October 30, 2009

Halloween "security theater" endures

Ho-hum. Another Halloween, another senseless roundup of sex offenders. This is the third year in a row that I have posted about the sex offender hysteria on All Hallows Eve that seems completely impervious to logic, common sense, and -- now -- even research.

What's new this year is that a Florida professor has done the empirical research to prove what people in the field already knew: Sex offenders aren't out snatching and molesting children on Halloween.

Jill Levenson, a professor at Lynn University, studied a 9-year period and found no spikes in sex crimes against children on Halloween. Her study was just published in Sexual Abuse: A Journal of Research and Treatment.

"The wide net cast by Halloween laws places some degree of burden on law enforcement officers whose time would otherwise be allocated to addressing more probably dangerous events," Levenson noted.

Unfortunately, her research seems to be falling on deaf ears.

Last year, when some of the sillier Halloween restrictions were ridiculed by late-night TV pundits and at least one was struck down by a U.S. district judge as overly broad, I naively thought the pendulum might be swinging. But even studies by experts such as Dr. Levenson seem incapable of bringing common sense to bear. Probation officers and others are continuing to implement ridiculous roundups and other once-a-year restrictions on sex offenders, instead of focusing on the real threat to children, which I'll get to in a moment.

Around the nation this year, more parole and probation officers than ever are ordering convicted sex offenders not to answer their doors, decorate their porches, or wear costumes on Halloween. More sex offenders are being ordered to post "NO CANDY HERE" signs on their doors. Others are being required to attend special Halloween "counseling sessions" or "movie nights" where they will be monitored (and, incidentally, protected from false accusations). The restrictions are so widespread and so varied that I no longer have the time or energy to catalog them as I have done in the past. If you are interested, just do a Google news search for "Halloween sex offender roundup."

The farcical crackdowns are a prime example of what Scott Henson over at Grits for Breakfast has labeled "security theater," that is, "hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives."

Why Halloween, we might ask? After all, most sex offenders target people they know, not children off the street. And the crackdowns on registered sex offenders miss the mark anyway, because the broad majority of new sex offenses are committed by men who have never been caught for a past sex offense. Furthermore, registered sex offenders feel so branded and ostracized that most are ducking and hiding today.

But the scare plays off of a deep-rooted cultural fear of the bogeyman stranger, as memorialized in the timeworn Halloween legend of tainted candy, which has endured despite myriad attempts at correction. As Benjamin Radford of the Skeptical Enquirer pointed out a few years ago about the persistence of that stranger-danger myth: "Despite e-mail warnings, scary stories, and Ann Landers columns to the contrary, there have been only two confirmed cases of children being killed by poisoned Halloween candy, and in both cases the children were killed not in a random act by strangers but intentional murder by one of their parents."

The sad part of both myths is that children are taught a message of fear: Strangers, or even their own neighbors, might try to poison or molest them.

Oh, yes. What is the real danger facing children this Halloween? It's one your mama always warned you about: Getting hit by a speeding car while crossing a dark street. Car accidents kill about 8,000 children every year in the United States, and children are more than twice as likely to be killed by a car while walking on Halloween night than at any other time of the year.

Related blog posts:
Photo credit: Kaushik Gopal (Creative Commons license)

October 29, 2009

Adolescent immaturity reduces culpability, say researchers

APA amicus brief in two upcoming high court cases
on life without parole for juveniles

Adolescents may not possess the maturity to be held to adult levels of responsibility for violent crimes, according to an article in the current issue of American Psychologist by Laurence Steinberg, a professor of developmental psychology at Temple University, and colleagues.

"Adolescents likely possess the necessary intellectual skills to make informed choices about terminating a pregnancy but may lack the social and emotional maturity to control impulses, resist peer pressure and fully appreciate the riskiness of dangerous decisions," Steinberg was quoted in Science Daily as saying. "This immaturity mitigates their criminal responsibility."

The researchers studied the differences in various cognitive and psychosocial capacities among 935 research participants, ages 10 to 30. Significant differences in mature decision-making were found between the 16- to 17-year-olds and people just four or five years older.

"It is very difficult for a 16-year-old to resist peer pressure in a heated, volatile situation," Steinberg said. "Most times, there is no time to talk to an adult to inject some reason and reality to the situation. Many crimes committed by adolescents are done in groups with other teens and are not premeditated."

Two friend-of-the-court briefs filed by the American Psychological Association in cases heard by the U.S. Supreme Court spurred questions about differences between cognitive and interpersonal maturity and the apparent inconsistency between APA's positions in the two cases. In its amicus brief filed in Roper v. Simmons (2005), the case that abolished the juvenile death penalty, APA presented research showing that adolescents are developmentally immature in ways that are relevant to their criminal culpability. In an earlier brief filed in Hodgson v. Minnesota (1990), which upheld adolescents' right to seek an abortion without parental approval, APA presented research regarding cognitive abilities that bear on medical choices, showing that adolescents are as mature as adults.

The APA differentiated these two scenarios by looking at the decision-making processes required for each situation. In the Hodgson case, APA described adolescents as being competent to make informed and sound health care decisions. In the Roper case, APA characterized adolescents as too short-sighted and impulsive to warrant capital punishment, no matter what the crime.

These issues are likely to be at the forefront of two U.S. Supreme Court cases -- the cases of Joe Sullivan and Terrance Graham -- slated to be heard this month, involving the constitutionality of sentencing juveniles to life without the possibility of parole. Sullivan, now 33, was 13 years old when he and two older boys broke into a home, where they robbed and raped an elderly woman. After a one-day trial, Sullivan was sentenced to life in prison with no chance for parole. The APA has filed an amicus brief presenting relevant research, including Steinberg's most recent study, to the court.

Adolescents' legal rights, said Steinberg, should be guided by accurate and timely scientific evidence on the nature and course of psychological development. "It is crucial to understand that brain systems responsible for logical reasoning and basic information processing mature earlier than systems responsible for self-regulation and the coordination of emotion and thinking," he said.

