USA Today probe: Federal SVP program crumbling

Constitutionality of lengthy sex offender detentions questioned

In the six years since the U.S. government authorized civil detention for dangerous sex offenders, it has sought to commit 136 men. Out of those, it has won civil commitments of only 15, or 11 percent.

In contrast, it has either lost, or been forced to dismiss, 61 cases, or 45 percent. (Actually, make that 62.*)

The remaining 59 men (43 percent) are languishing in prison, locked in legal limbo while their cases await resolution. (A 136th man has died.)

An investigative report by USA Today paints a picture of federal prosecutors and their prison "experts" as flailing in their efforts to establish that they qualify as "sexually dangerous persons." The legal criteria for this designation include a history of sexually violent conduct or child molestation and a mental illness that would cause the person difficulty in refraining from such behavior if released.

I put the word "expert" in quotes because many of the prison psychologists drafted to conduct these evaluations and testify in court had no prior experience and little or no training when the law went into effect. As the former psychologist in charge told USA Today, "It was rushed, and initially, I believe, quality probably suffered."

The government's cases "have crumbled because of weak evidence, faulty psychological evaluations and an inability to convince judges the detainees have mental conditions so serious they will find it difficult to not re-offend," the USA Today reports. Due to the low levels of recidivism among convicted sex offenders, "even when the government can prove someone committed sex crimes, it has struggled to show he remains dangerous."

Brad Heath and Amanda Muscavage reviewed thousands of pages of legal filings and interviewed dozens of attorneys, psychologists and former detainees for their report. Their interactive website includes links to 290 documents that they have made available online.

USA Today reporter Brad Heath

In one amazing quote, the psychologist who formerly ran the civil commitment program at Butner, the prison in North Carolina where the detainees are being held, all but admits that clinicians certified men as sexually dangerous even knowing that they did not meet the legal criteria.

"If we thought someone was really dangerous but there wasn't a strong legal case, we might very well still push it for the public interest," Anthony Jimenez said. "Hopefully justice is served in the end."

This is the "consequentialist" approach advocated by some in the sex offender industry, who claim that sexually violent predator cases represent an exception to general forensic practice, in which the end (protecting the public) justifies the means. If anything, however, the high stakes involved when people are threatened with a loss of liberty for something that they might do in the future would seem to demand the opposite approach, of even greater caution and transparency in diagnosis and risk assessment.

As Fred Berlin, the director of the Sexual Behaviors Consultation Unit at the Johns Hopkins Hospital, told the reporters: "We need to be very, very careful in a free society about a system in which a group of people can make statements that result in someone being deprived of their liberty for a future crime. If it's going to be done, it has to be done in a just and fair manner."

One reason for the government’s quagmire is that the federal cases are decided by a judge, rather than a jury. The seasoned judges hearing these cases are less likely to let their emotional reactions to past crimes, some of them pretty upsetting, distract them from the government's legal burden of proof.

For example, in the recent trial of Markis Revland (which I blogged about HERE), the offender had admitted to 149 child molestations. However, the judge found that the government had failed to prove that any of these incidents actually happened, or that Revland had a genuine mental illness.

Similarly, at the trial of Jeffrey Neuhauser (which I blogged about HERE), the judge rejected the controversial label of "hebephilia" as a legitimate mental illness qualifying someone for involuntary detention.

Unfortunately, because they only had access to records that have been made public, the USA Today team didn't have the 411 on some of the most egregious attempts to civilly detain low-risk prisoners. In one case I am familiar with, the government spent four years pursuing civil commitment against a man who was quite clearly not mentally ill, not a rapist, not a pedophile, and not dangerous, only to dismiss the case on the eve of trial.

This case points to an aspect that I wished the USA Today team had delved into: The unusual nature of the federal sex offender population. Although those eligible for civil commitment are supposed to be the worst of the worst, in reality Butner's population is heavily weighted toward an unlikely admixture of:

• Men convicted of possessing or distributing online child pornography, criminalized in 2003, and

• Native Americans.

The second group was the surprise to me. Unlike routine sex offenses that are prosecuted in state courts, crimes committed on Indian reservations are federal offenses.

Up until now, neither the U.S. Justice Department nor any watchdog agency has expressed public concern with whether the the federal civil commitment scheme, with its haphazard and capricious implementation, passes Constitutional muster.

