Pay-to-stay jails critiqued

Have you heard of pay-to-stay jails? They're quietly appearing around the country, in communities with enough affluent scofflaws to support their existence. For a fee, criminals can stay in more comfortable lockups with better food, access to cell phones, and other cushy amenities.

The current issue of the Michigan Law Review's First Impressions series focuses on this latest example of the ever-increasing disparities between the rich and the poor in the U.S. criminal justice system. The thought-provoking articles – all available online - include:

Pay-to-Stay in California Jails and the Value of Systemic Self-Embarassment by Robert Weisberg, Stanford Law School

It Could Happen to "You": Pay-to-Stay Jail Upgrades by Kim Shayo Buchanan, USC Gould School of Law

The Dirty Little Secrets about Pay-to-Stay by Laurie L. Levenson, Director of Center for Ethical Advocacy at Loyola Law School Los Angeles and Mary Gordon

Government Entrepreneurship: How COP, Direct Supervision, and a Business Plan Helped Solve Santa Ana's Crime Problems by Police Chief Paul Walters, Santa Ana, California, and Russell Davis, Jail Administrator, Santa Ana

Why the County Jail Is Often a Better Choice by Shawn Chapman Holley, private practice attorney

A Virtuous State Would Not Assign Correctional Housing Based on Ability to Pay by Bradley W. Moore, JD Candidate, University of Michigan Law School

Confession to prison psychiatrist not confidential

The 9th Circuit Court of Appeals has issued a ruling with implications for forensic psychology, treatment in correctional settings, group therapy, psychotherapist-patient confidentiality, and correctional ethics more broadly.

The case goes way back to 1984, when 13-year-old Christy Ann Fornoff was sexually assaulted and smothered to death in Arizona. Physical evidence and suspicious circumstances linked Donald Beaty to the crime, and he was quickly arrested.

While awaiting trial, Beaty became depressed and went on a hunger strike. He was transferred to a psychiatric unit, where he agreed to participate in an experimental, coed therapy group. At one group session, a teenage girl confronted Beaty about his offense, and he became upset. Immediately after the group session, Beaty approached the prison psychiatrist who ran the group, George O'Connor. As O'Connor later recalled the conversation, Beaty said he was not a terrible person and that he had not meant to kill Ms. Fornoff.

Time went by. Beaty went to trial. The prosecution presented physical evidence linking him to the crime, but the jury hung 10-2 (for guilty). Meanwhile, O'Connor happened to be in court on another case. During some idle chitchat, he told a guard that Beaty had confessed to him. Through the grapevine, the prosecutor quickly heard this good news, and O'Connor was compelled to testify at Beaty's second trial. Not surprisingly, the verdict this time was guilty. Beaty was sentenced to death.

At issue in the capital habeas appeal was whether Beaty's statement to the psychiatrist was properly admitted, or whether it was protected as confidential. Beaty argued that he had signed a confidentiality agreement to participate in the group therapy and that he thought his conversation with the psychiatrist was confidential.

An appellate court disagreed. The confidentiality contract only applied to statements made while the group was in session, not to a private conversation immediately thereafter. The court also disagreed with Beaty that he was coerced into treatment. (This is relevant because a coerced confession to police may be excluded from evidence if it is shown that the suspect's independent will was overborne.)

The court distinguished Beaty's case from two earlier cases in which statements made to psychiatric clinicians in custodial settings were deemed protected from disclosure.

Case of Daniel Pens

In the first of these two cases, Daniel Pens was convicted of rape in 1981 and committed to a locked treatment program at Western State Hospital in Washington. The treating therapists assured Pens that information he revealed during his mandatory treatment would remain confidential and would not be disclosed to the courts. As part of his treatment, Pens confessed to additional rapes. After three years, the clinicians wrote a report to the court detailing Pens’ self-incriminating statements and concluding that he was too dangerous to be released.

