"Abandon ethics, all ye who enter here"

Special ethics exemption sought for SVP work

Concern is mounting among many in the fields of forensic psychology, forensic psychiatry, and law about ethical violations by some practitioners in the Sexually Violent Predator (SVP) arena. But instead of calling for greater adherence to ethical practice, some are floating a radically different idea: Abandon professional ethics altogether.

[A] good-faith, case-by-case, consequential ethics approach should be used that balances the greatest good for the greatest number without trampling unduly on individual rights and each citizen’s constitutionally protected liberty interests.

This "consequential" approach will eliminate bias and give the civil commitment process "ethical authenticity," contend Shoba Sreenivasan, Allen Frances, and Linda Weinberger in the current issue of the Journal of the American Academy of Psychiatry and the Law.

Sexually Violent Predator evaluations lend themselves to ethical slippage because of the laws' requirement that in order to be eligible for civil commitment, a convicted sex offender must suffer from a "mental abnormality" that makes him "likely" (interpreted in most states other than California to mean a risk of 51 percent or more) to commit another sexually violent offense.

These legal requirements create a slippery slope when an offender does not have a bona fide mental disorder and/or does not score high on risk assessment instruments, but the evaluator still believes the offender needs to be civilly committed to protect the public.

But this is no "puzzling ethics quandary." It's no different from such pulls in other forensic arenas. For example, a forensic practitioner might opine that:

• a young man who experienced a brief, drug-induced psychotic break meets the M'Naghten standard of insanity, because the prosecutor and the defense attorney have worked out a deal in which he won't have to go to prison

• a victim of an industrial accident meets the criteria for posttraumatic stress disorder because she needs counseling and the corporation has deep pockets

• a mother in a child custody dispute has "parental alienation syndrome" because she appears angry and vindictive toward her husband

Each of these evaluators is overstepping, and usurping the role of the trier of fact (the judge or jury). It is not the expert's job to decide whether Sexually Violent Predator laws are morally just. It is not our job to balance the goals of public protection with individual civil liberties. Those duties fall to courts, legislatures, and voters.

As I teach my students in Forensic Psychology 101, when we enter the courtroom our job is a simple one: To assist the trier of fact in understanding the psychological science of relevance to the case at hand. Nothing more, nothing less.

The authors complain that the courts have given us insufficient guidance in this task. But, welcome to the forensic world. Statutory and case law is often intentionally vague, to allow for unique situations or changing circumstances. The law's inherent vagueness about mental abnormality and risk does not create an ethics quandary, much less one that merits abandonment of our ethics codes.

It is ludicrous to think that the solution to problems in SVP practice is an anything-goes approach that essentially rests upon the good intentions of individual evaluators. Most of us probably do have good intentions. But self-serving blinders make it hard to be objective. That is precisely why professionals have established deontological, or rule-based, ethics standards (which the authors refer to as "normative ethics").

Indeed, these authors reveal their implicit bias through their choice of examples. Instead of focusing on the widespread exaggeration of risk or manufacturing of bogus psychiatric diagnoses, they condemn "long and confusing discussions of Bayes' theorem" and label as biased the evaluator who emphasizes limitations in our ability to accurately predict risk.

Actually, that is precisely our job. We are ethically obligated to present the limitations of our models, which are significant. To fail to do so is to succumb to what an Australian judge described as gross product enthusiasm:

Amongst the many factors which may lead an expert witness into error is a malady which, if encountered in a new car salesperson, might be described as gross product enthusiasm. Some witnesses seem to become so fervid about the potential of their chosen discipline that they lose sight of its limitations and are borne by their enthusiasm into making claims that could not be supported by more sober and objective assessment of the available evidence.*

As this judge implies, the testimony of expert witnesses should be given little weight when it amounts to confirmatory bias in disguise, resting on a paper-thin layer of exploratory or contradictory research that has not been peer reviewed, published, or replicated, and is of unknown reliability or validity.

I will say it once again: Our only role in court is to assist the trier of fact to accurately apply reliable and valid science to the case at hand. And that includes acknowledging the science's limitations.

