Top forensic psych’s shameful secrets: A cautionary tale

An investigative report on the secret life of a prominent forensic psychologist is generating controversy on professional listservs. Some want to let sleeping dogs lie. Others, including this blogger, believe the sordid tale contains valuable lessons for the field.

Photo credit: Seattle Times

Stuart "Stu" Greenberg was at the pinnacle of a highly successful career when he committed suicide in 2007 after being caught using a secret camera to spy on women – including fellow psychologists -- in his office bathroom.

Greenberg was a respected leader in forensic psychology. Former president of the American Board of Forensic Psychology, he had functioned as a professional gatekeeper in heading the committee that wrote a national certification exam for the field. He was a sought-after speaker who published articles on ethics in peer-reviewed journals. In court, his opinion could decide the fate of a parent seeking custody of her child. Charging $450 an hour, he had amassed an estimated $1.7 million in personal worth and owned at least two houses and a boat.

But in last weekend's Seattle Times, investigative reporters Ken Armstrong and Maureen O'Hagan reveal new details of Greenberg's less savory side. They go so far as to paint the Seattle psychologist as a "toxic force -- a poison coursing through the state's court system," who destroyed lives while building a career based on "hypocrisy and lies."

Previously sealed records dug up by the newspaper -- including a 1990 disciplinary case -- attest to Greenberg's power and "cunning," the reporters write:

His word could determine which parent received custody of a child, or whether a jury believed a claim of sexual assault, or what damages might be awarded for emotional distress…. [The records] show how he played the courts for a fool. He played state regulators for a fool. He played his fellow psychologists for a fool. And were it not for a hidden camera, he might have gotten away with it.

The report describes how Greenberg coerced Washington state's Examining Board of Psychology into sealing public records of a 1990 disciplinary action against him. The case involved alleged misconduct in four separate child custody cases. The Board imposed a three-year ban on his conducting such evaluations. But "within a year of getting his disciplinary history sealed, Greenberg was giving seminars to other psychologists on the ethics of parenting evaluations," the report says.

As an example of the destruction wrought by Greenberg, the reporters interviewed the complainant in one of the four cases. Surgical nurse Cathy Graden said she had no fears of losing custody of her 4-year-old son after her divorce. What she didn't know was that Greenberg and the lawyer for her ex-husband were limited business partners in a speculative investment venture:

The report Greenberg filed in court eviscerated Graden. It said she posed a grave danger to her son; that she was "probably" sexually abusing him; that she was psychologically unstable and possibly paranoid….In court, testifying, Greenberg described Graden as "quasi-psychotic," but said the diagnosis was tricky, because Graden might appear "quite normal." She would likely deny doing anything wrong to her son, Greenberg said, or alternatively, she "might genuinely not remember."

By the time Greenberg finished, Graden, out in the hallway, had been stripped of all defenses -- and without a clue to what had just happened. If she appeared normal -- well, Greenberg said she would. If she denied hurting her son -- that was part of her disorder. If she challenged Greenberg's work or motives -- she was paranoid. At the end of the hearing … the judge ordered the boy turned immediately over to his father, with Graden allowed to visit only if supervised by a therapist.

Graden finally got her son back when he was nine years old, but only because his father was killed in a work accident.

"Inscrutable field with immense power"

The Seattle Times piece is slanted. It castigates the entire field for the alleged criminal and unethical conduct of one individual. As we all know, there are honorable and dishonorable people in all professions. In my locale, the FBI is investigating a group of rogue police who allegedly sold drugs, ran a brothel and took money from a lawyer to make staged arrests of fathers in child custody cases. Yet the media do not paint all law enforcement with that same dirty brush. And some of the supposed misdeeds for which the reporters lambast Greenberg, such as lacking the clairvoyance to know that a priest he evaluated was lying about the extent of his sexual misconduct, are hardly evidence of turpitude. Nowhere is a spokesperson for our field given space to clarify or comment about the implications.

But in calling forensic psychology "an inscrutable field with immense power," the reporters tap into a popular conception with a kernel of truth.

Power is a corrupting force. Just as Greenberg wielded immense power over the fates of parents and children, forensic psychologists today abuse their power and destroy lives when they invent diagnoses to further pretextual goals, present personal opinion and prejudice masked as science, or testify that they know with mathematical certainty that a person will commit a future crime. Such misconduct is common in certain forensic contexts. In fact, its routine nature presents an obstacle to intervention. I know of one colleague whose attempts to complain about psychologists' improper opinions in court were rebuffed by a licensing board on the grounds that the opinions -- while improper -- were not sufficiently unusual.

Greenberg's tale may thus serve as a cautionary one about why the field should not collectively look away when we see colleagues abusing their power. Individually or as a group, it is our ethical duty to intervene when we see colleagues misbehaving -- stepping beyond the bounds of science, engaging in activities that seem biased, or (as in Greenberg's case) mistreating women or others with less social currency. Perhaps if Greenberg's superficial aplomb had not blinded colleagues to his faults, he could have been redeemed and this public tragedy averted.

Professional condemnation of Greenberg's misconduct serves other purposes. It demonstrates respect for the members of the public who were negatively affected, as well as for our own women colleagues who allegedly suffered sexual exploitation and betrayal by a colleague whom they trusted. It may encourage exploration in our professional literature about the existence of corruption, which always creeps into situations involving power and authority, and how this problem might be addressed.

It may also be useful for each of us to reflect personally on the lessons here. Many of us work largely alone. Without professional accountability, it is easy to go astray. The stakes are high, the material troubling, the settings adversarial. In these difficult circumstances, it is incumbent upon all of us to behave honorably and ethically, to avoid even the appearance of bias, to be transparent in explaining the basis of our often-consequential opinions, and to admit the limits of our knowledge.

