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Dangerousness is a Dangerous
Concept

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Introduction
This paper will present the argument that dangerousness is indeed a dangerous

concept with an important qualification: when the concept is used wrongly. It has to be

remembered dangerousness is episteme. Knowledge in and of itself is not dangerous. Just

as E=MC2 can be used to power hospitals it can also be used to create bombs of

unimaginable destruction; dangerousness can serve our society well or poorly.

The paper is split into two parts. First there will be a methodological analysis of

dangerousness. The paper will show there are differing levels of predicting

dangerousness, from completely subjective evaluations to more objective formalism of

actuarial equations. But whatever method used, all have serious problems. It will then

show how predictive models are stuck in a Newtonian view of science rooted in the 19th

century and has not taken into account what the ‘new sciences’ reveal about our

predictive ability which offers a much less optimistic account of even the ‘hard’ sciences

ability to predict.

Secondly a more substantive analysis will be undertaken of dangerousness in

practice. It will be shown how the concept is used in two main areas in the US: capital

statutes and the civil commitment for sexual offenders. The particular jurisdiction is

chosen for the simple fact that predictions of dangerousness can deprive people of their

lives, analysis here is most important. It will be shown that dangerousness is actually

dangerous by linking it to the first part of the paper - its inability to predict. The law is

preoccupied by the ‘majesty’ of scientific formalism that psychologists purportedly

provide and is worryingly changing the very nature of our (democratic) legal systems,

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without the evidence warranting it. As Michael Foucault identified1, a paradigm shift is

occurring in our legal systems where non judicial actors (psychologists etc) take on

judicial power, they have the power to deprive of liberty and even life, the burden of

proof is relaxed and due process in criminal trials is circumvented. Most importantly the

law judges a set of facts that have no basis in reality and accepts deterministic and

reductionlist arguments when jurisprudence has long been based on culpability, freewill

and a set of facts arising.

A history of dangerousness

It is sometimes forgotten that the concept of dangerousness existed prior to solid

clinical methods of prediction. It can be traced far back as 1911 in the US 2 and 1838 in

France.3 Only the more modern approaches will be analysed in this paper. Prior to 1966

there was relatively little attention paid to how well clinicians assessed risk. In 1966 the

U.S Supreme Court in Baxstrom4 held 967 offenders detained longer than their maximum

sentence, due to dangerousness predictions, unconstitutional. Most offenders were

released to local hospitals and eventually onto the street. After 4.5 years only two men
1
For example he stated “a general process has led judges to judge something other than crimes; They have
been lead in their sentences to do something other than judge ; and the power of judging has been
transferred , in part , to other authorities than the judges of the offence. The whole judicial process has
taken on extra-judicial elements and personnel” Nola, Rescuing Reason: A Critique of Anti-Rationalist
Views of Science and Knowledge, (Springer:2003) p443
2
Massachusetts Briggs Act cited in Predicting and Controlling Dangerousness
http://faculty.ncwc.edu/toconnor/294/294lect04.htm and Günter Blau and Hans-Dieter Schwind, Festschrift
für Günter Blau zum 70. Geburtstag am 18. Dezember 1985, (1985: Walter de Gruyter) p568. There was
even discussion of it stretching far back as 1870s see Oliver Wendell Holmes, ‘The Path of Law’ 10
Harvard Law Review 457 (1897) at 470-471 where he discusses dangerousness as an important
jurisprudential concept.
3

Castel ‘From dangerousness to risk’. In Burchell, G., Gordon, C & Miller, P. (Eds.), The Foucault effect.
studies in governmentality (pp. 281–298). London: Harvester Wheatseaf (1991) p296 at note 17
4

Baxstrom v Herald 383 U.S 107 (1966)

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had been re-incarcerated for committing a violent crime.5 Throughout the 1970’s more

studies demonstrated that clinicians had relatively little competence in predicting violent

behaviour.6 Monahan reviewed the first generation studies and concluded “the upper

bound level of accuracy that even the best risk assessment technology could achieve was

of the order of 0.33”7. To put it into perspective 0.5 is the accuracy one can achieve for

predicting the outcome of a coin toss.

The general problem for the first generation was reliance on clinical methods

(‘clinical judgement’). These could not be objectively verified and they tended to over

predict. In one study members of a maximum security hospital were asked “if 100 men

were randomly chosen from this maximum security hospital and released, how many

would commit an offence causing bodily harm to another person within one year?” 8 All

made estimates too high; medically trained staff made higher estimates than non medical

staff. Another study shows how psychiatrists are not even able to demonstrate prediction

Steadman, H. J. & Cocozza, J. J. (1974) Careers of the Criminally Insane: Excessive Social Control of
Deviance. Lexington, MA: Lexington Books.
6

