3 decades in the hole, but were they guilty?

NPR's Legal Affairs:
Case Of Angola Inmates Heads To Court

The fate of two men who spent longer in solitary confinement than any other U.S. inmate will be argued in a federal court in Louisiana. The men were convicted 36 years ago of killing a prison guard in a racially charged investigation. After almost four decades in solitary, there are now questions about their guilt.

Audio story available HERE (after 7:00 pm WCT on March 3, 2009)

Today's Times-Picayune coverage is HERE

Last year's Mother Jones interview with the former Black Panthers, Albert Woodfox and Herman Wallace, is HERE

Photo: Replica of prisoner Herman Wallace's solitary confinement cell at Angola (nicknamed “the last slave plantation") by artist Jackie Sumell. Photo credit: hragvartanian (Creative Commons license)

Scotland up, United States down

Nations differ on prosecution of pint-sized lawbreakers

If you took my blog quiz of February 3, you will recall that only eight people in the entire world are serving sentences of life without the possibility of parole for crimes committed at age 13, and that all eight are in the Prison Nation (aka the United States).

February was a big month for juvenile crime news. We had the little 4-year-old who shot his babysitter, a plea deal in the case of the Arizona 9-year-old who shot his father and another man to death, and -- most recently -- the 11-year-old Pennsylvania boy who will be prosecuted as an adult in the shooting death of a pregnant woman.

11-year-old Jordan Brown

In Pennsylvania, where kids as young as 10 can be tried as adults and sentenced to life in prison, Jordan Brown was initially locked in an 8-by-10 cell in an adult jail. Swimming in oversized clothes cuffed up around his wrists and ankles, he could not take showers or have visitors because that would have required him mingling with adult prisoners. A judge ordered him moved to a juvenile facility, but he still faces trial as an adult.

Having just conducted two back-to-back competency evaluations of 11-year-olds here in rainy California, I can tell you one thing for certain: They are NOT miniature adults. And except when they commit crimes, no one pretends that they are. After all, they may not drive, vote, buy alcohol, smoke cigarettes, sign contracts, or even decide to skip a day of school.

Not only do 11-year-olds just not get it but, as I have blogged about previously, transferring juveniles to adult courts actually increases rather than reduces recidivism!

While U.S. states engage in a dubious competition over who can try more young children as adults, more civilized Europeans are going in the opposite direction.

In most of Europe, children under 10 cannot even be prosecuted as criminals, much less tried and sentenced as adults. The age of criminal responsibility is as high as 15 in Scandinavian countries. And a British think tank recently recommended raising the age of criminal prosecution even more, to 16 or 18.

Just this week, Scotland announced plans to raise the age of criminal responsibility from 8 to 12 to bring it more in line with other European countries.

"There is no good reason for Scotland to continue to have the lowest age of criminal responsibility in Europe," said Scotland’s Justice Secretary, Kenny MacAskill. "Most importantly, the evidence shows that prosecution at an early age increases the chance of reoffending – so this change is about preventing crime."

Public policy based on data instead of hysteria? Now, that's positively un-American!

Related resources:

• Juvenile transfer increases recidivism: Department of Justice confirms multiple study findings (Aug. 19, 2008)
• Amnesty International: Children in the US Justice System
• Children serving life without parole: “Cruel and unusual?” (Feb. 3, 2009)
• Move over, Guantanamo - here comes Wisconsin: Lifetime detention for misconduct at age 14? (Dec. 2, 2008)
• Prosecutor will not use 9-year-old's confession (Jan. 6, 2009)
• Prison pipeline for transgender youth: Poor and minority especially at risk (March 26, 2008)
• Wikipedia: International chart, minimum age of criminal responsibility (Aug. 19, 2008)

Upcoming forensic training workshops

Forensic Training Institute - Diagnostic Controversies
April 16 (CA)

Your host (Karen Franklin) and colleague Craig Lareau will present this all-day training at the California Psychological Association convention in Oakland, California. Geared toward advanced-level forensic practitioners, we will focus on current diagnostic controversies in the field including those surrounding Antisocial Personality Disorder, Psychopathy, the sexual disorders as used in Sexually Violent Predator (SVP) proceedings, and Posttraumatic Stress Disorder.

