Hebephilia update: DSM-5 workgroup stubbornly clinging to pet diagnosis

Salvador Dali*: The Average Bureaucrat

A few weeks ago, I reported on an open letter to the American Psychiatric Association, calling for it to reject three controversial expansions of sexual paraphilia diagnoses that are being promoted by government evaluators in civil commitment cases.

A lot has happened since then. The only one of the three controversial diagnoses still in the running for official status has been altered for the umpteenth time. An esteemed journal is issuing a scathing critique. And the open letter is generating buzz in the blogosphere.

The open letter has garnered more than 100 signatures, many from prominent forensic psychologists and psychiatrists in the U.S. and internationally. If you intend to sign on but haven’t yet, act now because I understand it will be submitted very soon. (Click HERE to review the text; click HERE to email your name and professional title to co-author Richard Wollert.)

Hebephilia gets yet another makeover 

This week, the Sexual Disorders Workgroup for the upcoming fifth edition of the APA's diagnostic manual toned down its proposal to turn sexual attraction to young teens into a mental disorder. As psychiatrist Allen Frances explains at his DSM5 in Distress blog, hebephilia is still there -- you just have to read the small print to see it:

Dali: Enchanted Beach with Three Fluid Graces

Confronted by universal opposition from the rest of the field, the DSM 5 group has been forced progressively to whittle down their pet, but they so far have refused to just drop it altogether. 'Hebephilia' first lost its free-standing independence and was cloaked as Pedohebephilia. When this didn't fly, the term was dropped altogether in the title but the concept was slipped into the definition of Pedophilia -- which was expanded out of recognition by having a victim age cut-off of 14 years. No one accepted this outlandish suggestion and now finally the work group comes back with ‘early pubescent children' and tries to keep 'hebephilia' as a term in the subtype. The instability of the criteria sets associated with this concept is additional evidence that the fervor for its adoption stems from emotional loyalty rather than reasoned review of its weak conceptual and research base. How can the group vouch for the reliability of the diagnosis when the concept and criteria are changing every month? This is no way to develop a diagnostic system.

The staunch insistence on this transparent attempt to turn statutory rape into a mental disorder owes in large part to the makeup of the sexual disorders workgroup. As Frances notes, "the most wayward of all the DSM 5 work groups" is "lopsidedly dominated" by psychologists from a sex clinic up in Toronto, whose ambition is "to find a place in DSM 5 for their pet diagnosis."
Although the group's other outlandish proposals, Paraphilic Coercive Disorder and Hypersexuality, have been shelved for the time being, Frances worries that putting them in the appendix "for further study" is still risky:

Recognizing that the jig is up on the grand design, members of the DSM 5 sexual disorders work group have been heard saying they may have to settle for an Appendix placement for their three hothouse creations. This would create forensic dangers. We have learned from the abuse of "Paraphilia Not Otherwise Specified" in Sexually Violent Predator cases that any (even remote) legitimization by DSM 5 is certain to be misconstrued and misused in the courtroom. 

Come on guys. This is absolutely absurd just on the face of it…. So back to the drawing board, DSM 5 sexual disorders work group. The grand dream is lost -- now at least make sure you don't mess up on the fine print.

On the professional listservs today, some conspiracy theorists were speculating that the new wording signifies a plot to enhance the standing of physiological testing in sex offender assessment. The latest proposed criteria for "pedophilia, hebephilic type" require "equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons." How to determine that fuzzy standard? Enter the penile plethysmographer, a new niche career track, penis cuff at the ready to measure who is aroused by what.

"There is withering criticism already that the DSM is being expanded to sell more drugs," wrote one colleague. "Now it appears that psychiatry and psychology are conspiring to use the DSM to spur PPG tests -- tests which risk leaving patients with traumatic and indelible memory traces. Do most psychiatrists really want to open this door?!"

Orwellian thought police? 

The mere idea of allowing the American Psychiatric Association to dictate "normal" sexuality frightens English Professor Christopher Lane. Lane, whose book Shyness: How Normal Behavior Became a Sickness exposed the unscientific inner workings of the DSM-III committee, expressed shock over the first listed criterion for the shelved disorder of hypersexuality: "Excessive time is consumed by sexual fantasies and urges, and by planning for and engaging in sexual behavior." On his Side Effects blog, Lane mused:

Dali: Femme a Tete de Roses

"Excessive time"? What exactly does that mean, and according to whose standards? That's not a small or trivial matter to settle when the APA is talking in vague generalities about the nation’s libido -- how much sex it wants and how much sex the APA thinks it should think about wanting. The APA is talking about how much time Americans can devote to sexual fantasy before it suggests that we’re mentally ill if our preoccupations are stronger than those set by the relevant task force.

