October 9, 2009

Panel: Solitary confinement as human rights abuse

For you readers on the West Coast, Stanford Law School is holding a provocative conference on Oct. 16-17 entitled "Shaking the Foundations: The West Coast Conference on Progressive Lawyering." One Saturday afternoon panel caught my eye, both because of the topic and the speakers:

Solitary Confinement in America's Prisons: A Human Rights Abuse?

Having worked in a segregation housing unit, I have seen the mental health consequences of prolonged solitary confinement, especially on the psyches of prisoners who are already mentally ill, up close and personal. Out of sight, out of mind -- many in the public are unaware of the extent to which solitary confinement is being used routinely in prisons these days. So, it's good to see this topic getting some critical attention.

The speakers are impressive:
  • Joan Petersilia, one of the foremost prison researchers around and now a law professor at Stanford
  • Terry Kupers, a forensic psychiatrist and professor at the Wright Institute who wrote Prison Madness, a book about incarceration and mental health
  • J. Clark Kelso, Professor of Law & Senior Counsel to the Capital Center for Government Law and Policy, University of the Pacific, McGeorge School of Law
Here is the panel description:
One in one hundred Americans are currently incarcerated, and a growing number of those incarcerated are held in conditions of solitary confinement. In Supermax prisons, administrative segregation units, and even Guantanamo Bay, prisoners spend 22 or 23 hours of every day in isolation, for weeks, months or years. This panel will discuss the expanded use of solitary confinement in the American prison system and its effects on prisoners' health and recidivism. Through this discussion, panelists will ask: Is the use of solitary confinement cruel and unusual punishment? Is it a human rights violation? And if so, what can be done?
The presentation is Saturday, October 17, from 3:45-5:15 p.m. More information, registration, and directions are HERE.

October 8, 2009

Equality in justice: Cognitive dissonance and fame

Having blogged about both the Polanski case and that of David Mitchell (Susan Smart) in Utah, I was intrigued to read this sociological analysis of the divergent media coverage of the two cases, over at one of my favorite blogs, Everyday Sociology. It's always fascinating to analyze the unstated assumptions and biases in media coverage of legal cases, assumptions that both reflect and reinforce public attitudes.

Guest essay by Sally Raskoff*

Two cases involving the rape of a young girl have been in the news: one involving Roman Polanski's arrest and the other about Elizabeth Smart's court testimony. While these cases have the "adult male-minor female" rapes as their basic similarity, most other things have been very different, especially in news reports and public reactions.

The "Polanski" case actually involves this Academy Award winning director's flight from sentencing after his guilty plea and conviction in the rape of the 13-year-old girl. After 32 years, he was arrested recently in Switzerland to await extradition back to the United States for sentencing and additional charges of evading justice. The news reports focus on what a terrible time he's had in life, from his family’s losses in the Holocaust to the murder of his pregnant wife by the Manson "family", and on the fabulous movies he's produced since living in Europe after he fled Los Angeles.

Until recently, little had been mentioned of the rape survivor, who is now an adult woman. A recent article fully identifies her and discusses the apparent civil settlement in which Polanski allegedly was to pay her half a million dollars, although no public documentation can confirm that she received those funds. Her lawyers' requests to the court for him to pay the settlement past its due date cease about the time she wrote a public letter stating that she thinks he should be able to return to the country, ostensibly to attend the Academy Awards show when he was nominated in 2002.

The "Smart" case involves the nine month long abduction of Utahan Elizabeth Smart. Her alleged kidnapper, Brian David Mitchell, subjected her to a "plural marriage" ceremony and according to Smart repeatedly raped her. She is now 21 and gave her testimony at the mental competency hearing of Mitchell just before leaving on her religious mission to France. Mitchell is cast as a religious fanatic who told her that he was doing what the lord wanted him to do. As of this writing, he has not yet been convicted of the crime as it has not yet been established if he is mentally competent to stand trial.

Let's look at these cases sociologically.

Note the language used in the reporting of each case. Is it clear who the victim is in each case?

