dangerousness: from legal definition to theoretical research

Dangerousness: From Legal Definition to Theoretical ResearchAuthor(s): Charles W. Lidz and Edward P. MulveySource: Law and Human Behavior, Vol. 19, No. 1 (Feb., 1995), pp. 41-48Published by: SpringerStable URL: http://www.jstor.org/stable/1394063 .

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Law and Human Behavior, Vol. 19, No. 1, 1995

Dangerousness

From Legal Definition to Theoretical Research*

Charles W. Lidz and Edward P. Mulvey

Saleem Shah played a major role in the development of both policy and research concerning the prediction of dangerousness to others over two decades. During that period his commitment to the welfare of people with mental illness led him first to challenge the legitimacy of such predictions and later to support research to improve them. His ideas were central to most of the research that has been done in this area. This article suggests a direction for future research concerning the prediction of dangerousness to others that elaborates and extends his thinking by focusing on the research necessary to help individuals with mental illnesses to minimize their involvement in violence.

For a quarter century, Saleem Shah was a dominant force framing both the debate and research about the potential dangerousness of persons with mental disorders. He could not let the issue go. He both led and mirrored changes in the ways that policymakers, clinicians, and researchers thought about dangerousness and mental illness. His role was so central, and his influence so profound that it is all but impossible, for most of us, to know where his thoughts ended and ours began. In this brief review of his work we will describe how his views evolved and changed, and how the field continues to carry forward many of Saleem's ideas and values.

Saleem began his work on this topic in the late 1960s, adopting what might be called an abolitionist view of the prediction of dangerousness to others (Mulvey & Lidz, 1985). Saleem then moved to a leading position among those who sought to improve the prediction of dangerousness. Yet, by suggesting how to do things that he had previously condemned, he did not compromise the values that under-

* Work on this paper was partially supported by a grant from the Violence and Traumatic Stress Branch of the National Institute of Mental Health and the United States Secret Service (MH40030). Address correspondence to the authors at Law and Psychiatry Research, Western Psychiatric In- stitute and Clinic, 3811 O'Hara Street, Pittsburgh, PA 15213.

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0147-7307/95/0200-0041$07.50/0 ? 1995 Plenum Publishing Corporation



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pinned this initial work. His ability to integrate emerging theoretical ideas and policy trends, and his constant commitment to pragmatic research, made this a logically and morally seamless transition.

Abolitionism

Saleem Shah knew from experience what it is to predict dangerousness. He began his involvement with this issue as a clinician conducting evaluations for the District of Columbia Circuit Court. His discomfort with that process and, partic- ularly, his clinical commitment to the welfare of the patients whom he saw there persisted throughout his involvement with the issue. His concern about what would be fair to persons with mental disorders led him through a variety of different intellectual positions about dangerousness as the legal and social con- texts of the issue changed.

At the 1974 American Psychiatric Association Meetings (Shah, 1974), and the next year in a paper in the American Journal of Psychiatry (Shah, 1975), Saleem articulated the basic argument for why the law should not ask mental health professionals to make predictions of dangerousness to others. Basically, he at- tacked the use of the dangerousness criterion for civil commitment as nothing more than another way to accomplish preventive detention. The argument against this use of predictions of dangerousness had two anchors: Constitutional law and empirical research. The law provided the basis for criteria of fairness and justice that patients, as citizens, deserved. Social scientific research provided the evidence of the injustice.

The Constitutional argument was based on the position that civil commitment, like imprisonment, involved the use of the state's police powers to produce involuntary detention. Two points seemed to follow. First, civil commitment proceedings should thus provide the same due process protections that criminal procedure provided. Second, if these protections were not to be provided, there should be some compelling state interest that justified such a policy.

The call for due process protections in civil commitment proceedings was a straightforward attempt to remedy a wrong through increased regulation of the imposition of state power. Like many others during this period, Saleem saw procedural legal protections as a major way of implementing social change. Con- sistent with this goal, much of his writing on the subject addressed the need for both legal scholars and researchers to clarify terms and constructs. By the late 1960s, the courts had already begun to describe in detail the due process require- ments for involuntary hospitalization and there was reason to believe that the courts would continue to extend rights to mental patients. Saleem's push was for thoughtful dialogue about how to capitalize on this trend.

In the end, however, Saleem's hopes for the power of increased and clearer due process went unfulfilled. Moreover, he grew increasingly doubtful that the changes that had occurred really meant that the mentally ill were being treated well. Thus, he wrote that "while it is evident that impressive strides have been made toward general judicial applications of more precise and narrowly con-

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structed legal definitions of dangerousness, there is no guarantee that the 'law in practice' will conform to the 'law on the books' " (Shah, 1978, p. 226).1

More controversial was the "substantive due process" argument that sug- gested that there should be a rational relationship between the detention of "dangerous" mentally ill persons and a legitimate societal goal. This position led directly to a concern with the validity of the prediction of dangerousness in the mentally ill. As Saleem noted, "the linking of dangerousness with mental illness enabled society to utilize preventive detention against certain groups of individuals, a practice which would otherwise run afoul of the Constitution" (Shah, 1975, p. 503).

