Another one bites the dust: Hollow SVP prosecution no match for jurors' common sense

15 minutes.

After a five-week trial, that's how long it took a jury in a rural Northern California county to decide that an openly gay man who had served two years in prison for a forcible oral copulation of an acquaintance back in 2003 did not merit civil commitment as a sexually violent predator.

The prosecution's case featured a lone government psychologist whose opinion rested on a hollow combination of homophobia, bogus psychiatric diagnoses and trumped-up risk estimates. The psychologist cited archaic (and discredited) Freudian theory to claim that the ex-offender's crime at age 23 was evidence of an "oral incorporation" fixation caused by a domineering mother and an absent biological father. As a legal basis for civil commitment, he cited the bogus disorder of "paraphilia not otherwise specified-nonconsent,” and he used the Static-99R actuarial tool to present a highly inflated estimate of risk.

Testifying for the defense were four psychologists, including two retained by the defense, a government evaluator who had changed her mind (or "flipped," in the current parlance) and the man's treating psychologist at Coalinga State Hospital, who testified in no uncertain terms that "Mr. Smith," as I will call him, is neither mentally disordered nor likely to reoffend.

The defense team had barely left the courthouse when the court clerk summoned them back, saying the jury had reached a verdict. Their astonishingly fast decision hints that the jurors agreed that this case was an egregious example of overzealous prosecution and a waste of their valuable time.

Prior to being screened for possible civil commitment, Mr. Smith had been on parole in the community for 14 months without getting into any trouble whatsoever. Indeed, he was busy doing good works. His sexually violent predator screening stemmed from an entirely accidental parole violation connected with his charity work for a local gay rights organization. He had a special parole condition forbidding any contact with children. When a fellow member of the executive board brought his child to an awards ceremony, Mr. Smith was exposed to "incidental contact as one might have while shopping at a market," in the words of the parole hearing officer. Unfortunately for Mr. Smith, this was just one month after California voters enacted Jessica's Law, which allows for civil commitment of sex offenders who have only one qualifying victim rather than the previous minimum of two.

The prosecutor's strategy, as is typical in weak cases, was to hurl as many prejudicial, pseudoscientific labels as possible in Mr. Smith's direction, and hope a few might stick and scare jurors into voting for civil commitment: Psychopath, antisocial, homosexual, paraphilic, high risk, etc.

While licensed as a psychologist, the government's expert had not done what clinical psychologists are trained to do: Psychological testing, individualized case formulation, etc. Rather, as he boldly admitted on the witness stand, he relied on an assistant to cull through Mr. Smith's hospital records and pull out negative behavioral reports for him to review. Wow! Can you spell B-I-A-S?

In my testimony, which stretched over the course of three days, I stressed that Mr. Smith was neither sexually deviant nor likely to reoffend. His risk of sexual reoffense, I testified, was no greater than that of any other garden-variety sex offender. (The base rate of sexual recidivism among convicted sex offenders in California -- similar to the rest of the United States -- hovers around 6 percent or less.) I explained how growing up gay in a homophobic family and community causes sexual identity confusion that can lead to sexual acting out and other delinquent behavior in adolescence and early adulthood, and how Mr. Smith had changed as he matured and accepted his sexuality. I further debunked the accuracy of the Static-99R "actuarial" risk estimates assigned in this case, and the pretextually applied diagnoses of "paraphilia not otherwise specified-nonconsent" (which I've blogged about repeatedly) and antisocial personality disorder, a red herring that was invoked despite Mr. Smith's exceptionally good conduct in the community and while in prison.

Stacking the deck

The prosecutor tried to stack the deck by striking from the jury all gay people or those who admitted having relatives or close friends who are gay; he also challenged those with advanced educational degrees. I guess he thought it would be easier to pull the wool over the eyes of an uneducated jury. It just goes to show that times have changed: Even in a rural county, antigay discrimination is no longer considered acceptable, and jurors don't need PhD's to recognize bias and pseudoscience when they hear it.  

The verdict was likely a bitter-sweet moment for Mr. Smith, who had spent more than four years incarcerated at Coalinga awaiting trial. Luckily, he has close friends to stay with while getting on his feet.

This is my third SVP case in a row that evaporated when finally exposed to the light of day. Like Mr. Smith's case, one of the other two also featured prominent antigay bias; the other targeted an immigrant. In neither case were the men either pedophiles or rapists.

I suppose I should feel pleased to see such gross miscarriages of justice thwarted. Instead, I find myself horrified by the unfettered power wielded by rogue psychologists, assigned to a case by luck of the draw. Whereas many government evaluators reserve "positive" findings for the rare sex offenders who are truly deviant and at high risk to reoffend, others are just hacks who are raking in obscene amounts of public funds while making little effort to truly understand these men, their motivations, their circumstances, or their pathways to desistance.

Especially frightening is the unconscious bias that creeps into SVP prosecutions. The constructs of "mental disorder" and "risk for reoffense" are malleable, lending themselves to use as pretextual weapons of prejudice wielded against gay men, racial minorities (especially African American men) and immigrants.

Clearly, people shouldn't get away with sexual misconduct. But none of these men had. All had pleaded guilty and served their time, only to be ambushed at the end of their prison terms with misguided efforts to indefinitely detain them based on purported future risk.

As it turned out, each case was about as solid as a house of cards. It didn't take gale-force winds like Hurricane Sandy's to flatten them.

Evaluators flipping like pancakes

The "flipping" of government evaluators illustrated this weak foundation. In two of the three cases, after reading the more thorough and individualized reports of the defense-retained experts, government psychologists abruptly changed their minds and decided that their previously proffered diagnoses of "paraphilia not otherwise-nonconsent" were invalid.

