Note: Updated version of Sunday's post on "narcoanalysis"

For those of you following the case of Aurora Colorado mass murder suspect James Holmes and the judge's order that he be subjected to a "narcoanalytic interview" if he pleads insanity, I have updated the Psychology Today version of the post. The updated version explains where Judge Sylvester got the idea for this order, and discusses the fascinating landmark case of Ramona v. Ramona, in which a father successfully sued his daughter's therapists for implanting false memories of child sexual abuse during a sodium amytal interview; I've also referenced a curious side note in the Michael Jackson case involving sodium amytal.  Thanks to psychologist Evan Harrington of the Chicago School of Professional Psychology for alerting me to the Ramona opinion, which features an interesting discussion of relevant case law.

"Narcoanalytics" order in Aurora massacre case unprecedented

News flash: There is no such thing as 'truth serum'

The next time the court appoints you to conduct a sanity evaluation, don't forget to order up a vial of truth serum.

In a court order that breaks new legal ground, the judge presiding over the trial of James Holmes ordered the Aurora Colorado massacre suspect to submit to polygraph testing and a "narcoanalytic interview" if he decides to put his mental state at issue.

Chief District Judge William Sylvester ruled that if Holmes elects to pursue an insanity defense, "medically appropriate" drugs can be administered during a forensic examination at the state hospital, presumably to determine whether the mass murder suspect is feigning insanity.

This may be the first time that a court has mandated use of so-called "truth serum" in a sanity evaluation. Indeed, courts have generally taken the opposite stance, of being gatekeepers who exclude the results of both sodium amytal and polygraph examinations from court due to their lack of reliability.

"Mythical aura of infallibility"

In a seminal case, Harper v. State (1982), the George Supreme Court ruled that the use of "truth serum" (sodium amytal) was inadmissible to establish that a murder defendant was being truthful in proclaiming his innocence. "We agree with the trial court that, until it is proven with verifiable certainty that truth serum compels a person to tell the truth, neither the results of truth-serum tests nor the opinions of experts based on the results of these tests shall be admissible in evidence," ruled the court.

Similarly, a defense-retained psychologist published an account of another case from the 1980s in which an appellate court upheld exclusion of "a sodium amytal test" to bolster an insanity defense. The defendant had walked into a nightclub and shot to death a dancer who had jilted him. Under the influence of the barbiturate, the man claimed he thought he was shooting Satan, because the victim had appeared to morph into the devil, "with pitchforks … and fire and everything." In excluding mention of the test, the trial judge expressed worry that a jury "might be overwhelmed by the use of the term 'sodium amytal' and/or 'truth serum' and attribute to it a mythical aura of infallibility."

Back in the 1930s and 1940s, when sodium amytal was all the rage, laypersons and professionals alike believed that people could not lie when under the drug's influence. It turns out that this faith was misguided. Empirical testing showed that although sodium amytal and related drugs lower inhibitions, people remain perfectly capable of lying, withholding information, and exaggerating psychiatric symptoms.

"While it is clear that these substances lower inhibitions and increase loquacity, they provide no assurance as to the truthfulness of the information obtained,” noted attorney Jason Odershoo in a Stanford Law Review analysis focusing on whether such chemicals may legally be deployed against terrorism suspects in the post-9/11 world.

Sodium amytal, or amobarbital, belongs to the same class of barbiturates as Nembutal, Seconal, and Pentothal. As psychiatrist August Piper Jr. describes the procedure, a physician intravenously administers small amounts of the drug (sometimes in tandem with other intravenous drugs like Valium or Ativan) until the subject enters a "twilight state" in which he is relaxed and drowsy but still awake. The drug causes a feeling of warmth and "closeness to the interviewer" that breaks down inhibitions, similar to the effects of acute alcohol intoxication.

However, while sodium amytal makes people more loquacious, it also disrupts memory and increases suggestibility, according to the research summarized by Piper. Reality and fantasy may become hopelessly tangled, such that people cannot distinguish between the two.

Cultural fascination with truth serum in the mid-20th century completely ignored this flawed reality. Rather, the mythology helped to shape the public's understanding of memories as robust and accurate, stored verbatim in the mind just awaiting proper retrieval and extraction. As Alison Winter writes in a 2005 essay on the cultural history of truth serum:

"This view contributed to the production of a public understanding of memory that both diverged from previous claims about memory and recall, and ran counter to the direction of current psychological research. It thus helped lay the groundwork for claims about memory permanence and scientific recall techniques later in the twentieth century."

