The Return of Lombroso?

The Return of Lombroso? Ethical and Philosophical Aspects of (Visions of) Forensic Screening

Christian Munthe Philosophy, Linguistics & Theory of Science flov.gu.se Centre for Ethics, Law and Mental Health celam.gu.se

The Lombrosian Turn of Forensic Psychology, Psychiatry and B.S. •

Not only Adrian Raine, not even primarily or mostly…

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Broad comeback after decades of disrepute after WW2, following perceived failure and recognised limitation of or decreased committment to social strategies + progress of biomedicine, statistical science, etc.

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Basic vision of the new ”Lombrosian” movement: – – – – –

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Criminal and/or anti-social behaviour (CASB) result (primarily/essentially) from physiological features (which in virtue of this may be seen as anomalies or disorders) Genetic, neurological, psychological/behavioural, complex (ADHD, CD, ASPD, Autism, various brain changes....), compounds of complex factors Gradualist and multi-factorial causal models, complex explanatory schemes, risk-factor thinking that allows for nature-nurture and heredity-sociality/culture interactions Possibility of identification of individual factors that increase risk of CASB and are detectable at an early age Such detection may be used as basis for decisions about preventive intervention to decrease the risk of CASB

Generally: the vision is a population screening approach modelled on proven and widely applied public health interventions (prenatal and neonatal testing programs, developmental checkup programs, etc.)

Overselling, Make Believe and the Institutional Logic of Screening •

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Overselling is to be expected, so is make believe –

Already today, grossly exagerated claims regarding possibility of precisely detecting ”risk individuals” are made

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The ”Many A’s are B, so therefore we can expect many B’s to be A’s” false reasoning is legio

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This will be adjusted in the scientific context, but much less so in the popular and political uptake

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Factors that complicate from the point of view of ethics / values are regularly ignored, hidden, played down

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Making the prospect tasty for funders, policy makers and people

Screening programs are… –

Very attractive from an economic, resource and pure research perspective

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Very expensive and therefore difficult to make cost-effective

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Very prompt to tempt its supporters to ignore contextual complications, collateral damages, etc.

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Very difficult to stop or reduce once set in motion, regardless of good reasons to the contrary

Plotting Ethical Challenges of Screening Programs onto the Lombroso Vision 1 •

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What for and Whom for? –

Individual-related or population-related outcomes?, Prevalence or severity? Index person or others? Mix?

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Helping the individual to avoid a CASB fate? helping parents to avoid CASB children? Helping potential victims to avoid CASB?

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Individual or population perspective: common or serious crime or a little bit of both (if so, how?)?

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Where is the L-vision ”placed” in relation to criminal law, social policy, public health and military security thinking?

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What other qualities, values, standards are assumed? Legal certainty and security, rule of law, costeffectiveness, equity, justice, etc.?

How? –

What standards, indications and follow-up strategies and why?

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Basis for cutoff-points? High-low risk? Standards of normality/abnormality?

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Balancing probabilities and outcomes: What weights? What outcomes? What probabilities?

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What type of intervention? Changing the individual, Supporting the individual, Changing the context, Removing the individual from the context (prevetive detention)?

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Voluntariness? Compulsory? A little bit of both?

Plotting Ethical Challenges of Screening Programs onto the Lombroso Vision 2 •

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Side-effects? –

Straightforward side-effects: harm and dysfunction of, e.g. medication, surgery

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Stigma, discrimination, isolation, exclusion or elimination

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Self-fulfilling prophecy effect: being identified as a risk-individual makes one into one due tostigma, selective treatment, etc.

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Societal structures known to raise criminality (inequality, corruption, etc.) remain unaddressed: problem constructed as individual flaw given the societal context

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Unnecessary harm due to negative sides of intervention: dependent on false positives/negatives ratio and types of interventions

Compatibility with quality standards? –

False positives and negatives – what is acceptable? (in relation to type of intervention, side-effects, etc)?

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Predictive value in relation to cost and individual or societal stakes – what probability in relation what outcome is to count as a risk motivating intervention?

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Ethical standards: coercion OK in the fight against crime, but not in health care…..

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Standards of criminal justice, of safety/security, etc.?