Thornberry, T. P. & Jacoby, J. E. (1979) The Criminally Insane: A Community Follow-up of Mentally III
Offenders. Chicago, IL: University of Chicago Press. Cocozza, J. J. & Steadman, H. J. (1976) The failure of
psychiatric predictions of dangerousness: Clear and convincing evidence. Rutgers Law Review, 29, 1084-
1101 both cited in Dolan and Doyle, Violence risk prediction The British Journal of Psychiatry (2000) 177:
303-311

Megargee, E.I. (1970). The prediction of violence with psychological tests. 2 Current Topics in Clinicaland
Community Psychology 98 (C.D. Spelberger ed.) cited in Trowbridge, ‘Age and Recidivism: How
Accurate are Our Predictions’, Washington Criminal Defence, Nov 2004, Vol 18. No.4
7
Monahan, J. (1984) The prediction of violent behaviour: Toward a second generation of theory and policy.
American Journal of Psychiatry, 141, 10-15
8

Quinsey, V.L. (1981). The long-term management of the mentally-disordered offender. Mental Disorder
and Criminal Responsibility 137 (S.J. Hucker, et al eds) cited in Trowbridge Op Cit

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expertise superior to that of a lay person.9 Buchannan10 and Castel both agree the reason

for the higher prediction is probably the consequences of the two types of mistake. As

Castel puts it:

“[w]hen in doubt it is better to act, since, even if unfounded intervention is an

error, it is one that will certainly never be known to be such; whereas if one
abstains from intervening and the threatened act should still materlaize [Sic],
the mistake is obvious and the psychiatrist is exposed to blame”.11

Other problems have been highlighted including the fact clinicians are seldom required to

describe in detail the processes by which they estimate risk12.

Monahan urged second generation thinking to develop actuarial techniques to

resolve the problems of over-prediction and lack of objectivity.13 Actuarial tables based

on ‘static’ variables such as type of crime, age and sex of victim, school records, onset of

criminal behaviour were all integrated. They objectively score and provide probabilistic

estimates of risk based on established empirical relationships between their items and the

outcome of interest.14 For example research establishes lack of empathy is a trait of

psychopaths, so that is integrated into equations. These eventually resulted in methods

Quinsey, V.L. & Ambtman, R. (1979) Variables affecting psychiatrists’ and teachers’ assessments of the
dangerousness of mentally ill offenders. 47 Journal of Consulting and Clinical Psychology 353
10

Buchannan ‘Risk and Dangerousness’ Psychological Medicine, 1999, 29, 465-473, at 468
11

Castel Op Cit P283

12
Buchannan Op Cit p467
13

Monhan, J. (1984) Op Cit.

14

Seto, ‘Is More Better? Combining Actuarial Risk Scales to Predict Recidivism Among Adult Sex
Offenders’ Psychological Assessment 2005 Vol 17 No2 156-167 at 156

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such as the PCL-R15 which determined psychopathy by characterising various

interpersonal traits associated with psychopaths. A score above 30 is the prototypical

psychopathic range. The PCL-R was integrated into the Variable Risk Appraisal Guide

(VRAG) and its accuracy was rated at 0.74.16 Other methods achieved similar results and

a recent study17 combining all the major methods (VRAG, SORAG, RRASOR and Static-

99) has shown that there is no advantage of combining all to predict offending. In short

0.75 and the upper band of 0.80 accuracy is likely all we can squeeze out of these

methods.

Problems with the methods

Two general problems have already been set out: over prediction and lack of

objectivity, at least for clinical methods. Actuarial approaches were seen as resolving

these but these have significant problems of their own. Buchannan has identified some

problems. Firstly using variables in actuarial equations is mathematical but determining

them is not. For example a lack of remorse for past misdeeds is a prognostic sign and

may amount to an informal mathematical model, but the decision as to whether or not the

patient is remorseful can hardly be mathematical.18 Unlike with the ‘hard’ sciences we

cannot take simple measurements of ‘time’ with a stop-watch, to quantify its variable in

the speed =distance/time equation. Psychiatric variables are inherently subjective to the

15

Hare, R.D. (1991). The Hare Psychopathy Checklist-Revised, Multihealth Systems, Toronto.
16

Janus, E.S. and Mechl, P.E. (1997). Assessing legal standard for predictions of dangerousness in sex
offender commitment proceedings, Vol 1, 3 Psychology, Public Policy & Law, pp 33-64. cited in
Trowbridge.
17

Seto Op Cit n13

18

Buchannan Op Cit p467

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observer19. These can be exacerbated by lack of cultural relativity. As Corbett and

Westwood have argued,20 in the context of Dangerous and Severe Personality Disorder,

the social backgrounds of those experts in creating/applying diagnostic criteria are most

likely middle class. Thus they may impart social judgements under the guise. What may

be perfectly normal behaviour among a culture or class may be deemed a variable for risk

in formulating an equation or even assigning a variable to an already formed one.

Unfortunately a recent study into the area of cultural bias has proven this thesis correct21.