Does that initiative seem to overreach a bit, even to the point of sounding almost Orwellian? It does so to me. If we're to have criteria, are quotas next, including for fantasy? It’s as if the East Coast offices of the APA had morphed into those of the Thought Police in Orwell's 1984, warning citizens that they’d overstepped their "sexual thought quota" for the week and must be rationed -- or punished accordingly.

Lane analyzed hebephilia through his characteristic historical lens:

It's an archaism, a throwback literally to 19th-century psychiatry, but refers to practices that were as central to the Classical age -- and thus to Western democracy -- as were Socrates, Plato, and especially Plato’s Symposium, one of the foundational books in the West on eros and love.

The APA is already trying to determine how long normal grief should last before it’s thought pathological. Its brisk, jaw-dropping answer: two weeks. Do we really want the same organization dictating how often we can think about sex? These kinds of proposals can only end badly.

Leading journal tackles the controversy

The good news this week, which should have all of us jumping up and down with joy, is that the APA has caved in under massive public pressure and dropped its plan for a new psychosis risk disorder. This disorder would have put thousands if not millions of youngsters at risk of being dosed up with dangerous antipsychotic drugs based on a suspicion that they might go crazy in the future. Mixed Anxiety Depression has also bit the dust.

Dali: Daddy Longlegs of the Evening Hope

But, as featured in a special issue of the esteemed Journal of Nervous and Mental Diseases due out in June on the raging diagnostic controversies, there are still many battles ahead as the bloated DSM-5 enters the final stretch. The special issue will tackle diagnostic inflation, pharmacological conflicts of interest, controversies with the newly revamped personality disorders, and problems with diagnostic reliability in the recent field trials. Hebephilia, often neglected amidst controversies with wider impact such as psychosis risk syndrome and the pathologization of normal grief, merited an article in this special issue.

 In "Hebephilia and the Construction of a Fictitious Diagnosis," forensic psychologists Paul Good and the late Jules Burstein make a strong case for abandoning this faux disorder, which will only make the APA more of a laughingstock in the future.

Good and Burstein catalog an assortment of empirical problems. These range from the difficulty of reliably measuring "recurrent and intense" sexual arousal to problems determining the pubertal status of a young teenage victim. They also challenge the very idea that sexual attraction to pubescent minors is a mental illness, rather than merely illegal.

Although the Sexual Disorders Workgroup hides behind a fictive notion of a pure and ethereal "science," Good and Burstein clearly believe that hebephilia, if added to the DSM-5, will be mainly invoked in a partisan manner in forensic proceedings, in order to justify harsher punishment and involuntary civil detention. Because of its power to do harm, they say, its scientific grounding should be especially strong. If it does manage to worm its way into the DSM, they say, it should still be challenged in court:

We believe the admissibility of the proposed revision to DSM-5 that would include Hebephilia as a type of Pedophilia could be challenged in a court of law based on current legal standards. For example, since there is no professional consensus or general acceptance in the scientific community to support the notion of Hebephilia as a mental disorder, it would have difficulty passing the Frye test for admissibility. Similarly, without a widely established body of peer-reviewed, validation research and repeated studies showing inter-rater reliability in the laboratory and among clinicians in the field, Hebephilia would also have difficulty meeting the criteria specified in the Daubert standard.

Indeed, this is just what has been happening to hebephilia in federal court, where at least three civil detention petitions in a row have been thrown out due to the level of controversy in the field over this purported condition.

With all of this tumult, it seems that the DSM-5 excesses are producing a backlash against the American Psychiatric Association and, indeed, fueling disenchantment with the whole enterprise of psychiatric diagnosis.

As Frances writes, the turnaround on psychosis risk syndrome came about due to a combination of:

• extensive criticism from experts in the field
• public outrage
• uniformly negative press coverage
• abysmal results in DSM-5 field testing

For the first time in its history, DSM 5 has shown some flexibility and capacity to correct itself. Hopefully, this is just the beginning of what will turn out to be a number of other necessary DSM 5 retreats. Today's revisions should be just the first step in a systematic program of reform.… This is certainly no time for complacency. Much of the rest of DSM 5 is still a mess. The reliabilities achieved for many of the other disorders are apparently unbelievably low and the writing of the criteria sets is still unacceptably imprecise.

