November 29, 2010

Prison overcrowding: Chickens coming home to roost

U.S. Supreme Court to hear critical California case

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

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

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

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

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

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

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

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

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

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

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

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

Hat tip: Kathleen

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

November 28, 2010

The Psychology of jury voir dire

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

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

The current issue of The Jury Expert has several other interesting articles, including:
Photo: "The Jury," John Morgan, 1861 (Public domain; source: Wikimedia commons)

November 27, 2010

Death row logjam in California

L.A. Times: Critical shortage of appellate lawyers

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

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

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

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

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

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

High cost a factor in public support for death penalty alternatives

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

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

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

November 21, 2010

How the Black man became schizophrenic

Psychiatry, the DSM, and the Black Power movement

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

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

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

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

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

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

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

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

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

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

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

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

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

Lessons learned, or lessons lost?

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

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

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

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

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

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

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

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

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

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

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

November 19, 2010

"How to Lie to Your Court Appointed Psychologist"

"Keep it simple, shallow and stupid --
the more pathetic the better"

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

Hat tip: Joe Plaud

November 18, 2010

Special journal issue on adjudicative competencies

  • Should adolescent immaturity be a basis for incompetency?
  • Must sex offenders be competent at civil commitment trials?
  • When is it ethical to evaluate a condemned person's competency to be executed?
  • Is it ethical to assist in making someone sane enough for the state to kill?
  • How should clinicians manage empathy in competency evaluations?
  • Is neuroimaging a help or a hindrance?
  • What are current best practices for detecting feigning?
These are among the cutting-edge ethical, legal, clinical and practical issues addressed in a special issue of Behavioral Science and the Law on adjudicative competencies.

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

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

November 16, 2010

Police psychologist settles confession suit for $1 million

A psychologist who helped police obtain a false confession from 14-year-old Michael Crowe has settled out of court for $1 million. A judge had called the aggressive interrogations of Crowe and two friends "psychologically abusive."

Dr. Lawrence "Deadlift" Blum, a police psychologist, helped police in Escondido, California formulate the "tactical plan" that they used to get Michael to confess to the murder of his 12-year-old sister, according to the Crowe family's lawsuit.

Blum admitted in a pretrial deposition that he told a police detective that 15-year-old Aaron Houser, Michael's friend, was a "Charlie Manson wannabe."

Only through serendipity were the boys' charges dismissed more than a year after their arrests, when DNA evidence proved that a mentally ill transient had committed the murder. That man, Richard Tuite, was ultimately convicted of manslaughter.

Images from the videotape of Michael Crowe's interrogation.

The family's lawsuit against the police is still pending in federal court.

Crowe's confession became the subject of an award-winning Court TV documentary that I show to my graduate students. (Unfortunately, The System: The Interrogation of Michael Crowe is no longer commercially available, as far as I can determine.)

The San Diego Union-Tribune coverage of the settlement is HERE. My prior coverage of the case is HERE. The Tru Crime Library (formerly Court TV) has more background on the case HERE.

No reliable method to determine pedophilia, study finds
Good news for sex deviants seeking jobs with TSA

Lest you think that TSA hiring agents can protect airline passengers from sexual groping by weeding out the deviant from the "normal," they cannot. There's no accurate way to know. My full report on a new study about diagnosing pedophilia, and how it relates to the viral TSA controversy, is online at Psychology Today.

The study is: "Pedophilia: An evaluation of diagnostic and risk prediction methods," by Robin J. Wilson, Jeffrey Abracen, Jan Looman, Janice Picheca, and Meaghan Ferguson, in Sexual Abuse: A Journal of Research & Treatment

And don't miss Jonathan Mann's new video, "I don't like the TSA"

November 12, 2010

Bipolar disorder by proxy proposed for DSM-5

New diagnosis to address "critical clinical need"

Although some scholars warn of dangers posed by the proposed expansions of psychiatric disorders, others say there remains a critical shortage of accurate diagnoses for those who need them. At a forensic psychiatry conference last month, for example, proponents said three new sexual disorders are needed to address an urgent clinical reality.

Incorporation of such broad-brush conditions as "psychosis risk syndrome," "temper dysregulation disorder," and "hebephilia" into the next edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), due out in 2013, will help address the diagnostic shortfall, the clinical realists say. But more should be done.

