Psychologist sues California prisons over anti-LGBT harassment

Housing unit at Vacaville

Prisons are not known as bastions of healing energy. One of the challenges faced by prison clinicians in the violent and hypermasculine culture of prison is how to uphold their professional ethics when they witness abuse of prisoners by staff. Psychologists may feel internally conflicted, but they rarely file formal complaints that might jeopardize their careers or even their personal safety.

So a lawsuit brought by a California psychologist against the Department of Corrections for alleged harassment of sexual minority prisoners is both rare and potentially groundbreaking.

Lori Jespersen, who identifies as “an openly genderqueer lesbian,” states that she was harassed and ostracized after she began blowing the whistle on rampant mistreatment of transgender and gay prisoners at the California Medical Facility at Vacaville.

Examples of prisoner abuse alleged in her lawsuit, filed this week in the U.S. District Court for the Eastern District of California, included an instance in which three prison employees “outed” one of Dr. Jespersen's transgender patients on Facebook, providing the prisoner's name and location, identifying her as a mental health patient, and referring to her as “he/she” and “that thing.”

In another alleged incident, a prison employee left a door unlocked while a gay prisoner of color was showering, enabling another prisoner who had been assaulting sexual minority prisoners to enter the shower and assault him. When Dr. Jespersen filed a report under the Prison Rape Elimination Act (PREA), she says it was never investigated. 

Dr. Jespersen alleges that due to her efforts to call attention to the abuse of LBGT prisoners, she was subjected to constant name-calling and threats of violence, including being locked alone on a housing unit with dangerous rapists. She stated the harassment caused her anxiety, depression, sleep disturbance and weight gain, and that she now “lives in constant fear of violence and harassment at work and at home.”

Transgender prisoner at Vacaville

Dr. Jespersen, 41, went to work for the California Department of Corrections and Rehabilitation (CDCR) in 2008, the same year she became licensed. The following year, she transferred to the Medical Facility at Vacaville, which has specialized programming for transgender prisoners.  

No safe haven?

If true, her allegations are especially disturbing in that Vacaville has long been regarded as a haven for transgender prisoners. In 1999, during the height of the AIDS epidemic, it became one of only two prisons in the country with specialized medical services for trans prisoners, the majority of whom were infected with HIV.

Dr. Jespersen’s attorney, Jennifer Orthwein, a former forensic psychologist whose practice focuses on gender and sexual orientation discrimination, said that the main goal of the lawsuit is to bring attention to the issue of systemic discrimination, in order to compel a cultural change.

“This case really has the potential to shine a spotlight on what is the key barrier to making progress to protecting vulnerable inmates in these facilities,” echoed Shannon Minter, the legal director of the National Center for Lesbian Rights, in an interview with public radio’s The California Report, “and that is this prison culture of silence and retaliation.”  

Trans prisoner at CDCR, UC Irvine study

Transgender prisoners are more than 13 times more likely to be sexually assaulted than the general prison population, according to a 2009 study by hate crimes scholar Valerie Jenness at UC Irvine’s Department of Criminology. About 59 percent of transgender prisoners in California reported being sexually assaulted, compared to less than 5 percent of other prisoners. 

Allegations of prisoner mistreatment are not new for California’s massive prison system, which has been under federal oversight for more than a decade due to chronic shortcomings in the treatment of mentally ill and low-functioning prisoners.

The lawsuit also comes at the same moment as a major power shift in the direction of the California Medical Facility. Under the state’s 2017-2018 budget, the intensive 24-hour inpatient psychiatric program at Vacaville and two other prisons has been shifted from the Department of State Hospitals to the Department of Corrections, which has been awarded an extra $254 million and nearly 2,000 new jobs to run them. The shift has caused consternation among mental health personnel, who worry about the quality of psychiatric care and the potential for increased suicides under CDCR management.

Prison psychologist awarded $1 million over racial bias

Although it is rare for prison psychologists to engage in whistle-blowing or file lawsuits, the last time such a case went to trial, the jury awarded the psychologist $945,480 in damages for racial discrimination, a judgment that was upheld unanimously on appeal.  

That case was especially disturbing, in that by all accounts Terralyn Renfro was a highly dedicated clinician who went above and beyond her formal duties in her desire to rehabilitate the men in the California prisons where she worked as a contract psychologist. Indeed, it was her very zeal that apparently cost her her career.

According to testimony at her trial, her supervisors did not approve of her attempts to facilitate prisoner self-help groups. They were especially upset that she had set up a self-help library, which became very popular with prisoners at Mule Creek State Prison in Ione.

The manner of Dr. Renfro's firing was humiliating. Without warning, a prison bureaucrat walked up to her one day and handed her a termination notice giving her 75 minutes to leave the prison or be physically ousted by guards. He stayed by her side and escorted her out the gates and to her car. A “DO NOT HIRE” note was placed in her file, so she was repeatedly rejected for jobs at other state prisons. No one ever explained who placed the note, or why.

