August 18, 2009

Criminalizing our nightmares, destroying civilization

We all know what an unmitigated disaster the Drug Wars have been. Here at Ground Zero (California), prison guards live large while public schools crash and burn. (We used to have among the best schools in the United States; now we are at the bottom.) Membership in the guards' union has soared from 2,600 to 45,000, while correctional salaries rose from $15,000 to -- in some cases -- $100,000 a year or more. (Laura Sullivan at NPR has an informative piece on Folsom Prison as an exemplar of this process. Folsom used to rehabilitate its prisoners; now it's a "merry-go-round" with no escape.)

Have we learned from the failed Drug Wars? Nope. Instead, we are on the cusp of a new and massive criminalization effort, this time targeting the bogeyman sex offender.

So predicts Corey Rayburn Yung, prolific scholar at John Marshall Law School in Chicago, in a new article, "The Emerging Criminal War on Sex Offenders." Yung reviews the history of "criminal wars," mainly the War on Drugs, to identify three essential features:
  • Marshaling of resources
  • Myth creation
  • Exception making
He predicts that the changes being wrought by the Adam Walsh Child Protection and Safety Act ("AWA") of 2006 may bring "repercussions as substantial as the drug war has had on American criminal justice and society."

The ratchet effect

By now, we really should know better than to allow this further destruction of our civil society. Even the Economist of London, hardly a bastion of liberal politics, is lambasting the laws. The August 6 issue includes both a leader and a more in-depth article explaining why America’s sex laws are "unjust and ineffective." As the subhead puts it:

"An ever harsher approach is doing more harm than good, but it is being copied around the world"

As with the Drug Wars, the laws are driven by the "ratchet effect":
"Individual American politicians have great latitude to propose new laws. Stricter curbs on paedophiles win votes. And to sound severe, such curbs must be stronger than the laws in place, which in turn were proposed by politicians who wished to appear tough themselves. Few politicians dare to vote against such laws, because if they do, the attack ads practically write themselves.

"In all, 674,000 Americans are on sex-offender registries -- more than the population of Vermont, North Dakota or Wyoming…. [A]t least five states require registration for people who visit prostitutes, 29 require it for consensual sex between young teenagers and 32 require it for indecent exposure. Some prosecutors are now stretching the definition of 'distributing child pornography' to include teens who text half-naked photos of themselves to their friends.

"How dangerous are the people on the registries? A state review of one sample in Georgia found that two-thirds of them posed little risk. For example, Janet Allison was found guilty of being 'party to the crime of child molestation' because she let her 15-year-old daughter have sex with a boyfriend. The young couple later married. But Ms Allison will spend the rest of her life publicly branded as a sex offender."
Yung too discusses some of these unintended consequences, including the harm to innocent parties. Other examples can be found daily in the popular press. For example, today's Raleigh (North Carolina) News and Observer reports on the travesty of convicted sex offenders being denied the right to worship, and one church choosing to move its children's programs off-site to protect a sex offending parishioner.

As I've reported before, the sexual predator hysteria is creating a widespread phobia of men in contact with children. Columnist Jeanne Phillips (Dear Abby), for example, is fueling panic about the dangers of public men's rooms. As San Francisco Chronicle columnist Jon Carroll sardonically responded:
"When did the idea get out that men's rooms were a secret hotbed of molestation? I mean, there are some men's rooms -- including, apparently, one in the Minneapolis airport -- where consensual homosexual activity between adults has been known to happen. But that's not at all the same thing as child molesting; that's just a form of speed dating. Men's rooms, may I say, are boring. Ain't nothing going on in them. Molestation typically happens in other places, usually in a private home. And statistically it's no more common than it was 30 years ago. As I've said before, if you're looking for the people most likely to molest your child, look at the members of your own family, because that's how it usually happens. People don't want to admit that, so they invent phantom pedophiles in the nation's men's rooms."
But above and beyond all of these unintended consequences, I predict that years from now we will look back and realize not just what we already know -- that we destroyed many lives unnecessarily, bankrupted our schools and other public institutions, and curtailed civil liberties on a massive scale -- but, more fundamentally, we actually created the creature we feared.

