November 3, 2009

Asperger’s: Here today, gone tomorrow?

Would erasure from DSM impact forensic use?

It was just a few years ago that Asperger's Disorder exploded into the public consciousness. But just as suddenly, if the DSM-V authors have their way, it may disappear, absorbed back into the spectrum of autism disorders from whence it came.

An intriguing story in today's New York Times describes the controversy that is heating up as the DSM-V work groups prepare to issue their final diagnostic proposals in January.

As Times reporter Claudia Wallis notes, Asperger's is "one of the most intriguing labels" in the diagnostic book:
"Children with Asperger's syndrome, a mild form of autism, are socially awkward and often physically clumsy, but many are verbal prodigies, speaking in complex sentences at early ages, reading newspapers fluently by age 5 or 6 and acquiring expertise in some preferred topic -- stegosaurs, clipper ships, Interstate highways -- that will astonish adults and bore their playmates to tears."
The sudden rise of this "once obscure diagnosis," diagnosed four times more often in boys than girls, accounts for much of the apparent rise in autism, which now has a prevalence rate of about 1 percent among U.S. children.

Although self-described "Aspies" and their families distinguish Asperger's from the more stigmatized label of autism, experts quoted by the Times say the distinctions are confusing and not scientifically based.

Asperger's in the forensic context

At the same time that it faces formal extinction, Asperger's is seeing ever-escalating use in the criminal courts, in cases ranging from violent crime to computer hacking and child pornography possession.

Typically, the diagnosis is proposed by defense attorneys seeking to mitigate the mental state required for a crime. A hallmark of the disorder is severe problems understanding social rules and nuances, and therefore navigating social situations. Sometimes, the profound deficit in social reasoning explains crimes that otherwise are simply bizarre, and lacking in rational motivation. Consider this scenario, adopted from a case I worked on:
You’re on an excursion with a recreational group, walking through a downtown area. The group encounters a red light. Seeing no traffic, everyone jaywalks. All except the young man with Asperger’s, whose can’t break a rule. No one notices as he gets left behind. When he finally finds the group again, he is furious, and punches the group leader in the face.
In this case, the defendant had a particularly severe and clearcut case that had been diagnosed and treated at a specialty clinic from the time he was a toddler. Thus, it could not be argued that the diagnosis was being manufactured with a pretextual goal in the legal context.

In other cases, especially when an alternate and rational motivation is at least equally plausible, the defense has met with less success. For example, as I blogged about last year, it was unsuccessfully advanced in the case of Hans Reiser, the oddball computer programmer who killed his wife and buried her body in the hills of Oakland, California.

In an article on "the geek defense" in Slate magazine, science writer Erica Westly gives other examples of Asperger's recent deployment in court, some successful and some not.
  • Astonishingly, a jury in Galveston, Texas acquitted billionaire real estate heir Robert Durst in the murder and dismemberment of his neighbor under the theory that Asperger's made him incapable of premeditating the crime.
  • Lisa Brown of the United Kingdom was not so lucky. The 22-year-old woman was sentenced to life in prison in the murder of her mother after a judge ruled that her lack of empathy did not mitigate the gravity of the crime.
Explanation for collecting child porn

The compulsive behaviors and zealous collecting of many individuals with Asperger's is being invoked to explain certain types of criminal conduct, such as computer misconduct or child pornography collecting.

Computer hacker Gary McKinnon

The Slate article features the high-profile case of Gary McKinnon, the British computer geek who hacked into U.S. military and NASA computers looking for proof that the U.S. government had covered up evidence of UFO landings. He claims Asperger's made him compulsively driven to search for evidence of alien spacecraft.

This type of defense is ready-made for compulsive collecting of child pornography images. In an Iowa case this year, a judge reduced a pornography possession sentence after concluding that Asperger's "might very well explain the number of images" the man had acquired. Similarly, across the Atlantic a 21-year-old student in the United Kingdom was sentenced to just four months in jail for possession of 922 pornographic images of children. Other courts have been less sympathetic to this version of a diminished capacity defense.

