SCOTUS: No right to competency in habeas cases

In April, I blogged about the legal controversy over whether a convicted prisoner awaiting execution has a right to be competent during the sometimes-lengthy course of habeas appeals. Yesterday, the U.S. Supreme Court gave its unanimous answer:

No. 

The opinion came in the consolidated cases of Ernest Valencia Gonzales of Arizona and Sean Carter of Ohio. Both men's mental health deteriorated as they languished on death rows while their appeals wound slowly through the courts.

"Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner's competence," wrote Justice Clarence Thomas.

So, any of you forensic psychologists with pending evaluations of competency in habeas cases can close out those files and put them in storage.

The opinion is HERE. My blog post laying out the legal controversy is HERE. A lengthier report on yesterday's opinion can be found at Courthouse News Service (HERE).

Hat tip: Ken Pope

Special offer on groundbreaking group rape text

The Handbook on the Study of Multiple Perpetrator Rape: A multidisciplinary response to an international problem

Photo credit: Sajjad Hussain

Two current events, on opposite sides of the globe, signal encouraging changes -- dare I say even a tipping point -- in public attitudes toward sexual violence:

1. The giant waves of protest sweeping India in response to the vicious gang rape of a young woman (who died from her injuries) on a public bus in New Delhi. Protesters, spurred on by social media, are demanding that authorities address gender violence in a country in which police and prosecutors have often turned a blind eye to rampant violence against women, including rape, sexual harassment, dowry murders and honor attacks. As Shalini Nataraj of the Global Fund for Women notes in an op-ed in the San Francisco Chronicle,  what is remarkable is that "people of all backgrounds are coming out into the streets, they are bringing their young children, they are demanding accountability from their government for this culture of violence that goes unpunished. People in India today are talking about rape."

2. The uproar over a sexual assault by members of the high school football team in Steubenville, Ohio against an unconscious girl, and alleged attempts by local authorities to cover it up. After a tenacious crime blogger posted deleted tweets and was (unsuccessfully) sued by a young athlete, the New York Times published an excellent, in-depth piece. Now, in an unprecedented development, the underground hacker group Anonymous has entered the fray, digging up and publishing incriminating tweets and videos (including the disturbing one below, featuring an athlete who has not been arrested) and demanding more aggressive prosecution.

These are precisely the types of cases that I analyzed for an upcoming chapter in the first-ever book on multiple-perpetrator rape, due out next month. My analysis focuses on the subtexts pertaining to masculinity, social status and race that are embedded in media coverage of high-profile cases. But although some of the two dozen cases that I analyzed generated widespread public outrage, it typically focused narrowly on the perpetrators and, at times, their immediate communities. The current international uproar is qualitatively different, in that people are connecting the dots between patriarchal power and sexual victimization.

Given this current level of public interest, next month's publication date for The Handbook on the Study of Multiple Perpetrator Rape is timely. I just finished reviewing the galley proofs and found the book to be a highly informative compilation, written from an international and multi-disciplinary perspective.

From the publisher's promotional blurb:

"The contributions to this collection are written by leading academics and practitioners from a variety of disciplines who bring together research and practice on multiple perpetrator rape by presenting new data from a strong theoretical and contextual base. This book will be a key text for students and academics studying multiple perpetrator rape and an essential reference tool for professionals working in the field, including police officers, educationalists, forensic psychologists, youth workers, probation staff, lawyers, judges and policy makers."

Ad glorifying group rape; my web page with more examples is HERE.

Co-editors Miranda A. H. Horvath and Jessica Woodhams are phenomenal researchers who head an international consortium (of which I am proud to be a part) that focuses on the understudied problem of group rape. Horvath, who has published extensively on sexual violence and violence against women, is the David Jenkins Chair in Forensic and Legal Medicine at Middlesex University, where she is also deputy director of Forensic Psychological Services. Woodhams is a forensic psychologist who teaches forensic psychology at the University of Birmingham, UK and has also published extensively on sex offending.