Creating the bogeyman: "Mike"

Let's take "Mike." An average, red-blooded 19-year-old American, he dated a cute 16-year-old girl. Like thousands of other young men, he was arrested, and forced to register as a "sex offender" for life. No matter that his behavior was not deviant. Three years is a standard age gap between young men and women for dating in our culture, as it has been forever. I happened to see the obituary of an 89-year-old man who before his demise had celebrated his 70th wedding anniversary. His wife was 86. Do the math. If he had been born 70 years later, he'd be a sex offender for life. Unable to live freely, work, or even attend church, he probably wouldn't have led such a successful life. After all, as social psychologists can tell you, the environment is at least as important to behavior as any psychological characteristics. Probably far more so.

Back to Mike. As I said, there's nothing wrong with Mike. But no matter. Like everyone else, he must undergo mandatory "treatment" for "statutory perpetrators" (yes, that's what treatment providers are calling guys like Mike).

The treatment of choice is cognitive-behavioral therapy. Its mantra, as Dany Lacombe of Simon Fraser University in Canada found in an ethnographic study of one prison-based treatment program, is:

"Once a sex offender, always a sex offender."

"Sex offending is like diabetes," a program therapist tells the assembled sex offenders. "It will not go away. You cannot be cured. We don't use the C word here. But can you be managed? Yes. Treatment is all about managing your risks to re-offend."

Despite little empirical support for this approach, Mike will be trained to understand his "cycle" of offending and develop a relapse prevention plan that focuses on controlling "deviant sexual fantasies." He will have to generate a log of sexual fantasies. If he denies deviant fantasies, or doesn't see the connection between his fantasies and his offending, he will be accused of not cooperating. He will learn to create deviant fantasies "to keep the therapists at bay."

As Lacombe quoted one 18-year-old, in the article in the British Journal of Criminology:
"They want to hear that I always have fantasies and that I have more bad ones than good ones. But I don't have bad ones that often. I make up the bad ones. I make them really bad because they won’t leave me alone."
Through the treatment process, Mike and others will learn to think of themselves as "beings at risk of reoffending at any moment." Indeed, if treatment is successful, Mike will become a virtual "confessional machine," "expected all his life to narrate his darkest fantasies to criminal justice officers and significant others who are enlisted to help him control his risk."

The iatrogenic process

As you probably know, iatrogenesis refers to the situation in which treatment creates or exacerbates an illness or adverse condition. In the context of sex offender treatment and management, here's how the process works:
  1. Saturate popular culture with hypersexual advertising and degrading, misogynistic pornography.
  2. When men succumb to the allure and experimentally transgress, label them as lifelong "sex offenders."
  3. Through mandatory "treatment," reprogram them into dark and dangerous deviants, "a species entirely consumed by sex."
  4. Finally, restrict their freedoms so severely that few if any prosocial life courses remain open.
Through exercises of moral regulation, then, the government, law enforcement, media, and therapists collude to transform sex offenders into a strange and different "other," no longer recognizable in their ordinariness.

While this makes Mike more closely match the public's conception of the bogeyman sex offender, is this helpful in the long run, either to him or to society more broadly? By brainwashing thousands of men to think of themselves as nothing more than perpetual sexual deviants, might we not be producing the very risk we have imagined and then sought to ameliorate?

Related articles by Corey Rayburn Yung:

The Sex Offender Registration and Notification Act and the Commerce Clause, Federal Sentencing Reporter, Vol. 21, No. 2, 2008

Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders, Washington University Law Review, Vol. 85, p. 101, 2007

Photo credit: "Bogeyman" by faedrake (Creative Commons license)

August 10, 2009

New prison research

Beyond Supermax: The Mississippi experience

Having worked in a prison segregation housing unit, I can tell you that such housing units wreak havoc on the fragile psyches of mentally ill prisoners. In a new article, prison authority Terry Kupers (author of Prison Madness) and a group of 13 colleagues explore what happened when Mississippi was forced through class-action litigation to remove mentally ill prisoners from Parchman's "Unit 32" and to provide them with treatment. The result? Not surprisingly, the prison saw "large reductions in rates of misconduct, violence, and use of force."

