DSM-V: Will shoddy manual implode years before launch date?

The DSM-V debacle continues to expand like a mushroom cloud following a nuclear explosion. Media pundits right and left are commenting critically on the draft manual, published online after years of cloak-and-dagger secrecy.

As most of you know by now, the American Psychiatric Association has granted the public a very brief window in which to comment online on the draft proposals. I haven't seen an explanation of how public input will be tallied or used. Will a popularity contest influence psychiatric diagnosis? We've seen how well citizen input works here in California, where the initiative process has brought government to a standstill. Can you imagine neurologists setting up a website to get lay input on a new diagnostic scheme for brain tumors? This debacle only underscores the point that the DSM is more politics than science.

Among the best commentaries I've seen this week are Sally Satel's op-ed in the Wall Street Journal and Allen Frances' piece in Psychiatric Times. Science magazine also has an interesting analysis of the proposed behavioral disorders, which would medicalize harmful habits like gambling, overeating, and down the line perhaps "Internet Addiction." All three articles touched on the negative forensic consequences of the radical proposed changes.

"Prescriptions for Psychiatric Trouble"

Psychiatrist Sally Satel, a resident scholar at the American Enterprise Institute, lecturer at Yale University School of Medicine, and a brilliant thinker, critiqued psychiatry's endless drive to expand mental disorder, placing ever-larger "swaths of the population under the umbrella of pathology." As Satel points out, the DSM-V continues the troubling tradition, launched 30 years ago with publication of the manual's third edition, of elevating reliability over validity:

[J]ust because two examiners concur that a person qualifies for a particular diagnosis does not mean that he has an authentic mental illness. How do we know, for example, that a person diagnosed with major depressive disorder (the formal designation for pathological depression) is not actually suffering from a bout of natural if intense sadness brought on by a shattering loss, a grave disappointment or a scathing betrayal?

The manual will not help us here. In fact, a number of changes proposed for the DSM V (e.g., new diagnoses for binge eating, hoarding and hypersexuality) are likely to inadvertently place large swaths of normal human variation under the umbrella of pathology.

Both she and Allen Frances, former chair of both the DSM-IV Task Force and of the department of psychiatry at Duke University School of Medicine, believe that Psychosis Risk Syndrome may be the scariest example of overinclusion. Hundreds of thousands of young people, especially the poor and minorities, could be given this highly stigmatizing label and medicated with extremely dangerous drugs, even though these medications are not very effective and the broad majority of these youngsters would not go on to develop psychoses if left alone.

In his critique in Psychiatric Times, aptly titled "Opening Pandora's Box," Frances notes that the DSM-V "would create tens of millions of newly misidentified false positive 'patients.' " Not only could almost anyone qualify for at least one of the new diagnoses (which include such nebulous constructs as Mixed Anxiety Depressive Disorder, Minor Neurocognitive Disorder, Temper Dysfunctional Disorder with Dysphoria, and -- in a big nod to America's 12-Step religion -- Addiction Disorder), but thresholds are being lowered for many existing disorders as well.

Forensic applications: Disastrous unintended consequences

One of the DSM-V developers' most troubling weaknesses is their profound "insensitivity to possible misuse in forensic settings," Frances notes. As an example, he cites Pedohebephilia, "one of the most poorly written and unworkable" proposals in the draft:

Expanding the definition of pedophilia to include pubescent teenagers would medicalize criminal behavior and further the previously described misuse of psychiatry by the legal system. Certainly, sex with under-age victims should be discouraged as an important matter of public policy, but this should be accomplished by legal statute and appropriate sentencing, not by mental disorder fiat.

Two other potential "forensic disaster[s]" are Hypersexuality Disorder and Paraphilic Coercive Disorder, both of which will be used to expand the pool of sex offenders eligible for indefinite civil commitment on the basis of purported mental disorder.

In Frances' opinion, based on having worked on the three previous editions of the DSM and knowing many of the drafters of the current version, critics are missing the mark by focusing on alleged financial and/or professional conflicts of interest. Rather, the DSM-V work group members are sincere and well meaning, but have a natural, "and seemingly irresistible," tendency to expand the boundaries of diagnoses in order to identify and treat all potential sufferers. This "diagnostic imperialism" produces a fatal blind spot:

Unfortunately, Work Group members … [miss] the fact that every effort to reduce the rate of false negatives must inevitably raise the rate of false positives (often dramatically and with dire consequences). It is inherently difficult for experts, with their highly selected research and clinical experiences, to appreciate fully just how poorly their research findings may generalize to everyday practice -- especially as it is conducted by harried primary care clinicians in an environment heavily influenced by drug company marketing…. [T]he DSM5 suggestions display the peculiarly dangerous combination of nonspecific and inaccurate diagnosis leading to unproven and potentially quite harmful treatments.