Chapters include:

• Multiple perpetrator rape as an international phenomenon by Teresa Da Silva, Leigh Harkins and Jessica Woodhams
• Masculinity, status, and power: implicit messages in Western media discourse on high-profile multiple perpetrator rape cases by Karen Franklin
• Variations in multiple perpetrator rape characteristics relative to group size: Comparing duo and larger group MPR offences by Mackenzie Lambine
• Group sexual offending: comparing adolescent female with adolescent male offenders by Jan Hendriks, Miriam Wijkman and Catrien Bijleveld
• Busting the ‘gang-rape’ myth: girls’ victimisation and agency in gang-associated rape and peer-on-peer exploitation by Carlene Firmin
• Streamlining: understanding gang rape in South Africa by Rachel Jewkes and Yandisa Sikweyiya
• Multiple perpetrator rape during war by Elisabeth J. Wood
• Leadership and role-taking in multiple perpetrator rape by Louise Porter
• Offender aggression and violence in multiple perpetrator rape by Jessica Woodhams
• Multiple perpetrator rape victimization: how it differs and why it matters by Sarah Ullman
• Multiple perpetrator rape in the courtroom by Miranda A. H. Horvath and Jacqueline M. Gray
• Issues concerning treatment of adolescent multiple perpetrator rape offenders by Talia Etgar
• Girls and gangs: preventing multiple perpetrator rape by James Densley, Allen Davis and Nick Mason

This is the fourth volume in the book series Issues in Forensic Psychology, edited by Richard Shuker of the therapeutic prison community HMP Grendon in the UK. The series aims to provide analysis and debate on current issues of relevance to forensic psychology and associated fields. Routledge anticipates issuing the paperback in 2014.

To take advantage of a 20 percent pre-publication discount (until February 28), visit the book's web page and use the discount code CRIMHPR12 when placing your order. The same url can also be used to recommend the book to your institution's librarian.

SVP verdict overturned for prosecutorial misconduct -- again

Prosecutor impugned defense witness in hebephilia case

In a highly unusual development, a California appeals court has overturned the civil commitment of a convicted sex offender for the second time in a row due to egregious prosecutorial misconduct.

The prosecutor in the most recent trial engaged in a "pervasive pattern" of misconduct and "flagrantly" violated the law by implying that jurors would become social pariahs if they did not vote to civilly commit sex offender Dariel Shazier, the appellate court wrote.

Prosecutor Jay Boyarsky, now the second in command of the district attorney's office in Santa Clara County (San Jose), also improperly impugned the reputation of the forensic psychologist who testified for the defense, according to the scathing opinion by the Sixth District Court of Appeal.

Prosecutor Jay Boyarsky

"This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct. Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings. The misconduct culminated in the prosecutor flagrantly violating the law in closing argument, telling the jury to consider the reaction of their friends and family to their verdict, implying they would be subject to ridicule and condemnation if they found in favor of defendant."

This was the second civil commitment verdict against Dariel Shazier to be overturned on appeal due to prosecutorial misconduct. The license of the previous prosecutor, Benjamin Field, was suspended in 2010 based on his severe misconduct in several cases, including Shazier's 2006 trial. In the first of Shazier's three trials, a jury deadlocked as to whether the convicted sex offender qualified for civil detention as a sexually violent predator.

The case revolves around the controversial diagnosis of hebephilia. Shazier served nine years in prison for sexual misconduct with teenage boys. At the end of his sentence, in 2003, the district attorney began efforts to commit him indefinitely to a locked hospital based on his risk of reoffense. At Shazier's most recent trial, two state evaluators testified that he suffered from hebephilia, thereby making him eligible for civil commitment. However, they admitted that hebephilia was highly controversial and had only come into vogue with the advent of civil commitment laws.

Incendiary questioning of defense expert witness

The appellate court chastised the prosecutor for stepping far over the line in his questioning of a psychologist who was called by the defense to rebut the diagnosis of hebephilia. Psychologist Ted Donaldson testified that hebephilia is not a legitimate mental disorder, and that socially unacceptable or immoral conduct does not constitute a mental illness.

On cross-examination, Boyarsky questioned Donaldson about previous cases in which he had testified that sex offenders were not mentally disordered. Naturally, Donaldson had not brought the files from all of his old cases to court with him. This, the appellate court wrote, gave the prosecutor an excuse to recite inflammatory facts from select cases, which the defense correctly complained "were only brought up to incite the passions and prejudice of the jury."

The appellate court also chastised Boyarsky for impugning Donaldson's character. In his closing argument, the prosecutor described Donaldson as "completely biased and not helpful," called his opinion "laughable," and implied that he was biased because he had repeatedly testified for the defense:

"He has got a streak that would make Cal Ripken jealous. Cal Ripken the baseball player and the Iron Man that played in something like 4,000 straight games. Dr. Donaldson’s streak of 289 straight times testifying exclusively for the defense. Now he would like to tell you that is not his fault, because he offered to teach the State of California all his wisdom. His brilliance has yet to be fully appreciated by this society. It is appreciated by defense attorneys who pay him...."

