October 31, 2007

Invasion of the hebephile hunters

Or, the story of how an archaic word
got a new lease on life

Stop a random passerby and ask what "hebephilia" means, and you’ll get a blank stare.

A few years ago, you would have gotten the same blank look from a forensic psychologist. Even from many who did risk assessments of sex offenders.

Not anymore. The obscure Greek word is gaining in popularity, and (for reasons I'll explain in a moment) may even be on the fast track to becoming a de facto psychiatric diagnosis. For that reason, it's a word worth knowing - and tracking.

Defining hebephilia is not as easy as you might think. I couldn't find it in my copy of Webster's dictionary, nor is it listed in several online dictionaries that I checked. Wikipedia (*) defines it as a variant of the word ephebophilia, meaning "sexual attraction to adolescents." Ephebia was the ancient Greek institution in which young men were trained as citizens and soldiers. Philein is the Greek "to love," as in philosophy (the love of wisdom) or philology (the study of literary texts).

Pioneering German sexologist Magnus Hirschfeld is credited with coining the term around 1906-1908, as part of his efforts to catalogue the varieties of sexuality (the word transvestism is also his). A tireless campaigner for the rights of sexual minorities, Hirschfeld would roll over in his grave to see how his term is being used today - in the service of involuntarily committing people to state psychiatric hospitals.

Perhaps the most avid proponent of this creative new use is Dennis Doren, a psychologist who evaluates sex offenders for civil commitment and has authored a popular how-to manual for government experts, aptly named Evaluating Sex Offenders: A Manual for Civil Commitments and Beyond.

In his manual, Doren defines hebephilia as a "paraphilia." Another esoteric Greek word, paraphilia is a sexual deviancy characterized by sexual fantasies, urges, or activities involving nonhuman objects, suffering or humiliation of oneself or one's partner, or nonconsenting partners such as children. The paraphilias listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) include exhibitionism, fetishism, frotteurism, voyeurism, sexual masochism, sexual sadism, and pedophilia. Hebephilia is not among the listed paraphilias.

Since hebephilia is excluded from the diagnostic bible, Doren trains evaluators to give hebephiliacs a diagnosis of "Paraphilia Not Otherwise Specified." This is but one of several efforts by Doren to broaden the diagnostic categories under which sex offenders can be civilly detained; in a previous post I discussed his use of the "Paraphilia NOS" diagnosis with rapists.

Hebephilia came close to extinction in 1933, when the Nazis plundered Magnus Hirschfeld's Institute of Sexual Science in Berlin and torched its massive archives in a public bonfire. Yet suddenly, 70-some years later and probably not coincidentally to the 2002 publication of Doren's manual, we are seeing a growing interest in the archaic construct.

In 2003, for example, a student researcher at the University of Montreal described "hebephiles" as an "alarming clinical reality" that was "almost completely absent from the scientific literature." In an unabashed display of self-promotion, she promised to "lift the veil of silence" on hebephilia through her research with Canadian men who had sexually offended against teens.

According to a 2007 publication by the esteemed Mayo Clinic, hebephilia is rapidly "becoming a generic term" to describe sexual interest in adolescents who are under the legal age of consent. The article defines a hebophile as someone interested in teenage girls, with ephebophile denoting attraction to post-pubescent boys. Basing a diagnosis on the legal age of consent seems to imply that a person could have a mental disorder in one jurisdiction but not in another, since the age of consent varies widely and adults may even marry teens under age 18 in many countries and U.S. states.

Hebephiles were the topic of another research study published this month in Sexual Abuse: A Journal of Research and Treatment. The study focused mainly on physical characteristics that purportedly distinguish pedophiles - men who are primarily attracted to prepubescent children - from normal men (who now have their very own label - teleiophiles). The study found that Canadian pedophiles are shorter on average than teleiophiles, with hebephiles somewhere in the middle of the height spectrum. This follows an earlier finding by the same research team, out of Toronto's Kurt Freund Laboratory, that pedophiles were more likely than teleiophiles to be left-handed. The researchers did not find any statistically meaningful relationship between hebephilia and handedness when using phallometry (penile erections) to measure primary erotic attraction. However, they still hypothesize that a neurological abnormality may underlie some men’s sexual attraction to teens.

The absurdity of describing erotic attraction to adolescents as a mental abnormality is that most normal heterosexual men are sexually attracted to teenage girls (who happen to be at the peak of their reproductive fertility). This fact is well established by multiple research studies over the past several decades. Such findings are certainly no surprise to the moguls of popular culture or to the advertising industry, which uses provocative images of teen girls and boys to sell everything from clothes to cars.

Given the scientifically unsupported nature of this emerging diagnosis, I suspect that clinicians will apply it arbitrarily, and especially to men who are sexually involved with male teenagers. I am already seeing this trend informally, in my reviews of forensic reports on sex offenders. Ironically, any such biased application will further turn the tables on Magnus Hirschfeld and the ancient Greeks' aesthetic appreciation for the adolescent male body.


* Postscript: At the time that this post was written, Wikipedia did not have a page on hebephilia. Now, it does.

Painting: "The Death of Hyacinth" by Jean Broc. Hyacinth was the young lover of the God Apollo. Wikipedia public domain.

October 30, 2007

Sex offender program boasts remarkable success rate

Amidst the continuing controversy about whether treatment works for sex offenders, one prison rehabilitation program is boasting an almost 100% success rate.

That is a 24-year-old program in Missouri, at the Farmington Correctional Facility. Only 4% of sex offenders who complete the "MoSOP" (Missouri Sex Offender Program) are rearrested for a new sex offense within three years; after 10 years, the nonrecidivism rate is a whopping 94%.

Those are pretty mind-boggling statistics, considering that the rearrest rate for non-sex offenders within three years is about two-thirds. (In a 15-state study conducted by the U.S. Bureau of Justice Statistics, car thieves had the highest rates of rearrest, at 79% within three years, followed by burglars, 3 out of 4 of whom were rearrested for another serious crime within three years of release.)

In Missouri, sex offenders who are sentenced to prison have the option of participating in MoSOP. The incentive is early release; those who decline are ineligible for parole and must serve their full prison term.

The program's approach - like most in the burgeoning sex offender industry - is cognitive-behavioral with a heavy focus on relapse prevention. Completion requires about 12 to 15 months, during which time prisoners engage in group and individual therapy, educational coursework, and intensive study that takes up most of their time.

Perhaps artificially elevating the success rate is that prisoners who fail to complete the program are not counted in the recidivism data. Only about 41% (or 521) of 1,273 prisoners finished the program between 2000 and 2004, for example; 2005 saw an additional 244 graduates. In 2006, only about half of all enrolled prisoners finished the entire two-phase program. I could not locate recidivism data for those who did not finish the treatment, although detected recidivism rates even for untreated sex offenders are fairly low, generally in the range of 14% to 17%.

A television news report on the Missouri program is available online.

October 29, 2007

ABA calls for death penalty moratorium

The American Bar Association today released findings of a three-year study on state death penalty systems and called for a nationwide moratorium on executions. Currently, more than 3,000 people are awaiting the needle, the chair, or the gallows.

