Psychologist whistleblower awarded $1 million; fired after testifying about state hospital's competency restoration program

In an unprecedented case, a civil jury has awarded $1 million in damages to a psychologist who was retaliated against after she challenged the validity of a state hospital's competency restoration methods.

Experts at the trial included Thomas Grisso and Randy Otto, prominent leaders in the field of forensic psychology who have written and taught extensively on best practices in the assessment of competency to stand trial.

After a five-week trial with dozens of witnesses, the jury found that Napa State Hospital failed to apply generally accepted professional standards for competency assessment and coerced its psychologists to find patients competent to stand trial "without regard to the psychologist's independent professional judgment, and without application of objective, standardized, normed, and reliable instruments."

Photo credit: J. L. Sousa, Napa Valley Register

Melody Samuelson, the psychologist plaintiff, ran afoul of her supervising psychologists at the Northern California hospital in 2008, when she testified for the defense at a competency hearing in a capital murder case in Contra Costa County. She had treated "Patient A" the prior year and had doubts about whether he was capable of being restored to competency, as his current treatment team claimed. Both the prosecutor and a hospital psychiatrist who testified for the state complained about Samuelson's testimony to then-Chief Psychologist James Jones, who launched an investigation that ultimately led to Samuelson's firing.

Samuelson was reinstated after a three-day hearing in 2011. An administrative law judge ruled that hospital administrators had failed to prove that Samuelson overstated her credentials during her 2008 testimony. Samuelson was not yet licensed at the time.

Samuelson subsequently filed a civil suit against the hospital, the chief psychologist, and two other supervising psychologists, claiming they engaged in a string of retaliatory actions against her even after her reinstatement. These actions included initiating a police investigation for perjury and taking action against her state license. She said she incurred the wrath of hospital administrators by repeatedly objecting to sham competency restoration practices designed to get defendants out of the hospital as quickly as possible, whether or not they were actually fit for trial.

Napa is the primary state psychiatric hospital serving Northern California, and houses defendants undergoing competency restoration treatment and those found not guilty by reason of insanity.

It has long been general knowledge that the overcrowded hospital routinely certifies criminal defendants as mentally competent with little seeming regard for whether they are truly fit to stand trial. I have evaluated many a criminal defendant shipped back to court with a formal certificate of competency restoration, whose mental condition is virtually identical to when he was sent to Napa for competency training in the first place. (Typically, such defendants now proudly recite random legal factoids that have been drilled into them -- such as "the four pleas" -- that are often irrelevant and unnecessary to their cases.)

But until Samuelson blew the whistle, there was little direct evidence from within the institutions of intentionality rather than mere bureaucratic incompetence. Samuelson alleged in her civil complaint that Chief Psychologist Jones "made clear to Samuelson that he was committed to … returning patients to court as competent to stand trial, and to minimizing the time for attaining such positive outcomes, regardless of the actual competency of individuals to stand trial."

According to Samuelson’s lawsuit, one reason that psychologists were pressured to find patients competent was to improve outcome statistics as mandated by a federal consent decree. In 2007, around the time of Samuelson’s hiring, the U.S. Attorney General's Office negotiated the consent decree mandating sweeping changes aimed at improving patient care and reducing suicides and assaults at Napa. The federal investigation had revealed widespread civil rights violations, including generic "treatment" and massive overuse of seclusion and restraints. 

Rote memorization

A longstanding criticism of the hospital's competency restoration program is that it focuses on rote memorization of simple legal terminology, ignoring the second prong of the Dusky legal standard, which requires that a defendant have the capacity to rationally assist his attorney in the conduct of his defense.

In her lawsuit, Samuelson accused the hospital of violating the standard of care for forensic evaluations and treatment by relying upon subjective assessment methods that are easily skewed. Defendant progress was measured using an unstandardized and unpublished instrument, the Revised Competency to Stand Trial Assessment Instrument, or RCAI, and a subjectively scored "mock trial" that was scripted on a case-by-case basis by poorly trained non-psychologists, the lawsuit alleged.

According to testimony at the Napa County civil trial, the hospital drilled patients on simple factual information about the legal system rather than teaching them how to reason rationally about their cases. Staff distributed a handbook outlining the factual questions and answers, posted the RCAI items at the nurse's station, and administered the RCAI repeatedly, coaching patients with the correct answers until they could pass the test.

