Good building, bad building

Guest essay by Eric Lotke*

China has opened a new subway system every year for the past six years. The U.S. has opened 45 new prisons and jails. Who's setting up to lead in the 21st century?

"Expanding prisons mean more jobs," explained the Fayetteville Observer over the summer.

The rural North Carolina community was celebrating the $19 million expansion of a $90 million prison that opened in 2003 and immediately filled to capacity. Such growth is a boon for rural, economically distressed counties. "Prison jobs bring added payroll, boost housing markets and draw new retail customers to poor parts of the state," observed the Observer.

The good news is that public investment can work. The bad news is that better choices must be made. We need to distinguish between prisons for crime control and prisons as a jobs program, between building for the future and building for the past.

• "We're always looking for ways to bring jobs to Wilkes County," said state senator Jim Whitehead of Georgia, when funding fell into place for a new pre-release center.

• "This is the biggest thing to happen to Stewart County since I've been here," said the chair of the county board when the private, for-profit Corrections Corporation of America opened a new 1,524 person detention center. "Everything's been leaving rather than coming in the 10 years I've been here. The biggest thing this will do is provide jobs for the county and the area."

• "Push state to build prison here," editorialized the Altoona Mirror in central Pennsylvania, three weeks before the election. "What would the area do to obtain 600 well-paying jobs in what could be termed a recession-proof industry? It's not a rhetorical question. Those jobs could happen. But it's important that our local and state leaders don't drop the ball."

President-elect Barack Obama is planning a massive new public works program. He wants to employ 2.5 million people rebuilding our roads and schools and bridges. That’s great. It's more than great. We need the projects, we need the jobs, and the proposal is on the order of magnitude of the problem.

Part of the program could be a reconsideration of the role prisons play in our rural economy. That role seems to have taken on a life of its own.

"When folks here heard the governor wanted to close the 137-year-old Pontiac Correctional Center, sucking hundreds of jobs from the area, they mobilized in a way that only small towns can. They held rallies and a parade. Streets were lined with blue-and-white 'Save Our Prison' signs and residents were outfitted in T-shirts to match." The local ABC news affiliate described it as "a struggle for their economic lives," as the state considered closing the town's second-largest employer to help fill a $700 million hole in the state budget.

States are truly struggling. Forty-one states have already reported budget problems for the current or upcoming fiscal year, and it's likely to get worse. States are starting to cut benefits and services ranging from health care to public schools and early childhood education.
But one budget item is never questioned: prisons.

Even as states spend nearly $50 billion on prisons every year and counties spend over $20 billion on jails, we build additional locked capacity. Even with U.S. incarceration rates at seven times historical and international norms, we build. Even as crime continues on its 15-year descent to levels not seen in 40 years, we find money to build even more.

The sacrifices we make to build these prisons are astonishing. Between 1987 and 2007, state spending on prisons increased by 40 percent (as a percent of the general fund). State spending on higher education decreased by 30 percent. We are financing our prisons by cutting our colleges.

We continue to build even though prisons are often disappointing for economic development. The best jobs go to people from out of town, and dollars spent on prisons have little "multiplier" effect. They don't generate future additional dollars of economic activity, as do dollars spent on transportation, schools and so forth. Every dollar invested in highway construction generates $2.50 of gross domestic product in the short term. Raising teacher wages by 10 percent is associated with a 5 percent decrease in drop-out rates. But still we shortchange our schools and other rural enterprise, and build new prisons.

The solution is to recognize that prisons have an economic logic of their own. The Pentagon budget is understood as a combination of military necessity and commercial interests. We need to understand the appeal prisons offer to struggling rural communities in the same way.

The challenge is to break the link between prison as industry and prison as crime control. The challenge is to show a way out for governors and legislators who want to reduce the burden of the corrections budget but genuinely cannot because of the immediate and legitimate trouble it causes to their constituencies.

HERE'S HOW: As our new federal leaders develop plans for stimulus and infrastructure investment, they should self-consciously direct resources to break the link between prisons and the dependent rural economies. They should create a grant program to help states transition from prison economies to more productive uses.

People are ready for this kind of change. Way back in 1999, when there were half a million fewer people in American prisons and jails, John DiIulio, one of the main movers behind the prison explosion, said we had reached a point of diminishing returns. But we can’t change course; the transition costs are too high:

• Drug treatment and prevention programs are cheaper in the long run, but they cost money up front to start.

• Cost savings to some are job losses to others. Especially when the programs go to scale and entire prisons are shut down or construction projects avoided. What should people do in the interim?

That's where federal assistance can come in. Part of the infrastructure/investment/stimulus money can be directed to cover transitional costs out of the prison economy. A few billion dollars of federal money in the short term can help states break the prison hammerlock, and free them to redirect tens of billions of state dollars to other purposes – from schools to roads to hospitals.

