Texas death case illustrates Atkins quagmire

The U.S. Supreme Court's 2002 decision in Atkins v. Virginia to outlaw the death penalty for mentally retarded defendants has opened up a "welter of uncertainty" in courts around the nation. So-called "Atkins inquiries" into whether a defendant is mentally retarded rely heavily on mental health experts, who may disagree on everything from the definition and identification of mental retardation to whether the specific defendant meets the threshold criteria.

This familiar spectacle of dueling experts takes a particularly ominous turn when experts misstate the science in these high-stakes (literally, life or death) cases. Fact-finders are often ill-equipped to disentangle the highly complex technical and scientific issues pertaining to whether or not a defendant meets the magic cutoff that will spare his life.

Over at his new blog, Intellectual competence and the death penalty, Kevin McGrew critically analyzes the latest case exemplifying these legal pitfalls, especially in the increasingly common situation in which the defendant is from another culture or speaks a language other than English. The case is that of Virgilio Maldonado, out of the U.S. District Court for the Southern District of Texas.

McGrew believes this case represents "a miscarriage of justice" that typifies the problems inherent in Atkins inquiries:

"The courts appear ill-equipped to handle the complex psychological measurement issues presented, issues that are, at times, confounded by the inclusion of data from dubious procedures, interpretations of test scores that are not grounded in any solid empirical research, and the deference to a single intelligence battery (the WAIS series) as the 'gold standard' when a more appropriate instrument (or combination of WAIS-III/IV and other measures) might have been administered, but the results of the more appropriate measure are summarily dismissed based on personal opinion (and not sound theory or empirical research)."

Those of you who practice in this area will be interested in McGrew's in-depth dissection of the IQ testing problems when defendants are not proficient in English language. Often, tests are wrongly selected, misadministered and misinterpreted under these circumstances.

In the Maldonado case, the prosecution's psychological expert decided to upwardly adjust the defendant's IQ score to a specific number based on his "clinical judgment" as to cultural and educational factors.

"It’s around the 80s, I guess, if you had to pin me down. Around the 80s; somewhere in there," the psychologist testified.

As McGrew points out:

"Adjusting obtained IQ scores, either up or down, … in the absence of any scientifically established procedure … is troubling and is not consistent with accepted psychological assessment practices or standards."

McGrew also critiques courts' frequent practice of putting the WAIS tests on a pedestal as the "gold standard," to the point of dismissing Spanish-language tests that are normed on relevant Spanish-speaking populations.

McGrew's in-depth analysis is HERE. The 144-page Maldonado decision is online HERE.

Sex offender news roundup

Because my subscriber base is diverse, in my daily scans for blog topics I try to balance multiple areas of forensic practice. But these days, news pertaining to sex offender policy is so pervasive that I must consciously work to keep it from overwhelming the blog.

After all, even those of you who work with sex offenders probably want a diversion sometimes. When you initially trained for your profession, I'll bet you weren't thinking, "This will be so fantastic! I'll get to spend lots of quality time with sex offenders, absorbing all of the intimate details of their warped atrocities against women and children!"

No? I didn't think so.

But, sigh, that's the reality these days. Rare monsters in the United States and elsewhere -- such as John Couey in New Jersey and Earl Shriner in Washington State -- drive social policy. Aggrieved family members fire up a local community, politicians jump on an easy bandwagon, and -- voila -- the rest is history. As New York Times reporter Michael Cieply perceptively noted, in reference to the Roman Polanski case, the landscape has changed dramatically in the last three decades:

Manners, mores and law enforcement have become far less forgiving of sex crimes involving minors in the 31 years since Mr. Polanski ... fled rather than face what was to have been a 48-day sentence after he pleaded guilty to unlawful sex with a minor. But if he is extradited from Switzerland, Mr. Polanski could face a more severe punishment than he did in the 1970s, as a vigorous victims' rights movement, a family-values revival and revelations of child abuse by clergy members have all helped change the moral and legal framework regarding sex with the young.

Of course, we must guard against myopia. It is not just in the sex offender arena that we see zero tolerance policies gone wild. Look what is happening in the schools, for example. A 3rd-grade girl got expelled for a year because her grandmother sent a birthday cake to school for her. The problem wasn't the birthday cake, but the knife dear grandma sent to cut it with.

