Three Strikes and Civil Rights

Guest post by Bill Boyarsky*

The racism within the police-court-prison system is one of America’s most neglected evils, as is the impact it has on the poor African-American and Latino communities that are home for so many released convicts.

I’m wondering if I’ve already lost some of my readers. Who cares about criminals? Some of the journalists I met last week said they get the same reaction from their editors.


I joined them at a symposium sponsored by New York’s John Jay College of Criminal Justice’s Center on Media, Crime and Justice designed to encourage better reporting of this neglected field…. My fellow attendees were journalists working for newspapers, radio stations and online operations. Some were staff reporters, others freelancers….

The main topic was how to report the long and repetitive controversy over California’s three-strikes law, a draconian statute approved by the voters in 1994 after the horrible murder of 12-year-old Polly Klass by an ex-convict. The killer had been released from prison after serving eight years of a 16-year sentence for a series of armed robberies. Previously, he served six years in prison after he attempted a rape, brutally assaulted a woman in the course of a burglary, and tried to kidnap another woman at gunpoint.

The solution to this was based on a sports analogy, except, in this case, the third strike means you’re in—in prison for a long time and often for a small offense. The law imposes a mandatory sentence of 25 years to life for anyone convicted of a felony if that person has two previous felony convictions. The third-strikes sentence has been imposed for nonviolent offenses—such as stealing videos, golf clubs or even a pizza—permitted by the law to be raised to felony status.

The discussions ranged far beyond three-strikes. Through all the conversations, an underlying issue, to me, was racism.

Racism has always been a powerful force in the web of police, prosecutors, judges, prison guards and wardens who make up the criminal justice system.

But beginning in the 1980s the war on drugs made it worse, with repeated raids on poor African-American and Latino neighborhoods while the police and prosecutors generally ignored economically better-off whites using cocaine in the safety of their homes.

Connie Rice, a civil rights attorney who heads the Advancement Project, has long fought for racial justice by police, prosecutors and the courts, as well as in the schools and other institutions. She told the journalists the war on drugs was based on crime suppression in poor, minority areas. Police stop young men and arrest them when they suspect drug possession. Arrests add up over the years to a third strike.

The three-strikes prosecutions, said Erwin Chemerinsky, dean of the University of California Irvine School of Law, focus disproportionately on African-Americans and Latinos. Thirty-seven percent of such inmates are African-Americans and 33 percent are Latinos. These statistics are in line with national figures showing that African-Americans and Latinos outnumber whites in prison by a margin of almost 2-to-1.

Veteran activist Tom Hayden, an expert on gangs, talked about the lack of jobs confronting convicts when they leave prison. A one-striker, returned to the old neighborhood unemployed and without prospects, is just a crime away from being a two-striker and then committing the third. “Deindustrialization has eliminated jobs people took after prison,” he said.

The journalists’ challenge, said Connie Rice, is “to connect the dots,” to put all these elements into a coherent, compelling story.

That’s a big challenge, and journalism may not be up to it. At the end of the meeting, the hard facts of life in today’s media climate intruded. One reporter said her editors weren’t interested in the subject because they didn’t think the readers cared. Another was a court reporter who wanted to explore how the system works on the streets. But her beat includes two courthouses, separated by many miles in a sprawling county. I doubt whether she has much time for prowling the streets. A third reporter talked about the strains imposed on the remaining members of a staff hit by layoffs.

Add to those obstacles Internet editors’ demands for quick and numerous short stories that will produce more hits and page views.

Despite the challenges, I left the room tremendously impressed with the energy of the reporters. One said he had thought of 21 story ideas during the symposium.

The journalists are today’s civil rights reporters, engaged in a job as big and challenging, but much more unglamorous, than that of an earlier generation. During the civil rights movement, it was easy to get people worked up about an African-American kid barred from a school or a church burned down. Today, it is almost impossible to stimulate the interest of editors and audiences in a black or Latino ex-convict hoping for a fresh chance rather than a third strike.

*Originally posted at Truthdig. Re-posted with written permission from Bill Boyarsky. 

Bill Boyarsky is a lecturer in journalism at the University of Southern California’s Annenberg School for Communication and is vice president of the Los Angeles City Ethics Commission. A former city editor, columnist, bureau chief and political writer for the Los Angeles Times , he was a member of reporting teams that won three Pulitzer prizes. In 2010, the Los Angeles Press Club honored his political columns at Truthdig by naming him as Online Journalist of the Year.

Psychiatry rejects new rape disorder for DSM-5

Regular blog readers will be familiar with the heated battle over a controversial proposed mental condition of "Paraphilic Coercive Disorder" for rapists. Now, the American Psychiatric Association has issued its latest draft of the DSM-5 diagnostic manual, with the condition relegated to the appendix. The proposal was favored by psychologists working for the government in Sexually Violent Predator (SVP) civil commitment cases, as it would have made it far easier to testify that sex offenders are mentally ill. It had met with strong opposition from scientists, including premier rape researcher Raymond Knight of Brandeis University.