That's the proposal: A federal grant program that helps states manage transitional costs in the short run. Much like the federal VOI/TIS Justice Department grant program helped build prisons in the 1990s, a transition grant program can help to unbuild them in the 2000s (perhaps best administered by the Commerce Department). Let the laboratories of democracy experiment over techniques, but the federal government can help ease the transition.

It's a modest investment for the federal government that can yield substantial dividends quickly. But it needs to be consciously identified as a goal. Left alone the prison autopilot will continue to rise.

*This well-researched essay (check out some of the many embedded links for more) is reprinted from the Campaign for America's Future with the written permission of the author. Eric Lotke, an attorney, is Research Director at the Campaign for America's Future. Previously he served as Policy Director at the Justice Policy Institute, and was a Soros Foundation Senior Justice Fellow. He has authored path-breaking research on the criminal justice system, including patterns of juvenile homicide, the demographics of incarceration, and the political and financial consequences of the U.S. Census Bureau counting people in prison where they are confined rather than their original homes. More on his impressive background and good works is here.

New book explodes myth that innocent do not confess

Innocent people do not confess. Especially to rape and murder.

That is the belief of most people, including jurors, judges, attorneys, and even the very police detectives who induce false confessions. The Norfolk Four case is the perfect vehicle to challenge our misguided faith. And Tom Wells and Richard Leo are the ideal storytellers: Wells followed the case for seven years; Leo is a leading expert on the social psychology of police interrogation. The book is meticulously researched, through primary source documents and dozens of interviews.

The Wrong Guys: Murder, False Confessions, and the Norfolk Four reads like a Stephen King novel but provides a step-by-step deconstruction of the bizarre case of the Norfolk Four, explaining the individual, situational, and systemic factors that converge in a typical false confession case.

More on the Norfolk Four case is online here; the publisher's web page is here. My longer review is forthcoming from California Lawyer magazine.

Cyberbullying verdict raises legal questions

Running neck-and-neck in the Bad Behavior Gone Wild category are the shoppers who trampled a poor Wal-Mart worker to death in Long Island and the Missouri woman who bullied a 13-year-old until the depressed girl hanged herself.

But while everyone is outraged by both cases, last week's criminal conviction in the cyberbullying case has troubling implications about the criminalization of the Internet.

A federal jury convicted Lori Drew of three misdemeanor counts of computer fraud for misrepresenting herself as a teenage boy on the popular MySpace social networking site. Jurors apparently agreed with prosecutors that creating a phone profile constituted "unauthorized access" to MySpace, under a federal law that previously was used only to prosecute hackers.

Analyzing the verdict's implications is Brian Stelter of the New York Times:

While the Internet's anonymity was used in this case as a cloak to bully Megan, other users say they have perfectly good reasons to construct false identities online, if only to help protect against the theft of personal information, for example. "It will be interesting to see if issues of safety and security will eventually trump the hallmark ideology of free, largely anonymous or pseudonymous participation in cyberspace," said Sameer Hinduja, a professor of criminology and criminal justice at Florida Atlantic University. Andrew M. Grossman, senior legal policy analyst for the Heritage Foundation, said the possibility of being prosecuted for online misrepresentation, while remote, should worry users nonetheless. "If this verdict stands," Mr. Grossman said, "it means that every site on the Internet gets to define the criminal law. That's a radical change. What used to be small-stakes contracts become high-stakes criminal prohibitions."

Danah Boyd of Harvard’s Berkman Center for Internet and Society expressed perhaps the broadest perspective:

"There are lots of kids hurting badly online,” she said. "And guess what? They’re hurting badly offline, too. Because it's more visible online, people are blaming technology rather than trying to solve the underlying problems of the kids that are hurting."

The full story is here.

Move over, Guantanamo - here comes Wisconsin

Lifetime detention for misconduct at age 14?

When he was 14 years old, Daniel Arends made a big mistake. He sexually assaulted an autistic boy. He was adjudicated as a delinquent.

Then, he made some other mistakes. His juvenile detention was extended several times for sexual contact with other boys.

When he turned 17, he learned just how much trouble he was in. He became the first juvenile that the state of Wisconsin sought to detain indefinitely under its "Sexually Violent Person" civil commitment law. He was committed to the Sand Ridge Secure Treatment Center in 2005, and he has remained there ever since. He is now 22.

Technically, there is a way for Daniel to get out of this potentially lifelong incarceration. All he must do is show that he has changed so that he no longer meets the legal criteria of being "more likely than not to commit a future act of sexual violence."

The Catch-22 is, how can one prove something like that from behind bars?

