Pornography sentence unconstitutionally cruel, judge rules

A must-read case for forensic psychologists  

"C.R." grew up in a chaotic, highly conflictual home. He was immature, socially klutzy, anxious and depressed. Friends introduced him to online pornography, readily accessible for free via peer-to-peer file sharing. He took to smoking marijuana and escaping into sexual fantasy. Between the ages of 15 and 19, he downloaded pornography, much of it involving boys ages 10-12, and shared files with other users.

When he was 19 years old, the FBI ensnared him in a sting and the world came crashing down. Under federal law, “C.R.” faced a statutory minimum of five years in prison.

Until Judge Jack B. Weinstein intervened, ruling that the 5-year minimum is unconstitutional in C.R.’s case, due to the youth’s age and immaturity.

The ruling is part of a crusade by Weinstein, one of the United States' most accomplished and respected jurists, against what he calls “the unnecessary cruelty of the law.” Previously, the 89-year-old federal judge in the Eastern District of New York led a similar campaign against rigid drug sentencing. 

Weinstein’s 401-page tome in United States v. C.R. should be on the required reading list of every forensic psychologist, tackling as it does many of the front-burner issues and controversies currently facing the field:

• Adolescent brain development and immaturity
• Risk for hands-on offending among pornography offenders
• The misuse of risk assessment instruments (including the circular reasoning involved in assigning an offender to the “high risk” group on the Static-99)
• The bogus disorder of “hebephilia” that you've heard about here
• Morality and prejudice masquerading as science

Before sentencing C.R., Weinstein ordered an evidentiary hearing that would enable him to determine how best to protect the community while not unnecessarily destroying the young man’s life. Well-known experts including Robert Prentky and Meg Kaplan testified about C.R.’s low risk of recidivism, the likelihood he would face abuse in prison, and the impact of adolescent immaturity on youths’ judgment.They are quoted at length, as is a prosecution psychologist who found C.R. to be at high risk based in part upon factually erroneous information (that C.R. had visited gay "glory holes").

Ultimately, the judge still imposed a prison sentence, but cut it in half to 30 months. A longer term "lacks any legitimate penological justification" and violates the 8th Amendment’s bar on cruel and unusual punishment, he wrote:

This case illustrates some of the troubling problems in sentencing adolescents who download child pornography on a file-sharing computer service. Posed is the question: To protect the public and the abused children who are shown in a sexually explicit manner in computer images, do we need to destroy defendants like C.R.? ... C.R. should be prepared to assume a useful law-abiding life rather than one of a broken and dangerous, ex-prisoner deviant. Were it not for Congress‘s strongly expressed preference for incarceration in these cases, the court would have imposed a long term of supervised release with medical treatment outside of prison.

Weinstein echoed the reasoning of the U.S. Supreme Court in two recent back-to-back cases involving juveniles. One (Roper v Simmons) invalidated the death penalty for juveniles; the other (Graham v Florida) held that juveniles could not be sentenced to life without the possibility of parole for crimes other than homicide.

This is not Weinstein's first foray into the thicket of child pornography sentencing. Last year, he vacated the conviction of Pietro Polizzi on the grounds that the jury had a right to know what punishment a guilty verdict would produce. Several jurors told the judge they might not have convicted the married father of five had they known he would have gone to prison for at least five years.

"I don’t approve of child pornography, obviously,” Judge Weinstein told the New York Times at the time. But he also said he did not believe that those who merely view images, as opposed to producing or selling them, present a significant threat to children. “We’re destroying lives unnecessarily. At the most, they should be receiving treatment and supervision.”

Although Weinstein is more outspoken than some, an increasing number of judges are balking at giving pornography viewers longer prison terms than actual child molesters and rapists often get. “Across the country, an increasing number of federal judges [are] criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade,” noted the Times report.

In his erudite, data-rich dissection of pornography and risk, Weinstein cites everyone from Malcolm Gladwell to Alex Kotlowitz (long one of my favorite authors) and Laurence Steinberg, and to our very own forensic psychology colleagues John Monahan, Jennifer Skeem, and Charles Patrick Ewing (whose newest book is another must-read).

Weinstein, by the way, has had a fascinating and colorful career. He put himself through Brooklyn College by working on the docks in New York Harbor before forging multiple and overlapping careers as a teacher, lawyer, and public servant. Back in his early days of lawyering, he helped the NAACP with the landmark desegregation case of Brown v. Board of Education. As a jurist, he’s handled many of the biggest mass tort cases in the United States, involving Agent Orange, asbestos, tobacco, breast implants, DES, Zyprexa, and handguns. More on Judge Weinstein’s interesting life and career is HERE.

I have made the case of United States v. C.R. available for download HERE. Again, I recommend that you read it for yourself. It's a great primer, packed full of useful information and references -- many of them available online.

Should social workers do juvenile competency evaluations?

