Fiji travelogue: A different approach to murder

Guest post by Jules Burstein*

Three weeks ago while on a vacation in Fiji, I was on the third-largest island, Taveuni, walking in a light rain up a not-so-steep hill, when I encountered the following sign in front of what looked like a series of dormitories:

Fiji Correction Services

Taveuni Prison

Giving a Second Chance

 

I walked inside and explained to a secretary at the front desk that I was a forensic psychologist and was interested in learning something about the criminal justice and prison system in Fiji. She invited me to speak to the Director (Warden) who was just outside the main building and was quite receptive to having an exchange with me.

I was more than a little astonished to learn from him that on an island with 18,000 people there were only a dozen men serving time for murder. But more compelling than that was the Director informing me that all men convicted of murder are sentenced to 10 years.

At that point they are evaluated to see whether they have sufficient remorse for their offense, and have made constructive changes in their character so as to warrant release. If that is the case they are discharged from custody. If not, there are periodic reviews every two years to determine whether inmates are then suitable for release. Thus, all inmates are strongly motivated to effect positive changes while in custody in order to earn the right to be reintegrated into society.

I found it impressive (and sad) to consider that this progressive approach exists in a country that just obtained its independence from Great Britain 40 years ago, while we in America have prisons filled with thousands of men convicted of murder either sentenced to death or to life sentences with little chance of parole.

*Jules Burstein is a clinical and forensic psychologist in Berkeley, California.

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.

Three Strikes and Civil Rights

Guest post by Bill Boyarsky*

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Untattoo You

What happens when you cross the Avon Lady with a Neo-Nazi murder defendant?

Guest essay by Sam Sommers*

Several colleagues and students forwarded to me this story from the NY Times describing a criminal defendant in Florida whose attorney successfully petitioned the court to pay for a cosmetologist to help him cover up his swastika tattoos with makeup before trial each morning. The basis for the request was the defense's (quite reasonable) concerns that jurors would have a hard time remaining impartial as they sat in judgment of someone adorned by Neo-Nazi symbols.


The case raises a wide range of interesting questions involving the psychology of law, physical appearance, first impressions, and daily interaction–the very issues often at the heart of this blog. Questions such as:

Should the court have agreed? 

While the unusual nature of the request is what has rendered it newsworthy, similar issues arise in a wide range of cases. Defendants often change clothes before entering court in order to prevent them from having to appear in front of the jury in a prison jumpsuit. Similarly, defendants in custody may be unshackled outside of the presence of the jurors so as to avoid undue bias.

The question becomes, though, should such accommodation apply to tattoos? After all, the defendant in the Florida case presumably chose to decorate himself in Neo-Nazi images. Should the taxpayers foot the bill to cover up decisions that the defendant made of his own free will? Moreover, the prosecution alleges that the attacks in question were motivated by hate: one assault victim was attacked allegedly for associating with a Black man; the homicide victim was gay. Reactions to the case might be different had the defendant gotten the tattoos earlier in life and long since forsworn the ideology associated with them. This wasn't the case here.

Can the issue be reframed? 

Many people I've spoken with have suggested, as alluded to above, that since the defendant chose these tattoos, he should be stuck with the repercussions of that decision. But the issue becomes more complex when you consider that the question for the court was not simply whether the defendant should be allowed to cover his tattoos, but rather whether the court would pay for it. Because a tattooed defendant with the money for his own removal/cover-up would be free to do as he wished.

Most people I've talked to have trouble with the idea that the court would pay for a Neo-Nazi charged with hate crimes to cover up swastika tattoos. But when the same question is reframed, most of the same people agree that a poor defendant charged with capital crimes should be entitled to just as vigorous a defense as a wealthier defendant in the same situation. Pitched this way, the issue becomes more complicated.

Couldn't the judge just remind the jurors to stick to the evidence and ignore the defendant's appearance? 

Sure. And as the division director for the Florida attorney's office argues in the Times article, "We believe the jurors listen to judges' instructions."

But while I have no doubt that jurors often try to follow the rules they're given, examples to the contrary abound. For instance, years ago I published a few research studies indicating that evidence still impacts a jury even after it has been ruled inadmissible. Moreover, judicial instructions to avoid prejudice or partiality have not been sufficient to eliminate other forms of disparity, such as the increased likelihood that a defendant in a capital trial will be sentenced to death when his victim is White as opposed to non-White.

It remains the case that sometimes jurors decide they'd rather not hew to the letter of the judge's instructions. And other times, jurors aren't even aware in the first place of the biases that they're supposed to be avoiding.