In other words, to recognize the inherent power imbalances, and to strive for humility and honesty.

A collection of primary documents and news reports on Greenberg's case can be found at The Liz Library. Also at that site are direct quotes from psychologists' (supposedly) internal debates on the case as culled from two professional listservs. (Note that the presentation is biased and misleading; by publishing mainly one side of a vigorous debate, they misrepresent psychologists as overwhelmingly opposed to public airing of this troubling case. But it's still worth checking out.)

The curious story of 'a reasonable degree of professional certainty'

I recently had a strange experience: An opposing attorney made a motion to exclude my report in a legal case, because I had not written that I held my expressed opinions "to a reasonable degree of psychological certainty." The attorney who had retained me was forced to scramble to obtain a written declaration from me, stating that I did indeed hold my opinions to this level of certitude. I typically do not include this magic phrase in reports, finding it rather obtuse and, frankly, pompous-sounding. So, when my colleague Dr. Worthen expressed knowledge about the phrase, I prevailed upon him to write this guest post. 

Guest post by Mark D. Worthen, Psy.D.*

Expert witnesses who testify based on their medical, psychological, or other scientific training and expertise, are often asked to express their opinions "to a reasonable degree of medical (or psychological or scientific) certainty." But what does this phrase mean and why is it used in legal proceedings?

Before exploring what the phrase means, let's first examine why the phrase is used in courts of law. As it turns out, the "reasonable degree of medical certainty" phrase developed almost by accident and has no clear rationale for its almost universal use. After conducting exhaustive research, law professor Jeff L. Lewin traces the origins of the phrase to Chicago, Illinois sometime between 1915 and 1930 [1]. Professor Lewin notes:

While the phrase was generated by the efforts of Illinois attorneys to comply with legal doctrine, litigators in other states adopted this curious phrase through unreflective imitation of models provided in a best-selling manual on trial technique. The phrase was then incorporated into legal doctrine through the judiciary's uncritical acceptance of this attorney usage. The judicial response to the phrase thus exemplifies the generation of legal rules by chance instead of by deliberate judicial choice.

In addition to lacking a clear rationale for its usage, the "reasonable degree of medical certainty" phrase also lacks a consistent definition.

Many professionals who use the phrase in their testimony have their own understandings of the phrase's meaning. For example, some assume that the phrase means that there is a preponderance of the evidence in support of their opinion, or that their opinion is "more likely than not" to be correct. Other professionals require more evidence: They assume that the phrase means that they possess "clear and convincing" evidence for their opinion or even that their opinion is accurate "beyond a reasonable doubt." On the other hand, most testifying experts probably do not have a pre-determined definition for the phrase and utter it simply because they know it is expected.

Although the phrase is not routinely used in the practice of medicine, psychology, or other scientific disciplines (have you ever seen a journal article that concluded, "To a reasonable degree of psychological certainty" we found that X caused Y?), textbooks written to provide guidance to professionals who testify in legal proceedings have offered various definitions. For example, the authors of Effective Medical Testifying: A Handbook for Physicians assert that the phrase means "more likely than not", i.e., 51% probability or more.

Black's Law Dictionary defines the phrase similarly: “A standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought.”

However, courts have not always agreed with this definition. For example, the Superior Court of Pennsylvania in Griffen v. University of Pittsburgh ruled that a doctor who indicated that there was a 51% chance that a certain action caused an injury did not provide a sufficient basis for testifying to a reasonable degree of medical certainty. In declaring that 51% certainty was not certainty for the purposes of the law, the Court did not indicate what percentage of certainty is required.

In other cases, it seems that the courts don't care how confident an expert may be about his or her opinion. What matters is that they use the "magic phrase" during their testimony. For example, in a Missouri case:

... a medical doctor testified that he was ninety percent certain as to the causality of a condition. See Bertram v. Wunning, 385 S.W.2d 803, 807 (Mo. Ct. App. 1965), appeal after remand, 417 S.W.2d 120 (Mo. Ct. App. 1967). However, despite giving this high probability, he later retreated when asked to testify as to causation of the condition with “reasonable medical certainty.” In the end, notwithstanding the strong and “practically certain” testimony of the doctor, the Missouri court found the testimony to be insufficient because it lacked the “reasonable certainty” stamp of approval. [2]

Frustration with the inexactness of the phrase has led some to call for a clear-cut, agreed-upon definition.

The American Law Institute (ALI) declared, in its Restatement (Third) of Torts: Liability for Physical and Emotional Harm (§ 28, Comment e, 2010), that the phrase should be specifically defined to mean that an expert's opinion is "more likely than not" accurate. The ALI reasoned that the standard for "reasonable degree of medical certainty" should not exceed the standard of proof considered by juries in tort cases, i.e., a preponderance of the evidence.

Attorneys James M. Beck and Mark Herrmann argue that the ALI standard "dumbs down" expert witness testimony and that the reasons for the proposed changes are faulty in many respects. They argue that the use of "reasonable medical certainty" should be retained and that its meaning should come from the standards for decision-making commonly used in the expert's profession.

Attorney Nathan Schachtman also argues for continued use of the phrase:

Surely, however, the phrase is not semantically empty. “Certainty” has clear epistemic connotations and implications for the witness’s opinion, both in terms of his own state of mind, and in terms of the empirical support the witness has for his opinion in the form of reasonably relied upon data, and sound inferences to a reliable conclusion. Subjectively, the witness who utters the phrase acknowledges that he is not speculating and that he believes that his opinion satisfies professional standards for claims of knowledge. A witness who qualifies his opinion with these “magic words” communicates his willingness to put his professional reputation on the line, and to defend the opinion before his peers. Objectively, the phrase conveys the notion of reliable knowledge. To be sure, human beings may not enjoy “certainty” in their knowledge of empirical propositions, but the “reasonable” qualifier makes the entire phrase meaningful and important.

