Atkins claims: Did Texas psychologist skew data for death?

Denkowski faces loss of license for role in capital appeals

The U.S. Supreme Court's Atkins decision triggered a wave of ferocious legal battles in the 35 death penalty states. Since 2002, an estimated 7 percent of condemned prisoners have filed Atkins claims on the basis of mental retardation, with about 40 percent succeeding. As of mid-2008, by one tally, at least 82 death sentences had been overturned on Atkins grounds.

At the center of these ongoing skirmishes are forensic psychologists, whose expert opinions about a condemned prisoner's IQ and real-world functioning can literally make the difference between life and death.

With so much at stake, the pull toward partisanship is especially strong. In Texas, one psychologist who has testified in a whopping 29 cases -- nearly two-thirds of all Atkins appeals in that state -- now faces the loss of his license for alleged errors that systematically favored prosecutors.

George Denkowski skewed the administration and interpretation of test data to rule out mental retardation, according to an expose by investigative reporter Renée Feltz in the current issue of the Texas Observer. The state Board of Examiners of Psychologists has upheld a complaint against him, finding that he made "administration, scoring and mathematical errors" in three death penalty evaluations. The State Office of Administrative Hearings will hear his case Feb. 16.

The complaint was initiated by Jerome Brown, a forensic psychologist who had worked on opposite sides from Denkowski in five capital cases and was appalled by his technique of inflating obtained IQ and adaptive functioning scores through "estimation."

As Denkowski explained his method in the American Journal of Forensic Psychology, he uses a "composite methodology" to inflate the scores of "persons from the criminal socioculture," on the grounds that formal testing assesses "mainstream skills" that criminal offenders never learn.

In the case of Daniel Plata, a Mexican immigrant featured in the Observer expose, Denkowski used this clinical judgment technique to raise Plata's adaptive-behavior score from 61 to 71, and his IQ score from 70 to 77. (Antonin Llorente, a neuropsychologist who evaluated Plata in his native Spanish, reported Plata's IQ score as 65.)

Click on above image to see excerpt of
Denkowski's videotaped evaluation of Daniel Plata.

This subtly racist argument of cultural deficit seems to be becoming increasingly popular as a way to explain away the deficits of low-functioning Mexican immigrants in particular. I have encountered it in recent cases I have been involved in. Kevin McGrew, director of the Institute for Applied Psychometrics, offers a psychometric critique over at his Intellectual Competence and the Death Penalty blog, focusing on another Texas death case involving a Mexican immigrant.

After hearing all of the evidence in the Plata case, Federal District Court Judge Brock Kent Ellis issued a scathing critique of Denkowski's method, writing that all of his testimony "must be disregarded due to fatal errors." Plata’s sentence was commuted to life in prison.

Plata's lawyer, Kathryn Kase, told the Observer that all 17 appeals in which Denkowski opined against mental retardation should be re-heard:

"When you have junk science in a case, it’s like pouring poison into a punch bowl. You aren’t going to get the poison out. So you have to pour out the punch, clean the bowl, and start all over again."

In the case of one convict, Michael Richard, that suggestion comes too late. Richard has already been executed.

According to the Observer article, Denkowski originally opined that Richard was mentally retarded, with an IQ of 64 and an adaptive-behavior score of 57, well below the 70 cutoff. But he adjusted his scores after prosecutors showed him a list of books found in Richard's cell, concluding that Richard’s reading level suggested he was not retarded.

The defense psychologist, Jerome Brown, said when he asked Richard about these books -- one of which was written in German -- the prisoner said he used the books to sit on, since his death row cell lacked a chair.

Denkowski's unorthodox method has sparked outrage in the psychological community, including two rebuttals in the American Journal of Forensic Psychology (see resources below) and a pointed caution in the 2010 edition of the American Association on Intellectual and Developmental Disabilities’ diagnostic manual against use of his method.

Further resources:

Denkowski, George C. & Denkowski, Kathryn M. (2008). Adaptive behavior assessment of criminal defendants with a mental retardation claim, American Journal of Forensic Psychology, Volume 26, Issue 3, pp. 43-61.

Widaman, Keith F. & Siperstein, Gary N. (2009). Assessing adaptive behavior of criminal defendants in capital cases: A reconsideration, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 5-32 (response to Denkowski and Denkowski 2008)

Denkowski, George C. & Denkowski, Kathryn M. (2009). Adaptive behavior misconceptions about criminal defendants with a mental retardation claim: A response to Widaman and Siperstein, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 33-61

Olley, J. Gregory (2009) Challenges in implementing the Atkins decision, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 63-73 (response to Denkowski and Denkowski 2009)

Blume, John H., Johnson, Sheri Lynn, and Seeds, Christopher (2009), An Empirical Look at Atkins v. Virginia and Its Application in Capital Cases, Tennessee Law Review, Volume 76, p. 625

New findings on juvenile sex offending

Sexually Violent Predator laws have so colored our perceptions that we often ignore a more typical type of sex offender -- the kid next-door. Indeed, of known sex offenders against children, more than a third are other juveniles, according to a new study commissioned by the Justice Department.

Most of these young offenders are not pedophiles or sexual deviants. Rather, they are sexual experimenters, date rapists, and boys who commit sexual assaults as part of a group. Risk of sexual acting out increases sharply as boys enter puberty, and plateaus at age 14, according to the study. The overwhelming majority of youths apprehended for sexual misconduct -- an estimated 85-95 percent -- have no further arrests for sex offenses.

