New journal issue loaded with hot topics

The current (December) issue of the Journal of the American Academy of Psychiatry and the Law has a slew of interesting articles on sex offender civil commitment, forensic brain imaging, religion and the death penalty, forensic assessment of problematic Internet use, psychotherapy with prisoners, competency case law, school shooter motivations, and other timely topics. Highlights include:

Use of DSM Paraphilia Diagnoses in Sexually Violent Predator Commitment Cases
This is the long-awaited article by DSM-III editors Michael B. First and Robert L. Halon, addressing diagnostic controversies in SVP civil commitment cases.

It is accompanied by two commentaries:

• In Muddy Diagnostic Waters in the SVP Courtroom, forensic psychologist Robert Prentky and colleagues essentially agree with First and Halon’s critique. They state that misuse of the DSM in SVP cases is a serious form of "pretextuality."

• In Inventing Diagnosis for Civil Commitment of Rapists, forensic psychologist and attorney Thomas K. Zander traces the history and ethics implications of using DSM diagnoses that lack reliability or validity in order to civilly confine rapists.

Next comes a similar point-counterpoint series of three articles on functional brain imaging in court:

• Functional MRI Lie Detection: Too Good to be True? by Joseph R. Simpson

• Commentary: Functional MRI Lie Detection by James R. Merikangas

• Commentary: The Future of Forensic Functional Brain Imaging by Daniel D. Langleben and Frank M. Dattilio

The full Table of Contents, with links to full-text pdf files, is here.

Good building, bad building

Guest essay by Eric Lotke*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New book explodes myth that innocent do not confess

Innocent people do not confess. Especially to rape and murder.

That is the belief of most people, including jurors, judges, attorneys, and even the very police detectives who induce false confessions. The Norfolk Four case is the perfect vehicle to challenge our misguided faith. And Tom Wells and Richard Leo are the ideal storytellers: Wells followed the case for seven years; Leo is a leading expert on the social psychology of police interrogation. The book is meticulously researched, through primary source documents and dozens of interviews.

The Wrong Guys: Murder, False Confessions, and the Norfolk Four reads like a Stephen King novel but provides a step-by-step deconstruction of the bizarre case of the Norfolk Four, explaining the individual, situational, and systemic factors that converge in a typical false confession case.

More on the Norfolk Four case is online here; the publisher's web page is here. My longer review is forthcoming from California Lawyer magazine.

Cyberbullying verdict raises legal questions

Running neck-and-neck in the Bad Behavior Gone Wild category are the shoppers who trampled a poor Wal-Mart worker to death in Long Island and the Missouri woman who bullied a 13-year-old until the depressed girl hanged herself.

But while everyone is outraged by both cases, last week's criminal conviction in the cyberbullying case has troubling implications about the criminalization of the Internet.

A federal jury convicted Lori Drew of three misdemeanor counts of computer fraud for misrepresenting herself as a teenage boy on the popular MySpace social networking site. Jurors apparently agreed with prosecutors that creating a phone profile constituted "unauthorized access" to MySpace, under a federal law that previously was used only to prosecute hackers.

Analyzing the verdict's implications is Brian Stelter of the New York Times:

While the Internet's anonymity was used in this case as a cloak to bully Megan, other users say they have perfectly good reasons to construct false identities online, if only to help protect against the theft of personal information, for example. "It will be interesting to see if issues of safety and security will eventually trump the hallmark ideology of free, largely anonymous or pseudonymous participation in cyberspace," said Sameer Hinduja, a professor of criminology and criminal justice at Florida Atlantic University. Andrew M. Grossman, senior legal policy analyst for the Heritage Foundation, said the possibility of being prosecuted for online misrepresentation, while remote, should worry users nonetheless. "If this verdict stands," Mr. Grossman said, "it means that every site on the Internet gets to define the criminal law. That's a radical change. What used to be small-stakes contracts become high-stakes criminal prohibitions."

Danah Boyd of Harvard’s Berkman Center for Internet and Society expressed perhaps the broadest perspective:

"There are lots of kids hurting badly online,” she said. "And guess what? They’re hurting badly offline, too. Because it's more visible online, people are blaming technology rather than trying to solve the underlying problems of the kids that are hurting."

The full story is here.

Move over, Guantanamo - here comes Wisconsin

Lifetime detention for misconduct at age 14?

When he was 14 years old, Daniel Arends made a big mistake. He sexually assaulted an autistic boy. He was adjudicated as a delinquent.

Then, he made some other mistakes. His juvenile detention was extended several times for sexual contact with other boys.

When he turned 17, he learned just how much trouble he was in. He became the first juvenile that the state of Wisconsin sought to detain indefinitely under its "Sexually Violent Person" civil commitment law. He was committed to the Sand Ridge Secure Treatment Center in 2005, and he has remained there ever since. He is now 22.

Technically, there is a way for Daniel to get out of this potentially lifelong incarceration. All he must do is show that he has changed so that he no longer meets the legal criteria of being "more likely than not to commit a future act of sexual violence."

The Catch-22 is, how can one prove something like that from behind bars?

One potential method is through expert evidence. A psychologist, Dr. Sheila J. Fields, evaluated him, administered a series of tests, and wrote a favorable report stating that in her opinion he had indeed changed. He had successfully progressed in the treatment program and his score on the Psychopathy Checklist (PCL-R) was now lower. She noted that his last incident of criminal sexual activity occurred when he was 14, and there had been no reports of inappropriate sexual behavior since October 2003.

