Prison overcrowding: Chickens coming home to roost

U.S. Supreme Court to hear critical California case

When is the last time you heard of prisoners and prison guards teaming up in a legal case?

They are united on the same side in a case set to be argued in front of the U.S. Supreme Court on Tuesday.

The case concerns prison overcrowding in California, where about 164,00 prisoners are crowded into facilities designed to hold less than half that number. The state is fighting a federal district court that the massive population must be cut by 40,000 to allow for minimally adequate mental health and medical treatment.

“The case is being widely watched across the U.S, as other states grapple with California-style problems: tough sentencing laws that filled up prisons even as the economy battered state budgets,” write Joanna Chung and Bobby White in today’s Wall Street Journal. Eighteen states have filed briefs backing California in the case of Schwarzenegger vs. Plata, arguing that releasing prisoners would threaten public safety.

The issue of inadequate mental care in California prisons has been in the courts since 1991, when Ralph Coleman filed a lawsuit that was eventually merged with prisoner Marciano Plata’s similar lawsuit of 2001. The district court appointed an independent expert to oversee prison health care. That expert, law professor Clark Kelso, believes the court-ordered reductions in the prisoner population are needed to achieve "sustainable constitutional health care" in the face of continued prison construction.

As Chung and White report:

The rare alliance of California's powerful prison guard union and the inmates illustrates the severity of the situation, legal experts say. "It should not be a surprise to anyone that the chickens have come home to roost after a series of disastrous policy choices that has landed California in this position," says David Fathi, director of the American Civil Liberties Union's National Prison Project, which has filed a brief on behalf of the inmates….

Tough sentencing laws enacted by the state during the 1990s, including the three-strikes-and-you're-out law, as well as a parole crackdown that's returned violators to return to prison even for minor infractions, fueled the dramatic rise of California's prison population….

When Edmund G. "Jerry" Brown Jr. first was governor in the 1970s, California's prisons housed more than 20,000 inmates. When Mr. Brown, who won back his old job in this month's elections, returns to office in January, he will oversee more than 160,000….

The California Correctional Peace Officers Association, the 30,000-strong prison guard union, says the state's current strategy of building more prisons at home and shipping overflow inmates to out-of-state private penitentiaries won't solve the long term trend. Ryan Sherman, an association spokesman, says: "You can't build your way out of this.... We need real reform, not a numbers game."

Mr. Sherman wants the state to invest in more medical staff and equipment to address the poor conditions that instigated the lawsuits. While the prison population rose dramatically over the last few year he says the state never kept pace with investments in doctors and nurses and better health facilities.

Meanwhile, the state California faces a $6 billion shortfall for the current fiscal year ending June 30 and a $19 billion shortfall for the next fiscal year, according to the nonpartisan state Legislative Analysts Office.

"The way that California ends up dealing with this problem will be an example for other states with massive budget problems and overcrowded prisons to watch and learn from," says Anthony S. Barkow, head of New York University law school's center on criminal law, which filed a brief on behalf of the inmates.

Hat tip: Kathleen

Postscript: An update on Tuesday's hearing can be found HERE. Meanwhile, as reported HERE, California is responding to the threat of a population cap by frantically shipping prisoners to private prisons in other states. Medical and mental health care is much worse in these privately run institutions, where violence is not only tolerated but may be encouraged, according to an Associated Press news story (with video of an incident in a private prison in Idaho). (By the way, did you know that the private prison industry, hankering for more captive bodies, helped author Arizona's anti-immigrant law? That fascinating story is HERE.) KALW radio has some good background on the crisis, including an audiotaped report on medical care at San Quentin.

The Psychology of jury voir dire

How many times have you debriefed jurors after they rendered their verdict and been surprised by what they told you? Jurors don't deliberate based on facts and argument. They deliberate based on their perception of the facts and arguments. And it is the juror's belief system that accounts for the varying way that jurors perceive facts and arguments.

That is the start of an informative how-to piece in The Jury Expert by psychologist Matthew L. Ferrara, a trial consultant based in Austin, Texas.

The current issue of The Jury Expert has several other interesting articles, including:

• Police deception during interrogation and its surprising influence on jurors' perceptions of confession evidence by Krista D. Forrest & William Douglas Woody

• Do we need Einsteins in the jury box? The role and impact of juror IQ by Alison Bennett

• What the literature tells us about the jury foreperson by Traci Feller

Photo: "The Jury," John Morgan, 1861 (Public domain; source: Wikimedia commons)

Death row logjam in California

L.A. Times: Critical shortage of appellate lawyers

With 700 prisoners, California's Death Row is the largest in the United States. But almost half of the condemned will not be executed any time soon; they are still waiting for attorneys to handle their appeals.

Despite a glut of attorneys in the state, few are willing or qualified to tackle post-conviction appeals. Each condemned prisoner gets an automatic appeal to the state supreme court, after which they can file a habeas corpus petition challenging their conviction. The wait for habeas counsel averages 10 to 12 years, a bottleneck that the state's high court calls "critical."