This suggests that new federal rules placing juveniles on public sex offender registries are counterproductive, as the broad majority of youthful sex offenders will mature out of offending and should not be stigmatized for life. Rather, says study co-author David Finkelhor, director of the Crimes Against Children Research Center, early sex education is a key to preventing youthful sexual misconduct.

Even as U.S. states get set to implement the registration and reporting requirements of the Adam Walsh Protection and Safety Act this year, under penalty of losing grants if they do not comply, a subcommittee of the House Judiciary Committee is receiving testimony about problems with the registry.

"There are some very compelling cases that ... don't rise to the threshold of a predator and shouldn't be on the register," Republican Representative Tonya Schuitmaker of Michigan, a member of the committee, told the Michigan Herald-Palladium. "Unfortunately, they get lumped in with the predators."

The newspaper cited as an example the case of a 17-year-old boy who perfectly illustrates the juvenile study findings:

Since committing his offenses between the ages of 12-14, he has not had any further problems. He successfully completed probation and 200 hours of public service work and he excels in school, where he plays several sports. Yet, when he turns 18 his name will be placed on a registry that will stigmatize him until his 40s.

Gloria Gillespie, a sex offender therapist, told the newspaper that the boy's offenses were exploratory, and he is not a predator at risk of committing new offenses.

"Juvenile murderers get off at 21 and they're not on any list," she said. "What's the purpose of this?"

The juvenile study is available here; USA Today coverage is here. An excellent Herald-Palladium (Michigan) article on sex offender registries is here. Graphics credit: Adreson (Creative Commons license)

ON A RELATED NOTE: For a judicial analysis of the punitive and stigmatizing impact of the federal reporting law (SORNA), see the Maine Supreme Court opinion in Maine v. Letalien. Eric S. Letalien was 19 years old when he was convicted of sexually assaulting a 13-year-old girl. He was sentenced to prison and placed on a public registry for 15 years. Later, the law was amended, requiring him to register for life. He appealed, citing the negative impact on his ability to maintain employment and fulfill his roles as a husband and a father. In last month's decision, Maine's Supreme Court overturned the lifetime registration requirement in cases like Letalien's as unconstitutional on ex post facto grounds.

2009: Bad year for death penalty

The writing is on the wall: Death sentences are at an all-time low, more states are abolishing capital punishment altogether, and -- in what is being called a "tectonic shift" -- the American Law Institute announced it will wash its hands of the enterprise.

Adam Liptak, the New York Times' astute legal analyst, says that of all of last year's developments, the American Law Institute action is the most critical. The influential institute, comprised of 4,000 judges, lawyers and law professors, created the modern framework for the death penalty in its 1962 Model Penal Code. Its vote to abandon its capital punishment structure followed a study finding that the system was plagued with systemic problems, including racial disparities, risks of executing innocent people, and exorbitant costs.

A campaign to have the institute take a formal stance against the death penalty failed, Liptak said in yesterday's column. Instead, the institute voted to disavow the structure it had created "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."

Meanwhile, New Mexico last year joined 14 other states that have abolished the death penalty in favor of the option of life without the possibility of parole. And although the number of executions was up nationwide from the previous year (from 37 to 52), fewer new death sentences were imposed than in any year since the United States reinstated capital punishment in 1976.

That may reflect not only dwindling popular support for capital punishment, but also the high costs during these tough economic times. The ever-rational state of California, which bucked the national trend despite an especially acute economic crisis, is spending an estimated $137 million per year on the death enterprise not including an estimated $400 million for a new facility to house its 690 death row prisoners, Time magazine reported.

Summing up the current pendulum shift, Time noted: "Urgently important to fewer and fewer people, yet less and less compelling to the country at large, the death penalty keeps sputtering along, dwindling as the years go by."

Graphics credit: Finishing-school (Creative Commons license)
Double hat tips: Tim D. and Gretchen W.

Best wishes for the holidays

If you have noticed a dearth of posts lately, it is because I am taking a holiday break. Until my return, I would like to wish all of you -- and especially my loyal subscribers -- a wonderful holiday season and a new year of peace and happiness.

Karen Franklin, Ph.D.

The high court and "selective empathy"

In a previous blog post, I briefly referenced the U.S. Supreme Court's recent opinion in Porter v. McCullum. The high court unanimously reversed a death verdict because the defense attorney failed to present mitigating evidence at the penalty phase of the trial.

George Porter Jr. was convicted of shooting his former girlfriend and her new lover to death. The potentially mitigating evidence that the jury didn't get to hear included military heroism during the Korean War, post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.

The decision was widely hailed by death penalty opponents and veterans' groups. But Linda Greenhouse, the Pulitzer Prize-winning journalist who covered the Supreme Court for the New York Times for 30 years and now teaches at Yale Law School, says the decision raises an important question about equity:

Is selective empathy better than no empathy at all?

Greenhouse was struck by "the sympathy that all nine justices displayed for a man who, in the fullness of his adulthood and after promising a friend that she would soon be reading about him in the newspaper, stole another friend’s gun and shot two people to death in cold blood."