In her report, Dr. Fields also discussed some of the problems I have been blogging about lately, such as the difficulty of accurately predicting adult sexual recidivism from juvenile misconduct, and reliability problems with Daniel's diagnosis, Antisocial Personality Disorder.

Based on this favorable report, Daniel petitioned the court for a hearing on whether he still meets the civil commitment criteria. The government of Wisconsin, however, opposed the hearing, arguing Daniel was not entitled to it unless he could actually "prove" in his petition that his condition "had changed."

The local court agreed, and denied Daniel the right to even be heard in court. Shades of Guantanamo, right?

Daniel appealed, and the Wisconsin Appellate Court agreed with him. The standard for getting a hearing, the appellate court ruled, is whether the person has presented facts in his petition from which a judge or a jury “may” conclude that he has changed. In other words, he is not required to prove that he actually has changed just to get an evidentiary hearing.

The case will go back to the lower court for an evidentiary hearing. That does not mean Daniel will be released, though. For that, we'll have to stay tuned.

The Nov. 19 appellate ruling in State v. Arends (2008AP52) is online here. News coverage in the Journal Sentinel of Milwaukee is here.

Hat tip: Steve Erickson

Treating therapist as police interrogator

For all you psychologists, here's a quick ethics vignette:

You live and work in a small town, population 13,000. Like many psychologists, you have a diverse practice. You treat patients at a local mental health clinic. You serve on professional boards. You work part-time as a consultant to the local sheriff's department.

One day, the sheriff asks you to come down and help with some interrogations in a cold case of sexual assault and murder. Among the suspects being questioned are Deb and Ada, two young women you treated in your private practice.

What do you do?

If you are Wayne R. Price, Ph.D. of Beatrice, Nebraska, you see no problem in interrogating the young women despite having been their therapist:

"What I find, I find. It makes no difference to me," Price testified at a pretrial hearing. "When I have an emotional involvement or vested interest and can't do it objectively, I will say so."

Price's role in helping elicit confessions from two of his former patients is in the spotlight now, almost two decades later, because of new DNA evidence pointing to a different killer. The so-called Beatrice Six case has set a record for the number of people exonerated by DNA evidence in a single case.

The five suspects who confessed fit the pattern of false confession cases: Suggestible young people with psychiatric or cognitive problems who used alcohol or drugs, were easily confused, and were worn down by aggressive questioning.

False confessions like this are not nearly as unusual as many people still think. According to the Innocence Project, they have been found in about one-fourth of DNA exonerations.

What is unusual in the Beatrice Six case is the psychologist's role. A psychologist playing the dual roles of trusted therapist and criminal interrogator "would have had a powerful place of trust and persuasion over suspects," the Omaha World-Herald cites confession experts as stating.

The Six did not become formal suspects until four years after the 1985 murder of Helen Wilson. The ball got rolling when a hard-partying 23-year-old named Tom Winslow was in jail for an unrelated crime, the beating of a motel clerk during a robbery. Police approached him with an offer he couldn't refuse: "Help us solve our murder case, and we'll get you out of jail on bond."

Winslow claims police called him a liar and threatened him with the electric chair if he did not confess. He said police fed him information and "suggested he was blocking out memories of a horrific crime due to the cloud of alcohol or drug abuse," according to reporter Paul Hammel, who has followed the case for the World-Herald.

Earlier this month, authorities announced that the DNA found at the crime scene matched an Oklahoma City man, Bruce Smith, who had since died. In light of that evidence, the state is seeking pardons for the Beatrice Six.

Joseph White, a 26-year-old drifter from Alabama, was the only one of the Six who refused to confess. A jury deliberated for only a few hours before convicting him anyway, largely on the testimony of co-defendants who received reduced charges in exchange.

One of White's attorney's, Toney Redman, recalled arguing in court that those testifying were "so weak-minded" that their stories could not be trusted.

"I'm fully convinced now that the police, if they wanted to, could get any borderline personality person, who has alcohol and drug issues, and scare them to death and get them to confess to anything," he told the World-Herald.

Two of the three who testified against White - Ada JoAnn Taylor and Deb Shelden - were former patients of Dr. Price. Their accounts reportedly changed over time, partly after Dr. Price encouraged them to recollect more details.

Taylor, diagnosed by Price with a personality disorder, initially said she couldn't recall much because she had memory problems. After police insisted she was at the scene of the murder, she eventually changed her story. She also told investigators she communicated telepathically with a friend and had five former lives and an imaginary twin. She took a plea deal and was paroled in November.

Shelden, the other former patient of Price's, initially told interrogators she didn't recall the details of the assault on her grand-aunt until months later, when she began having nightmares. She said Dr. Price helped her to remember the details. Shelden was paroled after serving 10 years in prison.

Although Dr. Price - now executive director of Blue Valley Behavioral Health in Beatrice - doesn't see a problem with his dual roles in the Beatrice Six case, many other psychologists might.

Beneficence and Nonmaleficence is the very first principle of the American Psychological Association's Ethics Code, advising us to to "benefit those with whom [we] work and take care to do no harm." Another principle, Justice, cautions psychologists to "exercise reasonable judgment and take precautions" to avoid participating in unjust practices. A third principle, Respect for People's Rights and Dignity, discusses the duty to safeguard people's confidentiality and self-determination, especially when their "vulnerabilities [might] impair autonomous decision making."