On the one hand, I applaud the openness and ethical backbone such a change of heart signals. But these "flips" also demonstrate the whimsical, nonscientific nature of the commitment process. The longer I work in these trenches, the more I realize that the random assignment of evaluators and attorneys (on both sides) exerts as much influence on the outcome as does the true level of future risk to the community that an ex-offender poses.

Indeed, the real reason Mr. Smith -- clearly not a sexual predator to anyone with a whit of commons sense -- was taken to trial, at a total cost to the citizenry of hundreds of thousands of dollars, was not because of his high risk, but because of a rigid prosecutor who was blind to the writing on the wall.

In contrast, the government dismissed the other two cases (one in the Midwest and one in the South) on the eve of trial. One case involved a gay man who had a brief sexual interlude with a teenage male relative; the other involved an immigrant who had gone on two dates with an underage teen girl he met on an online dating site (his misconduct never went beyond petting). Both had served substantial prison terms. But, again, garden-variety sex offenders, not the depraved, sex-crazed monsters likely envisioned by jurors when they are told they will be deciding a "sexually violent predator" case.

Bottom line: Should a random clinical psychologist, earning hundreds of thousands of dollars a year churning out boilerplate pseudoscientific garbage, be allowed to decide the fates of others?

At least in this one case, 12 discerning and conscientious jurors answered that question with a resounding "NO."


ON OTHER,TOTALLY UNRELATED NOTES: If you're looking for an intelligent movie in theaters now (always a challenging search), ARGO earns a qualified thumbs-up from me; my review is HERE. (If you find the review helpful, please click on "yes" at the bottom.) I've also just finished reading a thoroughly researched and well-written cultural biography of John Brown, Midnight Rising, that positions his raid on Harper's Ferry as a seminal moment in the lead-up to the Civil War. Tony Horwitz previously wrote Conservatives in the Attic, which -- as the descendant of Southerners -- I found spot-on.

Static-99R risk estimates wildly unstable, developers admit

The developers of the widely used Static-99R risk assessment tool for sex offenders have conceded that the instrument is not accurate in providing numerical estimates of risk for sexual recidivism for any specific offender.

The startling admission was published in the current issue of Criminal Justice and Behavior.

Examining the data from the 23 separate groups (totaling 8,106 offenders) that cumulatively make up the instrument’s aggregate norms, the researchers found alarmingly large variability in risk estimates depending on the underlying sample. The problem was especially acute for offenders with higher risk scores. A few examples:

• At a low Static-99R score of "2," an offender’s predicted sexual recidivism rate after 10 years ranged from a low of 3 percent to a high of 20 percent, depending on the sample.

• A score of "5" led to a recidivism estimate after five years of 10 percent in a large, representative sample of Swedish sex offenders, but a 250 percent higher risk, of 25 percent, in one U.S. sample. The absolute differences for more extreme scores were even larger.

• Conversely, the Static-99R score that would predict a 15 percent likelihood of recidivism after five years ranged from a low-risk score of "2" to a high-risk score of "8," an enormous difference (greater than two standard deviations).

The study’s authors -- Karl Hanson, Leslie Helmus, David Thornton, Andrew Harris and Kelly Babchishin -- concede that such large variability in risk estimates "could lead to meaningfully different conclusions concerning an offender’s likelihood of recidivism."

Overall risk lower than previously found

Despite the wide variations in rates of offending, the absolute recidivism rate for the typical sex offender in the combined samples was low overall. The rate of recidivism among typical sex offenders after five years was only 7 percent or less (with a range of 4 to 12 percent), lower than had been reported in a previous meta-analysis. The 10-year risk ranged from 6 to 22 percent for the typical offender.

The research team speculates that the risk inflation in earlier analyses may have been an artifact of characteristics of the underlying samples, with data from higher-risk offenders more likely to be preserved and available for study. We know that a sister instrument, the MnSOST-R, produced inflated estimates of risk due to oversampling of high-risk offenders.

Will risk inflation continue?

MC Escher, "Hand with Reflecting Sphere"

The Static-99R has a very modest ability to discriminate recidivists from non-recidivists. Its so-called "Area Under the Curve" statistic of around .70 means that, if you were to randomly select one known recidivist and one non-recidivist from a group of offenders, there is about a 70 percent probability that someone who will reoffend will have a higher score than someone who won’t.

Such information about a test’s relative accuracy may be helpful when one is choosing which method to employ in doing a risk assessment. But there are a number of problems with relying on it when reporting one's assessment of a specific individual.

First of all, even that level of reliability may be illusory. A study that is currently in progress is finding poor inter-rater agreement on scores in routine practice, especially at the higher risk levels.

Second, with base rates of recidivism hovering around 6 to 7 percent, even under optimal conditions it is very difficult to accurately predict who will reoffend. For every person correctly flagged as a recidivist based on a high Static-99R score, at least three non-recidivists will be falsely flagged, according to research by Jay Singh and others, as well as published error-rate calculations by forensic psychologists Gregory DeClue and Terence Campbell.

Finally, and perhaps most importantly, telling a judge or jury how an offender compares with other offenders does not provide meaningful information about the offender’s actual risk. Indeed, such testimony can be highly misleading. For example, told that "Mr. Smith scored in the 97th percentile," judges and jurors may understandably believe this to be an estimate of actual risk, when the less frightening reality is that the person's odds of reoffending are far, far lower (probably no greater than 16 percent), even if he scores in the high-risk range. Seeing such statements in reports always flashes me back to a slim little treatise that was required reading in journalism school, How to Lie With Statistics.

Rather, what the trier of fact needs is a well calibrated test, such that predicted probabilities of recidivism match up with actual observed risk. The newly developed MnSOST-3 is promising in that regard, at least for offenders in Minnesota, where it was developed. In contrast, the popular Static-99 tools have always overestimated risk.

When the Static-99 premiered, it featured a single table of misleadingly precise risk figures. High scorers were predicted to reoffend at a rate of 52 percent after 15 years, which made it easy for government evaluators to testify that an offender with a high score met the legal criteria required for civil commitment of being "likely" to reoffend.