To help meet the needs of those few who remain undiagnosed, California psychologist Michael Donner has proposed an umbrella disorder. To qualify for the newly minted Bipolar by Proxy (BPP), patients must meet at least one of the following criteria during the preceding two-year period:
  1. A pervasive sense of well being
  2. Repetitive episodes of sadness or pleasure while engaging in pleasant or unpleasant activities, typically lasting for the duration of the activity
  3. A minimum of one episode of feeling extremely excited or irritated
  4. Two or more episodes of crying, or three or more episodes of an urge to cry
  5. Engaging in laughing behavior when confronted with something humorous
  6. A general willingness to comply with a prescription medication regimen despite having no overt symptoms
  7. One or more major medical health insurance reimbursement plans

As a rule-out, the disorder must not occur in the presence of any other previously undiagnosed mental illness. Nor can it be due to the direct physiological effects of exogenous substances (e.g., drugs of abuse or medications).

There may be no need to market a new drug for this condition. The prescription depressant Despondex (see below video) has been on the market for more than a year and targets annoying exuberance, a core symptom of Bipolar by Proxy that often alerts clinicians to conduct a more thorough diagnostic workup.

Although the reliability of the proposed diagnosis has not yet been established through clinical replication studies published in peer-reviewed journals, this should not be a barrier as field trials are being planned in time to make it into the manual just under the wire. The sites for the field trials will be strategically selected to maximize positive findings. Similarly, high inter-rater reliability will be assured through careful selection, training, and certification of raters by the Bipolar By Proxy Promulgation Association. The journal whose editorial board is dominated by that Association is expected to publish the positive findings. The larger question of validity is not thought to be a problem, as many other current and proposed diagnoses lack real-world validity.

Related post:

Despondex: Is psych mania overreaching? (June 22, 2009)

Photo credit: Eva Blue, Creative Commons License, Peaceful Heart Doctor, San Francisco Chinatown

November 8, 2010

Historical review of false confessions

If you are looking for more information on false confessions but don't want to read an entire book, last month's New York magazine has a nice historical overview. Contributing editor Robert Kolker goes into depth about the science of interrogation tactics and false-confession psychology, and also proposes some solutions. The fascinating piece, anchored around a 1988 murder case in a hamlet in upstate New York, would make a good reading assignment for students.

November 7, 2010

Don’t miss Frontline's "The Confessions" airing Tuesday

The Norfolk Four sailors are out of prison, but they remain convicted sex offenders with all of the stigma and draconian restrictions that status entails. Now comes what some are calling the best program ever on the subject of why people falsely confess:
Why would four innocent men confess to a brutal crime they didn’t commit? FRONTLINE producer Ofra Bikel (Innocence Lost, An Ordinary Crime) investigates the conviction of four Navy sailors for the rape and murder of a Norfolk, Va., woman in 1997. In interviews with the sailors, Bikel learns of some of the high-pressure police interrogation techniques -- including the threat of the death penalty, sleep deprivation, and intimidation -- that led each of the “Norfolk Four” to confess, despite a lack of evidence linking them to the crime. All four sailors are now out of prison -- one served his sentence and the other three were granted conditional pardons last summer -- but the men were not exonerated as felons or sex offenders. The case raises disturbing questions about the actions of the police and prosecutors, who relied on the sailors’ often contradictory confessions for their convictions, and disregarded DNA evidence that pointed to a lone assailant who would later confess to the crime himself while serving prison time for another rape.

Airing this Tuesday night on PBS, The Confessions is incredibly timely. Two weeks ago, a federal jury convicted the lead homicide detective of extortion for taking bribes from criminals in exchange for favorable treatment in a series of unrelated cases.

But meanwhile, the four sailors from whom he extracted confessions continue to live "in a hellish limbo," writes Virginia journalist Margaret Edds, author of "An Expendable Man: The Near-Execution of Earl Washington Jr."
  • In Michigan, Danial Williams wears an electronic ankle bracelet 24 hours a day. He cannot even work in the yard without permission.
  • In Texas, Eric Wilson was denied admission to a school for electricians and cannot adopt his wife’s son because of his criminal record.
  • In North Carolina, Derek Tice washes windows for a living, his dream of becoming a nurse forever barred.
  • In Maryland, Joseph Dick fears taking his parents’ dogs for a walk because a school backs up to their property.
Having blogged about this case since 2007, I am excited to see this show finally airing. Hopefully, it will create enough public pressure to force Virginia's governor to at long last exonerate the four.

So, as a colleague said, "Tape it, burn it, TIVO it, watch it, have your family members watch it, have their friends watch it, have your students watch it, your teenage children watch it, tweet it, Facebook it, blog it."

Bottom line: Don't miss it.

