Incarcerex: One nation, behind bars

With none of the front-running presidential candidates challenging the United States' long-running incarceration mania, INCARCEREX (click on either that capitalized title or on the picture to the right) is an incredibly timely video.

Also timely is today's pull-no-punches editorial in the Detroit Free Press, "One Nation, Behind Bars," which goes like this right here:

The U.S. prison population, the world's largest, has grown nearly eightfold over the past 35 years and now costs taxpayers at least $60 billion a year. An eye-popping report released last week by the Pew Center on the States found that, for the first time, more than one in every 100 American adults is in jail or prison. And that figure doesn't count the hundreds of thousands of people who are on probation and parole.

What is the goal here? Is there a smarter way to get there? What are we as a society getting in return for all this money? What is this massive and growing penal system accomplishing?

Before the nation hits two in 100 behind bars, which seems inevitable, it's time for a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system. The nation has gotten far too little for its enormous investment in locking people up. Violent crime rates are higher than they were more than three decades ago, when tough-on-crime policies, including mandatory sentencing laws, created a prison-building boom.

States can no longer afford to divert so many resources from education, health care and other pressing needs. Michigan, for example, with one of the nation's highest incarceration rates, spends $2 billion a year on corrections, or 20% of its general fund. It is one of four states spending more on corrections than higher education. In today's economy, spending more on prisons than college is a recipe for failure.

Nor can the nation ignore the human costs of mass incarceration. Nearly half of the 2.3 million adults locked up are African Americans, who make up less than 13% of the U.S. population. A stunning one in nine black males between the ages of 20-34 is behind bars.

The large numbers of people incarcerated may well increase crime rates. Prison culture has become a norm in some urban neighborhoods, with more than 600,000 people a year returning home from prison and jails. They come back poorly educated, lacking job skills, and socially and legally disabled by felony records. One in 14 African-American children has a parent who is incarcerated, greatly increasing the chances that they, too, will grow up to go to prison.

The good news is that budget pressures are forcing states, including Michigan, to take steps to control their prison populations. On average, Michigan incarcerates at a 40% higher rate than surrounding Great Lakes states. But Michigan was also one of 14 states where prison population dropped over the past year. The state's prisoner re-entry program has reduced recidivism; in some cases, parole rates have gone up.

Michigan is also considering other initiatives, including sentencing reforms that divert more low-level offenders into community programs and releasing more severely sick or dying inmates who pose no risk.

All states must consider greater use of community supervision for low-risk offenders, as well as repealing harsh drug laws and mandatory sentencing policies, including three-strike laws, which result in unreasonably long prison stays.

Unacceptably high incarceration rates tear at the nation's social fabric and take public money from education, health care, transportation and other vital needs. Nor have they significantly reduced crime. It's time to re-examine the policies that have made us the incarceration nation.

Hat tip: Sentencing Law & Policy blog

New MMPI scale invalid as forensic lie detector, courts rule

Injured plaintiffs falsely branded malingerers?

Psychology's most widely used personality test, the MMPI, jumped into the national spotlight today in a fascinating David-and-Goliath controversy pitting corporate interests such as Halliburton against the proverbial little guy.

At issue is the "Fake Bad Scale" that was incorporated into the Minnesota Multiphasic Personality Inventory last year for use in personal injury litigation. A front-page critique in today's Wall Street Journal includes publication of the items on the contested scale, a test security breach that will no doubt have the publisher seeing red.

Although a majority of forensic neuropsychologists said in a recent survey that they use the scale, critics say it brands too many people - especially women - as liars. Research finding an unacceptably large false-positive rate includes a large-scale study by MMPI expert James Butcher, who found that the scale classified high percentages of bonafide psychiatric inpatients as fakers.

One possible reason for this is that the scale includes many items that people with true pain or trauma-induced disorders might endorse, such as "My sleep is fitful and disturbed" and "I have nightmares every few nights." Yet hearing the term "Fake Bad" will likely make a prejudicial impact on jurors even if they hear from opposing experts who say a plaintiff is not faking.

The controversy came to a head last year in two Florida courtrooms, where judges barred use of the scale after special hearings on its scientific validity. In a case being brought against a petroleum company, a judge ruled that there was "no hard medical science to support the use of this scale to predict truthfulness.” Other recent cases in which the scale has been contested include one against Halliburton brought by a former truck driver in Iraq.

The 43-item scale was developed by psychologist Paul Lees-Haley, who works mainly for defendants in personal injury cases and charges $600 an hour for his depositions and court appearances, according to the Journal article. In 1991, he paid to have an article supportive of the scale published in Psychological Reports, which the WSJ describes as "a small Montana-based medical journal."

The scale was not officially incorporated into the MMPI until last year, after a panel of experts convened by the University of Minnesota Press reported that it was supported by a "preponderance of the current literature." Critics maintain that the review process was biased: At least 10 of the 19 studies considered were done by Lees-Haley or other insurance defense psychologists, while 21 other studies – including Butcher's – were allegedly excluded from consideration.

Later last year, the American Psychological Association's committee on disabilities protested to the publisher that the scale had been added to the MMPI prematurely.

Lees-Haley, meanwhile, defends the scale as empirically validated and says criticism is being orchestrated by plaintiff's attorneys such as Dorothy Clay Sims, who has written guides on how to challenge the Fake Bad scale in court.

Even if the scale was valid before today, questions are certain to arise about the extent to which it will remain valid once litigants start studying for it by using today's publication of all 43 items along with the scoring key.

