a paradox of bias: racial differences in forensic psychiatric diagnosis and determinations of...

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Race and Social Problems

© Springer Science+Business Media New York 201310.1007/s12552-013-9100-3

A Paradox of Bias: Racial Differences in Forensic Psychiatric Diagnosis and Determinations of Criminal ResponsibilityBrea L. Perry 1 , Matthew Neltner 2 and Timothy Allen 3

Department of Sociology, University of Kentucky, Lexington, KY, USAUniversity Health Service, University of Kentucky, Lexington, KY, USADepartment of Psychiatry, University of Kentucky, Lexington, KY, USA

Brea L. PerryEmail: [email protected]

Published online: 12 June 2013

Abstract

Although there is substantial evidence that African Americans receive unequal treatment in both the healthcare and criminal justice systems, less research has investigated the role of race when these two systems converge. Here, we examine the influence of race on patterns of forensic psychiatric diagnosis and determinations of criminal responsibility in pre-trial correctional facilities (e.g., forensic psychiatric hospitals). Data are from a medical chart review of 129 randomly selected competency evaluations that occurred in a pre-trial correctional psychiatric facility. Consistent with previous research, findings indicate that African Americans are disproportionately diagnosed with highly stigmatized psychotic spectrum disorders relative to whites. In addition, they unexpectedly indicate that African Americans are significantly more likely than whites to be found not criminally responsible by the court-appointed evaluating mental health professional, controlling for sociodemographic characteristics, number of violent and non-violent charges, and other potential confounding variables. Mediation analysis reveals the important and previously undocumented finding that the effect of race on criminal responsibility determinations is fully mediated by differential diagnosis. This suggests that patterns of racial inequality and potential bias in the

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9/12/2014http://link.springer.com/article/10.1007/s12552-013-9100-3/fulltext.html

diagnostic process may confer medical resources and other benefits for African Americans in the context of the criminal justice system.

Keywords Race – African American – Psychiatric diagnosis – Criminal justice – Forensic psychiatry – Not guilty by reason of insanity (NGRI)

Introduction

Racial and ethnic inequality is evident in both the American healthcare system and criminal justice system. With respect to health care, research suggests that African Americans have less access to health services and tend to receive delayed treatment and lower quality acute and long-term care than whites (Wright and Perry 2010; Smedley et al. 2002; Williams and Rucker 2000). Disparities are particularly pronounced in the area of psychiatric treatment, with documented differences in treatment-seeking, barriers to receiving care, higher likelihood of involuntary hospitalization, and provider bias that affects clinician–patient interactions and treatment outcomes (Segal et al. 1996; Snowden 1999; Snowden and Pingitore 2002; van Ryn and Burke 2000). Of central concern for this analysis are racial disparities in diagnosis, wherein African Americans are disproportionately likely to be diagnosed with a psychotic disorder (Blow et al. 2004; Neighbors et al. 1999; Strakowski et al. 2003). In general, undiagnosed or misdiagnosed mental illness among racial and ethnic minorities is a major public health concern as it results in worse acute and long-term outcomes for those affected (Wang et al. 2005). In addition, because psychotic disorders are more highly stigmatized by the American public, this pattern of misdiagnosis has critical implications for the social status and life chances of labeled individuals (Phelan et al. 2000; van Dorn et al. 2005).

In recent decades, the mental health and criminal justice systems have become increasingly intertwined, with greater numbers of people with serious mental illness now being detained and treated in correctional facilities than in psychiatric hospitals (Lamb and Weinberger 2001). Since the deinstitutionalization movement began in the 1960s, there has been a sharp reduction in in-patient psychiatric hospital capacity that poses barriers to providing appropriate long-term care for the most severely impaired and socioeconomically disadvantaged patients (Ehrenkranz 2001; Lamb and Bachrach 2001). Consequently, there has been an increase in untreated mental illness in urban areas, leading to homelessness, crime, and arrests (Markowitz 2006; Mechanic and Rochefort 1990). This trend has been termed the criminalization of mental illness (Abramson 1972).



The mental health and criminal justice systems converge most overtly in psychiatric pre-trial correctional facilities and mental health courts. Criminal defendants are evaluated by psychiatrists and psychologists for competency to stand trial and criminal responsibility in cases where mental illness is suspected. In a very small minority of cases, individuals with mental illness may be determined not guilty by reason of insanity (NGRI), meaning (in many jurisdictions) that “…the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts” (Federal Insanity Defense Reform Act, 1984). In such cases, defendants are either released from custody or committed to a psychiatric facility rather than a prison and released when they pose no further threat rather than serving out a mandated sentence in prison. An NGRI finding is a preferable legal outcome in most cases since social conditions and access to mental health treatment are substantially better in psychiatric hospitals relative to prisons (Baillargeon et al. 2010; Birmingham 2003; Forrester et al. 2010).

