Eye-plucking prisoner competent and sane

Andre Thomas plucked out his right eye in 2004. Now, he has plucked out his left.

The Texas death row inmate with a history of mental problems killed his wife and their two children and ripped out their hearts. He then walked into a police station and confessed.

None of that sounds all that sane. Indeed, Thomas has been diagnosed with schizophrenia and suffers from psychotic delusions and a preoccupation with death, religion, and suicide, sources say.

Nonetheless, he was found competent to stand trial, convicted, and sentenced to die for the death of his 13-month-old daughter.

The self-mutilation is unlikely to have any effect on his appeals, but at least they got him transferred to a psychiatric hospital for treatment.

The story is here.

Court strikes down federal civil commitment law

In a big blow to the federal Adam Walsh Act, an appellate court has upheld a challenge to the civil commitment portion of the law.

The opinion by the Fourth Circuit Court of Appeals affirms a lower court ruling in the case, U.S. v. Comstock, which I blogged about back in September of 2007.

The challenge was brought by the North Carolina Federal Public Defenders on behalf of Graydon Comstock, who received a 37-month prison sentence for receiving pornography via computer. When his term ended two years ago, the government certified him as a "sexually dangerous person" and kept him in civil confinement, where he has remained ever since. The ruling will affect at least three other men also held at the Federal Correctional Institution at Butner, North Carolina.

This was the first appellate court to address the constitutionality of the civil commitment portion of the Adam Walsh Child Protection and Safety Act of 2006, which has divided trial courts around the nation.

The court held that the civil commitment portion of the law exceeds federal authority:

The Constitution does not empower the federal government to confine a person solely because of asserted 'sexual dangerousness' when the Government need not allege (let alone prove) that this 'dangerousness' violates any federal law….

Consistent with its role in maintaining a penal system, the federal government possesses broad powers over persons during their prison sentences. But these powers are far removed from the indefinite civil commitment of persons after the expiration of their prison terms, based solely on possible future actions that the federal government lacks power to regulate directly.

The federal government, the court wrote, does not have the power to "regulate all sexual violence, including acts which violate no criminal statute."

Congress’s perceived need for the sort of civil commitment statute at issue here does not create constitutional power where none exists. Congress must instead seek alternative, constitutional means of achieving what may well be commendable objectives.

The court noted that if federal authorities have "serious concerns" about a federal prisoner's future dangerousness, they may notify state authorities, "who may use their well-settled police and parens patriae powers to pursue civil commitment under state law." Federal authorities may even financially underwrite such actions, the court said.

At least 20 states have enacted such civil commitment procedures for Sexually Violent Predators over the past two decades.

In upholding the district court's 2007 opinion, the circuit court did not specifically affirm a second reason given by the lower court for striking down the civil commitment portion of the Adam Walsh law. The lower court had held that the legal standard of "clear and convincing" proof was too low, and that due process required that danger be proven "beyond a reasonable doubt" before a person was preemptively detained. By avoiding that issue, the circuit court appears not to disturb laws in some states that require a lower standard of proof.

Further resources:

4th Circuit Opinion, U.S. v. Graydon Earl Comstock Jr.

Federal court strikes down portion of Adam Walsh Act (blog post of Sept. 10, 2007)

"4th Circuit Got it Right in Comstock," analysis by law professor Corey Rayburn Yung

Breakdown in Lone Star death machine?

Drop in Texas executions has folks wondering

Texas is the death penalty capital of the United States, and perhaps the world. So a decline in both executions and new death sentences there has some wondering whether this is the beginning of the end for capital punishment in our prison nation.

"I think we are seeing the leading edge of that national transformation,” said Rob Owen, co-director of the Capital Punishment Clinic at the University of Texas at Austin.

Whoa, Cowboy, says Michael Casillas, chief prosecutor of the appellate division of the Dallas County district attorney's office. Not so fast: "Things are, even in the criminal justice system, kind of cyclical."

Most startling of last year's statistics were those coming out of Harris County (Houston), the epicenter of the death penalty capital. The year before last, that one COUNTY alone had surpassed the annual execution rate for the next-highest STATE (Virginia). But last year, that usually prolific killer did not sentence a single person to die. Not even an illegal immigrant who went to trial for killing a police officer!

