California deals big blow to bogus paraphilia diagnoses

Government evaluators in California have been instructed to be more cautious in invoking ad hoc psychiatric diagnoses such as "paraphilia not otherwise specified-nonconsent" to justify the civil commitment of sex offenders.

In a report in today's Psychiatric Times, Allen Frances calls the move by California's Department of Mental Health a "giant step forward in ending the Paraphilia NOS fad."

The new marching orders are likely to have national repercussions. California has a large cadre of sexually violent predator evaluators, many of whom moonlight in other states and in federal court as well.

As Frances reports, evaluators were summoned to a training workshop at which "they were explicitly instructed to adhere closely to the intent of DSM-IV and to desist from making idiosyncratic paraphilia diagnoses. The training made clear that a diagnosis of 'Paraphilia NOS nonconsent' would require affirmative supportive evidence that the rapist is sexually aroused specifically by raping rather than all the many very much more common situations in which rape is simply criminal."

Increasingly, government evaluators had been using so-called "NOS" diagnoses to justify civil commitment of men whose sex offenses were not driven by any recognized mental disorder. Because rape is a crime rather than a mental illness, it is not included as a diagnosis in any psychiatric manual. Similarly, evaluators have taken to labeling men who sexually assaulted post-pubertal minors but did not meet the diagnostic criteria for pedophilia with the ad hoc label of "paraphilia not otherwise specified-hebephilia."

Frances expressed optimism that California's policy change signals the beginning of the end for “paraphilia NOS” in court:

The misdiagnosis of rape as a mental disorder has been a forensic disaster,  allowing the widespread misuse of involuntary psychiatric hospitalization.... [T]he California DMH has only limited control over its errant state SVP evaluators, who by contract are entitled to exercise their individual 'clinical judgment' however mistaken and baseless it may be. 'Paraphilia NOS' will likely linger longer than it should. But the tide has clearly turned in California and California is likely to be a bellweather state; its return to proper diagnostic practice undoubtedly will spread across the country.

Blog readers may also be interested in Frances's commentary on a proposed change in the diagnostic criteria for Posttraumatic Stress Disorder (PTSD) in the upcoming DSM-5. The change could open the door for increased forensic misuse of this controversial diagnosis. Frances's report is HERE.

Future orientation a major factor in juvenile competency

Photo credit: Richard Ross, Juvenile in Justice

Unlike adults, most children and adolescents who are found incompetent to stand trial are not psychotic. Rather, they have cognitive impairments. And, in a factor gaining greater attention from courts and legislatures, they are often immature.

Indeed, developmental maturity is so important that in California and some other states, juvenile competency evaluators are now required by law to assess for it.

That’s easier said than done. After all, what is immaturity, and how does it affect competency?

In a study just published in the Journal of the American Academy of Psychiatry and Law, four scholars state that one big chunk of maturity is future orientation, or the extent to which a youngster takes long-range consequences into account in making decisions. One reason that youngsters engage in risky behaviors, the theory goes, is because they are present-focused and lack a more mature perspective on the future.

Testing the influence of future orientation on competency, the researchers found that the well-established relationship between age and competency is moderated by a child's degree of future orientation.

Further, competency is particularly "fragile" in immature children. In other words, smaller deficits in cognitive abilities are more likely to influence competency in immature children as opposed to their more mature peers.

I recommend the full article, by Aaron Kivisto, Todd Moore, Paula Fite and Bruce Seidner. It is available for free online, HERE.

Crime after crime: Battered woman’s struggle for justice

Debbie Peagler was 15 when she met and fell in love with a charming young man named Oliver Wilson. Unfortunately for her, Wilson was a pimp and drug dealer who ferociously abused her over the next six years. He beat her with a bullwhip, prostituted her, forced her to perform oral sex in front of his friends, put hot ashes on her hands and made her eat his feces, according to witnesses. When she said she would leave, he threatened to kill her.

On May 27, 1982, she asked him to drive her to a park. Waiting in ambush were two friends of her mother, neighborhood gang members who killed him. The prosecution maintained that Peagler hired the men. Peagler claimed she never discussed killing Wilson.

Threatened with the death penalty, Peagler pled guilty to first-degree murder and went to prison. And there she would have remained for the rest of her life, if not for a little serendipity.

After California enacted a law in 2000 to ensure fair trials for battered women who killed their abusers, the California Habeas Project selected Peagler as someone who might be eligible for relief. A local law firm, Bingham McCutchen, agreed to take the case pro bono. Two rookie land-use attorneys, Joshua Safran and Nadia Costa, began collecting new evidence to substantiate Peagler’s abuse.

Peagler’s story had deep personal meaning for Safran. As a 9-year-old boy, he helplessly cried through the night as an abusive boyfriend pummeled his mother. Eventually, he and his mother escaped, and he learned to channel his simmering rage into legal advocacy.

Over the course of several years, the attorneys found long-lost witnesses, learned of allegedly perjured evidence, and got new statements from the men who had killed Wilson.

For her part, Peagley was a model prisoner. She had spent her decades behind bars tutoring illiterate women, leading a gospel choir, earning two college degrees, and participating in a battered women’s support group.