On the whole, African Americans are disadvantaged across nearly all sectors of the criminal justice system—from higher arrest rates to harsher sentencing (Higginbotham 2002; Pettit and Western 2004; Roberts 2004). Paradoxically, there is modest evidence that African Americans are more likely than whites to be found NGRI (Poulson 1990). However, mechanisms underlying this counter-trend are not well understood. More research is needed to determine how race affects criminal responsibility determinations in criminal courts and diagnostic decisions in forensic psychiatric facilities, and whether these are related.

Here, we use data from 129 pre-trial competency evaluations in a forensic psychiatric facility obtained through retrospective chart review. We examine whether African American patients were more likely to be diagnosed with a psychotic disorder and to be recommended not criminally responsible relative to whites by the court-appointed evaluator. Then, we assess whether the impact of race on criminal responsibility determinations works through racial disparities in diagnosis, conferring additional medical care and other resources for African Americans in this small sector of the criminal justice system.

Racial Disparities in Psychiatric Diagnosis and Treatment

African Americans are about three to four times as likely as whites to be diagnosed with psychotic disorders such as schizophrenia (Blow et al. 2004), and only about a third of the effect of race can be explained by socioeconomic status (SES) differences across racial groups (Bresnahan et al. 2007). A substantial proportion of racial disparities in psychiatric diagnosis reflects real differences in the incidence of disorder and is likely attributable to



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social epidemiological factors such as racism and segregation into impoverished neighborhoods (Williams 1999; Williams and Jackson 2005). However, another source is provider behavior and clinical decision-making (van Ryn 2002; van Ryn and Fu 2003), which may artificially inflate rates of psychotic disorders among African Americans.

Substantial evidence indicates that patient race significantly affects psychiatric diagnosis such that African Americans are more likely to receive a diagnosis of schizophrenia and less likely to be diagnosed with depression than whites similar on relevant characteristics (DelBello et al. 2001; Kales et al. 2000; Lawson et al. 1994; Loring and Powell 1988; Neighbors et al. 1999; Raybur and Stonecypher 1996; Takei et al. 1998; Trierweiler et al. 2000). For instance, Strakowski et al. (2003) found that African American men diagnosed with affective disorder by expert consensus were significantly more likely than other patients to be diagnosed with a schizophrenia spectrum disorder by clinical assessment and structured interview. Research across a variety of settings and samples indicates that African Americans are 10–40 % more likely to be diagnosed with psychotic spectrum disorders than whites and other comparison groups (for reviews, see Adebimpe 1981 and Neighbors et al. 1999).

Several potential explanations for over-diagnosis of psychotic spectrum illness among African Americans have been offered. It may be that diagnostic criteria are biased and ethnocentric, making the DSM a less valid and reliable diagnostic tool for some racial or ethnic groups relative to others (Funtowicz and Widiger 1995; Widiger and Spitzer 1991). Alternatively, the application of diagnostic criteria to different racial or ethnic groups by clinicians may be unintentionally biased. For example, there is evidence that clinicians differentially attribute and weigh various symptoms (e.g., hallucinations, paranoia, and elevated mood) in making diagnostic decisions about African Americans versus other groups (Trierweiler et al. 2000). These patterns can be the result of patients’ cultural mistrust of the medical system, ineffective communication and weak therapeutic alliance between clinicians and patients, or clinicians’ cultural misunderstandings and racial prejudices (Neighbors et al. 1999; Snowden 2003; Vasquez 2007).

Although clinicians are expected to objectively weigh biomedical and behavioral evidence in making diagnostic and treatment decisions, disregarding race, gender, socioeconomic status, and other sociodemographic factors, bias may be unavoidable. Stereotyping and social categorization are components of an adaptive cognitive strategy that helps humans make sense of vast amounts of complex information, increasing the speed and efficiency of cognitive processing (Kunda 1999; Stangor 2000). Stereotypes about a group may be applied to individuals during the clinical encounter, unconsciously affecting beliefs and expectations



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about patients (Lewis et al. 1990). For instance, van Ryn and Burke (2000) found that race negatively influenced clinicians’ ratings of patients’ intelligence, personality, and adherence to treatment recommendations after controlling for socioeconomic status, mental health status, gender, and other patient and clinician characteristics. Studies find that through this lens of racial or ethnic stereotypes, similar patient behavior can be interpreted in very different ways, particularly if the behavior is ambiguous (Dunning and Sherman 1997; Lepore and Brown 1997; Sagar and Schofield 1980; Trierweiler et al. 2000).