Many news reports and editorials about the Polanski case lament his treatment by the justice system, and some even suggest that he is the victim. Some articles discuss the cost of bringing him back to court, which makes the taxpayers the victim. Some articles focus on how the rape survivor, the actual victim, said that he should be free to live his life and if she says that, well, we should let her decide, which reinforces the idea that he is the victim.

The Smart articles focus on her as the rape survivor and certainly do not cast Mitchell as a victim. They cast him as crazy or as a crafty rapist who acts like a religious fanatic so as not to take the blame for his actions.

The headlines use "Polanski" and "Smart", not "Mitchell" or "Geimer."

Polanski's name is certainly a familiar one since he is famous. Smart has become famous as an icon of parental fear -- the girl who was abducted from her bedroom at night. As is typical in rape cases, Samantha Geimer's name was withheld when she was a minor yet she herself went public when she wrote the letter in support of Polanski. Mitchell is not a name familiar to people even though most know that some man abducted and raped Elizabeth Smart.

From this point forward, I will refer to the "Smart" case as the Mitchell case.

Note the basic features of each case: an adult man raped a young girl.

Is this contested in either case? Yes and no. Mitchell has been in a mental institution since his arrest in 2003 and the recent hearing was to establish whether or not he could stand trial. Polanski testified that he did the crime (although in his plea agreement he plead guilty to "unlawful sex with a minor") and his latest issues revolve around his flight from the justice system to escape sentencing and serving more time. Mitchell has not been convicted yet Polanski has. However, in the news articles, Polanski's guilt is downplayed and Mitchell's is assumed.

Note the social class differences in each case.

While Polanski is clearly a member of the upper socioeconomic strata, Mitchell and his co-defendant wife are in the lower strata. Polanski was able to flee to Europe, continuing to make his films and generate his substantial income. While the social class status of Ms. Geimer is not fully apparent, it is likely that she and her family live a middle class life, even if she did not receive the settlement. The Smart family are firmly in the upper middle class of suburban Salt Lake City, while the Mitchell couple were basically homeless and firmly ensconced in the lower echelon of society’s social class levels.

Social class alone can explain much of the dynamics of these cases. Those with the higher class status tend to gain more favorable coverage in the press. Polanski received more favorable coverage than his victim did, and Smart certainly received more media attention than her abductor did.

One might hope that people who have been victimized would receive more careful and supportive press coverage, this certainly didn't happen in the Polanski case.

Note the issues of fame and social power in each case.

Social power derives from social class but also from fame. Smart was featured on America's Most Wanted and has spoken in public and to Congress about sexual predator issues and legislation.

Most particularly in the Polanski case, fame insulates the perpetrator from paying his full debt to the justice system. So much so that some even call into question his guilt even though that had been firmly established in court. (See Harvey Weinstein's quote about the "so-called crime" in the Los Angeles Times). Reaction to the Polanski case avoids discussion of his guilt in this crime of rape and focuses on other issues that are not salient. Consider how Mr. Weinstein might react if a female family member of his had been the victim in this case - might he advocate the release of that person as he does Polanski?

The exploitation of women in the entertainment industry is a related topic -- some may not see why having sex with someone at a photo shoot was wrong -- even if she was underage and under the influence of alcohol and drugs. Some also point to the mother who dropped her off at the house where the rape took place as culpable.

However, only the rapist is responsible for the rape, no matter what bad decisions others might have made.

What isn't being talked about?

In the Polanski case, the exploitation of women is not a topic that many are choosing to discuss. How many other girls and women have been raped by people with power over them? We’ll never know, especially if those powerful people are not held to the legal standards that govern our society.

Absent from the discussion of the Mitchell case are the cultural underpinnings of how religion played a role in the abduction and rapes. The "plural marriage" as it was called when she was first rescued, was code for rape yet the word "rape" was not uttered for some time after she was freed. That this particular crime took place in a specific religious and cultural environment with a history of patriarchy (and, decades ago, of plural marriage) isn’t a coincidence. Elizabeth Smart was raised, as most of us are, in a culture of male dominance and female obedience.