Further resources:

Laurence Steinberg, Elizabeth Cauffman, Jennifer Woolard, Sandra Graham, Marie Banich. Are Adolescents Less Mature than Adults? Minors' Access to Abortion, the Juvenile Death Penalty, and the Alleged APA 'Flip-Flop'. American Psychologist, 2009; Vol. 64, No. 7.

Supreme Court to consider juvenile 'lifers': Does life without parole for minors who didn't kill constitute cruel and unusual punishment? By David Savage,
Los Angeles Times (Sept. 28, 2009)

FRONTLINE: When Kids Get Life.

October 27, 2009

U.S. depression: Children hitting the streets

MEDFORD, Ore. -- Dressed in soaked green pajamas, Betty Snyder, 14, huddled under a cold drizzle at the city park as several older boys decided what to do with her. Betty said she had run away from home a week earlier after a violent argument with her mother. Shivering and sullen-faced, she vowed that she was not going to sleep by herself again behind the hedges downtown, where older homeless men and methamphetamine addicts might find her.

The boys were also runaways. But unlike them, Betty said, she had been reported missing to the police. That meant that if the boys let her stay overnight in their hidden tent encampment by the freeway, they risked being arrested for harboring a fugitive.

"We keep running into this," said one of the boys, Clinton Anchors, 18. Over the past year, he said, he and five other teenagers living together on the streets had taken under their wings no fewer than 20 children -- some as young as 12 -- and taught them how to avoid predators and the police, survive the cold and find food.

"We always first try to send them home,” said Clinton, who himself ran away from home at 12. "But a lot of times they won't go, because things are really bad there. We basically become their new family."
That's the lead-in to a poignant New York Times story, subtitled "Running in the shadows," chronicling the surge in youth homelessness across the United States. Each year, more than 1.6 million children in the United States either run away or are thrown out of their homes. With the harsh economy, the number of children living on their own has more than doubled, according to a federal survey of schools. At the same time, fewer public services are available to help them. Harkening back to Dickensonian London, reporter Ian Urbina found children as young as 12 hiding out from abusive families who did not want them or could no longer afford to feed them. Too young to sign contracts or get legitimate employment, young runaways survive by selling drugs, panhandling, or selling their bodies. They remain hidden in the shadows because their families did not report them missing or, if they did, police failed to enter their names into the national database of missing children. Many of these invisible children will be victimized on the streets; others will be our clients. Read the heartbreaking story HERE.

Hat tip: Jane
Photo credit: "Motherless Brooklyn" by Shrued (Creative Commons license)

October 22, 2009

Of anthropomorphism, armed citizens, and hate crimes

The Jury Expert wants you to stop and think about all manner of things, from hate crimes to the effects of gory photos. They want to teach attorneys how to identify a jury foreperson even before that person has been seated as a juror. High-quality articles on a range of issues is earning the American Society of Trial Consultant's online publication accolades and awards in legal circles.

Among current offerings worth checking out:

Identifying Leaders

An experienced jury consultant discusses how jurors pick presiding jurors and how attorneys can identify their most likely picks during voir dire and jury selection.

The impact of graphic injury photos on liability verdicts and damage awards

Over the years, the use of graphic, and at times gruesome, visual imagery in the courtroom has become commonplace. Although the use of such imagery has become the norm, the prejudicial nature of this evidence continues to be a contested issue in courtrooms across America. This paper focuses on the impact of graphic injury photographs in a civil dispute where the evidence favors a defense verdict.

Anthropomorphism in technical presentations

How can dry technical information be explained in a way that is understandable to a lay jury? An experienced graphic designer and trial consultant suggests anthropomorphism and other strategies to help jurors emotionally connect with technical data.

Will it hurt me in court? Weapons issues and fears of the legally armed citizen

An examination of how gender of juror, gender of shooter and type of weapon used interact to modify verdict and sentencing, with responses from two experienced trial consultants.

Hate crimes and revealing motivation through racial slurs

I must admit, I found the implications of this article by jury consultants Gregory S. Parks and Shayne Jones a little troubling. The authors deconstruct the 'hip-hop culture' defense used by Nicholas "Fat Nick" Minucci, a white man who used the word "nigger" during a 2005 baseball-bat assault on a black man. Charged with a hate crime, Minucci called two expert witnesses, music producer Gary Jenkins and Rhodes scholar and Harvard Law School professor Randall Kennedy, author of Nigger: The Strange Career of a Troublesome Word.

Parks and Jones take issue with the expert witnesses' testimony that the term "nigger" is a nuanced word that can no longer be assumed to be driven by racial animus. Minucci is something of a straw man, as he was fairly obviously a racist vigilante. (He was convicted of the hate crime charge and sentenced to 15 years in prison.)

What troubled me was how the authors used Harvard scholar Mahzarin Banaji's work on implicit bias. Banaji's research suggests that, as racism becomes less acceptable, it is going underground; many white people hold racist attitudes that they are not even aware of. (As I blogged about last year, Banaji has testified as an expert witness, on the topic of unconscious racial bias among jurors.) The implication of their argument is that it is appropriate to impose additional punishment via hate crimes enhancements even if the defendant is not consciously acting due to a biased motivation. When I conducted research on the motivations of hate crime offenders, I came to understand that assailants' motivations are often more complex and multifaceted than a simple sound byte like "hate crime" can convey. The idea of using biases that people are not even aware of as evidence against them is a little too Orwellian for me. It's an interesting article, nonetheless.

For a nice essay on the Minucci case, see law professor Patricia Williams' Borrowed Bodies: Diary of a mad law professor, in the Nation magazine.

October 19, 2009

Spokane case illustrates sensationalism in coverage of insanity defense

Alarmist misinformation predominates

"Criminally Insane are often released." That's the headline on an AP story that ran in major U.S. dailies -- including the New York Times -- over the weekend. The case, involving the escape of a forensic patient from a state hospital in Spokane, Washington, has the Washington citizenry in a state of frenzied outrage. The CEO of the hospital has been forced to resign, and ever-opportunistic politicians are calling for abolition of the insanity defense.