Eventually, the Los Angeles County district attorney’s office agreed that Peagley should have been convicted of voluntary manslaughter, which at the time carried a sentence of only two to six years. Prosecutors signed a statement agreeing to Peagley’s immediate release from prison.

But that happy ending was not to be. After a political backlash in his office, the district attorney reneged on the deal, and Peagley’s petition for release was denied. Meanwhile, the case took on a new urgency when Peagley was diagnosed with advanced lung cancer.

Costa and Safran continued to petition for Peagley’s release on numerous grounds: Her guilty plea was coerced, false evidence was introduced against her, and the original prosecution would have differed had there been expert testimony on battering.

Although the courts failed her, she was finally paroled from prison in August 2009, thanks in part to an international grassroots campaign. She currently lives in Carson, CA.

Sadly, Bay Area private investigator Bobby Buechler, who gathered exculpatory evidence and was involved in the crusade to free Peagley (and whom I happened to know), died unexpectedly shortly before her release.

Filmmaker Yoav Potash spent five years filming the story as it unfolded, both in and out of prison. CRIME AFTER CRIME is the award-winning documentary of this dramatic saga. The film is currently playing around the United States; check HERE for more information and to find a venue near you.

 
Hat tip: Martin

Tweeting the news

For those of you who aren't (yet) on Twitter, here are some of the news stories I’ve tweeted this week. Click on a story to go to the original piece. To subscribe to my Twitter feed, click HERE.

• Tunnel vision: How L.A. police relentlessly targeted wrong man in Dodgers Stadium assault; parolee/gang member didn't even like baseball 

(. . . a bit similar to how the initial blame for Oslo blasts fell on Muslims; L.A. suspect Giovanni Ramirez was lucky to have a top-notch lawyer)

• NPR: Violence at California mental hospitals: The new norm 

• NPR: Prisoners’ hunger strike puts focus on California prison conditions 

• California Watch: Prison audit finds 'high potential for fraud' 

• Texas study raises questions about impact of school discipline 

• Washington Post: Supreme Court ruling, rising police presence in schools spur Miranda concerns in interviewing children

Sex offender roundup

So much being generated on the sex offender front that it's hard to keep up. Here, in no particular order, are just a few choice items:

The Atlantic: Overzealous sex offender laws harm public

As the tide begins to turn, The Atlantic magazine has joined the backlash, with a well-written and insightful piece by associate editor Conor Friedersdorf that begins like this:

On the Texas registry for sex offenders, Frank Rodriguez's crime is listed as "sexual assault of a child." If I lived in his neighborhood and had young children, I'd be frightened upon seeing that. Safe to assume that some of his neighbors discovered his status and became alarmed. Needlessly so, as it turns out. Delving into his story, journalist Abigail Pesta has discovered that Rodriguez was arrested for having sex with his high school girlfriend. He was 19. She was 15. They've now been happily married for years, and he has fathered four girls.

The anecdote is part of a larger story about America's sex offender registries and the people on them who don't belong there. It's a timely subject. This month, some state governments are racing to bring themselves into compliance with the Adam Walsh Child Protection and Safety Act in order to avoid losing federal funds. As a result, the sex offender dragnet may pull in even more people. Says Pesta, "Each of the 50 states now has at least one grassroots group dedicated to getting young people -- many high school age, but some under the age of 10 -- off the registry."

So perhaps the backlash will grow too.

The article continues HERE.

Juvenile registries harmful, study finds

Dovetailing nicely with the Atlantic piece, a leading researcher and national expert on sex offender policy has found that placing the names of juveniles on sex offender registries does nothing to make society safer, and has harmful unintended effects on youth and on juvenile case processing.

Based on her research, Elizabeth Letourneau of the Medical University of South Carolina is calling for an end to notification requirements for juveniles.

A summary of her research is HERE.

California releases audit of SVP program

The State Auditor’s Office has issued its long-awaited report on the practical implementation of California’s civil commitment scheme for sex offenders. It isn’t as hard-hitting as I would have liked, but there are a few interesting tidbits.

One I found interesting was the statistic that out of all of the sex offenders who were NOT civilly committed and who were released into the community between 2005 and 2010, only ONE was later convicted for a new sexually violent offense. Talk about a low base rate!

The report also details the program’s meager bang for the buck. From 2005 to 2010, the state paid nearly $49 million in evaluation costs alone to a small group of privately contracted evaluators. Some of these psychologists earned upwards of $1 million per year. And for what return? Last year, the SVP program screened 6,575 prisoners for possible civil commitment. And guess how many were committed? THREE (much less than 1 percent)!

Just think about how much primary prevention work to reduce sexual violence all of those waste millions could have funded.  

The full report is online HERE.

More on the social costs of civil detention 

Unlike the California auditors, who seem to have bought into the promise of the Static-99 as an “actuarial” technique capable of predicting future behavior, law professor Tamara Rice Lave of the Miami School of Law has just published an article in New Criminal Law Review claiming that the Static has little utility in SVP determinations not only because it is inaccurate, but also because it does not link dangerousness to mental illness as U.S. laws require. Here is the abstract of her article, “Controlling Sexually Violent Predators: Continued Incarceration At What Cost?”