Hopefully, this USA Today report will bring some much-needed attention to just what is going on down there in North Carolina.

Prior blog posts about the federal civil commitment prosecutions:

• Civil commitment petition against Butner, NC prisoner dismissed (Jan. 5, 2012)
• Federal judge tosses hebephilia as basis for civil detention (Jan. 20, 2012)

*The situation remains fluid. Right after the publication of the USA Today report five days ago, I have learned that the government lost yet another trial. This despite a 200-page report from a government expert assigning Steven Wiseman a panoply of mental disorders, including pedophilia, hebephilia and antisocial personality disorder.

Report: 2,500 serving life for crimes committed as children

United States far out of step with global community

Photo credit: Richard Ross, Juvenile in Justice

"Life without possibility of parole for a 13-year-old?!" a European colleague exclaimed, clearly disbelieving my story.

With the Land of the Free far out of step with the rest of the world, wonderment over our criminal justice policies is not uncommon internationally, but nowhere moreso than regarding our treatment of juveniles. We are the only country in the world who condemns juveniles to spend their entire life behind bars for crimes committed as children.

(We're also way out of step in our overall incarceration rates and in our penchant for solitary confinement, too, but that's another story -- see today's New York Times for more on that.)

Now, the first-ever national survey documents numbers far higher than even I imagined: Not just a handful, but more than 2,500 Americans are serving life without parole for crimes committed before the age of 18.

The oldest prisoner in the survey, now 67, has served half a century in prison so far. Just stop for a moment and ponder the implications of that.

The Sentencing Project's report, The Lives of Juvenile Lifers, comes just weeks before the U.S. Supreme Court hears oral arguments in the cases of two 14-year olds, Miller v. Alabama and Jackson v. Hobbs, which will address questions about the constitutionality of sentencing teens to life without the possibility of parole.

The national survey draws a portrait of severe disadvantage experienced by those serving life sentences without parole: Juvenile lifers were exposed to high levels of violence in their homes and their communities. Among the 45 girls serving life, three-fourths experienced sexual abuse before their crimes.

"Most juveniles serving life without parole sentences experienced trauma and neglect long before they engaged in their crimes," stated Ashley Nellis, research analyst of The Sentencing Project and author of the report. "The findings from this survey do not excuse the crimes committed but they help explain them. With time, rehabilitation and maturity, some of these youth could one day safely re-enter society and contribute positively to their families and their communities."

It will come as no surprise to most of you that race has much to do with who gets this draconian sentence. African Americans, who make up only 12 percent of the U.S. population, represented 60 percent of these children -- five times their proportion of the population, They are especially likely to be serving life without parole if they killed a white person.

From a fiscal standpoint alone, the report notes, the costs to states of incarcerating someone from their teens into their twilight years, when health costs rise steeply, is at least $2 million per prisoner.

The report advocates spending more money on prevention programs, instead of warehousing:

Instead of spending scarce resources on warehousing lives that could be transformed, we could be spending money more wisely, helping victims, and improving public safety. The nonpartisan American Law Institute recommends a “second look” after 10 years of imprisonment for life-sentenced youth. Notwithstanding the probability that most prisoners would not be granted release after only 10 years, if even one eligible inmate was determined to be ready for release upon this “second look,” this could save a typical state $1.8 million in needless incarceration. The money saved could instead be directed at prevention and intervention programs that have a strong evidence-base in lowering crime: preschool programs, parenting skills development, multi-systemic therapy, vocational training, substance abuse treatment, and a host of other effective interventions that would reduce crime and repair families and communities from damage associated with violence.

The full report, which I highly recommend, can be read or downloaded HERE.

Of related interest:

Another Bite at the Graham Cracker: The Supreme Court's Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs, by by Scott Hechinger, Georgetown Law Journal

Life, with dementia (New York Times article about the growing problem of dementia behind bars)
 

Hat tip: BRUCE

Internet stings: Does the fantasy defense hold water?

Scott Ritter, the former U.N. weapons inspector, was among the most vocal in insisting that the Bush administration fabricated its claims of “weapons of mass destruction” in order to justify the U.S. invasion of Iraq.

Ritter didn’t receive much public gratitude for his efforts to avert a costly and destructive war. Instead, he lost his career and his life gradually unraveled. Sinking deeper into depression, he fled into chat rooms, where he arranged rendezvous with adult women willing to watch him masturbate. At first, the meetings took place in cars or out-of-the-way places. Later, he switched to using a webcam, according to a profile by Matt Bai in the New York Times Magazine.