Frances strongly argues that the time to weed out implausible and even "incoherent" proposals is now, not after the proposed field testing:

I feel it is my responsibility to raise clear alarms now because the past performance of the DSM5 leadership does not inspire confidence in its future ability to avoid serious mistakes.... Field trials are arduous and expensive and make sense only for testing the precise wording of criteria sets that have a real chance of making it into the manual -- not for the many poorly written and far out suggestions that have just been posted. It seems prudent to identify and root out problems now lest they sneak through in what will likely be an eventual mad rush to complete DSM5....

Because of the secretive and closed nature of the DSM5 process, the expectable enthusiasms of the experts who comprise the Work Groups have not been balanced, as they must always be, with real world practical clinical wisdom and a careful risk/benefit analysis of the possible unintended consequences of every suggestion.

It would be reckless now to rely on the complacent assumption that all these problems will eventually come out in the wash. By its previous actions and inactions, the DSM5 leadership has sacrificed any "benefit of the doubt" faith that their process will be self-correcting in a way that guarantees the eventual elimination all of the harmful options.

Note: If you want to read Sally Satel's op-ed, do it now; after seven days, Wall Street Journal articles are only available by subscription. I highly recommend that forensic experts and attorneys carefully review Frances' article, and note his recommendation for greater forensic oversight. At minimum, if new diagnoses without established validity are included in the manual, the DSM should add a caveat that they are never to be used as grounds for civil commitment.

Special hat tip to the ever-helpful JANE

Forensic psychiatrist: Courts fostering "POLITICAL DIAGNOSIS"

After sex offenders, who will be next?

More leading experts are starting to notice and voice alarm over the pretextual use of psychiatric diagnoses in SVP civil commitment cases. In an editorial this week, a prominent forensic psychiatrist quotes the late Michael Crichton, calling it "bad science 'tricked out' for public policy ends."

Writing in the Psychiatric Times, James Knoll, psychiatry professor at SUNY-Syracuse and director of a forensic fellowship program, critiques both the questionable diagnoses and the shaky risk assessment techniques being used to civilly commit Sexually Violent Predators:

A variety of instruments have been developed (PCL-R, Static-99, Phallometry, Minnesota Sex Offender Screening Tool, etc.); however, these tests are often challenged in courts as not meeting legal standards for expert evidence and testimony. So while the research database has grown, the question remains: is it reliable enough to be proffered as expert testimony? Experts in the field continue to have serious reservations, and express caution about the (mis)use of these instruments for expert testimony.

Turning to the questionable diagnoses being used in SVP cases, Knoll puts the onus squarely on the U.S. Supreme Court for creating a tautological and "politico-legal" definition of "mental disorder or abnormality" for use in these civil commitment proceedings:

[T]he courts may use our diagnoses when they choose to, and they may ignore them and/or devise their own if it suits public policy…. Since it is forensic mental health professionals who are tasked with SVP evaluations, they have attempted to give this term meaning within the confines of their science. Have these attempts reached a consensus? It would appear that they have not. There continues to be substantial disagreement….

When psychiatric science becomes co-opted by a political agenda, an unhealthy alliance may be created. It is science that will always be the host organism, to be taken over by political viruses…. [P]sychiatry may come to resemble a new organism entirely -- one that serves the ends of the criminal justice system.

If we want to know where all this is headed if someone doesn't slam on the brakes, Knoll points us across the Atlantic to the United Kingdom, where offenders are indefinitely committed on the basis of a nebulous "Dangerous and Severe Personality Disorder" (DSPD):

Given the similarities between our SVP laws and the UK’s DSPD laws, is it too outrageous to speculate that a psychopathy (or DSPD-equivalent) commitment law might be on the U.S. horizon? Remember, the driving force behind such initiatives is usually only one highly publicized, egregious case away.

Related resource:

For an empirical study on the scientific problems with determining future violence under the UK's "Dangerous and Severe Personality Disorder" law, see: Ullrich, S., Yang, M., & Coid, J. (2009), "Dangerous and severe personality disorder: An investigation of the construct," International Journal of Law & Psychiatry (in press). The ultimate conclusions are strikingly similar to the issues posed by Knoll.

The study found a high rate of false positives -- that is, people categorized as DSPD and at high risk of serious reoffending when they actually did not reoffend when tracked in the community: 26 DSPD offenders would need to be civilly committed to prevent one major violent act.

