Imagine a future where citizens can be arrested and detained based on visions that predict criminal actions. While this may sound like a fictional plot from a movie, the striking resemblance between Steven Spielberg's "Minority Report" and today's legislative landscape raises important ethical questions. Spielberg’s goal was to tell a story of a moral dilemma, centered around this age-old conundrum of retribution and utilitarianism. Arguably, the film is a thought experiment, created to raise one central question: Is it ethically justifiable to detain somebody, not because they have committed a crime, but because there is a high likelihood that they will commit a crime?
The Rise of Risk Thinking
Today, democratic societies appear to have cast their vote on the matter. Most of them allow for laws that restrict civil liberties and deny due process for the greater good. An increasing need for safety, combined with a fear of the “criminally insane” have allowed risk thinking to pervade mental health legalization in western countries[1]. One example is post-sentence preventive detention of sex offenders[2]. Post-sentence preventive detention of sex offenders is a legal measure that allows for the continued detention of individuals convicted of sexual offenses even after they have served their prison sentence. It is typically applied to those considered to be high-risk offenders who are deemed to pose a significant threat to society if released. By extending the detention of sex offenders beyond their initial sentence, the aim is to protect society from potential harm. Another example is Switzerland’s revision of the penal code, which holds that “non-treatable” dangerous offenders must be confined for life unless effective treatments are discovered[3]. However, in pursuit of a truly ethical society we are obliged to ask how far we can go in restricting people’s individual rights to maintain public safety. Of particular interest is the role of the forensic mental health care professionals in facilitating preventative detention.
The Role of Forensic Mental Health Professionals
Forensic psychologists and psychiatrists play a crucial role in facilitating preventative detention by making judgements about an offender’s level of risk through the utilization of risk assessment tools. Violence risk assessment is one of many practices that illustrate the “dual role” of forensic psychologists and psychiatrists, also described as a double agency arising from responsibility towards the welfare of the patient and a responsibility towards the safety of the public[4]. The balance between individual rights and public safety becomes a central ethical question for mental health professionals in this context.
The Ethical Dilemma of Violence Risk Assessment
One approach to address the ethical dilemma arising from violence risk assessment is to adopt a framework centered around "truth-telling" rather than solely focusing on beneficence and non-maleficence. This framework, also referred to as “justice ethics”[5], suggests that the main goal of a forensic assessment should be to serve justice and speak the truth. However, there are challenges associated with this approach, including historical instances where what was considered just or lawful was deeply unethical. What’s more is that the inherent biases and limitations of forensic risk assessment tools raise concerns about their accuracy and reliability. Empirical research suggests that risk assessment tools show moderate accuracy at best, with more than half of those judged to be of high-risk, being misclassified[6]. As such, the “truth” might ultimately be the assessor’s truth only. Misclassification, in this context, has detrimental consequences for those who are affected. Considering these dire findings, researchers have highlighted the need for better data to improve forensic risk assessment[7]. The utilization of neuroscientific data has been put forward as a solution. But is it viable?
The Promise and Pitfalls of Neuroscience
Of particular interest for violence prediction are brain abnormalities that are associated with antisocial behavior. Candidates for the “neuroprediction” of violence[8], include abnormalities in limbic and paralimbic regions[9] and impairments in the functional integrity of specific regions in the prefrontal cortex[10], all of which have been associated with psychopathic tendencies.
One such “psychopathic brain” belongs to James Fallon, a neuroscientist and happily married father. Fallon's case gained attention when he conducted a study examining brain scans of psychopathic individuals. As part of the research, he included his own brain scan for comparison, only to discover that his scan resembled those of the psychopathic subjects[11].
Fallon's case demonstrates that despite having a brain scan resembling those of individuals suffering from psychopathy, he did not exhibit violent tendencies, emphasizing the complexity and variability of individual behavior. Grouping individuals based on their brain scans could easily contribute to discrimination and stigmatization of those judged to be of “high risk”, whilst simultaneously suggesting that any efforts of treatment are likely to be of no avail[12].
Ultimately, the uncritical acceptance of the integration of biological markers may do more harm than good. Such risk factors typically do not offer any insight into causal pathways of crime and therefore cannot advance our understanding of risk mitigation, that doesn’t solely rely on detainment[13]. Detaining individuals without offering them a chance for release in order to minimize their likelihood of committing future offenses cannot be deemed ethical. However, if we provide them with opportunities to mitigate their own risk of reoffending, confinement might be an appropriate resolution.
Treatment, not Punishment
Instead of solely focusing on prediction accuracy, the primary concern should be whether risk assessments can inform treatment[14]. Effective and adequate treatment should be provided to individuals identified as high-risk, making the use of risk assessments for preventative detention ethically justifiable. When the methods involved are shown to be effective in reducing violent behavior and promote engagement and mutual respect, detention based on risk evaluations can be considered in the individual's best interest. After all, recidivism does not only produce more victims but also gives rise to an even longer detention period for the offender involved.
