Hang 'em high county to reverse course

Dallas will review all pending executions

Texas executes far more people than any other U.S. state. And within Texas, Dallas County is second only to Harris County (Houston). But now, a crusading prosecutor is set to reverse course, calling for a potential halt to all proceedings until the guilt of each condemned man can be ascertained.

"I don't want someone to be executed on my watch for something they didn't do," said the maverick D.A.

As today's Dallas Morning News reports,

Troubled that innocent people have been imprisoned by faulty prosecutions, District Attorney Craig Watkins said Monday that he would re-examine nearly 40 death penalty convictions and would seek to halt executions, if necessary, to give the reviews time to proceed.

Mr. Watkins told The Dallas Morning News that problems exposed by 19 DNA-based exonerations in Dallas County have convinced him he should ensure that no death row inmate is actually innocent.

"It's not saying I'm putting a moratorium on the death penalty," said Mr. Watkins, whose reviews would be of all of the cases now on death row handled by his predecessors. "It's saying that maybe we should withdraw those dates and look at those cases from a new perspective to make sure that those individuals that are on death row need to be there and they need to be executed."

He cited the exonerations and stories by The News about problems with those prosecutions as the basis for his decision. The exonerations have routinely revealed faulty eyewitness testimony and, in a few cases, prosecutorial misconduct.

Fred Moss, a law professor at Southern Methodist University, said he had never heard of another prosecutor in the country who had conducted the type of review Mr. Watkins proposed.

"It's really quite extraordinary," Mr. Moss said.

Under Watkins' proposal, all pending death cases will be reviewed by his office's Conviction Integrity Unit, which was created last year.

It remains to be seen whether this remarkable about-face will rub off on Harris County, which as of the latest count had surpassed the next-highest state (Virginia) in number of people executed.

The full story is here. Related coverage in the Dallas Morning News is here.

Commission recommends major reforms to California death penalty system

California's death penalty system is costly, ineffectual, and on the verge of collapse, according to a just-issued report of the California Commission on the Fair Administration of Justice.

California has the longest delays in executions of any state. Of the 813 people sentenced to die since the death penalty was reenacted in 1977, only 13 have been executed. That's fewer than have killed themselves (14) or died of natural causes (38). Despite the fact that death verdicts are decreasing (last year, only 20 people were sentenced to death in the populous state), the number of people awaiting execution is at an all-time high of 670. The logjam is so great that "California would have to execute five prisoners per month for the next 12 years just to carry out the sentences of those currently on death row," the Commission stated.

A major reason for the long delays is a shortage of competent attorneys at every stage of the process. A condemned prisoner sits on death row for 3 to 5 years before getting a lawyer, waits another 2 years before his first, "automatic" appeal is heard by the state Supreme Court, and waits more years before getting state habeas counsel (291 inmates don't have that attorney assigned yet). That's before even reaching the federal level, where more delays ensue at every stage.

To address the attorney shortage, the Commission is recommending big increases in the stable of state Public Defenders and attorneys at the California Habeas Corpus Resource Center. Such massive funding increases are unlikely, in my opinion, given the current budget crisis and the national trend of slashing defense expenditures (see my June 26 blog post.)

The Commission also recommends more funding at the trial level. The report points out that most death penalty verdicts are getting overturned by federal courts, causing expenditures for costly retrials. The leading cause of such reversals is trial attorneys' failure to adequately investigate potential mitigating evidence, as required under Wiggins v. Smith (539 US 510, 2003).

Part of the reason for that abysmal record, according to the Commission, is that many counties are paying private attorneys a flat fee. This discourages them from hiring investigators and expert witnesses, because the money comes out of their own pocket. The Commission urged the state Supreme Court to increase funding for privately appointed lawyers so that they are paid enough to ensure "high quality legal representation" and so that they obtain the necessary expert services.

The Commission's recommendations to pour massive additional funding into a faulty system are sure to be controversial. The Commission mentions less costly alternatives, including getting rid of the death penalty altogether (as some other states have done) or at least reducing its scope so that only the "worst of the worst" are eligible.

One very sound recommendation is to eliminate felony murder as grounds for death. (see the New York Times editorial by Adam Liptak, "American Exception: Serving Life for Providing Car to Killers," for an excellent discussion of the felony murder rule.)

Narrowing the death penalty's scope to five especially heinous grounds would reduce the current death row population to 368, the Commission said.

The comprehensive report also addresses geographic variations in death penalty implementation. Researchers have found that rural counties in California with high proportions of whites impose death at a higher rate, and - perhaps not coincidentally - people who kill African Americans are less likely to receive the ultimate punishment.