When tracking sex crimes, which are of particular public concern, the researchers found that most new sex offenses were committed by offenders who were NOT categorized as DSPD, undermining the UK Home Office and Department of Health assumption that offenders at the highest risk for future sex offending would be categorized as DSPD.

After critiquing the accuracy of actuarial techniques, the article concludes:

"Bearing in mind the inaccuracy of DSPD criteria in identifying high risk individuals ... the construction of medico-legal terms, as in the case of DSPD, appears highly questionable.... [M]any determinants of violence are circumstantial and situational, and will invariably change over time, rather than related to some inherent characteristics of the perpetrator.... [F]ar more research is necessary ... before attempting to integrate a psychiatric condition into a legal system."

Heed these warnings, folks. The way things are headed in the U.S. criminal justice system, I expect to hear expansion of civil commitment to other groups -- violent offenders, juveniles, and others -- being proposed any minute now.

Photo credit: SUNY Office of Public Affairs

Oldest condemned man dies at 94

Elderly outlaw's competency remained at issue

Like so many Depression-era outlaws, the infamous Clyde Barrow and Bonnie Parker met early deaths, gunned down in a police ambush at the ages of 26 and 23. Among the few from that era to beat the hangman's noose was Viva Leroy Nash, the oldest death row prisoner in the United States, who died last week of natural causes.

Imprisoned for most of his adult life, Nash lived long enough to become both psychotic and demented, according to his lawyers; he was also deaf and almost blind. At the time of his death, his competency to participate in post-conviction habeas proceedings was on appeal to the U.S. Supreme Court.

Forensic psychiatrist Barry Morenz of the University of Arizona had evaluated Nash and opined that the old outlaw suffered from a delusional disorder. His symptoms included paranoid and grandiose delusions as well as auditory hallucinations. Dr. Morenz also noted worsening cognitive problems and memory impairment.

In the landmark case of Oscar Gates (formally known as the Rohan case), the 9th U.S. Circuit Court of Appeals ruled in 2003 that a death row prisoner has a right to be competent during post-conviction appeals, so that he may advise and consult with attorneys regarding issues that might arise. The standard is somewhere between the higher level of competency required to stand trial and the very low, so-called "Ford" competency standard required for execution.

In 2007, the appellate court applied this holding to Nash's case, granting a death penalty stay until Nash's ability to communicate rationally with his counsel could be evaluated and litigated. The government was appealing that ruling when Nash died.

A lengthy account in Phoenix' New Times last year was skeptical of Nash's incompetence claim. It described the self-educated convict as "intelligent and well read" and "a consummate jailhouse lawyer" who in the 1960s won "certain procedural safeguards for inmates" in a ruling that almost made it to the U.S. Supreme Court.

But then again, maybe advancing age and years of supermax confinement finally did him in. After all, more than one out of three people in their 90s has a dementia. And long confinement in solitary housing eventually drives even the strongest mind "stir crazy."

Life at Nash's final residence, the austere supermax Arizona State Prison Complex-Eyman, is an invisible form of torture. With Arizona "at the vanguard of the country's correctional zeitgeist in stripping away inmate privilege," according to a critical report in The Tucson Weekly, long-term lockdown in the unit is the state's "version of a straitjacket." Devoid of human connection, prisoners in such environments not uncommonly take to self-stimulating behaviors that is rare in other contexts -- sculpting figurines out of feces, masturbating in public view, or gouging their flesh and playing with it.

Craig Haney, an expert on the psychological effects of long-term solitary confinement, called the Arizona supermax one of the most severe. "Solitary confinement has been around for a long time," Haney told the Weekly. "What's different about these supermax units is that the technology of the modern correctional institution allows for a separation, almost a technological separation, of inmates from the social world around them in ways that really weren't possible in the past."

Under these conditions, if a condemned prisoner's appeals drag on long enough, it is almost inevitable that his mind will deteriorate to the point that he needs a forensic evaluation of his competency to rationally communicate with his attorney. So, if other Depression-era outlaws had survived long enough, we forensic practitioners may have gotten a chance to glimpse back into a bygone era through their eyes as well.

A wild and colorful life

It surely would have been interesting to interview this old man who talked like he had just stepped out of an Old West movie. Born in Salt Lake City's rural south side in 1915, during Prohibition, the "wild child" dropped out of school in the seventh grade and embarked on a life of crime.

