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Table of contents :
Into the Abyss of Dangerousness: A Personal Journey
Dangerous Men: Ideology and the Personification of Evil By
Matthew G. Yeager
Dangerous Men: Ideology and the Personification of Evil By Matthew G. Yeager This book first published 2021 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2021 by Matthew G. Yeager Cover image: “Damaged Goods” by artist F. Scott MacLeod, Nova Scotia, Canada © collection of Matthew G. Yeager, 2020 All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-5275-6210-7 ISBN (13): 978-1-5275-6210-3
Acknowledgements ........................................................................ vii Into the Abyss of Dangerousness: A Personal Journey ................. viii Introduction: On Methods ................................................................ 1 Part I – The Literature in Canada 1. The Sociology of Dangerousness ............................................... 10 Part II – Case Studies of the Dangerous 2. Ideology and Dangerousness: The Case of Lisa Colleen Neve .... 46 3. The Mechanics of Dangerousness: A Case Study of Regina v. Clark ........................................................................................... 60 4. Fighting the Dangerous Offender Label: The Trial of Karl Rowlee ............................................................................................ 86 Part III – The Political Economy of Dangerousness 5. Dangerousness as Hegemonic Discourse ................................. 118 6. The Dangerous Classes Speak .................................................. 134 7. Getting the Usual Treatment: Researching Dangerous Offenders in Canada ...................................................................................... 153 8. Toward a Political Economy of Dangerousness ....................... 174
Chapter Notes ............................................................................... 187 References .................................................................................... 193 Index ............................................................................................. 257
This project has been in gestation for over twenty years and has been part of both my clinical practice in sentencing and parole as well as my academic research. I would like to thank my wife, Carolyn Hallett, and our young lad, Eli, our grandson Jacques, and Carmen for their enduring support while I researched and wrote this book. Special thanks are extended to the late Robin Neugebauer, the late Tadeusz Grygier, and Aaron Doyle who served on my dissertation committee. A special acknowledgement to professor emeritus Michael Petrunik who acted as my guide into the murky waters of dangerousness. Finally, I would like to thank my colleagues and the Board of Directors at King’s University College, Western University Canada, for giving me this opportunity to take a sabbatical and finish this most fruitful project.
INTO THE ABYSS OF DANGEROUSNESS: A PERSONAL JOURNEY
No matter what you do as a criminologist, dangerousness seems to be embedded in this field of study. It is such a fundamental assumption which colors the subject of crime, that most of us simply take it for granted in dealing with The Mad, the Bad, and the Different (Glantz & Huff, 1981). I have been bouncing off the “dangerous” for decades, but my familiarity with official dangerousness did not start until I picked up a case in 1994 titled Regina v. Eric Andrew Clark. For many years, I have specialized in sentencing alternatives and parole work involving the serious, deep-in convict. This work had taken me into hundreds of courtrooms, and numerous jails and prisons, where I have interviewed convicts, conducted social histories, and designed intervention programs for the jail-bound convict (Yeager, 1992a, 1992b and 1995). Through word of mouth among convicts, I was contacted by Mr. Clark and asked to provide a sentencing evaluation. He was facing a Dangerous Offender application under the Canadian Criminal Code (Section 752), and asked me to provide an assessment of his risk to the Court. As you will read in Chapter 3, my own evaluation of the Clark case raised a number of issues about who was being designated officially dangerous, the nature of an indeterminate (life) sentence, the evidence relied upon in court, and what seemed to be a process almost entirely dominated by the mental health profession, closely followed by workers in the prison industry. I was struck by how an Accused in his fifties with no prior criminal record, and who pleaded guilty to the underlying charges, was supposed to be one of the most dangerous convicts in Canada. Of course, I concluded that Eric Clark wasn’t that dangerous, and then proceeded to witness a court system which concluded the opposite. To this day, Mr. Clark, now age 81, resides in a minimum security
Dangerous Men: Ideology and the Personification of Evil
halfway house in British Columbia. In point of fact, he was resigned to dying in prison. The irony of the matter, as you will read in the Clark chapter, is that the Government’s own research data indicated he was at low risk to reoffend, even on sexual matters. Twenty-one years of imprisonment later, the authorities finally agreed with my assessment at sentencing. I then had an opportunity to contact a Dangerous Offender named Robert Olav Noyes, whose case in British Columbia had attracted some media attention. We corresponded while Rob was incarcerated in Quebec, and this convict began my education in dangerousness by briefing me on what was really going on inside the corrections industry, how DOs were treated, and just how difficult it was to gain a parole. In January of 1986, Robert Olav Noyes was designated a Dangerous Offender. He was an atypical convict because he had a college education and no prior criminal record or history of imprisonment. However, like most DOs, he had been convicted of 19 counts involving sexual and indecent assault on children aged 6 to 15, many of whom were students under his supervision as a teacher, school principal, and coach. Noyes successfully sued the National Parole Board when it denied his release in 1992, arguing that the inmate had “developed a tolerance for treatment and appear[s] to be able to engage in the programs without yourself feeling the full impact of the programs” (Noyes, 1994: 133). Subsequently, the Federal Court found this assumption untenable, concluding that the “Board [had] moved out of its field when it concocted this concept of tolerance to treatment. It is tantamount to telling Mr. Noyes that he has been over-treated and is now tolerant to treatment, thus he now can never be released” (Noyes, 1994: 145). Despite a new hearing, Noyes would remain behind bars until 2001. Many treatment specialists within the prison had recommended his conditional release years earlier. Towards the end of the 15-year period, Noyes had participated in numerous ETAs (escorted temporary absences) and UTAs (unescorted absences), all completed successfully and without incident. When it came time for a hearing to consider Noyes’ release on full parole (no halfway house requirement) in June of 2003, the National Parole Board finally granted full parole. What was the media reaction? To quote the Globe and Mail (Hume, 2003),
Into the Abyss of Dangerousness: A Personal Journey
“Dangerous Pedophile Noyes is given full Parole.” The Ottawa Citizen’s (McCooey, 2003) headline noted that “Notorious Pedophile Gets Full Parole.” Noyes’ case was given extensive radio coverage, with many articles quoting officials opposed to his release and suggesting that pedophilia can never be cured. Despite being a model inmate and being on day parole for a period of about two and a half years without incident, Noyes’ final release on full parole (for life) was still met with acrimony and moral panic. My next encounter with official dangerousness is when I contacted a convict by the name of Charles Abel Armstrong. He had been featured in a Globe & Mail article by the investigative writer Kirk Maken (1996). I began corresponding with Chuck, who had this hilarious sense of humor and could make me laugh about a system most thought unfunny, to say the least. For instance, he had a business card which read: “Law Courts & the Correctional Service, Inc., Sock’em & Lock’em, Then Throw Away the Key!” Chuck had a lengthy history of multiple rapes (at least nine), dating back to 1969, and by the time I knew him, he was about 59 years of age and in failing health due to advanced celiac disease. I picked up his parole case pro bono (for the “good of the people,” as my wife describes it), and proceeded to represent him before a panel of three National Parole Board members. Prior to his hearing, Chuck had nearly died while hospitalized for his medical condition. What I learned in the course of preparing a parole plan for Mr. Armstrong was the antipathy that programs felt toward anyone with a Dangerous Offender designation. I was not able to find any retirement home which would take Chuck as a resident, and his family was uniformly hostile to any parole whatsoever. Actually, Chuck came from a relatively well-to-do family that would ultimately disown and disinherit him. In the course of the hearing, Mr. Armstrong was accused by one Board member of malingering about his medical condition in order to justify a conditional release. In outrage, I responded that the Board’s de facto policy of “killing convicts off” was intolerable. Some days later, I received a letter from the Board threatening me with removal from any future hearings if I did not recant my allegations. Well, I never did recant my diatribe. Instead, I hired counsel and requested a copy of the hearing transcript in which the
Dangerous Men: Ideology and the Personification of Evil
offending remarks by the Board member were inscribed – much to the consternation of the Board. What then happened is that Chuck Armstrong died about two months after his parole hearing, and the Board, facing embarrassment, simply dropped the matter of my discipline. So, I was steeped in dangerousness when I began my graduate studies at Carleton University in 1998. From the very beginning, even in my initial university application, I wanted to do research on Dangerous Offenders in Canada. This led to collecting research on the subject, and in short order, I came across the work of Michael Petrunik (1979, 1982, 1984, 1994, 2002, 2003 and 2005). Petrunik took his doctorate in sociology from the University of Toronto in 1977, focusing mainly on the sociology of deviance as it related to persons who stutter. As fate would have it, while finishing his doctorate, he secured a position with the Solicitor General of Canada, in their corrections secretariat. One of his first tasks as a sociologist was to study the pending recodification of the Dangerous Sexual Offender Act (1960). His conclusion, not widely reported, was that the effort to reconstitute this much criticized legislation was largely a campaign by correctional psychologists and forensic psychiatrists to “colonize” their expertise and preserve a venue where their work was essentially required in Court for the Crown to obtain a finding of official dangerousness. In fact, he found that most of the research literature was quite skeptical of the ability of the mental health profession to predict future dangerousness. Thus, he concluded that the latent purpose of the legislation was more symbolic than instrumental. For a period of three years, beginning in 1979, Petrunik worked on a major article titled “The Politics of Dangerousness,” later published in 1982 in the International Journal of Law and Psychiatry. In reviewing most of the research in Canada, it soon became obvious that Petrunik’s 1982 article would become a classic on the subject of Dangerous Offenders. Fate also intervened in that Michael Petrunik was a teaching professor nearby at the University of Ottawa, specializing in criminology. He became my guide into the murky waters of dangerousness, and served as a technical advisor to my dissertation throughout its gestation (Yeager, 2006).
Into the Abyss of Dangerousness: A Personal Journey
In the course of trying to finish a dissertation, I discovered just how difficult it would be to conduct research on Dangerous Offenders. It is certainly acceptable, from the Punishment Industry’s perspective, to approach these subjects from a character disorder point-of-view – traditional criminological positivism and especially individual pathology. However, when you assume a more critical, ethnographic approach (convict criminology) and ask these so-called Dangerous Offenders about how the system has treated them, you engender an entirely different reaction from those holding the keys to the penal institutions. In Chapter7, titled “Getting the Usual Treatment: Researching Dangerous Offenders in Canada,” I go into detail in my experiences to get permission to interview Dangerous Offenders in penitentiary, as well as my University’s use of ethics approval as a de facto obstacle course in support of state censorship. In the end, I was forced to abandon the original design of the dissertation, and opt for case studies based on public trial records. Obviously, from the perspective of the State, the questions one asks do matter when it comes to official dangerousness. For want of better organization, this monograph is divided into three parts. The first summarizes the little known literature on dangerousness in Canada. Here, I have come across several works which have not been published, particularly some very useful master’s theses. The second section departs from the usual managerial approach to criminology – one which would favor large samples and statistical analysis. Instead, we return to narrative sociology and therefore focus on three case studies. It is in these case studies of Dangerous Offenders that one gets a better sense of politics, the interpretation of evidence, the application of power, ideology, and questions of political economy (cf., Chapter 8). In conducting statistical analysis of large samples, one simply loses this perspective. It either vanishes entirely or is partitioned out into a distant wilderness. Finally, we return in the last section to a political economy of dangerousness. Here, the operating assumption is that criminal dangerousness is a political concept (Quinney, 1970; Chapman, 1968). Any attempt to theorize cannot simply concentrate on the bad acts and character defects of these so-called “monsters,” but
Dangerous Men: Ideology and the Personification of Evil
must address the sociology of law, its construction, and the latent purposes of this legislation within the larger body politic. In this part, I address the difficulties in doing research on Dangerous Offenders, matters of political economy, and the views of a small haphazard sample of the dangerous classes on these questions. In other words, how do the dangerous see themselves? Of particular interest is the issue of gender: most (99%) of the current Dangerous Offenders in Canada are males. Why is this so? I am certain that more than one conclusion in this book will offend some in Government, in the judiciary, and among the mental health professions. If dangerousness is, indeed, a political concept, this sense of reproach cannot be avoided. So, this criminologist apologizes in advance to all who might be insulted, outraged, miffed, or otherwise disheartened by this line of inquiry. Some may criticize this monograph as both a personal journey and an academic treatise, and they may even object to my having a history of praxis with the dangerous classes. My only defense is that debate is good for the soul, and you need to listen to the voices of the damned. The notion that only “pure” academics can study Dangerous Offenders without getting their hands “dirty” with the actual legal process is a concept ripe for the proverbial dustbin.
INTRODUCTION: ON METHODS
This monograph proceeds by way of a multi-method approach. This includes the time-honored case study, institutional ethnography, a haphazard interview sample of Dangerous Offenders, archival and records work, and lastly, the application of theory (Yin, 2003: 41; Ruddin, 2006). In particular, we analyze three Dangerous Offender trials in Canada, relying exclusively upon the public record: court transcripts and court documents, including motions by the two parties – the Crown and the Accused. So, to invoke the proper nomenclature, our “unit of analysis” is the DO trial proceeding (Stake, 2000; Patton, 1980; Berg, 1998). The case study, as a sampling approach in sociology, has a long and honorable history. Notable classics in sociology range from William Whyte’s (1943) Street Corner Society; Elliot Liebow’s (1967) Tally’s Corner; and Middletown by Lynd and Lynd (1929); to Thomas and Znaniecki’s (1918) The Polish Peasant in Europe and America. Within criminology as subgenera, we have Edwin Sutherland’s (1937) The Professional Thief; Frederic Thrasher’s (1927) The Gang; and Clifford Shaw’s (1930) The Jack-Roller. Even when Herbert Blumer (1939: 39) criticized the use of personal diaries and letters in The Polish Peasant in Europe and America, he would remark: To set aside the documents as having no scientific value would be to ignore the understanding, insight, and appreciation which their careful reading yields.
Stake (2000: 435) is probably correct when he concludes that the “case study is not a methodological choice but a choice of what is to be studied.” There are a number of approaches, ranging from biography, autobiography, ethnography, and formal interviewing, to
Introduction: On Methods
content analysis and narrative. We will follow Yin’s (2003: 22-23) definition that the essence of a case study is to “illuminate a decision or set of decisions.” In other words, why they were taken, how something was implemented, and with what result. Here, the actual methodology varies. Within business and legal circles, the case method approach usually focuses on a particular business experience or legal case, and proceeds to analyze that case (Ronstadt, 1980; Masoner, 1988; MacEllven, 1993). In case studies, we often see a reliance on text, or research (such as interviews) which generates text. Content analysis is then often used to analyze words, phrases, or various themes in a mathematical approach (Krippendorff, 1980; Carney, 1972; Gahan & Hannibal, 1998). This brings us to an enduring debate within the philosophy of the social sciences over the mathematization of sociology (Cicourel, 1964; Berger and Quinney, 2005). Stemming as it does from the positivist origins of sociology, especially its founder, Auguste Comte (Marcuse, 1960; Comte, 1893; Hartung, 1945), this notion sees sociology as a value-free, non-ideological science on a par with chemistry or physics. It is concerned with measuring the true nature of object reality or phenomena, and gives greater cultural significance to mathematical or quantitative output (Andreski, 1972). However, there have long been alternative interpretations to empirical positivism. For our purposes here, the case study method represents just such an alternative approach (Flyvbjerg, 2006). The late Nils Christie (1976: 64), in talking about this debate between “hard” and “soft” data, observes that “you cannot understand anything through quantities that are not linked to qualities.” No important evaluation of a social phenomenon can be made without some explication of the normative system upon which the social action is embedded. Both Yin (2003) and Cicourel (1964) point out that case studies are very useful to the investigation of properties that are simply too complex, too nuanced, or which simply don’t yield to mathematical reduction techniques. To quote Cicourel (1964: 209): This is true of our determinations of violations of rules or law; the police, witnesses, the jury, the judge, the defense and
Dangerous Men: Ideology and the Personification of Evil
prosecuting attorneys, the victim and the accused may all seriously entertain judgments which taken together are at once contradictory, overlapping, and vague.
These chronologies, grounded in real life experiences are, to many of us “noncalculable” in the sense of conventional mathematical sociology. To Cicourel (1964: 210), they are “not sufficiently detailed to handle the nuances of the role-taking process or how the actor defines the situation and shapes his self-role.” Indeed, it has been argued by Stake (2000: 439) and Patton (1980) that the case study method gives us “thick description.” Here, we seek detail about the complexities of cases, their idiosyncrasies, and competing meanings. With respect to a legal process – such as a Dangerous Offender hearing and its construction of a label – the case study may be one of the best vehicles to delve into the “Belly of the Beast” (Abbott, 1981). To this extent, a return to narrative sociology, the telling of stories allows the researcher to interpret the “whole” of a person’s life history, or the “whole” of an event under study (Ezzy, 2002: 95-101; Stake, 2000: 441; Maruna, 2001; Berger and Quinney, 2005). The researcher who resorts to narrative sociology is intimately involved in extracting meaning from the event through the use of chronology, summaries, thick description, or even plot. Denzin (1997) distinguishes two general orientations: analytic versus storied narration. The analytic is more positivist in orientation where the author tries to maintain a neutral stance, provide balanced description, and interpret the events derived from pre-existing theory or induced from the data themselves. The storied approach is often more personal, biographical or autobiographical, and often contains more reflexive commentary about feelings, emotions, and why the author selected the topic. This treatment is undoubtedly closer to the analytic approach as it seeks to provide thick description, but in a format that attempts a balance of the evidence both for and against dangerousness. This brings us to another aspect of methodology which is the relationship between data and theory. The classic approach is the logico-deductive method of theory verification which begins with propositions deduced from theory and attempts to verify or
Introduction: On Methods
falsify the theory via experimentation or the examination of raw evidence (Ezzy, 2002: 7). However, there are eminent researchers who argue that theory construction, and its testing, should proceed through inductive methods largely separate from existing theory, often called grounded theory (Glaser and Strauss, 1968; Ruddin, 2006) . The reality may actually be a combination of the two. In the words of the late Bronislaw Malinowski (1922, 1984: 8-9): Good training in theory, and acquaintance with its latest results, is not identical with being burdened with ‘preconceived ideas.’ If a man sets out on an expedition, determined to prove certain hypotheses, if he is incapable of changing his views constantly and casting them off ungrudgingly under the pressure of evidence, needless to say his work will be worthless. But the more problems he brings with him into the field, the more he is in the habit of moulding his theories according to facts, and of seeing facts in their bearing upon theory, the better he is equipped for the work. Preconceived ideas are pernicious in any scientific work, but foreshadowed problems are the main endowment of a scientific thinker, and these problems are first revealed to the observer by his theoretical studies.
This monograph will proceed in the classical logico-deductive fashion, but with the recognition that we will often be “shuttling back and forth between general propositions and empirical data” (Ezzy, 2002: 15). Indeed, by using a multi-method approach, we are constantly “shuttling” back between different data sets, and different narrative interpretations. So, how did I pick our three case studies? Your author selected the Lisa Neve case because at the time, she was the only female Dangerous Offender in the Canadian criminal justice system. Her adjudication as a Dangerous Offender was overturned by the Alberta Court of Appeal. The other two DO cases featured male convicts, and the reason for selecting these studies was because your author was involved in both as an expert witness for the defense. In the case involving Karl Rowlee, we were successful in stripping away his DO label before the trial court on remand from the Ontario Court of Appeal. With respect to the other case study (Eric Clark), we lost before the trial part and on appeal all the
Dangerous Men: Ideology and the Personification of Evil
way to the Supreme Court of Canada. All three case studies give us an in-depth view of the dangerous-making process, including its ideological and empirical foundations. The reader must also be cognizant that your author was not allowed to interview Dangerous Offenders in federal penitentiary, as outlined in Chapter 7. The case study thus provides a backup to research obstacles placed in front of your author by the State. Importantly, the politics of studying Dangerous Offenders, and what the State allows one to study, are as important as the individual views of the dangerous convicts themselves. With respect to our haphazard sample of the dangerous, we managed to “work around” the federal penitentiary bureaucrats, and found our subjects on bail, on parole, in the community, and in local provincial lockups. For those convicts in the community, permission was secured directly from the subjects. In other cases, permission was obtained from attorneys for those in provincial lockups. Our example of institutional ethnography was a very fortuitous conference held in Ottawa, Ontario, in November 2006. The subject of this national conference was “high risk” offenders, a frequent pseudonym for the dangerous. Your author attended the conference as a paid participant, mingled with other attendees, and collected presentation material. Lastly, your author engaged in extensive archival and document analysis concerning the denial of his entry into Canadian federal penitentiaries to interview a representative sample (N=100+) of Dangerous Offenders. That access was never granted, and both the federal penitentiary service and my own university ethics review board ran interference on the research project. Here, the maintenance and protection of the dangerousness project are constructed by various power brokers, and both ideology and power, in their application, are important theoretical constructs which help to explain the role of Dangerous Offender legislation in Canada. As noted by Angell and Freedman (1953: 300), documents do present interpretative problems inasmuch as the researcher has no control over their production, nor can he or she follow up with a clarifying question.
Introduction: On Methods Documents, census materials, and indices characteristically bring the data to the social scientist in a form over which he has little control. In contrast, when the social scientist uses the method of observation, either participant or non-participant, he can focus on those aspects of the behavior of the subject that have theoretical interest for him; if he uses tests and questionnaires, he chooses to frame the instrument to suit his scientific needs; during the interview, the Subject may be guided by the interviewer and if crucial points are unclear, the interviewer can probe until the matter is elucidated.
Of course, one might argue that since the case study is designed to examine a process – here the adjudication of an Accused with respect to the Dangerous Offender designation – it is essential to examine court records. Indeed, validity may actually be enhanced since the researcher is not attempting to “disrupt” the hearing to pursue a particular theoretical issue (Webb, et al., 1966). Nor, in this instance, must we worry about the motivations of the Subject to attempt to deceive the researcher in the production of personal memories, letters, diaries or biographies. We have the benefit of sworn testimony, of numerous witnesses and evidentiary submissions (reports) – all of which help with construct validity (Yin, 2003: 35; Stake, 2000: 443). Colleen Dell (2001) illustrated this approach by relying upon public hearing transcripts from the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, Ontario (1995). This inquiry (Arbour, 1996) related to a prison disturbance which occurred in the segregation section of the now defunct Prison for Women in Kingston, Ontario, circa April 22, 1994. An all-male extraction unit proceeded to remove and strip eight female convicts, leaving them wearing paper gowns and manacled to their cells. Dell (2001: 136) specifically took this approach because she felt that the Federal Penitentiary Service would be opposed to allowing interviews of both their staff, and even the inmates – largely due to political reasons. Court transcripts are another source of data amenable to analysis (Neuman, 1997; Monette, et al., 1998), and form a type of narrative chronology. Unlike a lot of content analysis approaches, we are not using statistical techniques to “count” words, phrases, points of contention, ideas, or themes (Neuman,
Dangerous Men: Ideology and the Personification of Evil
1997; Weber, 1990; Carney, 1972). Sometimes, however, a specific exhibit will be tendered that has statistical qualities as well as normative ones. Hence, we did not employ a “coding” scheme of sorts, but relied upon analytic narrative and taking the testimony at face value. Research reflexivity is always an important issue, even when working with secondary data sources like trial transcripts and court evidence. Data still must be interpreted and extracted in a fashion that the reader understands and which makes sense – i.e., face validity. Much traditional content analysis is so statistical that the narratives and meanings put forth get lost in data reduction techniques. More pointedly, court trials often do not lend themselves well to data reduction and statistical coding. One often finds quite disparate and conflicting testimony about an event, as is the case with the Commission of Inquiry into the case of Maher Arar (Curry, 2005). Here, both the Canadian intelligence agency (CSIS) and the Royal Canadian Mounted Police denied providing any “information to any American entity that would have led to the arrest and detention and ultimately the removal of Mr. Arar from the U.S.” Conversely, the U.S. authorities have consistently alleged that Mr. Arar’s arrest and expulsion to Syria (where nearly everyone concedes that Arar was tortured) was “based on information provided by Canadian security organizations.” Nevertheless, a researcher’s background is important because it may shed light upon the reason for this project, the expertise of the researcher, and his or her ideological biases – which exist and should be duly noted (Kirby and McKenna, 1989). I came to this subject matter as an expert witness for the defense in Regina v. Eric Andrew Clark, a case which is featured in Chapter 3. In that case, I prepared a lengthy sentencing and social history report, and testified under oath as an expert criminologist. Mr. Clark’s case raised a number of issues for me about our notions of dangerousness, some of which are presented here. So, in thinking about this case, I came to the issue not as a neutral observer, but as an expert witness who was asked to assess dangerousness and came to very different conclusions than those put forward by the Crown. Hence, I was not a totally unobtrusive observer (Webb, 1966). In fact, I have been doing this sort of work for about fifty years as a
Introduction: On Methods
clinical criminologist and defense expert. The same situation occurred in the re-trial of Regina v. Karl Rowlee, discussed in Chapter 4. Here, the inmate actually contacted me from penitentiary and asked for my help. I kept in touch with his counsel, a wellregarded prison lawyer from Kingston, Ontario, and eventually testified in this retrial on the research literature concerning psychopathy and the maturation effect in criminology. The Court actually cited my testimony as one reason, among many, to rescind the DO designation. Nevertheless, when summarizing the context of the trials, I have strived to present a description of the evidence put forward by the various witnesses – in a fashion which others would likely replicate. As Berg (1998: 232) notes: “If the investigator’s findings and analysis were correct, subsequent research will corroborate this.” While there may be disagreements about theoretical interpretation, I would argue that the descriptive work with the trial documents and transcripts is, on its face, valid and reliable. Quinney (1998) makes it a point to say that the practice of criminology is a “moral philosophy,” whose ideological assumptions should be manifest and have moral implications. It is important for the critical criminologist to act as a witness, and address these assumptions about dangerousness. Of importance here is that this researcher has never worked for the Prison Industry as a guard, parole officer, or classification worker. The underlying normative approach to this topic is therefore suspicious of state-defined dangerousness and that normative (moral) stance runs throughout this monograph.
PART I – CLASSICAL APPROACHES TO CRIMINAL DANGEROUSNESS
CHAPTER ONE THE SOCIOLOGY OF DANGEROUSNESS
In discussing the debate about classifying offenders as "dangerous," John Klein (1979: 5) argues, regardless of the civil liberties concerns, that if we can find acceptable criteria for what constitutes dangerous behavior and can accurately predict who will not engage in such behavior in the future, most would not feel all that uncomfortable about incapacitating such individuals until such time as the threat of such behavior is absent.