Sexually violent predator (SVP) laws are inherently suspicious because they continue to incarcerate people not because of what they have done, but because of what they might do. I focus on three major criticisms of the laws. First, I use recent recidivism data to challenge the core motivation for the SVP laws—that sex offenders are monsters who cannot control themselves. Second, I situate the laws theoretically as examples of what Feeley and Simon call the “new penology.” I argue that the SVP laws show the limited promise of the new penology—that we can use science to predict risk accurately—because the actuarial instruments used in SVP determinations make many mistakes. In making this argument, I focus particularly on the most commonly used such instrument, the Static-99. Finally, I argue that the Static-99 fails to meet the constitutional criteria laid out by the U.S. Supreme Court in Kansas v. Hendricks because it does not link an individual’s mental illness to his dangerousness.

Her full article is available online HERE.

Government SVP reports off target, says Allen Frances

Allen Frances, the chair of the DSM-IV Task Force, has been dabbling with SVP cases as an expert witness for the past year. After reviewing almost 100 cases, he is  – to put it mildly – under-impressed by the reports of government experts:

In not one case did the sexual offender qualify for anything remotely resembling a DSM-IV diagnosis of Paraphilia. And this is in an enriched sample of offenders who have been carefully screened and are presumed to have Paraphilia. Certainly state evaluators are wildly over-diagnosing Paraphilia and the courts are sanctioning unjust psychiatric incarceration based on their misguided opinions.

The evaluators all misinterpreted DSM-IV in just the same way. They routinely equate the act of committing a sex crime with having a mental disorder. Their reports gave remarkably detailed descriptions of the offender's criminal behavior, but provide little or no rationale or justification for a diagnoses of Paraphilia. The write-ups are all long and thorough -- but completely off point and generic. Although written by dozens of different evaluators, they have a rote quality and all repeated exactly the same mistakes.

His full post, at his “Couch in Crisis” blog at the Psychiatric Times, is HERE.

Is porn "driving men crazy"?

Last but not least, the prolific and insightful blogger Vaughan Bell deconstructs a CNN article by social crusader Naomi Wolf, who claims that pornography is “rewiring the male brain” and “causing [men] to have more difficulty controlling their impulses.”

According to her article, … “some men (and women) have a 'dopamine hole' – their brains’ reward systems are less efficient – making them more likely to become addicted to more extreme porn more easily.”

Wolf cites the function of dopamine to back up her argument and says this provides “an increasing body of scientific evidence” to support her ideas.

Porn is portrayed as a dangerous addictive drug that hooks naive users and leads them into sexual depravity and dysfunction. The trouble is, if this is true (which by the way, it isn’t, research suggests both males and females find porn generally enhances their sex lives, it does not effect emotional closeness and it is not linked to risky sexual behaviours) it would also be true for sex itself which relies on, unsurprisingly, a remarkably similar dopamine reward system.

Furthermore, Wolf relies on a cartoon character version of the reward system where dopamine squirts are represented as the brain’s pleasurable pats on the back....

The full post is HERE.

And after all of this if you're still in the mood for further browsing, I highly recommend the wide-ranging Mind Hacks blog; the topics are always fascinating (at least to me).

Should social workers do juvenile competency evaluations?

California Judicial Council soliciting input through June 20 on forensic qualifications

Photo credit: Richard Ross

As many of you may know, California just enacted a cutting-edge law (W&I 709) requiring that developmental immaturity must be considered in determining a juvenile's competency to stand trial. Now, the state's Judicial Council is tasked with developing new Rules of Court (5.645) to help implement the law, including guidelines about who qualifies as an expert in juvenile competency proceedings.

The Council has issued a specific call for comments on whether the court should expand the list of accepted experts from psychologists and psychiatrists only, to include other professionals such as social workers.

The deadline to submit a written comment is June 20. Comments may be submitted via email, mail or fax.(Be sure to follow the instructions, available HERE.)

Currently, five California superior courts have adopted protocols regarding juvenile competency matters (available HERE). The Superior Courts of San Diego and Sacramento counties require the appointment of a psychologist or psychiatrist, while San Francisco County appoints a psychologist, and the Los Angeles and Santa Clara courts use an expert panel.

My thoughts

My concern with expanding the eligible professions is that, although there are many fine social workers in the field, their education and training does not prepare them to perform state-of-the-science assessments in this complex area. Social work programs do not provide the education and training in psychometric testing, statistics or differential diagnosis that is routine in psychology graduate programs. As I wrote in my formal comment to the Judicial Council:

Often, competency becomes an issue with children due to complex constellations of underlying deficits, such as neurological insults, neurodevelopmental impairments, psychiatric disturbances, intellectual or other cognitive limitations, and learning disabilities. In such cases, ferreting out what is going on requires the proper selection, administration, and interpretation of an ever-changing array of psychological tests and measures….

Because social work programs do not offer the extensive training in differential diagnosis that is standard in psychology and psychiatry training programs, social workers as a rule are not equipped to adequately sort through complex differential diagnostic issues and assess their functional impact on a juvenile’s competency to stand trial.

The other aspect of the proposal about which I expressed reservations was section (v), which would require evaluators to "be familiar with … treatment, training and programs for the attainment of competency available to children and adolescents in California."

