Friday, August 29, 2008

Underground ruling on underground rules

SVP practice alert

This post is mainly to alert those of you practicing in the SVP area. The decision is from California, but may have relevance in other jurisdictions.

First, the background:

We all know about statutes and case law. But what about all those little government agency regulations that guide the enforcement of the laws? How are they issued and enforced?

Well, it turns out that in California, there is an Administrative Procedure Act (APA) that very specifically defines these rules and regulations and how they are to be issued and enforced. Rules include any "regulation, order, or standard of general application" that a state agency adopts in order to "implement, interpret, or make specific the law enforced or administered by it." And before issuing or enforcing any such rule, a state agency must file it with the Secretary of State and have it formally adopted as a regulation.

Who regulates the regulator? In California, that's the job of the little-known Office of Administrative Law (OAL).

OK, so now you understand the process. And here's why I am writing about it:

State's SVP protocol in violation

This month, the Office of Administrative Law handed down a decision against California's Department of Mental Health (DMH), saying its internal manual for SVP evaluators is an illegal "underground regulation." That's the OAL's term for a rule that is issued or enforced without the required approval of the Secretary of State.

The OAL held that the 68-page "Clinical Evaluator Handbook and Standardized Assessment Protocol" violates the law because it requires psychologists and psychiatrists on the state's panel of experts "to evaluate persons in accordance with the [manual’s] protocol."

The 2007 manual "mandate[s] how the evaluation is conducted and how the results of the evaluation are presented," despite the fact that the DMH "does not have the authority to dictate or control the standards or clinical profession of psychology or psychology," the OAL ruled.

The DMH had argued that the protocol was not a regulation, but just a general guide to assist clinical evaluators in making "case-specific determination[s] using their education, experience, and expertise ... in the exercise of their independent professional clinical judgment." The OAL found this argument unconvincing, quoting the manual as saying it "specifies the questions that must be answered and formats to be used." The handbook specifies how to conduct the clinical interview, collect historical information, and perform an assessment of a person's risk for sex offense recidivism.

The case was brought by Michael St. Martin, a leading activist among the sex offenders being civilly detained at Coalinga State Hospital.

What does the ruling mean in practice?

Once the OAL identifies a governmental rule as an "underground regulation," the agency is prohibited from enforcing it.

There is no muscle behind the proclamation, however, in that the OAL does not impose sanctions.

The OAL does mention that attorneys may bring up the regulation's status as an issue in any subsequent litigation. That means defense attorneys will have a heyday with state SVP panelists, some of whom are earning a cool half-million dollars per year cranking out these evaluations. Prepare for cross-examination questions on whether the evaluation methodology has any scientific basis and whether it has been peer reviewed.

The full decision is here. Photo credit: Eole (Creative Commons license).

Monday, August 25, 2008

Psychologist may not testify, judge rules

A Vermont judge has ruled against allowing a psychologist to testify in a child pornography case aginst a prominent local man.

The defense had sought to call Thomas Powell to testify about two issues:

  • Whether pamphlets found in the home of Stewart Read were pornographic, and
  • Whether the boys pictured in the pamphlets were under the age of 16.
District Judge Karen Carroll said Powell did not have the expertise to testify about either topic. First, he is not a medical doctor so he cannot be an expert on the anatomy of boys, she ruled. Second, it is up to the jury to determine what constitutes pornography, following community standards.

"Why should the jury care what Tom Powell thinks is lewd?" Judge Carroll asked. She said the defense attorney was trying to have Powell "come in and give his opinion" rather than just state facts helpful to the jury.

Although laws vary somewhat by jurisdiction, in general professionals are only allowed to testify as "experts" if they possess specialized knowledge that is beyond the realm of laypeople and will assist the trier of fact (such as a jury or judge) to understand the evidence and/or decide an issue.

On the face of it, the judge’s opinion certainly appears sound.

The full article, in today’s Rutland Herald, is online here.

Study: Easier to implant negative false memories in children

This new study has potential relevance to forensic psychology, and specifically the automatic faith that some accord to statements made by children in criminal and child custody cases:

Children develop false memories for a negative event more readily than they
do for a neutral one. Henry Otgaar and colleagues, who made the new finding, said their work has real-world implications for anyone working with child witnesses: "The argument that is sometimes heard in court - i.e. this memory report must be true because it describes such a horrible event - is, as our data show, on shaky grounds."

Seventy-six children aged between seven and nine years were asked to recall details about a true event that had happened to them the previous year (e.g. that their class had to perform a musical), and either a neutral fictitious event (moving classrooms) or a negative fictitious event (being wrongly accused of copying a classmate's work).

The children were asked about the events, true and fictitious, during two interviews held a week apart. If at first the children were unable to recall any further details, they were asked to concentrate and try again. They were also asked to reflect on the events during the week between interviews, to see if they could flesh out any further details.

Altogether, 74 percent of the children developed false memories for the fictitious event - that is, they said they remembered the event and added extra details about what happened. Crucially, those asked to recall the time they were accused of copying a classmate were significantly more likely to develop a false memory than were those asked to recall the time they had to switch classrooms.

