California prisons 'cruel and unusual,' U.S. high court rules

In a historic decision, the Supreme Court of the United States has ruled that prison conditions in California are so bad that they violate the U.S. Constitution's ban on cruel and unusual punishment. Opining that the prison system produces "needless suffering and death" through its failure to deliver minimal medical and mental health care to serioiusly ill prisoners, the court ordered California to cut its massive prison population by more than 30,000 prisoners (still 137.5 percent over capacity) within the next two years. Rather than releasing prisoners outright, the state can ship them to other states or keep them in county jails. As Adam Liptak of the New York Times reports:

The majority opinion included photographs of inmates crowded into open gymnasium-style rooms and what Justice Kennedy described as 'telephone-booth-sized cages without toilets' used to house suicidal inmates. Suicide rates in the state's prisons, Justice Kennedy wrote, have been 80 percent higher than the national average. A lower court in the case said it was 'an uncontested fact' that 'an inmate in one of California’s prisons needlessly dies every six or seven days due to constitutional deficiencies.'

The court's ruling in Brown v. Plata is HERE.

Wallowa Lake diagnostic training

Sculpture on Main Street of Joseph, Oregon
with Eagle Cap Wilderness Area in background
(K Franklin)

On the day that the world didn't end, I found it fitting to be literally at the end of the road, giving a training on controversies in psychiatric diagnosis. The setting was Oregon’s picturesque Wallowa Lake, where for 26 years the Eastern Oregon Psychological Association has sponsored an annual retreat.


The mental health professionals at the retreat were a bright and independent bunch whose practices take them across scenic mountainous terrain to far-flung rural communities, Indian reservations, jails and psychiatric facilities in eastern Oregon, Washington and Idaho.


Since Oregon has avoided the Sexually Violent Predator quagmire, the practitioners – as well as the psychologists from Eastern Oregon University in La Grande in attendance -- were both amused and appalled to learn about the pseudoscientific constructs of hebephilia and paraphilic coercive disorder for which the sex offender industry is lobbying. Other controversial diagnoses and proposed diagnoses covered in the daylong workshop included:

• Posttraumatic Stress Disorder
• Antisocial Personality Disorder and Psychopathy
• Parental Alienation Syndrome
• Attenuated Psychosis Syndrome
• Mild Neurocognitive Disorder
• Disruptive Mood Dysregulation Disorder
• Premenstrual Dysphoric Disorder
• Traumatic Grief Disorder
• Gambling Disorder

Wallowa River as seen from Chief Joseph
Trail (K Franklin)

If you ever get a chance to attend this annual retreat, which is not well advertised but always takes place the weekend before Memorial Day Weekend, I recommend it highly. Not only is the crowd an enjoyable and intellectual one, but the setting is amazing. It's not for no reason that the Nez Perce consider sacred this valley butting up against the mountains of the Eagle Cap Wilderness Area.

The legendary Chief Joseph is buried on a glacial moraine overlooking the lake. The town named in his honor, Joseph, was a dying old ranching and mining community when it was discovered by artists who have reinvigorated the main drag, opening shuttered storefronts and installing amazing sculptures on every corner. Summer vacationers can now rub shoulders with cowboys and Indians in gourmet restaurants featuring local micro-brews and wines.

It's not an easy place to get to (one must catch a puddle jumper to Walla Walla, Washington or Pendleton, Oregon and then drive for several hours), but its breathtaking beauty and unique character make it well worth a visit.

Special thanks to David Starr, Dwight Mowry, Marianne Weaver, Terry Templeman, Charles Lyons, and Stephen and Beth Condon for all of your work and your kindness in arranging and facilitating this event.

The curious story of 'a reasonable degree of professional certainty'

I recently had a strange experience: An opposing attorney made a motion to exclude my report in a legal case, because I had not written that I held my expressed opinions "to a reasonable degree of psychological certainty." The attorney who had retained me was forced to scramble to obtain a written declaration from me, stating that I did indeed hold my opinions to this level of certitude. I typically do not include this magic phrase in reports, finding it rather obtuse and, frankly, pompous-sounding. So, when my colleague Dr. Worthen expressed knowledge about the phrase, I prevailed upon him to write this guest post. 

Guest post by Mark D. Worthen, Psy.D.*

Expert witnesses who testify based on their medical, psychological, or other scientific training and expertise, are often asked to express their opinions "to a reasonable degree of medical (or psychological or scientific) certainty." But what does this phrase mean and why is it used in legal proceedings?

Before exploring what the phrase means, let's first examine why the phrase is used in courts of law. As it turns out, the "reasonable degree of medical certainty" phrase developed almost by accident and has no clear rationale for its almost universal use. After conducting exhaustive research, law professor Jeff L. Lewin traces the origins of the phrase to Chicago, Illinois sometime between 1915 and 1930 [1]. Professor Lewin notes:

While the phrase was generated by the efforts of Illinois attorneys to comply with legal doctrine, litigators in other states adopted this curious phrase through unreflective imitation of models provided in a best-selling manual on trial technique. The phrase was then incorporated into legal doctrine through the judiciary's uncritical acceptance of this attorney usage. The judicial response to the phrase thus exemplifies the generation of legal rules by chance instead of by deliberate judicial choice.

In addition to lacking a clear rationale for its usage, the "reasonable degree of medical certainty" phrase also lacks a consistent definition.

Many professionals who use the phrase in their testimony have their own understandings of the phrase's meaning. For example, some assume that the phrase means that there is a preponderance of the evidence in support of their opinion, or that their opinion is "more likely than not" to be correct. Other professionals require more evidence: They assume that the phrase means that they possess "clear and convincing" evidence for their opinion or even that their opinion is accurate "beyond a reasonable doubt." On the other hand, most testifying experts probably do not have a pre-determined definition for the phrase and utter it simply because they know it is expected.

