Steffan's Alerts #2: Informants, sex offenders and prisoner reentry

Click on a title to read the article abstract; click on a highlighted author's name to request the full article.

Comparison of online and offline sex offenders

In a meta-analysis of data drawn from nine studies, Kelly Babchishin, Karl Hanson, and Chantal Hermann report on demographic and psychological characteristics of online and offline sexual offenders in a new issue of Sexual Abuse: A Journal of Research and Treatment. The authors suggest that online offenders, although exhibiting more sexual deviancy, may also have more self-control and psychological barriers to contact sexual offending than offline offenders.

Online offenders and contact sex offenses

In the same issue, Michael Seto, Karl Hanson, and Kelly Babchishin detail their findings about online sexual offenders’ past contact sexual offenses and future sexual recidivism from two meta-analyses. Approximately half of online sexual offenders self-reported a prior contact sexual offense, whereas 1 in 8 had an official record of a past contact sexual offense. A small number of online sexual offenders committed some type of sexual recidivism in follow-up periods of up to 6 years.

The world of confidential informants

Ever wonder about the lives of confidential informants? In this issue of Justice Quarterly, Mitchell Miller provides insights from interviews of 84 informants from five southern states. A typology for better understanding the motivations of confidential informants is offered.

• Related post: NPR series on confidential informants

Prisoner reentry

Mark Berg and Beth Huebner, in another Justice Quarterly article, examine family ties and employment—two of the many areas related to recidivism—among offenders who are transitioning from prison to the community. They suggest that familial ties may play an important role in assisting offenders to lead a prosocial lifestyle.

Measuring sexual recidivism following prison-based treatment

Based on a sample of low-risk sexual offenders in New Zealand, Sarah Beggs and Randolph Grace demonstrate that reductions in sexual recidivism following prison-based treatment can be measured successfully through self-report psychometric tests and structured clinical rating scales. Average time at risk for recidivism was 12 years for this cohort. In their article, just published online in the Journal of Consulting and Clinical Psychology, the authors conclude, in part, that amelioration of dynamic risk factors for sexual offending leads to reduced sexual recidivism.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist based in Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

Positive approach key to sex offender change

Trailblazing authors have walked the walk for 40 years

John distorts his offense history and refuses to accept his sexual deviance. Although the other members of his treatment group vigorously challenge him, they are not fully transparent in their own disclosures. The therapist feels stymied. What should she do?

First, she should abandon confrontation and negative labeling. Next, she should race lickety-split for her computer and order a radical new book that will help her succeed as a therapist and also feel better about herself.

The visionary book is Rehabilitating Sexual Offenders: A Strength-Based Approach, written by the team at Rockwood Psychological Services in Canada. Under the leadership of Bill Marshall, a pioneer in the field, the program has successfully treated sex offenders for 40 years. Unlike most sex offender treatment programs, Rockwood has a negligible refusal rate and a negligible dropout rate. Offenders enter therapy, they complete therapy, and when they get out they are very unlikely to reoffend.

Therapist is the key

As psychologists know from the general treatment research, the therapeutic alliance is a primary factor in successful therapy, with more impact than any specific theory or technique. With sex offenders, who are often mistrustful and reluctant to enter therapy or disclose information that may be used against them, the therapist is even more critical, accounting for between 30% to 60% of change.

Like anyone else (only more so), John isn’t going to benefit from confrontation or shaming. Instead of being critical or judgmental, an effective sex offender therapist is empathetic, warm, respectful, and even humorous at times.

Toss out those iatrogenic labels

Language is powerful. When we call people names -- pedophile, rapist, offender, sex offender, deviant – we encourage their negative and harmful beliefs about themselves. That certainly doesn’t reduce shame or foster change.

Instead, the Rockwood authors (Bill Marshall, his son Liam Marshall, Geris Serran, and Matt O’Brien) focus on strengths, invoking a vocabulary heavily influenced by the positive psychology movement and motivational interviewing.

Their guiding principle:

Inside every offender is a good person waiting to throw off the burden of his dysfunctional past. It is the therapist’s job to facilitate the emergence of that good person.

(Ironically, they do use the term “psychopath,” if only to say that scores on the Psychopathy Checklist  are NOT predictive of treatment failure or recidivism. Of the 70 offenders in their outcome research who scored high on psychopathy, only one reoffended during the 8-year follow-up period.)

The authors do not mince words in critiquing the dominant treatment approach that emphasizes deficits and avoidance. When treatment fails, they say, it is most likely because it was too confrontational. When confronted, patients learn to say what the therapist wants to hear, rather than to genuinely engage.

Denial: Not necessarily a bad thing

One of the most unusual features of the Rockwood program is its emphasis on helping men who continue to deny their offenses despite having been convicted. The therapists do not challenge these offenders to admit their crimes. In fact, they don’t think admissions are that big a deal. They offer several reasons for this:

• Given what we know from the false-confession literature, some deniers truly are innocent. And it is impossible to know which ones.

• Forcing an offender to match his account to his victim’s is silly, because we know from research that victim accounts are highly unreliable. 

• Men who deny offending or offer excuses actually have lower rates of recidivism. As Shadd Maruna found in his research with criminal offenders in the UK, excuse-making is related to good mental health as well as to guilt, which (unlike shame) suggests prosocial values.

For those engaged in treatment, the manual gives loads of practical advice on how to structure and run a program. For forensic evaluators on the outside looking in, who have watched in mounting horror as iatrogenic practices are systematically mislabeled as “treatment,” this book lays out the research that can help you explain real treatment to judges, jurors, and attorneys.