The abstract of Beyond Supermax Administrative Segregation: Mississippi's Experience: Rethinking Prison Classification and Creating Alternative Mental Health Programs is available at Criminal Justice and Behavior's "online first" site.

Researching prisoner rape


As you may imagine, getting accurate information on the prevalence and features of sexual assault in prison is a difficult task. Among the many challenges are "working cooperatively with state agencies while maintaining independence, gaining access to prisons and prisoners, securing necessary institutional approvals, and collecting generalizable data on a highly sensitive topic." The federal Prison Rape elimination act (PRea) of 2003 increases opportunities for research, however, and a group of scholars tells us how it is done. Lead author Valerie Jenness of UC Irvine is a noted authority on hate crimes. In this article in Criminal Justice Policy Review, Accomplishing the Difficult but Not Impossible: Collecting Self-Report Data on Inmate-on-Inmate Sexual Assault in Prison, she and co-authors describe their research procedures, in the hopes of reversing the recent decline of in-prison research by encouraging other researchers to sally forth.

Additional resources:

August 7, 2009

Norfolk sailors receive partial pardons

Remember the case of the Norfolk 4, which I've blogged about before? That's the 1997 rape-murder case that has become an exemplar of wrongful convictions, the topic of a book by confession scholar Richard Leo and an upcoming screenplay by bestselling author John Grisham.

Yesterday, Virginia Governor Tim Kaine issued partial pardons to three of the four sailors, paving the way for their imminent releases. The fourth sailor was released in 2005. In his statement, the governor noted that the men's confessions contradicted forensic evidence, that no physical evidence linked the men to the crime scene, and that another man had confessed and asserted that he acted alone. That man's DNA matched evidence found at the scene.

The case was highly unusual in that even a group of former FBI agents was lobbying for the pardon.

But guess what? The pardons are only "partial" rather than full vindications. That means the men's convictions will stand, and they will be required to register as sex offenders. And all of you readers know what that means: Even though most intelligent people know they were innocent, they will have a hard time finding anywhere to live, and very few employers will have the courage to hire them.

The New York Times has the story.

Related blog resources:

Juvenile risk article available to my readers

I recently blogged about an upcoming article in Criminal Justice and Behavior on the use of actuarial tools to predict juvenile sex offender recidivism. (They don’t work.) Thomas Mankowski, the criminology editor at Sage Publications, who also runs the website of the International Association for Correctional and Forensic Psychology (which owns Criminal Justice and Behavior) just so happens to be a follower of this blog, and he kindly offered to let my readers download the article for free. You should be able to download the entire article ("Assessment of Reoffense Risk in Adolescents Who Have Committed Sexual Offenses: Predictive Validity of the ERASOR, PCL:YV, YLS/CMI, and Static-99" by Jodi Viljoen and colleagues) for free by clicking on the download button, above. I also recommend that you check out the IACFP's blogs section; it's got lots of great news and commentary. Thanks, Tom!

30% discount on IACFP membership

Tom is also offering my blog readers a special rate of 30% off membership in the Association for Correctional and Forensic Psychology. The IACFP is an organization of behavioral scientists and practitioners concerned with delivery of high-quality mental health services to criminal offenders, and with promoting and disseminating research on the etiology, assessment, and treatment of criminal behavior. Membership benefits include subscriptions to Criminal Justice and Behavior (click HERE for a free sample issue) and a quarterly newsletter, The Correctional Psychologist, free access to more than 55 criminology journals online, and discounts on various books, educational materials, and conferences. With the discount, a one-year membership is $52.50; student membership is $25. Click HERE to take advantage of this offer. When checking out, enter the Promo Code JULY30% in the "Comments and Special Instructions" field. (Orders are processed manually, so the regular fee appears during checkout but you will be charged the discounted amount.)