Although the phrase is not routinely used in the practice of medicine, psychology, or other scientific disciplines (have you ever seen a journal article that concluded, "To a reasonable degree of psychological certainty" we found that X caused Y?), textbooks written to provide guidance to professionals who testify in legal proceedings have offered various definitions. For example, the authors of Effective Medical Testifying: A Handbook for Physicians assert that the phrase means "more likely than not", i.e., 51% probability or more.

Black's Law Dictionary defines the phrase similarly: “A standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought.”

However, courts have not always agreed with this definition. For example, the Superior Court of Pennsylvania in Griffen v. University of Pittsburgh ruled that a doctor who indicated that there was a 51% chance that a certain action caused an injury did not provide a sufficient basis for testifying to a reasonable degree of medical certainty. In declaring that 51% certainty was not certainty for the purposes of the law, the Court did not indicate what percentage of certainty is required.

In other cases, it seems that the courts don't care how confident an expert may be about his or her opinion. What matters is that they use the "magic phrase" during their testimony. For example, in a Missouri case:

... a medical doctor testified that he was ninety percent certain as to the causality of a condition. See Bertram v. Wunning, 385 S.W.2d 803, 807 (Mo. Ct. App. 1965), appeal after remand, 417 S.W.2d 120 (Mo. Ct. App. 1967). However, despite giving this high probability, he later retreated when asked to testify as to causation of the condition with “reasonable medical certainty.” In the end, notwithstanding the strong and “practically certain” testimony of the doctor, the Missouri court found the testimony to be insufficient because it lacked the “reasonable certainty” stamp of approval. [2]

Frustration with the inexactness of the phrase has led some to call for a clear-cut, agreed-upon definition.

The American Law Institute (ALI) declared, in its Restatement (Third) of Torts: Liability for Physical and Emotional Harm (§ 28, Comment e, 2010), that the phrase should be specifically defined to mean that an expert's opinion is "more likely than not" accurate. The ALI reasoned that the standard for "reasonable degree of medical certainty" should not exceed the standard of proof considered by juries in tort cases, i.e., a preponderance of the evidence.

Attorneys James M. Beck and Mark Herrmann argue that the ALI standard "dumbs down" expert witness testimony and that the reasons for the proposed changes are faulty in many respects. They argue that the use of "reasonable medical certainty" should be retained and that its meaning should come from the standards for decision-making commonly used in the expert's profession.

Attorney Nathan Schachtman also argues for continued use of the phrase:

Surely, however, the phrase is not semantically empty. “Certainty” has clear epistemic connotations and implications for the witness’s opinion, both in terms of his own state of mind, and in terms of the empirical support the witness has for his opinion in the form of reasonably relied upon data, and sound inferences to a reliable conclusion. Subjectively, the witness who utters the phrase acknowledges that he is not speculating and that he believes that his opinion satisfies professional standards for claims of knowledge. A witness who qualifies his opinion with these “magic words” communicates his willingness to put his professional reputation on the line, and to defend the opinion before his peers. Objectively, the phrase conveys the notion of reliable knowledge. To be sure, human beings may not enjoy “certainty” in their knowledge of empirical propositions, but the “reasonable” qualifier makes the entire phrase meaningful and important.

While the debate over the definition of the phrase and whether or not it should be used at all will no doubt continue, individual experts might rightly ask, "Well, what should I do if asked to give an opinion to a reasonable degree of professional certainty?"

Here are some suggestions:

1. Ask the attorney you're working with if he or she plans to use the phrase in his or her direct examination of you. If so, ensure that each of you understand what you mean by the phrase, so that you'll be ready in the event that opposing counsel or the court asks you to define what you mean by "reasonable professional certainty." It's unlikely that you will be asked to define the phrase but it's better to be prepared with an answer than to stumble and mumble.

2. Make sure that your definition comports with relevant case law in your jurisdiction. For example, in Pennsyvania, you would not want to say, "It means that it's more likely than not" (see above).

3. In terms of how to define the phrase, consider how your profession determines "reasonable certainty." For example, when do you consider an opinion certain enough to proceed with a given treatment (medicine or psychology) or to proceed with a certain construction plan (architecture or engineering)?

4. If you give a numerical representation of your confidence in your opinion, a savvy attorney might challenge you on your ability to determine your own level of confidence with accuracy, citing research on the overconfidence effect. Your best bet is to be familiar with this research and to err on the side of underestimating your confidence.

5. Better yet, avoid numerical representations of confidence and focus on the evidence for your opinion, rather than your confidence in your opinion. Think about it this way: Are jurors or judges more likely to be persuaded by explanation #1 or #2:

• Explanation #1: " 'Reasonable degree of psychological certainty' means that I am 75% sure of my opinion." 

• Explanation #2: " 'Reasonable degree of psychological certainty' means that I found clear and convincing evidence for my opinion."

6. Focusing on the evidence for your opinion is an important distinction because it redirects the trier of fact to the strenth of your argument, namely, the scientific methods and research evidence for your conclusions.

FOOTNOTES
 

1. The Genesis and Evolution of Legal Uncertainity About "Reasonable Medical Certainty," Maryland Law Review, 57, pp. 380-504, 1998.

2. From "An Enigmatic Degree of Medical Certainty" by Nelson Abbott and Landon Magnusson, Utah Bar Journal, July/August 2008 (Vol. 21 No. 4).

*Guest author Mark D. Worthen, Psy.D. is a clinical and forensic psychologist in Asheville, North Carolina. Visit him on the web at DrWorthen.net.

