Is the inhabitant of this prison cell still dangerous? Expert reports are made on the inmates of the correctional facility in Lenzburg. Image: Peter Schulthess

There has always been a certain tension between judges and psychiatrists. “The psychiatrist’s testimony allows the judge to understand the degree of responsibility of an accused person at the time of the offence”, says the federal judge Jean Fonjallaz. This hasn’t changed. What did change in the early 2000s was therapeutic measures and post-sentence decisions: “By asking psychiatrists to rule on the danger posed by convicted defendants, we have elevated the role played by experts and by science”. This shift from wanting to punish to wanting to predict has been reinforced by the security context, the acceptance of the initiative on life imprisonment in 2004, and subsequently the murders of several young girls by repeat offenders.

Methods gaining in scientific rigour

Can we really predict behaviour? Psychiatrists were not immediately thrilled with their new competences: “I remember that some refused to take a position on the risk of repeat offence”, says Fonjallaz. “It must be said that, at the time, they were often professionals in private practice who were called in three times a year for expert opinions”. Little by little, training courses in forensic psychiatry were established and methods were standardised, both to increase scientific rigour and to meet the new expectations of the judicial system. Among them are actuarial sciences, which assign a score along a scale to a person according to various tests based on age, associations, type and number of offences, employment, etc. The models then produce a precise percentage for the risk of a repeat offence.

Alongside this, other instruments were introduced, forming part of what is called ‘structured professional judgment’. “The idea was to standardise psychiatric expertise in order to reduce the influence of psychiatrists’ subjectivity”, says Philippe Delacrausaz, a psychiatrist at the Institute of Forensic Psychiatry at the Vaud University Hospital Center (CHUV). Together with his colleague Valérie Moulin, he led the project ‘Thoughts on collegial work in psychiatric expertise’, which highlighted the interest of integrating statistical indicators with aspects of clinical work. The evaluation of the dangerousness of convicted offenders and their risk of repeat offence is now therefore done on the basis of a combination of quantitative and qualitative methods.

“These tools are continually being developed”, says Manon Jendly, a professor of criminology at the University of Lausanne. “They now include the changes a person goes through and their potential as part of a shifting perspective”. At the Institute of Forensic Psychiatry of the CHUV, the research project ‘Retrospective validation of professional judgement tools for the evaluation of protective and risk factors in a French-speaking Swiss population’ was aimed precisely at validating the various instruments for evaluating the risk of reoffending and the protective factors against this risk. To this end, it analysed around 100 cases of sexual and violent offences in French-speaking Switzerland.

Difficulties in the security context

Almost everyone agrees that psychiatrists’ methods have improved and now rely to a greater extent on scientific evidence. But there remain a number of problems related to the use of these tools in the current security context. When tests indicate that a rapist has a 40 percent chance of reoffending, what do we do?”, asks Delacrausaz. “We can say it’s too much, but if the risk is 10 percent, is it still too much, knowing that there is no such thing as zero risk?”.

Delacrausaz mentions another fundamental problem related to the expectations that justice and society place on psychiatrists. Prediction and probabilities are not part of their core profession, which is therapy. “We have moved from assessing the responsibility of a defendant to determining his or her dangerousness: from an epistemological point of view, the two are completely different! Of course, psychiatric research has developed methods which, like meteorology, are able to predict the risk of repeat offending in the short or medium term. But just as meteorologists cannot predict the weather in Bern on 18 June 2045, psychiatrists cannot predict that an offender will be incurable for life”.

Petty crime in the majority

Within the framework of National Research Programme 76, Cristina Ferreira, a professor at the Vaud health university HESAV, is currently reviewing some 600 psychiatric expert testimonies in several French-speaking cantons from 1940 to 1985. She has observed that “the major criminal cases of interest to the media are only the tip of the iceberg. The majority of psychiatric expert witnesses, like the majority of offences, concern petty theft, addiction-related behaviour or, in civil cases, debt. But newspapers are not interested in a vulnerable woman who steals from supermarkets or a young man who gets into debt online. Psychiatric reports have a big impact on the lives of these kinds of people, who are often in precarious and vulnerable situations”. A report that indicates a high probability of relapse may, for example, lead the judge to order a general guardianship order that severely limits the freedom and rights of the person concerned.

That is why the reliability of the methods used for psychiatric expertise and the independence of the professionals are crucial, as are the exchanges between professionals, psychiatrists, judges and probation officers. We must not forget to support people who’ve been through the courts by using reintegration programmes, which strongly limit the risk of reoffending. With this in mind, Jendly and her team are currently evaluating a pilot project of the Latinate Probation Commission, which aims to develop intervention strategies for a sustainable departure from crime. It would improve the support provided to a thousand convicts in their reintegration into society. “The majority of people in the justice system aspire to a decent life”, says Jendly. “If we give them the opportunity to find satisfactory housing and work, we maximise their chances of settling into a more conventional life”.