In its detailed analyses of death penalty systems in eight U.S. states, the report highlights "key problems" that make the current system unfair, including racial disparities (more than 4 out of 10 death row prisoners are black, according to the U.S. Bureau of Justice Statistics), inadequate defense services for indigent defendants, and irregular processes for clemency review. The report also documents serious problems with evidence collection, preservation, and analyses; state crime laboratories are systematically underfunded and look nothing like those on television's CSI.

Of relevance to forensic psychology, the ABA's investigatory committee found that many states do not ensure that lawyers who represent mentally ill and mentally retarded defendants understand the significance of their clients' mental disabilities. In addition, jury instructions do not always clearly distinguish between the use of insanity as a legal defense and the introduction of mental disability evidence to mitigate capital sentencing.

Prosecutors and death penalty supporters are calling the study biased, saying many of the attorneys on the state investigation teams are death penalty opponents.

The full report is available online through CNN.

Chart: Capital Punishment, 2005, Bureau of Justice Statistics, U.S. Department of Justice.

New articles on sex offenders

The latest issue of Sexual Offender Treatment is now available online, with some interesting articles - all of them free. The journal is an international peer-reviewed journal published by the International Association for the Treatment of Sexual Offenders. Current articles include:

Myths and Facts about Sexual Offenders: Implications for Treatment and Public Policy
by Timothy Fortney, Jill Levenson, Yolanda Brannon & Juanita N. Baker
Abstract: The purpose of this study was to determine to what extent perceptions about sexual offenders are based on empirical evidence or misconceptions…. Results revealed that both sex offenders and the public overestimated the rate by which strangers victimize children, and overestimated the number of sex offenders who were victims of sexual abuse in childhood. Both offenders and the public overestimated the number of sex crimes that come to the attention of authorities. The public more extensively than offenders overestimated the frequency of sexual recidivism rates and underestimated the efficacy of sexual offender treatment in comparison to the literature.
The Logic of Sexually Violent Predator Status in the United States of America
by Daniel F. Montaldi
Abstract: Sexually Violent Predator (SVP) laws have placed great legal weight on psychosexual evaluations of sex offenders by mental health experts. The conclusions of these evaluations are used to civilly commit hundreds of offenders throughout the United States after the completion of their criminal sentences, possibly for life. This paper examines the reasoning used by evaluators and attorneys for the state to justify the claim that someone is SVP. [The article discusses] flaws in this reasoning and show how arguments for SVP status must proceed if the case for civil commitment is to be logically coherent and consistent with constitutional values.
The Therapeutic Challenge of the Learning Impaired Sex Offender
by Ron Langevin & Suzanne Curnoe
Abstract: Learning impairment in childhood and adolescence was examined in a sample of 1915 sex offenders and 279 non-sex offender and community controls. They were compared on school dropouts, grade failures, and placement in special education classes. The sex offenders showed significantly lower education and higher incidences of dropouts than community controls. The offender groups more often had failed grades and had been in special education classes than the population at large. Neurodevelopmental factors such as birth complications and defects, motor and language developmental abnormalities, ADHD, neurological disease and injuries, mental retardation, and learning disorders, all contributed to the educational deficits, but learning disorders diagnosed in childhood contributed most. The importance of assessing learning impairment for treatment compliance and effectiveness is discussed.
Back issues of the Journal are also available online for free, including interesting articles on juvenile offenders, diagnostic accuracy, actuarial assessment, treatment efficacy, incest offenders, phallometric assessment, diagnosing sexual sadism, and public policy issues.

October 26, 2007

Prison for consensual teen sex "cruel and unusual," Georgia high court rules

In a case that garnered international attention, Georgia's Supreme Court today overturned the conviction of a young African American man serving a 10-year prison sentence for consensual oral sex with his 15-year-old girlfriend when he was 17.

The court overturned Genarlow Wilson's conviction on the grounds that it constituted cruel and unusual punishment, in violation of the U.S. Constitution. Wilson's 2005 conviction had sparked outrage. In its wake, the Georgia legislature reduced consensual sex between minors from a felony to a misdemeanor punishable by no more than one year in prison. But Genarlow remained in prison because the legislative change did not apply retroactively to him.

Among those who lobbied to free him were an ex-Georgia governor, former President Jimmy Carter, and even some of the jurors who convicted him.

Amazingly, the state high court ruling was a bare majority, with three out of four justices voting to uphold the draconian sentence. Genarlow has already served more than two years in prison.

The court's decision and press release are available online. Wikipedia has lots of additional background information on the case.

October 24, 2007

Crime rates: Disconnect between perception and reality

U.S. crime rates have leveled off at the lowest rates in recorded history, yet the public continues to think that crime is on the rise. So say the folks at Gallup, reporting on their latest poll. Check out these graphs.

First the public perception:

Now the reality (violent crime and property crime):

What's responsible for the profound disconnect between perception and reality? Over at Grits for Breakfast, they're saying the cause can be summed up in five words: "If it bleeds, it leads."

There's more to it than that, of course. Opportunistic politicians playing on fear of crime as a sure-fire way to get votes comes to mind. But the nightly newscast definitely deserves its share of the blame.

October 22, 2007

Book Recommendation: The Center Cannot Hold

"The Little Engine that Could"

If you're deciding what to read next, I strongly recommend Elyn R. Saks' The Center Cannot Hold: My Journey Through Madness. I guarantee you won't forget it soon.

Saks is an acclaimed professor of law and psychiatry. She also struggles with severe symptoms of schizophrenia. She risked her reputation in academia in order to give hope to others like herself, and to counter the negative stereotypes about mental illness held by both the general public and mental health professionals:
"I wanted to dispel the myths ... that people with a significant thought disorder cannot live independently, cannot work at challenging jobs, cannot have true friendships, cannot be in meaningful, sexually satisfying love relationships, cannot lead lives of intellectual, spiritual, or emotional richness."
The topic is inherently compelling, and Saks masterfully describes what it is like to be tormented by inner demons, to be forcibly restrained on a hospital bed, to require medications that alter one's mental state and can cause horrific, irreversible side effects. She articulately describes her years of talk therapy, in which she came to understand the functional underpinnings of her psychotic thoughts, for example in warding off feelings that would have been consciously threatening.

I enjoyed her dry humor in highlighting the condescension and absurdities of the mental health system. In one case she reviewed during a legal internship, the patient was restrained because he refused to get out of bed. In another case, a young man was deemed delusional because he continually spoke with "imaginary lawyers" - who turned out to be none other than Saks and her colleague.

For years, in order to excel, Saks had to lead a double life. Swirling around her, constantly threatening, was the stigma of mental illness. While writing an academic paper on restraints, she asked a professor, "Wouldn't you agree that being restrained is incredibly degrading, not to mention painful and frightening?" With a kind and knowing look, the professor responded: "These people are different from you and me. It doesn't affect them the way it would affect us."

This book is especially important reading for mental health professionals in the United States, where medication reigns supreme (it has become practically taboo to recommend psychotherapy for severe psychosis, despite ongoing research establishing its efficacy) and coercion often trumps choice. Saks contrasts her experience of being hospitalized in the United States with her experience in England, where restraints have not been in widespread use for more than 200 years. In doing so, she gives us a deeper appreciation of the trauma induced by coercive and sometimes brutal treatment.

"The Little Engine that Could" is what her close friend Steve Behnke calls her, referring to her indomitable spirit even in the face of hospital clinicians' dire predictions about her future.

I highly recommend this courageous and brilliant memoir.

