"Narcoanalytics" order in Aurora massacre case unprecedented

News flash: There is no such thing as 'truth serum'

The next time the court appoints you to conduct a sanity evaluation, don't forget to order up a vial of truth serum.

In a court order that breaks new legal ground, the judge presiding over the trial of James Holmes ordered the Aurora Colorado massacre suspect to submit to polygraph testing and a "narcoanalytic interview" if he decides to put his mental state at issue.

Chief District Judge William Sylvester ruled that if Holmes elects to pursue an insanity defense, "medically appropriate" drugs can be administered during a forensic examination at the state hospital, presumably to determine whether the mass murder suspect is feigning insanity.

This may be the first time that a court has mandated use of so-called "truth serum" in a sanity evaluation. Indeed, courts have generally taken the opposite stance, of being gatekeepers who exclude the results of both sodium amytal and polygraph examinations from court due to their lack of reliability.

"Mythical aura of infallibility"

In a seminal case, Harper v. State (1982), the George Supreme Court ruled that the use of "truth serum" (sodium amytal) was inadmissible to establish that a murder defendant was being truthful in proclaiming his innocence. "We agree with the trial court that, until it is proven with verifiable certainty that truth serum compels a person to tell the truth, neither the results of truth-serum tests nor the opinions of experts based on the results of these tests shall be admissible in evidence," ruled the court.

Similarly, a defense-retained psychologist published an account of another case from the 1980s in which an appellate court upheld exclusion of "a sodium amytal test" to bolster an insanity defense. The defendant had walked into a nightclub and shot to death a dancer who had jilted him. Under the influence of the barbiturate, the man claimed he thought he was shooting Satan, because the victim had appeared to morph into the devil, "with pitchforks … and fire and everything." In excluding mention of the test, the trial judge expressed worry that a jury "might be overwhelmed by the use of the term 'sodium amytal' and/or 'truth serum' and attribute to it a mythical aura of infallibility."

Back in the 1930s and 1940s, when sodium amytal was all the rage, laypersons and professionals alike believed that people could not lie when under the drug's influence. It turns out that this faith was misguided. Empirical testing showed that although sodium amytal and related drugs lower inhibitions, people remain perfectly capable of lying, withholding information, and exaggerating psychiatric symptoms.

"While it is clear that these substances lower inhibitions and increase loquacity, they provide no assurance as to the truthfulness of the information obtained,” noted attorney Jason Odershoo in a Stanford Law Review analysis focusing on whether such chemicals may legally be deployed against terrorism suspects in the post-9/11 world.

Sodium amytal, or amobarbital, belongs to the same class of barbiturates as Nembutal, Seconal, and Pentothal. As psychiatrist August Piper Jr. describes the procedure, a physician intravenously administers small amounts of the drug (sometimes in tandem with other intravenous drugs like Valium or Ativan) until the subject enters a "twilight state" in which he is relaxed and drowsy but still awake. The drug causes a feeling of warmth and "closeness to the interviewer" that breaks down inhibitions, similar to the effects of acute alcohol intoxication.

However, while sodium amytal makes people more loquacious, it also disrupts memory and increases suggestibility, according to the research summarized by Piper. Reality and fantasy may become hopelessly tangled, such that people cannot distinguish between the two.

Cultural fascination with truth serum in the mid-20th century completely ignored this flawed reality. Rather, the mythology helped to shape the public's understanding of memories as robust and accurate, stored verbatim in the mind just awaiting proper retrieval and extraction. As Alison Winter writes in a 2005 essay on the cultural history of truth serum:

"This view contributed to the production of a public understanding of memory that both diverged from previous claims about memory and recall, and ran counter to the direction of current psychological research. It thus helped lay the groundwork for claims about memory permanence and scientific recall techniques later in the twentieth century."

Perils in Holmes's case

James Holmes's new look

The empirical research suggests not only that Holmes could lie while under the influence of the drugs, but also that subjecting him to a "narcoanalytic interview" could introduce false memories and render his subsequent recall of information potentially even less reliable. As with post-hypnosis statements, this could be a big problem if Holmes decides to testify on his own behalf, either at a trial or a sentencing hearing. Similarly, unreliable information recounted to evaluators during a "narcoanalytic interview" could be given too much credence, thereby jeopardizing the validity of forensic opinions in the case.