Who needs reliability? 

Frances calls for slowing down the process to allow for additional field testing and, more importantly, an independent scientific review of all the remaining controversial DSM-5 changes. But the DSM-5 folks are taking a different tack. Faced with field trial results showing very poor reliability -- not much better than chance -- for many of their proposed diagnoses, they want to change the definition of what counts as minimally adequate.

Dali: Autumn Cannibalism

It’s pretty ironic: The DSM-III went down in history for elevating the importance of reliability at the expense of validity. Remember, diagnostic reliability just means that similarly trained raters see a certain symptom presentation and call it by the same label. It says nothing about external validity, or whether the label is meaningful in explaining a real-world phenomenon. But reliability is basic. If a diagnostic label cannot be reliably applied, you can't even start talking about its validity. And now, the same psychiatric organization that reified the kappa reliability statistic as the be-all, end-all of science is trying to tell us that traditional kappa levels are unrealistically high for psychiatric research.

Historically, psychiatric reliability studies have adopted the Fleiss standard, in which kappas below 0.4 have been considered poor. In the January issue of the American Journal of Psychiatry, Helena Kraemer and colleagues complained that this standard is unrealistically high, and lobbied for kappas as low as 0.2 -- traditionally considered poor -- to be deemed "acceptable."

Former DSM-III guru Robert Spitzer and colleagues object to this proposal in a letter in the latest issue of the Journal. "Calling for psychiatry to accept kappa values that are characterized as unreliable in other fields of medicine is taking a step backward," they state. "One hopes that the DSM-5 reliability results are at least as good as the DSM-III results, if not better."

Alas, just wishing won't make it so. Despite its grandly stated ambitions, the DSM-5 will likely go down in history as a major gaffe by American psychiatry in its continuing struggle for world dominance.  

Remember to check out the open letter 

and send in your name, if you are in agreement with it.

Further reading:

• American Sex and American Psychiatry: The APA is trying to determine how much sex we can fantasize about by Chris Lane at Side Effects
• DSM 5 Rejects 'Hebephilia' Except for the Fine Print: Now the devil is in the details by Allen Frances at DSM5 in Distress
• Wonderful News: DSM 5 Finally Begins Its Belated and Necessary Retreat: Perhaps this will be the beginning of real reform by Allen Frances at DSM5 in Distress

*Salvador Dali: "One day it will have to be officially admitted that what we have christened reality is an even greater illusion than the world of dreams."

The homicidal triad: Predictor of violence or urban myth?

For at least half a century, legend has told of a "triad" of ominous childhood behaviors -- cruelty to animals, firesetting, and enuresis – said to predict future violence.

The so-called "Macdonald triad" (also known as the homicidal triad or the Hellman and Blackman triad) is taught in criminology and psychology courses, used by forensic practitioners in assessing risk, and has even made its way into Law and Order: Special Victims Unit. Especially, it’s become a staple among aficionados of the trendy serial killer.

But is the syndrome valid?

Providing the most definitive exploration to date is Kori Ryan, a former criminology student at the California State University, Fresno who delved into the "evolutionary history" of this tantalizing construct for her as-yet unpublished master's thesis. Her ultimate conclusion:

Even though the literature on violent behavior contains many references to the Macdonald triad (and its aliases), collectively these studies do not provide sufficient evidence of its ability to predict violence, nor, in fact, of its existence as a bona fide phenomenon.

Instead, childhood enuresis, firesetting and animal cruelty more likely represent three among many indicators of severe childhood abuse. In other words, the presence of one or more of these elements in the histories of some violent offenders can be explained by the fact that violent offenders are often the products of child abuse. More importantly, relying upon these behaviors as predictors of future violence would lead to many false positives, punishing children who might not be violent in the future.

One of many misleading websites

Roots of the legend 

Gulliver's Travels

Forensic psychiatrist John Macdonald is generally credited with "discovering" the triad. In a 1963 article in the American Journal of Psychiatry, entitled "The Threat to Kill," he gave his clinical impression that "a history of great parental brutality, extreme maternal seduction, or the triad of childhood firesetting, cruelty to animals and enuresis" can signal those who will eventually threaten homicide. His article was based on his work with 100 patients at the Colorado Psychopathic Hospital in Denver, Colorado who had threatened -- but not necessarily committed -- violence. 