Unusual saga: From prison warden to anti-execution activist

Ex-warden of hardscrabble San Quentin to direct abolitionist Death Penalty Focus

Jeanne Woodford is joining Death Penalty Focus, a nonprofit group that works to abolish the death penalty. She brings to the job her experience as the warden of San Quentin State Prison in the San Francisco Bay Area, where she oversaw four executions. (Photo credit: David Butow / Redux)

As the clock ticked past midnight and the death chamber phone refused to ring, San Quentin State Prison Warden Jeanne Woodford would calmly signal the executioners to inject a lethal dose of chemicals into the condemned man's veins.

Reared in a Roman Catholic family, she grew up believing that only God had the right to take a life. But four times in her 30-year career in California corrections, the soft-spoken mother of five carried out executions of notorious killers, remorseful and unrepentant alike.

Woodford resigned as director of the California Department of Corrections and Rehabilitation four years ago, dismayed over state authorities clinging to policies such as the death penalty that she had concluded are wasteful, discriminatory and fail to make the public safer.

Now, as the state tries to restart the execution machinery after a five-year legal hiatus, Woodford has crossed to the other side of the contentious debate over capital punishment. On Thursday, the abolitionist nonprofit Death Penalty Focus announced Woodford's appointment as executive director, a new role that will see her standing on the other side of the walls of San Quentin should any of the 713 death row inmates meet his or her end at the hands of the state.

"I never was in favor of the death penalty, but my experience at San Quentin allowed me to see it from all points of view. I had a duty to carry out, and I tried to do it with professionalism," Woodford, 56, said in explaining how she had to put her personal abhorrence of execution aside to do her job. "The death penalty serves no one. It doesn't serve the victims. It doesn't serve prevention. It's truly all about retribution."

Woodford says she sees an opportunity to get rid of the death penalty in the current quest for budgetary restraint. If the public can be educated about the true costs of capital punishment - at least $200 million a year, she says - as well as its potential for irreversible error, support for the ultimate penalty would wither, Woodford predicts. It is that prospect that has lured her from a brief retirement to the post with Death Penalty Focus from which she will lobby against the policy she once imposed.

Reform proposals ignored

After 26 years at San Quentin, Woodford was tapped by Gov. Arnold Schwarzenegger to serve as corrections director in 2004, a job she initially hoped would allow her to reform the system from inside. She wanted to close the revolving door of parole violators flooding the prisons for three-month terms, enough to compound overcrowding and soak up medical care but too short to get into rehabilitative programs.

"It was an incredibly expensive bus ride to nowhere," she said of the vicious circle of petty offenses sending parolees back inside to reconnect with hardened criminals.

Her proposals for locating inmates in prisons closest to where their families lived went unheeded. Direly needed sentencing reform never happened, although, she says, the Legislature and governor are now drafting programs to cut the 70% recidivism rate, finally motivated by the need to trim the corrections budget.

"There are a lot of hard-working people in the corrections system who take the blame for so much that is out of their control," Woodford says of the frustration that led to her resignation. "They don't make the sentencing laws, but they are expected to carry them out."

The Los Angeles Times profile, by reporter Carol Williams, continues HERE.

Three Strikes and Civil Rights

Guest post by Bill Boyarsky*

The racism within the police-court-prison system is one of America’s most neglected evils, as is the impact it has on the poor African-American and Latino communities that are home for so many released convicts.

I’m wondering if I’ve already lost some of my readers. Who cares about criminals? Some of the journalists I met last week said they get the same reaction from their editors.


I joined them at a symposium sponsored by New York’s John Jay College of Criminal Justice’s Center on Media, Crime and Justice designed to encourage better reporting of this neglected field…. My fellow attendees were journalists working for newspapers, radio stations and online operations. Some were staff reporters, others freelancers….

The main topic was how to report the long and repetitive controversy over California’s three-strikes law, a draconian statute approved by the voters in 1994 after the horrible murder of 12-year-old Polly Klass by an ex-convict. The killer had been released from prison after serving eight years of a 16-year sentence for a series of armed robberies. Previously, he served six years in prison after he attempted a rape, brutally assaulted a woman in the course of a burglary, and tried to kidnap another woman at gunpoint.

The solution to this was based on a sports analogy, except, in this case, the third strike means you’re in—in prison for a long time and often for a small offense. The law imposes a mandatory sentence of 25 years to life for anyone convicted of a felony if that person has two previous felony convictions. The third-strikes sentence has been imposed for nonviolent offenses—such as stealing videos, golf clubs or even a pizza—permitted by the law to be raised to felony status.

The discussions ranged far beyond three-strikes. Through all the conversations, an underlying issue, to me, was racism.

Racism has always been a powerful force in the web of police, prosecutors, judges, prison guards and wardens who make up the criminal justice system.

But beginning in the 1980s the war on drugs made it worse, with repeated raids on poor African-American and Latino neighborhoods while the police and prosecutors generally ignored economically better-off whites using cocaine in the safety of their homes.

Connie Rice, a civil rights attorney who heads the Advancement Project, has long fought for racial justice by police, prosecutors and the courts, as well as in the schools and other institutions. She told the journalists the war on drugs was based on crime suppression in poor, minority areas. Police stop young men and arrest them when they suspect drug possession. Arrests add up over the years to a third strike.

The three-strikes prosecutions, said Erwin Chemerinsky, dean of the University of California Irvine School of Law, focus disproportionately on African-Americans and Latinos. Thirty-seven percent of such inmates are African-Americans and 33 percent are Latinos. These statistics are in line with national figures showing that African-Americans and Latinos outnumber whites in prison by a margin of almost 2-to-1.

Veteran activist Tom Hayden, an expert on gangs, talked about the lack of jobs confronting convicts when they leave prison. A one-striker, returned to the old neighborhood unemployed and without prospects, is just a crime away from being a two-striker and then committing the third. “Deindustrialization has eliminated jobs people took after prison,” he said.

The journalists’ challenge, said Connie Rice, is “to connect the dots,” to put all these elements into a coherent, compelling story.