As the Dallas Morning News reports, a number of factors may be contributing to the decline. These include:

• A big drop in the murder rate
• Better quality legal representation
• A wave of exonerations
• The high costs of capital case prosecution
  
• The availability of life without parole as an option

Or perhaps Harris County is just looking over toward neighboring Dallas County, usually number two in executions, where maverick prosecutor Craig Watkins (whom I featured on this blog last September) has called a halt to all executions pending a thorough review.

In a sign of the times in which Barack Obama could be elected as President, Watkins' crusade has earned him the honorary title of "Texan of the Year" from the Dallas Morning News:

He is actively pursuing a range of reforms that would protect the wrongly accused and appropriately punish the guilty. Not only does he want to clear the innocent, but he also hopes to extend the statute of limitations in DNA cases to ensure that the right person does the time.

He has reinvented his office by creating a conviction integrity unit, an operation that has freed prisoners who were wrongly locked up for murder, robbery and rape. Not content to just notch wins in the courtroom, Mr. Watkins deserves credit for vigilantly pursuing justice – a distinction with an important difference.

Dallas County leads the country in DNA exonerations (19 and counting), and Mr. Watkins has seized upon the attendant acclaim, taking his fight for social justice to statewide and national stages. In his sudden fame, he sees an opportunity to change the way district attorneys do business.

Further resources:

Texas Department of Criminal Justice schedule of executions

Execution statistics

Craig Watkins: Texan of the Year

Is the death penalty a dying breed? (Dallas Morning News)

Hang 'em high county to reverse course (blog post, September 2008)

Prosecutor will not use 9-year-old's confession

The 4-year-old boy making news today for shooting his babysitter harkens back to the 9-year-old Arizona boy who shot his father and another man to death back in November. In both cases, competency will be a central issue. Although the 4-year-old has not been arrested and in any event is highly unlikely to ever be found competent to stand trial, the 9-year-old's case is still undecided.

That earlier case was back in court yet again today, in one in a series of developments of interest to forensic psychologists.

St. Johns, Arizona - site of the November shooting

At this latest hearing, prosecutors agreed not to use the boy's videotaped statement to police. The defense had argued that the boy was illegally questioned without an attorney or a family member present; after all, the typical 9-year-old child is unlikely to grasp the implications of the Miranda warnings and intelligently waive his rights.

While in custody after the Nov. 5 killings, the boy also told a Child Protective Services worker that he had decided his thousandth spanking would be his last, according to police reports. Prosecutors agreed to suppress that statement as well. Prosecutors said they reserve the right to use either or both statements if the boy testifies in contradiction to them.

However, whether the unidentified boy will ever face trial is unknown, as the judge has not yet ruled on his competency. A psychologist who examined the boy for the defense opined that he is incompetent to stand trial due to his age and intelligence, and that he is unlikely to become competent within the time allowed by law.

If a judge finds the boy is incompetent and unable to be restored to competency within 240 days, the case could be dropped with prejudice, meaning it could not be refiled. If the boy is found fit to stand trial, he will likely face a bench trial in front of Apache County Superior Court Judge Michael Roca.

He also has been examined by a prosecution expert, but those results haven't yet been disclosed.

The next hearing in the case is scheduled for Jan. 21. I'm sure residents of St. Johns wish it was all over, as the town has been besieged by the media. Now, with the even more sensational case of the 4-year-old, whose babysitter allegedly stepped on his foot, maybe the camera crews will pack up and head for Jackson, Ohio instead.

Related background materials:

Videotape of confession (partial)

St. Johns, Arizona police report (pdf)

New Year’s Briefs – Part I

Signs of the times?

Happy New Year to all of my loyal subscribers and readers. As usual, a lot is going on and I have had little time to blog. But here are a few highlights, with more to follow.

California strikes draconian sex offender sentence

Imagine serving the rest of your life in prison for missing a bureaucratic deadline. That's what happened to Cecilio Gonzalez under California's three-strikes sentencing law, when he was three months late one year on his annual sex offender registration with the police. Registration infractions usually carry a maximum sentence of three years, and the prosecutor had originally offered Gonzalez a two-year term. He ended up with life because he decided to take the case to trial, acting as his own attorney. That's cruel and unusual punishment, a California appellate court ruled, because the punishment was grossly disproportionate to his "entirely passive, harmless and technical violation of the registration law." It is unclear what effect the ruling may have on other 3-strikes cases, given that California's Supreme Court has declined two challenges by men whose third strikes were shoplifting - in one case videotapes and in another case golf clubs. The L.A. Times has the full story.

