Hot off the press: Mental health and criminal justice

The new issue of Criminal Justice, the American Bar Association magazine (Vol. 22 No. 3), features a roundup of cutting-edge topics at the intersection of psychology-law. The articles are written by notables in their fields and, best of all, they are available online and for free:

Mental Health and Criminal Justice: An Overview

By Andrew E. Taslitz

The Supreme Court's Recent Criminal Mental Health Cases Rulings of Questionable Competence

By Christopher Slobogin

For decades the subject of mental illness and criminal law languished in the legal "backwaters" at the U.S. Supreme Court. That changed in 2003 when the Court accepted the case of Sell v. United States (a defendant's right to refuse medication), followed quickly by two more seminal decisions in Clark v. Arizona (2006) (the scope of psychiatric defenses) and Panetti v. Quarterman (2007) (the definition of competency to be executed). But has this sudden interest in mental illness issues resulted in good law? The author argues to the contrary and details where and how the Court has erred.

Prosecutor as "Nurse Ratched"?: Misusing Criminal Justice as Alternative Medicine

By Gerald E. Nora

Traditionally, prosecutors approach claims of mental impairment by criminal defendants with skepticism, contesting competency defenses and sentencing mitigation. More recently, though, they find themselves as "diversionary gatekeepers" - seeking alternatives to trials and prison for those who more aptly belong in the medical arena. The author, a Cook County ( Illinois) state's attorney, finds neither role satisfactory and argues for reforms that will limit a prosecutor's responsibility for addressing a defendant's mental health needs through the justice system.

The Promise of Mental Health Courts: Brooklyn Criminal Justice System Experiments with Treatment as an Alternative to Prison

By Matthew J. D'Emic

Judge D'Emic tracks the establishment of one of the country's first courts to use diversionary treatment in dealing with mentally ill criminal defendants. He maps the defendant's journey from intake through assessment and treatment to "graduation" from the program.

Executing the Mentally Ill: When Is Someone Sane Enough to Die?

By Michael Mello

An opponent of the death penalty, Prof. Mello presents this personal account of advocating for mentally ill death row inmates. While detailing his clients' descent into madness and the tortured disconnect between the fantasy world of the insane and a justice system bent on accountability, the author looks at the impact of three high-profile cases.

Mental Health Status and Vulnerability to Police Interrogation Tactics

By William C. Follette, Deborah Davis, and Richard A. Leo

The authors offers a psychological explanation of how police interrogation methods affect the "average" person's ability to understand and exert his or her Miranda rights and what makes the mentally ill so much more susceptible to police coercion and likely to falsely confess.

Sex offender news roundup

Florida court strikes down residency restrictions

In a surprising decision, an appellate court in Florida has struck down the city of Jacksonville's residency restrictions for convicted sex offenders. After the state passed a law preventing offenders from living within 1,000 feet of parks, schools, libraries, or day care centers, the city of Jacksonville expanded the distance to 2,500 feet. In striking down that municipal ordinance, the court said it lacked any "rational basis" and thus violated the due process rights guaranteed in the U.S. Constitution.

For an analysis and a link to the ruling, see the Sex Crimes blog.

California police dragnet closing in

Who came up with the myth that sex offenses primarily happen in parks or at schools, as opposed to behind the closed doors of someone’s home? Whatever its origin, it sure is popular these days.

With the state's Supreme Court poised to hear a desperate appeal from four sex offenders who are being threatened with prison because they live too close to parks or schools, parole agents are fanning out across the state and making arrests. Some 855 sex offenders up and down the state are facing reincarceration over the next two weeks if they don't find a new place to live, according to the California Department of Corrections and Rehabilitation.

Andy Furillo of the Sacramento Bee has the full story.

Appellate court overturns deportation

An adult who engages in a sexual act with a minor has not necessarily committed a crime of "moral turpitude" meriting automatic deportation, the Ninth U.S. Circuit Court of Appeals has ruled.

The decision reversed an immigration court's order deporting Alberto Rene Quintero-Salazar, a Mexican national who came to the United States in 1990 and became a lawful permanent resident four years later. His wife, three children and two stepchildren are all U.S. citizens and he argued that his deportation would create an undue hardship for them.

According to the court, a crime of moral turpitude meriting automatic deportation requires willfulness or "evil intent" involving some level of depravity or baseness so far contrary to the moral law that it gives rise to moral outrage. In contrast, the sexual conduct criminalized by the California statute under which Quintero-Salazar was convicted could include consensual sex between two high school students, conduct that is legal in other states, and conduct that would be legal in California if the adult and minor were married.