In 1989, the Ninth Circuit ruled that Pens' admissions fell squarely within the Fifth Amendment privilege against self-incrimination, and could not be used against him in court. (The case is Pens v. Bail, 902 F.2d 1465.)

Case of "D.F."

The appellate court also distinguished the Beaty case from a far more fascinating case out of Wisconsin that is worthy reading for all mental health practitioners. In 1993, 12-year-old "D.F." of Wisconsin was charged with killing her two infant cousins. She was placed in a locked institution for troubled youths. Like many such programs, the program utilized a level system in which privileges and punishments were accorded based on participation in treatment. Patients who talked to clinicians and wrote in their journals could wear their own clothes, talk to other children, and move around freely.

Four months into her treatment, during a group therapy session, D.F. admitted killing her cousins. A staff member immediately reported the confession to Child Protective Services, which in turn notified the FBI. During a subsequent investigation, treatment staff secretly funneled information to the FBI while continuing to encourage DF to discuss her crimes in therapy.

At DF's trial, the judge suppressed the statements not on the basis of the privilege against self-incrimination (as in Beaty's case), but on the grounds of psychotherapist-patient privilege. The prosecution appealed to the district court.

The district court conducted an inquiry into the treatment center's operations. The court noted that treatment staff had close working relations with police agencies and, indeed, many acted as "law enforcement surrogates" in eliciting confessions from troubled teens. Warnings about the consequences of self-incrimination were minimal to non-existent. The district court upheld the suppression of DF's confession; the 7th Circuit Court of Appeals upheld that ruling in 1995. DF's treating clinicians, in the appellate court's view, were acting in the dual roles of prosecutor and healer. (The case is U.S. v. DF, 63F.3d 671.)

Harking back to Estelle v. Smith

In its decision in DF's case, the 7th Circuit went back to the landmark U.S. Supreme Court case of Estelle v. Smith (451 U.S. 454). To refresh your memory, that Texas case involved Ernest Benjamin Smith, who was sentenced to death for the armed robbery of a grocery store in which his accomplice fatally shot the clerk. Smith had the misfortune to have his competency evaluated by state psychiatrist Dr. James P. Grigson, who later earned the infamous nickname of "Dr. Death." At Smith's sentencing hearing, Grigson testified that Smith was "going to go ahead and commit other similar or same criminal acts if given the opportunity to do so." After hearing that ominous prediction, the jury voted for death.

In Estelle, the U.S. Supreme Court held that a court-appointed psychiatrist must give Miranda warnings before questioning a prisoner. In other words, it doesn't matter that the information-gatherer is a psychiatrist rather than a police interrogator. What matters is the purpose for which the information is being collected. Dr. Grigson, although not a government officer, was acting on the state's behalf.

The court's narrow ruling in Beaty is troubling, in that it may encourage prosecutors to seek incriminating information from clinicians working in custodial settings. The ethics of such disclosures remains a cloudy issue, with correctional clinicians holding a variety of views on when they are required or permitted to divulge information to authorities. At minimum, this line of case law should remind forensic practitioners of the need to provide a careful, Miranda-like warning to people we are evaluating, describing the lack of confidentiality and how the information they provide may be used. And certainly, Dr. O'Connor's casual disclosure of Beaty's confession to a guard – which set this case in motion – seems a breach of proper conduct.

Perhaps the best treatise on this topic is John Monahan's Who is the Client? The Ethics of Psychological Intervention in the Criminal Justice System. But that was written more than a quarter of a century ago, in 1980, and drastically needs updating in light of new case law and practice and the radical expansion of both the criminal justice system and the correctional treatment industry.

The case of Beaty v. Schriro, No. 05-99013, is available at the 9th Circuit's website.

"The Scary Doodles Case"

The tale of a teenage doodler,
a disputed confession,
and a forensic psychologist

One of the most interesting disputed conviction cases in the news these days is the case of Tim Masters in Colorado, which I first blogged about back in July. If you haven't read up on it yet, it's worth checking out.