Nonetheless, he concludes that because serious violent behavior has such a low base rate (Roesch, 1978), our actuarial or clinical ability to predict dangerousness produces a high failure rate – those we say are "dangerous" turn out not to be so. Indeed, Klein (1979: 13) suggests that it is unlikely we will ever be in a position to test our predictions of dangerousness because of the reluctance of the State to "test" the proposition by neither treating nor incarcerating a sample of such offenders. As well, the numbers paroled may be too low in any case. This chapter is a review of the Canadian literature on the Dangerous Offender, and its focus is exclusively sociological. Hence, it does not include the usual positivist literature invoking the pathological character defects of the convicted. Neither is this a survey of the international literature on dangerousness, nor a treatise on Foucault’s own commentary on the subject (1973, 1978, 1979, 1996, 2000, 2003). Much of this literature has not been assembled in one place, and a lot of it is unpublished or even represents the contribution of master’s theses. While a master’s thesis is often derided by “pure” academics, some of this young
The Sociology of Dangerousness
research actually constitutes unvarnished gems that deserve our attention. Michael Petrunik's (1984) survey of Dangerous Offender laws in both Europe and North America suggests that much of this legislation has its origins in the early part of the twentieth century. Petrunik (1984: 13) attributes this legislation to the notion of social defense, which combined assumptions from both classical and positivist criminology at the turn of the century. Here, crime became a characteristic of individual pathology. It was necessary to diagnose and incapacitate a variety of persons thought to be dangerous, notably the habitual offender and those mentally disordered. This resulting state of "dangerousness" became synonymous with an inherent psychological abnormality – and hence required special legislation to sequester the offender, often for an indeterminate period of time. John Pratt (1997) tells us that so-called habitual criminals were at this time seen – largely in anthropomorphic terms – as degenerates. This meant that the movement to incarcerate them was associated with eugenics, the rise of psychiatry as a profession, with a good dose of criminal anthropology thrown in for good measure, à la Lombroso (Wolfgang, 1973; Foucault, 2000: 176-200). As well, much of the new discipline of criminology was under the influence of the Italian positivist school, which placed its emphasis on the pathological traits of the individual criminal. Thus, in 1900 at the International Prisons Conference in Brussels, a group of elite penal reformers, psychiatrists, and anthropologists developed the notion of the indeterminate sentence. This new penal sanction was to be used sparingly, of course – in special cases because of the assumption of future harm. Persons subject to this provision were assumed to be at high risk for future, serious criminality even if they had not yet been adjudicated guilty of those “predicted” offenses. Public protection was the ostensible rationale and it was a justification which fitted neatly within industrial capitalism. The focus was on individual maladaptation to society, not on the structures of society. According to Petrunik (1982 and 1984), the Canadian version of early Dangerous Offender Legislation – the Habitual
Offenders Act of 1947 – originated with the much-criticized 1908 England and Wales Prevention of Crime Act. A year later, Canada's Criminal Sexual Psychopath Act of 1948 was passed, grafting some of the language from a similar statute in Massachusetts onto the habitual offender statute. This act was amended in 1960, and replaced with the notion of a dangerous sexual offender (Greenland, 1976). Joy Irving’s (2001) recent master’s thesis provides some historical perspective on the origin of Canada’s DO statute. The precursors, according to Irving, were the Penal Servitude Acts of 1864 and 1865, which provided for a mandatory, 7-year prison sentence to any convict who had been previously convicted of a felony. A few years later, England passed the Habitual Criminals Act of 1869, in part because capital punishment was no longer available to most recidivist property offenders. Similar to the Penal Servitude Acts, this legislation allowed police to arrest convicts who they merely suspected of “making a living by dishonest means” (Irving, 2001: 12). The onus of proof was on the convict to demonstrate that he or she was making an honest living. This legislation, which applied to convicts who had previously served a term in one of England’s prisons, provided for a mandatory sentence ranging from one to seven years. Of relevance was the political or social context of this legislation during the mid-19th century in Great Britain. The demise of capital punishment in England, the end of transportation to the colonies circa the 1850s, the protection of the propertied class, notions of social Darwinism, the “criminal class,” and positivism prevailed. What is unique about this legislation is that it was abolished after only two years in 1871, largely due to criticism that it was unfair, poorly drafted, and opposed by the criminal bar. As well, the whole notion of the “dangerous classes” had faded from public attention. What next emerged in England was the Prevention of Crime Act of 1908, the nearest precursor to Canada’s own Dangerous Offender legislation because it was studied by the Archambault Commission (1938). Once again, the question of recidivism, professional criminals, and the failure of the penitentiary to contain them came to the forefront. While this act is also credited with
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creating the English Borstal system for young offenders, thereby emphasizing the treatment and reformation of prisoners, it also addressed habitual convicts. Here, a judge could label an offender a “habitual criminal,” which thereupon permitted a mandatory sentence of five to ten years on top of the usual tariff for the instant offenses. The 1977 recodification of both Canadian statutes under the general heading of Dangerous Offender legislation was strongly influenced by a committee of forensic and correctional psychiatrists who had been assembled to brief the Solicitor General (Petrunik, 1984: 41-42). Though the Solicitor General's own research unit prepared a literature review which questioned the ability of psychiatrists to predict violent behavior, this and related civil rights concerns were ignored. While the Law Reform Commission of Canada (1976a) published its own criticisms of the Habitual Offender and Dangerous Sexual Offender statutes, its recommendation for fixed, determinate sentences was also by-passed. In part, the 1977 amendments were influenced by the Federal Government’s reaction to Philippe Gagnon, a mentallydisordered prisoner who, upon release in 1974, killed a policeman and wounded six others before dying in a shoot-out. To quote Petrunik (1984: 58): The Gagnon incident...occurred at a crucial time in the public debate over the abolition of capital punishment. Government officials were seeking alternatives to control violence that would allay the public's fears. The spectre of the Gagnon incident and its aftermath and the anticipation of other such incidents were likely factors in the Government's decision to ignore criticisms of the proposed dangerous offender legislation and include it as part of its Peace and Security Package against violent crime.
Fundamental to this legislation has been the dominant role of psychiatry and clinical psychology, although empirical evidence suggests that psychiatrists have not been particularly accurate in identifying so-called Dangerous Offenders. For example, one such experiment occurred in New York State following the U.S. Supreme Court's 1966 decision in Baxstrom v. Herold, 383 U.S.
107. That decision resulted in the release of over 900 allegedly dangerous, insane persons from indeterminate, civil commitment in the State of New York. Follow-up studies by Steadman and Cocozza (1975) in New York, McGarry and Parker (1974) in Massachusetts, and Joseph Jacoby (1976) in Pennsylvania found that few labeled "extremely dangerous" by psychiatrists were detected in acts of violence (Menzies, 1977: 34-36). Notwithstanding such criticisms, Petrunik suggests that this legislation largely survives for symbolic reasons – to give the government the appearance that they are "doing something" about highly visible, violent offenders. The legislation thus gives legitimacy to the widespread tendency to associate violent and sexual offenses with untreatable mental disorder; permits the confinement of offenders who are ostensibly not psychotic or mentally ill, and is justified as a result of more lenient sentences for the non-dangerous. Noting the symbolic functions of the criminal law (Gusfield, 1963), Petrunik also concluded that the Dangerous Offender statute serves an important political function. Critiques which focus on powerlessness, race, ethnicity, poverty, and class are purposefully excluded from the courtroom (Pfohl, 1978 and 1979a). A decade later, Petrunik (1994) undertook an update of his previous study, this time comparing Dangerous Offender legislation in North America, Europe, and Australia. His review was organized around three approaches to understanding dangerousness: (a) the clinical model, (b) the justice model, and (c) the community protection model. Here again, Petrunik (1994: 9-10) observed how much legislation devoted to this issue is the result of a single, sensational "incident which has outraged the community." Thus, he concludes that (1994: 10; 1982: 237): Dangerous offender legislation…can be better understood as a largely symbolic attempt to appease an angry and fearful populace and serve special interests (for example, politicians seeking re-election, criminal justice and mental health professionals seeking additional resources) than a concerted
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instrumental effort to reduce the incidence of serious harm to the public.
The origins of the "clinical model" have, according to Petrunik, a long history – dating back to the positivist school of criminal anthropology (Garofalo, 1885). Central to this notion of dangerousness was the assumption of an identifiable personality disorder for which treatment was not likely to be effective. This led to the imposition of an indeterminate (life) sentence and civil commitment in countries such as Norway (1902), Denmark (1925), Belgium (1930), Germany (1933), and the United States (starting in the 1930s). Dominated as it was by a medical model, this legislation codified the ability of psychologists and psychiatrists to diagnose and treat such offenders. Under the guise of treatment, the interests of the mental health profession were incorporated into legislation (Sutherland, 1950a and 1950b). During the 1970s, proponents of the "justice model" began to criticize Dangerous Offender legislation, and especially the mental health profession which dominated decision-making about individual pathology. Here, the notion of individual pathology, the ability to predict dangerousness, and the success of treatment were challenged as civil rights violations. This led many jurisdictions to abolish the indeterminate sentence for so-called sexual psychopaths, institute fixed sentences in both criminal and civil settings, and provide more due process protections in civil commitment proceedings. More recently, the "community protection" model has been resurrected as the appropriate means to respond to Dangerous Offenders. Essentially a model supporting incapacitation via prison or surveillance, the notion of "community protection" is heavily dependent on the prediction of future, harmful conduct – using women and child victims as a key justification. In large part, the call for greater "community protection" has often followed sensational cases of offenders with long histories of violent sexual crimes who are released from custody after serving their determinate sentence and re-offend yet again (Petrunik, 1994: 55). Based on 121 offenders having been declared dangerous since 1977 in Canada, Petrunik summarized several well-reported findings: (1)
that most cases originated in Ontario and British Columbia; (2) that a substantial portion of DOs were non-white; and (3) that most DOs were sex offenders. Petrunik (1994: 90) thus observed that with an "average of only 8 new declarations a year, Canada's Dangerous Offender legislation has offered minimal comfort to members of the community concerned about high risk violent and sexual offenders." In concluding his review of Dangerous Offender legislation, Petrunik (1994: 118) asked a key question: are adjudicated Dangerous Offenders significantly different from other violent sexual offenders or are the contingencies of differential community and criminal justice response the key factors in their selection? Petrunik (2002 and 2003) would continue his interest in social policy and the response to sex offenders. A decade later, he again returned to the subject of Dangerous Offenders through a case study of Joseph Fredericks, one of Canada’s most infamous child sex murderers (Petrunik and Weisman, 2005). Fredericks abducted and murdered 11-year-old Christopher Stephenson in 1988. His case reached the national spotlight through a concerted campaign by his parents and a Coroner’s inquest (Ministry of the Solicitor General of Ontario, 1993). Petrunik and Weisman (2005: 77) spend a great deal of time detailing how Fredericks’ life was constructed over time in the form of competing analyses that reflected different “approaches to social and political analysis and social policy.” What they found was a variety of categories beginning with an abused and neglected child, retarded child, mentally ill person, criminal, predatory monster, and even tragic victim. Fredericks begins as a child born into a very impoverished and mentally disadvantaged family who became a ward of the Court at nine (9) months of age, and was thereupon shuffled through a variety of foster homes. There, he describes great loneliness and many instances of sex play with boys and girls of his own age. Because he was falsely diagnosed as developmentally disabled, he was transferred to an institution for the “mentally retarded,” where he was raped three times by another resident and himself engaged in both consensual and forced sex with other inmates. He later escaped from this facility, where he had a horrendous disciplinary record, and sexually assaulted a
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young girl. This resulted in his placement in a maximum security psychiatric facility in Ontario (1959 to 1983). At this facility, he was considered both mentally deficient and a “psychopath” who refused to conform to the therapeutic regime. He also committed several sexual assaults on patients and had escaped, committing sexual assaults on a young boy and girl. In frustration, staff regarded Fredericks as more “bad” than “mad,” and considered him too disruptive for a psychiatric facility. This time, however, Fredericks was criminally charged with sexual assault on the young boy (a 10-year-old). Charges were laid in 1983 and Fredericks was convicted and sentenced to 22 months of reformatory followed by probation. Little consideration was given to a DO application as the Crown was unaware of Fredericks’ lengthy mental health records. Fredericks was released to a halfway house in Ottawa, with most criminal justice personnel (including his probation officer) unaware of his history. Within two weeks, he abducted an 11-year-old boy and raped him. This time, he was assessed at a psychiatric hospital in Ottawa, where he was labeled as “very high risk” to reoffend – one of the worst that staff had ever assessed. The Crown considered a DO application but neither the current victim nor previous victims wished to testify. Hence, Fredericks accepted a plea agreement for a five-year federal penitentiary sentence. Fredericks’ behavior improved and he was assessed as not developmentally delayed – in fact, his I.Q. was in the normal range. Fredericks obtained a day parole release to a halfway house in Toronto in late 1987. Due to concern about negative publicity relating to other sex offenders, Fredericks’ parole was revoked for alleged technical reasons and he was returned to penitentiary – only to be released shortly afterwards on mandatory supervision (two-thirds of his 5-year sentence). Fredericks was very angry at this suspension since he had not violated his parole conditions, and refused any form of treatment in prison. At Fredericks’ release on mandatory supervision, little effort was made to immediately place him in intensive therapy. In fact, Fredericks refused medication and psychological counseling. Instead, he got involved with the John Howard Society of Greater Toronto – a program that helps ex-convicts to re-integrate into
society. In June 1988, Fredericks moved from Toronto to Brampton, Ontario. Very quickly, he led 11-year-old Christopher Stephenson to a field where he raped the boy. He then took the boy to his apartment and kept him drugged and bound. The next day, Fredericks took the boy to a wooded area near his apartment, where he stabbed and choked the victim to a slow death – his hands bound behind his back. Subsequently, Fredericks, who advanced an insanity defense, was convicted by a jury of first degree murder and sentenced to life imprisonment without parole for a minimum of 25 years. Fredericks was now a monster, criminally liable. In the final part of their article, Petrunik and Weisman (2005: 89) talk about Fredericks as a “victim of an uncaring society.” Here, they quote this criminologist and the late prisoner’s advocate, Ruth Morris, who worked as a director of the John Howard Society of Toronto and had personal contact with Joseph Fredericks: For Yeager….the issue is primarily a political one of how staterun institutions (child welfare systems, asylums, and prisons) serve as dumping grounds for undesirables such as Fredericks, thus diverting attention from the societal conditions which produce problem individuals in the first place. Referring to Fredericks as a ‘state-raised kid,’ Yeager argued that representatives of such state-run institutions do not want to accept responsibility for their ‘sins’ of commission and omission. It is the failures of state officials that result not only in individuals such as Fredericks being misdiagnosed, brutalized, and sexually assaulted but also in their assaults and brutalizations of others. For Yeager, the iconic status of Fredericks and others like him in media representations serves a political function of drawing attention from state malfeasance and neglect and toward individual evil and pathology. This allows representatives of the state to expand measures designed to punish and/or incapacitate offenders after the fact rather than carry out the kinds of transformative justice policies and programs advocated by Ruth Morris. From Yeager’s critical criminological perspective, such transformations are not attempted
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precisely because they would threaten the interests of the most economically and politically powerful groups in society.
In summary, Petrunik and Weisman (2005: 91) take us through a social history of Fredericks and the societal reaction to him, suggesting that none of the “single” categories explain the complexities of his existence. “The messy realities of a life in which he was both victim and victimizer, both cunning and impulsive, both mad and bad, simply spill over any single category that attempts to do so.” Notwithstanding a more nuanced and preventive approach, the prevailing societal stance has become one of incapacitation and disposal of the “dangerous classes.” Almost twenty-five years later, Petrunik (2005: 49-50) would continue to see this phenomenon as a “socio-politics of dangerousness.” It involves a “focus on struggles of power in defining who is and who is not dangerous or `high risk’ and how those so designated should be handled.” Quoting Petrunik (2005: 68): There is no hue and cry for burglars, robbers, polluters of the environment or perpetrators of fraud to be registered and tracked, to be identified on web sites, to be made subject to community notification, to have their movements limited by judicial restraint, and to be subject to post-sentence detention.
The dangerous sex offender has thus become a socio-political symbol to State elites who have responded with a panoply of incapacitative measures, including simple warehousing. Whether these measures are actually effective or violate civil rights appears less important than their symbolic importance by State elites. Importantly, Petrunik and others (Garland, 2001) have noted the effect of penal populism on the creation of dangerous legislation. Following often very heinous but atypical crimes, interest groups form around the aggrieved victim and have lobbied government to enact these restrictive measures. Following in the footsteps of Petrunik, Newton’s (2008) work on Canadian Dangerous Offender legislation offers an
important glimpse into the political construction of criminal dangerousness. Central to her thesis is the role of claims-makers, or interest groups who stand to gain “greater wealth, power or prestige” (Newton, 2008: 5). Particularly with respect to passage of the 1948 Criminal Sexual Psychopath legislation in Canada, Newton documents how a cabal of claims-makers – who included psychiatrists, police, corrections officials, and Crown prosecutors – engineered a moral panic in the news media as a means of justifying the new legislation (Newton, 2008: 17-18). ….Canadians became concerned with crimes being committed by sex criminals largely as a consequence of sensationalist media attention. Following the murder of Toronto’s Arlene Anderson in 1947, ‘the level of media coverage and public outrage’ (Chenier, 2008, p.18) surrounding sex criminals escalated. A rise in interest in mental health issues occurred in conjunction with increased coverage by the Canadian Broadcasting Corporation (CBC) and the National Film Board (NFB). The media, however, were secondary claims-makers with regard to the construction of the criminal sexual psychopath as the information they broadcast most often came from psychiatrists, correctional officials, lawyers, and police investigators acting as primary claimsmakers.
As the legislation was implemented, it was not without its own critics, even from a small minority of psychiatrists. One prominent expert from the Canadian prairies stated his belief that a so-called epidemic of sex-related crimes was the result of a somewhat morbid public interest no doubt stimulated by an unscrupulous and sensation mongering press. That, combined with the over-selling of psychiatry and a false belief in its ability to cure sex deviants, amounted to a disproportionate level of social anxiety over what was essentially a marginal phenomenon. (Newton, 2008: 23)
After the 1977 recodification of the Dangerous Offender statute in Canada, there continued to be major acts of violence, especially horrendous homicides like those committed by Clifford Olson (11
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young victims). This led to a de-emphasis on mental health treatment and parole for Dangerous Offenders, yet the psyprofessions managed to protect their gate-keeper status as experts on the diagnosis and risk prediction of dangerousness in the legislation. In effect, during the late 1980s and into the 1990s, the DO statute which allowed the imposition of an indeterminate, life sentence became a de facto life sentence without parole. Also enacted were provisions for sex offender registration, peace bonds, and a national flagging system of offenders who were tagged as high risk by police authorities. More recently in 1997, the Criminal Code was again amended to provide for long-term supervision of those cases where the Crown might be unsuccessful with a Dangerous Offender designation, but now had the ability to ask for both a long, determinate sentence to be followed by a special parole term lasting up to ten (10) years. In early 2008, a conservative government again amended the statute to provide for a presumption of dangerousness upon the third conviction for a violent offense, to be rebutted by the Accused, not proven by the Crown. All of these new amendments were attributed to a small coterie of claims-makers coming from the victims’ movement, prosecutors, police, and the correctional industry. Following a long-held interest in the subject of Dangerous Offenders, the psychiatrist Anthony Marcus (1966, 1969, 1970 and 1971) of the University of British Columbia studied these offenders at the old B.C. Penitentiary. Marcus (1971: 18) evaluated all 23 Dangerous Sexual Offenders at the penitentiary, and observed early on that a DSO in prison is "a pariah.” He is not only isolated and spurned by the larger prison population, but he is subject to considerable personal humiliation and verbal and physical abuse.
Most inmates in this special subpopulation complained about the absence of rehabilitation, and the sense that they were "being left to rot for a long period of time in confinement, stored like furniture" (Marcus, 1971: 29). Mirroring the interests of his profession,
Marcus recommended a special unit be established for DSOs to provide them with intense psychiatric treatment. In 1972, Cyril Greenland published a study of dangerous sexual offenders (DSOs) in Canada, beginning a long-held interest in this subject (Greenland, 1972, 1976, 1977, 1984 and 1985). His work was based on National Parole Board files, and involved the coding of various information, such as: criminal history, age, sex, family background, treatment history, and parole. Confirming previous studies, the majority of DSO cases originated from two provinces – British Columbia and Ontario (68%). Almost twothirds of the DSOs had committed a heterosexual sex offense; and ninety-five (95%) per cent had a prior criminal record for either crimes against persons or property. As of 1973, thirty-four (34%) per cent of DSOs had been paroled. In discussing the ability of mental health clinicians to predict future dangerousness, Greenland argued (1985: 27) that “psychiatry…operates in a given political, historical, and cultural context. The notion of professional independence and freedom from political influence is, of course, a dangerous delusion.” Indeed, Greenland suggested that expert testimony by a few willing psychiatrists is used by the State to secure indeterminate sentences, often against offenders (homosexual pedophiles) who are much less dangerous than violent, heterosexual rapists. He concluded that much violence is situational in nature, and more conditioned by age, sex, and victim characteristics than individual psychopathology. Of relevance, Greenland (1985: 38) posits that many of these "dangerous" offenders are young, poor, and undereducated – thereby suggesting a relationship between their offenses, poverty, and powerlessness. We can opt for peace and social justice, which involves the planned sharing of power and resources, or we can define the underprivileged members of society as social enemies and control them, as instruments of political repression, by the use of longterm incarceration, psychopharmacology, and neurosurgery.
At the same time, Queen’s law professor Ronald Price (1970b) and his then student, Alan Gold, completed a legal analysis of both the
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habitual criminal and dangerous sexual offender statutes in Canada. After surveying the history of both statutes, Price and Gold (1976: 164) concluded that such legislation rests upon a number of unsubstantiated assumptions: 1) serious sex crimes are prevalent and rapidly increasing; 2) sex crimes are committed by "degenerates", "sex fiends," or "sexual psychopaths," who exist in substantial numbers; 3) such offenders continue to commit serious sex crimes throughout life because they have no control over their sexual impulses; 4) the minor sex offender, if unchecked, progresses to more serious types of sexual crime; 5) it is possible to predict those individuals who are likely to commit serious sex crimes; 6) "sexual psychopathy" or sexual deviation is a clinical entity; 7) reasonable treatment methods to cure deviated sex offenders are known and employed – and, even if they are not, permanent incapacitation is necessary because of the potential danger that such offenders represent; 8) since the sexual offense is in the nature of a mental malady, professional advice...as to the identification, disposition, and release of such offenders should come exclusively from psychiatrists; and 9) sex control laws of this kind serve to reach the brutal and vicious sex criminal, and should be adopted generally to eliminate sex crimes.
Arguing that these assumptions were either false or, at best, questionable, Price and Gold called for a substantial revision of the law in favor of a fixed, extended sentence. They further suggested that legislation requires the trial court to specify both (a) the
probability of specific offenses, and (b) the period of time in which a prediction of violent behavior applied. This paper, among others, led the members of the Law Reform Commission of Canada (1976b) to recommend that both the Habitual Offender and Dangerous Sexual Offender acts be amended. In the case of habitual offenders, the Commission simply argued for its abolition. With respect to Dangerous Sexual Offenders, the Commission (1976b: 31) suggested that a fixed, extended sentence ranging from ten to twenty years would be sufficient. To quote the report: The existing law relating to dangerous sexual offenders should be abolished. Further, a judge should be appointed to inquire into the cases of the men already found to be dangerous sexual offenders with a view to establishing a release program, a periodic review of their cases and termination of their life sentences after a given period of successful living in the community.
Ivan Zinger and J. S. Wormith (1994: 8) attempted to update the analysis by Price and Gold, arguing that their recommendations are unlikely to be implemented because they "fail to address the public's fear of crime." Nevertheless, Zinger and Wormith summarized much of the criticism against this statute, suggesting that due to its arbitrariness, Section 752 had failed to identify truly Dangerous Offenders. They suggest that newly-devised actuarial devices for the prediction of future criminality are sufficiently reliable to justify preventive detention legislation. They further argued that the present legislation requires courts to consider actuarial evidence concerning future harmful acts, based on variables that do not violate the Charter (i.e., race, sex, or class status). As a further solution, Zinger and Wormith recommended that Parliament enact legislation for extended probation supervision. In 1986, Wormith and Ruhl undertook to analyze all ninety-seven (97) Dangerous Sexual Offenders declared such between 1948 and 1977, excluding those whose DSO finding was later reversed upon appeal. The research design did not permit interviews, so information for each DSO was coded onto a survey questionnaire from National Parole Board files (Ruhl, 1986: 30). Of the total number of DSOs, fifteen (16 per cent) were deceased;
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thirty-nine (40 per cent) were on parole or day parole; and fortythree (44 per cent) remained incarcerated (Wormith and Ruhl, 1986: 39). Six of the Dangerous Sexual Offenders were aboriginals and the remainder were Caucasian. Of significance, almost twothirds of the DSOs were employed in the "lowest level occupation category at the time of their arrest," with another twenty (21 per cent) being unemployed. The mean completed grade level was only grade 7.6. Overall, the average (mean) number of previous criminal convictions in the sample was 5.21. Eighty (80%) per cent of this population had at least one prior sexual conviction in their criminal histories (Ruhl, 1986: 35). The vast majority of DSOs were sentenced in just two provinces, British Columbia and Ontario (69/97 or 71 per cent); and almost half of the sample had used drugs or alcohol when committing their index offense (Wormith & Ruhl, 1986: 63). File reviews suggested that the vast majority scored lowrisk on two scales, Hare's (1983) Psychopathy Checklist and Nuffield's (1982) general recidivism index (GSIR). Indeed, of the 75 DSOs who had ever been paroled, approximately 21 (or 28 per cent) were convicted of new criminal offenses in the community (Ruhl, 1986: 53 and 55). Only about one-third of these convictions were new sexual offenses. Ruhl (1986: 6) reviewed the research literature and raised the question of whether “sexual offenders are more dangerous and recidivistic than other types of offenders,” a matter which her master’s thesis did not address. The Pepino (1993: 32) report provided a further snapshot of Dangerous Offenders. In December 1992, there were 121 DOs, of whom nine had died while in custody. Four Dangerous Offenders had been paroled. During the last 15 years, the DO population had been growing at a rate of eight admissions per year. Since 1977, nine DOs had been paroled, with three (3) having had their supervision revoked. The remainder were on parole, including a deportation. The average age was 40; 85 per cent were Caucasian (10.7 per cent Native); about one-half have two or more federal prison terms; and the majority (75%) come from two provinces, British Columbia and Ontario. Ninety per cent of DOs had sex offenses in their criminal histories. Many of the Pepino Group's recommendations as to strengthening Section 752 of the Code have been put into practice, including a national information system to
"flag" repetitive offenders, the sharing of information, the addition of other predicate sexual offenses, and a delayed-filing process, after sentence, to permit the Crown to bring a DO application (C55). Janine Jakimiec's (1985) master's thesis in criminology provides yet another snapshot of Dangerous Offenders. Under the new, post-1977 legislation defining "Dangerous Offenders," Jakimiec described all fifty-one DOs in the system from 1977 to 1985. Fortyeight remained in prison, with one (a female) having completed her DO sentence, another having died in penitentiary, and the third having had his Dangerous Offender sentence vacated by the appeal court. None of these offenders had been granted a parole from the National Parole Board; none had been granted any unescorted temporary absences, and only a few escorted temporary absences were in the files. Once again, British Columbia and Ontario accounted for 34 of the 51 cases, or 67 per cent. Markham (1988) approached the subject of Dangerous Offender legislation by critiquing "social defense theory" – i.e., the assumptions that we can adequately distinguish dangerous from non-Dangerous Offenders, and that dangerousness requires longterm incapacitation. For Markham, the medicalization of the dangerousness concept is best represented in the definition of a sexual psychopath under the pre-1977 legislation. Such an offender has "shown a ‘lack of power' ... to control his sexual ‘impulses' as a consequence of which there is a likelihood that he will inflict injury, loss, pain or ‘other evil' on a person" in the future (1988: 36). She concluded that (a) there is no consensus about the definition of "dangerousness;" (b) most clinical predictions of future violent offending exhibit a high "false positive" rate; and (c) there exists an "over emphasis" on individual pathology as opposed to situational aspects of the environment which influence violence. In the opinion of Markham (1988: 98), the role of psychiatrists is particularly suspect: [H]e or she is to obtain as much information as possible in order to make an accurate assessment of the offender's psychiatric needs, but also to use that information to recommend detention of the offender where it supports a finding of ‘dangerousness’.
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Thus, Markham (1988: 100) cited studies which indicate that psychiatrists often make clinical diagnoses based on a cursory personal interview and spend much more time consulting with file materials (largely police and court records). These "diagnoses" are largely redundant since they merely replace the official offense scenario and criminal history already in the file with the language of mental health discourse (Menzies, 1986). Nevertheless, this domination by psychiatrists permits mental health workers to argue for treatment to "cure" the psychopathology of the offender; and vests treatment expertise and risk prediction with these professionals. Lost in this battle over professional hegemony is the political nature of dangerousness. According to Markham, Dangerous Offenders under the current statute are largely sex offenders or persistently violent people. This definition excludes perpetrators of environmental crimes (which, it can be argued, kill more people) as well as other offenders (including corporations and their officers) whose actions or negligence results in structural poverty, poor health, suicide, and the like. Finally, in assessing social defense theory, Markham notes that Canadian courts have upheld the underlying basis of Dangerous Offender legislation. While acknowledging that psychiatric assessments of dangerousness are highly inaccurate, the courts have held that this evidence is still admissible since it is the judge who must rule on the question of future dangerousness, and since the opinions of psychiatrists are more reliable than those of lay people (1988: 163). Despite her critique of Dangerous Offender legislation, Markham (1988: 182) opts for a modified social defense theory based largely on the violent criminal record of the offender, regardless of the actuarial ability to predict serious violence in the future. It is sufficient that since a small number of Dangerous Offenders will recidivate in the future and cause grievous harm upon one or more victims; this possibility justifies an enhanced sentence of imprisonment. Nowhere does Markham acknowledge that such a formulation is biased against sex offenders and poor people, and simply presents yet another variation of positivism. Koopman (1985) interviewed all forty-two (42) DO inmates in the Canadian federal penitentiary system under the 1977
legislation. She then compared this DO population against a nonrandom sample of violent offenders who had not been adjudicated as a Dangerous Offender (N=42). A number of psychometric scales were used, including those for non-verbal intelligence, language, cognition, and personality. A cursory review of the two groups found them to be similar along several dimensions: age (35-36), Education (Grade 9), SES (middle-working class), prior delinquency (46-47%), and non-verbal I.Q. The violent inmate sample was actually considered to have engaged in more serious violence since 38 per cent had a record for murder. Most DOs considered the correctional response to be one of "warehousing." Since many were in protective custody and diagnosed with a character disorder, access to treatment programs was often difficult if not unavailable. In summary, Koopman (1985: 137-138) found few demographic differences between the population of DOs and her inmate control group sufficient to justify the Dangerous Offender label. The effects of the Dangerous Offender status were altogether negative: stigma as a sex offender whether the man was or not, the view of the institution and himself as a man doing a life sentence, the probability of doing much of their time in protective custody, and the self-fulfilling prophecy of other persons treating a man over a number of years as a dangerous person.