Perils in Holmes's case

The empirical research suggests not only that Holmes could lie while under the influence of the drugs, but also that subjecting him to a "narcoanalytic interview" could introduce false memories and render his subsequent recall of information potentially even less reliable. As with post-hypnosis statements, this could be a big problem if Holmes decides to testify on his own behalf, either at a trial or a sentencing hearing. Similarly, unreliable information recounted to evaluators during a "narcoanalytic interview" could be given too much credence, thereby jeopardizing the validity of forensic opinions in the case.

But maybe such contamination is the point, writes a commentator at the American Everyman blog. Under the alarmist headline, "Holmes to be Drugged Into Confession -- Apparently Waterboarding is Off the Table," Scott Creighton theorizes: "This 'truth serum' CIA trick will be used to convict Holmes in the court of public opinion before his Vichy lawyers plead him out to life in prison rather than taking it to trial to evaluate the evidence against him." 

Given the recent dispositions of other similar cases such as that of Arizona mass shooter Jared Loughner, maybe the conspiratorially minded blogger is not so far off the mark.

The CIA and a zombie idea

The notion of a magical drug that can ferret out malingering represents a "zombie idea," to borrow a phrase from New York Times essayist Paul Krugman. That is, it is a proposition that has been thoroughly refuted by analysis and evidence, and should be dead -- but stubbornly refuses to stay dead because it serves a political purpose or appeals to public prejudices.

Indeed, Judge Sylvester's court order harkens back to the early to mid-20th century, a time when -- as legal analyst Odershoo recounts -- "the idea of such a magical substance seemed a very real possibility, one holding profound significance for criminal investigation, foreign intelligence, and national security."

The term "truth serum" was coined in the early 1920s by an obstetrician named Robert House, who advocated the use of the barbiturate Scopolamine -- now known as a date-rape drug because of its amnestic properties but at the time administered to women during childbirth to induce a 'twilight sleep' -- in criminal interrogations. Time magazine's 1923 piece, "Medicine: The Truth-Compeller," helped popularize the idea and turned House into a one-hit wonder. In the 1930s, police use of barbiturates on witnesses and criminal suspects became more widespread. During World War II sodium pentothal was used both to treat soldiers suffering from "shell shock" and to detect malingerers trying to duck the military draft.

Then, during the Cold War, the CIA launched a feverish quest for the ultimate "truth drug." Clandestine campaigns with code names such as Projects Chatter, Third Chance, Derby Hat and Bluebird culminated in the ill-fated MK-ULTRA, in which a doctor who was administered LSD leapt to his death from a hotel room window. Revelations of this secret experimentation led to public antipathy towards the spy agency, and a demise in the use of sodium amytal and sodium pentothal as truth serums.

The drugs remain in use as anesthetics, and have also been used by psychotherapists seeking to recover repressed memories. This use has its own sordid history. In 1992, a former patient of eminent Chicago psychiatrist Jules Masserman published an account claiming that the good doctor had repeatedly raped her after administering sodium amytal, purportedly to retrieve her repressed memories of incest. The patient, Barbara Noel, was not the only woman to win a lawsuit over such nefarious abuse.

Legal use officially repudiated 

Use in law enforcement fell rapidly in the wake of a 1963 U.S. Supreme Court ruling that a confession produced under the influence of truth serum was unconstitutionally coerced, and therefore inadmissible. The case of Townsend v. Sain involved a heroin addict who was interrogated after being administered phenobarbital and hyoscine (Scopolamine) to alleviate his withdrawal symptoms. Although India and some other countries still use these drugs in criminal investigations, in the United States their use for that purpose has been "officially repudiated," according to Odershoo.

A scan of the case law suggests that this is by far the most serious case in which narcoanalysis has ever been proposed. Holmes is awaiting trial on 166 felony charges for an attack on Batman moviegoers last July that killed 12 people and wounded 58. His attorneys have mounted a heretofore unsuccessful challenge to Colorado's insanity statute and the judge's interpretation of it. Under Colorado law, the test for insanity is whether the person "who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act." Judge Sylvester has ordered that, if Holmes pleads insanity, he must divulge all information from past mental health treatment. Holmes was seen by a psychiatrist and at least two other mental health professionals at the counseling center of the University of Colorado, where he was a PhD student in neuroscience before withdrawing from school, and his treatment records may contain potentially incriminating information. Such forfeiture of doctor-patient privilege is standard in criminal law when a defendant puts his mental state at issue.