The dangers of multiple relationships are specifically addressed in Section 3.05 of the Ethics Code. Psychologists are forbidden from engaging in dual relationships that "risk exploitation or harm to the person with whom the professional relationship exists."

The Forensic Psychology Specialty Guidelines, published two years after Dr. Price's involvement in the Beatrice Six interrogations, also caution against engaging in dual relationships that might cause harm: "Forensic psychologists recognize potential conflicts of interest in dual relationships with parties to a legal proceeding, and they seek to minimize their effects. Forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship."

It's hard to see how providing someone with confidential psychological therapy would not be inconsistent with later becoming that person's police interrogator.

If you have other thoughts on the ethical contours of this case, I encourage you to comment.

Omaha World-Herald coverage of the Beatrice Six case is here, here, and here.

A classic article on dual roles in forensic psychology is: Greenberg, S.A. & Shuman, D.W. (1997). Irreconcilable Conflict Between Therapeutic & Forensic Roles. Professional Psychology: Research & Practice, 28, 50-57.

Spitzer update on DSM-V transparency

The latest on the controversy

Robert Spitzer, MD, chair of the DSM-III and DSM-III-R workgroups, has issued an update on efforts to reduce the secrecy surrounding the American Psychiatric Association's DSM-V revision process:

"As those of you who have followed this issue know, APA leadership has been resistant to improving the transparency of the revision process. At the outset, all DSM-V Task Force and Workgroup members were required to sign a confidentiality agreement that prohibited them from discussing anything about the DSM-V revision process.... Requests to APA leadership to see minutes of Task Force and Workgroup meetings were refused on the grounds that releasing minutes would compromise the revision process by inhibiting free discussions among Workgroup members. It also was argued that making minutes of meetings and conference calls would jeopardize APA's intellectual property rights. How this would happen has never been explained....

"Pressure on APA leadership to increase transparency culminated in the drafting of an Action Paper by some members of the APA Assembly. The paper called for the posting of the minutes to the DSM-V workgroup and task force meetings on the DSM-V web site....

"Although clearly a move in the right direction, I believe that these reports fall far short of providing the requisite transparency. The Workgroup reports are quite variable in terms of the amount of detail they provide regarding possible directions for change in the DSM-V....

"Full transparency of the process will only be satisfied by posting the minutes of all DSM-V conference calls and meetings so that the process of the deliberations is evident to all . Anything less is an invitation to critics of psychiatric diagnosis to raise questions about the scientific credibility of DSM-V. That is exactly what Christopher Lane, a harsh critic of the DSMs, did in an Op-Ed piece for the LA Times.

"One of the oft-repeated DSM-V talking points is that the process is 'open and transparent.' To be truly transparent, the nuts and bolts of the DSM-V process needs to be open for outside scrutiny. When it comes to the crucial issue of transparency, even the appearance of impropriety must be avoided. Rather than appearing open and transparent, current APA policy continues to give the appearance that APA has something to hide about how it is developing DSM-V. It remains likely that unwanted media attention will fall on the DSM process until full transparency is achieved."

The only Task Force report posted so far is here. Progress reports from the individual workgroups are posted here.

My readers will be especially interested in the report from the Sexual and Gender Identity Disorders workgroup, which will make recommendations for the highly controversial Paraphilias section of the DSM. The brief report is very vague and really doesn't say much. Rumor has it that the workgroup may be considering adding a new diagnosis for nonsadistic rapists, a highly controversial proposal that was rejected the last time around but would help government experts at civil commitment proceedings. With the continuing secrecy surrounding the process there is no way to know for sure what the workgroup is up to; we'll just have to stay tuned.

Robert Spitzer can be reached via email at Spitzer8@verizon.net.

Blogging jurors

Blogs take on a direction of their own. I have written far more about the DSM-V and sex offender issues than I ever thought I would when I started this blog 19 months ago. There's just a lot to say on those fronts.

Similarly, when jury consultant and trial lawyer Anne Reed started her excellent jury blog, Deliberations, she did not envision how many posts she would write about jurors who blog. But she has. And when she is quoted, interviewed, or asked to speak, social networking is the number one topic of interest.

I have a long list of topics that I never get around to, and blogging jurors is one that keeps going to the back burner. Since I haven't gotten around to writing about it yet, I've decided to point my readers to Anne Reed and let her tell you all about this interesting topic that trial lawyers in particular need to pay more attention to:

So here come two more online jurors this week, frightening lawyers everywhere. There's the Facebook juror in England who put a poll on Facebook to help her decide guilt or innocence. And there's the blogging juror here who knows she can't write about the case, but thinks that "doesn't mean I can't give people a a glimpse of the people I am dealing with," and so gives a great sketch of each person in the courtroom. ("The lead defense lawyer. When he is trying to make a point when questioning a witness he beats his hand on the jury box. "So you *wham* are telling me *wham* that blah blah blah blah blah BLAH! *WHAM*" ) The Facebook juror was dismissed; the word-sketch artist is still sitting, as far as we know.

Reed's advice to attorneys?

This is going to happen to you. It's going to happen to you. It's going to happen to you.