But maybe such contamination is the point, writes a commentator at the American Everyman blog. Under the alarmist headline, "Holmes to be Drugged Into Confession -- Apparently Waterboarding is Off the Table," Scott Creighton theorizes: "This 'truth serum' CIA trick will be used to convict Holmes in the court of public opinion before his Vichy lawyers plead him out to life in prison rather than taking it to trial to evaluate the evidence against him." 

Given the recent dispositions of other similar cases such as that of Arizona mass shooter Jared Loughner, maybe the conspiratorially minded blogger is not so far off the mark.

The CIA and a zombie idea

The notion of a magical drug that can ferret out malingering represents a "zombie idea," to borrow a phrase from New York Times essayist Paul Krugman. That is, it is a proposition that has been thoroughly refuted by analysis and evidence, and should be dead -- but stubbornly refuses to stay dead because it serves a political purpose or appeals to public prejudices.

Indeed, Judge Sylvester's court order harkens back to the early to mid-20th century, a time when -- as legal analyst Odershoo recounts -- "the idea of such a magical substance seemed a very real possibility, one holding profound significance for criminal investigation, foreign intelligence, and national security."

The term "truth serum" was coined in the early 1920s by an obstetrician named Robert House, who advocated the use of the barbiturate Scopolamine -- now known as a date-rape drug because of its amnestic properties but at the time administered to women during childbirth to induce a 'twilight sleep' -- in criminal interrogations. Time magazine's 1923 piece, "Medicine: The Truth-Compeller," helped popularize the idea and turned House into a one-hit wonder. In the 1930s, police use of barbiturates on witnesses and criminal suspects became more widespread. During World War II sodium pentothal was used both to treat soldiers suffering from "shell shock" and to detect malingerers trying to duck the military draft.

Then, during the Cold War, the CIA launched a feverish quest for the ultimate "truth drug." Clandestine campaigns with code names such as Projects Chatter, Third Chance, Derby Hat and Bluebird culminated in the ill-fated MK-ULTRA, in which a doctor who was administered LSD leapt to his death from a hotel room window. Revelations of this secret experimentation led to public antipathy towards the spy agency, and a demise in the use of sodium amytal and sodium pentothal as truth serums.

The drugs remain in use as anesthetics, and have also been used by psychotherapists seeking to recover repressed memories. This use has its own sordid history. In 1992, a former patient of eminent Chicago psychiatrist Jules Masserman published an account claiming that the good doctor had repeatedly raped her after administering sodium amytal, purportedly to retrieve her repressed memories of incest. The patient, Barbara Noel, was not the only woman to win a lawsuit over such nefarious abuse.

Legal use officially repudiated 

Use in law enforcement fell rapidly in the wake of a 1963 U.S. Supreme Court ruling that a confession produced under the influence of truth serum was unconstitutionally coerced, and therefore inadmissible. The case of Townsend v. Sain involved a heroin addict who was interrogated after being administered phenobarbital and hyoscine (Scopolamine) to alleviate his withdrawal symptoms. Although India and some other countries still use these drugs in criminal investigations, in the United States their use for that purpose has been "officially repudiated," according to Odershoo.

A scan of the case law suggests that this is by far the most serious case in which narcoanalysis has ever been proposed. Holmes is awaiting trial on 166 felony charges for an attack on Batman moviegoers last July that killed 12 people and wounded 58. His attorneys have mounted a heretofore unsuccessful challenge to Colorado's insanity statute and the judge's interpretation of it. Under Colorado law, the test for insanity is whether the person "who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act." Judge Sylvester has ordered that, if Holmes pleads insanity, he must divulge all information from past mental health treatment. Holmes was seen by a psychiatrist and at least two other mental health professionals at the counseling center of the University of Colorado, where he was a PhD student in neuroscience before withdrawing from school, and his treatment records may contain potentially incriminating information. Such forfeiture of doctor-patient privilege is standard in criminal law when a defendant puts his mental state at issue.