Malingering detection

Holmes's elaborate degree of planning for his attack over at least a four-month period certainly raises a distinct possibility that any claim of mental illness may be feigned. But while no method is foolproof, other techniques have a far better track record at sniffing out deception.

Judge William Sylvester

We have a constantly growing arsenal of formal tools for the assessment of various types of malingering. Especially in high-stakes cases such as this, formal tests are typically augmented by 24/7 observation in psychiatric facilities. It's pretty hard to consistently masquerade as insane when one is under around-the-clock observation by everyone from the doctors and nurses to the janitors. Even one of the most slippery malingerers of insanity, a Mafia don named Vincent "The Chin" Gigante, eventually tripped up and got nailed. 

Judge Sylvester's order is so far removed from both contemporary scientific knowledge and normal legal procedure that it has left many observers scratching their heads. Where did the judge get the wacky idea that truth serum is the way to go? Did he cook it up himself, or was it fed to him by someone who had read a few too many "true crime" books or spy thrillers? Vaughan Bell over at Mind Hacks went so far as to wonder whether "the judge has been at the narcotics himself."

NOTE: An updated version of this essay appears at my Psychology Today blog. That essay explains where Judge Sylvester got this wacky idea, and also references the landmark case of Ramona v. Ramona, in which a father successfully sued his daughter's therapists for implanting false memories of child sexual abuse during a sodium amytal interview, as well as the role of sodium amytal in the Michael Jackson case.  Thanks to psychologist Evan Harrington of the Chicago School of Professional Psychology for alerting me to the Ramona opinion, which features an interesting discussion of relevant case law.

A full set of court documents in the Holmes case is located HERE.

Remarkable experiment proves pull of adversarial allegiance

 Psychologists' scoring of forensic tools depends on which side they believe has hired them

A brilliant experiment has proven that adversarial pressures skew forensic psychologists' scoring of supposedly objective risk assessment tests, and that this "adversarial allegiance" is not due to selection bias, or preexisting differences among evaluators.

The researchers duped about 100 experienced forensic psychologists into believing they were part of a large-scale forensic case consultation at the behest of either a public defender service or a specialized prosecution unit. After two days of formal training by recognized experts on two widely used forensic instruments -- the Psychopathy Checklist-R (PCL-R) and the Static-99R -- the psychologists were paid $400 to spend a third day reviewing cases and scoring subjects. The National Science Foundation picked up the $40,000 tab.

Unbeknownst to them, the psychologists were all looking at the same set of four cases. But they were "primed" to consider the case from either a defense or prosecution point of view by a research confederate, an actual attorney who pretended to work on a Sexually Violent Predator (SVP) unit. In his defense attorney guise, the confederate made mildly partisan but realistic statements such as "We try to help the court understand that ... not every sex offender really poses a high risk of reoffending." In his prosecutor role, he said, "We try to help the court understand that the offenders we bring to trial are a select group [who] are more likely than other sex offenders to reoffend." In both conditions, he hinted at future work opportunities if the consultation went well. 

The deception was so cunning that only four astute participants smelled a rat; their data were discarded.

As expected, the adversarial allegiance effect was stronger for the PCL-R, which is more subjectively scored. (Evaluators must decide, for example, whether a subject is "glib" or "superficially charming.") Scoring differences on the Static-99R only reached statistical significance in one out of the four cases.

The groundbreaking research, to be published in the journal Psychological Science, echoes previous findings by the same group regarding partisan bias in actual court cases. But by conducting a true experiment in which participants were randomly assigned to either a defense or prosecution condition, the researchers could rule out selection bias as a cause. In other words, the adversarial allegiance bias cannot be solely due to attorneys shopping around for simpatico experts, as the experimental participants were randomly assigned and had no group differences in their attitudes about civil commitment laws for sex offenders.

Sexually Violent Predator cases are an excellent arena for studying adversarial allegiance, because the typical case boils down to a "battle of the experts." Often, the only witnesses are psychologists, all of whom have reviewed essentially the same material but have differing interpretations about mental disorder and risk. In actual cases, the researchers note, the adversarial pressures are far higher than in this experiment:

"This evidence of allegiance was particularly striking because our experimental manipulation was less powerful than experts are likely to encounter in most real cases. For example, our participating experts spent only 15 minutes with the retaining attorney, whereas experts in the field may have extensive contact with retaining attorneys over weeks or months. Our experts formed opinions based on files only, which were identical across opposing experts. But experts in the field may elicit different information by seeking different collateral sources or interviewing offenders in different ways. Therefore, the pull toward allegiance in this study was relatively weak compared to the pull typical of most cases in the field. So the large group differences provide compelling evidence for adversarial allegiance."

