Just over a decade ago, opponents of junk science in court won a hard-fought battle when they succeeded in keeping two unreliable sexual-deviance diagnoses from debuting in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM).
Now, a new study finds that the rejection did nothing to stop the introduction of these diagnoses in court. Rather, they are being snuck into forensic reports and testimony through the back door, via two vague catchall labels inserted into the DSM manual in 2013. And although proponents had argued at the time that these residual labels would reduce confusion and improve diagnostic reliability, the study suggests that the opposite has occurred.
Long-time readers of this blog may recall the brouhaha over the two novel conditions of “hebephilia” and “nonconsent.” Both were considered but rejected for the sexual disorders (“paraphilias”) section of the 2013 DSM. Their rejection owed to their lack of proven reliability or scientific validity. Neither condition has a standard definition, which is a basic precursor to accurate scientific measurement. Hebephilia generally references a sexual attraction to youths in the pubertal stage of development, while nonconsent refers to attraction to sexual coercion.
A single niche
The single niche where the two labels are in widespread use is a forensic one: Sexually violent predator (SVP) litigation. That’s because the indefinite civil confinement of serial sex offenders has been ruled unconstitutional except in cases where an offender poses a substantial future danger to the public due to a formal mental disorder. The lobby to create the new disorders of nonconsent and hebephilia was led by forensic psychologists working in the SVP trenches, along with psychologists at a Canadian clinic with outsized influence over the paraphilias section of the 2013 DSM manual. The American Psychiatric Association’s refusal to label rapists as mentally ill has encouraged some evaluators to “bend the language of the DSM” to make it work.
The current researchers found that “nonconsent” and “hebephilia” are the two most common bases for invoking an idiosyncratic catchall label of “Other Specified Paraphilic Disorder” (OSPD). Their findings are consistent with a recent review of U.S. legal cases that found that large proportions of civilly committed sex offenders – including about half in California and 43% in Washington - are diagnosed with "OSPD-nonconsent."
The study, published in the journal Sexual Abuse, is the first to systematically analyze the prevalence and patterns of use of OSPD and another vaguely defined label, “Unspecified Paraphilic Disorder” (UPD), in sexually violent predator litigation. It analyzed SVP evaluations in Florida over a four-year period. Because the researchers aimed to calculate the reliability of the disputed labels, only cases in which a convicted sex offender was evaluated by two different psychologists were included. In all, 190 separate cases involving 380 forensic reports were analyzed.
At least one paraphilia was diagnosed in four out of five cases reviewed. Pedophilia was the most invoked, followed by the catchall categories of OSPD and UPD.
OSPD’s reliability – or the agreement among two psychologists evaluating the same man – was abysmal. In cases where one evaluator assigned a diagnosis of OSPD, there was a less-than-chance likelihood that a second evaluator would agree. The kappa reliability statistic was a very poor .21, far below chance agreement. Kappas of below 0.4 are generally considered to be below the minimum reliability threshold in the forensic arena.
Evaluator disagreement was even more profound with Unspecified Paraphilic Disorder, with two psychologists agreeing about its presence only 30% of the time. That comes as no surprise. That label, as critics have long pointed out, is inherently unreliable, in that it is designed to be used in circumstances in which there is not enough information to make a specific diagnosis, or a clinician “chooses not to specify the reason” why it is being assigned, according to the manual’s instructions.
One of forensic psychology’s dirty little secrets is that the assignment of controversial labels often hinges as much on evaluator whims as on the facts of the case. For example, research has found that some evaluators routinely assign higher scores than others on measures of psychopathy, an especially prejudicial label. The current research showed this same problematic pattern with diagnoses of OSPD. Two of the 21 psychologists under study proffered that catchall diagnosis in most of their cases, whereas 38% of the clinicians assigned it in fewer than one out of four cases; one evaluator never used it at all. This suggests that case outcomes are being influenced not only by offender characteristics but by which psychologist happens to be assigned to the case.
Similar evaluator variability was evident when the researchers zoomed in on OSPD diagnoses in which either hebephilia or nonconsent were proffered as its basis. Three evaluators used the term “hebephilia” in half of their OSPD diagnoses, while nine evaluators never used hebephilia-related terminology at all. And evaluators agreed on the hebephilia label in only about one out of four instances. Regarding nonconsent, 13 evaluators invoked it in at least half of their evaluations, whereas five evaluators never used that specifier.
The study’s authors theorized that the widely ranging rates of use of the OSPD and UPD labels likely reflect hesitancy by some psychologists to proffer diagnoses “with vague diagnostic criteria and debatable level of empirical support.”
What all this suggests is that whether an offender is said to have a mental disorder pertaining to an attraction to pubescent minors and/or rape hinges in large part on the luck of the draw as to whether they are assigned to Dr. Jones versus Dr. Smith.
The large variance among evaluators is especially remarkable in that “adversarial allegiance” was not in play. This forensic bias becomes an issue when evaluators’ opinion are influenced by whether they were retained by the prosecution or the defense. Here, all of the evaluators were members of the same ostensibly neutral panel of contracted psychologists. If adversarial allegiance had come into play, the divergences in diagnoses likely would have been even more profound.
Highlighting the higgledy-piggledy nature of any ad-hoc diagnosis, the researchers found that the so-called “specifiers” – or specific rationales – attached to OSPD diagnoses were highly idiosyncratic. Examples included descriptions of behaviors that are illegal but not necessarily evidence of mental disorder, such as “OSPD-Non-Consensual Sexual Activity with Adolescent,” “OSPD-Attraction to Adolescent Females” and an even more bizarre “OSPD-Sexting.”
Custom-tailored labels
“[O]ne may be particularly concerned that several of the labels appear custom to the facts of the specific case rather than resting on any empirically derived diagnosis,” the study’s authors noted.