The study shows probation officers saw the presence of a white family as a positive

influence and an asian one a negative influence. Using dangerousness predictive methods

opens up the door for institutional racism (conscious or subconscious). Political and

social ideologies influence even ‘hard’ sciences like Biology. That is why Soviet

scientists saw evolution as a matter of intra and inter species co-operation and western

scientists saw it purely as Darwinian competition; the conclusions reflecting their

respective economic modes of production. If a hard science is influenced by politics

something inherently subjective, like assessing an offender, will most likely do the same

and to a greater extent. As will be shown such early initial discrepancies of measurements

in a deterministic system is liable to lead to ‘chaos’ further down the line. Completely

ruining any predictive power these methods have.

19

While strictly speaking Hezenberg’s Uncertainty Principle also attaches such conditions to the natural
sciences, the subjectivity is no where near as prevalent. We know this from our everyday experiences, we
can measure the time of a 100m race to an accuracy of 1/10000th of a second.
20

Corbett and Westwood ‘Dangerous and severe personality disorder’: A psychiatric manifestation of the risk
society Critical Public Health, June 2005; 15(2): 121–133 p125
21

Hudson and Bramhall, “Construstion and ‘asianness’ in risk assessments by probation officers” (2005) 45
British Journal of Criminology 721

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Buchannan also cites other problems with actuarial approaches. As stated earlier

empirical research establishes which variables to integrate into equations. However, the

studies themselves are inconsistent. For example schizophrenia studies on violence being

more likely if patient is describing psychotic symptoms are conflicting. Several studies

have suggested it is, while others have concluded it is not22. Rare events cannot be

quantified into variables either, due to their transient nature. Capgras delusions are wisely

reported predictors of violence but not widely rated. The resulting lack of statistical

power means no conclusions can be drawn. The same is true of delusional mood. These

episodes are so brief they are unable to be captured on a scale.23 Actuarial methods cannot

establish which piece of research is relevant to the patient either. As Buchannan argues,

“all statements on statistical probability rest on the assumption that the circumstances in

which we are required to predict resembles circumstances which we have prior

knowledge”24 and “the grounds for this assumption of resemblance cannot be statistical 25”

In other words despite the purported objectivity actuarial methods ostensibly give, at their

heart lies clinical methods of evaluation with all their weaknesses. In the end assigning

variables is a matter of clinical judgment and not objective measurement.

22

Buchannan, Op Cit p468

23

ibid, p470
24

ibid
25

ibid

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As early as 1976 Megargee warned personality and situational factors must be

taken into account26 and many others all said the same27. Today it is accepted that

dangerousness is a complex interaction between psychological, biological and

environmental factors.28 In accepting this a nail has been driven into the predictive ability

of dangerousness – it is no longer a closed system since it is not focused on the

individual. While the improvements made from adding environmental factors is obvious 29

(0.33 to 0.75; increase of 0.42) adding environmental factors constrains any further

improvement. We know this because of what the ‘new sciences’ (as they are collectively

known) tell us about our predictive ability – it is heavily constrained.

The new sciences

Little has been written about chaos theory and quantum theory in relation to

dangerousness. But it cannot be understated how pertinent such theories are to our

understanding of predicting dangerous behaviour. As one psychologist who notably

attempted to incorporate the new sciences said in his lecture: “Prediction is prediction,

after all, regardless of whether one is predicting the behaviour of subatomic particles, or

that of sentient, multi-cellurlar organism.”30 The closest analogy one can bring of the

26

Megargee, E.I. (1976). "The prediction of dangerous behavior". Criminal Justice & Behavior, 3, 3-21.
Cited in Cohen, D.Notes on the Clinical Assessment of Dangerousness in Offender Populations Psychiatry
Online [www.priory.com/psych/assessin.htm]
27
Hepworth (1985), Monhan (1988), Steadman & Ribner (1982) all cited in Cohen [ibid]
28

ibid
29

Important note: Although of course not all improvements were made down to the incorporation of
environmental factors into predictive models. Some came about through better empirical source data.
30

Hart, European Association of Psychology and Law, Lisbon, Portugal (June 5-8, 2001), Address:
Complexity, Uncertainty, and the Reconceptualization of Violence Risk Assessment, p3

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importance of chaos theory in prediction for human behaviour is in the field if economics.

Economists have long used actuarial methods to predict how the market will behave. It is

concerned with predicting how economic actors (viz people) behave according to certain

market conditions (viz environment) and vice-versa. Chaos theory has had a considerable

impact on this field31. A field primarily concerned with the actions of people and

predicting their behaviour.

The major problem is in accepting environmental factors into predictive models

we turn a closed system into an open one. Classical probability theory was intended to

model the behaviour of closed systems. All the actuarial scales are rooted in this model32.