In my opinion, this goes beyond the bounds of a typical forensic psychology evaluation, and may lead to unintended negative consequences. As I wrote to the Council:

In practice, this could require an evaluator to take on the onerous burden of ferreting out the available services in each jurisdiction in which he or she practices. The task of locating appropriate services for incompetent minors properly belongs to local probation officers, child welfare workers, regional centers, and others, not forensic evaluators….

Well-qualified evaluators are already reluctant to conduct court-ordered evaluations due to the pittance that most counties pay. Mandating additional burdens that do not exist for other types of forensic work could inadvertently contribute to poor practice by leaving only shoddy "drive-by" evaluators willing to take on these complex and time-consuming cases.

I encourage interested professionals to submit comments right away, as the deadline is looming. In the near future, the Council plans to seek public comment on other aspects of this new law, and I will try to provide you with advance notice on this blog.

California prisons 'cruel and unusual,' U.S. high court rules

In a historic decision, the Supreme Court of the United States has ruled that prison conditions in California are so bad that they violate the U.S. Constitution's ban on cruel and unusual punishment. Opining that the prison system produces "needless suffering and death" through its failure to deliver minimal medical and mental health care to serioiusly ill prisoners, the court ordered California to cut its massive prison population by more than 30,000 prisoners (still 137.5 percent over capacity) within the next two years. Rather than releasing prisoners outright, the state can ship them to other states or keep them in county jails. As Adam Liptak of the New York Times reports:

The majority opinion included photographs of inmates crowded into open gymnasium-style rooms and what Justice Kennedy described as 'telephone-booth-sized cages without toilets' used to house suicidal inmates. Suicide rates in the state's prisons, Justice Kennedy wrote, have been 80 percent higher than the national average. A lower court in the case said it was 'an uncontested fact' that 'an inmate in one of California’s prisons needlessly dies every six or seven days due to constitutional deficiencies.'

The court's ruling in Brown v. Plata is HERE.

Unusual saga: From prison warden to anti-execution activist

Ex-warden of hardscrabble San Quentin to direct abolitionist Death Penalty Focus

Jeanne Woodford is joining Death Penalty Focus, a nonprofit group that works to abolish the death penalty. She brings to the job her experience as the warden of San Quentin State Prison in the San Francisco Bay Area, where she oversaw four executions. (Photo credit: David Butow / Redux)

As the clock ticked past midnight and the death chamber phone refused to ring, San Quentin State Prison Warden Jeanne Woodford would calmly signal the executioners to inject a lethal dose of chemicals into the condemned man's veins.

Reared in a Roman Catholic family, she grew up believing that only God had the right to take a life. But four times in her 30-year career in California corrections, the soft-spoken mother of five carried out executions of notorious killers, remorseful and unrepentant alike.

Woodford resigned as director of the California Department of Corrections and Rehabilitation four years ago, dismayed over state authorities clinging to policies such as the death penalty that she had concluded are wasteful, discriminatory and fail to make the public safer.

Now, as the state tries to restart the execution machinery after a five-year legal hiatus, Woodford has crossed to the other side of the contentious debate over capital punishment. On Thursday, the abolitionist nonprofit Death Penalty Focus announced Woodford's appointment as executive director, a new role that will see her standing on the other side of the walls of San Quentin should any of the 713 death row inmates meet his or her end at the hands of the state.

"I never was in favor of the death penalty, but my experience at San Quentin allowed me to see it from all points of view. I had a duty to carry out, and I tried to do it with professionalism," Woodford, 56, said in explaining how she had to put her personal abhorrence of execution aside to do her job. "The death penalty serves no one. It doesn't serve the victims. It doesn't serve prevention. It's truly all about retribution."

Woodford says she sees an opportunity to get rid of the death penalty in the current quest for budgetary restraint. If the public can be educated about the true costs of capital punishment - at least $200 million a year, she says - as well as its potential for irreversible error, support for the ultimate penalty would wither, Woodford predicts. It is that prospect that has lured her from a brief retirement to the post with Death Penalty Focus from which she will lobby against the policy she once imposed.

Reform proposals ignored

After 26 years at San Quentin, Woodford was tapped by Gov. Arnold Schwarzenegger to serve as corrections director in 2004, a job she initially hoped would allow her to reform the system from inside. She wanted to close the revolving door of parole violators flooding the prisons for three-month terms, enough to compound overcrowding and soak up medical care but too short to get into rehabilitative programs.

"It was an incredibly expensive bus ride to nowhere," she said of the vicious circle of petty offenses sending parolees back inside to reconnect with hardened criminals.

Her proposals for locating inmates in prisons closest to where their families lived went unheeded. Direly needed sentencing reform never happened, although, she says, the Legislature and governor are now drafting programs to cut the 70% recidivism rate, finally motivated by the need to trim the corrections budget.

"There are a lot of hard-working people in the corrections system who take the blame for so much that is out of their control," Woodford says of the frustration that led to her resignation. "They don't make the sentencing laws, but they are expected to carry them out."

The Los Angeles Times profile, by reporter Carol Williams, continues HERE.

Three Strikes and Civil Rights

Guest post by Bill Boyarsky*

The racism within the police-court-prison system is one of America’s most neglected evils, as is the impact it has on the poor African-American and Latino communities that are home for so many released convicts.