Malingering detection

Holmes's elaborate degree of planning for his attack over at least a four-month period certainly raises a distinct possibility that any claim of mental illness may be feigned. But while no method is foolproof, other techniques have a far better track record at sniffing out deception.

Judge William Sylvester

We have a constantly growing arsenal of formal tools for the assessment of various types of malingering. Especially in high-stakes cases such as this, formal tests are typically augmented by 24/7 observation in psychiatric facilities. It's pretty hard to consistently masquerade as insane when one is under around-the-clock observation by everyone from the doctors and nurses to the janitors. Even one of the most slippery malingerers of insanity, a Mafia don named Vincent "The Chin" Gigante, eventually tripped up and got nailed. 

Judge Sylvester's order is so far removed from both contemporary scientific knowledge and normal legal procedure that it has left many observers scratching their heads. Where did the judge get the wacky idea that truth serum is the way to go? Did he cook it up himself, or was it fed to him by someone who had read a few too many "true crime" books or spy thrillers? Vaughan Bell over at Mind Hacks went so far as to wonder whether "the judge has been at the narcotics himself."

NOTE: An updated version of this essay appears at my Psychology Today blog. That essay explains where Judge Sylvester got this wacky idea, and also references the landmark case of Ramona v. Ramona, in which a father successfully sued his daughter's therapists for implanting false memories of child sexual abuse during a sodium amytal interview, as well as the role of sodium amytal in the Michael Jackson case.  Thanks to psychologist Evan Harrington of the Chicago School of Professional Psychology for alerting me to the Ramona opinion, which features an interesting discussion of relevant case law.

A full set of court documents in the Holmes case is located HERE.

Loughner case shines spotlight on forced meds practices

Under what circumstances may the U.S. government drug a captive against his will?

A round of high-profile court skirmishes over the forcible medication of attempted assassination suspect Jared Loughner may help resolve legal ambiguities on this issue.

Two decades ago, in the landmark case of Washington v. Harper, the U.S. Supreme Court ruled that convicted prisoners may be forcibly medicated without a judicial hearing, if prison officials deem them dangerous to themselves or others. All that is needed is an informal administrative hearing behind the walls, a proceeding that many liken to a kangaroo court.

But pretrial detainees – who are presumed innocent – have greater rights when it comes to forced medications to restore their competency to stand trial. In the 2003 case of U.S. v. Sell, the high court specified certain conditions that must be met before someone may be forced to take medications designed to render him or her trial competent:

The Constitution permits the Government involuntarily to administer antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.

Government "end run"?

In the Loughner case, defense attorneys accused the government of trying to make an end run around these legal requirements by claiming that Loughner was dangerous. The incidents of alleged dangerousness claimed by the government included cursing and throwing a plastic chair on March 14, spitting and lunging at his lawyer, Judy Clarke, on April 4, and throwing chairs in his cell on May 28.

All of these incidents took place at the prison hospital in Springfield, Missouri where Loughner was sent after being diagnosed with paranoid schizophrenia and determined to be incompetent to stand trial. Loughner’s attorneys said they were denied access to their client, and only found out after the fact that the prison had held a hearing on June 14 and unilaterally decided to forcibly administering antipsychotic medication. Loughner is taking the oral antipsychotic Risperidone under threat that if he refuses, he will be forcibly injected with the potent drug Haldol.

In an emergency motion filed June 24 seeking to force a halt to the medications, the defense team said three isolated instances of misconduct during five months in custody are hardly sufficient to show present dangerousness. They accused prison staff of administering the antipsychotic not to reduce Loughner’s danger, but to restore him to competency, in violation of Sell. They asked that the prison be ordered to use other means of reducing Loughner’s danger if necessary, such as restraints, isolation, or minor tranquilizing drugs.

Courts must remain mindful that the dangerousness rationale and its purported justifications don’t become muddled with the attempt to administer psychotropic medications for purposes of treatment and restoration of competency…. To permit the prison to make these treatment decisions without Sell’s guidance and protections not only jeopardizes a significant liberty interest, it jeopardizes a fair trial.