Society is an open system with “permeable walls so that matter, energy and information

or entropy may cross them in either direction.”33 In open systems we must take into

account Chaos theory. The theory basically states that in a complex, non-linear system

(such as human-society) a small change in the initial input could produce a massive

change in the output. The oft cited ‘butterfly effect’ is the prototypical example of this. A

butterfly flapping its wings (small effect) in London could set off a hurricane in

Massachusetts (big effect). Thus complex, non linear systems are sensitive to initial

conditions. Lorenz, the pioneer of Chaos theory, modelled a computer simulation. He

found that if he started his simulation with values that were only slightly different from

the original, the difference being that one set is accurate to six decimal places and the

31

Murray Rothbard, Making Economic Sense, Chapter 5 ‘Chaos Theory’ available online as an eBook:
http://www.mises.org/econsense/ch5.asp
32

See Hart Op Cit p6

33

Çambel, A. B. (1993). Applied chaos theory: A paradigm for complexity. San

Diego:Academic Press. P42 cited in Hart p6.

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second set down three places, then the weather produced by the computer soon veered

wildly from the original34 The difference here is miniscule - a mere three decimal places

versus six (say 1.001 and 1.000001). The problem hinted to before about assigning initial

values in the actuarial equations would be manifestly larger. Not a matter of three decimal

places but the very fact if a variable even applies to an offender. Chaos theory tells

meteorologists that they cannot predict the weather accurately a week in advance. It tells

economists they cannot predict long term market behaviour; it tells Biologists they cannot

predict long term migratory behaviour - all due to the sensitivity of the initial conditions.

What then does it say to psychologists? Surely the complex interaction between

environmental and biological factors exhibits the same uncertainty. Simply stated, we

cannot predict long term behaviour of all patients, only those who we can accurately

assign variables to. However, due to the inherent non-scientific method of assigning

variables we cannot even be sure any variables are assigned correctly. Even more

fundamentally the actual equations and tables as Buchmannan pointed out, have

conflicting empirical data or may be missing some important information. Chaos theory

shows how actuarial methods cannot be relied upon if their initial values are subjective.

Unfortunately some psychologists have fundamentally misunderstood how the

new sciences apply to dangerousness. Hart is guilty of this, he summarises 400 hundred

years of advances in mathematics and physics in an attempt to prove his thesis that

nothing is predictable. He argues due to the advent of quantum theory 35* we cannot

34
http://www.marxist.com/science/chaostheory.html
35

Quantum theory is about the very small: subatomic particles. Classic probability theory (Newtonian
mechanics) held that the universe was entirely predictable. If given enough information the mathematics of
Newtown’s equations could predict the behaviour of all particles in the universe; effectively predicting the
future. However, quantum mechanics holds that we cannot predict anything with a 100% certainty and only
assign probabilities to it. For example, Newtown would say particle Z exists at a certain point in

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predict anything with certainty. This is overstated in his analysis. He correctly argues that

physics cannot show which way a coin will land, tossed once 36. The equations would be

unimaginably complex and we cannot obtain the data in the first place. However, despite

physics being unable to explain which way a coin will land tossed once, tossed a hundred,

a thousand or even a million times it (rather mathematics) can give us the probability of

heads arising 50% and tails 50%. Physics cannot give us the causal explanation of each

subatomic particle involved in the event of a coin tossing, but probability theory can

show us it is a 50/50 chance. The same is true of human behaviour. We might not

understand why but we know it to be the case that those with a high rating on the VRAG

are likely to offend. Hart misunderstands the two types of probability which Buchmanan

citing37 David Hume in his article correctly identified as one founded on chance and the

other which arose from causes38. Unfortunately most of Hart’s lecture is criticising the

probability arising from causes. This is only relevant to explaining the variables chosen in

the first place i.e. the diagnosis and empirical data. Even with this though, medical

space/time. Where as quantum theory would say particle Z has a 99% chance of existing at a certain point
in space/time.

Hart attempts to argue this fact of quantum mechanics means we cannot predict anything. However we
know this to be incorrect from our everyday experiences. Otherwise life as we experience it would not
exist. Our world would be full of ‘quantum tunnelling’ where people can walk though walls and other
microscopic quantum effects which would manifest in macroscopic objects.

What Hart misunderstands is the importance of Planck’s constant (ћ). If ћ were a big value then indeed we
could not predict anything because quantum effects would apply to bigger macroscopic objects. But
because ћ is tiny (1.05 x 10-27) quantum mechanics only ruins predictive ability at the tiny microscopic
subatomic level. It is simply incorrect to argue it does at the macroscopic level. And since human brains are
made up of billions of cells, it qualifies as a macroscopic object. See generally Greene, The Elegant
Universe (Vintage Books: 2003) p85-86 for an excellent, easy to understand, explanation.
36

Hart p9
37

Buchanan p469
38

Hume, (1739). A Treatise of Human Nature. Volume One. Published as A Treatise on Human Nature.
Volume One (ed. T.Green and T. Grose), 1874. Longmans: London.