Over the next few decades, the idea "attracted a dedicated following" and gradually expanded to encompass various forensic groups, including sexual sadists, recidivist firesetters and -- most salacious -- serial killers.

Ryan traces the history of cultural interest in these behaviors all the way back to Greek mythology and early Western fiction, such as Jonathan Swift's 1726 Gulliver's Travels, in which Gulliver puts out a fire with his own urine, much to the chagrin of the Imperial Majesty, thereby linking urination with fire and revenge.

Early psychoanalytic thinkers also placed heavy emphasis on these behaviors, seeing them as products of arrested psychosexual development and sublimated sexual and sadistic urges. Psychoanalyst Melanie Klein, for example, saw bedwetting as a daughter’s sadistic revenge against her mother.

Empirical research: Triad goes bust

Two psychiatrists were the first to empirically evaluate the Macdonald triad, according to Ryan. Studying 84 incarcerated offenders in 1966, Hellman and Blackman reported a positive association between the triad and future violence. Accordingly, some took to labeling the phenomenon as the “"Hellman and Blackman triad."

But subsequent attempts to replicate Hellman and Blackman's findings were unsuccessful. Even John Macdonald himself voiced later doubt about the triad's validity. After trying to test his own clinical theory, Macdonald reported in his 1968 book, Homicidal Threats, that he could find no statistically significant association between homicide perpetrators and early problems with firesetting, cruelty to animals, or enuresis.

Likewise, in an examination of 206 sex offenders at the Massachusetts Treatment Center for Sexual Dangerous Persons, Prentky and Carter (1984) found "no compelling evidence" for the idea that the triad predicted adult criminality. They did, however, note that the individual components of the triad were common among people raised in highly abusive home environments.

Some years later, this was also the conclusion of Jonathan Pincus, in his 2001 book on convicted murderers. Pincus described "a forensic assessment protocol in which bed-wetting, firesetting, and cruelty to animals (among other behaviors) are considered 'hallmarks' of childhood abuse," notes Ryan.

Indeed, it seems far more likely that one of Macdonald’s five original indicators that didn’t go on to fame has more explanatory power as a cause of later violence: parental brutality.

Dangerous ramifications

"The frequency with which discussions of violent offenders (of various types) include mention of the Macdonald triad suggests its general acceptance as a predictor of violent behavior," notes Ryan.

This continuing prominence owes in large part to the triad's promotion by prominent FBI profilers in the 1988 book, Sexual Homicide: Patterns and Motives. Like Macdonald’s, the FBI study was anecdotal, small-scale and lacking in any statistical analyses or control groups. Studying 36 sex killers, Douglas, Burgess and Ressler found that many manifested one or more elements of the triad. Unfortunately, notes Ryan, the authors did not report which factors were present in which subjects, or how many of these killers evidenced all three components of the triad.

Ryan warns that promotion of the triad has real-world ramifications, in that children who exhibit one or more of these behaviors "might be falsely labeled as potentially dangerous."

For example, police officers exposed to the triad in undergraduate criminology courses may target young offenders who have lit a fire or harmed an animal -- both fairly common behaviors among troubled youth -- as future sex fiends or serial killers. (Enuresis, with less face validity as an indicator of sadism, has tended to drop from more contemporary renditions of the triad.)

Ignoring the miniscule base rate of serial killers, even veterinarians are encouraged to identify those who hurt pet animals as potentially lethal: "Many known serial killers began their careers by hurting pet animals," warn the authors of a 2004 article in one veterinary journal. "It is well known in the criminology field that people who perpetrate acts of cruelty on animals, frequently escalate to torturing humans, usually the young and helpless."

Rather than throwing the baby out with the bathwater, Ryan says researchers could do more research to understand these behaviors in context. For example, might arson be a coping mechanism in children who have experienced severe emotional abuse, rather than a marker for future aggression? Are some elements of the triad indicators for future violence when they co-occur? More fundamentally, is there any set of behaviors that can legitimately be considered a behavioral syndrome predictive of later violence?