While the debate over the definition of the phrase and whether or not it should be used at all will no doubt continue, individual experts might rightly ask, "Well, what should I do if asked to give an opinion to a reasonable degree of professional certainty?"

Here are some suggestions:

1. Ask the attorney you're working with if he or she plans to use the phrase in his or her direct examination of you. If so, ensure that each of you understand what you mean by the phrase, so that you'll be ready in the event that opposing counsel or the court asks you to define what you mean by "reasonable professional certainty." It's unlikely that you will be asked to define the phrase but it's better to be prepared with an answer than to stumble and mumble.

2. Make sure that your definition comports with relevant case law in your jurisdiction. For example, in Pennsyvania, you would not want to say, "It means that it's more likely than not" (see above).

3. In terms of how to define the phrase, consider how your profession determines "reasonable certainty." For example, when do you consider an opinion certain enough to proceed with a given treatment (medicine or psychology) or to proceed with a certain construction plan (architecture or engineering)?

4. If you give a numerical representation of your confidence in your opinion, a savvy attorney might challenge you on your ability to determine your own level of confidence with accuracy, citing research on the overconfidence effect. Your best bet is to be familiar with this research and to err on the side of underestimating your confidence.

5. Better yet, avoid numerical representations of confidence and focus on the evidence for your opinion, rather than your confidence in your opinion. Think about it this way: Are jurors or judges more likely to be persuaded by explanation #1 or #2:

• Explanation #1: " 'Reasonable degree of psychological certainty' means that I am 75% sure of my opinion." 

• Explanation #2: " 'Reasonable degree of psychological certainty' means that I found clear and convincing evidence for my opinion."

6. Focusing on the evidence for your opinion is an important distinction because it redirects the trier of fact to the strenth of your argument, namely, the scientific methods and research evidence for your conclusions.

FOOTNOTES
 

1. The Genesis and Evolution of Legal Uncertainity About "Reasonable Medical Certainty," Maryland Law Review, 57, pp. 380-504, 1998.

2. From "An Enigmatic Degree of Medical Certainty" by Nelson Abbott and Landon Magnusson, Utah Bar Journal, July/August 2008 (Vol. 21 No. 4).

*Guest author Mark D. Worthen, Psy.D. is a clinical and forensic psychologist in Asheville, North Carolina. Visit him on the web at DrWorthen.net.

Steffan's Alerts #4: Supermax, school shooters and Asperger's

Click on a title to read the article abstract; click on a highlighted author's name to request the full article.

Ethics of solitary confinement and supermax prisons

The Journal of Forensic Psychology Practice has published online a new issue focusing on ethics in criminal justice settings. Sharon Shalev offers an analysis of ethics in solitary confinement and supermax prisons and calls for more active participation by health professionals in these settings.

Asperger’s Disorder and the criminal justice system

Criminology and Criminal Justice has published Laura Caulfield and Ann Browning’s review of the literature on the connection between Asperger’s Disorder and criminality as well as the criminal justice system’s understanding of the condition.

Serious assaults on prison staff

In the Journal of Criminal Justice, Mark Cunningham and colleagues examine assaults on prison staff occurring over a 14 month period in a state correctional system. They provide data on prevalence of serious assaults and characteristics of inmate perpetrators and staff victims.

Are school shooters and suicide bombers more alike than different?

Adam Lankford and Nayab Hakim posit that they are, based on their review of school shooters in the United States and suicide bombers in the Middle East. Their article appears in Aggression and Violent Behavior.

Assessing intervention targets in sex offender treatment

Melissa Grady and colleagues review the psychometric properties and validation of measures commonly used in sexual offending treatment programs. The authors offer recommendations on measures to assess core treatment areas in their new article in Aggression and Violent Behavior.

Treatment for child sexual abuse victims and their families

In the same issue of Aggression and Violent Behavior, Poonam Tavkar and David Hanson offer information on effective treatment options for victims of child sexual abuse and their non-offending family members.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist based in Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

Loughner update: Skirmishing over competency

Arguments over who, where, how and what of evaluation   

In federal court this week, the government and defense skirmished over the mechanics of evaluating the competency to stand trial of Jared Loughner, the suspect in January's high-profile shooting rampage in Arizona. This skirmish is likely to be the first of many involving Loughner's psychiatric state, a central issue in the case.

Who should conduct the evaluation?

• Government: Bureau of Prisons staff should conduct the evaluation.

• Defense: Outside mental health experts are more likely to be impartial. 

• Court ruling: Bureau of Prisons will evaluate the defendant.

Where should the evaluation take place?

• Government: Loughner should be evaluated at the federal Bureau of Prisons facility in Springfield, Missouri, a medical referral center with specialized forensic resources. In a memo, the chief of psychiatry for the Bureau of Prisons, Dr. Donald Lewis, said Springfield was the best facility for a competency evaluation, because it "has medical staff available for neurology and other organic testing, and has far more forensic staff and full-time psychiatrists available to provide round-the-clock assistance," according to an AP news brief.

• Defense: Loughner should not be moved from his current federal prison housing in Tucson. He is "seriously ill," and moving him to Missouri could worsen his state and restrict his lawyers’ access, thereby impeding their efforts to gain his trust. The defense has also expressed concern that this move will facilitate prison officials' collecting and releasing private information to prosecutors.

• Court ruling: Loughner will be sent to the federal prison in Springfield. 

How should the evaluation be conducted?