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science has long since strayed away from the absolute causal certainty that physicists

seek. A doctor knows mesothelioma is usually caused by exposure to asbestos, even

though he is not sure of the exact aetiology. He may not know the exact cause but there is

a high degree of probability it is caused be exposure to the asbestos. That is the nature of

medical science, exact causes, down the subatomic level cannot be given. Unfortunately

this is most likely why Hart has been seen by his peers as being ‘unscientific’39 and his

relevant points not being widely accepted despite being tremendously important.

To summarise this section we have shown how dangerousness is unreliable and

whatever methods used all have their problems. It would indeed be dangerous to use

these methods to justify execution and detention, however, as will be seen in part two this

is unfortunately the case.

Application of Dangerousness

This section will concentrate on application of dangerousness in the US under

civil commitment for ‘sexual predators’ and capital punishment statutes. In so doing it

will be seen there is bias toward psychologists expert testimony in predicting

dangerousness which the evidence as presented above, does not justify. There is also a

misunderstanding about how base-rates affect the number of false positives.

Capital Statutes

39
Hart p16

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The US Supreme Court in Furman40 struck down capital punishment statutes as

violating the 8th Amendment of the US Constitution on ‘cruel and unusual punishment’.

The court held, inter alia, the current capital statutes were arbitrary since they had no

guidelines for juries or judges. As a result some states responded to the decision by

amending their capital statutes to require the jury to determine the defendants’ future

dangerousness. This is where predicting dangerousness is at its most dangerous – when

life is deprived because of it. 21 states require dangerousness to be predicted; Texas and

Oregon require the jury to predict future danger in their decision of handing out capital

punishment.41 The case of Barefoot42 is indicative of the problem. Under the Texas

statute43 two special questions submitted to jury including whether “there is a probability

that the defendant would commit criminal acts of violence that would constitute a

continuing threat to society”. At trial the State called two psychiatrists who, in response

to hypothetical questions, testified the petitioner would probably commit “further acts of

violence and represent a continuing threat to society”44 Neither had examined the

defendant. On appeal the defence argued that psychiatrists: 1) individually and as a

group are incompetent to predict dangerousness to an acceptable degree of reliability. 2)

Psychiatrists should be required to examine defendant personally before testifying. As

such they petitioned the court to overrule the conviction. All arguments failed. The

judgement is a vivid example of exactly why dangerousness is dangerous: its probative

40

Furman v. Georgia, 408 U.S. 238 (1972)

41

Sorensen, ‘Criminology: An Actuarial Risk Assessment of Violence Posed By Capital Murder Defendants’,
90 Journal of. Criminal. Law. & Criminology 1251, 1252 (2000)
42

Barefoot v. Estelle 463 U.S. 880 (1983)

43

Tex. Code Crim. Proc. Ann., Article 37.071

44

p884 of the judgement.

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value is minimal and prejudicial effect maximal. This can lead to deprivation of life

because judges and juries are impressed by quasi-‘science’ of prediction.

Against 1) The majority45 cited previous jurisprudence under Jurek46 where seven

Justices rejected the claim that it was impossible to predict future dangerousness. What

was essential was the “jury have before it all possible relevant information”47. Against 2)

the court cited48 a previous case, Edgar49 where the court was of the opinion that expert

testimony, even if hypothetical, is commonly admitted as evidence where it might help

the fact finder do its assigned job. Also the court argued that the ordinary rules of

evidence governing the use of expert testimony apply to dangerousness, even in capital

cases.

The reasoning is dangerous because it overstates the probative value of

psychiatric testimony; that is, its prejudicial effect is greater than its evidentiary value. In

1983 dangerousness predictions were wrong 2/3 times50. The Court reasoned that the

ordinary rules of evidence, the adversarial nature of the courts and the availability of

cross examination would stem any prejudicial effect. Justice Blackmun in his powerful

dissent puts it best:

The Court holds that psychiatric testimony about a defendant's future

dangerousness is admissible, despite the fact that such testimony is wrong

45

Ibid , p896
46

Jurek v Texas 428 US 262 (1976)

47

Barefoot p897
48

p903
49

Spring Co v. Edgar 99 US 645

50

According to the APA brief of the case, quoted by Justice Blackmun at p916

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two times out of three. The Court reaches this result - even in a capital case -
because, it is said, the testimony is subject to cross-examination and
impeachment. In the present state of psychiatric knowledge, this is too much
for me. One may accept this in a routine lawsuit for money damages, but
when a person's life is at stake - no matter how heinous his offense - a
requirement of greater reliability should prevail. In a capital case, the
specious testimony of a psychiatrist, colored in the eyes of an impressionable
jury by the inevitable untouchability of a medical specialist's words, equates
with death itself. 51