During the Roaring Twenties he and a gang of other boys burglarized warehouses. In his mid-teens, armed with a gun, he caught an outbound boxcar and, like millions of other dispossessed young men during the Great Depression, set off "to seek his fortune," according to a laudatory 2005 account in the New Criminologist that referred to him as "a living legend." The account was based in part on more than 200 pages of handwritten memoirs.

By age 17, he was serving time at an industrial school for juveniles in Ohio for car theft. He escaped, did an armed robbery, and was sentenced to 30 months at Kansas' notorious Leavenworth Penitentiary, where he has said that a Mafia don tutored him in jewelry store heists.

Paroled in 1934, he fathered his only child (who died 21 years ago) and resumed his life of crime, with robbery sprees in Utah, Georgia, Alabama, and who knows where else. He was imprisoned in 1936 after a bungled robbery with his younger brother. Next arrested in 1946 in Alabama for check-kiting, he escaped from jail and reportedly fled to Mexico with a large sum of stolen money.

But his outlaw ways were catching up to him, and he spent most of his ensuing years in prison. He did a 25-year stretch for the 1947 shooting of a Connecticut police officer (who lived). In 1977, he was sentenced to two life terms for a robbery-murder. Somehow, he was placed on a prison work crew from which he escaped in 1982. Just three weeks later, he did the crime for which he was sentenced to die in 1983 -- a robbery-murder at a Phoenix coin shop.

Although his appeals have focused on his poor legal representation at his 1983 trial, given his litany of crime and the callous way that he executed his final victim it is doubtful than any jury would have voted to spare his life. Yet he managed to outlive men who were sent to death row long after he arrived, and ultimately he managed to die of natural causes.

Some have intimated that the state itself was dragging its heels, to avoid the spectacle of killing a dottering old man. With California and Alabama getting flak for recent executions of a 76-year-old and 74-year-old, respectively, just think of the clamor over the killing of a blind, deaf, crippled, demented and mentally ill 94-year-old.

So ends another chapter in America's love-hate relationship with capital punishment.

Hat tip: Kathleen

Photos: Bonnie Parker, circa 1932, credit Wikipedia Commons; Nash about 20 years ago, credit Arizona Department of Corrections; Arizona State Prison at Eyman, courtesy Department of Corrections

Skeem to give psychopathy training in Oregon

Save the date: Friday, April 9

On the heels of a hugely successful training featuring Stephen Hart of Simon Fraser University on sex offender risk assessment, Alexander Millkey and Michelle Guyton at Northwest Forensic Institute in Portland are doing it again. This time, they've scored Jennifer Skeem of the University of California at Irvine, who will provide advanced training on the controversial construct of psychopathy.

As many of you know, Dr. Skeem is an eminent scholar who has received the prestigious Saleem Shah Award for Early Career Excellence from the American Psychology-Law Society (APA Div 41) and the Distinguished Assistant Professor Award for Research at UC Irvine. She has published more than 70 scientific articles, chapters, and books, and is co-editor and an author of the excellent new book, Psychological Science in the Courtroom: Consensus and Controversy. Her research areas include psychopathy, violence risk assessment, and effective supervision strategies for individuals mandated for psychiatric care.

In this training, she will challenge prevailing assumptions that psychopathy is a unitary and homogeneous construct or something that can be reduced to a score on the Psychopathy Checklist-Revised (PCL-R). She will also present data challenging the deeply entrenched idea that people with psychopathic traits are incurable cases that should be diverted from treatment settings to environments where their behavior can merely be monitored and controlled.

The all-day training is on Friday, April 9 at Portland State University, and is followed by a networking reception with Dr. Skeem. Registrants will receive six hours of continuing education credits. The cost is only $175, or $75 for students.

For more information and to register, go to the Institute's website.

DSM-V: Get ready, get set . . . here it comes!

The American Psychiatric Association plans to launch its new DSM-V website tomorrow, February 10, publicly airing the long-anticipated diagnostic revision proposals and their criteria. I understand that two of the controversial forensic-related diagnoses I have blogged about extensively -- paraphilic coercive disorder and pedohebephilia -- are among those that made the draft manual.

Simultaneously, controversies grow on multiple fronts. On the one hand, we've got psychiatrists arguing that it's time to wrest the discipline back from all of those pesky non-psychiatrist interlopers. Writing over at the Psychiatric Times, Steven Moffic says the DSM-V should include an express clause saying only psychiatrists are qualified to use the manual.

Don't hold your breath. As long as psychiatrists keep charging many times the fees of other mental health practitioners, I guarantee that economic forces will keep Dr. Moffic's wish from coming true. Talk about trying to close the barn door after the horses are long gone!