The lesson for forensic practitioners: Be aware of critical literature and controversy surrounding any test that you use in a forensic context, and be prepared to defend your use of the test in court.

The article, "Malingerer Test Roils Personal-Injury Law; 'Fake Bad Scale' Bars Real Victims, Its Critics Contend," which includes ample details on the controversy, is only available to Wall Street Journal subscribers, but you can try retrieving it with a Google news search using the term "MMPI Fake Bad." The University of Minnesota Press webpage on the contested scale is here, along with a list of research citations.

Here are citations to the major pro and con research articles:

"Meta-analysis of the MMPI-2 Fake Bad Scale: Utility in forensic practice," Nelson, Nathaniel W., Sweet, Jerry J., & Demakis, George J., Clinical Neuropsychologist, Vol 20(1), Feb 2006, pp. 39-58

"The construct validity of the Lees-Haley Fake Bad Scale: Does this measure somatic malingering and feigned emotional distress?: Butcher, James N., Arbisi, Paul A., & Atlis, Mera M., Archives of Clinical Neuropsychology, Vol 18(5), Jul 2003, pp. 473-485.

Postscript: Test distributor Pearson Assessments responded with alacrity - not to the heart of the controversy but to the Journal's reprinting of test items. The company, which makes a mint from selling and scoring the MMPI and other psychological tests,got the WSJ to remove the online link to the test items. In a "news flash," Pearson says it is "evaluating the impact of the article" and asks psychologists to report any other instances of "illegal" reproduction of the scale in publications, websites, chat rooms, or blogs.

NOTE: For more of my posts about the MMPI-2's Fake Bad Scale, search the blog using the term "MMPI" (the search box is in the upper left corner of the page).

New draft of forensic psychology ethics guidelines

At 17 years old, the ethics guidelines for forensic psychologists are ancient considering all of the changes in the field since 1991. A revision to these Specialty Guidelines for Forensic Psychologists has been in the works for several years now. The previous draft by the revisions committee of the American Psychology-Law Society (Division 41 of the American Psychological Association) came out two years ago, in January of 2006. Finally, the long-awaited third official draft has been released and is open for public comments. The latest changes to the guidelines will also be the topic of a presentation at the AL-LS annual convention in Jacksonville later this week. For those of you who are attending the convention (I won’t be there this year), the presentation is on Saturday at 4:45 p.m.

The Specialty Guidelines are "aspirational," meaning they recommend but don't mandate appropriate professional behavior and conduct for forensic psychologists. They are meant to be used in conjunction with applicable laws, rules and regulations, and ethics codes such as that of the American Psychological Association.

Public comments on the latest draft can be emailed to sgfpdraft@yahoo.com or mailed to Randy Otto, Ph.D., 13301 North 30th Street, Tampa, FL 33612. When submitting comments please identify the specific section you are referencing (e.g., 7.01, 8.03.03) and provide recommended alternative language when appropriate.

The third draft is available here. The previous (2006) draft is here; the original guidelines are here.

My favorite judge passes away

In the course of my work as a legal affairs journalist, I got to know many judges. But none came close to matching Alfred Delucchi in compassion, integrity, fairness, intelligence or humor. Delucchi rose from humble roots as the son of an Oakland, California garbage collector, and perhaps it was his working-class roots that made him so common-sensical and down to earth. He has been described as "a judge from the old guard," whose winning personality permeated the courtroom. Delucchi's biggest moment of fame came after his retirement, when he was appointed to preside over the circus-like Scott Peterson trial, but he will be remembered by many people who had the good fortune to encounter him in lesser-known cases as well. As one reporter who met him while covering the Peterson trial put it, "He was one of those people in life that you run into and you just never forget."

The full obituary is here. Here is an older profile of the remarkable jurist, again from the S.F. Chronicle. And here is an interview entitled "Lawyers who lead" from Santa Clara Law.

Video: Never-released Abu Ghraib photos

As an expert witness on behalf of a guard at the infamous Abu Ghraib prison in Iraq, psychologist Philip Zimbardo of Stanford prison experiment fame was privy to many photographs taken by the abusive guards. Today, Wired magazine published a short video by Zimbardo that includes previously unreleased photos. The video is explicit, gruesome and troubling, so "viewer discretion is advised." Wired has an accompanying article with additional resources. Also see Zimbardo's book, The Lucifer Effect (look for my online review on the book's Amazon.com page.)

Justices sound cautionary notes on "expert" witnesses

The scandal involving Canadian pathologist Charles Smith is continuing to send shock waves through forensic circles. This week, leading justices gave some cautionary advice in the ongoing judicial inquiry.

First, judges need to become more scientifically literate, so they can critically analyze expert witness testimony and spot junk science. That was the advice from Justice Marc Rosenberg of Ontario, who runs a program that provides such education to judges.

Second, expert witnesses who stray outside their area of expertise need to be reined in. Justice Patrick Lesage, former chief justice of the Ontario Superior Court, told the tribunal that such "roamers" need to be kept on a short leash.

Dr. Smith, the subject of the inquiry, violated both of these tenets. First, he was not trained as an expert in forensic pathology. Second, he often strayed outside his supposed field of expertise. His testimony was central to the convictions of at least a dozen parents and caregivers in the deaths of children.

Lesage said he hesitates to even use the term "expert" because it conveys too much authority. He prefers to call such witnesses "people who, because of their training and experience, were permitted to give an opinion."

The full article, from the Toronto Star, is here. My previous coverage of the Smith scandal is here, here and here.