That’s a big challenge, and journalism may not be up to it. At the end of the meeting, the hard facts of life in today’s media climate intruded. One reporter said her editors weren’t interested in the subject because they didn’t think the readers cared. Another was a court reporter who wanted to explore how the system works on the streets. But her beat includes two courthouses, separated by many miles in a sprawling county. I doubt whether she has much time for prowling the streets. A third reporter talked about the strains imposed on the remaining members of a staff hit by layoffs.

Add to those obstacles Internet editors’ demands for quick and numerous short stories that will produce more hits and page views.

Despite the challenges, I left the room tremendously impressed with the energy of the reporters. One said he had thought of 21 story ideas during the symposium.

The journalists are today’s civil rights reporters, engaged in a job as big and challenging, but much more unglamorous, than that of an earlier generation. During the civil rights movement, it was easy to get people worked up about an African-American kid barred from a school or a church burned down. Today, it is almost impossible to stimulate the interest of editors and audiences in a black or Latino ex-convict hoping for a fresh chance rather than a third strike.

*Originally posted at Truthdig. Re-posted with written permission from Bill Boyarsky. 

Bill Boyarsky is a lecturer in journalism at the University of Southern California’s Annenberg School for Communication and is vice president of the Los Angeles City Ethics Commission. A former city editor, columnist, bureau chief and political writer for the Los Angeles Times , he was a member of reporting teams that won three Pulitzer prizes. In 2010, the Los Angeles Press Club honored his political columns at Truthdig by naming him as Online Journalist of the Year.

Psychiatry rejects new rape disorder for DSM-5

Regular blog readers will be familiar with the heated battle over a controversial proposed mental condition of "Paraphilic Coercive Disorder" for rapists. Now, the American Psychiatric Association has issued its latest draft of the DSM-5 diagnostic manual, with the condition relegated to the appendix. The proposal was favored by psychologists working for the government in Sexually Violent Predator (SVP) civil commitment cases, as it would have made it far easier to testify that sex offenders are mentally ill. It had met with strong opposition from scientists, including premier rape researcher Raymond Knight of Brandeis University.

Among other outspoken opponents was psychiatrist Allen Frances, an emeritus professor from Duke University who chaired the DSM-IV Task Force. In blog posts soon to go live at the Psychiatric Times and Psychology Today, he cautions that the battle is not over: The current attempt to place the pseudoscientific condition into the appendix of the DSM 5 as a condition warranting further study is still a mistake.

"Important message"

Dr. Frances said the rejection should send a strong message to those involved in the SVP civil commitment industry:

Dr. Allen Frances

The evaluators, prosecutors, public defenders, judges, and juries must all recognize that the act of being a rapist almost always is an indication of criminality, not of mental disorder. This now makes four DSM's (DSM III, DSM IIIR, DSM IV, DSM 5) that have unanimously rejected the concept that rape is a mental illness. Rapists need to receive longer prison sentences, not psychiatric hospitalizations that are constitutionally quite questionable.

This DSM 5 rejection has huge consequences both for forensic psychiatry and for the legal system. If "coercive paraphilia" had been included as a mental disorder in DSM 5, rapists would be routinely subject to involuntary psychiatric commitment once their prison sentence had been completed. While such continued psychiatric incarceration makes sense from a public safety standpoint, misusing psychiatric diagnosis has grave risks that greatly outweigh the gain…. Preventive psychiatric detention is a slippery slope with possibly disastrous future consequences for both psychiatry and the law. If we ignore the civil rights of rapists today, we risk someday following the lead of other countries in abusing psychiatric commitment to punish political dissent and suppress individual difference.

This DSM 5 rejection of rape as mental disorder will hopefully call attention to, and further undercut, the widespread misuse in SVP hearings of the fake diagnosis "Paraphilia Not Otherwise Specified, nonconsent". Mental health evaluators working for the state have badly misread the DSM definition of Paraphilia and have misapplied it to rapists to facilitate their psychiatric incarceration. They have disregarded the fact that we deliberately excluded rape as an example of Paraphilia NOS in order to avoid such backdoor misuse. Not Otherwise Specified diagnoses are included in DSM only for clinical convenience and are inherently too idiosyncratic and unreliable to be used in consequential forensic proceedings.

Exclude coercive paraphilia from appendix

All along, promoters of this new diagnosis have conceded that this would be a tough sell, given its lack of scientific foundation. Indeed, they said publicly that they would consider it a victory if they could even get paraphilic coercive disorder included in the appendix of the upcoming diagnostic manual (due out in mid-2013), as a condition meriting further study. But as Dr. Frances points out, even that would be a major error:

The sexual disorders work group proposes placing "coercive paraphilia" in an appendix for disorders requiring further research. We created such an appendix for DSM IV. It was meant as a placement for proposed new mental disorders that were clearly not suitable for inclusion in the official body of the manual, but might nonetheless be of some interest to clinicians and researchers….

If "Coercive Paraphilia" were like the average rejected DSM suggestion, it would similarly make sense to park it in the appendix -- as has been suggested by the DSM 5 sexual disorders work group. This might facilitate the work of researchers and also provide some guidance to clinicians....

But "coercive paraphilia" is not the average rejected DSM diagnosis. It has been, and is continuing to be, badly misused to facilitate what amounts to an unconstitutional abuse of psychiatry. Whether naively or purposefully, many SVP evaluators continue to widely misapply the concept that rape signifies mental disorder and to inappropriately use NOS categories where they do not belong in forensic hearings.

Including "Coercive Paraphilia" in the DSM 5 appendix might confer some unintended and undeserved back-door legal legitimacy on a disavowed psychiatric construct. Little would be gained by such inclusion and the risks of promoting continued sloppy psychiatric diagnosis and questionable legal proceedings are simply not worth taking. The rejection of rape as grounds for mental disorder must be unequivocal in order to eliminate any possible ambiguity and harmful confusion. We did not include any reference to "coercive paraphilia" in DSM IV and it should not find its way in any form, however humble and unofficial, into DSM 5. 