The Commission, created in 2004 to recommend reforms to make the state's criminal justice system fairer, heard from 72 witnesses over a six-month period. In addition to the majority recommendations, the downloadable, 145-page report contains dissenting statements from police and prosecutor members as well as a call for death penalty abolition by commission members from the defense bar.

The Commission is composed of law enforcement, prosecutors, defense attorneys, judges, and citizens. It has already issued a series of unanimous recommendations on other criminal justice issues, including eyewitness identification, false confessions, jailhouse informants, scientific evidence, and wrongful conviction remedies. (See my previous blog post (here) for links to those reports.

San Francisco Chronicle coverage of the report is here. The American Bar Association's study on the death penalty in eight states is here. Critical analysis of the U.S. death penalty by Time and Newsweek magazines are here and here.

Interesting issue of forensic psychiatry journal

The latest issue of the Journal of the American Academy of Psychiatry and Law is now available online. The theme is ethics in forensic psychiatry practice.

I found Cheryl Wills' article (here) especially intriguing:

Post-Katrina Juvenile Competency Determinations: A Tale of Two Systems

Natural disasters such as Hurricane Katrina have resulted in the displacement of families to locations throughout the nation. Juvenile courts have been affected by this mass migration of youths. Postdisaster recovery has been slow. Consequently, a cohort of youths has aged out of the juvenile justice system before their juvenile competency hearings could be held. Some of these young adults now face charges as adults in criminal courts. The author explores what happens when youths awaiting juvenile competency determinations age out of the system and face charges as adults. The evolution of the problem, the current situation, case examples, and possible solutions are reviewed.

Amnesia and crime

The June issue also includes a point-counterpoint debate on assessing amnesia and crime. Should the approach be neuropsychiatric, as argued by Hal Wortzel and David Arciniegas (here), or psychiatric-clinical, as argued by Dominique Bourget and Laurie Whitehurst (here)?

Review of Campbell's Assessing Sex Offenders

Michael Harlow writes a critical review (here) of the new (second) edition of Terrence W. Campbell's Assessing Sex Offenders: Problems and Pitfalls. (To see the new edition itself at Amazon, click here.)

Legal case summaries

And, last but not least, we get summaries of interesting recent court cases on:

• Miranda Waiver in a Juvenile

• Mental Retardation and the Death Penalty

• Competence to Stand Trial

• Methamphetamine-Induced Psychosis and Diminished Capacity

Click here for the full table of contents.

Prominent expert testifies about juror bias

In the United States, African Americans are strongly associated with criminality. Research is accumulating to suggest that this largely unconscious association has a profound effect on criminal justice policies and practices, including jury decision-making.

A few months ago, I posted about research showing that making jurors aware of unconscious bias can increase their open-mindedness and thoughtfulness during deliberations. Now, attorneys in a New Hampshire death penalty case are going a step further, calling one of the nation's best-known social psychologists to testify about unconscious prejudice against African Americans.

Mahzarin R. Banaji, a brilliant and elegant speaker, testified for the first time in her life yesterday at a pretrial hearing for Michael Addison, a black man charged in the killing of white police officer Michael Briggs. Banaji, an authority on the well-known Implicit Association Test, testified as though giving one of her lectures to Harvard psychology students, standing in the witness box and using a laser pointer to highlight her data.

The question on the judge's mind is whether a Black defendant can get a fair trial in New Hampshire, given the state's largely white population.

Banaji's answer: "The likelihood of a fair trial here is abysmally low based on social science."

Defense attorneys are hoping the judge accepts Banaji's evidence and strikes the death penalty against Addison, whose trial is set to start this fall.

But using the Implicit Association Test as evidence of racial bias is controversial, with critics charging that there is insufficient research into the test's accuracy or precisely what it measures. The point-counterpoint controversy is featured in today's Chronicle of Higher Education (unfortunately, I think the article is available only via subscription).

Whatever the outcome of this week's hearing, the topic of unconscious racial animus will likely get more play in court in upcoming months and years. Indeed, scholars associated with a new MacArthur Foundation-funded project on law and neuroscience are looking into doing some proactive training, to teach jurors how bias works and how to counter it in their deliberations.

The Concord Monitor has coverage of the Addison case. TV station WMUR-9 in New Hampshire has a series of online videos of court hearings. Stanford scholar Jennifer Eberhardt's research on race and crime is available here. The Implicit Association Test can be taken online. See my related posts, here and here, or browse through my "race" or "juries" topics, for more information and links.

Two major competency cases in court

Self-representation and execution at issue

• Should a higher level of competency be required for being one's own lawyer than for standing trial with a real lawyer?

• How competent must someone be in order for the state to kill him?

Those two issues were in court yesterday in separate but somewhat related cases, one before the U.S. Supreme Court and the other in a widely awaited Texas appellate court ruling.

