Federal judge calls Minnesota civil commitment program “draconian”

State lawmakers remain in paralysis as judge threatens action

This is one in a series of on-the-ground reports from clinician Jon Brandt of Minnesota on the high-profile legal battle over the civil commitment of sex offenders in his state, a battle with potentially national repercussions. 

 

Guest post by Jon Brandt, MSW, LICSW*

Three weeks ago, a federal judge issued his long-awaited ruling in a civil rights case brought by civil detainees over the constitutionality of the Minnesota Sex Offender Program (MSOP). Although stopping short, for now, of declaring the program unconstitutional, the judge ordered new procedures to make release attainable for the 700 detainees. He warned that he may ultimately find the program to be unconstitutional if he determines that it is essentially punitive or if it confines men who are no longer dangerous. “The time for legislative action is now," wrote US District Judge Donovan Frank.

Now, in mid-March, with about eight weeks left in a short legislative session, Minnesota lawmakers are indicating that they are not likely to find bipartisan support to accomplish the reforms demanded by the federal court. If the state legislature adjourns without taking action, it seems likely that the US District Court will impose federal oversight.

Withholding "unconstitutional"

Fully aware that he is knee-deep in constitutional law and up to his neck in public antipathy, Judge Frank’s Feb. 20 ruling in Karsjens v. Jesson is a demonstration of judicial restraint. Judge Frank expressed several times in his 75-page decision that it is too early, in what will be protracted litigation, to rule on the constitutionality of any part of MSOP. However, his ruling leaves little doubt that he will hold the status quo to be an unconstitutional encroachment on civil liberties:

"[I]t appears that MSOP may very well be serving the constitutionally impermissible purposes of retribution and deterrence. … If, with the benefit of discovery, [the detainees] are able to demonstrate that the commitment statutes are systematically applied in such a way as to indefinitely commit individual class members who are no longer dangerous, or that MSOP is administered as a punitive system despite its statutory treatment purpose, Plaintiffs will likely prove up their claims."

Over the past two decades, more than 700 sexual offenders, deemed dangerous by state courts, have been sent to the program for treatment. Once there, detainees complain, disingenuous treatment and onerous program goals make release virtually impossible.

Judge Frank’s ruling appears to vindicate widespread complaints over conditions of confinement and concerns of civil liberties violations. Noted the judge:

"Whether or not the system is constitutionally infirm, without prompt action on the part of the legislature and [the state Department of Human Services], MSOP’s reputation as one of the most draconian sex offender programs in existence will continue."

Right to treatment?

Detainee at Moose Lake detention facility in Minnesota

If the position of the detainees can be reduced to the maxim that “no one has ever gotten out,” perhaps the State’s (defendant’s) position can be oversimplified to, “MSOP clients have no constitutional right to treatment.”   Judge Frank begged to differ with this latter position, expressing that legitimate treatment is, by judicial precedent, one of the essential constitutional underpinnings of civil detention programs for sex offenders (as distinct from criminal punishment). Judge Frank more than hinted at an ultimate finding in support of the detainees’ position, saying:

"Given the prison-like conditions described by Plaintiffs, and the lack of treatment and essentially no-exit regime alleged in this case, it may well be that, with a fully developed record, the Court will find the totality of the MSOP system to be unacceptably and unconstitutionally punitive."

He noted that it would be unconstitutional, under existing U.S. Supreme Court rulings, to operate a civil commitment program under the guise of providing treatment, if this is just “a sham or mere pretext,” and the true purpose is to punish.

Landmark ruling

Judge Donovan Frank

In his ruling, Judge Frank issued a landmark change, effectively shifting the burden of proof on how clients exit civil detention. Prior to this ruling, in order to gain release, detainees had to clear several tall hurdles. They had to prove they had completed the treatment program, demonstrate their readiness for community re-entry, and get the green light for release from two review panels. Under that scheme, in 20 years only two of more than 700 men gained even a conditional release. Citing substantial case law and programs in other states, Judge Frank turned that process upside down:

“It is unquestionable that commitment, at the outset, must be justified by law. Similarly, … continued commitment must also be justified. A statute that -- as written, as applied, or as implemented -- renders discharge from a sex offender civil commitment program more onerous than admission to it, such that individuals who no longer meet commitment criteria remain confined, raises grave due process questions. In that regard, the Court expresses serious doubts as to the constitutionality of Minnesota’s sex offender commitment statutes and their implementation through MSOP.

“Today, the Court finds that it is constitutionally mandated that only individuals who constitute a “real, continuing, and serious danger to society” may continue to be civilly committed to MSOP. See Hendricks, 521 U.S. at 372 (Kennedy, J., concurring). If the evidence demonstrates that MSOP systematically continues to confine individuals who are not 'a real, continuing, and serious danger to society,' then such confinement will be held unconstitutional."