The instrument’s developers now admit that this original risk table "turned out to be a gross simplification."

Indeed, with each of a series of new iterations over the past few years, the Static-99's absolute risk estimates have progressively declined, such that it would be difficult for the instrument to show high enough risk to support civil detention in most cases. However, in 2009 the developers introduced a new method that can artificially inflate risk levels by comparing an offender not to the instrument's aggregate norms, but to a specially created "high risk" subsample (or "reference group") with unusually high recidivism rates.

Some evaluators are using this method on any offender who is referred for possible civil commitment. For example, I was just reviewing the transcript of a government expert's testimony that he uses these special high-risk norms on offenders who are referred for "an administrative or judicial process." In some cases, this amounts to heaping prejudice upon prejudice. Let's suppose that an offender is referred in a biased manner, due to his race or sexual orientation (something that happens far more often than you might think, and will be the topic of a future blog post). Next, based solely on this referral, this individual's risk level is calculated using recidivism rates that are guaranteed to elevate his risk as compared with other, run-of-the-mill offenders. This method has not been peer reviewed or published, and there is no evidence to support its reliability or validity. Thus, it essentially amounts to the claim that the offender in question is at an especially high risk as compared with other offenders, just "because I (or we) say so." 

The admission of poor stability across samples should make it more difficult to claim that this untested procedure -- which assumes some level of commonality between the selected reference group and the individual being assessed -- is sufficiently accurate for use in legal proceedings. Given some of the sketchy practices being employed in court, however, I am skeptical that this practice will be abandoned in the immediate future.

The article is: "Absolute recidivism rates predicted by Static-99R and Static-2002R sex offender risk assessment tools vary across samples: A meta-analysis" by Leslie Helmus, R. Karl Hanson, David Thornton, Kelly M. Babchishin and Andrew J. R. Harris. Click HERE to request a copy from Dr. Hanson. 

Amnesty issues scathing report on prolonged solitary confinement

Critique follows lawsuit alleging psychological torture at infamous Pelican Bay  

Tucked away in a remote corner of Northern California is one of the most brutal behavioral experiments of the modern era: Upwards of 500 men housed for more than a decade straight in tiny, windowless, concrete tombs.

Pelican Bay, which opened in 1989, was specifically designed to foster maximum isolation. Prisoners are denied phone calls, contact visits, and recreational or vocational programming. But the designers did not plan for the sensory deprivation to be perpetual; stays in the "SHU" (Segregated Housing Unit) were originally intended to last 18 months or less.

Now, in a scathing report, Amnesty International has lambasted conditions in the SHU as "cruel, inhuman, or degrading" punishment that violates international law on the treatment of prisoners.

California holds more than 3,000 prisoners in SHU's, with more than 1,000 at Pelican Bay. No other U.S. state is believed to have held so many prisoners for such long periods in indefinite isolation, the Amnesty International investigators found.

A spokesman for the prison system responded with the rather outlandish nonsequitur that California has no solitary confinement, because SHU prisoners are able (if they have funds) to buy televisions and watch cable channels, including ESPN.

The Amnesty report follows on the heels of a class-action lawsuit filed by the Center for Constitutional Law on behalf of 10 SHU prisoners who claim that long-term isolation is slowly destroying their bodies and minds, in violation of international standards against torture and inhumane treatment.

The lawsuit, Ruiz v. Brown, alleges that prisoners have no means to escape solitary confinement, other than to become government informants against prison gangs, which would put them and their families at risk.

While the prison system claims these are the "worst of the worst," the men claim they are being held in solitary confinement as punishment for their lack of cooperation with prison administrators, based on very thin evidence of gang affiliation. For several, their housing status alone prevents them from being eligible for parole.

Evidence of their supposed continued gang affiliation, the lawsuit says, includes:

• Saying "hello" to a prisoner from a different gang
• Possessing a drawing of an Aztec tattoo
• Possessing a pamphlet in Swahili, a language spoken by 60 million Africans that is categorized by the Department of Corrections as a "banned language"
• Having a Black Power tattoo
• Having a book about George Jackson (Paul Liberatore's The Road to Hell: the True Story of George Jackson, Stephen Bingham, and the San Quentin Massacre)

Plaintiff Paul Redd, for example, has spent 33 of the past 35 years in solitary confinement, the last dozen at Pelican Bay. He would be eligible for parole if not for his purported status as a "captain" in the Black Guerrilla Family despite no evidence of any gang activity in the past six years. His SHU status is allegedly based on old confidential memoranda stating he had communicated with other BGF members, plus possession of drawings, collages and booklets related to George Jackson and the Black Panthers.

A hunger strike last year, supported by up to 6,600 prisoners at 13 other prisons around the state, led to raised hopes, but so far no meaningful reform.

Psychological effects of long-term isolation

What happens when you lock humans inside a concrete sensory deprivation chamber for a period of decades, denying them all physical connection, human warmth, and even glimpses of nature?

In their lawsuit, prisoners who have spent a mind-boggling one to two decades in solitary confinement describe an inexorable descent into hopelessness and despair, with crippling loneliness and a constant struggle to stave off psychosis. They report pervasive insomnia, anxiety, hallucinations, mood swings, violent nightmares, panic attacks and a profound rage that they attempt to stifle by numbing all feeling. One prisoner described feeling like "walking dead," while another said he hears disembodied voices and feels like he is "silently screaming 24 hours a day."

Plaintiff Danny Troxell, for example, reports that he does not initiate conversations, is not motivated to do anything, and feels as if he is in a stupor much of the time. He often becomes "blank" or out of touch with his feelings.