Other racial differences in psychiatric treatment have been identified, some of which may contribute to differential diagnosis. Controlling for patient behavior and other clinical factors, clinicians spend less time evaluating African American patients relative to whites (Cooper et al. 2003; Segal et al. 1996). Consistent with disparities in diagnosis, African Americans are more likely to be prescribed antipsychotic medications (Dixon et al. 2001 ; Segal et al. 1996). Also, African Americans are more likely to be brought to psychiatric treatment by legal means, emergency room use, and involuntary hospitalization (Akutsu et al. 1996; Rosenfield 1984; Takeuchi and Cheung 1998; Snowden and Cheung 1990; Snowden 1999), and less apt to voluntarily seek or receive psychiatric treatment than whites (Department of Health and Human Services 1999; Snowden and Pingitore 2002; Wang et al. 2005).

Perceived dangerousness is the strongest factor in predicting support of forced treatment for mental illness (Corrigan et al. 2003) and is closely linked to the presence of psychotic symptoms by the American public, mental health treatment providers, and family members of individuals with psychotic disorders (Phelan et al. 2000; van Dorn et al. 2005). Consequently, perceptions of dangerousness and psychotic symptoms are associated both with support for forced or coerced treatment and with more stigmatizing attitudes and greater desire for social distance from individuals with mental illness (Link et al. 1999; Pescosolido et al. 2007; van Dorn et al. 2005; Watson et al. 2005). This research suggests that there may be a link between misdiagnosis of psychotic disorders among African Americans, perceived dangerousness of racial and ethnic minorities with mental health problems, and involuntary entry into treatment through the criminal justice system.

Racial Inequality in the Criminal Justice System

Racial and ethnic minorities experience inequality in the criminal justice system (Maurer and King 2007), which has become increasingly involved in detaining individuals with serious mental illness (Lamb and Weinberger 2001). Pettit and Western (2004) estimate that about twenty percent of African American men are imprisoned by age 30 compared to only three



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percent of white men in the same birth cohort. African Americans, especially young men, are disproportionately likely to be both arrested and convicted of crimes (Higginbotham 2002). Factors that contribute to this pattern are family structure, living in areas of concentrated poverty, low SES, and police and juror racial bias (Higginbotham 2002; Kirk 2008). Once convicted, African Americans receive harsher punishments than whites, with disproportionate numbers of the minority group being imprisoned for 1 year or more (Roberts 2004; Sweeney and Haney 1992).

An area of the criminal justice system in which African Americans may have an advantage is determinations of criminal responsibility. In a very small minority of cases, juries may determine that a defendant is not responsible for his or her crimes due to mental disorder or defect, also known as NGRI. One study suggests that jurors are more likely to find a defendant NGRI if he or she is African American (Poulson 1990). In addition, race has been shown to affect jury determinations in other instances, for example in cases where the jury is concerned that pre-trial publicity is racist (Fein et al. 1997); the jury in such cases tends to give the minority defendant more leeway to offset discrimination. However, whether and how race influences determinations of responsibility for criminal activity among patients with mental illness is not well understood.

In cases where mental illness is suspected, defendants are evaluated for psychiatric disorders that might affect competency to stand trial and criminal responsibility (Knoll and Resnick 2008). Attornies assigned to a case may also request a psychiatric evaluation. Psychiatrists or psychologists provide observation evidence (descriptions of behaviors and cognitions that provide evidence of mental illness), mental disease evidence (psychiatric disorders for which a defendant meets diagnostic criteria, if any), and capacity evidence (whether the mental illness reduced the defendant’s capability to perform mental processes; Wortzel and Metzner 2006). The NGRI defense is employed in <1 % of cases in the US court system and is only successful in about one quarter of those cases (Silver et al. 1994).

However, when a jury makes an NGRI determination, defendants are often committed to a psychiatric facility for an indeterminate period until they pose no further threat rather than to a correctional facility for a pre-determined sentence. Psychiatric facilities are preferred restrictive environments since prisons provide comparatively fewer and lower-quality mental health services, and are characterized by conditions likely to exacerbate mental illness (e.g., overcrowding, physical and emotional abuse by fellow prisoners and prison staff, social isolation; Baillargeon et al. 2010; Birmingham 2003; Forrester et al. 2010). Additionally, because inmates with mental illness detained in prisons do not receive appropriate long-term



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mental health treatment, their likelihood of recidivism and subsequent re-arrest is high (Ditton 1999; NAMI 2004).

Despite the increasing role of mental health courts in the criminal justice system and the sharp increase in mental illness among inmates in recent decades (Lamb and Weinberger 2001), little is known about how race or ethnicity affect diagnostic determinations by clinicians in forensic psychiatric facilities. Furthermore, whether and how race influences determinations of responsibility for criminal activity among pre-trial evaluees with mental illness is not well understood. There is much at stake both in terms of taxpayer burden and outcomes among prisoners with mental illness. On average, in 2001, the annual cost per state inmate was $22,650 (Stephan 2004), and costs are estimated to be nearly fifty percent higher among inmates with serious mental illness (Lovell et al. 2001). In addition, inmates with mental health problems have higher recidivism rates, leading to multiple imprisonments and progressively lengthy sentences (Baillargeon et al. 2009). Since African Americans are disadvantaged in both the criminal justice and mental health treatment systems, understanding how race affects diagnostic and legal outcomes when these systems converge is critical.