If this defendant gets money to change how he looks, what about other defendants similarly disadvantaged by appearance? No good legal debate is complete without the proverbial slippery slope argument, so where do we go from tattoo guy? Should relatively unattractive defendants be allowed to ask for makeovers? Given stereotypes about overweight individuals and self-control, what about an obese defendant in a negligence case? Clearly, the slope isn't so slippery as to allow a defendant from a traditionally disadvantaged minority group to appear in court in whiteface, but where should the line be drawn?

When symphony orchestras wanted to reduce bias in the hiring of musicians, they had candidates audition behind a screen so that gender was not apparent. Accordingly, one of my students in class last week asked, why not do the same to mask the demographics and background of a criminal defendant? Not a proposal that you're likely to see anytime soon in a courtroom near you, but interesting fodder for discussion nonetheless.

So I now turn the question to you, dear readers... Court-sponsored tattoo cover-ups: misguided use of public funds or necessary protection of defendant rights?

Sam Sommers is an award-winning social psychology professor at Tufts University who has served as an expert witness on bias.

*This essay originally appeared on Dr. Sommers' Psychology Today blog, The Science of Small Talk. Reposted with the written permission of Sam Sommers.

Previous guest essay by Sam Sommers: On police, profiling, and Henry Gates (July 28, 2009)

"I'm a criminal and so are you"

We are living in an "age of prohibition," says Scott Henson over at Grits for Breakfast. Texas, he notes, has 11 felonies just involving oysters. Youth are especially criminalized, for everything from copyright piracy to "sexting" to truancy. As laws proliferate, so do the number of violators, bringing us to the point of this guest essay by author and activist Michelle Alexander:

"I'm a criminal and so are you"

Guest essay by Michelle Alexander*

Who am I? How do I identify?

Lately, I've been telling people that I'm a criminal. This shocks most people, since I don't "look like" one. I'm a fairly clean-cut, light-skinned black woman with fancy degrees from Vanderbilt University and Stanford Law School. I'm a law professor and I once clerked for a U.S. Supreme Court Justice -- not the sort of thing you'd expect a criminal to do.

What'd you get convicted of? people ask. Nothing, I say. Well, then why do you say you're a criminal? Because I am a criminal, I say, just like you.

This is where the conversation gets interesting. Most of my acquaintances don't think of themselves as criminals. No matter what their color, age or gender, most of the people in my neighborhood and in my workplace seem to think criminals exist somewhere else -- in ghettos, mainly.

They have an unspoken, but deeply rooted identity as "law-abiding citizens." I ask them, "Haven't you ever committed a crime?" Oddly, people often seem perplexed by this question. What do you mean? they say. I mean, haven't you ever smoked pot, didn't you ever drink underage, don't you sometimes speed on the freeway, haven't you gotten behind the wheel after having a couple of drinks? Haven't you broken the law?

Well, yeah, they say, but I'm not a criminal. Oh, really? What are you, then? As I see it, you're just somebody who hasn't been caught. You're still a criminal, no better than many of those who've been branded felons for life.

Perhaps there should be a box on the census form that says "I'm a criminal." Everyone who has ever committed a crime would be required to check it. If everyone were forced to acknowledge their own criminality, maybe we, as a nation, would second-guess our apparent zeal for denying full citizenship to those branded felons.

In this country, we force millions of people -- who are largely black and brown -- into a permanent second-class status, simply because they once committed a crime. Once labeled a felon, you are ushered into a parallel social universe. You can be denied the right to vote, automatically excluded from juries and legally discriminated against in employment, housing, access to education and public benefits -- forms of discrimination that we supposedly left behind.

This kind of stigma, discrimination and social exclusion may befall you for no reason other than you were once caught with drugs.

I doubt Barack Obama thinks of himself as a criminal, though he should. He has admitted to using illegal drugs during his college years -- lots, in fact. What if he thought of himself as a criminal? What if he identified that way? Would it lead him to feel a bit more compassion for those who are branded drug felons for life, unable to find work or housing, and deemed ineligible even for food stamps?

Maybe if Obama thought of himself as a criminal he wouldn't have just endorsed spending even more money on prisons at a time when scarce resources would be much better spent on education or health care, or just about anything else.

I am a criminal. Coming to terms with this aspect of my identity has helped me to see more clearly -- with blinders off -- the ways in which I have been encouraged not to feel any connection to "them," those labeled criminals. I see now that "they" are me, and I am them.

*This essay was first posted at CNN, and is reposted here with the permission of Michelle Alexander. Ms. Alexander is author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, 2010). She is former director of the Racial Justice Project of the ACLU of Northern California and of the Civil Rights Clinic at Stanford Law School. She holds a joint appointment with the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University.