They cited the landmark case of Riggins v. Nevada. In that case, the U.S. Supreme Court held that a Nevada man was deprived of a fair trial by being forcibly medicated to keep him competent during trial. The medications interfered with the content of his testimony and his ability to follow proceedings and communicate with counsel; they also impacted his outward appearance such that he no longer appeared insane, despite the fact that he was claiming insanity at the time of his crime.

"I didn’t go to medical school"

A federal judge summarily denied the defense motion, saying he did not want to second-guess the prison clinicians.

"I defer to medical doctors," U.S. District Judge Larry A. Burns said at an emergency hearing requested by the defense. "I have no reason to disagree with doctors. I didn't go to medical school."

But because the issue of whether forced drugging is permissible is a legal issue, not a clinical one, this seems like improper deference.

Luckily, the 9th Circuit Court of Appeals had more sense, issuing an emergency order July 2 to halt the medications until the issue could be fully litigated.

The appellate court pointed to its 2005 ruling in of United States v. Rivera-Guerrero, holding that forced administration of medications to pretrial detainees is of “clear constitutional importance.” In that case, the 9th Circuit ruled that in federal cases that such orders are too important even to be issued by lower magistrate judges, as opposed to district court judges.

Should pretrial detainees get greater deference?

At a hearing before a three-judge panel on Thursday, the appellate justices focused on the distinction raised by Loughner’s defense team between forcibly medicating a convicted prisoner and medicating a pretrial detainee.

“Why should someone presumptively innocent not be treated with greater personal deference” than a convicted prisoner, asked Judge Alex Kozinski, chief judge of the 9th Circuit, according to the Wall Street Journal.

"Is the goal of rendering the defendant competent different from medicating him for dangerousness?” asked Judge Kim McLane Wardlaw, touching on another area of murkiness. "Are these different goals? How do you separate them out?"

Loughner’s attorneys argue that not only will their client's fair-trial rights be affected, but he could also suffer irreparable harm from the strong drugs because they alter the chemical balance in the brain and can have serious, even fatal, side effects.

With the immediate urgency out of the way, the appellate panel did not give a date for their ruling on the medication issue.

Where is this heading?

This skirmish holds the promise of clearing up confusion over when the government may forcibly drug a captive without a formal court hearing. But, no matter which way this skirmish ends, Loughner will likely never be released from custody. His case may take one of several directions.

One likely next step is that he will be granted a Sell hearing, as his attorneys seek. If so, it seems likely that forced medications will be authorized. After all, if ever there was a compelling government interest in seeing that a defendant goes to trial, it is here. The 22-year-old Arizona man faces 49 felony charges in a Jan. 8 shooting rampage that killed six people and wounded 13, including U.S. Representative Gabrielle Giffords.

If he is given antipsychotic medications, Loughner will most likely be rendered competent to stand trial, probably within a year. The standard for competency to stand trial requires only that a defendant have a factual and rational understanding of the proceedings and an ability to rationally assist his attorney in his own defense.

Once Loughner is found mentally competent, his attorneys will likely raise the defense of insanity. In order to be found insane, his mental disorder must have prevented him from knowing that his actions were wrong at the time he committed them. If he is found insane, he will be committed to a locked psychiatric hospital.

In contrast, if he is found guilty he faces the death penalty. However, there is a good chance that attorneys will negotiate a plea deal that spares his life. This is what happened in the case of Ted Kaczynski, the Unabomber. Such a resolution has the advantage of avoiding the internationally embarrassing spectacle of the U.S. government trying and executing someone who was floridly psychotic at the time of his crimes.

There is also the remote possibility that Loughner will not be restored to competency and so will never face trial. This could happen either if his attorneys succeed in fighting forced medications (a highly unlikely event), or in the event that medications do not work to restore his sanity. In either of these circumstances, prosecutors could seek to have him civilly committed to a psychiatric hospital.

Bottom line, he will never be released back into the community.

I have made the June 24 defense motion available HERE. My previous essay on the Loughner case, “The Arizona rampage: Analyzing the analyzers,” can be found HERE. My other prior coverage of legal wrangling in this case is HERE.