Saleem relied on three related, but distinct, points to make the case that there was, at best, a weak substantive due process justification for the use of the dangerousness standard in civil commitment. First, he pointed out that no studies had found markedly higher rates of violent crime among persons with mental disorders than among the rest of the population. It is clear from his writings that Saleem was concerned that this research was less than perfect and somewhat conflicting, but it seems that he was largely convinced of the general point. Sec- ond, Saleem pointed out that it is all but impossible to predict low-base-rate phenomena like serious violence. The frequency with which he used this argument, and the detail with which he described it, suggests that this was the evidence that he relied on most. Finally, there was the empirical research that had cast serious doubt on the ability of clinicians to predict dangerous behavior at all, and certainly not at a level of accuracy that met Constitutional standards of proof.

At the end of his article in the American Journal of Psychiatry, Saleem's abolitionist position regarding the dangerousness of mentally ill persons was quite clear:

In the view of the very vague definitions of "dangerousness," the very low predictive accuracy and the glaring overpredictions of such behavior, and the involuntary and indeterminate loss of liberty that follows civil commitment, the labeling of the mentally ill as dangerous could in itself be regarded as a rather dangerous activity. (Shah, 1975, p. 505)

Beyond Abolitionism

As persuasive as this argument was to many social scientists, courts did not accept it. In a series of decisions throughout the 1970s and 1980s (e.g., Barefoot v. Estelle, 1980), federal and state appellate courts upheld the legitimacy of mental health professionals making predictions about future violence. Continuing to ar- gue that the prediction of dangerousness is itself dangerous was unlikely to make much headway in the face of these decisions.

Saleem's movement beyond abolitionism was partly a pragmatic response to

Saleem's conviction that legal reform was an important influence on clinical practice never com- pletely disappeared. Long after the above article was written, when we showed Saleem evidence that, in spite of court decisions mandating it, our sample of psychiatrists did not seem to be reeval- uating the dangerousness of patients at discharge, he simply refused to believe it.

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this new environment. Never an ideologue, Saleem realized that a commitment to fairness for patients should not include a rigid adherence to a position that did them no good. Instead he began to focus on improving the prediction of dangerousness and minimizing the error that he felt, nonetheless, would continue to be very substantial.

His strategy was to understand how bias might intrude into the judgment process and to explore the possibilities of actuarial prediction. He reviewed the newly published work of Kahneman, Tversky, and others about judgment heuristics (e.g., Kahneman, Slovic, & Tversky, 1982) and the work of Paul Meehl and others regarding the higher accuracy of actuarial approaches over clinical judg- ments (e.g., Meehl, 1973). His appreciation for the potential applicability of this work to the task of improving the prediction of dangerousness pushed him to call for more consideration of the effects of context and the systematic judgment biases that might be operating in efforts to predict violence. The conclusions he drew from this literature were to influence profoundly his own career and, we believe, the entire area of research:

Nevertheless, greater awareness of and sensitivity to the aforementioned systematic errors, and related training efforts, should help both to distinguish the technical difficul- ties of the predictive task from the social pressures and to develop procedures that make more effective use of normative statistical principles in efforts to reduce error rates. (Shah, 1978, p. 230)

In short, he concluded that a careful analysis of the predictive task was justified by its benefits even if in the best of all possible worlds such predictions should not be made.

Once started down this road, the black and white nature of the argument about the use of predictions of dangerousness began to appear more grey. Both in his writings and in his role as promotor of, and counselor to, the field, Saleem backed away from the ideological aspect of the issue. Instead, he focused on the complex and rich empirical issues surrounding the analysis of clinical judgment. As he put it, only five years after his strongly abolitionist American Journal of Psychiatry article:

The topic of dangerousness seems often to be associated with strong beliefs and ideol- ogies and, understandably, such feelings and explicit and implicit value systems tend very much to influence how we define and study such phenomena and also how we wish to deal with them. It seems desirable, at least initially, to distinguish certain essential empirical and technical questions from the normative, ideological, and policy concerns that also have to be considered. (Shah, 1981, p. 160)

Setting the Course for Research

Saleem's reorientation to the issue of predicting violence produced both conceptual and practical ripples in the field. His writings proposed the next specific questions to be addressed. His unflagging official and interpersonal efforts made

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sure not only that certain people would do the research, but also that they would do it appropriately.2

The central point that Saleem kept pushing researchers and policymakers to realize was that the assessment of dangerousness was not a uniform phenomenon, and that continuing to think of it as such hampered our efforts to improve practice and design reasonable regulation:

Can dangerousness be predicted? ... the answer ... cannot be given in any clear or definite fashion ... No reference was made to particular groups or subgroups, nor was there any mention of the predictive methods to be used (clinical or actuarial) or the level of accuracy to be expected. (Shah, 1981, p. 160)

The ability of clinicians to predict future violence depended greatly on the population being assessed, the goals of the assessment, and the quality of the assessment.