Spotlight on violent vets

Veterans of Iraq and Afghanistan who come home and wreak havoc on their communities are a topic of mounting alarm around the United States. In Fort Carson, Colorado, for example, nine combat soldiers have been accused of killing people in the past three years; sexual assault and domestic violence cases are also up sharply. The New York Times has a follow-up story to its initial coverage a year ago, which traced many homicides by combat veterans to war-related trauma and the stress of deployment. As the Times notes, even military leaders are starting to acknowledge that "multiple deployments strain soldiers and families, and can increase the likelihood of problems like excessive drinking, marital strife and post-traumatic stress disorder."

Judges have also noticed the upsurge and in several jurisdictions around the country they are joining with local prosecutors, defense attorneys, and U.S. Department of Veterans Affairs officials to set up special veterans-only courts. The judges say trauma-related stress, brain injuries, and substance abuse are contributing to the rash of crimes. They are hoping the innovative courts can help rehabilitate veterans and avoid convictions that might cost veterans their future military benefits, according to a report in the National Law Journal.

Renewed calls for prison reform

With more than 1 in 100 Americans now behind bars, there are additional signs that some policy makers are getting fed up. Driving the trend may be the current economic downturn. As blog guest writer Eric Lotke pointed out last month, and as more and more people are finally noticing, the money being spent on prisons could be better spent on social programs. As the Virginian-Pilot editorialized:

In prosperous times, state and federal lawmakers wanting to polish their get-tough-on-crime image pass bills putting more people in prison and keeping them longer for offenses such as drunken driving, drug possession and dog fighting. When the economy tanks, those mandatory sentencing laws stay in place, and budget cuts instead dig into drug treatment and job-training programs.

Senator Jim Webb of Virginia is getting quite a bit of ink in his vigorous calls for prison reform, and editorials are urging other members of Congress to "show the same courage and rally to the cause."

Perhaps with Barack Obama in the White House, the time will be ripe to reverse course. As we forensic psychologists know, this would be good news for the mentally ill, who make up a large proportion of the millions of Americans behind bars. Indeed, a new study coming out of Texas shows that mentally ill prisoners are not only more likely than others to go to prison, but they are far more likely to recidivate. This "revolving-door" phenomenon owes to a lack of community treatment options, massive downsizing of state hospitals, and a legal system that virtually ignores psychiatric issues. As a result, "many people with serious mental illness move continuously between crisis hospitalization, homelessness, and the criminal justice system," noted the authors of the study, published in this month's American Journal of Psychiatry. The study, "Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door," is available upon request from lead researcher Jacques Baillargeon of the Department of Preventive Medicine and Community Health at the University of Texas.

Will “revolutionary” Diana Screen end pedophile menace?

Vatican enlisting psychologists to perform miracles

The new movie Doubt paints the issue of pedophilic priests in shades of gray. Is the priest (played by Philip Seymour Hoffman) really a pedophile? Or is the head nun (Meryl Streep) just after him because, with his friendly manner and long fingernails, he fits her stereotype? Most provocative of all is the ostracized boy's mother (Viola Davis), who cares more about the priest's kindness to her son than about whether the relationship is sexual.

The movie is set in the 1960s, two decades before the pedophilia scandals sprang into the limelight to tarnish the reputation of the Catholic Church. Revelations of sexual misconduct by priests resulted in staggering financial losses - an estimated $2 billion in civil damages paid by the U.S. Catholic Church alone.

Anxious to mend its reputation and plug the money drain, the Vatican just announced a new fix: Candidates for the priesthood will undergo psychological screening to determine their suitability for the job.

What makes a candidate unsuitable, according to the Vatican? "Uncertain sexual identity," "deep-seated homosexual tendencies," and "grave immaturity" are among the factors. Painting a pseudoscientific veneer on the campaign, the Vatican said "expert" psychologists will screen select candidates on a case-by-case basis.

Mental health professionals, already flush with domain expansion into the emergent sex offender industry, are rushing into this new and potentially lucrative niche.