Court roundup: Lots of action this week

In addition to the high-profile competency hearing in Iowa that I blogged about yesterday, this week featured lots of other legal happenings of relevance to forensic psychology. Issues included:

• The Zoloft defense
• Repressed memory
• Transsexual prisoners
• Child pornography sentencing

Here are some highlights, with links so you can read more if you are interested:

"Zoloft made me do it"

In a New York trial that is drawing national attention, a defendant is blaming a 2006 attack on his girlfriend on symptoms of withdrawal from the antidepressant Zoloft.

To bolster his defense, Brandon Hampson is expected to call Dr. Stefan Kruszewski, a Harvard Medical School graduate. Dr. Kruszewski testified at a pretrial hearing that Zoloft can cause "significant side effects," including agitation, aggression and grandiosity.

It's going to be yet another case of dueling experts: An associate clinical professor at Harvard is expected to testify that "Kruszewski's opinion is not generally accepted by experts in the field and was based on flawed research methods," according to an article by Vesselin Mitev in the New York Law Journal. In an unusual payment arrangement, Pfizer (the drug's manufacturer) will compensate Dr. Douglas Jacobs $7,500 for his testimony.

The trial harkens back to a rash of cases in which violence and suicidality were attributed to the effects of Prozac. Severe side effects from withdrawal from other antidepressants such as Paxil are well documented.

Transsexual prisoner rights

In a history-making ruling in the United Kingdom, a preoperative male-to-female transsexual has won the right to be housed in a women's prison. The prisoner, known only as "A," will have to be housed in segregation. "A" is serving a life sentence for killing a boyfriend and trying to rape a woman.

Under the ruling by a judge on London's High Court, holding "A" in a men's prison is a breah of human rights under the European Convention on Human Rights.

The Telegraph of UK has the story. My March 2008 post on transgender prisoners is here.

Repressed memories under assault

The infamous priest Paul Shanley of Boston, one of the central figures in the clergy sex abuse scandal, is back in court challenging his conviction by claiming that theories of repressed memories are not reliable or valid.

Shanley was convicted after a 27-year-old man claimed the priest had regularly raped him when he was just six years old, but that he blocked out the memories for two decades until he saw media reports about the clergy scandal unfolding in Boston.

Reports Denise Lavoie of the Associated Press:

Shanley's lawyer, Robert Shaw Jr., argues that Shanley deserves a new trial because the jury relied on misleading, 'junk science' testimony about repressed memories by prosecution witnesses. 'His conviction rests upon a theory that is false, that has not been shown to exist and has been rejected by the scientific community,' Shaw said. 'They needed repressed memories to normalize for the jury what was otherwise an extraordinary assertion - that he could be completely oblivious that this ever happened and then remember it 20 years later."

The appeal, to be heard by Massachusetts' high court, "is being closely watched by experts on both sides of the issue," Lavoie reports. "Nearly 100 scientists, psychiatrists and researchers have signed a friend-of-the court brief denouncing the theory of repressed-recovered memories. Another group has submitted a brief supporting the theory."

Judges protest child porn sentencing

Federal judges testified before a U.S. Sentencing Commission in Chicago about severe mandatory sentences for child pornography possession. Astonishingly, the punishment for watching a single video can be higher than that for raping a child repeatedly over many years, one judge testified.

The Wall Street Journal's Law Blog has coverage.

Embitterment disorder: The latest from DSM-V

My regular readers know all about the DSM-V revision controversies (click HERE for more), and the efforts of some psychiatrists to make the manual ever-more-expansive, until just about nearly every human condition becomes a formal pathology.

But, really, folks. Post-traumatic embitterment disorder? Isn't that going a bit far?

The L.A. Times' Shari Roan has the story of how some psychiatrists want to create a formal label for embittered people bent on revenge. We all know them; now we'll have a handy-dandy acronym -- PTED -- by which to refer to them.

The article is part of Ms. Roan's ongoing coverage of the heated DSM debates at the American Psychiatric Convention in San Francisco. Today's coverage is here.

MORE DSM NEWS: A letter in the current New England Journal of Medicine on the pharmaceutical influence over the DSM-V development process, and the resultant "crisis of credibility" in psychiatry, is online HERE. The authors are Lisa Cosgrove, Ph.D., of the University of Massachusetts; Harold J. Bursztajn, M.D., of Harvard Medical School; and Sheldon Krimsky, Ph.D., of Tufts University.