One potential method is through expert evidence. A psychologist, Dr. Sheila J. Fields, evaluated him, administered a series of tests, and wrote a favorable report stating that in her opinion he had indeed changed. He had successfully progressed in the treatment program and his score on the Psychopathy Checklist (PCL-R) was now lower. She noted that his last incident of criminal sexual activity occurred when he was 14, and there had been no reports of inappropriate sexual behavior since October 2003.

In her report, Dr. Fields also discussed some of the problems I have been blogging about lately, such as the difficulty of accurately predicting adult sexual recidivism from juvenile misconduct, and reliability problems with Daniel's diagnosis, Antisocial Personality Disorder.

Based on this favorable report, Daniel petitioned the court for a hearing on whether he still meets the civil commitment criteria. The government of Wisconsin, however, opposed the hearing, arguing Daniel was not entitled to it unless he could actually "prove" in his petition that his condition "had changed."

The local court agreed, and denied Daniel the right to even be heard in court. Shades of Guantanamo, right?

Daniel appealed, and the Wisconsin Appellate Court agreed with him. The standard for getting a hearing, the appellate court ruled, is whether the person has presented facts in his petition from which a judge or a jury “may” conclude that he has changed. In other words, he is not required to prove that he actually has changed just to get an evidentiary hearing.

The case will go back to the lower court for an evidentiary hearing. That does not mean Daniel will be released, though. For that, we'll have to stay tuned.

The Nov. 19 appellate ruling in State v. Arends (2008AP52) is online here. News coverage in the Journal Sentinel of Milwaukee is here.

Hat tip: Steve Erickson

Treating therapist as police interrogator

For all you psychologists, here's a quick ethics vignette:

You live and work in a small town, population 13,000. Like many psychologists, you have a diverse practice. You treat patients at a local mental health clinic. You serve on professional boards. You work part-time as a consultant to the local sheriff's department.

One day, the sheriff asks you to come down and help with some interrogations in a cold case of sexual assault and murder. Among the suspects being questioned are Deb and Ada, two young women you treated in your private practice.

What do you do?

If you are Wayne R. Price, Ph.D. of Beatrice, Nebraska, you see no problem in interrogating the young women despite having been their therapist:

"What I find, I find. It makes no difference to me," Price testified at a pretrial hearing. "When I have an emotional involvement or vested interest and can't do it objectively, I will say so."

Price's role in helping elicit confessions from two of his former patients is in the spotlight now, almost two decades later, because of new DNA evidence pointing to a different killer. The so-called Beatrice Six case has set a record for the number of people exonerated by DNA evidence in a single case.

The five suspects who confessed fit the pattern of false confession cases: Suggestible young people with psychiatric or cognitive problems who used alcohol or drugs, were easily confused, and were worn down by aggressive questioning.

False confessions like this are not nearly as unusual as many people still think. According to the Innocence Project, they have been found in about one-fourth of DNA exonerations.

What is unusual in the Beatrice Six case is the psychologist's role. A psychologist playing the dual roles of trusted therapist and criminal interrogator "would have had a powerful place of trust and persuasion over suspects," the Omaha World-Herald cites confession experts as stating.

The Six did not become formal suspects until four years after the 1985 murder of Helen Wilson. The ball got rolling when a hard-partying 23-year-old named Tom Winslow was in jail for an unrelated crime, the beating of a motel clerk during a robbery. Police approached him with an offer he couldn't refuse: "Help us solve our murder case, and we'll get you out of jail on bond."

Winslow claims police called him a liar and threatened him with the electric chair if he did not confess. He said police fed him information and "suggested he was blocking out memories of a horrific crime due to the cloud of alcohol or drug abuse," according to reporter Paul Hammel, who has followed the case for the World-Herald.

Earlier this month, authorities announced that the DNA found at the crime scene matched an Oklahoma City man, Bruce Smith, who had since died. In light of that evidence, the state is seeking pardons for the Beatrice Six.

Joseph White, a 26-year-old drifter from Alabama, was the only one of the Six who refused to confess. A jury deliberated for only a few hours before convicting him anyway, largely on the testimony of co-defendants who received reduced charges in exchange.

One of White's attorney's, Toney Redman, recalled arguing in court that those testifying were "so weak-minded" that their stories could not be trusted.

"I'm fully convinced now that the police, if they wanted to, could get any borderline personality person, who has alcohol and drug issues, and scare them to death and get them to confess to anything," he told the World-Herald.

Two of the three who testified against White - Ada JoAnn Taylor and Deb Shelden - were former patients of Dr. Price. Their accounts reportedly changed over time, partly after Dr. Price encouraged them to recollect more details.