These symptoms echo the findings of mental health experts who examined Pelican Bay prisoners as far back as 1995, six years after the prison opened, in connection with an earlier lawsuit (Madrid v Gomez) over the mental health effects of solitary confinement. At that time, Stuart Grassian, MD, an expert on segregation psychosis, found many men were already deteriorating into psychosis, paranoia, suicidality, and other psychological reactions to their unnatural isolation. Craig Haney, meanwhile, found that nearly all of the prisoners he sampled during that period reported symptoms of psychological distress such as intrusive thoughts, oversensitivity to external stimuli, difficulties with attention or memory, profound depression and social withdrawal.

Over time, prisoners can barely recall what it feels like to experience physical contact with another human being. Luis Esquivel, for example, has not shaken another person’s hand in 13 years and fears that he has forgotten the feel of human contact; "he spends a lot of time wondering what it would feel like to shake the hand of another person," according to the class-action lawsuit.

And what about mental health treatment?

"Every two weeks, a psychologist walks past the prisoners' cells, calling out 'good morning,' or 'you okay?' The psychologist walks past eight cells in approximately 30 seconds during these 'rounds.' "

Last year, a Special Rapporteur with the United Nations declared that prolonged solitary confinement constitutes torture, and that even 15 days in solitary confinement violates an individual’s human rights.

In the wake of its investigation, Amnesty is calling for ratcheting down isolation so it is only used as a "last resort" for severely unruly prisoners who endanger others, immediate removal of prisoners who have already spent years in the isolation units, and improving conditions for those who remain by allowing them more exercise and opportunity for human contact and phone calls to their families.

The Amnesty report can be found HERE; the amended petition in Ruiz v. Brown is HERE. An online petition in support of the SHU prisoners' demands is HERE.  The featured artwork is by Gabriel Reyes, one of the plaintiffs in the class-action lawsuit. More information on Reyes and his art is HERE.

Related blog posts:

• Supermax: Hell on earth or . . . not as bad as we thought? (Jan. 6, 2011)

• Historic hunger strike by Supermax prisoners continues (July 15, 2011)

• Willie Bosket: Tale of a wasted life (Sept. 23, 2008)

• Why does the United States lock up so many people? (Jan. 29, 2012)

• Claim in 15-year-old girl's stabbing will highlight prison failures (Nov. 9, 2007)

Long-awaited HCR-20 update to premiere in Scotland

The long-awaited international launch of the third version of the popular HCR-20 violence risk assessment instrument has been announced for next April in Edinburgh, Scotland.

The HCR-20 is an evidence-based tool using the structured professional judgment method, an alternative to the actuarial method that predicts violence at least as well while giving a more nuanced and individualized understanding. It has been evaluated in 32 different countries and translated into 18 languages.

A lot has changed in the world of risk prediction since the second edition premiered 15 years ago. Perhaps the major change in the third edition is the elimination of the need to incorporate a Psychopathy Checklist (PCL-R) score; research determined that this did not add to the instrument's predictive validity. Additionally, like the sister instrument for sex offender risk assessment, the RSVP, the HCR:V3 will focus more heavily on formulating plans to manage and reduce a person's risk, rather than merely predicting violence.

The revision process took four years, with beta testing in England, Holland, Sweden and Germany. Initial reports show very high correlations with the second edition of the HCR-20, excellent interrater reliability, and promising validity as a violence prediction tool.

The HCR:V3 will be launched at a one-day conference jointly organized by The Royal Society of Edinburgh and Violence Risk Assessment Training. Developers Christopher Webster, Stephen Hart and Kevin Douglas will be on hand to describe the research on the new instrument and its utility in violence risk assessment.

More information on the April 15, 2013 training conference is available HERE. A Webinar PowerPoint on the revision process is HERE.

The taint of a false confession

Ripple effects bias parties, contaminate "independent" evidence 

Michael Crowe, age 14, falsely confessing to murdering his sister

With the recent tidal wave of scholarly research into false confessions, informed forensic psychologists are by now tuned in to the phenomenon. We know, for example, that they played a role in one out of four DNA exoneration cases. We are aware of their compelling nature, and can cite examples such as the Central Park Jogger case in which they produced profound miscarriages of justice.

But let's take it one step further. What if, once police elicit a false confession from a suspect, it contaminates everything and everyone in touches -- from the prosecutor, the judge, and even the suspect's own attorney all the way to the fingerprint identification and even, perhaps, the DNA match?

That is the troubling thesis raised by Saul Kassin, a pioneer in the psychological study of false confessions, in an article in the current issue of the American Psychologist.

  

"Corroboration inflation"

Research shows us that such a contaminating effect is plausible. For example:

• Fingerprint experts who were told the suspect had confessed were more likely to change their opinion and make an incorrect match, as compared with experts who were told the suspect was already in custody at the time of the crime. (1)

• Polygraph examiners were significantly more likely to opine that an inconclusive chart showed deception when they were told the suspect had confessed. (2)

Bizarre case of multiple false confessions and prosecutions

Such findings may extend to other forensic science that requires subjective judgments, Kassin argues, including comparative analyses of ballistics, hair and fiber, shoeprints, tire tracks, handwriting and even DNA. Although CSI-style TV shows portray such evidence as infallible, a 2009 study by the National Academy of Sciences found widespread errors and bias in the collection and analysis of evidence.

That's not to mention egregious cases of intentional fraud in forensic laboratories that pop up with alarming regularity, such as a case in Boston, Massachusetts currently garnering headlines. There, a lab worker with allegedly bogus credentials as a chemist intentionally fabricated positive drug test results. Over a 9-year period, Annie Dookhan tested an estimated 60,000 drug samples confiscated from about 34,000 criminal defendants. Dookhan reportedly admitted writing reports listing samples as positive for illicit drugs even though she had never tested them; sometimes, "if a sample tested negative, she would take known cocaine from another sample and add it to the negative sample to make it test positive for cocaine," according to the Huffington Post's account. Dookhan has been arrested and the lab is temporarily shuttered.