Meanwhile, on the other side of the fence, the Association for Women in Psychology is saying, "Who wants it?" The Association has launched a new web site devoted to concerns about bias in the DSM-V diagnostic system. The site features a veritable link fest of criticisms, with articles on specific areas of diagnostic bias that will inordinately affect women, including anorexia nervosa, borderline personality disorder, female sexual dysfunction, and gender identity disorder.

Of particular relevance to forensic practitioners is an article critiquing parental alienation syndrome, proposed for the DSM-V, as well as articles on racism and social class bias in the diagnostic system.

Check it all out, folks. And if you disagree with anything you see, be sure to speak up now, before it's too late. The new manual, originally slated for publication in 2012, has been pushed back to May 2013, which may seem far away. But you only have two short months -- until April 20, 2010 -- to view the draft and make comments; after that, the website "will be available for viewing only." So much pseudoscience, so little time.

It's easy to register and make your comments. Whether the psychiatric gurus will listen is another story. But if you don't try, you'll never know.

Related resources:

Peter Aldhous, the award-winning science reporter covering the DSM debacle for New Scientist magazine, will be following up on his widely disseminated article, Psychiatry's Civil War, with a critical report on the latest developments. He is the guest on Michael Krasny's Forum on KQED radio on Wednesday (February 10); you can download the audio of "Updating Psychiatry's Bible" HERE.

What is a gang?

A group of violent thugs? A social club? Troubled, homeless losers who are "hard to love"?

And what is gang membership? Is it a fixed identity, or something fluid, which urban youngsters claim or don't claim according to external circumstances and the flow of their lives?

How can we explain why, even in the roughest neighborhoods, at most 10 percent of youths belong to street gangs? Who are the other nine out of ten, and how do they negotiate survival without affiliation?

For answers to these complex questions, and more, I recommend a new book from New York University Press, Who You Claim, written by John Jay College of Criminal Justice sociology professor Robert Garot based on ethnographic researcher at a continuation school in Southern Calfornia.

Garot's nuanced analysis is a refreshing antidote to the kind of simplistic categorization that we see in corrections and in forensic practice, where young people being processed through the system are treated as if the label of gang member explains everything that we need to know about them.

His bottom-line message: Beware reifying gangs as fixed and essential components of identity, when even their members do not see them as such. As urban centers create increasingly fluid possibilities for identity -- exemplified by Polish-Brazilian and Mexican-Korean cuisines -- identity is becoming much more malleable and flexible than such a narrow and pejorative focus would lead us to believe.

My complete review, at Amazon, is HERE.

The "juvenile sex offender": Myth in the making?

Book describes harmful effects of labeling and treatment

In the past 30 years, a vast cottage industry has sprung up to treat and warehouse juvenile sex offenders. Whereas in 1982 the United States had 20 programs to treat such youths, by 2002 that number had skyrocketed to upwards of 1,300 specialized programs, most of them private, for-profit residential centers. What is especially startling about the continuing expansion of this fledgling industry is that rates of serious offending, including sex offending, by juveniles is staying steady or even declining.

In The Perversion of Youth, forensic psychologist Frank DiCataldo says this new field may be harming both youth and society, by labeling typical delinquents as sexual monsters and thereby forcing them down a deviant path from which there is little hope of escape. In other words, our very process of labeling and treatment may breathe life into the bogeyman of our cultural imagination.

Like many failed social experiments, this one is driven by good intentions. But its underlying premises are based not on scientific evidence but on misguided faith and lore. DiCataldo, a psychology professor at Roger Williams University, meticulously presents the empirical evidence suggesting that the "juvenile sex offender" is not a natural category distinct from other delinquents. Rather, youths so labeled are typical delinquents whose offending happens to include a sex offense. And their sex offenses stem not from sexual deviance, but from a panoply of developmental factors, including sexual experimentation, thrill-seeking, poor social skills, emotional neediness, and rigid gender scripts that encourage sexual conquest as proof of masculinity.

In the past, many of the so-called sex offenses for which even young children are now being locked up and subjected to treatment would have been regarded as sex play, experimentation, or -- more seriously -- evidence of general criminality. In the overwhelming majority of cases, the natural course is for youths to mature out of sexual misconduct and other delinquency as they become adults, the data show.

Since only a tiny handful of youths who commit a sex offense are budding sexual deviants, the dominant treatment -- a one-size-fits-all, deviancy focused relapse prevention model -- is not helpful. In fact, by labeling normal adolescent boys as deviants, it may be very harmful, encouraging them to see themselves as the very monsters that the label makes them out to be.