The study is: The Macdonald triad: Predictor of violence or urban myth? The abstract is HERE; the full text can be requested from the author via ResearchGate (HERE). The author, Kori Ryan, can be contacted HERE.*

*Links updated 12/1/16.

Composites illustrate problems with eyewitness recall

Take a minute to examine this display of composites. Notice the wide variations in features -- eyes, apparent age, bone structure, etc.

DNA evidence links 11 rapes in East Los Angeles over the past 16 years to this so-called "Teardrop Rapist." Based on the similarities in modus operandi and description, police believe he is responsible for at least 17 other rapes, for a total of 28 or more.

But, as these sketches show, the victims have strikingly different recall. They give his height as between a pint-sized 5 foot 2 inches and 6 feet. His weight fluctuates between 130 and 200 pounds. His age varies between 27 and 40.

Even the teardrop(s), an especially distinctive feature, are recalled differently. Some victims saw one teardrop; some reported up to three -- or none at all (police say he may have had them removed). The teardrop(s) were usually spotted on his left cheek, but occasionally they were seen on his right.

About the only constants are his eyes (brown), his ethnicity (Hispanic), and the fact that he wears a head covering. 

In 1999, police arrested a 21-year-old man for the attacks. Given the problems with eyewitness accuracy so amply illustrated here, the existence of DNA evidence proved a lucky break for him: He was exonerated.

Blogger wins scientific achievement award

Accepting the award. Photo credit: Michael Donner

I am pleased to report that I have been awarded the 2012 Distinguished Scientific Contribution in Psychology award. It struck like a thunderbolt in a clear blue sky; I had no idea I had even been nominated for an award until I got a phone call notifying me I had won. 

It was especially meaningful to come from the California Psychology Association. The only voice for California’s 18,000 licensed psychologists, the CPA tirelessly advocates for the profession as well as for the mental health needs of the general public in California.

For those of you who only know me as a blogger and/or a forensic psychology practitioner, I conducted pioneering research in the late 1990s into the motivations of hate crime perpetrators. I later extended that work to group rape, likening both forms of violence to cultural theater in which the actors publicly demonstrate masculinity, with their victims as dramatic props. (I'm excited about a forthcoming chapter in a cutting-edge text on multiple-perpetrator rape, due out next year.) I have also conducted historical research and published on the ethics of forensic diagnosis, and especially the contested sexual paraphilia of "hebephilia." More information on my research is available on my website and on Wikipedia.

The location of the awards ceremony could not have been more idyllic -- the gorgeous Monterey coast on a balmy weekend. The 270-degree view of the Monterey Bay and the surrounding hills from the 10th floor of the Marriott Hotel was breathtaking; unfortunately, a photo just can't capture it.

CPA President Craig Lareau presents award.
Photo credit: Patricia VanWoerkom

The quality of this year's convention trainings was impressive. Perhaps because the current president, Craig Lareau, is a forensic psychologist and attorney, there was a good deal of forensic programming. Alan Goldstein presented the latest on Miranda waiver evaluations (including the new instrument), Professor Gail Goodman gave an overview of the research on child witness accuracy, and there were workshops on forensic neuropsychology.

I especially enjoyed a presentation by Keely Kolmes of San Francisco and Heather Wittenberg of Maui designed to help psychologists step up their online presence. For anyone interested, Dr. Kolmes has some nice resources (HERE) for psychologists on the ethics of social media and on managing one's online reputation.

By the way, if you practice in California and don't belong to the CPA, I encourage you to join. The reconfigured CPA has a forward-looking leadership team headed by the dynamic Jo Linder-Crow and is doing essential advocacy work on behalf of psychologists and the public. It appears to have defeated (at least for the time being) an effort to axe our regulatory agency, the Board of Psychology, which would have left psychologists at the mercy of other professions. It's working hard to promote parity for mental health consumers. And it's tangibly supporting legislators who will lobby for progressive causes, for example prisoner rehabilitation instead of endless warehousing. So do your share, whether it's just paying dues or volunteering, so that all of the heavy lifting does not fall on just a few shoulders.

Sea Otter, Monterey Bay

Whether or not you belong to the CPA, if you are in California you might also consider donating to its Political Action Committee, which funds progressive politicians and reforms. The unfortunate reality is, politics is money-driven.

And now, sadly, it's back to the grindstone.

Related news: Your blogger profiled in the 2012 edition of advanced high school textbook, Forensic Science: Advanced Investigations.