Click HERE for more information and online registration.

Assessing Malingering and Miranda Rights Waiver
April 24 (VA)

If you want to get away from the cold and visit a pretty place, you might want to check out this excellent training down in Charlottesville, Virginia. Richard Rogers, whom most of you all know as a leading forensic psychology practitioner and scholar, is presenting this full-day training sponsored by the always-excellent Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia. Dr. Rogers will be presenting one-half day on malingering (the topic of his classic reference text) and one-half day on evaluation of Miranda Rights, another of his specialty areas.

Click HERE for more information and to register.

Assessing Violence Risk in Community Settings
May 22 (VA)

This is a chance to hear from John Monahan, probably the foremost expert on this topic. Monahan has authored or edited 15 books and written hundreds of articles; his work on violence risk is frequently cited by courts, including the California Supreme Court in the landmark Tarasoff v. Regents and the United States Supreme Court in Barefoot v. Estelle, in which he was referred to as "the leading thinker on the issue" of violence risk assessment. This training is also sponsored by the Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia.

Click HERE for information and registration.

Latest on controversial "Fake Bad Scale"

I wanted to alert my psychologist readers to the latest in the controversy over the "Fake Bad Scale" of the Minnesota Multiphasic Personality Inventory, a topic I have blogged about previously (HERE). If you are planning to use this Scale, you should be aware of this article and the others on both sides of the controversy.

The Fake Bad Scale (FBS) was developed to identify malingering of emotional distress among claimants in personal injury cases. It was recently added to MMPI-2 scoring materials, resulting in its widespread dissemination to clinicians who conduct psychological evaluations.

The latest article, in the interesting new journal Psychological Injury & Law, summarizes concerns about the Scale's reliability, validity, and potential bias against women, trauma victims, and people with disabilities.

The article concludes that the scale is not sufficiently reliable or valid to be used in court:

"Based on a review and a careful analysis of a large amount of published FBS research, the FBS does not appear to be a sufficiently reliable or valid test for measuring 'faking bad,' nor should it be used to impute the motivation to malinger in those reaching its variable and imprecise cutting scores. We agree with the conclusions of the three judges in Florida that the FBS does not meet the Frye standards of being scientifically sound and generally accepted in the field, and that expert testimony based on the scale should be excluded from consideration in court. The samples used to develop the FBS are not broadly representative of the populations evaluated by the MMPI-2, nor are its criteria used to define malingering objective and replicable. There is insufficient evidence of its psychometric reliability or validity, and there is no consensus about appropriate cut-off scores or use of norms."

The article is "Potential for Bias in MMPI-2 Assessments Using the Fake Bad Scale (FBS)." The Abstract and a "free preview" are online HERE; the full article requires a subscription but can be requested directly from the first author, James Butcher. Butcher and co-authors Carlton Gass, Edward Cumella, Zina Kally and Carolyn Williams present just one side of the heated controversy; a rebuttal is scheduled for publication in an upcoming issue of the journal, followed by other pro and con articles.

Related blog resources:

New MMPI scale invalid as forensic lie detector, courts rule: Injured plaintiffs falsely branded malingerers? (March 5, 2008) – contains links and citations to other sources

"Fake Bad Scale": Lawyers advocate exposing in court (May 20, 2008)

A list of FBS references and statement from the test's publisher is HERE

Hat tip: Ken Pope

Peach Tree law makes Wall Street Journal

In 1996, 17-year-old Christopher Noles had consensual sex with his 14-year-old girlfriend. He was arrested for statutory rape and served a few months in prison. Then, he went on with his life. He got a job, married his girlfriend, became a father -- all the things adults normally do.

But in 2006, Georgia -- like many other U.S. states -- passed laws limiting where sex offenders could live and work. Noles lost his job and his family could not find a place to live.

Now, the Wall Street Journal’s Stephanie Chen tells his troubling story of unintended consequences to Southerners and Yankees alike:

After Prison, Few Places for Sex Offenders to Live: Georgia's Rules That Keep Some Convicted Felons Far From Children Create Challenges for Compliance, Enforcement

The article is available online for free for only a few more days. I've also blogged a lot about the Georgia's sex offender laws over the past couple of years. Click HERE to read more.