The present study is of 129 pre-trial evaluees referred to a forensic psychiatric facility for competency, criminal responsibility evaluation, and/or psychiatric treatment. During an initial examination of these data, we unexpectedly found that white pre-trial evaluees were significantly more likely to be determined to be responsible for their crimes by mental health evaluators than were African Americans. The purpose of this study is to determine whether differential diagnosis with psychotic mental illness (e.g., schizophrenia, schizoaffective disorder, psychosis not otherwise specified) in the forensic psychiatric facility partially or fully accounts for the racial discrepancy in being found responsible for crime.

Methods

Patients were sent to the Kentucky Correctional Psychiatric Center (KCPC) by court order. Transfer to KCPC is typically requested by Defense Counsel for competency to stand trial and criminal responsibility evaluations. By definition, these patients were thought to be cognitively or emotionally impaired by a non-clinician prior to their referral. Medical charts were selected randomly for review from all KCPC discharges in 20061. A database was created recording information from the medical chart, including sociodemographic



information, criminal and psychiatric history, Axis I–III diagnosis, and evaluator determinations of criminal responsibility. Because the charts represent historical data, and no identifying information was recorded, the Institutional Review Board at the University of Kentucky waived the informed consent requirement.

While 194 charts were selected for review, only 131 of these contained information about criminal responsibility determinations. Though efforts were made to contact KCPC to obtain this information, it was not recorded in either patient charts or the state’s electronic database in 63 cases. In addition, two cases were listed as “Hispanic” with no indication of race. These 65 cases (34 % of the sample) were dropped from all analyses. Concerns about the bias this potentially introduces are minimal since a comparison of cases with and without missing data reveal no significant differences by gender, race, socioeconomic status, psychiatric diagnosis, or other study variables.

Measures

Sociodemographic variables are included in multivariate models as controls. These include gender (1 = female; 0 = male) and race (1 = white; 0 = African American). Age and educational attainment are measured in years. Two additional variables measuring diagnosis with a cognitive impairment (e.g., mental retardation) or learning disability (1 = yes; 0 = no) and history of illegal drug abuse or dependence (1 = yes; 0 = no) are included in models as independent variables. Also, two independent variables measure treatment and behavior while at KCPC are included in models. Length of stay is measured in days and a dichotomous variable indicates whether the patient was physically restrained while at KCPC (1 = yes; 0 = no). Independent variables measuring criminal history are separated into total number of violent and non-violent prior convictions and current charges. Alternative coding strategies (e.g., separating previous convictions from current charges) did not alter regression results and resulted in poorer model fit.

With respect to dependent variables, Axis I diagnosis is measured as a series of dichotomous indicators representing affective disorders, substance use disorders (SUDs), and psychotic disorders. Affective disorders include major depression, bipolar, anxiety, and adjustment disorders. Psychotic disorders include schizophrenia, schizoaffective disorder, dementia, and psychosis NOS. All of the evaluated patients were diagnosed with a psychiatric disorder. Diagnostic categories are used as dependent variables in the first set of models and independent variables in the second set. Finally, a dichotomous dependent variable represents



mental health evaluator determinations of criminal responsibility (1 = responsible; 0 = not responsible).

Analysis

Binary logistic regression is employed to model the effects of race and other independent variables on patients’ odds of being diagnosed with a psychotic disorder and their odds of being found responsible for their crimes. To facilitate the use of these results in meta-analyses, odds ratios for the effects of race are converted to effects sizes and presented in text (Chinn 2000). For each outcome, related groups of variables are added in a stepwise fashion, resulting in four restricted models and one full model with all covariates. This strategy permits a preliminary assessment of mediation, which is then fully tested using the sgmediation command in Stata with a bootstrapped estimation of the indirect effect (MacKinnon and Dwyer 1993)—a method that has been shown to produce less biased estimates than the Baron and Kenny (1986) and Sobel (1986) methods in simulation studies (MacKinnon et al. 1995).

