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Ewert v. Canada: Cultural Humility and Forensic Risk Assessment

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Ewert v. Canada

Cultural Humility and Forensic Risk Assessment

The increasing ethnic, socio-economic, and cultural diversity in today’s world has led to an increased focus on cultural competence and client centered care in treatment and more recently, in the criminal justice setting.  While cultural competence is defined as the ability to understand, communicate with, and effectively interact with people across cultures, cultural humility involves critical self-reflection, lifelong learning, institutional accountability, and the mitigation inherent power imbalances (Tervalon & Murray-Garcia, 1998).   Although prioritizing the needs of a client in treatment is strikingly different when working in a forensic setting, the culturally humble clinician or evaluator recognizes that he or she is not “all knowing” and often relies on quantitative assessment tools to predict future risk (Starr, 2015). 

In forensic settings, the implementation of actuarial risk assessment tools has become commonplace in guiding sentencing, bail decisions, parole, among other outcomes that affect the civil liberties of offenders (Starr, 2015).  While the literature on risk instrument validation is extensive (Shepard & Fernandez, 2017), validation samples are predominantly comprised of white participants (Olver, Stockdale, & Wormith, 2014).  As clinicians and evaluators become increasingly culturally aware, recent cases such as Ewert v. Canada assist in questioning the validity of Anglocentric assessment tools which don’t often account for the historical experiences of non-white/indigenous populations (Shepherd & Anthony, 2017).   In challenging the supposed “neutrality” of assessment instruments, this paper will briefly unpack the case of Ewert v. Canada, identify risk items that disproportionately affect persons who are socio-economically disadvantaged, and examine progressive ideas that could help equalize marginalized communities in terms of biased risk assessment. 

  On June 13th, 2018, The Supreme Court of Canada issued its decision that the Correctional Service of Canada (CSC) had breached its statutory duty to Jeffrey Ewert, an indigenous offender who spent over thirty years in prison for attempted murder, second-degree murder, and escape from custody (Ewert v. Canada, 2018).    Over a span of eighteen years, Ewert relentlessly argued that the psychological and statistical tools used to assess future risk, were not suitable for indigenous offenders and would adversely affect criminal justice decisions (Matychuk, 2018). Under the Corrections and Conditional Release Act, the CSC is required to “take all reasonable steps to ensure that any information about and offender that it uses is accurate, up to date and complete as possible (Ewert v. Canada, 2018).   Additionally, the act states that the CSC must also make sure that its programs and policies are suitable for indigenous offenders, taking their specific needs into account (Ewert v. Canada, 2018).  According to Ewert and the Supreme Court of Canada, these needs were not met. 

  Regarding the case, five assessment tools used to assess the likelihood of reoffending sexually or violently were called into question and included the Hare Psychopathy Checklist, Violence Risk Appraisal Guide, Sex Offender Risk Appraisal Guide, Static 99, and the Violence Risk Scale.   Ewert v. Canada was never about whether the offender was guilty of the crimes he was charged with but rather, it spoke to the fact that no analysis had been done on the test to prove their accuracy among indigenous populations (Matychuk, 2018). 

The issue of bias in risk assessment is an ongoing concern in Canada. This is particularly true for indigenous persons who are grossly overrepresented in the criminal justice system (Lee, 2019). In fact, indigenous persons account for 4 percent of the adult Canadian population while accounting for over 20 percent of the nation’s prison population (Public Safety Canada, 2015). Indigenous offenders are more likely to have their parole revoked and less likely to become eligible for early release (Office of the Correctional Investigator, 2015).  Additionally, indigenous persons have lower employment rates, lower median incomes, lower education levels, and poorer health outcomes (Statistics Canada, 2015).  This marginalization is not a reflection of personal shortcomings among indigenous populations but rather, the systematic consequences of colonization, racist social policies, and the stripping of indigenous identity on the part of the Canadian government (Truth and Reconciliation Commission of Canada, 2015).  In many ways this dynamic in Canada can be likened to the disenfranchisement of African Americans in the United states as a result of slavery.  In 1996 the Royal Commission on Aboriginal Peoples released a statement that describes the milieu:

“People who endure these disruptions may feel adrift-disoriented and unsure of how to

get along in the sometimes hostile non-Aboriginal world. If their aboriginality has been

devalued or ridiculed, they may have lost pride and self-esteem and be unable to build

these qualities in their children.  If they have been damaged in heart and soul, they may

turn to alcohol, violence, crime or other forms of antisocial behavior.” (RCAP, 1996).