U.S. District Judge Larry Burns ordered that the evaluation will be videotaped and that the videos will be provided to both prosecutors and defense attorneys. It was not clear from news reports whether one side requested the videotaping, or whether the judge introduced this idea on his own.

What should the evaluation address?

One tricky area in assessing the competency of a defendant who may later plead insanity is that an incompetent defendant may make incriminating or otherwise unwise statements about the crime itself. In a competency assessment, evaluators have a duty not to probe into the defendant's mental state at the time of the offense, leaving that inquiry until the defendant is certified as competent and enters a plea of insanity. If a defendant blurts out information about the motivations for the offense, these should not be included in a written report on competency.

Loughner's attorneys expressed concern that with prison staff at the helm, a competency inquiry might expand into a review of Loughner's sanity. The federal court judge ruled that the scope of the exam must be limited to whether the defendant is competent to stand trial, not whether he was sane at the time of the shooting. However, the videotaping of the evaluation may make this difficult to achieve in practice, increasing the risk that information pertaining to Loughner's state of mind at the time of the crime will be prematurely revealed to prosecutors.

Related post:

• Arizona rampage: Analyzing the analyzers

New column: Ethics and captive populations

A recent photo in the Los Angeles Times pictured a psychologist administering therapy to a group of men locked in cages the size of phone booths. An expert advised that the cages should be called "therapeutic modules," lest the prisoners "feel like animals and respond accordingly." The arrangement is the prison's response to a judicial mandate to provide treatment to mentally ill prisoners. But as the photo illustrates, much prison therapy is far removed from traditional treatments that psychologists are trained to provide.

So begins my "Ethics Corner" column in the current issue of California Psychologist magazine, which evolved out of a blog post a few months ago, "Prison therapy: It's all in the name." The full column is HERE. I have also created a stand-alone web page of selected resources on correctional ethics (HERE).

Wearing body armor and sitting just out of urination range, psychologist Daniel Tennenbaum tries to engage Vacaville prisoners to sing along with "Sitting on the Dock of the Bay." Photo credit Los Angeles Times.

A plug for the CPA: For those of you in California, I hope you will think about joining the California Psychological Association if you are not already a member. The CPA gives psychologists a voice, has local associations that facilitate networking (and socializing), and provides a number of member benefits, including the Ethics Committee's free hotline.

Paint brushes and soap: The slippery slope of unfettered power

Courts rebuke detention centers for arbitrary and pretextual practices 

The case of the killer paint brush

When the government filed a petition seeking to civilly commit M.F. for sex crimes he might commit in the future, the elderly artist decided to go quietly. He gave up his right to a trial, in exchange for a legal order that he be allowed to do his art in his remaining years.

But officials at Missouri’s detention center resisted being told how to operate. M.F.’s security level was changed from green (low risk) to red (high risk), and his art supplies were taken away. When he challenged this in court, a government psychologist testified that the art supplies posed a threat to the institution’s security: Another patient could use them to hurt someone, or they might even block an evacuation route in the event of an emergency.

Calling the invocation of security “pretextual,”* a judge ordered the institution to return the paint brushes.

No soap unless we say so

In detention sites across the United States, objects far more innocuous than paint brushes are being wielded as weapons against captive sex offenders who -- like M.F. -- decline to enroll in proffered treatment.

In New Jersey, “A.J.,” a sex offender who declined treatment (insisting he is innocent) was denied basic hygiene items such as toilet paper, soap, shampoo, toothpaste, shaving cream and laundry detergent unless he could pay for them. The items were given free as prizes to sex offenders who enrolled in treatment. After a 3-day hearing, a judge ruled that the jailers were being “arbitrary and capricious”:

“Like food and clothing, personal hygiene items are central and core requirements of civilized existence. The refusal of the department of corrections to provide personal hygiene items to inmates at regular intervals is unreasonable. I also find that in this particular case the department of corrections sometimes observes its own rule and sometimes it doesn’t. So it’s capriciously applied as well.”

Tip of the iceberg

Arbitrary, vindictive, petty and sometimes just plain silly practices like these are not rare. Rather, they are commonplace experiences in the state hospitals where thousands of U.S. sex offenders are detained indefinitely based on future risk, after having finished their prison sentences.

The organizational culture is a setup for petty tyranny to run amok.

Unlike in a real hospital, there is an inherent tension between detainees and staff. Under the civil commitment laws, detention sites are supposed to provide treatment to reduce the sex offenders' future risk. But most of the residents decline to engage in treatment. They are resentful about being detained, and see the generic group therapy as a humiliating sham. For staff, in turn, the impossibility of their task lowers morale and can spawn resentment of offenders.

It is hard not to feel morally superior to the offenders. Many are not sympathetic characters. They have assaulted their way through life, leaving behind a swath of psychic destruction to children and women. Their mistreatment is easy to justify as deserved, or in service to the greater good of public safety.

Add to this incendiary mix the few bad apples in any organizational barrel. Literary trickster Carlos Castaneda called them little petty tyrants, who persecute and inflict misery without causing death. If you have ever worked in a prison or mental hospital, you know that such environments provide fertile soil for pinches tiranitos.

As we saw at Abu Ghraib, a frustrated work force with unfettered power over a maligned and powerless population is a recipe for abuse. Indigent prisoners don’t exactly have a voice to complain about abuses of authority. This is especially true for sex offenders. No one wants to hear a victimizer whining about being a victim. 

Alienation and despair

When Martin Seligman played mind games on dogs, giving punishments arbitrarily and not allowing escape, the dogs became apathetic and depressed. "Learned helplessness" resulted from their absolute lack of control or agency. The same thing happens with humans.