Initially, multinomial logistic regression was employed to predict a nominal diagnosis outcome (where 1 = affective disorder; 2 = psychotic disorder; 3 = substance use disorder) rather than a binary one (1 = psychotic disorder; 0 = affective disorder or SUD). However, a binary model is presented for the following reasons: (1) the number of patients with an Axis I SUD is relatively small, introducing estimation bias associated with small cell size; (2) Wald tests did not identify statistically significant differences in the effects of independent variables on the odds of being diagnosed with an affective disorder versus a SUD; (3) results regarding race and psychotic disorders are the same whether patients with SUDs are omitted or combined with affective disorders; and (4) interpretation of binary models is more straightforward and comprehensible by a broader audience of readers. Full results are available upon request. Finally, multicollinearity was assessed using variance inflation factors (VIFs). None of the VIFs exceed 1.5, suggesting that the level of multicollinearity is unproblematic.

Results

Descriptive Findings



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Sample descriptive statistics are presented in Table 1. About 12 % of the sample is female, 78 % is white, and 22 % is African American. Mean age is 33.20, and mean year of schooling is 10.19. About 22 % of patients in the sample were diagnosed with cognitive impairment or a learning disability, and 78 % had a history of abusing illegal drugs. With respect to primary Axis I diagnosis, 32 % were diagnosed with a psychotic spectrum disorder, 58 % with an affective disorder, and 10 % with a substance use disorder. The average length of stay in the forensic psychiatric facility is 46.41 days, and 19 % of patients were secluded or restrained at least once while at the facility. The mean number of past convictions and current violent charges against patients in the sample is 1.92, and the mean number of non-violent convictions and charges is 12.00. Finally, 81 % of patients evaluated at the forensic psychiatric facility were determined responsible for their crimes by the court-

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appointed evaluator.

Table 1

Sample descriptive statistics (n = 129)

Mean SD Range

Female 0.12

Race/ethnicity

White 0.78

African American 0.22

Age in years 33.20 10.53 18–75

Educational attainment in years 10.23 2.37 2–20

Cognitive or learning disability 0.29

History of drug abuse 0.78

Axis I diagnosis

Psychotic disorder 0.32

Affective disorder 0.58

Substance abuse/dependence 0.10

Length of stay in days 46.41 32.65 4–330

Was physically restrained 0.19

Number of violent charges 1.92 2.68 0–18

Number of non-violent charges 12.00 48.31 0–506

Found criminally responsible 0.81



Multivariate Findings on Predictors of Diagnosis

The effects of sociodemographic and other independent variables on diagnosis with a psychotic disorder are depicted in Table 2. According to Model 1, white patients are estimated to be 78 % less likely than African Americans to be diagnosed with a psychotic disorder (p < 0.01) versus an affective disorder or SUD. This constitutes a large effect size (d = 0.89; CI 0.32–1.46). In addition, higher levels of education are associated with a reduction in the odds of being diagnosed with a psychotic disorder (OR = 0.73; p < 0.01). Findings in Model 2 indicate that neither cognitive impairment nor history of drug abuse has a significant effect on diagnosis. However, as shown in Model 3, length of stay in the forensic psychiatric facility is positively associated with the odds of being diagnosed with a psychotic disorder (OR = 1.03; p < 0.01). Neither number of violent nor non-violent



convictions and charges significantly predict psychotic diagnosis (See Model 4).



Table 2

Binary logistic regression of psychotic diagnosis on independent variables (n = 129)

(1) (2) (3) (4) (5)

Female

1.13 1.05 0.84 1.00 0.66

(0.72) (0.70) (0.61) (0.66) (0.51)

White

0.22** 0.24** 0.20** 0.19*** 0.20**

(0.10) (0.12) (0.10) (0.09) (0.10)

Age in years

1.02 1.02 1.01 1.03 1.01

(0.02) (0.02) (0.02) (0.02) (0.03)

Educational attainment in years

0.73** 0.70** 0.74** 0.70** 0.67**

(0.08) (0.08) (0.08) (0.08) (0.09)

Cognitive or learning disability

0.59 0.45

(0.30) (0.26)

History of drug abuse

0.39 0.41

(0.20) (0.23)

Length of stay in days

1.03** 1.03**

(0.01) (0.01)

Was physically restrained

0.56 0.51

(0.33) (0.31)

Number of violent charges

0.93 0.94

(0.08) (0.09)



(1) (2) (3) (4) (5)

Number of non-violent charges

0.99 0.99

(0.00) (0.00)

Pseudo-R2 0.14 0.17 0.22 0.15 0.26

Likelihood ratio X 2 22.64*** 26.90*** 35.46*** 24.82*** 41.56***

Table presents odds ratios (standard errors in parentheses); two-tailed tests; *** p < 0.001, ** p < 0.01, * p < 0.05

The full model with all covariates is presented in Model 5 of Table 2. The effects of race, educational attainment, and length of stay remain significant in the full model, and coefficients are slightly larger or unchanged. This suggests that the effects of these variables are not confounded or mediated by criminal charges, treatment factors, cognitive impairment, or drug abuse history. Holding covariates at their means, the predicted probability that an African American at the forensic psychiatric facility is diagnosed with a psychotic disorder is 56 %, compared to only 21 % for white patients. Likewise, the predicted probability that a patient with an 8th grade education is diagnosed with a psychotic disorder is 48 %, compared to 15 % for a patient with a high school degree and only 4 % for a patient with a college degree. In all, findings are consistent with previous research, suggesting that there are substantial racial and socioeconomic status disparities in diagnosis of psychotic disorders.