She contrasted this with the court's unanimous opinion just last month in another case alleging inadequate representation and failure to adequately pursue mitigation themes in a death case. That case involved Robert Van Hook, also a military veteran, who robbed and murdered a man he picked up in a gay bar. In a decision that "sent chills down the spine of death-penalty opponents," the high court overturned an appellate reprieve, paving the way for Van Hook's execution.

Comments Greenhouse:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men's childhoods were -- indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don't make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won't be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

The full essay, well worth your perusal, is online HERE.

APA announces postponement of DSM-V

Today, shortly after the New Scientist article and editorial hit the Internet, the American Psychiatric Association issued a press release announcing that the publication of the DSM-V will be delayed by at least a year. The "anticipated release date" was moved back from mid-2012 to May 2013. The timing is rather prophetic on the part of reporter Peter Aldhous, who concluded his New Scientist article by predicting:

The final version of DSM-V is scheduled to be published in 2012, but given the level of controversy and the need to test whether psychiatrists can reliably use the proposed diagnoses, that date seems certain to slip.

The full release from the American Psychiatric Association is HERE.

New Scientist expose of psychiatry’s "civil war"

Proposed diagnoses of hebephilia and paraphilias NOS critiqued

On Saturday, the world's leading science and technology news weekly is publishing a scathing expose of the political and financial shenanigans underlying the DSM-V revision process. Accompanying the report in the New Scientist is an editorial calling for a halt to the print version of the American Psychiatric Association's money-making diagnostic bible:

The final wording of the new manual will have worldwide significance. DSM is considered the bible of psychiatry, and if the APA broadens the diagnostic criteria for conditions such as schizophrenia and depression, millions more people could be placed on powerful drugs, some of which have serious side effects. Similarly, newly defined mental illnesses that deem certain individuals a danger to society could be used to justify locking these people up for life.

Given such high stakes, we should all be worried by the controversy. Proponents of some of the changes are being accused of running ahead of the science, and there are warnings that the APA is risking "disastrous unintended consequences" if it goes ahead with plans to publish DSM-V, as the new manual will be known, in 2012.

"Psychiatry’s civil war" is the title of the hard-hitting expose by award-winning science writer Peter Aldhous, San Francisco bureau chief for New Scientist magazine.

As Aldhous reports, professional disputes over the form and content of the upcoming edition "are getting ugly." He notes that respected Duke University scholar Jane Costello has resigned from the work group on childhood and adolescence disorders, citing a lack of scientific rigor across the whole DSM revision. "I felt that there was not enough empirical work being achieved or planned," she says.

In a sidebar, Aldhous shines a spotlight on controversial proposals of pivotal importance to forensic psychology, including the pseudoscientific diagnosis of "hebephilia" that I have previously blogged about:

You may have never heard of "hebephilia", but this obscure diagnosis has huge significance in the courts. If it becomes accepted it could lead to hundreds of sex offenders who have served their jail time being locked up indefinitely - on grounds that some say are spurious.

The proposed diagnosis has been condemned by critics as dangerously blurring the boundary between paedophilia and normal male attraction to teenage girls -- which isn't necessarily acted upon. Karen Franklin, a forensic psychologist in El Cerrito, California, argues that the diagnosis makes a disease out of preferences that have been shaped through human evolution. "People didn't used to live so long and mating started earlier," she says.

The work group is also considering whether some men are specifically turned on by rape -- a proposed condition termed paraphilic coercive disorder. Again, the evidence is based largely on measurements of penile blood flow in response to sexual images and stories, and the validity of the condition is hotly contested.

The rows over hebephilia and paraphilic coercive disorder aren't academic, because 20 US states have passed laws that allow sex offenders who have served their sentences to be detained indefinitely in a secure hospital if they are deemed "sexual predators." This can only be done if the offenders have a psychiatric disorder that increases their risk of reoffending -- which few do, according to DSM-IV.

Franklin says that if hebephilia and paraphilic coercive disorder make it into DSM-V, they will be seized upon to consign men to a lifetime of incarceration.

In a call to put the brakes on this speeding train, the New Scientist's accompanying editorial points out that this would hurt the coffers of the American Psychiatric Association, which has earned more than $40 million since 2000 from DSM sales. But, the editorial concludes, "it's hard to see who else stands to gain from the current exercise -- and if the critics' dire predictions come to pass, patients will be the biggest losers."

Epic competency hearing continues

Vigorous cross-examination of prosecution psychiatrist

Since I'm receiving back-channel requests from colleagues to extend my coverage of the Brian David Mitchell case, and since it is after all one of the most historic competency hearings in recent memory, here is today's breaking news -- culled mainly from a report by Pat Reavy of the Deseret News.

Today, defense attorney Robert Steele vigorously cross-examined prosecution psychiatrist Michael Welner about why he did not put greater weight on the opinion of other experts, including Mitchell's treating psychiatrist at Utah State Hospital.

The attending physician, Dr. Paul Whitehead, believes that Mitchell is both psychotic and incompetent to stand trial. That opinion is shared by prominent forensic psychologists Jennifer Skeem and Stephen Golding, all three of whom are listed as defense witnesses. (See Judge Atherton’s 2005 ruling for a comprehensive analysis of the opinions of Skeem and Golding.)