State government paralyzed

A powerful amicus brief filed jointly by law professor Eric Janus and the ACLU of Minnesota is highly critical of the Minnesota program. Laying out relevant case law, the Brief claims that all three branches of Minnesota’s government have abdicated responsibilities for ensuring the program’s tenuous promises. The Brief observes that after the Federal Court advised the State Legislature in 2012 that urgent changes were needed, the 2013 Legislature failed to act; by executive order, the last two Minnesota Governors put constitutionally questionable moratoriums on releases; and state appellate courts have repeatedly failed to correct program deficiencies. 

Citing “massive deprivations of liberties,” and accumulating evidence that civil detention is punitive in nature, the Brief refers to the Minnesota experiment as an “utter betrayal.” If -- as now appears likely -- another legislative session expires without lawmakers taking action, there is little doubt that the federal court will intervene, perhaps as it did in the State of Washington .

Change coming to MSOP

To reassure, it is not the intent of this legal challenge that dangerous individuals be released into the community. Reforming MSOP is clearly a forensic minefield and Judge Frank has been deliberate in navigating solutions. Drawing on a critical 2011 report from the Minnesota Office of the Legislative Auditor, he appointed experts to conduct an initial review of MSOP. He also ordered the state’s Department of Human Services to assemble a Task Force of prominent stakeholders to explore program challenges and make recommendations. The Task Force issued their first report in December 2012 and their second report in December 2013.

In December 2013, in anticipation of his ruling, Judge Frank wisely appointed a team of four nationally recognized experts (identified in this previous blog) to help credibly guide the process. He asked both parties to the lawsuit, and the experts themselves, to identify the tasks and goals to which the “dream team” should endeavor, and then, leaving no doubt that change is coming to MSOP, Judge Frank’s order exceeded the cumulative list, and established priorities.

In addition to a complete review of the MSOP program, Judge Frank indicated that all current detainees will be reevaluated by independent experts to determine whether they currently meet criteria for civil commitment and, if so, whether they could be treated in less restrictive settings. He ordered reevaluations to begin with those likely to be most eligible for a reduction in custody. He even threw a bone to the 100 or so discouraged (or obstinate) detainees who have withdrawn from treatment:

“It defies reason that individuals who are comatose or otherwise completely incapacitated would be considered so dangerous as to require continued confinement in a secure, prison-like facility. Moreover, an individual who refuses to participate in treatment, but is no longer dangerous, cannot constitutionally continue to be confined in such a facility. See Foucha, 504 U.S. at 77.”

Judge Frank directed his final admonition to state administrators and the Minnesota Legislature, which just convened its 2014 session, stating that the time for “substantial changes” is now:

“If the evidence requires it, the Court will act. But it is the Minnesota Legislature that is best equipped to develop policies and pass laws -- within the limits of the Constitution -- that both protect public safety and preserve the rights of the class. The time for legislative action is now. Time and again, professional assessments have identified grave deficiencies in the program. Regardless of the claims raised in this case, and irrespective of the Court’s ultimate rulings on any constitutional questions with which it is presented, the interests of justice require that substantial changes be made to Minnesota’s sex offender civil commitment scheme.

“The program’s systemic problems will only worsen as hundreds of additional detainees are driven into MSOP over the next few years. The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.”

In reserving a ruling of “unconstitutional,” Judge Frank has been shrewd in attempting to force Minnesota’s government leadership to the table.   If state leaders acknowledge the federal court directives, seize good research, understand the limits of forensic psychology, and muster the professional courage to marshal bold legislative initiatives, Minnesota could potentially develop a national model for the civil commitment of sex offenders. If not, Judge Frank has left little doubt that the US District Court for Minnesota will rebalance legitimate concerns of public safety, effective treatment, and civil liberties for those under civil commitment.

Either way, these proceedings are likely to contribute to the national debate about whether civil commitment can be effectively reconciled with sound public policy and constitutional law, or whether civil commitment schemes, now in place in 20 U.S. states, are fundamentally “preventive detention,” derived from “society’s opprobrium” of sexual offenders.

* * * * *

Judge Frank’s  ruling (HERE) is a compelling read for anyone interested in the civil commitment of sex offenders.

*Jon Brandt is a clinical social worker in Minnesota, for 35 years working in the prevention of sexual abuse. He provides evaluations, treatment, and supervision to sexual offenders, and professional consultation and training to colleagues. His previous post on this case, a report on the December 2013 federal court hearing, can be found HERE. To contact Mr. Brandt, click HERE. 

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

* * * * *

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.

* * * * *

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":

* * * * *

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.

* * * * *

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).