California Judicial Council soliciting input through June 20 on forensic qualifications

Photo credit: Richard Ross

As many of you may know, California just enacted a cutting-edge law (W&I 709) requiring that developmental immaturity must be considered in determining a juvenile's competency to stand trial. Now, the state's Judicial Council is tasked with developing new Rules of Court (5.645) to help implement the law, including guidelines about who qualifies as an expert in juvenile competency proceedings.

The Council has issued a specific call for comments on whether the court should expand the list of accepted experts from psychologists and psychiatrists only, to include other professionals such as social workers.

The deadline to submit a written comment is June 20. Comments may be submitted via email, mail or fax.(Be sure to follow the instructions, available HERE.)

Currently, five California superior courts have adopted protocols regarding juvenile competency matters (available HERE). The Superior Courts of San Diego and Sacramento counties require the appointment of a psychologist or psychiatrist, while San Francisco County appoints a psychologist, and the Los Angeles and Santa Clara courts use an expert panel.

My thoughts

My concern with expanding the eligible professions is that, although there are many fine social workers in the field, their education and training does not prepare them to perform state-of-the-science assessments in this complex area. Social work programs do not provide the education and training in psychometric testing, statistics or differential diagnosis that is routine in psychology graduate programs. As I wrote in my formal comment to the Judicial Council:

Often, competency becomes an issue with children due to complex constellations of underlying deficits, such as neurological insults, neurodevelopmental impairments, psychiatric disturbances, intellectual or other cognitive limitations, and learning disabilities. In such cases, ferreting out what is going on requires the proper selection, administration, and interpretation of an ever-changing array of psychological tests and measures….

Because social work programs do not offer the extensive training in differential diagnosis that is standard in psychology and psychiatry training programs, social workers as a rule are not equipped to adequately sort through complex differential diagnostic issues and assess their functional impact on a juvenile’s competency to stand trial.

The other aspect of the proposal about which I expressed reservations was section (v), which would require evaluators to "be familiar with … treatment, training and programs for the attainment of competency available to children and adolescents in California."

In my opinion, this goes beyond the bounds of a typical forensic psychology evaluation, and may lead to unintended negative consequences. As I wrote to the Council:

In practice, this could require an evaluator to take on the onerous burden of ferreting out the available services in each jurisdiction in which he or she practices. The task of locating appropriate services for incompetent minors properly belongs to local probation officers, child welfare workers, regional centers, and others, not forensic evaluators….

Well-qualified evaluators are already reluctant to conduct court-ordered evaluations due to the pittance that most counties pay. Mandating additional burdens that do not exist for other types of forensic work could inadvertently contribute to poor practice by leaving only shoddy "drive-by" evaluators willing to take on these complex and time-consuming cases.

I encourage interested professionals to submit comments right away, as the deadline is looming. In the near future, the Council plans to seek public comment on other aspects of this new law, and I will try to provide you with advance notice on this blog.

PCL-R inventor wringing his hands over forensic misuse

The first part of NPR's series on the psychopathy industry aired today and the transcript is now online (HERE), along with my sidebar essay on the cultural history of psychopathy (HERE). Most fascinating to me is recent efforts by Robert Hare, inventor of the popular Psychopathy Checklist-Revised (PCL-R), to distance himself from growing evidence of its misuse in forensic contexts:

Robert Dixon Jr.,
featured in the NPR story

While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab.

"I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society," Hare says. "It shouldn't work that way."

In fact, Hare says, he is so disturbed by some of what he has seen as he has traveled through America training psychologists in use of the PCL-R, that he sometimes has trouble focusing on the way his test could be affecting people's lives.

"I think about this periodically, and I probably try to suppress it," Hare says. "I do disassociate myself from it. I mean, if I thought about every potential use or misuse of the instrument, I probably wouldn't sleep at all."

"Alarming world of globe-trotting experts"

Hare goes even further in a series of interviews with journalist Jon Ronson, author of the new book, The Psychopath Test. Over late-night drinks at hotel bars, he tells the author that he is especially chagrined at the PCL-R’s use by poorly trained and biased evaluators in Sexually Violent Predator (SVP) cases in the United States:

“ ‘I tried to train some of the people who administer it. They were sitting around, twiddling their thumbs, rolling their eyes, doodling, cutting their fingernails – these were people who were going to use it.’

“A Coalinga psychiatrist, Michael Freer, told the Los Angeles Times in 2007 that more than a third of Coalinga ‘individuals’ (as the inmates there are called) had been misdiagnosed as violent predators and would in fact pose no threat to the public if released. ‘They did their time, and suddenly they are picked up again and shipped off to a state hospital for essentially an indeterminate period of time,’ Freer said. ‘To get out they have to demonstrate that they are no longer a risk, which can be a very high standard. So, yeah, they do have grounds to be very upset.’

“In the executive bar, Bob Hare continued. He told me of an alarming world of globe-trotting experts, forensic psychologists, criminal profilers, traveling the planet armed with nothing much more than a Certificate of Attendance, just like the one I had. These people might have influence inside parole hearings, death penalty hearings, serial-killer incident rooms, and on and on. I think he saw his checklist as something pure – innocent as only science can be – but the humans who administered it as masses of weird prejudices and crazy dispositions.”