Clearly, if one focused on chronic recidivists, the risk of violence must be much higher. Saleem had often written that the justification for preventive detention seemed stronger for chronic recidivists than for mentally ill persons, and he saw the extension of this argument to high-risk subgroups within the mentally ill population as reasonable. Similarly, an assessment of dangerousness for the purposes of release from a forensic hospital was not totally analogous to the determination of dangerousness for the purposes of civil commitment. These are qual- itatively different judgment situations with regard to the behaviors of concern, the judgment process pursued, and the potential outcomes for the individual of the different decision options.

These conceptual arguments were crystallized by John Monahan (1984) in a call for a "second generation" of more focused research on dangerousness. As a result, a field that had seen little research activity for several years was revital- ized. The issues no longer seemed settled. Instead they appeared as formidable challenges.

For Saleem, however, this was more than just an interesting evolution of a field of inquiry. His was not solely an "academic" interest. As Chief of the Antisocial and Violent Behavior Branch of NIMH, Saleem felt a personal respon- sibility to see that substantial research actually got done in this area. This was not an easy task. Many believed that the issue had been settled by the work of Steadman and others in the 1970s. In significant part through Saleem's personal efforts, however, a new set of researchers were brought into the field.

We cannot verify his impact on others' interest in the field, but we can attest to the fact that his renowned, dogged determination largely dragged us into work- ing on the issue. Our involvement with dangerousness began when one of us (CL) went to talk to Saleem about a project on confidentiality using comprehensive ethnography of hospital-based psychiatric care. Saleem's answer was that such a

2 Clearly one of the most important of Saleem's efforts in this direction was his sponsoring and publishing of the monograph by John Monahan (1981). As Monahan remembers it, Saleem's influence on the monograph was much greater than just as its sponsor. As with much of the work that he supported, he was an active intellectual contributor and critic.

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project could not be funded out of his program, but that the same methodological approach, if focused on dangerousness, would be very viable.

We were not very interested. We were sure that the basic issue had been settled years before and we could not see any plausible way around that. Two weeks later Saleem called back; There was no question that we really needed to do this work. Obviously, in the end, we did. It was a good idea, but one that we were not able to see as clearly as Saleem did.

This prodding to do the research only began our association with Saleem; we repeatedly heard from him about the project after it began. He monitored it closely, encouraged us in our analyses and reapplications, and shared with us his almost endless supply of ideas on the subject. It is not too strong a statement to say that many of our most prominent ideas on the subject are only elaborations of the thoughts and comments that he shared with us. From the reports of others who work in this field, it is clear that we were not unique.

Where Do We Go Without Him?

If we have understood him correctly, one of the main interests in Saleem's life was seeing a better, and especially fairer, management of violence by persons with mental disorder. What clearly survived throughout his professional career was a conviction that it is unjust to use preventive detention for persons with mental disorder if others, who were equally dangerous, were not so detained. This led him, and many others, to consider the possibility of managing the violence of such patients on an outpatient basis. Taking on this task seems to be the next challenge left to us by Saleem.

Such a goal requires the solution of at least two major puzzles. First, we must develop some method for selecting patients with a high potential for violence and efficiently monitoring their risk of violence over time in the community. This involves consideration of all of the enduring issues surrounding the problem of prediction (e.g., level of false positives, use of actuarial information), coupled with the problems of accounting for the relationships of intraindividual variation to potential for violence. Second, one needs a mechanism of treatment that will have an effect on type and level of violence, and will prove attractive to patients. It is by no means obvious that simply managing patients' psychiatric symptoms or requiring compliance with focused interventions will reduce levels of violence. An attractive form of intervention with demonstrated effects on violence is what is needed.

Neither of these is a simple problem, but some progress has been made toward addressing both of them. In the area of prediction, it now seems that clinicians may do better at predicting future violence than we previously thought (Lidz, Mulvey, & Gardner, 1993), and that it is possible to produce rather simple, but accurate, screens for future violence for certain groups (Harris, Rice, & Quinsey, in press). Much of this progress rests on the detection of higher base rates of violence in the samples examined, thus skirting the obstacle of trying to predict low-base-rate behaviors (an inevitable problem identified many years ago by Saleem). By integrating actuarial and clinical judgment, development of a

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highly specific screen with acceptable generalizability across geographic and or- ganizational locales may not be an unattainable goal.