Hat tip: Jane

Clueless 'science'

Guest essay by Jennifer L. Mnookin*

Law professor and vice dean, UCLA Law School

On television shows such as the "CSI" series, forensic science is high-tech, heroic and always right. The National Academy of Sciences released a long-anticipated report Wednesday on the real world of forensic science -- and the news is disturbing and downright ugly. Laboratories are woefully underfunded, and much of what passes for forensic "science" does not meet even minimal scientific standards. Yet, when forensic scientists testify in court, they often are embarrassingly overconfident about their findings.

The academy's report, commissioned by Congress and the result of years of investigation by a distinguished panel of independent experts, does not mince words in its indictment of the scanty research foundation upon which much forensic science now stands. The report asserts that "the current situation" is "seriously wanting, both because of the limitations of the judicial system and because of the many problems faced by the forensic science community." It also calls for the urgent creation of a federal agency devoted to encouraging research and to providing much-needed regulation and oversight.Put simply, although many kinds of forensic testimony -- involving handwriting identification, fingerprint evidence and ballistics, for example -- are enormously persuasive to a typical jury, they do not meet the basic requirements of good science.

But we don't need to wait for a new agency to make the necessary changes. Judges, who preside over the presentation of this evidence, need to exercise their role as gatekeepers to protect the integrity of our criminal justice system by requiring higher standards for forensic science when it's used as legal evidence.


What did the study's authors identify as some of the most significant problems?

Bias: Doctors testing a new medicine are -- appropriately -- not told which patients receive placebos and which get the test medication, because that knowledge might unconsciously bias their behavior and observations. But forensic scientists are frequently exposed to information that can potentially foster bias. Crime laboratories have failed to create adequate procedures for making testing "blind."

Error rates: Most of the forensic disciplines lack good information about how often practitioners make mistakes, a basic requirement of any science. Not knowing the error rate is bad enough, but some experts consistently testify under oath that their technique has an error rate of zero, an inherently preposterous claim.

No one really knows just how often document examiners incorrectly analyze handwriting samples, how frequently arson investigators get the cause of a fire wrong or how often forensic odontologists misidentify bite marks. Yet anecdotal information and research suggest that errors are disturbingly frequent. University of Virginia law professor Brandon Garrett's 2008 study of the first 200 convicted defendants exonerated by DNA evidence, for example, found that faulty forensic science testimony was second only to erroneous eyewitness identification as a cause of miscarriages of justice.

Over-claiming: Science deals in probabilities, not certainty. The only forensic science that makes regular use of formal probabilities is DNA profiling, in which experts testify to the probability of a match. None of the rest of the traditional pattern-identification sciences -- such as fingerprinting, ballistics, fiber and handwriting analysis -- currently has the necessary statistical foundation to establish accurate probabilities. Yet, instead of acknowledging their imperfect knowledge, fingerprint experts, for example, routinely testify that they can identify a specific person's prints to the exclusion of all other people in the world with 100% certainty.In 2004, the FBI, often said to have the nation's best crime lab, wrongly identified Oregon attorney Brandon Mayfield as a terrorist based on an erroneous fingerprint match. It eventually admitted its error, and the government had to pay him $2 million. There are hundreds of less adequate labs across the country. How much confidence can we have in them?

Structural independence: Here in Los Angeles, the city crime laboratory is part of the Police Department, and the county's lab reports to the sheriff. These kinds of arrangements are typical. But when the police and prosecutors pay and supervise the scientists, it stands to reason that the scientists may have difficulty establishing their independence.

The courts have almost entirely turned a deaf ear to these arguments, essentially giving forensic science and its practices a free pass, simply because they've been part of the judicial system for so long. Meanwhile, scandals continue to come to light across the nation involving error and even fraud in labs.The findings in the National Academy of Sciences report should spur judges to require higher standards. At a bare minimum, judges should immediately prohibit experts from testifying to impossibilities such as "an error rate of zero" or asserting that they are capable of making 100% certain identifications.In other cases, judges would be well advised to throw out forensic science altogether -- not forever, but until adequate research establishes, for example, that the conventional wisdom about evidence of arson is empirically valid, or until fingerprint and ballistics experts provide adequate proof that their real-world error rate is reasonably low. Courts should require forensic experts to back up their testimony with empirical evidence that they can do what they claim to be able to do.