Anecdotally, I have heard of Asperger's arguments backfiring. Introduced as mitigation in cases of violent and/or sexual offending, Asperger's may become aggravating by increasing jurors' fear of a defendant because he is perceived as strange and therefore more unpredictable.

At risk in prison

In a final forensic angle, the extreme social awkwardness of Asperger's sufferers puts them at risk in prison, where social interactions are highly scripted and regulated. In one case I was involved in, a prisoner incurred new criminal charges stemming from a bizarre fight triggered by his misperception of social cues.

Indeed, computer hacker McKinnon is raising this issue in an attempt to avoid extradition to the United States. Given his condition, incarceration in a U.S. prison would amount to torture, he contends. As evidence, he cites a 2007 study by psychiatrist David Allen finding that imprisonment is extremely stressful and confusing for men with Asperger's, who find it hard to successfully interact with guards and other prisoners and thus spend much of their time hiding out in fear.

No one knows whether or how exclusion from the upcoming DSM-V, due to be published in 2012, might affect deployment of the diagnosis in court. After all, even if it is not a separate diagnosis, Asperger's will still presumably exist as a condition on the autism spectrum. And, as regular readers of this blog know, plenty of less valid diagnoses are invoked in court despite their absence from the DSM.

Although I understand the logic of the DSM-V work group, I cannot help but wonder -- given the massive influence of the pharmaceutical industry in shaping and perpetuating psychiatric diagnoses -- whether they would be proposing Asperger's for elimination if a money-making drug was available to treat it.

Somehow, I think not.

Further resource:

Barry-Walsh, J.B., & Mullen, P.E. (2004). Forensic aspects of Asperger's Syndrome. Journal of Forensic Psychiatry and Psychology, 15, 96-107.

October 30, 2009

Halloween "security theater" endures

Ho-hum. Another Halloween, another senseless roundup of sex offenders. This is the third year in a row that I have posted about the sex offender hysteria on All Hallows Eve that seems completely impervious to logic, common sense, and -- now -- even research.

What's new this year is that a Florida professor has done the empirical research to prove what people in the field already knew: Sex offenders aren't out snatching and molesting children on Halloween.

Jill Levenson, a professor at Lynn University, studied a 9-year period and found no spikes in sex crimes against children on Halloween. Her study was just published in Sexual Abuse: A Journal of Research and Treatment.

"The wide net cast by Halloween laws places some degree of burden on law enforcement officers whose time would otherwise be allocated to addressing more probably dangerous events," Levenson noted.

Unfortunately, her research seems to be falling on deaf ears.

Last year, when some of the sillier Halloween restrictions were ridiculed by late-night TV pundits and at least one was struck down by a U.S. district judge as overly broad, I naively thought the pendulum might be swinging. But even studies by experts such as Dr. Levenson seem incapable of bringing common sense to bear. Probation officers and others are continuing to implement ridiculous roundups and other once-a-year restrictions on sex offenders, instead of focusing on the real threat to children, which I'll get to in a moment.

Around the nation this year, more parole and probation officers than ever are ordering convicted sex offenders not to answer their doors, decorate their porches, or wear costumes on Halloween. More sex offenders are being ordered to post "NO CANDY HERE" signs on their doors. Others are being required to attend special Halloween "counseling sessions" or "movie nights" where they will be monitored (and, incidentally, protected from false accusations). The restrictions are so widespread and so varied that I no longer have the time or energy to catalog them as I have done in the past. If you are interested, just do a Google news search for "Halloween sex offender roundup."

The farcical crackdowns are a prime example of what Scott Henson over at Grits for Breakfast has labeled "security theater," that is, "hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives."

Why Halloween, we might ask? After all, most sex offenders target people they know, not children off the street. And the crackdowns on registered sex offenders miss the mark anyway, because the broad majority of new sex offenses are committed by men who have never been caught for a past sex offense. Furthermore, registered sex offenders feel so branded and ostracized that most are ducking and hiding today.