Importantly, risk assessments should move beyond abstract principles and statistical correlates by integrating the personal narratives and life experiences of individuals[14]. By constructing these narratives and fostering cooperation, assessors can identify variables that inform effective treatment provision. Even though risk assessment may contribute to public safety, the prevention of crime cannot be its primary aim[15]. Arguably, using risk assessment to provide treatment is a necessary condition for ethical conduct.
Conclusion
The lessons from "Minority Report" serve as a cautionary tale, reminding us to be mindful of the potential consequences when sacrificing civil liberties in the name of safety. As we navigate the complexities of preventative detention and violence risk assessment, it is essential to critically examine the ethical implications of these practices. By prioritizing treatment, integrating personal narratives, and fostering cooperation, we can strive for a system that upholds justice while ensuring the well-being of individuals.
This blog post is written by Anna Schuetzenhofer. Anna currently works as a clinical intern at the Department of Forensic Psychiatry at Ludwig-Maximilian-University in Munich. She is in the second year of her Forensic Psychology master’s degree at Maastricht University.
References
1 Rose, N. (2010). ‘Screen and intervene’: Governing risky brains. History of the Human Sciences, 23(1), 79–105. https://doi.org/10.1177/0952695109352415
2 Vess, J., Ward, T. & Yates, P.M. (2017). The Ethics of Risk Assessment. In Assessments in Forensic Practice: A handbook (pp.370-386). https://doi-org.mu.idm.oclc.org/10.1002/9781118314531.ch18
3 Gravier, B., Raggenbass, R., & Gasser, J. (2006). Questions éthiques et cliniques posées par l’adoption de l’initiative sur l’internement à vie des délinquants particulièrement dangereux par le peuple suisse. Bulletin des médecins suisses, 87(8), 304-309.
4 Robertson, M. D., & Walter, G. (2008). Many faces of the dual — role relationship in psychiatric ethics. The Australian and New Zealand Journal of Psychiatry, 42, 228–235. https://doi.org/10.1080/00048670701827291
5 The Royal College of Psychiatrists for the United Kingdom and the Republic of Ireland. (2005) ‘The Psychiatrist, Courts and Sentencing: The Impact of Extended Sentencing on the Ethical Framework of Forensic Psychiatry: Council Report CR 129. Psychiatric Bulletin, 29,73-75.
6 Fazel, S., Singh, J. P., Doll, H., & Grann, M. (2012). Use of risk assessment instruments to predict violence and antisocial behaviour in 73 samples involving 24 827 people: systematic review and meta-analysis. BMJ, 345(jul24 2), e4692–e4692. https://doi.org/10.1136/bmj.e4692
7 Douglas, T., Pugh, J., Singh, I., Savulescu, J., & Fazel, S. (2017). Risk assessment tools in criminal justice and forensic psychiatry: The need for better data. European Psychiatry, 42, 134–137. https://doi.org/10.1016/j.eurpsy.2016.12.009
8 Morse, S.. (2015). Neuroprediction: New Technology, Old Problems. Bioethica Forum, 8(4), 128-129. https://doi.org/10.2139/ssrn.2722765
9 Anderson, N. E., & Kiehl, K. A. (2012). The psychopath magnetized: insights from brain imaging. Trends in Cognitive Sciences, 16(1), 52–60. https://doi.org/10.1016/j.tics.2011.11.008
10 Yang, Y., & Raine, A. (2009). Prefrontal structural and functional brain imaging findings in antisocial, violent, and psychopathic individuals: a meta-analysis. Psychiatry Research: Neuroimaging, 174(2), 81-88. https://doi.org/10.1016/j.pscychresns.2009.03.012
11 Fallon, J. (2014). The psychopath inside: A neuroscientist's personal journey into the dark side of the brain. Penguin.
12 Gkotsi, G. M., & Gasser, J. (2016). Neuroscience in forensic psychiatry: From responsibility to dangerousness. Ethical and legal implications of using neuroscience for dangerousness assessments. International journal of law and psychiatry, 46, 58-67. https://doi.org/10.1016/j.ijlp.2016.02.030
13 Nielssen, O. (2013). Scientific and ethical problems with risk assessment in clinical practice. Australian & New Zealand Journal of Psychiatry, 47(12), 1198–1199. https://doi.org/10.1177/0004867413498278
14 Kremer, S., Beintema, H., Spreen, M., & Ricoeur, P. (2012). Ethical Dilemmas in Structured Professional Judgements. Progression in forensic psychiatry, 91.
15 Buchanan, A., & Grounds, A. (2011). Forensic psychiatry and public protection. The British Journal of Psychiatry, 198(6), 420–423. https://doi.org/10.1192/bjp.bp.111.095471
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