The researchers speculated that children might be more prone to developing false memories of negative rather than neutral events because the two kinds of information are stored differently in the brain. "Negative information is more interrelated than neutral material," they explained. "As a result, the presentation of negative information - either true or false - might increase the possibility that other negative materials become activated in memory. This, in turn, could affect the development of a false memory for a negative event."
- From the British Psychological Society's Research Digest

The study, "Children's false memories: Easier to elicit for a negative than for a neutral event," appears in Acta Psychologica, the International Journal of Psychonomics, 128(2), 350-354. The authors are Henry Otgaar, Ingrid Candel, and Harald Merckelbach of Maastricht University, The Netherlands.

Saturday, August 23, 2008

Calif. ruling: Release rehabilitated prisoners

California has a long reputation of denying parole to all "lifers," no matter how old, sick, or demonstrably rehabilitated. Republican Gov. Schwarzenegger has been slightly more lenient than his Democrat predecessor, releasing 192 lifers as compared with Gov. Davis' 9 - but that's still only about one percent of the 16,000 who were eligible.

This week, however, for the first time in recent history, the state's high court ruled in favor of a prisoner in a parole case, upholding the July 2007 release of a woman who had fatally shot and stabbed her lover's wife with a potato peeler. The state's parole board had approved the release of Sandra Davis Lawrence four times since 1993, but three governors, including Gov. Arnold Schwarzenegger, overturned the board's decisions. Lawrence spent almost 24 years in prison.


In its 4-3 ruling, the court cited "overwhelming" evidence of Lawrence's rehabilitation while in prison and her suitability for parole, and said parole decisions must be based on evidence of present danger to the public and not merely the brutality of a crime.

The standard, ruled the Court, is as follows:

The Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the [Parole] Board or the Governor.
UC Irvine Law Professor Carrie L. Hempel, who represented Lawrence as part of a legal clinic at USC, said the court's decision "sends a clear message to prisoners that . . . if they work really hard to rehabilitate themselves they are going to get some justice."

The Los Angeles Times has in-depth coverage. The full ruling is HERE. Photo credit: L.A. Times.

Friday, August 22, 2008

Call for Papers: Correctional Mental Health Care and the Law

Behavioral Sciences & the Law announces a forthcoming special issue on Correctional Mental Health Care and the Law, to be edited by Alan R. Felthous, MD. Manuscripts (and especially research reports) on topics related to mental health services in jails and prisons are especially welcome:

Ethical issues in correctional mental health care, including:

  • Assessment techniques
  • Psychopathological issues relevant to correctional settings
  • Therapeutic and rehabilitative approaches for chronic offenders
  • Assessment and management of malingering or misuse of services
Legal issues in mental health services, including:
  • Patterns and trends of legal actions
  • Service changes due to class action lawsuits
Manuscripts should be 20 to 30 doubled-spaced typewritten pages and should comply with the editorial and referencing style of the most recent edition of the Publication Manual of the American Psychological Association or the Harvard Law Review Associations The Bluebook: A Uniform System of Citation (but not both). Manuscripts should be submitted by April 1, 2009. Additional author instructions are available online or through Dr. Felthous, the special issue editor.

Thursday, August 21, 2008

Opposing expert no safeguard against junk science

That's the conclusion of an interesting study in the current (August) issue of Law & Human Behavior. The researchers, criminology professor Lora Levett from the University of Florida and Margaret Bull Kovera, a prominent social psychologist and expert on eyewitness identification, found the following:

We tested whether an opposing expert is an effective method of educating jurors about scientific validity by manipulating the methodological quality of defense expert testimony and the type of opposing prosecution expert testimony (none, standard, addresses the other expert’s methodology) within the context of a written trial transcript. The presence of opposing expert testimony caused jurors to be skeptical of all expert testimony rather than sensitizing them to flaws in the other expert’s testimony. Jurors rendered more guilty verdicts when they heard opposing expert testimony than when opposing expert testimony was absent, regardless of whether the opposing testimony addressed the methodology of the original expert or the validity of the original expert’s testimony. Thus, contrary to the assumptions in the Supreme Court’s decision in Daubert, opposing expert testimony may not be an effective safeguard against junk science in the courtroom.

More guilty verdicts, hmm? That hasn't been my experience in the cases I've been involved in, but it's an interesting finding nonetheless.
The article is restricted to subscribers and purchasers, but you can get the abstract and a “free preview” (the first page) here.

Tuesday, August 19, 2008

Juvenile transfer increases recidivism

Department of Justice confirms multiple study findings

OK, if you are reading my blog you probably already know this. But it is news when the U.S. Department of Justice reaches a similar conclusion. And, combined with an editorial response by the New York Times, it could signal a changing of the tide.

An article in the Juvenile Justice Bulletin, "Juvenile transfer laws: An effective deterrent to delinquency?" summarizes a series of large-scale studies comparing juveniles who have been transferred to adult with those who have remained in juvenile courts. Despite using different methodologies and being in different jurisdictions with different types of transfer laws (automatic, prosecutorial, or judicial), the results are "strong" and "compelling" in their consistency, reports Richard E. Redding:

"All of the studies found higher recidivism rates among offenders who had been transferred to criminal court, compared with those who were retained in the juvenile system…. Thus, the extant research provides sound evidence that transferring juvenile offenders to the criminal court does not engender community protection by reducing recidivism. On the contrary, transfer substantially increases recidivism."
The New York Times issued a short but sweet editorial response, "The Case for Juvenile Courts," lambasting current juvenile transfer policies as "a terrible mistake":
This country made a terrible mistake when it began routinely trying youthful offenders as adults. This get-tough approach was supposed to deter crime. But a growing number of government-financed studies have shown that minors prosecuted as adults commit more crimes - and are more likely to become career criminals - than ones processed through juvenile courts.