Science in principle is distinguished from the law, religion, and politics by its allegiance to scientific inquiry, or the search for replicable cause-effect relationships. The ethics of our discipline therefore rely upon the principles of objectivity and transparency. In contrast, Sreenivasan et al’s ethics of "consequentialism" elevate expedience. This might be fine in the fields of law or religion. But, as a learned colleague said, "expedience is the bane of Science."

SVP trials pit David against Goliath. The dice are loaded against sex offenders facing civil commitment, due to the onerous nature of their past crimes, inequalities in legal resources, and even the very label of predator, which conjures a beastly monster. Condemning as "biased" efforts by the defense to point out the scientific weaknesses of the state's evidence would only increase this monumental power imbalance.

But that's no "puzzling ethics quandary." Any more than psychologists are faced with a puzzling ethics quandary when they decide to participate in government torture for the greater good.

Because we have professional rules, or ethics codes, the psychologists who allegedly tortured detainees at Guantanamo now await licensing board actions in their respective states of Ohio and New York.

That's the way it is, and the way it should remain.

Acknowledgment: In crafting this essay, I consulted with more than a dozen learned colleagues, who helped me to ponder these critical issues of ethics. Thanks to all of you, and a special thanks to Robert Halon, who gave the matter a great deal of thought. It’s a privilege to count such wise individuals among my professional colleagues.

Photo credit (Creative Commons license): Klearchos Kapoutsis, Baba Vida fortress, Bulgaria, the place of the hangings.

*R. v. Hiller, ACTSC 50, 25 (Australia, 2003), as cited in Psychological Science in the Courtroom, Consensus and Controversy, page 255.

BLOGGER RESPONSES:

Steve Erickson @ Crime & Consequences

Mark Bennett @ Defending People

Emma B. @ Psychology & Crime News (UK)

The Social Network debunks Facebook origin myth

With the box-office success of The Social Network, the whole world will know that Facebook emerged not from an attempt by a college kid to connect with his friends, as the origin myth has it, but from a misogynist online prank.

The title speaks to the profound irony underlying this almost accidental invention: The man who invented the world's largest and most successful social network is devoid of social intelligence.

The central plot device is flash-forwards to founder Mark Zuckerberg's testimony at a legal deposition. Despite the obvious distortion of how a deposition works, the device works to remind us of the movie's essential accuracy. And, indeed, it had better be accurate. As unflattering a portrayal as it gives, and as wealthy as Zuckerberg is, the filmmakers certainly ran a risk of being sued for slander if they made a misstep. This legal risk alone makes the producers heroic.

Movie review continues HERE.

Charging youth as adults costly and unjust, study finds

Waiving youth into adult courts for prosecution is unscientific, racially biased, and may increase crime, according to a Maryland study released today by the Just Kids Partnership to End the Automatic Prosecution of Youth as Adults.

The researchers tracked 135 youths who were charged as adults in Baltimore. They found that more than two-thirds were ultimately sent back to the juvenile system or had their cases dismissed outright, but not before spending an average of five months in adult jail. Only 10 percent ended up in adult prison. African American youth were disproportionately likely to be transferred to adult court.

The study comes as Maryland weighs whether or not to spend more than $100 million on a new facility for youth awaiting trial in adult court.

Based on their findings, the researchers recommend reducing the prosecution of youths in adult courts, and instead providing teenagers with more treatment opportunities.

"Youth who go into the adult correction system are significantly more likely to commit further and more violent crime than their peers who are treated as juveniles," they state.

The Just Kids Partnership is a consortium consisting of the Public Justice Center, Community Law in Action and United Parents of Incarcerated Children and Youth.

The full report is available HERE. An executive summary is HERE. Additional background is available at the Just Kids Partnership website.

Reader feedback on latest actuarial article

I want to draw readers' attention to a reaction I received today from Brian Abbott, a psychologist and a leading expert on actuarial risk assessment of sex offenders. He has posted an insightful comment on last week's blog essay, "Static redux: Sandgropers jumping off rickety ship." Whereas I was sanguine in my commentary on a new article critiquing the Static-99 family of instruments ("Alice in Actuarial-Land" by Shoba Sreenivasan, Linda Weinberger, Allen Frances, and Sarah Cusworth-Walker), Dr. Abbott expressed dismay. He sees it as a bold and dangerous attempt to legitimize the pseudoscientific clinical-actuarial approach. As he points out, with actuarial instruments forecasting lower risks of sexual recidivism, government evaluators are finding it increasingly difficult to predict the high levels of danger required for civil commitment. They may thus resort to pseudoscientific logic to inflate sex offenders' risk scores. Dr. Abbott's comment is located HERE. I invite you all to share your comments as well.