Even if the prediction problem proves solvable, there is still the need for a treatment approach that will reduce the amount of violence involving patients in the community. The amount of empirical research on this issue is sparse. While there is some evidence that increased symptomatology may be related to violence in the community (Swanson, Holzer, Ganjo, & Jono, 1990; Link & Stueve, 1994; Mulvey, 1994), it is also clear that simple reduction in symptoms is not likely to have a major effect on the level of violence seen in patients in the community (Mulvey, Gardner, Lidz, Shaw, & Graus, 1994). The best methods for intervention might involve the design of a specialized form of intensive case management intervention (Dvoskin & Steadman, 1994), with additional treatment components specifically addressing violence through such strategies as anger management (Novaco, 1994) or some adaptation of relapse prevention (Brownell, Marlatt, Lichtenstein, & Wilson, 1986). Such interventions might offer the comprehensive approach seemingly necessary to address the interactive nature of violence. The effectiveness of interventions of this sort is untested, however.

The challenge that Saleem laid down to the field and to many of us individ- ually is still with us. His unyielding commitment to theoretical rigor, practical importance, and the promotion of human dignity can serve us well as a model for our present and future efforts. It would have been immensely easier and more enjoyable to think these issues through with him here to prod us on. We are truly hampered by his loss, but we are fortunate to have his legacy.

REFERENCES

Barefoot v. Estelle, 51 U.S.L.W. 5190 (1980). Brownell, K. D., Marlatt, G. A., Lichenstein, E., & Wilson, G. T. (1986). Understanding and pre-

venting relapse. American Psychologist, 41, 756-782. Dvoskin, J. A., & Steadman, H. J. (1994). Reducing the risk of living with mental illness: Managing

violence in the community. Hospital and Community Psychiatry, 45, 679-684. Harris, G. T., Rice, M. E., & Quinsey, V. L. (in press). Violent recidivism of mentally disordered

offenders: The development of a statistical prediction instrument. Criminal Justice and Behavior. Kahneman, D., Slovic, P., & Tversky, A. (Eds.) (1982). Judgment under uncertainty: Heuristics and

biases. New York: Cambridge University Press. Lidz, C. W., Mulvey, E. P., & Gardner, W. P. (1993). The accuracy of prediction of violence to others.

Journal of the American Medical Association, 269, 1007-1011. Link, B. G., & Stueve, C. A. (1994). Psychotic symptoms and the violent/illegal behavior of mental

patients compared to community controls. In J. Monahan & H. J. Steadman (eds.), Violence and mental disorders: Developments in risk assessment (pp. 137-160). Chicago: University of Chicago Press.

Meehl, P. (1973). Psychodiagnosis: Selected papers. New York: Norton. Monahan, J. (1981). The clinical prediction of violent behavior. Washington, DC: National Institute of

Mental Health. Monahan, J. (1984). The prediction of violent behavior: Toward a second generation of theory and

policy. American Journal of Psychiatry, 141, 10-15. Mulvey, E. P. (1994). Assessing the evidence of a link between mental illness and violence. Hospital

and Community Psychiatry, 45, 663-668.

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Mulvey, E. P., Gardner, W. G., Lidz, C. W., Shaw, E., & Graus, J. (1994). Symptomatology and violence among mental patients. Manuscript submitted for publication.

Mulvey, E. P., & Lidz, C. W. (1985). Back to basics: A critical analysis of dangerousness research in a new legal environment. Law and Human Behavior, 9, 209-219.

Novaco, R. (1994). Clinical problems of anger, its assessment, and its regulation through a stress coping skills approach. In W. O'Donohue & L. Krasner (Eds.), Handbook of psychology in skills training (pp. 134-187). New York: Pergamon.

Shah, S. (1974, May). Dangerousness and civil commitment of the mentally ill. Paper presented at the annual meeting of the American Psychiatric Association, Detroit.

Shah, S. (1975). Dangerousness and civil commitment of the mentally ill: Some public policy consid- erations. American Journal of Psychiatry, 132, 501-505.

Shah, S. (1978). Dangerousness: A paradigm for exploring some issues in law and psychology. Amer- ican Psychologist, 33, 224-238.

Shah, S. (1981). Dangerousness: Conceptual, prediction and public policy issues. In J. R. Hays, T. K. Robert, & K. S. Solway (Eds), Violence and the violent individual (pp. 151-178). New York: SP Medical and Scientific.

Swanson, J., Holzer, C., Ganju, V., & Jono, R. (1990). Violence and psychiatric disorder in the community: Evidence from the Epidemiological Catchment Area surveys. Hospital and Commu- nity Psychiatry, 41, 761-770.



dangerousness: from legal definition to theoretical research

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