*This essay was originally part of an expert forum published by National Public Radio in conjunction with a May 26, 2011 episode of Alix Spiegel's show, All
Things Considered. It is being preserved here because it is no longer appearing on the NPR website.
Psychopathy is one of psychology’s most resilient creations, impervious to myriad controversies over its checkered history and troubling legal implications.
Its roots lie in 19th century theories of innate criminality. Italian psychiatrist Cesare Lombroso, founder of criminal anthropology and a proponent of scientific racism, posited “a group of criminals, born for evil, against whom all social cures break as against a rock – a fact which compels us to eliminate them completely, even by death.” This explanation of crime as rooted in biological degeneracy was embraced by the white supremacist eugenics movement of the early 20th century. The study of the “psychopathic personality” gained traction during the decades leading up to World War II, and strongly influenced German scientists of the Third Reich.
By the late 20th century, movie renditions of the “bad seed,” hard-wired by biology, had helped to cement the psychopath as a cultural icon. The current era of mass incarceration serves as a hothouse for its dark vision of humanity. By foregrounding intrinsic evil, psychopathy marginalizes social problems and excuses institutional failures at rehabilitation. We need not understand a criminal’s troubled past or environmental influences. We need not reach out a hand to help him along a pathway to redemption. The psychopath is irredeemable, a dangerous outsider who must be contained or banished. Circular in its reasoning, psychopathy is nonetheless alluring in its simplicity.
Although modern psychopathy is more nuanced than its 19th-century ancestor, diagnosing it remains an essentially subjective task. With its moralistic underpinnings, psychopathy functions as a coded language in correctional settings, for example. In a series of ethnographic studies, anthropologist Lorna Rhodes of the University of Washington found that prison clinicians use it and its watered-down cousin, antisocial personality disorder, to sort bodies into categories of “bad” (disliked) versus “mad” (pitied), thereby restricting access to limited treatment resources. Not surprisingly, found another researcher, African American prisoners are about twice as likely as equally eligible whites to be assigned this diagnosis.
Forensic psychology’s current fixation with psychopathy owes in part to the modern notion that proper safety precautions can make life virtually risk-free. In response, courts and the public have tasked psychologists with predicting which individuals will engage in violent or otherwise depraved conduct in the future. Whether psychopathy can meaningfully assist in the quest for a crystal ball remains an open question.
In the meantime, with its invocation of monstrosity and danger, psychopathy exerts a powerfully prejudicial impact on judges and jurors. When assigned this pejorative label, juveniles are more likely to be transferred to adult court for harsher punishment, men who have committed sex offenses are more likely to be preventively detained as so-called “sexually violent predators,” and capital murder defendants are more likely to receive the death penalty. Masking it implicit bias beneath a veneer of scientific objectivity, in adversarial settings psychopathy can literally be the kiss of death.
The federal prison system has a significant shortage of psychologists, and longtime bureau employees say the effect is catastrophic. According to the Bureau of Prisons, more than one-third of psychologist positions are unfilled, the highest vacancy rate in at least a decade.
This problem got worse when, in early 2025, prison leaders began routinely tapping psychologists to act as prison guards, according to interviews with psychologists and incarcerated people and confirmed by the Bureau of Prisons. Psychologists are, by policy, exempted from this practice, “except in emergency situations” such as escapes or riots. They say being repeatedly pulled away from their jobs puts the agency’s core mission — preparing people to be successful when they leave prison — at risk, and threatens the foundation of their therapeutic relationship with their patients.
When “there's nobody to deal with crises because we're all working correctional posts, that's a problem,” said one psychologist who resigned in September.
The practice, called “augmentation,” conscripts staff in non-security positions, like cooks and teachers, to work as correctional officers in case of staff shortages or emergencies. Almost everyone who works for the federal prison system is trained and certified as a law enforcement officer for this reason.
“Augmentation is the abuse of that system,” said Alix McLearen, a psychologist who retired from the bureau in 2024 after running programs including reentry services. “Now we’re not talking about, ‘Holy shit, we just had a massive fight. Can you help us interview people?’ We're talking about, ‘You have to go stand on the rec yard. You have to go work this housing unit.’”