Juries are almost solely influenced by psychiatric testimony when predicting

dangerousness. Justice Blackmun cited many studies proving this to be the case. “The

major danger of scientific evidence is its potential to mislead the jury; an aura of

scientific infallibility may shroud the evidence and thus lead the jury to accept it without

critical scrutiny”52 Surprisingly the American Psychiatric Association participating as

amicus curiae53 urged the court “[t]he unreliability of psychiatric predictions of long-term

future dangerousness is by now an established fact within the profession.” 54 And flatly

stated they are wrong 2/3 times.55 Yet the majority of the Justices somehow deem this

sufficient to be ‘beyond reasonable doubt of future dangerous behaviour’ as required by

the Texas statute. An accuracy level of 33.3% (2/3) would not even be sufficient to

establish dangerousness on a civil standard of proof. Worryingly the purported ‘experts’

in the case mislead the court by stating they could predict Barefoot’s future behaviour

“within a reasonable psychiatric certainty” or to a “one hundred percent and absolute”

51

p916 of the judgement

52

Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80
Colum. L. Rev. 1197, 1237 (1980) cited in Barefoot p926
53

Literally: ‘friend of the court’. In the US groups can often advice the court if the matter concerns them.
54

P920 of the judgement

55

ibid

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certainty.56 As shown above, even with today’s technology we can only achieve 75%

accuracy. If judges tend to accept psychiatrists’ recommendations about dangerousness

with little regard for cross-examination or other testimony, 57 then juries with less

expertise are bound to accept them.

A study into jury predictions of dangerousness confirms this.58 Juries use three

broad factors to predict dangerousness: prior criminal history, the instant offence and

expert opinion59. The study felt expert opinion was most important in sentencing

defendants to death.60 “[T]he data shows that the decision to give life versus death in

Texas squarely rests on … future dangerousness.”61 It has to be remembered in predicting

dangerousness the jury is predicting dangerous behaviour in prison not in society. More

importantly the study found that those sentenced to death (so deemed dangerous by the

jury) but later having their sentences commuted so they were in the general prison

population were not more violently predatory or a disproportionate threat to inmates and

staff.62 In fact 90% of death row releasees held trusty status63 in Texas’ prisons. It cannot

be underscored enough how dangerous this is; peoples lives are being deprived because

56

p922 of the judgement

57

Cocozza & Steadman, Prediction in Psychiatry: An Example of Misplaced Confidence in Experts, 25

Soc. Probs. 265, 272-273 (1978) at 271
58

Marquart, Ekland-Olson, Sorenson, ‘Gazing Into The Crystal Ball: Can Jurors Accurately Predict
Dangerousness In Capital Cases?’ Law Society Review Vol 23 No 3 1989 449-468
59

ibid p454
60

ibid p459
61

ibid p464
62

ibid p459-461
63

A term for reward for good behaviour. For example unarmed guards during exercise etc.

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of it. This despite the fact the empirical base does not give capital sentencing the

utilitarian goal it seeks.

Even more indicative of the failure of our adversarial court system is the experts

chosen to testify and the effect they have. Our litigation system simply cannot cope in its

present form with predictions of dangerousness. Psychiatrics are not experts on the level

that, say coroners are about causes of death or engineers about structural faults. As one

commentator has put it “[s]imply because one is termed a ‘mental health professional’

does not mean that he or she understands the cognitive and behavioural processes that

create dangerous behaviour64”. Since the court labels them as ‘expert’ witnesses they

immediately gain the scientific aura of more ‘hard’ science like doctors or engineers

which their backgrounds do not justify. As one judge stated the problem with expert

testimony is, “the opinion is introduced by one whose title and education (not to mention

designation as “expert”) gives him significant credibility in the eyes of the jury as one

whose opinion comes with the imprimatur of scientific fact.65”

One purported expert mentioned in hundreds of cases in Texas is Dr. James P.

Grigson also known as ‘Dr. Death.’66 His testimony on dangerousness has been used to

help convict one third of all Texas death row inmates.67 His predictions have to be seen to

64

Mark David Albertson, ‘Can Violence Be Predicted? Future Dangerousness: The Testimony of Experts in
Capital Cases’, 3-WTR Crim. Just. 18, 19 (1989) p46 cited in La Fontaine, ‘A Dangerous Preoccupation
With Future Danger: Why Expert Predictions Of Future Dangerousness In Capital Cases Are
Unconstitutional’ Boston College Law Review 2002 Vol 44 No.1
65

Flores v. Johnson, 210 F.3d 456, 464 n.10 (5th Cir. 2000)
66

See Bennett v. Texas, 766 S.W.2d 227, 231 (1989) explaining why he got the nickname Dr. Death –
because he successfully testified on many capital cases for the prosecution successfully
67

Marquart et all (1989) Op Cit. p457 and Texas Defender Service, A State of Denial: Texas Justice and the
Death Penalty 26, available at http://www.texasdefender.org/study/chapter3.html

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be believed, all are remarkably similar.68 He offers dichotomous predictions including

“100%”69 certainty even “a one thousand percent chance” 70 of dangerousness. One judge

on a Texas appellate court went far as to say:

[W]hen Dr. Grigson speaks to a lay jury . . . about a person who he

characterizes as a “severe” sociopath . . . the defendant should stop what he is
doing and commence writing out his last will and testament—because he will
in all probability soon be ordered by the trial judge to suffer a premature
death. . . . When Dr. Grigson is shown to have testified in a capital murder
case in which the defendant challenges his conviction and sentence of death,
the captions of those cases in which relief was granted read almost like the
following: “THIS IS ANOTHER DR. GRIGSON CASE.”[Sic] The number
of these cases is so great that I will simply refer the reader to either Westlaw
or Lexis and not cite them71

Dr. Grigson has been proven wrong in many cases.72 In 1995 he was expelled from the

APA and from the Texas Society of Psychiatric Physicians. Both determined his binary

absolute predictions violated ethics.73 Remarkably he still continues to be appointed as

expert witness by Texas courts to predict future dangerousness on the capital statute.

Other problems with the litigation process lead to dangerousness being dangerous.

Marx’s famous quote of how formal equality leads to substantive inequality rings true

here. As the Court noted in Barefoot cross-examination was sufficient to question the

68

See annex
69

Marquart Op Cit p458

70

Texas Defender Service Op Cit n65 at 30

71

Bennett v. Texas, 766 S.W.2d 227, 231 (1989)

72

The most notable being Randall Dale Adams who Dr. Grigson described as an incurable sociopath with no
regard for life. The famous documentary The Thin Blue Line helped exonerate Adams and not once in his
12 years of confinement or since his release has he committed a crime cf Texas Defender Service 32, 33.
Yet Dr. Grigson still asserts Adams will kill again. Paul C. Giannelli, “Junk Science”: The Criminal Cases,
84 J. Crim. L. & Criminology 105, 116 (1993) cited in La Fontaine Op Cit
Also see: Marquart et all (1989) Op Cit p458 describing a defendant deemed extremely dangerous who
later had his sentence commuted and never committed a violent act again.
73

Texas Defender Service Op Cit., at 29–30

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probative value of adduced expert testimony. However, that is contrary to the empirical

evidence. Jurors are more likely to rely on a psychiatrist who is 100% certain of his

prediction than a psychiatrist who simply states such predictions are unreliable.74 The

psychiatrist stating that predictions are unreliable cannot therefore adduce the opposite,

“this defendant will not offend again”. They appear less certain75. The counter balance

cross-examination provides is minimal then. Justice Blackmun again puts it best:

Given a choice between an expert who says that he can predict with certainty
that the defendant, whether confined in prison or free in society, will kill
again, and an expert who says merely that no such prediction can be made,
members of the jury charged by law with making the prediction surely will
be tempted to opt for the expert who claims he can help them in performing
their duty, and who predicts dire consequences if the defendant is not put to
death

Even more appalling is the dramatic appeals to jurors civic duty ruthless prosecution

attorneys indulge in. One attorney stated, if you (the jury) acquit the defendant “upon

your heads will lie the next man that's dead due to [the defendant's] hands.” 76 This is

similar to problems of over-prediction in clinical methods – people do not want to be

‘responsible’ for further violence. Astonishingly the Court was aware of all these

arguments in the Barefoot case. Justice Blackmun’s dissent featured literally dozens of

references to studies and the APA’s brief also strongly advised the court psychiatrics

cannot predict dangerousness and contained even more references. Yet the majority held

that the litigation process would do justice with no citations to empirical evidence. That

conclusion is contrary to the data that the court was fully aware of.

74

Mantell, A Modest Proposal to Dress the Emperor: Psychiatric and Psychological Opinion in the Courts, 4
Widener J. Pub. L. 53, 62–63 (1994) 65-66 cited in La Fontaine
75

APA’s Brief at 6, (No. 82–6080) in Barefoot

76

Fortenberry v. Texas, 4719 (1977) cited in Marquart Op Cit. p460

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The actuarial and clinical methods set out in part one of the paper look as scientific

as general relativity in comparison to the Texas case study. Even with more scientific

objective methods the courts have a fundamental misunderstanding of simple probability

theory: the base rate.

Problems with the base rate

When there is a low base rate for violence, predictive methods that are highly

valid will generate a large number of false positives. That is, incorrectly identify those as

dangerous who are not dangerous. An arithmetic example is in order77. In a prison

population of 1000, 15% (150) will commit another violent act if released, 85% (850)

will not - a 15% base rate. Assume there is an actuarial procedure that is 90% accurate.

This procedure will accurately label 135 violent persons (0.90x150). However it will

falsely label 85 as violent (0.10x850). 220 are labelled violent in total, only 61% (135)

will re-offend when released. 39% would not re-offend but would still require

incarceration.