Among other outspoken opponents was psychiatrist Allen Frances, an emeritus professor from Duke University who chaired the DSM-IV Task Force. In blog posts soon to go live at the Psychiatric Times and Psychology Today, he cautions that the battle is not over: The current attempt to place the pseudoscientific condition into the appendix of the DSM 5 as a condition warranting further study is still a mistake.

"Important message"

Dr. Frances said the rejection should send a strong message to those involved in the SVP civil commitment industry:

Dr. Allen Frances

The evaluators, prosecutors, public defenders, judges, and juries must all recognize that the act of being a rapist almost always is an indication of criminality, not of mental disorder. This now makes four DSM's (DSM III, DSM IIIR, DSM IV, DSM 5) that have unanimously rejected the concept that rape is a mental illness. Rapists need to receive longer prison sentences, not psychiatric hospitalizations that are constitutionally quite questionable.

This DSM 5 rejection has huge consequences both for forensic psychiatry and for the legal system. If "coercive paraphilia" had been included as a mental disorder in DSM 5, rapists would be routinely subject to involuntary psychiatric commitment once their prison sentence had been completed. While such continued psychiatric incarceration makes sense from a public safety standpoint, misusing psychiatric diagnosis has grave risks that greatly outweigh the gain…. Preventive psychiatric detention is a slippery slope with possibly disastrous future consequences for both psychiatry and the law. If we ignore the civil rights of rapists today, we risk someday following the lead of other countries in abusing psychiatric commitment to punish political dissent and suppress individual difference.

This DSM 5 rejection of rape as mental disorder will hopefully call attention to, and further undercut, the widespread misuse in SVP hearings of the fake diagnosis "Paraphilia Not Otherwise Specified, nonconsent". Mental health evaluators working for the state have badly misread the DSM definition of Paraphilia and have misapplied it to rapists to facilitate their psychiatric incarceration. They have disregarded the fact that we deliberately excluded rape as an example of Paraphilia NOS in order to avoid such backdoor misuse. Not Otherwise Specified diagnoses are included in DSM only for clinical convenience and are inherently too idiosyncratic and unreliable to be used in consequential forensic proceedings.

Exclude coercive paraphilia from appendix

All along, promoters of this new diagnosis have conceded that this would be a tough sell, given its lack of scientific foundation. Indeed, they said publicly that they would consider it a victory if they could even get paraphilic coercive disorder included in the appendix of the upcoming diagnostic manual (due out in mid-2013), as a condition meriting further study. But as Dr. Frances points out, even that would be a major error:

The sexual disorders work group proposes placing "coercive paraphilia" in an appendix for disorders requiring further research. We created such an appendix for DSM IV. It was meant as a placement for proposed new mental disorders that were clearly not suitable for inclusion in the official body of the manual, but might nonetheless be of some interest to clinicians and researchers….

If "Coercive Paraphilia" were like the average rejected DSM suggestion, it would similarly make sense to park it in the appendix -- as has been suggested by the DSM 5 sexual disorders work group. This might facilitate the work of researchers and also provide some guidance to clinicians....

But "coercive paraphilia" is not the average rejected DSM diagnosis. It has been, and is continuing to be, badly misused to facilitate what amounts to an unconstitutional abuse of psychiatry. Whether naively or purposefully, many SVP evaluators continue to widely misapply the concept that rape signifies mental disorder and to inappropriately use NOS categories where they do not belong in forensic hearings.

Including "Coercive Paraphilia" in the DSM 5 appendix might confer some unintended and undeserved back-door legal legitimacy on a disavowed psychiatric construct. Little would be gained by such inclusion and the risks of promoting continued sloppy psychiatric diagnosis and questionable legal proceedings are simply not worth taking. The rejection of rape as grounds for mental disorder must be unequivocal in order to eliminate any possible ambiguity and harmful confusion. We did not include any reference to "coercive paraphilia" in DSM IV and it should not find its way in any form, however humble and unofficial, into DSM 5. 

If you agree that this pseudoscientific condition needs to be placed in the wastebasket once and for all, now is the time to speak up. The current public comment period ends June 15. While you’re at it, you might want to state your opposition to a couple of the other controversial proposals with potential for profound negative consequences in the forensic realm – pedohebephilia and hypersexuality.

Postscript: Thanks to the suggestion of an alert reader, I have added the direct links to the DSM-5 comments pages. You must register in order to submit a comment.