Although forensic psychology experts Grisso and Otto were retained by opposite sides -- Grisso by the hospital and Otto by the plaintiff -- they agreed that this process falls short of the standard of practice in the field. It ignores the Constitutional requirement that, in order to be fit for trial, a criminal defendant must have a rational understanding of his own case as well as the capacity for rational decision-making. 

It has long  been my observation that the hospital's program was generic and failed to address defendants' specific legal circumstances. Both Grisso, who authored one of the earliest and most widely referenced manuals for assessing competency to stand trial, now in its second edition, and Otto, co-author of The Handbook of Forensic Psychology and other seminal reference works, testified that competency evaluations must address the defendant's understanding of his or her own specific legal circumstances, sources close to the case told me.

Disclosure of test data unethical?

Another pivotal issue at trial, according to my sources, was whether Samuelson's disclosure of test data from two competency instruments she administered -- the Evaluation of Competency to Stand Trial-Revised (ECST-R) and the MacArthur Competence Assessment Tool (MacCAT-CA) -- was improper. Samuelson disclosed the data at Patient A's 2008 competency hearing, after obtaining an authorization from the patient and a court order from the judge.

The hospital peer review committee that first recommended Samuelson's firing reportedly claimed that this disclosure was unethical and a violation of the American Psychological Association's Ethics Code.

Nothing could be further from the truth. The current version of the Ethics Code contain no prohibition on this type of disclosure in legal settings. Furthermore, fairness dictates that the legal parties be allowed to view data that are being invoked to decide a defendant's fate, so as to be able to independently analyze their accuracy and legitimacy. 

The jury levied $890,000 in damages against the hospital, $50,000 personally against Jones, described in the lawsuit as "the ringleader" of the campaign against Samuelson, and $30,000 each against two other supervising psychologists -- Deborah White and Nami Kim -- who allegedly conspired with Jones. Although punitive damages were not awarded, the jury found that the three psychologists acted intentionally and with "malice, oppression or fraud" toward Samuelson.

The state has until the end of next month to appeal the verdict, according to reporter Jon Ortiz of the Sacramento Bee, the only media outlet to cover the verdict so far.

Hat tip: Gretchen White

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The Sacramento Bee report on the verdict is HERE. Dr. Samuelson’s civil complaint is HERE; the jury’s verdicts are are HERE. 

. . . And, speaking of psychiatric care -- I highly recommend this incredible story of the one-of-a-kind town of Geel, Belgium. (Hat tip: Ken Pope) 

UPDATE: On Oct. 28, 2016, California's First District Court of Appeals denied an appeal by the state hospital, upholding the jury's verdict except for one portion of the monetary damages. In its detailed opinion, the appellate court fleshes out the rights of psychologist whistleblowers who come to believe that assessments are being conducted in a potentially unlawful manner within an institutional setting. One of the more fascinating issues addressed in both the trial and the appeal was the principle that institutional failure to properly tailor competency restoration training and assessment to the Dusky legal standard -- which mandates that an accused have the capacity to rationally assist his or her attorney -- constitutes a violation of the U.S. Constitution. "If, as plaintiff's counsel argued, [Napa State Hospital] personnel were certifying to the trial court that patients were competent to stand trial without properly assessing their competency, a patient's constitutional due process rights could potentially be implicated," the appellate court noted in approving Samuelson's right to have argued this point in the closing arguments of the trial. 

(c) Copyright Karen Franklin - All rights reserved

Child custody lore: The case of the runaway woozle

The bond between infant and mother is the bedrock of healthy child development When parents divorce, shared custody arrangements destabilize this primary attachment bond, leading to serious developmental problems in children. In general, mothers should maintain sole physical custody of children up until the age of four.

This is the consensus of a growing body of research. 

Or is it?

Do you remember when Winnie the Pooh and his friends became obsessed with the fear that a dread woozle was stalking them in the woods, only to realize that they were seeing their own footsteps? In science, a woozle is much the same. It’s a belief or claim that gains traction due to repeated citation, despite its lack of empirical support. Often, it’s an idea that appeals to members of the news media, politicians or the general public, because it fits with conventional wisdom or is politically expedient.

In the realm of child custody policy, the idea that shared parenting is a bad thing is a behemoth woozle that’s been trotting around the globe virtually unchallenged of late, according to Linda Nielsen, a professor of education at Wake Forest University in North Carolina and an outspoken proponent of shared parenting.