If you agree that this pseudoscientific condition needs to be placed in the wastebasket once and for all, now is the time to speak up. The current public comment period ends June 15. While you’re at it, you might want to state your opposition to a couple of the other controversial proposals with potential for profound negative consequences in the forensic realm – pedohebephilia and hypersexuality.

Postscript: Thanks to the suggestion of an alert reader, I have added the direct links to the DSM-5 comments pages. You must register in order to submit a comment.

• Click HERE to comment on the proposed diagnosis of Pedohebephilia.
• Click HERE to comment on the proposed diagnosis of Paraphillic Coercive Disorder.

Related posts:

• Psychiatrists ramp up opposition to forensic misuse of DSM: "Pedohebephilia" would make bad situation worse, they warn (March 10, 2011)
• Europeans first to shoot down controversial paraphilia (Oct 26, 2010)
• Psychiatrists vote no on controversial paraphilias (Oct. 24, 2010)
• Rape as psychiatric illness: Battle heats up (June 24, 2010)
• Latest hebephilia critiques: Point-counterpoint (March 12, 2010)
• More prominent voices join chorus of DSM-5 critics (March 1, 2010)
• DSM-V: Will shoddy manual implode years before launch date? (Feb. 20, 2010)
• New Scientist expose of psychiatry’s "civil war" (Dec. 10, 2009)
• Scientist razes proposed "Paraphilic Coercive Disorder" (Nov. 6, 2009)
• Hebephilia struck by third blow: Down but not out? (June 5, 2009)
• Wrangling over psychiatry's bible (Nov 16, 2008)
• DSM makeover: What will they come up with next? (Oct 13, 2008)
• Invasion of the hebephile hunters (Oct 31, 2007)

Video: Confessions of a BigPharma Rep

Click on this caption to view YouTube video

I spent 15 years in this industry. I was one of the best of the best. But … the industry has run amok. We are at a severe crossroads in this nation. We have got to take our power back.

ATSA issues call for change in sex offender policy

The Association for the Treatment of Sexual Abusers has just issued a major policy paper calling for a shift in public policy toward sex offending. The balance has tipped too far toward criminal justice punishments, causing unintended consequences such as families who fear coming forward to report sexual abuse, the paper emphasizes.

Experts agree that a criminal justice response alone cannot prevent sexual abuse or keep communities safe. Yet, tougher sentencing and increased monitoring of sex offenders are fully funded in many states, while victim services and prevention programs are woefully underfunded.

Key recommendations of the 54-page policy statement include:

1. Design and implement evidence-informed policy.
   
   
2. Develop successful community policies that expand the notion of what constitutes abuser accountability; encourage community responsibility and healing; and provide safety, restitution, healing, and avenues for input for victims.
   
   
3. Integrate what is known about perpetration into prevention programs, victim services, and public education.

The reported is co-authored by Joan Tabachnick, a well-known educator on sexual violence prevention, and Alisa Klein, ATSA's public policy consultant. It was partly funded by a grant from the Ms. Foundation for Women.

The introductory quote from Eleanor Roosevelt makes me optimistic that this may signal a major shift for ATSA, which has significant legislative influence around the United States, in the direction of primary prevention.

When will our consciences grow so tender that we will
act to prevent human misery rather than avenge it?

-- Eleanor Roosevelt

Steffan's Alerts #4: Supermax, school shooters and Asperger's

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

Ethics of solitary confinement and supermax prisons

The Journal of Forensic Psychology Practice has published online a new issue focusing on ethics in criminal justice settings. Sharon Shalev offers an analysis of ethics in solitary confinement and supermax prisons and calls for more active participation by health professionals in these settings.

Asperger’s Disorder and the criminal justice system

Criminology and Criminal Justice has published Laura Caulfield and Ann Browning’s review of the literature on the connection between Asperger’s Disorder and criminality as well as the criminal justice system’s understanding of the condition.

Serious assaults on prison staff

In the Journal of Criminal Justice, Mark Cunningham and colleagues examine assaults on prison staff occurring over a 14 month period in a state correctional system. They provide data on prevalence of serious assaults and characteristics of inmate perpetrators and staff victims.

Are school shooters and suicide bombers more alike than different?

Adam Lankford and Nayab Hakim posit that they are, based on their review of school shooters in the United States and suicide bombers in the Middle East. Their article appears in Aggression and Violent Behavior.

Assessing intervention targets in sex offender treatment

Melissa Grady and colleagues review the psychometric properties and validation of measures commonly used in sexual offending treatment programs. The authors offer recommendations on measures to assess core treatment areas in their new article in Aggression and Violent Behavior.

Treatment for child sexual abuse victims and their families

In the same issue of Aggression and Violent Behavior, Poonam Tavkar and David Hanson offer information on effective treatment options for victims of child sexual abuse and their non-offending family members.

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.

Judge upholds indefinite detention of California sex offenders

In a long-awaited ruling, a San Diego judge has ruled that indefinite detention of Sexually Violent Predators (SVP’s) is constitutional, even though other forensic patients are entitled to periodic reviews.

The ruling in the legal challenge by sex offender Richard McKee came after a 6-week hearing featuring experts from around the United States. The California Supreme Court had ordered the hearing, saying prosecutors must justify the differential treatment of SVP’s by proving that they are categorically different from two other types of forensic patients. The other two classes of   people who are civilly committed based on criminal behavior are Mentally Disordered Offenders (MDO’s), who are hospitalized when they come up for parole due to the immediacy of their threat of violence to the public, and persons found not guilty by reason of insanity (NGI). Jessica’s Law, enacted by voters in 2006, eliminated the right of committed sex offenders to a recommitment trial every two years.

