APA Dispatch II: Whither juvenile forensics?

The U.S. Supreme Court ruling this May in Graham v. Florida, restricting life without parole sentences for juveniles, relied in part upon scientific evidence from developmental psychology and neuroscience. In ruling that juveniles are categorically different from adults, the high court was assisted by amicus briefs from the American Psychological Association and other professional organizations including the American Psychiatric Association and the National Association of Social Workers.

The APA's position, which the Supreme Court also validated in its 2005 ruling in Roper v. Simmons outlawing the death penalty for juveniles, is that juveniles' diminished culpability is based on three basic differences from adults:

1. Immaturity: Juveniles are more impulsive and less likely to reason judiciously about risk
2. Vulnerability: They are more likely to be influenced by peer pressure
3. Changeability: They are still developing, and are more amenable to rehabilitation than adults

At this week's APA convention, the American Psychology-Law Society (Division 41) hosted a cutting-edge track on juvenile justice. The dynamic sessions raised intriguing issues about how the growing acceptance of adolescent immaturity and difference will affect forensic practice in the juvenile justice system.

Bryan Stevenson: "Huge implications" of Graham case

In an eloquent presentation, NYU law professor Bryan A. Stevenson, founder of Alabama's Equal Justice Initiative, expressed optimism that Graham and the twin case of Sullivan v. Florida, in which he was counsel, signal that the tide is turning away from the punitive Superpredator hysteria of the 1980s. He encouraged the APA to continue its public policy advocacy by bringing legal attention to the impacts of trauma, violence, and neglect on youngsters.

Hopefully, the capacity crowd of psychologists will attend to the implications of Stevenson’s other take-home messages: Mass incarceration has radically changed American society, creating a class of "new untouchables." And the victims of this sea change are overwhelmingly poor and minority. Indeed, he asserted, wealth -- not criminal culpability -- largely drives criminal sentencing. In Louisiana, for example, of the juveniles serving life without parole for crimes other than homicide at the time of the Graham decision, 94 percent are African American. Most are incarcerated for rape, with 71 percent of the victims being white.

Tom Grisso: "Forensic examiners beware"

Forensic psychology guru Tom Grisso sounded a more cautionary note about Graham's implications. The high court's adoption of a categorical approach to juveniles is at odds with the discretionary, individualized method at the core of forensic assessment, he pointed out.

Grisso demonstrated his point through a mock cross-examination. On the stand, the mock expert conceded that the research of Laurence Steinberg, Elizabeth Cauffman, and others on adolescent immaturity is now widely accepted in the field, as shown by Supreme Court's rulings in Graham and Roper. Next, Grisso produced a New York Times op-ed co-authored by Steinberg, reiterating Roper's conclusion that psychologists "are unable to distinguish between the young person whose crime reflects transient immaturity and the rare juvenile offender who may deserve the harsh sentence of life without parole." In the script, the expert was left speechless and incapable of defending her individualized opinions about risk.

Grisso said forensic psychologists must be aware of this debate, and think about how to answer such questions in court. The outlook for prediction is not as bleak as the APA's advocacy efforts might suggest, he asserted, as experts do have a reliable basis on which to give probability estimates, especially about more short-term risk.

Good news for juveniles with a sex crime

A panel of juvenile sex offender experts was more upbeat about the implications of the scientific research on adolescent difference. As with general criminality, they said, research has not identified methods to accurately predict which juveniles will reoffend sexually. Indeed, none of the factors that predict sex offender recidivism in adults (multiple victims, male victims, young child victims, personality disorder, sexual deviance, etc.) predict recidivism for juveniles.

But this inability to differentiate is not bad news, because what we can say is that the overwhelming majority -- 93 percent -- of juveniles who have committed a sex crime will not reoffend sexually as adults.

An audience member who works in the civil commitment industry expressed incredulity at the cumulative research, saying many of the men in his civil detention facility began their offending careers in their teens.

That may be true, responded researcher Michael Caldwell. But the directionality cannot be reversed. All NBA stars may have played basketball in the ninth grade. But we cannot predict by watching a group of ninth-graders play basketball which, if any, of the players will become basketball superstars.

(A summary of the presentation, "Juvenile Offenders are Ineligible for Civil Commitment as Sexually Violent Predators," is online HERE; it contains a slough of good references. The PowerPoint presentation is HERE.)

Judges launch crusade to save children of color

The most optimistic presentation I attended was a symposium of family court judges who are at the forefront of a movement to reduce the vastly disproportionate representation of minority children in the child welfare system, from which many graduate to juvenile delinquency and adult criminal courts.

The remarkable Hon. Katherine Lucero of San Jose, California said she became active in this movement when she realized she was serving as part of the vast "cradle-to-prison pipeline," processing children who would end up poor, homeless, drug addicted, illiterate, pregnant at a young age, delinquent, and -- ultimately -- incarcerated. When she looked out at her courtroom filled with children of color, her training that justice is blind was cognitively dissonant, making her feel like she was living "in a delusion."

The equally inspiring Hon. Nan Waller of Portland, Oregon said the movement challenges the basic historical tenet of the child welfare system, which promotes removal from families -- so-called "child rescue" -- rather than family strengthening. Most of the mothers who lose their children are suffering from severe trauma that they medicate with drugs. Rather than "cookie-cutter" quick-fixes, including automatic referrals for psychological evaluations and parenting classes, these women need support and help obtaining even basic resources such as housing, transportation, and health care, the judges said.

Assisted by a research and advocacy project of the National Council on Juvenile and Family Court Judges, these and other judges are using a combination of model courts, wraparound services, community interventions, training in implicit race bias at all levels of the system, and other creative methods to reduce the number of children who are placed in foster care. Already, their data show they are having an impact in their respective communities.

Alarming call for preventive detention of children

In the discussion period following their presentation, the judges said they are turning away from ordering psychological reports except when a parent has a genuine, severe mental disorder. They gave two reasons for this. First, psychological evaluations are costly. Second, and more important, the judges do not find it helpful to "slap" pathologizing psychiatric labels on parents. They expressed curiosity as to whether and how we in the field of psychology are working to address the effects of poverty and racism in the populations we serve.

