Criminal Justice and Behavior: Free articles

During the month of May only, Sage Publications is offering free access to select articles from the 2009 volume of Criminal Justice and Behavior. Selections of potential interest to my readers include the following:

The Prediction of Violence in Adult Offenders: A Meta-Analytic Comparison of Instruments and Methods of Assessment
by Mary Ann Campbell, Sheila French and Paul Gendreau

Closing The Revolving Door? Substance Abuse Treatment as an Alternative to Traditional Sentencing for Drug-Dependent Offenders
by Tara D. Warner and John H. Kramer

Inferring Sexually Deviant Behavior from Corresponding Fantasies: The Role of Personality and Pornography Consumption
by Kevin M. Williams, Barry S. Cooper, Teresa M. Howell, John C. Yuille and Delroy L. Paulhus

Credit goes to Jarrod Steffan, a forensic and clinical psychologist in Wichita, Kansas who specializes in criminal forensic psychology, for alerting me to this special offer.

"Hebephilia: Quintessence of Diagnostic Pretextuality"

New from Behavioral Sciences & the Law ...

I never set out to become an expert in this terra incognita. But, alas, here I am. Despite my mixed feelings, I am excited to announce that Behavioral Sciences & the Law has just published my research article deconstructing this pseudoscientific construct. Here is the abstract:

Hebephilia is an archaic term used to describe adult sexual attraction to adolescents. Prior to the advent of contemporary sexually violent predator laws, the term was not found in any dictionary or formal diagnostic system. Overnight, it is on the fast track toward recognition as a psychiatric condition meriting inclusion in the upcoming fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. This article traces the sudden emergence and popularity of hebephilia to pressure from the legal arena and, specifically, to the legal mandate of a serious mental abnormality for civil commitment of sex offenders. Hebephilia is proposed as a quintessential example of pretextuality, in which special interests promote a pseudoscientific construct that furthers an implicit, instrumental goal. Inherent problems with the construct's reliability and validity are discussed. A warning is issued about unintended consequences if hebephilia or its relative, pedohebephilia, make their way into the DSM-5, due out in 2013.

After providing the history and scientific status of hebephilia, I conclude:

Significant unintended consequences are likely if novel syndromes of primary benefit to the sex offender commitment industry are incorporated into the upcoming edition of the DSM. First, at a time of mounting controversy over partisan influence and lack of scientific rigor in the DSM diagnostic system, critics will seize on this as a glaring example of arbitrary and unscientific use of psychiatric diagnosis in the service of a pragmatic goal. This could have the paradoxical effect of reducing the scientific credibility of the DSM and the fields of psychiatry and psychology more broadly. In the forensic arena, where the diagnosis will most often be invoked, it may paradoxically invigorate defense challenges on the grounds that psychiatry is being deployed in a pretextual manner. In the end, hebephilia will come to haunt not only those who are civilly committed on pretextual grounds, but the entire mental health field, for years to come.

Links to more articles on this topic can be found on my HEBEPHILIA RESOURCES PAGE; my blog essay from 2007 on the "Invasion of the Hebephile Hunters" is HERE.

Calif.: Custody evaluators facing lost immunity

Among forensic psychologists, child custody evaluators face the highest rate of licensure board complaints. The courts request their help in the most acrimonious parenting disputes, and it is easy to get caught in the crossfire. Even though 99 percent of all board complaints are ultimately dismissed, defending oneself is stressful, time-consuming, and expensive.

Over the past 20 years, aggrieved parents have deluged psychology licensure boards with frivolous, manipulative and mean-spirited complaints. Fearing that the onslaught would discourage professionals from agreeing to assist courts in high-conflict parenting cases, legislatures in many U.S. states have increased statutory protections. In the past decade, Florida and West Virginia passed immunity statutes for court-appointed evaluators. Colorado went even further, barring licensing board complaints over child custody evaluations, requiring that complainants instead take their claims back to the original trial court.

