Monday, January 26, 2009

State psychologist gets 7-year prison term

Update on North Dakota child porn case

Those of you who followed the case I reported on in December 2007, involving the sexually violent predator evaluator who was addicted to child pornography, may be interested in the outcome:

Joseph Belanger, who ran North Dakota's Sexually Dangerous Individual (SDI) civil commitment program, has been sentenced to seven years in prison after pleading guilty to charges of receiving and possessing materials involving the sexual exploitation of minors.

The arrest of the state psychologist prompted a review of more than 100 cases in which he had opined that sex offenders were dangerous and should be civilly committed, and an appeal before the North Dakota Supreme Court.

An interesting but possible unanswerable question is whether Belanger's work in the field somehow triggered his interest in child pornography.

The Associated Press story is here.

Prior blog stories on this case:

Wednesday, January 21, 2009

Mental illness: The death penalty frontier

With juveniles and the mentally retarded off the list of those eligible to be executed, severe mental illness looms as the "next frontier" of death penalty jurisprudence, asserts Bruce J. Winick, therapeutic jurisprudence scholar and a law professor at the University of Miami School of Law:

The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence. This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana. The Article analyzes the application of this emerging approach in the context of severe mental illness. It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context. The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.

Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis. The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication. The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase. Future implications of the Court's emerging approach also are examined.
A pdf of the full paper is available for online download here.
Hat tip: Kirk Witherspoon

Wednesday, January 14, 2009

Insanity verdict for soldier with PTSD

Case heralded as landmark for traumatized veterans

Photos: Sargent Binkley before and after
In a potentially landmark case, a jury in the San Francisco Bay Area has acquitted a former Army captain who used a 9mm handgun to rob a pharmacy because he was addicted to painkillers.

The Santa Clara County jury found West Point graduate Sargent Binkley not guilty by reason of insanity after hearing testimony that he suffered from post-traumatic stress disorder as a result of his military experiences in Bosnia and Honduras. Binkley is still awaiting trial for a similar robbery in nearby San Mateo County.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. His father testified that he became addicted to morphine-based painkillers after dislocating his hip in Honduras while running away from an alcohol-fueled fight over a woman.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

Dr. Jeff Gould, originally appointed by the court in adjacent San Mateo County, testified for the prosecution that Binkley's PTSD did affect his judgment but did not render him insane.

Dr. Kenneth Seeman testified for the defense that Binkley manifested symptoms of psychosis, depression, suicidality, and anxiety in addition to PTSD and was incapable of knowing right from wrong.

Prosecutor Deborah Medved challenged Seeman on why he did not render any of these diagnoses in his original report, written a year prior to testimony. In his written report, according to news reports, Seeman opined that Binkley's insanity was due to his drug addiction. In California, addiction is barred as a basis for the legal defense of insanity. Seeman responded to the prosecutor’s challenge by saying his diagnoses had evolved over the course of his two subsequent evaluation sessions with Binkley.

In another unusual twist suggesting that the jury may have been motivated at least in part by sympathy for the defendant, the pharmacist whom Binkley robbed of Percocet testified for the defense.

The case has been the subject of web sites and petition drives pleading for leniency due to Binkley's status as a veteran. A group of military veterans had regularly attended Binkley’s court hearings. "It's a great day for our veterans who have come back suffering from PTSD to now know they can receive justice," said one, Vietnam veteran and West Point graduate Alan Lubke.

Binkley had faced a minimum term of 12 years in prison. Now, he will undergo a mental health evaluation aimed at determining whether he should be psychiatrically hospitalized or ordered into outpatient treatment.

"I am expecting the doctors will determine he has regained his sanity and is no longer a danger," said defense attorney Chuck Smith. "I hope he will be released relatively soon, like within the next six months."

San Jose Mercury News coverage is here. San Francisco Chronicle coverage is here.

Related resources:

Report: Online threat to children overblown

The Internet may not be such a dangerous place for children after all.

A task force created by 49 state attorneys general to look into the problem of sexual solicitation of children online has concluded that there really is not a significant problem.

The findings ran counter to popular perceptions of online dangers as reinforced by depictions in the news media like NBC's "To Catch a Predator" series….

The panel, the Internet Safety Technical Task Force, was charged with examining the extent of the threats children face on social networks like MySpace and Facebook, amid widespread fears that adults were using these popular Web sites to deceive and prey on children.

But the report concluded that the problem of bullying among children, both online and offline, poses a far more serious challenge than the sexual solicitation of minors by adults.

