Sex Offender Laws: Failed Policies, New Directions

Here's an important new book for you folks who work with sex offenders:

In response to many high-profile cases of sexual assault, federal and state governments have placed a number of unique criminal sanctions on sex offenders. These include residency restrictions, exclusionary zones, electronic monitoring, and chemical castration. However, the majority of sex offender policies are not based on empirical evidence, nor have they demonstrated any significant reductions in offender recidivism. In fact, some of these policies have unintended consequences, which actually increase the likelihood of sexual offenses.

In this book, Richard Wright critically analyzes existing policies, and assesses the most effective approaches in preventing sex offender recidivism. This provocative and timely book draws from the fields of criminal justice, law, forensic psychology, and social work to examine how current laws and policies are enacted and what to-date is known about their efficacy. In response to the failed policies of sex offender laws, this book presents alternative models and approaches to sex offense laws and policies.

Topics include:

• History and politics of sex offender laws
• Internet sex stings
• Registration and community notification laws
• GPS monitoring
• Residency restrictions
• Chemical and surgical castration
• Civil commitment
• Death penalty
• Containment approach
• Sexual violence and restorative justice
• Victim impact

Richard G. Wright is a criminal justice professor at Bridgewater State College in Massachusetts and a nationally known expert on sex offender laws.

Crazy but sane, Texas court rules

Remember Andre Thomas, the eye-plucking Texas prisoner I blogged about back in January? The delusional schizophrenic guy who killed his wife and two children, ripped out their hearts, and then walked into a police station and confessed? The fellow who plucked out one eye shortly after the crime, and the other eye just a couple of months ago?

Yesterday, in rejecting an appeal of his death sentence, a Texas appellate court ruled that Thomas "is clearly 'crazy,' but he is also 'sane' under Texas law."

At Thomas' trial, the defense argued that the killings were the result of insane delusions caused solely by Thomas' mental disease. Prosecutors countered that his psychosis was caused or aggravated by his voluntary use of alcohol, drugs and prescription drugs.

The court also rejected an appeal argument that Thomas was not competent to stand trial at the time of his 2005 trial:

"Although reasonable people might well differ on the questions of whether (Thomas) was sane at the time he committed these murders or competent at the time he was tried, those issues were appropriately addressed by the defense, the prosecution, trial judge, and the jury during the trial," wrote Judge Cathy Cochran of the Texas Court of Criminal Appeals in a concurring opinion.

Scott Henson over at Grits for Breakfast found the ruling ludicrous:

It's just ridiculous to send somebody who's so obviously nuts to death row - what's the moral point of killing a guy who'd mutilate himself to death if you let him? What's the insanity defense for if not cases like this one? … How can the court just assume Thomas' substance abuse wasn't a symptom of his mental illness - a form of self-medication, perhaps? Which came first, the chicken or the egg?

Psychiatrist Lucy Puryear, writing at Women and Crime Ink, agreed:

Non-mentally ill people do not pluck their own eyes out for some secondary gain…. To those of you who would suggest that I am soft on crime, consider this novel idea. How about we make mental health treatment available in the community to those who need it. Had Mr. Thomas been adequately treated and monitored he never would have killed his family or plucked out his eye. Three people would be alive today and an enormous amount of money would be saved keeping him out of the prison system. That's not soft on crime, that's preventing crime.

As one solution, Dr. Puryear advocates specialized mental health courts, which are popping up quite regularly in courts around the United States these days:

Instead of the revolving door from prison to back on the streets where psychiatric care is lacking, then back in prison when another crime is committed, these persons can be put into a system where follow-up is mandatory and resources are available.

Tragically, Thomas had twice sought psychiatric help at local hospitals shortly before the crime, but had not stuck around voluntarily and could not be detained against his will.

Competent and sane, you betcha.

The Dallas News story is HERE.

Wired update on fMRI court case

Wired reporter Alexis Madrigal has just written a comprehensive update on the breaking news story about an attempt to get the "No Lie MRI" introduced in court.

Her article is online HERE, and includes links to other related coverage. My prior blog posts on this topic are HERE and HERE. The Deception Blog has additional links.

Hat tip: Ken Pope

"No Lie" fMRI to be introduced in court?

Last week, I blogged about neuroscientists' concerns about fMRI brain imaging. Critics say its scientific reliability and validity is far from established, and that if it was introduced in court, its colorful graphics might mislead jurors and judges and derail justice.

Just days later, the good folks over at the Stanford Center for Law and the Biosciences have learned of a pending case in California in which the "No Lie MRI" (I kid you not!) may be introduced in court to establish that a parent did not molest his child.

The case is a child protection hearing in juvenile court, so the records are sealed. The issue is whether a child should be removed from the home due to alleged sexual abuse by a parent, explains blogger Emily Murphy, a Stanford Law School fellow.

According to Murphy, a hearing is imminent on whether the fMri-based "truth verification" technique will be allowed in court. Under California's Kelly-Frye standard for evidence admissibility (which is different from the federal Daubert test), a scientific technique cannot be introduced in court unless it is generally accepted within "the relevant scientific community." The method's reliability must also be established, generally by a properly qualified expert.

If you read my blog post last week, you may be wondering how a novel technique like the fMRI could possibly meet that "general acceptance" standard.