But the scare plays off of a deep-rooted cultural fear of the bogeyman stranger, as memorialized in the timeworn Halloween legend of tainted candy, which has endured despite myriad attempts at correction. As Benjamin Radford of the Skeptical Enquirer pointed out a few years ago about the persistence of that stranger-danger myth: "Despite e-mail warnings, scary stories, and Ann Landers columns to the contrary, there have been only two confirmed cases of children being killed by poisoned Halloween candy, and in both cases the children were killed not in a random act by strangers but intentional murder by one of their parents."

The sad part of both myths is that children are taught a message of fear: Strangers, or even their own neighbors, might try to poison or molest them.

Oh, yes. What is the real danger facing children this Halloween? It's one your mama always warned you about: Getting hit by a speeding car while crossing a dark street. Car accidents kill about 8,000 children every year in the United States, and children are more than twice as likely to be killed by a car while walking on Halloween night than at any other time of the year.

Related blog posts:
Photo credit: Kaushik Gopal (Creative Commons license)


October 29, 2009

Adolescent immaturity reduces culpability, say researchers

APA amicus brief in two upcoming high court cases
on life without parole for juveniles


Adolescents may not possess the maturity to be held to adult levels of responsibility for violent crimes, according to an article in the current issue of American Psychologist by Laurence Steinberg, a professor of developmental psychology at Temple University, and colleagues.

"Adolescents likely possess the necessary intellectual skills to make informed choices about terminating a pregnancy but may lack the social and emotional maturity to control impulses, resist peer pressure and fully appreciate the riskiness of dangerous decisions," Steinberg was quoted in Science Daily as saying. "This immaturity mitigates their criminal responsibility."

The researchers studied the differences in various cognitive and psychosocial capacities among 935 research participants, ages 10 to 30. Significant differences in mature decision-making were found between the 16- to 17-year-olds and people just four or five years older.

"It is very difficult for a 16-year-old to resist peer pressure in a heated, volatile situation," Steinberg said. "Most times, there is no time to talk to an adult to inject some reason and reality to the situation. Many crimes committed by adolescents are done in groups with other teens and are not premeditated."

Two friend-of-the-court briefs filed by the American Psychological Association in cases heard by the U.S. Supreme Court spurred questions about differences between cognitive and interpersonal maturity and the apparent inconsistency between APA's positions in the two cases. In its amicus brief filed in Roper v. Simmons (2005), the case that abolished the juvenile death penalty, APA presented research showing that adolescents are developmentally immature in ways that are relevant to their criminal culpability. In an earlier brief filed in Hodgson v. Minnesota (1990), which upheld adolescents' right to seek an abortion without parental approval, APA presented research regarding cognitive abilities that bear on medical choices, showing that adolescents are as mature as adults.

The APA differentiated these two scenarios by looking at the decision-making processes required for each situation. In the Hodgson case, APA described adolescents as being competent to make informed and sound health care decisions. In the Roper case, APA characterized adolescents as too short-sighted and impulsive to warrant capital punishment, no matter what the crime.

These issues are likely to be at the forefront of two U.S. Supreme Court cases -- the cases of Joe Sullivan and Terrance Graham -- slated to be heard this month, involving the constitutionality of sentencing juveniles to life without the possibility of parole. Sullivan, now 33, was 13 years old when he and two older boys broke into a home, where they robbed and raped an elderly woman. After a one-day trial, Sullivan was sentenced to life in prison with no chance for parole. The APA has filed an amicus brief presenting relevant research, including Steinberg's most recent study, to the court.

Adolescents' legal rights, said Steinberg, should be guided by accurate and timely scientific evidence on the nature and course of psychological development. "It is crucial to understand that brain systems responsible for logical reasoning and basic information processing mature earlier than systems responsible for self-regulation and the coordination of emotion and thinking," he said.

Further resources:

Laurence Steinberg, Elizabeth Cauffman, Jennifer Woolard, Sandra Graham, Marie Banich. Are Adolescents Less Mature than Adults? Minors' Access to Abortion, the Juvenile Death Penalty, and the Alleged APA 'Flip-Flop'. American Psychologist, 2009; Vol. 64, No. 7.