This is just the latest in a series of stunning findings by this team of psychologists led by Daniel Murrie of the University of Virginia and Marcus Boccaccini of Sam Houston University on an allegiance bias among psychologists. The tendency of experts to skew data to fit the side who retains them should come as no big surprise. After all, it is consistent with 2009 findings by the National Academies of Science calling into question the reliability of all types of forensic science evidence, including supposedly more objective techniques such as DNA typing and fingerprint analysis.

Although the group's findings have heretofore been published only in academic journals and have found a limited audience outside of the profession, this might change. A Huffington Post blogger, Wray Herbert, has published a piece on the current findings, which he called "disturbing." And I predict more public interest if and when mainstream journalists and science writers learn of this extraordinary line of research.

In the latest study, Murrie and Boccaccini conducted follow-up analyses to determine how often matched pairs of experts differed in the expected direction. On the three cases in which clear allegiance effects showed up in PCL-R scoring, more than one-fourth of score pairings had differences of more than six points in the expected direction. Six points equates to about two standard errors of measurement (SEM's), which should  happen by chance in only 2 percent of cases. A similar, albeit milder, effect was found with the Static-99R.

Adversarial allegiance effects might be even stronger in less structured assessment contexts, the researchers warn. For example, clinical diagnoses and assessments of emotional injuries involve even more subjective judgment than scoring of the Static-99 or PCL-R.

But ... WHICH psychologists?!

For me, this study raised a tantalizing question: Since only some of the psychologists succumbed to the allegiance effect, what distinguished those who were swayed by the partisan pressures from those who were not?

The short answer is, "Who knows?"

The researchers told me that they ran all kinds of post-hoc analyses in an effort to answer this question, and could not find a smoking gun. As in a previous research project that I blogged about, they did find evidence for individual differences in scoring of the PCL-R, with some evaluators assigning higher scores than others across all cases. However, they found nothing about individual evaluators that would explain susceptibility to adversarial allegiance. Likewise, the allegiance effect could not be attributed to a handful of grossly biased experts in the mix.

In fact, although score differences tended to go in the expected direction -- with prosecution experts giving higher scores than defense experts on both instruments -- there was a lot of variation even among the experts on the same side, and plenty of overlap between experts on opposing sides.

So, on average prosecution experts scored the PCL-R about three points higher than did the defense experts. But the scores given by experts on any given case ranged widely even within the same group. For example, in one case, prosecution experts gave PCL-R scores ranging from about 12 to 35 (out of a total of 40 possible points), with a similarly wide range among defense experts, from about 17 to 34 points. There was quite a bit of variability on scoring of the Static-99R, too; on one of the four cases, scores ranged all the way from a low of two to a high of ten (the maximum score being 12).

When the researchers debriefed the participants themselves, they didn't have a clue as to what caused the effect. That's likely because bias is mostly unconscious, and people tend to recognize it in others but not in themselves. So, when asked about factors that make psychologists vulnerable to allegiance effects, the participants endorsed things that applied to others and not to them: Those who worked at state facilities thought private practitioners were more vulnerable; experienced evaluators thought that inexperience was the culprit. (It wasn't.)

I tend to think that greater training in how to avoid falling prey to cognitive biases (see my previous post exploring this) could make a difference. But this may be wrong; the experiment to test my hypothesis has not been run. 

The study is: "Are forensic experts biased by the side that retained them?" by Daniel C. Murrie, Marcus T. Boccaccini, Lucy A. Guarnera and Katrina Rufino, forthcoming from Psychological Science. Contact the first author (HERE) if you would like to be put on the list to receive a copy of the article as soon as it becomes available.

Click on these links for lists of my numerous prior blog posts on the PCL-R, adversarial allegiance, and other creative research by Murrie, Boccaccini and their prolific team. Among my all-time favorite experiments from this research team is: "Psychopathy: A Rorschach test for pychologists?"

God's Jury: Exploring Inquisitions, then and now

The word "Inquisition" harkens back to medieval Europe - Italy, Spain, Portugal and the Catholic Church. But in Cullen Murphy's frightening account, that repressive past was only prologue: The self-propagating bureaucracies of the modern world contain the seeds of inquisitions potentially far vaster and more destructive than anything wrought by the Catholic Church. 