The value of specialized courts for young people is underscored in a new report from the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. After evaluating the available research, it concludes that transferring juveniles for trial and sentencing to an adult criminal court has increased recidivism, especially among violent offenders, and has led many young people to a permanent life of crime.

The juvenile justice system was one of the great reforms of the Progressive Era. The push to go back to trying children as adults began in the mid-1990s, when state lawmakers fixated on a few, high-profile crimes by young people and - convinced there was a youth crime wave - came up with a politically convenient solution.

Young people who commit serious, violent crimes deserve severe punishment. But reflexively transferring juvenile offenders - many of whom are accused of nonviolent crimes - into the adult system is not making anyone safer. When they are locked up with adults, young people learn criminal behaviors. They are also deprived of the counseling and family support that they would likely get in the juvenile system, which is more focused on rehabilitation. And once they are released, their felony convictions make it hard for them to find a job and rebuild their lives.

Nearly every state now has laws that encourage prosecutors to try minors as adults. The recent studies of this approach should lead legislatures to abandon these counterproductive policies.
Hat tip: Grits for Breakfast

News headlines from around the U.S.

The major news outlets are running all kinds of stories relevant to forensic psychology. Here is a sampling.

CSI counterpoint

The fallability of forensic sciences is gaining attention lately. Roger Koppl, director of the Institute for Forensic Science Administration, and Dan Krane, a biological sciences prof at Wright State, co-authored this informative op-ed piece in the Newark (NJ) Star-Ledger:


When patients kill

It is always bad news when someone is certified ready for release from a psychiatric hospital and then commits a violent offense. Take William Bruce: Two months after the 24-year-old schizophrenic was released from a hospital in Maine, he hatcheted his mother to death. Here, the Wall Street Journal finds fault with patients rights' advocates who lobbied for Bruce's release:


Christian Science Monitor slams sex offender laws

As public awareness mounts regarding restrictive residency laws targeting sex offenders, the Christian Science Monitor joins the fray with this hard-hitting editorial by C. Alexander Evans:


MoJo's "Slammed: The coming prison meltdown"

And if you've got time for still more reading, a highly recommend the Mother Jones special on incarceration, "SLAMMED." It features at least nine interesting articles, among them:





Not to mention, a "MoJo Prison Guide" with a glossary of prison slang and answers to such obscure prison trivia as:
Hat tip: Jane

Friday, August 15, 2008

Guantanamo psychologist takes the Fifth

Court case may fuel debate at annual APA Convention

I've been trying to keep this blog out of the torture debate raging within the American Psychological Association, but I wanted to alert readers to this interesting news angle reported in today's New York Sun.

In a courtroom at the U.S. naval base in Guantanamo Bay yesterday, a psychologist asserted the Fifth Amendment privilege against self-incrimination when called testify about the treatment of a detainee. Her action implies that she could face criminal sanctions or licensure action for her role in the interrogation of detainee Mohammad Jawad.

According to court papers, the psychologist became involved when Jawad's interrogator became concerned over his deteriorating mental state. The detainee had begun speaking to posters on the wall.

The psychologist (whose name is being kept secret by court order) reportedly told the interrogator that Jawad was faking. She recommended that he be placed in isolation in order to weaken his resolve. Nine weeks later, Jawad attempted suicide.

Jawad's military lawyer, Major David Frakt, said the psychologist's refusal to testify is tantamount to admitting "that her conduct was criminal."

The case is likely to figure into the firestorm at this week's annual convention of the American Psychological Association in Boston. The APA is set to vote on whether to ban members from participating in these types of interrogations. A number of psychologists have resigned or are withholding dues in protest of the organization's refusal to take a stronger stand against torture, and more than 1,200 members have signed a protest petition.

The New York Sun article is here. Hat tip to Ken Pope, who has a page of online resources on the controversy. More information is available at the web site of Psychologists for an Ethical APA.

UK forensic psych honored

Pioneer in study of police interrogation tactics

A British forensic psychologist who pioneered in the study of police interrogation tactics and helped to reform such practices in the UK and elsewhere has been honored with an international award.

The European Association of Psychology and Law honored Professor Ray Bull of the University of Leicester with a Lifetime contribution to Psychology and Law award.

In 1991, Dr. Bull was commissioned by the British Home Office to co-author the first draft of the Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings. He went on to write the government's 2002 Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, Including Children. He has advised police forces in several countries on the interviewing of witnesses and suspects, and he has testified as an expert witness on this topic at a number of trials.

More information is online here.