We want and need forensic science in our legal system, but we have to be able to trust it. The forensic science community has been, at best, wary of, and often downright hostile to, serious inquiry into its strengths and limitations, especially by objective external researchers.

But if judges raised their standards and limited or excluded forensic evidence that didn't meet them, that fortress mentality would inevitably change. This much-needed research would probably reveal that forensic science is not as perfect as its practitioners have often claimed. But when forensic science rests on an appropriate scientific foundation, it will be far more deserving of our confidence. Our system of justice demands no less.

*From the Los Angeles Times of February 18, 2009, posted with the written permission of Professor Mnookin

Dr. Mnookin is a widely published law scholar and co-author of The New Wigmore: Expert Evidence. Her work focuses on evidence theory, expert evidence, and law and culture, with an emphasis on law and film. She is particularly interested in the connections between science, law and culture; her current work focuses on the history of expert and visual evidence in the American courtroom.

The National Academy of Sciences' important report, Strengthening forensic science in the United States: A path forward, is online here. A summary of the report is here. To listen to yesterday's Congressional briefing on the report, click here. A New York Times report on the study is here.

Veteran with PTSD won’t do time for robberies

Last month I wrote about the potentially landmark case in which an Army veteran was found insane in the armed robbery of a pharmacy. Sargent Binkley said he robbed that pharmacy and one other of painkillers to cope with his symptoms of post-traumatic stress disorder.

Yesterday, Sargent pleaded no contest in a separate San Francisco Peninsula robbery committed during the same time period, in exchange for a promise of probation. He had faced at least 12 years in prison.

Binkley cannot be formally sentenced until state hospital doctors find him sane and no longer dangerous. The ability of the white West Point graduate and former Eagle Scout to garner sympathy among jurors and prosecutors bodes well for his stay at the hospital. If I had to bet, I would predict state hospital psychiatrists will agree to a quick release.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense had argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. Prosecutors countered that Binkley exaggerated his military service and that his claim of involvement in drug interdiction in Honduras was pure fantasy. Further, they said, his addiction to pain pills stemmed not from military-related activities but from a hip injury incurred while he was running away from a production assistant for the Fox reality TV show "Temptation Island" after a bar fight.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

The case comes amid growing interest in the plight of veterans returning from the wars in Iraq and Afghanistan. Military leaders acknowledge that multiple deployments in particular put a severe strain soldiers and their families, and can increase the likelihood of domestic violence, alcohol abuse, and symptoms of post-traumatic stress disorder.

To handle a wave of arrests of soldiers, special courts for veterans are opening in several states, including Arizona.

Related stories:

Insanity verdict for soldier with PTSD: Case heralded as landmark for traumatized veterans (blog post, Jan. 14, 2009)

Ex-Army captain won't do time for two holdups (San Francisco Chronicle, Feb. 19, 2009)

Focus on violence by returning GIs (New York Times, Jan. 2, 2009)

New court is sought to aid vets charged with crimes (Arizona Republic, Jan. 6, 2009)

Reaching out to returning vets (Wisconsin Law Journal, Feb. 6, 2009 – subscription required)

Another ruling against federal sex offender law

From the Sacramento Bee:

In only the third such ruling in the nation, a Sacramento judge has found to be unconstitutional a statute that makes it a federal crime for someone to fail to register as a sex offender and relocate from one state to another.

U.S. District Judge Lawrence K. Karlton found that, in enacting the 2006 Sex Offender Registration and Notification Act, "Congress overstepped its authority under the (Constitution's) commerce clause…. This appears to be a plain usurpation of the state's police power."

Karlton made rulings this week in two prosecutions and threw them out, saying SORNA does not meet the U.S. Supreme Court's standard for congressional jurisdiction over interstate commerce.

At least 18 district judges have upheld SORNA, while only two others have found it is at cross-purposes with the commerce clause. Of the 12 federal appellate circuits, only two -- the 8th and 10th -- have addressed the issue, and both upheld the statute.