Murphy seamlessly traces the 700-year history of successive Catholic Inquisitions to expose their underlying mechanisms, and highlight the fundamental similarities between then and now. The "enhanced interrogation" practiced at Guantanamo is not so different from the Roman rigoros esamine (rigorous examination), he explains. Indeed, modern interrogation methods as outlined in a U.S. Army manual eerily parallel to the sophisticated techniques first outlined in an inquisition manual from the 1300s.

Inquisition waterboarding

Murphy, himself a Catholic, encourages us to broaden our historical lens to see that inquisitions need not necessarily be religious. They can occur any time members of a dominant group - whether religious, political, corporate or national - appoint themselves "God’s jury," believing that they alone are privy to the true and right path. The "inquisitorial impulse" springs directly from moral certainty. Think about the inquisitions over the last century alone, just in the United States: The Palmer Raids (an early Red Scare led by the young J. Edgar Hoover), The Japanese internment, Cointelpro, the Patriot Act. The McCarthy Era alone was more far-reaching than any church inquisition, he argues.

But inquisitions require certain tangible assets, and it is these that the modern world possesses in abundance:  

• A bureaucratic machinery: Bureaucracies are self-perpetuating and expansionistic. They require no evil conspiracy at the helm. Take the Transportation Security Administration, whose methods since 9/11 have grown ever more "invasive, mindless, and routine": A single "credible tip" can get one's name added to the 440,000 on a secret terrorism watch list; but people are not allowed to find out if their names are on that official list. Shades of the inquisition? Repressive regimes are, at base, record-keeping regimes.

• Surveillance: As far back as 1796, philosopher Johann Gottlieb Fichte noted that "the chief principle of a well-regulated police state" was the ability to identify its citizens and keep track of their activities and whereabouts. Murphy shows how the modern surveillance state has expanded to new heights in the wake of 9/11, especially in the United States and in England. As a British surveillance leader justifies it, "If you've got nothing to hide, you've got nothing to fear." The game of surveillance, says Murphy, ratchets forever upward, so that what was heretofore unimaginable is constantly becoming the new normal. 

• Censorship: Just as the Vatican has its catalogues of banned books (which Murphy spent time examining), the Internet has its "choke points" that can be manipulated to deny the public access to information.  Less obvious but no less sinister are today's "mobious strips of the like-minded," creating an "epistemic closure" in which people are able to avoid exposure to information that might challenge their assumed realities.

Whereas both the targets of an inquisition and the motives of the inquisitors can shift with time and place, these tangible underpinnings - proof of identity, efficient record-keeping, a network of informers, surveillance, denunciations, interrogations - remain constant. And they are all ubiquitous in the modern world. 

 

The history lessons Murphy is able to impart in God's Jury owe in part to the Vatican's decision to open its archives (although only up to 1939) to outside scrutiny, an unprecedented boon to scholars. Murphy is a fluid writer, and his descriptions of the archives and their contents  contain so many riveting nuggets that the book's pages fairly turn themselves. 

Forensic psychologists may be especially interested in his description of interrogations and false confessions, so parallel in many ways to what we witness today in style, if not in content. Armed with a manual on witchcraft, Mallens Maleficarum (which Murphy describes as a cross between Monty Python and Mein Kampf), inquisitors sallied far and wide in search of purported witches, whom they coerced through now-familiar techniques of shaping to admit to such things as having sex with the devil. 

God's Jury is unsettling. But Murphy does offer a ray of hope. Just as the inquisitions of yester-year were extinguished by the Enlightenment ("the intellectual equivalent of habitat destruction"),  Murphy maintains that there is a remedy for contemporary inquisitions. He does not believe they can be legislated away, although more power to those who are valiantly trying to place legal limits on repression. Rather, he believes that "the most effective ally" against inquisitionism is the "seventh virtue" of humility. Inquisitions can only occur, he argues, when those in power insist with absolute certainty that they hold the one and only absolute truth, and that everyone else is wrong. 

If you found this review worthwhile, I would greatly appreciate your taking just a moment to go to my Amazon review (click HERE), and click on the "YES" button at the bottom (this review was helpful). This will help boost the review's ranking. Thanks in advance.  

Of related interest: NPR's "The inquisition: A model for modern interrogators," which includes a downloadable podcast and an excerpt from God's Jury

A tale of two prison systems: Whither the future?