Kassin points to an archival study conducted by he and two colleagues which found that, in DNA exoneration cases, false confessions were often accompanied by other errors, including improper forensic science, mistaken eyewitness identifications and/or the testimony of dishonest informants. Importantly, the confession preceded the other case errors in two-thirds of cases, suggesting it may have had a corrupting influence.

Such findings suggest that the legal system's longstanding assumption that independent sources of evidence provide confirmation of a suspect’s guilt may be wrong. Rather, Kassin writes, "confessions can spawn other incriminating evidence, creating an illusion of corroboration":

Amanda Knox, wrongly convicted in Italy

"Supported by 100-plus years of basic psychology and the research reviewed herein, confession-induced corroboration inflation challenges a core premise in law. Both pretrial corroboration requirements and a harmless error analysis on appeal rest on the assumption that the corroborating evidence on record is nonredundant and independent of the confession. It now appears that this assumption is often incorrect, that the other evidence may be tainted by confession, and that the appearances of corroboration at pretrial and the sufficiency of evidence on appeal may be more illusory than real."

"Hollywood productions"

Especially pernicious is the frequent situation in which police -- either intentionally or inadvertently -- feed an innocent suspect information that only a guilty party should know. Taking on the aura of a carefully scripted movie production with the confession as the central plot device, the confession is carefully drawn out of the suspect over hours and even days until in its final version it includes vivid details and plausible motivations.

Such an account proves virtually impossible for a judge or a jury to discount. The scripted confession thus becomes the be-all, end-all of the case, contaminating the minds of all who are exposed to it:

• POLICE close the investigation, deem the case solved, and overlook exculpatory information, even when (as Richard Leo and his colleagues have shown) the confession is internally inconsistent or contradicted by independent evidence.

• PROSECUTORS stubbornly cling to false confession cases, refusing to admit the possibility of their falsity even when DNA testing unequivocally excludes the confessor. (The New York Times Magazine has more on this phenomenon, describing -- in an article titled "The prosecution's case against DNA" -- the improbable arguments manufactured by prosecutors to explain away negative DNA findings.)

• Perhaps most dangerously, even DEFENSE ATTORNEYS succumb to the allure. Individuals who falsely confess are much more likely to be pressured into accepting a guilty plea, which bars future appeals. In an archival study conducted by Kassin and a colleague of 273 DNA exoneration cases, those based on false confessions were three times as likely to involve bad lawyering.

Matias Reyes, the actual rapist
in the Central Park Five jogger
wrongful conviction case

"Taken together," Kassin concludes, "research suggests that judges, juries, and others are doomed to believe the false confessions of innocent people not only because the phenomenon strongly violates common sense but because of corroboration inflation -- a tendency for confessions to produce an illusion of support from other evidence."

All of this suggests that it is essential for courts to allow the testimony of forensic experts who can explain the mechanisms of false confessions, including both what types of police practices are more likely to generate them, and what types of individual vulnerabilities make a person especially prone to cave in under such pressure.

More broadly, this line of analysis suggests the need for changes in police practices, for example an end to the routine practice of lying to suspects about incriminating evidence, and greater government oversight and regulation of police interrogations. Moreover, safeguards on the analysis of supposedly independent evidence, such as evidence technicians being blind to a suspect's confession status, must be implemented in order to ensure that corroborating evidence truly is independent.

The article is: "Why confessions trump innocence." Members of the American Psychological Association may download it for free as part of their member benefits; others may request a copy from the author (HERE).

Related blog posts:

• Police interrogations: AP-LS issues landmark white paper (March 14, 2010)

• Clueless'science' (guest essay by Jennifer L. Mnookin, Feb. 19, 2009)

• Historical review of false confessions (Nov. 8, 2010)

• Damning reconstruction of notorious false confession case of Central Park Five (March 29, 2012)

• Canada: How false confessions occur (Nov. 27, 2007)

• New study on background factors in false confessions (Aug. 25, 2007)

• Guest report: Interrogations and Confessions Conference, El Paso, Texas (Oct. 4, 2007)

For a complete list of my many other posts on the topic of confessions and interrogations, click HERE.

References:

(1)   Dror, I. E., and Charlton, D. (2006). Why experts make errors. Journal of Forensic Identification, 56, 600–616.

(2)   Elaad, E., Ginton, A., and Ben-Shakhar, G. (1994). The effects of prior expectations and outcome knowledge on polygraph examiners' decisions. Journal of Behavioral Decision Making, 7, 279–292.

Hat tip: Tim Derning

Mysterious mental illness epidemics hit sexual predators in Arizona, Illinois

European sex offenders largely spared pejorative conditions

First responders racing to scene of a pedophilia outbreak

A survey of Sexually Violent Predator cases in eight U.S. states has revealed striking disparities in psychiatric disorders.

Almost two-thirds of the worst-of-the-worst sex offenders in Arizona suffer from pedophilia, and more than half have bad cases of a strange-sounding new disease called "paraphilia not otherwise specified." That is almost double the rate of pedophilia cases in Minnesota (with 35 percent) and, similarly, much higher than the rate of paraphilia not otherwise specified in Wisconsin (37 percent).

Meanwhile, a whopping 94 percent of sex offenders in Illinois suffer from personality disorders, most commonly antisocial personality disorder and an oddball affliction called "personality disorder not otherwise specified." That’s more than double the rate of personality disorders in Wisconsin, where only 41 percent of sex offenders have any personality disorder, mostly antisocial personality disorder.

The cause of the strange outbreaks remains shrouded in mystery. Could the dry climate in the U.S. Southwest produce more pedophiles? Perhaps the Chicago winds lend themselves to an infiltration of antisocial characters? Or, there is always the possibility of circumscribed contagions within the containment facilities for sex offenders in these two geographically discreet states (as in Legionella pneumophila).