Bureau of Prisons spokesperson Emery Nelson said in an emailed statement that calling on psychologists to work as guards did not violate bureau policy because the last fiscal year constituted an emergency “due to the budget crisis our agency was placed under by the Biden administration,” and that the agency had recently stopped diverting psychologists to other duties.
Ayana Satyagrahi, a transgender woman currently serving time at a men’s facility in Texas, said whenever there is a fight or other incident in the prison, all the staff — including psychologists — come running to act as officers. “They will arrive, and they will put you in handcuffs. It’s very difficult for me to tell my personal things when I’m feeling unsafe, for any of us to confide in psychology,” she said. “It makes us feel like we have nobody to talk to.”
In a system where about a quarter of prisoners have mental health problems, psychologists argue that they are an essential part of running prisons safely and effectively. Psychologists can step in to help when incarcerated people are suicidal or at risk of harming themselves. They offer one-on-one and group therapy and programs — like drug treatment and sex offender treatment — that help people address problems that may have led to their incarceration.
“When there’s robust mental health services at an institution, you have an inmate population more stable, less prone to act impulsively, less prone to act out of anger. Then you have staff that are safer,” said Cathy Thompson, who retired in 2023 as a top psychologist at the bureau. “The purpose of a prison — BOP’s mission — is not just to house people, but to help them develop the skills to return successfully to the community.”
A report from the Justice Department’s Office of the Inspector General identified two deaths of incarcerated people between 2014 and 2021 where psychologist understaffing and augmentation were at least partly to blame. In the case of one suicide, “the institution where the death occurred had reassigned psychologists and treatment specialists to correctional posts via augmentation on a daily basis for over two months, which significantly hampered the ability of the Psychology Services Department to meet its vital functions,” the report said.
The psychologist who left her job in the fall said she knew when she was hired that she would at times act as a guard. But in a decade at the bureau she had never had to do it routinely until last year. “The biggest issue for me was when I had to pat down people. It felt like an invasion of personal space. In no other setting do I touch my clients in that way. That always felt icky to me.”
Another psychologist, who was working a shift as an officer once per week before she resigned in August, said that meant she only had time to treat patients with the most severe mental illnesses. She said she could not treat the many people incarcerated at her facility who “were never taught appropriate ways to cope with things, and therefore used drugs, used sex, that has resulted in prison time.”
According to internal agency numbers obtained by The Marshall Project, in April 2025, dozens of federal prisons nationwide had fewer than half the psychologists needed. At more than 10 prisons, there was one psychologist, or none. Just one in five federal prisons had a fully staffed psychology department. The numbers have only worsened since then.
“Those are catastrophic numbers,” said Jill Roth, a psychologist who retired in 2021 as the Bureau of Prisons’ national coordinator for the prison rape elimination program. Every prison has a certain number of psychologist positions allocated based on how many people are housed there, what programs are offered and the concentration of people with serious mental illness.
At prisons with no staff psychologists, the bureau rotates psychologists from other facilities for a few weeks at a time to fill in temporarily. But that brings its own problems.
“There’s no continuity of care,” Roth said. Roth worked a number of temporary duty assignments during her career; these now tend to be done via video visits or over the phone, but the problems are the same, she said. “You were trying to maintain group therapy, and every week or two, you have a new [psychologist] in there. Therapy was nonexistent. It was awful.”
The bureau spokesperson said in his statement that the agency “has implemented an aggressive, targeted recruitment campaign and retention incentive to strengthen our ability to attract, hire, and retain qualified psychologists nationwide.”
The psychology program in the federal prison system used to be the envy of other correctional systems, according to psychologists who worked for the agency for decades. “BOP was a place psychologists were excited to work,” Roth said. “It has changed.”
Another psychologist said he left a facility on the West Coast in May after he was the only staff psychologist for more than 700 people. He loved his job, but he feared that the care he could provide under those circumstances did not meet basic professional standards. “At some point it becomes unethical to continue to participate in that,” he said. “Can we provide this group of humans the care they’re entitled to? The answer is no. One person cannot ethically do that.”
He still thinks about a person who died by suicide in one of the solitary confinement cells at his prison. “This man was not on our radar, and he showed no signs of mental health problems before that,” he said. Because the psychologist and his colleagues were spread so thin, they didn’t prioritize therapy for anything less than emergency situations. “With more staff, we may have been able to catch these types of things.”