Nielsen’s case, methodically argued in the current issue of Psychology, Public Policy and Law, is pretty convincing. When you peel back the layers of the onion, the much-touted “body of research” about the dangers of shared parenting plans for infants and toddlers consists primarily of one severely flawed study. It's been so oft-repeated in academic journals, news media reports, and legislative hearing rooms that it has gained an aura of ultimate truth even as contradictory evidence from other studies -- finding either no ill effects or even developmental benefits to shared custody -- has been side-railed.

The much-ballyhooed study, by clinical psychologist Jennifer McIntosh and colleagues, was part of a report commissioned by the Attorney General’s office in Australia in 2010. According to Nielsen, the so-called “preschooler study” was driven by outmoded theoretical assumptions about mother-infant attachment that are not supported by recent empirical studies. McIntosh leans heavily on the work of neuroscientist Allan Schore. She quotes Schore as claiming that small children do best when they have only one primary caregiver tending to their bedtime routines, and that women’s brains are more neurologically equipped than men's for communicating with and forming attachments to infants.

Nielsen starts by pointing out some obvious problems (which others in the field have noted) with generalizing from the Australian preschooler study. Sample sizes were small, the majority of the parents had never been married to each other (one-third hadn’t even lived together), etcetera.

But it’s when she drills down into the intimate details of the study’s procedures that things get interesting. The woozle’s claim that “overnighting” (spending nights with their father) is bad for children rests on four negative findings – increased watchfulness; irritability, persistent gazing, and frequent wheezing. Yet, the methods used to measure these constructs were novel, and lacked any established reliability or validity. To take just two examples:

• Wariness/ watchfulness in the mother’s presence: The rationale for measuring watchfulness was that some attachment theorists believe it to be a sign of insecurity and anxiety. The researchers created a “visual monitoring scale” by cribbing three items from a longer instrument. Mothers were asked how often the infant: (1) looked at her to see if she was watching, (2) tried to get her attention when she was being inattentive, and (3) tried to get her to notice or look at interesting objects. The researchers concluded that the infants in the frequent overnighting group – who scored higher on this novel scale -- were exhibiting signs of stress. This is problematic on its face, since this scale has not been established as a reliable or valid measure of insecurity, anxiety, stress, or attachment. But, more fundamentally – and quite ironically – the Communication and Symbolic Behavior Scales from which the items were drawn is intended to assess infants’ communication skills and language readiness. Thus, high scores on these items are interpreted as positive rather than negative -- indicating an infant is more developmentally advanced and poised to begin talking. Hardly evidence of impaired attachment and the perils of shared parenting. 

• Wheezing: The researchers proposed wheezing as a sign of stress due to a “negative emotional environment.” They measured wheezing by asking the mother one yes-or-no question: “Does your child wheeze at night more than four times a week?” Setting aside the fact that single-question instruments are known to be unreliable, the researchers went with the a priori assumption that wheezing is a psychosomatic symptom, ignoring significant evidence of alternate causes. Wheezing, indeed, has well established genetic, physiological and environmental components “having nothing to do with stress or family dynamics,” Nielsen points out. These include low parental income and – logically enough -- exposure to pollutants, cigarette smoke, pets, cockroaches, mildew and the like. According to Nielsen, none of the three studies that the authors cite to support their hypothesized link between attachment stress and wheezing do in fact support such a conclusion.

Despite these and other flaws as meticulously deconstructed by Nielsen, the preschooler study has been enormously influential in professional organizations, legal settings, and public policy discourse around the globe. From Australia to the United Kingdom to Israel and the United States, “it has been cited as grounds to set limits on shared parenting, to the exclusion of almost all of the other studies that have examined outcomes for children in shared parenting families."

Beyond the issue of child custody law and policy, this article is a great teaching tool applicable to other areas of psychology-law in its illustration of how social science data can “woozle” academics and the general public alike into swallowing things that are not true.

Next up, I’m hoping someone will conduct a similar scholarly analysis of the perplexing problem of woozles’ kinfolk, the Heffalumps of Winnie the Pooh's psychedelic nightmare.

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The article, “Woozles: Their Role in Custody Law Reform, Parenting Plans, and Family Court,” can be requested from the author (HERE).