Further resources:

PBS' website on The Confessions is HERE.

My reviews of
The Wrong Guys by Tom Wells and Richard Leo are HERE (Amazon) and HERE (California Lawyer magazine).

rior blog posts on the case:
Hat tip: Luis

November 6, 2010

Cheer for rapist or else, appellate court rules

First, she was raped.

Then, she was told she must cheer for her rapist.

Now, a federal appeals court ruling that she had no grounds to protest is putting the tiny town of Silsbee, Texas on the map.

It all started when a group of boys grabbed 16-year-old "H.S." at a post-football game party two years ago, dragged her into a room, locked the door, and proceeded to sexually assault her.

After the assault, H.S. went back to cheerleading at Silsbee High School. But when her rapist sauntered up to the foul line for a free throw, H.S. sat down and turned her back.

"I didn’t want to have to say his name, and I didn’t want to cheer for him," the girl said. "I didn't want to encourage anything he was doing."

The district superintendent, his assistant, and the school principal called her outside and demanded that she cheer for the star athlete, Rakheem Bolton. Either that, or go home. Fans, meanwhile, sat in the bleachers and mocked the crying girl.

As is frequently the case in gang rapes involving athletes and other cultural icons of masculinity, the high school and community rallied around the rapists. H.S. was forced off the squad. In the coming weeks, she and her family underwent a campaign of harassment in the small town of 6,300.

"They were the star athletes, and I was standing up to them," San Francisco Chronicle legal reporter Bob Egelko quotes her as saying.

A panel of three of the most conservatives judges on the Fifth U.S. Circuit of Appeals in New Orleans has denied her claim that her free speech rights were violated. As a "mouthpiece" for the school, she had no right to refuse to cheer for her rapist, they ruled. Indeed, it was she and not the school whose rights were violated:
As a cheerleader … H.S. was contractually required to cheer for the basketball team, whose roster included Bolton…. H.S. served as a mouthpiece through which [the school] could disseminate speech -- namely, support for its athletic teams…. [H.S.'s refusal to cheer] constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.
The girl's lawyer said he will petition for a rehearing in front of the full appeals court.

While the cheerleading aspect of this case is unusual, gang rapes by members of the masculine elite such as athletes, soldiers and fraternity members are common. As I discuss in my theoretical overview of gang rape in Sexuality Research and Social Policy, such assaults serve a variety of functions, including social bonding, the celebration of power, and the public display of heterosexual masculinity through the subordination of women. In other words, group rape of women is a form of cultural theater, in which the victim serves as a mere dramatic prop.

As in this case, the main weapon of these group rapists is alcohol. Also common is for police, prosecutors, judges, school officials and other representatives of the power structure to side with the assailants against the victim.

Here, it appears that H.S. was re-victimized at every stage in the process.

Although Bolton and two alleged co-participants were arrested almost immediately, an initial grand jury declined to indict. Meanwhile, H.S. and her family were told that the rape kit collected that night would not be processed for DNA evidence for more than a year, due to a backlog of cases. The boys were allowed to return to school, and Bolton was allowed back on the basketball team.

When H.S. complained to school officials that students were taunting her in the cafeteria, they told her to keep a low profile and stay out of the cafeteria, according to her court documents.

Eventually, a special prosecutor was appointed. Bolton pleaded guilty to a lesser assault charge and was expelled from the school. He has denied raping H.S., and said it was all a "misunderstanding." The case of codefendant Christian Rountree is still pending.

No matter what the 5th Circuit Court says, it seems outrageous to me that someone can essentially be fired from a job for refusing to cheer for her rapist. But, hey, that's just me.

Bob Egelko's excellent article, explaining the legal landscape of diminishing free speech rights on high school campuses, is HERE. The 5th Circuit ruling is HERE.

Photo: Ultra-conservative jurist Priscilla Owen,
one of three judges who issued the ruling against the cheerleader.

November 4, 2010

Residency restrictions illegal, Calif judge rules

"Court is not a potted plant"

Breaking news from the Los Angeles Times:

Saying sex offenders are being forced to choose between prison and homelessness, a Los Angeles judge issued an opinion this week blocking enforcement of provisions a state law restricting how close those offenders can live from parks or schools.

Superior Court Judge Peter Espinoza issued the 10-page ruling after four registered sex offenders petitioned the court, arguing that the legislation known as Jessica's Law was unconstitutional.

He said the court had received about 650 habeas corpus petitions raising similar legal issues, and that hundreds more were being prepared....