It is also likely that Smart, like Patty Hearst and many other children abducted by sexual predators, was experiencing something akin to the Stockholm Syndrome. When she was first discovered, she did not readily identify herself. When held long enough under certain circumstances, people may "go along" with their captors and not escape when they might have had the chance.

So, how can we explain the different ways that we are reacting to these cases?

While both cases have at their core the rape of a 13- or 14-year-old girl by an adult man, public discussion and reaction to these cases is notably different. Social class, power, and fame all have their influences yet cognitive dissonance is also taking place.

Cognitive dissonance occurs when people have to reconcile two conflicting ideas at the same time. We often try and alter one of the ideas to be consistent with the other. For instance, people generally want to like and respect people with fame and power. When those people do bad things, we can react in many different ways but in the Polanski case, so many years after the event, some want to believe he paid his debt to society by having lived such a troubled life. Thinking of someone as both a good person and a rapist is very difficult to reconcile. Normally we decide that someone who commits rape is no longer a good person. In this example, many people, especially many in the entertainment industry, have chosen to downplay his actions to maintain the idea that their conflicting image of him as a good person.

But the justice system doesn’t see it this way, and after all, time spent living in a Swiss chalet isn't the same as "doing time." How do you think we would talk about the case if Elizabeth Smart's alleged rapist had fled the country for more than three decades and evaded justice?

*Reproduced with the written permission of the author. Dr. Raskoff is Chair of Sociology and Ethnic Studies at Los Angeles Valley College.

October 7, 2009

Mark your calendars: RSVP training Oct. 22

Just a quick reminder for you sex offender evaluators:

On Thursday, October 22, Stephen Hart of the Mental Health, Law, and Policy Institute at Simon Fraser University in Canada will be in Oregon, giving an all-day training on his Risk for Sexual Violence Protocol (RSVP), a descendant of the Sexual Violence Risk-20 instrument. The training, sponsored by the Northwest Forensic Institute, will be held at Portland State University in downtown Portland.

The RSVP uses structured professional judgment (SPJ) to assess sex offender risk. Preliminary research suggests excellent interrater reliability, concurrent validity with actuarial tools, and moderate predictive validity about equivalent to that of actuarial tools. An advantage over the actuarials, however, is its risk management focus. Evaluators derive individually based risk scenarios and then create strategies to manage identified risks.

This promises to be a good training. Dr. Hart is a great presenter, not to mention an internationally renowned researcher, forensic psychologist and past president of the American Psychology-Law Society.

The cost is $175 (only $75 for students), and you can get more information and register online.

October 5, 2009

ABF doctoral fellowship opportunity

The American Bar Foundation is recruiting fellows for its Doctoral Fellowships in Law and Social Science for the 2010-2011 academic year. The goal is to "develop the next generation of scholars in the field of law and social science" by supporting "original and significant research on law, the legal profession, and legal institutions." The stipend is $27,000 plus expenses.

Eligible applicants must have completed all doctoral requirements except the dissertation by September 1, 2010. Doctoral and proposed research must be in the area of sociolegal studies or in social scientific approaches to law, the legal profession, or legal institutions. The research must address significant issues in the field and show promise of a major contribution to social scientific understanding of law and legal process. Minority students are especially encouraged to apply.

The Foundation has other fellowship and student opportunities as well, including the Law and Social Science Dissertation Fellowship and Mentoring Program, focusing on the study of law and inequality, and the Summer Research Diversity Program.

For more details, visit the ABF website's fellowships page.

October 4, 2009

SVP industry sneak peek: Problems in Actuaryland

You psychologists and attorneys working in the trenches of Sexually Violent Predator (SVP) litigation will be interested in the controversy over the Static-99 and its progeny, the Static-2002, that erupted at the annual conference of the Association for the Treatment of Sexual Abusers (ATSA) in Dallas.

By way of background, the Static-99 is -- as its website advertises -- "the most widely used sex offender risk assessment instrument in the world, and is extensively used in the United States, Canada, the United Kingdom, Australia, and many European nations." Government evaluators rely on it in certifying individuals as dangerous enough to merit civil commitment on the basis of possible future offending. Some states, including California, New York, and Texas, mandate its use in certain forensic evaluations of sex offenders.