 Hat tip: Mark Worthen, PsyD

Dutch forensic psychology blog interviews this blogger

Forensic psychology bloggers are few and far between, so I was delighted to make the acquaintance of Harald Merckelbach, a psychology professor at Maastricht University in the Netherlands who co-hosts -- you guessed it -- a "Forensische Psychologie Blog." Maastricht University, in case you are not familiar with it, is an internationally oriented school that -- together with Portsmouth in the UK and Gotheborg in Sweden hosts a three-year Ph.D. program in legal psychology funded by the European Union that is open to excellent candidates from the USA and Canada (check it out HERE).

Dr. Merckelbach interviewed me for his blog. In case you aren't fluent in Dutch, I thought I would post the English version of the interview, "Van Journalist Naar Forensisch Psycholoog: Interview met Karen Franklin":

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Dr. Merckelbach: Can you give some background statistics on your forensic psychology blog? 

Dr. Franklin: Thanks for the opportunity to give you some background on the blog. When I started the blog seven years ago, it was just out of curiosity, dipping my toe into online media. I never imagined it would grow to its current size and scope. Now, almost a thousand posts later, the blog and my mirror blog at Psychology Today (“Witness”) have gotten about 700,000 hits, and the subscriber base just keeps growing. But more than the quantity of subscribers and readers, I have been gratified by the quality. Subscribers cross professional disciplines and include forensic practitioners, attorneys, professors, researchers, criminologists, journalists, students and public policy advocates. The majority are from English-speaking countries including the United States, Canada, England and Australia. But subscribers also hail from dozens of other countries, from Saudi Arabia and Turkey to Scotland and Lithuania. Not to mention the Netherlands, of course.

Dr. Merckelbach:  You were trained as journalist and legal reporter before you entered the forensic psychology scene. In your post “What’s it take to become a forensic psychologist?” you say that forensic psychologists should have excellent writing skills. Did your career as a journalist help you in that regard? Do you think that forensic psychology programs should include courses on journalism? 

Dr. Franklin: My education and training in journalism has definitely been a big asset. (And it is undoubtedly what spurred me to start the blog, as once writing gets in your blood, it’s hard to stop.) Journalism school teaches writing as a craft, and working in the field -- as a daily newspaper reporter – forces a certain efficiency in writing. In my graduate school teaching, I have definitely noticed that many students do not realize how critical writing precision is to success as a forensic psychologist. Only a small portion of forensic cases result in expert witness testimony. But almost all involve a written report. So our reputations rest largely on our written product. I don’t think psychology programs need to include courses on journalism, but I would certainly favor a lot more focused attention to students’ report-writing skills. I try to teach my students to edit their work carefully, and to take the time to produce multiple drafts, rather than thinking that they are finished after they have typed out a first draft. Writing is hard work, and requires concentrated practice.

That post on forensic psychology as a career is my most popular blog post, by the way. Posted back in 2007, it still gets multiple hits every day, attesting to the popularity of this field.

Psychology Professor Harald Merckelbach

Dr. Merckelbach:  It is impressive to see on your site this listing of highly diverse topics that you wrote about: 35 on psychological testing, 81 on expert witnesses, 60 on wrongful convictions, 27 on malingering and so on. What is the topic that keeps you awake most? 

Dr. Franklin: That’s a great question. When I first started blogging, I didn’t have a specific focus. I didn’t know whether to cover the field broadly or focus in on a few topics more narrowly. I wasn’t sure whether to do straight reporting or critical commentary. One beauty of blogging, it turns out, is that you can do both, like being a news reporter who also writes a weekly opinion column. But it took me awhile to find my voice.

Looking around the blogosphere, I was especially influenced by Vaughan Bell, who hosts a superb neuroscience blog called Mind Hacks, and Scott Henson, a fellow ex-journalist who writes about Texas justice at Grits for Breakfast. Both of them are skillful at blending facts and analysis. They are also far more prolific than I will ever be.

Gradually, I did find my own voice. I realized that there are plenty of academic journals supplying research findings. And there are plenty of news stories on any given topic, easily accessible through a quick Internet search. And running a blog all by myself, in my spare time, I could never hope to cover everything. So the best way I could be of service to the professional community was to provide a critical perspective on major issues and developments in the field, things that captured my attention and that I felt passionate about.