In the spotlight is Phillip Paul, a schizophrenic man who killed an elderly woman in 1987, allegedly because voices in his head told him she was a witch. Found not guilty by reason of insanity, he was hospitalized at Eastern State Hospital in Spokane, Washington. Twenty-two years later, on Sept. 17, he walked away while he and 30 other forensic patients were on a supervised jaunt to the county fair. He was captured about three days later after a highly publicized manhunt.

Sunday's report is a classic example of the sensationalism and misinformation swirling around the insanity defense. Unfortunately, instead of critical inquiry, many reporters leap onto the bandwagon of misplaced public hysteria, and many editors likewise fail to think before grabbing a juicy-looking story to fill a news hole.

The AP article, by reporter Nicholas Geranos, amps up both public alarm and indignation:
"Instead of being straitjacketed and locked away as might be depicted by film or fiction, Paul has spent time living and working in downtown Spokane, fathered a child, created music videos and racked up $85,000 in credit card bills…. His escape … exposed a little known truth: The criminally insane often live among us, with little or no supervision."
Eek! Lock your doors! Not only are bogeyman sex offenders getting ready to snatch your kids on Halloween, but now we've got the "homicidal maniacs" (in the words of one newspaper columnist) loose among us.

Downplaying the facts

Contrary to the article's implications, Paul was not "living among us, with little or no supervision." Not at all. He was locked up in a state hospital. Escapes are rare, but they do happen. And rarely does any violence ensue.

The alarmist news coverage downplays facts that could reassure the public and reduce rather than amp up hysteria. First of all, Paul was captured uneventfully after about three days. And, during his brief foray into freedom, he did not commit any new crimes as far as we know.

Paul's risk for violence is not high. The homicide for which he was found Not Guilty by Reason of Insanity (NGRI) occurred 22 years ago. He has not exhibited any violent behavior in years, according to hospital spokespersons. Indeed, he is described as a "model patient."

If Paul was mentally unstable or at high risk of violence, he would not have been allowed out on the field trip. Such excursions were routine at the hospital (and its larger sister facility, Western State Hospital outside of Tacoma, Washington), rewards and incentives for stability and good behavior. Now, they have been entirely suspended.

Paul's low risk for violence in the community is substantiated by the fact that, over the past couple of decades, he has been released from the hospital several times. Once, he lived with his family; another time, he stayed at an assisted living center.

Media coverage accuses the staff of lax supervision. Certainly, it was a mistake to let Paul walk away; the staff who accompanied him reportedly let him take a backpack, which may not have been searched and may have contained food. However, during periods when he was conditionally released into the community, he was monitored and rehospitalized whenever he was noncompliant with medications or his symptoms worsened. That sounds like good supervision, not bad.

Successful insanity defenses rare

It is ludicrous to make generalizations about the dangers posed to the public by the criminally insane based on a very rare event such as this, involving a model patient who hurt not a single hair on anyone's head.

But the current frenzy, and in particular the politicians who are using the incident to bolster their popularity, are distorting the larger nature of the insanity defense as well.

In Washington, as in the majority of U.S. states, the standard for legal insanity is the M'Naghten test, which requires that a defendant be unable to tell the difference between right and wrong. The insanity defense is rarely invoked as a defense. One eight-state study found that the defense was used in less than 1% of cases.

There are many reasons for the rarity of the defense. Strategically, defense attorneys often do not pursue it because a defendant risks serving more time -- especially in less serious cases -- than if he or she pled guilty. Also, the standard is hard to meet. Contrary to public opinion, forensic psychologists and psychiatrists who evaluate a defendant's mental state are most likely to conclude he or she does not meet the legal threshold for insanity.

A survey of the general public indicated that people think the defense is successful about 35% of the time. Although success rates vary by jurisdiction, it is probably more accurate to say the defense is successful only about one-fourth of the time. In the broad majority of successful cases, the offender had a previously documented psychiatric disorder and the insanity disposition results from a plea bargain. In other words, contrary to the public's image of dueling experts in court, the defendant was so obviously crazy at the time of the offense that prosecutors agree to hospitalization rather than conviction and imprisonment, and no trial ensues.

One reason for the enduring controversy over the insanity defense is the misperception that the defense is a way to beat the rap. In reality, acquittees are sent to locked state hospitals that look very much like prisons. They get out only if they are found to no longer suffer from a mental disorder that makes them dangerous. Studies suggest the average length of hospitalization varies from around 4 years (in California) to more than 10 years (in Missouri). Longer hospitalizations are especially likely in serious or high-profile cases.

Even when a patient is released, there are usually strings attached. Under "conditional releases," patients are monitored for treatment compliance. If they violate terms of their release, such as by using drugs or not taking prescribed medications, they are immediately rehospitalized. Such revocations occur in an estimated 35% to 50% of releases, according to a California study. Phillip Paul, indeed, had been rehospitalized under just such circumstances in the past.

The implication of the news coverage is that insanity acquittees are dangerous to the public. But studies suggest that, as a group, people found NGRI are less likely to recidivate than the average felon released from prison. And the best predictor of subsequent violence is not mental illness, but the quantity and nature of prior crimes.

Moreover, the most feared type of crime by schizophrenics -- homicides of strangers -- "are exceptionally rare events," according to a large-scale international study from Australia, Canada, Finland, and the Netherlands that was just released in Schizophrenia Bulletin.

"What the [research] shows, more than anything else, is that the public fear of the mentally ill is completely misplaced," said Dr. Matthew Large, one of the researchers from the University of New South Wales, Australia. "These events are so rare that they are almost impossible to study, yet the fear of serious violence by the mentally ill is a major cause of stigma.”