So reports Brad Stone in today's New York Times. The news report is here. The full report is here.
Related articles from this blog:
Hat tip: Jane

Tuesday, January 13, 2009

Stalking: New crime victimization survey

The U.S. Justice Department's Bureau of Justice Statistics has released the largest-ever study of stalking, a category of crime that was not previously included in the National Crime Victimization Survey. According to the study, intended to document the scope and types of stalking, 3.4 million Americans identified themselves as victims of stalking during a recent one-year period. Most stalkers knew their victims, and the most frequent victims -- not surprisingly -- were young women.

Tomorrow’s USA Today has the story.

Sunday, January 11, 2009

Epidemic of nomadic sex offenders worsens

New laws not exactly a blueprint for public safety

It's happening all around the country, from Georgia to Florida to Washington. But nowhere is the problem more acute than in California, which has seen an 800 percent increase in the past two years. As Karl Vick of the Washington Post reports:
LOS ANGELES -- Upon release from state custody, Ross Wollschlager began an intensive search for a home, one that abided by the restrictions imposed on convicted sex offenders in California -- and, in various versions, by about 30 other states. Obliged by law to return to Ventura County, the convicted rapist was forbidden to sleep within 2,000 feet of a school or a park.

He ended up in a tent on the dry bed of the Ventura River.

Strict new laws aimed at keeping track of sex offenders after they leave prison appear to be having the opposite effect, encouraging homelessness in a population believed more likely to re-offend if cast into the streets without structure or family support, say prosecutors, police, parole officials and experts on managing sex offenders.

The issue is starkest in California, where the number of sex crime parolees registering as transient has jumped more than 800 percent since Proposition 83 was passed in November 2006. The "Jessica's Law" initiative imposed strict residency rules and called for all offenders to wear Global Positioning System bracelets for the rest of their lives.

Named for a 9-year-old Florida girl raped and murdered by a convicted sex offender, the provision passed by a wide margin that reflected the powerful public emotion that experts and law enforcement officials say in this instance trumped sound policy.

"The public definitely was sold a bill of goods on this one," said Detective Diane Webb, supervisor of the Los Angeles Police Department unit that tracks 5,000 sex offenders in Los Angeles County. "Unfortunately, it bodes well for politicians to support it because the public does have this false sense of security that this is somehow protecting them when it's not."

Locating legal housing for offenders has become so difficult in urban California that when parole officers find an apartment building beyond the exclusion zones, they often pile in as many offenders as the landlord will accept. When neighbors notice, the cluster spurs protests that prompt lawmakers to pass even tighter exclusion zones as Proposition 83 allows.

The informative Post story continues here.

Previous related posts:

Friday, January 9, 2009

Eye-plucking prisoner competent and sane

Andre Thomas plucked out his right eye in 2004. Now, he has plucked out his left.

The Texas death row inmate with a history of mental problems killed his wife and their two children and ripped out their hearts. He then walked into a police station and confessed.

None of that sounds all that sane. Indeed, Thomas has been diagnosed with schizophrenia and suffers from psychotic delusions and a preoccupation with death, religion, and suicide, sources say.

Nonetheless, he was found competent to stand trial, convicted, and sentenced to die for the death of his 13-month-old daughter.

The self-mutilation is unlikely to have any effect on his appeals, but at least they got him transferred to a psychiatric hospital for treatment.

The story is here.

Court strikes down federal civil commitment law

In a big blow to the federal Adam Walsh Act, an appellate court has upheld a challenge to the civil commitment portion of the law.

The opinion by the Fourth Circuit Court of Appeals affirms a lower court ruling in the case, U.S. v. Comstock, which I blogged about back in September of 2007.

The challenge was brought by the North Carolina Federal Public Defenders on behalf of Graydon Comstock, who received a 37-month prison sentence for receiving pornography via computer. When his term ended two years ago, the government certified him as a "sexually dangerous person" and kept him in civil confinement, where he has remained ever since. The ruling will affect at least three other men also held at the Federal Correctional Institution at Butner, North Carolina.

This was the first appellate court to address the constitutionality of the civil commitment portion of the Adam Walsh Child Protection and Safety Act of 2006, which has divided trial courts around the nation.

The court held that the civil commitment portion of the law exceeds federal authority:

The Constitution does not empower the federal government to confine a person solely because of asserted 'sexual dangerousness' when the Government need not allege (let alone prove) that this 'dangerousness' violates any federal law….

Consistent with its role in maintaining a penal system, the federal government possesses broad powers over persons during their prison sentences. But these powers are far removed from the indefinite civil commitment of persons after the expiration of their prison terms, based solely on possible future actions that the federal government lacks power to regulate directly.
The federal government, the court wrote, does not have the power to "regulate all sexual violence, including acts which violate no criminal statute."
Congress’s perceived need for the sort of civil commitment statute at issue here does not create constitutional power where none exists. Congress must instead seek alternative, constitutional means of achieving what may well be commendable objectives.
The court noted that if federal authorities have "serious concerns" about a federal prisoner's future dangerousness, they may notify state authorities, "who may use their well-settled police and parens patriae powers to pursue civil commitment under state law." Federal authorities may even financially underwrite such actions, the court said.