I can’t say that any topic keeps me awake at night. But an overarching concern of my blog is the ways that bureaucracies of social control deploy forensic psychology to provide a scientific veneer for injustice. So, for example, here in the United States we see the prejudicial label of “psychopathy” being used as a scientific rationale for sending juveniles to adult prisons for life. And what is most alarming is when forensic psychologists within the institutions of containment rationalize such practices as serving the greater good. This theme of moral disengagement, which grew out of my blog writings, became the topic of my keynote speech to the national association of forensic psychologists in Australia a few years ago. It’s a dangerously slippery slope. We end up with the American Psychological Association deciding not to punish psychologist John Leso for participating in the torture of prisoners at Guantanamo, a blatant human rights violation.

Dr. Merckelbach: Apropos malingering: some years ago, you wrote an article on 22-year-old Mr. Chavez who was sentenced to 25 years of prison because he had walked around with a weapon that he occasionally fired, while exhibiting bizarre behavior. The state hospital experts testified that he was a malingerer, but you – as a defense retained expert – discovered that they had based their opinions on erroneous scoring and interpretation of a malingering test (the SIRS). A disturbing story. Do you think that this type of problem occurs on a wide scale? 

Dr. Franklin: Yes, I do believe this is more widespread than is generally recognized. Whenever you have concentrations of people with no social power and no voice, such as in prisons and psychiatric hospitals, you are going to have abuses. That is what Piper Kerman illustrated so well in her bestselling memoir, Orange is the New Black, about her year in a women’s prison. In the Chavez case, it was a novice intern working under lax supervision. Professionals in government hospitals and prisons tend to get institutionalized, and some of them stop seeing their subjects as worthy human beings. This gets back to the issue of our moral and ethical obligation not to collude in injustice. I’m reminded of the case I just read about in which a man spent most of the past 40 years locked up in a psychiatric hospital for the theft of a $20 necklace. The poor guy, Franklin Frye, was 70 years old before someone finally noticed. I mean, how does that happen? Why wasn’t anyone paying attention?

Dr. Merckelbach: I like your blogs about biases, for example the one about authorship bias, i.e. the phenomenon that test designers report more hallelujah statistics about their risk assessment tools than independent researchers. Makes one think of researchers who are involved in the Prozac business. It leaves one with a somewhat gloomy impression of our discipline. Do you, at moments, say to yourself: "What a field, let’s get back to journalism?"

Dr. Franklin: I got out of journalism when I saw the writing on the wall, just as corporate monopolization began to get a stranglehold on the industry. The newspaper that I worked for was bought by a chain that was only interested in profits. And that has now happened throughout the newspaper industry. Rupert Murdoch’s empire now stretches around the globe, and Amazon’s billionaire owner just bought the Washington Post. That latter purchase was especially iconic for me, because I entered journalism school during the heyday of muckraking journalism, when Washington Post reporters Bob Woodward and Carl Bernstein were being heralded as role models for exposing the Watergate scandal and bringing down a corrupt administration. So, no, I haven’t regretted leaving journalism. After all, I can always blog!

Dr. Merckelbach:  What about writing a book in which you bring together all these fine blogs?

Dr. Franklin:  I’ve thought about it. I just have to find the time.

Thanks again for asking me to do this interview, and also for your own fine blog. I’ve been amazed at the dearth of forensic psychology blogs, so I was excited to discover yours. I hope others will join in. Blogging can be time consuming, but it’s also rewarding.

Dr. Merckelbach:  Thank you very much for this interview, Dr Franklin!

Appellate court rejects "past as prelude" myth

Federal judge had brushed off evidence of Native man's rehabilitation

In a strongly worded ruling, a federal appellate panel has ordered that a Native American man be freed from civil confinement due to evidence of his rehabilitation while in prison. Both a judge and an expert witness had downplayed this evidence, condemning the man as a future risk based on long-ago transgressions, the Fourth Circuit panel concluded. 

Byron Neil Antone, a 41-year-old member of the Tohono O’odham Nation of Arizona, was intoxicated when he committed a series of sexual assaults during his early adulthood. Over the course of 14 years in prison, he remained sober, worked hard, and took other steps to rehabilitate himself.

In finding that he met criteria for civil commitment as a Sexually Dangerous Person (SDP), a federal judge had glossed over the evidence of Antone's rehabilitation, including positive testimony from two prison counselors. Likewise, a government evaluator testified that she placed little weight on Antone’s good prison conduct in determining whether he lacked “volitional control” over his sexual impulses.