The work is draining both emotionally and financially, say the few attorneys who do habeas work.

"It's a big toll on people to have clients on death row," attorney Lynne Coffin told Los Angeles Times reporter Maura Dolan. "Even if they are nowhere near execution, they are very needy. Most have no family connections anymore, no money, no friends, so the lawyer becomes the source of everything."

Coffin, who at 61 years old handles capital cases almost exclusively, said witnessing the executions of two clients was disturbing. "And I am not going to any more."

The full story, in today's L.A. Times, is HERE.

High cost a factor in public support for death penalty alternatives

Meanwhile, a national poll of 1,500 registered voters shows growing support for alternatives to the death penalty. A majority of voters (61 percent) would choose a punishment other than the death penalty for murder, including life with no possibility of parole and with restitution to the victim’s family (39 percent), life with no possibility of parole (13 percent), or life with the possibility of parole (9 percent), said the center, which opposes capital punishment.

Sixty-eight percent of those surveyed said cost was a very or somewhat convincing argument against the death penalty. Voters ranked emergency services, creating jobs, police and crime prevention, schools and libraries, public health care services, and roads and transportation as more important budget priorities than the death penalty. Two-thirds of those surveyed would favor replacing the death penalty with life with no possibility of parole if the money saved were used to fund crime prevention programs.

The survey was conducted by the Death Penalty Information Center, which opposes capital punishment. It can be found HERE.

How the Black man became schizophrenic

Psychiatry, the DSM, and the Black Power movement

Once upon a time, a strange thing happened at the Ionia State Hospital in Michigan: A diagnosis of schizophrenia exited the body of a white housewife, flew across the hospital, and landed on a young Black man from the housing projects of Detroit, burrowing into his body and stubbornly refusing to leave.

As you may know, Black men in the United States (as well as in the United Kingdom) are disproportionately diagnosed with schizophrenia. What you may not know is when this pattern emerged, or why.

Up until the 1950s, the overwhelming majority of those diagnosed with schizophrenia were white. They were the delicate or eccentric -- poets, academics, middle-class women like Alice Wilson in Jonathan Metzl's The Protest Psychosis, "driven to insanity by the dual pressures of housework and motherhood."

Then, in the mid-1960s, the Long Hot Summers hit urban America. Smoldering anger over racism and poverty erupted into mass rioting and harsh repression. In Detroit, a police raid on a party triggered an uprising that left 43 dead, 1,189 injured, and more than 7,000 arrested. Convinced that they would never win civil rights through sit-down strikes, a nascent Black Power movement became increasingly militant.

Coincidentally, just as this urban unrest was reaching its zenith, the American Psychiatric Association was busy revising its Diagnostic and Statistical Manual of Mental Disorders (DSM). Published in 1968, the DSM-II was touted as a more objective and scientific document than its 1952 predecessor.

"However, the DSM-II was far from the objective, universal text that its authors envisioned," writes Metzl, a psychiatry and women's studies professor and director of the Culture, Health and Medicine Program at the University of Michigan. "In unintentional and unexpected ways, the manual’s diagnostic criteria -- and the criteria for schizophrenia most centrally -- reflected the social tensions of 1960s America. A diagnostic text meant to shift focus away from the specifics of culture instead became inexorably intertwined with the cultural politics, and above all the race politics, of a particular nation and a particular moment in time."

The psychoanalytically imbued "schizophrenic reaction" of the DSM-I was an illness meriting pity and compassion rather than fear. In contrast, the DSM-II's more biologically oriented schizophrenia was menacing and required containment. In particular, the language that described the paranoid subtype foregrounded "masculinized hostility, violence, and aggression," implicitly pathologizing militant protest as mental illness.

Almost overnight, the previous class of schizophrenics at Ionia State Hospital was relabeled with depressive disorders. As the formerly schizophrenic exited the hospital en masse in the wake of the Community Mental Health Centers Act of 1963, their places were taken by a new class of schizophrenics -- volatile young Black men from inner-city Detroit.

A mountain of archived charts from the defunct asylum at Ionia provided the raw material for The Protest Psychosis. In his four years of sifting through the treasure trove of data, Metzl found clear evidence of shifting racial and gender patterns in diagnosis. Because the DSM-II was published in the days before computers, clerk typists simply used hatch marks (/) to mark out the old diagnoses, leaving them clearly legible alongside the new.

Randomly selecting a subset of charts of white women patients, Metzl found schizophrenic diagnoses crossed out, and replaced with labels such as Depressive Neurosis or Involitional Melancholia.

In contrast, the charts of African American men saw Psychopathic Personality crossed out to make way for the DSM-II’s schizophrenia, paranoid type.

Neither set of patients had undergone a sudden metamorphosis. Their observable symptoms and behaviors, as documented by their chart notes, remained the same. The only thing that changed was the diagnostic manual.