Taylor, diagnosed by Price with a personality disorder, initially said she couldn't recall much because she had memory problems. After police insisted she was at the scene of the murder, she eventually changed her story. She also told investigators she communicated telepathically with a friend and had five former lives and an imaginary twin. She took a plea deal and was paroled in November.

Shelden, the other former patient of Price's, initially told interrogators she didn't recall the details of the assault on her grand-aunt until months later, when she began having nightmares. She said Dr. Price helped her to remember the details. Shelden was paroled after serving 10 years in prison.

Although Dr. Price - now executive director of Blue Valley Behavioral Health in Beatrice - doesn't see a problem with his dual roles in the Beatrice Six case, many other psychologists might.

Beneficence and Nonmaleficence is the very first principle of the American Psychological Association's Ethics Code, advising us to to "benefit those with whom [we] work and take care to do no harm." Another principle, Justice, cautions psychologists to "exercise reasonable judgment and take precautions" to avoid participating in unjust practices. A third principle, Respect for People's Rights and Dignity, discusses the duty to safeguard people's confidentiality and self-determination, especially when their "vulnerabilities [might] impair autonomous decision making."

The dangers of multiple relationships are specifically addressed in Section 3.05 of the Ethics Code. Psychologists are forbidden from engaging in dual relationships that "risk exploitation or harm to the person with whom the professional relationship exists."

The Forensic Psychology Specialty Guidelines, published two years after Dr. Price's involvement in the Beatrice Six interrogations, also caution against engaging in dual relationships that might cause harm: "Forensic psychologists recognize potential conflicts of interest in dual relationships with parties to a legal proceeding, and they seek to minimize their effects. Forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship."

It's hard to see how providing someone with confidential psychological therapy would not be inconsistent with later becoming that person's police interrogator.

If you have other thoughts on the ethical contours of this case, I encourage you to comment.

Omaha World-Herald coverage of the Beatrice Six case is here, here, and here.

A classic article on dual roles in forensic psychology is: Greenberg, S.A. & Shuman, D.W. (1997). Irreconcilable Conflict Between Therapeutic & Forensic Roles. Professional Psychology: Research & Practice, 28, 50-57.

Spitzer update on DSM-V transparency

The latest on the controversy

Robert Spitzer, MD, chair of the DSM-III and DSM-III-R workgroups, has issued an update on efforts to reduce the secrecy surrounding the American Psychiatric Association's DSM-V revision process:

"As those of you who have followed this issue know, APA leadership has been resistant to improving the transparency of the revision process. At the outset, all DSM-V Task Force and Workgroup members were required to sign a confidentiality agreement that prohibited them from discussing anything about the DSM-V revision process.... Requests to APA leadership to see minutes of Task Force and Workgroup meetings were refused on the grounds that releasing minutes would compromise the revision process by inhibiting free discussions among Workgroup members. It also was argued that making minutes of meetings and conference calls would jeopardize APA's intellectual property rights. How this would happen has never been explained....

"Pressure on APA leadership to increase transparency culminated in the drafting of an Action Paper by some members of the APA Assembly. The paper called for the posting of the minutes to the DSM-V workgroup and task force meetings on the DSM-V web site....

"Although clearly a move in the right direction, I believe that these reports fall far short of providing the requisite transparency. The Workgroup reports are quite variable in terms of the amount of detail they provide regarding possible directions for change in the DSM-V....

"Full transparency of the process will only be satisfied by posting the minutes of all DSM-V conference calls and meetings so that the process of the deliberations is evident to all . Anything less is an invitation to critics of psychiatric diagnosis to raise questions about the scientific credibility of DSM-V. That is exactly what Christopher Lane, a harsh critic of the DSMs, did in an Op-Ed piece for the LA Times.

"One of the oft-repeated DSM-V talking points is that the process is 'open and transparent.' To be truly transparent, the nuts and bolts of the DSM-V process needs to be open for outside scrutiny. When it comes to the crucial issue of transparency, even the appearance of impropriety must be avoided. Rather than appearing open and transparent, current APA policy continues to give the appearance that APA has something to hide about how it is developing DSM-V. It remains likely that unwanted media attention will fall on the DSM process until full transparency is achieved."

The only Task Force report posted so far is here. Progress reports from the individual workgroups are posted here.

My readers will be especially interested in the report from the Sexual and Gender Identity Disorders workgroup, which will make recommendations for the highly controversial Paraphilias section of the DSM. The brief report is very vague and really doesn't say much. Rumor has it that the workgroup may be considering adding a new diagnosis for nonsadistic rapists, a highly controversial proposal that was rejected the last time around but would help government experts at civil commitment proceedings. With the continuing secrecy surrounding the process there is no way to know for sure what the workgroup is up to; we'll just have to stay tuned.

Robert Spitzer can be reached via email at Spitzer8@verizon.net.