Sadly, the honest answer is that many forensic practitioners and scholars are not adequately addressing the impact of larger social forces -- poverty, race, trauma -- on the people we evaluate, treat, and/or study. Perhaps the sparse attendance at the judges' presentation as compared with other seminars in the forensic juvenile justice track is an indicator of this neglect.

Indeed, at a more well-attended session came a chilling proposal at the polar opposite extreme: To establish a system to preventively detain dangerous juveniles. Raising this "public safety" proposal was attorney Christopher Slobogin, a co-author of the forensic psychology stalwart Psychological Evaluations for the Courts. It will formally air in a book, Juveniles at Risk: A Plea for Preventive Justice, forthcoming from Oxford University Press. Slobogin has good intentions, I am sure; he believes such a model will treat juveniles more fairly and help stem the erosion of the separate juvenile justice system.

But the proposal has potentially far-reaching unintended consequences. It myopically ignores what the family court judges and attorney Stevenson are so painfully aware of: The differential treatment of poor and minority children. It is hard to accurately predict juvenile risk, and actuarial risk prediction tools are especially inaccurate when applied to juveniles. This is just the type of nebulous decision-making situation in which implicit (unconscious) biases are most salient, research shows. Forensic psychological evaluations would provide a scientific veneer, masking racial and class biases in deciding who is labeled as dangerous and who is not.

Rather than locking up kids for crimes they have not (yet) committed, we should be working to give young victims of trauma and abuse -- and their families -- the practical resources and tools they need to lead productive lives. Let's hope the field of psychology and public policymakers heed the pleas of the judges and attorneys in the trenches who are fighting to save kids before they get sucked into the "cradle-to-prison pipeline" in the first place.

APA Dispatch I: Science and public policy

I had intended to limit my dispatches from the American Psychological Association convention in San Diego to forensic highlights. But I would be remiss if I didn't touch on the big news from psychological science and public policy. Anyway, it's all related to forensics.

Conference theme: Ending marriage discrimination

A public policy highlight of the convention was its theme of opposing marriage laws that discriminate against gay men and lesbians. Walking into the futuristic convention hall, one was greeted by a life-sized hologram of the APA's CEO, Norman B. Anderson, speaking of the scientific advocacy role in this area of the APA, which at 152,000 members is the world's largest psychological organization and devotes a good share of its $115 million annual budget to advocacy. Kiosks gave attendees a chance to don large lapel pins supporting marriage equality, or send a message to their legislator calling for an end to the federal ban on same-sex marriage.

The theme, planned months ago, could not have been more timely, especially given the conference's location. Just as the convention got underway yesterday, Judge Vaughan Walker lifted the stay on gay marriages in California following his earlier ruling that marriage discrimination was unconstitutional. Many of the key expert witnesses who presented scientific evidence at that trial were featured speakers at the convention: Gregory Herek of UC Davis on sexual orientation and stigma (introduced by APA President Carol Goodheart), Anne Peplau of UCLA on same-sex relationships, and Charlotte Patterson of the University of Virginia summarizing the empirical research regarding the emotional health of children raised in lesbian and gay families.

The APA leadership seems delighted to be on the correct side of history this time, especially after the lengthy debacle over psychologists' role in the torture of detainees at Guantanamo.

Memory: How the brain reconstructs reality

Meanwhile, memory research was on the cutting edge of the psychological science presented at the convention. I had the great fortune to hear preeminent scholar Daniel Schacter present some of the very latest findings.

We already know that retrieving a memory is nothing like opening a file on your computer. In calling up a memory, the brain -- specifically the hippocampus -- grabs a bunch of bits and pieces stored here and there around the brain, and reintegrates them to suit the current situational demand. This is adaptive. It allows us to use our accumulated experience to respond flexibly to an ever-changing environment. But it comes at a cost of errors and distortions, which Schacter has summarized beautifully in The Seven Sins of Memory (which all forensic practitioners should read).

In his talk, Schacter illustrated with the case of "John Doe 2," the composite creation of a faulty memory who was the subject of a massive FBI manhunt after the Oklahoma City bombing. As it turned out, John Doe 2 (despite lingering conspiracy theories to the controversy) was most probably an Army private who had nothing whatsoever to do with McVeigh; he happened to have been at the auto body shop where McVeigh rented his van, but a full day later.

The advent of neuroimaging technology has enabled this memory research to advance at a rapid pace. (The hippocampus even has its own journal now, named after itself!) In their most recent work, Schacter and his colleagues are localizing the precise hippocampal sites that activate when various tasks are being performed. Distinct patterns of hippocampal activity are visible on fMRI when someone is storing initial memories, retrieving those memories, and imagining future possibilities.

Intriguingly, it turns out that the brain tasks involved in remembering are not so different from those involved in imagining the future, or imagining a fictional version of the past, for that matter. Which makes sense: Like recalling real events, imagining fictional scenarios first requires us to think about our past experiences, and then tweak them (consciously or unconsciously).

Australian study: Sharing distorts eyewitness memory

The fact that the very act of retrieving a memory causes it to be distorted (also the topic of a rather dry convention presentation by researcher Joseph LeDoux, author of The Emotional Brain) explains a new finding by forensic psychology lecturer Helen Paterson of the University of Sydney in Australia. She found that sharing memories leads to contamination that cannot be reversed through providing corrective information.

Paterson's team showed participants one of two different versions of a video of a crime. After discussing the crime with each other, most participants reported seeing specific details that were not in the version they had watched. The researchers believe that discussions among co-witnesses are more likely to damage accurate recall for a crime than are other avenues of distorted information such as reading a news account or being asked leading questions by investigators.