"This is about Brian Mitchell. It's not about Dr. Whitehead, it's not about Dr. Skeem, it's not about Dr. Golding," Welner retorted on the witness stand today. He is defending his opinion, rendered under direct examination last week, that Mitchell is neither psychotic nor incompetent to stand trial for kidnapping and raping Elizabeth Smart back in 2002.

As you will recall from a previous post, Welner is a prominent New York psychiatrist who was paid about half a million dollars for his lengthy competency report. I don't know how much he is being paid for his court testimony, but I would sure love to know the total of federal tax dollars being expended on this massive competency trial.

Pat Reavy's full report in the Deseret News is available online.

"Legal pointillism": New approach to competency

First-hand account by witness against Brian David Mitchell

Competency to stand trial focuses on a different time frame than insanity and many other psycholegal constructs. We want to know the defendant’s present state of mind, not what he was thinking or doing in the past. Is he capable of understanding the legal proceedings at this point in time (and in the near future), and assisting his attorney on his own behalf?

But at the competency trial of Elizabeth Smart kidnap suspect Brian David Mitchell, the prosecutor is expanding the traditional scope of competency to encompass the defendant’s entire life, in a technique being labeled "legal pointillism." As he reportedly told an assembly of his witnesses this week:

Each of you has a dot to contribute. (Mitchell) wants us to be close, to just see the dots. We're standing back and viewing the big picture.

This strategy means bringing in a whopping 29 witnesses, including people from Mitchell's distant past who have no direct knowledge of his current mental state. Among these is Alysa Landry, a news reporter for the Daily Times of Farmington, New Mexico. She knew Mitchell for about five months in 1997, when the kidnap suspect lived at a home that prosecution expert Michael Welner labeled as "an al-Qaeda training ground for fundamentalist Mormons."

In a rare first-person account of such an experience, Landry says she underwent about 10 hours of questioning by attorneys, psychologists, and detectives in preparation for this week's testimony.

Finally, the moment of her testimony arrived:

I told of the mind games, power struggles and escalating violence in the house. I also told of Mitchell's self-important and demeaning attitudes and his mission to reinstate the laws of polygamy and consecration, both of which were abandoned during the church's early history.

I waited 12 years for someone to listen to my story, but I was not prepared for the vulnerability or isolation I felt after testifying…. Immediately after stepping from the witness box Tuesday, FBI agent Eric Lerohl asked me again if I was OK. I wasn't. My breath was quick and my fingers were beginning to spasm from lack of oxygen....

The pointillism strategy seems to go as follows: Mitchell is evil. Ergo, he is malingering psychosis. Ergo, he must be competent. We'll have to see if it flies. If so, expect to see it again soon, in a courtroom near you.

Landry's full account, "From cult to witness chair," is HERE. Background on the case is HERE.

Kiddie porn: Risky to ignore

Let's say you are a defense attorney assigned a criminal case that has nothing to do with sex. A garden-variety case of robbery and murder. No rape, no pedophilia, nothing sexual at all.

You might want to think about sex, anyway.

In a case out of Missouri, the high court ruled that it was reversible error for the defense attorney not to have checked out the child pornography on the murder victim's computer.

What relevance does that have to murder, you might ask?

Not much. The defendant, Mark Gill, and a buddy kidnapped Ralph Lape from his home in 2002, bound him with plastic ties and duct tape, and murdered him in a corn field. The motive was financial gain: Gill had learned that Lape had a large amount of money in his bank account.

But when Gill was arrested, he had Lape's computer with him, and investigators found images of underage girls and bestiality. So, when the prosecution presented evidence that the victim was an upstanding fellow, the defense attorney should have brought in those images as rebuttal evidence of bad moral character. Perhaps the jury would not have been so quick to impose the death penalty if it had not heard family members give a series of glowing and unrebutted reviews of Lape's generous character, the court reasoned.

Under the landmark case of Strickland v. Washington, the defense attorney's failure to pursue this angle was ineffective assistance of counsel, meriting reversal of Gill's death sentence and a new penalty trial, the court ruled.

The smutty material was also an issue in the trial of the co-defendant, Justin Brown. The prosecutor won a motion excluding the computer's sexual content as irrelevant unless the penalty phase witnesses opened the door by portraying the victim as someone who "walks on water" or as a "saint," in the trial judge's words. Accordingly, family witnesses were careful at Brown's trial not to overstate the victim's virtuous character. Brown was spared the death penalty, receiving a sentence of life without parole.

Mitigation usually focuses on defendant, not victim

Typically, it is defense attorneys' failure to present evidence of a defendant's good character that is grounds for reversible error under Strickland. In fact, just this week the U.S. Supreme Court in Porter v. McCullum unanimously reversed a death verdict because the defense attorney failed to present evidence of military heroism during the Korean War, as well as other potentially mitigating facts such as post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.

Pornography ubiquitous

At Gill's penalty phase retrial, one likely issue for the prosecution will be others with access to the computer. Ironically, it wasn't only the victim who downloaded pornography onto the computer. The murderer, Gill, also downloaded pornography, according to the prosecutor, even using the victim's credit cards to pay for it!

That isn't surprising. As it turns out, just about every male over the age of nine has looked at online pornography, according to new research out of Montreal. The researcher, Simon Louis Lajeunesse of the Universite de Montreal, said when he set out to find men in their 20s who had not consumed pornography, he could not find any. He found that most boys seek out pornographic material by the age of 10, when they are most sexually curious.