Ultimately, the public's rage in this case focalizes on the fateful field trip: "How dare those inept government bureaucrats let a homicidal maniac out for fun? Let him suffer!" This venting of pent-up rage has the same punitive tone directed against prison officials in the past for letting prisoners have television sets or make phone calls.

In these tough economic times, public anger against the government is high. But punitive policies toward either forensic mental patients or prisoners will not increase public safety. Quite the contrary. Ultra-punitive policies only produce more embittered citizens who, just like the critics, are too quick to rage.

Hat tip: KK

October 14, 2009

Texas death case illustrates Atkins quagmire

The U.S. Supreme Court's 2002 decision in Atkins v. Virginia to outlaw the death penalty for mentally retarded defendants has opened up a "welter of uncertainty" in courts around the nation. So-called "Atkins inquiries" into whether a defendant is mentally retarded rely heavily on mental health experts, who may disagree on everything from the definition and identification of mental retardation to whether the specific defendant meets the threshold criteria.

This familiar spectacle of dueling experts takes a particularly ominous turn when experts misstate the science in these high-stakes (literally, life or death) cases. Fact-finders are often ill-equipped to disentangle the highly complex technical and scientific issues pertaining to whether or not a defendant meets the magic cutoff that will spare his life.

Over at his new blog, Intellectual competence and the death penalty, Kevin McGrew critically analyzes the latest case exemplifying these legal pitfalls, especially in the increasingly common situation in which the defendant is from another culture or speaks a language other than English. The case is that of Virgilio Maldonado, out of the U.S. District Court for the Southern District of Texas.

McGrew believes this case represents "a miscarriage of justice" that typifies the problems inherent in Atkins inquiries:
"The courts appear ill-equipped to handle the complex psychological measurement issues presented, issues that are, at times, confounded by the inclusion of data from dubious procedures, interpretations of test scores that are not grounded in any solid empirical research, and the deference to a single intelligence battery (the WAIS series) as the 'gold standard' when a more appropriate instrument (or combination of WAIS-III/IV and other measures) might have been administered, but the results of the more appropriate measure are summarily dismissed based on personal opinion (and not sound theory or empirical research)."
Those of you who practice in this area will be interested in McGrew's in-depth dissection of the IQ testing problems when defendants are not proficient in English language. Often, tests are wrongly selected, misadministered and misinterpreted under these circumstances.

In the Maldonado case, the prosecution's psychological expert decided to upwardly adjust the defendant's IQ score to a specific number based on his "clinical judgment" as to cultural and educational factors.

"It’s around the 80s, I guess, if you had to pin me down. Around the 80s; somewhere in there," the psychologist testified.

As McGrew points out:
"Adjusting obtained IQ scores, either up or down, … in the absence of any scientifically established procedure … is troubling and is not consistent with accepted psychological assessment practices or standards."
McGrew also critiques courts' frequent practice of putting the WAIS tests on a pedestal as the "gold standard," to the point of dismissing Spanish-language tests that are normed on relevant Spanish-speaking populations.

McGrew's in-depth analysis is HERE. The 144-page Maldonado decision is online HERE.

October 11, 2009

Sex offender news roundup

Because my subscriber base is diverse, in my daily scans for blog topics I try to balance multiple areas of forensic practice. But these days, news pertaining to sex offender policy is so pervasive that I must consciously work to keep it from overwhelming the blog.

After all, even those of you who work with sex offenders probably want a diversion sometimes. When you initially trained for your profession, I'll bet you weren't thinking, "This will be so fantastic! I'll get to spend lots of quality time with sex offenders, absorbing all of the intimate details of their warped atrocities against women and children!"

No? I didn't think so.

But, sigh, that's the reality these days. Rare monsters in the United States and elsewhere -- such as John Couey in New Jersey and Earl Shriner in Washington State -- drive social policy. Aggrieved family members fire up a local community, politicians jump on an easy bandwagon, and -- voila -- the rest is history. As New York Times reporter Michael Cieply perceptively noted, in reference to the Roman Polanski case, the landscape has changed dramatically in the last three decades:
Manners, mores and law enforcement have become far less forgiving of sex crimes involving minors in the 31 years since Mr. Polanski ... fled rather than face what was to have been a 48-day sentence after he pleaded guilty to unlawful sex with a minor. But if he is extradited from Switzerland, Mr. Polanski could face a more severe punishment than he did in the 1970s, as a vigorous victims' rights movement, a family-values revival and revelations of child abuse by clergy members have all helped change the moral and legal framework regarding sex with the young.
Of course, we must guard against myopia. It is not just in the sex offender arena that we see zero tolerance policies gone wild. Look what is happening in the schools, for example. A 3rd-grade girl got expelled for a year because her grandmother sent a birthday cake to school for her. The problem wasn't the birthday cake, but the knife dear grandma sent to cut it with.

Anyway, on to this quick (I hope) roundup of sex offender-related developments.

Child victim decries conditions for sex offenders

Consequences of extreme social policies are so at odds with the original intents that even many who lobbied for the laws are having second thoughts. The Palm Beach (Florida) Post ran a remarkable story about a child sexual abuse victim whose victimization led to a legislative crusade against sex offenders. Lauren Book, whose child abuse saga began at age 11 at the hands of a caregiver, runs a nonprofit agency aimed at educating the public about child sexual abuse. Now, she is campaigning against the unintended consequences of the very residency restrictions that she helped inspire. Touring the sex offender encampment under the Julia Tuttle freeway in Florida, which I have previously blogged about, she said she has come to realize "that forcing predators to live in inhumane conditions will not protect children; in fact, she fears it may do the opposite":
"You can't really understand what it's like unless you go there. You can't capture it in words or pictures. Being there, hearing it, seeing it, smelling it - it's all part of understanding the situation…. It's a terrible situation under there, it is awful. I don't think them living under a bridge or absconding keeps children safe. I don't want them so desperate that they go out and find a child.''
The perils of a naked pumpkin

Elsewhere, legislators and judges are taking small steps to limit the consequences to youth of overinclusive sex offender registration requirements.