The Rocky Mountain News is pulling no punches in calling for a new trial for Masters, who was only 15 when the murder in question occurred. The News' most recent editorial, entitled "In need of a new trial: Prosecution handicapped Tim Masters' original defense," begins like this:

The worst thing you can say about a legal system is that it railroads defendants - convicts and sentences them without allowing juries to hear the full story and without investigators pursuing equally viable suspects. That's why the case involving a Colorado prisoner named Timothy Lee Masters is so important - and why it is critical that he be granted a new trial.

For purposes of this blog, the case is intriguing because of the disputed confession (see my earlier post) and also because of the central role of J. Reid Meloy, a prominent forensic psychologist. Meloy "worked hand-in-glove with prosecutors," even reviewing the arrest warrant before it was served. The News editorial comments:

Forensic psychologist Meloy's analysis, so crucial to the prosecution's theory, at times has the tone of a pulp crime thriller. Portentous but debatable conclusions are scattered throughout, such as: 'Sexual homicides are often unconscious displaced matricides'; '[the victim] also resembled his deceased mother, which is of enormous psychological significance . . .' ; and, Masters 'knows the distinction between slicing and stabbing, terms that generally would not be distinguished by the lay person.'

Indeed, it was largely on the basis of Masters' violent doodles – and Meloy's interpretation of them – that the boy was convicted, legal observers say. Prosecutors "bombarded" jurors with blown-up images of the doodles, projected onto the wall of the courtroom.

The News article continues here.

My more recent posts on this case are here and here.

The Denver Post has additional coverage of the case and an online video, "Sketchy Evidence: The Story of Tim Masters." The Pro Libertate blog has case analysis, graphics, and links. And there's even a blog devoted solely to the case, Free Tim Masters Because, which has a lengthy page devoted to the role of Dr. Meloy. See further commentary on this topic at the Witness LA blog.

Another forensic psychology sex scandal

A psychologist in North Dakota who conducted sex offender evaluations for the state has resigned over a self-admitted child pornography compulsion. Joseph Belanger had run the state's Sexually Dangerous Individual (SDI) civil commitment program. In that capacity, he evaluated sex offenders and testified in court that they were sexually dangerous and should remain hospitalized.

It was unknown what triggered the investigation against Dr. Belanger, but Homeland Security officials recently seized his home computer, according to the Forum newspaper in Fargo, ND.

Dr. Belanger, who worked for the state hospital for more than 20 years, was reportedly a protege of Dennis Doren, a prominent psychologist for the state in sex offender civil commitment proceedings (I've mentioned Doren previously here and here).

Belanger is at least the second forensic psychologist this year to be tarnished by accusations of sexual deviancy.

In July, prominent forensic psychologist Stuart Greenberg killed himself after being arrested on suspicion of voyeurism; he had allegedly secretly videotaped a woman in his office bathroom. Greenberg was known for his expertise in child custody evaluations, but he was also a consultant for the Archdiocese of Seattle in sex abuse cases.

A commonality in these cases in that both men allegedly used modern technology to further their deviant interests - Greenberg using a concealed video camera and Belanger using the Internet.

While reporting on this news, I hasten to point out that two men out of the countless forensic psychologists in the United States certainly doesn't represent a pattern. Rather, the similar scandals cropping up in other professions suggest that such cases may be more a sign of the times than a reflection on any particular line of work.

What is relevant to the field, however, is that the revelations will likely cause scrutiny of cases in which the two men were involved as expert psychologists. This scrutiny is already occurring in Greenberg's case, with parents protesting unfavorable child custody court decisions that were based in part upon his opinions. In King County (Seattle), the presiding judge anticipated a flurry of legal challenges to cases in which Greenberg was a court-appointed evaluator. Although Greenberg's arrest would not be sufficient to reopen a case, a parent could argue bias if Greenberg's custody recommendations hinged on a parent's sexuality. I would anticipate similar challenges by civilly committed sex offenders evaluated or treated by Belanger in North Dakota.