Quarantining suspected antisocial virus carriers returning from court

The researchers who discovered the pattern attribute some of the variation to sampling differences. The Florida and Texas samples may have lower rates of mental illness, they write, because those samples included men who were referred for civil commitment but found not to meet criteria. In contrast, the samples from the other states consisted of men who were either civilly committed or on their way to being committed, having lost probable cause hearings in court.

The researchers are Shan Jumper, clinical director of a detention facility in the personality disorder-ridden state of Illinois and a leader of a national consortium of SVP facility administrators, and colleagues Mark Babula of Ohio and Todd Casbon of Indiana.

The three surveyed the SVP population in Illinois and compared their results with previously collected data from Arizona, California, Florida, Minnesota, Texas, Washington and Wisconsin. The study appears in the current issue of the International Journal of Offender Therapy and Comparative Criminology.

On average, pedophilia was the most common diagnosis among SVPs, assigned in 49% of cases nationwide. This was followed by paraphilia not otherwise specified (47%), antisocial personality disorder (43%), and personality disorder not otherwise specified (36%). Other sexual paraphilias, or abnormal sexual predilections, such as voyeurism, exhibitionism and sexual sadism, were assigned far less frequently.

Illusory differences?

All kidding aside, I would be willing to bet that there’s not a whole lot of genuine difference among the detained sex offenders in one state as compared with another. If that is so, then the dramatically different rates of diagnosis among the eight states is further evidence that these diagnoses – invoked as a legal basis for involuntary detention – are being applied arbitrarily, even whimsically, and lack sufficient reliability or validity.

Further support for evaluator differences as accounting for the large discrepancies is the fact that rates of these mental disorders are far lower in European countries that do not require mental illness as a basis for preventive detention of dangerous sex offenders. In one German survey, for example, about one-third of men who were civilly detained had molested children yet only 7 percent were diagnosed with pedophilia, suggesting the diagnosis is reserved for those with a demonstrable sexual orientation toward children.

The intriguing question of why forensic evaluators in certain of the 20 U.S. states with Sexually Violent Predator statutes are more likely to assign a given diagnosis than are their counterparts in other states remains a mystery.

The irony of the "NOS" label

With the advent of SVP laws, "NOS" categories of paraphilia (sexual deviance) and personality disorder have steadily gained popularity among sex offender evaluators in the United States.

The irony of assigning the label of "not otherwise specified" as if it is a bona fide mental disorder meriting involuntary detention largely escapes notice. But what an evaluator is actually conceding in assigning that descriptor is that the individual does NOT meet the minimal criteria for any established mental disorder, as catalogued in the American Psychiatric Association’s diagnostic manual, the DSM-IV-TR.

If you flip through the personality disorders section of the DSM, you will notice all manner of symptoms. Stop any random stranger on the street, and he or she is likely to manifest at least a few. For example, consider these:

• Angry reactions to perceived attacks on character or reputation (paranoid personality)
• Use of physical appearance to draw attention to oneself (histrionic personality)
• Envy of others (narcissistic personality)
• Feelings of inadequacy (avoidant personality)
• Difficulty disagreeing with others for fear of losing their support (dependent personality)
• Reluctance to delegate unless others conform to one's standards (obsessive compulsive personality)

The label of "personality disorder not otherwise specified" is given to individuals who are thought to have some smattering of symptoms of one or more personality disorders, but do not meet the full criteria for any. Most often, this label carries the specifier, "antisocial traits." What this actually means is that the individual does not meet even the minimal criteria for a diagnosis shared by a large proportion -- anywhere from 40 to 60 percent -- of garden-variety criminals in prison. (Of course, to qualify for a personality disorder, the person must suffer distress or impairment in functioning as a result of his symptoms. But, in a tautology, evaluators often say that this condition is met by the mere fact of arrest and incarceration.)

Harkening back to the original justification for SVP laws, the US Supreme Court stressed, in the landmark cases of Hendricks (1996) and Crane (2002), that the goal of civil commitment was to isolate a handful of mentally disordered predators who were qualitatively different from the run-of-the-mill criminal. How a diagnosis that essentially admits that the individual does not even qualify for an established disorder can meet that threshold is beyond me.

Click HERE to request the article, “Diagnostic Profiles of Civilly Committed Sexual Offenders in Illinois and Other Reporting Jurisdictions: What We Know So Far,” from the first author.

Assessing “volitional control” in sex offenders

When I review government reports in sexually violent predator cases, I find that most focus on two things: (1) the person's risk of future sexual violence, and (2) whether that risk is related to a psychiatric disorder.

But this misses a critical piece of the puzzle. In order for a civil commitment based on future danger to be Constitutional under Kansas v. Crane, the former sex offender must also demonstrate a serious difficulty controlling his behavior.

It's understandable that some evaluators shy away from addressing this issue of so-called "volitional control." After all, it is not easy to measure. Far easier to assume a circular tautology, in which a failure to control one's behavior is advanced as evidence of inability to exert self control. But, as the American Psychiatric Association famously noted in a 1983 statement opposing conclusory opinions on volitional control in insanity cases:

"The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk."

Into this breach jumps psychologist Frederick Winsmann of Boston. In an article in the current issue of Sex Offender Treatment, he proposes a model for how to assess volitional control in sexually violent predator evaluations.

Credit: The Bad Chemicals

Winsmann theorizes that poor self control emanates from two related processes: (1) behavioral impulsivity, and (2) impaired decision-making. He recommends that evaluators incorporate screening measures that tap into these two processes, such as the Barratt Impulsiveness Scale and tests of executive (frontal lobe) functioning like the Wisconsin Card Sorting Test or the Iowa Gambling Task.

While this approach is a welcome step in the right direction, it must be recognized that tests of impulsivity and frontal lobe functioning are just indirect measures of the volitional impairment that is theorized to underlie some sexual offending.