Who will write the next DSM?

Would you believe: Pfizer, Eli Lilly, Wyeth, Merck, AstraZeneca and Bristol-Myers Squibb?

Or, at least, those are some of the BigPharma corporations with whom members of the task force charged with creating the 5th Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders have contracts.

It shouldn't come as a surprise. But it ought to alarm the public, given BigPharma's enormous and growing influence in so many spheres of public life all around the world.

More than half of the experts involved in the previous edition of the psychiatric bible also had monetary relationships with drug makers, according to a Tufts University study. The percentage was up to 100 percent for experts working on certain severe mental illnesses, such as schizophrenia. (The New York Times story on that 2006 research is here.)

A just-published book, The Medicalization of Society: On the Transformation of Human Conditions into Treatable Disorders, has more on this construction of difference as illness. Trends that author Peter Conrad notes include the medicalization of "male" problems such as baldness and sexual impotence, and the pathologizing of children's behavior and appearance (short kids now have idiopathic short stature which requires synthetic human growth hormone).

Another new book, The Rise of Viagra, further documents the pathologizing of sexual variation, including an effort by BigPharma's spin doctors to create public hysteria and a new market for medicines to treat Female Sexual Dysfunction."

Meanwhile, as I've blogged about elsewhere, the sex offender industry is lobbying for new diagnoses to medicalize illegal sexual conduct, including "hebephilia" for men who are sexually attracted to teens, and "Paraphilia Not Otherwise Specified-Nonconsent" for men who rape.

Look for all these, and more, as possible candidates for the new and expanded DSM-V. Each edition of the DSM contains more diagnoses than its predecessor, and each diagnosis is supposedly treatable with meds. DSM-I (1952) listed 106 mental disorders, DSM-II (1968) had 185, DSM-III (1980) had 265, and DSM-IV (1994) has 357. That's an average of about 84 new diagnoses per edition, so the DSM-V should have 440 or more diagnoses.

Hopefully, this week's blog post by New York Times health writer Tara Parker-Pope about the conflict of interest signals that the public will be kept informed.

The consumer watchdog group Integrity in Science, a project of the Center for Science in the Public Interest, is also following the scent of money. See my Amazon book list, Critical Perspectives on Psychiatry, for other books on the DSM and the construction of illness.

Utah court: OK to forcibly medicate accused kidnapper

One of two defendants in the highly publicized Elizabeth Smart kidnapping case in Utah can be forcibly medicated in an attempt to make her competent to stand trial, the Utah Supreme Court has ruled.

Wanda Eileen Barzee has been at the Utah State Hospital for more than three years without making any progress toward competency. Claiming she is the "mother of Zion" and receives messages from God through her television, she shuns treatment and refuses medication.

Friday's ruling upheld an opinion by a district court judge last year that administering antipsychotic medication would be in Barzee's best medical interest.

A key bone of contention is the expected efficacy of antipsychotic medications. State doctors claim that antipsychotic drugs have a 70% chance of making Barzee competent. Defense medical experts counter that the odds were closer to 20%.

Under Sell v. United States, for a defendant to be forcibly medicated to restore competency, a court must find that important government interests are at stake, involuntary medication will significantly further those interests by being "substantially likely" to restore the defendant's competency, the medication is substantially unlikely to have negative side effects, and the medication is medically appropriate.

Barzee and Brian David Mitchell are awaiting trial in the kidnapping and sexual assault of then-14-year-old Elizabeth in 2002. Police say Mitchell, a self-proclaimed prophet, planned to make Elizabeth one of his wives.

The Salt Lake City Tribune and the Deseret Morning News have coverage; the high court opinion is available online here.

Postscript: Judge Judith Atherton's 2005 competency decision in codefendant Brian David Mitchell's case, a thoughtful analysis of competency as it pertains to religiosity, is online HERE.

9th Circuit upholds lifetime supervision of child pornographer

The Ninth Circuit Court of Appeals yesterday upheld lifetime supervision of a child pornographer after he finishes serving his prison term.