Competency to represent oneself

Although it was eclipsed by the OJ trial happening at the same time in Los Angeles, some readers may recall the farcical spectacle of Colin Ferguson's trial. Ferguson was the delusional man who opened fire on the Long Island Railroad, killing six people and wounding 19 more. After firing his prominent attorneys, he represented himself and presented a bizarre, delusionally based defense. He was found guilty, naturally, and received six consecutive life terms.

The Ferguson spectacle was enabled by the high court's 1993 opinion in Godinez v. Moran. Tom Moran was a severely depressed, suicidal defendant who waived the right to an attorney in a double murder case, pled guilty without presenting any evidence, and was promptly sentenced to die. The Supreme Court held that the same low standard of competency exists for all criminal proceedings.

Proponents of allowing mentally ill defendants to represent themselves despite questionable understanding and judgment cite the Sixth Amendment's right to self-representation. Legal scholar Michael Perlin, who just published an excellent book on competency, calls this argument a "pretextual" rationalization.

The competing positions were at the forefront of oral arguments before the U.S. Supreme Court yesterday in the case of Indiana v. Edwards. The case involves Ahmad Edwards, a schizophrenic man whom a trial judge ruled was competent to stand trial for a robbery-shooting but incompetent to represent himself.

The state of Indiana argued before the high court yesterday that allowing states to set their own, higher standards for self-representation ensures both fairness for accused individuals and the dignity of the courts.

Edwards' attorney countered that "the expressed premise of the Sixth Amendment and of our adversarial system generally is that the defense belongs to the accused and not to the state."

The high court justices were divided along predictable lines. Justice Stephen Breyer and Anthony Kennedy seemed concerned about people ending up in prison because they were too disturbed to represent their best interests at trial. But Justice Antonin Scalia said that's just too bad for them – if a defendant makes a poor choice, it is "his own fault."

A ruling is expected within the next few months.

Competency to be executed

The legal standard is much lower for competency to be executed. If you've got a basic understanding that you committed a crime and the state is going to kill you for it, you're good to go (to the Pearly Gates, that is).

That's the "Ford standard" set in the 1986 case of Ford vs. Wainwright, in which the Supreme Court ruled that executing a person who is severely mentally ill constitutes cruel and unusual punishment.

Last year, the highly polarized Supreme Court declined to clarify the somewhat vague Ford standard, issuing a 5-4 opinion on narrow procedural grounds in the closely watched Panetti v. Quarterman case (see my previous blog posts here and here; the opinion is here).

Yesterday, a Texas court responded by affirming convicted killer Scott Panetti's competence to die. Indeed, said the U.S. District Court for the Western District of Texas, "if any mentally ill person is competent to be executed for his crimes, this record establishes it is Scott Panetti."

Panetti, who killed his estranged wife's parents, was found competent to stand trial after two jury trials on that issue. Unlike Ahmad Ewards, he was allowed to represent himself at his 1995 murder trial despite being floridly psychotic and delusional - and he's been regretting it ever since. During his trial, he rambled insanely and tried to subpoena Jesus Christ, John F. Kennedy, and other dead people.

"The record of Panetti's competency hearings and trial is not pretty," the appellate court conceded. "For better or worse, however, the issues of Panetti's competence to stand trial and his insanity defense have been tried, appealed, reviewed in state and federal habeas proceedings, and conclusively put to rest. Panetti is not permitted to relitigate these arguments in his proceedings under Ford."

The court’s 62-page opinion is interesting reading. It reviews the facts of the case, the exhaustive history of appeals, and the expert witness testimony of numerous well-regarded forensic experts called by both sides. The case even involved expert testimony by a forensic psychiatrist and neurologist, Dr. Priscilla Ray, on the science behind competency opinions, that is, "the extent to which psychiatric science can assist the Court in assessing competence to be executed, particularly with regard to the concept of rational understanding."

In discussing Panetti's "rational understanding" of his situation, the court also contemplated evidence suggesting that Panetti was exaggerating his schizophrenic disorder to avoid the needle. Yesterday's opinion cited the results of widely used tests of malingering, including the Structured Inventory of Reported Symptoms (SIRS) and Green's Word Memory Test (WMT).

At the end of the day, after reviewing all of the evidence, the Court held:

"Panetti is seriously mentally ill…. While the extent to which Panetti has been manipulating or exaggerating his symptoms is unclear, it is not seriously disputable that Panetti suffers from paranoid delusions of some type… However, it is equally apparent … that [his] delusions do not prevent him from having both a factual and rational understanding that he committed [the] murders, was tried and convicted, and is sentenced to die for them…. Panetti was mentally ill when he committed his crime and continues to be mentally ill today. However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two."