Like the broader memory research of Schacter and others, Paterson's study, published in the journal Applied Cognitive Psychology, has direct implications for witness reliability. Once a memory is distorted, the inaccuracies remain even when witnesses are told that the new information is wrong, as witnesses " find it difficult, if not impossible, to distinguish between genuine memories and false memories of an event," Paterson said.

The forensic implications of this line of memory research are rather mind-boggling, when you stop and think about it. Not only do we need to be extremely cautious about putting too much weight on someone's memory for an event but, as the accumulating research shows, we must be skeptical even if multiple people agree on the "facts."

Coming up in Part II: Whither juvenile forensics

Sexual sadism diagnosis not predictive

In another blow to the controverial sexual paraphilia diagnoses, a group of prominent researchers has found that the diagnosis of sexual sadism is not related to sex offender recidivism. Unlike some of the made-up paraphilias being used in court to justify civil commitment of sex offenders, sexual sadism is actually listed in the American Psychiatric Association's current Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), and it is planned for inclusion in the upcoming fifth edition as well.

The longitudinal study followed almost 600 convicted sex offenders for up to 20 years. The researchers found that a sexual sadism diagnosis did not predict any type of recidivism. This was in contrast to sexual arousal to violence as measured phallometrically, which was associated with future violence, including sexual violence.

The study replicates and extends what the authors call "accumulating evidence of specific problems with the reliability of paraphilia diagnoses, including sexual sadism."

[O]ur results raise questions about the clinical utility of the DSM diagnosis of sexual sadism. This appears to be a problem for other paraphilia diagnoses as well [including pedophilia].

The findings are relevant to the upcoming fifth edition of the DSM, the authors note, because the proposed criteria for sexual sadism are "very similar" to the criteria in current and previous editions.

The study, "Comparing indicators of sexual sadism as predictors of recidivism among adult male sexual offenders," by Drew Kingston, Michael Seto, Philip Firestone, and John Bradford, appears in the Journal of Consulting and Clinical Psychology.

Can implicit religious bias affect jury verdicts?

Homaidan Al-Turki, a Saudi Arabian citizen pursuing his doctoral degree in Colorado, was on trial in Colorado for assaulting his housekeeper. As the jury was sworn in, one juror indicated he might believe a Muslim would more likely break the law under certain circumstances. Al-Turki's lawyer asked if he could probe further, but the judge said no. During the trial, the prosecutor showed the jury a mannequin dressed in "Muslim women’s clothing." Allusions were made to Osama bin Laden, Ramadan, and 9/11. The jury convicted and Al-Turki was sentenced to 28 years in prison.

Al-Turki blamed his conviction on anti-Muslim sentiment, and the case sparked international controversy. But the conviction was upheld on appeal, and earlier this year the U.S. Supreme Court declined to hear the case.

What does psychology have to offer about the potential effect of jurors' religious bias on verdicts, and how implicit cues might activate such bias?

This month's Judicial Notebook, a regular column in the Monitor magazine published by the American Psychological Association, addresses this timely issue. Note authors Marc Pearce and Samantha Schwartz of the University of Nebraska-Lincoln:

Research indicates that information associating Muslims with negative attributes (such as terrorism) can create implicit biases that are difficult to detect with explicit measures… [T]he prosecution’s use of negative associations during a trial might foster an implicit bias against a Muslim defendant.

The full column is online HERE.

Related blog post:

• Prominent expert testifies about implicit bias (April 15, 2008)

The CSI Effect: An infographic

Pierce Martin of the new site, Forensic Science, just sent me this cool infographic he made about the CSI Effect, which relates to my recent post, "To catch a liar: Don't watch Fox-TV." Enjoy.

Source: Forensic Science

Websites worth checking out

• Psychology and Crime News is B-A-C-K! Emma B. was hosting this excellent source of news and information in the United Kindom back when I began blogging in 2007. She went on hiatus for a while, so I am happy to see she is back on the Web, even if in a somewhat abbreviated form. (She recommends you follow her on Twitter.) She's got especially strong resources in the area of lie deception research. Check her out (HERE). Welcome back, Emma!

• Sex offender laws are becoming so out of proportion in terms of their financial cost and the number of people they are ensnaring, including teens and even children, that calls for reason are mounting. Among the more interesting sites of this counter-movement is Citizens for Change, which is jam-packed with news stories, links, and other resources. I recommend that anyone working in the sex offender field give it a look-see (HERE).

• Finally, as I've mentioned before, if you want to keep up with psychological science and be entertained at the same time, Mind Hacks is the place to go. Psychologist Vaughan Bell's weekly "spike activity" columns give comprehensive lists of new research, while his in-depth daily reports provide eclectic perspectives on select news (e.g., new research on the "booty call" and the "poker face").
  

Two forensic posts at University of Surrey

The Department of Psychology at the University of Surrey, one of the top research and teaching sites in the UK, has two openings for psychologists with active research in forensic psychology, crime and law:

Senior Lecturer in Forensic Psychology:

The successful applicant will teach at both the undergraduate and postgraduate levels and will also develop the forensic psychology research program.

Lecturer in Social Psychology, Crime, and Law:

The department is looking for a social psychologist with active research projects and expertise in crime and law.

Click on the above links or contact Peter Hegarty, Senior Lecturer and Deputy Head of the Psychology Department, for more information.

Global alarm mounts: "Will anyone be normal?"

What do some of the world's top mental health experts have in common with best-selling British author Sir Terry Pratchett, the former prime ministers of Australia and Norway, and Kurt Vonnegut Jr.'s son, memoirist Mark Vonnegut? All are issuing calls of alarm over the DSM-5, the American Psychiatric Association's upcoming diagnostic manual, in a special issue of the Journal of Mental Health.

Due to their important public policy implications, the Journal is making the lineup of commentaries available to the public for free. In a press release, the Journal points out that the previous DSM revision led to a wave of false "epidemics" of such conditions as attention deficit hyperactivity disorder, autistic disorder, childhood bipolar disorders, and that the new edition may lead to more of the same.