Four things to add to your trial task list:

1. Ask. Ask jurors in voir dire whether they write on line and if so where. If you get a "yes" to that question, you have several tools: (1) the judge can strongly impress on that particular witness that she is to write nothing about the trial, not even character sketches; (2) the lawyers can keep an eye on the juror's site during the trial; and (3) if there's time, you can jump on the juror's site before the jury is chosen to see if it contains anything of concern.

2. Look. Simply running searches by jurors' names -- before the jury is seated if possible, after if not -- you can find non-anonymous blogs, of which there are many.

3. Watch. Even if you've asked and looked, you can still have jurors writing about your trial that you didn't know about, on anonymous sites they did not disclose. If you have enough people, assign someone to set up standing searches to try to catch these, using terms the juror might choose -- the location of the court, and the type of case it is. It also makes sense to check on-line comments to news stories about the case, where you have the staffing to do it.

4. Relax. It's possible that none of these techniques will find the Facebook juror or the sketch artist on your trial. Does that mean we're in a frightening new world with intolerable new rules? I don't think so. Remember that in the old days, both jurors probably would have had talked about the case in the same way, but in conversations with their friends, not on line -- and you wouldn't have found out about those either. If anything, it's easier, not harder, to find chatty jurors than it was when they simply talked.

Click here to see her full post, with links to an entire series on blogging jurors and to her very practical Trial Lawyer's Guide To Social Networking Sites, which does the work for you inquisitive types by linking to all of the major (and many of the minor) social networking sites.

I hope all of you have a nice Thanksgiving holiday!

Photo credit: VintFalken (Creative Commons license)

More on the DSM-V controversy

"The new mental disorders?"

Inspired by last week's op-ed in the L.A. Times, Atlanta Journal-Constitution staff writer Richard Halickshas has a new piece questioning some of the strange new diagnoses being proposed for the DSM-V:

Sex addiction. Internet addiction. Compulsive buying disorder. All of these and more could become officially recognized mental disorders in the next few years. The American Psychiatric Association is creating the fifth edition of its Diagnostic and Statistical Manual, or DSM-V, which defines mental disorders and adds new ones with each edition.

Christopher Lane, author of the book "Shyness: How Normal Behavior Became an Illness," complained last week that the new DSM, due out in 2011, is being put together in secret, a charge that DSM's editors denied.

In "Wrangling Over Psychiatry’s Bible," published in the Los Angeles Times, Lane also warned that the creation of new disorders where none currently exists may be "little more than a pretext for prescribing profitable drugs."

Here's a look at selected new ailments under consideration by the committees of experts writing DSM-V.

Sex addiction

Real, says Dr. Patrick Carnes, a leading researcher in the field. It's a "compulsive behavior that completely dominates the addict's life. Sex becomes the organizing principle of addicts' lives."

Not real, says Seattle therapist Roger Libby. Slate.com quotes Libby: "You cannot be addicted to yourself. You have to have a substance external to yourself like alcohol or drugs to be addicted."

Caffeine withdrawal disorder

Real, say Johns Hopkins University researchers. Withdrawing from the world's most-used drug causes headache, fatigue, irritability, depression, difficulty concentrating, even flulike symptoms.

Not real? Few seem to argue against this. It's in DSM-IV as a trial diagnosis and is up for official diagnosis designation in DSM-V.

Parental Alienation Syndrome

Real, says paskids.com: [PAS] "arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification."

Not real, says the National Organization for Women: "Parental alienation really is a dangerous and cleverly marketed legal strategy that has caused much harm to victims of abuse, especially women and children during and post-divorce."

Internet addiction

Real, says Dr. Jerald Block, writing in the American Journal of Psychiatry: "Internet addiction appears to be a common disorder that merits inclusion in DSM-V… . [It] consists of at least three subtypes: excessive gaming, sexual preoccupations and email/text messaging."

Not real, argues thelastpsychiatrist.com. "Internet addiction belongs in DSM-V… . And then let's rename the DSM The Book of Fantastikal Magickal Pixies and incorporate it into the Monster Manual."

As you see in the above coverage, the APA denies the charge by Lane and others, including none other than DSM-III Task Force Chairman Robert Spitzer, that the DSM-V revision process is occurring in secrecy.

But, as Spitzer points out in a letter to Psychiatric News, the secrecy is spelled out quite clearly in the contract that all DSM-V task force members must sign:

"I will not, during the term of this appointment or after, divulge, furnish, or make accessible to anyone or use in any way... any Confidential Information. I understand that 'Confidential Information' includes all Work Product, unpublished manuscripts and drafts and other pre-publication materials, group discussions, internal correspondence, information about the development process and any other written or unwritten information, in any form, that emanates from or relates to my work with the APA task force or work group."

The Atlanta Journal-Constitution article is online here. Spitzer's letter about the secrecy is here. My previous post on the DSM makeover controversy is here.

Locking the courthouse doors

I recently blogged about how the current economic crisis is affecting public defender services, creating a potentially unconstitutional situation in which indigent clients cannot get adequate legal help.

Now, at least one county is proposing to curtail essential court services in order to balance the budget.

That is also unconstitutional, says the presiding judge.

The judge of the King County (Seattle), Washington court, the state's largest court, is taking the unusual step of going public. In an opinion piece in the Seattle Times, he reminds the public of the county's duty to adequately fund not only the courts but also the prosecutor and the public defender -- "There is only so much that can be cut before the administration of justice is undermined."

Presiding Judge Bruce Hilyer also pointed out the penny-wise, pound-foolish nature of the wild budget slashing occurring these days.