I witnessed this first-hand last month, when a psychologist testified in federal court that a sex offender the government was aiming to civilly commit had a novel combination of sexual interests that cumulatively rose to the level of a unique mental disorder called “OSPD-deviant sexual interests in hebephilic, sadistic, exhibitionistic and voyeuristic behavior.”
Fortunately, the federal judge at this particular trial was skeptical. Pointing out that “OSPD-hebephilia” was rejected from the DSM and remains controversial in the psychological community, he wrote in his opinion that he was “troubled by the combination of multiple insufficient specifiers, which does not appear to have been contemplated by the DSM-5-TR.”
No matter how nonconsent or hebephilia were defined in the specific psychological reports, the interrater agreement – or concordance between evaluators – remained poor across the board, and far below recommended reliability for diagnoses in routine clinical practice, much less the forensic arena in which precision is especially critical.
"Bad science"
“Relying upon diagnoses with poor empirical support can perpetuate the use of bad science in the courtroom,” the authors concluded. “While it is certainly true that there are high-risk individuals who are likely to sexually recidivate upon their release from prison, providing makeshift diagnoses to satisfy civil commitment criteria significantly questions the ethical practice of psychological decision making.”
A survey of legal cases found a smattering of successful challenges to these controversial diagnoses. These Daubert and Frye evidentiary challenges focused on definitional problems, an absence of substantial research support, and a lack of general acceptance. In State of New York v. Jason C., for example, the court wrote:
“This Court cannot help but ask, if this disorder exists, why isn't there convincing evidence that it exists outside the realm of civil commitment? If this disorder is a matter of the human condition, then shouldn't this paraphilia be seen outside of SVP proceedings?”
The diagnosis was similarly excluded in a Missouri case, In Re: Stanley Williams, on the basis of a high error rate, a dearth of peer-reviewed publications, poor validity, and lack of general acceptance. The judge in that case wrote:
“Using diagnostic language which has been rejected from inclusion in the DSM does not indicate general acceptance by the relevant community, but rather an unwillingness to accept the given methods and language in question.”
Behavioral Sciences and the Law published anoverview of the evidentiary shortcomings of the nonconsent diagnosis, “The admissibility of other specified paraphilic disorder (non-consent) in sexually violent predator,” in 2020. The peer-reviewed article by forensic psychiatrist Brian Holoyda gives a blueprint of how a Daubert evidentiary admissibility challenge to OSPD-nonconsent might be raised due to the purported construct's weak interrater reliability, limited research support and lack of established diagnostic criteria. The same analysis easily applies to hebephilia.
Interested readers can find more background on the history of the term “hebephilia” in a 2010 article by this blogger, "Hebephilia: Quintessence of Diagnostic Pretextuality. "
also published in Behavioral Sciences and the Law.
This article was first published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletters, and follow them on Instagram, TikTok, Reddit and Facebook. It is reprrinted with permission.
A guard working at a Hudson Valley prison pummeled a 19-year-old shackled by the legs to a restraint chair. An officer at a facility near the Canadian border denied food to a man in solitary confinement 13 times over a week. Outside Albany, a guard told a prisoner, “That’s how you get dumped on your fucking head,” then smashed his head into a wall.
Each time, New York state officials fired the guards. Each time, they appealed. Each time, private arbitrators gave the officers their jobs back.
Between 2010 and 2022, arbitrators reinstated three out of every four guards fired for abuse or covering it up, according to a review by The Marshall Project of 136 cases. The decisions the outside arbitrators wrote heavily favored prison guards, even in the face of strong evidence against them.
Just two arbitrators handled about half of these cases, the review found. Arbitrators often dismissed prisoners’ testimony as unreliable and criticized the state for putting on weak cases, according to a review of disciplinary records. Among the cases in which arbitrators upheld the firings of officers, a majority came after coworkers contradicted the accused guard.
In effect, arbitrators — typically private lawyers — can overrule personnel decisions made by the corrections department’s senior leadership, including the commissioner appointed by the governor.
Former New York state corrections Commissioner Brian Fischer said arbitration is “a crazy system” that doesn’t benefit the public. “The employee should be terminated, the inmate should not be abused,” he said. “And yet we let it go on and on.”
Current and former arbitrators say the system has a limited role: to protect a worker from a supervisor’s unfair decision, based on the evidence. “Those laws are not written to protect management,” said James Cooper, who decided New York prison guard cases for about 30 years. “Those laws are designed to protect the employees.”
As The Marshall Project and The New York Times previously reported, the state almost never succeeds in firing guards. Experts say this helps sustain a culture of cover-ups among corrections officers who falsify reports and send beating victims to solitary confinement.
Arbitration loosely resembles a trial. The prison agency investigates misconduct and presents evidence at a hearing, which can last days, to defend its decision to fire a staffer. The state and the guards’ union call officers, prisoners and experts as witnesses before the arbitrator, whose role resembles that of a judge. Both sides help select the arbitrator.
New York’s corrections department tried to fire Frank Nowicki, a guard at Attica prison, pictured here. He was accused of participating in a group beating of a prisoner, but an arbitrator returned him to work.Heather Ainsworth for The Marshall Project
Arbitrators typically make rulings based on the preponderance of the evidence — meaning the misconduct was more likely than not to have occurred. But in practice, The Marshall Project analysis found, they often didn’t fire guards unless there was overwhelming evidence. Nearly every abuse case in which a guard’s firing was upheld relied on the statements of coworkers, video or DNA evidence, according to the review. There was one exception, and in that case, eight prisoners testified against the officer.
“Unfortunately, the department as a whole has been very comfortable with lying on reports for years,” said John Ginnitti, who spent 15 years as an internal investigator after 19 years as a prison guard.
The rarity of firings sends the message to officers that misbehavior imposes little risk or cost.