On a recent International Day for the Elimination of Violence against Women, three Liverpool boys began filming a group of three girls out to see the Christmas lights. The girls asked the boys to delete their Snapchat video, but the boys refused. In the ensuing confrontation, a 14-year-old boy stabbed a 12-year-old girl in the neck, killing her.
A rash of such street stabbings of young girls by British boys was the impetus for the Netflix series Adolescence that’s winning accolades for its skillful dramatization of teen bullying and violence.
Only, an odd twist happened in the production: Unlike the real-life victims in the British news, the fictional girl who was stabbed to death was no innocent victim. Rather, Katie is a cyber-bully who mercilessly taunts 13-year-old Jamie Miller, instigating a social-media mob by tagging him as an incel on Instagram.
It’s quite the paradox: A show that’s ostensibly shining light on toxic masculinity implicates a young girl – herself a victim of leaked nudes, aka 'revenge porn' - as sharing blame in her own lethal victimization. Talk about pulling one’s punches. Yes, girls occasionally bully boys. But, girls mostly bully other girls, while boys bully both girls and boys. It's probably no coincidence that all of the show's writers and directors are men; even well-intended men find it very hard to sit with the gendered nature of lethal violence.
That’s not to discount the positive impact of the four-part series in raising public awareness about the sinister influence of the manosphere on vulnerable young boys. But even there, Adolescence keeps it superficial. A viewer with no knowledge of online incel culture will not learn much about the manosphere or how it recruits alienated young men; Andrew Tate is mentioned only once, in a casual aside that’s not followed up on. (For an in-depth look at the history and status of the manosphere, listen to feminist podcaster Jamie Loftus’s four-part series on Sixteenth Minute.)
Both the acting and the cinematography are impressive. Each episode was shot as one non-stop take, without a single edit, in what the Guardian of UK aptly calls “a stunning technical accomplishment."
Stealing the show is first-time actor Owen Cooper. He is incredible as the 13-year-old killer Jamie Miller. It’s hard to believe that this is the 15-year-old’s debut performance. As the camera rolls, we see him shift on a dime from childish innocence to violent rage to sly manipulation. Also impressive is the lead detective, played by Ashley Walters, who in real life served 18 months in prison as a youth.
There are other noteworthy positives. Episode four gave a moving portrayal of parents trying to understand what caused their child’s crime, and coming to grips with their own shortcomings and responsibility. Episode one highlighted the pervasiveness of CCTV surveillance (although, typical of TV absurdity, the detectives are able to collect all of the footage, create a video timeline, identify the suspect and get warrants for his arrest and a search of his home all in under eight hours in the middle of the night).
A psychologist weeps
This is a forensic psychology blog, so I would be remiss if I didn’t analyze the psychological evaluation that takes up the entirety of the third episode. Frankly, it’s a hot mess.
First off, it’s hard to know what type of evaluation is being performed. Granted, I’m not intimately familiar with juvenile justice in the UK. But this evaluation seems a hodge-podge. The psychologist Briony Ariston (Erin Doherty) frames it as “an independent presentence report,” but a presentencing report seems premature because the boy has not yet been tried or convicted. She asks a few competency- or fitness-for-trial questions at the very end, but earlier she also asks a lot of intrusive questions about sex that have no bearing on competency. She also muddles the incompatible roles of clinical and forensic examiner, a big no-no in our niche. The fact that she doesn’t take a single note during the hour-long interview would be inexcusable in a real-life forensic interview, as without notes there is no way for her work to be subject to proper scrutiny.
But those are all fairly minor quibbles. The most disturbing element of the evaluation is the psychologist's weakness and emotionality. Women who labor in the forensic trenches must be capable of keeping it together. If anything, we are more likely than our male colleagues to have our emotional allegiances challenged. Here, a 13-year-old boy is capable of taunting the psychologist until she is visibly shaken and hyperventilating, much to the boy's satisfaction. The stereotyped depiction of this woman professional is yet another sign that the show might have benefited from including the perspective of women writers and/or directors.
On balance? Adolescence succeeds in cinematography and acting, and it raises awareness about the manosphere. It would have earned more stars from me had it gone deeper and avoided bothsidesism.
⭐⭐⭐
Thanks to my forensic psychology community and to Zephyra for helpful thoughts and critiques.
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.