The ruling can be found HERE. National Public Radio has coverage and commentary here. A 28-minute video, "Executing the Insane: The Case of Scott Panetti," is available here. An essay by Yale scholar Steven Erickson entitled "Minding Moral Responsibility," which discusses the Panetti case, is available here. The Indianapolis Star has more coverage of Indiana v. Edwards.

Hat tip: Steven Erickson

Presidential hopefuls' criminal justice stances

Despite growing public awareness of the drastic costs of current policies, criminal justice issues have received little attention in the U.S. presidential debates. To rectify this, the nonpartisan Sentencing Project has prepared a handy 11-page pdf guide that provides the positions of frontrunners McCain, Obama and Clinton on nine key criminal justice issues, including sentencing policy, prisoner reentry, the death penalty, and felony disenfranchisement. The guide is available here.

Houston's embattled DA finally steps down

Allegations of racism in prosecutions

If Houston was a state, it would rank second only to the rest of Texas in the number of executions carried out in the past three decades. And behind this unprecedented juggernaut stands one man - Harris County District Attorney Chuck Rosenthal.

Rosenthal resigned from office Friday amid a high-profile scandal involving the release of dozens of pornographic, racist and political e-mails on his office computer.

Of potential interest to my readers, the scandal almost coincidentally brought out allegations of racism in the prosecution of crimes: Black potential jurors were allegedly struck because they were perceived as soft on crime; code names for blacks were bandied about in e-mails, and black leaders believed that prosecutors worked to punish blacks more harshly than whites.

The Houston Chronicle has the complete story, along with a timeline of events and links to other coverage. For more on capital punishment, including in Harris County, check out the amazing set of links at the prosecutor’s office of Clark County, Illinois.

Killing time: Dead men waiting on Oregon's death row

Today's Willamette Week of Portland, Oregon has a hard-hitting expose of capital punishment in that northwestern mecca, complete with an interactive display of the 35 men on death row. Here are excerpts; the complete story is here.

. . . Whether you’re for or against capital punishment, you should be outraged by what's happening. To please the tough-on-crime crowd, we keep the death penalty. But to appease progressives, or to assuage our own conscience, nobody actually gets killed. . . .

Yet for the most part, this shameful situation stays hidden. Death row is tucked away on the third floor of a building deep inside the Oregon State Penitentiary. The rarely used execution chamber is behind locked doors in the same prison. And no executions means no front-page headlines.

"A lot of people aren’t even aware that we have a death penalty here," says Rachel Hardesty, a Portland State University criminal justice professor who has spent a decade studying capital punishment in Oregon. . . .

Nationwide, experts say capital cases are 20 times more expensive to prosecute because of the length of appeals. Oregon officials don't make guesses about how much it will cost here, because after 24 years of letting juries sentence killers to death, not a single case has yet gone all the way through the appeals system.

But Bill Long, a Willamette University law professor and death penalty opponent who wrote the only book on capital punishment in Oregon, has estimated Oregon's oldest cases could end up costing more than $10 million per defendant (the national average for capital cases is around $3 million). . . . Added up for all 35 capital-punishment cases, that totals $35.7 million in public-safety money. . . .

Meanwhile, there are about 50 more defendants currently charged with death penalty crimes in Oregon, which will suck more than $50 million more out of the state budget if the defendants are sentenced to death. Despite the expense, they may never see execution. Nationwide, only 12 percent of people who are sentenced to death are actually executed.

That leaves even death penalty proponents questioning whether the cost is worth it.

Hat tip: Sentencing Law & Policy

Daryl Atkins, Lindsey Lohan, and the Cuckoo's Nest

This week has seen lots of interesting forensic news. A few highlights, with links:

Daryl Atkins' sentence commuted

On Thursday, more than five years after Daryl Atkins made legal history with a U.S. Supreme Court ban on executions of the mentally retarded, a judge commuted his death sentence to life in prison.

The reprieve came for reasons that few would have guessed during the ever twisting, nearly 12-year course of the case, which had focused largely on Atkins's mental limitations. Instead, it resulted from an allegation that prosecutors suppressed evidence prior to Atkins's murder trial in 1998.

The Washington Post has the story.

Cuckoo’s Nest still crazy

Most people know Oregon State Hospital only for the movie that it was based on, 1975's award-winning "One Flew Over the Cuckoo’s Nest."

Well, it looks like Nurse Ratched never retired. A U.S. Justice Department report issued Wednesday cites numerous horror stories, including patient-on-patient assaults, outbreaks of infectious diseases, and a patient being held in seclusion without treatment for a year.

State officials said things have improved since the 2006 investigation, and that conditions at the crumbling, century-old psychiatric hospital are a symptom of years of neglect and underfunding of the entire public mental health system.