Metzl is a lyrical writer who has thought deeply and profoundly about this topic. His asylum tragedy does not point fingers or blame the individual psychiatrists of the asylum. They, too, were victims of time and place, just doing their job. Doing it, indeed, by the book.

Lessons learned, or lessons lost?

The lessons of Ionia can be applied to almost any diagnostic saga. Today, the message -- if we choose to listen -- is especially profound. As Ethan Watters explores in Crazy Like Us, American psychiatry is sweeping the globe like a virus, importing PTSD to Sri Lanka and Western-style depression to Japan.

Big Pharma is responsible for much of this McDonald's-like expansion. The pharmaceutical industry is far and away the most profitable business in the United States, and accounts for almost half of the $650 billion-plus global market. In its quest to enlarge profits, this industry perpetually seeks to expand the range and scope of illness. As Christopher Lane describes in Shyness, this expansion is especially easy with psychiatric illnesses, because of their nebulous nature and subjective boundaries.

But Big Pharma did not revamp schizophrenia back in 1968. Nor were nefarious doctors consciously seeking to re-enslave a rebellious race. Like treatment providers today, psychiatrists undoubtedly saw themselves as helpers, even as they functioned as agents of social control, naturalizing today’s long-term containment and incapacitation of African American men.

Psychiatry, as Metzl points out, is inherently focused on the molecular. With their focus on matching individual symptoms to diagnostic codes, the psychiatrists who replaced one diagnosis with another were blind to how institutional racism shaped their choices. Nor did they reflect on their own internalization of the era’s cultural anxiety over menacing Black men, an anxiety that linked mental illness, protest, and criminality.

A focus on the micro-level blinds the actors to the larger forces at play, which construct the very frames governing observations and actions. Larger social and institutional forces rather than conscious intent on the part of individual actors typically drive bias, especially in the 21st century. This explains why “cultural competence” training programs are at best useless, and at worst reinforcing of stereotypes.

We are currently entering another period of diagnostic revision. What I find fascinating is how earnestly the proponents of new and expanded psychiatric diagnoses believe that they are agents of progress, advancing better science as opposed to ideologically driven agendas. Mesmerized by their own brilliance, they wear blinders that prevent them from seeing the larger cultural systems in which their ideas are embedded.

But science is never pure. There is no one objective truth. There are myriad ways to categorize and catalog. Bias is inherent in what is foregrounded and what, in turn, is neglected or ignored. Reification, in which hypothetical categories are transformed into tangible and real objects, keeps us from recognizing and naming the larger systems that dictate these choices.

Occasionally, a historian like Metzl comes along to sift through archival evidence and shine a spotlight on historical biases. But the biases inherent in the present moment remain largely invisible. With the arrogance inherent in power, privileged scientists have no need to confront their own cultural assumptions, or reflect upon how the world might look from the perspectives of their subjects.

Sadly for all of us, as the old axiom goes, those who do not learn from history are doomed to repeat it.

The book is: The Protest Psychosis: How Schizophrenia Became a Black Disease. An online essay adapted from the book is HERE. Metzl is also the author of Prozac on the Couch, Prescribing Gender in the Era of Wonder Drugs and editor of a book forthcoming from NYU Press, Against Health: How Health Became the New Morality. A University of Michigan press release about his published work on "medicalization" is HERE.

If you enjoyed this essay, please visit my abbreviated review at Amazon and click on "YES." This essay is also available at my Psychology Today blog, Witness and at AfroDaddy: A Black Man's Survival Guide (sadly, that site is now defunct, but the post is still available via the ever-amazing Wayback Machine).

"How to Lie to Your Court Appointed Psychologist"

"Keep it simple, shallow and stupid --

the more pathetic the better"

YouTube's "GrannyWolf 007" identifies himself on his Star Chamber blog as Ryan Murray of Toronto, a cook. ("I govern the heat in meat and cheese until I judge it to be delicious.")

Hat tip: Joe Plaud

Special journal issue on adjudicative competencies

• Should adolescent immaturity be a basis for incompetency?
• Must sex offenders be competent at civil commitment trials?
• When is it ethical to evaluate a condemned person's competency to be executed?
• Is it ethical to assist in making someone sane enough for the state to kill?
• How should clinicians manage empathy in competency evaluations?
• Is neuroimaging a help or a hindrance?
• What are current best practices for detecting feigning?

These are among the cutting-edge ethical, legal, clinical and practical issues addressed in a special issue of Behavioral Science and the Law on adjudicative competencies.

As the above list of questions implies, the landscape for competency determinations is evolving. More people than ever are behind bars. Especially in the wake of drastic budget cuts, many are languishing with serious and inadequately treated mental disorders. For these "wretched souls," notes internationally acclaimed forensic psychiatrist Alan R. Felthous in his introduction to the special issue, the system is often unconscionably unresponsive.

Here, in one place, is a summary of many of today's controversies in this bread-and-butter practice niche. Check it out HERE.