Underlying the instrument's popularity is its scientific veneer, based on two simple-sounding premises:

1. that it represents a "pure actuarial approach" to risk, and

2. that such an approach is inherently superior to "clinical judgment."

But, as with so many things that seem deceptively simple, it turns out that neither premise is entirely accurate.

Why the actuarial approach?

An actuarial method is a statistical algorithm in which variables are combined to predict the likelihood of a given outcome. For example, actuarial formulas determine how much you will pay for automobile or homeowners' insurance by combining relevant factors specific to you (e.g., your age, gender, claims history) and your context (e.g., type of car, local crime rates, regional disaster patterns).

The idea of using such a mechanical approach in clinical predictions traces back to Paul Meehl's famous 1954 monograph. Reviewing about 20 studies of event forecasting, from academic success to future violence, Meehl found that simple statistical models usually did better than human judges at predicting outcomes. Over the ensuing half-century, Meehl's work has attained mythical stature as evidence that clinical judgment is inherently unreliable.

But, as preeminent scholars Daniel Kahneman (a Nobel laureate) and Gary Klein point out in the current issue of the American Psychologist, "this conclusion is unwarranted." Algorithms outperform human experts only under certain conditions, that is, when environmental conditions are highly complex and future outcomes uncertain. Algorithms work better in these limited circumstances mainly because they eliminate inconsistency. In contrast, in more "high-validity," or predictable, environments, experienced and skillful judges often do better than mechanical predictions:
Where simple and valid cues exist, humans will find them if they are given sufficient experience and enough rapid feedback to do so -- except in the environments ... labeled 'wicked,' in which the feedback is misleading.
Even more crucially, in reference to using the Static-99 to predict relatively rare events such as sex offender recidivism, Meehl never claimed that statistical models were especially accurate. He just said they were wrong a bit less often than clinical judgments. Predicting future human behavior will never be simple because -- unlike machines -- humans can decide to change course.

Predictive accuracy

Putting it generously, the Static-99 is considered only "moderately" more accurate than chance, or the flip of a coin, at predicting whether or not a convicted sex offender will commit a new sex crime. (For you more statistically minded folks, its accuracy as measured by the "Area Under the Curve," or AUC statistic, ranges from about .65 to .71, which in medical research is classified as poor.)

The largest cross-validation study to date -- forthcoming in the respected journal Psychology, Public Policy, & Law -- paints a bleaker picture of the Static-99's predictive accuracy in a setting other than that in which it was normed. In the study of its use with almost 2,000 Texas offenders, the researchers found its performance may be "poorer than often assumed." More worrisomely from the perspective of individual liberties, both the Static-99 and a sister actuarial, the MnSOST-R, tend to overestimate risk. The study found that three basic offender characteristics -- age at release, number of prior arrests, and type of release (unconditional versus supervised) -- often predicted recidivism as well as, or even better than, the actuarials. The study's other take-home message is that every jurisdiction that uses the Static-99 (or any similar tool) needs to do local studies to see if it really works. That is, even if it had some validity in predicting the behavior of offenders in faraway times and/or faraway places, does it help make accurate predictions in the here and now?

Recent controversies

Even before this week's controversy, the Static-99 had seen its share of disputation. At last year's ATSA conference, the developers conceded that the old risk estimates, in use since the instrument was developed in 1999, are now invalid. They announced new estimates that significantly lower average risks. Whereas some in the SVP industry had insisted for years that you do not need to know the base rates of offending in order to accurately predict risk, the latest risk estimates -- likely reflective of the dramatic decline in sex offending in recent decades -- appear to validate the concerns of psychologists such as Rich Wollert who have long argued that consideration of population-specific base rates is essential to accurately predicting an individual offender's risk.

In another change presented at the ATSA conference, the developers conceded that an offender's current age is critical to estimating his risk, as critics have long insisted. Accordingly, a new age-at-release item has been added to the instrument. The new item will benefit older offenders, and provide fertile ground for appeals by older men who were committed under SVP laws using now-obsolete Static-99 risk calculations. Certain younger offenders, however, will see their risk estimates rise.