Rehabilitating Sexual Offenders is an auspicious debut for the American Psychological Association series, Psychology, Crime, and Justice, edited by Shadd Maruna. I can’t wait to see what’s next.

If you found this review helpful, please visit my Amazon review (HERE) and click on "yes" (this review was helpful). 

The art on this page is by Ricky Romain, an internationally acclaimed human rights artist in the UK whose work focuses on themes of justice, alienation and sanctuary. Mr. Romain has kindly given permission to showcase his art here. I encourage you to check out his extensive online gallery (HERE).

 

Encephalon carnival 84: Psychology-neuroscience roundup

The dominant theme of this month's Encephalon blog carnival is that no matter how straightforward something may appear, it is not always that simple. Among the intriguing offerings:

• Taylor Burns at Cognoculture discusses some of the misconceptions about testosterone in a brief essay, Testosterone and human aggression. 

• Dave Deriso at The Artful Brain examines Cotard syndrome in What is Truth? And What is ‘Walking-Dead’ Syndrome?. 

• In The Mathematician in the Asylum, forensic psychologist Romeo Vitelli at Providentia explores the life of Andre Bloch, a leading French mathematician who spent 30 years in an asylum after knifing three family members to death.   

Hosting the 84^th edition of Encephalon is Janet Kwasniak, who blogs about consciousness at “Thoughts on Thoughts.” Janet is in France, but wherever you are the content is just a click away – HERE.

Napa Hospital chief gets 248 years in prison

A year after police marched into California's largest psychiatric hospital and arrested its executive director, Claude Edward Foulk Jr. has been sentenced to 248 years in state prison. A jury had convicted him of sexually assaulting a foster son he adopted back in the 1960s.

Prosecutors said they identified more than a dozen other boys molested by Foulk over a 40-year period. Those cases were too old to prosecute. However, four of the now-grown men, all boys from abusive homes whom Foulk took in through the foster care system, testified against Foulk at trial.

"You are a sick, sick man," the judge told Foulk. "And the irony is you were director of the state hospital. How does that happen? You should have been the number one patient."

Foulk was appointed to head the beleaguered hospital in 2007, shortly after the U.S. Attorney General's Office negotiated a consent decree mandating sweeping changes aimed at improving patient care and reducing suicides and assaults. The federal investigation had revealed widespread civil rights violations at Napa, including generic "treatment" and massive overuse of seclusion and restraints. Napa is the only state psychiatric hospital in Northern California, and houses defendants undergoing competency restoration treatment and those found not guilty by reason of insanity.

At the time of his appointment, Faulk was lauded for his lengthy career in mental health services in both the public and private sectors.

Paint brushes and soap: The slippery slope of unfettered power

Courts rebuke detention centers for arbitrary and pretextual practices 

The case of the killer paint brush

When the government filed a petition seeking to civilly commit M.F. for sex crimes he might commit in the future, the elderly artist decided to go quietly. He gave up his right to a trial, in exchange for a legal order that he be allowed to do his art in his remaining years.

But officials at Missouri’s detention center resisted being told how to operate. M.F.’s security level was changed from green (low risk) to red (high risk), and his art supplies were taken away. When he challenged this in court, a government psychologist testified that the art supplies posed a threat to the institution’s security: Another patient could use them to hurt someone, or they might even block an evacuation route in the event of an emergency.

Calling the invocation of security “pretextual,”* a judge ordered the institution to return the paint brushes.

No soap unless we say so

In detention sites across the United States, objects far more innocuous than paint brushes are being wielded as weapons against captive sex offenders who -- like M.F. -- decline to enroll in proffered treatment.

In New Jersey, “A.J.,” a sex offender who declined treatment (insisting he is innocent) was denied basic hygiene items such as toilet paper, soap, shampoo, toothpaste, shaving cream and laundry detergent unless he could pay for them. The items were given free as prizes to sex offenders who enrolled in treatment. After a 3-day hearing, a judge ruled that the jailers were being “arbitrary and capricious”:

“Like food and clothing, personal hygiene items are central and core requirements of civilized existence. The refusal of the department of corrections to provide personal hygiene items to inmates at regular intervals is unreasonable. I also find that in this particular case the department of corrections sometimes observes its own rule and sometimes it doesn’t. So it’s capriciously applied as well.”

Tip of the iceberg

Arbitrary, vindictive, petty and sometimes just plain silly practices like these are not rare. Rather, they are commonplace experiences in the state hospitals where thousands of U.S. sex offenders are detained indefinitely based on future risk, after having finished their prison sentences.

The organizational culture is a setup for petty tyranny to run amok.

Unlike in a real hospital, there is an inherent tension between detainees and staff. Under the civil commitment laws, detention sites are supposed to provide treatment to reduce the sex offenders' future risk. But most of the residents decline to engage in treatment. They are resentful about being detained, and see the generic group therapy as a humiliating sham. For staff, in turn, the impossibility of their task lowers morale and can spawn resentment of offenders.

It is hard not to feel morally superior to the offenders. Many are not sympathetic characters. They have assaulted their way through life, leaving behind a swath of psychic destruction to children and women. Their mistreatment is easy to justify as deserved, or in service to the greater good of public safety.

Add to this incendiary mix the few bad apples in any organizational barrel. Literary trickster Carlos Castaneda called them little petty tyrants, who persecute and inflict misery without causing death. If you have ever worked in a prison or mental hospital, you know that such environments provide fertile soil for pinches tiranitos.