More recently, Zanata (1996) compared 45 Dangerous Offenders in the Pacific region of the Correctional Service of Canada (CSC) with a randomly-selected group of 45 "serious personal injury" inmates in the same region, excluding Lifers serving a sentence for murder. Of importance, Zanata coded both the DO sample and his "comparison" group under Hare's (1983) Psychopathy ChecklistRevised (PCL-R) as well as the Violence Risk Appraisal Guide (VRAG), reported in Webster (1994) and colleagues. Both scales are highly subjective, require specialized clinical training; and specifically with respect to the VRAG, have not been validated on large inmate populations. According to Zanata (1996: 33), there were no significant differences between the two samples in ethnic origin, years of
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education, or employment status. For both groups, the majority were Caucasian (79%), the mean grade completed was 8.34 years, and 73 per cent (33/45) were unemployed at the time of their offense. With respect to index offenses, the two samples differed on two dimensions: sex and robbery offenses. Dangerous Offenders were mostly sex offenders (89 vs. 44 per cent), and the control group had a higher percentage of robbery offenders (36 v. 2 per cent). As well, the DO sample had been convicted of almost twice as many serious violent offenses as the control group (266 convictions vs. 135). Whereas the majority (three out of five) in both groups came from violent family backgrounds or foster homes, DOs were four times more likely to have reported being victimized sexually (Zanata, 1996: 62). Of significance to Zanata, there was no statistical difference between the two groups in their PCL-R or VRAG scores. This led Zanata (1996: 70-71) to conclude that Dangerous Offenders are not any more likely to recidivate than a randomly selected group of ‘serious personal injury’ offenders....
who have not been labeled dangerous and given an indeterminate, life sentence. Bessy Koutetes' (1994) thesis on Dangerous Offenders follows the work of Foucault in utilizing the case study approach to identify competing discourses in the creation of the dangerousness label. She argues that even critics from the civil rights perspective and social science have played a role in sustaining this notion because of their failure to question the existence of so-called dangerousness rather than its unfair application. Principally focusing on how ideology and agency are used to construct "dangerousness," Koutetes reviews the impact of both government commissions on the sexual exploitation of minors as well as the "moral panic" that resulted from the Clifford Olson investigation. In particular, she focused on a case study of the Dangerous Offender Robert Noyes. Recognizing that Noyes (because of his lack of prior formal record and university education) was atypical of the vast majority of DOs, Koutetes nonetheless argues that the extensive
publicity given to the case permits a careful deconstruction of competing ideologies. In the Noyes' case, the presentation of "dangerousness" was dominated by the mental health profession, who characterized Noyes as a pedophile. Indeed, it was mental health professionals who testified to the harm caused by Noyes' sexual touching of his victims, not the actual victims themselves (Koutetes, 1994: 77). Adding to the discourse was considerable media attention by several local newspapers, which tended to demonize Noyes. It didn't matter that the Dangerous Offender statute was applied unevenly among provinces, or that similar sex offenders in British Columbia had been given determinate sentences instead (Koutetes, 1994: 89-90). Indeed, the case attracted political attention from the provincial attorney general who had promised to "get tough" with sex offenders. Of related interest, it appears that while Noyes voluntarily saw many psychologists and psychiatrists during his 15year period of offending, few subjected him to any recognized treatment and he was even permitted to return to the classroom – despite admissions of early-onset pedophilia. [O]n the six occasions when Noyes had voluntarily presented himself for treatment, the problem was identified and diagnosed but not treated. (Koutetes, 1994: 114-115)
Thus, it was largely the mental health profession which constructed a discourse to classify and censure Noyes as a sexual deviant with abnormal propensities and character disorders. The Crown’s office – under prodding from the Province's Attorney General – proceeded to demonize Noyes in order to justify a panoply of protection measures (new charges, suspension from the school district, numerous investigations, seizure of his children by the Province, and ultimately, an indeterminate sentence as a Dangerous Offender). Mackay's (1983) master's thesis titled “Dangerous Offenders in Ontario 1977-1983: Making the Decision to Proceed,” is unique, if only for the questions raised. Who decides which offenders will be prosecuted as Dangerous Offenders and what factors influence these decisions? For this research, Mackay studied 27 cases
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between October 1977 and May 1983 that were referred to the Attorney General of Ontario for a decision as to whether a DO application should be filed. The majority of these offenders, according to Mackay (1983: 17) have "experienced a belowaverage family life and have poor educational and employment histories." True to form, twenty-two of the applications (81.5 per cent) involved a sexual offense, almost all of which occurred within two years of release from custody. Over fifty per cent of the offenders had committed their new offense while under some form of conditional release (parole, probation, bail, and mandatory supervision). Importantly, 23 offenders (85 per cent) had received "at least one psychiatric assessment at some time prior to a request for a dangerous offender application" (Mackay, 1983: 20 and 44). Among these cases, one psychiatrist predominated (15 cases), leading Mackay to suggest that the presence of a negative psychiatric recommendation was a leading cause for supporting the DO application. Indeed, legal memoranda prepared by Crown prosecutors often highlighted these psychiatric predictions. In addition to the twenty-seven (27) cases, the Crown supervisor elected not to proceed with a referral to the Attorney General in three (3) cases. Of the three declined cases, psychiatric evidence was either missing or actually recommended against a DO application (Mackay, 1983: 44-45). Twenty-seven cases (N=27) proceeded to court, with the judge finding twenty-one (21) to be a Dangerous Offender. Of some interest, Mackay (1983: 41) found that 85 per cent of the offenders were liable to a sentence exceeding ten (10) years – half were subject to life sentences. Notwithstanding the availability of such lengthy sentences, a major reason for the Crown pursuing a Dangerous Offender application was that incarceration had failed in the past to deter the offender. Indeed, a small number of files (N=5) contained newspaper clippings expressing public outrage as well as a letter from the mother of a previous victim. Mackay further noticed that if the file contained contradictory or even positive information (for example, from the defense), it was usually excluded from the legal memoranda to the Attorney General (1983: 51). Indeed, of the 27 cases ultimately referred to the Attorney General for approval, all
27 were permitted to proceed to a formal DO hearing. In other words, the Attorney General of Ontario did not decline one application that reached his desk. Psychiatrist Robert Pos (1987) and his colleagues studied the first 21 Dangerous Offender hearings in British Columbia, under the revised 1977 legislation. This was largely archival research, but influenced substantially by the experience of the two senior authors, who had testified in many of these hearings (generally as a Crown witness). Nineteen or 90 per cent (19/21) of the offenders were ultimately found to be Dangerous Offenders under Section 752 of the Criminal Code. Consistent with previous studies, 81 per cent (N=17) had been charged with sexual offenses, and the vast majority (75 per cent) were on some form of conditional release at the time of their arrest for new charges. Indeed, fourteen of the offenders had a history of juvenile delinquency. With respect to social history, Pos (1987: 54-55) observed that "almost all of the offenders were reported to have had impoverished early development, involving foster home placements and/or alcohol abuse by one or both parents." Irving’s (2001) master’s thesis concentrated on the legal assumptions presented by Canada’s Dangerous Offender statute. The first assumption which she questions is that dangerousness “is an enduring trait or characteristic of the individual” (Irving, 2001: 98). In fact, available research suggests that violence, like general delinquency, does vary immensely by age and circumstances (Gottfredson and Hirschi, 1990). The second assumption, found within the actual wording of the DO statute, is that “indifference for the victim is a predictor of recidivism.” Not only has the concept of “indifference” not been well defined, but there is little empirical support for this notion in the research literature on empathy (Irving, 2001: 99). The third assumption, also found within the statutory criteria, is that “brutality of a crime is a predictor of recidivism” (Irving, 2001: 99). Here, the opposite actually occurs: murder has a low base rate of recidivism generally and particularly a low base rate for homicide recidivism (Goldberg, 1999). Since brutality has not been operationalized, there is little research to support any potential association. The last assumption is that prior “sexual
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conduct ….is a predictor of recidivism for sexual offences” (Irving, 2001: 100). While the research evidence does suggest it is a predictor, what is actually in question is, how much of a predictor? Long-term follow-up research on sex offenders has uniformly found that they recidivate at a rate much lower than non-sex offenders, and have relatively low re-arrest rates for sexual crimes (Sample and Bray, 2003). Citing studies of released mental patients who were thought to be too dangerous, Irving (2001: 119-120) concluded that they too experienced low base rates for re-arrest or return to hospitalization (about 15%). This suggests that mental health experts over predict serious personal injury offenses, and when their judgments are challenged in court – resulting in the release of formerly “dangerous” patients – their clinical predictions have been found wanting. Most interesting was Irving’s re-interpretation of Bonta, Zinger, Harris and Carriere’s (1996) study which compared a sample of Dangerous Offenders from Ontario and British Columbia with a sample of detention failures who recidivated with a violent offense. Those inmates detained had been serving a determinate sentence in Canada, but were thought to be too dangerous to be either paroled or released upon statutory release (two-thirds of their sentence). Hence, they were detained to the very last day of their sentence. You will remember that Bonta and colleagues claimed that the detention “failure” group looked similar to their sample of DOs; and therefore, this comparison justified the Dangerous Offender application procedure in the Canadian Criminal Code. Irving (2001: 136-137) pointed to some substantive differences between the groups, calling the assumption of similarity into question. Only a third of the detention failures were sex offenders, while 92 per cent of DOs were convicted sex offenders; Dangerous Offenders tend to be involved in more brutality than detention failures (70 per cent vs. 48 per cent); and DOs experienced parental sexual abuse at over twice the rate of detention failures. Still, both DOs and detention failures were very similar on criminal history variables, such as age at first arrest, juvenile record, prior incarceration, and failure on conditional supervision (probation or parole). On various risk prediction
instruments used by the penitentiary service in Canada, Irving (2001: 141-143) found identical scores. Does this suggest that the Dangerous Offender provisions are applied in an arbitrary and capricious manner? Irving asks us to reverse the logic and thereby question why certain inmates are designated as a Dangerous Offender, and not simply treated under determinate sentencing provisions with the possibility of detention to warrant expiry. What is missing in the Bonta study is a comparison between his DO sample and those detention inmates who succeeded in the community, as opposed to the detention failures who recidivated with a violent offense. Two studies by the penitentiary service in Canada have called into question detention policy in general, suggesting that the majority of Detainees are reprocessed at either a lower rate than other inmates, or exactly similar rates to those granted full parole or statutory release (Motiuk, Belcourt and Bonta, 1995; Grant, 1996). In other words, a sizeable number of Detainees are “false positives.” If the DOs also look like the Detainees who succeeded in the community, that comparison would call all of the Dangerous Offender provisions into question. A recent and valuable contribution to the literature on the Dangerous Offender process is a little-known master’s thesis by Susanna Steinitz (2001). Her work concentrates on the use of the term “psychopathology” to label and therefore assist in the designation of the Accused as Dangerous Offenders under the Canadian Criminal Code. Steinitz is most interested in the scale put forth by the psychologist Robert Hare (1999) called the PCL-R, or the “Psychopathy Checklist-Revised” that seems to have become a dominant mental health construct in DO hearings. Looking at the history of the term, she finds that it originated in France with Philippe Pinel, and was infused with moral condemnation (Foucault, 2000: 176-200). This term, psychopathy, applies particularly to habitual convicts who would repeat acts of criminality, and seems to straddle notions of sociopathy and antisocial personality disorder. To quote Steinitz (2001: 25): Describing an individual as lacking remorse or empathy, as manipulative, superficial, charming, intelligent and so forth can
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take on ominous meanings, regardless of whether an individual can be classified as a psychopath, whether (s)he is otherwise ‘dangerous’ or criminally inclined, and without consideration of the subjectivity involved in making such an analysis.
As presently operationalized, the PCL-R is often used to assess psychopathology in DO hearings, with a cutoff value of at least 30 out of a possible 40 points used to invoke the “pathological” label. In Steinitz’ view, it becomes a de facto risk assessment instrument for the Court's purposes with a veneer that it is allegedly an objective diagnostic tool used by trained mental health professionals. In other words, the scale findings become a de facto legal element defining dangerousness for the courts. Nevertheless, the PCL-R is heavily subject to the accuracy of clinical or criminal justice files, subjective interpretations during personal interviews, and where the “cut-off” score is set to impose the psychopath label. To examine the relationship between this de facto “risk” instrument and DO hearings, Steinitz examined court records that often consisted of trial transcripts, mental health reports, case law, penitentiary documents, and evidentiary decisions by the judge. Over a period from 1978 to 2000, she catalogued all DO hearings in British Columbia, which amounted to 100 proceedings. While Steinitz was able to access trial cases, the files of the British Columbia Court of Appeal were not made available, severely limiting the available data. First, Steinitz (2001: 80-81) summarized the demographics of the male suspects, as characterized by court professionals: all DO Accused were male; their average age was 37; most were single (73%, 65/89); only 21 men were significantly employed; 48 had been sexually abused as children; 59 men had been subject to physical abuse, and 81 had faced emotional rejection as children. Twenty-one per cent (21/98) of the men were of aboriginal descent, including at least four (4) who were residential school survivors. Information on IQ tests revealed that 48 per cent were diagnosed as below or low average in test-score intelligence. Where verdict information was available, 89 per cent of the cases resulted in the Accused being declared a Dangerous Offender (86/97), of whom 74 (76%) were given an indeterminate sentence.
Nine Accused were sentenced to regular, determinate prison terms, and two were given LTO (Long-Term Offender status) sentences. This is a new designation under the 1997 amendments which permits up to 10 years of special parole supervision following service of a determinate prison term. The average number of prior criminal convictions was about eight, and slightly over half of the predicate offenses (violence) did not actually result in physical injury to the victims. Steinitz (2001: 87) also found evidence that the number of DO applications in B.C. was influenced by political considerations within the Office of the Attorney General. For example, “Ujjal Dosanjh … was AG in 1998, and appears to have been proactively pursuing Dangerous Offender cases.” In about 58 of the 100 cases, evidence of psychopathy or anti-social personality disorder was a crucial factor in determining dangerousness. Nonetheless, by the late 1990s, the PCL-R was being utilized in nearly all DO hearings in British Columbia. Steinitz (2001: 103) notes, “These developments suggest a normalization and institutionalization of this instrument and the corresponding definition of psychopathy.” Indeed, what is interesting is that the PCL-R is actually copyrighted, so that one is forced to purchase the instrument, forms, and manual. Additional funds are charged for special training sessions. Risk has now become a commodified assessment. Beyond the obvious commercial benefit to its originator, Steinitz argues that the PCL-R requires moral judgment and is subjective when attempting to rate a person’s remorse, honesty, callousness, and conscience. This is especially problematic for some experts who only rely upon case files often generated by the police and correctional authorities. As well, Steinitz (2001: 115) noted that PCL-R scores for even the same Accused sometimes varied between raters by as much as 10 points. Running throughout the construction of “dangerousness” were several themes. First, was the oft-noted assumption of some biological defect (usually found also in the father). Second, that psychopaths possessed a “learning deficit,” probably biologically based, that predisposed them to processing information differently. In other words, they could not learn from experience with the criminal justice system. Third, the
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family background of many Accused persons was often reinterpreted as a breeding ground for psychopathy. Child abuse, poverty, educational failure, developmental disabilities, alcohol and drug abuse were not considered structural disadvantages implicating the State, but indications of individual dangerousness. “When environmental causes were considered, experts assumed that the roots of criminality were individualistic rather than related to culture and societal structure” (Steinitz, 2001: 125). Fourth, was the notion that class seemed to have an unnerving association with becoming dangerous. The vast majority of Accused facing a DO hearing were poor with histories often characterized by unemployment or under-employment and non-middle-class attitudes toward the community. Steinitz also commented on the domination of DO hearings by psychiatrists, some of whom became “expert” experts. One Crown psychiatrist testified in 46 of the 100 hearings; another Crown psychiatrist testified in 32 cases. It also became apparent that psychiatrists testifying for the Crown were paid better than defense psychiatrists, who often relied upon legal aid tariffs. “That these assessors are often not involved in treatment or other aspects of the professions of psychiatry or psychology suggests a bifurcation of knowledge between those who are ‘objective’ and assess people, and those who allow themselves to be sullied through personal interaction with their clientele” (Steinitz, 2001: 144). Even among the court experts called as witnesses by the Crown or the defense, there was a marked difference of opinion about whether the Accused was a psychopath or manifested antisocial personality disorder. Crown “psy” experts were three times as likely to make a positive diagnosis of psychopathy or APD than defense experts. In the end, Steinitz (2001: 163) had this to say about the process: The etiology of dangerousness was considered only on an individualized level, while the role of society was ignored. The fact that these ‘monsters’ are a product of our social and penological systems was generally alluded to only in passing, since the Dangerous Offender hearing is a symbolic cleansing
Chapter One exercise intended to provide the public with a sense of security now that the ‘dangerous’ are to be locked away indeterminately.
Jacqueline Faubert’s (2003) dissertation on contemporary risk analysis, actuarial estimates, and the application of risk to Dangerous Offender hearings in British Columbia (1978-2000) suggests a number of promising avenues. Of interest, Steinitz and Faubert were graduate student colleagues and traveled around British Columbia together indexing the same data – one for a master’s thesis and the other for a dissertation. More specifically, Faubert based her research on the reports and testimony of the various Crown and Defense “psy” experts at the 100 Dangerous Offender Hearings she examined from 1978 to 2000 in British Columbia. She argues that by 1995, forensic “psy” experts had changed their approach from one of “clinical” assessment to the application of various risk assessment scales (i.e., statistical applications based on group rates). To illustrate, prior to 1989, only 3 percent of the cases used risk prediction devices. After 1997, 73% of the cases used risk prediction (Faubert, 2003: 131). This followed a similar trend in a diagnosis of psychopathy. Prior to 1995, psychopathy was alleged in only 34% of the cases; after, it was the primary finding in 64% of the court cases, becoming, in effect, the “gold standard” of risk assessment (Faubert, 2003: 139). Prior to the adoption of risk instruments, the “psy” professions were being criticized for their inability to predict violence, and hence, accurately assess dangerousness (Faubert, 2003: 120). Left intact was the historic focus on individual pathology. “Locating the site of criminality and dysfunction in the individual pathologizes the offender and leaves intact the socio-cultural factors that subjectively influence the diagnosis in the first instance,” noted Faubert (2003: 37). This so-called “objective” risk analysis, in Faubert’s view, institutionalizes extra-legal factors such as poverty, sexual orientation, child abuse, family disorganization, and the “normal from the abnormal.” (Faubert, 2003: 9). Here, Faubert views the new risk instruments as a “penal strategy that depoliticizes crime, furthers the abandonment of reform and rehabilitation goals, and encourages social differentiation based on age-old inequalities characteristic of members of disadvantaged
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groups” (Faubert, 2003: 9). She argues it is no “coincidence that risk instruments were developed and tested on disadvantaged groups such as the mentally disordered criminal and other institutionalized populations” (Faubert, 2003: 64). These populations are the least powerful and generally incapable of resistance. In the end, “psy” evidence and forensic experts function as “social control agents” on behalf of the State. Indeed, the move to statistical risk assessment was made by the “psy” professions as a claim that this would result in more “objective, reliable, standardized, and scientific” predictions (Faubert, 2003: 23 and 28). Quoting Feeley and Simon (1992: 455), Faubert states: “The new penology is neither about punishing nor about rehabilitating individuals. It is about identifying and managing unruly groups.” Quoting Douglas (1992) and Mathiesen (1998), Faubert suggests that these so-called objective risk instruments render “psy” experts less subject to scrutiny because of the “aura” of scientific rationality they give to the labeling process (Faubert, 2003: 40-41). Pre-1980, criminal justice was concerned with rehabilitation, reform, and welfarism. The post-1980 configuration, sometimes called neo-liberalism, is much less expensive. “Risk assessment enables policy makers to thwart the allocation of resources that might alter the criminogenic social and economic conditions of the underclass” (Faubert, 2003: 48). Indeed, a finding of psychopathy was interpreted to mean that the subject was essentially untreatable (Faubert, 2003: 205). In looking at specific findings, Faubert concluded that the Crown prevailed in securing an indeterminate Dangerous Offender designation in 77 per cent of the 100 cases she studied. If determinate DO designations (allowed prior to the 1997 amendments) were included, that percentage increased to 88% (Faubert, 2003: 81). In 95 of the cases for which information was available, 74 per cent of the sample came from unstable employment histories (Faubert, 2003: 98). “76% of the offenders in my sample were below poverty level or low SES, 17% were of low to middle SES, and 7% of middle to high SES.” (98) Categorizing 92 offenders in the court records, experts came to a consensus that 33% were pedophiles, 25% suffered from psychopathy, and 29% manifested antisocial personality disorders
(Faubert, 2003: 102). Half of her sample would be classified as intellectually disabled (low or mental retardation) (Faubert, 2003: 104). Prior histories consisted of the following: 83% had a juvenile record; 95% had an adult criminal record; 91% had been previously incarcerated; 88% had at least one parole or probation revocation; and 75% had a prior sexual offense conviction (Faubert, 2003: 108). Among the 100 cases studies, 87 consisted of a predicate sexual offense. In Faubert’s sample, physical injury to the victim was documented in only 42% of the cases, and a weapon was present in only 14% (Faubert, 2003: 112). Crown experts dominated the process. In simple numbers, they overwhelmed defense experts by a 2:1 ratio, most of whom were psychiatrists. Of interest, even when the “objective” risk prediction scores were low, these findings tended to be ignored in favor of clinical opinion. This was especially true of pedophiles who tended not to have long criminal histories (Faubert, 2003: 144). “Overall, the majority of experts in my sample were uncritical of the use of risk assessment and the problems associated with actuarial evaluation such as low base rates, the ecological fallacy and limited focus on a predetermined set of checklist items" (Faubert, 2003: 150). She further noted that the PCL-R may not predict well with aboriginal, mentally-retarded, or highly addicted offenders since it was originally developed on white male prisoners (Faubert, 2003: 153). Further, most risk instruments are based on static factors which cannot be changed. They tend to ignore age or physical disability and downplay treatment issues (Faubert, 2003: 157, 209). Furthermore, guidelines allow “psy” experts to use allegations of anti-social activity which never resulted in an official conviction. While the court requires proof beyond a “reasonable doubt,” Faubert found this was rarely the case (Faubert, 2003: 161). She also discovered that some of the testifying experts had previously “treated” the Accused, putting them in a conflicted role in which they had not advised the subject that they might be testifying against them as a Crown witness in future proceedings (Faubert, 2003: 166). Further, some of the experts served as “screeners” for the Crown, and were also called as main witnesses – putting their credibility on the line since they had already made a paper recommendation. Of particular interest was the finding that
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Crown experts interviewed the Accused in only 38% of the cases, compared with 85% of the defense “psy” experts. In effect, the Crown was putting forward evidence that did not involve a clinical assessment of the Accused at the time of the current proceeding, a matter which the Courts have permitted under the more liberal evidentiary rules associated with DO hearings. This problem has not been eliminated by the use of a “neutral” evaluator under the 1997 amendments. Indeed, the “scenario that in fact emerged from the 24 cases where a court ordered expert was called was one in which the expert, barring additional Crown expert witnesses, could assess risk with impunity” (Faubert, 2003: 185). In the calculation of risk scores, focusing on the PCL-R, Faubert found that three items – lack of empathy, lack of remorse, and failure to take responsibility – were both vague and “similarly defined.” “If an expert assigns a high score on one item, it becomes logical to follow through with high scores on the others” (Faubert, 2003: 212). Even acts of suicide attempts were often re-interpreted by Crown experts as manipulative behavior designed to “sabotage [the] proceedings” (Faubert, 2003: 214). Subjects with low intelligence test scores were considered high risks, as were the Accused with high scores (Faubert, 2003: 219). The vast majority of Accused had committed violence outside the home against strangers. “By focusing on stranger danger and the hypermasculine serial rapist, violence within the home remains unchallenged” (Faubert, 2003: 232). Experts in Faubert’s (2003: 256-259) sample assigned little weight to the finding that most of the Accused were also victims of child and sexual abuse. In fact, having a dysfunctional family upbringing was transformed into a predictor of recidivism, instead of what might be regarded as traditional mitigation in most court hearings (Faubert, 2003: 251). This seems to be by design. The PCL-R tends to “target individuals with family problems, as well as low socioeconomic status and education level” (Faubert, 2003: 251). As well, job instability and unemployment became “risk factors,” not commentary on society’s social structure. When Faubert compared those who were designated Dangerous Offenders and those who were sentenced to a determinate penalty, subjects who were older, more likely to be
married, and who had steady employment often received a determinate sentence (Faubert, 2003: 264). Missing from the files was any consideration of the impact of long-term confinement on the subsequent recidivism of the offenders. The State was not held accountable for that prisonization effect, or for abuse suffered while a prisoner (such as assault or sexual victimization). In a similar way, problems related to aboriginal status became an “adjustment” problem encountered by the offender; not a critique of societal racism or cultural norms. In the end, Faubert (2003: 288) argues that risk assessment operates to identify the underclass, a discernible group of nonconforming individuals. The underclass experiences life without the normalizing influence of work, family, and economic consumption. Binaries of social exclusion continue to structure state responses to this disadvantaged group.
Thus, for Faubert (2003: 6-7), the calculation of risk via statistical scaling “overestimates the role of risk as a new strategy of power.” Instead, risk assessment, in her view, simply permits the institutionalization of historic conflicts pertaining to dominant moralities and methods of controlling the dangerous classes. One would be seriously remiss without addressing the issue of aboriginal over-representation as Dangerous Offenders in Canada. According to the most recent data, aboriginals represent about thirty (30%) per cent of Dangerous Offenders under supervision by the Canadian Penitentiary service (Public Safety Canada, 2015: 107), while representing about four (4%) per cent of the total Canadian population. Indeed, even among the total federal inmate population, aboriginals represent about twenty-one (21%) per cent of all inmates under correctional supervision. A recent critique by Milward (2014) finds that the Dangerous Offender application operates in a racist fashion, since it fails to adequately consider the impact of colonialism, the residential school system, structural poverty, alcohol and drug abuse, and the prevalence of domestic violence in the lives of Native peoples, especially those who come to the attention of
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authorities. Indeed, much of the intergenerational trauma pointed out by Milward is redefined in a Dangerous Offender hearing as “high risk” factors which justify a DO label. Hence, the very methodology of a DO hearing, involving largely “white” experts and statistical prediction scales, works to the disadvantage of aboriginals. Milward (2014: 634) argues that the entire criminal justice system is stacked against aboriginal Accused, in terms of its general focus. “It is obvious that the current government has a preference for spending far more resources on massive incarceration to deal with crimes after the fact, and by comparison minimal interest in investing in social programming that can address the root causes of many crimes.” Equally interesting was Milward’s analysis of all available, reported court cases involving an aboriginal in a Dangerous Offender application. While there was a handful of cases where the courts found in favor of a Long-Term Supervision Order (LTSO) in lieu of a Dangerous Offender designation, the more typical outcome was a DO order in which aboriginal alternatives were marginalized. A significant problem is the absence of intensive aboriginal treatment programming both in the community and within correctional institutions. As we have seen with this survey of the sociological literature, dangerousness is a political concept (Quinney, 1970; Chapman, 1968). As a form of labeling, it tends to encapsulate (and often hide) a wide variety of stratification issues that probably influence the underlying causes of these dangerous acts, but are, nonetheless, largely ignored by State actors.
PART II – CASE STUDIES OF THE DANGEROUS
CHAPTER TWO IDEOLOGY AND DANGEROUSNESS: THE CASE OF LISA COLLEEN NEVE1
Following a lengthy hearing on November 17, 1994, the Court of Queen's Bench in Edmonton, Alberta, found Lisa Colleen Neve to be a Dangerous Offender under section 752 of the Canadian Criminal Code. Close to 22 years of age at the time of her hearing, she was the youngest offender ever designated as a Dangerous Offender. Ms. Neve had been convicted of robbery and assault with a weapon, and according to the trial record, had a lengthy criminal history dating back to the age of fifteen (1988). Prior to that time, however, Ms. Neve was well-known to child protection workers and had been a ward of the court since age thirteen (1986). At only 22, Lisa Neve was already a veteran of the child welfare, psychiatric hospital, and criminal justice systems. This case raises not only questions of law under the Canadian Criminal Code (i.e., Dangerous Offenders), but issues of social policy – especially society's response to prostitutes, lesbians, aboriginals, street people, and poor women. On one level, I will explore Ms. Neve's employment as a prostitute in the street, sex trade (McLeod, 1982), infused with violence, pimping, crime, and acute drug addiction. This particular case study (Patton, 1980; Denzin, 1970a) further allows us to explore the intersection of race, class, and gender in the context of a virtual media "panic" on the violent female offender (Lynch 1996; Vincent, 1998; Pearson 1997). With respect to female offenders, Chesney-Lind (1997: 4) has referred to this phenomenon as "multiple marginality" which occurs in an advanced, industrial free market in which inequality is structural (Gordon 1971, 1977).