The Oregonian has the story. Also online are the federal report and a Pulitzer prize-winning series from the Oregonian, "Oregon’s Forgotten Hospital."

Better news from the other side of the country -
No more "hole" for mentally ill prisoners

On Tuesday, New York's legislature approved a landmark law to remove severely mentally ill prisoners from solitary confinement in prison and place them in secure treatment facilities.

Prisons will also be required to conduct periodic mental health assessments of all prisoners in segregated or special housing units known as SHUs, where they are typically locked up for 23 to 24 hours a day.

New York has had more prisoners in segregated units for disciplinary purposes than any state. Confinement in tiny cells for 23 to 24 hours a day is known to seriously worsen psychiatric illnesses, which are suffered by large numbers of prisoners. (See my online essay on segregation psychosis for more on this topic.)

The governor is expected to sign the law, paving the way for construction of the new residential mental health units.

Newsday and the Poughkeepsie Journal have more.

Online registry for domestic violence?

In another example of the potentially endless expansion of symbolic laws, a California lawmaker has introduced a bill to develop an online database of domestic violence offenders, modeled after the popular sex offender databases.

Although the San Jose Mercury News is reporting this as the first such law proposed in the United States, I blogged last June about a similar effort in Pennsylvania.

Whatever state gets to it first, it's just another misguided, tough-on-crime attempt to get votes, in my opinion. Why?

First, it is costly and likely to divert funds from existing domestic violence programs that are already facing cutbacks. (This week's Boston Globe, for example, reports that women are waiting weeks for scarce beds in battered women's shelters, forcing them to return to their abusers and face greater danger.)

Second, as mentioned by a spokeswoman for the California Partnership to End Domestic Violence, a victims' advocacy group, women who have been wrongfully convicted of assaulting their abusers will likely find their names on the registry, creating further victimization.

Third, and most important in my opinion, is that these registries do more harm than good. They don't stop crime. All they do is stigmatize. The more they expand, the harder it is for people to get jobs, find housing, and be rehabilitated. And the number of candidate pools is endless: Drug offenders. Drunk drivers. Terrorists. Antiwar protesters. Traffic light violators.

The Mercury News has the story.

But what about Lindsey Lohan?

Oh yes, since I've been doing the celebrity blog thing lately, reporting on the Britney Spears-Phillip McGraw controversy, I must not neglect the innovative sentence handed down on Thursday to Ms. Lohan.

The L.A. courts have a program to show drivers the real-life consequences of drinking and driving. So as part of her sentence for misdemeanor drunk driving the 21-year-old actress must work at a morgue and a hospital emergency room for a couple of days each. I think it's a great idea. And maybe it will give her fodder for new acting roles. I'm rooting for her to get past all of this mess and get on with her promising career.

The Associated Press has the story.

Historic hearings to commence on Calif. death penalty

Amid renewed national controversy over capital punishment, the California Commission on the Fair Administration of Justice is holding public hearings beginning tomorrow on the death penalty in California. At the first hearing, a lineup of luminaries will present evidence about racial, ethnic, and geographic disparities in who is sentenced to die.

The Commission was created by the state Senate in 2004 to investigate the causes of wrongful conviction and wrongful executions, and to recommend reforms to make California's criminal justice system "just, fair, and accurate." Composed of law enforcement, prosecutors, defense attorneys, judges, and citizens, the Commission has already issued a series of unanimous recommendations on other criminal justice issues, including:

• Eyewitness Identification
• False Confessions
• Use of Jailhouse Informants
• Scientific Evidence
• Professional Responsibility and Accountability of Prosecutors and Defense Lawyers
• Remedies for Wrongful Conviction
• Fair Administration of the Death Penalty

(Click on any of the above links to see the related report.) A press release about the death penalty hearings, slated for January, February and March, is here.

The death machine: "One thoroughly screwed-up system"

Just in time for next Monday's U.S. Supreme Court hearing on a challenge to the three-drug cocktail used in most U.S. executions, Time magazine has issued a scathing denunciation of the state of capital punishment in the United States. This follows negative publicity in Newsweek magazine a couple of months ago (see my blog post of Nov. 25, 2007). Perhaps wind is on my mind due to the incredible windstorm we're having here in the San Francisco Bay Area today, but I'm sensing winds of change in the air.

Here are some tantalizing excerpts from the no-holds-barred Time piece:

In a perfect world, perhaps, the government wouldn't wait 30 years and several hundred executions to determine whether an execution method makes sense....

Any other government program that delivered 3% of what it promised -- while costing millions of dollars more than the alternative -- would be a scandal, but the death penalty is different. In its ambiguity, complexity and excess, the system expresses a lot about who we are as a nation....