As we saw at Abu Ghraib, a frustrated work force with unfettered power over a maligned and powerless population is a recipe for abuse. Indigent prisoners don’t exactly have a voice to complain about abuses of authority. This is especially true for sex offenders. No one wants to hear a victimizer whining about being a victim. 

Alienation and despair

When Martin Seligman played mind games on dogs, giving punishments arbitrarily and not allowing escape, the dogs became apathetic and depressed. "Learned helplessness" resulted from their absolute lack of control or agency. The same thing happens with humans.

The arbitrary and capricious treatment that sex offenders are subjected to creates a vicious cycle. It ramps up alienation, despair, and bitterness. And this mindset is not exactly conducive to the types of prosocial change that we want to see in offenders.

Conditions are so unbearable in these facilities ostensibly designed for care and treatment that three offenders are using “necessity” as a defense for an attempted escape. The three tried to escape from Minnesota’s Moose Lake facility, which was the subject of an ACLU complaint over alleged violations of patients’ rights.

Last week, the would-be escapers unsuccessfully pleaded with a judge to let them stay in the county jail rather than returning them to the hospital, where they said conditions were intolerable:

“Please don’t subject me to any more mental and physical abuse without recourse. Please don’t send me back. I’d rather be euthanized.”

The judge nonetheless ordered the man sent back:

“I don’t have the jurisdiction to address the conditions [at the detention site] or the circumstances of your placement there.”

And therein lies the rub. Legislatures enact civil detention laws and set their parameters. But once the massive and costly facilities are up and running, it is easy for administrators and staff to forget that they are just functionaries, beholden to higher authorities for guidance. When this happens, the courts should step up. They hold ultimate responsibility for making sure that government operations are legal and fair.

A.J. and M.F. were lucky to have tenacious lawyers protecting their rights. Even then, their victories were tiny -- the right to soap and paint brushes. More typically, detainees are out of sight and out of mind. No one is watching, and no one cares.

Back in the day, Russian writer Fyodor Dostoyevsky mused that the degree of civilization in a society could be judged by entering its prisons. I wonder what his verdict would be if he could travel through time and visit a modern civil detention facility.

Related posts:

• "Treatment": Backwards and upside down? Don't focus on "denial" or "lack of empathy," warn sex offender treatment experts

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

*In the context of mental health law, legal scholar Michael Perlin defines pretexuality as “the ways in which courts accept—either implicitly or explicitly—testimonial dishonesty and engage similarly in dishonest and frequently meretricious decision-making, specifically where witnesses, especially expert witnesses, show a high propensity to purposely distort their testimony in order to achieve desired ends.” I used the term in the title of my just-published historical review of the term “hebephilia,” citing its use in court as a pretextual mental disorder.

Steffan's Alerts: New column features fresh scholarship

In a new column launching today, forensic psychologist Jarrod Steffan scours the academic journals as they roll off the presses and brings you his top choices for articles of interest to forensic practitioners. Just click on a title to go to the journal site and read the full abstract; click on an author's name to request the full article. Feel free to leave comments on this new feature in the comments section of the blog.

Expert testimony in false confession cases

Mock jurors perceive that coercive interrogation tactics elicit confessions from guilty but not innocent suspects. Authors Iris Blandon-Gitlin, Katheryn Sperry, and Richard Leo go on to report the effects of an actual disputed confession case on jurors’ perceptions of false confessions in the current issue of Psychology, Crime and Law.

Meta-analysis of mental health courts

Are mental health courts working? Preliminary analyses point in the direction of success, according to an article by Christine Sarteschi and colleagues published in the Journal of Criminal Justice.

Malleability of juvenile offenders’ risk for recidivism

In the new issue of Criminal Justice and Behavior, Claudia E. Van Der Put and colleagues provide data showing that dynamic risk of adolescents' decreases as they age, thereby affecting the effectiveness of risk assessment and related interventions.

Feigning competence to proceed to trial

Preliminary data, reported by lead author Randy Otto in Assessment, suggest that a new measure called the Inventory of Legal Knowledge may assist evaluators in appraising defendants’ response style in competency to stand trial evaluations.

• A previous blog post on the new instrument is HERE.

Prostitution and serial murderers

Compared to killers of nonprostitutes, serial murderers of prostitutes have killed more and for longer periods of time, according to a study by Kenna Quinet published in Homicide Studies.

The state of the science in stalking

In Aggression and Violent Behavior, Kathleen Fox, Matt Nobles, and Bonnie Fisher take stock of the literature on stalking assessment and, based on their review of 56 studies, recommend guidelines for future research.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist whose practice is based out of Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

The strange powers of the placebo effect

Justice perverted: Sex offense law, psychology and public policy

 Oxford University Press has just released this provocative new title of likely interest to many of my readers. It's written by esteemed forensic psychologist and attorney Charles Patrick Ewing, a law professor at The State University of New York, University at Buffalo Law School.

Summary:

Over the past quarter century Congress, state legislatures and the courts have radically reshaped America's laws dealing with sex offenders in an effort to reduce the prevalence of sex offenses. Most convicted sex offenders must now register with the authorities, who then make information about them available to the public. Possession of child pornography has been made an extremely serious crime often punishable by prison sentences that dwarf those meted out to child molesters, rapists, robbers, and even killers. Federal law now imposes a minimum sentence of ten years in prison for those convicted of using the internet to attempt to lure minors for sex. And the federal government and 20 states have "sexually violent predator" laws that allow the indefinite civil commitment of convicted sex offenders to secure institutions for treatment after they have served their full criminal sentences.