California's beleaguered prison system got more bad headlines today for suppressing a report warning that prison suicide-watch practices were actually fostering suicide. The suppressed report, by a national expert on prison suicide, described suicidal prisoners being stripped of their clothes, placed in “safety smocks,” and then held for days "in dim, dirty, airless cells with unsanitized mattresses on the floor," according to today's Los Angeles Times. The horrific conditions encouraged prisoners "to declare they were no longer suicidal just to escape the holding cells. Many of them took their own lives soon after."

The state directed its consultant, Lindsay Hayes, to write a sanitized version of his report to give to a court monitor and lawyers for prisoners, according to court records reviewed by Times reporter Paige St. John. And when prisoner lawyers were nonetheless able to get a copy of the full report, which called the treatment of suicidal prisoners "punitive" and "anti-therapeutic," the state made an unsuccessful effort to have a judge order the report destroyed.

There were 32 prison suicides in California in 2012, above the national average in the United States.

Meanwhile, more than 5,000 miles and an ocean away, sits a peaceful island prison which has not seen a single suicide in its two decades of operation. Bastoy, an island prison in Norway, with no bars or concertina fences, bills itself as "the first ecological prison in the world."

It might not seem fair to compare California prisons with those in Norway, a small and homogeneous nation with only 4,000 prisoners all told. But Norway's forward-looking penal philosophy is worth a gander. The idea is to build people up into productive citizens, rather than to tear them down. To "generate hope instead of despair" in the words of Erwin James, himself a former prison lifer in the UK who recently toured Bastoy and wrote about it for the Guardian. 

Debarking from the ferry, James found an atmosphere more akin to a religious commune than the British prisons he was accustomed to. "There is a sense of peace about the place," he wrote, describing the brightly painted wooden bungalows where the island's 115 prisoners live in groups of up to six, cooking their own meals with money earned from prison jobs and food purchased at the "well-stocked mini-supermarket."

A quick dip after work, Bastoy Prison

Norway has no death penalty or life sentences; the maximum sentence is 21 years. Prisoners can apply to Bastoy when they are down to the last five years of their sentences. They must commit to non-violence and a drug- and alcohol-free lifestyle.

Who wouldn't take a deal like that, to live in an idyllic beach resort while learning the life skills necessary to reintegrate into society? Even when the sea ice was frozen solid last winter, not a single convict walked away.

"In closed prisons we keep them locked up for some years and then let them back out, not having had any real responsibility for working or cooking," explains director Arne Nilsen, a clinical psychologist. "In the law, being sent to prison is nothing to do with putting you in a terrible prison to make you suffer. The punishment is that you lose your freedom. If we treat people like animals when they are in prison they are likely to behave like animals. Here we pay attention to you as human beings."

The proof of Norway's philosophy is in the pudding: Balstoy's re-offense rate of just 10 percent is by far the lowest in Europe. Compare that to California, where seven out of ten released prisoners bounce back into custody within three years, the highest rate in the United States.

Click on image to see 5-minute YouTube feature on Bastoy

One of the guards showing James around the island looks at him with disbelief when he tells her that prison officer training in the UK lasts only six weeks. In Norway, the training takes three years. Here in California, meanwhile, basic training lasts 16 weeks, with a focus on "effective use of force," "restraint devices" and "cell searches."

Ad for prison suicide smock

And what, pray tell, are the guards in Norway spending all of that time studying?

"There is so much to learn about the people who come to prison," the guard explains to James. "We need to try to understand how they became criminals, and then help them to change."

With a rehabilitative philosophy like that, let's just hope that Bastoy -- and not California or the UK -- represents the way of the future. After all, by treating prisoners with respect and humanity, Norway is also creating a safer world.

Hat tip: Jane

Tipping points: Of life, death and psychological data

Forensic psychologists and the machinery of execution

Andre Thomas, Texas

When Andre Thomas killed his wife and children, he was careful to use three different knives so that "the blood from each body would not cross-contaminate, thereby ensuring that the demons inside each of them would die," as Marc Bookman explained it in an eloquent Mother Jones report. Then, he cut out their hearts and went to the police station to confess. While awaiting trial, he cut out one of his eyes. Later, he cut out the other, eating it in order to keep the government from using it to spy on his mind.

In response to changing social mores and international condemnation (only a handful of countries remains in the business of killing their wayward citizens), the U.S. Supreme Court in 2002 exempted the mentally retarded from execution, following up three years later by exempting juveniles. With this narrowing of the contours of capital punishment, the question of how mentally impaired one must be to avoid execution is increasingly in the forefront. That makes severe mental illness "the next frontier" of capital jurisprudence, in the words of psychology-law scholar Bruce Winick.