Indeed, Winsmann stresses that these tests should be approached as part of a larger idiographic framework of understanding the person as a unique individual, and that poor test performance does not in and of itself establish volitional impairment. For example, scores may be lowered by poor cognitive abilities. (I have also seen cognitively normal people with fine self control do poorly on the Wisconsin Card Sorting Test due to high anxiety.)

The full article is available for free online (HERE).

Marketing your forensic practice

This blog doesn't focus a lot on marketing matters, but I thought I'd pass along a link to a new overview that's packed with practical tips. Authored by Bill Reid, a prominent forensic psychiatrist and past president of the American Academy of Psychiatry and the Law (AAPL), it was published in the Journal of Psychiatric Practice and is available for free online. It's most useful for those just starting a forensic practice, but has a few reminders for more seasoned practitioners as well, including regarding the Internet. The tips are as relevant to psychologists and other forensic mental health practitioners as to psychiatrists, the target audience. Here's the summary abstract:

William H. Reid, MD, MPH, fisherman

"Marketing" refers to the entire process of bringing a product or service to the public and creating a demand for it. It is not simply advertising. There are good and bad ways to market one’s practice, and some that are distasteful or even unethical. The quality and credibility of your work are your most important marketing tools. Reputation and word-of-mouth among attorneys is the largest referral source for most private forensic practitioners. Your professional and business practices, the quality of your staff and their interactions with clients, and your day-to-day availability are all critical. The Internet is important for some practitioners. Practice websites are inexpensive, but they should be carefully constructed and avoid appearing sensational or overly self-serving. Research the basics of websites and website traffic, and don’t expect great results for the first year or so. A Web consultant may be helpful, but avoid those who charge lots of money or make grand promises. Paying for advertisements, listings, or brochures is rarely fruitful. Your primary marketing targets are likely to be attorneys, but may include courts and certain government agencies; clinicians are not usually a major referral source. Patients and potential litigants themselves are off-limits; marketing to them is generally unethical. 

The article is the third in a series on "Doing Forensic Work." The first two parts are also available online: (1) Starting the Case and (2) Fees, Billing, and Collections. Dr. Reid's website also has more useful information on forensic psychiatry and related topics, including for students and early-career professionals.

Hat tip: Ken Pope

Webinars to feature Grisso, Otto, child custody moot court

Sept. 29: Report writing and competence in forensic psychology 

Want to hear from forensic leaders on new developments in the field, but don't have the time (or extra money) to travel to do so? No worries. On Sept. 29, the New York State Psychological Association's annual forensic conference -- featuring forensic leaders Tom Grisso and Randy Otto -- will be available as a live Webinar.

In the morning keynote address, Thomas Grisso of the University of Massachusetts Medical School will provide guidance on forensic report writing based on his recent research project.

Later in the day, Randy Otto of the University of South Florida will address "Learning Needed to Become Competent as a Forensic Psychologist."

Although Webinar participants won't be able to imbibe at the wine social at St. John's University in Manhattan, they will get to listen in on the afternoon conversation hour between attendees and presenters. They will also hear one of the three mid-day breakout sessions (most likely the one on criminal court report writing, I am told).

The cost is $50 reduced to $35 for non-NYSPA members; $25 for students with proof. Unfortunately, remote participants will not earn continuing education credits. Which kind of makes sense, as there is no way to monitor attendance.

Sept. 30: Child custody moot court 

The following day, Sept. 30, the Queens campus of St. Johns will feature a training designed for professionals interested in learning more about conducting child custody evaluations. As with the previous day's training, this one will also be available to remote listeners.

"The Court is in Session: Psychologists on the Stand" will address effective and ethical expert testimony in the child custody context. Forensic psychologists, attorneys and a judge will then enact a simulation experience, or moot court, followed by a postmortem panel discussion. This event is co-sponsored by the Forensic Division of the New York State Psychology Association and the Nassau County Psychological Association.

It's exciting to see forensic programs offering Webinar access, which will make trainings more accessible to professionals in distant locations or those who do not want to spend hundreds of dollars on airfare and lodging to attend a training.

 Registration for Sept. 29 is HERE; registration for Sept. 30 is HERE.

A related article by Tom Grisso, Guidance for Improving Forensic Reports: A Review of Common Errors, is available for free from the Open Access Journal of Forensic Psychology.

Sex offender news roundup

As always, there are lots of developments on the sex offender front. I haven't had time to blog about each individually, so here are a few brief reports with links.

State and federal civil commitment continues to unravel

Piggy-backing off of USA Today's recent expose, Prison Legal News takes an in-depth look at the status of the federal sex offender civil commitment process. As I’ve reported here on various occasions, federal judges in North Carolina are being thoughtful in their application of the “Sexually Dangerous Person” law (18 USC 4248). Rather than simply rubber-stamping government reports as truth, the judges “have shown a willingness to carefully sift through the facts” and the relevant law in each individual case.

Increasingly, federal judges are agreeing with the findings of private psychologists and defense experts in civil commitment cases, which has put the DOJ in the unusual position of losing more contested hearings than it wins. Courts have repeatedly found that the federal government failed to meet its burden of proof that prisoners certified for civil commitment are sexually dangerous or have a high risk of reoffending, as required by 4248.

Gratifying for independent forensic professionals is the fact that judges are finding outside psychologists more objective and reliable than psychologists on the payroll of the Board of Prison Terms, whose reports are “sometimes questionable.” Notes PLN reporter Derek Gilna, the judges are “consistently realizing that independent psychologists are “more objective, thorough and nuanced in their observations and findings.”

Despite its string of losses, the federal government is still holding ex-convicts for years after they complete their prison terms, pending civil commitment hearings. That’s “a chilling reminder of the power of the DOJ to arbitrarily deprive prisoners of their freedom,” writes Gilna.