Ideology and Dangerousness: The Case of Lisa Colleen Neve
The Case Summary Born in December of 1972, Lisa Colleen Neve was the middle of three children adopted at the age of three months from an aboriginal birth mother. She and her older brother, Chris, and a younger sister, Nicole, were adopted by Jim and Colleen Neve of Calgary, Alberta. Little is known of her birth mother or father (Neve, 1994; Renke, 1995; R. v. Neve, 1997a). For the next several years, Lisa's developmental history is unremarkable. Her parents and relatives described her as an outwardly loving, trusting child. But very early, problems began to emerge – chiefly in the form of learning difficulties at school. Indeed, at the age of eight (grade 3), her parents sought out extra tutoring which appeared to help. The following year (grade 4), Lisa fell behind as no extra help was provided. According to her family, Lisa had a short attention span in school, and "ran with other kids who hated classes" (McKeen, 1994a). Upon turning ten years old (grade 5), her parents hired a private tutor. In the midst of helping Lisa, the tutor passed away. Later, Ms. Neve alleged that the tutor sexually abused her – an allegation that she would later repudiate while on the witness stand. Behavioral problems continued, however, and her parents referred Lisa to mental health professionals when she was only eleven (11) years of age. Beginning in junior high school, these acting-out problems increase in frequency. Lisa ran away from home several times, and at age 13, turned up at school intoxicated from alcohol. She was expelled for drinking alcoholic beverages and being disruptive. At the same time, she met her first pimp, "Tony," and began working as a teenage prostitute. Ms. Neve related that one of her initial activities as a teenage prostitute was being blindfolded on top of a freezer behind a Calgary restaurant and raped by johns at the behest of her pimp. "He's made her shave off her pubic hair so she'll even look younger for the clients. It's good for business." (McKeen, 1994a). Thus began a history of drug and alcohol abuse, overdoses, and street prostitution – intermixed with various "care" orders as a neglected or abused child. For instance, between 1986 and 1990, Lisa was in the custody of various child welfare agencies, including
Calgary's Service Centre, the Salvation Army's Children's Village and the Children's Guardian. As is common, she frequently ran away from these facilities, either returning to her parents or to the street, where she worked as a prostitute (Miller 1986: 87-117). By 1988 (age fifteen), Lisa had been in and out of secure custody in the child welfare system. As might further be predicted from someone so young and involved with both prostitution and drugs, Ms. Neve came to the attention of law enforcement. That year, she was placed on probation for carrying a concealed weapon (knife) and breach of an undertaking (failure to appear in court). While confined under a secure treatment order, she engaged in selfmutilation, physically attacked staff, threatened to kill staff, assaulted other inmates, and was remanded to the Alberta Hospital. This would be the first of eleven hospital admissions prior to her Dangerous Offender hearing. Later in 1988, Ms. Neve was convicted of uttering death threats to a police officer and received a Young Offender Act (YOA) disposition of four months of closed custody. Repeating a familiar pattern, she was transferred to Alberta Hospital, treated, and then returned to youth custody. She also had convictions for uttering threats, assault with a weapon, and forcible confinement. In both cases of forcible confinement, these related to hostage takings while in Young Offender facilities. In one instance, Ms. Neve pressed a pen to the eye of one hostage; and in another, put scissors to the throat of a hostage and slightly wounded that individual. No one was seriously harmed, however. Her other convictions were for soliciting, escape from custody, and failure to comply with an undertaking and a youth court disposition. The longest sentence she received for these offenses was twelve months of closed custody for six counts of break and enter. Much of her institutional history is replete with verbal threats against staff and other inmates, assaults, and selfmutilation (Neve, 1994). In December of 1990, Ms. Neve turned eighteen, and was now an adult. She continued to be arrested and institutionalized, and between 1991 and March of 1994, was convicted of seven criminal offenses and admitted to the Alberta Hospital three times. These criminal convictions consisted of assault with a weapon, uttering threats, robbery, and aggravated assault. One of these
Ideology and Dangerousness: The Case of Lisa Colleen Neve
convictions, aggravated assault, was quite serious. In November of 1992, Ms. Neve and three others accosted the victim in the washroom of a local nightclub. A fight developed, and she slashed the victim's neck with an X-Acto knife. The wound was seven centimeters long and one centimeter deep (Renke 1995: 652). She did, however, turn herself into police and apologized to the arresting officer for the attack. Indeed, she has trouble recalling the attack because she was drunk and high on cocaine that night. However, it was a robbery which led the Crown to file a Dangerous Offender application, perhaps influenced by her recent conviction for the aggravated assault noted above. That robbery had actually occurred several years earlier, 1991 to be exact, when the victim had allegedly been involved in an assault on one of Neve's friends (R. v. Neve, 1997b). Ms. Neve and a co-accused duped this woman into "going for a ride." Instead, the victim was taken to a field outside Edmonton where both Neve and the accomplice beat her, stripped off her clothes, cut her slightly in the process, took her money and belongings, and left her naked in 5 degrees Celsius weather. Much of the three-week Dangerous Offender hearing centered on both police testimony and notes written by Neve while she was both in custody and living on the streets. For instance, Constable Robertson testified that Lisa Neve has a reputation as being someone "not to be messed with" and as an "enforcer." Her reputation was that she would stand up for those she believed to be down-trodden (R. v. Neve, 1997b). Both police witnesses for the Crown testified that Ms. Neve was a heavy user of cocaine and alcohol, often daily. Her history is also marked by eleven admissions to the Alberta Hospital in Edmonton, a provincial psychiatric facility. The nature of her care and treatment remains somewhat vague at this juncture, because it does not appear that she was ever "treated" for any period longer than 50 days (Neve, 1994). What we do know from the Dangerous Offender hearing is that her hospitalization record is rife with acts of violence, aggressive behavior, threats of violence to both staff and other patients, and an "alarmingly negative attitude toward life in general and the well being of others" (R. v. Neve, 1994b).
During various hospital admissions as well as placements in various juvenile facilities, these diary notes were filled with statements describing murders she had allegedly committed (none true), sadistic and violent aggression, and her preference for inflicting neck wounds because they squirt blood. When Ms. Neve took the stand to explain these bizarre thoughts, she repudiated them by stating they were ploys or tactical moves to divert officials from addressing her "real" problems. In one of her first acts of selfmutilation while in juvenile custody, Neve describes the incident (McKeen, 1994a: B3): She swallowed some glass...As the blood ran from her mouth, she laughed because she felt there was no way any doctor could save her now. ‘Ha, Ha, I'm dead,’ she boasted to a staff member. ‘I could feel the blood in my throat,’ she recalls. ‘For the first time in there I felt in control. I felt really powerful.’
This fantasy evidence, however, became central to the testimony offered by the various Crown psychiatrists. The lead Crown Psychiatrist, Dr. Pierre Flor-Henry, described Ms. Neve as homosexual and sadistic, "the female equivalent of a male lust murderer." (Renke, 1995: 659). She was diagnosed as both a psychopath and an anti-social personality. Indeed, she scored above the cutoff on the Psychopathy Checklist-Revised (Hare, 1980; Hare et al., 1990). Two of the four Crown psychiatrists supported a finding of sexual sadism, and all found she was an anti-social personality. Even the psychiatrist called by Neve's trial counsel supported the finding that the Accused had an anti-social personality. With respect to her social group (street prostitutes and drug users), Ms. Neve herself testified that this behavior was the norm. In fact, she described the violent inmate subculture in prisons and how she defended herself by assuming an "enforcer" role. She says she was always afraid in jail and on the street until she was about 15. Two close street friends were murdered around this time. She turned tough, acted tough, talking of killings, wrote about killings, seemed obsessed about killing. "It was a way to make others afraid. Then, I wouldn't be afraid," she says (McKeen, 1994a).
Ideology and Dangerousness: The Case of Lisa Colleen Neve
Indeed, the Badgley Committee report (1984) as well as other commentators (Caputo, Ryan and Proulx, 1991; McCarthy, 1990; Bracey, 1979; Inciardi, Horowitz and Pottieger, 1993) have confirmed the general high level of violence which permeates the street life of prostitutes and their pimps (Hatty, David and Burke, 1996; Housser, 1998). Lisa Neve also came to the attention of the government when she threatened to kill a prominent local defense attorney by the name of Sterling Sanderman. Mr. Sanderman had defended a pimp by the name of Richard Jacobson who was accused of assaulting Ms. Neve and living on the avails of prostitution. Jacobson was eventually convicted largely on Ms. Neve's testimony, and he received a sentence of 18 months in reformatory. Nevertheless, at the conclusion of the trial, attorney Sanderman accused Ms. Neve of perjury concerning alibi evidence. During the course of the trial, it became known that she had been sleeping with two other local attorneys in town. In a rage over Sanderman's comments to the press (Coulter, 1993), Ms. Neve committed herself to the psychiatric ward of Alberta Hospital where she told staff about her intent to kill Sanderman and his children. She was subsequently charged with uttering threats, and on May 27, 1993, was sentenced to thirty (30) months in penitentiary. Later this sentence was reduced to eighteen (18) months on appeal, in part because her prior record was not particularly grave (R. v. Neve, 1994a). The trial judge, Justice A. T. Murray, concluded on the basis of all this evidence that Ms. Neve was a Dangerous Offender. Specifically, he found that she displayed a pattern of violent behavior and therefore constituted a threat to the life, safety, and physical or mental well-being of other persons [Sect. 753(a), CCC]. Further, because of the extensive testimony by the psychiatrists concerning psychopathy, the Court deemed Ms. Neve to be a very poor treatment candidate. In the view of the psychiatrists, "psychopaths do not burn out between ages thirty-five and fortyfive; their behavior remains the same" (Renke, 1995: 664). Nevertheless, Justice Murray rejected the label of psychopath, and instead, found Ms. Neve to be an anti-social personality. She was
sentenced to serve an indeterminate term (life) in a federal penitentiary in which the likelihood of parole is slight. The case caused a tremendous amount of uproar in the local media. Her parents, Jim and Colleen Neve, could not understand why their daughter had been classified as a Dangerous Offender "when many others who have committed far more serious crimes have not received the same classification" (McKeen, 1994b). The local director of the Elizabeth Fry Association complained of the double standard in sentencing Ms. Neve to an indeterminate (life) term. Another letter to the editor complained: Edmonton Journal, 26 November 1994, p. A9: What heinous crime did she commit to warrant such a severe designation? Well, it seems she threatened a lawyer. That explains it. The important politicians and all judges are all lawyers.
Even the editorial page of the Edmonton Journal, 20 November 1994 (p. A6) criticized the sentence as unfair, arbitrary imprisonment. The paper wrote: Odd, isn't it? A society that did precious little to keep Lisa Neve off the streets is now banishing her indefinitely as if she were a zoo animal. Yet the men who hired Neve for sex when she was 12, and 13, and 14, are free men today. The pimp who beat her ‘to a pulp’ in her mother's words, served just six months of an 18month sentence. Who created this woman of rage?
For her own part, Lisa Neve told a reporter that she wished the "justice system would focus on the men who prey as pimps and johns on child prostitutes – like she once was. Neve was only 12 when a pimp gave her drugs and alcohol and brought in men to have sex with her. She was also beaten and abused by her pimps" (McKeen, 1994c). In June of 1996, the Alberta Court of Appeal, in a 2-1 decision, denied an application by four interest groups to intervene in Ms. Neve's appeal (R. v. Neve, 1996b). Those groups consisted of the Canadian Association of Elizabeth Fry Societies, the Disabled Women's Network Canada, the Women's Legal Education
Ideology and Dangerousness: The Case of Lisa Colleen Neve
and Action Fund, and the Native Women's Association of Canada (i.e., "the Coalition"). The court of appeal dismissed the intervener applications largely on the basis that the applicant herself, Ms. Neve, had now adopted "all of the issues sought to be advanced by the Coalition." Citing the case of Regina v. O'Connor (1993), the Alberta justices concluded that interveners should raise new issues of constitutional importance to a case, not merely contest the evidence relied upon by the trial court to reach a finding of dangerousness. Notwithstanding, Justice Russell dissented, arguing that the coalition could provide "a different perspective concerning the special circumstances" of Dangerous Offenders such as Ms. Neve. She specifically noted that the Dangerous Offender provisions had only been applied in two previous cases to women, and therefore, there was little jurisprudence on the matter. The major argument put forth by the Coalition was that the designation of Ms. Neve as a Dangerous Offender was made in reliance on certain stereotypes and myths about women involved in the criminal justice system, aboriginal women, female prostitutes, and lesbians. In particular, the coalition argued that the trial court failed to consider the context in which women's crimes are committed, the reality of life on the street as a prostitute, and their techniques for survival both in and out of prison. Thus, it was argued that the typical woman offender is socially-disadvantaged, frequently subject to alcohol or drug addiction and often a victim of neglect, physical, or sexual abuse (Axon, 1989; Shaw and Dubois, 1995). Moreover, statistics on the incarceration of aboriginal women suggest they are over-represented in the penal system, especially for violent offenses (LaPrairie, 1987). In particular, the Coalition argued (R. v. Neve, 1996a): Women who do not conform to conventional stereotypes of femininity (with respect to language, dress, marital status, motherhood, sexuality, or type of offense, etc.) appear to receive more severe treatment than their more conventional counterparts.
Much criticism was leveled against the Crown's psychiatric evidence, suggesting it was biased against violent women offenders, and often narrowly construed the issues out-of-context. The explanation for deviance was individualized to the offender, and not placed in any historical or social context. Apparently, part of the psychiatric exam included the Psychopathy ChecklistRevised (PCL-R), a difficult-to-administer exam which evaluates offenders for psychopathic tendencies. This checklist was used to diagnose Ms. Neve as a psychopath even though it was generated from samples of male offenders, and therefore its application to female offenders was questionable. Moreover, much of the Crown's psychiatric evidence suggested that Ms. Neve was both "homosexual and sadistic," thus making her sexual orientation an indicator of pathology and a reason for the indeterminate sentence as a Dangerous Offender. This is especially confounded, according to the Coalition, because the psychiatric evidence did not properly take into account Ms. Neve's severe alcoholism and drug dependency.
Commentary A review of the literature on female crime suggests that the case of Lisa Colleen Neve is very much part and parcel of the way society views such offenders. We tend to view the criminality of Lisa Neve as a result of "individual characteristics that are only peripherally affected by economic, social, and political forces" (Klein 1973: 4). These factors are generally psychological or physiological, and women who turn to crime are thus viewed as rebelling against traditional feminine roles (Schur, 1983). In another context, we see the interaction between gender and class when Ms. Neve was recruited, at the age of 13, to be a sex trade worker in an illegal economy characterized by inequality, violence, and exploitation. That this circumstance was partly influenced by Ms. Neve's school failure, disagreements at home, and early onset of alcohol and drug abuse is not in dispute. Nevertheless, she was a young woman grappling with a disadvantaged, gendered position in an economy in which "individuals must fend for themselves, finding the best available
Ideology and Dangerousness: The Case of Lisa Colleen Neve
opportunities for themselves and their families. Some of these opportunities may, in fact, violate the law" (Gordon, 1977: 359). Her relative poverty, drug abuse, and domination by a pimp beginning at the age of thirteen led her to see sex as her most saleable commodity (McLeod, 1982; Chesney-Lind, 1997: 29). Within this milieu, she saw friends dying of overdoses, being murdered, much instrumental violence, and was a victim of this violence until she began to resist at age fifteen. Ms. Neve has herself observed (McKeen, 1994a: B3): It was like a different world to me. There were hookers and drug dealers and pimps. I learned to cope, I guess. I had no choice. I was in a locked place with a bunch of people and I just learned to survive.
Survive she did by essentially adopting a role with which she was familiar – that of a pimp. She began carrying a weapon, would occasionally rip-off drug dealers, strong-arm other prostitutes, and threaten both fellow inmates and street people as well as officials. In effect, she renounced the traditional feminine role of the subservient, docile prostitute for survival reasons. Thus, rather than see her as a misfit or a psychological character disorder, her adaptation (while perhaps extreme for other women offenders) was a perfectly understandable response to the violence and inequality she saw as a member of the underclass. To quote Wilson (1996: 72), this is an adaptation to "chronic subordination": Youngsters in inner-city ghetto neighborhoods are more likely than other children to see violence as a way of life....[G]hettorelated behaviors often represent particular cultural adaptations to the systematic blockage of opportunities in the environment of the inner city and the society as a whole.
Analyzing the life histories of 170 violent female offenders in New York City (1992-1994), Baskin and Sommers (1998: 147) likewise concluded that violence was strongly "influenced by the neighborhood environment”.
Chapter Two These women came from the most severely distressed communities in New York City, where the stresses of poverty and the increases in illegal opportunities combined with a weakening in the social control capabilities of neighborhood institutions.
Consequently, the psychiatric evidence offered by the Crown was designed not to challenge the "ghettoized" environment to which Ms. Neve adapted. As a diagnosed psychopath and "anti-social personality," Ms. Neve had violated white, middle-class norms of femininity. She reported fantasies about committing murders and doing violence; she was a lesbian, aboriginal prostitute with a history of threatening violence, taking hostages, and strong-arming people. To quote the late Edwin Schur (1983: 205): One is the possibility of substituting for a psycho-pathological interpretation the alternative view that women's situations often ‘are in reality depressing.’ Thus, by implication, the depressed feelings are not always irrational....[O]ur culture has encouraged women to view their own discontent as pathological and to see themselves as likely candidates for psychotherapy.
Thus, the all-male, psychiatric evidence "depoliticized" Miss Neve's life circumstances while providing the State with a convenient label – literally all of her behavior was attributable to her own psychopathology (Pfohl, 1978). Indeed, no evidence was offered at trial as to why the environment in which Lisa Neve lived was so historically marginalized (R. v. Neve, 1996b). The similarities to Canada's only other female Dangerous Offender are striking. Marlene Moore would ultimately commit suicide while incarcerated in Kingston's Prison for Women circa 1988 (Kershaw, 1991). One of thirteen children, she was raised as a tomboy in a poor family that had a reputation as troublemakers (stealing, bullying other kids, hostile to the police). She herself was subject to harsh physical discipline by her father, and there is evidence of sibling incest at the hands of one or more brothers. Like Lisa Neve, Marlene Moore was a behavioral problem in school who was often disruptive. "Authority figures around her seemed more concerned about controlling her disruptive, rebellious behavior than exploring the reasons for her anger" (Kershaw, 1991:
Ideology and Dangerousness: The Case of Lisa Colleen Neve
28). Moore was sent to a training school (Grandview) in Ontario at the age of thirteen where she got into fights, was in the middle of an institutional riot, and began a history of self-mutilation (swallowing pins, cutting or biting her skin). She became a street kid and was raped at knifepoint by the age of seventeen. After that episode, in which her attacker was acquitted, she succumbed to methamphetamine and alcohol abuse, and numerous arrests. Her institutional history at Vanier Institute for Women was marred by a hostage taking, and within the prison setting, she was often in segregation for settling "scores" on behalf of other inmates. She was subjected to several Dangerous Offender hearings before being sentenced, as a DO, to a definite period of custody (six months).2 An analysis of 42 male Dangerous Offenders by Koopman (1985) concluded that many had severe drug and alcohol abuse histories, family dysfunction, were socially isolated, and had histories of school failure (median grade = 9). Although about half came from middle-class families, as did Lisa Neve, there were numerous indicators of social breakdown (Berzins, 1983). Placed in a larger context, the case of Lisa Colleen Neve can be seen as a "moral panic" – the sudden manifestation of extremely violent female offenders who can only be controlled through life imprisonment. As Hall (1978) and his colleagues have noted, in a period of sharpening conflict and economic upheaval, a "crisis" is constructed to justify "law-n-order" policies that do not involve major re-allocations of resources to marginalized sectors of the populace (Schissel, 1997). All crime control...is an aspect of that larger and wider exercise of ‘social authority’; and in class societies that will inevitably mean the social authority exerted by the powerful and the propertied over the powerless and property-less. (Hall, 1978: 190)
The use of the Criminal Code (i.e., the Dangerous Offender part) to control a non-conforming street person must be juxtaposed with State resources that were absent: no long-term treatment provided in an unconditional care environment, little or no serious attention given to Ms. Neve's chronic drug abuse history, and nothing to
address the structural inequality of Ms. Neve's ghetto community. It should be no surprise, therefore, that Chesney-Lind (1997: 14 and 114) and others have concluded there has been no significant increase in female violence, other than a "moral panic" generated in the media (Gora, 1982; Steffensmeier and Steffensmeier, 1980; Shaw and Dubois, 1995). What has increased dramatically, however, is the imprisonment of women offenders – mostly for drug and property offenses (Chesney-Lind, 1997: 145; 2004; Chesney-Lind & Jones, 2010). The case of Lisa Neve is an illustration of the intersection of class conflict, gender roles, and racism (Carlen, 1988; Gelsthorpe, 1989; Faith, 1993; Miller, 1986). The Dangerous Offender provisions become, then, part and parcel of society's effort to maintain ideological, gender, and structural hegemony while doing as little as possible to address the underlying conditions that led to Ms. Neve's instrumental use of violence.
Postscript On June 28, 1999, a panel of justices with the Alberta Court of Appeal reversed and vacated Ms. Neve’s Dangerous Offender (DO) designation (R. v. Neve, 1999). This decision is unique for a number of reasons, one of which is that only about two (2%) per cent of Dangerous Offender appeals have been reversed by the Canadian courts (Mahoney, 1999). The appellate court reversed for a number of statutory reasons, including that the predicate offense (robbery) was not serious enough to justify the DO application. “[T]he assault was relatively minor and the weapon, in spite of the verbal threats made, was only used to carefully remove the complainant’s clothes and not to harm her” (R v. Neve, 1999: 117). As well, the trial court improperly relied upon prior offenses (such as burglary, unfulfilled threats, and possession of a weapon) which did not qualify as particularly violent offenses, and gave improper weight to the so-called “fantasy evidence.” As a result, the psychiatric evidence was tainted. The Court of Appeal, in effect, reversed its own earlier decisions in Regina v. Carleton (1981) and Regina v. Oliver (1997), holding that the prospect of rehabilitation and treatment
Ideology and Dangerousness: The Case of Lisa Colleen Neve
cannot be ignored in a DO proceeding. As well, it created new case law, to wit: a sentencing judge must pay special attention to the “context in which the criminal conduct occurred” (1999: 182). Speaking of the world of juvenile prostitution, the Court reasoned: It is enough to note that it is one in which street violence is a reality of everyday life and in which the perceived – and, some would argue, legitimate – need to assume personal responsibility for self-protection looms large. (R. v. Neve, 1999: 182-183)
The appellate panel that reversed Neve’s DO sentence was composed entirely of three female justices of the Alberta Court of Appeal. In this fortuitous instance, the intersection of gender, race, and class actually remedied what seemed to be an injustice.
CHAPTER THREE THE MECHANICS OF DANGEROUSNESS: A CASE STUDY OF REGINA V. CLARK
Introduction When we aggregate cases to provide statistical summaries of properties that interest us, we often lose valuable information – finite evidence put forward which is not coded, the actual processes of social construction (such as criminalization in court), and even the idiosyncratic interpretation of events by the subjects (often seemingly ignored in studies that depend heavily upon file reviews). Qualitative researchers reply that this is further evidence of reductionism, essentialism, and reification, and that one often misses a lot of “data” in a sample survey that results in truncated findings. In this exercise, we take a different tack by zeroing in on one case involving Eric Andrew Clark. Employing a case study approach as well as insider knowledge, this chapter attempts to analyze the evidence brought to bear against Mr. Clark that eventually resulted in him being declared a Dangerous Offender and sentenced to indeterminate confinement in a federal penitentiary. In 1998, this author served as one of several expert witnesses on behalf of Mr. Clark and his counsel. As such, not only did I testify as an expert at his DO trial, but I was privy to much of the formal evidence put forth from both the Crown Prosecutor and defense counsel. I also conducted a social history of Mr. Clark and submitted my own risk assessment. Unlike other expert witnesses who were either psychologists or psychiatrists, I was the only criminologist to testify. What follows, then, is a detailed examination of the case against Mr. Clark, dependent upon public sources of information that include: the trial transcripts, reports
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
submitted to the trial court, and the decision of the Ontario Court of Appeal.
The Case against Eric Clark The Accused, Mr. Clark, was arrested in April of 1994 on an Information alleging acts of buggery, indecent assault, kidnapping, and sexual assault against a multitude of male adolescents – most of whom were in the preadolescent category (mean age = 12.1). He was later formally charged with 46 counts involving some twenty (20) male victims. Most of the actual incidents consisted of mutual masturbation and oral sex with these minors. However, Eric Clark’s case was aggravated by several factors, including that he had been a foster parent, employer, and big brother to several of the victims; and he had furnished several victims with alcohol. Mr. Clark’s legal status prior to the DO hearing was unique for two reasons: (1) he had no prior criminal record, and (2) he was actually released on bail from May 1994 until his plea of guilty in May of 1996 to twenty (20) counts.1 In September 1996, the Crown formally filed a Dangerous Offender Application. Mr. Clark’s DO trial did not actually start until December 1997, with a verdict rendered on July 10, 1998.
The Dangerous Offender Hearing At this hearing, which was somewhat atypical, there were five professional witnesses and Mr. Clark also elected to testify on his own behalf. Despite the number of victims, none testified. Four of the five professional witnesses were mental health professionals including the sole witness for the Crown, psychiatrist Richard Hector, M.D., clinical director at the Oak Ridge mental institution in Penetanguishene, Ontario. On order of the court, Mr. Clark had been sent to this facility to be studied by the Crown’s experts whom they could designate under the new amendments to section 752 of the Canadian Criminal Code (DO provisions). Dr. Hector actually spent very little time with Mr. Clark at the facility, preferring to delegate most of the work and contact hours to a clinical team, which consisted of an attending psychiatrist,
a social worker, and a psychologist who performed various penciland-paper tests on the patient. Other members of the team included an occupational therapist, nurses, and a recreationist. In all, Mr. Clark reports that he only saw Dr. Hector once for about 45 minutes (Transcript, 14 May 1998: 7). However, Dr. Hector testified that he saw Mr. Clark on several occasions during rounds and spent about one hour with him on one occasion (Transcript, 26 February 1998: 12-13). It was Dr. Hector’s opinion, based on his clinical team’s assessment, that Eric Andrew Clark was a homosexual pedophile with no evidence of any character disorder or other social malfunctioning except pedophilia (Transcript, 18 December 1997: 9). To quote Dr. Hector: …he was able to provide a compelling description as to the abuse which he had been exposed during the year of boarding school and the development of sexual interests in boys and the persistence of this interest of activity through the later years of his childhood and adolescence and into his adult years. He spoke of all of this as ‘abuse’ and he appeared to firmly believe that the consequences of such experiences with a sexual interest in boys continues to the present time. (11-12)
In direct examination, Crown counsel made light of the observation that at no time during this lengthy period did Mr. Clark make any attempts to seek treatment on his own – only after he had been arrested on the instant charges. Dr. Hector further described the relationships as not consisting of “violent” sex nor physical abuse, injury, or harm to the young boys. “They were passively solicited and when responded to, pursued. But it is also clear that Mr. Clark did join organizations such as Big Brothers ….and in that context, gained access to children that were certainly potentially vulnerable” (Transcript, Ibid.: 14). In effect, Dr. Hector characterized this behavior as “almost akin to stalking” (29). Indeed, Dr. Hector observed Mr. Clark to be denying “much of his own illness and the impact of his behavior upon others” (16). This is because the Accused had described several of the boys as “seducing” him and had characterized most of the boys
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
as consenting sexual partners. Of interest, several of the actuarial risk assessments, based on similar statistically-controlled groups of offenders, suggested that Mr. Clark was a low risk to re-offend (e.g., Psychopathy Checklist-Revised). Nevertheless, the facility’s own research department, which had developed a much-disputed risk assessment device called the VRAG (Violent Risk Appraisal Guide), concluded that Mr. Clark had a 60 per cent chance of violent recidivism in the next ten (10) years (Transcript, 18 December 1997: 19).2 On phallometric testing, Mr. Clark also showed a high sexual response to both male and female children between the ages of four and twelve years. This included passive, coercive, and violent sexual depictions with male children (20). When asked to assess the overall risk that Mr. Clark presented to the public, Dr. Hector opined that men like the Accused “re-offend very frequently” regardless of their age and despite “all treatment efforts that have been made” (24-25). Thus, Dr. Hector asserted that “the research literature would suggest that we don’t yet have an effective sex-social treatment for many of these conditions” (Transcript, 26 February 1998: 20). Indeed, Dr. Hector even referred to a defense expert, psychiatrist John Bradford, to the effect that offenders like Mr. Clark may have offended hundreds or even thousands of times, “much larger than one would anticipate from observing the criminal record” (26). In conclusion, Dr. Hector testified that Eric Clark met the criteria for being a Dangerous Offender under the Canadian Criminal Code as he “continues to present an important risk to adolescent boys” (29). Even though diagnostic work at the Royal Psychiatric Hospital in Ottawa (Dr. John Bradford’s forensic unit) found that Mr. Clark responded positively to assessment and treatment, it was Dr. Hector’s finding that “re-assessment at our hospital did not disclose any change” (Ibid.). Cross-examination of Dr. Hector did not occur until February 26, 1998, by counsel for the Accused. The first information was that the actuarial assessment called VRAG was done solely by file review by researchers at the Oak Ridge facility (Transcript, 26 February 1998: 7). This presents a problem inasmuch as the VRAG incorporates the PCL-R score (Psychopathic Checklist-Revised), whose methodology usually requires a clinical interview by someone
certified to administer the instrument. Dr. Hector further admitted that in all of his DO assessments at the hospital, he had never found an Accused not fit for the Dangerous Offender designation (8). A further contradiction was Dr. Hector’s admission that Mr. Clark had likely reduced his probability of re-offense by getting out of the campground (KOA) business, and dissociating himself from being a foster parent for the Children’s Aid Society, or being a Big Brother (20). This, however, did not matter for in Dr. Hector’s view, the “internal motivations in terms of the sexual drive and the sexual preference for this kind of activity is of a very high magnitude….[T]hat fact is a very high predictor of re-offense and a very high predictor of re-offense of a similar kind to prior offense” (23-24). This was after Mr. Clark had completed much treatment at the Royal Ottawa Hospital (47). What would emerge during further court proceedings was the admission by Dr. Hector that sexual behavior did, in fact, vary by age – with older persons being much less active (25). It became even more confusing when the Crown attorney pointed out that his own witness, Dr. Hector, had actually testified that Eric Clark’s score on the VRAG was not helpful in assessing future risk to reoffend (29). When defense counsel actually went through the components of the VRAG instrument (Webster, Harris, Rice, Cormier, and Quinsey, 1994), he calculated a different score than that put forth by the research unit at Oak Ridge Hospital. This score suggested a risk probability at half of what was asserted by Dr. Hector.3 When cross-examined on this score, Dr. Hector deferred to his staff, stating that the raw “data is then entered into a statistical program from which the results of the test conclusion as stated, merge and I don’t know and I certainly couldn’t comment with any authority on that analysis” (41-42). He then admitted that if the recalculated score was true, “one could have some optimism that the person might not re-offend” (43).