The researcher said his preliminary findings, funded by the Interdisciplinary Research Center on Family Violence and Violence Against Women, refute the "demonization" of pornography. Contrary to popular beliefs, he said, pornography does not produce negative attitudes toward women or aggressive behavior for men:

"Pornography hasn't changed [men's] perception of women or their relationship which they all want as harmonious and fulfilling as possible. Those who could not live out their fantasy in real life with their partner simply set aside the fantasy. The fantasy is broken in the real world and men don't want their partner to look like a porn star."

As online pornography becomes more ubiquitous, it will undoubtedly play a more prominent role in court cases. It will be interesting to see whether jurors care. Unless the pornography is particularly extreme or offensive, some male jurors may feel sympathy for the victim. They may see the issue as a distraction or even turn against defense attorneys who try to sully a victim's reputation.

Lape, after all, was letting Gill stay in a trailer on his property at the time he was killed. And just because he may have had some ugly sexual interests, that does not mean he was not a financially generous man as his family members testified.

The Missouri Supreme Court opinion in Gill v. Missouri is online here. The Southeast Missourian has news coverage. Additional case background is online here.

Hat tip: Sentencing Law & Policy

Record-breaking fee for competency report?

Forensic psychologists: If someone ever complains about your bill, you might want to share this little factoid:

A psychiatrist's competency report in the Brian David Mitchell case (Elizabeth Smart kidnapping in Utah) cost a whopping half million dollars.

And that was just for the report. It doesn't include the cost of expert testimony at Mitchell's competency hearing, currently in progress. And, believe it or not, that was the discounted rate.

Granted, Michael Welner's report was 206 pages long, and took 1,000 hours to produce. That makes the hourly fee $500, not inordinately high for a prominent forensic psychiatrist. But 1,000 hours is an awful lot of time to devote to any one case.

In testimony today, the prosecution's expert testified that in addition to evaluating Mitchell, he also did research on polygamy, the Mormon church, and related issues of revelation, prophets and Joseph Smith.

His bottom-line conclusion: Mitchell was motivated more by lust than religion or psychosis.

If anyone knows of a higher fee for a forensic report, or even a fee that comes close to this one, please let me know and I'll post your response.

Desert News coverage is HERE. An interesting commentary on Welner's controversial role -- and his fee -- in Andrea Yates' sanity trial is HERE. For more background on both Welner (author of the "Depravity Scale") and the Mitchell competency hearing, see my Sept. 1 post.

Bank account: A simple solution to crime?

Ever thought about how hard it would be to take care of basic business without a bank account or credit cards?

In the UK, an experimental project to open bank accounts for paroling prisoners has led to a remarkable finding: The ex-cons who got bank accounts were only half as likely as other parolees to reoffend.

And here's another remarkable finding: Four out of five of these guys had never had a bank account before.

What's the magic of banking?

The magic lies in being treated like a human being, says prison correspondent Eric Allison (himself an ex-prisoner) in today's Guardian of UK:

Some things are so blindingly obvious, their very dazzle prevents us from seeing them; of course having a bank account will go a long towards preventing reoffending; try getting a job, or accommodation, without one…. Prison service and the public take note, the more you do to integrate prisoners back into society, the less likely they are to reoffend. Treat those leaving our jails as normal human beings and you may be pleasantly surprised by the results.

Allison quotes a couple of prisoners saying pretty much that:

• "Having an account gave me a sense of self-respect, made me feel part of society."

• "It [the account] opened many doors and gave me a sense of identity."

Of course, science-minded readers will recognize that correlation does not equal causation. Perhaps there was some type of selection bias. Maybe prisoners motivated to "go straight" were more interested in bank accounts.

Nonetheless, just like restoring prisoners' right to vote, it is a pretty low-cost measure considering the potential benefits.

More information on the study is available from the Research Unit for Financial Inclusion at Liverpool John Moores University. Other interested articles on prison issues in the UK by Eric Allison are here.

Hat tip: Robert Forde

Note to readers

Regular blog visitors will notice a new look as of today. I've customized a new style that is a bit more streamlined and quick to load. All of the old features are still there, but I've added some new gadgets. You can now share content more easily on your favorite social networking media, and also use the "share" button to email or print posts. I will also be adding additional linked sites as time permits. Feel free to poke around and drop me a comment letting me know how you like the new look or features. Constructive criticism or suggestions are also welcome.

Subscribers to the newsletter may not notice much change. But I invite you to visit the blog site itself now and then, as it has search capabilities, links, and other features not found in the newsletter digest version.

Can we tell which juveniles will sexually reoffend?

Juvenile recidivism is a hot topic in the sex offender field these days. It would be great if we could figure out which young sex offenders are at high risk to offend again. After all, the federal SORNA law mandates that certain juvenile sex offenders be listed on public registries and report to law enforcement every 90 days for a full quarter-century.

But predicting which adolescents are at risk to sexually reoffend as adults is no easy task. Perhaps the biggest impediment is the low base rate: The large majority of underage males who commit a sex crime will not be charged for another sex crime as an adult. So, any prediction that a juvenile will sexually reoffend is likely to be wrong -- what we in the field call a "false positive."