Well, according to Ms. Murphy, the defense will argue that the "relevant scientific community" is a narrow group consisting only of scientists who research and develop fMRI-based lie detection. Tricky, huh? As Ms. Murphy comments:

Limiting the "relevant community" to only those who research and develop fMRI based lie detection is without merit, if only because such a definition precludes effective or sufficient peer-review. Indeed, it is arguable such a narrowly-defined community has a strong incentive to exaggerate its claims of accuracy and overlook unanswered questions for financial gain if such techniques are "legally admissible."

The few practitioners who research and develop fMRI-based deception detection are not the only qualified people to comment on the accuracy and validity of the technique. Statisticians familiar with Bayesian analysis, cognitive neuroscientists familiar with technical and analytical constraints, and researchers working to elucidate the neural basis of memory, decision-making, and social behavior should all make up the "relevant scientific community" for such a complex and as-yet poorly characterized technology. Further, I suspect the community of peer-reviewers that have reviewed the articles being proffered in support of the evidence of fMRI testing on deception is probably a useful proxy for the legally relevant scientific community, and extends well beyond the handful of researchers working directly on fMRI-based deception detection.

As to Murphy's last hope -- that journal peer reviewers could stand in for the legally relevant scientific community -- maybe that would help, and maybe it wouldn't. Remember, as I pointed out in last week's post, researchers at UC San Diego have found that the publishers of leading scientific journals are just as wowed by fMRI technology as everyone else, and they are uncritically promoting studies of questionable statistical merit.

To commercial ventures like No Lie MRI in California and its competitor, Cephos Corporation in Massachusetts, profit is the bottom line. Despite the controversy surrounding the reliability and validity of the lie detection technique, they are aggressively marketing the tools to clients and attempting to get them accepted in court.

Indeed, over at New York University's Scienceline, the president and chief executive of the eight-person start-up Cephos Corporation says he believes it it has a "strong possibility of being introduced as evidence" in court within the next couple of years.

Maybe sooner, depending upon the outcome of this case.

POSTSCRIPT: After opponents to the fMRI's introduction mounted a vigorous opposition and prepared to do battle at an evidentiary hearing, "the proponents of the evidence withdrew their request to have it admitted, thus ending the issue in [the] case," according to a March 25 letter from the San Diego County Counsel's Juvenile Dependency Division. Although fMRI proponents bowed out of this battle, we are sure to see more attempts to prematurely introduce brain scans as evidence in court in the coming months and years.

Postscript thanks to Phil Cave, Court-Martial Trial Practice

My previous post, with lots of links to critical research, is HERE. The image, above, is supposedly an excerpt from the actual case report.

Special issue on sex offending

For all of you sex offender specialists, the Federal Sentencing Reporter's special issue on sex offenders is now available. It's got some excellent policy-related coverage, including a historical overview by editor Michael M. O'Hear, Perpetual Panic, that is available for online download. For the rest of the articles, you need to subscribe or request them from the authors. (Law professor Corey Yung's article, along with many others he has written on related topics, is accessible for download for free from the Social Science Research Network.) The offerings include:

• Perpetual Panic - Michael M. O'Hear
• Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals - Mary Ann Farkas, Gale Miller
• Child Pornography Sentencing: The Road Here and the Road Ahead - Ian N. Friedman, Kristina W. Supler
• Sexual Predator Laws: A Two-Decade Retrospective - Eric S. Janus, Robert A. Prentky
• Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court's Book on the Death Penalty - Mary Graw Leary
• Brandishing the Mark of Cain: Defects in the Adam Walsh Act - Joseph L. Lester
• American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness - Michael Petrunik, Lisa Murphy, J. Paul Fedoroff
• From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy - Richard G. Wright
• The Sex Offender Registration and Notification Act and the Commerce Clause - Corey Rayburn Yung

New book review in California Lawyer

My review of Charles Patrick Ewing's Trials of a Forensic Psychologist is now available online at the California Lawyer website. Here is how the review begins:

Billy Shrubsall was the top student at his small Niagara Falls, New York, high school. Thus, it came as a surprise when he didn't show up to give the 1988 valedictory address. But he had good reason. Just hours earlier, the 17-year-old had clubbed his domineering mother to death.

To explain Billy's horrific crime, his attorney advanced a theory of "psychological self-defense." The attorney retained forensic psychologist and attorney Charles Patrick Ewing, who had recently advanced the novel doctrine in his 1987 book Battered Women Who Kill (Lexington Books). Ewing's sympathetic testimony paved the way for a plea bargain under which Shrubsall served just 16 months in prison. A model prisoner and parolee, Shrubsall went on to graduate from an Ivy League university and become a Wall Street stock analyst.

But all was not as rosy as it appeared. The ostensibly rehabilitated and upright citizen still had a dark side as a vicious misogynist. He had been assaulting girls since his mid-teens, and a decade after his mother's death he brutally assaulted at least three women in Halifax, Nova Scotia. In one assault eerily reminiscent of his mother's beating death, Shrubsall clubbed a female store clerk with a baseball bat, shattering her skull.

Shrubsall's case is one of more than 600 in which Ewing has testified as an expert. But that case still haunts him, as he states in his latest book, Trials of a Forensic Psychologist: "[A]fter decades of working with the victims of violence and sexual abuse, I know all too well the awful harm Shrubsall did to the women he later victimized ... to this day when I testify as an expert, I am often questioned about my role in this case."

The review continues HERE.