I mean, how would you feel if your kid was branded for life as a registered sex offender just because he had participated in Boulder, Colorado's popular "Naked Pumpkin Run" or "World Naked Bike Ride"?

To circumvent this scenario, Boulder is drafting a public nudity ordinance that would exclude arrests for nudity-related pranks from the registration laws. Commenting over at Grits for Breakfast, Scott Henson hopes this signals a growing public awareness that sex offender registries are too broad. "But a better fix would be for the legislature to remove indecent exposure and other petty crimes from the registry list. IMO we don't need more laws on this issue so much as better ones."

And in Michigan, a judge just ruled that putting a juvenile on the state's sex offender registry would constitute cruel and unusual punishment, prohibited by the U.S. Constitution.

The case involved "T.D.," a 15-year-old boy who touched the breast of a 15-year-old classmate in school. His name would have appeared on the registry for 25 years, until he was 43 years old. That would be unfair, ruled Judge Darlene A. O'Brien, because T.D.'s offense was "more akin to a juvenile prank than predatory, perverted, criminally deviant sexual conduct likely to be repeated." In her well-reasoned ruling, she too addresses the unintended consequences of the laws:

Requiring this rehabilitated juvenile offender to register for a total of 25 years upon reaching adulthood is likely to become a self-fulfilling prophesy -- if TD cannot get through school or get jobs because of community notification and public shunning, he is likely to become marginalized and, in fact, more likely to commit crimes as a result.

Prosecutors are appealing the decision, so an appellate court will get a chance to clarify whether juveniles must submit to public registration even when their offenses are mild and they present little risk of recidivism.

Challenges mounting on religious front

In at least the second pending case, a convicted sex offender in North Carolina is challenging a law that restricts his ability to attend church services. Police arrested James Nichols after he attended a Sunday service at a church that offers day care. As reported in the New York Times, "many of the three dozen states that establish zones where sex offenders cannot live or visit do not provide exemptions for churches." A similar lawsuit is pending in federal court in Georgia. Also in the South, in the city of Louisville, Kentucky, a Pentecostal church has snubbed its nose at the punitive climate against sex offenders by unapologetically ordaining a convicted sex offender as a pastor.

Voice stress analysis upheld

At the same time that these types of fissures are developing in the larger systems, other agencies are imposing additional restrictions on sex offenders. For example, a federal judge has ruled that sex offenders can be required to submit to computerized voice stress analysis as part of their post-release supervision, just as many are already required to undergo testing with polygraphs and penile plethysmography under the "containment approach" to recidivism.

The federal judge in the Northern District of New York ruled that debates about the scientific reliability of the technique do not "bear much on the therapeutic value of the tool" as a lie-detection incentive.

The attorney for Ethan Gjurovich, who was convicted of child pornography charges, said this is the first case he knows of in which a federal court has endorsed voice stress analysis requirement on a parolee. He likened it to the psychological pressure of a "lie-detecting dog" -- "If you don't tell the truth, he's going to bite you."

Paraphilic coercive disorder proposal critiqued

On a parting note, I encourage you to check out an interesting critique of the Paraphilic Coercive Disorder diagnosis being proposed for the DSM-V, over at the Asexual Explorations blog. The blog -- as its title implies -- is devoted to the emerging issue of asexuality. But its author was so astounded upon learning about some of the wacky diagnoses being proposed for the upcoming Diagnostic and Statistical Manual of Mental Disorders that felt compelled to detour from his main topic.

. . . And, speaking of pumpkins, be sure to tune in for a repeat of the ever-popular Halloween post,

October 9, 2009

Panel: Solitary confinement as human rights abuse

For you readers on the West Coast, Stanford Law School is holding a provocative conference on Oct. 16-17 entitled "Shaking the Foundations: The West Coast Conference on Progressive Lawyering." One Saturday afternoon panel caught my eye, both because of the topic and the speakers:

Solitary Confinement in America's Prisons: A Human Rights Abuse?

Having worked in a segregation housing unit, I have seen the mental health consequences of prolonged solitary confinement, especially on the psyches of prisoners who are already mentally ill, up close and personal. Out of sight, out of mind -- many in the public are unaware of the extent to which solitary confinement is being used routinely in prisons these days. So, it's good to see this topic getting some critical attention.

The speakers are impressive:
  • Joan Petersilia, one of the foremost prison researchers around and now a law professor at Stanford
  • Terry Kupers, a forensic psychiatrist and professor at the Wright Institute who wrote Prison Madness, a book about incarceration and mental health
  • J. Clark Kelso, Professor of Law & Senior Counsel to the Capital Center for Government Law and Policy, University of the Pacific, McGeorge School of Law
Here is the panel description:
One in one hundred Americans are currently incarcerated, and a growing number of those incarcerated are held in conditions of solitary confinement. In Supermax prisons, administrative segregation units, and even Guantanamo Bay, prisoners spend 22 or 23 hours of every day in isolation, for weeks, months or years. This panel will discuss the expanded use of solitary confinement in the American prison system and its effects on prisoners' health and recidivism. Through this discussion, panelists will ask: Is the use of solitary confinement cruel and unusual punishment? Is it a human rights violation? And if so, what can be done?
The presentation is Saturday, October 17, from 3:45-5:15 p.m. More information, registration, and directions are HERE.

October 8, 2009

Equality in justice: Cognitive dissonance and fame

Having blogged about both the Polanski case and that of David Mitchell (Susan Smart) in Utah, I was intrigued to read this sociological analysis of the divergent media coverage of the two cases, over at one of my favorite blogs, Everyday Sociology. It's always fascinating to analyze the unstated assumptions and biases in media coverage of legal cases, assumptions that both reflect and reinforce public attitudes.

Guest essay by Sally Raskoff*

Two cases involving the rape of a young girl have been in the news: one involving Roman Polanski's arrest and the other about Elizabeth Smart's court testimony. While these cases have the "adult male-minor female" rapes as their basic similarity, most other things have been very different, especially in news reports and public reactions.