All of these changes in sex offender law, as well as numerous others, have been based at least in part on input from psychology, psychiatry and the social sciences. Moreover, enforcement and administration of many of these laws relies to a large extent on the efforts of mental health professionals. However, many questions about this involvement remain largely unanswered:

• Are these laws supported by empirical evidence, or even by well-reasoned psychological theories? Do these laws actually work? 

• Are mental health professionals capable of reliably determining an offender's future behavior, and how best to manage it? 

• Are experts capable of providing effective treatment for sex offenders -- i.e., treatment that actually reduces the likelihood that an identified sex offender will re-offend?

Drawing on research from across the social and behavioral sciences, Dr. Ewing weighs the evidence for the spectrum of sex offense laws, to occasionally surprising results. A rational look at an intensely emotional subject, Justice Perverted is an essential book for anyone interested in the science behind public practice.

What others are saying:

Ewing …gives a lucid, objective analysis of the laws, easily separating myth from reality in this intensely emotional area.

-- Philip H. Witt, Ph.D., ABPP, President, American Academy of Forensic Psychology, co-author, Evaluation of Sexually Violent Predators

A remarkable, eye-opener of a book—Professor Ewing brings to this highly controversial subject his knowledge as both a law professor and as a practicing forensic mental health expert.

--Alan M. Goldstein, Ph.D., ABPP, Professor Emeritus, John Jay College of Criminal Justice

This book is a breath of fresh air. It debunks the media-driven frenzy of fear, hate mongering, and utterly irrational laws that do far more harm than good. Professor Ewing writes thoughtfully, carefully, and persuasively. This book should be read by all who care about—and think about—this topic.

 --Michael L. Perlin, Law Professor, Director of International Mental Disability Law Reform Project, New York Law School

 Ewing is a prolific author, and never disappoints. His other recent books, which I have reviewed, include:

• Trials of a Forensic Psychologist: A Casebook

• Insanity: Murder, Madness, and the Law

• Minds on Trial: Great Cases in Law and Psychology

New site features competency rogues' gallery

At long last, I have completed a WordPress redesign of my decrepit old website. The new site features a compilation of publicly accessible resources on legal competencies, including reports, videos, and court transcripts on cases ranging from Ted Kaczynski (the Unabomber) To boxer Mike Tyson to suspected "dirty bomber" Jose Padilla. These resources, most free and online, are available for instructors, students, practitioners, and anyone else who is interested. For training purposes, it’s hard to beat real-life reports and videos, especially from high-profile or otherwise fascinating cases. To see the full gallery, go to my new website -- HERE -- and click on the Resources tab. Have fun exploring. And please submit a comment on this page if you know of any other resources that I didn't list.

Thanks to all of you who helped with this project by giving me leads -- Denis, Steve, Frank, Eileen, Christina, Ronna, and others.

Special issue, Current Directions in Psychological Science

The February issue offers a cutting-edge roundup of psychology-law topics, with contributions from many luminaries. Click on an author link to request a reprint.

• Expert Psychological Testimony by Brian L. Cutler and Margaret Bull Kovera (I haven't finished reading this one yet, but I see that it discusses the critical issue of adversarial allegiance, identified by Murrie, Boccaccini and their colleagues in regard to the Psychopathy Checklist)

• Future Directions in the Restoration of Competency to Stand Trial by Patricia A. Zapf and Ronald Roesch

• Current Directions in Violence Risk Assessment by Jennifer L. Skeem and John Monahan

• The Psychology of Trial Judging by Neil Vidmar

• Jury Decision Making: Implications For and From Psychology by Brian H. Borstein and Edie Greene

• Suspect Interviews and False Confessions by Gisli H. Gudjonsson and John Pearse

• The Utility of Scientific Jury Selection: Still Murky After 30 Years by Joel D. Lieberman

• Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology by David V. Canter

• Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching? by Debra Ann Poole, Maggie Bruck, Margaret-Ellen Pipe

• Interviewing Cooperative Witnesses by Ronald P. Fisher, Rebecca Milne, and Ray Bull

• Current Issues and Advances in Misinformation Research by Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus

• Eyewitness Identification by Neil Brewer and Gary L. Wells

• Outsmarting the Liars: Toward A Cognitive Lie Detection Approach by Aldert Vrjj, Par Anders Granhag, Samantha Mann, and Sharon Leal

This blogger to give keynotes in Australia, UK

I am excited to announce that I will be delivering keynote addresses at forensic conferences in Australia and the United Kingdom later this year. I hope to be able to meet some of you in person at one or the other.

After the floods and cyclone -- join me on the Sunshine Coast

I will be giving both a keynote address and an all-day training at Australia's national forensic psychology conference, taking place from August 4-6 in Noosa, in the state of Queensland. Other keynote speakers are Australian forensic psychologists Paul Wilson, Don Thomson and Alfred Allan, and fellow Americans Tom Grisso and Leslie Morey.

This year's theme is "Diversity and Specialism in Forensic Psychology." If you think you have a good idea for a forensic talk or workshop, I would encourage you to submit a proposal. Be quick about it, though, as the deadline is the end of February.

Along with an exciting scientific program, the organizers are promising fun social functions and a chance to network "in a friendly and relaxed environment." Noosa is not too far away from the recent catastrophic flooding and Cyclone Yasi, but I'm sure flood waters will have receded by August. I'll be sharing more details in coming months.

Next up: Sexual violence conference in London

On September 8, I will be delivering another keynote at a Sexual Violence conference sponsored by the Forensic Psychological Services program at Middlesex University in London. My focus will be the role of culture and masculinity in multiple-perpetrator rape (the topic of my 2004 theoretical article). Again, stay tuned for more details.