In his 35-page ruling, Judge Michael Wellington said prosecutors had met their burden of proving that SVP’s are a distinct class that is harder to treat and more likely to commit additional sexual offenses.

After hearing from all of the experts, the judge acknowledged the significant controversies regarding the reliability of the paraphilia diagnoses, the accuracy of actuarial risk prediction instruments such as the Static-99, and the base rates of recidivism.

If anything is clear from the evidence presented in this case, it is that key factual matters are controversial. It is also apparent that the evidence of the relative danger the classes represent is analytically nuanced and deeply rooted in developing medical and psychological science.

Psychiatric diagnoses unreliable

Interestingly, the testimony of state hospital representatives lent some support to McKee’s legal challenge.

For example, Dr. Alan Abrams, Chief Psychiatrist at the California Medical Facility at Vacaville, testified that sex offender diagnoses (pedophilia and other paraphilias) are imprecise, and he has little confidence in their accuracy.

Two professionals from Coalinga, the state hospital built to house SVP’s, also testified that they favor having an external review every two years. Dr. Robert Withrow, the hospital’s acting medical director, said indeterminate terms reduce hope in both patients and staff, and discourage patients from signing up for treatment. Dr. Kasdorf, also from Coalinga, agreed. He said patients work harder in treatment and have more trust in the system when they know they will get a hearing.

This contradicted testimony by David Thornton of Wisconsin's Sand Ridge civil detention center, who argued that periodic recommitment hearings are disruptive to treatment.

Actuarials controversial

Among the most controversial issues emerging from the trial was the value of actuarial instruments -- and the much ballyhooed Static-99 in particular -- to assess sex offenders' risk of recidivism.

Mark Boccaccini, who teaches psychometrics and psychology and law at Sam Houston State University in Texas, testified about his research showing that "the Static-99 has only marginal to moderate predictive reliability, little greater than chance." Boccaccini also testified that use of a single good actuarial tool is a better predictor than the use of multiple tools. Many government evaluators in California report data from other actuarial tools in addition to the Static-99, such as the MnSOST-R and the RRASOR.

California need not be enlightened

McKee's attorneys, from the San Diego Public Defender's Office, were allowed to present evidence of two alternate models: Texas's outpatient halfway house model, and Canada's Circles of Support and Accountability, which provides support to ex-convicts returning to the community. But ultimately the judge ruled that testimony irrelevant:

The [Canadian] representative who testified presented an impressive picture of a successful community-based program. While this evidence was offered to show that less restrictive alternatives exist to SVP treatment, it fails to gain traction in an equal protection context…. California is not obligated to follow Texas or Canada's examples however much more enlightened they may seem.

Bottom line, ruled the judge, is that we must make do despite the controversies and uncertainties:

It is this court's conclusion that the evidence presented satisfies the People's burden of establishing, by a preponderance of the evidence, that the different treatment given to SVP's under Proposition 83 [Jessica's Law] is "based on a reasonable perception of the unique dangers that SVP's pose rather than a special stigma that SVP's bear in the eyes of California's electorate." (McKee, supra, at 1210.) The fact that the evidence supporting this may be subject to controversy does not detract from its reasonableness or from the validity of the legislative distinctions based on it.

As someone who evaluates all three categories of offenders here in California --SVP’s, MDO’s and NGI’s -- I was astonished by the argument that the harm caused by SVP’s is categorically greater than that inflicted by members of the other two categories. Violence need not be sexual to inflict severe trauma. Some of the most disturbing cases I have been involved in were MDO and NGI cases in which psychotic individuals inflicted horrific brutality, torture and even death upon women and children. In contrast, I know of one young man who is currently committed to Coalinga as an SVP whose only offenses since age 18 were two consensual affairs with late teenage girls, one of whom even testified on his behalf at trial (saying she initiated the relationship and was a willing participant). Triggering his civil detention was not any sexual recidivism, but rather a parole violation for smoking marijuana.

That's the problem with separating criminals into artificial groups and then pretending they are all the same.

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).

 

Encephelon #86: Blogging scientific mysteries

Of Florence Nightingale, free will, psychopath-hunters and -- yes -- even octopuses

It’s my turn to host the neuroscience and psychology blog carnival, Encephalon. This month, my blogger colleagues were busy analyzing fascinating unsolved mysteries in the wide-ranging fields of brain and behavior. So all of you sleuths out there, dust off your magnifying glasses and come exploring with me....

The mystery of the bedridden activist

At Providentia, psychologist Romeo Vitelli probes the mysteries surrounding pioneering public health activist Florence Nightingale (1820-1910) in a 2-part series, "The Bedridden Activist." Dr. Vitelli (who for all of you forensic folks escaped Ontario's maximum-security Millbrook Correctional Centre after a 15-year stint) marvels at Nightingale's indefatigable crusade for the poor and downtrodden, despite a debilitating illness that rendered her unable to travel. While discussing the theories of her mysterious illness, Dr. Vitelli also corrects the historical record:

Although Florence Nightingale opposed the Contagious Diseases Act, it was not because she opposed the germ theory of disease (as some critics later argued). Even though germ theory was not taken seriously before Joseph Lister and Louis Pasteur made the theory acceptable, Nightingale actually pioneered the need for sanitation and antiseptic conditions. Her opposition to the legislation that was eventually passed stemmed from the intrusive nature of the Act (including mandatory screening of prostitutes for syphilis and detaining infected women). When the act was passed in 1864, she campaigned for its repeal. 

The mystery of free will

Should a man who takes out a murder contract on his wife and children be held responsible? For most people, the obvious answer is, “Of course!” But for pure determinists, free will is an illusion; no one is responsible for anything.

