Federal court strikes down portion of Adam Walsh Act

In a potentially important legal challenge, a federal appellate court has struck down part of the Adam Walsh Child Protection and Safety Act of 2006.

The Act, hailed by Sen. Orrin Hatch as "the most comprehensive child crimes and protection bill in our Nation's history," created a National Sex Offender Registry to identify, track, and confine sex offenders.

Friday's ruling, by the U.S. District Court for the Eastern District of North Carolina, strikes down the civil commitment portion of the law.

The law's "failure to require a court to find beyond a reasonable doubt that a person has engaged or attempted to engage in sexually violent conduct or child molestation prior to permitting the individual's indefinite involuntary civil commitment as a sexually dangerous person constitutes a violation of due process," states the ruling in U.S. v. Comstock.

The Act allows for civil commitment based on the lower legal standard of "clear and convincing evidence."

The challenge was brought by the North Carolina Federal Public Defenders on behalf of Graydon Comstock, who was sentenced to a 37-month prison term for receiving computer pornography via computer. After his prison term ended on Nov. 8, 2006, the government certified him as a "sexually dangerous person" under the civil commitment provision of the Walsh Act and kept him in confinement.

Grayson will not automatically go free as a result of Friday's ruling, as the court stayed imposition to give the government a chance to appeal.

The legal decision may portend a split among appellate courts on the constitutionality of the new law, according to law professor Corey Rayburn Yung, who posted about the decision on his "Sex Crimes" blog. See his blog for legal analysis and additional links.

New book highlights prisoner reentry obstacles

Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration
by Devah Pager, Princeton University sociologist

From my Amazon review:

If this depressing book cannot convince people that racism is alive and well in America today, I don't know what could. Dr. Pager reports on an empirical research project in which teams of well-put-together white and black college students went job-hunting in and around Milwaukee, with one member of each team "marked" as an ex-convict. What she found is astonishing. Black job applicants WITHOUT drug convictions fared no better than white ex-cons WITH convictions; with "two strikes" against them, black men with a (bogus) drug conviction had slim odds of getting a call-back from a prospective employer. This problem was especially pronounced in the suburbs, which are gaining an increasing proportion of jobs despite the fact that many job-seekers remain in the cities. Dr. Pager includes informative and well-written chapters on the state of mass incarceration in the United States today, as well as the massive and growing problem of prisoner reentry. With more than 600,000 people pouring out of prisons each year, Dr. Pager's book is a must-read for anyone concerned with the public policy aspects of the reentry problem. This is yet another excellent entry into the recent crop of books cataloging the collateral consequences of mass imprisonment. (See my Amazon list "Prison World" for more.)

Appellate court: Parolee cannot be forced into 12-Step treatment

In what could be a blow to the 12-Step Movement's stranglehold over substance abuse treatment, an appellate court has ruled that a parolee cannot be ordered into a treatment program that uses the model.

At least eight other federal and state courts have issued similar opinions in the past, holding that coerced treatment in a religion-based program is unconstitutional. On Friday, the Ninth District Court of Appeals reiterated that precedent.

The case involved a Buddhist, Ricky Inouye of Hawaii, who had objected to religiously oriented drug treatment while in prison on a drug case. Over his objection, his parole agent ordered him to attend Narcotics Anonymous meetings after a urinalysis tested positive for drugs. He has since died, but Friday's ruling allows his son to continue Inouye's civil lawsuit against his parole agent. The opinion held that Narcotics Anonymous has pronounced religious overtones, including references to God, a "higher power," and prayer.

For decades, most treatment programs have unquestioningly followed the Alcoholics Anonymous model. With more than half a million people pouring out of U.S. prisons each year, the bulk of them drug offenders, the treatment industry is an enormous cash cow.

From a social science perspective, the court's position is good news. The 12-Step philosophy flies in the face of much empirical data on substance abuse and recovery patterns, yet its dominance makes it hard for more scientifically based, cognitive-behavioral treatments to gain a foothold in the marketplace.

The 12-Step model fits with the medical model dominant in modern culture. It describes certain people as "alcoholics" suffering from an incurable, progressive "disease." Its treatment approach, therefore, proscribes lifelong abstinence.

"The essence of the AA approach resembles revivalistic Protestantism, with elements of ritual prayer, public confession and surrender of will to a 'higher power,' and dogmatic religiosity reinforces the defensive barrier against innovation," says critic C. Gary Pettigrew, Ph.D., also a forensic psychologist.

In the past half century, since the American Medical Association endorsed the AA model, much scientific work has debunked both the disease theory and the superior efficacy of 12-step treatment. However, this knowledge has been largely suppressed by religious, political, and industry forces. Many "therapists" and "counselors" in 12-Step programs are "recovering" alcohol and drug abusers, and many clinicians are not aware of the critical research base in this area.

Not all of the resistance to more secular, empirically based treatment is innocent in motive. Herbert Fingarette, a critic of the industry, points out that the concept of certain defective people as innately prone toward "alcoholism" benefits the alcohol industry by blaming individuals for the collateral damage of its products. In addition, the treatment industry benefits financially by hiring less educated, non-professional "therapists" at low salaries and by receiving third-party insurance payments for treating a "disease."

Friday's court ruling in Inouye v. Kemna echoes earlier rulings out of the Seventh and Second U.S. Courts of Appeal, which probation and parole officers have ignored in continuing to force parolees and probationers to attend AA/NA meetings as conditions of their release. Indeed, the Ninth Circuit commented that this area of case law is "uncommonly well-settled." (Previous cases include Kerr v. Farrey, 95 F.3d 472, 7th Circuit, 1996, and Warner v. Orange County Dept. of Probation, 115 F.3d 1068, 2nd Circuit, 1997, respectively; see Inouye v. Kemna for a listing of related court decisions.)