“Hey, this strategy works for us,” Ginnitti said. “Why would we change it?”
In an email response to written questions, a spokesman for the corrections department wrote that the agency “does not speak for or represent disciplinary arbitrators, as they are independent third parties.”
The prison guards union president said in a statement that while his organization takes reports of abuse seriously, it has a duty to defend members from any allegations.
“Other than successfully defending our members a majority of the time in the cases cited, we have no influence over the decision the arbitrator makes,” said Chris Summers of the New York State Correctional Officers and Police Benevolent Association. “It is a system that is independent, fair and just.”
The limited but growing number of body and wall cameras in many New York prisons means that video evidence was often unavailable in the cases reviewed. In its statement to The Marshall Project, the department pointed out that it has spent hundreds of millions in recent years installing more cameras in prisons and expanding its body camera program.
Meanwhile, cracks in the blue wall are rare. Officers who report a colleague’s wrongdoing can face harassment and threats on the job.
Cody Mackey was a trainee at Five Points prison in the Finger Lakes region in 2016 when he reported misconduct he said he witnessed, records show. A prisoner had thrown clear liquid at him and two other guards. Mackey went into a staff bathroom to remove his shirt as evidence and found one of the officers urinating on his own and the second guard’s uniforms — they were trying to frame the prisoner. Video captured the guards discussing the scheme, according to state records. Prison officials fired them.
The guards appealed. Mackey’s testimony and a DNA analysis of the urine convinced the arbitrator to fire the guard who urinated and a sergeant who covered it up; the other officer was suspended for 9 months. By then, prison managers had removed Mackey from Five Points over concerns for his safety. He was transferred to another prison, where, on his first day, two correctional officers called him a rat to his face. Someone took to the public announcement system to say, “Things are going to be different here than at Five Points,” according to arbitration records. He resigned at the end of his shift.
The prison department spokesman said employees who retaliate against staff for reporting wrongdoing are investigated and held accountable.
Mackey said the FBI opened an investigation into additional threats made against him on Facebook and elsewhere.
“I didn't get union protection,” he said. “They're protecting the bad COs.”
Shortly after two guards said they used force to subdue a prisoner who attacked them at Wende prison, near Buffalo, in 2014, investigators received a complaint that the prisoner had been assaulted.
In their reports, guards David Nixon and Richard Mazzola claimed that they punched the prisoner several times in the side and shoulder. But the man had a boot-shaped bruise on his back, and he said that officers had broken three of his teeth, according to arbitration records.
The prison agency fired the guards, who appealed. When the case went before an arbitrator, doctors for both the union and the state testified that the prisoner’s wounds were consistent with a baton strike and a boot-heel stomp.
The two guards testified that they used force to gain control of a prisoner who had attacked Mazzola. They stuck with what they wrote in their use of force reports, which did not account for the prisoner’s serious injuries.
Arbitrator Samuel Butto ruled in 2016 that the officers were guilty of lying in their reports and that they deserved severe penalties. But he still reversed their firings, citing their excellent work histories. He ordered them back on the job after a 12-month suspension without pay.
In an emailed response, Butto declined to discuss individual cases. “I have always approached each case with all its complexities objectively, and reviewed my decisions with great care to preserve or restore the rights of all concerned,” Butto wrote.
Nixon did not respond to a request for comment; Mazzola declined. Acting as his own lawyer, the prisoner sued the guards for excessive use of force; in 2020, the state paid him $9,200 to settle the case.
A good work history was one of the most common reasons arbitrators cited in reinstating fired officers. This held true even in cases where the state presented video or other strong evidence of mistreatment.
In one case, video captured an officer threatening to “dump” a prisoner before slamming his head into a wall, according to arbitration records. The state argued that video evidence proved the guard used excessive force and needed to be fired. But the arbitrator, Timothy Taylor, was not convinced the head slam was intentional — it could have been an “inartful attempt to bring the inmate under control,” he wrote. Taylor found the officer not guilty.
Reached by phone, Taylor declined to comment, and he did not respond to detailed written questions.
Of the more than 100 officers that arbitrators returned to work, just over half were found guilty of at least some of the charges and had their penalties reduced, usually to a suspension. The others were found not guilty of all charges.
In about half of the reinstatements, arbitrators said the state hadn’t provided enough evidence to prove its case. Arbitrators also cited flawed or incomplete investigations by the state, such as failing to interview key witnesses. A spokesman said that the corrections department considers flawed investigations to be a rare occurrence, and that after a case concludes, state officials meet internally “to ensure we address any concerns noted by the arbitrator in future investigations.”
At the same time, prison abuse cases can be difficult to prove, said Cooper, the former arbitrator. The abuse takes place in a closed environment where guards cover for each other and a prisoner’s credibility can be undermined by their criminal records and inconsistencies in their stories. “You’ve got lousy witnesses with the prisoners, you’ve got liars with the officers, and physical evidence is hard to come by,” Cooper said.
Cases often come down to the guards' words versus the prisoners. Arbitrators did not find the accounts of prisoners credible in a third of the reinstatements The Marshall Project reviewed.
Police departments also frequently use arbitration, drawing scrutiny in recent years. Arbitrators have ordered police leaders to rehire officers accused of serious misconduct, including unjustified fatal shootings, sexual assault and drug trafficking.
Arbitrators returned police to work in about half of excessive force cases, according to Stephen Rushin, a law professor at Loyola University Chicago who has analyzed hundreds of arbitration decisions nationwide. That’s far less than the three-quarters of fired prison guards who have been reinstated in New York.
In recent years, some states have changed laws governing arbitration for police officers. Oregon now limits the power of arbitrators to reduce the punishment handed down by management. Minnesota has a new law that prevents unions and police departments from selecting arbitrators.