But legislation being proposed in California would turn in the opposite direction, dismantling quasi-judicial immunity protections for evaluators and other neutral professionals who assist the courts in parenting disputes. The current version of the proposed Assembly Bill 2475, heading to the state Assembly's Judiciary Committee on May 4, would add the following section (43.94) to California’s Civil Code:

"The doctrine of judicial immunity or quasi judicial immunity shall not apply to exonerate any private third party appointed by the court in an advisory capacity based on his or her professional expertise, who provides a report or findings to the Court in a proceeding under the Family Code, with the intention that the Court act in one way or another based on such report or findings, from liability for acts performed within the scope of his or her appointment in violation of laws, rules of court, or professional standards. This section shall apply to private individuals such as special masters, minor's counsel, investigators, therapists, evaluators, receivers, bankruptcy trustees, experts, factfinders, and other persons specifically appointed by the courts in an advisory capacity based on their professional training or expertise."

I was initially suspicious that perhaps the "Men's Rights Movement" had a hand, as this increasingly powerful international lobby is making a concerted effort to reform child custody laws to favor men, and especially men accused of abusing their partners and children. Men's rights advocates claim that a feminist-run court system systematically violates men's civil rights, that a large proportion of abuse allegations are false, and that men "are victims of an unrecognized epidemic of violence at the hands of abusive wives," as reported in an expose in Slate. On the legal front, Respecting Accuracy in Domestic Abuse Reporting (RADAR) claims credit for blocking four federal domestic-violence bills, among them an international expansion of the Violence Against Women Act, according to the Slate report. Extrajudicially, movement members go so far as to applaud acts of violence perceived as retaliation against the feminist status quo.

But Assemblyman James Beall, the sponsor of AB 2475, does not appear allied with this regressive movement. Rather, he bills himself as a progressive Democrat who fights for the rights of children, families, the poor, and the disabled. Previously, he sponsored legislation (AB 612) to ban the use of Parental Alienation Syndrome -- a favorite of the father's rights movement -- from family courts.

NOTE: After I wrote this post, I did a bit more research on AB 612, and realized it was even more extreme than his new proposal. It would have allowed parents to sue any expert witness who relied upon "an unproven, unscientific theory." This would have included not only Parental Alienation Syndrome, its ostensible target, but a gamut of other evidence. After all, not much in any field of science is completely proven and uncontested. Luckily, that bill was defeated, perhaps explaining this new attempt. -- May 8, 2010

As it turns out, AB 2475 is supported by opponents of the men's rights movement, including an organization called the Protective Parents Association. This group lobbies on behalf of mothers who say the courts impede their efforts to protect their children by giving joint or sole custody to abusive fathers. "[T]he court responds to women attempting to protect their children from an abusive father with a knee-jerk reaction, assigning gender-biased labels to women to minimize or ignore the abuse in a reckless disregard of the safety of the child," writes association director Karen Anderson. By gender-biased labels, she is referring, no doubt, to Parental Alienation Syndrome.

So, AB 2475 may turn out to be a case of failure to anticipate unintended consequences. As readers know, politicians often propose a law in a knee-jerk response to a high-profile event, tweaking existing mechanisms without adequate anticipation of potential future deployments. Ironically, the bill could open the floodgates for attacks on neutral evaluators by the very same angry men with money who most often invoke the pseudoscientific construct of Parental Alienation Syndrome in custody cases.

When I telephoned Assemblyman Beall's office today to get more background, a staff member was cagey about the bill's impetus and minimized its intended scope, saying it was meant to only apply to mediators and not to child custody evaluators. Clearly, the current language belies this claim. So far I have been unable to turn up any specific case or cases that prompted this bill. Rather, it may be a misguided effort to stop evaluators from using the construct of Parental Alienation Syndrome against mothers in custody cases.

By way of background, various types of immunity for professionals involved in the legal system have a long history. Judicial immunity (immunity for judges) was implemented on public policy grounds in England all the way back in the 17th century. Similarly, witness immunity enjoys a long history, based on the principle of encouraging people to testify honestly and without fear of reprisal. Prosecutors performing their job duties are protected by qualified immunity, while psychologists and teachers enjoy statutory immunity when the law requires them to report child abuse.

