Turning Native Kids into Criminals
The risk assessment done after someone has been detained by law enforcement—an evaluation of how likely it is that a person will commit violence or other serious crime in the near future—is a powerful tool. It can be a major factor in determining whether a youth goes home or goes to a jail, treatment center, foster care or group residential setting far from home. It can be used to decide whether a teenager enters the criminal justice system or is diverted to a wellness program run by his or her tribe. It can radically change a kid’s life—often for the worse.
Risk assessments may be conducted by psychologists, mental health nurses, corrections officers or social workers when a person has been detained in jail or a mental health facility by law enforcement.
Researchers at the University of Nebraska-Lincoln have found that American Indian experts think the risk assessment instruments used most widely in the U.S. are biased against Native youth. The study is based on a survey of 35 Native psychologists, therapists, substance abuse counselors, tribal police, high school teachers and tribal court workers who responded to questions about the SAVRY (structured assessment of violence risk in youth). While the study focused on just one instrument, the researchers emphasize that their concerns apply to the vast majority of such assessments.
“Native professionals realize that risk assessment instruments are not necessarily culturally valid and may not be the best indicator of risk in Native youth,” says Cynthia Willis-Esqueda, an associate professor of Cherokee Oklahoma descent in the psychology department at UNL with a joint appointment in the Institute for Ethnic Studies.
“The implication for Native youth is that they may be overidentified as being a risk, whereas a culturally appropriate measure may not have produced that outcome,” she continues.
Formal risk assessment instruments are intended to take the subjectivity out of predictions about whether a person is likely to be a danger to himself or others. When practitioners relied just on their gut feelings, explains Stephane Shepherd, a forensic psychologist at Swinburne University’s Centre for Forensic Behavioural Science in Australia, “minorities were being identified as having a higher risk because the professionals making the assessments are generally white.”
So psychologists looked at a sample of offenders to identify some of their common behavioral patterns, things like substance use, delinquent peers, coming from a family with other offenders, poor anger management, low educational attainment and unemployment.
The behavioral items they had in common were put into a list, so now a clinician sits down with an offender and ticks off the items to see if he has those particular problems. From that information, the clinician calculates a score that indicates the likelihood the offender will engage in future violence, Shepherd says.
Most clinicians dealing with American Indian, Alaska Native, First Nations and Australian Aborigine youth offenders, Shepherd points out, are white, so the results of any assessment are influenced by issues of trust between indigenous youth and white people in authority, as well as any biases the clinician brings to the encounter.
Another obvious issue is that the risk assessments were developed based on the behavioral norms, the worldviews, the health system beliefs, the behavioral expectations and the typical behaviors of the white population,” Shepherd says.
“The problem arises,” says Willis-Esqueda, “when these instruments have not been validated with minority populations, but they are extended to minority populations as if they are an accurate measure.”
But the issues Native American experts have with these tools run far deeper.
“Labeling was their number one objection,” says Shepherd. “They thought that this tool criminalizes Native youth because of their family, because of their community, because of poverty.” A person scores higher on the risk assessment, for example, if he has family members who have been in jail, if he does poorly in school or if he lives with a relative other than his biological mother or father, factors that may actually have nothing to do with him. He may, for instance, simply live in a community with underresourced schools.
The second objection was cultural decontextualization. The experts thought the assessments are too individualistic and look at the offender with no reference to his community, says Shepherd. Nor do they take any account of discrimination, historical injustices, broken treaties, boarding school experiences, intergenerational trauma, PTSD or other factors that could influence a youth’s responses.
“Their third point was it doesn’t take into account cultural expressions of behavior. For example, ADHD is a risk factor in the assessment. There’s a potential for Native youth to score high on this because we are curious and our kids like to explore so we might be seen as not paying attention,” says Shepherd.
Nor do the assessments take into account how Indigenous Peoples express stress and what their coping mechanisms are. “For example, research shows that some minority groups are more likely to be diagnosed as having a lack of empathy in a risk assessment and that’s purely because in a white/non-white clinical interaction they might not use very much facial expression or they might suppress their emotions for whatever reason,” Shepherd explains.
“The final concern was that the instrument completely ignores cultural norms and practices. It doesn’t consider extended family arrangements and how supportive those can be. It doesn’t consider culturally-based child rearing practices. It doesn’t consider things like involvement in ceremony and how that’s a coping mechanism and also acts as sort of therapy,” Shepherd adds.
Overall, says Shepherd, “People in Indian country saw the risk assessments as being very negative. They would have preferred to see an instrument with a positive outcome—how can we develop a plan and help the youth rather than what we have now, which is clearly intended to justify punitive measures. They see law and order as something that can be achieved holistically where people can come together and work as a group to help the youth rather than labeling them as high risk [and isolating them].”
This phase of the research is expected to be published later this year. The next phase will be to look at how to improve risk assessments so they do not over identify Native American youth as potential criminals. “One outcome of this might be that more Native professionals are included in developing a measure that would be more accurate for American Indian youth and yield the best outcomes for them, for their communities and for law enforcement all at the same time,” Willis-Esqueda says.
“All scientific efforts must be exhausted to ensure our legal and mental health processes are comparably fair and comparably relevant and non discriminatory,” says Shepherd.
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