New York correctional officers gained the right to arbitration as the final step in a guard’s firing in 1972. In the decades since, the guards’ union has successfully fought to keep arbitration, despite efforts by the Legislature and governor to change the process. In 2019, officials negotiated a contract change that created three-person arbitration panels for the most serious cases, hoping to give the state more power to fire guards. Each panel would have representatives from both the union and the state as well as an independent arbitrator appointed on a rotating basis.
Four years on, the department and the union have never used the new panels. The union contract expired at the end of March but remains in effect while Gov. Kathy Hochul's office negotiates a new agreement.
The reliance on arbitrators to resolve disciplinary disputes exists in most union contracts, said Harry C. Katz, a professor of collective bargaining at Cornell University. Management typically fails to fire employees because it puts on poor cases, he said.
Public agencies like to blame arbitrators, and that may be true in some cases, but officials seldom acknowledge their own agencies’ failings, Katz said.
“If management really doesn’t like how it’s working, negotiate a different contract,” he said. ”Yeah, it’s difficult, but not impossible.”
When New York union representatives appeal a guard’s firing, they and prison officials choose the arbitrator by ranking a list of candidates.
The Marshall Project requested these selection records, but the agency that administers state arbitrations insisted they are secret.
Corrections department records show that some arbitrators get picked much more often than others. Butto and Taylor were selected most, handling half of the abuse cases reviewed. The other half of the cases were split among 19 arbitrators.
Dan Nielsen, former president of the National Academy of Arbitrators, said it’s not unusual for certain arbitrators to be selected more than others. It’s a reflection of the confidence both sides have in them, he said. “If there’s someone who is mutually acceptable, that’s the person who gets the case.”
Butto and Taylor took different paths to full-time arbitration work. Butto spent 10 years at the corrections department and represented the state at arbitration hearings, trying to fire guards for misconduct. Taylor, by contrast, worked for more than two decades as a lawyer representing New York’s teachers’ union.
Arbitrator Timothy Taylor upheld the termination of a lieutenant at Great Meadow Correctional Facility in New York, pictured here, in 2020, but determined that almost half of the officers who appeared before him in other cases were not guilty.John Carl D’Annibale/Times Union
Each man upheld the firings of guards about 20% of the time, according to The Marshall Project’s analysis. Taylor terminated a lieutenant at Great Meadow prison in the Adirondacks who had 22 years of outstanding job evaluations but a history of using excessive force. Butto fired an officer for a beatdown and cover-up, partly because the guard didn’t testify on his own behalf or express remorse.
But from there, their decisions about abuse cases diverged.
Taylor determined that almost half of the officers who appeared before him were not guilty, reasoning that the state’s cases were too weak to prove the allegations, according to the review. In contrast, Butto found most officers were guilty of at least some of the abuse-related charges. But rather than fire them, he decided the majority should instead be suspended, typically citing an officer’s good work history as a mitigating factor.
Both are experienced arbitrators. Butto is a member of the Labor and Employment Relations Association and serves on several arbitration panels, according to his resume. Taylor was the first person of color to chair the labor and employment law section of the New York State Bar Association.
They have both decided cases for a variety of New York agencies. For the state prison department, Taylor not only presides over disciplinary disputes, but also resolves disagreements about the union's contract.
The payment for a prison arbitration case is limited to $1,200 per day, split between the union and the state, but the pay can be substantial. Arbitrators have billed the union and the state tens of thousands of dollars for a single excessive-force case, according to invoice records.
In some cases, arbitrators have returned accused officers to work even when prisoners suffered severe injuries.
The prison agency tried to fire an Attica guard, Frank Nowicki, after accusing him of participating in a group beating of a prisoner who needed 13 staples to close two head wounds. At the arbitration hearing, a neurologist testified that the wounds were consistent with baton strikes. The union’s expert, the warden of Attica, cited his 35 years of prison experience and testified that he did not believe the wounds were caused by a baton.
Taylor found the neurologist’s testimony lacking. “Although a very impressive witness,” Taylor wrote, he “is not an expert on baton strikes or what injuries caused by batons look like.”
The arbitrator declared the prisoner not credible for making inconsistent statements in different reports and wrote that the state failed to prove its case. He found Nowicki not guilty, and returned him to work.
Three years later, the state paid $45,000 to settle a lawsuit the prisoner filed against Nowicki and other officers for the physical and emotional wounds he suffered. Nowicki, who did not respond to requests for comment, denied the allegation of abuse during the arbitration and in the lawsuit.
Ginnitti, the retired investigator who was in charge of the Nowicki investigation, said arbitrators have a financial interest that discourages them from firing guards.
An arbitrator “knows darn sure that if he fires too many people, or somebody that the union feels he shouldn't, he's never getting picked for arbitration again,” Ginnitti said.
Does working for a government agency give a forensic psychologist license to do or say pretty much anything without legal consequence, even if it violates a subject’s Constitutional rights?
That is the intriguing question addressed by the U.S. Ninth Circuit Court of Appeals in a recent decision relating to the civil rights of people behind bars.
The ruling in Gay v. Parsons stems from a risk assessment by two psychologists working for California’s Board of Parole Hearings. Omar Sharrieff Gay, a California prisoner, filed suit against the psychologists, claiming that their opinion that he was at high risk for violence was influenced by racial and religious animus.
Gay was serving an indeterminate sentence of nine years to life for the attempted murder of a police officer. His crime took place in 1989, when he was a 21-year-old member of the Crips gang. A few years after going to prison, he converted to Islam and quit the gang.
In his civil rights claim, Gay described the psychologists' 2015 interview of him as feeling like “a military or police style interrogation.” He claimed that psychologists Amy Parsons and Gregory Goldstein asked hostile questions and made prejudicial comments, including:
“Why do you hate white people and Jews?”
“With everything going on in the world, at home with [Muslims], we don’t know if you are just another radical Islamic terrorist.”