The Third District appellate court upheld the jury’s nearly $1 million verdict against the prison system for racial discrimination in the firing. Dr. Renfro was the only African American psychologist at Mule Creek Prison at the time.

“Discrimination does not always present as in a scene from To Kill a Mockingbird or The Birth of a Nation,” the appellate court noted. “Even the most racially intolerant manager will often appreciate the need for circumspection, so smoking guns are rarely found.... [T]he jury drew a reasonable inference of discrimination from a pattern of deception, obfuscation, and mistreatment.”

But from the information in the record, the larger impetus for Dr. Renfro’s firing was her zealousness in prioritizing the interests of the prisoners in her care over those of the bureaucrats to whom she reported. The same behavior, perhaps, of which Dr. Jespersen may ultimately be deemed guilty.

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The complaint in Jespersen vs. CDCR is online HERE.  The appellate opinion in Renfro vs. CDCR is HERE.

Hebephilia flunks Frye test

Photo credit: NY Law Journal

In a strongly worded rejection of hebephilia, a New York judge has ruled that the controversial diagnosis cannot be used in legal proceedings because of “overwhelming opposition” to its validity among the psychiatric community.

Judge Daniel Conviser heard testimony from six experts (including this blogger) and reviewed more than 100 scholarly articles before issuing a long-awaited opinion this week in the case of “Ralph P.,” a 72-year-old man convicted in 2001 of a sex offense against a 14-year-old boy. The state of New York is seeking to civilly detain Ralph P. on the basis of alleged future dangerousness.

State psychologist Joel Lord had initially labeled Ralph P. with the unique diagnosis of sexual attraction to “sexually inexperienced young teenage males,” but later changed his diagnosis to hebephilia, a condition proposed but rejected for the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

Under the Frye evidentiary standard, designed to bar novel scientific methods that are not sufficiently validated, a construct must be “generally accepted” by the relevant scientific community before it can be relied upon in legal proceedings.

Judge Conviser found that hebephilia (generally defined as sexual attraction to children in the early stages of puberty, or around the ages of 11 or 12 to 14) is being promoted by a tiny fringe of researchers and in practice is used almost exclusively as a tool to civilly commit convicted sex offenders. Under U.S. Supreme Court rulings, such offenders must have a mental disorder in order to qualify for prolonged detention after they have served their prison terms.

“It is not an accident, as Dr. Franklin outlined, that hebephilia became a prominent diagnosis only with the advent of SVP laws,” the judge wrote in his 75-page opinion. “It is also not a coincidence that each of the three expert witnesses who testified for the State at the instant hearing either work or formerly worked for state [Sexually Violent Predator] programs.”

Conviser’s ruling analyzed both the practical problems in reliably identifying hebephilia and the political controversies swirling around it: Without any standardized criteria, “clinicians are free to assign hebephilia diagnoses in widely disparate ways, many of which are just plainly wrong.” Using age as a proxy for pubertal stage is no guarantee of reliability because pubertal onset is highly variable. Ultimately, he concluded, whether erotic interest in pubescent minors is deemed "pathological" is more about moral values than science.

APA secrecy faulted

The judge was harshly critical of the American Psychiatric Association for its refusal to publicly explain why it rejected hebephilia from the DSM-5 in 2013. The diagnosis was aggressively promoted by a Canadian psychologist, Ray Blanchard, and fellow researchers from Canada’s Centre for Addiction and Mental Health (CAMH), who dominated the DSM-5 subcommittee on paraphilias.

Blanchard rewrote the DSM section on paraphilias (sexual deviances) in a broad way such that virtually all sexual interests other than a narrowly defined “normophilic” pattern became pathological. However, the APA rejected Blanchard’s proposal to expand pedophilia to pathologize adult sexual attractions to pubescent-aged (rather than just prepubescent) minors.

“The proposal was apparently rejected because it was greeted with a firestorm of criticism by the sex offender psychiatric community, which was communicated to the APA board…. As best as this Court can surmise, the APA rejected the pedohebephilia proposal because it was opposed by most of the psychiatrists and psychologists who worked in the field.”

“[S]trikingly,” wrote Judge Conviser, “the process through which proposed new diagnoses are approved or rejected is shrouded in a degree of secrecy which would be the envy of many totalitarian regimes…. With respect to hebephilia, the APA board’s actions will have a direct impact on both public safety and the fundamental liberty interests of hundreds or thousands of people.”

The APA forces those involved in the DSM revision process to sign nondisclosure contracts. That policy came in the wake of a series of published exposes – including Christopher Lane’s Shyness: How Normal Behavior Became a Sickness, Jonathan Metzl's The Protest Psychosis, and Ethan Watters’s Crazy Like Us (to name just a few of my favorites) -- that embarrassed the world’s largest psychiatric organization by shining a light inside the often subjective and political process of diagnosis creation and expansion.

