Managing and Treating individuals who have been found not guilty by reason of insanity

Michael J. Vitacco, Augusta University
Elena Balduzzi, Psychiatric Secure Review Board, Portland, Oregon
Kimberly Rideout, Oregon State Hospital, Salem, Oregon
Shelly Banfe and Juliet Britton, Psychiatric Secure Review Board, Portland, Oregon

States continue to rely on conditional release (CR) as an effective and cost effective way to manage individuals found not guilty by reason of insanity (NGRI). Research has demonstrated that insanity acquittees returning to the community have low recidivism rates and moderately low revocation rates. This study followed 238 individuals found NGRI in Oregon who were evaluated with the Historical, Clinical, Risk-20 (HCR-20; Webster, Douglas, Eaves, & Hart, 1997) and placed in the community on CR. The majority of individuals on CR (n = 157, 66%) maintained their release throughout the entire follow-up period (between 4 and 9 years), but 81 (33.6%) had their release revoked during the follow up. In considering the efficacy of violence risk assessment in predicting CR outcome with NGRI acquittees, the HCR-20 was mostly unrelated to CR outcome. Only two items from the HCR-20, both from the Risk Management scale (exposure to destabilizers and stress) predicted revocation, but not imminence to CR revocation. This paper reconsiders how risk assessments are utilized with insanity acquittees and provides a roadmap for improving risk assessments with this unique population by relying on risk assessment results to plan effective interventions to reduce the likelihood of revocation and violence.

violence risk assessment, insanity acquittees, conditional release

“Individuals adjudicated not guilty by reason of insanity (NGRI) are most often committed to inpatient forensic hospitals for a period of evaluation and treatment, with a focus on treating mental illness and reducing future violent and antisocial behavior. In most instances, the goal of inpatient hospitalization is to prepare individuals for a return to their communities. However, individuals found NGRI are not granted unfettered access to the community; instead, they are typically required to participate with several mandated conditions (e.g., medication compliance, abstinence from drugs and alcohol, participate in treatment and/or other structured programming), which is why their return to the community is referred to as conditional release (CR). Failure to meet required conditions, or the commission of a new criminal act, can lead to revocation of CR and a return to a secure forensic hospital or jail” (p. 403).

“The current study evaluates a relatively large sample of individuals on CR from the state of Oregon. Consistent with recent research from a statewide sample in Georgia demonstrating the necessity of proper placement and community treatment for individuals on CR we propose the RM [Risk Management] scale from the HCR-20 will predict CR revocation. Revocation status can also include the commission of a new criminal offense. Further, it is our prediction that the other two HCR-20 scales (i.e., Historical and Clinical) will not be related to CR outcome. Additional research is needed on this subject given inconsistent results across state samples; we are specifically cognizant of the fact that research has been inconsistent on the effectiveness of these scales in predicting revocation with this specialized population. We also hypothesize that the total number of prior criminal charges will predict imminence to revocation. In addition, given that substance use can form the basis for revocation of CR, we predict a substance abuse diagnosis will be related to both revocation and imminence to failure” (p. 406).

“Two metrics are frequently measured when evaluating conditional program outcomes: rates of revocation and commission of new criminal behavior. The results of the current study found a relatively low revocation rate, as 66% of individuals were able to maintain their CR over the entirety of the follow-up period. This statistic is consistent with CR data from other statewide CR programs. Regarding criminal recidivism, only one person was arrested for a new crime, and this was a nonviolent offense. The results of the current study, along with other studies of NGRI patients on CR, stand in stark contrast to the most recent statistics on criminal recidivism generated by the National Institute of Justice (NIJ). NIJ statistics for the entire United States indicate 67.8% of individuals released from prison were rearrested after 3 years and over 75% were rearrested after 5 years. At a state level, data from the Oregon Recidivism Analysis found 48% of those on felony probation were rearrested within 3 years. In sum, although the revocation rate approximates the rearrest rate in Oregon, it remains lower than the recidivism rate” (p. 408-409).

“In considering why CR may be effective one should consider that studies have linked untreated mental illness with violent behavior, potentially as a result of its inverse relationship with treatment adherence. Conditions of release, which include mandated medication compliance and strict supervision, appear effective at preventing individuals on CR from reoffending. If an individuals’ mental health deteriorates or they begin to engage in substance use, their release can be revoked and they can be returned to a secure mental health facility. CR programs also provide treatment for alcohol and drug use, and substance use has been linked to problematic outcomes. The combination of mandated medication and supervision, which are hallmarks of CR programs, provide some safeguards against criminal behavior, including violence” (p. 409).