Our death penalty's continued existence, countering the trend of the rest of the developed world, expresses our revulsion to violent crime and our belief in personal accountability. The endless and expensive appeals reflect our scrupulous belief in consistency and individual justice….

We add safeguards one day, then shortcut them the next. One government budget contains millions of dollars for prosecutions, while another department spends more millions to defend against them. Indeed, the very essence of ambiguity is our vain search for a bloodless, odorless, motionless, painless, foolproof mode of killing healthy people….

We now have a situation in which a majority of the states that authorize the death penalty seldom if ever use it. Last year only 10 states carried out an execution. And even that number overstates the vigor of the system. If you don't count executions of inmates who voluntarily dropped their appeals and asked to be killed -- essentially government-assisted suicides -- the state count falls to eight….

The ungainly, ambivalent collapse of the death penalty seems unfitting for a punishment whose very existence is largely symbolic. But the trend is unmistakable.

The Supreme Court is part of this slow-motion shutdown of the death-penalty machine. In recent years the court has banned executions of mentally retarded inmates and of prisoners who committed their crimes as minors. The mere fact that the court is hearing the lethal-injection cases is historic because the institution has always been reluctant to inquire into the business end of the death penalty….

The discussion itself is another sign of the nation's ambivalence about the ultimate, irreversible punishment. And as long as we're ambivalent, we'll continue to have the system we have made for ourselves--inefficient, beyond repair and increasingly empty.

Hat tip to Sentencing Law & Policy for alerting me to this article.

News roundup

Scot freed after 20 years

This story hasn't been getting much press in the United States, but it's been a topic of interest in Europe. Kenneth Richey of Scotland has spent 20 years on death row in Ohio, exhausting round after round of appeals for a crime he insists he didn't do. Finally, a plea bargain has been reached in which he will plead no contest to involuntary manslaughter and be home in time for Christmas.

Europeans had been outraged at the conditions of Richey's confinement, which are ho-hum here in the prison nation. Said one Scottish official who visited Richey:

"The reality of somebody who is kept locked up in a cell for 23 hours a day for 19 years is quite mind-blowing. It is a dreadful, inhumane and dehumanising system. If one man is off it, then remember there are hundreds [sic!] of people in America still enduring that dreadful situation."

The London Times has more.

Children electroshocked (roll over, Stanley Milgram)

A prankster has outdone experimental researcher Stanley Milgram by a long shot, telephoning a school for the severely disturbed and easily convincing school officials to shock pupils up to 77 times each!

The prank is highlighting the fact that the Massachusetts school, Judge Rotenberg Educational Center, routinely administers electroshock as punishment. The school is the only one in the United States that does so; the device's inhumanity is concealed by the clinical-sounding name of graduated electronic decelerator.

ABC News has the story here.

Top criminologists take public policy stances

In a special "gala" issue of Criminology & Public Policy, 27 of the most influential criminologists alive take policy policy stances on issues ranging from juvenile curfews and the death penalty to sex offender residency restrictions and police gang units. The goal of each invited essay was to suggest that enough empirical evidence exists on the topic to support one specific recommendation, and to provide a summary of that evidence. Unfortunately, the essays are not available online, but I'm sure that if you are interested in a topic you can Google the author and obtain a reprint.

The recommendations include:

IMPOSE AN IMMEDIATE MORATORIUM ON EXECUTIONS
JAMES R. ACKER

ABOLISH JUVENILE CURFEWS
KENNETH ADAMS

ABOLISH LIFETIME BANS FOR EX-FELONS
SHAWN D. BUSHWAY & GARY SWEETEN

ABANDON FELON DISENFRANCHISEMENT POLICIES
ROBERT D. CRUTCHFIELD

MAKE REHABILITATION CORRECTIONS' GUIDING PARADIGM
FRANCIS T. CULLEN

EXPAND THE USE OF POLICE GANG UNITS
SCOTT H. DECKER

END NATURAL LIFE SENTENCES FOR JUVENILES
JEFFREY FAGAN

MAKE POLICE OVERSIGHT INDEPENDENT AND TRANSPARENT
JACK R. GREENE

BAN THE BOX TO PROMOTE EX-OFFENDER EMPLOYMENT
JESSICA S. HENRY, JAMES B. JACOBS

TARGET JUVENILE NEEDS TO REDUCE DELINQUENCY
PETER R. JONES, BRIAN R. WYANT

COLLECT AND RELEASE DATA ON COERCIVE POLICE ACTIONS
ROBERT J. KANE

MANDATE THE ELECTRONIC RECORDING OF POLICE INTERROGATIONS
RICHARD A. LEO, KIMBERLY D. RICHMAN

IMPLEMENT AND USE COURT PERFORMANCE MEASURES
BRIAN J. OSTROM, ROGER A. HANSON

JUST SAY NO TO D.A.R.E.
DENNIS P. ROSENBAUM
(One of my personal favoritess; it's high time to abolish harmful "Just Say No" messages targeting children.)