“Overwhelming” opposition

Blanchard and his CAMH colleagues’ 2009 proposal to expand pedophilia into a new “pedohebephilia” diagnosis in the DSM-5 spawned a massive outcry, which mushroomed into at least five dozen published critiques.

In preparation for my testimony at this and similar Frye hearings in New York, I expanded on my 2010 article in Behavioral Sciences and the Law tracing hebephilia’s rise from obscurity, to produce an updated chart containing all 116 articles addressing the construct. If one tallies only those articles that take a position (pro or con) on hebephilia and are not written by members of the CAMH team, fully 83% are critical as compared to only 17% that are favorable. This, Judge Conviser noted, is strong evidence against the government’s position that hebephilia is “generally accepted” by the relevant scientific communities.

“The thrust of the evidence at the hearing was … clear: there was overwhelming opposition to the pedohebephilia proposal in the sex offender psychiatric community,” he wrote. “There is overwhelming opposition to the hebephilia diagnosis today.”

Courts scrutinizing nouveau diagnoses

With the APA’s rejection of hebephilia as well as two other proposed sexual disorders (one for preferential rape and another for hypersexuality), government evaluators continue to shoehorn novel, case-specific diagnostic labels into the catchall DSM-5 category of “other specified paraphilic disorder” (OSPD) as a basis for civil commitment.

Under a 2012 New York appellate court ruling in the case of State v. Shannon S., upon a defense request, a Frye evidentiary hearing must be held on any such attempt to introduce an OSPD diagnosis into a Sexually Violent Predator (SVP) case. That has triggered a spate of Frye hearings in the Empire State, affording greater scrutiny and judicial gatekeeping of scientifically questionable diagnoses.

Ironically, although the Shannon S. court upheld hebephilia by a narrow 4-3 margin, Shannon S. would not have met diagnostic criteria under the narrower definitions presented by the government experts at Ralph P.’s Frye hearing four years later, because his victims were older than 14.

“Assuming hebephilia is a legitimate diagnosis, Shannon S., like many SVP respondents, was apparently diagnosed with the condition not based on evidence he was preferentially attracted to underdeveloped pubescent body types but because he offended against underage victims,” Judge Conviser observed in his detailed summary of prior New York cases.

The three dissenting judges in Shannon S. were adamant that hebephilia was “absurd,” and an example of “junk science,” deployed with the pretextual goal of “locking up dangerous criminals” who had committed statutory rapes.

The opening of the Frye floodgates has led to a flurry of sometimes-competing opinions.

In 2015, in State v. Mercado, Judge Dineen Riviezzo ruled against “OSPD--sexually attracted to teenage females” as a legitimate diagnosis. However, she declined to rule on the general acceptance of hebephilia because it was not specifically diagnosed in that case.

A year later, relying on similar evidence, a judge in upstate New York ruled in State v. Paul V. that hebephilia was generally accepted, in large part because it was backed by the APA’s paraphilias sub-workgroup. Judge Conviser found that reasoning unpersuasive, pointing out that the subworkgroup was dominated by the very same CAMH researchers who were hebephilia’s primary advocates; it was therefore “not a valid proxy" for the scientific community.

In July, another court rejected both hebephilia and “OSPD--underage males” as valid diagnoses, in the cases of Hugh H. and Martello A. The court noted that hebephilia is inconsistently defined, was rejected for the DSM-5, and is primarily advanced by one research group; further, attraction to pubescent minors is not intrinsically abnormal.

Cynthia Calkins, a professor at John Jay College of Criminal Justice in New York, echoed those points in her testimony at Ralph P.'s hearing. She noted that in the United States, the main psychologists advocating for hebephilia are government-retained evaluators in SVP cases, who make up only perhaps one-fourth of one percent of psychologists and psychiatrists in the U.S. and so cannot be a proxy for “general acceptance” in the scientific community.

The government’s choice of experts illustrated Calkins’ point: Testifying for the government were Christopher Kunkle, director of New York’s civil management program for sex offenders, David Thornton of Wisconsin’s civil commitment center, and Robin Wilson, formerly of Florida’s civil commitment center and a protégé of Ray Blanchard’s.

The third expert called by Ralph P.’s attorneys was Charles Ewing, a distinguished professor at the University at Buffalo Law School who is both an attorney and a forensic psychologist and has authored several books on forensic psychology.

Defense attorneys Maura Klugman and Jessica Botticelli of Mental Hygiene Legal Service represented Ralph P. Assistant New York Attorney General Elaine Yacyshyn represented the state.