As evidenced by the numerous venomous posts at the websites of Washington newspapers that covered the Greenberg case as well as websites devoted to parental rights in custody cases, these scandals also provide ready ammunition to critics of forensic psychology and expert witnesses more generally.

New Report: Mentally ill in Florida's legal system

Florida's Supreme Court is tackling the massive problem of mental illness in the correctional and family court systems. In a new report, a mental health committee acknowledges that correctional facilities have become the largest providers of mental health services for the poor, and recommends ways to address this growing problem.

The report follows media exposes detailing the plight of the mentally ill trapped in Florida's legal system. Mentally ill people often end up homeless and with substance abuse problems, leading to a revolving door of incarceration for minor nuisance offenses. The report recommends reforms to link the mentally ill to services that will reduce recidivism, and to improve the handling of mentally ill individuals in the juvenile, foster care, and child protective systems.

The Council of State Governments Justice Center in New York chose Florida as one of seven states to address the national crisis of the mentally ill in the legal system. The 170-page report is supposed to be the first step in a major overhaul that will include additional training for members of the judiciary. The report's massive title gives a hint of the massiveness of the project: "Mental Health: Transforming Florida's Mental Health System: Constructing a Comprehensive and Competent Criminal Justice/Mental Health/Substance Abuse Treatment System: Strategies for Planning, Leadership, Financing, and Service Development."

The report is available online. The National Institute of Corrections has a number of related documents online on the crisis of mental illness and substance abuse in the U.S. criminal and family court systems.

Sex panic going hi-tech

When someone emailed me yesterday about Offendar, I thought it was a joke. Or maybe a typo. But, no. Some greedy techno-entrepreneurs have found another way (they hope) to capitalize on the current sex panic in the United States.

What is Offendar? It's a portable "personal threat detection system" that sounds an alarm whenever someone nearby is wearing an electronic ankle bracelet.

It's not in use yet. But a rabidly tough-on-crime lawmaker in Ohio invited the maker to demonstrate it yesterday before state lawmakers. Offendar LLC is hoping that the Ohio state senator Tim Grendell will help pass legislation requiring that the technology for the device be inserted into existing ankle bracelets.

I'm guessing that would be necessary because so many people other than sex offenders are required to wear ankle bracelets these days. It's a common method for courts to keep track of people out on bail for misdemeanor offenses such as drunk driving. Here in Contra Costa County, California, just about every teenager released from juvenile hall pending further court action has a bracelet secured to his or her ankle.

David Singleton, executive director of the Ohio Justice & Policy Center, said the idea plays on public fears while penalizing people who have already served time in prison for their crimes. "What are we trying to do, make it impossible for people to get on their feet again and be productive citizens?" Singleton said.

A spokeswoman for the Cleveland Rape Crisis Center concurred, pointing out that 9 in 10 sex crimes involve family members or other intimates of the victim. "This just plays on the great … stranger danger myth that’s not true," said Lindsay Fello-Sharpe.

If the hand-held alarm takes off, Offendar LLC hopes to expand the concept to "permanent and mobile perimeter alerts" around schools, zoos, shopping malls, carnivals, fairs, and sports events.

Offendar principal Jerry Pignolet said the device is meant to enable people to leave the presence of a sex offender. "It gives you an opportunity to gather your family, get in the car and lock the doors."

The current wave of vigilante attacks against convicted sex offenders makes me doubt that everyone would just duck and run.

Picture this: Some guy who's just had a fight with his girlfriend fuels up on alcohol and decides to take out his rage and hostility on the nearest bogeyman sex offender. When police find him standing over the dead body with a bloody bat, they tell him the bad news. The dead kid had a conviction for statutory rape because when he was 18 he had dated a girl who was 16. Oops!

Ohio newspapers, including the Cleveland Plain Dealer and the Columbus Dispatch, are covering the story. In the blogosphere, Sentencing Law & Policy has more.