Steven Ellis of the Metropolitan News-Enterprise has the details on the case, Quintero-Salazar v. Keisler, No. 04-73128.

Photo credit: "Bogeyman" by faedrake (Creative Commons license)

More bad news from California: Jails designated as "treatment facilities"; mental health courts vetoed

Wouldn't it be great if, instead of supporting more prisons, California's governor signed legislation authorizing mental health treatment that might reduce the need for prisons in the future?

Sadly, that's just a fantasy.

After my post yesterday about Gov. Schwarzenegger vetoing three criminal justice reform measures, an alert subscriber notified me about two other forensic treatment-related decisions in which the governor came down on the wrong side:

SB 568: Jails designated as "treatment facilities"

With state mental hospitals crammed full of civilly committed sex offenders and the like, there's no longer room to treat mentally ill defendants who are too crazy to have their day in court. So, with the backing of the state's sheriff's departments, Gov. Schwarzenegger signed emergency legislation allowing the jails to forcibly medicate defendants who are incompetent to stand trial.

As I explained in my original post on this bill back in June, some forensic psychologists are concerned about this law. Jail psychiatric services are minimal; prisoners with severe mental disorders will be denied the type of around-the-clock services in a therapeutic setting that they may need to be restored to trial competency.

California's move toward minimizing treatment services may encourage other states to do the same. foisting additional fiscal burdens onto cash-strapped county governments. It's all part of the trickle-down effect of the criminalization of the mentally ill that began in the 1970s with the defunding of community mental health programs and escalated with the prison boom of the 1980s and 1990s.

SB 851: Mental health courts nixed

Gov. Schwarzenegger also placed himself on the wrong side of the national mental health court movement by vetoing a bill that would have expanded such courts in California. In vetoing SB 851, he cited the fiscal costs, estimated by the Department of Corrections at $14 million per year. He also claimed that mental health courts would "allow people who have committed crimes to avoid punishment completely because of a mental health issue." (Never mind that defendants often find the stringent treatment requirements of such courts more onerous than just doing their time.)

Let's look at some numbers. California's prison budget this year was a whopping $10 billion. That does not include another $7.4 billion just authorized for 40,000 new prison beds, or the estimated $330 million per year in interest on those construction bonds. Indeed, California is spending so much on keeping people locked up that in five years, annual prison spending will shoot past higher education expenditures.

If my math is correct, the annual budget for the mental health courts would be only about one-tenth of one percent of this year's prison operating budget.

If Gov. Schwarzenegger was interested in reducing recidivism, as he claims, he would be willing to expend that measly sum to provide mentally ill prisoners with the treatment that might rehabilitate them and allow them to lead productive lives. Keeping the mentally ill out of prison is not only humanitarian, but would reduce the need for new prison beds, providing big cost savings to us tax-paying citizens in the future.

But that's assuming that the governor was willing to stand up to the correctional industry, the state's most powerful lobby. No California governor has done that and survived.

Hat tip to Robert Canning for alerting me to these developments.

Calif. governor vetoes three criminal justice reform bills

On Sept. 19, I posted that California could lead the way in criminal justice reform if our governor signed three innovative initiatives then sitting on his desk.

Sadly, the governor caved in to special interest lobbying by police and sheriff's departments, today announcing that he had vetoed all three. The reform measures, and his brief explanations for rejecting them, are:

Senate Bill 511: To require electronic recording of police interrogations in serious felony cases

Governor Schwarzenegger: "While reducing the number of false confessions is a laudable goal … interrogations are dynamic processes that require investigators to use acumen, skill and experience to determine [the best] methods."

Senate Bill 756: To increase the accuracy of eyewitness identifications by appointing a task force to create guidelines for police line-up procedures

Governor Schwarzenegger: "… Law enforcement agencies must have the authority to develop investigative policies and procedures that they can mold to their own unique local conditions and logistical circumstances rather than be restricted to methods created that may make sense from a broad statewide perspective."

Senate Bill 609: To require that testimony from jailhouse informants be independently corroborated before being used as the basis of a criminal conviction

Governor Schwarzenegger: "… When that kind of testimony is necessary, current criminal procedures provide adequate safeguards against its misuse."

In other words, he rejected any additional regulation of law enforcement practices. I guess it was unrealistic to think that an opportunist politician might stand up to the state's most powerful political lobby.