Gordon Cope, 58, was caught with computer images and videos depicting child pornography during an undercover FBI investigation of Internet chat rooms. He pleaded guilty to a single federal charge of possession of child pornography and was sentenced to 10 years in prison.

The appellate court held that lifetime supervision was "reasonable" and Constitutionally permissible in light of the California man's previous conviction in 1981 for attempted sexual assault on a minor.

Cope also appealed special sentencing provisions requiring that he comply with forced medications, penile plethysmography, Abel testing, and polygraph testing as part of mandatory sex offender treatment. The appellate court held that such requirements are permissible, but that Cope should have been provided with adequate notice and more explanation of why these special conditions were needed. The case was remanded back to the trial court for such proceedings.

Yesterday's ruling is available online.

Book Recommendation: The Center Cannot Hold

"The Little Engine that Could"

If you're deciding what to read next, I strongly recommend Elyn R. Saks' The Center Cannot Hold: My Journey Through Madness. I guarantee you won't forget it soon.

Saks is an acclaimed professor of law and psychiatry. She also struggles with severe symptoms of schizophrenia. She risked her reputation in academia in order to give hope to others like herself, and to counter the negative stereotypes about mental illness held by both the general public and mental health professionals:

"I wanted to dispel the myths ... that people with a significant thought disorder cannot live independently, cannot work at challenging jobs, cannot have true friendships, cannot be in meaningful, sexually satisfying love relationships, cannot lead lives of intellectual, spiritual, or emotional richness."

The topic is inherently compelling, and Saks masterfully describes what it is like to be tormented by inner demons, to be forcibly restrained on a hospital bed, to require medications that alter one's mental state and can cause horrific, irreversible side effects. She articulately describes her years of talk therapy, in which she came to understand the functional underpinnings of her psychotic thoughts, for example in warding off feelings that would have been consciously threatening.

I enjoyed her dry humor in highlighting the condescension and absurdities of the mental health system. In one case she reviewed during a legal internship, the patient was restrained because he refused to get out of bed. In another case, a young man was deemed delusional because he continually spoke with "imaginary lawyers" - who turned out to be none other than Saks and her colleague.

For years, in order to excel, Saks had to lead a double life. Swirling around her, constantly threatening, was the stigma of mental illness. While writing an academic paper on restraints, she asked a professor, "Wouldn't you agree that being restrained is incredibly degrading, not to mention painful and frightening?" With a kind and knowing look, the professor responded: "These people are different from you and me. It doesn't affect them the way it would affect us."

This book is especially important reading for mental health professionals in the United States, where medication reigns supreme (it has become practically taboo to recommend psychotherapy for severe psychosis, despite ongoing research establishing its efficacy) and coercion often trumps choice. Saks contrasts her experience of being hospitalized in the United States with her experience in England, where restraints have not been in widespread use for more than 200 years. In doing so, she gives us a deeper appreciation of the trauma induced by coercive and sometimes brutal treatment.

"The Little Engine that Could" is what her close friend Steve Behnke calls her, referring to her indomitable spirit even in the face of hospital clinicians' dire predictions about her future.

I highly recommend this courageous and brilliant memoir.

A 45-minute video of Saks' talk at this year's American Psychological Association convention is available online at her personal website. Other books by Saks include Refusing Care: Forced Treatment and the Rights of the Mentally Ill (2002) and Jekyll on Trial: Multiple Personality Disorder and the Criminal Law (1997).

More bad news from California: Jails designated as "treatment facilities"; mental health courts vetoed

Wouldn't it be great if, instead of supporting more prisons, California's governor signed legislation authorizing mental health treatment that might reduce the need for prisons in the future?

Sadly, that's just a fantasy.

After my post yesterday about Gov. Schwarzenegger vetoing three criminal justice reform measures, an alert subscriber notified me about two other forensic treatment-related decisions in which the governor came down on the wrong side:

SB 568: Jails designated as "treatment facilities"

With state mental hospitals crammed full of civilly committed sex offenders and the like, there's no longer room to treat mentally ill defendants who are too crazy to have their day in court. So, with the backing of the state's sheriff's departments, Gov. Schwarzenegger signed emergency legislation allowing the jails to forcibly medicate defendants who are incompetent to stand trial.