When Gay took offense and asked if they would be asking those questions if he were a white Christian, Goldstein allegedly replied, “You’re a high risk for violence with that sarcastic attitude.”
Absolute immunity?
In their defense, the psychologists argued that they were absolutely immune from liability because they performed a function that was integral to the Parole Board, whose officers are immune from liability over their decisions. They contended that objectivity would suffer if psychologists had to worry about being sued over adverse opinions.
The Ninth Circuit disagreed.
Unlike the Parole Board officers, the psychologists did not have decision-making authority. Rather, their roles were merely advisory. Furthermore, the appellate opinion noted, they had not offered any evidence that their risk-assessment work subjected them to a burdensome volume of legal complaints. “An abstract fear of vexatious litigation” is not enough to merit immunity, the court held.
Further, Judge M. Margaret McKeown observed, the psychologists’ argument “ironically puts [them] in a position of hypothetically violating their professional principles and standards [that require them to] ‘exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.’ ”
I did locate a contrasting decision in another California case, in which a psychologist was granted quasi-judicial (aka absolute) immunity. The distinction was that in that case, a child custody matter, the court had delegated decision-making authority to the psychologist to make certain orders regarding visitation. Without quasi-judicial immunity, the First Appellate District ruled in Bergeron v Boyd, custody evaluators would be “reluctant to accept court appointments or provide work product for the courts’ use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs.”
The case of Gay v. Parsons isn’t over yet.
Qualified immunity?
There are two relevant kinds of immunity. There is absolute immunity, aka quasi-judicial immunity. This is the kind that judges get when acting in their judicial capacities. Similarly, legislators and government prosecutors.
Then there is qualified immunity. That’s the 1967 SCOTUS doctrine that has enabled police to get away with so much corrupt and violent conduct. It bestows immunity to government representatives who unlawfully violate a person’s constitutional rights unless they should have known at that time that they were violating “clearly established law” based on a prior similar case.
With the Ninth Circuit ruling that the psychologists are barred from claiming absolute immunity, the case now reverts back to a district court for a determination as to whether the psychologists can claim this qualified immunity.
The psychologists may have more luck with this. I found several judicial decisions around the country in which psychologists were granted qualified immunity. These included one in Louisiana where the psychologist was assisting the state’s psychology board, as well as cases in both Louisiana and Nebraska involving clinicians working at state hospitals.
In contrast, in a previous Ninth Circuit case, Jensen v. Lane County, the court held that a psychiatrist who was evaluating individuals for the county to determine their eligibility for involuntary hospitalization was not entitled to qualified immunity.
So, it could go either way.
Whatever the outcome of his lawsuit, Omar Gay has moved on.
After he underwent a new risk assessment by a different psychologist who deemed him at only moderate risk, the Parole Board voted in October 2021 to cut him loose. He was 53 years old at the time, and had spent 32 years behind bars.
* * * * *
A YouTube video of the 9th Circuit hearing in Gay v. Parsons is HERE. A webinar on psychology and qualified immunity, featuring psycholegal scholar Jessica Bregant of Indiana University, is HERE.
There’s this forensic psychologist, we’ll call him Dr. Harms, who is infamous for his unorthodox approach. He scampers around the country deploying a bizarre admixture of obscure, outdated and unpublished tests that no one else has ever heard of.
Oh, and the Psychopathy Checklist (PCL-R). Dr. Harms never omits that. To him, everyone is a chillingly dangerous psychopath. Even a 30-year-old whose last crime was at age 15.
What’s most bizarre about Dr. Harms’s esoteric method is that he gets away with it. Attorneys may try to challenge him in court, but their protests usually fall flat. Judges rule that any weaknesses in his method should go to the “weight” that jurors give Dr. Harm’s opinions, rather than the admissibility of his tests.
Psychological tests hold a magical allure as objective truth. They retain their luster even while forensic science techniques previously regarded as bulletproof are undergoing unprecedented scrutiny. Based in large part on our briefcases full of tests, courts have granted psychologists unprecedented influence over an ever-increasing array of thorny issues, from future dangerousness to parental fitness to refugee trauma. Behind the scenes, meanwhile, a lucrative test-production industry is gleefully rubbing its hands all the way to the bank.
In other forensic “science” niches such as bite-mark analysis and similar types of pattern matching that have contributed to wrongful convictions, appellate attorneys have had to wage grueling, decades-long efforts to reign in shoddy practice. (See Radley Balko's The Cadaver King and the Country Dentistfor more on this.) But leaders in the field of forensic psychology are grabbing the bull by the horns and inviting us to do better, proposing novel ways for us to self-police.
New report slams "junk science” psychological assessments
In one of two significant developments, a group of researchers today released evidence of systematic problems with the state of psychological test admissibility in court. The researchers' comprehensive survey found that only about two-thirds of the tools used by clinicians in forensic settings were generally accepted in the field, while even fewer -- only about four in ten -- were favorably reviewed in authoritative sources such as the Mental Measurements Yearbook.
Despite this, psychological tests are rarely challenged when they are introduced in court, Tess M.S. Neal and her colleagues found. Even when they are, the challenges fail about two-thirds of the time. Worse yet, there is little relationship between a tool’s psychometric quality and the likelihood of it being challenged.
Slick ad for one of a myriad of new psych tests.
“Some of the weakest tools tend to get a pass from the courts,” write the authors of the newly issued report, "Psychological Assessments in Legal Contexts: Are Courts Keeping 'Junk Science' Out of the Courtroom?”
The report, currently in press in the journal Psychological Science in the Public Interest, proposes that standard batteries be developed for forensic use, based on the consensus of experts in the field as to which tests are the most reliable and valid for assessing a given psycholegal issue. It further cautions against forensic deployment of newly developed tests that are being marketed by for-profit corporations before adequate research or review by independent professionals.