Boyarsky also improperly attacked a psychiatric technician at Atascadero State Hospital (where Shazier was undergoing sex offender treatment while awaiting the outcome of his case) who testified for the defense. The appellate court critiqued "rhetorical attempts to degrade and disparage" that witness during cross-examination. The justices highlighted Boyarsky's question: "Mr. Ross, you don't know what you’re talking about, do you?"

"Here, the prosecutor’s questioning … was clearly argumentative, and was not intended to glean relevant information. 'An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. . . . An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.'(People v. Chatman (2006) 38 Cal.4th 344, 384.)"

The appellate opinion strongly rebuked trial judge Alfonso Fernandez for overruling repeated objections by defense attorney Patrick Hoopes. "Defense counsel objected to all of the prosecutor's improper questions, statements and arguments. We observe that not one of counsel's well-taken objections was sustained by the court. The court erred in overruling these objections."

Who’s grooming who?

In a humorous twist, Boyarsky was also reprimanded for misusing the loaded term "grooming" during his closing argument.

During the trial, a government expert had testified that Shazier "groomed" his victims by slowly manipulating them into situations in which he could violate sexual boundaries with them.

The prosecutor tagged off this in his closing argument, warning the jury that Shazier had "groomed" them during his testimony. "The grooming behavior, the manipulation, it still continues," Boyarski stated.

The appellate court agreed with the defense that this statement was "intended to inflame the jury, making them each feel like victims in the case." The justices went even further, noting that Shazier was not necessarily the one doing the grooming:

"During trial, Dr. Murphy defined grooming as a 'slow, steady manipulation to get a person in a compromising position or violate boundaries without awareness.' The irony here is that the prosecutor's conduct toward the jury throughout the trial closely fit Dr. Murphy's definition of grooming."

The unanimous appellate ruling is HERE. San Jose Mercury News coverage is HERE; the San Francisco Chronicle's, HERE.

"America's Real Criminal Element: Lead"

There are dozens of competing theories about the causes of crime. But only one fits perfectly with the data, claims a bold new investigative report. And that is lead poisoning.

"An astonishing body of evidence" on the international, national, local and even individual levels shows that much of the rise and fall of violent crime over the past half century is attributable to atmospheric lead from leaded gasoline popular from the 1940s through 1970s, according to the report by Kevin Drum in the current issue of Mother Jones magazine.

The theory has been around for about a decade, but it has been marginalized by criminologists, according to Drum, a political blogger.

As many of you know, childhood lead exposure has been linked to a permanent loss of gray matter in the prefrontal cortex, which controls executive functioning (emotional regulation, impulse control, attention, verbal reasoning, and mental flexibility). Lead also degrades the myelin that is necessary for efficient communication among neurons. Drum calls this a "double whammy":

"[Lead] impairs specific parts of the brain responsible for executive functions and it impairs the communication channels between these parts of the brain.... Even moderately high levels of lead exposure are associated with aggressivity, impulsivity, ADHD, and lower IQ. And right there, you've practically defined the profile of a violent young offender."

Drum isn't arguing that lead exposure automatically turns youngsters into criminal automatons. Rather, he says, the neurological effects of lead pushed vulnerable youngsters who were "already on the margin" over the edge into crime.

"Once you understand that, it all becomes blindingly obvious. Of course massive lead exposure among children of the postwar era led to larger numbers of violent criminals in the '60s and beyond. And of course when that lead was removed in the '70s and '80s, the children of that generation lost those artificially heightened violent tendencies."

The leaded-gasoline hypothesis explains some other demographic features of crime, Drum asserts, such as the diminishment of urban-rural gaps in murder rates in recent decades.

Drum concludes with a spirited argument for government-funded programs to vanquish the remaining lead in soils and homes:

"We can either attack crime at its root by getting rid of the remaining lead in our environment, or we can continue our current policy of waiting 20 years and then locking up all the lead-poisoned kids who have turned into criminals. … Cleaning up the rest of the lead that remains in our environment could turn out to be the cheapest, most effective crime prevention tool we have. And we could start doing it tomorrow."

I'm not sure I'm completely sold on it, but it’s a fascinating thesis, and certainly worth reading. I’d love to hear blog readers' reactions


The piece, published today in the January/February 2013 issue of Mother Jones, is available HERE.

"The best predictor of future behavior is …

… past behavior."


Past as prelude. So neat, so clean. So full of certitude. Like a fortune cookie Confucianism. Something you might hear on CSI: Special Victims Unit. A maxim cited by pop psychologist "Dr. Phil" McGraw, in one of his many self-help books.