"The publication of the fifth edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-5) is one of the most highly anticipated events in the mental health field," explains Managing Editor Daniel Falatko. "This is the first major rewrite of DSM in 16 years and history has warned us that even small changes to this manual can have extraordinary repercussions in the diagnosis and treatment of mental health issues."

The theme running throughout the special issue is widespread fears in the psychiatric community that the expansion of diagnostic guidelines will allow everyone to qualify for psychiatric disorders, which in turn will lead to greater prescription of psychiatric drugs, many of which have unpleasant and dangerous side effects.

At a joint briefing, mental health experts expressed particular fear over the proposed "psychosis risk syndrome" diagnosis, which could falsely label young people who may only have a small risk of developing an illness.

"It’s a bit like telling 10 people with a common cold that they are 'at risk for pneumonia syndrome' when only one is likely to get the disorder," said Dr. Til Wykes of the Institute of Psychiatry at Kings College London.

The free articles, some by psychiatric patients, include:

• Diagnosis, diagnosis, diagnosis: towards DSM-5 by Til Wykes and Felicity Callard
• Are psychiatric diagnoses of psychosis scientific and useful? The case of schizophrenia by Jim Van Os
• Misdiagnosing normality: Psychiatry's failure to address the problem of false positive diagnoses of mental disorder in a changing professional environment by Jerome C. Wakefield
• DSM-V and the stigma of mental illness by Dror Ben-Zeev, Michael A. Young, and Patrick W. Corrigan
• Conceptualisation of mental disorder and its personal meanings by Derek Bolton
• Patients can diagnose too: How continuous self-assessment aids diagnosis of, and recovery from, depression by Peter C. Groot
• Diagnosing Clapham Junction syndrome by Terry Pratchett
• What my diagnosis means to me by Mike Shooter
• Depression and recovery by Sarah Mitchell
• Personal Reflections on Diagnosis by Mark Vonnegut
• On the impact of being diagnosed with schizophrenia by Frederick J. Frese
• Tackling Depression by Geoff Gallop
• Psyche, soma, and science studies: New directions in the sociology of mental health and illness by Martyn D. Pickersgill

Related news articles:

• Globe and Mail (UK): Mental health experts ask: Will anyone be normal? Binge eating, temper tantrums may become new diagnoses
• BBC News: Mental health: are we all sick now?

I have blogged extensively about the controversies surrounding the DSM-5. These prior blog posts can be conveniently accessed HERE.

Hat tip: Jane

Race salience and juries: It’s complicated

Samuel R. Sommers of Tufts University is one of the leading experts on "race salience," or the study of under what conditions defendant race influences white jurors. In the decade since he and colleague Phoebe Ellsworth first published on this topic, their research has garnered widespread interest both among researchers and in the courts. In the current issue of The Jury Expert, he clarifies some misconceptions about the theory, including:

• Misconception #1: "Race salient" means simply informing mock jurors of the defendant's race.

• Misconception #2: White juror bias cannot occur when racial issues are salient at trial.

• Misconception #3: Salient racial issues at trial always lead to White juror leniency.

• Misconception #4: All race-salience manipulations have equal impact.

Related blog posts:

• Colorful juries more competent (January 3, 2008)
• Are juries fair? Beliefs race-dependent, poll finds (January 22, 2008)
• On police, profiling, and Henry Gates (guest essay by Sam Sommers, July 28, 2009)
• Not this time, high court rules in Snyder v. Louisiana (March 21, 2008)

Other interesting articles in this issue of The Jury Expert:

• Persuading with Probability: The Prosecution of O.J. Simpson by statistician Daniel J. Denis
• The Convoluted Spectrum of White Guilt Reactions: A Review of Emerging Literature by Alexis A. Robinson
• The Reptile Brain, Mammal Heart and (Sometimes Perplexing) Mind of the Juror: Toward a Triune Trial Strategy by Jill Holmquist
• Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials (aka Generation Y) by Douglas L. Keene, Rita R. Handrich
• Presumed Prejudice, Actual Prejudice, No Prejudice: Skilling v. U.S. by Thaddeus Hoffmeister
• Emotions in the courtroom: "Need for affect" in juror decision-making by Desiree Adams Griffin, Emily Patty

Of related interest:

Sam Sommer's excellent blog, The Science of Small Talk

Victim race still central to death penalty

The more things (appear to) change, the more they stay the same

The odds of getting a death sentence for killing a white person is about three times higher than for killing an African American with the race of the defendant virtually irrelevant, according to a new study out of North Carolina that echoes earlier findings on capital punishment.

Researchers Michael Radelet of the University of Colorado and Glenn Pierce of Northeastern University in Boston combed through three decades of death sentences for the study, to be published next year in the North Carolina Law Review.

The study will be used in capital appeals, according to an article in the Daily Camera of Boulder, Colorado. The U.S. Supreme Court ruled in 1987 that statistical evidence of racial bias could not be considered in individual cases, but states could pass their own legislation to do so. North Carolina has 159 people now awaiting execution. As Brittany Anas reports:

Leading up to the study, legislators in North Carolina had raised concern about the racial disparities of those on death row -- but there was no hard evidence…. The state became the second in the nation, following Kentucky, to allow murder suspects and those already on death row to present statistical evidence of racial bias. The law is intended to make sure that the race of the defendant or victim doesn't play a key role in sentencing. The study by Radelet and Pierce is the first to be released since North Carolina passed the Racial Justice Act.

Of related interest:

Race and the death penalty, Death Penalty Information Center data clearinghouse

Death penalty news in California:

• New poll shows Californians support death penalty (San Diego Union Tribune, July 21, 2010)
• California death penalty: A hollow promise? (San Diego Union Tribune, April 25, 2010

Race, class, and self defense

Berkeley fraternity case spotlighted

Remember the "Killing and Culpability" reader participation exercise I presented in April, featuring the case of a young man in Berkeley, California, who stabbed a fraternity man during a street brawl? If so, you may recall that Andrew Hoeft-Edenfield was found guilty of second-degree murder and sentenced to 16 years in prison. Now, I am gratified to see that the troubling case is getting national play as part of renewed debate over what constitutes self defense.