For example, Seattle's Drug Court is a nationally recognized model that brings in $3.7 million biannually from the state. That money will be forfeited if the Drug Court shuts down. Taxpayers will also lose in the long run if more drug offenders are incarcerated rather than rehabilitated.

In responding to the county proposal to close the court for 10 working days next year, Judge Hilyer delivers a basic civics lesson:

A core principle of our system of government is three branches, each with authority independent of the other. The legislative branch sets policy, the executive branch implements it and the independent judiciary protects the rule of law and the rights of the individual against the other powers of the state…. The drafters of our state constitution foresaw the risk that one branch of government might force closure on another branch. To prevent this, our constitution provides that the superior court "shall always be open, except on nonjudicial days," which are weekends and holidays. …. Apart from weekends and holidays, the courts may be closed only in physical emergencies like snowstorms, floods or earthquakes….

King County faces some very hard choices. But no matter what they are, we cannot afford to suspend our citizens' access to justice by closing our courts.

The full article, "King County Superior Court cannot be closed," is online here.

"The sausage-making of psychiatric care"

"The less you know about how mental health is defined, the better. Or perhaps it's the other way around."

In case you missed English professor Christopher Lane's excellent opinion piece in the L.A. Times last week, the Minneapolis Star Tribune ran it this Sunday. As the American Psychiatric Association gears up for DSM-V, we all need to keep it real when it comes to psychiatric diagnosis. Let's hope this media spotlight will encourage the APA to increase the transparency of the process and make sure only legitimate diagnoses get added to the manual.

The Star Tribune op-ed is online here.

Don’t blame me - AT&T did it!

(Or, my variation on the TODDI defense*)

Loyal subscribers may have noticed an absence of blog posts this week. It's true that I have been busy, but the dearth is partly the fault of AT&T, which shut me down earlier this week.

When I called to find out why my Internet service (and, more urgently, my incoming business telephone line!) was dead, they sent me on a wild goose chase to purchase new equipment.

It took dozens of phone calls, hours of time "on hold," and a two-day wait before they finally sent out a repair person. As it turns out, a technician working on a central terminal up the street had accidentally snipped off my line and spliced me into someone else's.

Accidents happen. And when I complained about the lengthy delay, the good folks at AT&T did compensate me -- to the tune of $16.79.

Sorry 'bout that, folks.

* The TODDI Defense -- The Other Dude Did It -- was one of the most common defenses I heard when I worked as a criminal investigator.

Wrangling over psychiatry's bible

Check out this opinion piece in today's Los Angeles Times. (It cites yours truly on the forensic angle.) The writer, Christopher Lane, is the author of an excellent book on the making of the DSM-III, entitled Shyness: How normal behavior became a sickness.

Los Angeles Times
November 16, 2008

By Christopher Lane

Over the summer, a wrangle between eminent psychiatrists that had been brewing for months erupted in print. Startled readers of Psychiatric News saw the spectacle unfold in the journal's normally less-dramatic pages. The bone of contention: whether the next revision of America's psychiatric bible, the "Diagnostic and Statistical Manual of Mental Disorders," should be done openly and transparently so mental health professionals and the public could follow along, or whether the debates should be held in secret.

One of the psychiatrists (former editor Robert Spitzer) wanted transparency; several others, including the president of the American Psychiatric Association and the man charged with overseeing the revisions (Darrel Regier), held out for secrecy. Hanging in the balance is whether, four years from now, a set of questionable behaviors with names such as "Apathy Disorder," "Parental Alienation Syndrome," "Premenstrual Dysphoric Disorder," "Compulsive Buying Disorder," "Internet Addiction" and "Relational Disorder" will be considered full-fledged psychiatric illnesses.

This may sound like an arcane, insignificant spat about nomenclature. But the manual is in fact terribly important, and the debates taking place have far-reaching consequences. Published by the American Psychiatric Association (and better known as the DSM), the manual is meant to cover every mental health disorder that affects children and adults.

Not only do mental health professionals use it routinely when treating patients, but the DSM is also a bible of sorts for insurance companies deciding what disorders to cover, as well as for clinicians, courts, prisons, pharmaceutical companies and agencies that regulate drugs. Because large numbers of countries, including the United States, treat the DSM as gospel, it's no exaggeration to say that minor changes and additions have powerful ripple effects on mental health diagnoses around the world.

Behind the dispute about transparency is the question of whether the vague, open-ended terms being discussed even come close to describing real psychiatric disorders. To large numbers of experts, apathy, compulsive shopping and parental alienation are symptoms of psychological conflict rather than full-scale mental illnesses in their own right. Also, because so many participants in the process of defining new disorders have ties to pharmaceutical companies, some critics argue that the addition of new disorders to the manual is little more than a pretext for prescribing profitable drugs.

The more you know about how psychiatrists defined dozens of disorders in the recent past, the more you can appreciate Spitzer's concern that the process should not be done in private. Although a new disorder is supposed to meet a host of criteria before being accepted into the manual, one consultant to the manual's third edition -- they're now working on the fifth -- explained to the New Yorker magazine that editorial meetings over the changes were often chaotic. "There was very little systematic research," he said, "and much of the research that existed was really a hodgepodge -- scattered, inconsistent and ambiguous. I think the majority of us recognized that the amount of good, solid science upon which we were making our decisions was pretty modest."