The Defense Witnesses The proceeding was adjourned until May 5, 1998, when psychiatrist Dr. John Bradford from the Royal Ottawa Hospital testified as a defense witness on behalf of the Accused. Dr.
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
Bradford is internationally renowned, and has published about 100 articles on sexual deviancy and its treatment. His assessment of Eric Clark was largely based on a 60-day residency of the subject at the Royal Ottawa psychiatric hospital. The first evidence offered was that Eric Clark had previously been an outpatient of the forensic clinic, while he was on bail for the offenses that form the basis for the DO designation. A social history was provided that Mr. Clark grew up in Montreal as the second child to a distant father and a mother who required neurosurgery for a brain tumor when Mr. Clark was a boy. The subject then experienced learning problems and was sent to a private boarding school, where he reported being sexually abused repeatedly by other students for about one year at age 10. He originally finished vocational training as an electrician, and then around 1970, purchased a KOA campground near Cardinal, Ontario, and ran this facility for about 14 years. He was married once and had a common law relationship at the time of this arrest. Mr. Clark does not have an illicit drug abuse history, but did consume alcohol to excess in his past (Transcript, 5 May 1998: 11-12). He did not, however, have a chronic history of alcoholism (19). There was no psychiatric history, and no evidence of a major mental illness. Mr. Clark’s treatment response as an outpatient at the clinic was described as positive with a favorable prognosis; in other words, he was motivated and co-operated with the treatment protocol then underway. Mr. Clark, unlike other offenders, was also able to establish adult heterosexual relationships which decreases his risk (Transcript, 5 May 1998: 15). However, his general sexual knowledge and adult functioning was low, which would be consistent with a diagnosis of homosexual pedophilia (18). On penile tumescence testing, Mr. Clark did not test positive for pedophilic “arousal in a non-alcohol state,” but showed such arousal under the influence of alcohol (22-23). As to testosterone level, Dr. Bradford opined: The total testosterone was in the low end of the normal range and given his age at …at 57 years of age I believe at this time, that is relevant. First of all it’s compatible with his age. It means that his
Chapter Three sexual drive and interest is dropping off….[I]t’s generally a positive sign for the future. (24)
Clark also responded well to the treatment of depression with medication, which has the ancillary effect of reducing deviant sexual fantasies. Interestingly, Dr. Bradford addressed the large number of victims (twenty according to the Information), and he stated this was quite average given the nature of the victimization (touching, fondling, masturbation, and oral sex). “[I]t would probably be an average with regards to men who have sexual problems with young boys” (28 and 121).4 With respect to negative factors, Dr. Bradford cited the use of erotica (magazines), oral sex, some evidence of group sex, the violation of trust with respect to foster children and involvement as a Big Brother, the impact on the victims (at least one of whom became suicidal), and the abuse of alcohol. Of particular interest was the witnesses’ discussion of a chart (see Table 1) concerning the sequencing of the victims by year. Dr. Bradford testified that this was consistent with a maturation and ecological effect. In other words, as Mr. Clark aged and moved away from his KOA campground business, the availability of potential victims and his bio-psychological urges declined, as would be predicted (Ibid.: 35). Thus, at the time of the DO hearing, Eric Clark was no longer a high-risk sex offender. This finding was made even without a history of treatment which Mr. Clark only received after his arrest while on bail (1994-1996). To quote Dr. Bradford: I do, however, feel that both without the benefit of treatment, he was able to control his sexual impulses during this given period of time, as outlined on the graph, and certainly with treatment and given his age in the future I think that the prognosis is quite reasonable with regards to his recidivism, even without treatment. (Ibid.: 37)
Dr. Bradford also disputed the previous testimony that there is no evidence that treatment works. Citing various meta-analysis studies, including those using castration and anti-androgen
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
medications, he concluded that “there’s no question that treatment is effective” (39). The assessment of future risk is one of the key legislative criteria for a finding of dangerousness under the Canadian legislation. Here, Dr. Bradford concluded that Eric Clark was not a psychopath under the Hare Psychopathy Checklist-Revised (PCLR). As well, his risk could be successfully reduced with fairly standard treatment interventions (relapse intervention, some medication) to around the 5 per cent level or “certainly between the five and fifteen percent” range (32 and 43). On cross-examination by the Crown Attorney, Dr. Bradford stated that pedophilia is a chronic disorder for which there is no cure albeit remission is possible (58). The Government further made a point that Mr. Clark could not be forced to take medication, albeit there is considerable leeway under general treatment orders that might include anti-androgen agents (61 and 128). A major point made during cross-examination was that Mr. Clark had been a pedophile for at least thirty years, victimizing children during that time, and never once sought treatment until after his arrest in 1994 (64). The counterpoint to this fact was the realization that had Mr. Clark self-reported his condition, it would have been reported to authorities, thus subjecting him to arrest and likely imprisonment (Transcript, 14 May 1998: 10). Dr. Bradford also opined that in the late 1950s and early 1960s, there was “almost no treatment available or clinics available for the treatment of paedophilia” (Transcript, 5 May 1998: 106).
68 Table 1
HISTORY OF VICTIMIZATION Regina v. Eric Clark by YEAR and VICTIM5 Year 1964 1965 1966 1967 1968 1969 1970
Name of Victim
George G. George G. George G. George G.
1971 1972 1973 1974 1975 1976 1977
Paul P. Paul P. Paul P. Paul P. Paul P. Paul P.
Fred F. Fred F. Fred F. Gilles G. Benny B. Bobbie B. Pete P.
1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992
Andy A. Andy A. Andy A. Kevin K. Kevin K. Kevin K. Kevin K.
1993 1994 1995 1996
Larry L. Pete P. Barry B.
Phil P. Phil P. Phil P.
Sammy S. Sammy S. Sammy S. Alan A.
Mitch M. Mitch M. Mitch M.
Dougie D. Alan A.
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
The Crown Attorney also made a point, based on selfreport information, that Mr. Clark’s sexual victimization of others actually started earlier, around 1956 (78). The Government further questioned the results of testing which revealed that Mr. Clark had made improvements in his cognitive distortions regarding having sexual relations with minors. Here, the Crown Attorney suggested that Mr. Clark was essentially tailoring his test-taking to the reality of facing a possible indeterminate sentence as a Dangerous Offender, invoking “the party line” (96-97 and 105). Bradford responded, testily: No, it’s not reality, as far as I am concerned, in the sense of when Mr. Clark was originally tested he had cognitive distortions and that changed when he was re-tested. I know that you perhaps are dubious about his motivation and his response to treatment but he worked hard at it. He engaged himself in treatment and I think that’s what made the difference. (97)
Finally, Crown counsel suggested that many of the actuarial indices used to calculate risk scores were false because Mr. Clark scored zero points for his absence of a prior criminal record. Thus, had the Accused been caught, prosecuted, and convicted in 1971, 1980, and 1988, his risk score would have been greatly increased. The inference is that Mr. Clark has “managed to be clever enough not to get caught that produces the lowest assessment” (134).6 Indeed, the trial court judge Charles Anderson asked whether any of these tests contained a “built-in internal validity score,” to which Dr. Bradford testified that all of the assessments – from blood testing, penile tumescence, oral interviews, to pencil-and-paper tests – were consistent with a person who was not “holding back, you know, misleading or underestimating” (145-146). Nevertheless, because Mr. Clark had previously lied to people, including Children’s Services and the Big Brother organization, the Crown was dubious. The next defense witness was psychiatrist Julian Gojer, M.D., who teaches at the University of Toronto and maintains a clinical practice at the Clarke Institute of Psychiatry, also in Toronto. After reviewing numerous reports, including the testimony of the Crown’s psychiatrist, Dr. Gojer opined that “Mr. Clark’s
likelihood of re-offending in the future has been reduced substantially by several events that have transpired” (Transcript, 6 May 1998: 8). Specifically, Dr. Gojer referred to the arrest, Mr. Clark’s pursuit of treatment while on bail for two years, his remorse, the absence of any major personality or psychopathic disorder, a gradual decline in the number of offenses historically, a decrease in his sex drive assisted by medication, and some insight into various cognitive distortions which often accompany pedophilia. It was his view that treatment combined with pharmacological agents could reduce Clark’s recidivism risk to less than 5 per cent (12-13). Using the psychiatrist’s own notes, Crown counsel established that Mr. Clark had been having sexual contact with younger and same-age males since his teenage years. The import of this cross-examination was to establish that Mr. Clark has sexually offended against many more victims than those officially charged, in the range of about 50 persons up to 1988 (16). In response, Dr. Gojer testified that this type of history is the norm (20). The Crown continued to pound away with the argument that Mr. Clark had simply “lied” on the various treatment scales showing improvement in his cognitive distortions related to child molestation and that he will “always be a risk” (25 and 28). Dr. Stephen Hart, Ph.D., a clinical psychologist and teaching professor from the University of British Columbia, next testified for the defense. His testimony was largely confined to actuarial risk predictions of Mr. Clark’s future conduct. In particular, Dr. Hart re-scored the VRAG instrument used by the Crown’s psychiatrist, and also scored another scale called the RRASOR (Hanson, 1997). On the VRAG, Dr. Hart testified that staff at Penetanguishene have mis-scored the instrument, and that Mr. Clark’s general risk was much lower, in the neighborhood of 17 per cent over seven years of follow-up, and 31 per cent over ten years (40). He further noted that this was for “any violence.” When adjustments were made for sexual recidivism, Dr. Hart corrected the predictors to be: a 10 per cent rate over 7 years and 19 per cent over 10 years. On the RRASOR, Dr. Hart recorded a score that left Mr. Clark with a general predictor of sexual reprocessing of 14 per cent over five years and 21 per cent over ten years (41). He noted that both instruments tended to corroborate one another, and that
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
the VRAG sample was based on a treatment population in the 1970s for whom much of the intervention is now considered antiquated. Cross-examination focused on a number of statistical issues. For instance, the Crown raised the question that Mr. Clark might be less likely to recidivate because he was “smart enough never to have been caught” (46). Dr. Hart responded: That is an interesting assumption, however, based on the research, we know that people who never got caught before are less likely to re-offend in the future. It doesn’t matter why they didn’t [get] caught. They are just less likely to re-offend in the future. (46)
Getting back to prediction, Dr. Hart reiterated his point that offenders with no prior legal history were simply lower risks in the community than “people who keep committing illegal acts even after they have been caught and sanctioned” (51). For him, the question of whether pedophilia was a compulsive disorder was irrelevant; they were still able to exercise some control over their behavior, and so, it was an incorrect assumption to simply assume continued risk on the part of all pedophiles. First offenders are capable of responding to punishment and treatment sanctions. This criminologist was the last expert witness before Eric Clark would take the stand in his own defense.7 A stipulation was entered into that deleted the “Sentencing Recommendation” section of my report, on the basis that this was the province of the judge, not the expert. Much of my testimony was spent discussing Mr. Clark’s social history, especially two events that happened when he was a young child. His mother underwent a major brain operation and as a result, suffered some paralysis and a long convalescence. Around the fourth grade, Eric Clark was sent to a private boarding school in the east end of Montreal, where he was repeatedly sexually molested by older boys. Both types of trauma are typical of sex offenders. I further documented Mr. Clark’s long work history which was positive in terms of assessing future risk. Defense counsel then focused on my assessment of risk for Mr. Clark. I referred to a series of actuarial scales developed by the
former U.S. Parole Commission, the Correctional Service of Canada, the Province of Ontario, and the U.S. Bureau of Prisons. All of the scales were in agreement that Mr. Clark’s probability of future recidivism, general or violent, was low – ranging from 2 to 17 per cent depending on the follow-up period. Based on current profiles of Dangerous Offenders (Bonta, Zinger, Harris & Carriere, 1996), I then compared Mr. Clark with a typical DO profile compiled from the Solicitor General of Canada (See Table 2). Here, Mr. Clark was atypical in that he had no prior juvenile delinquency history or prior prison terms. I then looked at a chart examining the nature of the victimizations that resulted in previous Dangerous Offender findings (Table 3). Here again, Mr. Clark did not exhibit any of the typical acts of brutality, excessive violence, victim injury, use of weapons, or excessive intoxication of the victim. “Mr. Clark…really doesn’t look that similar to a lot of the commitment offenses that we currently see in the DOs except for it being a sexual offense” (78). I then testified that because Mr. Clark had been on bail from 1994 to 1996, we actually had a clinical test of his dangerousness in the community. That he was not re-arrested and voluntarily participated in sexual behaviors treatment was, in my view, relevant to his current and future danger (i.e., risk). I concluded as follows (8081): The actual research suggests Mr. Clark’s further risk of dangerousness, violent recidivism is quite low, not high. All of this evidence suggests the accused would likely respond positively to standard correctional management, short-term treatment within a prison followed by relapse prevention treatment as a condition of parole. In addition, there is no indication that such an outcome cannot be accomplished within standard sentencing ranges for this offense category in the Accused.
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
Table 2 Criminal Histories of Dangerous Offenders
Age at first arrest % Juvenile record % Prior incarceration % Probation/parole failure % Prior assault % Prior violent sex
Ontario & B.C.
16.3 yrs 75.0% 88.5%
N/A 0% 0%
Table 3 Index Offense Characteristics (DOs)
% Sexual offense Female victim Average # of victims Mean age of victims % Any brutality % Excessive violence % Any victim injury % Weapon used % Victim intoxicated % Under influence
Ontario & B.C.
92.2% 86.2% 3.2 15.1 yrs 15.1% 69.6% 19.6% 50.0% 12.3% 46.3%
100% 0% 20 12.1 0% 0% 0% 0% 5% 0%
One of the conclusions which I pointed out with respect to Table 1 was that Mr. Clark’s most active offense period (1971-1981) corresponded to the time he owned a KOA camp and had access to numerous victims. After he sold the camp, his official offense history diminished considerably. “[O]nce he was removed from that
particular opportunity structure in a natural experiment even prior to treatment, even prior to incarceration or traditional correctional management, a huge drop-off, a dramatic drop-off in the number of victims and victimizations [occurs] in this particular pattern for this offender” (102-103). The Crown took issue with much of my testimony, challenging whether Mr. Clark had actually been offense-free during his bail supervision period. The basic rationale was that since Mr. Clark has understated the number of victims, he was unreliable and therefore should not be assumed offense-free. The Crown also suggested that the comparison charts put forward in my report were erroneous because I did not calculate how many DOs in the system look like Eric Clark (89). However, this wasn’t the point of the exhibit. It was designed to show that Mr. Clark was quite dissimilar to the profile of most adjudicated Dangerous Offenders. Finally, the Crown simply argued that the best guarantee for 100 per cent security (i.e., no recidivism in the community) would be to simply lock Mr. Clark up indefinitely (107). Eric Clark then took the witness stand. The Accused confirmed most of his social history already documented above, including the illness of his mother and being molested at a private boarding school when he was about age 10. Clark testified that his last physical contact with a victim occurred in 1987, albeit two attempts were recorded in 1992. Right after his release on bail, he testified that he started attending the self-help group called Sexual Addicts Anonymous and a private counseling group until he was admitted as a formal patient to the Royal Ottawa Hospital’s outpatient forensic unit. He then completed their formal 16-week treatment program and subsequently attended the Hospital’s relapse prevention group. Even after his detention following a plea of guilty in 1996, Clark testified that he continued to do treatment exercises in his jail cell (Transcript, 14 May 1998: 17). During cross-examination, Mr. Clark saw pedophilia as a form of addiction, which he now had under control. He admitted that he became a Big Brother and foster parent to gain access to potential victims (21). Clark denied, however, that there was an ulterior purpose in owning a KOA camp – i.e., a covert place where he could meet potential victims. In fact, Clark had a well-
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
established history, since boyhood, as an outdoors person who enjoyed fishing and camping. The Crown then argued that the best combination was a life sentence where Mr. Clark could also get “the help you need to control your problem” (25).
The Verdict The Honorable Charles Anderson, a Provincial, lower court judge sitting in Brockville, Ontario, pronounced his sentence on July 10, 1998. Of interest, the Court prepared its own chart “dealing with not only the date of the offense, but also the approximate age of the complainant, the methods of seduction that were used, and the source of the individual victim. In other words, how he was related, to the various victims either through employment at the campground, or some other agency such as a school or the Children’s Aid Society; or by a personal relationship with a parent or guardian; and finally, the nature of the actual assaultive behavior” (Transcript, 10 July 1998: 3-4). Of further interest, the Court mistakenly assumed that Mr. Clark had pleaded guilty to 39 counts, when in reality, there were only 20 counts of conviction. The Court took judicial notice that Mr. Clark had admitted to a range of 61 to 112 victims in total (6). Judge Anderson further noted that the victimizations caused “pathological consequences,” based on the testimony of Dr. Hector (7). Citing Regina v. Currie (1997) 2 S.C.R. 260, Judge Anderson alluded to a two-pronged test: (1) the Crown must establish that the offender has been convicted of a serious personal offense; and (2) the trial judge must be satisfied beyond a reasonable doubt that there is a “likelihood” that the offender will cause injury, pain or other evil to other persons through his failure in the future to control sexual impulses (11-12). On the first criteria, this was not an issue at Mr. Clark’s Dangerous Offender hearing. It was conceded by both the Crown and the Defense. Quoting all of the mental health experts, Judge Anderson concluded that Mr. Clark was a homosexual pedophile, and then he cited Dr. Hector’s testimony, to wit:
Chapter Three These disorders are characterized by first of all a stubborn resistance over time, despite of all the efforts of treatment that might be made and perhaps I’ll talk about treatment issues later, but in spite of all treatment efforts that have been made, indeed, sufficiently so that our research department has recently abandoned its treatment protocol because the outcome research has suggested it’s not beneficial for the men who have been exposed to it. (18-19)
Judge Anderson then quoted Dr. Bradford to the effect that pedophiles often have hundreds of victims (Mr. Clark was a severe offender because of the number of victims), many not known to the criminal justice system, and that there is no cure (19-20). Dr. Hector was further quoted as questioning the efficacy of medication for the curtailment of sexual disorders. Reference was made to Dr. Bradford’s opinion that the condition had a number of compulsive features to it, similar to that of alcoholism. “[I]t’s not something they can easily control” (24). Dr. Bradford’s testimony concerning the possible negative features of the case was specifically highlighted by Judge Anderson. Here, the Court mentioned a pervasive abuse of trust, the young age of many of the victims (as young as 6 or 7), cognitive distortions, exposure to erotica, the touching, masturbation, and oral sex, and occasional group sex (25-26). Quoting Dr. Hector, the Court acknowledged that Mr. Clark was not a psychopath, nor did he suffer from an underlying personality disorder. Mr. Clark was not an alcoholic and had been able to establish some adult, heterosexual relationships. But the Court opined: I note, however, that it is clear from the evidence that the accused engaged in paedophilic sex not only at the same time that he was living either married or common-law with one or other of his spouses, but also that he abused in the one instance, his brotherin-law, who was then ten years old, and in the second relationship his spouse’s nephews, and also the children of a close family friend (29).
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
Dr. Bradford and Dr. Gojer were cited for the willingness of Mr. Clark to participate in treatment, and that based on his age, his offense trajectory would be declining substantially. Judge Anderson also cited Dr. Gojer’s proposition that homosexual pedophilia is a life-long condition, and that despite treatment, Mr. Clark would remain a pedophile (31). The Court then made a conclusion of fact that Mr. Clark is both a reasonably intelligent person and also “highly manipulative” (33). On the risk assessments, Judge Anderson noted that the various experts differ in their assessments of risk. Dr. Hart was quoted as saying that Mr. Clark’s risk for sexual recidivism was in the range of 10 to 20 per cent over a ten-year period (36). Dr. Bradford opined that with medication, risk could be reduced to about five per cent. Dr. Hector testified that Mr. Clark remained an “important” risk based on their psycho-sexual testing at Penetanguishene. Hence, the Court concluded that pedophilia is largely an incurable life-long condition which cannot be reduced by treatment and medication (45). Citing the large number of victims beyond the 20 in the Indictment, Judge Anderson further noted that Mr. Clark did not seek any treatment over his 20+ history of offending. The Court was particularly critical of Mr. Clark for not seeking treatment help after one of his foster children complained to Children’s Aid and the boy was subsequently removed in 1978. On the question of future risk, Judge Anderson stated that he accepted Dr. Hector’s testing as the most accurate, as it was the first wave of examinations. Mr. Clark was accused by the Court of deceit and manipulation such that he could “tailor his self reporting to obtain a result exaggerating his prospects for managing the risk he poses to adolescent boys in the community” (44). So, in summary, the Court found – without any analysis of the actuarial evidence put forward – that Mr. Clark’s risk “is too great now and that the time needed for successful treatment cannot now be defined and ought not be limited by a definite term” (46).
The Appeal Mr. Clark’s appeal was heard on June 20, 2001, by the Ontario Court of Appeal, a three-judge panel composed of the Court’s Chief Justice, Hon. R. Roy McMurtry, and Justices Louise Charron and Marvin Catzman. It was released orally that very day, even after extensive oral argument and written briefs by both Crown counsel and attorneys for Mr. Clark. Clearly, the Court of Appeal had made up its mind before even hearing oral argument. While the appellate court did acknowledge the error regarding duplicate counts of conviction (the plea actually pertained to 20 counts, not 39), it dismissed the prejudice to Mr. Clark as lacking in merit. It was simply “inadvertent error” with the Court concluding that the trial judge “proceeded on the basis of the allegations with respect to the twenty complainants.” As to the reasonableness of the trial judge’s interpretation of the evidence, the appellate justices concluded, “[W]e are not persuaded that the conclusion reached by the trial judge was not reasonably supported by the evidence. It was open to him on the totality of the evidence to be satisfied beyond a reasonable doubt that there was a likelihood of the appellant causing injury, pain, or other evil to other persons through failure in the future to control his sexual impulses.” The Court declined to give any more detailed reasons, or even wade through the evidence presented above. After this decision, Mr. Clark declined to file an Application for Leave for Appeal to the Supreme Court of Canada. He was both depressed and of the opinion that the courts were not going to change his Dangerous Offender designation.
Application for a Miscarriage of Justice Some years later, on March 16, 2005, to be exact, Eric Clark instructed his solicitors to file an application for Ministerial review of a potential miscarriage of justice. This application is made under Section 696.1 of the Canadian Criminal Code, and allows a convicted offender to apply for discretionary relief by the Attorney General of Canada. If the Attorney General finds that a
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
miscarriage of justice has occurred, he or she may refer the matter back to a superior court or to a Court of Appeal for a new hearing. In this application, Eric Clark (2005) has put before the Attorney General an argument that had his trial court considered the possibility of a Long-Term Offender (LTO) designation under new amendments to the Criminal Code, he would have been the ideal candidate for such a designation in lieu of a Dangerous Offender. At the time of the trial decision in 1998 as well as Mr. Clark’s Court of Appeal decision in 2001, neither tribunal had the benefit of the Supreme Court’s decision in Regina v. Johnson (2003) 2 S.C.R. 357 at 377-378. That decision clarified the relationship between the DO and LTO provisions of the Criminal Code, and instructed lower courts that when considering a Dangerous Offender Application, to wit: In those instances where both the dangerous and long-term offender provisions are satisfied, it may be that the sentencing sanctions available under the long-term offender provisions are capable of reducing the threat to the life, safety, or physical or mental well-being of other persons to an acceptable level…. If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention.
In the application proper, Clark argues that he should have the benefit of Regina v. Johnson (2003) for two major reasons: (1) substantive new evidence suggesting a miscarriage of justice; and (2) the dictates of the Canadian Charter of Rights and Freedoms (1982). Section 11(i) of the Charter mandates that a convicted Accused is entitled to the “benefit of the lesser punishment” if changes have been made between the time of commission of the offenses and the time of sentencing. The actual Code changes took effect in 1998 right before Mr. Clark’s DO trial. The new evidence took the following form. Witness Dr. John Bradford supplied new evidence to the effect that had he been asked about the new LTO provisions, he would have “supported the long-term offender designation.” The Crown’s chief witness, Dr.
Ian Hector, has also recanted. “…..Given the information he had available at the time of Mr. Clark’s Dangerous Offender hearing, he [Dr. Hector] would have concluded that Mr. Clark should be declared a long-term offender” (Application at p. 43). A further new psychiatric assessment performed while Mr. Clark has been in federal imprisonment also supported the LTO designation. Finally, Mr. Clark’s prison records had been introduced indicating that he has completed all correctional treatment programming with excellent results, and is now in a minimum security prison camp. Mr. Clark was taking medication to reduce his sex drive, and was considered by CSC staff to be a good candidate for a circle of support should he be released on some form of conditional release by the National Parole Board. After waiting well over a year for a decision, Mr. Clark instructed his attorneys to withdraw the application. This was because following the Federal election in January of 2006, Mr. Vic Toews, a noted social conservative with strong law and order views, had become the new Attorney General of Canada (Tibbetts, 2006a; Galloway, 2006; Tibbetts, 2006b). After twenty-one years of penitentiary confinement, Eric Clark is presently an inmate in a minimum security halfway house located on the West Coast of Canada. He has suffered a heart attack, a major cancer operation, and is likely to spend his remaining days either in a halfway house or retirement facility.
Analysis What emerges in this case study of becoming a Dangerous Offender in Canada is that the courts engaged in a process whereby much of the evidence is “filtered” or censored. In this instance, the impeachment of the Crown psychiatrist’s risk prediction score on the VRASOR was simply ignored as well as contrary evidence that future risk of child molestation did vary by age and treatment effects. Instead, the Court accepted the testimony of the sole mental health expert for the Crown that homosexual pedophilia was an intractable condition for which there was no cure and great risk of future re-offense. My testimony, and that of Dr. Stephen Hart on the current risk level of Mr. Clark was simply ignored, with no
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
analysis whatsoever of the evidence. There was no response to the ecological correlates to Mr. Clark’s offending, or to his age and the decreasing risk he presented to the community. Thus, to quote Gottfredson and Hirschi (1986: 217) on this phenomenon: “It turns out that the particular career criminals identified in criminological research are no longer active and their replacements cannot be identified until they too are on the verge of ‘retirement’.” What is also missed in the formal trial transcripts of this event is the political context of Mr. Clark’s trial. This adjudication took place after several years of heightened media interest on the threat posed by sex offenders (Gadd, 1997; Atkinson, 1992; Lewis, 1992; Makin, 1993 and 1994; Cobb, 1994; Sweetman, 1993; Payne, 1991; Abraham & Hum, 1993). Almost coterminous with this publicity was the Coroner’s Inquest into the death of 11-year-old Christopher Stephenson by the late Joseph Roger Fredericks, who became known as one of Canada’s most notorious sex offenders. After being released from prison, Fredericks had kidnapped the young boy, raped him numerous times, and then murdered him. After a prolonged campaign by Christopher’s parents, including a civil law suit against the government, a Coroner’s Inquest was convened from September 1992 until January 1993 (Ministry of the Solicitor General, 1993). The report was scathing in its indictment of mental health and criminal justice officials and the failure of the system in general to protect the community from a predator like Joseph Fredericks. Eric Clark’s arrest in 1994 also occurred at the end of what was euphemistically known as “Project Jericho.” Beginning in 1989, over 60 individuals in the small eastern Ontario town of Prescott were charged with molesting their and other parents’ children. It became Canada’s largest child sex abuse investigation, and featured offenders who were largely white males from poor and “deprived families who’ve lived for generations on the ‘other side of the tracks’,” to quote Stephen Heder, chief of the local Family and Children’s Services agency (Miller, 1991a and 1991b). Many were neglected and abused themselves; others were developmentally delayed. Four poor white families were involved in an incest pattern which went back generations (Miller, 1995). A special Crown prosecutor was assigned to the cases, and secured convictions in
about 90 per cent of the cases. Indeed, the Province of Ontario spent at least $1.4 million from 1989 to 1992 for social work services and this figure did not include judicial or police costs (Miller, 1992). Albeit Eric Clark was not connected to the Prescott scandal, nor was he a member of any of the families involved, police did uncover many of his victims during their investigation. He became the most high profile “Project Jericho” suspect to be prosecuted as a “Dangerous Offender” towards the end of this historic Crown investigation. It would not be unfair to say that the Clark case became the crowning glory of the “Project Jericho” cases. Thus, the Clark case is an illustration of what scholars call the “social construction” of deviance (Crotty, 1998; Unger, 1987). One of the first North American scholars to explore this issue was the late Frank Tannenbaum. In his classic book, Crime and the Community, Tannenbaum (1938: 19-20) argued that a key factor to the creation of delinquency was the “dramatization of evil”: The process of making the criminal, therefore, is a process of tagging, defining, identifying, segregating, describing, emphasizing, making conscious and self-conscious; it becomes a way of stimulating, suggesting, emphasizing, and evoking the very traits that are complained of….