For more disappointed reaction to the vetoes, see "Legal advocates blast Schwarzenegger for vetoing three justice bills," by Brandon Bailey, San Jose Mercury News, Oct. 18, 2007.

Despite shootings, schools among safest places for children

Shooting rampages - statistically rare events

This week's school shooting in Cleveland, Ohio may stir up the idea that schools are dangerous places. Especially since the 14-year-old boy, Asa Coon, favored the "goth" look of the Columbine shooters, wearing a long trench coat and black-painted fingernails. Reportedly upset over a recent suspension for fighting, Coon injured four people before killing himself.

Ironically, the very day before this shooting, a sociologist had heralded schools as "among the safest places for young people to be."

Karen Sternheimer, an author and sociology professor at the University of Southern California, explained in her blog article why this is true, despite highly publicized rampages at Columbine, Virginia Tech, and – now – the school in Cleveland.

"Crime in America's schools is on the decline," Sternheimer writes at the Everyday Sociology blog. "Children are much more likely to be victimized by adults than by each other. Statistically, kids are actually safer in the company of other students than they are with their parents."

In critiquing knee-jerk Zero Tolerance responses to the perceived problem of school violence, Sternheimer concludes:

"There is a danger in focusing so much on unlikely events that we ignore many of the complex issues plaguing so many schools: overcrowding, outdated materials, decaying facilities and overwhelmed teachers, not to mention alienating students with rigid one-size-fits-all policies. This, coupled with skyrocketing tuition at colleges and universities means that many are being shut out of higher education entirely, giving them less reason to commit themselves to education. Perhaps the biggest danger facing our nation's schools is using our scarce resources to massage our fears rather than to educate a generation."

The article is available at the Everyday Sociology blog. Sternheimer is the author of two acclaimed books about youth culture: Kids These Days: Facts and Fictions About Today's Youth and It's Not the Media: The Truth About Pop Culture’s Influence on Children.

See also my post on Virginia Tech and my Amazon review of Rampage: The Social Roots Of School Shootings.

"Innocentrism": Changing the face of American law?

Is DNA testing, and the resultant exoneration of hundreds of innocent prisoners, dramatically changing the focus of criminal law in the United States? And if so, is that a good thing?

That's the topic of an intriguing new article by University of Utah law professor Daniel S. Medwed. The article, aptly titled "Innocentrism," is available online through the Social Science Research Network (SSRN). Here is the abstract:

American criminal law is undergoing a transformation due to the increasing centrality of issues related to actual innocence in courtrooms, classrooms, and newsrooms. This phenomenon, which I will term “innocentrism," derives mainly from the emergence of DNA testing and the subsequent use of that technology to exonerate innocent prisoners. Indeed, since 1989, over 200 prisoners have been freed as a result of post-conviction DNA testing, their innocence proven beyond a shadow of a doubt. Dozens of nonprofit innocence projects have sprung up to investigate and litigate claims of innocence. Legislators have responded favorably to these developments as well; over forty state legislatures have passed statutes to facilitate inmate access to biological evidence that is suitable for post-conviction DNA testing. A number of states have even gone beyond the realm of DNA and implemented legislation designed to address the root causes of wrongful convictions, for instance, by modifying the manner in which eyewitness identification procedures are conducted. The academic community, in turn, has gravitated toward the topic of innocence with rising ardor, as evidenced by the fact that no fewer than eight major law reviews have published symposia on topics concerning wrongful convictions since 2002. It may not be farfetched to suggest, as others have done, that the effort to free the innocent has become the civil rights movement of the twenty-first century.

Many observers, including this author, have praised the evolving focus on actual innocence in the criminal law discourse and advocated the passage of legislative reforms geared toward eradicating or at least curtailing the factors that contribute to wrongful convictions. Several prominent commentators, however, have reacted less sympathetically and have mounted a series of attacks on the innocence movement, both from the right and the left. In this Essay, I aim to respond to those skeptical of (and antagonistic toward) the emerging centrality of innocence-based arguments in criminal law: in effect, to critique the critics. In doing so, I hope to demonstrate that innocentrism, while far from a panacea to the criminal justice system's many ills, is a positive occurrence and one that ultimately can complement, rather than replace, the emphasis on substantive and procedural rights that for good reason rests at the core of American criminal law.

Thanks to inveterate blog subscriber Kirk Witherspoon for alerting me to this article.