Although several new instruments have popped up with the express goal of increasing the accuracy of juvenile sex offender risk prediction, none has the established reliability or validity to be ready for prime time, according to a new article in Behavioral Sciences and the Law.

"At this time, research does not support the use of any of the specialized risk assessment instruments for the task of predicting sexual recidivism in adolescents…. Unfortunately, legislatures enacting laws regarding civil detainment and registration of adolescent sexual offenders have not been dissuaded by studies demonstrating an inability to accurately predict which adolescents are most at risk for subsequent sex offenses."

Scientifically proven instruments or not, we will still be called upon to conduct such evaluations. And if we refuse, the article's authors point out, courts will just rely upon flawed data or the recommendations of prosecutors.

With that in mind, Michael Vitacco, associate director of research at the Mendota Mental Health Institute in Wisconsin, and his colleagues provide a set of recommendations for forensic psychologists who conduct risk assessments of juvenile sex offenders. These include:

• First and foremost, remember the low base rates and the consequently high risk of false positives, with devastatingly dire consequences to young people's futures.

• Understand adolescent sexual development, including hormonal issues and the brain's structural maturation. Adolescent sexual behavior is fluid, and any risk prediction should be very short-term.

• Be familiar with the literature on treatment efficacy with youth (such as that conducted by Michael Caldwell, Elizabeth Cauffman, and others). Much more so than adults, even the most serious adolescent offenders are amenable to high quality, empirically validated treatments.

• Give proper weight to a youth's social context, including peers, family, community, and school factors. These are enormously influential in youth behavior.

The entire issue of Behavioral Sciences & the Law is focused on adolescent sex offending. The abstract of the article, Assessing risk in adolescent sex offenders: Recommendations for clinical practice, by Vitacco, M.J., Caldwell, M., Ryba, N.L., Malesky, A., & Kurus, S.J. (2009), is online. 

Readers may also be interested in an appellate ruling of first impression on the retroactivity of the Sex Offender Registration and Notification Act (SORNA) as applied to former juvenile offenders. In the aptly titled case of US v. Juvenile Male, No. 07-30290, the 9th Circuit ruled that the new federal law is unconstitutional as applied to juveniles who committed their crimes before the law was enacted.

Asperger's ruling: Judge should have allowed experts

In the latest of several recent forensic cases involving Asperger's, an appellate court has ruled that a judge committed a reversible error in excluding expert evidence on the condition.

The 9th U.S. Circuit Court of Appeals overturned seven counts of arson against a California physicist who with his buddies had vandalized and torched more than 130 vehicles back in 2003.

William "Billy" Cottrell is described in news accounts as a talented young physicist who was diagnosed with Asperger's, a high-functioning form of autism, during his 2004 trial for arson and conspiracy.

In its ruling, the appellate court let stand a conviction for conspiracy. But the court held that aiding and abetting of arson requires a specific intent in that Cottrell must have knowingly participated in the crimes and tried through his actions to make them succeed. Thus, it was reversible error not to allow expert evidence of a mental condition that might have impacted the defendant's subjective judgments.

The defense had proposed a theory in which Asperger's prevented Cottrell from understanding what his friends were up to until it was too late; once he figured it out, he supposedly tried to stop them.

Local mental health professionals quoted in the Pasadena Star-News differed as to whether an Asperger's defense might have succeeded in mitigating Cottrell's culpability.

On the one hand, psychologist Bruce Hirsch said Asperger's could have reduced Cottrell's ability to understand the situation, as people with the condition often cannot tell when they are being lied to.

"What you're really talking about is a social naivete and, yes, people with Asperger's can be very socially naive," Hirsch is quoted as saying. "They are so bound to the truth that the concept of lying doesn't even exist in their mind. Somehow the social reasoning of people with Asperger's is very concrete, very black and white, and they don't get that people tell lies."

On the other hand, marriage and family therapist Amy Keller said the defense theory of Asperger's does not take into account the rigid morality of most Asperger's patients.

"I find that, after working with a lot of Asperger's patients, that they are so stubborn," Keller told the newspaper. "They're not that easily influenced. If anything, they're very clear about right and wrong."

Either way, the appellate reversal will not have a practical import on Cottrell. Prosecutors decided not to retry him, because it would not have impacted his 100-month federal prison term.

Cottrell will soon be taking the bus back to the Arizona federal prison where he teaches physics and cosmology classes to fellow prisoners.

The unpublished opinion in U.S. v. William Cottrell is HERE; the most recent Pasadena Star-News story is HERE.

Hat tip: Ken Pope

Further resources:

• Asperger’s: Here today, gone tomorrow: Would erasure from DSM impact forensic use? (Nov. 3, 2009 blog post)
• The short life of a diagnosis (Nov. 9, 2009 New York Times op-ed by Simon Baron-Cohen)
• Forensic aspects of Asperger's Syndrome, Barry-Walsh, J.B., & Mullen, P.E., Journal of Forensic Psychiatry, 2004, Volume 15, pages 96-107.

Wales: Another prime-time automatist

In my last post, I blogged about the Toronto sexual assault case in which a man was acquitted on the grounds that he was asleep. Now, I bring you a second high-profile case of sleep disorder, that of a Welch man acquitted in the killing of his wife because he was dreaming at the time.