I am excited to be a part of this program because of the organizers' cutting-edge efforts toward preventing sexual violence, especially rape by multiple perpetrators. The Forensic Psychological Services Program at Middlesex University sponsored similar conferences on hate crimes in 2008 and 2010, with an innovative focus on offender motivations and prevention.

You can get involved in this one, too. The organizers are inviting proposals for papers and debate panels pertaining to sexual violence, especially those based on empirical research and/or involving new and emerging topics. One of their major goals is to foster more exchange of ideas among practitioners, academics and policy makers. The deadline for submissions is April 15 (Tax Day, here on the other side of the Atlantic).

Parolees retain right to confidential therapy, court holds

"The SVP Act does not include its own special exception"

Ramiro Gonzales had no idea how far the news would travel, when he confided to his therapist that he had molested more children than those for which he had been convicted and served time in prison.

After all, confidentiality is the cornerstone of psychological treatment. Would you disclose information in therapy if you thought your darkest thoughts and most shameful misdeeds would be trumpeted to the world?

But in response to a subpoena, Mr. Gonzales's therapist handed over his entire treatment record to a prosecutor who was seeking to civilly detain him as a sexually violent predator (SVP), after a judge overruled a defense objection. The government's two psychologists then used the damaging admissions to bolster their trial testimony about future dangerousness, and a jury voted to civilly commit him.

Not so fast, an appellate court ruled last week. "The SVP Act does not include its own special exception" to established rules of patient-therapist confidentiality. Just like everyone else, a parolee is entitled to expect confidentiality in therapy, except as necessary to keep parole authorities informed about whether he is complying with any mandatory treatment requirements. Such information, the court added, must be as minimal as possible, and certainly does not include details of therapy or statements made in therapy.

Mr. Gonzales's admission was so highly prejudicial that the civil commitment must be overturned and he must get a new trial, the appellate court ordered, especially since the government's case overall was "not compelling." There was no evidence that he had molested any children since paroling from prison.

Mr. Gonzales, who is developmentally disabled due to spinal meningitis as a boy, was required to be in treatment as a condition of his parole. The state had already tried to civilly commit him upon his initial parole from prison, but a jury rejected that attempt. It was trying for the second time, after he violated parole by drinking alcohol and being around children, including his sister's children when they came over to visit his mother, where he lived.

The court clarified that people who have been civilly committed, as well as prison inmates, cannot expect the same level of privacy in therapy as parolees or probationers, because they have been found to be dangerous.

The ruling is good news for psychology ethics. Too many therapists seem to harbor the misimpression that a contract with a parole or probation agency trumps our professional ethics codes, giving them carte blanche to discuss their client's confidential business with authorities.

This ruling should serve as a vivid reminder: A subpoena is just a piece of paper filled out by an attorney. You aren't supposed to blindly obey it when it is improper. Indeed, you have an obligation to actively resist turning over confidential records of therapy. The therapist in this case should have voiced an objection, and brought her own attorney to court to fight the subpoena.

The case, People v. Ramiro Gonzales out of Santa Clara County, gives an excellent overview of both federal and California case law on confidentiality in forensic cases. It is online HERE.

Related blog posts:  

• Do sex offenders have right to confidential therapy? (Feb. 22, 2008)

• Confession to prison psychiatrist not confidential (Dec. 11, 2007)

• Treating therapist as police interrogator (Nov. 30, 2008)

• Abandon ethics, all ye who enter here: Special ethics exemption sought for SVP work (Oct. 6, 2010)

California training to feature confession expert

Dr. Richard Leo, Associate Law Professor at USF and a leading scholar in the area of false confessions, will be the keynote speaker at next month's conference of the Forensic Mental Health Association of California. His presentation is titled False Confessions: Causes, Characteristics and Solutions.*

The conference, "Mental Health and the Law: An In-Depth Look at the Evidence," will be March 23-25 in Seaside (just outside of picturesque Monterey).

The FMHAC has scored some other big names, too, including Richard Rogers and Robert Hare. Topics of interest include the effect of high-profile crimes on SVP laws in California, competency restoration treatment in county jails, malingering assessment, and lots more.

*My review of Dr. Leo's book, Police Interrogation and American Justice, is HERE.

Untattoo You

What happens when you cross the Avon Lady with a Neo-Nazi murder defendant?

Guest essay by Sam Sommers*

Several colleagues and students forwarded to me this story from the NY Times describing a criminal defendant in Florida whose attorney successfully petitioned the court to pay for a cosmetologist to help him cover up his swastika tattoos with makeup before trial each morning. The basis for the request was the defense's (quite reasonable) concerns that jurors would have a hard time remaining impartial as they sat in judgment of someone adorned by Neo-Nazi symbols.


The case raises a wide range of interesting questions involving the psychology of law, physical appearance, first impressions, and daily interaction–the very issues often at the heart of this blog. Questions such as:

Should the court have agreed? 

While the unusual nature of the request is what has rendered it newsworthy, similar issues arise in a wide range of cases. Defendants often change clothes before entering court in order to prevent them from having to appear in front of the jury in a prison jumpsuit. Similarly, defendants in custody may be unshackled outside of the presence of the jurors so as to avoid undue bias.

The question becomes, though, should such accommodation apply to tattoos? After all, the defendant in the Florida case presumably chose to decorate himself in Neo-Nazi images. Should the taxpayers foot the bill to cover up decisions that the defendant made of his own free will? Moreover, the prosecution alleges that the attacks in question were motivated by hate: one assault victim was attacked allegedly for associating with a Black man; the homicide victim was gay. Reactions to the case might be different had the defendant gotten the tattoos earlier in life and long since forsworn the ideology associated with them. This wasn't the case here.