"The court is not a 'potted plant' and need not sit idly by in the face of immediate, ongoing and significant violations of parolee constitutional rights," Espinoza wrote.

Proposition 83, which is better known as Jessica's Law and was overwhelmingly passed by state voters in 2006, imposes strict residency requirements on sex offenders, including requirements forbidding them from residing within 2,000 feet of any public or private school or park where children regularly gather….

"Rather than protecting public safety, it appears that the sharp rise in homelessness rates in sex offenders on active parole in Los Angeles County actually undermines public safety," wrote Espinoza, who is the supervising judge of the Los Angeles County criminal courts. "The evidence presented suggests that despite lay belief, a sex offender parolee's residential proximity to a school or park where children regularly gather does not bear on the parolee's likelihood to commit a sexual offense against a child." …

New report on parolee recidivism

Meanwhile, California's Department of Corrections has released a new report on recidivism among parolees.

The state's recidivism rates remain among the highest in the United States, the report found, with more than two-thirds of paroled prisoners back behind bars within three years. Younger men and those with shorter sentences had the highest rates.

Almost three in four new imprisonments were for parole violations rather than new crimes, emphasizing the need for alternatives to incarceration for technical violations.

The bright lining is in the recidivism rates of sex offenders, such as those in Los Angeles who cannot find a place to live.

Parolees flagged as sex offenders had lower recidivism rates than other prisoners. And only about 5 percent of those who were sent back to prison had committed a new sex crime. The broad majority were returned for parole violations or non-sexual crimes.

These low sexual recidivism rates are consistent with correctional data from elsewhere in the United States. Unfortunately, as the Los Angeles judge alluded to, thanks to a few rare but highly publicized cases (remember the "black swans"?), the public has not gotten this message.

November 1, 2010

Judge denies defense expert in capital case

Death penalty cases are expensive.

I spoke with a condemned man on San Quentin Prison's death row who had done the math: The money spent on his trial and appeals could have paid for a year of public education for all of the children in his home town.

The high cost is causing many prosecutors around the United States to think twice before seeking the ultimate penalty. In the Midwestern state of Indiana, for example, capital prosecutions are down in the wake of a state study showing the cost is 10 times more than if the government seeks a sentence of life without parole.

But one crusading prosecutor in Indiana has a more novel solution: Prevent the accused from mounting a defense.

"I feel very strongly about defense death penalty costs," said prosecutor Stan Levco of Vanderburgh County in objecting to a defense request to hire a psychologist.

Astoundingly, the trial judge agreed, and declined the defense request for a psychologist to assist in the defense of Jeffrey Weisheit. The defendant faces trial for murder and arson in the death of his girlfriend's two young daughters. Judge Daniel Moore approved the limited use of a psychologist, just through November, in order to help decide whether Weisheit should plead insane, according to the Evansville (Indiana) Courier and Press.

This puts the defense attorneys in a bind. The standard of practice in capital cases is to hire a team of experts to explore the defendant's life for evidence of mitigating circumstances that can then be presented to the jury. In fact, not to do so may violate a defendant's Constitutional right to effective representation, according to the 2003 case of Wiggins v. Smith.

Expert assistance is even more critical in cases like this one, in which the defendant's mental state may be at issue.

But the financial burden of the trial has been on the public's mind in these cash-strapped times. When a defendant is indigent, as most are, the state public defender pays half of the trial costs, and the other half comes directly from county coffers. According to the state analysis, the average death case in Indiana costs about $450,000; defense attorneys in this case estimate costs may run almost twice that average.

In June, the local paper even ran an opinion poll:
As a taxpayer, are you OK with seeking the death penalty for Jeffrey Weisheit if the estimated cost of approximately $800,000 is used in his defense?
Of the 461 people who voted, 78 percent said "YES." Two-thirds of these thought "there should be a cap on what public defenders can spend on defense.”

Public opinion is hard to ignore.

The prosecutor, meanwhile, says he is so concerned about defense expenses in death penalty cases that he has formed a special prosecutorial committee to study the issue. With such deep concern, it is interesting that he decided to seek the death penalty in the first place. After all, most such efforts are a waste of money. They add years to the process and do not ultimately result in an execution. Between 1990 and 2000, according to the Indiana study, only about one out of six capital prosecutions resulted in a death sentence, and only four of those has led to an actual execution. Indiana currently has 15 prisoners on death row, and six other capital cases pending.

Levco may care about the cost, but I'll bet he cares even more about winning. And he has found an innovative way to improve his odds.

It will be like shooting ducks in a barrel.