Things are different today, the new consultants insist, because hard science now drives their debates. Maybe so, but still, I shudder to think what the criteria for "Relational Disorder" and "Parental Alienation Syndrome" will be. And I'm not the only one worrying. Spitzer is bothered by the prospect of "science by committee." Others, like forensics expert Karen Franklin, writing in American Chronicle, warn that advocacy groups are pressing for the inclusion of dubious terms that simply don't belong in a manual of mental illnesses….

My concern is the lack of proper oversight. If the proposed new disorders don't receive a full professional airing, including a vigorous debate about their validity, they will be incorporated wholesale into the fifth edition in 2012. Joining the ranks of the mentally ill will be the apathetic, shopaholics, the virtually obsessed and alienated parents. It's hard to imagine that anyone will be left who is not eligible for a diagnosis.

Christopher Lane, a professor of English at Northwestern University, is the author of "Shyness: How Normal Behavior Became a Sickness."

Lane's full opinion piece is online here.

As I have blogged about previously, one example of a proposed diagnosis with no established reliability or validity is "hebephilia." My response to the attempt to get that term added to the DSM-V was just published in the Archives of Sexual Behavior. You can see a free preview (the first page) of "The Public Policy Implications of 'Hebephilia' " here, but you need a subscription to get the entire article.

My blog post on the DSM-V revision process is here.

The Jury Expert

The new issue of The Jury Expert (a publication of the American Society of Trial Consultants) is now online. Articles include:

Just world jurors: A research review
How can just-world beliefs impact jurors?

Cross-examining the narcissistic witness
A follow-up to a previous Jury Expert article on preparing the narcissist to testify, this article focuses on how to cross-examine narcissistic witnesses.

Conceptual persuasion
A primer on the impact of graphics.

Juror reactions to successful women
Mitigating negative judgments by jurors about successful women attorneys, plaintiffs, defendants (or expert witnesses?)

Do liberals and conservatives punish differently?
Of course they do. This article explains the different themes of interest to jurors of different political persuasions.

The full issue is available here.

Incompetent bank robber cannot be forcibly medicated, court rules

I just came back from evaluating a convicted prisoner to see if he is competent to proceed with his appeal. He has been found "gravely disabled" and is being forcibly injected with an antipsychotic medication (Haldol Decanoate).

He was refusing to eat because he thought the food was poisoned. But what if he was eating his food and behaving himself, but still quietly harbored paranoid delusions?

That's when Sell would come in.

As many of you know, under the 2003 case of the 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
• the medication is medically appropriate

In a boon to good, old-fashioned talk therapy, the Sell ruling also mandated a showing that less intrusive and noxious treatments will not work.

In New Jersey, a federal judge just ruled that the government did not meet the burden of proving those things in the case of a paranoid bank robbery defendant named Wayne Moruzin. Prosecutors had claimed there was a good chance that Haldol injections would stop his paranoia and hallucinations and make Moruzin fit for trial. But a U.S. District Court judge said they didn't provide enough evidence of that, considering the health dangers of antipsychotics such as Haldol.

I've never met anyone who liked taking Haldol. It makes you feel like a drugged-out zombie, and it can cause severe and permanent health problems.

But such a ruling always leads to the question, what will happen next? The government can try to civilly commit Moruzin, or they can just wait and see if he gets better - which is unlikely without medication.

The ruling parallels a U.S. District Court decision in January of 2007 involving a different mentally ill bank robber. In that case, though, the robber had already pleaded guilty in three other bank heists and was serving a 36-year sentence.

The cases don't break new legal ground, but they do continue an interesting trend.

The New Jersey Law Journal report on the Moruzin case is available online at law.com.

NYT reports on public defender crisis

The current budget crisis is adding to the inequities in the criminal justice system. As workloads mount and budgets decrease, public defenders across the nation find themselves unable to adequately represent their impoverished clients. On Sunday, the New York Times reported on the catastrophe:

Citing Rising Workload, Public Lawyers Reject Cases
By ERIK ECKHOLM

MIAMI — Public defenders' offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.

Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, the government appointed lawyers say budget cuts and rising caseloads have pushed them to the breaking point.

The full article in Sunday's New York Times is here.

Don’t Tase Me, Bro!

Have you ever:

• Drawn a picture of an SUV?
• Worn a hoodie?
• Refused an order to sod your lawn?
• Given the wrong account of history?

These are among dozens of acts for which people have been arrested, suspended from school, gone to jail, or faced other sanctions in just the past few months. No kidding.

It's all documented by Phil Leggiere on the new civil libertarian blog, "Don’t Tase Me, Bro!"

Check it out here. If you like it, you can add it to your feeds.

5th-grader suspended for vampire drawing

Perhaps I am too fixated on Halloween (I promise to stop now!), but I found this story out of Savannah, Georgia fascinating, with its hysterical and racist undertones. Of course, this 5th-grader's troubles were nothing compared to what happened to high schooler Tim Masters when he drew scary pictures.

Halloween drawing scares teacher, gets student in hot water

Fifth-grader Jordan Hood thought the bloody vampire he drew in art class was scary, but he had no idea it would elicit a horrifying response from one of his teachers.

Tuesday morning, Jordan was assigned to draw a scary Halloween mask in art class.

By the end of the day, Jordan was being told he could not return to Pooler Elementary School until he passed a psychological evaluation....