TRANSFER THE UNIFORM CRIME REPORTING PROGRAM FROM THE FBI TO THE BUREAU OF JUSTICE STATISTICS
RICHARD ROSENFELD

USE PROBATION TO PREVENT MURDER
LAWRENCE W. SHERMAN
(This is a provocative essay on forecasting homicide.)

REVISE POLICIES MANDATING OFFENDER DNA COLLECTION
RALPH B. TAYLOR, JOHN S. GOLDKAMP, DORIS WEILAND, CLAIRISSA BREEN, R. MARIE GARCIA, LAWRENCE A. PRESLEY, BRIAN R. WYANT

ELIMINATE RESIDENCY RESTRICTIONS FOR SEX OFFENDERS
JEFFERY T. WALKER

PROTECT INDIVIDUAL PUNISHMENT DECISIONS FROM MANDATORY PENALTIES
FRANKLIN E. ZIMRING

Death penalty: Theory vs. practice

Newsweek magazine has an interesting summary of the state of capital punishment in the United States today. The remarkable disconnect between theory and practice seems like another example of today's cultural schizophrenia. Consider these two competing facts:

• Popular support for capital punishment remains fairly strong, at about 65%.

• Front-line decision makers - judges, juries, and even prosecutors - are less and less willing to impose the ultimate punishment.

The reasons for this disconnect? The Newsweek writers pose a few possibilities, including highly publicized cases of wrongful conviction, increased attention to "mitigating circumstances" (such as child abuse) by the defense, and the skyrocketing legal costs of prosecuting death cases.

A new breed of prosecutor is another factor. As an example, Newsweek gives us Craig Watkins, the District Attorney of Dallas, Texas, the hang-'em-high state. Watkins is African American, a Democrat, and a former defense attorney. "In the near future, we will see the death penalty rarely," Watkins said. An even starker example not mentioned in the Newsweek article is Kamala Harris, the District Attorney of San Francisco, who has taken a public position against the death penalty.

For these and possibly other reasons, "what is acceptable in theory seems less and less tolerable in practice," the Newsweek authors comment. The article, entitled "Injection of Reflection," is online here.

Although it isn't mentioned in the Newsweek article, an intense debate is currently underway about whether capital punishment deters crime. The issue has resurfaced thanks to a series of research studies by economists, suggesting that the death penalty may deter crime. Other scholars, most of them non-economists, are highly critical of the studies. Adam Liptak of the New York Times summarized the competing positions in a Nov. 18 article.

ABA calls for death penalty moratorium

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

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

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

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

The full report is available online through CNN.

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

Hot off the press: Mental health and criminal justice

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

Mental Health and Criminal Justice: An Overview

By Andrew E. Taslitz

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

By Christopher Slobogin

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

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

By Gerald E. Nora

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

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

By Matthew J. D'Emic

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

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

By Michael Mello

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

Mental Health Status and Vulnerability to Police Interrogation Tactics

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

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

Speeding up death

How is the Bush administration responding to the Innocence Project's announcement that the number of prisoners exonerated through DNA evidence alone has now exceeded 200?

With a plan to speed up - rather than slow down - the execution process.

The plan, authorized by the USA Patriot Act, will halve the time for prisoners to file post-conviction appeals in federal court from one year to six months. Judges will then have only 120 days to decide a case.

The one catch, under the regulations as currently being rewritten by the Justice Department, is that cases can only be fast-tracked from states that provide competent legal representation to indigent defendants. And who will decide that? Attorney General Alberto Gonzales, hardly an impartial observer.

The plan to speed the death machinery comes a decade after federal reforms that considerably limited federal appeals, resulting in far fewer convictions being overturned. According to a new study by law professors Eric Freedman and David Dow, the percentage of successful appeals has dropped from 40% to 12%, and is continuing to fall.

"The notion that the federal government wants to accelerate executions in the face of known mistakes, and wants to do so just as DNA is becoming available in more and more cases, is mind-boggling," one of the study's authors is quoted in the New York Times as saying. "It will increase the risk that some state executes a person we later find to be innocent."

Legal columnist Adam Liptak's take on the issue, "Greasing the Wheels on the Machinery of Death," is available online to paid subscribers of the New York Times. (I had heard that the Times was changing this policy of requiring payment to read its editorial columns, but apparently that has not yet happened.)

Hat tip to Gretchen White for alerting me to this column.

The photo, of "Old Sparky" at Sing Sing Prison, is in the public domain.