Sleep experts for the prosecution and defense agreed that Brian Thomas's behavior was consistent with automatism, meaning at the time he killed his wife, his mind had no control over what his body was doing.

During last week's trial, the jury was instructed that there are two types of automatism: insane automatism and non-insane automatism. Based on which type they chose, Thomas could have either been acquitted or found not guilty by reason of insanity and hospitalized.

But suddenly, in mid-trial, the prosecutor had second thoughts and dropped his effort to obtain an NGI verdict, allowing Thomas to walk free. A prosecution psychiatrist, Dr. Caroline Jacob, had testified that Thomas was not a risk to the public.

Thomas was described as a gentle family man who had been married to his childhood sweetheart for 40 years. He called police to say he had killed his wife because he thought she was an intruder.

In an odd coincidence, the Journal of Forensic Sciences had just published an article describing clinical cases with eerie similarity to Thomas's. Carlos Schenck and colleagues at the Minnesota Regional Sleep Disorders Center found about 40 cases in the literature in which people, mainly men, had engaged in complex and violent behaviors while enacting dreams. The authors found a pattern with clear forensic implications, because dream behaviors could be misinterpreted as suicidal or homicidal. That's what happened in Thomas's case: To his family's dismay, he spent 10 months in jail awaiting trial. The actual cause of such behaviors, according to the article, is not malice but Rapid Eye Movement sleep behavior disorder (RBD), in which the normal muscle atonia present during REM sleep is absent, allowing sleepers to physically enact their dreams.

In a strong similarity to Thomas's case, the majority of cases involved choking and headlocks. Thomas had gotten his wife in a headlock and then strangled her.

In another similarity, in about half the cases the patient either had a neurologic disorder or was taking medication for psychiatric disorders. Thomas had just stopped taking antidepressant medication, and the withdrawal was causing nightmares.

What were the other most common behaviors found in the study?

In second place was jumping off the bed. And in third place, with seven cases, came defenestration. That one might have been difficult here, as Thomas and his wife were vacationing in an RV at the time of the killing.

The BBC has further coverage of the case. The abstract of the Journal of Forensic Sciences article, Potentially Lethal Behaviors Associated With Rapid Eye Movement Sleep Behavior Disorder: Review of the Literature and Forensic Implications, is HERE.

Unconditional discharge in Canadian "sexsomnia" case

In a fascinating criminal responsibility case, a Toronto man who was reportedly asleep when he sexually assaulted a woman six years ago has been unconditionally discharged as no threat to the public.

A trial judge had acquitted Jan Luedecke on the basis that he could not have formed the criminal intent to commit a sexual assault. The Ontario Court of Appeal quashed that ruling, saying Luedecke should have been found not criminally responsible due to a mental disorder. The case was then sent to the Ontario Review Board for a determination of Luedecke's dangerousness.

At trial, evidence was presented that a sleep clinic had confirmed Luedecke's sleep disorder, along with a family component (both his mother and brother have sleep disorders). Under the defense theory, his sleep disorder manifested in "sexsomnia," or sexual behavior while asleep. According to trial testimony, he had "sleep sex" with four former girlfriends prior to the assault. The assault took place at a house party after he ingested magic mushrooms and consumed 16 alcoholic drinks; he was also working long hours without sleep.

"The combination of those intoxicants and his sleep disorder brought on the illness," his lawyer, Frank Addario, president of the Criminal Lawyers' Association, was quoted in the Toronto Star as saying. As the assault was described in the press:

The woman woke up to find a strange man lying on top of her, engaged in sexual intercourse.

"Who the hell are you and what are you doing?" the woman demanded

"Jan," the bewildered-looking man replied.

Under Canadian law, the options available to the review board included commitment to a hospital, release to the community under specified conditions, or absolute discharge.

The board relied heavily on risk assessments conducted by forensic psychiatrist Lisa Ramshaw and forensic psychologist Percy Wright. Dr. Ramshaw noted that Luedecke was ashamed and remorseful, making him "less likely to repeat the behaviour." (Although that is popularly believed, I'm not sure it's an empirically supported contention.) Dr. Wright reported that Luedecke had taken steps to control his sexsomnia, including reducing his stress, limiting his alcohol consumption to two drinks a week or less, and sleeping "safely" with no access to women who aren't his partner.

In granting Luedecke a full discharge, the board noted that he had been living free in the community for six years without incident.

I have no problem with the sleep disorder or the role of intoxication. But, oddly enough, Luedecke was reportedly wearing a condom during the assault. How does that little factoid fit in to the somnambulism theory?

I guess anything is possible.

The Globe and Mail, Toronto Star and CBC News have more case coverage.

Salon on "silly" Fort Hood media coverage

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

The media's silly Fort Hood coverage*

By Mark Benjamin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*Excerpts posted with the written permission of Mark Benjamin

Hat tip: Bruce Miller

Paraphilic coercive disorder: Contagious virus?

I posted last week about a proposal to create a new mental disorder in the DSM-V for preferential rapists. A shocking news story out of Australia makes me think that if Coercive Paraphilic Disorder exists, it must be contagious. Not just contagious, but virulently contagious in certain all-male environments.

Of the 198 students at St Paul's College at the University of Sydney, a large proportion were apparently infected with a highly contagious form of the virus. If Paraphilic Coercive Disorder makes it into the next Diagnostic and Statistical Manual of Mental Disorders, St. Paul's will be Ground Zero for the epidemic.