I’m wondering if I’ve already lost some of my readers. Who cares about criminals? Some of the journalists I met last week said they get the same reaction from their editors.


I joined them at a symposium sponsored by New York’s John Jay College of Criminal Justice’s Center on Media, Crime and Justice designed to encourage better reporting of this neglected field…. My fellow attendees were journalists working for newspapers, radio stations and online operations. Some were staff reporters, others freelancers….

The main topic was how to report the long and repetitive controversy over California’s three-strikes law, a draconian statute approved by the voters in 1994 after the horrible murder of 12-year-old Polly Klass by an ex-convict. The killer had been released from prison after serving eight years of a 16-year sentence for a series of armed robberies. Previously, he served six years in prison after he attempted a rape, brutally assaulted a woman in the course of a burglary, and tried to kidnap another woman at gunpoint.

The solution to this was based on a sports analogy, except, in this case, the third strike means you’re in—in prison for a long time and often for a small offense. The law imposes a mandatory sentence of 25 years to life for anyone convicted of a felony if that person has two previous felony convictions. The third-strikes sentence has been imposed for nonviolent offenses—such as stealing videos, golf clubs or even a pizza—permitted by the law to be raised to felony status.

The discussions ranged far beyond three-strikes. Through all the conversations, an underlying issue, to me, was racism.

Racism has always been a powerful force in the web of police, prosecutors, judges, prison guards and wardens who make up the criminal justice system.

But beginning in the 1980s the war on drugs made it worse, with repeated raids on poor African-American and Latino neighborhoods while the police and prosecutors generally ignored economically better-off whites using cocaine in the safety of their homes.

Connie Rice, a civil rights attorney who heads the Advancement Project, has long fought for racial justice by police, prosecutors and the courts, as well as in the schools and other institutions. She told the journalists the war on drugs was based on crime suppression in poor, minority areas. Police stop young men and arrest them when they suspect drug possession. Arrests add up over the years to a third strike.

The three-strikes prosecutions, said Erwin Chemerinsky, dean of the University of California Irvine School of Law, focus disproportionately on African-Americans and Latinos. Thirty-seven percent of such inmates are African-Americans and 33 percent are Latinos. These statistics are in line with national figures showing that African-Americans and Latinos outnumber whites in prison by a margin of almost 2-to-1.

Veteran activist Tom Hayden, an expert on gangs, talked about the lack of jobs confronting convicts when they leave prison. A one-striker, returned to the old neighborhood unemployed and without prospects, is just a crime away from being a two-striker and then committing the third. “Deindustrialization has eliminated jobs people took after prison,” he said.

The journalists’ challenge, said Connie Rice, is “to connect the dots,” to put all these elements into a coherent, compelling story.

That’s a big challenge, and journalism may not be up to it. At the end of the meeting, the hard facts of life in today’s media climate intruded. One reporter said her editors weren’t interested in the subject because they didn’t think the readers cared. Another was a court reporter who wanted to explore how the system works on the streets. But her beat includes two courthouses, separated by many miles in a sprawling county. I doubt whether she has much time for prowling the streets. A third reporter talked about the strains imposed on the remaining members of a staff hit by layoffs.

Add to those obstacles Internet editors’ demands for quick and numerous short stories that will produce more hits and page views.

Despite the challenges, I left the room tremendously impressed with the energy of the reporters. One said he had thought of 21 story ideas during the symposium.

The journalists are today’s civil rights reporters, engaged in a job as big and challenging, but much more unglamorous, than that of an earlier generation. During the civil rights movement, it was easy to get people worked up about an African-American kid barred from a school or a church burned down. Today, it is almost impossible to stimulate the interest of editors and audiences in a black or Latino ex-convict hoping for a fresh chance rather than a third strike.

*Originally posted at Truthdig. Re-posted with written permission from Bill Boyarsky. 

Bill Boyarsky is a lecturer in journalism at the University of Southern California’s Annenberg School for Communication and is vice president of the Los Angeles City Ethics Commission. A former city editor, columnist, bureau chief and political writer for the Los Angeles Times , he was a member of reporting teams that won three Pulitzer prizes. In 2010, the Los Angeles Press Club honored his political columns at Truthdig by naming him as Online Journalist of the Year.

Judge upholds indefinite detention of California sex offenders

In a long-awaited ruling, a San Diego judge has ruled that indefinite detention of Sexually Violent Predators (SVP’s) is constitutional, even though other forensic patients are entitled to periodic reviews.

The ruling in the legal challenge by sex offender Richard McKee came after a 6-week hearing featuring experts from around the United States. The California Supreme Court had ordered the hearing, saying prosecutors must justify the differential treatment of SVP’s by proving that they are categorically different from two other types of forensic patients. The other two classes of   people who are civilly committed based on criminal behavior are Mentally Disordered Offenders (MDO’s), who are hospitalized when they come up for parole due to the immediacy of their threat of violence to the public, and persons found not guilty by reason of insanity (NGI). Jessica’s Law, enacted by voters in 2006, eliminated the right of committed sex offenders to a recommitment trial every two years.

In his 35-page ruling, Judge Michael Wellington said prosecutors had met their burden of proving that SVP’s are a distinct class that is harder to treat and more likely to commit additional sexual offenses.