Then came that fateful day in February 2009 on which, in a Yahoo chat room for adults, he conversed with “Emily.” Although she told him she was 15, Emily was actually a small-town police officer, trolling for sexual predators online.

After doing his usual thing of masturbating in front of the webcam, Ritter announced he was signing off to take a shower.

Not so fast, retorted the officer:

"U know ur in a lot of trouble, don’t you? I’m a undercover police officer. U need to call me ASAP."

"Nah," Ritter typed back. "Your not 15. Yahoo is for 18 and over. It’s all fantasy. No crime."

"I have your phone number and I will be getting your IP address from Yahoo and your carrier," the officer responded. "We can do this 2 ways call me and you can turn yourself in at a latter date or I’ll get a warrant for you and come pick you up."

Ritter turned himself in. At his trial, he testified that he never for a moment believed he was talking to a minor; he assumed he was chatting with a bored housewife pretending to be 15.

Unfortunately for Ritter, jurors were told of his two prior arrests in similar cases, for which he was never prosecuted. In both cases, undercover police had lured him into meetings with fictional teenage girls. His claim that he knew that he was actually talking to undercover police in both cases likely strained the credulity of jurors, who convicted him in the case of “Emily.”

After hearing testimony from a government evaluator who called Ritter a sexually violent predator, the judge sentenced him late last year to a prison term of 18 months to five and a half years.

Fantasy defense succeeds in Queensland

Had it not been for his two earlier cases, Ritter’s defense might not have been all that far-fetched. After all, it worked for Darryl Plumridge of Queensland, Australia back in 2007.

Just like Ritter, Plumridge engaged in online chat with an undercover police officer posing as a teenage girl, in this case a 13-year-old with the screen name of “Erin Princess Baby.”

His defense was simple, according to a forthcoming article in Psychiatry, Psychology and Law: “He claimed that he knew the person with whom he was communicating was an older male and he was simply role playing.”

At trial, he testified that the covert police operative inadvertently supplied various content cues as to his true age and gender. For example, he signed off by saying "see ya later alligator," something no self-respecting 21st-century girl would say. Even more tellingly, he accidentally said he ("she") was at the office when "she" was supposed to be home from school, a glaring error that "she" immediately corrected.

Plumridge was acquitted. 

Study: Can people see through online deception?

Criminologist Robyn Lincoln of Bond University and forensic psychologist Ian R. Coyle, a Gold Coast practitioner and associate professor of law who testified in the case, decided to conduct a study to test the plausibility of Plumridge’s defense. Given the flat nature of internet communication, lacking in physical or tonal cues, can people actually deduce the true age and gender of someone who is pretending to be someone else?

Bottom line? Yes, they often can.

Lincoln and Coyle randomly assigned 46 students as either "deceivers" or "receivers." Each volunteer participant was met off-site and individually led to one of several private study locations, to preclude chance encounters with other participants. Deceivers were instructed to play the role of a 13-year-old girl. Receivers, in contrast, were misled to believe that they might be talking with individuals ranging in age from young children to the elderly. The pairs then chatted with each other for 30 minutes.

Despite the deceivers' best efforts, the majority of receivers were able to correctly identify the age and gender of the person with whom they were chatting, within a five-year bandwidth. None of the receivers believed they were talking to someone under the age of 16.

Thus, the claims of Plumridge and Ritter, that they knew they were chatting with adults but ignored that reality for purposes of fantasy role-playing, appear to have some scientific basis.

As law enforcement officers increasingly partake in trolling the internet for sexual predators in their spare time, it is probably only a matter of time before the Bond University study is introduced into court as evidence.

The study, "No one Knows you’re a Dog on the Internet: Implications for Proactive Police Investigation of Sexual Offenders," has been accepted for publication in Psychiatry, Psychology and Law. Correspondence may be directed to the first author, Robyn Lincoln.

On providing invited testimony in a legislative hearing

Reflections of a forensic psychologist

Floyd L. Jennings, JD, PhD, a clinical psychologist and attorney with a long-time clinical practice, currently works in county government to address the problems of the chronically mentally ill in the criminal justice system. In this capacity, he testified this week before a state legislative committee. Here, he reflects on that experience:

As special resource counsel to the Mental Health Division of the Harris County Public Defender (Houston, Texas), I was asked to provide testimony to the Texas House Subcommittee on Criminal Jurisprudence -- and did so on 29 February 2012.