Multivariate Findings on Predictors of Court Determination

Results from the regression of criminal responsibility determination by mental health evaluators on race and other independent variables are presented in Table 3. According to Model 1, white patients are estimated to be nearly three times more likely than African Americans to be determined responsible for their crimes (OR = 2.85; p < 0.05). This constitutes a moderate effect size (d = 0.58; CI 0.01–1.14). In addition, being older is associated with a reduced likelihood of being determined criminally responsible (OR = 0.94; p < 0.05). As shown in Model 2, neither cognitive impairment nor drug abuse history is significantly related to criminal responsibility determinations. However, being diagnosed with a psychotic disorder rather than an affective disorder or SUD is strongly predictive of criminal responsibility such that those with a psychotic diagnosis are 94 % less likely to be determined criminally responsible than those with another diagnosis (p < 0.001). This



constitutes a very large effect size (d = 1.53; CI 0.79–2.23). In the model that includes diagnosis, the effects of race and age are substantially reduced and become non-significant, indicating a possible mediating relationship. Results in Models 3 and 4 demonstrate that length of stay, physical restraint, and charges are not significantly related to criminal



responsibility evaluations.



Table 3

Binary logistic regression of criminal responsibility on independent variables (n = 129)

(1) (2) (3) (4) (5)

Female

0.59 0.49 0.64 0.81 0.75

(0.49) (0.39) (0.44) (0.58) (0.68)

White

2.85* 1.04 2.91* 3.87* 1.07

(1.75) (0.67) (1.53) (2.21) (0.83)

Age in years

0.94* 0.96 0.94* 0.93** 0.92*

(0.02) (0.03) (0.02) (0.02) (0.03)

Educational attainment in years

1.03 0.90 1.01 1.06 0.87

(0.10) (0.11) (0.10) (0.11) (0.12)

Cognitive or learning disability

3.48 3.11

(3.08) (2.94)

History of drug abuse

1.17 1.02

(0.77) (0.72)

Psychotic diagnosis

0.06*** 0.03***

(0.04) (0.03)

Length of stay in days

0.99 1.00

(0.01) (0.01)

Was physically restrained

0.81 0.50

(0.52) (0.42)



(1) (2) (3) (4) (5)

Number of violent charges

1.44 1.70*

(0.29) (0.44)

Number of non-violent charges

1.08 1.11

(0.07) (0.09)

Pseudo-R 2 0.10 0.31 0.11 0.17 0.41

Likelihood ratio X 2 12.35* 38.56*** 13.42* 21.14** 50.53***

Table presents odds ratios (standard errors in parentheses); two-tailed tests; *** p < 0.001, ** p < 0.01, * p < 0.05

Findings from the full model are presented in Model 5 of Table 3. Here, age and psychotic disorder remain significant, suggesting that these effects are not confounded by any of the independent variables included in this analysis. Number of violent past convictions and current charges reaches statistical significance in the full model, as well, such that each additional conviction/charge is associated with a 70 % increase in the odds of being determined criminally responsible (p < 0.05). The predicted probability of being determined responsible if diagnosed with an affective disorder or SUD is 99 %, compared to only 73 % for those diagnosed with a psychotic disorder. Also, the predicted probability of being determined criminally responsible for patients with no violent convictions or charges is 91 %, compared to 97 % for patients with two violent convictions or charges and 100 % for those with six or more.

Race becomes non-significant in the full model and the coefficient is substantially reduced compared to Model 1. Results from bootstrapped estimation support the presence of mediation, indicating that the indirect effect of race through psychotic diagnosis is 0.23 (OR = 1.26; p < 0.05) and the direct effect is only 0.01 (non-significant). This constitutes a small effect size (d = 0.13; CI 0.05–0.28). In all, 95 % of the total effect of race on criminal responsibility determination is mediated through diagnosis with a psychotic disorder. African Americans are significantly more likely to be diagnosed with a psychotic disorder, which in turn substantially decreases their likelihood of being determined responsible for their crimes by a court-appointed evaluator.



Discussion

Consistent with previous research (Poulson 1990), our findings indicate that African Americans are less likely than whites to be found responsible for their crimes by mental health evaluators at a forensic hospital even after controlling for socioeconomic status, violence, number of prior offenses, and other factors related to responsibility determinations. However, this relationship is fully mediated by higher levels of diagnosis with psychotic spectrum disorders among African Americans in the forensic psychiatric facility.

