Metropolitan News-Enterprise


Tuesday, September 5, 2023


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Court of Appeal Justice:

Experts’ Hunches as to Future Dangerousness Should Be Banned at Commitment Hearings

Buchanan Calls for Mandated Use of ‘Risk Assessment Tools’


By a MetNews Staff Writer


A justice of the Fourth District Court of Appeal’s Div. One on Friday called for an end to the use in civil commitment proceedings of mental health professionals’ “unstructured” predictions of future conduct, instead relying on risk assessment tools that gauge—based on responses to questions, the subject’s history, and statistics—the likelihood of recidivism.

Justice Martin N. Buchanan expressed his view in a concurring opinion.

The majority opinion by Justice Julia C. Kelety, in which Presiding Justice Judith McConnell joined, reverses a Nov. 16, 2022 judgment of San Diego Superior Court Judge Kenneth K. So extending the commitment of Rhonda Lynn Jenkins, as a mentally disordered offender, to Nov. 27 of this year. Jenkins was institutionalized in a medical facility after serving 14 years in prison and has been which successively recommitted.

Kelety said that mental health experts who called for continued treatment of Jenkins “failed to identify any history of dangerous behavior beyond her commitment offense in 1999”—beating her 82-year-old landlord with a hammer—“or explain how their concerns translate into difficulty controlling her dangerous behavior.” The jurist concluded that there is, therefore, “insufficient evidence to support a finding beyond a reasonable doubt that Jenkins currently represents a substantial danger of physical harm to others,” requiring reversal.

‘Unstructured Clinical Judgment’

Buchanan said he agrees with Ketety’s decision. He focused on the mental health experts having relied “solely on their own unstructured clinical judgment,” commenting:

“For decades, we have known that this is a notoriously unreliable way of predicting future violence. In my view, the time has come for courts to banish this demonstrably unsound practice in civil commitment proceedings.”

He noted that the California Supreme Court said in its 1975 opinion in People v. Burnick (by Justice Stanley Mosk, quoting a task force report):

“Neither psychiatrists nor anyone else have reliably demonstrated an ability to predict future violence or ‘dangerousness.’ ”

‘Inherently Unreliable’

Buchanan remarked:

“In any other context, the use of such inherently unreliable and speculative expert opinions would be barred…. And even if admissible, unstructured clinical predictions of violence about someone like Jenkins who has committed no violent act for decades should not suffice to support a civil commitment and satisfy the requirement of substantial evidence….If we know anything about such predictions, it is that they lack solid value.”

He went on to say that “[w]hat has changed in the last half century” since Burnick “is that we now have evidence-based instruments at our disposal,” continuing:

“No doubt, we will never be able to predict future dangerousness with any precision or certainty. But we are no longer compelled to rely on unstructured clinical judgments as a matter of necessity….We can instead insist on the use of structured risk assessment tools that yield more dependable and less subjective results. We can also require that these tools be properly validated and correctly implemented by adequately trained clinicians….And we must be mindful of the limitations of these tools as well….

“What we should not indulge anymore is the pretense that unstructured clinical judgments are a defensible way of predicting future violence in civil commitment proceedings.”

Buchanan did not address judicial opinions across the nation citing research papers that question the reliability of risk assessment tools.

The case is People v. Jenkins, 2023 S.O.S. 3252.


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