A 45-minute video of Saks' talk at this year's American Psychological Association convention is available online at her personal website. Other books by Saks include Refusing Care: Forced Treatment and the Rights of the Mentally Ill (2002) and Jekyll on Trial: Multiple Personality Disorder and the Criminal Law (1997).

October 18, 2007

Vigilantes: Coming soon to a community near you

Facing global environmental catastrophe, economic decline, and war without end, who can resist strapping on a nine millimeter and blasting bad guys?

Viewers are flocking to "The Brave One," which remains on the top 10 list with $35 million in gross sales so far. Women, especially, are loving Jodie Foster as Erica Bain, a liberal-turned-vigilante killer on the mean streets of New York.

It's "a pro-lynching movie that even liberals can love," says the New York Times.

Americans have always loved a good vigilante yarn. But the allure increases in times of uncertainty and perceived powerlessness. And people are more fearful of crime than ever, despite dramatic drops in crime since Charles Bronson ("Death Wish") blasted a path through the same city more than 20 years ago. Especially, these days, our collective fear and hatred turns to "terrorists" and criminal predators. (For a great analysis of the history and allure of the vigilante film, see Eric Lichtenfeld's piece in Slate.)

Nothing wrong with letting off a little steam. But recent news events cause me to doubt that the vigilante mood is shut off when people leave the theater.

Last month, two men in a small Tennessee town torched the residence of a man convicted of a child pornography charge. The man's hapless wife died in the fire.

A month earlier, in a scene reminiscent of the Salem witch trial days, a crowd of angry neighbors descended on a New Hampshire home, taunting the woman resident as a "molester" and "skinner" (prison lingo for a child molester) before tossing a burning scarecrow on her front porch.

These incidents are not isolated. Other vigilante attacks on sex offenders, the most vilified pariahs in modern society, include the following:
  • A vigilante killed two sex offenders and visited the homes of another four in Maine. He had gotten their addresses from an online sex offender registry. (He then shot himself to death.)
  • A drunken father and son broke into the house of a paroled sex offender in New Jersey and began beating another man whom they mistakenly took as the sex offender. Yet again, the vigilantes had found their victim through a "Megan’s Law" community notification law.
  • In Bakersfield, California, a knife-wielding vigilante tried to break down the door of a sex offender whose name, photograph and address had been distributed in the neighborhood by police. Police shot the vigilante dead.
Are you picking up on a common theme here? Something to do with community notification laws?

Publishing the names and addresses of people who are villainized as "sex offenders" is almost like handing out murder licenses to violent and unstable people.

As law scholar John LaFond put it: "These [community notification] laws are almost a confession by the state that we have done all that we can, you must now take the defense of your family into your own hands."

Even those who believe all sex offenders deserve to die might not feel so strongly if they knew how some people got onto the sex offender registries, which fail to distinguish based on the severity of the offense.

For example, what about the middle-aged family man convicted of statutory rape at age 16 for his consensual relationship with his 15-year-old girlfriend?

That man is no more of a threat to children than is any other randomly selected man on the street. He is certainly less of a threat to public safety than the vigilantes who are gunning for him.

Prison culture: Think of a state

Think quick: Which U.S. state most symbolizes prison culture?

If you're like me, the state that came to mind was either Texas or California.

But the acquittal of a group of guards in the death of a 14-year-old boot camp resident is shining a spotlight on the Sunshine State, which houses the third-largest prison population in Prison Nation.

Last week's acquittal was reminiscent of a similar case eight years ago in Florida, in which prison guards were acquitted of stomping prisoner Frank Valdes to death in his cell, even though guards' boot prints were found all over his back.

Yesterday, Time magazine recalled that earlier verdict in a scathing expose on "the rot of Florida's corrections culture." As the article points out, mentally ill prisoners are at especially high risk of abuse:
"Despite its Sunshine State image, Florida's prisons and juvenile detention centers are often associated with the more troubled corrections systems of its Deep South neighbors. While no one is asking Florida to coddle its prisoners, adult or juvenile, many fear it has yet to break its dark habit of coddling abusive guards and other officials watching over those prisoners."

"The state is facing lawsuits alleging that its prisons subject too many inmates, including the mentally ill, to a prisoner 'warehousing' culture of unlawfully extreme isolation and deprivation, usually with little or no rehabilitation efforts to prevent recidivism. Other suits decry what one calls excessive as well as 'malicious and sadistic' use of pepper spray and other chemicals to keep mentally ill prisoners under control. In many cases the sprays have burned off inmates' skin, according to the suit."
It's one of a series of Time exposes on prison problems. Earlier this year, the magazine spotlighted both the crisis in California prisons and the burgeoning trend toward solitary confinement that literally drives some prisoners crazy. (I have more information on "segregation psychosis" on my website.)

Photo credit: The Black Commentator

October 17, 2007

Hot off the press: Mental health and criminal justice

The new issue of Criminal Justice, the American Bar Association magazine (Vol. 22 No. 3), features a roundup of cutting-edge topics at the intersection of psychology-law. The articles are written by notables in their fields and, best of all, they are available online and for free:

Mental Health and Criminal Justice: An Overview

By Andrew E. Taslitz

The Supreme Court's Recent Criminal Mental Health Cases Rulings of Questionable Competence

By Christopher Slobogin

For decades the subject of mental illness and criminal law languished in the legal "backwaters" at the U.S. Supreme Court. That changed in 2003 when the Court accepted the case of Sell v. United States (a defendant's right to refuse medication), followed quickly by two more seminal decisions in Clark v. Arizona (2006) (the scope of psychiatric defenses) and Panetti v. Quarterman (2007) (the definition of competency to be executed). But has this sudden interest in mental illness issues resulted in good law? The author argues to the contrary and details where and how the Court has erred.

Prosecutor as "Nurse Ratched"?: Misusing Criminal Justice as Alternative Medicine

By Gerald E. Nora

Traditionally, prosecutors approach claims of mental impairment by criminal defendants with skepticism, contesting competency defenses and sentencing mitigation. More recently, though, they find themselves as "diversionary gatekeepers" - seeking alternatives to trials and prison for those who more aptly belong in the medical arena. The author, a Cook County ( Illinois) state's attorney, finds neither role satisfactory and argues for reforms that will limit a prosecutor's responsibility for addressing a defendant's mental health needs through the justice system.

The Promise of Mental Health Courts: Brooklyn Criminal Justice System Experiments with Treatment as an Alternative to Prison

By Matthew J. D'Emic

Judge D'Emic tracks the establishment of one of the country's first courts to use diversionary treatment in dealing with mentally ill criminal defendants. He maps the defendant's journey from intake through assessment and treatment to "graduation" from the program.

Executing the Mentally Ill: When Is Someone Sane Enough to Die?

By Michael Mello

An opponent of the death penalty, Prof. Mello presents this personal account of advocating for mentally ill death row inmates. While detailing his clients' descent into madness and the tortured disconnect between the fantasy world of the insane and a justice system bent on accountability, the author looks at the impact of three high-profile cases.

Mental Health Status and Vulnerability to Police Interrogation Tactics

By William C. Follette, Deborah Davis, and Richard A. Leo

The authors offers a psychological explanation of how police interrogation methods affect the "average" person's ability to understand and exert his or her Miranda rights and what makes the mentally ill so much more susceptible to police coercion and likely to falsely confess.