Can the issue be reframed? 

Many people I've spoken with have suggested, as alluded to above, that since the defendant chose these tattoos, he should be stuck with the repercussions of that decision. But the issue becomes more complex when you consider that the question for the court was not simply whether the defendant should be allowed to cover his tattoos, but rather whether the court would pay for it. Because a tattooed defendant with the money for his own removal/cover-up would be free to do as he wished.

Most people I've talked to have trouble with the idea that the court would pay for a Neo-Nazi charged with hate crimes to cover up swastika tattoos. But when the same question is reframed, most of the same people agree that a poor defendant charged with capital crimes should be entitled to just as vigorous a defense as a wealthier defendant in the same situation. Pitched this way, the issue becomes more complicated.

Couldn't the judge just remind the jurors to stick to the evidence and ignore the defendant's appearance? 

Sure. And as the division director for the Florida attorney's office argues in the Times article, "We believe the jurors listen to judges' instructions."

But while I have no doubt that jurors often try to follow the rules they're given, examples to the contrary abound. For instance, years ago I published a few research studies indicating that evidence still impacts a jury even after it has been ruled inadmissible. Moreover, judicial instructions to avoid prejudice or partiality have not been sufficient to eliminate other forms of disparity, such as the increased likelihood that a defendant in a capital trial will be sentenced to death when his victim is White as opposed to non-White.

It remains the case that sometimes jurors decide they'd rather not hew to the letter of the judge's instructions. And other times, jurors aren't even aware in the first place of the biases that they're supposed to be avoiding.

If this defendant gets money to change how he looks, what about other defendants similarly disadvantaged by appearance? No good legal debate is complete without the proverbial slippery slope argument, so where do we go from tattoo guy? Should relatively unattractive defendants be allowed to ask for makeovers? Given stereotypes about overweight individuals and self-control, what about an obese defendant in a negligence case? Clearly, the slope isn't so slippery as to allow a defendant from a traditionally disadvantaged minority group to appear in court in whiteface, but where should the line be drawn?

When symphony orchestras wanted to reduce bias in the hiring of musicians, they had candidates audition behind a screen so that gender was not apparent. Accordingly, one of my students in class last week asked, why not do the same to mask the demographics and background of a criminal defendant? Not a proposal that you're likely to see anytime soon in a courtroom near you, but interesting fodder for discussion nonetheless.

So I now turn the question to you, dear readers... Court-sponsored tattoo cover-ups: misguided use of public funds or necessary protection of defendant rights?

Sam Sommers is an award-winning social psychology professor at Tufts University who has served as an expert witness on bias.

*This essay originally appeared on Dr. Sommers' Psychology Today blog, The Science of Small Talk. Reposted with the written permission of Sam Sommers.

Previous guest essay by Sam Sommers: On police, profiling, and Henry Gates (July 28, 2009)

Encephalon carnival: Psychology-neuroscience roundup

The Encephalon carnival is back!

Blog carnivals are an effort to streamline the blogosphere's massive resources through timely and topical online magazines. Encephalon is one such rotating carnival, featuring the blog's best neuroscience and psychology writing.

The 83rd edition, published today, is well worth checking out. There’s something for everyone, whether it's Neuroanthropology's look at prodromal psychosis, Dr. Shock's take on what makes a good bodyguard, Charbonnier's musings on confabulation and free will, Neurocritic's report on how Facebook affects the size of your amygdala, or the latest news and views on autism.

Hosting this month's carnival is Dr. Romeo Vitelli at Providentia (“a biased look at psychology in the world”), who is featuring his two-part series on the historical mystery surrounding Friedrich Nietzsche.

The complete edition is HERE.

Arizona rampage: Analyzing the analyzers

It's an endless loop tape, spinning us in a vortex of irrationality so all-encompassing it almost starts to seem normal.

After every high-profile crime, experts charge out of their corners with their pet solutions: Restrict high-capacity gun magazines. Increase mental health services. Revise school or workplace procedures.

Conservative media psychiatrist Sally Satel is even using the Arizona tragedy as a platform for laws requiring schools and businesses to report to authorities any student or employee who it "ejects or otherwise removes …. out of concern about behavior and dangerousness." Talk about a civil liberties nightmare!

Memorial crime control

Such opportunistic crime-control advocacy works best during moments of public crisis. When the hysteria reaches critical mass, politicians appease anxious constituencies through yet another feel-good law. Then, the latest crisis dies down and people get back to their normal lives. Watching Fox-TV, they remain blissfully shielded from the dark side of memorial crime control.

Rather than capturing the monsters of the public's imagination -- lunatic rampagers, sexual predators, and homicidal gangsters -- this inexorable web of draconian laws ends up ensnaring the most vulnerable, mainly young African American and Latino men from poor communities.

Do you recognize the name Rodrigo Caballero? Unlikely. He is just one tiny speck in a mass of captive and unknown dark bodies, a 16-year-old mentally ill California boy sentenced to 110 years in prison for attempted murder. Any cathartic efforts of memorial crime control are short-lived, while the costly and unanticipated social costs live on. Young Mr. Caballero isn't due out of prison until 2110, long after he and all of the rest of us will be dead.