Ultimately, New York State’s highest court may have to weigh in to resolve once and for all the question of whether novel psychiatric diagnoses like hebephilia are admissible for civil commitment purposes. But that could be years down the road.

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The ruling in State v. Ralph P. is HERE. The subsequent order of Sept. 28, 2016 granting Ralph P.'s motion for summary judgment and dismissal of the civil commitment petition is HERE.

A New York Law Journal report on the case, "judge Rejects Diagnosis for Civil Confinement," is HERE.

A search of this blog site using the term hebephilia will produce my reports on this construct dating all the way back to my original post from 2007, "Invasion of the Hebephile Hunters."

The Trauma Myth, Revisited

The Trauma Myth may be one of the most misunderstood books of the past decade. Based on its regrettable title, pedophiles erroneously believe it minimizes the harm of child sexual abuse; in the opposite corner, some misguided anti-abuse crusaders have demonized the Harvard-trained author as a pedophile apologist. As guest blogger Jon Brandt explains in this review -- first published in the Summer 2016 issue of The Forum, the newsletter of the Association for the Treatment of Sexual Abusers (ATSA) -- both fans and detractors of Susan Clancy have gotten the courageous researcher all wrong.

The Trauma Myth

by Susan Clancy

Book review by Jon Brandt, MSW, LICSW*

As a former child protection social worker, and now working with both victims and offenders, I was drawn to The Trauma Myth because of both the title, and subtitle: “The Truth About the Sexual Abuse of Children – and its aftermath.” When I first read Susan Clancy’s book, in 2010, nearly every page confirmed my professional experience with victims. I’m offering this review some six years after the book's publication because I believe most experienced professionals will agree that Clancy’s thesis is not just well-researched, but articulate and luminously persuasive.

Dr. Clancy is a Harvard-trained experimental psychologist. Her expertise is not in the field of sexual abuse; it is in the field of memory. This information is important in understanding how Clancy endeavored to interview adults who had been victims of childhood sexual abuse (CSA) – in part, to further understand the role of memory in how adults recalled traumatic experiences. Clancy acknowledges that her career had a rocky start – not only investigating adult memories of childhood sexual abuse, but to understand why some people seemed to believe in alien abductions. Clancy writes about the challenge of having to reconcile her research with two deep concerns: first, she had to abandon some of what she had been taught about the ‘trauma’ of sexual abuse, and second, she had to try to save her reputation and career.

After Clancy interviewed more than 200 Boston-area adult victims of CSA, she came to recognize that most victims’ memories were consistent with previous research – the vast majority of victims knew, liked, and/or trusted their abusers. And she confirmed another finding – that most CSA was tricked and manipulated, not the product of threats, force, pain, or injury. Even young children intuitively understand that when an older person inflicts pain, injury, or fear (elements of trauma), something is very wrong. But when sexual violations occur in the absence of violence and in the presence of trust, most victims reported being confused by the encounter, rather than traumatized. Less than one in ten adults that Clancy interviewed described being sexually abused as “traumatic.” Clancy considered that perhaps CSA is so traumatic that adults had repressed their memories, but that hypothesis ran counter to research that: (1) discredits repressed memories and (2) indicates that the more powerful life experiences are to an individual, the more the events are both strongly embedded and vividly recalled. Clancy goes on to articulately detail how children are indeed harmed by sexual abuse – in the aftermath.

Dr. Clancy has expressed some regret about the title of her book, but does not back-peddle from her findings – that CSA is not universally traumatic. She asserts that many professionals don’t really understand how, why, and when CSA is harmful, and imputing trauma when it’s not present might actually introduce secondary harm. Clancy expresses that children clearly do not have the developmental capabilities to understand interpersonal sex, that acceding to sexual touching is not the same as sexual consent, and that naïve cooperation is not complicity. In the absence of veritable trauma, the harm of CSA comes not from sexual touching, per se, but from relationship violations – a sense of betrayal, shame, and misplaced blame. Clancy explains that as a CSA victim begins to sexually and socially mature, and comes to understand what motivated their abuser, they feel duped and exploited. As victims try to reconcile how and why someone of trust would use them for sexual purposes, the ‘harm’ evolves. Clancy’s message is clear: if we don’t talk to kids about sex, we leave them vulnerable; if we don’t listen to kids who have been sexually abused, we re-victimize them; when we truly listen to child victims, we empower them to guide their own recovery – that helps to turn victims into survivors.

Dr. Clancy uses the controversies around her book to illustrate how difficult it is for professionals to navigate the nuances of CSA, and that it is incumbent on adults to protect children until they are mature enough to navigate the world of interpersonal sex. Clancy acknowledges that she was perhaps naïve in believing that rigorous science would protect the integrity of her research. What she was not prepared for was that CSA is virtually unspeakable – so abhorrent that, even among the educated, it was difficult to separate legitimate research from prevailing public opinion, or simply the politics of sex.