Salon on "silly" Fort Hood media coverage

Award-winning journalist Mark Benjamin over at Salon has penned a keen analysis of the biased and woefully off-base tenor of media coverage of last week's Ford Hood shooting spree, focusing on incendiary terms like "terrorism" and "political correctness" rather than the real issues:

The media's silly Fort Hood coverage*

By Mark Benjamin

Everyone wants to debate terrorism and political correctness, but the real story is the failure of Army medicine

The conventional narrative of the Fort Hood shootings, one week later, has been distinguished by the reporting of unconfirmed -- and sometimes incorrect -- details and the drawing of dubious conclusions. The only thing that suggests the current story will withstand the test of time better than the initial Pat Tillman myth (that he died in combat, rather than by friendly fire), or the overheated tale of heroism by Jessica Lynch in 2003 (which Lynch herself protested), is that two basic facts seem clear: The shootings certainly happened, and given the number of eyewitnesses, it's almost certain that Maj. Nidal Malik Hasan did it....

First, the ongoing factual unraveling of the narrative. As the New York Times reported this Thursday, initial information seized on by talk shows that Sgt. Kimberly Munley, a petite police officer, bravely brought down Hasan in a hail of gunfire in which she was also wounded was, well, also not true. Munley, it seems, just got shot. Senior Sgt. Mark Todd actually shot Hasan to the ground and cuffed him after Munley had already been wounded.

Also on Thursday, the Washington Post raised solid questions about previous reports that Hasan had tried to get out of his military service because of what he saw as a growing schism between his religious and military duties....

Despite some print publications attempting to keep track of these kinds of facts, a lot of media folks continue to ask the wrong questions and/or provide some of their own unlikely, or unsubstantiated, answers.

The Monday after the shootings, I got my first taste of how the story was embarking on a life of its own as I settled into a chair at one of MSNBC's Washington studios to do Dylan Ratigan's "Morning Meeting."

"One question being asked, among many, is whether political correctness stalled the response to possible warning signs from Maj. Hasan," Ratigan said in his introduction....

Too much political correctness in the military? You know, the place where they fire you if you admit you're gay? The Army has its share of challenges, but in a decade of covering the military, I certainly haven’t come across any evidence that the institution is somehow paralyzed by the burden of gratuitous political correctness. And while that might provide a convenient way for Army officials to explain, anonymously, why nobody prevented Hasan from killing 13 people -- "We are just too afraid of criticizing Muslims" -- I haven’t seen a shred of evidence to suggest this might be true.

The cover of Time magazine depicts another befuddling sideshow to the Fort Hood story. The cover is a picture of Hasan with the word "Terrorist?" over his eyes. "It is a story about why Maj. Hasan is a terrorist," Time managing editor Richard Stengel explained on MSNBC's "Morning Joe" one week after the killings.

I'd heard this one before -- the debate about whether we should label Hasan a terrorist, or the shooting as an act of terrorism. Right-wing media host Laura Ingraham railed at me on this subject on her radio show this week after I had referred to Hasan as being partly motivated by a "religious thing," but I had failed to use the word "terrorism." "I say that you won’t call it what it is," she shouted, "which is terrorism!" (I had called it "Muslim extremism" but that wasn't good enough for Ingraham.)

The obsession with that label "terrorist" seems beside the point. The real question is why the shootings were allowed to occur, and who, exactly, dropped the ball -- not what we call it all afterward….

The passionate determination to hang the "terrorist" label on Hasan, or rail against "political correctness" in the military, are just more symptoms of media stars more excited about hot-headed debate than covering the real story. And the real story may be sadly familiar: It looks like Army medicine blew it, once again.

Benjamin's full analysis, well worth reading in its entirety, is HERE.

Mark Benjamin is an award-winning investigative reporter with Salon.com's Washington bureau. Since 2001, Benjamin has focused on national security issues with an emphasis on the plight of returning veterans and detainee abuse. He was hailed for exposing problems caring for veterans at Walter Reed starting in early 2005 and also obtained for Salon the Army's entire Abu Ghraib investigative files.

*Excerpts posted with the written permission of Mark Benjamin

Hat tip: Bruce Miller

The Deification of Matthew Shepard

What the gay-rights movement has lost by making Shepard its icon

Guest essay by Gabriel Arana, The American Prospect*

Since Matthew Shepard was brutally murdered a decade ago, his story has achieved the status of parable, illustrating how ugly anti-gay bigotry really is. Every year, thousands of high school students across the country perform Moises Kaufman's play, The Laramie Project, which recounts the aftermath of Shepard's murder through the eyes of the local residents. Shepard's story has been the subject of three screen productions, a documentary, and countless investigative reports. That he was discovered tied to a pole on a dirt road only encouraged Christian analogy, one not-so-subtly invoked by the 2007 Phil Hall theatrical production, Matthew Passion.

