Psychological tests for prisoners may be culturally biased: judge
Correctional Service faces order to stop use on aboriginal offenders
The federal Correctional Service faces an order to stop using key psychological risk assessments on aboriginal offenders because they may be culturally biased.
In a 37-page decision, Federal Court of Canada Judge Michael Phelan said he will hold off for 30 days to give the government time to make submissions on how to establish the reliability of the important tools.
He noted the U.K., Australia and the U.S. have all conducted research to ensure their prison psychological assessment tools are reliable with respect to cultural minorities.
“This is not an issue which the CSC missed inadvertently,” Judge Phelan emphasized.
“It has been a live issue since 2000, has been on the CSC’s ‘radar screen,’ and the subject of past court decisions where the court contemplated that some similar type of confirmatory research was being conducted. It is time for the matter to be resolved.”
At issue are the Hare Psychopathy Checklist Revised — a very important test — along with the Violence Risk Appraisal Guide, the Sex Offender Risk Appraisal Guide, the Static 99 (an actuarial tool to estimate the probability of sexual and violent recidivism) and the Violence Risk Scale — Sex Offenders.
“This is a perfect example of injustice produced by treating all people as though they are the same,” said Vancouver lawyer Jason Gratl. “The office of the Correctional Investigator has been saying for a decade that invalid standardized tests unfairly deprive many aboriginal inmates of a fair shot at parole and illegitimately prevent aboriginal inmates from cascading down to minimum security facilities.”
Gratl challenged the tests on behalf of Jeffrey Ewert, a 53- year- old self- identifying Métis, who argued they infringed on his rights and hindered his chance at parole. The judge agreed, saying the actuarial tests may not provide sufficiently reliable results for aboriginals because of their cultural bias.
By using these tools, he said, Ottawa was not being responsive to the special needs of aboriginal people and violated Ewert’s section 7 charter right to life, liberty and personal security.
“The expert evidence establishes that the test scores, in and of themselves, ought not to be relied upon,” said Judge Phelan.
They are “like a branding,” he explained, so Ewert’s high scores meant gaining parole would be “difficult, if not impossible.”
Ewert’s mother was of Métis descent and his father a British serviceman, but at six months old he was adopted by a Caucasian family in Surrey.
Ewert is serving two life sentences for second-degree murder and attempted murder. He has spent 30 years incarcerated, mostly in maximum security penitentiaries.
In his first offence, Ewert sexually assaulted a woman, strangled her and left her dead in a river. In the second, he sexually assaulted and throttled his victim but she survived brain-damaged and crippled.
Still, his background is tragic, too, involving an alcoholic father, a psychologically troubled adoptive mother and racist siblings.
“This order (telling the CSC not to use the tests in Ewert’s case) removes some of the obstacles of his taking the first baby steps toward the prison gate,” Gratl said.
Ewert has been eligible for day parole since August 1996, full parole since August 1999, but waived his right to each hearing because he was “assessed as too great a risk of reoffending, in part due to the results of the actuarial tests.”
He also said he wished to spare the families of his victims “the anguish of a parole hearing”; Judge Phelan dismissed that as self-serving crap.
Phelan heard from only two experts and dismissed the testimony of the federal specialist.
“It is a thin record on which to decide whether certain psychological tests administered by CSC infringe prisoners’ rights,” he conceded.
Dr. Robert Hare developed the test that bears his name at the University of B.C. in the 1970s to detect psychopathy — most often described as a lack of conscience whose hallmarks are manipulative, controlling, callous and deceitful behaviour.
It has been widely celebrated and used.
Dr. Stephen Hart, a psychology professor from Simon Fraser University, however, told the court there are such “significant cultural differences” between aboriginal and non-aboriginal Canadians that the actuarial tests “are more likely than not to be ‘cross culturally variant.’ ”
He acknowledged the inchoate nature of culture — the sum of shared experiences, beliefs, norms, family and relationships, structures, values and so forth.
But Hart maintained that while culture cannot be “vigorously defined, it is an indispensable concept.”
imulgrew@vancouversun.com