I'm sure you have heard the mantra. It's creeping into risk assessment reports and court testimony by forensic psychologists. Sometimes, it's augmented with incendiary metaphors: The subject is "a ticking time bomb"; he is "carrying a hand grenade and it's just a matter of when he pulls the pin."

One current case of mine involves a guy with a cluster of several violent offenses a few years ago, when he was in his 20s. He was using drugs back then, and hanging around with a bad crowd. Plus, he is chronically psychotic. Not a good combination.

But if you predict future violence based on a set of risk factors like his, you will be wrong more often than not. Only about four out of ten of those individuals judged to be at moderate to high risk of future violence go on to reoffend violently, according to research. The low base rates of violent recidivism will be working against you.

Birth of a legend

So where does this idea that "the best predictor of future behavior is past behavior" come from, and does it hold any water?

Perusing psychology texts, it appears that the principle has circulated for decades. But as it gained traction, some boiled it down into a simpler, one-size-fits-all mantra. So, for example, the 2003 Complete Idiot's Guide to Psychology claims as an established "psychological fact of life" that, "when it comes to human beings, the best predictor of future behavior is past behavior." Period. End of story.

But this is a gross oversimplification. Psychological scientists who study human behavior agree that past behavior is a useful marker for future behavior. But only under certain specific conditions:

1. High-frequency, habitual behaviors are more predictive than infrequent behaviors.
2. Predictions work best over short time intervals.
3. The anticipated situation must be essentially the same as the past situation that activated the behavior.
4. The behavior must not have been extinguished by corrective or negative feedback. 
5. The person must remain essentially unchanged.
6. The person must be fairly consistent in his or her behaviors.

Here, by way of illustration, is a typical study of the phenomenon, involving college students' class attendance habits:

In a semester-long course, researcher Icek Ajzen found that a student's attendance rate for the first eight sessions correlated 0.46 with his or her attendance rate for the second eight sessions. As you can see, all the conditions are in place: Class attendance is a habitual and routinized behavior, the prediction span is very short, and there is little likelihood of meaningful changes in either the situation or the person. Yet still, the correlation is far from perfect.

Other examples from the classic studies: Frequency of exercise during a given time period is a pretty good indicator of exercise habits in the near future. Ditto for cigarette smoking and drug use.

But over longer time periods, even high frequency, habitual behaviors may undergo dramatic change. A smoker or heavy drinker might successfully quit the habit. A chronic thief might land a decent job, start a family and settle down.

As this last example suggests, researchers have also determined that the situation plays a critical role in behavior. The situation is often more determinative than individual character traits. Personality theorist Walter Mischel - frequently cited in connection with the "best predictor" maxim - suggests that behavioral consistency is best described through if-then relationships between situations and behaviors, as in: "She does A when X, but B when Y." So, a person may engage in heavy drug use when in the company of drug-using peers, but may stop using when she gets a fulfilling job and moves to the suburbs, or when she is staying with her strict grandmother.

Forensic psychologists jump aboard

It’s one thing to find a simplistic maxim where one would expect to - in an "Idiot’s Guide" or on Dr. Phil. But it is troubling to see it incorporated in forensic contexts, where the stakes are much higher.

Confusion creeps in when a risk marker is mistaken for an inevitability. It is true that people with a history of violence have a higher likelihood of committing violence in the future than do people who habitually turn the other cheek. Risk is especially acute for those with very extensive histories of violence across a range of situations. But this does not mean that everyone who has committed past acts of violence will continue to aggress forever (any more than someone with no prior violence is guaranteed to remain peaceable forever).

It's like claiming to know that because your teenage neighbor had a fender bender (or two) when he was first learning to drive, he will definitely crash his car again. He is probably at a higher risk of another collision than is his middle-aged mother, with her clean driving record. But he may or may not crash again. There are many intervening variables - whether he learned from his mistakes, the frequency and locations and times of day of his future driving, his choice of companions, the actions of other drivers on the road, the weather conditions, and so on.

The maxim also conflates all types of violence, and all types of offenders. For example, with detected recidivism among sex offenders falling somewhere between a low of about 3 percent and a high of no more than 15 percent, it's pretty hard to argue past as prelude. And if we apply the mantra to murderers, as did "Dr. Death" in Texas, we will be even further off the mark. In California over the past two decades, about 1,000 people have been paroled from prison after serving time for first- or second-degree murder. Their recidivism rate for murder?

Precisely zero, according to Nancy Mullane's Life After Murder.