No profile of would-be assassins

There will always be the next rare event to fuel this cycle of knee-jerk response, ostensibly aimed at protecting us from every remote contingency. Hindsight bias is a powerful heuristic that obscures an unfortunate truth: It is very hard to accurately predict -- much less prevent -- individual-level violence. As I wrote four years ago, after Cho Seung-Hui's deadly rampage at Virginia Tech:

Many people -- and especially many adolescent and young adult men -- are troubled. Many are severely depressed. Many express disturbing, violent fantasies. Fortunately, only a tiny fraction commit lethal acts against others. And unfortunately, those who do often do not stand out ahead of time.

This is what forensic psychologist Robert Fein found when he conducted a Secret Service study of all political assassins and would-be assassins in the United States over the past 60 years. Contrary to popular mythology, the assassins fit no singular "profile." They were neither monsters nor martyrs, Fein said:

The reality of American assassination is much more mundane, more banal, than assassinations depicted [in movies].

The myth of the deranged killer

Jared Loughner’s delusional ramblings, revealed to the world by intrepid Internet sleuths, are the only explanation some people need. But they are something of a red herring.

First, as advocates for the mentally ill are quick to point out, the link between psychosis and violence is far from settled. Most people with severe mental disorders do not become violent. Any increased risk is miniscule compared with the risk posed by use of alcohol or drugs, according to large-scale studies. As Vaughan Bell puts it in his lucid summary of this research:

Psychiatric diagnoses tell us next to nothing about someone's propensity or motive for violence…. It's likely that some of the people in your local bar are at greater risk of committing murder than your average person with mental illness.

But even when an assassin does harbor delusional beliefs, this is not sufficient explanation. Loughner's gender likely played a role, too, as men commit far more violence than women. Yet we would never think we had explained the Tucson rampage with the statement: "Loughner was a man."

In fact, the Secret Service study found that the assassins who were delusional -- about one-fourth of the total -- acted based on the same types of motivations as non-delusional assassins. As reporter Douglas Fox summarized:

Some hoped to achieve notoriety by killing a well-known person. Others wanted to end their pain by being killed by Secret Service. Still others hoped to avenge a perceived, idiosyncratic grievance unrelated to mainstream politics. Some hoped, unrealistically, to save the country or call attention to a cause. And some hoped to achieve a special relationship with the person they were killing.

Selecting one's lens: Micro or macro?

In our professional role, forensic psychologists use a micro lens, focusing on the individual level of analysis. But when commentators focus solely on individual-level factors, they divert the public from contextual factors that may be more amenable to prevention.

In other words, at the micro level there is no question that Loughner is a troubled young man. But at the macro level, his choice of targets certainly reflects the political tensions in the United States and especially in Arizona, which even the local sheriff described as a "Mecca for prejudice and bigotry."

Sarah Palin is able to evade responsibility for her violent rhetoric by strategically refocusing on the culturally entrenched myth of the dangerous schizophrenic, and calling Loughner "deranged" and "evil."

Ironically, it is the mentally unstable like Loughner who are most vulnerable to extremist rhetoric, and other memes floating around in our cultural ethos. As prominent forensic psychologist and law professor Charles Patrick Ewing noted:

These influential politicians and commentators who use violent rhetoric and images -- such as putting a member of Congress in the crosshairs, telling supporters that it is time to 'reload' and suggesting that voters unhappy with Congress resort to 'Second Amendment remedies' -- must realize that they have an incredibly wide audience. At least some members of that audience (both sane and insane) will view their inflammatory statements as an invitation to violence…. The blame for these killings does not lie with the perpetrator alone."

"Stochastic terrorism" is the term invoked by one professor of communications to describe this phenomenon, of "use of mass communications to stir up random lone wolves to carry out violent or terrorist acts that are statistically predictable but individually unpredictable."

What if Abdul had done it?

That the micro lens is a deliberate choice becomes clearer if we ask ourselves how media coverage might be different if a Muslim from the Middle East had shot U.S. Rep. Gabrielle Giffords. Would the focus still be on individual pathology? Or would it be on his political affiliations and the content of his rhetoric?

The din of rhetoric about mental illness drowns out the voices of those framing Loughner's attempted assassination as an act of political terrorism. People like Jesse Muhammed, Sahar Aziz, and Cenk Uygur, who asks incredulously:

Is this a joke? He shot a politician in the head. He called it an "assassination." What part of that was unclear? … [W]hy does the act have to be either psychotic or political? It's obviously both.… The conservative hate-mongers don't create psychos…. [But] they channel their fear, anger and paranoia…. They load them up with violent imagery, whether it's talk of cross-hairs or second amendment remedies or the tree of liberty being refreshed with blood. Then when they get a violent reaction they pretend to be surprised and outraged that anyone would suggest they were the least bit culpable. The reality is that it is a simple formula -- violent imagery in, violent results out.

In the final analysis, the causes of violence are multifaceted and difficult to disentangle. And it is impossible to predict which troubled, angry and alienated young man will engage in lethal violence. But one thing is certain: More laws are not the answer. They cast too wide a net, and distract from the search for deeper solutions.

Related blog posts:

Loughner update: Skirmishing over competency (March 22, 2011) 

Can school shootings be prevented? (April 19, 2007)
Systems failure or black swan? New frame needed to stop memorial crime control frenzy (Oct. 19, 2010)
Backlash growing against criminal profiling (Sept. 14, 2010)

How competent are the competency evaluators?

Largest real-world study finds modest agreement among independent alienists

A bad forensic report by a bad evaluator sets bad events in motion.

