Factor 1, and Factor 2 scores were quite heterogeneous overall and weakest for physically violent misconduct (r-sub(w) = .17, .14, and .15, respectively). Moderator analyses suggested that physical violence effect sizes were smaller in U.S. prison samples (r-sub(w) = .11) than in non-U.S. prison samples (r-sub(w) = .23). Findings are discussed in terms of the utility of the Hare measures for decision-making in institutional and other contexts.

The impact of mental health evidence on support for capital punishment: are defendants labeled psychopathic considered more deserving of death?

Controversy surrounds the use of the Hare Psychopathy Checklist--Revised (Hare, 1991, 2003) in capital murder cases, where it has been introduced to support prosecution claims that a defendant represents a "continuing threat to society". Although widely presumed to have a prejudicial impact (e.g., American Psychological Association, 2004), little is known about how the lay public reacts to data derived from ostensibly stigmatizing assessment instruments such as the PCL-R. The present study examined the effect of psychopathy data on layperson attitudes by having 203 undergraduates review a capital murder case where the results of the defendant's psychological evaluation were experimentally manipulated. When expert testimony described the defendant as psychopathic, a much larger percentage of participants supported a death sentence (60%) than when testimony indicated that he was psychotic (30%) or not mentally disordered (38%). Interestingly, participant ratings of how psychopathic they perceived the defendant to be--regardless of the testimony condition to which they had been assigned--also predicted support for a death sentence. Given the limited probative value of the PCL-R in capital cases and the prejudicial nature of the effects noted in this study, we recommend that forensic examiners avoid using it in these trials.