October 16, 2007

Sex offender news roundup

Florida court strikes down residency restrictions

In a surprising decision, an appellate court in Florida has struck down the city of Jacksonville's residency restrictions for convicted sex offenders. After the state passed a law preventing offenders from living within 1,000 feet of parks, schools, libraries, or day care centers, the city of Jacksonville expanded the distance to 2,500 feet. In striking down that municipal ordinance, the court said it lacked any "rational basis" and thus violated the due process rights guaranteed in the U.S. Constitution.

For an analysis and a link to the ruling, see the Sex Crimes blog.

California police dragnet closing in

Who came up with the myth that sex offenses primarily happen in parks or at schools, as opposed to behind the closed doors of someone’s home? Whatever its origin, it sure is popular these days.

With the state's Supreme Court poised to hear a desperate appeal from four sex offenders who are being threatened with prison because they live too close to parks or schools, parole agents are fanning out across the state and making arrests. Some 855 sex offenders up and down the state are facing reincarceration over the next two weeks if they don't find a new place to live, according to the California Department of Corrections and Rehabilitation.

Andy Furillo of the Sacramento Bee has the full story.

Appellate court overturns deportation

An adult who engages in a sexual act with a minor has not necessarily committed a crime of "moral turpitude" meriting automatic deportation, the Ninth U.S. Circuit Court of Appeals has ruled.

The decision reversed an immigration court's order deporting Alberto Rene Quintero-Salazar, a Mexican national who came to the United States in 1990 and became a lawful permanent resident four years later. His wife, three children and two stepchildren are all U.S. citizens and he argued that his deportation would create an undue hardship for them.

According to the court, a crime of moral turpitude meriting automatic deportation requires willfulness or "evil intent" involving some level of depravity or baseness so far contrary to the moral law that it gives rise to moral outrage. In contrast, the sexual conduct criminalized by the California statute under which Quintero-Salazar was convicted could include consensual sex between two high school students, conduct that is legal in other states, and conduct that would be legal in California if the adult and minor were married.

Steven Ellis of the Metropolitan News-Enterprise has the details on the case, Quintero-Salazar v. Keisler, No. 04-73128.

Photo credit: "Bogeyman" by faedrake (Creative Commons license)

More bad news from California: Jails designated as "treatment facilities"; mental health courts vetoed

Wouldn't it be great if, instead of supporting more prisons, California's governor signed legislation authorizing mental health treatment that might reduce the need for prisons in the future?

Sadly, that's just a fantasy.

After my post yesterday about Gov. Schwarzenegger vetoing three criminal justice reform measures, an alert subscriber notified me about two other forensic treatment-related decisions in which the governor came down on the wrong side:

SB 568: Jails designated as "treatment facilities"

With state mental hospitals crammed full of civilly committed sex offenders and the like, there's no longer room to treat mentally ill defendants who are too crazy to have their day in court. So, with the backing of the state's sheriff's departments, Gov. Schwarzenegger signed emergency legislation allowing the jails to forcibly medicate defendants who are incompetent to stand trial.

As I explained in my original post on this bill back in June, some forensic psychologists are concerned about this law. Jail psychiatric services are minimal; prisoners with severe mental disorders will be denied the type of around-the-clock services in a therapeutic setting that they may need to be restored to trial competency.

California's move toward minimizing treatment services may encourage other states to do the same. foisting additional fiscal burdens onto cash-strapped county governments. It's all part of the trickle-down effect of the criminalization of the mentally ill that began in the 1970s with the defunding of community mental health programs and escalated with the prison boom of the 1980s and 1990s.

SB 851: Mental health courts nixed

Gov. Schwarzenegger also placed himself on the wrong side of the national mental health court movement by vetoing a bill that would have expanded such courts in California. In vetoing SB 851, he cited the fiscal costs, estimated by the Department of Corrections at $14 million per year. He also claimed that mental health courts would "allow people who have committed crimes to avoid punishment completely because of a mental health issue." (Never mind that defendants often find the stringent treatment requirements of such courts more onerous than just doing their time.)

Let's look at some numbers. California's prison budget this year was a whopping $10 billion. That does not include another $7.4 billion just authorized for 40,000 new prison beds, or the estimated $330 million per year in interest on those construction bonds. Indeed, California is spending so much on keeping people locked up that in five years, annual prison spending will shoot past higher education expenditures.

If my math is correct, the annual budget for the mental health courts would be only about one-tenth of one percent of this year's prison operating budget.

If Gov. Schwarzenegger was interested in reducing recidivism, as he claims, he would be willing to expend that measly sum to provide mentally ill prisoners with the treatment that might rehabilitate them and allow them to lead productive lives. Keeping the mentally ill out of prison is not only humanitarian, but would reduce the need for new prison beds, providing big cost savings to us tax-paying citizens in the future.

But that's assuming that the governor was willing to stand up to the correctional industry, the state's most powerful lobby. No California governor has done that and survived.

Hat tip to Robert Canning for alerting me to these developments.

October 15, 2007

Calif. governor vetoes three criminal justice reform bills

On Sept. 19, I posted that California could lead the way in criminal justice reform if our governor signed three innovative initiatives then sitting on his desk.

Sadly, the governor caved in to special interest lobbying by police and sheriff's departments, today announcing that he had vetoed all three. The reform measures, and his brief explanations for rejecting them, are:

Senate Bill 511: To require electronic recording of police interrogations in serious felony cases
Governor Schwarzenegger: "While reducing the number of false confessions is a laudable goal … interrogations are dynamic processes that require investigators to use acumen, skill and experience to determine [the best] methods."
Senate Bill 756: To increase the accuracy of eyewitness identifications by appointing a task force to create guidelines for police line-up procedures
Governor Schwarzenegger: "… Law enforcement agencies must have the authority to develop investigative policies and procedures that they can mold to their own unique local conditions and logistical circumstances rather than be restricted to methods created that may make sense from a broad statewide perspective."
Senate Bill 609: To require that testimony from jailhouse informants be independently corroborated before being used as the basis of a criminal conviction
Governor Schwarzenegger: "… When that kind of testimony is necessary, current criminal procedures provide adequate safeguards against its misuse."
In other words, he rejected any additional regulation of law enforcement practices. I guess it was unrealistic to think that an opportunist politician might stand up to the state's most powerful political lobby.

For more disappointed reaction to the vetoes, see "Legal advocates blast Schwarzenegger for vetoing three justice bills," by Brandon Bailey, San Jose Mercury News, Oct. 18, 2007.

October 12, 2007

Despite shootings, schools among safest places for children

Shooting rampages - statistically rare events

This week's school shooting in Cleveland, Ohio may stir up the idea that schools are dangerous places. Especially since the 14-year-old boy, Asa Coon, favored the "goth" look of the Columbine shooters, wearing a long trench coat and black-painted fingernails. Reportedly upset over a recent suspension for fighting, Coon injured four people before killing himself.

Ironically, the very day before this shooting, a sociologist had heralded schools as "among the safest places for young people to be."

Karen Sternheimer, an author and sociology professor at the University of Southern California, explained in her blog article why this is true, despite highly publicized rampages at Columbine, Virginia Tech, and – now – the school in Cleveland.