After hearing from all of the experts, the judge acknowledged the significant controversies regarding the reliability of the paraphilia diagnoses, the accuracy of actuarial risk prediction instruments such as the Static-99, and the base rates of recidivism.

If anything is clear from the evidence presented in this case, it is that key factual matters are controversial. It is also apparent that the evidence of the relative danger the classes represent is analytically nuanced and deeply rooted in developing medical and psychological science.

Psychiatric diagnoses unreliable

Interestingly, the testimony of state hospital representatives lent some support to McKee’s legal challenge.

For example, Dr. Alan Abrams, Chief Psychiatrist at the California Medical Facility at Vacaville, testified that sex offender diagnoses (pedophilia and other paraphilias) are imprecise, and he has little confidence in their accuracy.

Two professionals from Coalinga, the state hospital built to house SVP’s, also testified that they favor having an external review every two years. Dr. Robert Withrow, the hospital’s acting medical director, said indeterminate terms reduce hope in both patients and staff, and discourage patients from signing up for treatment. Dr. Kasdorf, also from Coalinga, agreed. He said patients work harder in treatment and have more trust in the system when they know they will get a hearing.

This contradicted testimony by David Thornton of Wisconsin's Sand Ridge civil detention center, who argued that periodic recommitment hearings are disruptive to treatment.

Actuarials controversial

Among the most controversial issues emerging from the trial was the value of actuarial instruments -- and the much ballyhooed Static-99 in particular -- to assess sex offenders' risk of recidivism.

Mark Boccaccini, who teaches psychometrics and psychology and law at Sam Houston State University in Texas, testified about his research showing that "the Static-99 has only marginal to moderate predictive reliability, little greater than chance." Boccaccini also testified that use of a single good actuarial tool is a better predictor than the use of multiple tools. Many government evaluators in California report data from other actuarial tools in addition to the Static-99, such as the MnSOST-R and the RRASOR.

California need not be enlightened

McKee's attorneys, from the San Diego Public Defender's Office, were allowed to present evidence of two alternate models: Texas's outpatient halfway house model, and Canada's Circles of Support and Accountability, which provides support to ex-convicts returning to the community. But ultimately the judge ruled that testimony irrelevant:

The [Canadian] representative who testified presented an impressive picture of a successful community-based program. While this evidence was offered to show that less restrictive alternatives exist to SVP treatment, it fails to gain traction in an equal protection context…. California is not obligated to follow Texas or Canada's examples however much more enlightened they may seem.

Bottom line, ruled the judge, is that we must make do despite the controversies and uncertainties:

It is this court's conclusion that the evidence presented satisfies the People's burden of establishing, by a preponderance of the evidence, that the different treatment given to SVP's under Proposition 83 [Jessica's Law] is "based on a reasonable perception of the unique dangers that SVP's pose rather than a special stigma that SVP's bear in the eyes of California's electorate." (McKee, supra, at 1210.) The fact that the evidence supporting this may be subject to controversy does not detract from its reasonableness or from the validity of the legislative distinctions based on it.

As someone who evaluates all three categories of offenders here in California --SVP’s, MDO’s and NGI’s -- I was astonished by the argument that the harm caused by SVP’s is categorically greater than that inflicted by members of the other two categories. Violence need not be sexual to inflict severe trauma. Some of the most disturbing cases I have been involved in were MDO and NGI cases in which psychotic individuals inflicted horrific brutality, torture and even death upon women and children. In contrast, I know of one young man who is currently committed to Coalinga as an SVP whose only offenses since age 18 were two consensual affairs with late teenage girls, one of whom even testified on his behalf at trial (saying she initiated the relationship and was a willing participant). Triggering his civil detention was not any sexual recidivism, but rather a parole violation for smoking marijuana.

That's the problem with separating criminals into artificial groups and then pretending they are all the same.

The art on this page is by Ricky Romain, an internationally acclaimed human rights artist in the UK whose work focuses on themes of justice, alienation and sanctuary. Mr. Romain has kindly given permission to showcase his art here. I encourage you to check out his extensive online gallery (HERE).

 

Economy, abuse scandals drive sea change in US juvie lockups

As USA Today’s Martha Moore reports:

 States sending juvenile delinquents back where they came from

 

Photo credit: Richard Ross

California, seeking to close a $26 billion deficit, and New York, with a $10 billion budget gap, are moving to close state youth prisons for good and instead let local governments lock up young offenders.

State youth lockups are easy targets for cost-cutters and reformers: They cost a lot and, according to data showing high rates of repeat offenders, accomplish little….

New York has been under pressure to improve its juvenile justice system since a 2009 federal investigation -- sparked by the death of a 15-year-old boy -- found that state youth prisons used excessive force. States including Illinois, Ohio and Pennsylvania have reduced the number of kids sent to state lockups by offering financial incentives to counties to keep youthful offenders in local programs. Ohio, for instance, has reduced the number of juveniles in state lockups from almost 1,800 in 2007 to 736 this year.

Photo credit: Richard Ross

But New York City and California would go a step further by virtually eliminating the state's role.

California once had the largest number of young people in lockups: from 10,000 in 2005 to 1,200 now. It has cut that number dramatically after a 2007 law required the release of non-violent offenders.

