Conditional Release from Insanity Civil Commitment Revoked Because Refused to Follow Group Home Rules

United States v. Washington, No. 13-50870 (5th Cir. Aug. 22, 2014) (Stewart, Wiener, Costa)

First, the background to this case concerning civil commitment pursuant to 18 U.S.C. § 4243.  Washington was found not guilty by reason of insanity at a bench trial in 2009 for the charged offense of robbery by force and violence (a threat to stab the teller with a non-existent knife in exchange for $2,711).  The district court committed him to a mental health facility for evaluation and treatment.  In 2012, the Bureau of Prisons certified that Washington had recovered from his mental disease or defect.  The district court held a hearing in April 2012 and conditionally released Washington “based on its finding, by clear and convincing evidence, that his release under a regimen of care and treatment would not pose a substantial risk of bodily injury to another person or serious damage to the property of another.”  One of the conditions of Washington’s release was that he reside at a group home, and this condition was an express component of the FMC Butner release plan.

In July 2013, the probation office filed a petition for a warrant for Washington’s arrest alleging that he violated the condition of residing at the group home.  Testimony at the revocation hearing established that Washington refused to sign a commitment to follow the group home’s rules, knowing that his refusal would result in an eviction notice.  One letter written by the group home’s program director that was admitted into evidence indicated that she “supported Washington’s exploration of less-restrictive housing options.”  Another letter indicated that Washington was becoming more aggressive to others, telling them not to report his breaking of house rules.

The probation officer testified that Washington was in compliance with his medicines, completed his GED, was enrolled in community college, was not mentally unstable, and had not been involved in any physical assaults or criminal charges while on conditional release.  The probation officer also testified, however, that she believed Washington tried to physically intimidate her at one point and that—while she could recommend a transitional home if an appropriate facility could be found—Washington could not be safely maintained in the community because he was not willing to follow the rules at any facility.

Based on this evidence, would you find that Washington “failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, and that his continued release will create a substantial risk of bodily injury to another person or serious damage to the property of another”?  See § 4243(g).

Well, the district court did, and the panel affirms “[b]ecause the doctors who crafted Washington’s release plan included residence in a group home as an express element, and because the district court’s substantial-risk finding was not clearly erroneous[.]”  The panel tries to curb what could “appear to lower the bar for re-commitment proceedings insofar as . . . earlier precedents generally have addressed individuals who refused to follow their doctors’ advice” by emphasizing that “every substantial-risk assessment must turn on the unique factual circumstances of each case rather than on an attempt to compare one individual to another.” 

Still, a record that simply reflects that Washington “was not getting along well with the people around him” without any professional medical opinion as to any risk posed by Washington’s release seems a little skim for a judicial “infer[ence] that his increasingly verbal aggressiveness was a sign of dangerousness, or even potential illness, rather than a sign of recovery and attendant resurgence of his desire for autonomy.”  Given district judges’ “awesome responsibility to protect the public and to strike the difficult balance with individual liberty,” however, the panel does not disturb the district judge’s order.

New Study Finds Test Often Used in Sexually Violent Predator Evaluations Is Unreliable

A new study finds that the Psychopathy Checklist-Revised, which is often used to determine the civil commitment of offenders as sexually violent predators, is unreliable.  The study is “The Role and Reliability of the Psychopathy Checklist-Revised in U.S. Sexually Violent Predator Evaluations: A Case Law Survey” by DeMatteo, D., Edens, J. F., Galloway, M., Cox, J., Toney Smith, S. and Formon, D. in Law and Human Behavior (2013).

Here is the abstract from American Psychiatric Association PsychNET Direct:

The civil commitment of offenders as sexually violent predators (SVPs) is a highly contentious area of U.S. mental health law. The Psychopathy Checklist—Revised (PCL–R) is frequently used in mental health evaluations in these cases to aid legal decision making. Although generally perceived to be a useful assessment tool in applied settings, recent research has raised questions about the reliability of PCL–R scores in SVP cases. In this report, we review the use of the PCL–R in SVP trials identified as part of a larger project investigating its role in U.S. case law. After presenting data on how the PCL–R is used in SVP cases, we examine the reliability of scores reported in these cases. We located 214 cases involving the PCL–R, 88 of which included an actual score and 29 of which included multiple scores. In the 29 cases with multiple scores, the intraclass correlation coefficient for a single evaluator for the PCL–R scores was only .58, and only 41.4% of the difference scores were within 1 standard error of measurement unit. The average score reported by prosecution experts was significantly higher than the average score reported by defense-retained experts, and prosecution experts reported PCL–R scores of 30 or above in nearly 50% of the cases, compared with less than 10% of the cases for defense witnesses (κ = .29). In conjunction with other recently published findings demonstrating the unreliability of PCL–R scores in applied settings, our results raise questions as to whether this instrument should be admitted into SVP proceedings. (PsycINFO Database Record (c) 2013 APA, all rights reserved)

NPR covered the rise of the PCL-R in a 2011 story, describing how it began as a research tool and then was coopted by the criminal justice system to the dismay of its creator who “feared that the test, created purely for research purposes, might be used incorrectly in the real world and could hurt people.”