"Crime in America's schools is on the decline," Sternheimer writes at the Everyday Sociology blog. "Children are much more likely to be victimized by adults than by each other. Statistically, kids are actually safer in the company of other students than they are with their parents."

In critiquing knee-jerk Zero Tolerance responses to the perceived problem of school violence, Sternheimer concludes:

"There is a danger in focusing so much on unlikely events that we ignore many of the complex issues plaguing so many schools: overcrowding, outdated materials, decaying facilities and overwhelmed teachers, not to mention alienating students with rigid one-size-fits-all policies. This, coupled with skyrocketing tuition at colleges and universities means that many are being shut out of higher education entirely, giving them less reason to commit themselves to education. Perhaps the biggest danger facing our nation's schools is using our scarce resources to massage our fears rather than to educate a generation."
The article is available at the Everyday Sociology blog. Sternheimer is the author of two acclaimed books about youth culture: Kids These Days: Facts and Fictions About Today's Youth and It's Not the Media: The Truth About Pop Culture’s Influence on Children.

See also my post on Virginia Tech and my Amazon review of
Rampage: The Social Roots Of School Shootings.

"Innocentrism": Changing the face of American law?

Is DNA testing, and the resultant exoneration of hundreds of innocent prisoners, dramatically changing the focus of criminal law in the United States? And if so, is that a good thing?

That's the topic of an intriguing new article by University of Utah law professor Daniel S. Medwed. The article, aptly titled "Innocentrism," is available online through the Social Science Research Network (SSRN). Here is the abstract:

American criminal law is undergoing a transformation due to the increasing centrality of issues related to actual innocence in courtrooms, classrooms, and newsrooms. This phenomenon, which I will term “innocentrism," derives mainly from the emergence of DNA testing and the subsequent use of that technology to exonerate innocent prisoners. Indeed, since 1989, over 200 prisoners have been freed as a result of post-conviction DNA testing, their innocence proven beyond a shadow of a doubt. Dozens of nonprofit innocence projects have sprung up to investigate and litigate claims of innocence. Legislators have responded favorably to these developments as well; over forty state legislatures have passed statutes to facilitate inmate access to biological evidence that is suitable for post-conviction DNA testing. A number of states have even gone beyond the realm of DNA and implemented legislation designed to address the root causes of wrongful convictions, for instance, by modifying the manner in which eyewitness identification procedures are conducted. The academic community, in turn, has gravitated toward the topic of innocence with rising ardor, as evidenced by the fact that no fewer than eight major law reviews have published symposia on topics concerning wrongful convictions since 2002. It may not be farfetched to suggest, as others have done, that the effort to free the innocent has become the civil rights movement of the twenty-first century.

Many observers, including this author, have praised the evolving focus on actual innocence in the criminal law discourse and advocated the passage of legislative reforms geared toward eradicating or at least curtailing the factors that contribute to wrongful convictions. Several prominent commentators, however, have reacted less sympathetically and have mounted a series of attacks on the innocence movement, both from the right and the left. In this Essay, I aim to respond to those skeptical of (and antagonistic toward) the emerging centrality of innocence-based arguments in criminal law: in effect, to critique the critics. In doing so, I hope to demonstrate that innocentrism, while far from a panacea to the criminal justice system's many ills, is a positive occurrence and one that ultimately can complement, rather than replace, the emphasis on substantive and procedural rights that for good reason rests at the core of American criminal law.
Thanks to inveterate blog subscriber Kirk Witherspoon for alerting me to this article.

International outrage over abuses of U.S. boys

If you walked in partway through my presentation you might have assumed I was talking about human rights violations in a Third World country."
- Gregory Kutz, GAO investigator
speaking at Wednesday's Congressional committee hearing

Two days ago, I posted about a scathing governmental report and Congressional inquiry into widespread abuses at juvenile boot camps. In the wake of Wednesday's Congressional committee hearing, the topic is generating outrage around the world.

"Torture, starvation and death: how American boot camps abuse boys," screams a headline in today's Times of London.

The article, available online, presents unsettling details of abuses and deaths of youths around the country. Online comments from countries as far-ranging as Australia and China lament the failure of the world's superpower to protect its children from state-sanctioned abuse.

The publicity coincides with the Florida manslaughter trial of seven juvenile boot camp guards and a nurse over the death of a 14-year-old boy last year. Physical abuse of Martin Lee Anderson was caught on videotape. Jurors in that trial are set to begin deliberating today.

UPDATE: Just hours after I posted this, the jury reached its verdict. The all-white jury took just 90 minutes to find all of the defendants not guilty. "You kill a dog, you go to jail. You kill a little black boy and nothing happens," the lawyer for Anderson's mother told reporters outside the courtroom. CNN has the latest (along with links and blog commentaries, including the post you are reading here at "In the News").

Photo: Martin Lee Anderson, 14, who died at a boot camp on Jan. 6, 2006. A disturbing, 8-minute video clip of the boy's abuse is available online. Court TV also has a photo gallery on the case.

CNN linked to this post.

October 11, 2007

The Social Construction of Crime

Do you think that a crime is just, as Webster's would say, "an unlawful activity"? Think again. Yesterday, I was horrified to witness a prison guard brutalize a young man for the mere act of smiling, which the guard construed as a prison rules violation. In this essay, a sociology professor explains the complicated interpersonal negotiations that go into deciding whether a trivial act will be labeled a crime.

Guest essay by Bradley Wright*

What is a crime? This simple question turns out to have a variety of answers.

A simple answer would be that a crime is doing anything that is against the law. The problem with this, however, is that there are tens of thousands of laws, and who could possibly remember all of them? Did you know that here in Connecticut it is illegal to throw away used razor blades? In Massachusetts, it's illegal to use bullets as currency? In Arkansas, it is illegal to drive barefoot?

Some laws may be well-known but rarely or never enforced. For example, when was the last time you got a ticket for driving five miles over the speed limit? If a law is either not known or not enforced, does breaking it constitute a crime?

This raises the issue of which laws actually get enforced, and one answer uses the social psychological principle of social construction. Rooted in the sociological perspective of symbolic interactionism, social construction is the idea that social realities happens as people interact and come to an agreement about what a situation means.

Here’s an example that happens fairly regularly here at [the University of Connecticut]: A student walks around at night with a beer in their hand, and they see a police officer. Not only are they underage, but they are also not supposed to have an open container in public, so they drop the beer. The student defines the situation as one of avoiding an alcohol-related crime. The police officer sees the dropped bottle or cup, goes over to the student, and tells them to pick it up and dispose of it properly. The police officer defines the situation as one of littering. This situation is pretty straightforward—the student readily accepts the police officer’s definition and throws away the cup or bottle.

In other situations, however, there is protracted negotiation about what is happening and what is right and wrong.

Here's a video shot in St. George Missouri. Police Sergeant Sgt. James Kuehnlein confronts 20-year-old Brett Darrow for being stopped in a parking lot. It turns out that Brett had a video camera on in the back of his car, and so we are able to hear the whole interaction. Here's a snippet of the conversation:

Kuehnlein asks for identification. When Darrow asks whether he did anything wrong, the officer orders him out of the car and begins shouting.

"You want to try me? You want to try me tonight? You think you have a bad night? I will ruin your night. … Do you want to try me tonight, young boy?"

Darrow says no.

"Do you want to go to jail for some [expletive] reason I come up with?" the police officer says. Later, Darrow says, "I don't want any problems, officer."