For those having a history of legislative contact, serving as a witness in a hearing may be not at all discomforting. But to one for whom it was a new experience it was quite different.

First, the charge of the committee was to address whether alternative sentencing for mentally ill persons would be desirable. I argued simply that no changes in sentencing were needed -- because it would be difficult to craft, impossible to implement as it would trade on definitions of applicability, and moreover, courts already have the option of considering a defendant's state of mind as either mitigating or exculpating. 

On the other hand, diversion strategies for the lower-level misdemeanor offender could have enormous cost benefits and not compromise public safety. As well, pre-trial jail psychiatric services could be provided at modest direct cost through the use of physician extenders, and provide just that opportunity for stabilization necessary to enable rapid disposition of the matter, shortening any period of confinement. Finally, I argued that opportunities for post-disposition placement tiered to the acuity of the person would dramatically reduce recidivism.

Second, the affective dimensions of proffering testimony are profound -- the setting is elegant and the committee is seated above the witness much like justices in a supreme court. Witnesses are presented with questions for which there are often no easy answers, but to which some response must be made. My case was no exception.

Third, I learned that the lucidity of the argument may have little consequence. I was upbraided for failing to provide the legislature with specific means of cost savings through transfer of mental health services to the "private sector", although there is no private sector entity with the duty to provide mental health services to the chronically mentally ill on a statewide basis. And even if existing, no private sector entity has the resources to provide such. The tone of questions made it plain that legislators would prefer to have government provide all the goods and services that governments rightly provide, but at no cost, or with private sector funding.

Fourth, the venue of a public hearing is no occasion for stirring rhetoric or confrontation. I felt I should have reminded the committee that the present moment is not the occasion for abandonment of those functions which are uniquely governmental -- the care of the weakest members of society who are ill equipped to care for themselves. But in retrospect, and having viewed the videotape of the proceeding, it was far the better to have remained on task, and narrowly focused upon the committee's charge.

Finally, the message for psychologists, and mental health providers in general, is multifold: Involvement in the legislative process is to venture into unfamiliar and discomforting territory. However, social change is rarely achieved in a sterile environment, or one involving only warm and supportive exchanges. Moreover, to call upon governmental entities to fulfill their statutory duty as well as higher moral purpose, it to expose oneself to a certain amount of discord. In short, it goes with the territory. 

Would I do it again? 

I hope so, because in the course of the day I realized there were many I knew personally who were also participating in the process and there is also something rewarding about believing that perhaps you touched even one person having decision-making power to effectuate change.

The video of Dr. Jennings’ testimony is online HERE (beginning at 1:44:50).

Australians: Proposed paraphilia diagnoses 'dangerously circular'

Proposed expansions of the sexual disorders in the DSM are getting negative attention Down Under, with critics worried about the blurring of lines between bad behavior and mental illness, according to an article in today's Sydney Morning Herald.

The article in Australia's fourth-largest newspaper focuses on the expansion of pedophilia to include a hebephelic subtype and the placement of a "so-called paraphilic coercive disorder" (rape-proneness) in the upcoming manual's appendix as a proposed condition meriting further study.

Most mental health professionals in Australia use the American Psychiatric Association's diagnostic nomenclature, enshrined in the Diagnostic and Statistical Manual of Mental Disorders (DSM), rather than the International Classification of Diseases (IMD), the international standard promulgated by the World Health Organization.

Australian psychiatrists and psychologists worry that the sexual disorder expansions will pave the way for more civil detention, in violation of the United Nations' International Covenant on Civil and Political Rights or, conversely, may be used by sex offenders to minimize or avoid legal punishment.

Indeed, in a case currently in the news in Melbourne, a well-known chef who sexually exploited vulnerable 13- and 14-year-old girls has introduced expert testimony on hebephilia as a mitigating factor. At a presentencing hearing, a defense-retained psychiatrist testified that Simon Humble suffered from hebephilia and would find prison difficult.

In addition to quoting clinicians and scholars in Australia, reporter Amy Corderoy reached across the Pacific to discuss the issue with your faithful blogger, a recent guest in Queensland; her article links back to this blog.