Anyway, on to this quick (I hope) roundup of sex offender-related developments.

Child victim decries conditions for sex offenders

Consequences of extreme social policies are so at odds with the original intents that even many who lobbied for the laws are having second thoughts. The Palm Beach (Florida) Post ran a remarkable story about a child sexual abuse victim whose victimization led to a legislative crusade against sex offenders. Lauren Book, whose child abuse saga began at age 11 at the hands of a caregiver, runs a nonprofit agency aimed at educating the public about child sexual abuse. Now, she is campaigning against the unintended consequences of the very residency restrictions that she helped inspire. Touring the sex offender encampment under the Julia Tuttle freeway in Florida, which I have previously blogged about, she said she has come to realize "that forcing predators to live in inhumane conditions will not protect children; in fact, she fears it may do the opposite":

"You can't really understand what it's like unless you go there. You can't capture it in words or pictures. Being there, hearing it, seeing it, smelling it - it's all part of understanding the situation…. It's a terrible situation under there, it is awful. I don't think them living under a bridge or absconding keeps children safe. I don't want them so desperate that they go out and find a child.''

The perils of a naked pumpkin

Elsewhere, legislators and judges are taking small steps to limit the consequences to youth of overinclusive sex offender registration requirements.

I mean, how would you feel if your kid was branded for life as a registered sex offender just because he had participated in Boulder, Colorado's popular "Naked Pumpkin Run" or "World Naked Bike Ride"?

To circumvent this scenario, Boulder is drafting a public nudity ordinance that would exclude arrests for nudity-related pranks from the registration laws. Commenting over at Grits for Breakfast, Scott Henson hopes this signals a growing public awareness that sex offender registries are too broad. "But a better fix would be for the legislature to remove indecent exposure and other petty crimes from the registry list. IMO we don't need more laws on this issue so much as better ones."

And in Michigan, a judge just ruled that putting a juvenile on the state's sex offender registry would constitute cruel and unusual punishment, prohibited by the U.S. Constitution.

The case involved "T.D.," a 15-year-old boy who touched the breast of a 15-year-old classmate in school. His name would have appeared on the registry for 25 years, until he was 43 years old. That would be unfair, ruled Judge Darlene A. O'Brien, because T.D.'s offense was "more akin to a juvenile prank than predatory, perverted, criminally deviant sexual conduct likely to be repeated." In her well-reasoned ruling, she too addresses the unintended consequences of the laws:

Requiring this rehabilitated juvenile offender to register for a total of 25 years upon reaching adulthood is likely to become a self-fulfilling prophesy -- if TD cannot get through school or get jobs because of community notification and public shunning, he is likely to become marginalized and, in fact, more likely to commit crimes as a result.

Prosecutors are appealing the decision, so an appellate court will get a chance to clarify whether juveniles must submit to public registration even when their offenses are mild and they present little risk of recidivism.

Challenges mounting on religious front

In at least the second pending case, a convicted sex offender in North Carolina is challenging a law that restricts his ability to attend church services. Police arrested James Nichols after he attended a Sunday service at a church that offers day care. As reported in the New York Times, "many of the three dozen states that establish zones where sex offenders cannot live or visit do not provide exemptions for churches." A similar lawsuit is pending in federal court in Georgia. Also in the South, in the city of Louisville, Kentucky, a Pentecostal church has snubbed its nose at the punitive climate against sex offenders by unapologetically ordaining a convicted sex offender as a pastor.

Voice stress analysis upheld

At the same time that these types of fissures are developing in the larger systems, other agencies are imposing additional restrictions on sex offenders. For example, a federal judge has ruled that sex offenders can be required to submit to computerized voice stress analysis as part of their post-release supervision, just as many are already required to undergo testing with polygraphs and penile plethysmography under the "containment approach" to recidivism.

The federal judge in the Northern District of New York ruled that debates about the scientific reliability of the technique do not "bear much on the therapeutic value of the tool" as a lie-detection incentive.