Wednesday, August 13, 2008

Yet another DNA child rape exoneration

Excellent journalistic expose
Shortly after sunrise (yesterday), the inmates in the stark prison yard cheered wildly and pumped their fists for Robert McClendon as he took his final steps toward freedom. The Columbus (Ohio) man grinned as he walked past the concrete-block walls and curls of barbed wire, no longer condemned for a child rape that DNA shows he didn't commit.
That is the lead to a story in yesterday's Columbus Dispatch. The case is featured as part of a yearlong investigation by reporters at the Dispatch, who found "deep flaws" in Ohio's system for uncovering wrongful convictions:

"Police and courts regularly destroy evidence. Prosecutors, benefiting from a flawed law, routinely oppose DNA testing. Judges dismiss inmate requests without a reason, as required by law."

The full "Test of Convictions" series - including interactive videos and graphics - is here; the McClendon case is presented here.

Using lie detectors to monitor sex offenders

Pro and con arguments

Polygraph testing is widely used with convicted sex offenders in the United States to assist in their treatment and supervision, and in 2007 legislation was passed in England enabling a national trial of mandatory testing in the probation service.

In next month's issue of Legal and Criminological Psychology, a British journal, a forensic psychiatrist and a forensic psychologist debate the pros and cons of this approach:

Don Grubin, MD of Newcastle University in the UK endorses the use of polygraphy to monitor whether sex offenders are adhering to their treatment plans. Polygraphy, he argues, is an effective method for "getting a complete sexual history, checking compliance with treatment and supervision and gaining information about an individual's offending."

Gershon Ben-Shakhar, Ph.D. of Hebrew University of Jerusalem objects: "Polygraph examinations have no value as a scientific method for detecting deception and uncovering information the examinee does not wish to disclose."

The full arguments are in September's special issue on human rights in forensic practice; a press release from the British Psychological Society (the journal's publisher) is here. Unfortunately, although I have linked you to the abstracts, you have to pay or subscribe to a journal service to get the entire articles.

Monday, August 11, 2008

"Hot tubbing": Counterbalance for expert partisanship?

Tomorrow's New York Times features a thought-provoking analysis by Adam Liptak of the problem of partisanship in the U.S. system of expert witnesses. Might the solution be "hot tubbing" - a new practice out of Australia?

"In U.S., Partisan Expert Witnesses Frustrate Many"
By Adam Liptak
New York Times, Aug. 12, 2008

Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded and did not understand what was happening to him. Mr. Wilkins’s verbal I.Q. was 58, the defense expert said.

The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was perfectly competent to stand trial.

Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony. “The two sides have canceled each other out,” Judge Dillard wrote in 2005, refusing to accept either expert’s conclusion and complaining that “no funding mechanism exists for the court to appoint an expert.”

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid....

Some major common-law countries are turning away from partisan experts. England and Australia have both adopted aggressive measures in recent years to address biased expert testimony....

Hot tubbing in Australia

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues....

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.” ...

England has also recently instituted what Adrian Zuckerman, the author of a 2006 treatise there, called “radical measures” to address “the culture of confrontation that permeated the use of experts in litigation.” The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills.

There are no signs of similar changes in the United States. “The American tendency is strictly the party-appointed expert,” said James Maxeiner, a professor of comparative law at the University of Baltimore. “There is this proprietary interest lawyers here have over lawsuits.”

American lawyers often interview many potential expert witnesses in search of ones who will bolster their case and then work closely with them in framing their testimony to be accessible and helpful. At a minimum, the process results in carefully tailored testimony. Some critics say it can also produce bias and ethical compromises....

The United States Supreme Court has expressed concerns about expert testimony, but it has addressed bias only indirectly, by requiring lower courts to tighten standards of admissibility and to reject what some call “junk science.”
The full article is here.

LA Times exposes SVP boondoggle

Back in January, I reported (here) on California's costly and ineffective program for screening Sexually Violent Predators. On Sunday, the L.A. Times reported on how the program is enriching a handful of state psychologists to the tune of more than $1 million in some cases (in addition to their day jobs). The state's 79 evaluators earned a cumulative $24 million in 2007, a figure that is expected to rise in coming years even as funds for more essential public services disappear. It's a story that both the San Francisco Chronicle and the Contra Costa Times have also covered some time ago:

State pays millions for contract psychologists to keep up with Jessica's Law

A 2006 law intended to crack down on sex offenders has proved a bonanza for a small group of private psychologists and psychiatrists, 14 of whom billed California taxpayers last year for a half a million dollars or more each, a Times investigation found.

Among the 79 contractors hired by the state to evaluate sex offenders, the top earner was
Robert Owen, a Central Coast psychologist who pulled in more than $1.5 million in 2007, according to state records reviewed by The Times.

That's equivalent to working 100 hours per week for 52 weeks at nearly $300 per hour -- top-scale in the private sector.

The No. 2 earner, psychologist
Dawn Starr, billed the state $1.1 million in 2007, including $17,500 for a single day in April.

"It's been a boatload of money, to put it colloquially," psychologist
Shoba Sreenivasan said during court testimony in November. Working only part time, she billed the state nearly $900,000 last year and at least $290,000 this year…

Dr.
Michael First, editor of the American Psychiatric Assn. Diagnostic and Statistical Manual, the standard reference for mental disorders, said most reports require at least 30 hours.

Yet on a single day, Nov. 13, 2007, No. 2-earner Starr billed for five evaluations.On April 23, 2007, she billed more than 17 hours for a range of court-related work and still found time to complete an evaluation, according to her invoices, which were reviewed by
The Times.