• Click HERE to comment on the proposed diagnosis of Pedohebephilia.
• Click HERE to comment on the proposed diagnosis of Paraphillic Coercive Disorder.

Related posts:

• Psychiatrists ramp up opposition to forensic misuse of DSM: "Pedohebephilia" would make bad situation worse, they warn (March 10, 2011)
• Europeans first to shoot down controversial paraphilia (Oct 26, 2010)
• Psychiatrists vote no on controversial paraphilias (Oct. 24, 2010)
• Rape as psychiatric illness: Battle heats up (June 24, 2010)
• Latest hebephilia critiques: Point-counterpoint (March 12, 2010)
• More prominent voices join chorus of DSM-5 critics (March 1, 2010)
• DSM-V: Will shoddy manual implode years before launch date? (Feb. 20, 2010)
• New Scientist expose of psychiatry’s "civil war" (Dec. 10, 2009)
• Scientist razes proposed "Paraphilic Coercive Disorder" (Nov. 6, 2009)
• Hebephilia struck by third blow: Down but not out? (June 5, 2009)
• Wrangling over psychiatry's bible (Nov 16, 2008)
• DSM makeover: What will they come up with next? (Oct 13, 2008)
• Invasion of the hebephile hunters (Oct 31, 2007)

Video: Confessions of a BigPharma Rep

Click on this caption to view YouTube video

I spent 15 years in this industry. I was one of the best of the best. But … the industry has run amok. We are at a severe crossroads in this nation. We have got to take our power back.

ATSA issues call for change in sex offender policy

The Association for the Treatment of Sexual Abusers has just issued a major policy paper calling for a shift in public policy toward sex offending. The balance has tipped too far toward criminal justice punishments, causing unintended consequences such as families who fear coming forward to report sexual abuse, the paper emphasizes.

Experts agree that a criminal justice response alone cannot prevent sexual abuse or keep communities safe. Yet, tougher sentencing and increased monitoring of sex offenders are fully funded in many states, while victim services and prevention programs are woefully underfunded.

Key recommendations of the 54-page policy statement include:

1. Design and implement evidence-informed policy.
   
   
2. Develop successful community policies that expand the notion of what constitutes abuser accountability; encourage community responsibility and healing; and provide safety, restitution, healing, and avenues for input for victims.
   
   
3. Integrate what is known about perpetration into prevention programs, victim services, and public education.

The reported is co-authored by Joan Tabachnick, a well-known educator on sexual violence prevention, and Alisa Klein, ATSA's public policy consultant. It was partly funded by a grant from the Ms. Foundation for Women.

The introductory quote from Eleanor Roosevelt makes me optimistic that this may signal a major shift for ATSA, which has significant legislative influence around the United States, in the direction of primary prevention.

When will our consciences grow so tender that we will
act to prevent human misery rather than avenge it?

-- Eleanor Roosevelt

Steffan's Alerts #4: Supermax, school shooters and Asperger's

Click on a title to read the article abstract; click on a highlighted author's name to request the full article.

Ethics of solitary confinement and supermax prisons

The Journal of Forensic Psychology Practice has published online a new issue focusing on ethics in criminal justice settings. Sharon Shalev offers an analysis of ethics in solitary confinement and supermax prisons and calls for more active participation by health professionals in these settings.

Asperger’s Disorder and the criminal justice system

Criminology and Criminal Justice has published Laura Caulfield and Ann Browning’s review of the literature on the connection between Asperger’s Disorder and criminality as well as the criminal justice system’s understanding of the condition.

Serious assaults on prison staff

In the Journal of Criminal Justice, Mark Cunningham and colleagues examine assaults on prison staff occurring over a 14 month period in a state correctional system. They provide data on prevalence of serious assaults and characteristics of inmate perpetrators and staff victims.

Are school shooters and suicide bombers more alike than different?

Adam Lankford and Nayab Hakim posit that they are, based on their review of school shooters in the United States and suicide bombers in the Middle East. Their article appears in Aggression and Violent Behavior.

Assessing intervention targets in sex offender treatment

Melissa Grady and colleagues review the psychometric properties and validation of measures commonly used in sexual offending treatment programs. The authors offer recommendations on measures to assess core treatment areas in their new article in Aggression and Violent Behavior.

Treatment for child sexual abuse victims and their families

In the same issue of Aggression and Violent Behavior, Poonam Tavkar and David Hanson offer information on effective treatment options for victims of child sexual abuse and their non-offending family members.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist based in Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

Judge upholds indefinite detention of California sex offenders

In a long-awaited ruling, a San Diego judge has ruled that indefinite detention of Sexually Violent Predators (SVP’s) is constitutional, even though other forensic patients are entitled to periodic reviews.