DiCataldo is not peering down from an ivory tower. Long-time director of the Forensic Evaluation Service for the Massachusetts Department of Youth Services, he devotes special attention to the practices in the treatment trenches. Instead of taking the time to really see the individual adolescent for who he is, well-intentioned but dogmatic clinicians administer manualized treatment based on a “mind-boggling” array of unsupported global beliefs:

All adolescents who have committed an inappropriate sex act must receive this particular form of treatment; all juvenile sex offenders have a history of sexual victimization, and if you look deep enough, you will find it; adolescents must admit that their sexual abuse was traumatic and damaging; their denial must be broken down with persistent in-your-face confrontation; they must admit to deviant fantasies or hidden perversions and are provided fantasy logs in which to record them; … they must make their offense fit a stock, prefabricated dynamic involving the need for power and control or the presence of perversion or deviancy; they must face the fact that they have an incurable condition, like a chronic disease….

Ironically, he points out, the only empirically supported treatment for juvenile sex offenders, Multisystemic Treatment (MST), does not endorse these unproven tenets. Indeed, it does not even directly address sexual deviancy, instead focusing on client strengths and environmental supports in the family and community.

Like the misguided treatment programs, efforts to design instruments that will accurately predict which juvenile will go on to reoffend are also doomed to failure. It is not the fault of the instruments themselves, the author contends. Rather, because the base rates of sexual recidivism are so low (an estimated 5% to 15% across many studies), the most reliable prediction for any individual boy is that he will NOT commit a future sex offense.

In warning of the siren call of the sex offender narrative, DiCataldo echoes scholars such as James Kincaid and Philip Jenkins who have written about its alluring promise to simplify simplify the world and safely contain its dangers. But unlike in previous historical cycles of moral panic and sexual hysteria, he points out, this time around the pathologizing discourse of deviance is more securely embedded in systems such as the schools and the juvenile justice system. The ever-expanding and lucrative cottage industry devoted to juvenile sex offending has so firmly entrenched itself as a part of modern culture that, absent some serious attention to the lack of underlying science, it is unlikely to fade away anytime soon.

The author could have benefited from a good editor, as the presentation becomes repetitive. Still, in meticulously summarizing virtually all of the existing research and case law pertaining to juvenile sex offending, this well-researched book is an essential one-stop resource for anyone interested in understanding the contemporary phenomenon of juvenile sex offending.

So, here's a modest idea:

In recent years, a small-scale civil rights movement has emerged among mental patients, former mental patients, and their allies. One of their aims is to remove mental illness as the core construct of a person's identity. As such, they recommend not using terms such as "schizophrenic" as nouns to describe a person. Rather than calling someone "a schizophrenic," they would say: "A person with schizophrenia" or, even better, "a woman who has had some bouts of psychosis." I would love to see this applied in the sex offender field. Instead of calling a child "a juvenile sex offender," why not call him "a 15-year-old who engaged in sexual misconduct" or "a boy with a sex offense arrest"? As DiCataldo so thoroughly explains, within the current legal and treatment climate, the mere act of labeling a child as "A SEX OFFENDER" can effectively derail that person's life, potentially forever.

* * * * *

And, finally, I leave you with a related book recommendation:

The Trauma Myth, by Susan Clancy. The New York Times book review is HERE.

Related Amazon book reviews:

• Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State

• Evaluation of Sexually Violent Predators (Best Practices for Forensic Mental Health Assessment)

• Mistakes Were Made (But Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts

• Rape and the Culture of the Courtroom
  

• Shyness: How Normal Behavior Became a Sickness

Photo credit: SOL Research

California training: Complex issues in SVP evaluations

California's Department of Mental Health has just announced an exciting training featuring several prominent psychologists in the sex offender field. The two-day training, March 9-10 in beautiful Seaside (by Monterey), features:

Dr. Robert Prentky, a psychology professor at Fairleigh Dickinson University in New Jersey and a leading researcher and practitioner in the field of sex offender risk

Dr. Howard Barbaree, Clinical Director of the Law and Mental Health Program at the Centre for Addiction and Mental Health in Toronto, a pioneer in the study of the mitigating effects of aging and treatment on sex offender risk

Dr. Richard Wollert, a sex offender evaluator and treatment provider in Washington State who has published cutting-edge work on the application of mathematical principles (such as base rates, probability theory and Bayes' Theorem) to risk assessment

Dr. Brian Abbott, a forensic psychologist in San Jose, California, whose recent published work critiques the scientific reliability and validity of actuarial tools used to assess sex offender recidivism risk

More information and online registration is available through the event's cosponsor, the College of Continuing Education at the California State University in Sacramento. The fee is a bargain -- only $100 including lunch, and they've negotiated a steeply discounted hotel rate as well. If you’re a psychologist, it's a great way to get up to speed on recent developments in sex offender risk assessment while earning six units of CE credits.