Edwin Lemert (1951: 22-23) provided some of the foundation for the labeling perspective when he wrote: “The deviant person is one whose role, status, function, and self-definition are importantly shaped by how much deviation he engages in, by the degree of its social visibility, by the particular exposure he has to the societal reaction, and by the nature and strength of the societal reaction.” Many other authors, including Becker (1963), Schur (1971), Erikson (1962), Gusfield (1963), Garfinkel (1956), Lofland (1969), and Goffman (1961), have all addressed this issue. More recent extensions of this line of inquiry come from Foucault (1979), Hunt (1999), and Pratt (1997) who argue that these are really questions of governmentality and power, invoking new developments in discipline (the prison), risk management (the truly dangerous), and moral regulation.
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
Critical theory suggests that the purpose of censure, such as that of a “Dangerous Offender” designation must be situated in political economy (Habermas, 1974; Horkheimer, 1972 and 1993; Bailey, 1994). Thus, early writings from Quinney (1970), Turk (1969), Chambliss and Seidman (1982) to Wood and Wood (1997) suggest that the power of the State to selectively define behavior as dangerous is embedded in notions of power, ideology, culture, and class conflict. As Markham (1988) has noted in her thesis on Dangerous Offender legislation, DOs are largely sex offenders or persistently violent people. Most of them come from highly disorganized, working-class backgrounds. This definition excludes corporate and environmental crimes (which kill and seriously harm more people) as well as a host of other inequalities – policies that can be linked to structural poverty, poor health, suicide, and the like. Certainly, white collar crimes, crimes of the state, and police deviance are simply not on the “dangerous” radar (Barak, 1991; Friedrichs, 1998; Shichor, Gaines & Ball, 2002; Glasbeek, 2002; Snider, 1977, 1993 and 2000; Snider & Pearce, 1995). In this attempt to critically examine the evidence in one DO trial, the conclusion which emerges is that the construction of “dangerousness” is highly contested, for which the evidence is often arbitrary, selective, censored, inconsistent, and laden with questions of ideology, power, and class conflict (Quinney, 2000). The manifest function of labeling an offender a “dangerous” criminal is to ostensibly protect the public from someone who has been violent in the past and is likely to re-offend in the noticeable future. One can speculate that the latent function is equally important: it diverts our attention to individual convicts who might not even be currently at high risk of recidivism so that other issues governing social justice and inequality can be easily ignored. The psychoanalyst and critical theorist Erich Fromm (1930: 126) made this observation: Therefore, we see that the significance of criminal justice lies not only in the fact that it is intended to protect society from the criminal and to reform or correct him; rather, one of its essential functions is to influence the masses psychologically in the sense desired by the rulers….It provides the masses with a form of
Chapter Three gratification of their sadistic impulses – it is very important to the rulers that these impulses be diverted from them and onto another object – and at the same time provides the masses with a certain equivalent for their instinctual renunciation.
Postscript After twenty-one (21) years of penitentiary confinement, Eric Clark was granted a day parole to a halfway house in the Province of British Columbia – a province where he has no social supports other than the penitentiary service and its contractors (i.e., halfway houses, psychologists). In July of 2019, he was eighty (80) years old with a heart condition and suffering some loss of memory. He was no longer required to take anti-androgen medication, and the prison psychologists were uniformly in agreement that he presented a low risk of sexual recidivism. He had a minor institutional record – four disciplinaries over two decades of confinement – mainly with respect to unauthorized items in his cell. Most important in 2019, two halfway houses under contract to the penitentiary service had finally decided to accept Mr. Clark and make a bed available to him. Eric Clark was even granted a day parole despite not having completed a sex offender maintenance program. He was, however, seeing a psychologist in the community. His day parole commitment has since been renewed twice, largely because Mr. Clark has no viable outside community supports nor a full parole plan. Penitentiary staff believe in all likelihood he will have to be paroled (full) to a residential care facility given his age and medical ailments. At present, Mr. Clark spends most of his time in his room at the halfway house, occasionally taking a walk in the neighborhood. He continues to see a psychologist and presents no management problem to halfway house staff.8 So, twenty-one years later, the Parole Board of Canada finally decided that our evidence put forth during the Dangerous Offender trial was correct after all. They have waited until the inmate was largely debilitated from age and memory loss to finally grant his release from penitentiary. What is interesting is that Mr. Clark is still largely confined to a quasi-penal facility and still
The Mechanics of Dangerousness: A Case Study of Regina v. Clark
institutionalized because of an absence of any community support – directly due to his lengthy confinement.
CHAPTER FOUR FIGHTING THE DANGEROUS OFFENDER LABEL: THE CASE OF KARL ROWLEE
Convicts with a long criminal career, but who are not sex offenders, are not the typical fare of Dangerous Offender applications in Canada. Indeed, the data indicate that over 80 per cent of all Dangerous Offenders have been convicted of a sex offense (Yeager, 2006). By statute, DOs are subject to an indeterminate sentence – one that has de facto characteristics of a life sentence without parole. This is because less than ten percent of DOs are on parole in Canada, compared with about 35 per cent of convicts convicted of either first or second degree murder. One recidivist who was the rare subject of two DO trials is convict Karl Rodney Rowlee. What makes the Rowlee case study unique is that he was found to be a Dangerous Offender in 1998, and then after a successful appeal and his retrial in 2005, the label was removed by order of a Canadian superior court. The process of being constructed as dangerous, and then having that label negated is the focus of this chapter. This analysis relies upon the case study method, and in this particular example, insider knowledge of the trial and trial transcripts (Cicourel, 1964; Stake, 2000; Yin, 1964). This criminologist had “insider knowledge” because he was called to trial as an expert witness for the defense, and testified on behalf of Mr. Rowlee during his second DO trial. As such, classic notions of objectivity do not really apply here. Instead, I invoke the exhortations of Howard Becker (1967), C. Wright Mills (1943), and Richard Quinney (2002) that sociology is about making the subjectivities manifest and part of a reflexive enterprise. Later on,
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 87
we will frame this analysis within the social reality of crime (Quinney, 1970, 1974 and 2001).
The Predicate Offense We begin with a jury trial in 1996, in which Karl Rowlee was accused of armed robbery with a knife of one Natasha Sabolotny, including uttering death threats, wearing a mask, and unlawful confinement in October of 1993. At the time, Rowlee had just been released from an 18-year prison sentence for attempted murder and robbery. At the time of the robbery, he was on mandatory parole supervision. He had been working as a reupholsterer and general custodian at the St. Vincent de Paul store in Ottawa, Ontario. The victim was the store supervisor who, at closing, would deposit the sales proceeds at the other store location. As the victim proceeded to enter the other store, she was accosted by a masked man with a knife and gloves who “grabbed me and put a knife to my throat and grabbed me by the back of my hair” (Transcript, Regina v. Rowlee, March 18, 1996, Ontario Court of Justice, General Division, Ottawa: 11). Miss Sabolotny opened the door, and the two proceeded to an upstairs office where the key to the safe was located. From the beginning, the victim offered her purse as proceeds if she would not be hurt, as a knife was being held to her throat. She also offered to open the safe. While proceeding up the stairs, the victim fell with her assailant on top of her. After getting the keys, her attacker pushed her to the floor where she lay on her stomach. He then sat on her thighs and “started lifting up the suit jacket that I was wearing” (Ibid., Transcript: 23). Miss Sabolotny started to scream, and her assailant put a plastic garbage bag over her head and “clenched the bag very tightly.” Once she stopped screaming, the robber released the bag and tied her wrists with a phone cord. In the meantime, the victim was waiting for her boyfriend to pick her up, and heard a door open and started screaming for him. Her attacker put the bag back over her head, put the knife under her jaw, and threatened to kill Miss Sabolotny “if I didn’t shut up” (Ibid.: 26).
Her assailant then tied her legs with phone cords, turned out the light, and was quite angry that her boyfriend might show up at the crime scene. At that point, the robber left. Shortly thereafter, the victim untied herself, locked the office door, and called Emergency 911 services to report the robbery. She also realized that her purse and her keys were gone. During the robbery, the victim’s boyfriend actually entered the building, and saw the perpetrator from the bottom of the stairs (Ibid., Transcript, March 19, 1996: 113). He then exited the building, asked a passerby to call Emergency 911, and subsequently noticed a masked man “running out on the bottom floor, out towards the back door where I had just been” and carrying a woman’s purse (Ibid.: 117 and 121). The boyfriend thereupon entered his own vehicle and started following the assailant down the street, and across several houses. At this point, the boyfriend used his vehicle to hit the perpetrator, who “then fell down, from there, onto the ground” (Ibid.: 124). At the time of arrest, the identity of the injured man was established as that of Karl Rodney Rowlee. Importantly, house and store keys seized from Mr. Rowlee were later identified as belonging to the victim (Ibid.: 286). In or near the area of the arrest, police constables recovered a pair of beige nylons outside a garage, and one white glove in a backyard. The glove had blood on it which, via DNA testing, matched the blood of the victim Natasha Sabolotny (Transcript, March 21, 1996: 395). With respect to the above testimony, the Defense position was that there was contamination of the DNA sample resulting from the arresting officer who not only physically arrested Mr. Rowlee, but then found the pantyhose later. The Crown attempted to put into trial “similar fact evidence,” consisting of Mr. Rowlee’s 1980 conviction for break and enter, use of a weapon (rifle) and disguise, and attempted murder. However, the Court ruled that this evidence was inadmissible because of the prejudicial effect it would have on the jury and the rights of the Accused (Transcript, March 22, 1996: 393). Thereupon, the Crown rested its case, and the Defense called no witnesses. Mr. Rowlee elected not to testify.
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 89
Some fifteen minutes later, the jury returned with a guilty verdict on all five counts. As arrangements were being made to schedule sentencing, Mr. Rowlee was informed that the Crown intended to seek a Dangerous Offender designation pursuant to Section 752 of the Canadian Criminal Code.
The First Dangerous Offender Application The criteria for a DO application under Section 752 of the Canadian Criminal Code refer to any “serious personal injury” offense and specifically list a host of sexual crimes – such as sexual interference, touching, exploitation, making child pornography, and the like. A trial magistrate must find that based on repetitive or persistent behavior, the Accused would not be likely to restrain his behavior in the future or “be inhibited by normal standards of behavioural restraint.” With respect to sexual offenses, the criteria include “a failure to control his or her sexual impulses and a likelihood of causing injury, pain, or other evil to other persons through failure in the future to control his or her sexual impulses.” Mr. Rowlee was not a sex offender, and therefore any past convictions for violent behavior became salient. The actual trial did not commence until late 1997. The Crown prosecutor proceeded to make specific reference to Mr. Rowlee’s 1981 conviction for attempted murder, break and enter, use of a firearm and being disguised. The actual victim of those crimes was called as a witness. The Crown then led the testimony of Ms. Judy Hutchinson, who was the victim of a robbery and attempted murder on July 17, 1980. Ms. Hutchinson was living in an apartment complex located in the city of Ottawa and awoke, around three or four in the morning, to find a masked intruder on top of her as she lay in her bed. She started to scream and push the assailant’s arm away from her neck. The masked intruder then allegedly told Ms. Hutchinson, “If you don’t shut up, I’ll kill you” (Transcript, R. v. Karl Rowlee, 22 March 1996: 353). She continued screaming as the intruder “starts prying my mouth” when she reaches over and pulls off the nylon stocking over the intruder’s face. At that moment, she
recognized her assailant as Karl Rowlee, a part-time employee of the apartment complex who had been hired to help paint apartments vacated by other tenants. She knew him because Rowlee had helped her move a piece of drift wood into her apartment when it was left by other former tenants. Next, Ms. Hutchinson remembered been assaulted by what she first thought was a broom handle. She lost consciousness temporarily, and when she regained it, she found Mr. Rowlee standing over her with a rifle threatening again to kill her if she didn’t “shut up.” She resumed screaming again, and Mr. Rowlee proceeded to use the rifle butt to “smash me on the face” (Ibid.). She remembered being struck three times, and then apparently lost consciousness again only to awake “sitting in the hallway” across from her girlfriend’s apartment. She was admitted to hospital suffering from a severe cut to her head, permanent damage to her right eye and an eyebrow, bruises and stitches to her face, and lost equilibrium. Also, her purse had been stolen. The Crown further argued that by Mr. Rowlee going into the bedroom of the victim and straddling her, “there is a sexual connotation” to the event (Ibid.: 365). As a result of the identification above, investigators proceeded to the apartment of Mr. Rowlee. After Mr. Rowlee was arrested, detectives searched an orange van in the back yard, and located a bag with jewelry and fur pieces in it, a couple of .22 caliber rifles, including one missing a stock but covered in blood and human hair. In the apartment room, detectives recovered some identification belonging to Ms. Hutchinson, including her purse (Ibid.: 343). For this attempted murder and robbery, as well as the previous robbery of the convenience store, the DO application noted that Mr. Rowlee had received an 18-year federal penitentiary term. The Crown then called a qualified prison psychologist William Palmer, who at that time had been an employee of the Correctional Service of Canada (CSC) for some 23 years. He proceeded to summarize several internal prison documents, most of which described inmate Rowlee in less than flattering terms. For example, Mr. Rowlee “lacks insight into his own functioning” (Ibid.: 31-32), and he was described by prison workers as “having
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 91
the potential for unpredictable behavior.” In Dr. Palmer’s opinion, inmate Rowlee presented himself as someone who accepts no personal responsibility for the events that brought him to prison. Various other correctional psychologists and psychiatrists testified to similar findings. For example, Dr. Steven Hucker, M.D., is another CSC contract psychiatrist who often works for the Crown doing Dangerous Offender assessments as the designated Crown expert. He produced a pre-parole report dated May 1991. Dr. Hucker, like many of the other mental health workers, found no evidence of mental impairment (i.e., psychosis or even schizophrenia), and that inmate Rowlee’s behavior in prison had improved considerably. The inmate minimized his criminality and showed little selfawareness. Hucker saw this inmate as a “chronic criminal” who has probably changed little and is prone to violence when drunk (Ibid.: 60). The cross-examination of the correctional psychologist Palmer revealed that only one of the mental health reports mentioned the possibility that inmate Rowlee was sexually assaulted in training school beginning around the age of nine (9) years old (Ibid.: 64 and 67), a factor which Dr. Palmer did not mention in his direct examination by the Crown attorney. Dr. Palmer then conceded that early child sexual abuse in a government institution might foment the kind of anger seen in inmate Rowlee, and that there were really no programs within the prison setting suitable for this kind of treatment. Palmer further admitted that inmate Rowlee’s elevated scores on the MMPI’s schizophrenia scale were his own interpretation. He had not actually seen the score items to verify that conclusion. Palmer also admitted that he really did not know the inmate Karl Rowlee well enough to interpret his general demeanor in prison – i.e., to ignore some of his rhetoric or take it seriously (Ibid.: 87). Another interesting fact was that inmate Rowlee spent two years in segregation (protective custody) at Kingston Penitentiary, a maximum security institution (1981-1983). Palmer then remarked that many inmates with that kind of segregation history (limited movement, 23 hour lockdown in a cell)
lose a sense of communication skills, and become very resentful (Ibid.: 92). Defense counsel for Mr. Rowlee also got Dr. Palmer to admit that Mr. Rowlee was found by prison staff not to be a sufficient risk for a detention referral and hearing before the National Parole Board (Transcript, Regina v. Karl Rowlee DO Application, December 9, 1997: 119).1 Further, there was no referral for either sexual assessment or treatment in one of the CSC’s sexual treatment programs. This was the case even though several prison commentators remarked on the “sexual overtones” to Mr. Rowlee’s offense (Ibid.: 123). Dr. Dominique Bourget, M.D., a forensic psychiatrist practicing in both Ottawa and Quebec, was designated the Crown’s forensic evaluator as part of the Dangerous Offender application, and filed her 14-page report in August of 1997. She found Mr. Rowlee not to be suffering from any major psychiatric (organic) disorder, albeit he did have a personality disorder (anti-social). No evidence of clinical depression was observed, but Dr. Bourget did conclude that Mr. Rowlee’s personality might be resistant to change (Ibid.: 198). His IQ scores were normal, with his non-verbal IQ in the high average range – somewhat at odds with correctional documents. His neuropsychological profile was also normal. His score on the Hare (1980) Psychopathy Check ListRevised was 25, placing him in the average range for male inmates (Ibid.: 199). In other words, because his score was not 30 or above, Karl Rowlee was not considered to be a psychopath by Dr. Bourget. Sexual behavior testing did not reveal “any evidence of serious sexual deviation” (Ibid.: 200). The Crown’s next witness was the victim in the 1993 robbery, which has been detailed above. Miss Sabolotny described the robbery as having affected her relationships with co-workers and even her intimacy with her boyfriend, Michael Butler. “[I]t’s difficult for me to predict what could have happened if Mike would not have shown up” (Ibid.: 211). She testified to staying away from new workers at the St. Vincent de Paul store (“I don’t want to get to know anyone”) and refusing to work with any staff “that I did not know extremely well” (Ibid.: 212). Miss Sabolotny still suffers from nightmares related to the robbery and her injuries, having a
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 93
plastic bag placed over her head, breathing for air, having a knife at her throat, and “not knowing what was going to be happening next” (Ibid.: 213). She related not wanting to be left alone, and disfavoring public transportation as well. She even related having to drop out of art classes at the University of Ottawa because of the robbery attack in 1993.
Mr. Rowlee’s Defense The Defense then proceeded to call the Accused himself, Karl Rodney Rowlee, a tactic that has both advantages and disadvantages. Rowlee described his early years growing up in a family of twelve (12) children, of which he was the second oldest. His father, whom he describes as a chronic alcoholic, worked for a moving company (Allied Van Lines). Rowlee’s father also took pain medication for injuries he had suffered as a young adult in a car accident. “He had a plate put in his head up here, and he lost an eye, and I think because of the pain or the suffering, whatever he goes through, and the pills that he was taking, yeah, he drank a lot” (Transcript, Regina v. Karl Rowlee, Dangerous Offender Application, 10 December 1997: 225). Rowlee further testified to being “beaten a lot” by his father. He would “throw me around, beat me with his fists, boot” (Ibid.). This type of corporal discipline lasted from age seven until Mr. Rowlee’s mid-teens. At the age of fourteen, the Accused was in a bicycle accident in which he was hit by a drunk driver. According to his testimony, the driver “broke my collar bone here, I have plates and stuff like that in here, my collar bone, and cut me wide open here on the top of my head here” (Ibid.: 226). As a result of playing “hooky” at school and breaking into schools, Rowlee told the Court that he was sent to the Cobourg Training School around 1955 when he was about nine years old. This was a well-known juvenile reformatory school – implying that not only did the Accused have a delinquency record, but evidence of early onset delinquency and institutionalization. Under direct examination by his own attorney, Rowlee admitted that he had been involved in numerous break-ins as a young child. Rowlee would also “steal things,” to “steal money and
everything else for him [his father] so he could go drinking” (Ibid.: 229). He used to break into the schools to get bus tickets in order to ride the local street cars. He and his friends would then go “to the Orelto Theatre” a lot (Ibid.: 227). Mr. Rowlee stated that he had completed about a “grade eight education” while at Cobourg. Next came Rowlee’s admission that he had been sexually abused by Keith Burns, a staff member from the training school. To quote the transcript (Ibid.: 231): He used to kiss me and stuff like that there like, he’d be sitting on the chair, and I’d be standing here, he’d be having his pants down, he’d be rubbing me and rubbing himself, and did all kinds of things to me there that, you know, and I didn’t know if it was right or wrong. I just didn’t know.
This sexual abuse included fondling as well as oral sex. After Rowlee reported these events to the superintendent, the sexual abuse stopped. However, Rowlee reported that mental and physical beatings continued from both staff and other boys. He specifically remembers being “punched out” by a staff member named Larry Manchester. “I was completely out. I don’t remember nothing there for a day, because I woke up in the hospital” (Ibid.: 231-232). In 1963, the Accused was sent to Guelph reformatory (an adult institution in the province of Ontario) for a house burglary. He remembers being placed in “the hole,” and being badly beaten by another inmate (he was sixteen at the time), and mentions that he tried to commit suicide “two or three times there.” Allegedly, the guards would “come in there and beat me, and there was a bit of sex things with a couple of guards there” (Ibid.: 233). These sexual encounters involved oral sex, but Rowlee was unable to provide more specifics or the names of the guards, nor did he ever report the incidents. Karl Rowlee stated that he began drinking alcohol (chiefly beer) when he was seventeen. Most of his friends were fellow delinquents or persons he had met in training school or reformatory. “I wasn’t accepted at home, so I mean, I went outside my family to be accepted” (Ibid.: 238). He would spend quite a bit of time with his paternal grandmother due to the corporal punishment at home.
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 95
“I was a stranger to my brothers and sisters. And my mom…..I never felt much there, because she didn’t do nothing for me” (Ibid.: 239). Later in his testimony, Rowlee understood that his own mother had been raped “when she was young” and beaten as well by her husband (Ibid.: 247). In relating his criminal record, Rowlee admitted to burglary, stealing automobiles, and an assault on a police officer who was attempting to arrest him for failure to appear in court and auto theft. He allegedly tried to commit suicide while at the Brockville Jail and was sent to the Brockville Psychiatric Hospital, from which he escaped (Ibid.: 241). For these crimes, Rowlee was sentenced to four (4) and a half years in federal penitentiary, and sent directly to Kingston Penitentiary at the age of eighteen (1965). This was his first federal prison term. He remembers seeing a lot of violence at Kingston Penitentiary, “more than I would expect with my father, you know” (Ibid.: 243). He also participated in several inmate disturbances (“sit-ins”). Released in 1969, Rowlee was back before the courts in 1971 for the possession of stolen property. He pleaded guilty and received his second federal penitentiary term; this time it was two (2) years. This was shortly after the infamous Kingston Pen riot of 1971. From KP, Rowlee served the rest of his sentence at Joyceville Institution and a converted military prison camp in Petawawa, Ontario. Rowlee was granted a parole, after ten months of confinement, which he successfully completed, and returned to his wife and son, Karl Jr. (then age 2). It is fair to say that much of Mr. Rowlee’s remaining criminal history is more of the same – largely property offenses and various jail or penitentiary terms. Of significance to the Crown were the two major violent offenses that have been briefly summarized above. In his own testimony on the 1981 attempted murder conviction, Rowlee blames the assault on his alleged co-accused, one Bobby Thibault. As he was running from the apartment, Rowlee testified that he fell, and was being held up by the actual victim who “had me by the feet.” Rowlee blamed Thibault for assaulting the woman with a rifle.
Chapter Four As I said, we broke into the wrong place, and what happened to this woman was a terrible crime. It should not have happened. And if I had of been sober I would never had been there whatsoever, you know. And like to this day, you know, I think back to what happened there. She was an innocent person, in her own home, and I had intruded her home. (Ibid.: 271)
On the witness stand, counsel for Mr. Rowlee asked if the Accused wanted to say anything else to his Honour. Rowlee stated that he had never before talked about his upbringing or the abuse he suffered in institutions. “[I]t’s kind of very emotional hurting situation for me, to talk about and get it out” (Ibid.: 294). Rowlee also apologized to the victim of the October 1993 robbery, Natasha Sabolotny, but still blamed the robbery on Bobby Thibault.
Judgment Day Mr. Justice Morin proceeded to review both instant convictions for armed robbery, possession of a knife, unlawful confinement, use of a mask, and uttering threats to kill the victim. He then reviewed Mr. Rowlee’s lengthy criminal history, officially dating back to 1963, including the 1981 conviction for attempted murder and break and enter involving the victim Judy Hutchinson. The Court noted that many of these offenses were committed by Karl Rowlee while he was on parole supervision. The Court reviewed the armed robbery, attempted murder, and break and enter involving Miss Hutchinson which occurred in July of 1980. The Court noted that Mr. Rowlee was eventually convicted by a jury of this crime, detailing much of the scenario which has already been documented. In his testimony for the Dangerous Offender application, Mr. Rowlee “again minimized his involvement in the vicious assault on Ms. Hutchinson” (Ibid.: 18). While the Accused admitted being in the apartment, he denied inflicting most of the beating upon the victim. To quote Mr. Justice Morin: Mr. Rowlee’s version of the events is simply not credible nor was his attempt at this hearing to tell how remorseful he was with respect to the terrible beating that he laid on Ms. Hutchinson. (Ibid.: 22)
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 97
Next, His Honor reviewed the numerous prison reports that had been filed as evidence in the DO application. Again, these reports largely mirror the testimony of Dr. Palmer. They described Mr. Rowlee as failing to accept responsibility for his crimes, and being a poor candidate for any form of conditional release. He then quoted a correctional document to the effect that Mr. Rowlee’s probability of further indictable offenses was at least 67 per cent (Ibid.: 25). The judge observed from this record that “Rowlee can function very well in the prison setting where stringent rules are in place but his release into the community” results in havoc and risk to the community (Ibid.: 26, 37 and 40). After summarizing these documents as well as Mr. Rowlee’s history on mandatory release (May 1992 until his arrest in October 1993), the Court then addressed the instant armed robbery of Miss Natasha Sabolotny. Justice Morin described the attack as vicious and the victim as a “defenseless young lady who was then twenty-one years of age and who had befriended Mr. Rowlee within the context of her employment with the St. Vincent de Paul second hand stores” (Ibid.: 43). The Court was skeptical of Rowlee’s claim that Robert Thibault had actually planned and committed the robbery, with Rowlee only assisting him outside as a lookout. Here, the court noted that it gave a jury instruction that they would have to acquit Mr. Rowlee of the robbery if they believed this story. “The jury obviously rejected in its entirety the statement made by Mr. Rowlee….” (Ibid.: 50). Justice Morin briefly summarized the testimony of Mr. Rowlee’s early developmental years, including the sexual abuse in juvenile reformatories and child abuse in the home, largely downplaying it because the Accused still failed to accept his primary role in the robbery of Natasha Sabolotny. The Court’s attitude was as follows: I do not see Mr. Rowlee’s recognition of juvenile abuse to be a new and significant factor in his life that impacts on this application nor, obviously, can it be argued that, assuming that such abuse took place, it in any way justifies Mr. Rowlee’s criminal conduct over the last thirty years. (Ibid.: 53)
In addressing the testimony of psychiatrist Dominique Bourget, M.D., Justice Morin summarized Dr. Bourget’s testimony as indicating that Rowlee’s personality structure was “usually very resistant to intervention or change” (Ibid.: 57). The Court specifically criticized Dr. Bourget’s finding that two violent robberies (the 1980 and 1993 incidents) did not form a repetitive or persistent pattern. The sentencing Court noted that the provisions of Section 752 of the Code had recently been amended in August of 1997. Of importance for what would later be challenged on appeal, Justice Morin never mentioned the new provisions relating to a Long-Term Supervision Order (LTSO). These new amendments allowed a Court to issue a regular determinate penitentiary sentence to be followed by up to ten (10) years of special parole supervision in the community. Here, the Court only had to find that an Accused met the statutory criteria for a designation of Dangerous Offender, but that there existed some possibility of reform and treatment that might justify this blended sentence. In fairness, however, Justice Morin did not yet have Canada’s Supreme Court decision in Regina v. Johnson (2003), which dramatically re-interpreted this new provision of the Criminal Code. Justice Morin found that while the two robberies “are not ‘remarkably similar,’ they do contain several elements of similarity” sufficient to meet the criteria of the Dangerous Offender provisions in the Code (Ibid.: 70). In each case, the victim was straddled; in both cases, there “was a sexual overtone to the assault;” each victim was grabbed around the neck; and a weapon was used in both incidents. Rowlee wore a disguise in each attack, and threatened to kill the victim if she did not stop screaming. The victims actually knew their attacker, and both robberies were premeditated. The Court then rejected defense counsel’s argument that the vast majority, ninety per cent, of DO applications were successfully made against sexual predators for sexual offenses against women and children. Justice Morin also rejected counsel’s argument that these two robberies were not “the worst possible cases” (Ibid.: 74). Instead, the Court found that Mr. Rowlee presents a “threat to the life, safety, and physical and mental well-
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 99
being of other persons in the community” for having engaged in a pattern of repetitive behavior involving serious, personal injury offenses (Ibid.: 75). In short, Justice Morin concluded that there “are in place today for Mr. Rowlee no significant factors to assist him in restraining his behavior in the future” (Ibid.: 77). Moreover, the Court could find “no reason on the evidence to conclude that Mr. Rowlee, within a determinate period of time, may achieve the ability to restrain his behavior” (Ibid.: 78). On January 15, 1998, Karl Rodney Rowlee was declared a Dangerous Offender and sentenced to indeterminate confinement in federal penitentiary.