In 1998, psychologist, Bruce Rind and colleagues published an article on CSA in the American Psychological Association journal Psychological Bulletin. It was peer-reviewed, sound research, but so contrary to conventional beliefs of CSA that it resulted in an Act of Congress condemning his work. In 1981, Professor Alfred Kadushin (one of my graduate school advisors at the University of Wisconsin) published a book titled Child Abuse, an Interactional Event. He spent the rest of his career explaining that he was not blaming children for being abused.

The truth is, there has never been any time in history that sex could be separated from politics, or that science hasn’t waged an uphill battle against public opinion. The Socratic Method, or the applications of logic and scrutiny to understanding complex problems, is a predecessor of the Scientific Method, and one of the most important legacies of Socrates. It is ironic that Socrates could not survive the politics of his own time – he was condemned to death as a heretic. Nearly two millennia later, perhaps Galileo had taken note of the fate of Socrates. When Galileo found himself charged with heresy, to avoid being executed, he recanted his theory of the heliocentric solar system, and lived out his life under house arrest. It took another 350 years for the Catholic Church to acknowledge that Galileo had been right all along.

Susan Clancy wasn’t charged with heresy, at least not formally, but by her own admission, after a firestorm of controversy over The Trauma Myth, she fled the US to work in Nicaragua for several years. If Clancy was flattered by a favorable book review in the NY Times, she must have been horrified by a book review by NAMBLA [the North American Man/Boy Love Association]. Clancy’s book, and her story, are a testimony to professional courage in the face of deeply held, widespread, long-standing beliefs about the sexual abuse of children. Apparently, Clancy no longer writes or teaches about sexual abuse, based on a Google search, but she is still professionally active in research and education about the functions of memory.

There is so much right about The Trauma Myth that I am hesitant to be critical, but I think Clancy missed the mark on a few points. In my experience, some victims of CSA have the internal constitution to avoid both the trauma and the harm of sexual abuse. Other victims seem to have the resiliency and tenacity, with or without professional help, to truly earn the moniker of ‘survivor.’ Clancy views CSA as dichotomous – if there is a victim, there is an offender, who must be punished. If Clancy understood offending with the same verve, complexity, and nuances with which she understands victims, I think she would forgo the black and white, victim-offender paradigm in favor of the complex dynamics of offending, and the range of uniquely tailored interventions that serve victims, offenders, and their families. With a focus on the etiology and aftermath of CSA, it might not be obvious that Clancy was also advocating for both more prevention and better public policies.

The Trauma Myth is well researched, with endnotes in APA format. With just over 200 pages, and still professionally sound, it is easy reading. Most individuals are likely to approach the book with the same skepticism with which Clancy pursued her research. In the end, I think most professionals are likely to agree with many conclusions that Dr. Clancy found unassailable: that the popular, one-dimensional understanding of ‘trauma’ caused by child sexual abuse is largely a myth – a vestige of the 20th century.

*Jon Brandt is a clinical social worker who specializes in the evaluation, treatment and supervision to sexual offenders. His previous guest posts have reported on the link between pornography and contact sex offending and on an ongoing legal challenge to Minnesota's civil commitment of sex offenders. Many thanks to the editors of The Forum for granting me permission to post Mr. Brandt's review. The original review can be found HERE.

How locking kids in solitary confinement became normal

I remember the first time I ever saw a child locked up in a men's prison. I was walking down the corridor of a maximum-security prison, visiting a prisoner who had been transferred there from the prison where I was working at the time. (That's a sad story for another day.)

Suddenly, I saw the face of a boy, staring out at me bleakly from a cell window. The incongruity of the boy's presence in a men's prison made me do a double-take. I stared back for a long moment into his haunted eyes. When I asked about him later, I was told that, as the only minor at the prison, he had to be locked down 24/7 for his own protection.

I remember thinking at the time that even if a minor was tried and sentenced as an adult, there should be a provision to keep him in a juvenile lockup until he turned 18, so that he would be with others his age, have access to educational programming, and not be such a target for victimization.

Fast forward to 2014, and such a sight is no longer unusual. Thousands of minors across the United States are locked up in adult prisons and county jails, and many of them are kept in solitary. Manhattan's Rikers Island, the second-largest jail in the United States, houses hundreds of minors, and roughly one-fourth are in punitive segregation at any given moment. What makes this especially appalling is that most of these minors are pretrial detainees, not yet convicted of any crime. 

Spotlight on Rikers island

Ismael "Izzy" Nazario has recently become the public face of the problem. Now 25 and a case manager for juveniles coming out of Rikers, he estimates that as a juvenile he spent about 300 days altogether in "The Box," a dreaded 6x8 cage; his longest single stay was four months. After a while, he said in a video (which has since been removed from YouTube), you start to go crazy. You pace back and forth and talk to yourself; your eyes start playing tricks on you. "Your mind becomes your own worst enemy."