During art class Tuesday, Jordan drew a scarred vampire with bloodshot eyes and with blood dripping from its nose, mouth and down its cheeks. Art teacher Lloyd Harold helped the boy shade the sketched eyes to give the drawing an even creepier look.

"The assignment was to draw a scary mask or picture - basically a Halloween activity," Harold said.

As a final gory touch, Jordan used a red marker to write "I Kill For Blood" under his drawing.

The picture was not destined for the cover of Fangoria magazine, but it fulfilled the requirement for fifth-grade Halloween art.

However, when Jordan's homeroom teacher, Melissa Pevey, saw the drawing, she found it disturbing. Pevey was concerned enough to contact assistant principal Valerie Johnson and Campus Police.

But it wasn't blood and gore that bothered Pevey.

She believed the blood looked a lot like gang-related teardrop tattoos, and she thought the words "I Kill For Blood" could be tied to an infamous Los Angeles street gang known as The Bloods.

Jordan's mother, LaKisha Hood, was shocked to find that her son's art lesson had evolved into a gang investigation.

"They told me the droplets could actually be a gang symbol for the number of people he killed," she said.

Burnsed said the district has asked teachers to be wary of anything that might be harmful to students. He also said the district has provided gang-identification training.

He did not know whether classroom teachers were trained in gang symbolism.

"The teacher was concerned and referred it to the Campus Police," Burnsed said. "(Campus Police Capt. Joan) Sasser wasn't sure that it meant anything."

So they resolved the issue by requiring Jordan to undergo psychological testing with Gateway Mental Health.

Jordan's family didn't want him to miss school, so he went in for testing first thing Wednesday morning - getting him back to school in time for the fall dance that afternoon.

Although he only lost about two hours of instruction, his mother fears the incident also might cost him a bit of innocence and trust.

"He didn't know anything about gang symbols until the teacher accused him," she said. "We moved to Pooler thinking he'd be in a more diverse school with better opportunities.

"And so far, it hasn't been a pleasant experience."

The full story is here. I have previously highlighted the story of Tim Masters, who was convicted of murder in large part due to a series of "scary doodles."

Hat tip: The excellent blog, Don't taze me, Bro!

Movie recommendation: The Changeling

The Changeling is a powerful film. It tells the long-forgotten story of a working-class woman who brought down the corrupt establishment of Los Angeles 80 years ago.

Angelina Jolie gives a strong, Oscar-worthy performance as Christine Collins, a single mother and one of the first female supervisors at the phone company who refuses to bow down to corrupt police when her son vanished without a trace in 1928.

Los Angeles on the brink of the Great Depression was an epitome of corruption. The police chief, James "Two Guns" Davis, had an officially sanctioned "gun squad" that terrorized opponents with impunity. When Collins' son Walter vanished, the L.A. police were embarrassed by their inability to find him. To squelch public criticism, they tried to convince Collins that a young drifter was her son. When Collins protested, police Captain J.J. Jones labeled her as histrionic and delusional and had her locked in a "psychopathic ward."

Luckily for Collins, her plight came to the attention of Gustav A. Briegleb, a Presbyterian minister and community organizer who regularly lambasted police corruption on his radio show. It was through Briegleb's help that Collins was able to get a lawyer and tell her story. Indeed, although it is not mentioned in the movie, Collins' case led to passage of a law that prohibited police from incarcerating people in psychiatric facilities absent due process.

My review continues here (click to the Amazon page and then scroll down to the customer reviews; please click on "yes" if you find the review helpful).

Pendulum swing on Halloween hype?

In a counterpoint to my Halloween post yesterday, Grits for Breakfast has a roundup of critiques of the "annual, mostly fact-free media hype surrounding registered sex offenders and Halloween." Comedy shows such as Saturday Night Live and Jay Leno deserve some of the credit for lampooning the ridiculous restrictions and causing some officials to back down.

For example, after being the butt of jokes on Saturday Night Live, officials in Maryland backed off of their annual ritual of forcing registered sex offenders to post a bright orange sign on their doors, stating in capital letters: "NO CANDY AT THIS RESIDENCE."

"Laughing at stupid public policies is sometimes the best way to influence public opinion, so I'm glad to know the Saturday Night Live piece struck a nerve and many in the public apparently see through the hype. After all, trick or treaters are statistically much more likely to be hit by lightning than molested by a registered sex offender while soliciting candy," comments Scott Henson over at Grits.

Henson calls the farcical crackdowns an example of "security theater," or "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."

Another sign that the pendulum may be swinging was a U.S. District Court judge's grant of temporary injunctions against two provisions of a Missouri law banning sex offenders from having any "Halloween-related contact" with children.

Judge Carol Jackson called the provisions unconstitutionally vague. According to the Wall Street Journal's law blog, the judge was concerned that sex offenders might be punished for engaging in Halloween-related activities with their own children, such as "carving a pumpkin in the privacy of your kitchen with your 5-year-old child." She questioned whether such parents might have to send their kids away on Halloween to avoid prosecution.

The challenge was brought by the ACLU of Eastern Missouri on behalf of four convicted sex offenders. As I reported on Tuesday, civil rights attorneys are devoting more and more of their resources to protecting the rights of society's most vilified citizens; these lawyers will deserve the lion's share of credit if the pendulum does begin to swing back toward rationality.