Dr.
Mohan Nair, a psychiatrist with offices in Beverly Hills and Los Alamitos, earned nearly $1 million last year under the state program. He also saw private patients, provided forensic testimony and evaluation for other government agencies, directed a diagnostic lab and supervised residents at two medical centers.

Nair completed up to 20 sex-offender evaluations a month in 2007. Including time billed for legal matters, they comprised just 20% to 30% of his professional practice, he said.

Even at 100 hours per week, he would have had no more than six hours to complete each of five evaluations….

The State Personnel Board recently took up the issue, ruling that the use of contractors violated state law by failing to make an adequate effort to fill evaluator jobs with regular employees. The board ordered mental health officials to replace the contractors with civil servants. Despite an increase in pay to up to $110,000 annually, Mayberg said, just four jobs out of 80 have been filled.

Since then, the department and the union helped to craft a bill to permit the use of contract evaluators until January 2011.
The full story is here.

Hat tip: Daniel Murrie

N.Y. Law School offering online courses

Forensic topics - sex offenders, therapeutic jurisprudence

Professor Michael Perlin, a preeminent scholar in the field of psychology-law and author of an excellent new book on competency, is announcing an exciting array of online, distance learning courses this fall through the New York Law School.

"Courses combine streaming videos, readings, weekly synchronous chat rooms (meaning, class meets at 8:45 on Monday night, say, but you can be home in your pajamas or at a coffee shop, not in Room A 602), asynchronous message boards and two full day live face-to-face seminars (in which skills issues are always emphasized)," says Perlin.

The four courses being offered this fall are:
  • Survey of Mental Disability Law (Monday, 8:45-10 pm)
  • Sex Offenders (Tuesday, 8:45-10 pm)
  • Therapeutic Jurisprudence (Wednesday, 8:45-10 pm)
  • Americans with Disabilities Act: Law, Policy and Procedure (Thursday, 8:45-10 pm)
The courses are open to law students, attorneys (CLE is available), mental health professionals, graduate students in psychology and criminal justice, criminal justice professionals, human rights workers, medical students, forensic fellows, advocates, and activists.

More information on the online program in mental disability law, including registration information, is here. You can also directly email Liane Bass, Esq., senior administrator of the program.

Australia: "Circle sentencing" ineffective

Speaking of restorative justice . . .

A restorative justice approach that involves the Aboriginal community in sentencing of Aboriginal offenders has no effect on recidivism risk, according to a new study.

"There was enormous hope that if Aboriginal offenders were brought before members of their own community, they would sit up and take more notice than if they were brought before a white magistrate or a white judge," said Don Weatherburn of Australia's Bureau of Crime Research and Statistics.

More important to reducing crime, he said, are treatment programs for the endemic drug and alcohol problems facing the Aboriginal community.

Of course, as pointed out by Douglas Berman at Sentencing Law & Policy, "the value of community involvement in the sentencing process may have benefits that cannot be measure just through recidivism rates."

The study, "Does circle sentencing reduce Aboriginal offending?" by Jacqueline Fitzgerald, is online in the New South Wales Bureau of Crime Statistics and Reseach publication Crime and Justice Bulletin. The Australian Broadcasting Corporation also has coverage.

Sunday, August 10, 2008

British family man called pervert for photographing his children at park

"What is the world coming to?" asks father

From London's Daily Mail:

When Gary Crutchley started taking pictures of his children playing on an inflatable slide he thought they would be happy reminders of a family day out.

But the innocent snaps of seven-year-old Cory, and Miles, five, led to him being called a "pervert."

The woman running the slide at Wolverhampton Show asked him what he was doing and other families waiting in the queue demanded that he stop.

One even accused him of photographing youngsters to put the pictures on the internet.
Mr. Crutchley, 39, who had taken pictures only of his own children, was so enraged that he found two policemen who confirmed he had done nothing wrong.

Yesterday he said: "What is the world coming to when anybody seen with a camera is assumed to be doing things that they should not?" ...

His wife, a teaching aide and nurse, agreed: "It is very sad when every man with a camera enjoying a Sunday afternoon out in the park with his children is automatically assumed to be a pervert."

The story continues here.

Friday, August 8, 2008

California: More sex offender commitment mess

I've written several posts (listed here) on various controversies surrounding Coalinga State Hospital, California's costly boondoggle for civilly committed sex offenders.

Here is the latest buzz. (I am hearing all of this third-hand and I haven’t seen it reported in any official sources, so take it for what it’s worth.)

Due to a severe shortage of staff, the hospital is operating at full capacity with only about 700-some out of a maximum of 1,500 patients. That means that if a patient goes to court, he cannot return "home" until a bed opens up. Since the "hospital" is really a long-term detention facility from which few people are released, this can take many months. Meanwhile, the sex offender is housed in a county jail's protective custody unit, which is much more restrictive than general population housing.

Worse, if a patient is called as a witness in a fellow patient's civil commitment proceeding, he too can expect to lose his bed. It is hard to find willing witnesses when they've got to be willing to go to jail for you, for an indefinite period of time.

I'm told that the hospital has about 700-some patients. It could hold 1,500 if it had a full staff. But despite an intensive campaign, recruiters have found only 900 people so far who are willing to work there, or about 55 percent of the 1,600 they need in order to run all of the units and programs.