While some research suggests that high quality risk assessment provides increased accuracy of future crime compared to clinical judgement alone (Dawes, 1989), there has been significant debate regarding the potential for actuarial risk assessments to perpetuate disparities within the criminal justice system (Starr, 2015).   Any discussion of cultural bias built into assessment tools would be incomplete without examining the socio-economic factors that contribute to the interpretations of both static and dynamic “risk” factors. While static risk factors are items that remain the same such as a prior criminal record, dynamic risk factors are items that are changeable such as substance use issues. The matter at hand is in reference to using socio-economic background items such as educational level, work history, and neighborhoods as a predictor of risk. It has been argued that including these items in a risk assessment negatively affect disadvantaged persons and essentially criminalizes poverty and lack of education (Starr, 2015). Regarding the case of Ewert v. Canada, these distinctions are important due to the intersection of cultural and socio-economic marginalization.

 The inclusion of socio-economic factors within assessment tools is nothing new (Van Eijk, 2016).  In the 1920’s Burgess developed the first risk assessment in the United States which included “work record” (Oleson, 2011).   A second generation of risk assessment tools such as the VRAG and the Static-99 typically relied on static factors such as criminal history and age (Hamilton, 2015).  More recently, a so-called third generation of risk assessment instruments began to examine dynamic risk factors and additionally reintroduced socioeconomic factors (Andrews & Bonta, 2014).  There are many examples of widely used instruments that include socio-economic factors as a predictor in future risk, in fact, these factors can make up 10 to 25 percent of the total items (Van Eijk, 2017).  For example, the RISc (Recidivism Assessment Scales) in the UK includes items such as financial management and income, problematic work history, lack of work skills, and history of homelessness to decide if an individual will be designated as low, moderate, or high risk (Van Windgerden et al. 2016).  Additionally, the Level of Service Inventory-Revised (LSI-R), Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), and the Offender Assessment System (OASys) all are comprised of similar items that contribute to higher risk scores for under-privileged persons (Van Eijk, 2017).  Starr (2015) sums it up when he explains; “basing risk assessment on socio-economic factors means using dry, technical language to obscure discrimination.” It seems that whether it is intentional or not, risk assessment tools are perpetuating the idea that disadvantaged persons are more likely to recidivate.

 While distinctions of cultural verses socio-economic biases in future risk assessment is difficult to separate since they are often interwoven, the question remains on how to move forward.  Fundamentally, the issue of intentionality seems less unimportant than the acknowledgement that some instruments are in fact, disproportionately affecting marginalized communities.  Additionally, it is crucial to examine “big picture” approaches that take historical and global perspectives into account when working with marginalized communities. 

In their article Popping the Cultural Bubble of Violence Risk Assessment Tools, Shepard & Anthony (2017) provide a framework for identifying protective factors in what they call “strength based” factors in assessment. For example, while cultural separation is often considered a risk factor in assessment, cultural engagement is considered a protective factor (Sheppard & Willis-Esqueda, 2018).   Research has supported the fact that cultural connection and engagement reduces rates of future violence and psychological distress (Shepard & Anthony, 2018).   Recognizing these protective factors could support recommendations for the reintegration into communities in contrast to further incarceration. In addition to identifying strength-based approaches to sentencing and rehabilitation, cases such as R v. Gladue (1999), allow the court to request information relevant to a client’s aboriginal background (Sheppard & Anthony, 2017).  While the Gladue Principle is not a requirement in assessing risk among indigenous populations, future progress could include require such action.  Finally, the authors discuss the emergence of pre-sentence reports that can be provided in conjunction with risk assessment to help the court in understanding the collective experience of Indigenous populations (Sheppard & Anthony, 2017).

While the debate regarding actuarial risk assessment is likely to continue for many years to come, the case of Ewert v. Canada touches upon assumptions made regarding indigenous and socio-economically burdened persons involved in the criminal justice system. This isn’t to say that risk assessment tools are not important but rather, that in the era of new language surrounding cultural competence, humility and equality, research and practitioner collaboration is vital in communicating the underlying complexities in risk assessment within the criminal justice system.  As we ask ourselves whether cultural and socio-economic vulnerabilities contribute to re-offending, perhaps these questions should be re-framed; How can we as professionals and as a society at large take responsibility for the cultural and economic genocide that created these disparities in the first place?  It is through this sort of cultural humility that we can ask ourselves these questions and perhaps one day, come to a place where being non-white and/or poor is no longer a crime.

References

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