"Had Hoeft-Edenfield been tried in Florida, things might have turned out differently," asserts Brooklyn-based freelance writer Lisa Riordan Seville in a column first published at Crime Report and now reposted at Salon.com. That's because Florida eliminated the "duty to retreat" requirement for self defense that played a role in Hoeft-Edenfield's conviction. Unlike California, Florida and 29 other states now have "stand your ground" laws that allow people to "meet force with force" anywhere they have a “legal right to be."

The essay is pegged to the U.S. Supreme Court's 5-4 ruling in McDonald v. City of Chicago, reaffirming gun ownership as a Constitutional right. Although that case did not pertain to self defense, legal analysts say it may ultimately help to "reshape the boundaries of the kind of force individuals can use to defend themselves," Seville notes.

Race, class, and social status in self defense claims

My local news is reporting on a bizarre rally in the overwhelmingly white San Francisco suburb of Walnut Creek. The protesters were there to support Johannes Mehserle, the transit cop who shot African American train passenger Oscar Grant to death in Oakland, California. Yes, that's right. To support the maligned killer. You will recall that Mehserle was convicted of only involuntary manslaughter, based on his claim that he had meant to fire his taser. (He is currently awaiting sentencing.) Counter-protesters lay face down in the street with their hands behind their backs to show Grant's position when he was shot in the back of the head. It reminded me of the quip going around Twitter just after the verdict highlighting race and relative social rank as factors in jury verdicts: "Hey, if Oscar Grant had shot a cop in the back, do you think he could have gotten off by saying, 'Oops, I thought I was texting on my cell phone'?"

One of my goals in the reader participation exercise was to showcase how implicit values and relative social status influence contested claims of self defense. Thus, I was intrigued by Seville's discussion of race and class in self defense claims. This was the focus of Justice Clarence Thomas's concurring opinion in the McDonald case. Thomas pointed out the importance of firearm ownership for black citizens in the South in the post-Reconstruction era, during which African Americans were "tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process."

Massad Ayoob, a police captain and firearms trainer in New Hampshire, also acknowledged the role of race, class, and other circumstances in the outcomes self-defense claims:

He pointed to the case of Ronnie Barlow, a young black man from Arizona who was in 1990 convicted of second-degree murder for what he said was a self-defense shooting. He said he was attacked by 21-year-old Robert Lockwood, a white man with a long criminal history and the son of a local judge, but the jury didn’t buy it. The judge, however, saw it differently and reduced the jury verdict to manslaughter. Two years later, Barlow was released."

What would the "reasonable person" have done?

Subtle social and moral values quickly slip into jury deliberations because of the supposedly objective question of what the "reasonable person" would have done in the defendant's situation. Writes Seville:

The "reasonable man" -- or, now, "reasonable person" -- doctrine is the cornerstone of a self-defense case, explains Cynthia Lee, a law professor at George Washington University. Juries must decide if the sequence of events was reasonable not only in the defendant’s mind but also from an outside perspective.

"The reasonableness requirement is imposed to lend an air of objectivity to the defense," says Lee, the author of Murder and the Reasonable Man, a study of how beliefs and social norms play out in criminal cases, including self-defense trials. "The problem is of course that reasonableness is in the eye of the beholder," she says. "What’s reasonable to one person is not reasonable to another.”

Battered person’s syndrome

Seville goes on to discuss the role of the battered women's defense in broadening conceptions of self defense in the courtroom:

In recent years, the courts and state legislatures have opened up more room for questions about what constitutes an "imminent" threat and whether a reasonable person must try to flee before using force.

Increased legal acceptance of the "battered person’s syndrome" in the early 1990s allowed juries to hear how an abused person -- often, a woman -- might feel she had no choice but to kill to save her life. This challenged the long-standing notion that the threat to one's life had to be imminent. A battered person may, some believe, kill because the abuse is perceived to be life-threatening even if it isn't happening right then.

Like "stand your ground laws," battered-person defenses show that societal views can come into play in the long-standing right to self-defense, but nothing may indicate that better than the juries themselves.

Self-defense cases offer juries a lot of leeway to decide what they believe is reasonable and just, regardless of the law. "What the law on the books requires and what happens in action may be two different things,” Lee says. "Prosecutors, cops, jury members. We’re all people -- and stereotypes about certain groups affect us all."

The McDonald decision means that courts throughout the country will grapple for years with interpretations of the Second Amendment and the right of self-defense. But when the cases make it in to court, justice may depend less on the letter of state law than on the state of mind of the 12 people seated in that jury box.

Related blog posts:

• Killing and culpability: A reader participation exercise (April 14, 2010)
• "Killing and culpability" sentences handed down (June 16, 2010)

Photo credits: (1) family photo of Andrew Hoeft-Edenfield, credit The Crime Report
(2) Mehserle counter-protesters, credit Brant Ward, San Francisco Chronicle
(3) "The Second Amendment," credit ianturton (Creative Commons license)

Under duress, Georgia scales back sex offender law

Long-time blog subscribers may recall the case of Janet Allison, who became a homeless, jobless leper because she allowed her pregnant daughter's boyfriend to move into the family home. The state of Georgia has now scaled back that residency restriction law in an effort to prevent the courts from overturning it altogether.

Georgia had lost a series of legal challenges brought by human rights activists over the nation’s most draconian sex offender law. Attorney Sarah Geraghty of the Southern Center for Human Rights, which has been on the forefront of efforts to stem the tide of "fear-based" laws, gave a keynote speech about the law's inhumanity at the annual meeting of the Association for the Treatment of Sexual Abusers back in 2008.

About 13,000 -- or 70 percent -- of the men and women on Georgia’s sex offender registry will now be able to "live and work wherever they want," according to a report by Greg Bluestein of the Associated Press in yesterday's Atlanta Journal-Constitution. Residency restrictions will still apply to about 5,000 sex offenders who committed their offenses after 2003, but they will vary in scope. Among the changes, elderly and disabled offenders may also be exempted from residency requirements.