Courts should admit if "emperor wears no clothes"

SVP evidence must meet legal admissibility standards,
cautions high court justice in Washington

The Supreme Court of Washington has made it easier for some civilly committed Sexually Violent Predators (SVP's) to challenge their detentions. In a 5-4 ruling, the high court struck down a state law restricting what types of evidence a sex offender may introduce to show he is no longer dangerous.

Under the invalidated law, an offender could only petition for release based on reduced risk due to either treatment or permanent physiological changes. An offender could not claim, for example, that he no longer met the legal criteria for civil commitment (having a mental disorder that made him more likely than not to reoffend sexually) based solely on advancing age or maturation, even though these factors are strongly associated with desistance.

Most intriguing was the concurring opinion of Justice Richard B. Sanders. The justice rebuked the trial judge for abdicating his role as gatekeeper to ensure that scientific evidence admitted in court is reliable and valid. The trial court accepted the testimony of the government experts without considering whether they were scientifically valid, while summarily dismissing the opinions of the lone defense expert, Sanders noted.

In his declaration for the defense, psychiatrist Lee Coleman had challenged the science underlying the prosecution witnesses' risk assessments, diagnoses, and opinions. In particular, he disputed the legitimacy of the makeshift diagnosis of "paraphilia, not otherwise specified," i.e., "sexual activity with non-consenting females" assigned to convicted rapist David McCuistion:

Dr. [Carole] DeMarco claims that 'Paraphilia Not Otherwise Specified (Nonconsent) is an accepted diagnosis among practitioners knowledgeable about sexual offenders.' I believe it would be more accurate to say that the only practitioners who use this label are those who perform SVP evaluations. But regardless of how many use it, the so-called 'diagnosis' is obviously nothing more than doublespeak for the crime of rape. If this is the best the evaluators are capable of doing … surely it means that the entire evaluation process is a sham created to fulfill legal and legislative agendas.

As a 'dynamic risk factor' (characteristics that could change over time, as opposed to the static nature of one's criminal past), she wrote that Mr. McCuistion 'continues to associate with individuals who have an antisocial attitude and engage in a high level of fault finding with SCC rules and policies indicating an antisocial lifestyle.' Given the universal recognition by SVP inmates that the evaluation and treatment program is based on a law that has no recognized basis in science or psychology, it is totally unacceptable to equate 'fault finding with SCC rules and policies' with risk of sexual re-offending.

Commented Justice Sanders:

The trial court accepted the State experts' testimony without considering whether they were valid under Frye [the evidence admissibility standard in Washington] but proceeded to reject Dr. Coleman’s testimony out of hand:

'Dr. Coleman’s report and conclusion are contrary to the conclusions reached by previous examiners of Mr. McCuistion, and is essentially a re-argument of the original finding that Mr. McCuistion is a sexually violent predator. That Dr. Coleman disagrees with past examiners and fact-finders does not, itself, make his opinion the correct one.'

And yet that doesn’t make his opinion wrong either….

Where a person is deprived of his or her freedom based upon opinion testimony lacking scientific credibility, reliability, and accepted methodology, courts must step forward and announce with the courage of a small child that the Emperor wears no clothes.

No clothes, huh? Is it possible that the times they are a-changin'?

The majority opinion, concurring opinion, and dissent (saying the administrative costs and burdens of this ruling are too high) are all available online. Dr. Coleman's declaration is attached as Appendix A to Justice Sanders' concurring opinion.

Mother California: Essential prison reading

Imagine serving 30 years in prison with no end in sight. Would you survive? Would you not just survive, but actually grow as a person?

While serving a sentence of life without the possibility of parole ("the other death sentence") in California's massive prison system, Kenneth Hartman morphed from a violent killer, "a 19-year-old thug from the blasted wasteland of South Los Angeles' urban, post-industrial decay," to an award-winning author, philosopher, and prison reformer.