Kudos to the Sex Offender Commitment Program of the Department of Mental Health for organizing such an exciting training!

Click HERE for more information.

Also coming up in Seaside:

By the way, while I'm promoting conferences at the Embassy Suites in Seaside (pictured above), don't forget the Forensic Mental Health Association's annual conference there on March 24-26. I will be giving a training on "Ethical Considerations in Psychiatric Diagnoses in Forensic and Correctional Settings." They've also got an entire track on Competency to Stand Trial. The brochure and registration information are online HERE.

Whatever happened to the War on Drugs?

Can you believe that the War on Drugs has been raging for more than 40 years, ever since President Richard M. Nixon launched it way back in 1969? Talk about a war without end! And talk about casualties -- a massive prison industry that shoulders at least some of the blame for the current economic crisis here, where 46 out of 50 U.S. states are on the verge of bankruptcy.

Now, says Hugh O'Shaughnessy in an insightful article in the Independent of UK, the War on Drugs is quietly "being buried in the same fashion as it was born -- amid bloodshed, confusion, corruption and scandal."

The article, entitled, US waves white flag in disastrous 'war on drugs,' focuses on the disastrous consequences to Latin America of this long-running and unwinnable war, but it also points out the war's devastating economic impacts and suggests some positive uses for the billions of dollars currently being wasted on fruitless drug control efforts.

... US agents are being pulled from South America; Washington is putting its narcotics policy under review, and a newly confident region is no longer prepared to swallow its fatal Prohibition error. Indeed, after the expenditure of billions of dollars and the violent deaths of tens of thousands of people, a suitable epitaph for America's longest "war" may well be the plan, in Bolivia, for every family to be given the right to grow coca in its own backyard….

Prospects in the new decade are thus opening up for vast amounts of useless government expenditure being reassigned to the treatment of addicts instead of their capture and imprisonment. And, no less important, the ever-expanding balloon of corruption that the "war" has brought to heads of government, armies and police forces wherever it has been waged may slowly start to deflate.

Prepare to shed a tear over the loss of revenue that eventual decriminalisation of narcotics could bring to the traffickers, large and small, and to the contractors who have been making good money building and running the new prisons that help to bankrupt governments -- in the US in particular, where drug offenders – principally small retailers and seldom the rich and important wholesalers -- have helped to push the prison population to 1,600,000.….

Part of the reason for the slow US retreat from the "war" is that the strategy of fighting it in foreign lands and not at home has proved valueless. Along the already sensitive frontier with Mexico the effect of US attempts to enforce a hard line by blasting drug dealers away has been bloody.... In the areas of Mexico closest to the US frontier the toll of deaths in drug-related violence exceeded 7,000 people in 2009.... This takes the death toll over three years to above 16,000, figures far in excess of US fatalities in Afghanistan.….

As far back as last May, Gil Kerlikowske, the former police chief of Seattle who was named head of the US Office of National Drug Control Policy and thus boss of the campaign, announced he would not be using the term "war on drugs" any more. A few weeks earlier, former Latin American presidents of the centre and right … had told the new US President that the "war" had failed and appealed for greater emphasis on cutting drug consumption and the decriminalisation of cannabis.

For the lives and sanity of millions, the seeing of the light is decidedly late. The conditions of the 1920s, when the US Congress outlawed alcohol and allowed Al Capone and his kin to make massive fortunes, have been re-created up and down Latin America….

This year should be the year that common sense vanquishes the mailed fist in an unwinnable war against an invisible enemy.

Now, my main question is, Why am I reading about this in a British newspaper? Why isn't it front-page news here at home?

The entire Independent article, well worth reading, is online HERE. A 2008 Independent article, "Mexico’s war on drugs: Journey into a lawless land," is also online, excerpted from Richard Grant's book, Bandit Roads.

Photo credit: The Independent (2008)

Everything you ever wanted to know about professional jury preparation

• Does having a trial consultant help prepare a witness affect the witness's credibility in the minds of jurors?

• What can opposing counsel ask the witness about their trial preparation?

• Is a trial consultant's advice confidential, or must attorneys turn it over to the other side during discovery?

• What guidelines exist to make sure trial consultants practice ethically?