If Hare’s conscience is really bothering him, he could do more than try to distance himself from miscarriages of justice in interviews with journalists after the fact. He could stop training the legions of government SVP evaluators in the United States, and/or issue a policy statement about the misuse of his instrument in court.

Of course, that would mean a significant loss of revenue. Even Ronson, the author of The Psychopath Test, had to pay 400 pounds (media discount) to gain access to Hare at a 3-day PCL-R training course. And that didn’t include the cost of the 30-page manual, another 361 pounds.

My review of The Psychopath Test at Amazon:

The power to label is intoxicating. That’s what Jon Ronson found after taking a 3-day training that gave him license to diagnose people as psychopaths. Armed with a 40-item checklist, the journalist went gallivanting around the globe, sniffing out prospective psychopaths from convicted murderers to corporate job-slashers and Haitian war criminals. Ronson’s chronicle of his two-year quest for the elusive psychopath is at times whimsical, sometimes laugh-out-loud funny, and always riveting.

The review continues HERE. (As always, if you enjoy it, please click “yes.”)

NPR series on psychopathy in court

This Thursday and Friday, NPR is airing a 2-part series about the controversial use of psychopathy in court.

In Part I on All Things Considered, psychology and science reporter Alix Spiegel shows the profound negative consequences of psychopathy on the lives of those so designated. She profiles a California prisoner whose friends and family do not believe he is a psychopath, but who will likely never win parole due to that label.

Part II (on Friday) examines the history of the Psychopathy Checklist (PCL-R) and explores how it became so entrenched in the criminal justice system. Dan Murrie’s research questioning the reliability of the PCL in adversarial contexts is highlighted. Robert Hare also expresses concerns about the way his tool is being used in court, and the corrupting influences of the adversarial system.

The show will be complemented by an online debate, “Does the PCL-R test have value in the criminal justice system?” I am one of the featured experts on the panel, so I hope some of you will visit the website; I will provide a link just as soon as it goes live.

For those of you who would rather tune in once, the show is also airing as a single piece on Friday on the radio program This American Life, and you will be able to download the podcast there as well.

Part I of the 2-part series is HERE; the online debate is HERE.

Steffan's Alerts #5: Miranda warnings, child custody, and more

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

Global prevalence of child sexual abuse

Marije Stoltenborgh and colleagues, in a new issue of Child Maltreatment, report the prevalence of childhood sexual abuse based on over 9 million subjects extracted from 217 publications from various countries.

Public views of child custody arrangements

Using hypothetical cases, Sanford Braver and colleagues examined judgments of various custody arrangements by jury-eligible citizens in Arizona. Reporting their findings in Psychology, Public Policy, and Law, the authors suggest that a significant gap exists between the judgments of the public and what occurs in the family law system.

Miranda rights: What don't suspects understand?

In the same issue of Psychology, Public Policy, and Law, Richard Rogers and colleagues continue their research on defendants’ comprehension of Miranda warnings. Based on analyses of 416 pretrial defendants’ understanding of current Miranda terminology, the authors offer recommendations to simplify Miranda phrases so that persons with academic and cognitive limitations may more easily understand their rights at the time of interrogation.

Accuracy of methods for diagnosing pedophilia and assessing sexual recidivism

Robin Wilson and colleagues examine the accuracy of four methods for assessing pedophilia and appraising risk of recidivism among a sample of 130 child sexual abusers. They report their findings in a new issue of Sexual Abuse: A Journal of Research and Treatment.

Availability of treatment programs in juvenile justice facilities

In a new issue of Child and Youth Services Review, Rebecca Yazzie analyzes the types of treatment programs available in the United States through a sample of 3,163 juvenile facilities. Compared to public facilities, private facilities appeared better equipped, with more mental health staff and treatment programs. Facilities that offer family counseling reported a lower incidence of suicide.

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.

California prisons 'cruel and unusual,' U.S. high court rules

In a historic decision, the Supreme Court of the United States has ruled that prison conditions in California are so bad that they violate the U.S. Constitution's ban on cruel and unusual punishment. Opining that the prison system produces "needless suffering and death" through its failure to deliver minimal medical and mental health care to serioiusly ill prisoners, the court ordered California to cut its massive prison population by more than 30,000 prisoners (still 137.5 percent over capacity) within the next two years. Rather than releasing prisoners outright, the state can ship them to other states or keep them in county jails. As Adam Liptak of the New York Times reports:

The majority opinion included photographs of inmates crowded into open gymnasium-style rooms and what Justice Kennedy described as 'telephone-booth-sized cages without toilets' used to house suicidal inmates. Suicide rates in the state's prisons, Justice Kennedy wrote, have been 80 percent higher than the national average. A lower court in the case said it was 'an uncontested fact' that 'an inmate in one of California’s prisons needlessly dies every six or seven days due to constitutional deficiencies.'

The court's ruling in Brown v. Plata is HERE.