As Shepard's father said at the trial of the two men eventually convicted of killing Shepard, "My son has become a symbol."

This familiar story -- Matthew as a pure, meek victim of anti-gay bigotry -- remains an orthodoxy unquestioned by all but the most ardent gay-rights opponents. In fact, Shepard was a deeply troubled young man. He had a severe drug and alcohol problem, suffered from bouts of depression, and failed out of school numerous times. He spent his money on partying, leaving him unable to pay bills. He contracted HIV, most likely through unsafe sex. These darker details are conspicuously absent from the prevailing narrative about Shepard's life.

There's no question that Shepard's murder was the result of bigotry. But by ignoring Shepard's flaws, supporters of gay rights make a critical mistake. The allegorical Matthew of vigils and plays is a not a person with conflicting desires and motivations. He's a one-dimensional caricature. If Shepard's story is intended as a lesson on the tragic consequences of gay bigotry, the ardent refusal to cast him as anything but an unblemished victim provides another: In order to win rights, gay people not only have to be just like you, they have to be better than you.

In her new book, The Meaning of Matthew, Judy Shepard acknowledges her son's shortcomings. But despite her frank acknowledgement of his problems, she ultimately falls back on eulogistic platitudes: He made everyone "feel that they were the only ones in the world at that moment." He liked to "ruffle a few feathers" and "had a promising future." Her son "put an everyday face on the gay rights movement."

It's understandable that a grieving mother remembers her son in the best light. But Matthew Shepard's status as a gay everyman was determined -- first by the media, then by gay-rights groups -- with little knowledge of who he was. He looked like an attractive, angelic, white college student from the heart of conservative America. He was found tied to a pole and beaten, hovering near death. The story could have written itself -- and it did: Numerous media outlets erroneously reported that Matthew had been "crucified" when in reality he was found on the ground.

Over 1,400 members of the LGBT community are victims of a hate crime every year, which includes violent attacks as well as harassment. Why, then, is Shepard the "face" of gay rights? The implication is that all the other candidates weren't quite right: not urban New Yorkers dying of AIDS in the 1980s, not inner-city black adolescents whose parents kicked them out of the house, not leather daddies marching on Washington. The pictures of other gays, lesbians, and transgender people did not prove sufficiently salable to make it onto rally placards.

At worst, anointing Shepard the "everyday" face of gay rights is a concession to other types of bigotry -- against trans men and women, racial and ethnic minorities, gay men with AIDS. At the very least, it demonstrates a willingness to appeal to mainstream tastes in order to earn political capital. It's the type of pragmatic bargain that organizations like the Human Rights Campaign and Equality California make all the time: You give us rights, and we'll hide the drag queens.

The "perfect icon" problem is not exclusive to the gay-rights movement. We revere Martin Luther King Jr. -- a peaceful reformer who couched his calls for civil rights in terms of brotherhood and Christian values -- instead of Malcolm X, a secessionist and Muslim who blamed whites for slavery and black oppression. There is also a reason the long-haired and beautiful Gloria Steinem is a better known feminist than Judith Butler, the androgynous queer theorist. All these figures have similar messages, but we choose to elevate those who are less threatening. Cast as a small, good-natured kid who loved everybody, Shepard is the epitome of nonthreatening.

This deification is part of what happens when a personal narrative turns political.

Judy Shepard calls comparisons of her son to Christ "inappropriate," but that framing has helped make him the patron saint of hate-crime legislation. The fight for this legislation is at least part of the "meaning" of Matthew. The Matthew Shepard Act is currently under consideration in the House after being stymied under George W. Bush, who threatened to veto it. If it passes, gay-rights groups can declare a victory. But what will have been vanquished? Even his mother acknowledges that "a dyed-in-the-wool and determined bigot isn't about to log onto the Internet to check state or federal statutes before bashing someone's head in."

What hate-crime laws do provide are stricter sentencing guidelines, feeding a criminal-justice system that has imprisoned more than 1 percent of the U.S. population and unfairly targets minorities. The courts imprison blacks at six times the rate of whites, and Hispanics, at more than double the rate of whites; the rate of black incarceration under President George W. Bush was higher than it was in South Africa during apartheid. If the face of anti-gay violence were a racial or ethnic minority, would we still be pushing for hate-crimes legislation that props up the criminal-justice system?

As Jos Truitt at Feministing.com points out, activists' energy would be better spent on empowering victims and combating the homophobia that motivates hate crimes. Groups like the Human Rights Campaign, which are spearheading the effort to get the Matthew Shepard Act passed, should focus instead on education programs and passing the Employment Non-Discrimination Act. Harsher murder sentences can't bring back the dead, but nondiscrimination laws and education programs can help LGBT Americans who are still living. It's hard to see how Shepard's memory is "honored" by a legalistic redefinition of federal sentencing guidelines or how this accomplishes anything concrete for gay rights.