Iowa has also scaled back some of its restrictions under pressure from courageous prosecutors in that Midwestern state. As I blogged about back in 2007, Iowa prosecutors lobbied for repeal of residency restrictions because of their negative unintended consequences of encouraging sex offenders to disappear, making them more dangerous. "Most legislators know in their hearts that the law is no good and a waste of time, but they’re afraid of the politics of it," a spokesman for the Iowa prosecutors' association said at the time.

Related blog posts:

• Georgia sex offender law unconstitutional (Oct 28, 2008)
• Georgia court overturns sex offender law (Nov 22, 2007)
• Georgia high court backtracks on ruling overturning residency restrictions (Dec 17, 2007)
• Sex Offender Laws Gone Amok (April 10, 2007)

You might also like:

• Sentencing Law and Policy: California struggling with new challenges posed by GPS technocorrections

Sex offender registry: Weapon of homophobia?

This summary is not available. Please click here to view the post.

To catch a liar: Don't watch Fox-TV

When the TV show Lie to Me jumped off in 2009, the hype presented it as grounded in true-to-life science of lie detection. Social scientist Paul Ekman of the University of California at San Francisco, upon whom the show is based, even critiques the scientific accuracy of each episode on his Fox-TV blog.

But watching the show actually makes people WORSE at detecting deception, while at the same time increasing their overall suspiciousness and cynicism about others' honesty, according to a carefully designed study just published in the journal Communication Research.

"Lie to Me appears to increase skepticism at the cost of accuracy,” reports the research team led by Timothy Levine of Michigan State University.

As reported by Tom Jacobs at Miller-McCune, the findings have real-world implications:

Levine and his colleagues argue that … most recent research casts doubt on the accuracy and effectiveness of lie-detection methods presented on the series as unfailingly successful…. So once again, "fictional media portrayal of social science theory leads to confusion between fiction and fact," the researchers write. "Viewers (of the show) may come away with the false sense they can better detect lies. Viewers may also acquire a false sense that law enforcement officers are being effectively trained to detect deception and, therefore, may be less critical as jurors or witnesses." So the next time you turn on a television show, keep in mind that the creators just may be lying to you.

Jacob’s full report on the study is HERE.

Related blog posts:

• "CSI Effect": Fact or fiction? (May 4, 2010)
• Does CSI Effect really lead to more acquittals? (April 1, 2008)

"Consumed With Sex": Sex offender treatment in risk society

Tuesday's post on sex offender treatment has been reposted on several discussion boards and listservs and is getting some hits from Alltop, a kind of cool online psychology news service. In doing research for an article I am writing about sex offense prevention, I just came across another one that may interest many of you. It's based on ethnographic research by Dany Lacombe, a professor of sociology and anthropology at Simon Fraser University, at a sex offender treatment program up in Canada.

Dr. Lacombe ended up dubbing the program Sex Offender School because of the way that it indoctrinated sex offenders into internalizing a high-risk identity as "a species entirely consumed by sex." Her observational analysis, "Consumed With Sex: The Treatment of Sex Offenders In Risk Society," published in the British Journal of Criminology, is fascinating. Here is the abstract:

This ethnography of a prison treatment programme for sex offenders examines the meaning of rehabilitation in the context of the 'new penology.' As it explores how cognitive-behaviourism structures treatment, it uncovers a therapeutics grounded in risk that actively constructs the identity of the sex offender. It shows how the management of risk relies on techniques of introspection and self-discipline—a patient's internalization of his crime cycle and relapse prevention plan—that target primarily sexual fantasies. These self-policing techniques radically transform the sex offender into a species entirely consumed by sex.

I recommend the entire article, which can be requested directly by emailing Dr. Lacombe.

"Treatment": Backwards and upside down?

Don't focus on "denial" or "lack of empathy," warn sex offender treatment experts

Social scientists have long known about the human tendency to divide into in-groups and out-groups. Current popular fascination with so-called psychopaths illustrates this us-versus-them bent. If psychopaths represent evil, that makes the rest of us good. The non-criminal breathes a sigh of relief to discover a distinct "criminal brain" (unless, as neuroscientist Jim Fallon found, we share the abnormality).

Nowhere is this infrahumanisation more extreme than in regards to sex offenders, who are seen as a species apart. Infrahumanisation prevails not just among the general public, but among treatment providers as well. Sex offenders, the popular therapeutic wisdom holds, are likely to lie, distort, and manipulate. Thus, sex offender programs target these attributes in treatment. If a sex offender accepts responsibility and learns empathy, the theory goes, he will be less likely to reoffend.

Not so fast, say three highly experienced scholars and clinicians of sex offending: "As it turns out excuse-making is healthful and results in a reduction in reoffending. It may, therefore, not only be counter to accepted principles of offender treatment to attempt to change noncriminogenic distortions, it may result in increased rates of reoffending."

In their article in the most recent issue of Sexual Abuse in Australia and New Zealand, the researchers argue that many of the entrenched assumptions underlying sex offender treatment are not empirically supported and may actually impede therapeutic progress. Lead author Bill Marshall, an award-winning professor emeritus at Queen's University and Director of a sex offender treatment program in Kingston, Ontario, is one of the world's preeminent scholars of sex offending, with more than 300 publications (including 16 books) dating from long before the fad took hold. Liam Marshall is the primary therapist at the Sexual Offender Treatment Program at Millhaven Assessment Unit, a high-security federal penitentiary in Canada. Jayson Ware, a graduate student at the University of New South Wales who works in the Australian prison system, also specializes in the treatment of sex offenders.

Accepting responsibility. That has a nice moral ring to it. But what does it really mean? And does it translate into a reduction in crime? Most definitely not, the authors state:

[T]aking responsibility, as this is commonly understood in offender treatment, requires the offender to indicate that the behavior has an internal stable cause; that is the client offended because he is a "deviant" or a "bad person." Such attributions are not conducive to change but rather are likely to persuade the offender that his behavior is intractable…. Perhaps it is those sexual offenders who blithely, and readily, admit to all aspects of their offenses, that are the ones who should be given the most therapeutic attention and yet in most programs the full admitters are seen as ideal participants.