Related blog posts:

Court strikes down federal civil commitment law (January 9, 2009)

Challenge to juvenile sex offender risk prediction: Harsh federal law on shaky scientific ground (October 9, 2008)

Federal court strikes down portion of Adam Walsh Act (September 10, 2007)

International outrage: Czechs versus Saudis

In a good example of cross-cultural variations related to sexual behavior, international human rights groups are going after two countries for officially sanctioned policies that could not be more different:

Castrating prisoners . . .

In the Czech Republic, first-time, non-violent sex offenders such an exhibitionists can be imprisoned for life. Unless, that is, they agree to be castrated. In the past decade, at least 94 sex offenders have gone under the blade.

In a cleverly entitled article, "The unkindest cut," Time Magazine tackles the controversial issue of castration in that nation.

The Council of Europe, a human rights body, is demanding that the Czechs immediately stop the "degrading" punishment. But as the Dallas Morning News points out, although the Czech Republic may be the only country in Europe that allows the practice, it is certainly not unheard of in the United States. In Texas, for example, three prisoners have undergone voluntary surgical castration in recent years. Many more sex offenders around the country undergo "chemical castrations" that reduce their sex drive -- and potentially their legal sanctions.

Study findings are mixed as to whether castration, either surgical or chemical, is effective at curbing sex offender recidivism.

. . . vs. allowing child marriages

Meanwhile, a little bit to the southeast, Human Rights Watch is up in arms in the wake of a judge's refusal to annul the marriage of an 8-year-old girl to a 47-year-old man. The girl's father reportedly arranged the marriage to his friend in order to settle a debt; when the mother protested, the judge made the girl's husband sign a pledge that he would not have sex with the girl until she reaches puberty.

The nation's top cleric defended the practice, saying girls as young as 10 should be allowed to wed. "Those who think she's too young are wrong and they are being unfair to her," CNN News quoted Sheikh Abdul Aziz Al-Sheikh as saying.

Laws about what age children may marry, or have sexual relations, are complex and vary tremendously from nation to nation, and even within some nations (such as the United States). The median age at which a child can consent to sexual activity is somewhere around age 14-16, but varies from a low of about 9 to a high of 21.

At least the Saudi newlywed should be happy he does not live in the Czech Republic.

Postscript: In an out-of-court settlement, the 8-year-old has been allowed to divorce her husband.

Implications of PA case for juvenile courts

Today's New York Times has coverage of the astonishing case that I blogged about yesterday, on the two juvenile judges in Pennsylvania who were accepting kickbacks to send children to jail. Of interest to my readers, the case is calling public attention to juveniles' right to an attorney.

Children have a constitutional right to legal representation under a U.S. Supreme Court ruling in 1967. But in Pennsylvania and at least 20 other states, they can waive this right. Some say juveniles should be required to have a lawyer when they appear in court, as is the law in three states (Illinois, New Mexico and North Carolina).

"The juvenile system, by design, is intended to be a less punitive system than the adult system, and yet here were scores of children with very minor infractions having their lives ruined," Marsha Levick, a lawyer with the Philadelphia-based Juvenile Law Center, told the Times. "There was a culture of intimidation surrounding this judge and no one was willing to speak up about the sentences he was handing down."

Last year, according to the Times story, Pennsylvania's Supreme Court rejected a petition filed by the Juvenile Law Center about more than 500 juveniles who had appeared before Judge Ciavarella without legal representation. The court originally rejected the petition, but recently reversed that decision.

Given the secrecy surrounding juvenile court proceedings, some are also calling for greater public access - a double-edged sword that may cause unintended negative consequences, in my opinion. As the former director of the state's Office of Juvenile Justice pointed out, probation officers, prosecutors, and defense attorneys are already present in court and sworn to protect the interests of children; "it’s pretty clear those people didn't do their jobs."

The excellent followup article is here.

Photo credit: publik16 (Creative Commons license)

Evil lurked in Luzerne County

Something scary was happening in Luzerne County, Pennsylvania. A kid who had never been in trouble would show up in juvenile court for writing a prank note or having drug paraphernalia and -- BOOM -- he would disappear.

Kids were locked up for months at a time even when probation officers recommended against it. Youth advocates complained, but no one listened.

Now, everyone knows why. Two of the judges were running a scheme in which they shunted kids to private jails in exchange for at least $2.6 million in kickbacks. In what the media are calling "one of the most stunning cases of judicial corruption on record," one of the two bad judges actually shut down the county juvenile hall so kids would have to go to PA Child Care LLC, which owned him.