Meanwhile, I'm hearing that the expert witness panel of the state Department of Mental Health is being disbanded. Less expensive staff psychologists are replacing the contractors, some of whom were earning upwards of $1 million per year. The massive earnings were becoming a focal point for defense attorneys during cross-examinations of state witnesses. I'm told that jurors' eyes practically popped out of their heads when they heard about the "boatloads" of money, as one expert described her earnings.

If anyone finds published news on these topics I would be grateful if you posted them in the Comments section, so others can access them.

An L.A. Times article on the beleaguered hospital is here.

Postscript: On Aug. 10, 2008, the L.A. Times published an expose on the massive earnings of state SVP evaluators. The article is here; my post on it is here.

CNN features San Quentin education project

As part of its "Black in America" series, CNN has an upbeat story about education efforts in one of California's most famous prisons:

Lt. Sam Robinson, a 27-year veteran of San Quentin, gave a tour of 27 vocational programs run by about 3,000 volunteers as part of the Prison University Project, a nonprofit education program that offers many black men an opportunity to earn an associate of arts degree. It helps give those eligible for parole the intellectual tools to compete in a vastly changing job market.

Advocates say that many black men imprisoned across America, particularly nonviolent drug-related offenders, have enormous potential to become productive, law-abiding members of society through higher education in prison.

University of California at Berkeley professor Rebecca Carter volunteers as a biology instructor at San Quentin. During her first semester, she was startled by what she discovered. "I've been teaching on the Cal campus and teaching at the prison at the same time, and they were significantly more engaged when I was in the prison," Carter told CNN's Soledad O'Brien. "Not always more in command with the subject matter but more engaged, doing the homework, asking questions because they were passionate about learning."
The full CNN article is here, accompanied by video and photographic footage of the prison university.

Hat tip: Douglas A. Berman, Sentencing Law & Policy blog

Thursday, August 7, 2008

Imprisoning LeFevre a costly, senseless ritual

Guest essay by Daniel Macallair*

Few examples better illustrate the vindictive nature of the American criminal justice system than the case of Susan LeFevre.

On April 24, LeFevre was arrested by federal marshals at her San Diego home 32 years after she walked away from a minimum security prison for nonviolent offenders in Michigan. At the time of her escape, she had just begun serving a 10- to 20-year sentence after she and a male companion pleaded guilty to charges of attempting to sell $200 worth of heroin to an undercover police officer.

Despite having no criminal record, the 19-year-old college student faced a crusading judge and the first wave of harsh drug laws. For a crime that may have resulted in probation in a neighboring jurisdiction, LeFevre received the maximum possible prison sentence.

Now a 52-year-old law-abiding mother and housewife, LeFevre has returned to Michigan where justice and corrections officials have stridently vowed that she will face the wrath of the criminal justice system.

While walking away from a prison sentence is never justified, the case raises troubling questions about the American criminal justice system and the purpose of imprisonment.

According to a recent study by the Center on Juvenile and Criminal Justice, the U.S. has the highest imprisonment rate in the world. With just 5 percent of the world's population, we have 25 percent of the world's prisoners.

Even more startling, the U.S. jail and prison population for drug offenses (458,131) exceeds the European Union's jail and prison population for all offenses (356,626).

The reason why the United States imprisons 740 out of every 100,000 citizens compared to Europe's rate of 110 per 100,000 is the size of its prison establishment and the acceptance of imprisonment as a sentence for both violent and nonviolent offenders. Other countries choose to use prison sentences very sparingly on the understanding that prisons are cruel and brutalizing places that should be reserved for only the dangerous. Instead, European countries prefer to rely on penalties such as day fines that are tied to the individual's income....

LeFevre's imprisonment will cost the state of Michigan more than $300,000 during the next 10 years. This does not include any additional periods of imprisonment imposed for her earlier escape. Many in the prison establishment will argue that requiring LeFevre to serve her sentence is necessary to demonstrate the criminal justice system's resolve and to deter others from similar actions. Others argue that special treatment for LeFevre cannot be justified since special considerations are not extended to other inmates.

Effective criminal justice systems measure their success by the number of people successfully returned to the community, not the number of inmates maintained in prison. Incarcerating individuals such as LeFevre who pose no danger to society and who are forced to leave behind children and spouses simply renders her punishment a costly and senseless ritual.

In this instance, society would be best served by allowing LeFevre to return home, leave the past behind and continue her productive life.

*Reprinted with the written permission of the author. Originally posted on the Saginaw (Michigan) News online edition. Daniel Macallair is executive director of the Center on Juvenile and Criminal Justice and teaches criminal justice at San Francisco State University.

Bizarre verdict: Both sane and insane

Kier Sanders was a severely psychotic and delusional 21-year-old when he shotgunned his grandparents to death in Tupelo, Mississippi back in 1985. Amazingly, he wandered the streets of America for two decades before finally being apprehended in 2005 and put on trial for double murder.

The defense, insanity, was no surprise.

The verdict, both guilty and not guilty, was.

Apparently worried that the 43-year-old Sanders might be released if they found him not guilty by reason of insanity, jurors acquitted him in the death of one grandparent, but found him guilty of murder in the other.

After deliberating for 45 minutes, the jury sent a note to the judge asking when Sanders might be released if they found him NGI. The judge, following the law, ordered them not to consider that issue. The strange verdict came four hours later.