These data indicate that individuals with psychotic symptoms are nearly 25 times more likely to be found not criminally responsible than those with affective or substance use disorders—a finding that is unsurprising given the criteria for NGRI laid out by the Federal Insanity Defense Reform Act and most state insanity statutes. Namely, defendants must have a severe mental illness that prohibits them from knowing that their actions were wrong (cognitive prong) and/or prohibits them from conforming their behavior to the requirements of the law (volitional prong). While affective disorders can be severe, unlike psychotic spectrum disorders they are not often accompanied by delusions or perceptual distortions that impair the experience of reality (APA 2000). Additionally, defendants with psychotic spectrum disorders may be perceived by jurors as less responsible for their crimes because their symptoms are often bizarre, severe, and visibly distressing—clear signs of a medical rather than a perceived moral condition. Along these lines, research by Corrigan et al. (2003) suggests that people are more likely to adopt a sympathetic orientation toward those with mental disorders when they are perceived as having little control over their illness.

More remarkably, since the court-appointed evaluator’s opinion is accepted by the court in the vast majority of cases, African Americans’ disproportionate diagnosis with psychotic disorders probably confers medical resources and other benefits in the context of this small sector of the criminal justice system. Specifically, it leads to placement in an environment that is more conducive to positive mental health and legal outcomes and is less dangerous, disorganized, and isolating (Baillargeon et al. 2010; Birmingham 2003; Ditton 1999; Forrester et al. 2010; NAMI 2004). This is paradoxical to the impact of psychotic spectrum diagnoses in the community, which have been associated with greater stigma, social isolation, and reduced life chances (Link et al. 1999; Pescosolido et al. 2007; Phelan et al. 2000; Van Dorn et al. 2005; Watson et al. 2005). However, diagnosis with a psychotic disorder may have long-term consequences for inmates following community reintegration,




particularly if this diagnosis is inappropriate and leads to ineffective treatment and poor outcomes.

Differential diagnostic patterns observed in these data are likely attributable to a variety of mechanisms. As previous research has suggested, clinicians may be unintentionally biased in their application of diagnostic criteria, or the criteria themselves might be biased (Lewis et al. 1990; Trierweiler et al. 2000; van Ryn and Burke 2000; Widiger and Spitzer 1991). These processes may be exacerbated in the context of forensic psychiatric evaluations. First, clinicians’ biased perceptions in this type of clinical interaction may be especially negative and strong since stereotypes and images of African Americans as criminal perpetrators are pervasive in American culture (Kennedy 1997; Russell 1998). In other words, racial biases are likely to be particularly salient and influential since the individuals being evaluated appear to validate racial stereotypes of criminality. In addition, clinician–patient interactions and communication may be strained and ineffective to an even greater degree than is typical of race-discordant clinical encounters (Cooper et al. 2003; Johnson et al. 2004; van Ryn 2002; Vasquez 2007), increasing the likelihood of misdiagnosis. That is, in forensic psychiatric evaluations, the power differential between a white doctor and minority patient is exacerbated by the deviant label and probably also by vast social class inequalities.

Racial disparities in diagnosis found in these data may also reflect real differences in rates of disorder among whites and African Americans in the criminal justice system. African Americans are less apt to voluntarily seek or receive psychiatric treatment than whites (Department of Health and Human Services 1999; Snowden and Pingitore 2002; Wang et al. 2005), often resulting in delayed treatment or no treatment for mental illness (Snowden 2001). When symptoms of untreated mental illness eventually reach crisis levels, it increases the likelihood of criminal activity and of being brought to psychiatric treatment by legal means, emergency room use, and involuntary hospitalization (Akutsu et al. 1996; Takeuchi and Cheung 1998; Snowden and Cheung 1990; Snowden 1999). Thus, for African Americans with psychotic spectrum disorders, the forensic psychiatric evaluation may constitute their first real contact with the mental health treatment system. Conversely, whites with symptoms of psychosis may be more likely to seek treatment earlier and voluntarily, reducing the likelihood that they will end up in the criminal justice system (Markowitz 2006; Mechanic and Rochefort 1990).

Limitations



https://www.researchgate.net/publication/270323318_Race_Crime_and_the_Law?el=1_x_8&enrichId=rgreq-83275450-260a-4ddd-87f1-009c30dfa1bf&enrichSource=Y292ZXJQYWdlOzI1Nzc4Nzk3NTtBUzoxNDA2NDU2NzA4NTQ2NTZAMTQxMDU0Mzk0OTU5Ng==

Because data are from a chart review of pre-trial evaluees referred for psychiatric evaluation, there are many points where selection bias could be introduced. For example, because the detail and accuracy of information in medical charts vary depending on both the individuals recording and reviewing the chart, there may have been errors in the data. However, there is no reason to believe that any systematic errors that might have biased results occurred. Also, a relatively small convenience sample of pre-trial evaluees in one state pre-trial forensic hospital was employed, and there is substantial variation in forensic psychiatric procedures and conditions across the American criminal justice system. There is also a selection bias in which patients sent to the forensic hospital are selected by legal counsel, judges, and medical personnel in the jail without systematic criteria. Consequently, these findings may not be generalizable to other states or systems. We hope that this research serves as a starting point for larger, nationally representative studies on racial and ethnic disparities in diagnosis and court determinations in correctional psychiatric contexts.