A senior judge from a neighboring county will have the laborious task of going through all cases handled by the judges for the past six years, to "identify the affected juveniles and rectify the situation as fairly and swiftly as possible."

A first step in rectifying the situation -- or at least making the wronged kids feel a bit better about the world -- might be to lock up the offenders. But after the judges pleaded guilty in federal court Thursday to tax charges, they were allowed to remain free pending sentencing.

Too bad they didn't afford that same courtesy to the youngsters who came before them.

Photo credit: "The Fog" by Canon in 2D (Creative Commons license)

Recommended reading: Juvenile competency

I was just looking over Ivan Kruh and Tom Grisso's new book, Evaluation of Juveniles' Competence to Stand Trial, as I sat down to write a rather complex report on an 11-year-old child. Wow! This little book is such a great tool, I thought I should plug it to those of you who work with juveniles.

As I wrote in my Amazon review, "You will not find this much comprehensive, up-to-date information on juvenile competency to stand trial (CST) evaluations in any other single source." It's a tiny little book, but it is jam-packed with information, very clearly written, with the concepts clearly explained.

Also, unlike the volume on SVP evaluations in the same new Best Practices in Forensic Mental Health Assessment series from Oxford University Press, this one tackles the controversies and complexities in the field head-on, rather than shying away from them.

My complete Amazon review is here, with links to other relevant resources. (As always, if you like it please click on the "Yes" button at the bottom, as that helps the placement of my reviews on Amazon.)

Megan’s Law: Millions for nothing

You all know about "Megan's Laws." They are named after Megan Kanka, a 7-year-old girl from "America's favorite hometown" of Hamilton, New Jersey, who was raped and murdered by her neighbor, a released sex offender named Jesse Timmendequas, on July 29, 1994.

Capitalizing on the fear this crime engendered, legislators proved themselves tough on crime by enacting Megan's Laws in all 50 U.S. states. The laws are designed to protect the public by mandating that convicted sex offenders register with local police and that police agencies keep the public informed about the whereabouts of these offenders.

But do the laws really protect the public?

Despite their enormous popularity, little research has been conducted into whether they work.

Now, a federally funded study of New Jersey's law has found the following dramatic effects:

• Effects on sex offender recidivism: NONE
• Effects on time to first re-arrest: NONE
• Effects on number of victims: NONE
• Effects on state budget: $3.9 million-plus (as of 2007)

The bottom-line conclusion?

"Given the lack of demonstrated effect of Megan's Law on sexual offenses, the growing costs may not be justifiable."

Other research has suggested that the laws may not only be ineffective at reducing sex offending, but they may paradoxically increase sex offenders' risk through the secondary effects of social stigmatization, loss of employment and housing, and even physical victimization, all of which increase stress and social isolation and make it harder for sex offenders to successfully reintegrate into society.

Americans are standing in hours-long, Depression-style lines for a couple of free eggs at Denny's. Our schools cannot even afford pencils or electricity in the classrooms. Yet we are willing to pay millions for laws that only provide an illusion of safety. Something is wrong with this picture.

The study, "Megan's Law: Assessing the Practical and Monetary Efficacy," by researchers Kristen Zgoba, Philip Witt, Melissa Dalessandro, and Bonita Veysey, is available here.

Children serving life without parole: “Cruel and unusual?”

Test your knowledge:

1. In the entire world, how many children are serving sentences of life without parole for crimes committed when they were 13 years old?

2. In what countries are those cases?

3. How many of those cases involve crimes in which no one died?

Answers: (1) There are only eight in the entire world. (2) All eight are in the United States. (3) Only two did not commit a murder. Both are Black, and both are in Florida.

In yesterday's New York Times, Supreme Court correspondent Adam Liptak reports on one of those two. Joe Sullivan, now 33, is serving life for the 1989 rape of a 72-year-old woman. As Liptak reports it:

The victim testified that her assailant was "a colored boy" who "had kinky hair and he was quite black and he was small." She said she "did not see him full in the face" and so would not recognize him by sight. But she recalled her attacker saying something like, "If you can't identify me, I may not have to kill you." At his trial, Mr. Sullivan was made to say those words several times. "It's been six months," the woman said on the witness stand. "It's hard, but it does sound similar."