The arbitrary and capricious treatment that sex offenders are subjected to creates a vicious cycle. It ramps up alienation, despair, and bitterness. And this mindset is not exactly conducive to the types of prosocial change that we want to see in offenders.

Conditions are so unbearable in these facilities ostensibly designed for care and treatment that three offenders are using “necessity” as a defense for an attempted escape. The three tried to escape from Minnesota’s Moose Lake facility, which was the subject of an ACLU complaint over alleged violations of patients’ rights.

Last week, the would-be escapers unsuccessfully pleaded with a judge to let them stay in the county jail rather than returning them to the hospital, where they said conditions were intolerable:

“Please don’t subject me to any more mental and physical abuse without recourse. Please don’t send me back. I’d rather be euthanized.”

The judge nonetheless ordered the man sent back:

“I don’t have the jurisdiction to address the conditions [at the detention site] or the circumstances of your placement there.”

And therein lies the rub. Legislatures enact civil detention laws and set their parameters. But once the massive and costly facilities are up and running, it is easy for administrators and staff to forget that they are just functionaries, beholden to higher authorities for guidance. When this happens, the courts should step up. They hold ultimate responsibility for making sure that government operations are legal and fair.

A.J. and M.F. were lucky to have tenacious lawyers protecting their rights. Even then, their victories were tiny -- the right to soap and paint brushes. More typically, detainees are out of sight and out of mind. No one is watching, and no one cares.

Back in the day, Russian writer Fyodor Dostoyevsky mused that the degree of civilization in a society could be judged by entering its prisons. I wonder what his verdict would be if he could travel through time and visit a modern civil detention facility.

Related posts:

• "Treatment": Backwards and upside down? Don't focus on "denial" or "lack of empathy," warn sex offender treatment experts

• "Consumed With Sex": Sex offender treatment in risk society

*In the context of mental health law, legal scholar Michael Perlin defines pretexuality as “the ways in which courts accept—either implicitly or explicitly—testimonial dishonesty and engage similarly in dishonest and frequently meretricious decision-making, specifically where witnesses, especially expert witnesses, show a high propensity to purposely distort their testimony in order to achieve desired ends.” I used the term in the title of my just-published historical review of the term “hebephilia,” citing its use in court as a pretextual mental disorder.

Justice perverted: Sex offense law, psychology and public policy

 Oxford University Press has just released this provocative new title of likely interest to many of my readers. It's written by esteemed forensic psychologist and attorney Charles Patrick Ewing, a law professor at The State University of New York, University at Buffalo Law School.

Summary:

Over the past quarter century Congress, state legislatures and the courts have radically reshaped America's laws dealing with sex offenders in an effort to reduce the prevalence of sex offenses. Most convicted sex offenders must now register with the authorities, who then make information about them available to the public. Possession of child pornography has been made an extremely serious crime often punishable by prison sentences that dwarf those meted out to child molesters, rapists, robbers, and even killers. Federal law now imposes a minimum sentence of ten years in prison for those convicted of using the internet to attempt to lure minors for sex. And the federal government and 20 states have "sexually violent predator" laws that allow the indefinite civil commitment of convicted sex offenders to secure institutions for treatment after they have served their full criminal sentences.

All of these changes in sex offender law, as well as numerous others, have been based at least in part on input from psychology, psychiatry and the social sciences. Moreover, enforcement and administration of many of these laws relies to a large extent on the efforts of mental health professionals. However, many questions about this involvement remain largely unanswered:

• Are these laws supported by empirical evidence, or even by well-reasoned psychological theories? Do these laws actually work? 

• Are mental health professionals capable of reliably determining an offender's future behavior, and how best to manage it? 

• Are experts capable of providing effective treatment for sex offenders -- i.e., treatment that actually reduces the likelihood that an identified sex offender will re-offend?

Drawing on research from across the social and behavioral sciences, Dr. Ewing weighs the evidence for the spectrum of sex offense laws, to occasionally surprising results. A rational look at an intensely emotional subject, Justice Perverted is an essential book for anyone interested in the science behind public practice.

What others are saying:

Ewing …gives a lucid, objective analysis of the laws, easily separating myth from reality in this intensely emotional area.

-- Philip H. Witt, Ph.D., ABPP, President, American Academy of Forensic Psychology, co-author, Evaluation of Sexually Violent Predators

A remarkable, eye-opener of a book—Professor Ewing brings to this highly controversial subject his knowledge as both a law professor and as a practicing forensic mental health expert.

--Alan M. Goldstein, Ph.D., ABPP, Professor Emeritus, John Jay College of Criminal Justice

This book is a breath of fresh air. It debunks the media-driven frenzy of fear, hate mongering, and utterly irrational laws that do far more harm than good. Professor Ewing writes thoughtfully, carefully, and persuasively. This book should be read by all who care about—and think about—this topic.

 --Michael L. Perlin, Law Professor, Director of International Mental Disability Law Reform Project, New York Law School

 Ewing is a prolific author, and never disappoints. His other recent books, which I have reviewed, include:

• Trials of a Forensic Psychologist: A Casebook

• Insanity: Murder, Madness, and the Law

• Minds on Trial: Great Cases in Law and Psychology

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)

MLK to psychologists: We need creative maladjustment

In honor of today's holiday, I am excerpting portions of a speech by Martin Luther King Jr. to psychologists, which remains prophetically relevant to our field today. I have made the entire speech, "The Role of the Behavioral Scientist in the Civil Rights Movement," available for download (HERE).

... For social scientists, the opportunity to serve in a life-giving purpose is a humanist challenge of rare distinction.... Social scientists, in the main, are fortunate to be able to extirpate evil, not to invent it....