The subtitle of his autobiography is "A Story of Redemption Behind Bars." But Mother California tells a story much bigger than one man's personal odyssey. Through Hartman, we witness how three decades of irrational, tough-on-crime rhetoric has plunged California's prisons into an abyss of despair, violence, and criminal recidivism, all the while emptying the state's financial coffers.

Take Christmas. When Hartman first came to prison, in the early 1980s, the cellblocks were decked out in holiday lights, wreaths, and trees. Prisoners decorated their cells with holiday cards from loved ones, the Salvation Army donated candy and nuts, and, in the visiting room, "one of the old guys dressed up as Santa Claus for pictures with the kids and the young wives."

Within 15 years, holidays had been banished. Santa was gone, along with the decorations and treats. Every day resembled the last in its dreary monotony. "The walls are the same unadorned concrete every day of the year. My first Christmas at Tehachapi, one of the guards got on the public address system to tell us about the great meal he would soon be enjoying, the time he would be spending with his family. We didn't deserve to be with our families, he ranted, we were just where we belonged and have a hearty Merry fucking Christmas."

Watching helplessly as his beloved weight-training equipment is loaded onto the back of a flatbed truck, Hartman realizes "how far the advocates of punishment-for-the-sake-of-inflicting pain will go to turn the clock back" and erase the progressive reforms won by prisoners during the 1970s.

Hartman articulately chronicles the divergent impacts of this tough-on-crime politicking on daily life in prison. At Tehachapi, one of the newer prisons, guards are hyper-aggressive and controlling. At Lancaster, in contrast, the guards have ceded control, locking themselves in their control centers and allowing unchecked chaos and violence. The chapel becomes a crack house, the odors of marijuana and pruno (home-made liquor) fill the air, and almost everyone is high and destitute.

The golden triad

That is how Hartman, in one of his many philosophical essays on the prison system, labels the three proven ingredients to reducing criminal recidivism:

• Increased and enhanced visiting to build and maintain family ties
• Higher education
• Quality drug and alcohol treatment

Despite (or perhaps because of?) their effectiveness, the special-interest prison lobby has vigorously sabotaged all three, he writes:

In my 29 years, visiting has deteriorated from a slightly unpleasant experience to a hostile and traumatic acid bath that quite effectively destroys family ties.

Higher education is virtually nonexistent but for those few with the substantial resources needed to purchase it. In those rare cases where innovative ways have been found to bring education back into the prisons the special interest groups have mounted vicious campaigns to terminate the programs.

The opposition to drug and alcohol treatment, much more widely supported in the body politic, is subtler. Using the proven method of compulsory participation by the least amenable, those programs that are instituted are crippled in the normal chaos of prison.

All of this opposition stands behind the banner of protecting victims' rights, as if only the desire for revenge by past victims of crime matters, over even the potential losses of future victims.

The Honor Program

Determined to put his accumulated wisdom and principles into practice, Hartman worked with other prisoners and non-custody staff to design a special program at Lancaster Prison called the Honor Yard. Founded in 2000, the program provides a separate community for 600 men who have committed to living productive lives in which they give back to the community and make amends for past wrongdoings. They must commit to abstaining from gangs, violence, drugs, and racism.

In its first six years of operation, the Honor Program functioned without a single major violent incident, and saved the state millions of dollars. In the wake of its success, state Sen. Gloria Romero sponsored Senate Bill 299 to expand the program to other prisons. Gov. Arnold Schwarzegger, in his infinite wisdom, vetoed the bill.

Hartman's dream, according to a news article on the program, is to be able to live the remainder of his life in a violence-free environment where he can devote himself to his writing. One of his essays won a $10,000 writing prize, with the money going to his wife and daughter, conceived before California took away conjugal visit privileges from lifers. He is currently involved in a campaign to eliminate life sentences.

Instead of reading endless meaningless studies on psychopathy and such, we should spend more time in the real world, listening to articulate autodidacts like Hartman.

Kenneth Hartman's philosophical essays on prison are online HERE. More on the Honor Program, and efforts to save and expand it, is HERE. More on lifers in U.S. prisons is HERE.

If you enjoyed this review, I would appreciate your taking a quick moment to let me know by visiting my Amazon book review and click on "YES," this review was helpful.

Hat tip: Jules Burstein