Ismael "Izzy" Nazario

Nazario's experience is not unusual. According to a state report, teens in solitary at Rikers are more likely than other detained juveniles to try to harm themselves. Nationwide, more than half of detained juveniles who commit suicide do so while locked in solitary confinement.

This is not surprising. As noted by developmental psychiatrist Bruce Perry in an interview with the Center for Investigative Reporting, solitary confinement is bad for anyone -- but it is especially bad for children. And as we forensic professionals know, incarcerated children are not just any children; they are children who have already experienced major losses and traumas in their young lives. Traumas that make them more vulnerable to the deleterious effects of isolation:

"They end up getting these very intense doses of dissociative experience, and they get it in an unpredictable way. They’ll get three days in isolation. Then they’ll come back on the unit and get two days in isolation. They’ll come back out and then get one day. They end up with a pattern of activating this dissociative coping mechanism. The result is that when they’re confronted with a stressor later on, they will have this extreme disengagement where they’ll be kind of robotic, overly compliant, but they’re not really present. I’ve seen that a lot with these kids. They’ll come out, and they’re little zombies. The interpretation by the staff is that they’ve been pacified. 'We’ve broken him.' But basically what you’ve done is you’ve traumatized this person in a way that if this kid was in somebody’s home, you would charge that person with child abuse."

Being a feifdom, Rikers has steadfastly refused to allow journalistic access. But  New York City Councilman Daniel Dromm, one of the few outsiders to witness conditions in The Box, pulled no punches in labeling what he saw "torture." Dromm is campaigning for more transparency. At minimum, he wants Rikers administrators to report the number of minors locked in punitive segregation, their ages, and their infractions. “We need to unveil the secrecy," he said.

Rikers Island in the 1930s, Lucien Aigner

The international community agrees with his categorization. The United Nation classifies solitary confinement as a form of torture, prohibited for children under international law.

The correctional officers' union disagrees with this prohibition. A spokesman said outsiders just don't understand the need for force -- including punitive segregation -- to keep testosterone-fueled young men in line in "the belly of the beast."

I found that turn of phrase more than a little intriguing, coming from a correctional officer. Although the origins and meaning of the phrase are a bit murky, since the publication of Jack Abbott's prison memoir by that the title in 1981, in reference to the American prison system it is generally used to invoke a brutal and unjust system, which one opposes even from within.

But the phrase is apropros, because beastly the system is.It takes already marginalized youth and bestows the ultimate lesson in disempowerment and dehumanization. As Bruce Perry puts it, it announces to disenfranchised minors that, as a society, "we don’t care for you."

That's a harsh message, and one that these young people will have fully internalized by the time they are set back loose into society, broken or vengeful as the case may be.

The silver lining is that Rikers Island conditions are gaining traction as a symbol of the plight of children in adult correctional institutions nationwide. PBS Newshour recently highlighted the issue. And the Center for Investigative Reporting features a series of reports on the online media platform Medium.

Long-burning embers of 1990s superpredator wildfire 

But how did we ever get to the point that children are being tried and incarcerated as adults in the first place, not to mention locked in solitary confinement in adult institutions?

Not all of us are even old enough to keenly recall the 1990s hysteria surrounding juvenile "superpredators," marauding Black and Brown youth who were predicted to engulf society within a few short years if nothing was done to stop them.

This week, the New York Times produced a superb "retro report" video, documenting the history of the superpredator panic. Archived news clips bring us back to the moment when it all began, with incendiary predictions of two academics -- prominent political scientist John J. Dilulio Jr. and criminologist James Fox.

It was Dilulio who coined the term "superpredator," which invokes an animal menace in hordes of "Godless" young Black males, "a ticking time bomb" waiting to erupt; Fox added his own inflammatory rhetoric about the “bloodbath” that was just around the corner.

"And like a match to a flame, the word caught on.... Life in the 1990s [became] dominated by a sense that youth violence was out of control. The future looked bleak. To explain why, one word said it all – superpredators.... A growing wave of kids who were going to ravage the country…. The prediction was terrifying, and lawmakers cracked down on juvenile offenders."

Conservative politicians seized the moment. Aided by fears over changing racial demographics, they were able to pass harsh laws in nearly every U.S. state to allow for juveniles to be tried as adults and to exponentially increase their punishments.

Ironically, at the very moment these laws were being enacted, juvenile crime rates began their unprecedented plummet, the exact opposite of what Dilulio and Fox had predicted. The two men now admit that they were flat-out wrong. In 2012, they both went so far as to sign an amicus brief arguing against life imprisonment for children convicted of murder.

But it was too late. The punitive social climate they had ignited was like a wildfire that burned far out of control. And it's still burning across the United States, from Rikers Island to Los Angeles County and everywhere in between, consuming untold thousands of teenagers from the most vulnerable classes of society.