"You're about to get it," Kuehnlein is heard saying, "You already started your [expletive] problems with your attitude."

[The police officer was ultimately fired.]

There are various implications of crime being socially negotiated. Most obviously, justice isn't a predetermined outcome based on what you actually do, instead it's sometimes what you can negotiate. This puts a premium on your ability to negotiate a successful outcome with police officers and other members of the criminal justice system. That's why it's such a good idea to be polite and deferential to the police when you interact with them. "Yes officer" and "no officer" are very good things to say, for a pleasant interaction paves the way for a more successful negotiation of what's going on.

The criminal justice system may not always enforce all written laws, but they do sometimes enforce unwritten laws. There are various norms of how to deal with the police and other officials, such as being polite, and even though these norms are not official laws, they are enforced as if they were.

For example, having a sarcastic tone with a police officer isn't illegal, but it can change the amount of punishment you get for a crime. Likewise, there is no law saying that defendants in court have to present themselves well and be apologetic, but it's quite possible that poor self-presentation in the courtroom will lead to a harsher sentence.

This social construction of crime can also be affected by individuals' place in society. The police and courtroom actors, like anyone, have their preconceptions about different types of people. That means that going into their interaction with somebody they might already have an idea as to whether that person is guilty or how that person will act.

These preconceptions, which we can also call stereotypes, can affect the interaction between the official and the person in question. In the video clip, the police officer clearly has some ideas about young people in fast cars, and he projected them onto the person he stopped. Not only age, but also race, gender, clothing, and general appearance can affect expectations of law enforcement officials which in turn, via social construction, can alter the way someone is treated by the police or the courts.

The next time that you get pulled over, maybe the real question is not what you did but rather what you can construct through social interaction.

*Reprinted with the written permission of Bradley Wright from the exceptionally high-quality blog Everyday Sociology. Dr. Wright is a sociology professor at the University of Connecticut.

CA: Sex offenders win temporary reprieve

Years ago, when he was 16, "John Doe" had consensual sex with a 15-year-old girl at a party. Now, long after he's done his time, the state of California wants to send him back to prison for living too close to a school or park.

"John" (whose name is being kept secret to protect his privacy) is one of four convicted sex offenders who are challenging the constitutionality of the new Jessica's Law and its residency restrictions.

The four are among 1,800 parolees who were recently ordered to move or face prison. Under Jessica's Law, approved by voters last November, sex offenders may not live within 2,000 feet of a school or park.

Yesterday (Oct. 10), John and the other three won a small victory when the state Supreme Court issued a temporary injunction forbidding the state from sending him back to prison until his challenge is heard in court later this month.

None of the four men challenging the law committed crimes against children; their crimes occurred as many as 22 years ago. Their attorneys are arguing that the law is unconstitutional because it is too vague, imposes unreasonable restrictions, and continues to punish people long after they have served their time.

CNN linked to this post.

October 10, 2007

Government probe finds widespread abuse at juvenile boot camps

When a spider bite sickened 15-year-old Roberto Reyes, staff at a juvenile boot camp tied a 20-pound sandbag around his neck. He later died.
An isolated incident? Not hardly.

The report of a government investigation, released today, documents widespread abuses at juvenile boot camps and wilderness therapy programs around the country and in U.S.-operated facilities abroad. Innvestigators found 1,619 incidents in 2005 alone.

The Government Accountability Office report attributes the abuses to a combination of factors, including reckless operations, untrained staff, insufficient food, and a lack of regulation or oversight. There's not even a central database to register complaints.

This morning, parents of some of the child victims testified at a hearing before the Education and Labor Committee of the U.S. House of Representatives. It's good to see that Congress is finally shining a spotlight on this unregulated industry, because deaths like Roberto Reyes' – including many from dehydration and abusive physical discipline - have been in the news for decades.

October 9, 2007

Experiment aims to cut recidivism through reducing parole

One of the inmates I evaluated at San Quentin today had violated parole by missing a counseling appointment. The other had tried to beat a urinalysis after drinking alcohol on his birthday. Every day, busloads of "technical violators" like these two young men are dumped off at California prisons, giving the state the highest recidivism rate in the United States. Within three years of release, two-thirds of California parolees are back behind bars; that's twice the national average.

One method of reducing recidivism that is currently under consideration is to eliminate parole for all except the most dangerous of released prisoners. It's been done in other states and, counterintuitively, it may make the public safer. That's because limited resources can be targeted toward identifying and supervising the few very dangerous ex-prisoners.

Parole agents in two Southern California counties will be testing this idea starting next month. If it works, the changes may be implemented statewide next year.

Joan Petersilia, the UC Irvine criminology professor who chaired the governor's Rehabilitation Strike Team, explains the current situation and the need for reform in an op-ed in today’s Los Angeles Times.

Conviction overturned for failure to allow expert testimony on eyewitness identification

But courts retain broad discretion to decide

An Illinois appeals court has overturned a man's conviction because the trial court did not allow expert testimony on the fallibility of eyewitness evidence.

The case involved Walter Allen, who was sentenced to 43 years in prison for a 2001 robbery-shooting. The robbery was committed by two men wearing hoodies who entered a dry cleaning business, demanded money, and shot a woman employee in the back. From her hospital bed, the woman identified Allen from a photograph as the shooter.

At Allen's trial, the judge refused to allow an expert witness to testify for the defense about problems with eyewitness identification. The judge said that the testimony of Dr. Steven Penrod, a respected psychology-law professor at the John Jay College of Criminal Justice, was unnecessary and might confuse the jury.

In its opinion in People v. Allen, the appellate court pointed to research establishing that eyewitnesses are often wrong, and that jurors have misconceptions about eyewitness accuracy. It cited prior Illinois rulings stating that expert testimony can dispel myths and correct misconceptions, and that "the science of eyewitness perception has achieved the level of exactness, methodology and reliability of any psychological research."

The court said it is not intending to lower the bar and allow all expert testimony about eyewitness accuracy. Judges are still entitled to exclude such testimony in some cases, but first they must carefully scrutinize the proffered testimony and determine whether it is relevant and might be helpful in the specific case. At Allen's trial, the court said, no such careful scrutiny took place.

Traditionally, trial judges are given wide latitude to decide whether to allow expert psychological testimony. For example, in a high-profile murder case in Michigan, a judge last week refused to allow either the defense or the prosecution to call dueling experts.

In that case, Thomas Richardson is accused of pushing his wife Juanita off a cliff at the scenic Pictured Rocks Cliffs. The defense claims that the death was accidental.

In denying both a defense motion to call a clinical neuropsychologist and a prosecution motion to call a forensic psychologist, the court said that the experts' testimony reflected competing opinions rather than science.

"The vagaries of the human mind and spirit are part of the puzzle left to a jury," wrote Alger County Circuit Court Judge Charles Stark. "Nothing proffered can assist them in determine the manner of death."

More commentary on the Allen decision is online at the Eyewitness Identification Reform blog.

October 6, 2007

Staggering debt keeps prisoners reeling

Justice Department-funded study calls for reform

As I've posted about previously, no one wants to hire ex-convicts. So what is an ex-prisoner to do when he is saddled with $25,000 in debts, and when he finally gets a job he is ordered to surrender every penny he makes?