How insane?

Executing the floridly insane constitutes cruel and unusual punishment, barred under the Eighth Amendment of the U.S. Constitution. However, the "Ford standard" for competency to be executed is very low; a condemned person need merely understand the link between his crime and his punishment. In Thomas's case, the government insists that he is not insane enough to be spared, despite chronic auditory hallucinations, delusions, and treatment for paranoid schizophrenia. 

Making this case especially ironic is that Thomas has become a poster child for the need for new laws allowing preemptive detention of people whose mental illness makes them dangerous. "At least twice in the three weeks before the crime, Thomas had sought mental health treatment," reports the Texas Tribune in a series on mental health and the criminal justice system. "On two occasions, staff members at the medical facilities were so worried that his psychosis made him a threat to himself or others that they sought emergency detention warrants for him. Despite talk of suicide and bizarre biblical delusions, he was not detained for treatment."

John Errol Ferguson, Florida

With the U.S. Supreme Court declining to draw a bright line, the question of exactly how rational a condemned prisoner's understanding must be in order for an execution to proceed has become central to legal appeals by psychotic prisoners like Thomas. Another current example is the case of John Errol Ferguson, a mass killer in Florida whose October execution was stayed due to concerns about his mental state. Ferguson's long history of paranoid schizophrenia is undisputed; the question is whether his grandiose and religious delusions interfere with his understanding that the state is going to kill him for his crimes, and that when he dies he will be, well, dead.

Ferguson's lawyers have argued that the killer lacks rational understanding, because he believes he is "the Prince of God" and will be returned to Earth post-execution to save the world from a communist plot. The state of Florida counters that all that is required to be competent for execution is that a prisoner have an "awareness" that he is set to be executed for crimes he committed. To resolve the dispute, Florida's governor appointed a panel of experts to collectively evaluate Ferguson; a lower court also heard extensive testimony from prison personnel and other mental health experts, including malingering expert Richard Rogers, who administered a large battery of malingering tests and opined that Ferguson was not faking mental illness. Ultimately, the circuit court found little to distinguish Ferguson's belief system from typical religious ideation:

"There is no evidence in the record that Ferguson’s belief as to his role in the world and what may happen to him in the afterlife is so significantly different from beliefs other Christians may hold so as to consider it a sign of insanity."

How intellectually impaired?

Meanwhile, with the categorical exemption of prisoners with mental retardation from the death row rosters, courts around the nation are seeing pitched battles over intelligence scores that can make the difference between life and death. On each side of the IQ Wars in so-called Atkins hearings (named for the 2002 U.S. Supreme Court decision barring execution of the developmentally disabled) are neuropsychologists whose testimony delves into the technicalities of margins of error, practice effects, and the now-familiar Flynn Effect. This latter phenomenon of IQ inflation, in which scores on any given IQ test rise by about three points per decade, creates a situation in which a person on the cusp of mental retardation might score over 70 -- making him eligible for execution -- on an older IQ test but not on a newer one.

Ronell Wilson, New York

Take the case of Ronell Wilson in New York, who murdered two undercover police officers. His nine-day Atkins hearing earlier this winter featured seven experts dissecting nine IQ scores obtained over a 13-year period. In its 55-page opinion, the U.S. District Court spent many pages explaining why a 95 percent confidence interval (a range of two Standard Errors of Measure on either side of a score, something commonly reported in clinical practice) was inappropriate in Atkins claims, because it could place people into the range of mental retardation even if they score well above 70 on IQ tests. The court instead opted for a 66 percent confidence level. Either way, it was all much ado about nothing: "Even after taking into account the possibility of measurement error, the Flynn Effect, and (to a limited extent) the practice effect," Wilson's IQ scores ranging from 70 to 84 were "simply too high to qualify him under the definition of significantly subaverage intellectual functioning."

As Peter Aldhous reports in the New Scientist, the outcomes of these IQ battles vary widely by jurisdiction (and quality of lawyering, I would imagine). Overall, 38 percent of Atkins claims are successful, according to a study at Cornell Law School, but the success rate is 81 percent in North Carolina compared with only 12 percent in Alabama. A convicted killer named Earl Davis with IQ scores of 75, 76, 65 and 70 was spared execution on the basis of the Flynn effect. But that same effect was not persuasive in the case of Kevin Green of Virginia, whose mean IQ score was actually three points lower than Davis's (71, 55, 74 and 74); Green was executed in 2008.