The ruling in the legal challenge by sex offender Richard McKee came after a 6-week hearing featuring experts from around the United States. The California Supreme Court had ordered the hearing, saying prosecutors must justify the differential treatment of SVP’s by proving that they are categorically different from two other types of forensic patients. The other two classes of   people who are civilly committed based on criminal behavior are Mentally Disordered Offenders (MDO’s), who are hospitalized when they come up for parole due to the immediacy of their threat of violence to the public, and persons found not guilty by reason of insanity (NGI). Jessica’s Law, enacted by voters in 2006, eliminated the right of committed sex offenders to a recommitment trial every two years.

In his 35-page ruling, Judge Michael Wellington said prosecutors had met their burden of proving that SVP’s are a distinct class that is harder to treat and more likely to commit additional sexual offenses.

After hearing from all of the experts, the judge acknowledged the significant controversies regarding the reliability of the paraphilia diagnoses, the accuracy of actuarial risk prediction instruments such as the Static-99, and the base rates of recidivism.

If anything is clear from the evidence presented in this case, it is that key factual matters are controversial. It is also apparent that the evidence of the relative danger the classes represent is analytically nuanced and deeply rooted in developing medical and psychological science.

Psychiatric diagnoses unreliable

Interestingly, the testimony of state hospital representatives lent some support to McKee’s legal challenge.

For example, Dr. Alan Abrams, Chief Psychiatrist at the California Medical Facility at Vacaville, testified that sex offender diagnoses (pedophilia and other paraphilias) are imprecise, and he has little confidence in their accuracy.

Two professionals from Coalinga, the state hospital built to house SVP’s, also testified that they favor having an external review every two years. Dr. Robert Withrow, the hospital’s acting medical director, said indeterminate terms reduce hope in both patients and staff, and discourage patients from signing up for treatment. Dr. Kasdorf, also from Coalinga, agreed. He said patients work harder in treatment and have more trust in the system when they know they will get a hearing.

This contradicted testimony by David Thornton of Wisconsin's Sand Ridge civil detention center, who argued that periodic recommitment hearings are disruptive to treatment.

Actuarials controversial

Among the most controversial issues emerging from the trial was the value of actuarial instruments -- and the much ballyhooed Static-99 in particular -- to assess sex offenders' risk of recidivism.

Mark Boccaccini, who teaches psychometrics and psychology and law at Sam Houston State University in Texas, testified about his research showing that "the Static-99 has only marginal to moderate predictive reliability, little greater than chance." Boccaccini also testified that use of a single good actuarial tool is a better predictor than the use of multiple tools. Many government evaluators in California report data from other actuarial tools in addition to the Static-99, such as the MnSOST-R and the RRASOR.

California need not be enlightened

McKee's attorneys, from the San Diego Public Defender's Office, were allowed to present evidence of two alternate models: Texas's outpatient halfway house model, and Canada's Circles of Support and Accountability, which provides support to ex-convicts returning to the community. But ultimately the judge ruled that testimony irrelevant:

The [Canadian] representative who testified presented an impressive picture of a successful community-based program. While this evidence was offered to show that less restrictive alternatives exist to SVP treatment, it fails to gain traction in an equal protection context…. California is not obligated to follow Texas or Canada's examples however much more enlightened they may seem.

Bottom line, ruled the judge, is that we must make do despite the controversies and uncertainties:

It is this court's conclusion that the evidence presented satisfies the People's burden of establishing, by a preponderance of the evidence, that the different treatment given to SVP's under Proposition 83 [Jessica's Law] is "based on a reasonable perception of the unique dangers that SVP's pose rather than a special stigma that SVP's bear in the eyes of California's electorate." (McKee, supra, at 1210.) The fact that the evidence supporting this may be subject to controversy does not detract from its reasonableness or from the validity of the legislative distinctions based on it.

As someone who evaluates all three categories of offenders here in California --SVP’s, MDO’s and NGI’s -- I was astonished by the argument that the harm caused by SVP’s is categorically greater than that inflicted by members of the other two categories. Violence need not be sexual to inflict severe trauma. Some of the most disturbing cases I have been involved in were MDO and NGI cases in which psychotic individuals inflicted horrific brutality, torture and even death upon women and children. In contrast, I know of one young man who is currently committed to Coalinga as an SVP whose only offenses since age 18 were two consensual affairs with late teenage girls, one of whom even testified on his behalf at trial (saying she initiated the relationship and was a willing participant). Triggering his civil detention was not any sexual recidivism, but rather a parole violation for smoking marijuana.

That's the problem with separating criminals into artificial groups and then pretending they are all the same.

The art on this page is by Ricky Romain, an internationally acclaimed human rights artist in the UK whose work focuses on themes of justice, alienation and sanctuary. Mr. Romain has kindly given permission to showcase his art here. I encourage you to check out his extensive online gallery (HERE).