Leading the charge is Gene Abel, the psychiatrist who invented the controversial Abel Screen, which measures sexual proclivities based on how long men look at visual images of different types of models. Abel is promoting a new "pass/fail" test called the Diana Screen as a "breakthrough in technology" that can accurately identify men who have molested children.

"Who should use it?" asks the tool's website. "Any organization where there are professionals or volunteers who work with children," including churches, youth groups, schools, hospitals, foster care homes, and amusement parks.

In an appeal that combines sex panic emotionalism with a promise of revenue, Abel asks professionals to step forward and "make a difference" by becoming Diana Screen administrators: "You don't just add to your business opportunity, you take a stand against molestation and you help others to also take a stand."

Who can resist an appeal like that?

A quick web search found several psychologists already offering to do Diana Screens for employers. One bragged of having a "Certificate of Achievement" from Abel "in recognition of [his] knowledge about this important technology."

Child molesters are a heterogeneous bunch, with no unitary psychological "profile." So, before rushing to sign on, I decided to read the published literature on the Diana Screen to find out how it works, and whether it is reliable and valid.

Searching "Diana Screen" in an academic database, I did not get any hits. An Internet search was slightly more productive. I found several presentations by Abel. He presented the Diana Screen to the Society for Sex Therapy and Research; the Assessment, Treatment and Safe Management of Sexually Abusing Children, Adolescents, and Adults conference, and the California Coalition on Sexual Offending (CCOSO).

At these conferences, Abel reported on research he conducted with 100-plus applicants for priesthood training jobs. Unfortunately, the research does not appear to have been peer-reviewed or published, as required for admissibility in court under the Daubert standard.

Searching further, I found some strategically placed advertising; searches with the keywords "child molestation" cause Diana Screen ads to pop up on some news sites. The Screen was also a featured exhibitor at this year's conference of the Chartered Property Casualty Underwriters Society, which offers "cutting-edge tools" for "risk management professionals."

More humorously, in the blogosphere I bumped into a group of sex offenders discussing how easy it is to beat the test (and its precursor, the Abel). All you have to do, wrote one man, is ignore the instructions to rate your sexual arousal level to each slide, and instead respond at "a regular timing interval," which is what is really being measured. [PS: The link to their conversation went dead after this post was published.]

"You'll laugh when you find out just how easily the test can be beaten! The entire thing rides on the theory that no one will know what it's really testing."

Another agreed: "It's so seriously EASY to play the test like a harp."

These sex offenders would likely quarrel with the Screen developers' claim that it can identify "over 50 percent of actual child sexual abusers."

But my own question about the 50 percent success rate was, How can they know they are identifying half of all pedophiles? And, perhaps more importantly from an ethical point of view, what is the rate of false positives, or people whom the test wrongly identify as child molesters?

Hoping to learn more, I contact the company directly and asked for any published research. In due time, I received a packet of materials - glossy brochures and fliers, a sample report, graphs, and more promises that the Screen will help "bring an end to child molestation." No references to published research, though.

The materials did include a handout on the aforementioned (unpublished?) study of candidates for religious ordination. Of the 135 applicants screened, 18 (or about 13 percent) failed the test. Of those, 7 "were found to be true sexual risks to children" (based on followup inquiry and polygraph testing), while 2 "were found to have mental health problems" and 9 "required a closer look, but were found to have little or no risk."

Stated another way, that's a false positive rate of at least 50 percent. Even if it is just a screening test, psychologists should be cautious in administering a test with such a high false-positive rate and no published, peer-reviewed data on its reliability or validity.

More fundamentally, this type of testing raises philosophical issues about how far society should go in the name of protecting children, especially when most victimization is done not by teachers or amusement park workers but by family members. Who, for example, should be screened? As a colleague commented, it is one thing to screen airline pilots for alcohol abuse, but if priests, teachers, hospital employees, and even carnival workers will be screened, where will we draw the line? How much personal information are employers entitled to know? And what recourse will there be for those who are denied employment or lose their jobs based on their innermost thoughts, their sexual identity, an incident in their distant pasts, or - worst of all - erroneous test results?

The most pernicious problem with false positives is, how can one really know? As the movie Doubt suggests, proving innocence is difficult, and those who claim to be protecting children may have more complicated motives.

* * * * *

JULY 2015 POSTSCRIPT: The Atlantic has just published an interesting article on the controversies swirling around Abel Assessment by Maurice Chammah, a staff writer at The Marshall Project.