Supreme Court to consider juvenile 'lifers': Does life without parole for minors who didn't kill constitute cruel and unusual punishment? By David Savage,
Los Angeles Times (Sept. 28, 2009)

FRONTLINE: When Kids Get Life.

October 27, 2009

U.S. depression: Children hitting the streets

MEDFORD, Ore. -- Dressed in soaked green pajamas, Betty Snyder, 14, huddled under a cold drizzle at the city park as several older boys decided what to do with her. Betty said she had run away from home a week earlier after a violent argument with her mother. Shivering and sullen-faced, she vowed that she was not going to sleep by herself again behind the hedges downtown, where older homeless men and methamphetamine addicts might find her.

The boys were also runaways. But unlike them, Betty said, she had been reported missing to the police. That meant that if the boys let her stay overnight in their hidden tent encampment by the freeway, they risked being arrested for harboring a fugitive.

"We keep running into this," said one of the boys, Clinton Anchors, 18. Over the past year, he said, he and five other teenagers living together on the streets had taken under their wings no fewer than 20 children -- some as young as 12 -- and taught them how to avoid predators and the police, survive the cold and find food.

"We always first try to send them home,” said Clinton, who himself ran away from home at 12. "But a lot of times they won't go, because things are really bad there. We basically become their new family."
That's the lead-in to a poignant New York Times story, subtitled "Running in the shadows," chronicling the surge in youth homelessness across the United States. Each year, more than 1.6 million children in the United States either run away or are thrown out of their homes. With the harsh economy, the number of children living on their own has more than doubled, according to a federal survey of schools. At the same time, fewer public services are available to help them. Harkening back to Dickensonian London, reporter Ian Urbina found children as young as 12 hiding out from abusive families who did not want them or could no longer afford to feed them. Too young to sign contracts or get legitimate employment, young runaways survive by selling drugs, panhandling, or selling their bodies. They remain hidden in the shadows because their families did not report them missing or, if they did, police failed to enter their names into the national database of missing children. Many of these invisible children will be victimized on the streets; others will be our clients. Read the heartbreaking story HERE.

Hat tip: Jane
Photo credit: "Motherless Brooklyn" by Shrued (Creative Commons license)

October 22, 2009

Of anthropomorphism, armed citizens, and hate crimes

The Jury Expert wants you to stop and think about all manner of things, from hate crimes to the effects of gory photos. They want to teach attorneys how to identify a jury foreperson even before that person has been seated as a juror. High-quality articles on a range of issues is earning the American Society of Trial Consultant's online publication accolades and awards in legal circles.

Among current offerings worth checking out:

Identifying Leaders

An experienced jury consultant discusses how jurors pick presiding jurors and how attorneys can identify their most likely picks during voir dire and jury selection.

The impact of graphic injury photos on liability verdicts and damage awards

Over the years, the use of graphic, and at times gruesome, visual imagery in the courtroom has become commonplace. Although the use of such imagery has become the norm, the prejudicial nature of this evidence continues to be a contested issue in courtrooms across America. This paper focuses on the impact of graphic injury photographs in a civil dispute where the evidence favors a defense verdict.

Anthropomorphism in technical presentations


How can dry technical information be explained in a way that is understandable to a lay jury? An experienced graphic designer and trial consultant suggests anthropomorphism and other strategies to help jurors emotionally connect with technical data.

Will it hurt me in court? Weapons issues and fears of the legally armed citizen

An examination of how gender of juror, gender of shooter and type of weapon used interact to modify verdict and sentencing, with responses from two experienced trial consultants.

Hate crimes and revealing motivation through racial slurs

I must admit, I found the implications of this article by jury consultants Gregory S. Parks and Shayne Jones a little troubling. The authors deconstruct the 'hip-hop culture' defense used by Nicholas "Fat Nick" Minucci, a white man who used the word "nigger" during a 2005 baseball-bat assault on a black man. Charged with a hate crime, Minucci called two expert witnesses, music producer Gary Jenkins and Rhodes scholar and Harvard Law School professor Randall Kennedy, author of Nigger: The Strange Career of a Troublesome Word.