In practice, the authors point out, "taking responsibility" often means agreeing with the victim's version of events, which is automatically assumed to be Truth. Treatment manuals instruct clinicians to aggressively challenge any rejection of the victim's account. It is this therapeutic aggression, in turn, rather than the offender's initial minimization or excuse-making, that blocks effective treatment:

Sometimes these challenges are quite harsh and clearly imply that the offender is lying. This type of confrontational challenging has been shown to prevent progress toward the goals of treatment.... Whatever style of challenging is employed, the underlying assumption is that the official record of the offense is a veridical account which the offender must come to agree with if he is to progress further in treatment....

Overall it is hard to see the value in having sexual offenders provide offense details that match the victim's account.... [D]oing so may produce all manner of problems both for the target client and for the other group members. These potential problems might be tolerable if, indeed, overcoming denial and minimizations did result in an enhanced acceptance of responsibility but there is no evidence that it does. Most importantly, there is no evidence that an increase in acceptance of responsibility leads to a reduction in reoffending.…

Therapists may be better advised to change their views on this issue and alter their treatment approach. What we want sexual offenders to do is not blame themselves for their past but rather accept responsibility for their future....

Excuses are attempts to preserve the person's reputation, to prevent the erosion of self-esteem, and to avoid feelings of shame. Stigmatizing shame, where the person concludes they did something wrong because they are bad, leads to an increase in criminal behavior…. While therapists see excuses as examples of criminogenic thinking, extensive research shows that those offenders who offer excuses for their crimes are at lower risk to reoffend than those who accept full responsibility.

The authors similarly tackle the thorny issue of "empathy." Empathy training is a primary component of 94 percent of sex offender treatment programs in North America, according to one survey. Yet a supposed empathy deficit does not predict reoffending, and should not be a focus of treatment, the authors contend.

Finally, the authors address the widespread assumption that sex offenders elaborately plan their crimes. When sex offenders claim an offense "just happened," clinicians accuse them of lying or minimizing. But what if they are telling the truth, and "some, or even most, sexual offenses are not planned?" Again, therapists' insistence that clients adopt their version of reality is an adversarial stance that prevents therapy from succeeding. Offenders learn to keep their true thoughts to themselves and parrot the therapist's opinions, promoting cynicism rather than healing.

So what is left, if therapists ignore excuses, denials, or deficient empathy? Research has established two stable sets of distortions as highly predictive of reoffending, the authors remind us: attitudes tolerant of rape or of child sexual abuse, and emotional identification with children. It is these distorted attitudes, as well as many individual-specific factors -- such as depression, substance abuse, and/or trauma histories -- that put offenders at risk. These empirically established factors, then, should be the foci of treatment aimed at reducing risk.

I highly recommend the full article, "Cognitive Distortions in Sexual Offenders: Should They All Be Treatment Targets?" It is available upon request from the authors. Jayson Ware, one of the authors, will be presenting at the upcoming conference of the Association for the Treatment of Sexual Abusers in Phoenix, Arizona. His Oct. 21 presentation is in the session, "Re-Examining Sexual Offender Treatment Targets," chaired by Ruth E. Mann, PhD of Her Majesty’s Prison Service (UK).

Heartbreaking video on elderly and dying prisoners

Readers appreciated the video documentary I posted last week on the mentally ill in U.S. prisons, so here's a newer video on the elderly in prison. Forget humanitarianism; the economic costs alone of incarcerating so many elderly and infirm should be cause for alarm.



Al Jazeera's investigative reporting continues to impress me. In this special investigation, "Fault Lines: Dying Inside," we see amazing footage that includes:

• a prisoner with Huntington’s Chorea in the nation's first specialized unit for demented patients, a 30-bed facility in New York that has never before been filmed for TV
• 100-year-old Sherman Parker, demented and missing one leg, being cared for by a prisoner earning $5 a month in an Oklahoma prison "operating in warehouse mode" due to severe budget cuts
• 86-year-old Plutarcho Hill, imprisoned for 66 years for a 1947 murder, who has escaped and returned to prison 10 times
• Larry White, a 72-year-old ex-convict released from prison three years ago who is "going back and helping those I left behind" by lobbying for compassionate release for elderly prisoners
• a woman volunteer who is dedicating her life to providing hospice for dying prisoners in the Pennyslvania prisons
  

Normality endangered: "Psychiatric fads and overdiagnosis"

That's the title of this week's Psychiatric Times commentary by Dr. Allen Frances, chair of the DSM-IV Task Force and psychiatry professor emeritus at Duke University. The column begins:

Fads in psychiatric diagnosis come and go and have been with us as long as there has been psychiatry…. In recent years the pace has picked up and false "epidemics" have come in bunches involving an ever-increasing proportion of the population. We are now in the midst of at least 3 such epidemics -- of autism, attention deficit, and childhood bipolar disorder. And unless it comes to its senses, DSM5 threatens to provoke several more (hypersexuality, binge eating, mixed anxiety depression, minor neurocognitive, and others).

Fads punctuate what has become a basic background of overdiagnosis. Normality is an endangered species. The NIMH estimates that, in any given year, 25 percent of the population (that’s almost 60 million people) has a diagnosable mental disorder. A prospective study found that, by age thirty-two, 50 percent of the general population had qualified for an anxiety disorder, 40 percent for depression, and 30 percent for alcohol abuse or dependence. Imagine what the rates will be like by the time these people hit fifty, or sixty-five, or eighty. In this brave new world of psychiatric overdiagnosis, will anyone get through life without a mental disorder?