"Life or death" call to halt prejudicial use of psychopathy test
In a parallel development in the field, 13 prominent forensic psychologists have issued a rare public rebuke of improper use of the controversial Psychopathy Checklist (PCL-R) in court. The group is calling for a halt to the use of the PCL-R in the sentencing phase of death-penalty cases as evidence that a convicted killer will be especially dangerous if sentenced to life in prison rather than death.
As I’ve reported previously in a series of posts (here and here, for example), scores on the PCL-R swing wildly in forensic settings based on which side hired the expert. In a phenomenon known as adversarial allegiance, prosecution-retained experts produce scores in the high-psychopathy range in about half of cases, as compared with less than one out of ten cases for defense experts.
Research does not support testimony being given by prosecution experts in capital trials that PCL-R scores can accurately predict serious violence in institutional settings such as prison, according to the newly formed Group of Concerned Forensic Mental Health Professionals. And once such a claim is made in court, its prejudicial impact on jurors is hard to overcome, potentially leading to a vote for execution.
The "Statement of Concerned Experts," whose authors include prominent professionals who helped to develop and test the PCL-R, is forthcoming from the respected journal Psychology, Public Policy, and Law.
Beware the all-powerful law of unintended consequences
This scrutiny of how psychological instruments are being used in forensic practice is much needed and long overdue. Perhaps eventually it may even trickle down to our friend Dr. Harms, although I have a feeling it won't be before his retirement.
But never underestimate the law of unintended consequences.
The research group that surveyed psychological test use in the courts developed a complex, seemingly objective method to sort tests according to whether they were generally accepted in the field and/or favorably reviewed by independent researchers and test reviewers.
Ironically enough, one of the tests that they categorized as meeting both criteria – general acceptance and favorable review – was the PCL-R, the same test being targeted by the other consortium for its improper deployment and prejudicial impact in court. (Perhaps not so coincidentally, that test is a favorite of the aforementioned Dr. Harms, who likes to score it high.)
The disconnect illustrates the fact that science doesn’t exist in a vacuum. Psychopathy is a value-laden construct that owes its popularity in large part to current cultural values, which favor the individual-pathology model of criminal conduct over notions of rehabilitation and desistance from crime.
It’s certainly understandable why reformers would suggest the development of “standard batteries … based on the best clinical tools available.” The problem comes in deciding what is “best.”
Who will be privileged to make those choices (which will inevitably reify the dominant orthodoxy and its implicit assumptions)?
What alternatives will those choices exclude? And at whose expense?
And will that truly result in fairer and more scientifically defensible practice in the courtroom?
It’s exciting that forensic psychology leaders are drawing attention to the dark underbelly of psychological test deployment in forensic practice. But despite our best efforts, I fear that equitable solutions may remain thorny and elusive.
Back in the 1980s, southern Alameda County in the East Bay was the hellmouth for serial murder. As a newspaper reporter covering the crime beat, I was reporting on at least three separate fiends prowling the suburbs and picking off young teenage girls at whim.
It was harder to stop them back then. Forensic DNA was still in its infancy. The historic evidentiary hearings in Oakland, California on the admissibility of DNA typing, with full-scale scientific battles tying up courtrooms for months on end, were still a few years away.
Tina Faelz and her mother Shirley
Fourteen-year-old Tina Faelz was one of the victims. In 1984, she was found dead with 44 stab wounds. She had taken a shortcut through a drainage culvert while walking home from school.
(As a side note, Tina had walked home that day because a group of girls was planning to beat her up if she rode the bus. Bullies tyrannized Foothill High School in suburban Pleasanton; on the same day as Tina’s murder, an alpha-male bully threw a football player into a dumpster and locked the lid.)
Detectives had no shortage of suspects. There was the mother’s violent boyfriend. There was the aforementioned school bully, whom someone had spotted near the crime scene. There was a man who was arrested shortly after Tina’s death for a similar assault in which the girl managed to escape.
What they lacked was hard evidence.
The case went cold for decades. It was finally cracked just a few years ago, thanks to the intersection of DNA science and a cop’s pregnancy. Detective Dana Savage couldn’t be on the streets due to her pregnancy, so she decided to take a gander at the vexing cold case.
Detective Savage was fairly certain that the culprit was one of two serial killers who’d been active in the region at the time; she just didn’t know which one. Based on the vigor of the attack, she figured the killer must have shed some blood, so all she needed was something to test for DNA. She struck gold with the victim’s purse, which had been found lodged in a nearby tree.
But when Savage got the call from the crime lab, she was in for a surprise. The culprit was not one of the serial killers. Nor was it any of the original suspects.
It was the 16-year-old classmate who’d been thrown into the school dumpster earlier in the day.
After killing Tina, Steven Carlson had dropped out of school and spent the next 30 years abusing meth and bouncing in and out of custody. When police came to talk to him, he started retching violently. He was tried and convicted, and is now serving a 16–to-life sentence.
It’s unfortunate that it took so long to catch the killer. But on the bright side, the Pleasanton police did things right: They kept their minds open and never fixated on the wrong person. That would have been far worse.
Barking up wrong trees
In other cases during that violent era, police sometimes got it tragically wrong. For example, when 8-year-old girl Cannie Bullock was raped and murdered in her home in nearby San Pablo, Detective Mark Harrison fixated relentlessly on William Flores, the sexually creepy guy next door, literally driving him to his grave. (If every creepy guy was a murderer there wouldn’t be many women left on the planet, or even many male cops if you believe the dismal statistics in the must-watch Netflix series Unbelievable.) Even after Flores self-immolated, the detective wouldn’t let him rest in peace. Once DNA technology became available, Harrison got a court order to dig up Flores’s body, certain the test results would clear the long-dormant case.
He was dead wrong. The DNA didn’t match that found on the little girl’s body.