“The current findings indicate violence risk assessment results from the HCR-20 have very little association with CR outcome, including both prediction and imminence of revocation, for those individuals on CR. Both the logistic regression and survival analysis yielded nonsignificant results with the HCR-20 scales as the independent variables. Of note, the RM scale just reached significance. Several recent studies have questioned the predictive validity of violence risk assessments in predicting the CR outcomes of NGRI acquittees. Consistent with previous studies, results from the current study suggest that most of the items and scales often used to predict violent behavior have limited ability to predict CR outcome. Nevertheless, the findings from this study do not suggest that risk assessment is irrelevant for patients being considered for CR” (p. 409).

“To the contrary, empirically focused risk assessment should remain at the forefront of treatment, management, and ultimately, play a role in release decisions. Specifically, violence risk assessment should inform risk management practices for individuals found NGRI, including informing interventions in community settings. That said, it may be most efficacious to conduct risk assessments early in the hospitalization process of NGRI commitment such that early identification of risk factors can inform treatment planning tailored toward risk mitigation. Early violence risk assessments provide a baseline for comparing subsequent risk assessments. Evidence of a lack of change or progress on items measuring dynamic risk variables may indicate a need for adjustments in treatment delivery” (p. 409-410).

“In addition, the current results indicate that the majority of CR revocations were due to mental health deterioration or rules infractions. To that end, data from the RM scale may be helpful in guiding release decisions and planning for which treatments are needed in the community. RM items require clinicians to consider potential barriers to successful transitions. In this sample, items measuring exposure to destabilizers and stress both predicted revocation. The RM scale predicted CR outcomes in a statewide sample of forensic patients from Georgia. Community programs that offer intensive case management and assertive community treatment may wish to target relevant risk management factors, such as helping patients better manage the situations causing stress and/or reduce exposure to situations which have been shown to destabilize them” (p. 410).

“Data on imminence of CR revocation provide findings that allow for three insights into CR revocation. First, most revocations occurred relatively early on, indicating that individuals on CR are most at risk for difficulties after they are discharged from a secure inpatient setting. Second, the number of prior criminal offenses predicted earlier revocation, which is consistent with previous research on CR. With regard to this finding, we cannot be certain if the number of offenses and imminence to revocation is a function of being more likely to engage in behaviors that lead to revocation (e.g., substance abuse) or whether a subset of NGRI acquittees may be considered by community providers to be high-risk patients. Any change in mental status or increase in concerning behaviors, even if relatively slight, may trigger a perception that revocation is necessary to reduce the risk
of criminal behavior or violence” (p. 410).

“In summary, data on CR support the notion that current violence risk instruments may be valuable in identifying relevant treatment targets aimed at reducing violence but are less useful in identifying which individuals are likely to be revoked or identifying those most at risk for early revocation. These findings may be related to the nature of violence risk assessment instruments, whose primary purpose is to evaluate factors related to violence, not revocation. In CR samples, including this one, the majority of individuals are revoked for rule violations, not violent or criminal behavior. As such, violence risk measures, like the HCR-20, may not be well suited to predict CR revocation, but may be more appropriate for use in making release decisions” (p. 410).

“The decision to revoke an NGRI acquittee’s CR is often the combination of multiple factors, not the least of which are the various individuals involved in setting in motion the process of revocation (e.g., case manager, PSRB liaison). This study did not collect data on the decision-making process. In some cases, the decision-making process which leads to revocation may be highly transparent (e.g., an individual makes overt threats of violence as a result of medication noncompliance and is returned to an inpatient forensic unit) or may be opaque (e.g., case manager believes the individual’s mental
health is deteriorating). Subsequent research could consider the decisions of case managers and the threshold for initiating CR revocation. Very little research has examined factors underlying the revocation process. Research examining the front end of the process has noted that many decision makers do not employ clear and exacting standards for making recommendations of release. As stated by McDermott et al. (2008), part of the difficulty with CR decisions ‘lies in the inherently ambiguous definitions of mental illness and dangerousness, both of which are necessary for the continued confinement of insanity acquittees’ (p. 329). Making these decisions less ambiguous should be a goal of researchers, clinicians, and policymakers” (p. 410-411).

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