Forensic psychologist blackballed over competency opinions

Imagine that every time you evaluated a criminal defendant, a partisan advocate was standing by your shoulder, ready to accuse you of bias if you thought the defendant was incompetent to stand trial. To make matters worse, imagine you were assigned those defendants most likely to be impaired, due to developmental disabilities that interfere with their ability to understand their cases or work with their attorneys.

That's the pressure being applied to Ray Hendrickson, a respected forensic psychologist in the state of Washington. Accusing him of bias, local prosecutors have succeeded in getting him barred from examining criminal defendants in one Washington county.

"We have made it very clear that we don't approve of Dr. Hendrickson,"' a representative of the Pierce County (Tacoma) prosecutor's office told the local newspaper.

Prosecutors accuse Hendrickson of endangering public safety by finding too many defendants incompetent to stand trial. Hendrickson is a lead psychologist and training director at the Center for Forensic Services at Western State Hospital, one of two state hospitals where criminal defendants undergo competency and sanity evaluations and treatment under Washington’s centralized system.

The beleaguered psychologist is one of the only in-house experts qualified to evaluate defendants who have developmental disabilities as well as mental illness. As a hospital spokesperson pointed out, such defendants often are found incompetent to stand trial because they are too impaired to understand their cases or assist their attorneys in their defense.

The hospital said it acceded to prosecutors' demands under duress, because state law entitles the prosecuting attorney to approve one of the two experts appointed to conduct a competency or sanity evaluation.

To challenge Hendrickson, prosecutors pored over felony cases in which defendants were found incompetent to stand trial. Hendrickson was involved in almost half of 30 such cases over a 3-year period, they claim. One case highlighted in the news involved a developmentally disabled man accused of stabbing his girlfriend. After being found unrestorable to competency, the man was ultimately released from the hospital.

(The local news article incorrectly states that defendants found incompetent to stand trial on violent felony charges typically have their cases dismissed. In actuality, most stand trial after undergoing competency restoration treatment; only a small percentage are found unrestorable after one year of treatment, making them eligible for civil commitment if they remain dangerous.)

Defense attorneys are livid, calling the attack on Hendrickson a naked power play intended to strip criminal defendants of their right to an impartial evaluation. This is at least the second time in recent memory that Pierce County authorities have successfully objected to a respected and skilled evaluator with whom they did not see eye to eye.

Such partisan interference will only increase the pressure faced by many evaluators in state hospital settings, where beds are increasingly scarce, to find defendants competent in order to help the criminal justice process speed things along.

Having done my forensic postdoctoral fellowship in the forensic unit at Western State Hospital in the 1990s, I find this news especially sad. Back when I was there, the unit was a top-notch training site, where evaluators were given the resources, training and support to perform neutral, high-quality forensic evaluations.

Although even back then the state evaluators had a reputation of prosecutorial bias, in reality we had the independence to let the chips fall where they may. As prosecutors were fond of eliciting from us under direct examination, we didn't have to worry about earning referrals, and we got paid the same no matter which side won or lost a case.

But if prosecutors blackball experts with whom they disagree, it will be hard for them to honestly claim that their hand-picked psychologists are truly independent.

Even more ominous is a bill being considered by the state’s legislature that would require only one expert -- approved by the state -- in competency cases. The defense could request a second expert under the proposed law, but such a request would not be automatically granted.

Such a move might seem to make fiscal sense. But, given the poor rates of agreement among competency evaluators, it may be penny-wise but pound-foolish. According to a new study out of Hawaii, for example, competency evaluators disagree in about two or three cases out of every ten. That's in part because competency is nuanced. Evaluators tend to concur in obvious cases involving florid psychosis, but may arrive at different opinions in gray cases in the middle of the competency continuum.

Since judges tend to rubber-stamp experts' opinions, having only one evaluator will substantially increase rates of error. Some cases will be unnecessarily delayed while defendants undergo needless (and costly) treatment; at the other end of the spectrum, some defendants will  be unfairly convicted, undergoing trials without understanding the proceedings or being able to assist their attorneys.

Winnowing the process down to one potentially idiosyncratic opinion, or forcing out well qualified evaluators based upon their rates of incompetency findings, will make the process more unreliable and, in the end, hinder justice.

Related blog post:

How competent are the competency evaluators? Largest real-world study finds modest agreement among independent alienists (Jan. 21, 2011)

Hat tip: Ken Pope