Where does all this debt come from? Court fines. Fees. Surcharges. Child support. Restitution. Fees for mandatory drug treatment. Even the costs of the DNA testing that exonerated you!

Up to four or five departments may be coming at you all at once, forcing you to surrender 100% of your earnings. That certainly doesn't give much incentive to go through the nightmarish prospect of even looking for a job, and starting down the path of becoming a productive citizen.

Next week, the Council of State Governments' Justice Center will release a report, "Repaying Debts," which was commissioned by the Justice Department to analyze this mounting problem and recommend solutions.

In the meantime, today's New York Times features an excellent editorial calling for reform. The bottom line, says the editorial: "Bleeding ex-offenders financially is a sure recipe for landing them back in jail."

October 5, 2007

Hot off the press: Two new forensic psychology texts

Psychological Evaluations for the Courts, Third Edition: A Handbook for Mental Health Professionals and Lawyers

Authors: Gary Melton, John Petrila, Norman Poythress, and Christopher Slobogin

Book description:
"The definitive reference and text for both mental health and legal professionals is now in a thoroughly updated third edition. This volume offers a uniquely comprehensive discussion of the legal and clinical contexts of forensic assessment, along with best-practice guidelines for participating effectively and ethically in a wide range of criminal and civil proceedings. Extensively revised, the third edition analyzes recent legal developments concerning the admissibility of expert testimony, the insanity defense, sexual predators, the death penalty, outpatient commitment, medication refusal, juvenile justice, antidiscrimination laws, special education laws, and more. It also presents new empirical findings and instruments related to risk assessment, criminal and civil competencies, child custody, and feigning mental illness."

ractical Approaches to Forensic Mental Health Testimony

Authors: Thomas Gutheil and Frank Dattilio

Book description: "A practical hands-on guide to testifying in court on mental health issues, this text offers a vital tool for the novice as well as the most seasoned practitioner. Prepared by two of the field's leading scholars and practitioners, this original work cuts through dense forensic mental health theory and addresses the actual, concrete approaches to ethical and effective testimony that experts need in court. Rich in multiple examples of courtroom dialogue, direct and cross examination, collaboration with attorneys, and the craft of effective testimony, this text describes the common pitfalls and various traps that experts so frequently encounter and tells you how to avoid them. Strategies and techniques are clearly illustrated and arm readers with exactly what they need to be successful in their testimony. This book is a must-read for anyone serious about excelling in court."

Ted Koppel goes to prison

"Breaking Point" airs Oct. 7 on Discovery Channel

Several months ago, I was strolling across "The Yard" at California State Prison-Solano (CSP) when a convict walked up to me and claimed he had just spotted Ted Koppel. At first I thought he was joking, but several others confirmed the sighting.

This Sunday, Koppel's show about the appalling state of California's prisons will air on the Discovery Channel at 9:00 p.m. Entitled "Breaking Point," it focuses on a converted gym crammed full of triple-decker bunk beds.

From the Discovery Channel website comes this overview:
What does the California prison system have in common with Harvard University?

It costs precisely as much to house, feed and guard one prisoner for one year in a California state prison as tuition, meals and housing cost for a student enrolled for one academic year at Harvard. As far as California taxpayers are concerned, it gets even worse. Their prison system is so overcrowded that it's reached a breaking point. Either the state finds a long-term solution or the federal courts have warned they'll begin ordering the release of inmates, just to ease the crush.

In this two-hour broadcast, Ted Koppel examines how California got to this point and presents an inside view of the crisis through in-depth interviews with inmates, guards and prison officials at California State Prison Solano in Vacaville.
Designed to accommodate no more than 100,000 inmates, California’s prisons now hold 173,000, each at an annual cost of $43,000.

How did things get so out of control?

Mandatory sentencing is a big part of the answer. When California voters threw their support behind a get-tough-on-crime bill that came to be known as "Three Strikes and You're Out," the state prison system filled up and is now overflowing.

While shooting, Koppel spent a number of days among the general population at Solano. His reporting focuses on the inhabitants of H Dorm, where inmates are stacked in triple-deck bunk beds on an old indoor basketball court. Correctional officers are so badly outnumbered that prison officials keep inmates segregated by race and gang affiliation in a desperate effort to avoid friction and maintain control. Even so, Solano still sees three to four race riots a year. Using smuggled cell phones, gang bosses continue running criminal operations on the street from behind prison walls. At the same time, they’re running drug and prostitution rings inside Solano.

Koppel will introduce viewers to many of Solano's inmates, including Travis Tippets, Joseph Mason and Brian O'Neal. Having completed a six-year sentence for assault with a deadly weapon, Tippets is being released from Solano and sits for a brief "exit interview" with Koppel. The last time he was paroled, it took Tippets less than a day to get arrested and sent back. Knowing that a third strike could land him back in prison for life, Tippets finds out how hard it is to get a job with no skills and a criminal record.

Joseph Mason is a third-striker. He's been arrested and convicted three times for nonviolent burglaries and he won't be eligible for parole until 2019; the ultimate irony is that he voted for the three strikes law. Brian O'Neal is also a nonviolent repeat offender. He has been to prison 11 times and nine of those sentences were for violating parole. Koppel's cameras track O'Neal's 11th release from prison as his pregnant girlfriend picks him up and the two drive out of Solano. Within weeks, O'Neal is arrested again for violating his parole.

October 4, 2007

Guest report: Interrogations & Confessions Conference, El Paso, Texas

Since I haven't found the time to report on last week's superb conference on interrogations and confessions in El Paso, I'm posting a guest report by Edwin Colfax, director of the Justice Project of Austin, Texas. This report is via "Grits for Breakfast," an award-winning criminal justice blog.

by Edwin Colfax, posting at Grits for Breakfast

I believe it was Jeff Deskovic, a recent DNA exoneree from New York, who said he felt like he was at the Super Bowl, his way of saying that we were in the presence of the best of the best. Jeff was talking about the international conference titled "Interrogations and Confessions: A Conference Exploring Current Research, Practice and Policy," held last week at the University of Texas at El Paso. Having been to a fair number of conferences on issues related to wrongful convictions, I have to say he was really on to something. The conference lineup was a who's who of leading researchers on interrogations and false confessions, including most of the pioneering social psychologists and legal experts who have helped us understand the reality of false confessions and how they occur.

And, of course, Jeff was there to tell us his story about a grueling interrogation he endured at 17 after a classmate was murdered in Peekskill, New York. His eloquent effort to provide a glimpse into his experience is in many ways a tall order, given that most people have a hard time wrapping their head around how an innocent person (especially one who is not mentally disturbed) can be led to confess to a serious crime. Of course, the reality of the phenomenon is increasingly well known and well documented.

Saul Kassin, Richard Leo, Gisli Gudjonsson, Steven Drizin, Ray Bull and Allison Redlich are among the leaders in the field, and anyone interested in learning about interrogations would be well served to review their pioneering work and recent publications. Below are some highlights of the conference Grits readers might find of interest.

Recording Interrogations Benefits Everybody

Confessions are regarded as the most powerful evidence that can be presented at trial, and can even overcome other exculpatory evidence, even forensic evidence, as was the case in the Norfolk Four case.