Speaking at last week's Association for the Treatment of Sexual Abusers (ATSA) conference in Atlanta, attorney Sarah Geraghty of the Southern Center for Human Rights said she never would have foreseen that her career would take this direction, but she is happy that it did because she thinks she has found her life's calling.

Grits for Breakfast has extensive coverage and links on the Halloween hysteria and responses.

Beware the Halloween bogeyman!

This Halloween, as vampires, ghosts, witches, and other fearsome creatures stalk the night, communities are gearing up for an even more horrendous monster, the most evil and terrifying of them all. It's .... eeeeeek .......

THE SEXUAL PREDATOR!

On Halloween, communities around the United States are taking drastic and unprecedented steps to keep vulnerable young children safe from this lurking menace:

• In Roanoke, Virginia, and Anderson, South Carolina, convicted sex offenders will be rounded up and held at a single location.
  

• In Tennessee, sex offenders are being forbidden from wearing costumes or handing out candy to trick-or-treaters.

• In Maryland, registered offenders are being required to post "No Candy" signs on their doors.

• In Harris County, Texas, sheriff’s deputies are cruising the streets, ready to arrest any sex offender with Halloween decorations on his home.

• In California and Illinois, paroled offenders must turn off all outside lights, stay in their homes from 5 p.m. to 5 a.m., and not answer their doors except to police.

The good citizens of Belleville, Missouri are going further this year. Not only are sex offenders prohibited from handing out candy, but normal teenagers are no longer allowed to trick-or-treat! A newly enacted city law bans anyone in the ninth grade or higher from trick-or-treating, unless they are a "special-needs" child accompanied by a parent or guardian. Even younger kids must stop trick-or-treating by 8:30 p.m. under penalty of arrest. The rules were prompted by citizen fear of menacing high schoolers.

"We believe that Halloween is for little children," said the town's mayor, Mark Eckert. "We just feel that we need to go that extra mile to protect the children."

And there's the rub. Fear and hype notwithstanding, there is not one single case on record of a child being sexually molested by a registered sex offender while trick-or-treating on Halloween.

In that regard, the current sex offender scare has much in common with the Halloween legend of tainted candy.

As Benjamin Radford of the Skeptical Enquirer pointed out about that enduring 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.

The real danger facing children this Halloween is getting hit by a car while crossing a dark street.

That, and dental cavities.

Also see the essay by Benjamin Radford in LiveScience , "Halloween Hysteria: Phantom Fears and Sex Offenders."

Graphics credit: Zombophoto (Creative Commons license).

Note: This post is back by popular demand from last year's Halloween essay; the Belleville law is new, but all the rest of those listed above were in place last year. This year, you can bet that even more states and municipalities will have jumped on the bandwagon. Feel free to post new ones that you may know about in the "Comments" section.

The case for videotaping interrogations

Detective's candid call for reform

I've been a police officer for 25 years, and I never understood why someone would admit to a crime he or she didn't commit. Until I secured a false confession in a murder case.

So begins a Los Angeles Times opinion piece by Jim Trainum, a Washington DC police detective who runs a cold case unit and lectures on interrogations and false confessions and other police investigation topics.

Like most people, Trainum was firmly convinced that only the guilty confess to crimes. And, like most police, he believed his suspect's confession - obtained without threats or abuse - was "solid."

Even after an "ironclad alibi" forced dismissal of charges, the detective and others continued for years to think she was guilty: After all, she had confessed. And even her own attorney thought she was guilty of killing the man, who had been robbed, beaten, and dumped in a river.

Trainum's thinking underwent a dramatic change only years later, when he reviewed the videotape of the mid-1990s confession in light of more contemporary understanding of false confessions:

"We ignored evidence that our suspect might not have been guilty, and during the interrogation we inadvertently fed her details of the crime that she repeated back to us in her confession," he realized.

Trainum's op ed, focusing on the need to videotape interrogations, is here.

Georgia sex offender law unconstitutional

At last week's Association for the Treatment of Sexual Abusers (ATSA) conference in Atlanta, Sarah Geraghty of the Southern Center for Human Rights gave a compelling talk about the inhumanity of Georgia’s sex offender laws, the most draconian in the nation.

Blog readers may recall that Georgia is the state that made devoted mother Janet Allison a homeless, jobless leper simply for allowing her daughter's boyfriend to move into the family home after the daughter became pregnant. (See "Sex Offender Laws Gone Amok, April 10, 2007.)

In Alaska, as national news demonstrates, she might be congratulated. But not in Georgia.

The explicit goal of Georgia legislature was to force all sex offenders to leave the state. And no one was harder hit than the homeless. Homeless offenders were criminalized for not having a valid address to supply to the registry. The second such offense was punishable by life in prison. Yes, you read that right. Life in prison.

Almost as soon as the eloquent Ms. Geraghty left the ATSA podium, however, Georgia's Supreme Court struck down the homelessness provision of the law. In Monday's 6-1 decision, the court found the law unconstitutional because it fails to give homeless offenders a mechanism to comply.

Geraghty's group had brought the case on behalf of William James Santos, who was kicked out of a Gainesville homeless shelter and then arrested for failing to register with Georgia's sex offender list.

As reported in the New York Times, this is one of several challenges to the 2006 law.

Geraghty told the ATSA convention that it won't be the last. Around the nation, she is seeing signs of change; courts in several states have struck down various provisions of the new laws.

The case, Santos v. State, is online here.