Judy Shepard is entitled to remember her son however she likes. The rest of us have no such excuse. In an objective sense, the "meaning" of Matthew is not to be found in the passage of legislation, candlelight vigils, or passion plays. The real tragedy of Matthew Shepard's death is that it was senseless: He did not die for hate-crimes legislation or to become a martyr. The public can craft a narrative in which trauma finds redemption in politics, but ultimately the meaning we find in Shepard's death says more about society and the gay-rights movement than it does about Judy Shepard's son.

Essay reprinted with written permission from Gabriel Arana, "The Deification of Matthew Shepard," The American Prospect Online. The American Prospect, 1710 Rhode Island Avenue NW, 12th Floor, Washington, DC 20036. All rights reserved. Graphics credits: (1) Matthew Shepard collage, via the blogosphere, origin unknown; (2) The Passion of Matthew Shepard, by Fr. William McNichols, c/o Maryknoll Magazine.

UPDATE: Read on for a thought-provoking counterpoint opinion by "Urbanite," in the Comments section (the second comment).

On police, profiling, and Henry Gates

Guest essay by Sam Sommers*

When it comes to matters of race, the problem with asking how much progress we've made is not that there isn't a right answer. It's that there are two. Ask White Americans about race relations, and most focus on how far we've come. Ask Black Americans, and you're more likely to hear how far we still have to go.

Have we made strides when it comes to racial profiling? Sure. The practice now has a well-known name, jurisdictions keep statistics to track it, and commissions have been established to eradicate it. But what the arrest of Dr. Gates crystallizes is that we still have a ways to go. Whether the neighbor who called police or the officer who arrived on the scene consciously considered race is beside the point. What we know from scores of studies is that race influences our mental calculus -- sometimes when we aren't aware of it, when we don't want it to, and even on the police force.

In psychological research, participants exposed to subliminal photos of Black men are quicker to identify ambiguous images as weapons. Respondents in police simulation studies -- including actual officers -- are more likely to mistake innocuous items for guns when held by a Black man. These are basic human tendencies to which many of us fall victim, yet they aren't inevitable with proper vigilance or training.

That's what makes knee-jerk denials that race played a role in Gates' arrest so disappointing. I'm not arguing that race was the only reason things went down as they did. I wasn't there; details remain fuzzy. But let's be honest: White Harvard professors just don't get charged with disorderly conduct in their own homes. And when Black men of less renown are arrested under similar circumstances, we don't hear about it on the news.

Sure, it's dangerous to read too much into the anonymous comments of web users and the incendiary efforts of bloggers who seek to draw attention (and web traffic) to themselves. But to me, one of the most striking aspects of this story is how angry some White people seem to be in response to it, as if the mere suggestion that race had anything to do with Gates' arrest is a) ridiculous, b) offensive, and c) an indcitment of the American way of life. Check out, for example, some of the initial reader responses to the on-line story of the arrest in my hometown Boston Globe.

I've said it before, and I'll say it again: there are few things White Americans find more aversive than talking about race. But to dismiss out of hand the relevance of race to Gates' arrest flies in the face of empirical data, not to mention good, old-fashioned, common sense. You don't have to be an expert to understand that things like this just don't happen to White professors at Harvard.

*From the New York Times, posted with the written permission of Sam Sommers. For the entire Times on-line forum, featuring invited essays by seven leading experts, click HERE. Sommers has also written a further update on the case, More Gates Fallout, at his informative blog, Science Of Small Talk.

Sommers is an award-winning social psychologist at Tufts University in Massachusetts who has testified in murder trials as an expert witness on racial bias. My prior posts about his work include:

• Racial bias in jury selection is common yet denied, study finds

• Colorful juries more competent

Gender twist on "post-apocalpytic trolls"

I've written previously about troll colonies. They are the exiled sex offenders living under bridges, including most famously the Julia Tuttle Causeway in Florida. Now, for perhaps the first time, a woman has been forced to join their ranks. Here is what one columnist had to say about this sad, and senseless, development in a world gone mad:

Woman joins sex-offender group
Guest essay by Fred Grimm, Miami Herald*

It's as if Voncel Johnson has been thrust into a bizarre social experiment.

Forcing so many men to live like post-apocalyptic trolls beneath a bridge in the middle of Biscayne Bay wasn't quite mad enough. Now they've added a woman.

For two years, a colony of convicted sex offenders under the Julia Tuttle Causeway has lived in a public health travesty, without water or toilets or electrical service. They sleep in tents, shacks, the back seats of cars in the last realistic address in metropolitan Miami unaffected by city and county sex-offender residency laws.