Ranking forensic journals through content analysis

Illustration credit: Jock Alexander, The Australian

You have no doubt heard of journal "rankings." A journal's rank conveys information about the impact and quality of a journal. This can be useful information for both authors and consumers. An author might want to consider a journal's prestige, and the difficulty getting published in it. For consumers -- including expert witnesses who might be relying on a particular article in court -- ranking can serve as a proxy for the accuracy and reliability of a journal's content. How much should the trier of fact trust the information in this journal?

But there are lots of methods for ranking journals -- the Impact Factor, the Eigenfactor, the h-index, just to name a few. And with the proliferation of journals in forensic psychology, it gets hard to keep track. Which journals have the best reputations? Which are the most cited? Which provide the broadest coverage of forensic psychology topics?

One popular way to rank-order journals is based on reference counts. How many times a journal is cited is an indicator of its reputation. In forensic psychology, according to an unpublished study by S. Black, the top-referenced journals are (in rank order):

1. Law and Human Behavior
2. Behavioral Sciences and the Law
3. British Journal of Psychiatry
4. Journal of Forensic Psychiatry and Psychology
5. American Journal of Psychiatry
6. Criminal Justice and Behavior

Now, a researcher with training in both psychology and library science has taken a somewhat different approach, devising a clever content-analysis procedure to rank-order journals in our field.

Chris Piotrowski started by screening several texts in the field and choosing terms that are popular both in research and practice. The 16 terms were: eyewitness testimony, competency to stand trial, alcoholic blackouts, infanticide, sentencing, forensic evaluations, polygraph, malingering, jury selection, homicide, diminished capacity, insanity defense, child abuse, Daubert standard, child custody and expert witness.

Next he used PsycNET, "the recognized major bibliographic resource in the social and behavioral sciences that indexes scholarly and professional journals," to run keyword searches on his 16 terms. For each search term, he rank-ordered journals based on the frequency of hits; a journal's total ranking was obtained by summing across all 16 terms.

The winners were (in rank order):

1. Journal of the American Academy of Psychiatry and Law
2. PsycCRITIQUES (formerly, Contemporary Psychology)
3. Law and Human Behavior
4. Behavioral Sciences and the Law
5. American Journal of Forensic Psychology
6. Journal of Psychiatry and Law
7. Bulletin of the American Academy of Psychiatry and Law
8. Mental & Physical Disability Law Reporter
9. American Journal of Psychiatry
10. American Psychologist
11. Journal of Forensic Psychology Practice
12. International Journal of Psychiatry and Law
13. Journal of Criminal Justice
14. Professional Psychology: Research and Practice
15. Journal of Applied Psychology
16. Archives of Clinical Neuropsychology
17. Psychological Reports
18. British Journal of Psychology
19. Psychology, Public Policy, and Law

I would be a little cautious about relying on this method, because the choice of keywords -- which is open to manipulation -- might influence the rankings. But as you can see, there is overlap between this method and the more traditional citation-count method used by Black. For instance, Law and Human Behavior and Behavioral Sciences and the Law made it into the top four, no matter which method was used. There are some noticeable differences as well, with several journals that were highly cited in Black's study not ranking high using this content analysis method.

For more information on the method and the exact scores for each journal, feel free to contact Dr. Piotrowski (HERE); I'm sure he will be happy to share a copy of the article, which is published in the current issue of the American Journal of Forensic Psychology.

Oh, in case you were wondering, that journal is number five on his list.

The article is: Top cited journals in forensic psychology: An analysis of the psychological literature (2012), American Journal of Forensic Psychology 30 (2), 29-38.

SCOTUS to tackle capital habeas competency right

At a criminal trial, a defendant who lacks rational understanding cannot be forced to proceed. Likewise, a person who is sentenced to death cannot be executed unless he is sane enough to grasp why he is being punished.(1)

But what happens if a prisoner loses his mind between the bookends of trial and execution, as he languishes on Death Row while his appeals wind slowly through the appellate courts? Does a prisoner have a right to be competent during the course of habeas proceedings, or can his appeals proceed without him?

After officials in 17 states urged the U.S. Supreme Court to clarify this issue, the Court signaled it would do so by agreeing to review two cases, one from Arizona and the other from Ohio.