The attorney for Ethan Gjurovich, who was convicted of child pornography charges, said this is the first case he knows of in which a federal court has endorsed voice stress analysis requirement on a parolee. He likened it to the psychological pressure of a "lie-detecting dog" -- "If you don't tell the truth, he's going to bite you."

Paraphilic coercive disorder proposal critiqued

On a parting note, I encourage you to check out an interesting critique of the Paraphilic Coercive Disorder diagnosis being proposed for the DSM-V, over at the Asexual Explorations blog. The blog -- as its title implies -- is devoted to the emerging issue of asexuality. But its author was so astounded upon learning about some of the wacky diagnoses being proposed for the upcoming Diagnostic and Statistical Manual of Mental Disorders that felt compelled to detour from his main topic.

. . . And, speaking of pumpkins, be sure to tune in for a repeat of the ever-popular Halloween post,
BEWARE THE HALLOWEEN BOGEYMAN.

Panel: Solitary confinement as human rights abuse

For you readers on the West Coast, Stanford Law School is holding a provocative conference on Oct. 16-17 entitled "Shaking the Foundations: The West Coast Conference on Progressive Lawyering." One Saturday afternoon panel caught my eye, both because of the topic and the speakers:

Solitary Confinement in America's Prisons: A Human Rights Abuse?

Having worked in a segregation housing unit, I have seen the mental health consequences of prolonged solitary confinement, especially on the psyches of prisoners who are already mentally ill, up close and personal. Out of sight, out of mind -- many in the public are unaware of the extent to which solitary confinement is being used routinely in prisons these days. So, it's good to see this topic getting some critical attention.

The speakers are impressive:

• Joan Petersilia, one of the foremost prison researchers around and now a law professor at Stanford

• Terry Kupers, a forensic psychiatrist and professor at the Wright Institute who wrote Prison Madness, a book about incarceration and mental health

• J. Clark Kelso, Professor of Law & Senior Counsel to the Capital Center for Government Law and Policy, University of the Pacific, McGeorge School of Law

• Nick Trenticosta, Director, Center for Equal Justice

Here is the panel description:

One in one hundred Americans are currently incarcerated, and a growing number of those incarcerated are held in conditions of solitary confinement. In Supermax prisons, administrative segregation units, and even Guantanamo Bay, prisoners spend 22 or 23 hours of every day in isolation, for weeks, months or years. This panel will discuss the expanded use of solitary confinement in the American prison system and its effects on prisoners' health and recidivism. Through this discussion, panelists will ask: Is the use of solitary confinement cruel and unusual punishment? Is it a human rights violation? And if so, what can be done?

The presentation is Saturday, October 17, from 3:45-5:15 p.m. More information, registration, and directions are HERE.

Equality in justice: Cognitive dissonance and fame

Having blogged about both the Polanski case and that of David Mitchell (Susan Smart) in Utah, I was intrigued to read this sociological analysis of the divergent media coverage of the two cases, over at one of my favorite blogs, Everyday Sociology. It's always fascinating to analyze the unstated assumptions and biases in media coverage of legal cases, assumptions that both reflect and reinforce public attitudes.

Guest essay by Sally Raskoff*

Two cases involving the rape of a young girl have been in the news: one involving Roman Polanski's arrest and the other about Elizabeth Smart's court testimony. While these cases have the "adult male-minor female" rapes as their basic similarity, most other things have been very different, especially in news reports and public reactions.

The "Polanski" case actually involves this Academy Award winning director's flight from sentencing after his guilty plea and conviction in the rape of the 13-year-old girl. After 32 years, he was arrested recently in Switzerland to await extradition back to the United States for sentencing and additional charges of evading justice. The news reports focus on what a terrible time he's had in life, from his family’s losses in the Holocaust to the murder of his pregnant wife by the Manson "family", and on the fabulous movies he's produced since living in Europe after he fled Los Angeles.

Until recently, little had been mentioned of the rape survivor, who is now an adult woman. A recent article fully identifies her and discusses the apparent civil settlement in which Polanski allegedly was to pay her half a million dollars, although no public documentation can confirm that she received those funds. Her lawyers' requests to the court for him to pay the settlement past its due date cease about the time she wrote a public letter stating that she thinks he should be able to return to the country, ostensibly to attend the Academy Awards show when he was nominated in 2002.