The Appeal An Appeal was lodged on May 4, 1998. After summarizing Mr. Rowlee’s family history and criminal record, counsel put forth five arguments. First, on the robbery of Miss Natasha Sabolotny, it was argued that that there was little violence beyond the typical to qualify under the Dangerous Offender legislation. Here, it was suggested that the violence or psychological damage must be “severe,” and apply to a very small group of the worst possible offenders in the worst possible cases (Regina v. Karl Rodney Rowlee, Ontario Court of Appeal No. C-29658, Appellant’s Factum, filed 27 July 2001: 16-19). Second, two incidents – here the attempted robbery murder in 1980 and the robbery in 1993 – do not make a sufficient “repetitive pattern of behavior” to qualify under the Dangerous Offender provisions of the Criminal Code. Third, the Crown had failed to satisfy the burden of proof – proof beyond a reasonable doubt – that Karl Rowlee would, in the near future, inflict death, injury, or severe psychological damage on other persons. Fourth, counsel argued that the trial Court had failed to exercise its discretion to issue a determinate sentence even though it considered Mr. Rowlee to be dangerous. Before the 1997 amendments, a trial Court retained this residual discretion. Finally, it was argued that the Court failed to consider the new, post-1997 provisions of the Code that allowed an Accused to be declared a Long-Term Offender (LTS) in lieu of a Dangerous Offender (Ibid.:
26-27). This new provision would subject a convict to both a determinate penitentiary sentence and a special parole supervision order of up to ten (10) years in length. While the Court of Appeal took the matter under submission, it was aware that the Supreme Court of Canada was considering an important case of interpretation under the new provisions of the Dangerous Offender section of the Criminal Code. One issue was the manner in which the new LTO option related to the Dangerous Offender criteria. Did a trial court have to eliminate the applicability of the Long-Term Offender provisions before it could satisfy itself that the Accused was a Dangerous Offender? In 2003 the Supreme Court of Canada actually ruled that such a procedure was mandated. The Ontario Court of Appeal, after hearing arguments on this petition, issued a very short, one-page decision. Citing the Supreme Court of Canada’s decision in Regina v. Johnson (2003), it issued the following judgment on October 29, 2003: We are of the opinion that as a result of the decision of the Supreme Court in R. v. Johnson, 2003 S.C.C. No. 46 and the four comparison cases, a new hearing must be held. In our view, this is not one of those very rare cases that would permit application of the curative proviso. Accordingly, the appeal is allowed, the dangerous offender designation is set aside and the matter is referred back for a sentencing hearing.
Henceforth, the matter would be referred back for a new trial. Instead of offering Mr. Rowlee a Long-Term Offender designation, the Crown elected to re-try him on the previous DO application. In effect, this meant that once again, Justice Morin would be presiding at the trial. Through a new legal aid certificate, Mr. Rowlee hired a new lawyer from Kingston, Ontario: Fergus “Chip” O’Connor, a defense lawyer known for his expertise in prison law. A local attorney in Ottawa, Ontario, with experience in DO applications, was also retained as junior counsel. Almost immediately, the defense team elected to pursue a very risky strategy. They moved to exclude Justice Morin as the trial judge for reasons of bias. As a result of this motion, Mr. Justice Morin
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 101
recused himself and a new judge was appointed for the DO application trial.
The Second DO Trial The trial began on February 22, 2005, before the Honorable Mr. Justice A. De Lotbinière Panet, Superior Court of Ontario. Miss Natasha Sabolotny, the victim of the current robbery, testified much the same as during her previous appearance in 1997. As to her most recent victim impact statement, Miss Sabolotny testified that she had recently starting seeing a psychiatrist as part of the criminal injuries compensation, and because of her fear that Mr. Rowlee might be released to the community as a result of this hearing. The next day, Crown witness Dr. William Palmer, Ph.D., took the stand. As in the previous trial, Dr. Palmer proceeded to summarize Mr. Rowlee’s psychological file with the Correctional Service of Canada, from approximately 1978 to 1991. Most of these reports were, as we already know, quite critical of the convict Karl Rowlee. Mrs. Liana Palmer followed next, and as her previous testimony in 1997, she reviewed various penitentiary reports as well as her own, prepared when she was briefly Mr. Rowlee’s institutional case manager in 1989. Much of her testimony simply reviewed documents or evidence in the previous trial, and will not be summarized here. Two prison staff members who supervised Mr. Rowlee also testified, as well as representatives from both the National Parole Board and the headquarters for the Correctional Service.2 Psychiatrist Derek Pallandi, M.D., was the next witness for the Crown. He was qualified as a forensic psychiatrist currently working at the Clarke Institute of Psychiatry in Toronto. The general purpose of his testimony was to critique the risk prediction opinion given by Dr. Dominique Bourget, M.D., a forensic psychiatrist working at the Royal Ottawa Hospital in Ottawa. Dr. Bourget had recommended against a DO designation in her 1997 testimony, and made an even stronger recommendation against the DO application in her August 2004 re-evaluation. So, in effect, the Crown was attempting to impeach the Court’s designated psychiatrist.3 Dr. Pallandi was working off file materials supplied to
him by the Crown; he did not conduct a clinical interview of the Accused, Karl Rowlee, nor did he have a treatment history with this convict (Regina v. Karl Rowlee, Transcript of the DO Application, 8 March 2005: 7). Pallandi spends most of his time summarizing Mr. Rowlee’s 40-year criminal record, and then, for the first time, makes a remark about an unprosecuted violent assault in the same apartment complex some three months prior to his 1980 attempted murder arrest. According to Dr. Pallandi, Mr. Rowlee was only under suspicion for this incident and was never prosecuted. However, the import of a Crown psychiatrist testifying to an uncharged violent offense was clearly prejudicial to the Accused. After briefly mentioning the plethora of mental health studies done by the Penitentiary Service, Dr. Pallandi then addresses his major focus – a critique of Dr. Bourget’s calculation of the PCL-R (Psychopathy Checklist-Revised). This is an actuarial scale originally devised by Dr. Robert Hare, Ph.D. (1999). The relevance here is that Dr. Bourget found Karl Rowlee not to be a psychopath under the PCL-R. In fact, during the second evaluation in 2004, she actually lowered his score from 25 (in 1997) to 17 points, out of a total of 40 points. The normal cutoff for the psychopath label is considered to be 30 points. Dr. Pallandi rejected any conclusion by Dr. Bourget that suggests Karl Rowlee does not possess any coercive sexual deviancy. He specifically found that phallometric testing and even self-report evidence are highly unreliable (Ibid.: 23). Dr. Pallandi found that there is a pattern of brutality with both the 1980 and 1993 crimes by Karl Rowlee, and goes on to state that “it’s not uncommon ….that some coercive sex offenders….are actually apprehended in the commission of what appear to be property offenses on the surface” (Ibid.: 24). Dr. Pallandi concludes: “But I would in fact suggest that there is some evidence to suggest that he's prone to, in fact, coercive and violent behaviour that at least contains a sexual component – if not a pure sexual motive, but at least a sexual component” (Ibid.). He then finds Mr. Rowlee to be, quote, callous and remorseless, and affirms Justice Morin’s previous judgment in 1998 – finding Mr. Rowlee to be a Dangerous Offender. However, Dr. Pallandi then acknowledges that Mr. Rowlee’s advancing age (he was now 58) would suggest a
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diminished risk level, notwithstanding his own findings of dangerousness. He then contradicts himself by concluding that “it would be difficult for me to conclude that the possibility of eventual control for Mr. Rowlee in the community does not exist” (Ibid.: 32, 43, 47, 56 and 62). That testimony puts the Accused within the ambit of the Long-Term Offender designation, not a Dangerous Offender. In point of fact, Dr. Pallandi never does actually dispute Dr. Bourget’s calculation of a lower PCL-R score for the convict Karl Rowlee (Ibid.: 49). Further, Dr. Pallandi noted that Mr. Rowlee’s strong work ethic, especially in confinement, meant that his chances of succeeding in a structured community setting were higher – vis-àvis a convict with no such work history. Finally, and at the request of the Court, Dr. Pallandi was asked if he essentially agreed with the recommended release conditions put forth by Dr. Bourget. His answer was in the affirmative (Ibid.: 66-70). At this juncture, the testimony of the court’s appointed psychiatrist, Dr. Dominique Bourget, M.D., may seem anticlimactic. She spends a brief amount of time summarizing her previous 1997 report for the Court, and repeats her finding that Karl Rowlee’s intelligence testing was normal, unlike previous CSC reports (Regina v. Karl Rowlee, Transcript of DO Application, March 8, 2005: 6-7). Dr. Bourget reiterated her testimony that no evidence was found to support an allegation that Mr. Rowlee was rape-prone. In addressing the Accused some seven years later in 2004, Dr. Bourget testified (Ibid.:12): When I saw him, now in August, again, seven years later, I again questioned Mr. Rowlee on his participation. He admitted that he was involved in the robbery as a party outside, at the scene of the store. He did say that he knew the victim well. He admitted that his presence at the scene made him an accomplice. He was prepared to accept responsibility because of that. He denied that he entered the store and denied his participation in the events that took place inside the store.
She also indicated that Mr. Rowlee suffered an injury while incarcerated in 1998 that resulted in a compound fracture to his left leg. As a result of this medical condition, the Accused must be assisted with a cane or walker in order to move about. She found that Mr. Rowlee’s score on the PCL-R (Psychopathic ChecklistRevised) had actually decreased from 25 in 1997 to 17 in 2004, largely as a result of his age maturation (Ibid.: 19 and 24). Repeated sexual testing also found no deviant arousal. She did diagnose Mr. Rowlee with a personality disorder: anti-social personality. In conclusion, Dr. Bourget rejected a Dangerous Offender label for the inmate Rowlee, and recommended instead a LongTerm Supervision Order (LTSO) order. She felt that programs to help him deal with sexual victimization, anger management, and both out-patient counseling and residential supervision, were indicated. Counsel for Mr. Rowlee spent a considerable amount of time reviewing Dr. Bourget’s most recent report to the effect that inmate Rowlee was now showing much more remorse for both the 1980 and 1993 crimes than he had in the past. Finally, Dr. Bourget emphasized that the resources of the Royal Ottawa Hospital would be immediately available to Mr. Rowlee for ongoing counseling and anger management, with progress reports going to his parole officer. Mr. Justice Panet asked Dr. Bourget whether she felt there was a reasonable probability of some eventual reduction in risk with respect to Karl Rowlee. Her response was to suggest that the inmate was ready, even now, for discharge planning to the community and that his risk could be effectively managed (Ibid.: 55-56). Dr. William Palmer re-took the witness stand on behalf of the Crown, who moved the Court to declare Dr. Palmer to be an expert on the PCL-R2 (an updated version of the PCL-R scale) risk prediction instrument (Regina v. Karl Rowlee, DO Application, March 9, 2005: 2-3). The witness would testify that he has administered the PCL-R about 1200 times since the early 1990s. The Court thereupon qualified Dr. Palmer to give expert opinion as to risk assessment, which included the calculation of a PCL-R2 score for the inmate Karl Rowlee. At this juncture, counsel for the
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defense objected to the introduction of any specific score for the Accused, Mr. Rowlee. The basic argument put forward was that the assessment procedure was deficient in this matter, as it relates specifically to the inmate Rowlee (Ibid.: 8-9). Dr. Palmer testified that while not ideal, research by the psychologist Robert Hare did indicate that calculation of a PCL-R2 could be done without an interview and based largely on collateral documents (from the penitentiary service, including the judgment of Mr. Justice Morin in 1998). Dr. Palmer also testified that he once interviewed Karl Rowlee in 1987. Nevertheless, the most recent psychological documents consulted by Dr. Palmer apparently did not include either of Dr. Bourget’s two forensic studies. In reply, the Crown reiterated that it was Karl Rowlee who refused any further assessment by a Crown expert after the filing of the 1994 Bourget evaluation; and, that it was not necessary to have a clinical interview to conduct a valid and reliable PCL-R2 scoring exercise. Ultimately, Dr. Palmer was qualified by Mr. Justice Panet to give his PCL-R2 score for inmate Rowlee, and to comment upon it as an expert witness. After explaining the prediction device generally, Dr. Palmer opined that Karl Rowlee scored 31 points, putting him above the cutoff (30 out of 40) for designation as a psychopath (Ibid.: 25 and 44). In addition, Dr. Palmer gave his opinion that the disorder of psychopathy is very resistant to change – in other words, a permanent lifetime condition. Dr. Palmer particularly took issue with Dr. Bourget’s own evaluation when she decreased Mr. Rowlee’s score to 17 from 25. According to Dr. Palmer, this huge decrease of 8 points was well above the usual statistical variation in scoring – again assuming that the PCL-R2 is reliable and that psychopathy is largely a permanent condition (Ibid.: 42-43). On cross-examination, Dr. Palmer admitted that he probably mis-scored the PCL-R2 item related to “short-term relationships” after defense counsel pointed out that his relationship with Ruby Spencer was of 35 years’ duration. Dr. Palmer also admitted that various clinicians might score the items differently, based on their training, contact with the subject, and interpretation of the subjective elements of the Psychopathy Checklist-Revised (2nd edition). He further admitted that convicts could change, and their scores on the
PCL-R2 could vary by as much as five (5) points over time (Ibid.: 55).
The Case for the Defense At this point in the trial, the Crown rested its case, and defense witnesses were now called to the stand. The first such witness was Wendy Stewart, a forensic social worker with the Royal Ottawa Psychiatric Hospital. She testified to her daily contact with inmate Karl Rowlee during a 60-day assessment, in 2004, at the psychiatric hospital as well as her familiarity with his entire file (Regina v. Karl Rowlee, DO Application Trial, March 10, 2005: 12). She observed that Mr. Rowlee had difficulties in walking, and required a cane to move about the closed psychiatric unit. Ms. Stewart further noted that the subject was co-operative and forthright during the evaluation. She further reported that some discharge planning had been undertaken. Specifically, Mr. Rowlee had been evaluated for and accepted by two different programs: the Men’s Project for those who have been sexually victimized as males, and a residential placement at the Tom Lamothe Center run by the John Howard Society of Ottawa. Ms. Stewart also noted that the services of the Royal Ottawa Hospital were also available to Mr. Rowlee, including Dr. Bourget, M.D., their own anger management clinic, and a social skills and sexuality program lasting about thirteen weeks. The actual director of the Tom Lamothe Center then testified about the nature of the residential program.
The Criminologist as Witness/Ethnographer This criminologist was the next expert witness for the Defense, which poses considerable questions about the researcher as activist, or what is commonly called participatory action research (Hall, 1993; McIntyre, 2000; Maeve, 2001). At the outset, the Crown prosecutor motioned the Court to exclude my entire testimony on the basis that the Court could draw its own conclusions as to sentencing and did not need a criminologist (Regina v. Karl Rowlee, DO Application Trial, March 11, 2005:
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3). Defense Counsel objected that the witness would address the literature surrounding a designation as a psychopath under the PCLR, and its validity and reliability. The second area that Defense Counsel wished to qualify me was in the area of parole as it specifically applied to Dangerous Offenders. The third area of evidence was the research literature on aging and its relationship with violent recidivism. The Court ruled that I could not give opinion evidence as to the parole granting rate of Dangerous Offenders and whether the chance of parole was, in fact, illusory (Ibid.: 14). Further, nor was I to give any evidence on Mr. Rowlee’s specific risk to re-offend. However, I would be permitted to address the research literature on the reliability and validity of the Psychopathic Checklist-Revised and to address the research on the maturation effect and violent crime. After conducting a voir dire examination of my credentials as a criminologist, the Court concluded that I could give opinion evidence as to the two areas noted above (Ibid.: 46 and 51). Initially, much of my testimony addressed two recent research studies coming from the School of Criminology at Simon Fraser University. The first was Susanna Steinitz’s (2001) master’s thesis on psychopathy and dangerousness; the second was Jacqueline Faubert’s (2003) doctoral dissertation on Dangerous Offenders in British Columbia. I noted that both studies were important because the researchers examined 100 consecutive Dangerous Offender trials in the province between 1978 and 2000. They coded information from the files, including various expert reports and testimony. The first conclusion that both researchers make is that the notion of psychopathy is infused with moral condemnation and subjectivity (Ibid.: 54). The second point, especially with reference to the PCL-R score, is the notion that rendering someone a psychopath on the basis of their cutoff score has become the “Gold Standard” in determining dangerousness in Canadian courts – essentially equating a score with a legal conclusion under the Criminal Code. To quote my testimony at page 58: ... Steinitz argues that the PCL-R actually requires moral judgment and is often subjective when attempting to rate a
Chapter Four person's remorse, honesty, callousness, and conscience. This is especially true for experts who only rely upon case files often generated by the police and correctional authorities. As well, Steinitz [and Faubert also noted this] ...that PCL-R scores for even the same Accused sometimes varied by as much as 10 points.
In this regard, traditional mitigating features of an Accused, such as poverty, child abuse, educational failure, a developmental disability, and drug or alcohol addiction are re-interpreted under the PCL-R to become risk factors leading to the construction of a permanent characteristic: psychopathy. This seemed to be by design, given the way the PCL-R was constructed. Further, this criminologist testified that Crown mental health experts were three times more likely to conclude that an Accused was a psychopath or had “anti-social personality disorder” than defense witnesses. “I suppose that the point…I'm making with this is that the nature of the calculation of the scale and its inference that the person is a psychopath and therefore per se dangerous under Section 752 of the Criminal Code, is highly variable, it's highly subjected, and even learned mental health professionals have vigorous disagreements about the efficacy of the calculations, and you'll get wide differences of opinion” (Ibid.: 59). With respect to studies looking at the statistical relationship between psychopathy and violent recidivism, I cited a “meta analysis” of several studies which looked at 1,275 subjects. Here, the Pearson’s r = 0.27 suggested that less than 10 per cent of the variation around the mean scores could be explained by the PCL-R findings, leaving more than 90 per cent of the variation unexplained by the PCL-R (Ibid.: 60). I was then asked to comment about age and child abuse as “covariants” to psychopathy. I noted that as someone gets older, their PCL-R decreases – an inverse relationship – which would need to be addressed in any interpretation of the score. I further noted that child abuse is also a covariant that must be examined as well. Defense counsel then asked me to comment on the following chart, derived from Laub and Sampson’s (2003) recent follow-up of the Glueck data on 500 delinquent boys.
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This chart represents a follow-up of 500 highly-delinquent white males born in Boston circa the 1920s and 1930s, and follows their life histories with respect to arrests for three general categories of offenses: property, alcohol, and violent crimes. The question put
forth was, is there a permanent criminal cohort – similar to the assumption contained within the notion of psychopathy – that is intractable to intervention of any kind? (Ibid.: 71). Laub and Sampson (2003) found that no such permanent, intractable criminal class existed. For the most part, they all matured out of crime. Thus, I concluded that “the notion of permanent dangerousness, the notion that psychopathy can be interpreted into a permanent criminal group where it doesn't ever change – it is not amenable to intervention, it is not amenable to age, it is not amenable to disease or physical disability – that notion from this data is not supported” (Ibid.). On the last day of testimony, four family witnesses appeared, much as they did at the previous DO hearing in 1997. That concluded the evidence as led by both the Crown and defense counsel. Both attorneys then made closing remarks, summarizing the evidence and the case law.
Judgment of the Court Approximately one month later, on April 22, 2005, the Honorable Mr. Justice De Lotbinière Panet rendered his verdict as to the Dangerous Offender application. The Court proceeded to summarize Mr. Rowlee’s adult criminal history, dating from 1963, which consists mostly of property offenses. Justice Panet then made specific reference to the 1980 attempted homicide conviction and the 1993 robbery conviction, summarizing the facts as previously stated at trial. At this juncture, the Court noted that Mr. Rowlee had spent most of the last 30 years in penitentiary (Ibid.: 19). In reviewing Mr. Rowlee’s prison records, Justice Panet summarized most of the evidence put into the record concerning the inmate’s denial of responsibility, disciplinary record, risk assessment (high), and good work reports. The Court then summarized Dr. Bourget’s 1997 psychiatric assessment and her new report dated 2004. In particular, the judge quoted portions of Dr. Bourget’s 2004 report at length pertaining to his lowered risk profile and the availability of the Tom Lamothe Center in Ottawa to help provide a structured setting for Mr. Rowlee (Ibid.: 37-39).
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Mention was then made of Dr. Pallandi’s testimony, which questioned some aspects of the Bourget diagnostic evaluation, especially as it related to possible sexual deviancy and challenged a finding that Mr. Rowlee’s risk was now manageable. Dr. Pallandi found Karl Rowlee’s risk to be “unassumingly high.” A portion of Dr. Pallandi’s report which found that these conditions of risk had been ameliorated largely by age was quoted by the Court. The Court took note of Dr. Pallandi’s conclusion that he could not rule out eventual control in the community under structured conditions. Dr. Palmer’s evidence as to Karl Rowlee’s high PCL-R2 score was then referred to by the Court. As the reader will remember, Dr. Palmer had concluded that Mr. Rowlee’s score of 31 made him a psychopath under the PCL-R2. The testimony of this criminologist was then mentioned, challenging the objectivity of the PCL-R2 scores and noting that, much to the contrary, they did vary by age, marriage, employment status, and treatment history. In fact, the Court cited research findings which I put forward to the effect that “by age 50 the risk of violent or alcohol or property related recidivism is low” (Ibid.: 45). Citing the Supreme Court’s decision in Regina v. Johnson (2003), Justice Panet concluded that Mr. Rowlee’s 1980 and 1993 convictions do meet the criteria for a “serious personal injury offense” as required by the Dangerous Offender provisions of the Criminal Code (Ibid.: 57 and 59). The Court next determined that Mr. Rowlee had engaged in a pattern of persistent aggressive behavior, citing both his long criminal record and the 1980 and 1993 convictions, and the harm they caused the victims. Both the 1980 and 1993 crimes had occurred just after Mr. Rowlee had been released from penitentiary. Thus, Justice Panet stated (Ibid.: 64): Having regard to these factors, I am satisfied beyond a reasonable doubt that Mr. Rowlee constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of the evidence relating to the ‘pattern of repetitive behaviour’ and the ‘pattern of persistent aggressive behaviour’ which I have reviewed.
Justice Panet did find, however, that the 1993 robbery of Ms. Sabolotny was not of such a brutal character as to fall under the rubric of the Dangerous Offender provisions. The Court then addressed the criteria for a designation as a Long-Term Offender under the Criminal Code – a matter not addressed during Mr. Justice Morin’s previous 1998 decision and upon which the Ontario Court of Appeal remanded for a new sentencing hearing. The trial court found that Mr. Rowlee presented a substantial risk to re-offend, and cited his criminal history, including crimes committed while on statutory release; the testimony of Dr. Dominique Bourget and Dr. Derek Pallandi; and various reports from psychologists retained by the penitentiary service in Canada, including Mr. Rowlee’s institutional parole officer. As a consequence, Mr. Justice Panet concluded, “I am therefore satisfied beyond a reasonable doubt that there is a substantial risk that Mr. Rowlee will re-offend” (Ibid.: 70). The next statutory criteria which the Court considered was whether there was a reasonable probability of eventual control of Mr. Rowlee’s risk in the community. This is one of the cornerstone issues which a trial court must consider in ruling either “in” or “out” the imposition of a Long-Term Offender designation under the Criminal Code. Justice Panet again cited the testimonies of Drs. Bourget and Pallandi to the effect that inmate Rowlee was not a psychopath, was of advancing age (approaching 60), and could function well in a structured community setting like the Tom Lamothe Center in Ottawa, Ontario. The Court noted the contrary testimony of Dr. William Palmer, a now retired CSC psychologist; his PCL-R2 assessment was likely subject to a scoring error of at least plus or minus 3 points. The Court then cited this criminologist’s testimony concerning the subjectivity inherent in the PCL-R predictor, and its amelioration with age (Ibid.: 74-75). On balance, Mr. Justice Panet accepted the lower score of Dr. Bourget, or a suggested score in the mid-20s, which would be well below the cutoff of 30 points traditionally used to classify a convict as a psychopath.4 The Justice also accepted the testimony of psychiatric social worker Wendy Stewart concerning Mr. Rowlee’s amenability to supervision and the appropriateness of an LTSO order. Based on the above, Justice Panet concluded that a real
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 113
possibility existed of eventual control and lowered risk in the community, permitting the Court to exercise its discretion to consider a Long-Term Offender designation (Ibid.: 77). Citing several court decisions by both the Supreme Court of Canada, and the Alberta Court of Appeal (actually Regina v. Neve ), the trial court noted Mr. Rowlee’s lengthy criminal record and the observation that he “has admitted some responsibility for these offenses” (Ibid.: 81). The Court concluded (Ibid.: 83): I therefore conclude that Mr. Rowlee is not within that small group of offenders whose personal characteristics and circumstances militate in favour of preventive incarceration.
Mr. Justice Panet thereupon exercised his judicial discretion, and declared Mr. Rowlee to be a Long-Term Offender under the Criminal Code, thereby vacating the Dangerous Offender designation previously imposed in 1998. After again reviewing the facts of the 1993 robbery and its effect on the young female victim, Justice Panet ordered Mr. Rowlee to serve a fifteen-year (15) federal prison sentence, and gave him credit for twelve (12) years. The end result was a threeyear determinate term yet to be served. The Court then ordered a 10-year Long-Term Offender designation, and recommended a host of conditions, including long-term residency in a facility like the Tom Lamothe Center, prohibitions on the consumption of alcohol or illegal drugs, counseling for sexual abuse and anger management, prohibition not to associate with known criminals, and his consent to allow the various treatment officials to advise the Correctional Service of Canada as to his progress or lack thereof (Ibid.: 21-27).
Observations If we first look at strategic issues, two major decisions by defense counsel become salient. The first, and likely most important, was the motion to recuse the original trier of fact, Mr. Justice Gerald Morin. The fact that Justice Morin had presided over the original robbery trial in which Mr. Rowlee later took the stand in his own defense had prejudiced the Accused in his first
Dangerous Offender hearing. The next aspect of strategy in the second DO trial was to keep Karl Rowlee off the witness stand. This allowed him to take some responsibility for his offenses through the testimony of professional witnesses. On a larger scale, it is probably not too farfetched to argue that convicts like Karl Rodney Rowlee are members of the “dangerous class.” This represents a somewhat unpopular, ancient way of framing the issues since much emphasis is now given to seeing these convicts as a question of risk and governance, in effect, ungovernable subjects (Hudson, 2003; Hope and Sparks, 2000; Castel, 1991). This risk approach – one fully adopted in Canadian courts – tends to extract the question of class and related correlates such as race or ethnicity from the social equation. Furthermore, there is a neglect of larger questions related to political economy, notably how criminal justice agencies and the use of psychiatric and psychological experts serve to control marginalized groups and social categories (Miliband, 1969; Baran & Sweezy, 1966; Taylor, 1999; Anderson and Quinney, 2000; Milner, 1999; Carrington & Hogg, 2002; Chasin, 2004; Ross, 1998; Shelden, 2001). The criminal justice system is specifically designed to manage these very dangerous people, but in so doing, the “face” of the dangerous is also one of an economically and politically marginalized population – working class, victimization, drug abuse, school and employment failure. That “marginalization” tends to get lost, if not purposefully ignored, in the quest to emphasize a convict’s danger to the community and the need to validate the ultimate prosecutorial weapon – the Dangerous Offender application. Karl Rowlee’s own life history tends to suggest that a history of victimization and marginalization is very much related to the “causes” of his so-called dangerousness. This implies that the Dangerous Offender scheme functions as a form of political scapegoating for a market-dominated society unwilling to address these underlying concerns (Beckett and Sanson, 2004; Anderson and Quinney, 2000). Some thirty-five years ago, Richard Quinney (1970, 1974 and 2000) observed that crime was a function of both authorized agents in a political State who create criminal categories and the manner in which those agents both enforce the law and those
Fighting the Dangerous Offender Label: The Trial of Karl Rowlee 115
segments of the populace who have relative probabilities of being arrested. In the Rowlee case, we first observe a tremendous amount of legal conflict about whether he is actually dangerous or not, representing a clash of interests over the application of law. Next, we see that Rowlee, because of his own social history, has a high probability of being identified and prosecuted as a Dangerous Offender. Class position (and other marginalized characteristics) becomes very much part of that exclusionary package (Young, 2000; Irwin, 2005). Finally, we see State elites have an interest in promoting convicts like Karl Rowlee as the “most dangerous” criminals. White collar crime, State genocide, human rights violations, and degradation of the environment can also be considered extremely dangerous (Chambliss, 1989; Friedrichs, 1998); but they are not part of this dominant ideology. The Dangerous Offender application thus functions as a form of hegemonic ideology in support of State formation by various elites.