Likely Reality of the Lombroso Vision •

Therapeutic gap – – –

Cost-effective measures to treat/support risk-individuals comes much later than possibility of detection (if ever) Ditto: major contextual/societal changes unlikely due to political sluggishness, transition costs, conservatism Result: Primacy of detention, isolation, exclusion or elimination strategies

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Most radical version: prenatal testingand/ or PGD programs including Lombroso-relevant factors to have parents avoid children more likely to develop CASB, but childhood detection and intervention more likely.

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Lombroso vision not likely to be of benefit to tested individuals Will Lombroso vision help potential victims? Unclear in light of the fact that typical offender groups and typical victim groups tend to overlap..... Lombroso vision might have an impact on aggregated outcome measures of crime statistics, provided strategies are effective in keeping positively tested out of contact with each other and the rest of the population

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Move from criminal justice to public health and approaching national security thinking –

We already see the potential in the ”wars” (on terror, drugs, etc.)

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The argument from disorder-accountability: more credible to apply public health or security thinking

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Version 1: Focus on population level objectives and prevalence: low threshold for ”risk”

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Version 2: Focus on extremes and severity: looking for needles in haystacks

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Acceptance of many false positives to avoid false negatives and/or attain provable effectiveness

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Acceptance of substantial collateral damage for individuals and social values

Underlying Ethics and Value Issues •

How should whatever is to gain by a Lombroso vision type screening be balanced against expected costs? – – – –

A statistical percentage X of aggravated assaults prevented A number Y of people whose liberty is restricted due to risk of comiting aggravated asault and who would otherwise have committed one A number Z of people whose liberty is restricted due to to risk of comiting aggravated asault, although they would never have committed any aggravated assault Z > Y by far.

Example 1: restrict liberty of all males, age 15-55 Example 2: restrict liberty of all with brain structure X, present in 97% of all aggravated assaults Example 3: restrict liberty of all with test-value X of substance Y, which is three times as common among peptrators of aggravated assault compared to general population

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How should gains and costs be categorized and contextualized? In terms of criminal law, in terms of public health, in terms of national security? – – –

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Affects accepted standards of proof Affects accepted standards for aggregating harms and benefits Affects how severe and numerous individual harms are seen as justified by prospects of protecting and securing collective, communal or public goods

What is the proper institutional function of a Lombroso type screening? What determines such a thing? => basic political philosophy

Some Literature • • • • • • • • • • •

Appelbaum PS (2008). Ethics and Forensic Psychiatry: Translating Principles into Practice. Journal of the American Academy of Psychiatry and the Law, 36 (2):195-200 Cohen P (2011). Genetic Basis for Crime: A New Look, New York Times, June 19, 2011. Online: http://www.nytimes.com/2011/06/20/arts/genetics-and-crime-at-institute-of-justice- conference.html?pagewanted=all Ferguson C J (2010). Genetic Contributions to Antisocial Personality and Behavior: A Meta-Analytic Review From an Evolutionary Perspective. Journal of Social Psychology, 150 (2): 160-180. Ferguson, C J & Beaver K M (2009). Natural Born Killers: The Genetic Origins of Extreme Violence. Aggression and Violent Behavior, 14 (5): 286-294. Lombardo, PA (2010). A Century of Eugenics in America: from the Indiana Experiment to the Human Genome Era. Bloomington, IN: Indiana University Press. Juth N & Munthe C (2012). The Ethics of Screening in Health Care and Medicine: Serving Society or Serving the Patient? Dordrecht, Heidelberg, London & New York: Springer. Munthe C (2011). The Price of Precaution and the Ethics of Risk. Dordrecht, Heidelberg, London & New York: Springer. Munthe C, Radovic S, Anckarsater H (2010). Ethical Issues in Forensic Psychiatric Research on Mentally Disordered Offenders. Bioethics 24 (1): 35-44. Nilsson T, Munthe C, Gustavson C, Forsman A, Anckarsater, H (2009). The Precarious Practice of Forensic psychiatric Risk Assessment. International Journal of Law and Psychiatry, 32 (6): 400-407. Raine, A (2013). The Anatomy of Violence. New York: Random House. Tallis, R (2013). The Anatomy of Violence by Adrian Raine – review. The Guardian, 13 June, 2013. Online: http://m.guardiannews.com/books/2013/jun/13/anatomy-violence-adrian-raine-review