August 5, 2009

Don't ban Gay Panic Defense

"Gay panic" is a controversial defense typically invoked when a heterosexual man murders a gay man, claiming the gay man made an unwanted sexual advance. Critics have called for legislation to abolish the defense on the grounds that it capitalizes on unconscious prejudice by invoking the stereotype of gay men as sexual predators. But legal scholar Cynthia Lee takes a different approach. In a new article, the law professor at the George Washington University Law School argues that abolishing the defense will have the unintended consequence of allowing it to slither into court on the down low.
"Trying to change social norms by suppressing norms with which one disagrees is not the best way to bring about lasting change.... Trying to force such change through legislative or judicial bans will only succeed in driving these arguments underground where they can appeal to subconscious bias."
In addition, attempts to bar the construct may run afoul of defendants' Constitutional right to present a full defense.

Instead, the defense should be allowed but openly challenged. Indeed, Lee argues, the criminal court is the ideal forum for an open and honest discussion of sexual prejudice and the law.

Just as recent research suggests that jurors do a better job in race-related cases when race is made consciously salient, Lee advises the same for sexual orientation bias. She advises prosecutors to identify and attempt to exclude potential homophobes in the jury pool, and to "make sexual orientation salient" throughout the trial by directly challenging defense attempts to stereotype gay men as sexual deviants or predators.

Lee does a great job summarizing the history and contemporary uses of gay panic, including in the high-profile cases of Billy Jack Gaither (the topic of a PBS Frontline episode featuring yours truly), Jonathan Schmitz (referencing the Jenny Jones show case that Greg Herek and I discuss in our encyclopedia article on anti-gay violence), Timothy Schmick, David Mills, Matthew Shepard and Gwen Araujo.

Her lengthy and well-argued treatise draws on disparate theoretical strands, including First Amendment legal theory, cutting-edge social science research on implicit bias, and arguments regarding the competency of judges as evidence gatekeepers.

In the end, she says, "the law can and should play a role in mediating th[e] cultural dispute [over the status of homosexuality] – not by dictating what jurors can and cannot consider, but by making sure jurors are cognitively aware of what exactly is at stake when a gay person is the victim of fatal violence, and the person who killed him claims he did so in response to an unwanted sexual advance."

Cynthia Lee's article, "The Gay Panic Defense," appears in the UC Davis Law Review. email her for a copy. Lee is the author of Murder and the reasonable man: Passion and fear in the criminal courtroom (NYU Press). Most recently, she published a chapter on "Hate Crimes and the war on terror" in Barbara Lee's 5-volume edited treatise, Hate Crimes.

August 3, 2009

Accidental deportations: Mentally ill at risk

I've blogged a few times about deportations in which ICE officials accidentally scoop up U.S. citizens and whisk them off to foreign lands where their families cannot find them. Mentally ill people are especially at risk, due to their potential to become confused. But in one of the more outlandish cases, 52-year-old Leonard Robert Parrish, an African American chef in Houston, was recently detained by ICE because a jailer thought his Brooklyn accent sounded foreign.

As it turns out, such cases are far from rare. A special report in the San Francisco Chronicle suggests that among the 400,000-odd people detained annually by ICE, hundreds may be U.S. citizens who are wrongly suspected of being foreign.

Once detained, these people may find it difficult to get out of the system. Immigration detainees, unlike those in the criminal justice system, lack due process protections such as the right to legal counsel or telephone calls. Many are poor, and some are mentally ill.

"If it can happen to U.S. citizens, you can imagine how few procedural protections are available to everybody else," says Chuck Roth, litigation director for the National Immigration Justice Center in Chicago.

My advice: If you are working with anyone whose citizenship status is less than crystal-clear (such as naturalized citizens), encourage them to get their papers in order. In this time of anti-immigration paranoia, better safe than sorry.

The investigative report is online HERE.