On crime and urban violence

After some years of Negro-white unity and partial success, white America shifted gears and went into reverse. Negroes, alive with hope and enthusiasm, ran into sharply stiffened white resistance at all levels and bitter tensions broke out in sporadic episodes of violence. New lines of hostility were drawn and the era of good feeling disappeared....

Science should have been employed more fully to warn us that the Negro, after 350 years of handicaps, mired in an intricate network of contemporary barriers, could not be ushered into equality by tentative and superficial changes.... Negroes could contain their rage when they found the means to force relatively radical changes in their environment. [But] without a more effective tactic for upsetting the status quo, the power structure could maintain its intransigence and hostility. Into the vacuum of inaction, violence and riots flowed and a new period opened....

Urban riots ... are a distorted form of social protest. The looting which is their principal feature serves many functions. It enables the most enraged and deprived Negro to take hold of consumer goods with the ease the white man does by using his purse. Often the Negro does not even want what he takes; he wants the experience of taking. But most of all, alienated from society and knowing that this society cherishes property above people, he is shocking it by abusing property rights. There are thus elements of emotional catharsis in the violent act....

The policymakers of the white society have caused the darkness; they create discrimination; they structured slums; and they perpetuate unemployment, ignorance and poverty. It is incontestable and deplorable that Negroes have committed crimes; but they are derivative crimes. They are born of the greater crimes of the white society. When we ask Negroes to abide by the law, let us also demand that the white man abide by law in the ghettos. Day-in and day-out he violates welfare laws to deprive the poor of their meager allotments; he flagrantly violates building codes and regulations; his police make a mockery of law; and he violates laws on equal employment and education and the provisions for civic services. The slums are the handiwork of a vicious system of the white society; Negroes live in them but do not make them any more than a prisoner makes a prison. Let us say boldly that if the violations of law by the white man in the slums over the years were calculated and compared with the law-breaking of a few days of riots, the hardened criminal would be the white man....

The unemployment of Negro youth ranges up to 40 percent in some slums. The riots are almost entirely youth events--the age range of participants is from 13 to 25. What hypocrisy it is to talk of saving the new generation--to make it the generation of hope--while consigning it to unemployment and provoking it to violent alternatives.

When our nation was bankrupt in the '30s we created an agency to provide jobs to all at their existing level of skill. In our overwhelming affluence today what excuse is there for not setting up a national agency for full employment immediately?

... These are often difficult things to say but I have come to see more and more that it is necessary to utter the truth in order to deal with the great problems that we face in our society....

On taking a stand

There are those who tell me that I should stick with civil rights, and stay in my place. I can only respond that I have fought too hard and long to end segregated public accommodations to segregate my own moral concerns. It is my deep conviction that justice is indivisible, that injustice anywhere is a threat to justice everywhere....

On some positions cowardice asks the question, 'Is it safe?!' Expediency asks the question, 'Is it politic?' Vanity asks the question, 'Is it popular?' But conscience must ask the question, 'Is it right?!' And there comes a time when one must take a stand that is neither safe, nor politic, nor popular. But one must take it because it is right....

On the role of the social scientist

Negroes have been oppressed for centuries not merely by bonds of economic and political servitude. The worst aspect of their oppression was their inability to question and defy the fundamental precepts of the larger society. Negroes have been loathe in the past to hurl any fundamental challenges because they were coerced and conditioned into thinking within the context of the dominant white ideology.... For the first time in their history, Negroes have become aware of the deeper causes for the crudity and cruelty that governed white society's responses to their needs. They discovered that their plight was not a consequence of superficial prejudice but was systemic.

The slashing blows of backlash and frontlash have hurt the Negro, but they have also awakened him and revealed the nature of the oppressor. To lose illusions is to gain truth. Negroes have grown wiser and more mature and they are hearing more clearly those who are raising fundamental questions about our society whether the critics be Negro or white. When this process of awareness and independence crystallizes, every rebuke, every evasion, become hammer blows on the wedge that splits the Negro from the larger society.

Social science is needed to explain where this development is going to take us. Are we moving away, not from integration, but from the society which made it a problem in the first place? How deep and at what rate of speed is this process occurring? These are some vital questions to be answered if we are to have a clear sense of our direction....

The problem is deep. It is gigantic in extent, and chaotic in detail. And I do not believe that it will be solved until there is a kind of cosmic discontent enlarging in the bosoms of people of good will all over this nation....

On creative maladjustment

There are certain technical words in every academic discipline which soon become stereotypes and even clichés. Every academic discipline has its technical nomenclature. You who are in the field of psychology have given us a great word. It is the word maladjusted. This word is probably used more than any other word in psychology. It is a good word; certainly it is good that in dealing with what the word implies you are declaring that destructive maladjustment should be destroyed. You are saying that all must seek the well-adjusted life in order to avoid neurotic and schizophrenic personalities.

But on the other hand, I am sure that we will recognize that there are some things in our society, some things in our world, to which we should never be adjusted. There are some things concerning which we must always be maladjusted if we are to be people of good will. We must never adjust ourselves to racial discrimination and racial segregation. We must never adjust ourselves to religious bigotry. We must never adjust ourselves to economic conditions that take necessities from the many to give luxuries to the few. We must never adjust ourselves to the madness of militarism, and the self-defeating effects of physical violence.

In a day when Sputniks, Explorers and Geminies are dashing through outer space, when guided ballistic missiles are carving highways of death through the stratosphere, no nation can finally win a war. It is no longer a choice between violence and nonviolence, it is either nonviolence or nonexistence. As President Kennedy declared, 'Mankind must put an end to war, or war will put an end to mankind.' And so the alternative to disarmament, the alternative to a suspension in the development and use of nuclear weapons, the alternative to strengthening the United Nations and eventually disarming the whole world, may well be a civilization plunged into the abyss of annihilation. Our earthly habitat will be transformed into an inferno that even Dante could not envision.