The justices lambasted expert witness Amy Phenix’s reliance on Antone’s early adulthood misconduct as the best evidence of his future risk.

Expert's opinion "will not carry the day"

"Dr. Phenix explained that her decision to focus on pre-incarcerative acts stemmed from her belief that actions taken while in the outside world are more accurate predictors of future behavior upon release. That is, of course, her choice, but as it relates to our review of the evidentiary record, it will not carry the day. The district court should have at the very least explained why it found Dr. Phenix’s unadorned conclusion more persuasive than that of Dr. [Roy] Daum, who specifically critiqued the former’s technique because it did not allow for a respondent’s subsequent growth."

The justices pointed out that when sex offenders engage in negative conduct in prison, such behavior weighs heavily in predicting their future risk. They listed examples from recent federal cases, including one prisoner who collected pornography and another who showed ongoing sexual interest in children.

The justices lauded Antone’s efforts to rehabilitate himself while in prison, and said his accomplishments merited strong consideration in determining whether he will sexually reoffend due to a lack of volitional control if released.

"There is not much more that he could have done to demonstrate that he is in control of his volitional faculties and that such control is likely to persist after his release.... Since upholding the constitutionality of the [Adam] Walsh Act in 2010, we have disposed of more than a handful of [Sexually Dangerous Person] appeals involving the volitional impairment prong, but none of them involved a respondent who had demonstrated such positive behavior during the extended period of his incarceration.”

A federal magistrate who presided over Antone’s three-day evidentiary hearing had ordered the prisoner freed, but a judge subsequently overturned that verdict, prompting the appeal.

"Paraphilia Not Otherwise Specified" not present

Despite differing on Antone’s volitional control, both the magistrate and the judge agreed that Antone did not suffer from the sexual abnormality of “Paraphilia Not Otherwise Specified” that was diagnosed by Dr. Phenix and Butner prison psychologist Manuel Gutierrez.

Antone’s main problem, both agreed, was his substance abuse. The judge, but not the magistrate, also believed he suffered from Antisocial Personality Disorder.

The Fourth Circuit justices pointed out that large proportions of all prisoners have problems with substance abuse and antisociality. Thus, they held, “the Government has failed to distinguish Antone’s alleged volitional impairment from that of a ‘dangerous but typical recidivist’ ” as required under the U.S. Supreme Court's 2002 ruling in Kansas v. Crane upholding the civil commitment of especially dangerous sex offenders.

Treatment paradox acknowledged

The appellate justices also expressed sympathy with Antone’s dilemma in regard to sex offender treatment. Although early in his incarceration he had sought out treatment, he declined to engage in treatment while his civil commitment petition was in process, citing the fact that any incriminating information he revealed would be used as ammunition against him.

“The district court made reference to the fact that Antone had not attended sex offender treatment. Antone had, however, repeatedly sought this treatment at the beginning of his incarceration to no avail. It is true that he was eventually offered sex offender treatment ... but this choice was effectively no choice at all.”

The Court cited Jeslyn A. Miller’s 2010 article, “Sex Offender Civil Commitment: The Treatment Paradox,” which explains that “[e]verything that an offender confesses during these multiple stages of treatment -- including sexual fantasies, uncharged offenses, and gruesome details regarding sexual offenses" may be turned over to prosecutors. 

“Antone is currently attending sex offender therapy,” the justices noted. “One can only be encouraged by Antone’s commitment to self-improvement, rehabilitation, and recidivism prevention.”

The elephant in the courtroom, from my perspective, is the cluster of Native Americans being detained as Sexually Dangerous Persons at the federal detention facility in Butner, North Carolina because their crimes took place on Indian reservations.So, as I’ve mentioned here previously, we have the curious situation in which a cluster of Native Americans who committed rapes while intoxicated are locked up alongside preferential pedophiles and child pornography distributors.

Which raises the question of whether the stereotype of the drunken Indian -- powerless to stop drinking and incapable of holding his liquor -- may play into government evaluators' refusal to acknowledge the possibility of change in Native American prisoners like Antone who committed sexual offenses in their youths.

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The ruling in United States v. Byron Neil Antone is HERE.

My blog post on the pop psychology myth of "past behavior as the best predictor future behavior" is HERE.