The "Polanski" case actually involves this Academy Award winning director's flight from sentencing after his guilty plea and conviction in the rape of the 13-year-old girl. After 32 years, he was arrested recently in Switzerland to await extradition back to the United States for sentencing and additional charges of evading justice. The news reports focus on what a terrible time he's had in life, from his family’s losses in the Holocaust to the murder of his pregnant wife by the Manson "family", and on the fabulous movies he's produced since living in Europe after he fled Los Angeles.

Until recently, little had been mentioned of the rape survivor, who is now an adult woman. A recent article fully identifies her and discusses the apparent civil settlement in which Polanski allegedly was to pay her half a million dollars, although no public documentation can confirm that she received those funds. Her lawyers' requests to the court for him to pay the settlement past its due date cease about the time she wrote a public letter stating that she thinks he should be able to return to the country, ostensibly to attend the Academy Awards show when he was nominated in 2002.

The "Smart" case involves the nine month long abduction of Utahan Elizabeth Smart. Her alleged kidnapper, Brian David Mitchell, subjected her to a "plural marriage" ceremony and according to Smart repeatedly raped her. She is now 21 and gave her testimony at the mental competency hearing of Mitchell just before leaving on her religious mission to France. Mitchell is cast as a religious fanatic who told her that he was doing what the lord wanted him to do. As of this writing, he has not yet been convicted of the crime as it has not yet been established if he is mentally competent to stand trial.

Let's look at these cases sociologically.

Note the language used in the reporting of each case. Is it clear who the victim is in each case?

Many news reports and editorials about the Polanski case lament his treatment by the justice system, and some even suggest that he is the victim. Some articles discuss the cost of bringing him back to court, which makes the taxpayers the victim. Some articles focus on how the rape survivor, the actual victim, said that he should be free to live his life and if she says that, well, we should let her decide, which reinforces the idea that he is the victim.

The Smart articles focus on her as the rape survivor and certainly do not cast Mitchell as a victim. They cast him as crazy or as a crafty rapist who acts like a religious fanatic so as not to take the blame for his actions.

The headlines use "Polanski" and "Smart", not "Mitchell" or "Geimer."

Polanski's name is certainly a familiar one since he is famous. Smart has become famous as an icon of parental fear -- the girl who was abducted from her bedroom at night. As is typical in rape cases, Samantha Geimer's name was withheld when she was a minor yet she herself went public when she wrote the letter in support of Polanski. Mitchell is not a name familiar to people even though most know that some man abducted and raped Elizabeth Smart.

From this point forward, I will refer to the "Smart" case as the Mitchell case.

Note the basic features of each case: an adult man raped a young girl.

Is this contested in either case? Yes and no. Mitchell has been in a mental institution since his arrest in 2003 and the recent hearing was to establish whether or not he could stand trial. Polanski testified that he did the crime (although in his plea agreement he plead guilty to "unlawful sex with a minor") and his latest issues revolve around his flight from the justice system to escape sentencing and serving more time. Mitchell has not been convicted yet Polanski has. However, in the news articles, Polanski's guilt is downplayed and Mitchell's is assumed.

Note the social class differences in each case.

While Polanski is clearly a member of the upper socioeconomic strata, Mitchell and his co-defendant wife are in the lower strata. Polanski was able to flee to Europe, continuing to make his films and generate his substantial income. While the social class status of Ms. Geimer is not fully apparent, it is likely that she and her family live a middle class life, even if she did not receive the settlement. The Smart family are firmly in the upper middle class of suburban Salt Lake City, while the Mitchell couple were basically homeless and firmly ensconced in the lower echelon of society’s social class levels.

Social class alone can explain much of the dynamics of these cases. Those with the higher class status tend to gain more favorable coverage in the press. Polanski received more favorable coverage than his victim did, and Smart certainly received more media attention than her abductor did.

One might hope that people who have been victimized would receive more careful and supportive press coverage, this certainly didn't happen in the Polanski case.

Note the issues of fame and social power in each case.

Social power derives from social class but also from fame. Smart was featured on America's Most Wanted and has spoken in public and to Congress about sexual predator issues and legislation.

Most particularly in the Polanski case, fame insulates the perpetrator from paying his full debt to the justice system. So much so that some even call into question his guilt even though that had been firmly established in court. (See Harvey Weinstein's quote about the "so-called crime" in the Los Angeles Times). Reaction to the Polanski case avoids discussion of his guilt in this crime of rape and focuses on other issues that are not salient. Consider how Mr. Weinstein might react if a female family member of his had been the victim in this case - might he advocate the release of that person as he does Polanski?

The exploitation of women in the entertainment industry is a related topic -- some may not see why having sex with someone at a photo shoot was wrong -- even if she was underage and under the influence of alcohol and drugs. Some also point to the mother who dropped her off at the house where the rape took place as culpable.

However, only the rapist is responsible for the rape, no matter what bad decisions others might have made.

What isn't being talked about?

In the Polanski case, the exploitation of women is not a topic that many are choosing to discuss. How many other girls and women have been raped by people with power over them? We’ll never know, especially if those powerful people are not held to the legal standards that govern our society.

Absent from the discussion of the Mitchell case are the cultural underpinnings of how religion played a role in the abduction and rapes. The "plural marriage" as it was called when she was first rescued, was code for rape yet the word "rape" was not uttered for some time after she was freed. That this particular crime took place in a specific religious and cultural environment with a history of patriarchy (and, decades ago, of plural marriage) isn’t a coincidence. Elizabeth Smart was raised, as most of us are, in a culture of male dominance and female obedience.

It is also likely that Smart, like Patty Hearst and many other children abducted by sexual predators, was experiencing something akin to the Stockholm Syndrome. When she was first discovered, she did not readily identify herself. When held long enough under certain circumstances, people may "go along" with their captors and not escape when they might have had the chance.