Thus, it may well be that our world is in dire need of a new organization, The International Association for the Advancement of Creative Maladjustment. Men and women should be as maladjusted as the prophet Amos, who in the midst of the injustices of his day, could cry out in words that echo across the centuries, 'Let justice roll down like waters and righteousness like a mighty stream'; or as maladjusted as Abraham Lincoln, who in the midst of his vacillations finally came to see that this nation could not survive half slave and half free; or as maladjusted as Thomas Jefferson, who in the midst of an age amazingly adjusted to slavery, could scratch across the pages of history, words lifted to cosmic proportions, 'We hold these truths to be self evident, that all men are created equal. That they are endowed by their creator with certain inalienable rights. And that among these are life, liberty, and the pursuit of happiness.' And through such creative maladjustment, we may be able to emerge from the bleak and desolate midnight of man’s inhumanity to man, into the bright and glittering daybreak of freedom and justice.

I have not lost hope. I must confess that these have been very difficult days for me personally. And these have been difficult days for every civil rights leader, for every lover of justice and peace.

King was assassinated seven months after giving this speech at the American Psychological Association's 1967 convention.

Special journal issue on adjudicative competencies

• Should adolescent immaturity be a basis for incompetency?
• Must sex offenders be competent at civil commitment trials?
• When is it ethical to evaluate a condemned person's competency to be executed?
• Is it ethical to assist in making someone sane enough for the state to kill?
• How should clinicians manage empathy in competency evaluations?
• Is neuroimaging a help or a hindrance?
• What are current best practices for detecting feigning?

These are among the cutting-edge ethical, legal, clinical and practical issues addressed in a special issue of Behavioral Science and the Law on adjudicative competencies.

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

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

"Abandon ethics, all ye who enter here"

Special ethics exemption sought for SVP work

Concern is mounting among many in the fields of forensic psychology, forensic psychiatry, and law about ethical violations by some practitioners in the Sexually Violent Predator (SVP) arena. But instead of calling for greater adherence to ethical practice, some are floating a radically different idea: Abandon professional ethics altogether.

[A] good-faith, case-by-case, consequential ethics approach should be used that balances the greatest good for the greatest number without trampling unduly on individual rights and each citizen’s constitutionally protected liberty interests.

This "consequential" approach will eliminate bias and give the civil commitment process "ethical authenticity," contend Shoba Sreenivasan, Allen Frances, and Linda Weinberger in the current issue of the Journal of the American Academy of Psychiatry and the Law.

Sexually Violent Predator evaluations lend themselves to ethical slippage because of the laws' requirement that in order to be eligible for civil commitment, a convicted sex offender must suffer from a "mental abnormality" that makes him "likely" (interpreted in most states other than California to mean a risk of 51 percent or more) to commit another sexually violent offense.

These legal requirements create a slippery slope when an offender does not have a bona fide mental disorder and/or does not score high on risk assessment instruments, but the evaluator still believes the offender needs to be civilly committed to protect the public.

But this is no "puzzling ethics quandary." It's no different from such pulls in other forensic arenas. For example, a forensic practitioner might opine that:

• a young man who experienced a brief, drug-induced psychotic break meets the M'Naghten standard of insanity, because the prosecutor and the defense attorney have worked out a deal in which he won't have to go to prison

• a victim of an industrial accident meets the criteria for posttraumatic stress disorder because she needs counseling and the corporation has deep pockets

• a mother in a child custody dispute has "parental alienation syndrome" because she appears angry and vindictive toward her husband

Each of these evaluators is overstepping, and usurping the role of the trier of fact (the judge or jury). It is not the expert's job to decide whether Sexually Violent Predator laws are morally just. It is not our job to balance the goals of public protection with individual civil liberties. Those duties fall to courts, legislatures, and voters.

As I teach my students in Forensic Psychology 101, when we enter the courtroom our job is a simple one: To assist the trier of fact in understanding the psychological science of relevance to the case at hand. Nothing more, nothing less.

The authors complain that the courts have given us insufficient guidance in this task. But, welcome to the forensic world. Statutory and case law is often intentionally vague, to allow for unique situations or changing circumstances. The law's inherent vagueness about mental abnormality and risk does not create an ethics quandary, much less one that merits abandonment of our ethics codes.

It is ludicrous to think that the solution to problems in SVP practice is an anything-goes approach that essentially rests upon the good intentions of individual evaluators. Most of us probably do have good intentions. But self-serving blinders make it hard to be objective. That is precisely why professionals have established deontological, or rule-based, ethics standards (which the authors refer to as "normative ethics").

Indeed, these authors reveal their implicit bias through their choice of examples. Instead of focusing on the widespread exaggeration of risk or manufacturing of bogus psychiatric diagnoses, they condemn "long and confusing discussions of Bayes' theorem" and label as biased the evaluator who emphasizes limitations in our ability to accurately predict risk.

Actually, that is precisely our job. We are ethically obligated to present the limitations of our models, which are significant. To fail to do so is to succumb to what an Australian judge described as gross product enthusiasm:

Amongst the many factors which may lead an expert witness into error is a malady which, if encountered in a new car salesperson, might be described as gross product enthusiasm. Some witnesses seem to become so fervid about the potential of their chosen discipline that they lose sight of its limitations and are borne by their enthusiasm into making claims that could not be supported by more sober and objective assessment of the available evidence.*

As this judge implies, the testimony of expert witnesses should be given little weight when it amounts to confirmatory bias in disguise, resting on a paper-thin layer of exploratory or contradictory research that has not been peer reviewed, published, or replicated, and is of unknown reliability or validity.