Under the construct of quasi-judicial immunity, courts across the United States have repeatedly held that court-appointed experts must have some protection from intimidation in order to feel confident and free to make neutral and independent findings. As Karl Kirkland and colleagues point out in an enlightening review, this bolsters both the integrity of the judicial process and public welfare more generally.

This does not mean evaluators can say or do whatever they want. Immunity is never absolute, nor should it be. But forensic evaluators actually face enhanced scrutiny and risk as compared with other clinicians due to the adversarial nature of legal cases. As Greenberg and colleagues point out in another excellent review (reference below), errors that might go unnoticed or be addressed constructively in therapy are much more likely to be exposed through the adversary process; the opinions of forensic experts must stand up to intense scrutiny and vigorous cross-examination.

But it seems an error to allow parties whose goal is often to subvert the legal process (for example by getting an evaluator removed from a case) to drive honest, hard-working, and experienced professionals away from child custody work through spurious harassment. Consider the data. California logged the most licensing board complaints over child custody evaluations of any U.S. state during the 1990s. Yet according to the review by Kirkland and colleagues, out of all of those 1,660 complaints, only a single one -- that's right, ONE -- led to a formal finding against the psychologist.

* * * * *

For a good expose of the men's rights movement, see the Slate article by Kathyrn Jones, Men's Rights Groups Have Become Frighteningly Effective: They’re changing custody rights and domestic violence laws. In researching the issue of immunity for expert witnesses, I also consulted the following excellent sources (none, unfortunately, accessible online):

• Quasi-Judicial Immunity for Forensic Mental Health Professionals in Court-Appointed Roles, by Karl Kirkland, Kale E. Kirkland, Glen D. King, and Guy J. Renfro, Journal of Child Custody (2006)
• Lessons for Forensic Practice Drawn from the Law of Malpractice, by Stuart Greenberg, Daniel Shuman, Stephen Feldman, Collin Middleton, and Charles Patrick Ewing. In: Forensic Psychology: Emerging Topics and Expanding Roles (2007)
• A Comprehensive Guide to Child Custody Evaluations: Mental Health and Legal Perspectives by Joanna Bunker Rohrbaugh (2007)
• Clinician's Guide to Child Custody Evaluations, 3rd Edition, by Marc J. Ackerman (2006)

Photo: "The Dads Who Fought Back" (2006 video)

New study: Do popular actuarials work?

Newer instruments outperform Static-99 and RRASOR

If you evaluate sex offenders, you may be overwhelmed by the dizzying array of actuarial risk assessment instruments vying for your vote: Static-99, RM 2000, RRASOR, Static-2002, SORAG, MnSOST-R. The list of weird-looking acronyms grows ever longer, and the validity studies more complex.

For help figuring out which instruments do what, and how well, I recommend a study by two Canadians, Jan Looman and Jeffrey Abracen, just published in the Journal of Interpersonal Violence. The study compared the ability of four leading instruments to predict recidivism among a sample of 419 high-risk Canadian sex offenders. Overall, about 15% of the released offenders were convicted of a new sex offense when the follow-up time period was held at a constant of seven years.

Among the interesting findings:

• When rapists and child molesters were examined separately, none of the instruments were able to predict sexual recidivism (defined as a new conviction) for child molesters.

• The RRASOR (Rapid Risk Assessment for Sex Offense Recidivism) bombed completely as a predictive tool. The Static-99, a descendant of the RRASOR and the most widely used actuarial for assessing sex offender risk, did not do much better. As the authors note, since their sample was similar to U.S. offenders subject to civil commitment as Sexually Violent Predators (SVPs), the lack of predictive validity of these instruments raises concerns about their use in SVP proceedings.

• Two newer instruments -- the Static-2002 and the Risk Matrix 2000, developed in England -- did somewhat better. Especially interesting is how the Static-2002 performed. Overall, only two of the instrument's five subscales predicted sexual recidivism. Not surprisingly, these were Age at Release and Persistence of Sexual Offending. This is rather common sensical, in that sex offending declines dramatically with age, and a high score on the Persistence scale indicates an entrenched pattern of sex offending, with an early onset, a high rate, and multiple convictions. When rapists and child molesters were separated out, instead of being lumped together as generic “sex offenders” as they often are, only the Deviant Sexual Interests scale predicted sexual recidivism for the child molesters.