So, how can we explain the different ways that we are reacting to these cases?

While both cases have at their core the rape of a 13- or 14-year-old girl by an adult man, public discussion and reaction to these cases is notably different. Social class, power, and fame all have their influences yet cognitive dissonance is also taking place.

Cognitive dissonance occurs when people have to reconcile two conflicting ideas at the same time. We often try and alter one of the ideas to be consistent with the other. For instance, people generally want to like and respect people with fame and power. When those people do bad things, we can react in many different ways but in the Polanski case, so many years after the event, some want to believe he paid his debt to society by having lived such a troubled life. Thinking of someone as both a good person and a rapist is very difficult to reconcile. Normally we decide that someone who commits rape is no longer a good person. In this example, many people, especially many in the entertainment industry, have chosen to downplay his actions to maintain the idea that their conflicting image of him as a good person.

But the justice system doesn’t see it this way, and after all, time spent living in a Swiss chalet isn't the same as "doing time." How do you think we would talk about the case if Elizabeth Smart's alleged rapist had fled the country for more than three decades and evaded justice?

*Reproduced with the written permission of the author. Dr. Raskoff is Chair of Sociology and Ethnic Studies at Los Angeles Valley College.

October 7, 2009

Mark your calendars: RSVP training Oct. 22

Just a quick reminder for you sex offender evaluators:

On Thursday, October 22, Stephen Hart of the Mental Health, Law, and Policy Institute at Simon Fraser University in Canada will be in Oregon, giving an all-day training on his Risk for Sexual Violence Protocol (RSVP), a descendant of the Sexual Violence Risk-20 instrument. The training, sponsored by the Northwest Forensic Institute, will be held at Portland State University in downtown Portland.

The RSVP uses structured professional judgment (SPJ) to assess sex offender risk. Preliminary research suggests excellent interrater reliability, concurrent validity with actuarial tools, and moderate predictive validity about equivalent to that of actuarial tools. An advantage over the actuarials, however, is its risk management focus. Evaluators derive individually based risk scenarios and then create strategies to manage identified risks.

This promises to be a good training. Dr. Hart is a great presenter, not to mention an internationally renowned researcher, forensic psychologist and past president of the American Psychology-Law Society.

The cost is $175 (only $75 for students), and you can get more information and register online.

October 5, 2009

ABF doctoral fellowship opportunity

The American Bar Foundation is recruiting fellows for its Doctoral Fellowships in Law and Social Science for the 2010-2011 academic year. The goal is to "develop the next generation of scholars in the field of law and social science" by supporting "original and significant research on law, the legal profession, and legal institutions." The stipend is $27,000 plus expenses.

Eligible applicants must have completed all doctoral requirements except the dissertation by September 1, 2010. Doctoral and proposed research must be in the area of sociolegal studies or in social scientific approaches to law, the legal profession, or legal institutions. The research must address significant issues in the field and show promise of a major contribution to social scientific understanding of law and legal process. Minority students are especially encouraged to apply.

The Foundation has other fellowship and student opportunities as well, including the Law and Social Science Dissertation Fellowship and Mentoring Program, focusing on the study of law and inequality, and the Summer Research Diversity Program.

For more details, visit the ABF website's fellowships page.

October 4, 2009

SVP industry sneak peek: Problems in Actuaryland

You psychologists and attorneys working in the trenches of Sexually Violent Predator (SVP) litigation will be interested in the controversy over the Static-99 and its progeny, the Static-2002, that erupted at the annual conference of the Association for the Treatment of Sexual Abusers (ATSA) in Dallas.

By way of background, the Static-99 is -- as its website advertises -- "the most widely used sex offender risk assessment instrument in the world, and is extensively used in the United States, Canada, the United Kingdom, Australia, and many European nations." Government evaluators rely on it in certifying individuals as dangerous enough to merit civil commitment on the basis of possible future offending. Some states, including California, New York, and Texas, mandate its use in certain forensic evaluations of sex offenders.

Underlying the instrument's popularity is its scientific veneer, based on two simple-sounding premises:

1. that it represents a "pure actuarial approach" to risk, and

2. that such an approach is inherently superior to "clinical judgment."

But, as with so many things that seem deceptively simple, it turns out that neither premise is entirely accurate.

Why the actuarial approach?

An actuarial method is a statistical algorithm in which variables are combined to predict the likelihood of a given outcome. For example, actuarial formulas determine how much you will pay for automobile or homeowners' insurance by combining relevant factors specific to you (e.g., your age, gender, claims history) and your context (e.g., type of car, local crime rates, regional disaster patterns).

The idea of using such a mechanical approach in clinical predictions traces back to Paul Meehl's famous 1954 monograph. Reviewing about 20 studies of event forecasting, from academic success to future violence, Meehl found that simple statistical models usually did better than human judges at predicting outcomes. Over the ensuing half-century, Meehl's work has attained mythical stature as evidence that clinical judgment is inherently unreliable.

But, as preeminent scholars Daniel Kahneman (a Nobel laureate) and Gary Klein point out in the current issue of the American Psychologist, "this conclusion is unwarranted." Algorithms outperform human experts only under certain conditions, that is, when environmental conditions are highly complex and future outcomes uncertain. Algorithms work better in these limited circumstances mainly because they eliminate inconsistency. In contrast, in more "high-validity," or predictable, environments, experienced and skillful judges often do better than mechanical predictions:
Where simple and valid cues exist, humans will find them if they are given sufficient experience and enough rapid feedback to do so -- except in the environments ... labeled 'wicked,' in which the feedback is misleading.
Even more crucially, in reference to using the Static-99 to predict relatively rare events such as sex offender recidivism, Meehl never claimed that statistical models were especially accurate. He just said they were wrong a bit less often than clinical judgments. Predicting future human behavior will never be simple because -- unlike machines -- humans can decide to change course.