I will say it once again: Our only role in court is to assist the trier of fact to accurately apply reliable and valid science to the case at hand. And that includes acknowledging the science's limitations.

Science in principle is distinguished from the law, religion, and politics by its allegiance to scientific inquiry, or the search for replicable cause-effect relationships. The ethics of our discipline therefore rely upon the principles of objectivity and transparency. In contrast, Sreenivasan et al’s ethics of "consequentialism" elevate expedience. This might be fine in the fields of law or religion. But, as a learned colleague said, "expedience is the bane of Science."

SVP trials pit David against Goliath. The dice are loaded against sex offenders facing civil commitment, due to the onerous nature of their past crimes, inequalities in legal resources, and even the very label of predator, which conjures a beastly monster. Condemning as "biased" efforts by the defense to point out the scientific weaknesses of the state's evidence would only increase this monumental power imbalance.

But that's no "puzzling ethics quandary." Any more than psychologists are faced with a puzzling ethics quandary when they decide to participate in government torture for the greater good.

Because we have professional rules, or ethics codes, the psychologists who allegedly tortured detainees at Guantanamo now await licensing board actions in their respective states of Ohio and New York.

That's the way it is, and the way it should remain.

Acknowledgment: In crafting this essay, I consulted with more than a dozen learned colleagues, who helped me to ponder these critical issues of ethics. Thanks to all of you, and a special thanks to Robert Halon, who gave the matter a great deal of thought. It’s a privilege to count such wise individuals among my professional colleagues.

Photo credit (Creative Commons license): Klearchos Kapoutsis, Baba Vida fortress, Bulgaria, the place of the hangings.

*R. v. Hiller, ACTSC 50, 25 (Australia, 2003), as cited in Psychological Science in the Courtroom, Consensus and Controversy, page 255.

BLOGGER RESPONSES:

Steve Erickson @ Crime & Consequences

Mark Bennett @ Defending People

Emma B. @ Psychology & Crime News (UK)

Heartbreaking video on elderly and dying prisoners

Readers appreciated the video documentary I posted last week on the mentally ill in U.S. prisons, so here's a newer video on the elderly in prison. Forget humanitarianism; the economic costs alone of incarcerating so many elderly and infirm should be cause for alarm.



Al Jazeera's investigative reporting continues to impress me. In this special investigation, "Fault Lines: Dying Inside," we see amazing footage that includes:

• a prisoner with Huntington’s Chorea in the nation's first specialized unit for demented patients, a 30-bed facility in New York that has never before been filmed for TV
• 100-year-old Sherman Parker, demented and missing one leg, being cared for by a prisoner earning $5 a month in an Oklahoma prison "operating in warehouse mode" due to severe budget cuts
• 86-year-old Plutarcho Hill, imprisoned for 66 years for a 1947 murder, who has escaped and returned to prison 10 times
• Larry White, a 72-year-old ex-convict released from prison three years ago who is "going back and helping those I left behind" by lobbying for compassionate release for elderly prisoners
• a woman volunteer who is dedicating her life to providing hospice for dying prisoners in the Pennyslvania prisons
  

Correctional ethics: New guidelines; licensing complaints

New correctional psychology standards published

As most of you know, the largest mental health institutions in the Land of the Free are not hospitals, but penal institutions: Riker's Island in New York, Cook County Jail in Chicago, and the Los Angeles County Jail. The USA incarcerates the largest proportion of its population of any country on the planet, and at least 15 percent of those 2 million or more people have serious mental illnesses. Unfortunately, many correctional systems lack resources to meet the constitutionally mandated needs of mentally ill individuals in their custody.

For you folks in correctional psychology, Criminal Justice and Behavior has just published a special issue containing the newly revised standards for psychologists working in jails, prisons, and other correctional facilities and agencies. This is only the second revision of the standards since their initial publication by the International Association for Forensic and Correctional Psychology (IACFP) in 1980. They are the result of more than a year's effort by a revision committee chaired by Richard Althouse, Ph.D., president of the IACFP.

Guantanamo psychologists face ethics charges

The timing of these new guidelines is serendipitous. Earlier this week, the San Francisco-based Center for Justice and Accountability and Harvard Law School's International Human Rights Clinic filed state licensing board complaints against two former Guantanamo psychologists. The aim of the complaints, filed in New York and Ohio, is to force investigations into the psychologists’ roles in the torture of prisoners.

The Ohio complaint alleges that Larry C. James, now dean of Wright State University's School of Professional Psychology, headed a special unit called the Behavioral Science Consultation Team, known as "Biscuit," that advised the military on how to break down prisoners and participated in the controversial interrogations at Guantánamo. The New York complaint is against psychologist John Leso, Dr. James's predecessor on the special team.

APA revises ethics standards

In the wake of the Guantanamo abuses, the American Psychological Association has revised its Ethics Standards to clarify that compliance with the law is no excuse for unethical behavior.

Specifically, language has been added to Standards 1.02 and 1.03 ("Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority" and "Conflicts Between Ethics and Organizational Demands") stating that the standards may "under no circumstances … be used to justify or defend violating human rights." In addition, a clause allowing psychologists to behave unethically in order to "adhere to the requirements of the law, regulations, or other governing legal authority" has been struck out.

Related resources:

• The new correctional standards are available HERE for free for a limited time.
• Mother Jones and Democracy Now have in-depth coverage of the Guantanamo complaints, with links to additional background materials.
• The Ohio complaint against psychologist Larry James is HERE. Local coverage of that case, in the Dayton Daily News, is HERE.