(That case went cold for many years. Finally, DNA from a man convicted of sexual assault in Colorado was routinely entered into a database, which spit out a match. The killer, Joseph Cordova, was never a suspect in the girl’s killing, although he lived and worked in the area and had used drugs with the girl’s mother. He is now parked on California’s death row.)
But here’s the really bad news: Even with modern DNA technology’s miraculous crime-solving capabilities, fixations like Detective Harrison’s still lead police astray with some regularity. In particular, forensic science is no match for a priori stereotypes about the bad guys.
A case in point: The murder of elderly Leola Shreves in Yuba City, California.
The attack was frenzied. As detailed by San Francisco Chronicle reporter Matthias Gafni, the TV set was smashed and a door was ripped from its hinges. The 94-year-old victim had been tortured, strangled and beaten to a pulp. Her teeth were shattered, her jaw and back broken, and 17 of 24 ribs cracked. Her ears and scalp were nearly ripped from her skull.
Police quickly latched onto the next-door neighbor, a socially awkward video-game devotee. Michael Alexander aroused police suspicion in part due to his troubled past: He had been arrested at age 15 for threatening to kill a high school teacher and burn down the school after fighting with and choking another student.
Burdened with an intellectual disability, the 20-year-old was no match for the seasoned detectives who brought him in for questioning. When he denied ever being at his neighbor’s house, police lied to him, saying his fingerprints, shoe prints and DNA had all been found there. When he continued to profess his innocence, detectives suggested that maybe he had blacked out, and an alter ego named “Angry Mike” had committed the crime. Alexander’s naïve acceptance of the detectives’ ruses eventually led him to accede to their version of reality despite not having any recollection of it.
For anyone with expertise on false confessions, Alexander’s had all the classic hallmarks. It was replete with maybes and probabilities. The details did not match the evidence from the crime scene. And Alexander immediately recanted.
“Have you been looking for the real killer?” he later asked the detectives.
His question fell on deaf ears. He was arrested and charged with capital murder.
Unbeknownst to him at the time, there was indeed an abundance of real physical evidence – DNA, fingerprints and shoe prints. All of it excluded him and pointed to someone else.
Astonishingly, the identity of Shreve’s killer was in front of the detectives the entire time, but it took them six long years to realize it.
Armando Cuadras
On the night of the murder, a man named Armando Cuadras was found collapsed on the street just 300 yards away, drunk and badly injured. He was taken to the hospital by ambulance, but police failed to connect the two events. Cuadras, whose DNA was splattered all over the bloody crime scene, is now awaiting trial.
Mental blinders
Cognitive scientists have various names for the mental processes that cause people to prematurely focus on one solution to the exclusion of other possibilities. Tunnel vision. Myopia. Confirmation bias. In essence, the Yuba City police identified a suspect, based in part on their preconceived ideas about what a guilty person should look like, and in the process closed their minds to alternate possibilities.
Then, once all of the physical evidence came back and screamed out Alexander’s innocence, cognitive dissonance kicked in: It can be hard to abandon a firm belief even when confronted with irrefutable evidence that it is wrong. Cognitive dissonance was on florid display in the infamous case of the Central Park Five. As documented in the powerful Netflix series When They See Us, prosecutors still refuse to accept overwhelming evidence of the young men’s innocence. Such is the power of cognitive blinders. (My blog post on that astonishing case is HERE.)
Unfortunately, when police focus on the wrong person they not only destroy the suspect’s life, but also allow the real culprit to remain free, thereby endangering others in the community. There are myriad cases of very dangerous men who went on to rape and kill again after police investigators failed to diligently pursue all leads. (Again, let me plug the harrowing series Unbelievable.)
After almost two years in jail, Alexander was finally set free and the charges against him dismissed. But even with another suspect in custody and awaiting trial, police and prosecutors have stubbornly refused to concede that Alexander is innocent.
Which just goes to show, even the miracles of DNA typing are no match for minds that are rigidly shut.
* * * * *
FURTHER RESOURCES: The transcript of Michael Alexander's confession is available online, and is a good resource for teaching and learning about false confessions. Tina Faelz's killing is the subject of a true-crime book, Murder in Pleasanton, which includes back-story information not available elsewhere. If you are interested in diving deeper into the problem of cognitive biases in police investigations and how they can be avoided, a great resource is Criminal Investigative Failures, edited by D. Kim Rossmo. Two chapters I especially recommend are "Who Killed Stephanie Crowe," focusing on the appalling case that I've blogged about several times in which a 14-year-old boy was wrongfully arrested in his sister's murder, and "On the Horns of a Narrative," by my colleague David Stubbins and his brother, which focuses specifically on cognitive biases in criminal investigations.
A NOTE TO MY FAITHFUL SUBSCRIBERS: My apologies for the diminishing quantity of posts as of late. I'm working on a couple of larger writing projects. I also Tweet regularly on forensic psychology and criminology topics, so feel free to follow me on Twitter for more regular news and commentary.
By now, most people who pay any attention to criminal justice reform know better than to label people convicted of drug offenses “drug offenders,” a dehumanizing label that presumes that these individuals will be criminals for life. But we continue to label people “sex offenders” – implying that people convicted of sex offenses are somehow different.
A new report released by the Bureau of Justice Statistics should put an end to this misconception: The report, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-2014), shows that people convicted of sex offenses are actually much less likely than people convicted of other offenses to be rearrested or to go back to prison.
But you wouldn’t know this by looking at the report’s press release and certain parts of the report itself, which reinforce inaccurate and harmful depictions of people convicted of sex offenses as uniquely dangerous career criminals. The press release and report both emphasize what appears to be the central finding: “Released sex offenders were three times as likely as other released prisoners to be re-arrested for a sex offense.” That was the headline of the press release. The report itself re-states this finding three different ways, using similar mathematical comparisons, in a single paragraph.