Predictive accuracy

Putting it generously, the Static-99 is considered only "moderately" more accurate than chance, or the flip of a coin, at predicting whether or not a convicted sex offender will commit a new sex crime. (For you more statistically minded folks, its accuracy as measured by the "Area Under the Curve," or AUC statistic, ranges from about .65 to .71, which in medical research is classified as poor.)

The largest cross-validation study to date -- forthcoming in the respected journal Psychology, Public Policy, & Law -- paints a bleaker picture of the Static-99's predictive accuracy in a setting other than that in which it was normed. In the study of its use with almost 2,000 Texas offenders, the researchers found its performance may be "poorer than often assumed." More worrisomely from the perspective of individual liberties, both the Static-99 and a sister actuarial, the MnSOST-R, tend to overestimate risk. The study found that three basic offender characteristics -- age at release, number of prior arrests, and type of release (unconditional versus supervised) -- often predicted recidivism as well as, or even better than, the actuarials. The study's other take-home message is that every jurisdiction that uses the Static-99 (or any similar tool) needs to do local studies to see if it really works. That is, even if it had some validity in predicting the behavior of offenders in faraway times and/or faraway places, does it help make accurate predictions in the here and now?

Recent controversies

Even before this week's controversy, the Static-99 had seen its share of disputation. At last year's ATSA conference, the developers conceded that the old risk estimates, in use since the instrument was developed in 1999, are now invalid. They announced new estimates that significantly lower average risks. Whereas some in the SVP industry had insisted for years that you do not need to know the base rates of offending in order to accurately predict risk, the latest risk estimates -- likely reflective of the dramatic decline in sex offending in recent decades -- appear to validate the concerns of psychologists such as Rich Wollert who have long argued that consideration of population-specific base rates is essential to accurately predicting an individual offender's risk.

In another change presented at the ATSA conference, the developers conceded that an offender's current age is critical to estimating his risk, as critics have long insisted. Accordingly, a new age-at-release item has been added to the instrument. The new item will benefit older offenders, and provide fertile ground for appeals by older men who were committed under SVP laws using now-obsolete Static-99 risk calculations. Certain younger offenders, however, will see their risk estimates rise.

Clinical judgment introduced

In what may prove to be the instrument's most calamitous quagmire, the developers instructed evaluators at a training session on Wednesday to choose one of four reference groups in order to determine an individual sex offender's risk. The groups are labeled as follows:
  • routine sample
  • non-routine sample
  • pre-selected for treatment need
  • pre-selected for high risk/need
The scientific rationale to justify use of these smaller data sets as comparison groups is not clear at this time, little guidance is being given on how to reliably select the proper reference group, and some worry that criterion contamination may invalidate this procedure. In the highly polarized SVP arena, this new system will give prosecution-oriented evaluators a quick and easy way to elevate their estimate of an offender's risk by comparing the individual to the highest-risk group rather than to the lower recidivism figures for sex offenders as a whole. This, in turn, will create at least a strong appearance of bias.

Thus, this new procedure will introduce a large element of clinical judgment into a procedure whose very existence is predicated on doing away with such subjectivity. There is also a very real danger that evaluators will be overconfident in their judgments. Although truly skilled experts know when and what they don’t know, as Kahneman and Klein remind us:
    Nonexperts (whether or not they think they are) certainly do not know when they don't know. Subjective confidence is therefore an unreliable indication of the validity of intuitive judgments and decisions.
With the limited information available at the time, it is not surprising that some state legislatures chose to mandate the use of the Static-99 and related actuarial tools in civil commitment proceedings. After all, the use of mechanical or statistical procedures can reduce inconsistency and thereby limit the role of bias, prejudice, and illusory correlation in decision-making. This is especially essential in an emotionally charged arena like the sex offender civil commitment industry.

But if, as some suspect, the actuarials' poor predictive validity owes primarily to the low base rates of recidivism among convicted sex offenders, then reliance on any actuarial device may have limited utility in the real world. People have the capacity to change, and the less likely an event is to occur, the harder it is to accurately predict. In other words, out of 100 convicted sex offenders standing in the middle of a field, it is very hard to accurately pick out those five or ten who will be rearrested for another sex crime in the next five years.

Unfortunately, with its modest accuracy at best, its complex statistical language and, now, its injection of clinical judgment into a supposedly actuarial calculation, the Static-99 also has the potential to create confusion and lend an aura of scientific certitude above and beyond what the state of the science merits.

The new scoring information is slated to appear on the Static-99 website on Monday (October 5).

Related resource: Ethical and practical concerns regarding the current status of sex offender risk assessment, Douglas P. Boer, Sexual Offender Treatment (2008)

Photo credit: Chip 2904 (Creative Commons license).
Hat tip to colleagues at the ATSA conference who contributed to this report.

October 1, 2009

Elizabeth Smart testifies at competency hearing

Kidnap victim Elizabeth Smart provided dramatic testimony today in David Mitchell's long-anticipated competency-to-stand-trial hearing.

But Mitchell wasn't in the room to hear her. He was removed from the courtroom when he refused to stop singing a Mormon hymn, as he does whenever he comes to court.

Smart's testimony was ostensibly intended to establish that Mitchell was acting rationally in order to further his criminal conduct, rather than being motivated by religious delusions as the defense has maintained.

A "calm, poised, articulate" Smart testified that Mitchell was obsessed with sex and used religion to further his predatory goals. She described Mitchell as "evil, wicked, manipulative, sneaky, slimy, selfish, greedy."

But defense attorney Robert Steele said Smart's testimony hinted that Mitchell is delusional, according to coverage in the Salt Lake Tribune. Last week, he argued unsuccessfully that Smart should not be allowed to offer opinions about Mitchell's state of mind or motivations.

Mitchell has refused to submit to any psychological evaluations or diagnostic tests.

His wife and co-defendant, Wanda Barzee, has twice been found incompetent for trial and is undergoing forced treatment with antipsychotic medications. Her next competency hearing is scheduled for Oct. 23.

A transcript of Smart’s 100-minute testimony is online HERE.