The numbers have been growing steadily as more convicted sex offenders emerge from prison and are consigned to finish out their wretched lives under a bridge.

The population was up to 52 men Monday. And Voncel Johnson.

Gender equity

In a peculiar nod to gender equity, the Florida Department of Corrections informed her last week that she too had only one residency option in Miami-Dade County -- the Tuttle. ''They just give me a blanket and a pillow and sent me . . . here?'' she asked, talking over the incessant thump-thump-thump of the freeway traffic overhead. "I just broke down.''

A community backward enough to create a subterranean de-facto prison camp of male sex offenders thrusts a single woman into the mix -- just to see what happens.

It's an ironic setting for Voncel Johnson. The 43-year-old woman, who grew up in poverty and neglect in the Brownsville section of Miami, told me she was sexually molested at age 6 and gang-raped at 16. ''I have a hard time trusting men,'' she said.

In 2004, Johnson pleaded guilty to a charge of lewd and lascivious exhibition (without physical contact) with a minor. She claimed Monday the charge was unfounded but at the time a plea offer with one year probation and no prison time seemed prudent. Except she twice failed to meet sex-offender registration requirements. Her probation was revoked. She did 10 months at Broward Correctional Institute.

Common refrain

She repeated a common refrain -- sometimes delusional -- among the bridge outcasts. "I never would have done that plea deal if I'd known they'd send me here. I could've fought those charges.''

But offender laws leave the state Department of Corrections no options for a sex offender. Voncel Johnson's parole officer did find her a motel room for three days last week. And she was offered a slot in a residential offender program in another county. But Johnson refused to leave Miami. "All my family lives here. I've never been any place but Miami.''

It was probably a foolish decision, but Johnson harbors some vague notion about gutting it out beneath the Tuttle until her parole ends May 5. ''Then I can find some place to live.'' She seems unable to grasp that residency restrictions are forever.

Meanwhile, the men beneath the Tuttle gave her a battered old camper trailer. ''We watch out for her,'' insisted Juan Carlos Martin, who has been under the bridge so long that the address on his driver's license reads ''Julia Tuttle Causeway Bridge.'' He said it was as if city, county and state officials purposely cram more and more men into an unliveable, hopeless, crowded space, knowing that eventually something awful might happen. And now they add a woman.

Martin said, "They need to get her out of here.''

*From today's Miami Herald, posted with the written permission of columnist Fred Grimm. More columns by Fred Grimm are HERE.

Related blog posts:

• Trolls evicted (February 14, 2008)
• Exiles in the promised land (December 13, 2007)
• Sex offenders must live as trolls (April 16, 2007)
• A bridge as a last resort (May 1, 2008) – Guest essay by Seattle Times columnist Danny Westneat about a similar situation in Washington
• Exiles in their own land: Sex offenders and the history of banishment in Western culture (September 14, 2007)

Clueless 'science'

Guest essay by Jennifer L. Mnookin*

Law professor and vice dean, UCLA Law School

On television shows such as the "CSI" series, forensic science is high-tech, heroic and always right. The National Academy of Sciences released a long-anticipated report Wednesday on the real world of forensic science -- and the news is disturbing and downright ugly. Laboratories are woefully underfunded, and much of what passes for forensic "science" does not meet even minimal scientific standards. Yet, when forensic scientists testify in court, they often are embarrassingly overconfident about their findings.

The academy's report, commissioned by Congress and the result of years of investigation by a distinguished panel of independent experts, does not mince words in its indictment of the scanty research foundation upon which much forensic science now stands. The report asserts that "the current situation" is "seriously wanting, both because of the limitations of the judicial system and because of the many problems faced by the forensic science community." It also calls for the urgent creation of a federal agency devoted to encouraging research and to providing much-needed regulation and oversight.Put simply, although many kinds of forensic testimony -- involving handwriting identification, fingerprint evidence and ballistics, for example -- are enormously persuasive to a typical jury, they do not meet the basic requirements of good science.

But we don't need to wait for a new agency to make the necessary changes. Judges, who preside over the presentation of this evidence, need to exercise their role as gatekeepers to protect the integrity of our criminal justice system by requiring higher standards for forensic science when it's used as legal evidence.


What did the study's authors identify as some of the most significant problems?

Bias: Doctors testing a new medicine are -- appropriately -- not told which patients receive placebos and which get the test medication, because that knowledge might unconsciously bias their behavior and observations. But forensic scientists are frequently exposed to information that can potentially foster bias. Crime laboratories have failed to create adequate procedures for making testing "blind."

Error rates: Most of the forensic disciplines lack good information about how often practitioners make mistakes, a basic requirement of any science. Not knowing the error rate is bad enough, but some experts consistently testify under oath that their technique has an error rate of zero, an inherently preposterous claim.