Guest Editorial: The Presence of Malice

Richard Moran
Professor of Sociology and Criminology, Mount Holyoke College

New York Times op-ed, August 2, 2007, reprinted with the written permission of Richard Moran and the New York Times

LAST week, Judge Nancy Gertner of the Federal District Court in Boston awarded more than $100 million to four men whom the F.B.I. framed for the 1965 murder of Edward Deegan, a local gangster. It was compensation for the 30 years the men spent behind bars while agents withheld evidence that would have cleared them and put the real killer — a valuable F.B.I. informant, by the name of Vincent Flemmi — in prison.

Most coverage of the story described it as a bizarre exception in the history of law enforcement. Unfortunately, this kind of behavior by those whose sworn duty it is to uphold the law is all too common. In state courts, where most death sentences are handed down, it occurs regularly.

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.

Mistakes are good-faith errors — like taking the wrong exit off the highway, or dialing the wrong telephone number. There is no malice behind them. However, when officers of the court conspire to convict a defendant of first-degree murder and send him to death row, they are doing much more than making an innocent mistake or error. They are breaking the law.

Perhaps this explains why, even when a manifestly innocent man is about to be executed, a prosecutor can be dead set against reopening an old case. Since so many wrongful convictions result from official malicious behavior, prosecutors, policemen, witnesses or even jurors and judges could themselves face jail time for breaking the law in obtaining an unlawful conviction.

Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

In the interest of fairness, it is important to note that those who are exonerated are not necessarily innocent of the crimes that sent them to death row. They have simply had their death sentences set aside because of errors that led to convictions, usually involving the intentional violation of their constitutional right to a fair and impartial trial. Very seldom does the court go the next step and actually declare them innocent.

In addition, some of these unlawful convictions resulted from criminal justice officials trying to do the right thing. (A police officer, say, plants evidence on a defendant he is convinced is guilty, fearing that the defendant will escape punishment otherwise.) In cases like these, officers or prosecutors have been known to “frame a guilty man.”

The malicious or even well-intentioned manipulation of murder cases by prosecutors and the police underscores why it’s important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is “conclusive scientific evidence” of guilt, as Mitt Romney, the presidential candidate and former governor of Massachusetts has proposed, we will still not eliminate the problem of wrongful convictions. The best trained and most honest forensic scientists can only examine the evidence presented to them; they cannot be expected to determine if that evidence has been planted, switched or withheld from the defense.

The cause of malicious unlawful convictions doesn’t rest solely in the imperfect workings of our criminal justice system — if it did we might be able to remedy most of it. A crucial part of the problem rests in the hearts and souls of those whose job it is to uphold the law. That’s why even the most careful strictures on death penalty cases could fail to prevent the execution of innocent people — and why we would do well to be more vigilant and specific in articulating the causes for overturning an unlawful conviction.

Execution Slated Despite Recanted Testimonies

From National Public Radio's "All Things Considered":

"Troy Davis is scheduled to be executed by the state of Georgia later this month, despite the fact that most of the witnesses have recanted their testimony and implicated another man — new evidence that has never been heard. Davis is a black man convicted of killing a white police officer. There was no physical evidence in the case."

Listen to the show.

See the State of Georgia's press release and Amnesty International coverage of the case.

UPDATE: On July 15, after a national outcry over the case, Davis received a 90-day stay of execution. Former Congressman and U.S. Attorney Bob Barr's editorial on the case appeared in the Aug. 9 Atlanta Journal-Constitution and also on his web site, the Barr Report.

Supreme Court Blocks Execution of Psychotic Man

In a widely awaited ruling, the U.S. Supreme Court ruled 5-4 today that Texas cannot execute schizophrenic killer Scott Panetti.

The highly polarized court sidestepped the controversial issue of the Constitutionality of executing the mentally ill. Rather, the decision barred Panetti's execution because he was not allowed to submit evidence of his psychiatric disorder at the state court level.

Panetti, who killed his estranged wife’s parents, was found competent to stand trial after two jury trials on that issue. He represented himself at his 1995 murder trial. He was floridly psychotic and delusional, rambling insanely and attempting to subpoena Jesus Christ, John F. Kennedy, and other dead people.

In the 1986 case of Ford vs. Wainwright, the Supreme Court held that executing a person who is severely mentally ill constitutes cruel and unusual punishment, banned by the Eighth Amendment. However, the "Ford standard" is vague as to the required severity of the mental condition, and people on all sides of the issue had been hoping for clarification from the high court.

The Court's opinion and a dissenting opinion are available online.

More background on the Ford standard and on Panetti's case is available on my blog entry of April 20, “Too Sick to Die?”

A 28-minute video, "Executing the Insane: The Case of Scott Panetti," is available at: http://blip.tv/file/282532.