(c) Copyright Karen Franklin 2014 - All rights reserved

Risk researchers launching premium literature service

The Alliance for International Risk Research (AIRR) is launching an excellent new risk assessment resource for mental health, correctional, and legal professionals. The AIRR Executive Bulletin is being called "an exceptional resource that lawyers on both sides, judges, examiners and the rest of us practitioners in these areas of forensic mental health, treatment and law should subscribe to in order to begin to implement a uniform body of current literature and ‘Best Practices’ that continually updates going forward to facilitate development of a legal and constitutional body of law."

The subscription-based service is designed for busy professionals who want to stay up to date but simply do not have the time to locate and read the voluminous literature published each month. It aggregates research on risk assessment for violence, sex offending and general recidivism among adults and juveniles.

AIRR researchers Jay Singh and Kevin Douglas

An expert team led by top risk assessment researchers Jay Singh and Kevin Douglas systematically searches more than 80 journals and identifies every new risk assessment article published each month. The average is around 20 articles. Doctors Singh and Douglas then purchase and read every article and write a one-page, easy-to-digest summary without statistical jargon.

In addition to the monthly summary of literature, subscribers also get four online risk assessment training seminars per year from top clinical researchers, and an exclusive monthly interview with an industry leader. It's a convenient way to get continuing education credits, because the trainings are eligible for American Psychological Association and Canadian Psychological Association credits.

A sample issue is available HERE. 

You can sign up for either an individual or a group subscription HERE.  For questions, contact lead reasearcher Jay Singh (HERE).

Research review II: Sexual predator controversies

Following up on last week’s research review, here are some new articles from the ever-controversial practice niche of sexually violent predator cases:

Facts? Who cares about the facts?!

Once a jury is empaneled to decide whether someone with a prior sex offense conviction is so dangerous to the public that he should be civilly detained, the verdict is a foregone conclusion. Dangerousness is presumed based on the prior conviction, rather than having to be proven.

Researchers Nicholas Scurich and Daniel Krauss confirmed this by giving jury-eligible citizens varying degrees of information in a Sexually Violent Predator (SVP) case and asking them to vote. Some mock jurors were told only that the person had a prior conviction for a sex offense. Others were also given information that the person had a mental abnormality that made him likely to engage in future acts of sexual aggression.

It mattered not a whit. The mock jurors voted to civilly commit at the same rate, whether or not they had heard evidence of current dangerousness.

“The mere fact that a respondent had been referred for an SVP proceeding was sufficient for a majority of participants to authorize commitment,’ the researchers found. “These findings raise concerns about whether the constitutionally required due process occurs in SVP commitment proceedings.”

No surprise, really. In this practice niche more than others, fear and hype often overshadow reason. Sex offenders are not the most appealing human beings, and no one wants to shoulder the responsibility of voting to release someone who could go out and rape or molest again.

The study is:

The presumption of dangerousness in sexually violent predator commitment proceedings, Nicholas Scurich and Daniel A. Krauss, Law, Probability and Risk. A copy may be requested from the first author (HERE).

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Sexual disorder diagnoses not reliable

Meanwhile, even when jurors do hear evidence of mental abnormality, it is not especially accurate.

Examining the diagnoses given to 375 sex offenders referred for civil commitment in New Jersey, researchers found “questionable” diagnostic reliability to be a widespread problem across the range of clinicians.

Pedophilia was the only diagnosis in which two evaluators were likely to agree at a level above chance. The rates of agreement were far worse for other disorders that are typically rendered in SVP cases, including “Paraphilia Not Otherwise Specified,” Sexual Sadism, Antisocial Personality Disorder and Exhibitionism. In fact, among the six cases in which Exhibitionism was diagnosed, there was not a single case in which both clinicians agreed.

The study, by Anthony Perillo of John Jay College and colleagues, adds to a burgeoning body of literature (some of which I’ve previously reported on) suggesting that psychiatric diagnoses in SVP evaluations are often dubious and not to be trusted.

The article is:

Examining the scope of questionable diagnostic reliability in Sexually Violent Predator(SVP) evaluations, Anthony D. Perillo, Ashley H. Spada, Cynthia Calkins and Elizabeth L. Jeglic, International Journal of Law and Psychiatry. A copy may be requested from the first author (HERE).