Lawyers will be battling over various legal precedents, from English Common Law to a Ninth Circuit Court of Appeals ruling from 2003 to an obscure Supreme Court ruling from 1966.

In the case of Ernest Valencia Gonzales, Arizona attorneys contend that the Ninth Circuit “created a competency right out of thin air,” and that prisoners do not have a right to competency during federal appeals.

Gonzales

Gonzales was convicted of first-degree murder and sentenced to death in 1991. His appeal was stayed 15 years later, after his attorneys said he had lost the ability to rationally communicate and to assist them, due to a progressive deterioration in his mental health.

In halting Gonzales’s case, the Ninth Circuit Court of Appeals, which handles federal appeals in the nine western states, relied upon its earlier ruling in the case of Rohan ex rel. Gates v. Woodford (334 F.3d 803). In that 2003 decision, the court ruled that a capital habeas petitioner has a right to competency if he is pursuing “claims that could potentially benefit from his ability to communicate rationally.” That case effectively halted the execution of Oscar Gates of California, who was condemned to die for a 1979 murder.

The lawyers for the state of Arizona say the Rohan ruling plays into the hands of convicted prisoners, who “have an incentive to adopt delaying tactics to avoid execution,” thus circumventing states’ interests in carrying out their death sentences.

Gonzales's attorneys call this claim "hysterical," stating that the right to competency under Rohan is narrow in scope and has only been granted in a handful of cases. They say the right to be competent from the time of arrest all the way through to execution is well established:

An incompetent condemned prisoner’s inability to assist counsel was recognized under English Common Law…. If the condemned prisoner became of unsound mind at any point before execution, the proceedings were to be stayed. The rationale behind this rule was that the condemned prisoner’s mental disorder might prevent him from sharing with his lawyer a fact, known only to him, that could result in his life being spared. This rationale is just as relevant today.

The level of competence required during federal habeas proceedings falls "somewhere between the right to be competent to stand trial and the right to be competent to be executed," they said in their reply brief.

The U.S. Supreme Court declined a request to review the Rohan ruling, and up until now -- with one small exception -- has studiously avoided stepping in to clarify the competency rights of prisoners during federal appeals.

Carter

That exception, an obscure case back in 1966, is at the heart of the state of Ohio’s appeal in the case of Sean Carter, who is awaiting execution for the 1997 rape and murder of his adoptive grandmother.

The case, Rees v. Peyton, involved Melvin Davis Rees, Jr., a Virginia jazz musician convicted in the 1959 massacre of a family of four. When he announced that he wanted to stop all further appeals, his lawyers said they doubted his mental competency to make that decision. A psychiatrist retained by Rees's attorneys opined that Rees was mentally incompetent, while psychiatrists selected by the state expressed doubts. In a short ruling, the Supreme Court directed the federal district court to, as a first step, "make a judicial determination as to Rees' mental competence and render a report on the matter to us." The question, the high court said, was "whether [Rees] has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises."

Rees

Accordingly, the lower court held a hearing and determined that Rees was indeed incompetent to abandon his appeals. In a one-line order the following year, the Supreme Court put the matter on hold, and never returned to it. Rees died in prison three decades later, in 1995.

"To this day, the Rees case is shrouded in mystery," says the government’s brief in the Carter case, with different circuit courts hold starkly different views of its breadth. To the Sixth Circuit, it stands for the proposition that prisoners have a right to be competent during their appeals. Other circuits, according to the brief, have interpreted it more narrowly, to guarantee a competency right only to prisoners who have decided to abandon further appeals.

Lawyers for the state of Ohio raise similar concerns to those in Arizona, saying the stay of Carter's case, if upheld, "will improperly bring Ohio’s capital litigation to a halt. Under the Sixth Circuit's extraordinarily loose standards, any prisoner can make a minimal showing of incompetence, demand a hearing, and secure an indefinite stay of his habeas proceedings." The Sixth Circuit handles appeals from Ohio, Kentucky, Michigan and Tennessee.

The cases are Ryan v. Gonzales and Tibbals v. Carter. All of the briefs are available online, by clicking on these case links.The Supreme Court will hear arguments in the two cases during the term that begins in October, with a decision likely early next year. So far, I haven't heard much speculation on which way the wind is blowing.

Footnote 1: This is the minimalist "Ford standard" set out by the U.S. Supreme Court's 1986 opinion in Ford v. Wainwright.