The best-predictor axiom ignores such base rates, which are essential to accurate prediction. If we know the base rate of the criminal behavior we are trying to predict - whether murder or sex offending or general violence - and we know the frequency with which a person has engaged in that behavior, we can use a mathematical formula called Bayes's theorem to calculate a rough likelihood of the behavior's reoccurrence. (I recommend Nate Silver's The Signal and the Noise for great examples of the applications of this theory across a range of contexts, from poker to climatology.)

The maxim also snubs its nose at the age-crime curve, perhaps the most universal finding of a century of criminology research. As they reach their mid-30s or so, criminal offenders begin to slow down. Some mature naturally, some go through successful mentorship or treatment programs, some settle down and have families, some form mellower friendships, some simply burn out. Whatever the reasons, as research by Shadd Maruna and Sampson and Laub drives home, desistance is a virtual inevitability for all but the most die-hard minority of offenders.

This is not to say that the maxim is entirely useless. It may work fairly well under certain limited circumstances, if all of the following hold true:

1. We are predicting over a relatively short time frame.
2. The individual has a high frequency of violence.
3. The violence occurs in a variety of situations.
4. The person is faced with the same or similar situations.
5. He or she has not been deterred by negative feedback.
6. He or she has not changed in any other significant way.

But given lengthier time frames of prediction, our subject and his circumstances both undergo inevitable and often unpredictable changes, and we lose fidelity.

A ticking time bomb fails to ignite

In the case of the report I was reading this week, the mantra was a complete bust. The guy got out of jail and did great. He voluntarily sought treatment and cooperated with all terms of his supervision. By the time I saw him, he was leading a life as peaceable as a newborn lamb's. In his spare time, he even volunteered to help the needy at his local church.

If the evaluator had heeded the literature on criminal desistance, she might have seen this coming. The fellow had reached the age at which desistance becomes more the rule than the exception. He no longer associated with his old criminal peers. Perhaps most importantly, he had stopped using the drugs that had exacerbated his psychosis.

The past-as-prelude mantra fits with today's dominant, dark view of offenders as a bundle of perpetual risk factors, ticking time bombs just waiting to explode.

What it doesn't fit so well with is reality. 

A THANKS AND A SPECIAL REQUEST

As another year comes to an end, I would like to thank all my loyal readers and subscribers. Both readership and subscriptions have multiplied by leaps and bounds in 2012. But it's not just quantity that counts: Subscribers are a fascinating cross-disciplinary mix of forensic practitioners, lawyers, educators, criminologists, researchers, authors and policy advocates. Geographically, you hale from nearly all of the U.S. states and dozens of nations around the world, from Saudi Arabia and Turkey to Scotland and Lithuania.

Last year at this time, I sent out my first request for assistance, inviting readers to join my circle of support. Many of you responded, lending tangible support through monetary contributions, paid subscriptions, book donations, and other forms of encouragement.

The response was gratifying; I am thankful to each and every one of you who responded in any way. On a practical level, your generous support helps to defray the out-of-pocket expenses of producing this blog. (Despite the temptation to "monetize," I've decided to keep the blog itself strictly ad-free; Feedblitz takes 100 percent of the proceeds from the ads that they embed in subscribers' newsletters.)

On a more spiritual level, the support reminds me that you find the time and energy I devote to blogging useful in keeping you connected and abreast of developments in the field. This in turn helps me stay motivated to keep the blog going, even at those times when it feels like too much work.

For those of you who have not yet chipped in, there are several easy ways to do so. Here are three ways to join my expanding circle of support, and help keep this blog going strong:

1. Donate. Give a one-time donation of any amount you choose. Paypal makes it simple; just click on the “DONATE” button on the blog. If you prefer not to use Paypal, you can always drop a check in the mail, payable to Karen Franklin, PhD, 3060 El Cerrito Plaza Suite 121, El Cerrito CA 94530 USA.

2. Subscribe. A $3 monthly subscription helps defray my Internet fees and research costs. Just click on the "SUBSCRIBE" button in the upper right column of the blog. Again, Paypal makes it quick and easy.

3. Gift. Finally, donating a book from my Amazon wish list is a great way to show your appreciation. The list is HERE; you can also browse through it on the blog page. There's a price range for everyone.

Thanks again to all of you who have given me so much support over the years, whether materially or through your notes of thanks, your public comments on blog posts (which help me track relative interest in different topics), or even your "yes" votes on my Amazon reviews.

Here's wishing each of you an upbeat holiday season and a wonderful and productive 2013.

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