Sullivan's trial lasted only one day. His lawyer, later suspended from practice, made no opening statement. Biological evidence was collected from the victim but was not presented at trial and has since been destroyed.

Now, in an appeal to the United States Supreme Court, the Equal Justice Initiative argues that Sullivan’s life sentence is cruel and unusual punishment, banned by the Constitution’s 8th Amendment.

People can argue about whether imprisoning a 13-year-old for life is cruel, comments Liptak, but "there is no question that it is unusual."

Liptak's column is here.

Further resources:

Equal Justice Initiative report, "Cruel and Unusual," on 13- and 14-year-old children sentenced to life in prison

Photo credit: Equal Justice Initiative. Hat tip: Jane.

State psychologist gets 7-year prison term

Update on North Dakota child porn case

Those of you who followed the case I reported on in December 2007, involving the sexually violent predator evaluator who was addicted to child pornography, may be interested in the outcome:

Joseph Belanger, who ran North Dakota's Sexually Dangerous Individual (SDI) civil commitment program, has been sentenced to seven years in prison after pleading guilty to charges of receiving and possessing materials involving the sexual exploitation of minors.

The arrest of the state psychologist prompted a review of more than 100 cases in which he had opined that sex offenders were dangerous and should be civilly committed, and an appeal before the North Dakota Supreme Court.

An interesting but possible unanswerable question is whether Belanger's work in the field somehow triggered his interest in child pornography.

The Associated Press story is here.

Prior blog stories on this case:

• Ripple effects of psychologist's porn addiction: Sex offenders to get new trials (July 20, 2008)
• Another forensic psychology sex scandal (December 9, 2007)

Mental illness: The death penalty frontier

With juveniles and the mentally retarded off the list of those eligible to be executed, severe mental illness looms as the "next frontier" of death penalty jurisprudence, asserts Bruce J. Winick, therapeutic jurisprudence scholar and a law professor at the University of Miami School of Law:

The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence. This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana. The Article analyzes the application of this emerging approach in the context of severe mental illness. It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context. The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.

Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis. The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication. The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase. Future implications of the Court's emerging approach also are examined.

A pdf of the full paper is available for online download here.

Hat tip: Kirk Witherspoon

Insanity verdict for soldier with PTSD

Case heralded as landmark for traumatized veterans

Photos: Sargent Binkley before and after
In a potentially landmark case, a jury in the San Francisco Bay Area has acquitted a former Army captain who used a 9mm handgun to rob a pharmacy because he was addicted to painkillers.

The Santa Clara County jury found West Point graduate Sargent Binkley not guilty by reason of insanity after hearing testimony that he suffered from post-traumatic stress disorder as a result of his military experiences in Bosnia and Honduras. Binkley is still awaiting trial for a similar robbery in nearby San Mateo County.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. His father testified that he became addicted to morphine-based painkillers after dislocating his hip in Honduras while running away from an alcohol-fueled fight over a woman.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

Dr. Jeff Gould, originally appointed by the court in adjacent San Mateo County, testified for the prosecution that Binkley's PTSD did affect his judgment but did not render him insane.

Dr. Kenneth Seeman testified for the defense that Binkley manifested symptoms of psychosis, depression, suicidality, and anxiety in addition to PTSD and was incapable of knowing right from wrong.

Prosecutor Deborah Medved challenged Seeman on why he did not render any of these diagnoses in his original report, written a year prior to testimony. In his written report, according to news reports, Seeman opined that Binkley's insanity was due to his drug addiction. In California, addiction is barred as a basis for the legal defense of insanity. Seeman responded to the prosecutor’s challenge by saying his diagnoses had evolved over the course of his two subsequent evaluation sessions with Binkley.

In another unusual twist suggesting that the jury may have been motivated at least in part by sympathy for the defendant, the pharmacist whom Binkley robbed of Percocet testified for the defense.

The case has been the subject of web sites and petition drives pleading for leniency due to Binkley's status as a veteran. A group of military veterans had regularly attended Binkley’s court hearings. "It's a great day for our veterans who have come back suffering from PTSD to now know they can receive justice," said one, Vietnam veteran and West Point graduate Alan Lubke.