• Finally, age matters. It really does. The few who continue to deny this obvious fact are just being stubborn. Similar to other studies, only about 2% of offenders over 50 reoffended (one child molester and one rapist, in this case), compared with 20% of those ages 25 to 35.

Of course, this is just one study. Other studies comparing the accuracy of instruments for assessing sex offender risk have come to various and contradictory conclusions. For example, contrast the present findings with those of the Austrian study that I blogged about last month, testing German versions of the RRASOR, Static-99, SORAG, and SVR-20. The publisher of the International Journal of Offender Therapy and Comparative Criminology has just made that study available for free, by the way. Keeping up with this burgeoning literature is a full-time job, unfortunately necessary for practice in this area.

The abstract of the study, Comparison of Measures of Risk for Recidivism in Sexual Offenders, is available at the Journal of Interpersonal Violence's website. You need a subscription to get the entire article, or you can request a copy from the authors.

Prospective Actuarial Risk Assessment: A Comparison of Five Risk Assessment Instruments in Different Sexual Offender Subtypes, by Martin Rettenberger, Anna Matthes, Douglas P. Boer, and Reinhard Eher, is available for free from the International Journal of Offender Therapy and Comparative Criminology. Thanks for that go to journal editor Thomas Mankowski.

Killing and culpability: A reader participation exercise

A TALE OF TWO HOMICIDES

INSTRUCTIONS TO READERS: Below, I present two hypothetical scenarios. After reading both, please stop. Do not read further. Consider which killer you think is more culpable. By way of background, assume that both killers are young, white, and employed, with little or no arrest histories. Assume that both victims were also white, upstanding citizens, well regarded in their communities.

Case 1: Street Brawl

The killer, age 20, was walking with a friend after leaving a party when a group of about six drunken strangers surrounded the pair. Insults and challenges were exchanged. The killer yelled at the men to back off. Instead, they continued to close in. He pulled a knife with a 3½-inch blade and waved it around. A scuffle ensued. One man was stabbed and killed.

Case 2: Avenging a Wrong

The killer, age 32, armed himself with a .44 revolver and went to the home of a former neighbor whom he had known for many years. He confronted the man over past wrongs. Words were exchanged. The killer shot the victim once in the chest. Before leaving, he waited about 30 minutes to make sure his victim was dead.

STOP. Consider: Which killer do you think is more culpable, legally and/or morally? Why? What sort of punishment do you think would be fair?

Have you formed a tentative opinion? If not, what else would you need to know before deciding? Now, I will provide a few facts about the victims. See if they are relevant to your thinking.

Case 1: Street Brawl

The victim was a member of a college fraternity that was infamous for its rowdy partying. On his MySpace page, he bragged about an earlier fight in which he and his fraternity brothers beat up a man, “grind[ing] his face into the coarse pavement of the sidewalk while several of [us] are taking turns on his ribs and dome.”

Case 2: Avenging a Wrong

The killer told police that the victim had sexually molested him from the age of 11 until his late 20s, a few years before the homicide. After the crime, other men came forward to say that the dead man had taken advantage of positions of trust to sexually molest them, too.

STOP. Do these facts alter your opinion about culpability in any way? How? Why? What degree of guilt would you infer? What do you think would be a just resolution in these cases?

Finally, let's consider community reaction. Does this change your opinions about either case?

Case 1: Street Brawl

The university town is divided. On one side are the victim’s largely well-to-do supporters, who say he was a fine young man with a good reputation who was about to graduate with honors in nuclear engineering from a prestigious university. On the other side are supporters of the working-class defendant, who say that he was just defending himself.

In a perhaps unprecedented twist, residents of the fraternity row where the crime took place have filed a class-action lawsuit against the local fraternities. Claiming that nuisance behavior has left them living under a virtual state of siege, they are seeking an injunction against the fraternities through an innovative application of a California law banning "criminal street gangs."