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Race bias in actuarial risk prediction

Okay, so the diagnoses aren’t reliable. But we’ve still got another tool of science up our sleeves -- actuarial risk assessment.

Not so fast.

As I’ve previously reported, the predictive accuracy of actuarial risk assessment tools is pretty wimpy. And now, researchers from Sam Houston State University are finding that the most widely used actuarial tool, the Static-99, doesn’t work at all with Latino offenders.

The findings are based on research with a large sample of about 2,000 sex offenders, almost 600 of whom were Latino.

“Findings have implications for fairness in testing and highlight the need for continuedresearch regarding the potentially moderating role of offender race/ethnicity in risk research,” note researchers Jorge Varela and colleagues.

The study is:

Do the Static-99 and Static-99R Perform Similarly for White, Black, and Latino Sexual Offenders? Jorge G. Varela , Marcus T. Boccaccini, Daniel C. Murrie, Jennifer D. Caperton and Ernie Gonzalez Jr. International Journal of Forensic Mental Health. To request a copy from the first author, click HERE.

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How to lie with statistics: “The Area Under the Curve”

Listen to any defender of actuarial risk prediction for a few minutes, and you will likely hear "Receiver Operating Characteristics” and “The Area Under the Curve” touted as indicators of statistical accuracy.

But in a new study in the Journal of Threat Assessment, two European scholars argue that these arguments are “fundamentally misleading.” Using the Risk Matrix 2000 instrument -- widely deployed in the United Kingdom -- as an exemplar, they found that a prediction of reoffense for an offender who scored in the “Very High Risk” range will be wrong an astounding 93 percent of the time.

“The numbers necessary to detain in order to prevent one instance of recidivism are large,” write David Cooke and Christine Michie. “On further reflection, from a statistical rather than a psychological perspective, should we be surprised? It has long been recognized that low-frequency events are hard to predict.”

The authors argue that the weak performance of actuarials is being systematically camouflaged by “statistical rituals” that are confusing and non-transparent, raising fundamental questions of fairness in legal decision-making.

The article is:

The Generalizability of the Risk Matrix 2000: On Model Shrinkage and the Misinterpretation of the Area Under the Curve. David Cooke and Christine Michie. Journal of Threat Assessment and Management. To request a copy from the first author, click HERE.

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Counterpoint

Not everyone agrees with Cooke and Michie’s analysis. One detractor is Douglas Mossman, of the Department of Psychiatry at the University of Cincinnati College of Medicine. Using a fictional scenario, he attempts to illustrate how "group data have an obvious application to individual decisions.” His paper goes on to argue that “misinterpretations of mathematical concepts and misunderstanding of the aims of risk assessment have led to mistakes about the applicability of group data to individual instances.”

The paper is:

From Group Data to Useful Probabilities: The Relevance of Actuarial Risk Assessment in Individual Instances. (Unpublished.) Douglas Mossman. Paper available online (HERE).

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Who is minding the store?

If nothing else, the above research snippets demonstrate the high level of controversy and complexity in the implementation of Sexually Violent Predator laws. If psychologists -- who must master psychometrics and statistics in order to earn our PhD’s -- have a hard time with these concepts, imagine how difficult it is for attorneys. With people’s lives at stake, do they have the knowledge base necessary to avoid being hoodwinked, and to educate jurors and judges?

In a new paper, prolific legal scholars Heather Cucolo and Michael L. Perlin of the New York School of Law argue that more stringent standards for representation are necessary for effective assistance of counsel in SVP cases.

They propose that counsel should be required to “demonstrate a familiarity with the psychometric tests regularly employed at such hearings, and with relevant expert witnesses who could assist in the representation of the client.” Furthermore, they argue for a pool of court-appointed experts who could be appointed at no cost, similar to those provided in insanity cases.

“There is no question that the population in question is the most despised group of individuals in the nation. Society’s general revulsion towards this population is shared by judges, jurors and lawyers. Although the bar pays lip service to the bromide that counsel is available for all, no matter how unpopular the cause, the reality is that there are few volunteers for the job of representing these individuals, and that the public's enmity has a chilling effect on the vigorous of representation in this area.”

The paper is:

'Far from the Turbulent Space': Considering the Adequacy of Counsel in the Representation of Individuals Accused of Being Sexually Violent Predators. Heather Cucolo and Michael L. Perlin. It is available online HERE.