What the report doesn’t say is that the same comparisons can be made for the other offense categories: People released from sentences for homicide were more than twice as likely to be rearrested for a homicide; those who served sentences for robbery were more than twice as likely to be rearrested for robbery; and those who served time for assault, property crimes, or drug offenses were also more likely (by 1.3-1.4 times) to be rearrested for similar offenses. And with the exception of homicide, those who served sentences for these other offense types were much more likely to be rearrested at all.
The new BJS report, unfortunately, is a good example of how our perception of sex offenders is distorted by alarmist framing, which in turn contributes to bad policy. That this publication was a priority for BJS at all is revealing: this is the only offense category out of all of the offenders included in the recidivism study to which BJS has devoted an entire 35-page report, even though this group makes up just 5% of the release cohort. This might make sense if it was published in an effort to dispel some myths about this population, but that’s not what’s happening here.
Framing aside, the recidivism data presented in the BJS report can offer helpful perspective on the risks posed by people after release. Whether measured as rearrest, reconviction, or return to prison, BJS found that people whose most serious commitment offense was rape or sexual assault were much less likely to reoffend after release than those who served time for other offense types. The BJS report shows that within 9 years after release:
Fewer than 67% of those who served time for rape or sexual assault were rearrested for any offense, making rearrest 20% less likely for this group than all other offense categories combined (84%). Only those who served time for homicide had a lower rate of rearrest (60%).
People who served sentences for sex offenses were much less likely to be rearrested for another sex offense (7.7%) than for a property (24%), drug (18.5%), or public order (59%) offense (a category which includes probation and parole violations).
Only half of those who served sentences for rape or sexual assault had a new arrest that led to a conviction (for any offense), compared to 69% of everyone released in 2005 (in the 29 states with data).
While the data were more limited on returns to prison,1 the study found that within 5 years after release, people who had served sentences for rape or sexual assault also had a lower return-to-prison rate (40%) compared to the overall rate for all offense types combined (55%). BJS notes that some of these returns to prison were likely for parole or probation violations, but because of data limitations, it is impossible to say how many were for new offenses, much less how many were for rape or sexual assault.
In sum, the BJS data show that people who served time for sex offenses had markedly lower recidivism rates than almost any other group. Yet the data continue to be framed in misleading ways that make it harder to rethink the various harmful and ineffective punishments imposed on people convicted of sex offenses.
The recidivism data suggest that current legal responses to people convicted of sex offenses are less about managing risk than maximizing punishment. The desire for retribution is understandable; unquestionably, rape and sexual assault inflict serious and lasting trauma. But our criminal justice system does a poor job of providing survivors of rape, sexual assault, and other violent crimes what they really want. In a 2016 survey of crime survivors, the Alliance for Safety and Justice found that, “Survivors of violent crime — including victims of the most serious crimes such as rape or murder of a family member — widely support reducing incarceration to invest in prevention and rehabilitation and strongly believe that prison does more harm than good.” But more prison time is the default response: those released after serving sentences for rape and sexual assault served longer sentences, with a median sentence of 5 years (compared to 3 years for all others combined) and more than a quarter serving 10 years or more before release.
And for many people convicted of sex offenses, confinement doesn’t end when their prison sentence does. Twenty states continue to impose indefinite periods of involuntary confinement under civil commitment laws – after individuals have completed a sentence (or, in some cases, before they are even convicted). Proponents justify the practice as “treatment,” but conditions of civil commitment are punitive and prison-like, and this confinement is hard to justify with the recidivism data we have. The likelihood of post-release arrest for another rape or sexual assault for this group is less than 2% in the first year out of prison, and after 9 years, fewer than 8% have been rearrested for a similar offense. Those who are released at age 40 or older are even less likely to be rearrested for another sex offense, with re-arrest rates about half those of people who are released at age 24 or younger.
After prison, a number of other special restrictions make reentry especially challenging for those who have served sentences for sex offenses, including registration, public notification, and restrictions to residence and employment. (Even before release, some restrictions make it difficult for some people to leave prison when they would otherwise be paroled.) These restrictions tend to cause more problems than they solve. Residence restrictions in particular have contributed to homelessness and other problems in cities where they leave little room for returning citizens. According to a 2015 U.S. Department of Justice brief, “residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support.”
In another recent academic article, Hanson et al. agree that these additional restrictions are “justified on the grounds of public protection,” even though the underlying assumptions may be wrong: “Individuals are targeted because policy-makers believe they are likely to do it again. This is a testable assumption, and, as it turns out, not entirely true.” Their analysis shows that individual recidivism risk varies widely, can be low enough to be indistinguishable from that of people convicted of non-sex offenses, and drops predictably over time. The data published by BJS track with those findings.
Collectively, the research seems fairly clear: our responses to people convicted of sex offenses do not reflect the actual – generally low – risks they present. Instead of panicking about the small portion who reoffend after release, it’s time we talk more rationally about responses that effectively support desistance from crime – and serve the actual needs of victims of violence.
* Wendy Sawyer is a Senior Policy Analyst at the Prison Policy Initiative. This essay is reposted with the kind permission of the Prison Policy Initiative.
Footnotes
Only 23 states could provide the necessary data for the 5-year follow-up period, and only 17 could do so for the entire time frame. The BJS report only includes return-to-prison rates for the first 5 years after release in the 23 states with the necessary data.
Conversely, it also only captures those behaviors that are caught by police. People who break laws after release but are never arrested would not be captured in recidivism data at all. Police presence and enforcement are therefore factors that affect recidivism statistics, as are prosecutorial decisions (for reconviction rates) and sentencing policies and practices (for reincarceration rates).
While the BJS study compares overall rates of reconviction and returns to prison by most serious commitment offense, only the rearrest data allows us to compare post-release offenses by most serious commitment offense.