Gov. Jerry Brown's budget called for the state to close its four juvenile prisons, currently housing about 1,200 youths, by 2014 and send money to the state's 58 counties to run their own lockups. After protests from counties, a revised proposal announced last week would keep some state youth prisons open and allow counties without secure lockups for youths to pay to send kids to the state juvenile prison. Counties that want to run their own youth lockups could use state money to do that instead.

In New York, where 700 youths are in state lockups, Gov. Andrew Cuomo wants to close juvenile prisons despite local opposition over lost jobs. Meanwhile, New York City, which accounts for more than half the youths in state custody at a cost of $270,000 per youth per year, wants to opt out of the state system entirely.

A system run by the city — with funding from the state — would be cheaper and more effective if only because it would be nearby, says John Feinblatt, criminal justice coordinator for Mayor Michael Bloomberg. "Some of these kids have tough relationship with the families, but what you don't want to do is break those relationships any further than they are broken, he says. "What you want to do with a 14-, 15-year-old is build on what connections already exist."

Photo credit: Richard Ross

The city's plan is modeled on Detroit, which began handling almost all its juvenile cases in 2000 and where the number of youth sent to state facilities dropped from more than 730 in 1998 to 18 in 2009.

The proposals have roused opposition from people who don't want to see jobs lost when state youth prisons close. And juvenile justice advocates are divided on whether it's a good idea to get rid of the state programs altogether.

"I've seen too many kids die because the state wasn't appropriately regulating what was going on at the local level,'' says Barry Krisberg, a Berkeley law professor and juvenile justice expert.

Counties in California say they cannot handle more kids, especially the violent offenders still in state youth prisons. "You're asking them to take back kids that they've rejected. It's like asking the school principal to take back the kids that they've expelled," says Dan Macallair, executive director of the Center on Juvenile and Criminal Justice in San Francisco, an advocacy group.

Advocates fear that losing the state youth prisons mean that county prosecutors will increasingly charge juveniles in adult court. The number of juveniles tried as adults has already increased in California. Even though state youth prisons are bad, advocates say, prisons are worse….

Photo credit: Richard Ross

Some advocates say the California state youth agency has been so bad for so long that it should be scrapped for good. "Right now we're dooming them all to certain hell." says Jakadi Imani, executive director of the Ella Baker Center for Human Rights in Oakland. Eliminating the state system means "we open up the possibility that kids will actually get help." …

County programs have their own problems. Los Angeles' youth detention system has already been investigated by the Justice Department.

Alameda County, where Oakland is located, will build a youth lockup to accommodate kids that would have gone to state youth prisons, says David Muhammad, the county's head of probation. "A huge concern is, you close (the state agency) completely, fund the counties to supervise this population but only fund it for five years. What happens after that?"

The full story is HERE.

Photos are from Richard Ross's marvelous exhibit, Juvenile-in-Justice (HERE).

Napa Hospital chief gets 248 years in prison

A year after police marched into California's largest psychiatric hospital and arrested its executive director, Claude Edward Foulk Jr. has been sentenced to 248 years in state prison. A jury had convicted him of sexually assaulting a foster son he adopted back in the 1960s.

Prosecutors said they identified more than a dozen other boys molested by Foulk over a 40-year period. Those cases were too old to prosecute. However, four of the now-grown men, all boys from abusive homes whom Foulk took in through the foster care system, testified against Foulk at trial.

"You are a sick, sick man," the judge told Foulk. "And the irony is you were director of the state hospital. How does that happen? You should have been the number one patient."

Foulk was appointed to head the beleaguered hospital in 2007, shortly after the U.S. Attorney General's Office negotiated a consent decree mandating sweeping changes aimed at improving patient care and reducing suicides and assaults. The federal investigation had revealed widespread civil rights violations at Napa, including generic "treatment" and massive overuse of seclusion and restraints. Napa is the only state psychiatric hospital in Northern California, and houses defendants undergoing competency restoration treatment and those found not guilty by reason of insanity.

At the time of his appointment, Faulk was lauded for his lengthy career in mental health services in both the public and private sectors.

Parolees retain right to confidential therapy, court holds

"The SVP Act does not include its own special exception"

Ramiro Gonzales had no idea how far the news would travel, when he confided to his therapist that he had molested more children than those for which he had been convicted and served time in prison.

After all, confidentiality is the cornerstone of psychological treatment. Would you disclose information in therapy if you thought your darkest thoughts and most shameful misdeeds would be trumpeted to the world?

But in response to a subpoena, Mr. Gonzales's therapist handed over his entire treatment record to a prosecutor who was seeking to civilly detain him as a sexually violent predator (SVP), after a judge overruled a defense objection. The government's two psychologists then used the damaging admissions to bolster their trial testimony about future dangerousness, and a jury voted to civilly commit him.

Not so fast, an appellate court ruled last week. "The SVP Act does not include its own special exception" to established rules of patient-therapist confidentiality. Just like everyone else, a parolee is entitled to expect confidentiality in therapy, except as necessary to keep parole authorities informed about whether he is complying with any mandatory treatment requirements. Such information, the court added, must be as minimal as possible, and certainly does not include details of therapy or statements made in therapy.