As I explained in my original post on this bill back in June, some forensic psychologists are concerned about this law. Jail psychiatric services are minimal; prisoners with severe mental disorders will be denied the type of around-the-clock services in a therapeutic setting that they may need to be restored to trial competency.

California's move toward minimizing treatment services may encourage other states to do the same. foisting additional fiscal burdens onto cash-strapped county governments. It's all part of the trickle-down effect of the criminalization of the mentally ill that began in the 1970s with the defunding of community mental health programs and escalated with the prison boom of the 1980s and 1990s.

SB 851: Mental health courts nixed

Gov. Schwarzenegger also placed himself on the wrong side of the national mental health court movement by vetoing a bill that would have expanded such courts in California. In vetoing SB 851, he cited the fiscal costs, estimated by the Department of Corrections at $14 million per year. He also claimed that mental health courts would "allow people who have committed crimes to avoid punishment completely because of a mental health issue." (Never mind that defendants often find the stringent treatment requirements of such courts more onerous than just doing their time.)

Let's look at some numbers. California's prison budget this year was a whopping $10 billion. That does not include another $7.4 billion just authorized for 40,000 new prison beds, or the estimated $330 million per year in interest on those construction bonds. Indeed, California is spending so much on keeping people locked up that in five years, annual prison spending will shoot past higher education expenditures.

If my math is correct, the annual budget for the mental health courts would be only about one-tenth of one percent of this year's prison operating budget.

If Gov. Schwarzenegger was interested in reducing recidivism, as he claims, he would be willing to expend that measly sum to provide mentally ill prisoners with the treatment that might rehabilitate them and allow them to lead productive lives. Keeping the mentally ill out of prison is not only humanitarian, but would reduce the need for new prison beds, providing big cost savings to us tax-paying citizens in the future.

But that's assuming that the governor was willing to stand up to the correctional industry, the state's most powerful lobby. No California governor has done that and survived.

Hat tip to Robert Canning for alerting me to these developments.

Should jails be designated "treatment facilities"?

When criminal defendants are found incompetent to stand trial, they go to state hospitals for competency restoration treatment. But hospitals around the country have run out of beds, forcing psychotic defendants to linger in county jails for many months.

In response to this crisis, California is proposing to designate county jails as "treatment facilities" that can provide pretrial defendants with competency restoration treatment for up to six months.

Under Senate Bill 568, jails will gain the authority to forcibly medicate incompetent defendants. (This is a complicated area of law governed by the 2002 U.S. Supreme Court case of U.S. v. Sell. For background, see: www.jaapl.org/cgi/reprint/32/1/83.pdf.)

Forensic psychologists are voicing concern about this move.

First of all, jails are unlikely to do much more than administer antipsychotic medications, in some cases without proper legal review and oversight. Jail psychiatric services tend to be minimal and underfunded. They are not set up to provide effective competency restoration training.

A second concern is that the jail environment is not conducive to mental health. Prisoners with severe (and often complex) mental disorders need around-the-clock services from highly trained professionals in a therapeutic setting in order to become competent to stand trial.

The bill, backed by the sheriff’s departments that run county jails, appears to be in response to a recent Sacramento court ruling that incompetent defendants must be transferred quickly to state hospitals for treatment. A competing bill, Assembly Bill 1121, would require that defendants be transferred to state hospitals within 14 days of being found incompetent.

If SB 568 passes, other states with similar crises will likely try this solution as well, foisting their fiscal burdens onto cash-strapped county governments. It’s all part of the trickle-down effect of the criminalization of the mentally ill that began in the 1970s with the defunding of community mental health programs and escalated with the prison boom of the 1980s and 1990s.

Thanks to Robert D. Canning, Ph.D., Paul G. Mattiuzzi, Ph.D., and Philip J. Davis, Ph.D. for their contributions to this analysis.

Senate Bill 568 is available at: http://tinyurl.com/37rl53

Assembly Bill 1121 is available at: http://tinyurl.com/39cn6