The judge sentenced Sanders to life in prison, noting that if he was ever paroled he would then be committed to the state hospital as NGI. The verdict and sentence will be appealed, Sanders' attorney said.

Psychologist John McCoy of Memphis, who treated Sanders in 1983 and who testified for the defense that Sanders was not malingering, reported on the case for the National Psychologist. His article, along with contact information for him, is here.

Sex offender news roundup

Florida sex offenders may possess porn

Florida sex offenders on probation can possess pornography so long as it does not relate to their ''particular deviant behavior pattern,'' the state's Supreme Court has ruled.

The case involved Donald Kasischke, a 61-year-old Miami man with a doctoral degree in gerontology. He was on probation following a year in prison in the sexual molestation of a 15-year-old boy. Probation officers had searched his home and found pornographic photos of young males having sex, but it could not be determined that any were underage.

The ruling involved a condition of Kasischke's release stating that:

"Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, accessing, owning or possessing any obscene, pornographic or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs or computer services that are relevant to the offender's deviant behavior pattern.''
The Miami Herald story is here.

Part of national registry ruled unconstitutional

The law making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction is unconstitional, a federal judge in Montana has ruled. The Montana Attorney General will now appeal the ruling to the 9th U.S. Circuit Court of Appeals.

The case involved 58-year-old Bernard Waybright, who was convicted of a misdemeanor sex crime in West Virginia. Waybright traveled to Montana several times without registering there, a violating of the federal Sexual Offender Registration and Notification Act.

The complete ruling in US v. Waybright is here. The news report in the (Montana) Missoulian is here. Analysis and news roundup of the case is here.

Coming soon: Instant sex offender alerts

Want to find out when a sex offender moves into your neighborhood. In Washington, a new system will allow you to get instant "real-time updates" and email alerts. Whoopee!

(Too bad that 90 percent of people arrested for sex offenses do not have a prior record. But these laws presumably make people feel safer.)

It's all part of the Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) program, established by the U.S. Department of Justice under the Adam Walsh Child Protection and Safety Act of 2006. SMART has just issued its final guidelines for implementation, available online here.

Under the new guidelines, all 50 states, plus the District of Columbia, Puerto Rico, and Guam, are required to establish online sex offender databases that are easily searchable by name, zip code, and geographical radius. All states and U.S. territories must also participate in a similar one-stop-shopping federal database, the National Sex Offender Public Website (NSOPW).

Jurisdictions are also "permitted and encouraged" to provide public access to sex offenders' email addresses, by allowing members of the public to query whether a specific email address belongs to a sex offender.

All adult sex offenders and some juveniles as young as 14 are included in the national and state databases. (See this fact sheet for more information on juvenile registration requirements.) Registration is for life for offenders designed as “Tier III,” and for minimum periods of 15 to 25 years for Tier I and II offenders, respectively.

The FBI, which maintains the National Sex Offender Registry (NSOR) database, may freely share registrants' information with "other appropriate databases."

Wednesday, August 6, 2008

Two new journals

Just what we all need – more journals!

Psychological Injury and Law

The first issue of Psychological Injury and Law has hit the news stands.

Well, not exactly. But it's hit the web, and articles in the premiere issue are available for free downloads without a subscription.

The journal bills itself as "a multidisciplinary forum for the dissemination of research articles and scholarly exchanges about issues pertaining to the interface of psychology and law in the area of trauma, injury, and their psychological impact."

Spearheading the new journal - and an associated new organization, the Association for Scientific Advancement in Psychological Injury and Law - is Gerald Young, a psychology professor at York University in Ontario and co-author of the text, Causality of Psychological Injury: Presenting Evidence in Court and similar texts.

Young and colleagues hope to promote research, guide the application of that research in forensic cases, and improve cross-disciplinary communication.

Topics of focus will include PTSD, chronic pain, traumatic brain injury, and malingering.

Articles in the first issue, available here for free download, include:

  • Expert Testimony on Psychological Injury: Procedural and Evidentiary Issues
  • Forensic Psychology, Psychological Injuries and the Law
  • Psychological Injury and Law: Assumptions and Foundations, Controversies and Myths, Needed Directions
  • Posttraumatic Stress Disorder: Current Concepts and Controversies
That final article, by Steven Taylor and Gordon Asmundson, provides a concise summary of PTSD research, with a focus on malingering in the forensic context.

Happy downloading!

The Jury Expert

Also new online is the American Society of Trial Consultants' The Jury Expert. Now in its second issue, the e-journal "features articles by academics, researchers, popular writers and speakers, and trial consultants. The focus is on practical tips for litigators and
on the accurate interpretation and translation of social sciences
theory into litigation practice."

The current issue includes articles on case themes, witness preparation, an overview of eyewitness research, tips for using RSS feeds, a new form of forensic animation, and the use of religion research in legal cases.

The Jury Expert will publish six times per year and - best of all - subscriptions are free.

Check it out here.

Monday, August 4, 2008

The evidence does not lie – or does it?

Will exposes signal end to blind reliance on "science"?

CSI trumpets the notion that evidence does not lie.

But critical news stories may be signaling the end of uncritical evidence of this dubious tenet.