At least 20 states have enacted such civil commitment procedures for Sexually Violent Predators over the past two decades.

In upholding the district court's 2007 opinion, the circuit court did not specifically affirm a second reason given by the lower court for striking down the civil commitment portion of the Adam Walsh law. The lower court had held that the legal standard of "clear and convincing" proof was too low, and that due process required that danger be proven "beyond a reasonable doubt" before a person was preemptively detained. By avoiding that issue, the circuit court appears not to disturb laws in some states that require a lower standard of proof.

Further resources:

4th Circuit Opinion, U.S. v. Graydon Earl Comstock Jr.

Federal court strikes down portion of Adam Walsh Act (blog post of Sept. 10, 2007)

"4th Circuit Got it Right in Comstock," analysis by law professor Corey Rayburn Yung

Wednesday, January 7, 2009

Breakdown in Lone Star death machine?

Drop in Texas executions has folks wondering

Texas is the death penalty capital of the United States, and perhaps the world. So a decline in both executions and new death sentences there has some wondering whether this is the beginning of the end for capital punishment in our prison nation.

"I think we are seeing the leading edge of that national transformation,” said Rob Owen, co-director of the Capital Punishment Clinic at the University of Texas at Austin.

Whoa, Cowboy, says Michael Casillas, chief prosecutor of the appellate division of the Dallas County district attorney's office. Not so fast: "Things are, even in the criminal justice system, kind of cyclical."

Most startling of last year's statistics were those coming out of Harris County (Houston), the epicenter of the death penalty capital. The year before last, that one COUNTY alone had surpassed the annual execution rate for the next-highest STATE (Virginia). But last year, that usually prolific killer did not sentence a single person to die. Not even an illegal immigrant who went to trial for killing a police officer!

As the Dallas Morning News reports, a number of factors may be contributing to the decline. These include:
  • A big drop in the murder rate
  • Better quality legal representation
  • A wave of exonerations
  • The high costs of capital case prosecution
  • The availability of life without parole as an option
Or perhaps Harris County is just looking over toward neighboring Dallas County, usually number two in executions, where maverick prosecutor Craig Watkins (whom I featured on this blog last September) has called a halt to all executions pending a thorough review.

In a sign of the times in which Barack Obama could be elected as President, Watkins' crusade has earned him the honorary title of "Texan of the Year" from the Dallas Morning News:
He is actively pursuing a range of reforms that would protect the wrongly accused and appropriately punish the guilty. Not only does he want to clear the innocent, but he also hopes to extend the statute of limitations in DNA cases to ensure that the right person does the time.

He has reinvented his office by creating a conviction integrity unit, an operation that has freed prisoners who were wrongly locked up for murder, robbery and rape. Not content to just notch wins in the courtroom, Mr. Watkins deserves credit for vigilantly pursuing justice – a distinction with an important difference.

Dallas County leads the country in DNA exonerations (19 and counting), and Mr. Watkins has seized upon the attendant acclaim, taking his fight for social justice to statewide and national stages. In his sudden fame, he sees an opportunity to change the way district attorneys do business.
Further resources:

Texas Department of Criminal Justice schedule of executions

Execution statistics

Craig Watkins: Texan of the Year

Is the death penalty a dying breed? (Dallas Morning News)

Hang 'em high county to reverse course (blog post, September 2008)

Tuesday, January 6, 2009

Prosecutor will not use 9-year-old's confession

The 4-year-old boy making news today for shooting his babysitter harkens back to the 9-year-old Arizona boy who shot his father and another man to death back in November. In both cases, competency will be a central issue. Although the 4-year-old has not been arrested and in any event is highly unlikely to ever be found competent to stand trial, the 9-year-old's case is still undecided.

That earlier case was back in court yet again today, in one in a series of developments of interest to forensic psychologists.

St. Johns, Arizona - site of the November shooting

At this latest hearing, prosecutors agreed not to use the boy's videotaped statement to police. The defense had argued that the boy was illegally questioned without an attorney or a family member present; after all, the typical 9-year-old child is unlikely to grasp the implications of the Miranda warnings and intelligently waive his rights.

While in custody after the Nov. 5 killings, the boy also told a Child Protective Services worker that he had decided his thousandth spanking would be his last, according to police reports. Prosecutors agreed to suppress that statement as well. Prosecutors said they reserve the right to use either or both statements if the boy testifies in contradiction to them.