True story: A judge ordered a robbery suspect to undergo evaluation. A drive-by psychologist opined that the defendant was incompetent to stand trial due to schizophrenia and attention deficit/hyperactivity disorder (ADHD). The judge rubber-stamped the evaluator's opinion. The defendant was shipped off to the dysfunctional state hospital system for competency restoration treatment. There, the psychologist's diagnoses were rubber-stamped. The unruly defendant was shot full of powerful antipsychotics, given a few months of bus therapy, and proclaimed competent. The defendant had never been psychotic in the first place. Years later, he remained just as mentally retarded as ever.

"Penny-wise, pound-foolish" is the expression that comes to mind. The courts try to save money by appointing only one psychologist per case, and by paying a ludicrously small sum that encourages shoddy practices. But cleaning up the resultant messes is costly, inefficient, and fundamentally unfair.

Competency evaluations are the bread and butter of forensic work. An estimated 60,000 defendants per year -- roughly 5% of the total -- are evaluated to see whether they understand their legal situations and can rationally assist their lawyers in their defense. But for all of the importance of accurate assessments, both to a smoothly running court system and to the rights of the mentally ill to a fair trial, surprisingly little is known about the real-world accuracy of forensic evaluators.

In the case I just outlined, the judge viewed psychologists and psychiatrists as equal and interchangeable, all inherently reliable and trustworthy. At the other extreme, some believe forensic opinions are as random as a chimp with a typewriter.

Hawaii: Exemplar or exception?

Only one U.S. state squarely addresses the problem of reliability in competency evaluations. In the Aloha State, when a doubt is raised as to a defendant's competency, three separate evaluators must conduct independent evaluations. One evaluator is a state employee; the other two are independent. One must be a psychiatrist. By law, the three cannot talk with each other about the case.

This makes Hawaii the perfect setting to examine the real-world reliability of competency evaluators. In a study just accepted for publication in Law and Human Behavior, three investigators took advantage of this opportunity to conduct the largest naturalistic study ever of evaluators' agreement about competency to stand trial.

It should not be a surprise that Daniel Murrie and Marcus Boccaccini are two of the investigators. Not the types to run Psych 101 undergrads through artificial lab experiments, these two are committed to examining forensic practice in the courtroom trenches. I've blogged about their previous work exposing "partisan allegiance" effects in the real-world application of the Psychopathy Checklist (PCL-R). For the current innovative study, they teamed up with W. Neil Gowensmith of the Hawaii courts' forensic services unit.

Examining 729 reports authored by 35 evaluators, they found that all three evaluators agreed in just under three out of four -- or 71 percent -- of initial competency referrals. Agreement was a bit lower -- 61 percent -- in cases where defendants were being reevaluated after undergoing competency restoration treatment.

Consistent with the results of a hot-off-the-press meta-analysis of 50 years of competency research, evaluators believed that the broad majority of defendants referred for evaluation, about 73 percent, were competent to stand trial. This figure was somewhat lower for defendants being reevaluated after an initial finding of competency, with evaluators opining competence in about half of such restoration cases.

Why do evaluators differ?

As far as why agreement is not higher, the study raised more questions than it answered. The researchers sifted through the data looking for patterns, but none jumped out. Evaluators did not lean one way or the other by discipline (psychologist vs. psychiatrist) or by employer (state versus private practice). Defendant demographics were not explanatory. Nor were evaluator disagreements about diagnosis.

It would be interesting to conduct qualitative analyses of the 216 cases in this study to see whether those in which evaluators differed were more complex and ambiguous than the others. I suspect that to be the case.

Competency is nebulous. It exists along a continuum, so there is no precise cut point at which a defendant is automatically "competent" or "incompetent" to go forward with his legal case. Thus, evaluator agreement will never be perfect, nor -- necessarily -- should it be.

How did the judges rule?

One of the more intriguing aspects of the study was its exposition of how judges ruled after being presented with three reports. Not surprisingly, when evaluators were unanimous or split 2-1, the judges tended to go with the majority. But unlike the judge in the vignette I described earlier, many Hawaiian judges were independent thinkers who did not just rubber-stamp the evaluators' opinions.

When they disagreed with the opinions of the court-appointed psychologists and psychiatrists, it was typically to find a defendant incompetent. In fact, in a few cases the judges found defendants to be incompetent even when all three evaluators believed a defendant was competent. In this way, they elevated defendants' due-process rights over prosecutorial efficiency. But maybe that's just Hawaii.

Moving forward

I found the results somewhat encouraging. When not subjected to partisan allegiance pressures, forensic practitioners agreed about three-fourths of the time about whether a defendant was competent to stand trial or not.

Still, if these results are generalizable, it means evaluators will disagree in about two or three cases out of every ten. So in jurisdictions that appoint only a single evaluator, the researchers point out, many judges may be unwittingly rubber-stamping an idiosyncratic -- and even patently incorrect -- opinion:

[T]o the extent that there is a factually correct answer to the question of whether or not a defendant is competent to stand trial, relying on one evaluator increases the likelihood that the court reaches an incorrect decision (by following an incorrect single opinion that would have been revealed as a minority opinion if other evaluations were available). In some instances, this may result in delaying a trial while a defendant is unnecessarily hospitalized. In other instances this may result in a defendant proceeding to trial when additional evaluator(s) would have opined the defendant was unable to participate meaningfully in that trial….

The justice system needs to continue to wrestle with how to handle these competing demands -- efficient use of resources versus fair consideration of defendants' right to due process.

Murrie and Boccaccini are on a roll. Let's hope they keep churning out this ground-breaking line of research, examining the real-world vagaries of forensic practice, and that others climb down from the ivory towers and jump on their bandwagon.

As they note, "naturalistic studies of field reliability are an essential first step in gauging wide-scale quality across all manner of forensic practice and targeting areas for improvement."