PART III – THE POLITICAL ECONOMY OF DANGEROUSNESS
CHAPTER FIVE DANGEROUSNESS AS HEGEMONIC DISCOURSE
The whole notion of the dangerous criminal has a historical resonance in criminology, dating back to antiquity. According to Ysabel Rennie’s (1978) history of the dangerous violent convict, the notion can be traced at least to Roman times when the poor were historically regarded as more dangerous than the rich, and hence, more criminal. For nearly four hundred years, the criminal law in England was obsessed with vagrants and beggars, who were regarded as a great threat to society. This so-called threat to the noblemen was largely induced by the demise of feudalism, and in its place, the concept of private property (capitalism), which resulted in thousands of serfs losing their means of livelihood. By 1820, the number of capital crimes in England had increased to nearly 200, most of which were directed at protecting newly emerging forms of private capital. Thus, England’s prisons became filled with that “dangerous and depraved class.” Studying dangerousness as part of an ideological position, or hegemonic frame as Gramsci (1971) might put it, is certainly atypical in criminological undertakings. Most research and policy studies concentrate, instead, on profiling the dangerous convict and his or her individual propensities – which include outrageous violence, recidivism, penal histories, poverty, drug abuse, family difficulties, educational failure, and more of the same, in general. It is an entirely different approach to study the ideological industry which generates these concepts on behalf of State elites, and which therefore tries to put forth the philosophical justifications for controlling the dangerous classes. In other words, the focus here is on the “legitimating” system which dictates who is to become dangerous and how they should be processed or regulated by the State. To invoke anthropologist Laura Nader’s (1972, 1997)
Dangerousness as Hegemonic Discourse
concept, we are studying “up” as opposed to “down.” What is more interesting is that when you study the ideological apparatchik of criminal justice, you often find yourself immersed in State agency power accompanied by elite political and social histories. The functionaries here, the operating personalities, have gone to some of the best universities in the land. Many are organic intellectuals to again quote Gramsci, and almost none of them have histories of disadvantage or criminal processing. The voice of the convict is purposefully absent (Ross and Richards, 2003). Like the use of street ethnography to study the dangerous in their own habitats, or simply to interview them behind bars, we can employ the very same techniques to study the ideological discourse on dangerousness. Following the work of Dorothy Smith (2005) in her monograph, Institutional Ethnography, elites are very busy putting forth policy papers, generating legislation, building institutional infrastructures (i.e., criminal justice institutions), and proselytizing in support of those social structures. One favorite avenue is the international conference designed, at least ostensibly, to advertise the latest management techniques in criminal justice to control the dangerous convict.
Our Study: What Works in the Community Reintegration of High-Risk Offenders In November of 2006, a joint project of Public Safety Canada, the Correctional Service of Canada, and the National Joint Committee of Senior Criminal Justice Officials held a special conference in Ottawa, Ontario. This was widely publicized as a conference for Canadians as well as having the international pretext to suggest that Canada was at the “cutting edge” of discussions on how to manage the dangerous classes. Of course, the old term, “dangerous classes” is no longer used. Instead, State experts have borrowed from the insurance industry to describe these troublesome convicts as “High-Risk Offenders.” The notion that these are largely poor people subject to the stresses of social disorganization, or that class position is an important “marker,” has been extracted from the policy equation (Yeager, 2006a).
In any event, these modern conferences now carry with them a panoply of electronic and hardcopy publications. In the instant matter, each registrant received a bound manual containing relevant sections of the Canadian Criminal Code, research summaries, the Canadian National Flagging system,1 various guidelines from the Canadian penitentiary service, and a copy of Noble v. Teale (2005). This last item is a Canadian criminal case from the Quebec Superior Court which interpreted the extent to which Karla Leanne Teale (better known as Karla Homolka, or the former wife of Paul Bernardo; a notorious, convicted serial killer) could be subject to a supervision order under Section 810 of the Criminal Code. This supervision order – in effect, to keep the peace and adhere to several conditions – is a supplement to more formal criminal sentences such as probation, imprisonment, or parole. The conference package also included a glossy Program Guide for the 3-day session (November 21-23, 2006), and two CD diskettes. The first CD was simply titled “What Works…..” and contained other court cases on Section 810 orders; various publications from the National Joint Committee of Senior Criminal Justice officials; CSC documents on their management of high-risk convicts; files pertaining to community notification of sex offenders; and finally, articles from North America and Europe on evidence-based programs to address recidivism. The second diskette was titled “Inter-Agency Manual on Dangerous and LongTerm Offenders , and consisted of a report titled “The Investigation, Prosecution, and Management of Dangerous and Long-Term Offenders.” Accompanying the above was the Annual Report, 2005-2006, of the National Joint Committee of Senior Criminal Justice Officials, an organization established in 1973 under the auspices of the Canadian Association of Chiefs of Police and the Parole Board of Canada. This group meets twice annually, and comprises members from the Royal Canadian Mounted Police, the Parole Board of Canada, the Correctional Service of Canada, the Canadian Association of Crown Counsel (prosecutors), the Canadian Association of Chiefs of Police, and even a representative from the First Nation Association of Chiefs of Police. In other words, this group represents the hierarchy of the Canadian policing, corrections, and prosecution establishment.
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As well, the Pacific Region of the National Joint Committee included a report, published in June 2006, titled “Enhancing Community Protection in the Release of the Detained Offender: Inter-jurisdictional and Inter-agency Issues and Resolutions.” Like any enterprising criminologist, I respectfully paid my registration fee of $150.00 (reduced because I was a member of the Canadian Criminal Justice Association), and attended as many sessions as I could. In effect, this constitutes institutional ethnography, as I was attempting to ascertain what discourses seemed to be dominant for this international conference, which was held at the prestigious Fairmont Chateau Laurier Hotel, Ottawa, in their grand ballroom. Breakout sessions were scattered in smaller rooms throughout the hotel. As this was a public event and I was not administering a formal questionnaire or conducting formal interviews, there was no need for university ethics review.2 I simply wandered about collecting notes, talking to friends and new acquaintances informally, and trying to get some sense of how the real “bad guys” (and they are almost all males) should be punished and supervised in the 21th century. Later, through the grapevine, I had heard that higher echelon members of the Public Safety Ministry were opposed to this conference as they saw it undermining Conservative Party policies on crime. Indeed, unlike some events, the national media were purposefully not invited to this conference, and budget approval was postponed to the very last minute (Cameron, 2006: 2). Unknown to the over 250 attendees at the conference, the Public Safety Minister Stockwell Day had threatened to cancel the conference, ostensibly citing its high “hospitality” costs. Albeit Minister Day had initially approved the conference on August 9, 2006, and agreed to be its opening speaker; he apparently voiced doubts. Ultimately, he decided to let the conference proceed on November 9, 2006, less than two weeks before it was scheduled to be held. One of the apparent reasons was the embarrassment that might have resulted in having to refund about $50,000 in registration fees as well as the loss of booking arrangements (over $100,000) with the hotel and various airlines. On May 3, 2007, I filed an Access to Information Act request to Public Safety Canada asking for all documents and
directives related to this conference emanating from the Minister, Deputy Minister, Assistant Deputy Ministers, and their executives and aides (Yeager, 2006b). Shortly thereafter, I received a response from the Ministry that they needed an extension of time, up to 180 days, to consult with “other federal government institutions.” I considered this an abuse of the Act and unnecessary, so I immediately filed my administrative appeal with the Information Commissioner of Canada, who confirmed my appeal on July 17, 2007. In the course of talking with the Commissioner’s office, I learned that this request was being monitored and opposed by the Privy Council – which is the highest level of government public service that reports directly to the Prime Minister’s office for strategy and policy coordination. In Canada, this is consistent with the Harper Government’s penchant for tight control over what they perceive as their political agenda (Akkad, 2007; Beeby, 2008; Bourie, 2015).3 Subsequent to this request, I finally received 267 pages of documents on January 9, 2008 – some seven months after the initial request. Not surprisingly, eighty-seven (87) pages were not even responsive to my request, as they included miscellaneous research materials submitted to the Minister on what works in federal corrections. Nevertheless, important admissions were made by program organizers which confirmed that the Public Safety Minister Stockwell Day had threatened to cancel the conference and relented only at the last minute. What follows, then, is an institutional ethnography about how State elites and their organic intellectuals (Gramsci, 1971) see the problem of the dangerous, High-Risk Offender. How is this discourse situated within the various criminal and social justice systems? What is dominant and controlling? And what ideologies do they represent as solutions to the problem of the dangerous?
Dangerousness as Hegemonic Discourse: Studying Elite Power The opening plenary session was titled, “What Works: The Theoretical Basis for Treating High-Risk Offenders.” Three Canadian experts presented PowerPoint lectures. All three are
Dangerousness as Hegemonic Discourse
organic academics with a long history of government service or government research contracting. They included, Don Andrews, Professor emeritus, Department of Psychology at Carleton University; James Bonta, Director of Corrections Research for Public Safety Canada; and finally Steve Wormith, current chair of forensic psychology at the University of Saskatchewan (but formerly, a high level researcher for the Ministry of Public Safety and Correctional Services, Province of Ontario). Among those in corrections, these well-known academics are known as the “Three Amigos.” To give the reader some idea of the approach, we will feature a selection of PowerPoint slides as illustrations of their discourse. Dr. Jim Bonta probably summarized this best in his presentation. From the very beginning, the notion of statistical risk is introduced in terms of general categories or predictors – many of which are traditional in the delinquency literature.
The history of anti-social behavior merely means that a convict has a prior criminal record, including violence. Importantly, the cognition and anti-social personality pattern refers specifically to
psychopathy as devised by Robert Hare (1980, 1983, 1984, 1990, 1999) and his colleagues. This is based on an innate, individual, and recurring personality defect or defects that likely have biological origins. In the genre of social science, the notion is very positivist. As you can see from the slide, the notion of social structure determinants is de-emphasized or simply omitted. The next slide emphasizes the new language of risk. Here, risk is a statistical trait which accompanies the individual dangerous convict, and it is the job of the correctional manager to evaluate this risk and determine amenability for treatment. Understand that most of these high-risk, dangerous convicts are ultimately deemed to be impossible to habilitate.
One also has to be aware of the use of similar nomenclature in which high-risk, Dangerous Offenders are redefined, in some jurisdictions, as “mentally disordered” convicts clearly placing them within the notion of mental health jurisdiction. This is all defined using the latest empirical outcomes – which, of course, are structural equations in which certain variables are simply excluded,
Dangerousness as Hegemonic Discourse
like demography, class variables, and market indicators. Importantly, this material is presented as the latest, valid research on the subject – foreclosing any further discussion on the subject.
What remains interesting is that if you average these correlation coefficients, the amount of variation explained is still relatively small. At the 0.22 level, we are still not talking about high or even moderate predictors, and yet this discourse forms the palette for decision-making in the modern criminal justice system. Nevertheless, what emerges in the academic literature is a threepronged framework for managing the high-risk, dangerous convict. It is then followed by research studies which claim to reduce recidivism based on the extent to which they adhere to this theoretical framework.
Dangerousness as Hegemonic Discourse
Shortly after this plenary presentation, the conference broke out into four workshops. The vast majority of participants attended the three workshops on “Community Notification and Release of HighRisk Offenders,” “Coordinating Post-Sentence Judicial Restraint Orders: An Inter-Jurisdictional, Interagency Consultation,” and “Long-Term Supervision Orders: From Theory to Practice.” Indeed, the workshop on Section 810 judicial restraint orders was the most highly attended. The fourth, and probably least attended workshop, was titled “Intensive Community Treatment and Support Models” and featured the executive director of the John Howard Society of Canada, a private psychologist specializing in forensic services, and an associate professor of psychiatry from the University of Rochester, New York. The discourse in this smaller workshop was oriented to a social work/community mental health approach to the dangerous, high-risk convict. In other words, rather than tagging, surveilling, and apprehending these convicts; this session focused on particular forms of treatment intervention that might be helpful. Indeed, most of the attendees appeared to be from community agencies or the non-profit sector rather than from traditional criminal justice agencies. The second plenary session on this very day was generated by representatives from the National Joint Committee of Senior Criminal Justice officials, or the NJC, as they like to call themselves. Here, the focus was on the RCMP’s Behavioral Science Group that operates much like a profiling unit to help apprehend High-Risk Offenders. Discussion also ensued concerning the Coordinated High-Risk Offender Management Team operated by the Ministry of Corrections for British Columbia, and the High Risk Recognizance Advisory Committee designed to monitor those convicts placed on a Section 810 supervision order. What was particularly interesting is that of the 66 cases reviewed for an 810 order, the High Risk Recognizance Advisory Committee in British Columbia recommended court action in 63 or 95% of the referred cases, and they were successful in getting a court order in 71% (N=47) of the cases. A similar function was mentioned by the Integrated Sexual Predator Intelligence Unit.
In fairness, it should be noted that this presentation did mention the use of COSA, or Circles of Support and Accountability, as one of the surveillance mechanisms used by these prosecutors and enforcement personnel (Hannem and Petrunik, 2003, 2007). For the most part originating within the non-profit and religious sectors, these groups form circles of volunteers whose job it is to provide the convict with regular contact, psychological support, referral to services, occasional transportation, and trouble-shooting with parole officers, if the client is still on supervision (Wilson, Picheca, and Prinzo, 2007; Wilson, McWhinnie, Picheca, Prinzo and Cortoni, 2007). One of the critiques of COSA, as a concept in community corrections, is that they have been co-opted by traditional criminal justice agencies. Most of their very limited funding comes from the Canadian penitentiary service, and many of their cases originate as referrals from high-risk advisory groups or the penitentiary service itself who wish COSA to add an extra layer of “security and surveillance” to the released inmate. Indeed, the primary COSA model is to only accept convicts who are released at Warrant Expiry (having served their entire sentences without parole or release at the two-thirds’ mandatory period). Most of these convicts have been sex offenders, and some of them are still on long-term supervision orders which can last as long as ten (10) years following confinement. Many of these inmates have been recalcitrant convicts in the prison system, and have refused treatment programming and even parole, so they are detained to warrant expiry, or the very last day of their determinate sentence. The COSA program becomes an additional layer of supervision and discipline – not a real alternative to confinement. My colleagues have argued that this characterization is unfair, as many COSA groups go to great lengths to avoid cooptation by funders such as the Correctional Service of Canada. Notwithstanding, it has been this author’s experience that many COSA clients come from federal penitentiaries after they have been detained to warrant expiry, or have been identified by correctional authorities as high risk and COSA has been contacted. When contacted to provide similar services for convicts who are facing imprisonment and for which a COSA group might represent a true alternative to imprisonment, the response has invariably been “we
Dangerousness as Hegemonic Discourse
are not available.” This has especially been the case for Lifers, Dangerous Offenders, and other sex offenders not taken to warrant expiry. To quote one prominent COSA official: “It is not COSA’s job to influence whether a person on an indeterminate or life sentence should be granted release or early release into the community” (Love, 2009). While most of the conference was focused on community notification, supervision issues, 810 orders, and long-term supervision orders, one of the plenary sessions was devoted to the concept of social reintegration and support of High-Risk Offenders. This particular session was quite different in tone, theory, and approach to the High-Risk Offender in the community. To begin, the research used was not really that of risk prediction, but social networking theory (Cullen, 1994; Estroff, Zimmer, Lachicotte, & Benoit, 1994; Petrunik, 2007). Here, what is central to stabilization in the community are those needs associated with housing, employment, health, and counseling. Importantly, these include socalled expressive needs: acceptance, worth, friendship, and belonging. These presenters even quoted the “Three Amigos” in support of evidence that social supports form an important part of the traditional, risk prediction exercise (Andrews, Bonta, Wormith, 2006). Of passing interest, a chart was presented as to the effectiveness of COSA, presumably using some kind of matching samples:
National Replication _______________________________________________________________________________________ _______________________________________________________________________________________
Circles (60) Control (60) _______________________________________________________________________________________ _______________________________________________________________________________________
M(SD) age M(SD) STATICSTATIC-99 M(SD) RRASOR* RRASOR* M(range– M(range–mos) mos) followfollow-up M(mos M(mos)) until 1st failure Recidivism Sexual Expected sexual Violent* Violent* General ‡ Dispositions
43.18 (9.55) 5.00 (2.14) 2.72 (1.50) 32.53 (6(6-84) 23.92
43.52 (8.66) 6.11 (1.52) 2.74 (1.36) 35.74 (6(6-95) 50.73
2.13% (1) 28.50% (17)** (17)** 8.51% (4) 10.64% (5) 17
12.77% (6) 26.45% (16) 31.91% (15) 38.30% (18) 75
* p < .05 ** p < .01
p < .10
At the end of this plenary session, questions from the floor inquired into budgetary support for Circles of Support and Accountability. We then learned that the federal correctional budget for these programs is actually under the chaplaincy sector within the penitentiary service, and so is perhaps considered some sort of religious mission. Apparently, however, the largest program in Canada, which is located in Toronto, is actually funded by the federal penitentiary service’s main programs sector (Wilson, Cortoni and Vermani, 2007). All agreed, however, that the funding for social inclusion services is minimal compared with the more traditional surveillance systems, and that cutbacks are threatened every year with various COSA contractors (Young, 2000). In fact, one of the speakers made a light-hearted reference to a $20 million dollar fund which the Conservative Party intends to use to address out-of-control youth crime, gangs, and drugs. The point she made was that none of this money was being made available to COSA contractors (Cameron, 2006: 5). At the end of the conference, the Attorney General of Canada, then the Honorable Vic Toews of the Conservative Party,
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addressed the assembled multitude. At the time, Minister Toews was behind a number of conservative crime proposals, including laws to mandate a presumptive Dangerous Offender status (indeterminate life sentence) for any convict convicted of a third violent offense in Canada (C-27, later reintroduced as C-2).4 The emphasis here was not on reintegration programs but interdiction, prosecution, and incapacitation. Indeed, the Attorney General stated that after a first and second chance, so-called dangerous convicts did not deserve a third chance due to ineffective correctional agencies. The remainder of his speech addressed the topic of safe streets, guns, gangs, and drugs; “none of which had anything to do with the What Works Conference” (Cameron, 2006: 8). This included mandatory minimum sentencing for gun crimes (C-10). Not found in his online-speaking notes, but emphasized in his key-note delivery at the conference was a focus on jail time. There was a clear emphasis on incarceration as a solution to dealing with the aforementioned issues. It was almost impossible to keep track of how many times Toews mentioned the words incarceration or jail time (Cameron, 2006, 9).
Clearly, future conferences such as this will not find a great deal of support from the Conservative government. Various insiders with whom I chatted informally lamented their plight – that previous policy work was being jettisoned (i.e., restorative justice, alternatives to incarceration, reintegration of offenders) in favor of neo-liberal initiatives attuned to the Conservative Party’s platform on crime control. In a recent book titled Harperland , journalist Lawrence Martin (2010) reports that the Harper Conservative government has simply ignored reams of internal Justice Department research indicating that mandatory sentences, more prisons, and longer sentences are counterproductive and ineffective as crime control approaches.
Discussion Using Dorothy Smith’s (2005, 2006) notion of institutional ethnography, we report on a recent international conference on
What Works for High-Risk Offenders, held in November of 2006, in Ottawa, Ontario. Funded by the Ministry of Public Safety and Emergency Preparedness of Canada, the dominant discourse was on various risk assessment techniques, including police surveillance and special court orders, that can be applied to arrest, incapacitate and supervise members of the dangerous classes (Foucault, 1977). Here, questions of class, poverty, and even race were either ignored, outright rejected, or simply downplayed (Yeager, 2006a). Within the conference, however, there was a secondary discourse which emphasized the importance of social capital in working with the families of the dangerous and even the Dangerous Offenders themselves. Here the emphasis was on building up networks of friends, housing supports, disability payments, employment, drug treatment, and outright kindness as a means to alleviate what was conceded to be an often bleak picture of social disorganization . Most of the funding for this work comes from the chaplaincy budget of the Penitentiary Service in Canada. There is no core funding for this work, and for the last 10 years, programs such as Circles of Support and Accountability (COSA) have been notified that their funding will be cut only to be restored at the last minute (Hannem and Petrunik, 2004, 2007). Such is not the situation with the dominant surveillance interests. Importantly, the interpretation given to this conference by the current Canadian government is one that is critical of offender reintegration, especially those deemed to be high-risk. The clear message is that this government would be pursuing exactly the opposite: long-term incarceration for this group of convicts. This brings us to an enduring debate within the philosophy of the social sciences over the mathematization of social research and its applications (Cicourel, 1964; Berger and Quinney, 2005). Stemming as it does from the positivist origins of sociology (Marcuse, 1960; Comte, 1893; Hartung, 1945), this notion sees social science as a value-free, non-ideological science on a par with chemistry or physics. Thus, the identification of the truly dangerous is now a function of actuarial “science” combined with the expertise of correctional, mental health experts. Risk is to be calculated statistically, and further endorsed based on prior criminal records with only the most limited acknowledgement given to
Dangerousness as Hegemonic Discourse
social narrative, class issues, victimization history (especially if victimized in Crown institutions), or drug abuse. In fact, drug abuse is now re-interpreted as an aggravating factor rather than a mitigating factor as it had been historically (i.e., calling for a treatment intervention). Indeed, the abandonment of narrative has meant that much data are simply excluded, as we have seen above. The notion of dangerousness becomes commodified and reified based on static statistical scores, which do not change. Social context is simply excluded. The origins of poverty, school failure, child abuse, and other features of this population are thereby depoliticized (Faubert, 2003).4 Finally, our operational definition of dangerousness is still focused exclusively on members of the dangerous classes, not on State or white collar crime actors (Quinney, 1970, 1974, 2000).
CHAPTER SIX THE DANGEROUS CLASSES SPEAK
At the outset, it may be useful to define just what is meant by modern notions of the Dangerous Offender. One of the definitions comes from the psy-professions who see the term as follows (Kozol, Boucher, and Garofalo, 1972: 379): The essence of dangerousness appears to be a paucity of feelingconcern for others…. Our concept of the dangerous person is nearly identical with the classic stereotype of the criminal or antisocial psychopath.
However, the classic definition of dangerousness, originally put forth by Adolphe Prins in 1910, refers to the capacity of persons to physically, psychologically or morally harm others and the future likelihood of harming society. Two groups were singled out: the abnormal or mentally deficient and the habitual offender (Prins, 1910). This is the concept most often embedded in various civil commitment and criminal statutes that specifically designate someone as a “dangerous offender.” As we will see, it is also a concept heavily influenced by the psy-professions and historically associated with the notion of psychopathy. The classic notion of the Dangerous Offender tends to be reified. Engrained within statute is the assumption that dangerous people do exist, they can be readily identified, are not easily habilitated, and thus must be incapacitated for the long-term. Thus, our notions of dangerousness have changed historically and can be viewed through a variety of lenses. Dangerousness can be construed both as a legal, criminal category as well as a sociological category, or even a rhetorical label (to demonize a person or group of persons). Even within the legal definition of
The Dangerous Classes Speak
crime, there are gradations of dangerousness – from the merely assaultive offender to the recidivist, serial violent rapist. More recently, the dangerous classes have been referred to as young Black males, gangs, or sex offenders. All of this is merely to illustrate that the definition of Dangerous Offender is a political concept highly dependent upon historical context and State formation (Chapman, 1968). One simplistic way of viewing this debate is the assumption of madness (the medical model), evil (the classical model), or marginalization (critical theory). Even the provisions of the Canadian DO statute are horribly imprecise, using such phrases as "pain or other evil,” “brutal nature,” or “severe psychological damage.” As this brief chapter notes, there are a variety of definitions of dangerousness. Each usage has historical, political, and cultural contexts which govern its meaning and application. Indeed, we can even consider this notion in a much wider vein – that of the concept of dangerous states or elites (Christie, 2000b; Chomsky, 1994). The Schwendingers (1970) have suggested, in one of their famous articles, that reliance on the legal definition of crime restricts the validity of theoretical explanation. Thus, white collar crime, political crime, human rights violations, and degradation of the environment can also be considered extremely dangerous (Chambliss, 1989; Friedrichs, 1998). What follows is a very contemporary piece of ethnography from the dangerous classes themselves. Its context is highly politicized inasmuch as this project was opposed by the federal penitentiary service in Canada, aided and abetted by my own university which tried to “kill” the project through the machinations of the formal ethics review process (see Chapter 7). The subject was my dissertation research on Dangerous Offenders in Canada, a project which was designed to use a semi-structured questionnaire to glean the convicts’ perspectives on how they have been treated by the welfare, school, juvenile justice, and adult justice systems. The Dangerous Offender legislation in Canada provides for a separate application at sentencing, to which a convict, if so adjudicated, can be sentenced to indeterminate (life) confinement in penitentiary. The fact that so few DOs are ever paroled leads to the notion that this sentence
category is a de facto life sentence without parole – a deferred form of capital punishment.
Methodology Convict criminology is a form of standpoint theory in which the views of convicts and ex-convicts are privileged to understand their social history and, importantly, their experiences with the criminal justice system (Richards and Ross, 2001; Ross and Richards, 2002; Ross and Richards, 2003; Richards and Ross, 2003; Richards and Ross, 2004). Our haphazard sample consisted of convicts on parole, on probation, on bail, detained in provincial jails without bail, and even having finished serving their sentences entirely.
Findings In this section, we report on our actual findings from interviews with twenty-five (N=25) Dangerous Offenders. As previously reported, some of these convicts were formally designated as DOs, others received an LTSO (Long Term Offender) designation, and several were never so adjudicated but were nevertheless considered extremely high risk by the authorities. Unlike most sociological research, we have elected not to impose previously derived categories upon these convicts – such as social class, for example (Duncan and Blau, 1967). Instead, we let the convicts define their experiences and tell us, in their own words, the meaning they gave in response to numerous questions about their family life and criminal justice histories.
The Notion of Class We asked all the convicts several introductory questions about growing up with their families. In particular, one question bluntly put forth the request: “Would you consider your parents poor?” Among this exploratory sample, about two-thirds (16/25) considered their parents to be poor or borderline poor. Class can be measured in a number of ways, and one particular measure is the
The Dangerous Classes Speak
occupation of the parents. Of preliminary interest is the finding that in two-thirds of these cases, the dangerous convict was raised in a two-parent household. Only one-third were raised in one-parent households (almost always female) or by the State in an orphanage or as a ward. With few exceptions, the parents’ occupational status was either that of being on welfare (20%) or a working-class position: house cleaner, refrigeration mechanic, laborer in construction, waitress, retail sales worker, government clerk or Army. About 16 per cent of these families might be classified as middle class, with their parents being journalists, owners of a grocery store, or a railroad station manager. When each convict was asked the question, “How did that [poverty status or none] affect your childhood?” only 16 per cent (4/25) replied that there was no negative effect. The vast majority of these convicts gave responses similar to those below: I was the second of twelve kids, and played hooky a lot from school. We moved with mom a lot because my dad was a major drinker and often drank up the rent money. [CONVICT #002] I was raised in a Duplesis orphanage and then spent time in a boys’ home and foster homes, where I was beaten. My attitude was one of being a tough guy. I was abused and then abused self with crime [referring to his long criminal record]. CONVICT #006 I never spent much time with my parents, and stole money from the cash register to get attention. I never went to ball games or hockey with my dad. [CONVICT #009] Food was always scarce and clothes were always second-hand. We moved around a lot (12 times) and my single mom went through relationship to relationship. It was an unstable life. [CONVICT #013]
For the most part, this sample describes their family life in chaotic terms that would be associated with social disorganization (Bursik, 1988; Sampson and Groves, 1989; Rose and Clear, 1998). Some described growing up in a tough neighborhood and becoming a
“street fighter.” Parents were often absent, there was little money, no car, no TV, their father died young or was even an underworld figure, or their dad drank and beat their mother. Looking for another way to approach this issue, we asked all the convicts to “describe your family life around age 10 or 11.” Eighty-four per cent (21/25) described this period in chaotic terms. Here is what they related: I was a dirty little bugger and there was a lot of diddling among my siblings. I was also sexually assaulted by an older brother, and even in Boy Scouts, there was mutual groping and masturbation. I was also having problems reading in school. [CONVICT #003] Mom and Dad drank a lot, especially on the weekends, and sometimes there was domestic violence. I was raised in the east end in a low income neighborhood. This led to playing hooky and peers who were into burglaries. [CONVICT #005] I was beaten up by my brothers, and my mom couldn’t handle me. My brothers were into drugs too. So, I was sent to Alfred training school around age 13 and foster homes after that. At Alfred, I was beaten by the Brothers with straps, hockey sticks. [CONVICT #007] I was a lonely kid as my parents worked all the time [grocery store business]. I was getting the razor strap for stealing, and then my mom caught my dad running around. I lost my dad at age 12 and then my mom died when I was fifteen. So, I was now on my own. [CONVICT #009] My father died when I was about 10 or 11, and then mom lost control of herself for a while. She had trouble disciplining me and she was drinking. I was beaten with an electrical cord when caught stealing. If dad hadn’t died, there would have been positive things to do with dad. [CONVICT #012]
The Dangerous Classes Speak
It should therefore not be surprising that the mean education level for this exploratory sample of dangerous convicts was grade 9, a measure of their class position and of school failure.
Abuse During Formative Years The issue of child abuse, or victimization occurring during a young man’s formative years, is particularly salient in the research literature. In this regard, we asked all the dangerous convicts whether they had ever been subject to “any abuse,” and then followed up with three categories (physical, emotional, and sexual). Using an ordinal scale, we asked them to estimate the frequency of possible abuse as either weekly, monthly, sporadically, or none. They were then asked if they ever got any help for this perceived abuse, and we inquired how it affected these now adult men. With the exception of one convict, the entire exploratory sample said they had experienced abuse as a child or young adult. About 70 per cent reported physical abuse, 80 per cent emotional abuse, and 60 per cent sexual abuse during these formative years. Emotional and physical abuse were particularly concentrated with 68 per cent and 44 per cent, respectively, reporting weekly occurrences in their families or institutional settings. Hence, both physical and emotional abuse were highly correlated, but not with sexual abuse (gamma = 0.761, p