However, whether the unidentified boy will ever face trial is unknown, as the judge has not yet ruled on his competency. A psychologist who examined the boy for the defense opined that he is incompetent to stand trial due to his age and intelligence, and that he is unlikely to become competent within the time allowed by law.

If a judge finds the boy is incompetent and unable to be restored to competency within 240 days, the case could be dropped with prejudice, meaning it could not be refiled. If the boy is found fit to stand trial, he will likely face a bench trial in front of Apache County Superior Court Judge Michael Roca.

He also has been examined by a prosecution expert, but those results haven't yet been disclosed.

The next hearing in the case is scheduled for Jan. 21. I'm sure residents of St. Johns wish it was all over, as the town has been besieged by the media. Now, with the even more sensational case of the 4-year-old, whose babysitter allegedly stepped on his foot, maybe the camera crews will pack up and head for Jackson, Ohio instead.

Related background materials:

Videotape of confession (partial)

St. Johns, Arizona police report (pdf)

Monday, January 5, 2009

New Year’s Briefs – Part I

Signs of the times?

Happy New Year to all of my loyal subscribers and readers. As usual, a lot is going on and I have had little time to blog. But here are a few highlights, with more to follow.


California strikes draconian sex offender sentence

Imagine serving the rest of your life in prison for missing a bureaucratic deadline. That's what happened to Cecilio Gonzalez under California's three-strikes sentencing law, when he was three months late one year on his annual sex offender registration with the police. Registration infractions usually carry a maximum sentence of three years, and the prosecutor had originally offered Gonzalez a two-year term. He ended up with life because he decided to take the case to trial, acting as his own attorney. That's cruel and unusual punishment, a California appellate court ruled, because the punishment was grossly disproportionate to his "entirely passive, harmless and technical violation of the registration law." It is unclear what effect the ruling may have on other 3-strikes cases, given that California's Supreme Court has declined two challenges by men whose third strikes were shoplifting - in one case videotapes and in another case golf clubs. The L.A. Times has the full story.

Spotlight on violent vets

Veterans of Iraq and Afghanistan who come home and wreak havoc on their communities are a topic of mounting alarm around the United States. In Fort Carson, Colorado, for example, nine combat soldiers have been accused of killing people in the past three years; sexual assault and domestic violence cases are also up sharply. The New York Times has a follow-up story to its initial coverage a year ago, which traced many homicides by combat veterans to war-related trauma and the stress of deployment. As the Times notes, even military leaders are starting to acknowledge that "multiple deployments strain soldiers and families, and can increase the likelihood of problems like excessive drinking, marital strife and post-traumatic stress disorder."

Judges have also noticed the upsurge and in several jurisdictions around the country they are joining with local prosecutors, defense attorneys, and U.S. Department of Veterans Affairs officials to set up special veterans-only courts. The judges say trauma-related stress, brain injuries, and substance abuse are contributing to the rash of crimes. They are hoping the innovative courts can help rehabilitate veterans and avoid convictions that might cost veterans their future military benefits, according to a report in the National Law Journal.

Renewed calls for prison reform

With more than 1 in 100 Americans now behind bars, there are additional signs that some policy makers are getting fed up. Driving the trend may be the current economic downturn. As blog guest writer Eric Lotke pointed out last month, and as more and
more people are finally noticing, the money being spent on prisons could be better spent on social programs. As the Virginian-Pilot editorialized:
In prosperous times, state and federal lawmakers wanting to polish their get-tough-on-crime image pass bills putting more people in prison and keeping them longer for offenses such as drunken driving, drug possession and dog fighting. When the economy tanks, those mandatory sentencing laws stay in place, and budget cuts instead dig into drug treatment and job-training programs.
Senator Jim Webb of Virginia is getting quite a bit of ink in his vigorous calls for prison reform, and editorials are urging other members of Congress to "show the same courage and rally to the cause."

Perhaps with Barack Obama in the White House, the time will be ripe to reverse course. As we forensic psychologists know, this would be good news for the mentally ill, who make up a large proportion of the millions of Americans behind bars. Indeed, a new study coming out of Texas shows that mentally ill prisoners are not only more likely than others to go to prison, but they are far more likely to recidivate. This "revolving-door" phenomenon owes to a lack of community treatment options, massive downsizing of state hospitals, and a legal system that virtually ignores psychiatric issues. As a result, "many people with serious mental illness move continuously between crisis hospitalization, homelessness, and the criminal justice system," noted the authors of the study, published in this month's American Journal of Psychiatry. The study, "Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door," is available upon request from lead researcher Jacques Baillargeon of the Department of Preventive Medicine and Community Health at the University of Texas.

 
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