Hat tip: Kathleen

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For those interested in the topic of juveniles sentenced as adults, I recommend the award-winning film Juvies.

(c) Copyright Karen Franklin 2014 - All rights reserved

Federal judge calls Minnesota civil commitment program “draconian”

State lawmakers remain in paralysis as judge threatens action

This is one in a series of on-the-ground reports from clinician Jon Brandt of Minnesota on the high-profile legal battle over the civil commitment of sex offenders in his state, a battle with potentially national repercussions. 

 

Guest post by Jon Brandt, MSW, LICSW*

Three weeks ago, a federal judge issued his long-awaited ruling in a civil rights case brought by civil detainees over the constitutionality of the Minnesota Sex Offender Program (MSOP). Although stopping short, for now, of declaring the program unconstitutional, the judge ordered new procedures to make release attainable for the 700 detainees. He warned that he may ultimately find the program to be unconstitutional if he determines that it is essentially punitive or if it confines men who are no longer dangerous. “The time for legislative action is now," wrote US District Judge Donovan Frank.

Now, in mid-March, with about eight weeks left in a short legislative session, Minnesota lawmakers are indicating that they are not likely to find bipartisan support to accomplish the reforms demanded by the federal court. If the state legislature adjourns without taking action, it seems likely that the US District Court will impose federal oversight.

Withholding "unconstitutional"

Fully aware that he is knee-deep in constitutional law and up to his neck in public antipathy, Judge Frank’s Feb. 20 ruling in Karsjens v. Jesson is a demonstration of judicial restraint. Judge Frank expressed several times in his 75-page decision that it is too early, in what will be protracted litigation, to rule on the constitutionality of any part of MSOP. However, his ruling leaves little doubt that he will hold the status quo to be an unconstitutional encroachment on civil liberties:

"[I]t appears that MSOP may very well be serving the constitutionally impermissible purposes of retribution and deterrence. … If, with the benefit of discovery, [the detainees] are able to demonstrate that the commitment statutes are systematically applied in such a way as to indefinitely commit individual class members who are no longer dangerous, or that MSOP is administered as a punitive system despite its statutory treatment purpose, Plaintiffs will likely prove up their claims."

Over the past two decades, more than 700 sexual offenders, deemed dangerous by state courts, have been sent to the program for treatment. Once there, detainees complain, disingenuous treatment and onerous program goals make release virtually impossible.

Judge Frank’s ruling appears to vindicate widespread complaints over conditions of confinement and concerns of civil liberties violations. Noted the judge:

"Whether or not the system is constitutionally infirm, without prompt action on the part of the legislature and [the state Department of Human Services], MSOP’s reputation as one of the most draconian sex offender programs in existence will continue."

Right to treatment?

Detainee at Moose Lake detention facility in Minnesota

If the position of the detainees can be reduced to the maxim that “no one has ever gotten out,” perhaps the State’s (defendant’s) position can be oversimplified to, “MSOP clients have no constitutional right to treatment.”   Judge Frank begged to differ with this latter position, expressing that legitimate treatment is, by judicial precedent, one of the essential constitutional underpinnings of civil detention programs for sex offenders (as distinct from criminal punishment). Judge Frank more than hinted at an ultimate finding in support of the detainees’ position, saying:

"Given the prison-like conditions described by Plaintiffs, and the lack of treatment and essentially no-exit regime alleged in this case, it may well be that, with a fully developed record, the Court will find the totality of the MSOP system to be unacceptably and unconstitutionally punitive."

He noted that it would be unconstitutional, under existing U.S. Supreme Court rulings, to operate a civil commitment program under the guise of providing treatment, if this is just “a sham or mere pretext,” and the true purpose is to punish.

Landmark ruling

Judge Donovan Frank

In his ruling, Judge Frank issued a landmark change, effectively shifting the burden of proof on how clients exit civil detention. Prior to this ruling, in order to gain release, detainees had to clear several tall hurdles. They had to prove they had completed the treatment program, demonstrate their readiness for community re-entry, and get the green light for release from two review panels. Under that scheme, in 20 years only two of more than 700 men gained even a conditional release. Citing substantial case law and programs in other states, Judge Frank turned that process upside down:

“It is unquestionable that commitment, at the outset, must be justified by law. Similarly, … continued commitment must also be justified. A statute that -- as written, as applied, or as implemented -- renders discharge from a sex offender civil commitment program more onerous than admission to it, such that individuals who no longer meet commitment criteria remain confined, raises grave due process questions. In that regard, the Court expresses serious doubts as to the constitutionality of Minnesota’s sex offender commitment statutes and their implementation through MSOP.