Texas, meanwhile, which has carried out more than one-third of all executions in the United States since capital punishment was reinstated, has come up with its own unique standard of mental retardation, based on the character Lennie from John Steinbeck's Of Mice and Men. Wrote the Texas Court of Criminal Appeals in a 2004 explication of the level of mental retardation necessary to avoid the death penalty: 

"Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"

A technical spectacle

Whereas in the real world intelligence and insanity are continuous variables, the law chooses to treat them as dichotomous. Psychologists assist in promoting this legal fiction, helping to sort the condemned into discreet categories of sane or insane, mentally retarded or able-minded. Although the tests we used are supposedly objective, data in this highly polarized area can be skewed to favor one outcome or the other. Neuropsychology experts hired by the defense may focus on the Flynn Effect and argue for large confidence bands around IQ scores. Meanwhile, at least one "go-to" psychologist for prosecutors in Texas took a decidedly different approach, systematically skewing data so that more marginally functioning men were made eligible for execution.

Denkowski's Atkins cases, Texas Observer

George Denkowski developed his own method of evaluating Atkins claims, based on his idea that individuals on Death Row may do poorly on traditional tests because of cultural and social factors rather than lack of intellectual ability. So he discounted evidence that defendants, for example, could not count money or take care of their basic hygiene, reasoning that maybe they just were not taught those skills. With an inmate named Daniel Plata, for example, Denkowski bumped up his IQ score from 70 to 77 and his score on a test of adaptive functioning from 61 to 71. He even  published an article in the American Journal of Forensic Psychology in 2008 in which he explained this system of clinical overrides. Complaints by fellow psychologists that his technique had no scientific basis eventually led the Texas State Board of Examiners of Psychologists to issue a reprimand and to bar him from conducting future intellectual disability evaluations in criminal cases. He admitted no legal wrongdoing but agreed to a $5,500 fine -- a pretty lightweight penalty considering that two of the 29 condemned men he evaluated were executed.

Unethical as his method was, it did give attention to the issues of race and class, which may hide in plain sight when appeals revolve around the technical interpretations of psychological test data. It is Constitutionally impermissible for race to be considered in capital cases. But it stretches credulity to believe race played no role, for example, in the case of eye-plucking Andre Thomas: Thomas is African American, his late wife was white, all of the jurors were white, and four jurors had acknowledged opposition to interracial marriages. In the very last sentence of his closing argument for the death penalty, reported Bookman in the Mother Jones piece, the prosecutor asked jurors whether they would be willing to risk Thomas "asking your daughter out, or your granddaughter out?" This in the town of Sherman, which burned its entire Black district to the ground in 1930 during a race riot triggered by -- what else -- rumors that a Black man had raped a white woman.

Trauma as common denominator

Setting aside the technical criteria for insanity and mental retardation, if one could boil capital cases down to one common denominator, it would be trauma. In my experiences working in the capital trenches, I have found that most Death Row denizens survived horrific childhoods dominated by physical, sexual and emotional torture and neglect, combined with multi-generational patterns of mental illness and violence, all overlaid with hard-core substance abuse.

As forensic psychiatrist Pablo Stuart described this phenomenon in an interview with reporter Scott Johnson at Oakland Effect, a journalism project focusing on violence in Oakland, California, “the fact that there is such consistency on these cases is significant. Some of these people, they just never had a chance.”

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Related resources:

The Mother Jones report on Andre Thomas is HERE; the audio podcast, read by M*A*S*H star Mike Farrell, can be downloaded or listened to HERE. My 2009 posts on the Andre Thomas case are HERE and HERE.
 
My prior posts on the Ford standard of competency and the U.S. Supreme Court's decision in the case of Leon Panetti (with links to court rulings and lots of related resources) are HERE, HERE and HERE. The U.S. Supreme Court's 2007 opinion in Panetti v. Quarterman is HERE. A 28-minute educational video, "Executing the Insane: The Case of Scott Panetti," is available HERE.

My 2010 post on the Denkowski case is HERE.

Psychologist Kevin McGrew's master archive on the Flynn Effect is HERE.

Related books include Michael Perlin's Mental Disability and the Death Penalty: The Shame of the States (the first chapter of which can be previewed HERE) and Daniel Murrie and David DeMatteo's Forensic Mental Health Assessments in Death Penalty Cases.