Tests for native inmates reoffending under fire
Canada’s prison officials have known for years that psychological tests used to determine whether inmates are likely to reoffend are unreliable for aboriginal offenders, but they’ve done nothing to address the problem, a federal judge has found.
In a blistering critique, the Federal Court ruled the Correctional Service of Canada’s (CSC’s) risk-assessment tools failed to consider the “special needs” of aboriginals, lacked scientific rigour and were susceptible to “cultural bias.”
One of the assessment tools was developed using mostly Caucasian subjects and has the potential to yield what other researchers have termed statistical “junk,” he said.
“This is not an issue which CSC missed inadvertently. It has been a live issue since 2000, has been on CSC’s ‘radar screen,’ and the subject of past court decisions,” Judge Michael Phelan wrote in a recent ruling.
“It is time for the matter to be resolved.”
Phelan said he intends to issue an order prohibiting the correctional service from using the assessment tools on aboriginal inmates until it conducts a study that validates their use in relation to that group.
While aboriginals account for about four per cent of the Canadian population, they represent about 23 per cent of the inmate population.
A spokeswoman said Thursday the correctional service is reviewing the judge’s ruling and has no further comment.
The ruling stemmed from a lawsuit brought forward by Jeffrey Ewert, a 53-year-old inmate who self-identifies as Metis (his mother is of Metis descent; his father was a British serviceman) and who was raised by an adopted Caucasian family in Surrey, B.C., since he was six months old.
The judge acknowledged Ewert is “no poster boy” for the aboriginal community. He is serving two life sentences for second-degree murder and attempted murder. In both cases, he strangled and sexually assaulted his victims, leaving one dead in a river and the other brain-damaged and crippled.
But the judge noted Ewert’s upbringing “was itself tragic.” His adopted father was an alcoholic, his adopted mother was psychologically ill and his adopted siblings subjected him to racism and discrimination.
Ewert, who has spent the past 30 years in B.C. and Quebec prisons, has been classi- fied as either a medium- or maximum-security risk and has been denied multiple requests for escorted temporary absences, court heard.
It was his position that these decisions were based on flawed psychological assessments, which found he had “significant psychopathic traits.”
Four psychological assessment tools used by prison officials were scrutinized in court. One tool detects for the presence of psychopathy by taking inventory of certain personality traits and behaviours, such as “glibness and superficial charm” and “juvenile delinquency.” The other tools are designed to predict the likelihood of violence and sexual offences. Stephen Hart, a professor of psychology at Simon Fraser University, appeared as an expert witness for the plaintiff. Scores derived from these various tests should be used with caution, as they are not reliable predictors of recidivism in aboriginals, he testified, citing profound cultural differences between aboriginals and non-aboriginals.
The government’s expert witness, clinical psychologist Marnie Rice, took a more “absolutist” view, testifying that the test scores were reliable predictors of recidivism. But the judge found that she had little science to back up her claim.
One report she cited was an unpublished master’s thesis from the University of Leicester.
The judge concluded that the use of these assessment tools violated Ewert’s Charter rights to life, liberty and security, and ordered the correctional service to stop using them on him.
“The writing’s on the wall,” Jason Gratl, Ewert’s lawyer, said Thursday. “The judge is saying these tests should not be used on aboriginal inmates at all.”
In its 2006-07 annual report, the Office of the Correctional Investigator, Canada’s prison watchdog, noted that “poorly conceived” psychological assessment tools were resulting in aboriginal offenders being placed “disproportionately and inappropriately” in higher-security prisons.
Mary Campbell, who retired in 2013 as director general of the corrections and criminal justice directorate at Public Safety Canada, confirmed Thursday the correctional service has long been aware of concerns about using the assessment tools on people “other than white men.”
“Anyone in the business has known about this issue for a long time. The judge’s exasperation is no surprise at all,” she said.
“We did the best we could to look at the issue, but didn’t get any sign of real interest or collaboration from CSC.”
Larry Motiuk, the correctional service’s assistant commissioner of policy, testified that research plans went unfulfilled due to “budgetary concerns.”
Aboriginals ... represent about 23 per cent of the inmate population