No one really knows just how often document examiners incorrectly analyze handwriting samples, how frequently arson investigators get the cause of a fire wrong or how often forensic odontologists misidentify bite marks. Yet anecdotal information and research suggest that errors are disturbingly frequent. University of Virginia law professor Brandon Garrett's 2008 study of the first 200 convicted defendants exonerated by DNA evidence, for example, found that faulty forensic science testimony was second only to erroneous eyewitness identification as a cause of miscarriages of justice.

Over-claiming: Science deals in probabilities, not certainty. The only forensic science that makes regular use of formal probabilities is DNA profiling, in which experts testify to the probability of a match. None of the rest of the traditional pattern-identification sciences -- such as fingerprinting, ballistics, fiber and handwriting analysis -- currently has the necessary statistical foundation to establish accurate probabilities. Yet, instead of acknowledging their imperfect knowledge, fingerprint experts, for example, routinely testify that they can identify a specific person's prints to the exclusion of all other people in the world with 100% certainty.In 2004, the FBI, often said to have the nation's best crime lab, wrongly identified Oregon attorney Brandon Mayfield as a terrorist based on an erroneous fingerprint match. It eventually admitted its error, and the government had to pay him $2 million. There are hundreds of less adequate labs across the country. How much confidence can we have in them?

Structural independence: Here in Los Angeles, the city crime laboratory is part of the Police Department, and the county's lab reports to the sheriff. These kinds of arrangements are typical. But when the police and prosecutors pay and supervise the scientists, it stands to reason that the scientists may have difficulty establishing their independence.

The courts have almost entirely turned a deaf ear to these arguments, essentially giving forensic science and its practices a free pass, simply because they've been part of the judicial system for so long. Meanwhile, scandals continue to come to light across the nation involving error and even fraud in labs.The findings in the National Academy of Sciences report should spur judges to require higher standards. At a bare minimum, judges should immediately prohibit experts from testifying to impossibilities such as "an error rate of zero" or asserting that they are capable of making 100% certain identifications.In other cases, judges would be well advised to throw out forensic science altogether -- not forever, but until adequate research establishes, for example, that the conventional wisdom about evidence of arson is empirically valid, or until fingerprint and ballistics experts provide adequate proof that their real-world error rate is reasonably low. Courts should require forensic experts to back up their testimony with empirical evidence that they can do what they claim to be able to do.

We want and need forensic science in our legal system, but we have to be able to trust it. The forensic science community has been, at best, wary of, and often downright hostile to, serious inquiry into its strengths and limitations, especially by objective external researchers.

But if judges raised their standards and limited or excluded forensic evidence that didn't meet them, that fortress mentality would inevitably change. This much-needed research would probably reveal that forensic science is not as perfect as its practitioners have often claimed. But when forensic science rests on an appropriate scientific foundation, it will be far more deserving of our confidence. Our system of justice demands no less.

*From the Los Angeles Times of February 18, 2009, posted with the written permission of Professor Mnookin

Dr. Mnookin is a widely published law scholar and co-author of The New Wigmore: Expert Evidence. Her work focuses on evidence theory, expert evidence, and law and culture, with an emphasis on law and film. She is particularly interested in the connections between science, law and culture; her current work focuses on the history of expert and visual evidence in the American courtroom.

The National Academy of Sciences' important report, Strengthening forensic science in the United States: A path forward, is online here. A summary of the report is here. To listen to yesterday's Congressional briefing on the report, click here. A New York Times report on the study is here.

Good building, bad building

Guest essay by Eric Lotke*

China has opened a new subway system every year for the past six years. The U.S. has opened 45 new prisons and jails. Who's setting up to lead in the 21st century?

"Expanding prisons mean more jobs," explained the Fayetteville Observer over the summer.

The rural North Carolina community was celebrating the $19 million expansion of a $90 million prison that opened in 2003 and immediately filled to capacity. Such growth is a boon for rural, economically distressed counties. "Prison jobs bring added payroll, boost housing markets and draw new retail customers to poor parts of the state," observed the Observer.

The good news is that public investment can work. The bad news is that better choices must be made. We need to distinguish between prisons for crime control and prisons as a jobs program, between building for the future and building for the past.

• "We're always looking for ways to bring jobs to Wilkes County," said state senator Jim Whitehead of Georgia, when funding fell into place for a new pre-release center.

• "This is the biggest thing to happen to Stewart County since I've been here," said the chair of the county board when the private, for-profit Corrections Corporation of America opened a new 1,524 person detention center. "Everything's been leaving rather than coming in the 10 years I've been here. The biggest thing this will do is provide jobs for the county and the area."