Mr. Gonzales's admission was so highly prejudicial that the civil commitment must be overturned and he must get a new trial, the appellate court ordered, especially since the government's case overall was "not compelling." There was no evidence that he had molested any children since paroling from prison.

Mr. Gonzales, who is developmentally disabled due to spinal meningitis as a boy, was required to be in treatment as a condition of his parole. The state had already tried to civilly commit him upon his initial parole from prison, but a jury rejected that attempt. It was trying for the second time, after he violated parole by drinking alcohol and being around children, including his sister's children when they came over to visit his mother, where he lived.

The court clarified that people who have been civilly committed, as well as prison inmates, cannot expect the same level of privacy in therapy as parolees or probationers, because they have been found to be dangerous.

The ruling is good news for psychology ethics. Too many therapists seem to harbor the misimpression that a contract with a parole or probation agency trumps our professional ethics codes, giving them carte blanche to discuss their client's confidential business with authorities.

This ruling should serve as a vivid reminder: A subpoena is just a piece of paper filled out by an attorney. You aren't supposed to blindly obey it when it is improper. Indeed, you have an obligation to actively resist turning over confidential records of therapy. The therapist in this case should have voiced an objection, and brought her own attorney to court to fight the subpoena.

The case, People v. Ramiro Gonzales out of Santa Clara County, gives an excellent overview of both federal and California case law on confidentiality in forensic cases. It is online HERE.

Related blog posts:  

• Do sex offenders have right to confidential therapy? (Feb. 22, 2008)

• Confession to prison psychiatrist not confidential (Dec. 11, 2007)

• Treating therapist as police interrogator (Nov. 30, 2008)

• Abandon ethics, all ye who enter here: Special ethics exemption sought for SVP work (Oct. 6, 2010)

California training to feature confession expert

Dr. Richard Leo, Associate Law Professor at USF and a leading scholar in the area of false confessions, will be the keynote speaker at next month's conference of the Forensic Mental Health Association of California. His presentation is titled False Confessions: Causes, Characteristics and Solutions.*

The conference, "Mental Health and the Law: An In-Depth Look at the Evidence," will be March 23-25 in Seaside (just outside of picturesque Monterey).

The FMHAC has scored some other big names, too, including Richard Rogers and Robert Hare. Topics of interest include the effect of high-profile crimes on SVP laws in California, competency restoration treatment in county jails, malingering assessment, and lots more.

*My review of Dr. Leo's book, Police Interrogation and American Justice, is HERE.

Prison therapy: It's all in the name

Look at the above picture. What do you see? You should see a monkey in a cage. (More precisely, a capuchin monkey rescued from a laboratory.)


Now look at the second picture. If you again see a cage (or two), your eyes are playing tricks on you. These are not cages. They are "therapeutic modules." It's the California prison system's response to a judicial mandate to provide treatment to mentally ill prisoners.

Using the correct term is important, according to a psychiatric expert quoted by Jack Dolan in today's Los Angeles Times: "If you call them cages, people inside might feel like animals and respond accordingly."

Pictured here is music therapist Daniel Tennenbaum, wearing a flak vest as he strums a sing-along rendition of Otis Redding's "Sitting on the Dock of the Bay":

... I had nothin to live for
And look like nothing's gonna come my way ...
Look like nothing's gonna change
Everything still remains the same ...

I'm just sitting on the dock of the bay
Wasting time

One wonders whether the "therapeutic module" euphemism is truly for the benefit of the prisoners, or more for the psychologists providing window dressing, who want to think that therapeutic healing is possible under such cruel and inhumane conditions.

And if mere renaming can alter reality, then Mina over at Psydoctor8 has a better idea. We could refer to the prisons as "Hawaii." Then, the prisoners might feel like hula dancers instead of caged animals.

Another severe attack at Napa Hospital

Less than two months after a psychiatric technician was strangled to death, another staff member has been beaten unconscious at Napa State Hospital, California's largest psychiatric hospital. Already abysmal staff morale is sinking lower as tensions rise among the captive patients, whose privileges have been curtailed since October's slaying.

Four years ago, the U.S. Attorney General's Office negotiated a consent decree mandating sweeping changes aimed at improving patient care and reducing suicides and assaults at the troubled hospital. A federal probe had revealed widespread civil rights violations, including generic "treatment" and overuse of seclusion and restraints. Napa, the only state psychiatric hospital in Northern California, houses defendants undergoing competency restoration treatment and those found not guilty by reason of insanity.

Earlier this year, another scandal hit the hospital, when its executive director was arrested on 35 felony charges stemming from the alleged molestation of a foster son. He was suspected of molesting at least four other boys going back to the 1970s.

Lee Romney of the Los Angeles Times, who has provided the best coverage of California's troubled state hospital system over the past few years, reported that patients at Napa are increasingly agitated in the wake of greater restrictions on their movement, exacerbating an already bleak picture:

Since 2006, the state's mental hospitals have been under a federal court order to improve conditions for patients. Yet safety for both patients and staff has deteriorated markedly at Napa State Hospital over the last year, data show. The other state hospitals subject to the federal consent judgment have also experienced a rise in violence since the state began implementing changes in care.

In case you need a job, by the way, the hospital is hiring.

Hat tip: Kathleen

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.