That doesn't fit well with the assumptions of our criminal and civil court systems. Or does it? As Peter reports in his post on "expertimental free will" at Conscious Entities, an odd thing happens when determinism runs up against moral values. In an experiment in which subjects were told to assume that determinism is correct (meaning people are not responsible for their actions), subjects still assigned responsibility to the man who took out a contract on his family.

The mysterious octopus

Octopuses fascinate scientists. That's partly because they are so different from mammals like us. Not only are their brain regions not arranged to correspond with bodily systems, but their individual arms can control some movement without input from their brain. Over at Cephalove, Mike Lisieski discusses a study on the unsolved mystery of exactly how an octopus’s brain uses vision to control ongoing movements. The post is, "The octopus, the maze, and why it matters: behavioral flexibility and sensory-motor integration."

The mystery of the sightless mind

While some researchers study the role of vision in the elusive octopus, others study it in humans. Janet Kwasniak at Thoughts on Thoughts reports on new research into the brains of sightless humans. In “How is the world represented without vision?,” she muses on how, given the importance of vision to our species, it is possible to produce a conscious model of the world without it. And how does the brain use the third of the cortex involved with vision when vision is idle? Attempting to solve those mysteries, the researchers used fMRI technology to compare the brains of congenitally blind people, blind people who were once sighted, and sighted and blindfolded sighted individuals.

The mystery of the calcium in the brain

Here's one that I bet few of my readers have thought much about:

Zen Faulkes at Neurodojo, a biology professor at the University of Texas-Pan American, ponders long-held assumptions about the role of calcium in neuronal functioning. How do you prove the neurons don't use calcium, he wonders? And what do they use instead? These are among the questions addressed in the post, “Neurotransmitter release without calcium.”

The mystery of the ulcer-less zebra

Daniel Lende at Neuroanthropology is highlighting the intriguing teachings of Robert Sapolsky, a MacArthur Fellow who divides his time between teaching biology and neuroscience at Stanford University and conducting stress research on baboons in Kenya. In "Robert Sapolsky and Human Behavioral Biology," Daniel provides links to an entire course of study on human behavioral biology that's available for free online at YouTube. If you’re interested in anything from memory and plasticity to schizophrenia, language, individual differences, and human sexual behavior, this 25-session course is worth checking out.


After reading Daniel’s post, I couldn't resist buying a copy of Sapolsky's latest book, Why Zebras Don't Get Ulcers, which explores stress and stress-related illness. To answer the question: Zebras don't get ulcers because they – like our ancestors – do not have to confront the chronic stresses of contemporary life, which our bodies were not designed to withstand.

The mystery of the psychopath hunter

Back to this blog’s central theme of forensic psychology I bring you (drum roll) the biggest mystery of all: What motivates US! I blogged about research into why some psychologists give higher scores than others on a measure of psychopathy. In case you haven't read the post I won't give it all away here, but the researchers found that subjects' levels of empathy and excitement-seeking affected whether they saw others as psychopathic. The post is, "Psychopathy: A Rorschach test for psychologists?"

That's it for now. Past -- and future -- issues of Encephalon are available HERE. 

Australian man spends decade in prison without trial

Mental competency laws are designed to protect people who are accused of crimes from being subjected to legal prosecution if they cannot understand the proceedings or rationally assist in their defense. But some offenders are spending more time behind bars after a finding of unfitness to stand trial than if they had been tried and convicted.

In Western Australia, the case of one such man is making headlines. Marlon Noble has spent 10 years behind bars after being accused of sexually assaulting two girls. He is mentally impaired from a childhood bout of meningitis.

"If he has been tried and found guilty he would never ever been sentenced to the length of time," said longtime supporter Ida Curtois, a retired social worker.

He is one of 29 people in West Australian jails who have never been found innocent or guilty.

If he has been tried and found guilty he would never ever been sentenced to the length of time.

-- Ida Curtois            

But in an unusual twist, the two alleged victims are now coming forward to clear his name. Since Noble never had a court hearing on the allegations, the case against him was never tested.

If Noble is released, his supporters say they will continue lobbying until all accused people being held indefinitely due to mental disabilities are given other options.

Incompetent defendants also detained indefinitely in U.S.


Most forensic psychologists in the United States can tell you about Theon Jackson. A "mentally defective deaf mute with a mental level of a pre-school child," Jackson could neither read nor write and was not proficient in sign language. Evaluators called his prognosis for attaining competency to stand trial "dim." Taking the case up to the U.S. Supreme Court, his attorneys argued that he was effectively getting a life sentence for two street robberies that netted a grand total of nine dollars.

In a landmark ruling in 1972, the high court agreed, ruling that an accused person who is found incompetent to stand trial cannot be held longer than "the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future."

If it is determined that the individual will not become competent, "then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant."

In the current era of the sexually violent predator, however, incompetency statutes have made it easier to civilly commit accused individuals whose cases were never proven in criminal court.

In New York State, for example, which has just begun implementation of a new civil detention scheme for sex offenders, the government argued that since civil commitment is a civil proceeding, they should not have to prove their cases beyond a reasonable doubt as they would have to in a criminal trial. Instead, they argued that the standard of proof should be the lower "clear and convincing evidence" standard (sometimes equated to a level of certitude of about 75% as opposed to 95-99% for the beyond a reasonable doubt standard).

Late last month, U.S. District Judge Deborah A. Batts upheld a challenge to that position, declaring that despite the ostensibly "civil" nature of preventive detention, its consequences are too onerous to allow for a lowered standard of proof:

Here, the risk of an erroneous deprivation is high…. Those committed as "sex offenders" under Article 10 are housed in a secure psychiatric facility and segregated from those who are not "sex offenders." After release from confinement, those labeled "sex offenders" are subjected a regimen of "strict and intensive supervision and treatment," which may include but need not be limited to, electronic monitoring or global positioning satellite tracking for an appropriate period of time, polygraph monitoring, specification of residence or type of residence, [and] prohibition of contact with identified past orpotential victims. Given the attendant stigma and significant liberty infringements that result from application of the label "sex offender" under Article 10, the consequences of an erroneous application of that label are severe.