• "Push state to build prison here," editorialized the Altoona Mirror in central Pennsylvania, three weeks before the election. "What would the area do to obtain 600 well-paying jobs in what could be termed a recession-proof industry? It's not a rhetorical question. Those jobs could happen. But it's important that our local and state leaders don't drop the ball."

President-elect Barack Obama is planning a massive new public works program. He wants to employ 2.5 million people rebuilding our roads and schools and bridges. That’s great. It's more than great. We need the projects, we need the jobs, and the proposal is on the order of magnitude of the problem.

Part of the program could be a reconsideration of the role prisons play in our rural economy. That role seems to have taken on a life of its own.

"When folks here heard the governor wanted to close the 137-year-old Pontiac Correctional Center, sucking hundreds of jobs from the area, they mobilized in a way that only small towns can. They held rallies and a parade. Streets were lined with blue-and-white 'Save Our Prison' signs and residents were outfitted in T-shirts to match." The local ABC news affiliate described it as "a struggle for their economic lives," as the state considered closing the town's second-largest employer to help fill a $700 million hole in the state budget.

States are truly struggling. Forty-one states have already reported budget problems for the current or upcoming fiscal year, and it's likely to get worse. States are starting to cut benefits and services ranging from health care to public schools and early childhood education.
But one budget item is never questioned: prisons.

Even as states spend nearly $50 billion on prisons every year and counties spend over $20 billion on jails, we build additional locked capacity. Even with U.S. incarceration rates at seven times historical and international norms, we build. Even as crime continues on its 15-year descent to levels not seen in 40 years, we find money to build even more.

The sacrifices we make to build these prisons are astonishing. Between 1987 and 2007, state spending on prisons increased by 40 percent (as a percent of the general fund). State spending on higher education decreased by 30 percent. We are financing our prisons by cutting our colleges.

We continue to build even though prisons are often disappointing for economic development. The best jobs go to people from out of town, and dollars spent on prisons have little "multiplier" effect. They don't generate future additional dollars of economic activity, as do dollars spent on transportation, schools and so forth. Every dollar invested in highway construction generates $2.50 of gross domestic product in the short term. Raising teacher wages by 10 percent is associated with a 5 percent decrease in drop-out rates. But still we shortchange our schools and other rural enterprise, and build new prisons.

The solution is to recognize that prisons have an economic logic of their own. The Pentagon budget is understood as a combination of military necessity and commercial interests. We need to understand the appeal prisons offer to struggling rural communities in the same way.

The challenge is to break the link between prison as industry and prison as crime control. The challenge is to show a way out for governors and legislators who want to reduce the burden of the corrections budget but genuinely cannot because of the immediate and legitimate trouble it causes to their constituencies.

HERE'S HOW: As our new federal leaders develop plans for stimulus and infrastructure investment, they should self-consciously direct resources to break the link between prisons and the dependent rural economies. They should create a grant program to help states transition from prison economies to more productive uses.

People are ready for this kind of change. Way back in 1999, when there were half a million fewer people in American prisons and jails, John DiIulio, one of the main movers behind the prison explosion, said we had reached a point of diminishing returns. But we can’t change course; the transition costs are too high:

• Drug treatment and prevention programs are cheaper in the long run, but they cost money up front to start.

• Cost savings to some are job losses to others. Especially when the programs go to scale and entire prisons are shut down or construction projects avoided. What should people do in the interim?

That's where federal assistance can come in. Part of the infrastructure/investment/stimulus money can be directed to cover transitional costs out of the prison economy. A few billion dollars of federal money in the short term can help states break the prison hammerlock, and free them to redirect tens of billions of state dollars to other purposes – from schools to roads to hospitals.

That's the proposal: A federal grant program that helps states manage transitional costs in the short run. Much like the federal VOI/TIS Justice Department grant program helped build prisons in the 1990s, a transition grant program can help to unbuild them in the 2000s (perhaps best administered by the Commerce Department). Let the laboratories of democracy experiment over techniques, but the federal government can help ease the transition.

It's a modest investment for the federal government that can yield substantial dividends quickly. But it needs to be consciously identified as a goal. Left alone the prison autopilot will continue to rise.

*This well-researched essay (check out some of the many embedded links for more) is reprinted from the Campaign for America's Future with the written permission of the author. Eric Lotke, an attorney, is Research Director at the Campaign for America's Future. Previously he served as Policy Director at the Justice Policy Institute, and was a Soros Foundation Senior Justice Fellow. He has authored path-breaking research on the criminal justice system, including patterns of juvenile homicide, the demographics of incarceration, and the political and financial consequences of the U.S. Census Bureau counting people in prison where they are confined rather than their original homes. More on his impressive background and good works is here.