While focusing on the alarming spread of psychiatric diagnoses among children, as he has in the past Dr. Frances touches on the forensic implications of diagnostic freneticism:

Mental disorder labels can provide cover for societal problems. Criminal behavior has been medicalized (eg, rape as a psychiatric disorder) because prison sentences are too short and such labeling allows for indefinite psychiatric commitment.

Frances concludes:

The DSM-5 bias to thrust open the diagnostic floodgates is supported only by flimsy evidence that does not come close to warranting its great risks of harmful unintended consequences. It is too bad that there is no advocacy group for normality that could effectively push back against all the forces aligned to expand the reach of mental disorders.

The full essay is HERE.

Correctional ethics: New guidelines; licensing complaints

New correctional psychology standards published

As most of you know, the largest mental health institutions in the Land of the Free are not hospitals, but penal institutions: Riker's Island in New York, Cook County Jail in Chicago, and the Los Angeles County Jail. The USA incarcerates the largest proportion of its population of any country on the planet, and at least 15 percent of those 2 million or more people have serious mental illnesses. Unfortunately, many correctional systems lack resources to meet the constitutionally mandated needs of mentally ill individuals in their custody.

For you folks in correctional psychology, Criminal Justice and Behavior has just published a special issue containing the newly revised standards for psychologists working in jails, prisons, and other correctional facilities and agencies. This is only the second revision of the standards since their initial publication by the International Association for Forensic and Correctional Psychology (IACFP) in 1980. They are the result of more than a year's effort by a revision committee chaired by Richard Althouse, Ph.D., president of the IACFP.

Guantanamo psychologists face ethics charges

The timing of these new guidelines is serendipitous. Earlier this week, the San Francisco-based Center for Justice and Accountability and Harvard Law School's International Human Rights Clinic filed state licensing board complaints against two former Guantanamo psychologists. The aim of the complaints, filed in New York and Ohio, is to force investigations into the psychologists’ roles in the torture of prisoners.

The Ohio complaint alleges that Larry C. James, now dean of Wright State University's School of Professional Psychology, headed a special unit called the Behavioral Science Consultation Team, known as "Biscuit," that advised the military on how to break down prisoners and participated in the controversial interrogations at Guantánamo. The New York complaint is against psychologist John Leso, Dr. James's predecessor on the special team.

APA revises ethics standards

In the wake of the Guantanamo abuses, the American Psychological Association has revised its Ethics Standards to clarify that compliance with the law is no excuse for unethical behavior.

Specifically, language has been added to Standards 1.02 and 1.03 ("Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority" and "Conflicts Between Ethics and Organizational Demands") stating that the standards may "under no circumstances … be used to justify or defend violating human rights." In addition, a clause allowing psychologists to behave unethically in order to "adhere to the requirements of the law, regulations, or other governing legal authority" has been struck out.

Related resources:

• The new correctional standards are available HERE for free for a limited time.
• Mother Jones and Democracy Now have in-depth coverage of the Guantanamo complaints, with links to additional background materials.
• The Ohio complaint against psychologist Larry James is HERE. Local coverage of that case, in the Dayton Daily News, is HERE.

Video: Criminalization of mentally ill

I just stumbled across an outstanding educational video on the mentally ill in U.S. prisons. Focusing on Texas prisons, it touches on the problems of isolation, decreased funding, and telecare. Brought to you by Al Jazeera.

Fools competent to represent themselves at trial

Buffoonery doesn’t qualify under Edwards, appellates rule

Two hucksters were not incompetent to represent themselves despite engaging in "nonsensical antics" during their month-long jury trial, the Ninth U.S. Circuit Court of Appeals ruled this week.

Defendants Kurt F. Johnson and Dale Scott Heineman were convicted of conspiracy and 34 counts of mail fraud stemming from a debt-elimination program in which they took more than $3 million from as many as 3,500 homeowners throughout 35 states. The basic premise of their so-called "Dorean Process" was that homeowners should stop paying on their mortgages because banks were being unfair, and take out new loans on which the defendants earned sizeable commissions.

During their trial, the defendants filed "meaningless and nonsensical documents" and advanced "an absurd legal theory wrapped up in Uniform Commercial Code gibberish," the appellate court stated. They insisted on wearing jail attire in front of the jury, and one of their "recurring themes in their colloquies with the court was their peculiar theory that they were 'sentient human beings' " distinct from the capitalized titles by which they were referred to in court documents.

A forensic evaluator, James R. Missett, M.D., Ph.D., had evaluated them before trial and testified at a pretrial hearing that neither had a diagnosable mental disorder. Further, the defendants adamantly insisted on representing themselves, even after the trial judge repeatedly warned them about the dangers and "practically begged them to accept counsel."

The appeal was brought under Indiana v. Edwards, which was decided by the U.S. Supreme Court in 2008, after their trial concluded. That opinion set out a higher standard for self representation than for competency to stand trial when represented by an attorney. Interestingly, however, the trial court had carefully probed and made a record of the defendants' competency to represent themselves, even before Edswards established a higher standard.

Said the Ninth Circuit:

"The record clearly shows that the defendants are fools, but that is not the same as being incompetent.... The behavior of the defendants during the trial in this case, while occasionally wacky, was not disruptive or defiant…. [T]hey did not exhibit a blatant disregard for courtroom rules or protocol and did not make it impossible for the court to administer fair proceedings. In fact, they made opening statements, closing arguments, cross-examined witnesses, argued jury instructions, and testified on their own behalf…. They were examined by a psychiatrist and found to be fine. In the absence of any mental illness or uncontrollable behavior, they had the right to present their unorthodox defenses and argue their theories to the bitter end."

Additional background: Defendant Kurt Johnson’s gibberish-laden blog, The Dorean Group, gives a flavor of the defendants' anti-government, religious rhetoric. Attorney Rachel Dollar's Mortgage Fraud blog cites some examples of the pair's wild legal motions. And fraud prevention consultant Chuck Gallagher discusses some of the interesting ethical issues involved in homeowners' willingness to rely upon the defendants' assertions. My 2008 analysis of Indiana v. Edwards is HERE.

Hat tip: Kathleen