The legal challenge was brought by the state's Mental Hygiene Legal Service, which provides legal service to psychiatric patients, including at least 22 pretrial defendants who -- like Mr. Noble in Western Australia -- have been found incompetent to stand trial on sex charges.

"Cruel and unusual": Sex offender seeks refuge in Canada

The autobiographical romance "Summer Of '42" depicts a coming-of-age relationship between 15-year-old Hermie and an older married woman. By the time "Dorothy" vanishes from his Nantucket vacation community, Hermie has matured from boy to man.


How much has changed in the 40 years since that movie was made. Today, rather than disappearing for parts unknown, Dorothy would be shackled and riding the bus to the nearest women's penitentiary.


But is it fair to sentence a woman to 30 years in prison for a consensual relationship with a willing teenage boy?

That is the question confronting Canadian authorities in the case of a Florida woman who is seeking refugee status in Saskatchewan. Denise Harvey fled the United States with her husband after she was sentenced to a 30-year prison term for a consensual relationship with her son's 16-year-old friend.

Denise Harvey (photo credit TC Palm)

In Canada, the age of consent is 16 so her conduct would not have been criminal. Saskatchewan authorities have not extradited Harvey because Canada does not extradite people unless the conduct is a crime in both countries. In appealing to the Canadian government for refugee status, Harvey claims her sentence amounts to cruel and unusual punishment, forbidden by the Eighth Amendment to the U.S. Constitution.

More than 10 percent of the residents of her home community of Vero Beach, Florida agree that her sentence was too extreme. They signed a petition demanding that Florida's governor pardon her.

"She didn’t get any justice down here," said petition sponsor George Sigler, a flight trainer. "She's a nice, soft-spoken woman who I believe made a mistake but that doesn't mean she should go to jail for 30 years. No one in their right mind believes a 16-year-old wasn't a willing participant."

Harvey rejected an 11-year plea bargain offer and went to trial. The teen testified that the two flirted and had a long kiss in a car before engaging in brief sexual interludes at his home and elsewhere. Harvey did not testify, but her attorney told jurors the boy stalked her after she rejected his advances. The jury heard a 20-minute recording surreptitiously recorded by police with the boy's cooperation, in which the two discussed what to do if their sexual encounters were disclosed.

After Harvey's conviction on five counts, prosecutors urged the lengthy sentence because she continued to deny wrongdoing. She fled after losing her appeal to the Florida Supreme Court.

With the case now making international headlines, the question becomes whether this is the most sensible face for a world leader to portray to the rest of the world.

The Toronto Star and the Treasure Coast Palm have additional news coverage. 

Feed that hungry judge!

Photo credit: vistavision (Creative Commons)

Attorneys: If you want your client released from jail, make sure the judge just had a bite to eat.

That is the take-home message from a new study of experienced judges in Israel. Judges were much more likely to grant parole right after they had a lunch or snack break:

The team studied more than 1,000 parole decisions made by eight experienced judges in Israel over 50 days in a ten-month period. After a snack or lunch break, 65 percent of cases were granted parole. The rate of favorable rulings then fell gradually, sometimes [to] as low as zero, within each decision session and would return to 65 percent after a break.

Jonathan Levav, a professor at Columbia Business School who co-authored the study, said the more rulings a judge makes, the greater the tendency to “rule in favor of the status quo,” but a snack break can interrupt that tendency.

The current study left unsettled the issue of whether it was the food itself or the rest period that came with it that improved the judges' dispositions toward the hopeful convicts. Previous research has shown that both glucose and mental breaks can restore mental functioning.

The study adds to a growing body of evidence on psychological bias in judicial decision-making.

• The study, "Extraneous factors in judicial decisions" by Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, was just published online by the Proceedings of the National Academy of Sciences. A press release with additional information on the study and its authors is HERE.

"Jurors Gone Wild": Blogging, texting, tweeting in court

On his blog, "Juror No. 7" portrayed the defense lawyer as "whacked out" and having a "Columbo detective-style of acting stupid." He complained about the court's long breaks and likened court staff to "Caltrans freeway workers" who always seem to be "picnicking alongside the freeway." … After complaining about the length of the 19-day trial, he told his readers that he had volunteered to be foreman to "expedite matters." During deliberations, he used his cell phone camera to photograph the murder weapon -- a 15-inch saw-toothed knife -- and posted the image on his blog.

Although an appellate court upheld the defendant's conviction, finding Juror No. 7’s conduct harmless, appellate attorney Linda C. Rush disagreed:

"The problem with his blog was, the responses he got were affirming his cynical attitude toward the judge and the process. He created an audience, and during deliberation he was playing to an audience that other jurors didn't even know was there."

Juror antics like this are no longer unusual, according to an article in the current issue of California Lawyer magazine. Judges and attorneys are finding themselves struggling with "how to protect a defendant's Sixth Amendment right to a fair trial when jurors are awash in social media, potentially contaminating the integrity of the proceedings," writes Pamela MacLean:

Leslie Ellis, a jury consultant with TrialGraphix in Washington, D.C., says she advises her clients to monitor jurors' Facebook, MySpace, or Twitter accounts and blogs during a trial to make sure none are discussing the case outside court sessions. "That's how a lot of jurors have been caught," she says.

Another possible alternative, raised in a case that may soon be taken up by the California Supreme Court, involves making all private social media communications posted by a juror during trial available to defense counsel.

But how much monitoring is too much? At what point will jurors begin to feel like criminal suspects and balk at serving altogether? And is all this much ado about nothing?

The full California Lawyer article is online HERE.

Related post: Blogging jurors (Nov. 26, 2008)