Race and Ethnicity in Forensic Mental Health Reports: Biasing or Informative?

Christina L. Riggs Romaine, Wheaton College, Norton, Massachusetts, USA
Antoinette Kavanaugh, Private Practice, Chicago, Illinois, USA

In legal systems with complex disparities and potential biases, the reporting of the evaluee’s race or ethnicity (ERE) in the written forensic mental health report (FMHR) has both risks and benefits, yet few resources provide guidance on when and how to include this information. Available information suggests current practice in reporting ERE varies widely, and few recommendations and best practices guidelines exist. This article examines the available information and explores reasons for and against including ERE in the FMHR, examining how each fits with established principles of assessment. Benefits and potential consequences of including ERE, including implicit bias, the potential for stereotype threat and the problems with colorblind approaches, are discussed. Available research suggests carefully considered practice is required and decisions to include ERE should be based on a culturally competent weighing of relevance.

Forensic assessment, race, ethnicity; bias, report writing

“Racial and ethnic disparities have been observed across systems of justice…Careful studies controlling for the effects of relevant legal and non-legal factors have demonstrated that the severity and nature of criminal sentences may vary by race of the defendant, with non-White men, and in particular Black men, receiving harsher sentences…This ever-growing body of research highlights the reality that equality under the law has not yet been achieved. Because of this reality, it is important to consider all the ways bias and inequalities may be introduced or reinforced in our current systems and practice, including forensic mental health assessments” (p.138).

“…This article…focuses on the reader of the report, and considers how the information presented by the forensic mental health evaluator could influence the reader and potentially introduce or reinforce bias in how subsequent information is interpreted and considered. Specifically, we are interested in the practice of describing the evaluee’s race and/or ethnicity (ERE: Evaluee’s Race/Ethnicity) in the forensic mental health report (FMHR)…Research tells us that varying the race of a person described…and even the race-associated name of the person described…can influence the reader’s decisions and responses. However, reasonable clinicians differ in their opinions on the appropriateness of including ERE in the FMHR as well as in their training and practice around these issues. Here, we begin by considering the limited available information on current practices in reporting ERE in FMHRs and examine what recommendations exist in practice guidelines and other sources for best practices in this area. We then consider the reasons for and against including ERE in a FMHR” (p.139).

“When ERE is included, it is often in an early section of the report that provides general descriptive information about the person…Information on the ERE may also be included on the basis of relevance…Capital mitigation evaluations, too, may require sophisticated and nuanced consideration of ERE…In addition to clinical relevance, ERE may be included on the basis of legal relevance…In questions of risk, appropriateness for release or other questions of future behavior, ERE may interact in complicated ways with outside factors…that will be relevant to the question at hand…The reason to avoid drawing attention to ERE early in the report is not because race, ethnicity, and culture are not important or potentially relevant. The concern is evoking implicit biases, those biases outside the individual’s awareness that can exert an effect on decisions and interpretation of information…A second reason forensic mental health evaluators may choose not to include this information in every report is a familiar one: relevance. In many cases, the race of the defendant is simply not relevant to any aspect of the legal question…When attempting to determine the relevance of ERE to a given case, obtaining information directly from the individual becomes all the more important. A biracial young man may identify with Black or White cultures in important ways to understand when evaluating his behavior…” (p.140-144).

“As we consider arguments for and against including ERE in the FMHR, and particularly the relevance of that information in a given case, it is important to note that the evaluator making that determination is not purely objective. Especially if unchecked, the personal and cultural experiences of the evaluator are likely to influence how ERE is gathered and reported….it may be particularly important to consider how privilege and majority status may influence their determinations of relevance…All evaluators bring their experiences to the evaluation process, and careful awareness and consideration of these influences, particularly around issues of race and ethnicity, is important for every evaluation and should be considered at all points in the process from considering accepting the referral to deciding what to include in the report” (p.145-146).

“In cases where it appears ERE may be relevant to include, making a list of the pros and cons of including ERE in a given case can help evaluators carefully consider the relevant issues, including disentangling issues of race/acculturation from socioeconomic status…Whenever possible, obtain information on race, ethnicity, and acculturation directly from the evaluee. When not possible (e.g., an actively psychotic evaluee unable to answer questions), obtain information from the best sources available and clearly attribute the information to the source…Because of the potential for decreased performance due to stereotype threat, consider carefully when to ask questions about race and ethnicity. The time and way to interview about race and ethnicity will vary by the evaluation…” (p.147).

“In considering how race and ethnicity may be relevant to the evaluee and the current evaluation, remember to consider the influence of these intersecting identities. Also, remember that an intersection between two individuals (evaluator and evaluee) is occurring in the interview process…The dynamics here can be varied and complex as the evaluee may view the evaluator as one of ‘us’ or ‘them’ along any number of categories…When the evaluee and evaluator are the same race, the failure to ask about race and ethnicity can mistakenly contribute to the evaluee’s belief that the two share an alliance, which could impact the clinician’s opinion. Asking directly about ERE early on in the evaluation process may help clarify this assumption and the evaluator can use this as a time to reiterate that part of the evaluation process is to understand the evaluee’s unique experience. This same explanation may be helpful when the evaluator and evaluee do not appear to share similar racial and ethnic backgrounds, and may put evaluees at ease as they understand why they are being asked about racial and ethnic background…” (p.148).

“For the specific issue of determining whether to include ERE in a written report, we suggest careful consideration and propose that part of cultural competence is recognizing the differential impact that information on ERE may have on the reader…Again, where ERE appears to be relevant to a case, the use of a ‘pros and cons’ list may be helpful to carefully consider relevance of the information in a given case…Biases, particularly implicit biases, are subtle and difficult to detect. One strategy is to use data, in this case the evaluator’s previous forensic evaluations, to check for ways the evaluee’s race/ethnicity may be influencing report-writing, conclusions, or other aspects of the evaluation…Engage in ongoing training and discussion, and develop awareness of this complex interaction between race, ethnicity, bias, and our legal system. This includes developing an understanding of how discrimination may influence who comes before us in the evaluation context…and developing general cultural competence” (p.148).

“…ERE may have special relevance to the interpretation of psychological testing and the use of established forensic mental health assessment tools. When evaluators use testing, they are responsible to select tools that have been appropriately normed and tested on relevant populations and must be able to explain the psychometric properties of the tool and any limitations of the tool when applied to the individual evaluee…ERE should influence test selection and may need to be explained…Furthermore, the reader, whether the trier of fact, opposing counsel, or opposing expert, must know the evaluee’s race and ethnicity to evaluate the appropriateness of testing utilized in an evaluation” (p.141).

“In the context of FMHRs, the concern is with the interpretation and decisions of a specific and highly educated group, judges and attorneys. Research indicates that judges exhibit similar racial biases as the general population…and are overly confident in their ability to not let race impact decisions…The actual effects of these biases are unclear…Bias may enter decision making at other points than just the FMHR…and it is worthwhile to consider all these points…The effect of ERE on decisions made by judges and attorneys reading FMHRs is not known at this time, but concern over the potential influence may be one reason evaluators do not include this information” (p.143).

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