Harm Reduction Therapy is one of the promising alternative approaches that these court decisions - if anyone ever heeds them - could assist. Rather than a one-size-fits-all approach, this treatment method addresses the complex social, occupational, psychological, and emotional factors that may contribute to an individual's drug and alcohol problems.

And, by the way, the second national Harm Reduction Therapy Conference will be November 2-4 in Philadelphia.

Photo credit: Johnny Wood (Creative Commons license); vodka ad at trendy Union Square in San Francisco. Alcohol manufacturers spend more than $1 billion each year advertising their products and hide behind the "disease" concept of alcoholism to deny responsibility for the carnage their products produce.

Craig exonerated; new Apple technology to revolutionize senatorial trysts

Posted with the permission of cartoonist Don Asmussen, San Francisco Chronicle.

Special issue on racial profiling and the law

The August 2007 issue of the Journal of Contemporary Criminal Justice focuses on racial profiling in the criminal justice system. The abstracts are free; you must either pay or have a subscription to read the articles in their entirety.

The contents include:

• Profiles of Injustice: The Theory and Practice of Racial Profiling - Zina T. McGee

• Racial Profiling and the Courts: An Empirical Analysis of Federal Litigation, 1991 to 2006 - Shaun L. Gabbidon, Lakiesha N. Marzette, and Steven A. Peterson

• Police Discourse on Racial Profiling - Karen S. Glover

• Racial Profiling and Postmodern Society: Police Responsiveness, Image Maintenance, and the Left Flank of Police Legitimacy - Kirk Miller

• Legislative and Court Decisions That Promulgated Racial Profiling: A Sociohistorical Perspective - Larry D. Stokes

• Black Criminal Stereotypes and Racial Profiling - Kelly Welch

Thanks to the always informative Psychology and Crime News blog for alerting me to this important volume.

Universal DNA databases looming

Racial and ethical implications debated

DNA databases are great, aren't they? In the last few years, we've heard many a case of an innocent person, languishing in prison, being exonerated by newly discovered DNA evidence. Or, we hear of DNA solving a heinous crime, perhaps even a serial murder. (We see it even more often on TV crime dramas like CSI, but that’s a story for another day.)

DNA databases work best when they contain a lot of genetic data. So, why wait until people are arrested, or even convicted of a crime? Why not swab every single person at birth, before they grow up to commit a crime?

This is not far-fetched. Such a universal database is already underway in Portugal. And now, it's being debated in England, the country that started national DNA databanking a dozen years ago. British officials already have more than 4 million samples (7% of the population, the largest proportion of any nation), and a prominent judge this week proposed cataloging everyone, even visitors to the country.

Paradoxically, proponents of universal DNA banking cite concerns of justice and fairness. The current system amounts to racial and ethnic profiling, they say. Minorities make up far more than their share of those arrested. And even when they are subsequently proven innocent or released without charges, their genetic profiles remain. In England, more than three-fourths of young black men are in the database, compared with only about one in five young white men.

When the databases first caught on in the United States, the laws contained safeguards intended to prevent this. In many states, DNA was only collected upon conviction, and only for very limited types of crimes, typically murder and rape.

But politicians, always looking to boost their tough-on-crime credentials, have expanded DNA banking to an ever-increasing array of offenses. Most recently, laws are following the British trend of collecting DNA from people who are arrested but not convicted. The U.S. Justice Department may now collect DNA from everyone they detain, a policy that will hit immigration violators hardest.

Civil libertarians are up in arms. The expanded laws are creating near-universal DNA databases for black men, they say. As criminologist Simon Cole points out, "Some demographic sectors of American society, such as poor, black, inner-city males, have shockingly low probabilities of getting through adolescence without having at least one run-in with the police. If such encounters trigger inclusion in a DNA database, the database becomes discriminatory."

Opponents also point to the possibility of wrongful incrimination. Reports of errors at DNA laboratories are becoming more common. And the possibility that DNA evidence could be planted is ever more likely. In addition, DNA contains sensitive personal information that could be exploited.

In come cases, law enforcement agencies are utilizing DNA technology in ways that are outside of public awareness or judicial oversight. For example, in an ominous new trend, when investigators cannot match a DNA profile to a crime scene, they may look for close matches and investigate those individuals' family members. Thus, a minor brush with the law can ripple through an entire family.

"In a society in which young black males in some neighborhoods have a one-in-three probability of ending up in state custody at some time in their lives (and an even higher chance of getting an arrest record), the racial overtones of such a practice are dramatic," criminologist Cole notes.

Would a universal database solve discriminatory practices, as proponents claim?

That is unlikely, so long as our criminal justice system continues to disproportionately target certain sectors of the population. In the end, DNA technology could just provide one more powerful tool for discriminatory enforcement.

Thanks to Simon Cole, associate professor of criminology, law, and society at the University of California, Irvine, for his excellent overview of this topic.

See also the American Society of Law, Medicine, and Ethics' web site, "DNA Fingerprinting and Civil Liberties."

Photo credit: Jovika (Creative Commons license)

Additional resources:

DNA and the Criminal Justice System: The Technology of Justice, David Lazer (MIT Press, 2004)

Rights and Liberties in the Biotech Age: Why We Need a Genetic Bill of
Rights, Sheldon Krimsky and Peter Shorrett(Rowman & Littlefield Publishers, 2005).