Challenge to Minnesota commitment gains ground

Meanwhile, another federal judge has issued a court order mandating changes in the civil commitment system in Minnesota, after detainees brought a class action challenge. That state’s civil detention program is infamous around the world for its failure to release inmate “patients” even after years of sex offender treatment; it was on that basis that Britain recently rejected a U.S. bid to extradite an accused child molester.

Reports the Star Tribune:

Moose Lake detention facility

Chief U.S. Magistrate Judge Arthur Boylan [has] ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program. The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional. Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.

The 63-page class action complaint can be found HERE.

New book: The Myth of Sex Addiction

I’ve been meaning to blog about this topic; I’ve got a half-finished post stashed away somewhere. But now I don’t have to: David Ley has written a whole book about it (proving that sometimes procrastination pays off).

In The Myth of Sex Addiction, Ley presents the cultural history, moral judgments and junk science underlying this disorder that has recently arisen in the public’s imagination. As described in the book’s summary:

David Ley

He exposes the subjective values embedded in the concept, as well as the significant economic factors that drive the label of sex addiction in clinical practice and the popular media. Ley outlines how this label represents a social attack on many forms of sexuality--male sexuality in particular--as well as presenting the difficulty this label creates in holding people responsible for their sexual behaviors. Going against current assumptions and trends, Ley debunks the idea that sex addiction is real. Instead, he suggests that the high-sex behaviors of some men is something that has been tacitly condoned for countless years and is only now labeled as a disorder as men are being held accountable to the same rules that have been applied to women. He suggests we should expect men to take responsibility for sexual choices, rather than supporting an approach that labels male sexual desire as a "demonic force" that must be resisted, feared, treated, and exorcised.  

In a review in the online newsletter of the influential Association for the Treatment of Sexual Abusers (ATSA), David Prescott calls the book indispensable for individuals engaged in the assessment and/or treatment of sex offenders, because "our clients typically do not have the luxury of selecting a treatment provider and can quickly find themselves in legally tenuous situations should they hold different beliefs than their therapist."

Study: Sexting not risky or psychologically problematic

Here’s another myth-buster: Sexting is not associated with sexually risky behavior or other problems.

That's according to a study published online in the Journal of Adolescent Health. More than four out of ten youngsters in a large U.S. sample of 3,447 had engaged in sexting, the researchers found. There was no association between sexting and either psychological well-being or engagement in sexual risk behaviors. The study flies in the face of alarmist hype over this increasingly ubiquitous phenomenon of the electronic age.

Sex offender recidivism through a therapeutic jurisprudence lens

Legal scholars Michael Perlin and Heather Cucolo of New York Law School have turned their focus to the effects of sex offender laws on rehabilitation and community reintegration. Their new article, published in the fall issue of the Temple Political and Civil Rights Law and also available online, suggests public policy changes that would minimize re-offense rates while still protecting human rights. As summarized in the abstract:

[The article] highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

The only odd thing about the article is that its title is not derived from Bob Dylan lyrics, as Perlin's articles usually are. That must have been the influence of his co-author.

Alarmist study amps up sex offender fears

At the opposite end of the ideological spectrum, here's yet another piece of alarmist reporting:

"Nearly one in six convicted sex offenders is using sophisticated techniques invented by identity thieves" in order to escape registration requirements, blurts a news story that received quite a bit of press a bit ago.

My first reaction: ONLY one-sixth? After all, how many of us would want to wear a scarlet letter everywhere we went, a letter that effectively banished us from housing, jobs, school, community -- basically, from any kind of normal life.

Don Rebovich, the lead researcher in this study, who heads the ominously named Center for Identity Management and Information Protection (CIMIP) at Utica College, hyped former sex offenders' attempts to navigate around registration laws as "a growing societal problem."

"We have to dig deeper to find out why this is happening," he said.

Really?! If he cannot figure it out without further digging, he must not know how to walk in another's shoes. We’re talking about onerous laws that severely restrict where ex-offenders can live and require them to broadcast the addresses of any employment or school they attend. Laws that incite the prurient interests of nosy neighbors. Laws that invade the privacy of loved ones. Laws that have even led to a string of vigilante murders. People on these registries are motivated by the desire to protect family members, shield themselves from nosy neighbors, and get jobs.

Even the New York Daily News, certainly no sympathizer toward ex-offenders, notes in its coverage of the study that the various attempts to evade scrutiny "don't mean the offenders aren't checking in regularly with their parole officers. Actual absconder rates -- the percentage of sex offenders who get released and disappear -- are extremely low."

Ironically, as highlighted in the Perlin and Cucolo article referenced above, a growing body of empirical research suggests that registration laws do nothing to protect the public or reduce recidivism. Indeed, they may foster recidivism, by isolating former sex offenders and destroying all hope of leading productive, law-abiding lives.

Frank Kuni, New Jersey sexual registry entry

Meanwhile, what was the heinous crime of the so-called “poster child” for violating the registration rules -- the worst violator they could find?

Frank Kuni of New Jersey did not commit a new sex crime. Rather, he changed his name in order to land a job. With the US Census Service, no less. In other words, as one article put it, he had the audacity to try to "slip back into society" and become a productive citizen.

Further resources:

I  recommend the Prison Legal News article, Federal Sex Offender Civil Commitment Process Under Fire, for those interested in an in-depth report on recent federal decisions. Prison Legal News has lots of other cutting-edge news coverage, as well; I recommend browsing the site and signing up if you find the information useful. There is a free email alert option. 

My blog list of online sexting resources can be found HERE. 

Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration by Heather Cucolo and Michael L. Perlin can be freely downloaded from the Social Science Research Network site. 

My 2007 blog post on sex offender banishment, Exiles in their own land: Sex offenders and the history of banishment in Western culture, is HERE.  

Hat tips: Bruce, Sandi, Ken Pope