Implications for Practice and Policy

From a clinical standpoint, it is critical to develop culturally sensitive assessment and treatment models for use in correctional psychiatric facilities, as well as in the broader community. There are several factors working against the therapeutic alliance when the patient and clinician are from differing racial and ethnic backgrounds (Vasquez 2007). For example, due to a history of abuse by medical researchers and practitioners, African Americans may be skeptical of white clinicians and suspicious of the mental health treatment system in general (King 1992). At times, these attitudes may be mislabeled as symptoms of paranoia during the diagnostic process, leading to higher rates of diagnosis with psychotic spectrum disorders among African Americans (Neighbors et al. 1999). One key component to reducing such misunderstandings and promoting recovery is development of a strong therapeutic alliance (Horvath and Luborsky 1993; Martin et al. 2000). Promoting mutual trust and understanding takes time. When clinicians put more effort into engaging the patient, it appears to reduce racial discrepancies in psychiatric treatment (Segal et al. 1996; Davis et al. 2011). It is also important to increase the diversity of the mental health workforce so that racial and ethnic minorities can be matched with clinicians who are more culturally sensitive and have shared ethnic experiences.

With respect to public policy, this research provides additional evidence that it is critical to reduce racial and ethnic disparities in mental health services. Research suggests that African Americans tend to activate alternative coping skills and sources of support rather than



https://www.researchgate.net/publication/5825875_Cultural_Difference_and_the_Therapeutic_Alliance_An_Evidence-Based_Analysis?el=1_x_8&enrichId=rgreq-83275450-260a-4ddd-87f1-009c30dfa1bf&enrichSource=Y292ZXJQYWdlOzI1Nzc4Nzk3NTtBUzoxNDA2NDU2NzA4NTQ2NTZAMTQxMDU0Mzk0OTU5Ng==

https://www.researchgate.net/publication/14828157_The_role_of_the_therapeutic_alliance_in_Psychotherapy?el=1_x_8&enrichId=rgreq-83275450-260a-4ddd-87f1-009c30dfa1bf&enrichSource=Y292ZXJQYWdlOzI1Nzc4Nzk3NTtBUzoxNDA2NDU2NzA4NTQ2NTZAMTQxMDU0Mzk0OTU5Ng==

https://www.researchgate.net/publication/264645444_The_Dangers_of_Difference?el=1_x_8&enrichId=rgreq-83275450-260a-4ddd-87f1-009c30dfa1bf&enrichSource=Y292ZXJQYWdlOzI1Nzc4Nzk3NTtBUzoxNDA2NDU2NzA4NTQ2NTZAMTQxMDU0Mzk0OTU5Ng==

seeking formal psychiatric services, often resulting in delayed treatment or no treatment for mental illness (Snowden 2001). Resistance to help-seeking may be part of the African American cultural legacy of bearing up to problems and remaining strong in the face of adversity—a coping mechanism that evolved as a result of slavery (Poussaint and Alexander 2000). Also, because perceptions of stigma associated with mental illness are higher among African Americans than other racial and ethnic groups (Anglin et al. 2006), fear of public exposure may prevent them from seeking services for psychiatric symptoms. Policies and programs are needed that target minority communities to reduce the stigma associated with mental health services utilization and to make treatment-seeking more normative and accessible.

Acknowledgments

The authors extend special thanks to Ms. Jennifer Haynes for support and feedback related to this

project, and to Tyler Jones, MD, who helped initiate the chart review and data collection. The first and

second authors contributed equally in this research. Address correspondence to Brea Perry, Department

of Sociology, University of Kentucky, 1515 Patterson Office Tower, Lexington, KY 40506 (email:

[email protected]).

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Footnotes

According to statistics from the Kentucky Justice and Public Safety Cabinet (2007), 23 % of all individuals arrested in Kentucky between 2003 and 2007 were African American. This figure is very similar to the distribution of African Americans in our randomly selected sample (22 %). However, this figure is substantially higher than the overall percentage of the Kentucky population that is African American (8 %). This suggests that African Americans are disproportionately likely to be arrested in Kentucky, but once arrested, they are probably not disproportionately likely to be sent to a psychiatric correctional facility for evaluation prior to standing trial.

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