Binkley had faced a minimum term of 12 years in prison. Now, he will undergo a mental health evaluation aimed at determining whether he should be psychiatrically hospitalized or ordered into outpatient treatment.

"I am expecting the doctors will determine he has regained his sanity and is no longer a danger," said defense attorney Chuck Smith. "I hope he will be released relatively soon, like within the next six months."

San Jose Mercury News coverage is here. San Francisco Chronicle coverage is here.

Related resources:

• New York Times (Jan. 1, 2009): Focus on violence by Returning GIs
• Arizona Republic (Jan. 6, 2009): New court sought to aid vets charged with crimes

Report: Online threat to children overblown

The Internet may not be such a dangerous place for children after all.

A task force created by 49 state attorneys general to look into the problem of sexual solicitation of children online has concluded that there really is not a significant problem.

The findings ran counter to popular perceptions of online dangers as reinforced by depictions in the news media like NBC's "To Catch a Predator" series….

The panel, the Internet Safety Technical Task Force, was charged with examining the extent of the threats children face on social networks like MySpace and Facebook, amid widespread fears that adults were using these popular Web sites to deceive and prey on children.

But the report concluded that the problem of bullying among children, both online and offline, poses a far more serious challenge than the sexual solicitation of minors by adults.

So reports Brad Stone in today's New York Times. The news report is here. The full report is here.

Related articles from this blog:

• Experts debunk myths about online youth victimization
• More research debunking Internet predator myth
• Unintended consequences: Is predator hysteria fueling phobia of men?
• 'Predator' caught in its own trappings (Steven Winn essay)
• Cyberbullying verdict raises legal questions

Hat tip: Jane

Stalking: New crime victimization survey

The U.S. Justice Department's Bureau of Justice Statistics has released the largest-ever study of stalking, a category of crime that was not previously included in the National Crime Victimization Survey. According to the study, intended to document the scope and types of stalking, 3.4 million Americans identified themselves as victims of stalking during a recent one-year period. Most stalkers knew their victims, and the most frequent victims -- not surprisingly -- were young women.

Tomorrow’s USA Today has the story.

Epidemic of nomadic sex offenders worsens

New laws not exactly a blueprint for public safety

It's happening all around the country, from Georgia to Florida to Washington. But nowhere is the problem more acute than in California, which has seen an 800 percent increase in the past two years. As Karl Vick of the Washington Post reports:

LOS ANGELES -- Upon release from state custody, Ross Wollschlager began an intensive search for a home, one that abided by the restrictions imposed on convicted sex offenders in California -- and, in various versions, by about 30 other states. Obliged by law to return to Ventura County, the convicted rapist was forbidden to sleep within 2,000 feet of a school or a park.

He ended up in a tent on the dry bed of the Ventura River.

Strict new laws aimed at keeping track of sex offenders after they leave prison appear to be having the opposite effect, encouraging homelessness in a population believed more likely to re-offend if cast into the streets without structure or family support, say prosecutors, police, parole officials and experts on managing sex offenders.

The issue is starkest in California, where the number of sex crime parolees registering as transient has jumped more than 800 percent since Proposition 83 was passed in November 2006. The "Jessica's Law" initiative imposed strict residency rules and called for all offenders to wear Global Positioning System bracelets for the rest of their lives.

Named for a 9-year-old Florida girl raped and murdered by a convicted sex offender, the provision passed by a wide margin that reflected the powerful public emotion that experts and law enforcement officials say in this instance trumped sound policy.

"The public definitely was sold a bill of goods on this one," said Detective Diane Webb, supervisor of the Los Angeles Police Department unit that tracks 5,000 sex offenders in Los Angeles County. "Unfortunately, it bodes well for politicians to support it because the public does have this false sense of security that this is somehow protecting them when it's not."

Locating legal housing for offenders has become so difficult in urban California that when parole officers find an apartment building beyond the exclusion zones, they often pile in as many offenders as the landlord will accept. When neighbors notice, the cluster spurs protests that prompt lawmakers to pass even tighter exclusion zones as Proposition 83 allows.

The informative Post story continues here.

Previous related posts:

• Punishment for homelessness: Life in prison
• Sex offenders must live as trolls
• A bridge as a last resort

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.