Case 2: Avenging a Wrong

The small town is united behind the killer. Townspeople have held rallies and affixed bumper stickers to their cars. They say he did them a service by ridding the community of a child molester. Even the victim's wife thinks punishment should be lenient.

Recognize either case yet? Of interest is the different spins they are getting. A central theme in both stories is bad moral character. But in one case it is the victim's character that is condemned, while in the other case it is the killer's.

CASE 2:

This is the case getting national and even international attention. On Feb. 8, 2009, in the small California logging town of Fort Bragg, Aaron Vargas killed 63-year-old Darrell McNeill, a former youth group leader and popular furnishings salesman. Vargas is being portrayed as a victim and his crime as understandable or even heroic. His sister is even slated to appear on Oprah Winfrey's TV show to talk about his family's "ordeal."

The facts are being spun accordingly. News account focus not on the large (.44) caliber of the gun, for example, but rather its status as an "antique Civil War replica." (Hey, it still fired.) The gap of several years between when Vargas "broke off the relationship" and when he ultimately killed the older man is largely ignored. (Where was the immediate, heat-of-the-moment provocation?)

The case resolution? A lenient plea bargain. Vargas just pleaded no contest to voluntary manslaughter. He will serve no longer than 10 years in prison, and may even get probation.

Was that what you expected, or thought fair? Why or why not?

CASE 1:

Meanwhile, 170 miles away in cosmopolitan Berkeley, Andrew Hoeft-Edenfield is on trial for first-degree murder stemming from a May 3, 2008 incident that began when the victim and a group of friends walked up to Hoeft-Edenfield and his friend and ordered them to leave fraternity row. Fueled by a deadly mixture of testosterone and alcohol, the incident "quickly escalated as Hoeft-Edenfield pulled out his knife and his friend Adam Russell began swinging an almost full bottle of Bacardi rum at the crowd," according to a news account.

While Hoeft-Edenfield claims he was defending himself from a drunken mob bent on violence when he stabbed fraternity member Christopher Wooton once in the chest, the prosecutor is trying to prejudice jurors against him by imputing his moral character.

"He has a persona, a wannabe thug or an actual thug," she told the jury in her opening statements. As visual proof, she held up his backpack with gangsta-rap-style writings such as "Thug Life," "Money, Guns, Marijuana," and "Killer Drew."

Hoeft-Edenfield's attorney countered that this depiction of her client's moral character could not be farther from the truth. Hoeft-Edenfield is "an example of what hard work can accomplish," she told the jury. A working-class young man from South Berkeley, galaxies away in social class from the elite university for which Berkeley is famous, he had overcome a learning disability, graduated from high school, gotten a job, and was attending college. The fight, she said, was "sparked by the fraternity brothers who were drunk and eager to prove they owned the street," according to a news report. "What he remembers is that he is surrounded by five or six guys, he's got guys stomping him, and all he hears is yelling."

If you were on the jury, how might you vote? Why?

In criminal responsibility evaluations, we forensic psychologists are charged with carefully dissecting an accused's state of mind at the moment of a homicide. Did he form an intent to kill? Did he know right from wrong, in that moment? Was he intoxicated? What were his motivations? These mental state inquiries are tricky enough.

Moral character is a much more elusive construct. Good and evil are never as black-and-white as partisans portray them. Yet, as these two cases illustrate, simplistic moral narratives can be constructed that either lionize or demonize a criminal defendant. These narratives then influence the decision-making of prosecutors, judges, and jurors as to the appropriate punishment, based on perceived moral blameworthiness.

It will be an interesting juxtaposition if Hoeft-Edenfield gets convicted of first-degree murder and goes to prison for a heat-of-the moment stabbing that appears to have been provoked, while a vigilante who proactively took the law into his own hands gets a light sentence for voluntary manslaughter.

If Hoeft-Edenfield is found guilty of murder, a working-class young man may want to think twice about sporting gangsta-style accessories while carrying a knife for self defense. Unless, of course, he kills a child molester. In that case, the public may applaud him.

A good yarn needs both a hero and a villain. The question is: Who gets which role?