The "Smart" case involves the nine month long abduction of Utahan Elizabeth Smart. Her alleged kidnapper, Brian David Mitchell, subjected her to a "plural marriage" ceremony and according to Smart repeatedly raped her. She is now 21 and gave her testimony at the mental competency hearing of Mitchell just before leaving on her religious mission to France. Mitchell is cast as a religious fanatic who told her that he was doing what the lord wanted him to do. As of this writing, he has not yet been convicted of the crime as it has not yet been established if he is mentally competent to stand trial.

Let's look at these cases sociologically.

Note the language used in the reporting of each case. Is it clear who the victim is in each case?

Many news reports and editorials about the Polanski case lament his treatment by the justice system, and some even suggest that he is the victim. Some articles discuss the cost of bringing him back to court, which makes the taxpayers the victim. Some articles focus on how the rape survivor, the actual victim, said that he should be free to live his life and if she says that, well, we should let her decide, which reinforces the idea that he is the victim.

The Smart articles focus on her as the rape survivor and certainly do not cast Mitchell as a victim. They cast him as crazy or as a crafty rapist who acts like a religious fanatic so as not to take the blame for his actions.

The headlines use "Polanski" and "Smart", not "Mitchell" or "Geimer."

Polanski's name is certainly a familiar one since he is famous. Smart has become famous as an icon of parental fear -- the girl who was abducted from her bedroom at night. As is typical in rape cases, Samantha Geimer's name was withheld when she was a minor yet she herself went public when she wrote the letter in support of Polanski. Mitchell is not a name familiar to people even though most know that some man abducted and raped Elizabeth Smart.

From this point forward, I will refer to the "Smart" case as the Mitchell case.

Note the basic features of each case: an adult man raped a young girl.

Is this contested in either case? Yes and no. Mitchell has been in a mental institution since his arrest in 2003 and the recent hearing was to establish whether or not he could stand trial. Polanski testified that he did the crime (although in his plea agreement he plead guilty to "unlawful sex with a minor") and his latest issues revolve around his flight from the justice system to escape sentencing and serving more time. Mitchell has not been convicted yet Polanski has. However, in the news articles, Polanski's guilt is downplayed and Mitchell's is assumed.

Note the social class differences in each case.

While Polanski is clearly a member of the upper socioeconomic strata, Mitchell and his co-defendant wife are in the lower strata. Polanski was able to flee to Europe, continuing to make his films and generate his substantial income. While the social class status of Ms. Geimer is not fully apparent, it is likely that she and her family live a middle class life, even if she did not receive the settlement. The Smart family are firmly in the upper middle class of suburban Salt Lake City, while the Mitchell couple were basically homeless and firmly ensconced in the lower echelon of society’s social class levels.

Social class alone can explain much of the dynamics of these cases. Those with the higher class status tend to gain more favorable coverage in the press. Polanski received more favorable coverage than his victim did, and Smart certainly received more media attention than her abductor did.

One might hope that people who have been victimized would receive more careful and supportive press coverage, this certainly didn't happen in the Polanski case.

Note the issues of fame and social power in each case.

Social power derives from social class but also from fame. Smart was featured on America's Most Wanted and has spoken in public and to Congress about sexual predator issues and legislation.

Most particularly in the Polanski case, fame insulates the perpetrator from paying his full debt to the justice system. So much so that some even call into question his guilt even though that had been firmly established in court. (See Harvey Weinstein's quote about the "so-called crime" in the Los Angeles Times). Reaction to the Polanski case avoids discussion of his guilt in this crime of rape and focuses on other issues that are not salient. Consider how Mr. Weinstein might react if a female family member of his had been the victim in this case - might he advocate the release of that person as he does Polanski?

The exploitation of women in the entertainment industry is a related topic -- some may not see why having sex with someone at a photo shoot was wrong -- even if she was underage and under the influence of alcohol and drugs. Some also point to the mother who dropped her off at the house where the rape took place as culpable.

However, only the rapist is responsible for the rape, no matter what bad decisions others might have made.