Parks and Jones take issue with the expert witnesses' testimony that the term "nigger" is a nuanced word that can no longer be assumed to be driven by racial animus. Minucci is something of a straw man, as he was fairly obviously a racist vigilante. (He was convicted of the hate crime charge and sentenced to 15 years in prison.)

What troubled me was how the authors used Harvard scholar Mahzarin Banaji's work on implicit bias. Banaji's research suggests that, as racism becomes less acceptable, it is going underground; many white people hold racist attitudes that they are not even aware of. (As I blogged about last year, Banaji has testified as an expert witness, on the topic of unconscious racial bias among jurors.) The implication of their argument is that it is appropriate to impose additional punishment via hate crimes enhancements even if the defendant is not consciously acting due to a biased motivation. When I conducted research on the motivations of hate crime offenders, I came to understand that assailants' motivations are often more complex and multifaceted than a simple sound byte like "hate crime" can convey. The idea of using biases that people are not even aware of as evidence against them is a little too Orwellian for me. It's an interesting article, nonetheless.

For a nice essay on the Minucci case, see law professor Patricia Williams' Borrowed Bodies: Diary of a mad law professor, in the Nation magazine.

October 19, 2009

Spokane case illustrates sensationalism in coverage of insanity defense

Alarmist misinformation predominates

"Criminally Insane are often released." That's the headline on an AP story that ran in major U.S. dailies -- including the New York Times -- over the weekend. The case, involving the escape of a forensic patient from a state hospital in Spokane, Washington, has the Washington citizenry in a state of frenzied outrage. The CEO of the hospital has been forced to resign, and ever-opportunistic politicians are calling for abolition of the insanity defense.

In the spotlight is Phillip Paul, a schizophrenic man who killed an elderly woman in 1987, allegedly because voices in his head told him she was a witch. Found not guilty by reason of insanity, he was hospitalized at Eastern State Hospital in Spokane, Washington. Twenty-two years later, on Sept. 17, he walked away while he and 30 other forensic patients were on a supervised jaunt to the county fair. He was captured about three days later after a highly publicized manhunt.

Sunday's report is a classic example of the sensationalism and misinformation swirling around the insanity defense. Unfortunately, instead of critical inquiry, many reporters leap onto the bandwagon of misplaced public hysteria, and many editors likewise fail to think before grabbing a juicy-looking story to fill a news hole.

The AP article, by reporter Nicholas Geranos, amps up both public alarm and indignation:
"Instead of being straitjacketed and locked away as might be depicted by film or fiction, Paul has spent time living and working in downtown Spokane, fathered a child, created music videos and racked up $85,000 in credit card bills…. His escape … exposed a little known truth: The criminally insane often live among us, with little or no supervision."
Eek! Lock your doors! Not only are bogeyman sex offenders getting ready to snatch your kids on Halloween, but now we've got the "homicidal maniacs" (in the words of one newspaper columnist) loose among us.

Downplaying the facts

Contrary to the article's implications, Paul was not "living among us, with little or no supervision." Not at all. He was locked up in a state hospital. Escapes are rare, but they do happen. And rarely does any violence ensue.

The alarmist news coverage downplays facts that could reassure the public and reduce rather than amp up hysteria. First of all, Paul was captured uneventfully after about three days. And, during his brief foray into freedom, he did not commit any new crimes as far as we know.

Paul's risk for violence is not high. The homicide for which he was found Not Guilty by Reason of Insanity (NGRI) occurred 22 years ago. He has not exhibited any violent behavior in years, according to hospital spokespersons. Indeed, he is described as a "model patient."

If Paul was mentally unstable or at high risk of violence, he would not have been allowed out on the field trip. Such excursions were routine at the hospital (and its larger sister facility, Western State Hospital outside of Tacoma, Washington), rewards and incentives for stability and good behavior. Now, they have been entirely suspended.