POSTCRIPT: After a four-month trial, Hoeft-Edenfield was found guilty of second-degree murder and sentenced to 16-to-life in prison. That sentence was later overturned on appeal, and he accepted a plea bargain in which he would serve 12 years in prison with no credit for time served or good time. Meanwhile, in what the media dubbed "a crushing disappointment" to his family and supporters, Fort Bragg killer Aaron Vargas received a nine-year prison term.

Readers: I encourage you to post your reactions to this exercise in the online "comments" section of the blog.

My follow-up reports on the Hoeft-Edenfield case:

• Surprise reversal in "killing and culpability" self-defense case: Judge slams defense lawyer as inept, dishonest (May 1, 2014)
• "Killing and culpability" sentences handed down (June 16, 2010) 
• Race, class, and self defense: Berkeley fraternity case spotlighted (July 21, 2010) 

Further background on the unusual class-action lawsuit against the fraternities:

• American Lawyer: Suit Tries Gang Strategy Against Frat Boys
• Press release: "Lawsuit to curtail the culture of alcohol abuse and violence in the fraternities at UC Berkeley"

Related blog post: Vigilante justice against sex offenders (October 2007)

Photos: (1) Aaron Vargas, (2) Andrew Hoeft-Edenfield, (3) Christopher Wooton

California may expand juvenile competency law

In the landmark case of Milton Dusky, the U.S. Supreme Court held that in order to be criminally prosecuted a defendant must have a factual and rational understanding of the proceedings and a basic ability to consult with his or her attorney.

Some U.S. states have limited this due process protection to defendants who suffer from a mental illness or a developmental disability. This excludes children, who may lack rational understanding due to their natural immaturity. In the 2006 Washington state case of Swenson-Tucker, for example, an appellate court held that an 8-year-old boy was competent to stand trial despite severe deficits stemming from his age and immaturity.

In Florida, by contrast, juveniles have a statutory right to competence, and both age and developmental immaturity can be considered in deciding competence. (Florida Code, Section 985.223.)

If California Assemblyman Felipe Fuentes has his way, the Golden State will follow the Sunshine State and move into the forefront of juvenile justice trends. Assembly Bill 2212 would formalize the requirements for juvenile competency proceedings in the state, and specifically mandate consideration of developmental immaturity.

The proposed law (excerpted below) follows on the heels of a 2007 appellate case (see my blog post HERE) allowing immaturity as the basis of incompetency for an 11-year-old Sacramento boy accused of breaking into an elementary school and stealing candy bars. Two psychologists had evaluated Dante H. (2007 Cal. App. LEXIS 704) and concluded that he was not fit to stand trial.

AB 2212, as amended, Fuentes. Minors: mental competency.
The bill would require, upon declaration of a doubt as to the minor's competency, the court to order that the question of the minor's competence be determined in a hearing, as specified. The bill would require the court to appoint an expert in the field of juvenile adjudicative competency to evaluate whether the minor suffers from a mental disorder, developmental disability, or developmental immaturity and, if so, whether the condition impairs the minor's competency. The bill would require the Judicial Council to develop and adopt rules to implement these requirements. The bill would require that, if the minor is found to be incompetent by a preponderance of the evidence, all proceedings remain suspended to determine whether there is a substantial probability that the minor will attain that capacity in the foreseeable future or the court no longer retains jurisdiction. The period of time during which these proceedings would be suspended would not exceed 6 months.

A vote by the California Assembly's Public Safety Committee is scheduled for today.

Although the definition of developmental immaturity remains vague (see below text by Ivan Kruh and Thomas Grisso for an excellent discussion), most forensic psychologists who evaluate juveniles already consider their age and maturity, and this proposed law is a much-needed step toward requiring such practice.

Recommended resources:

• Evaluation of Juveniles’ Competence to Stand Trial by Ivan Kruh and Thomas Grisso (Best Practices in Forensic Mental Health Assessment series)
• Juvenile Competency Statutes: A Model for State Legislation by Kellie Johnson, Indiana Law Journal
• MacArthur Foundation's Juvenile Competence Study