Clinical judgment introduced

In what may prove to be the instrument's most calamitous quagmire, the developers instructed evaluators at a training session on Wednesday to choose one of four reference groups in order to determine an individual sex offender's risk. The groups are labeled as follows:
  • routine sample
  • non-routine sample
  • pre-selected for treatment need
  • pre-selected for high risk/need
The scientific rationale to justify use of these smaller data sets as comparison groups is not clear at this time, little guidance is being given on how to reliably select the proper reference group, and some worry that criterion contamination may invalidate this procedure. In the highly polarized SVP arena, this new system will give prosecution-oriented evaluators a quick and easy way to elevate their estimate of an offender's risk by comparing the individual to the highest-risk group rather than to the lower recidivism figures for sex offenders as a whole. This, in turn, will create at least a strong appearance of bias.

Thus, this new procedure will introduce a large element of clinical judgment into a procedure whose very existence is predicated on doing away with such subjectivity. There is also a very real danger that evaluators will be overconfident in their judgments. Although truly skilled experts know when and what they don’t know, as Kahneman and Klein remind us:
    Nonexperts (whether or not they think they are) certainly do not know when they don't know. Subjective confidence is therefore an unreliable indication of the validity of intuitive judgments and decisions.
With the limited information available at the time, it is not surprising that some state legislatures chose to mandate the use of the Static-99 and related actuarial tools in civil commitment proceedings. After all, the use of mechanical or statistical procedures can reduce inconsistency and thereby limit the role of bias, prejudice, and illusory correlation in decision-making. This is especially essential in an emotionally charged arena like the sex offender civil commitment industry.

But if, as some suspect, the actuarials' poor predictive validity owes primarily to the low base rates of recidivism among convicted sex offenders, then reliance on any actuarial device may have limited utility in the real world. People have the capacity to change, and the less likely an event is to occur, the harder it is to accurately predict. In other words, out of 100 convicted sex offenders standing in the middle of a field, it is very hard to accurately pick out those five or ten who will be rearrested for another sex crime in the next five years.

Unfortunately, with its modest accuracy at best, its complex statistical language and, now, its injection of clinical judgment into a supposedly actuarial calculation, the Static-99 also has the potential to create confusion and lend an aura of scientific certitude above and beyond what the state of the science merits.

The new scoring information is slated to appear on the Static-99 website on Monday (October 5).

Related resource: Ethical and practical concerns regarding the current status of sex offender risk assessment, Douglas P. Boer, Sexual Offender Treatment (2008)


Photo credit: Chip 2904 (Creative Commons license).
Hat tip to colleagues at the ATSA conference who contributed to this report.

October 1, 2009

Elizabeth Smart testifies at competency hearing

Kidnap victim Elizabeth Smart provided dramatic testimony today in David Mitchell's long-anticipated competency-to-stand-trial hearing.

But Mitchell wasn't in the room to hear her. He was removed from the courtroom when he refused to stop singing a Mormon hymn, as he does whenever he comes to court.

Smart's testimony was ostensibly intended to establish that Mitchell was acting rationally in order to further his criminal conduct, rather than being motivated by religious delusions as the defense has maintained.

A "calm, poised, articulate" Smart testified that Mitchell was obsessed with sex and used religion to further his predatory goals. She described Mitchell as "evil, wicked, manipulative, sneaky, slimy, selfish, greedy."

But defense attorney Robert Steele said Smart's testimony hinted that Mitchell is delusional, according to coverage in the Salt Lake Tribune. Last week, he argued unsuccessfully that Smart should not be allowed to offer opinions about Mitchell's state of mind or motivations.

Mitchell has refused to submit to any psychological evaluations or diagnostic tests.

His wife and co-defendant, Wanda Barzee, has twice been found incompetent for trial and is undergoing forced treatment with antipsychotic medications. Her next competency hearing is scheduled for Oct. 23.

A transcript of Smart’s 100-minute testimony is online HERE.