Take this introduction to a 2007 Denver Post series, “Trashing the Truth”:
Virtually every night on prime time, TV detectives pluck tiny samples of DNA from clothes, carpets, and even car tires, test it and nail the bad guy, all in one episode. But in real life, DNA samples … get mishandled with impunity…. Law enforcers have won passage of laws letting them off the hook for perjuring evidence on which people's lives and liberties hinge. The result: Killers walk…. These are the stories you won’t see on CSI. In cases around the country, the truth is being trashed.
As the Post series meticulously documents, contrary to the portrayals on fictional crime dramas and by expert witnesses for the prosecution, evidence rooms are characterized by "darkness and disorder" and the accidental and intentional destruction of tens of thousands of potentially important DNA samples.

Forbes magazine recently echoed the alarm, in an opinion piece "What's wrong with CSI: Forensic evidence doesn’t always tell the truth" by Roger Koppl, an economics professor and director of the Institute for Forensic Science Administration:
Forensic evidence is foolproof, right? It's how those clever cops on CSI always catch the killer. DNA evidence springs innocent men from prison. Fingerprints nab the bad guys.

If only forensics were that reliable. Instead, to judge by the most comprehensive study on the reliability of forensic evidence to date, the error rate is more than 10% in five categories of analysis, including fiber, paint and body fluids. (Meaning: When the expert says specimen X matches source Y, there's a 10% probability he's wrong.)
Even Government Technology, hardly a muckracking journal, is calling for reform. GT's July 9 story, "Police Crime Labs Struggle with Funding, Training and Bias Issues," focuses on the Houston crime lab, where an investigation found "hundreds of cases where incompetence, inadequate training and resources, lack of guidance and even intentional bias on the part of a crime lab - which is not independent from the HPD - contributed to mistakes."

The problems "may be inherent in crime labs across the country," the GT article concludes, citing reports of DNA testing errors nationwide - in Washington, North Carolina, California, Minnesota, Pennsylvania and Nevada.

Problems obvious

When a TV station in Houston looked into that city's crime lab operations back in 2002, the problems were obvious to an independent forensic expert:

"They weren't running proper scientific controls. They were giving misleading testimony. They were computing their statistics incorrectly - in a way that was biased against the accused in many cases,” said forensic expert William Thompson of UC Irvine.

Errors favor prosecution

Most troublingly, the errors are not random - they almost invariably favor the prosecution. Thompson identified a "team culture" mentality in the crime lab, a mentality that may lead technicians to bend the evidence against defendants in court.

Journalist Scott Henson at Grits for Breakfast has been keeping up with this issue for several years, publicizing not only DNA evidence scandals but also problems with other supposedly neutral scientific technologies in the criminal justice system. These include false-positive breathalyzer tests for drunk drivers and urinalyses that routinely send probationers and parolees back to jail.

Indeed, Henson says it was the 25% rate of false positives in breathalyzer tests that first turned his attention toward "the reality that accuracy appears optional in many forensic science endeavors, with error rates of 10% or more routinely accepted in a variety of forensic fields."

What’s the solution?

Most outsiders agree that a first step toward improving the abysmal state of scientific evidence collection and analysis is outside oversight.

Beyond that, Roger Koppl, the economics professor writing for Forbes, has some other interesting ideas, primary among them opening the labs to free market forces:
The core problem with the forensic system is monopoly. Once evidence goes to one lab, it is rarely examined by any other. That needs to change. Each jurisdiction should include several competing labs. Occasionally the same DNA evidence, for instance, could be sent to three different labs for analysis.

This procedure may seem like a waste. But such checks would save taxpayer money. Extra tests are inexpensive compared to the cost of error, including the cost of incarcerating the wrongfully convicted. A forthcoming study I wrote for the Independent Institute (a government-reform think tank) shows that independent triplicate fingerprint examinations in felony cases would not only eliminate most false convictions that result from fingerprint errors but also would reduce the cost of criminal justice if the false-positive error rate is more than 0.115%, or about one in a thousand.
Other reforms suggested by Koppl and others include making crime labs independent of law enforcement, requiring blind testing, and giving the defense the right to its own forensic experts:
When crime labs are part of the police department, some forensic experts make mistakes out of an unconscious desire to help their "clients," the police and prosecution. Independence and blind testing prevent that. Creating the right to a forensic expert for the defense would help restore the imbalance in scientific firepower that too often exists between prosecution and defense.
The Denver Post series, Trashing the Truth, includes the following segments:
  1. Bad faith difficult to prove: Through carelessness or by design, tiny biological samples holding crucial DNA fingerprints often disappear on authorities' watch. Innocent people languish in prison, and criminals walk free.
  2. Room for error in evidence vaults: In some evidence rooms, chaos and disorganization make searches futile. Others are purged of valuable DNA samples, leaving cases unsolvable.
  3. Missing rape kits foil justice: Rape kits routinely vanish, unfuriating victims and prosecutors alike. Even when evidence is intact, laws can keep suspects like William Harold Johnson walking free in our midst.
  4. 14 years later - Tell my story: Floyd Brown has an IQ in the 50s. Its authenticity in doubt, his confession to a 1993 murder has him locked up indefinitely in a North Carolina mental hospital. A bloodstained stick that could settle his innocence or guilt has vanished.

 
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