According to an article in today's Sydney Morning Herald, men at the elite, all-male college proudly set up a pro-rape Facebook group called "Define Statutory" that promoted sexual aggression against women. But the elite students did not stop with words. They fostered an alcohol-fueled climate in which rapes were common, most sexual assaults went unreported, and women students felt so unsafe that they quit school, the story reports.

Reporter Ruth Pollard documented a series of rapes and sexual assaults, including one incident in which about 30 drunk, naked men broke into a college and surrounded a young woman, touching and taunting her.

The good news is that, if it's a contagious illness, there could be an immunization like the one for the H1N1 virus. So, while the DSM developers are frenetically creating new diagnoses, let's not forget to work on finding some cures, too.

The Sydney Morning Herald article is HERE.

Scientist razes proposed "Paraphilic Coercive Disorder"

Pedohebephilia. Hypersexuality. Coercive Paraphilic Disorder. How many new sexual disorders can fit into the DSM-V, the American Psychiatric Association diagnostic manual scheduled for publication in 2012?

Government evaluators in Sexually Violent Predator cases must be thrilled with the possibilities being generated by the prolific paraphilias subworkgroup of the DSM-V Sexual Disorders Workgroup. If these proposed diagnoses make it into the psychiatric bible, the task of establishing that sex offenders have bona fide mental disorders meriting hospitalization will suddenly get a whole lot easier.

But this will only happen if good science is not allowed to interfere with pragmatism and pretextuality. After all, the empirical support for some of these pseudoscientific categories is weak at best.

Now issuing a strong call of alarm is perhaps the premiere scientific researcher into the etiology of rape, Raymond Knight, the Mortimer Gryzmish Professor of Human Relations at Brandeis University.

In a forthcoming article in the Archives of Sexual Behavior, the respected scholar cautions against adoption of Coercive Paraphilic Disorder, which he says is not supported by empirical data and has a vast potential for misuse by the civil commitment industry.

Currently, the propensity to rape is not considered a mental illness. Proponents of adding a rapist diagnosis to the Diagnostic and Statistical Manual of Mental Disorders (DSM) claim it was only excluded the last time around due to pesky feminists' objections that it would excuse rapists from criminal consequences. However, that turns out to be something of a myth. The main reason it was excluded, says psychologist and lawyer Thomas Zander, who conducted primary research into the history, was because it was not scientifically supportable. And, according to Knight's article, it is even less supportable now than it was back then.

The fact that rape propensity is not a bona fide mental illness has proved a hurdle for the civil commitment industry. To be hospitalized on the basis of possible future dangerousness, sex offenders must be found to suffer from a mental disorder that reduces their volitional control. To get around this legal barrier against unconstitutional preventive detention, government evaluators have taken to assigning a de facto label of "Paraphilia Not Otherwise Specified - Nonconsent."

As Knight points out, if Coercive Paraphilic Disorder is introduced into the DSM-V, it will provide tacit support for the legitimacy of the bogus "NOS" diagnosis. This, he says, would be a travesty:

"The inclusion of PCD [Paraphilic Coercive Disorder] would inappropriately legitimize this 'disorder' and grant it the imprimatur of the DSM, which is almost universally cited by expert witnesses in civil commitment proceedings…. The diagnosis has little empirical support, and it would be a travesty to grant it a status that would perpetuate its misuse."

In his article, Knight discusses the evidence from a long line of research that suggests there is not a separate category of men with a propensity to rape. Rather than being a distinct "taxon," rape propensity exists along a continuum.

He also challenges the contention of a Canadian research group that rapists are sexually aroused by the coercive aspects of sexual assault. A more likely scientific explanation for why some men rape is that the coercive elements of the situation fail to inhibit their sexual arousal, he writes.

This dimensional model coincides with a large body of sociological and anthropological research, which suggests that men in certain environments -- most notably wars -- are much more likely to commit rape. Indeed, research has found that even on the same college campus, some fraternity environments promote a "rape culture" among men, whereas others do not. (I discuss this environmental aspect of rape in an article I wrote a few years back on the theatrical elements of group rape.)

Knight's scientifically grounded critique is a refreshing change from the pseudoscientific tenor of many of the DSM diagnostic proposals. More scientific rebuttals to some of the shaky studies in the sex offender field are currently in press, and I will try to stay attuned and alert you readers as soon as they become publicly available.

Further resources:

Knight, Raymond. (2009). Is a diagnostic category for Paraphilic Coercive Disorder defensible? Archives of Sexual Behavior. This article is online, but requires a subscription. The abstract is visible HERE, along with the email address of the author (from whom copies may be requested).

Zander, T. K. (2008). Commentary: Inventing Diagnosis for Civil Commitment of Rapists. Journal of the American Academy of Psychiatry & the Law , 36, 459-469.

Zander, T.K. (2005). Civil Commitment Without Psychosis: The Law’s Reliance on the Weakest Links in Psychodiagnosis. Journal of Sexual Offender Civil Commitment: Science and the Law, 1, pp.17-82.

Franklin, Karen. (2004). Enacting Masculinity: Antigay Violence and Group Rape as Participatory Theater. Sexuality Research and Social Policy, 1 (2), pp. 25–40.