“Today, the Court finds that it is constitutionally mandated that only individuals who constitute a “real, continuing, and serious danger to society” may continue to be civilly committed to MSOP. See Hendricks, 521 U.S. at 372 (Kennedy, J., concurring). If the evidence demonstrates that MSOP systematically continues to confine individuals who are not 'a real, continuing, and serious danger to society,' then such confinement will be held unconstitutional."

State government paralyzed

A powerful amicus brief filed jointly by law professor Eric Janus and the ACLU of Minnesota is highly critical of the Minnesota program. Laying out relevant case law, the Brief claims that all three branches of Minnesota’s government have abdicated responsibilities for ensuring the program’s tenuous promises. The Brief observes that after the Federal Court advised the State Legislature in 2012 that urgent changes were needed, the 2013 Legislature failed to act; by executive order, the last two Minnesota Governors put constitutionally questionable moratoriums on releases; and state appellate courts have repeatedly failed to correct program deficiencies. 

Citing “massive deprivations of liberties,” and accumulating evidence that civil detention is punitive in nature, the Brief refers to the Minnesota experiment as an “utter betrayal.” If -- as now appears likely -- another legislative session expires without lawmakers taking action, there is little doubt that the federal court will intervene, perhaps as it did in the State of Washington .

Change coming to MSOP

To reassure, it is not the intent of this legal challenge that dangerous individuals be released into the community. Reforming MSOP is clearly a forensic minefield and Judge Frank has been deliberate in navigating solutions. Drawing on a critical 2011 report from the Minnesota Office of the Legislative Auditor, he appointed experts to conduct an initial review of MSOP. He also ordered the state’s Department of Human Services to assemble a Task Force of prominent stakeholders to explore program challenges and make recommendations. The Task Force issued their first report in December 2012 and their second report in December 2013.

In December 2013, in anticipation of his ruling, Judge Frank wisely appointed a team of four nationally recognized experts (identified in this previous blog) to help credibly guide the process. He asked both parties to the lawsuit, and the experts themselves, to identify the tasks and goals to which the “dream team” should endeavor, and then, leaving no doubt that change is coming to MSOP, Judge Frank’s order exceeded the cumulative list, and established priorities.

In addition to a complete review of the MSOP program, Judge Frank indicated that all current detainees will be reevaluated by independent experts to determine whether they currently meet criteria for civil commitment and, if so, whether they could be treated in less restrictive settings. He ordered reevaluations to begin with those likely to be most eligible for a reduction in custody. He even threw a bone to the 100 or so discouraged (or obstinate) detainees who have withdrawn from treatment:

“It defies reason that individuals who are comatose or otherwise completely incapacitated would be considered so dangerous as to require continued confinement in a secure, prison-like facility. Moreover, an individual who refuses to participate in treatment, but is no longer dangerous, cannot constitutionally continue to be confined in such a facility. See Foucha, 504 U.S. at 77.”

Judge Frank directed his final admonition to state administrators and the Minnesota Legislature, which just convened its 2014 session, stating that the time for “substantial changes” is now:

“If the evidence requires it, the Court will act. But it is the Minnesota Legislature that is best equipped to develop policies and pass laws -- within the limits of the Constitution -- that both protect public safety and preserve the rights of the class. The time for legislative action is now. Time and again, professional assessments have identified grave deficiencies in the program. Regardless of the claims raised in this case, and irrespective of the Court’s ultimate rulings on any constitutional questions with which it is presented, the interests of justice require that substantial changes be made to Minnesota’s sex offender civil commitment scheme.

“The program’s systemic problems will only worsen as hundreds of additional detainees are driven into MSOP over the next few years. The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.”

In reserving a ruling of “unconstitutional,” Judge Frank has been shrewd in attempting to force Minnesota’s government leadership to the table.   If state leaders acknowledge the federal court directives, seize good research, understand the limits of forensic psychology, and muster the professional courage to marshal bold legislative initiatives, Minnesota could potentially develop a national model for the civil commitment of sex offenders. If not, Judge Frank has left little doubt that the US District Court for Minnesota will rebalance legitimate concerns of public safety, effective treatment, and civil liberties for those under civil commitment.

Either way, these proceedings are likely to contribute to the national debate about whether civil commitment can be effectively reconciled with sound public policy and constitutional law, or whether civil commitment schemes, now in place in 20 U.S. states, are fundamentally “preventive detention,” derived from “society’s opprobrium” of sexual offenders.

* * * * *

Judge Frank’s  ruling (HERE) is a compelling read for anyone interested in the civil commitment of sex offenders.

*Jon Brandt is a clinical social worker in Minnesota, for 35 years working in the prevention of sexual abuse. He provides evaluations, treatment, and supervision to sexual offenders, and professional consultation and training to colleagues. His previous post on this case, a report on the December 2013 federal court hearing, can be found HERE. To contact Mr. Brandt, click HERE.