What isn't being talked about?

In the Polanski case, the exploitation of women is not a topic that many are choosing to discuss. How many other girls and women have been raped by people with power over them? We’ll never know, especially if those powerful people are not held to the legal standards that govern our society.

Absent from the discussion of the Mitchell case are the cultural underpinnings of how religion played a role in the abduction and rapes. The "plural marriage" as it was called when she was first rescued, was code for rape yet the word "rape" was not uttered for some time after she was freed. That this particular crime took place in a specific religious and cultural environment with a history of patriarchy (and, decades ago, of plural marriage) isn’t a coincidence. Elizabeth Smart was raised, as most of us are, in a culture of male dominance and female obedience.

It is also likely that Smart, like Patty Hearst and many other children abducted by sexual predators, was experiencing something akin to the Stockholm Syndrome. When she was first discovered, she did not readily identify herself. When held long enough under certain circumstances, people may "go along" with their captors and not escape when they might have had the chance.

So, how can we explain the different ways that we are reacting to these cases?

While both cases have at their core the rape of a 13- or 14-year-old girl by an adult man, public discussion and reaction to these cases is notably different. Social class, power, and fame all have their influences yet cognitive dissonance is also taking place.

Cognitive dissonance occurs when people have to reconcile two conflicting ideas at the same time. We often try and alter one of the ideas to be consistent with the other. For instance, people generally want to like and respect people with fame and power. When those people do bad things, we can react in many different ways but in the Polanski case, so many years after the event, some want to believe he paid his debt to society by having lived such a troubled life. Thinking of someone as both a good person and a rapist is very difficult to reconcile. Normally we decide that someone who commits rape is no longer a good person. In this example, many people, especially many in the entertainment industry, have chosen to downplay his actions to maintain the idea that their conflicting image of him as a good person.

But the justice system doesn’t see it this way, and after all, time spent living in a Swiss chalet isn't the same as "doing time." How do you think we would talk about the case if Elizabeth Smart's alleged rapist had fled the country for more than three decades and evaded justice?

*Reproduced with the written permission of the author. Dr. Raskoff is Chair of Sociology and Ethnic Studies at Los Angeles Valley College.

Mark your calendars: RSVP training Oct. 22

Just a quick reminder for you sex offender evaluators:

On Thursday, October 22, Stephen Hart of the Mental Health, Law, and Policy Institute at Simon Fraser University in Canada will be in Oregon, giving an all-day training on his Risk for Sexual Violence Protocol (RSVP), a descendant of the Sexual Violence Risk-20 instrument. The training, sponsored by the Northwest Forensic Institute, will be held at Portland State University in downtown Portland.

The RSVP uses structured professional judgment (SPJ) to assess sex offender risk. Preliminary research suggests excellent interrater reliability, concurrent validity with actuarial tools, and moderate predictive validity about equivalent to that of actuarial tools. An advantage over the actuarials, however, is its risk management focus. Evaluators derive individually based risk scenarios and then create strategies to manage identified risks.

This promises to be a good training. Dr. Hart is a great presenter, not to mention an internationally renowned researcher, forensic psychologist and past president of the American Psychology-Law Society.

The cost is $175 (only $75 for students), and you can get more information and register online.

ABF doctoral fellowship opportunity

The American Bar Foundation is recruiting fellows for its Doctoral Fellowships in Law and Social Science for the 2010-2011 academic year. The goal is to "develop the next generation of scholars in the field of law and social science" by supporting "original and significant research on law, the legal profession, and legal institutions." The stipend is $27,000 plus expenses.

Eligible applicants must have completed all doctoral requirements except the dissertation by September 1, 2010. Doctoral and proposed research must be in the area of sociolegal studies or in social scientific approaches to law, the legal profession, or legal institutions. The research must address significant issues in the field and show promise of a major contribution to social scientific understanding of law and legal process. Minority students are especially encouraged to apply.

The Foundation has other fellowship and student opportunities as well, including the Law and Social Science Dissertation Fellowship and Mentoring Program, focusing on the study of law and inequality, and the Summer Research Diversity Program.

For more details, visit the ABF website's fellowships page.