Paul's low risk for violence in the community is substantiated by the fact that, over the past couple of decades, he has been released from the hospital several times. Once, he lived with his family; another time, he stayed at an assisted living center.

Media coverage accuses the staff of lax supervision. Certainly, it was a mistake to let Paul walk away; the staff who accompanied him reportedly let him take a backpack, which may not have been searched and may have contained food. However, during periods when he was conditionally released into the community, he was monitored and rehospitalized whenever he was noncompliant with medications or his symptoms worsened. That sounds like good supervision, not bad.

Successful insanity defenses rare

It is ludicrous to make generalizations about the dangers posed to the public by the criminally insane based on a very rare event such as this, involving a model patient who hurt not a single hair on anyone's head.

But the current frenzy, and in particular the politicians who are using the incident to bolster their popularity, are distorting the larger nature of the insanity defense as well.

In Washington, as in the majority of U.S. states, the standard for legal insanity is the M'Naghten test, which requires that a defendant be unable to tell the difference between right and wrong. The insanity defense is rarely invoked as a defense. One eight-state study found that the defense was used in less than 1% of cases.

There are many reasons for the rarity of the defense. Strategically, defense attorneys often do not pursue it because a defendant risks serving more time -- especially in less serious cases -- than if he or she pled guilty. Also, the standard is hard to meet. Contrary to public opinion, forensic psychologists and psychiatrists who evaluate a defendant's mental state are most likely to conclude he or she does not meet the legal threshold for insanity.

A survey of the general public indicated that people think the defense is successful about 35% of the time. Although success rates vary by jurisdiction, it is probably more accurate to say the defense is successful only about one-fourth of the time. In the broad majority of successful cases, the offender had a previously documented psychiatric disorder and the insanity disposition results from a plea bargain. In other words, contrary to the public's image of dueling experts in court, the defendant was so obviously crazy at the time of the offense that prosecutors agree to hospitalization rather than conviction and imprisonment, and no trial ensues.

One reason for the enduring controversy over the insanity defense is the misperception that the defense is a way to beat the rap. In reality, acquittees are sent to locked state hospitals that look very much like prisons. They get out only if they are found to no longer suffer from a mental disorder that makes them dangerous. Studies suggest the average length of hospitalization varies from around 4 years (in California) to more than 10 years (in Missouri). Longer hospitalizations are especially likely in serious or high-profile cases.

Even when a patient is released, there are usually strings attached. Under "conditional releases," patients are monitored for treatment compliance. If they violate terms of their release, such as by using drugs or not taking prescribed medications, they are immediately rehospitalized. Such revocations occur in an estimated 35% to 50% of releases, according to a California study. Phillip Paul, indeed, had been rehospitalized under just such circumstances in the past.

The implication of the news coverage is that insanity acquittees are dangerous to the public. But studies suggest that, as a group, people found NGRI are less likely to recidivate than the average felon released from prison. And the best predictor of subsequent violence is not mental illness, but the quantity and nature of prior crimes.

Moreover, the most feared type of crime by schizophrenics -- homicides of strangers -- "are exceptionally rare events," according to a large-scale international study from Australia, Canada, Finland, and the Netherlands that was just released in Schizophrenia Bulletin.

"What the [research] shows, more than anything else, is that the public fear of the mentally ill is completely misplaced," said Dr. Matthew Large, one of the researchers from the University of New South Wales, Australia. "These events are so rare that they are almost impossible to study, yet the fear of serious violence by the mentally ill is a major cause of stigma.”

Ultimately, the public's rage in this case focalizes on the fateful field trip: "How dare those inept government bureaucrats let a homicidal maniac out for fun? Let him suffer!" This venting of pent-up rage has the same punitive tone directed against prison officials in the past for letting prisoners have television sets or make phone calls.

In these tough economic times, public anger against the government is high. But punitive policies toward either forensic mental patients or prisoners will not increase public safety. Quite the contrary. Ultra-punitive policies only produce more embittered citizens who, just like the critics, are too quick to rage.

Hat tip: KK