However, as part one has shown the best we can achieve is in the magnitude of

75% accuracy. Using the same base rate (15%) out of 1000 people, the actuarial method

would correctly label 11378 (0.75x150), however it would incorrectly label 22279

(0.25x887). 388 in total are labelled ‘dangerous’ yet only 113 will commit offences. The

77

Derrived from Trowbridge, ‘Age and Recidivism: How Accurate are Our Predictions’, Washington
Criminal Defence, Nov 2004, Vol 18. No.4
78
Strictly speaking 112.5, but you cannot have half a person and you commonly round up in statistics.
79

221.75, rounded up

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0521280

original 75% accuracy figure becomes 29.1%. It is not justified under even the weaker

civil standard of proof, let alone the criminal standard to justify detaining 222 people

undeservedly.

Elder sex offender populations have very low base rates (5%)80. Yet Civil

Commitment of sex offenders in the US requires dangerousness to be taken into account.

Civil Commitment is where the offender has completed their sentence and are moved into

a new location if deemed ‘dangerous’. The Washington Statute requires “evidence

beyond reasonable doubt” that a sex offender is ‘likely’ to engage in future sexual

violence.81 In Young the Washington Supreme Court interpreted this to mean “the

likelihood of re-offence is extremely high.”82 The court had quoted Dr. Vernon Quinsey

an eminent figure stating that the predictive accuracy of sexual recidivism “can

realistically be expected to be in the 80% range83”. Court felt those falling within the
84
procedure with 80% accuracy the “likelihood of re-offence is extremely high.” The

Court had a fundamental misunderstanding, thinking 80% accuracy would result in 80%

being correctly selected. They did not take the base rate into account. The Civil

Commitment Program in California has a mean age of 50.9 years.85 The high mean age

80

Hanson, R.K. (2001). Age and sexual recidivism: a comparison of rapists and child molesters, Ministry of
the Solicitor General of Canada, www.sgc.gc.ca/epub/corr/eage200101/eage200101.htm 4 percent of those
over 60 recidivated over an average follow-up period of seven years cited in Trowbridge
81

Washington Rev.Code 71.09.020(1)

82

re Young (Wash 1993) 857 p. 2d989 cited in Trowbridge Op Cit

83

ibid
84

ibid
85

Imren, D.; Hughes, M.; Hennessy, M.; Mitter, T.; & Russell, K. (March 17, 2004). “Treatment of the
Sexually Violent Predator: Where are we?” presented at the annual conference at Asilomar Campgrounds in
Pacific Grove, California, of the Forensic Mental Health Association of California. Cited in Trowbridge.

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suggests many false positives since older sex offender populations have a 5% base rate.

Hundreds, perhaps thousands are detained on very weak grounds.

New Jersey’s method of Civil Commitment is worse. Far from taking actuarial

methods into account virtually anything is admissible to predict dangerousness;

including, Freudian psychoanalysis of foot fetishes to bumping into prison female guards

by accident86. These two situations actually resulted in confinement.87

Conclusion

Dangerousness is dangerous because currently it is used wrongly, at least by the

US courts. Part one examined the fundamental problems with predictions. In reality these

problems rarely even surface because predictions of dangerousness in practice, far from

using quasi-scientific methods, use completely subjective clinical evaluations. ‘Dr. Death’

and others like him distort how science can help us predict dangerousness and their

testimony has extreme prejudicial effect so their probative value is minimal. In capital

punishment states this results in the worrying and somewhat sad case of people dying. We

86
New York Times Report by Mansnerus on November 17, 2003 ‘Questions Rise Over Imprisoning Sex
Offenders Past Their Terms’ available online
http://query.nytimes.com/gst/fullpage.html?res=9C07E7D71138F934A25752C1A9659C8B63&sec=he
alth&pagewanted=print Username/password access required. On detail with the author.

87
Ibid, the author notes it is impossible to determine what weight the judge gave to the evidence but
psychiatrists testified having a foot fetish as a poor prognostic sign and bumping into a female guard
signified. Quoted from article “Mr. Deavers's public defender, Joan Van Pelt, said the incident had been an
accident and not sexually motivated, and introduced the results of a polygraph test that backed him up. But
the state's psychiatrist was skeptical.

''That doesn't mean he didn't have those thoughts,'' said the psychiatrist, Dr. Charles Gnassi. ''Brushing past
a woman, a man -- it's difficult, I would think, not to have some type of sexual thinking.''

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can use dangerousness to help our legal system but its extreme prejudicial effect has to be

stemmed. The current due process provisions, at least in the US cannot perform this

function adequately. Admissibly of evidence rules need updating, judges and defence

lawyers need educating and perhaps juries need to be abolished in capital cases. 88 In

short the shift of power from the judiciary to extra-judicial elements which Foucault was

so wary of needs to be stemmed – simply by education and updating court procedure.

Dangerousness is propagating throughout all of laws empire - the empire needs to strike

back.

88
Of course in the US trial by ones peers is enshrined in the constitution so would be hard to reform

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