One of the most straightforward policy responses to false confessions is to electronically record custodial interrogations, thereby creating a complete record of suspect statements and the process that led up to them. Having a complete record eliminates the swearing contests about who said what, when and in what context, and allows judges and juries to make fully informed calls about the voluntariness and reliability of suspect statements.

My own presentation reviewed the unmistakable national trend toward requiring recording of complete custodial interrogations, which is driven in large part by an increasing awareness among law enforcement that the policy serves their own interests as well as the protection of the innocent. My review showed at least 10 states plus the District of Columbia with some statewide recording policy, either in statute or by court ruling, the most recent being North Carolina. California Governor Arnold Schwarzenegger has a recording bill on his desk now.

Recording modernizes police procedures in a way that ensures the best evidence possible against the guilty, and protects police from bogus claims of misconduct. The Justice Project's Policy Review on recording is a great overview of the issue, including case profiles, a model policy, and an overview of the research.

While police and prosecutors in jurisdictions that do not record often express skepticism, those who do record give unequivocal endorsements to the policy. Thanks to the hard work of Thomas P. Sullivan, a former federal prosecutor who has extensively interviewed experienced detectives who record, we know that recording is a valuable law enforcement tool. Sullivan has published several must-read articles on the benefits to law enforcement, available here and here. This work is sure to move us toward more recording as law enforcement hears from peers about the benefits and practicality.

Since Grits reported recently on Prof. Daniel Lassiter's 20 years of research on camera angle bias, I’ll only mention that recording needs to be done carefully and properly to ensure that the evidence is documented in a complete, fully objective way. (Prof. Lassiter was one of the organizers of the El Paso conference, along with Prof. Christian Meissner, both of whom have made important contributions to the development of the literature.)

The Reid Technique and the Detection of Deception

Any serious discussion of interrogations in the U.S. will quickly move to the Reid Technique, which Grits has discussed before. Reid is the dominant interrogation methodology used by law enforcement in the U.S., and delivers trainings all over the country. The President of Reid and Associates, Joseph Buckley, gave an overview of the Reid Methods to a tough audience. Many of the researchers there have been highly critical of the Reid Technique because of the substantial risk of its generating unreliable statements from suspects.

One part of the Reid Technique involves asking a series of particular questions to suspects which are designed to elicit signals of deception from suspects. In fact, a fundamental assumption of the Reid Technique is that these questions, asked early on, are a reliable way to determine if the suspect is truthful or deceptive. If the interrogator determines that the suspect is deceptive, the Reid system moves into a confrontational interrogation mode, in which the interrogator does almost all the talking, and in which the suspect is offered to choose between alternative accounts, which maximize and minimize the suspect’s culpability (but each of which presupposes the suspect's guilt).

One presenter, however, pointed out that the assumptions about outward signals of deceptive behavior that Reid relies on are based on paltry and questionable research, and what little there is uses a very small sample size and ignored ground truth about when a confession is true or false. Professor Aldert Vrij's research actually shows that police are "generally rather poor" at distinguishing deceptiveness. Vrij has published a new edition of his book which he characterizes as an alternative to the Reid Technique that has a much more solid empirical foundation. Given that the high-powered interrogations that have elicited false confessions got cranked up as a result of a mistaken judgment about the truthfulness of a suspect, this research may help to put fewer people in the inherent jeopardy of those psychologically coercive interrogation sessions.

One of Vrij's examples I found particularly interesting. Many people think that excessive blinking may be a sign that someone is deceptive, presumably because they are more nervous about the situation and what they are saying. But research suggests otherwise. First off, innocent people are very nervous in interrogations, too—they are nervous about not being believed! But Vrij has pointed out that lying is, cognitively speaking, harder work than truth telling. Because the liar has to think more about what he is saying, he actually tends to blink less, while focusing all that cognition on keeping his story straight.

Many other bits of 'folk psychology' about deception are similarly dubious.

(Note: I will have more to say about new research into detection deception, as well as some cautionary comments about Vrij's research, in a future post. - Karen Franklin, Ph.D., In the News)

Juvenile Interrogation Tactics Ignore Developmental Vulnerabilities

Another significant criticism of the Reid Technique is that juvenile suspects (as well as those who are mentally retarded or mentally ill) are especially vulnerable to deceptive and psychologically coercive interrogation techniques now standard because they are more compliant and suggestible. There is significant research to show that juveniles are more susceptible to false confessions, but Reid training does not address the relevant differences between kids and adults, and indicates that their standard methods are appropriate for juveniles.

In what I thought was one of the most instructive studies presented, Professor N. Dickon Reppucci from the University of Virginia demonstrated that American police officers, while they generally demonstrated a decent understanding of the developmental differences between youth and adults, seemed to ignore those differences in the context of interrogating young suspects. Repucci and his colleagues did an extensive national survey of police in representative jurisdictions across the country, asking their knowledge about child development and developmental limitations, as well as their views about interrogating youths. There was an unmistakable disconnect between their general appreciation of some basic and relevant developmental factors and their belief that youth can be dealt with in the same manner as adults when it comes to interrogation.

England's Different Approach

Professor Ray Bull gave an overview of the evolution of practices in England, which contains important lessons for those of us in the U.S. who are concerned about false confessions. After some high profile exonerations, the British revised policies in the 1980s away from confrontational, accusatory models of interrogation (like Reid’s) to an information-gathering model. And, of course, the British have required recording of custodial interrogations for many years now, too. According to Prof. Bull, these changes have been embraced by the police service and have proven effective, and there is no effort to go back to the old ways of doing things.

How Innocence Can Work Against You

Saul Kassin gave a fascinating presentation on how the "phenomenology of innocence" can actually contribute to false confessions. Kassin described research that shows that innocent suspects are much more likely to waive their rights and to be open and forthcoming. This seems to be the result of a somewhat naïve but natural faith in the transparency of their innocence. While innocent people are able to offer more plausible denials, they actually seem to trigger harsher tactics from guilt-presumptive interrogators (see Kassin's study from 2003).

On top of all this, there is a distrust of what are perceived as "weak" alibis, such as that one was at home, sleeping in bed, or with family members or friends watching television. Those kinds of things are the reality of most people’s everyday lives, yet investigative tunnel vision can make them seem "weak." All these factors contribute to what Kassin calls an innocence/confession paradox.

Even misrepresentations of evidence, a common, legally permissible interrogation tactic, can, under the right conditions, actually contribute to a false confession. If one is told that his fingerprints are on the gun, or his DNA is at the scene, if he believes in the criminal justice system and in his own innocence, he may actually be more likely to confess to get himself out of a particularly nasty, confrontational interrogation. Such a confession is motivated by the belief that the physical evidence will, when reviewed properly, clear up the mistake. But often that evidence does not exist at all, and was only a bluff by the interrogator to extract a confession. Youths and others with developmental disabilities, in particular, are susceptible to such an ill-advised short-term strategy for getting out of a nasty interrogation.
Posted with the written permission of Edwin Colfax, Justice Project of Austin, Texas, and Scott Henson, award-winning "Grits for Breakfast" blogger

Photo credit: Scottog (Creative Commons license)

Note: Jeff Deskovic, the exoneree who spoke at the conference, is supporting himself through speaking engagements as he finishes up his bachelor's degree and prepares for law school. Contrary to the public impression that exonerees automatically receive money from the government, his sole source of income comes from speaking engagements. He is an excellent speaker, so think about inviting him to your venue to discuss his case.)