With attorneys increasingly using professional trial consultants to prepare witnesses for court, the latest issue of the Jury Expert (a publication of the American Society of Trial Consultants) tackles these questions head-on. The article, "Out and Proud: Ethical and Legal Considerations in Retaining a Trial Consultant to Assist with Witness Preparation," by David A. Perrott and Daniel Wolfe, summarizes existing laws, ethics, and practice guidelines. It’s available online HERE.

Other current articles of potential interest to my blog readers (all available online) include:

Colorism: The Often Un-discussed "-ism" in America's Workforce
Matthew S. Harrison discusses the issue of skin color bias ("colorism") in the context of workplace research. Three experienced trial consultants then apply this research to what we know about the courtroom and offer their ideas on what we need to pay attention to as we pursue litigation advocacy.

Law on Display
Neal Feigenson and Christina Spiesel, the authors of a new book on visual display of evidence in the courtroom, share their ideas on the impact of technology in trial. Two experienced trial graphics consultants respond and share their own perspectives.

16 Simple Rules for Jury Selection
Criminal defense attorney Mark Bennett offers up his 16 Simple Rules for Better Jury Selection. From the Nike rule to the Shrek rule to the Undertow--reading these will bring your jury selection skills up and leave you thinking about the process in a different way. Four experienced trial consultants offer their perspectives (and one new rule each!) on the ideas contained herein.

Book Review: Principles and Practice of Trial Consultation
Kevin Boully reviews Stanley Brodsky’s new book on trial consulting.

Italy to open first all-transgender prison

Italy is on the forefront of prison reform, with the world's first transgender prison set to open at Pozzale in picturesque Tuscany.

The prison, being converted from an almost-empty women's prison, will house about 30 of Italy's 60 transgender prisoners, according to a BBC report.

Psychologists will play a prominent role at the prison, according to the report.

Where and how to house transgender prisoners is a major policy dilemma for prison officials around the world. Abuse is common, and -- especially in men's prisons -- they are generally kept in protective segregation.

Prison Photography blog offers Haiti coverage

I learned of the new prison via a post at an intriguing blog called "Prison Photography: The Practice of Photography in Sites of Incarceration." That blog also offers top notch, up-to-the-minute coverage of the earthquake aftermath in Haiti, including news surrounding the escape of Haiti's entire penal population:

The National Penitentiary served to incapacitate the capital's violent gang members and leaders. Between 3,000 and 4,000 former inmates are now on the streets. The remains and records amid the rubble of the Ministry of Justice have been torched, destroying the information needed to track down the former prison population. Law and order are fragile now, but still, violent incidents are few.

The Seattle-based blogger, Pete Brook, uses his background in art history and museum studies to artfully present his views on prison reform at the blog, where he ponders the deeper philosophical meanings of prison photography:

If a camera is within prison walls we should always be asking; How did it get there? What are/were the motives? What are the responses? I consider the photograph as social document, therefore, what social and political powers are at play in a photograph’s manufacture? And, how is knowledge, related to those powers, constructed?

Ironically, Brook couldn't find much in the way of imagery to adorn his coverage of Italy's new transgender pen. He did, however, manage to dig up an old blog post by yours truly on transgender prisoners, which is how I stumbled across his blog. Check out the Prison Photography blog HERE, or its "alter ego," Photography Prison ("focused on more things photography than things prison"), HERE. The linkfest alone is worth the visit.

Comstock case prompts critical editorials

The Comstock case is prompting some hard-hitting editorials by influential newspapers, including the Los Angeles Times and the Wall Street Journal.

The L.A. Times took the opportunity to come out against not just the federal expansion that is the U.S. Supreme Court's focus in Comstock, but civil commitment of sex offenders more broadly:

"Using the civil commitment process to lengthen a criminal sentence is dishonest and dangerous," cries the subhead of yesterday's editorial, "Sex offenders behind bars: How long?"

That issue of federalism isn't unimportant, but the more pressing question is whether civil commitment for a mental condition is being misused to force felons to remain in prison after they've completed their legal sentences.

The Wall Street Journal, meanwhile, focused on a critical angle that I'm planning to blog more about soon -- the dangers to civil liberties inherent in expansion of civil commitment laws to other groups. Decrying the attempts by "feds [to] usurp another area of state law," the WSJ pointed out:

The implications go well beyond sex offenders…. If the Supreme Court reverses the lower court's decision, it will sanction the notion that nearly any appealing idea may be justified as necessary and proper. In other countries, loose detention laws give wide latitude to authorities to lock up any number of people who "threaten the public safety," including political prisoners. Maybe next the feds could force everyone in America to buy health insurance.

The L.A. Times editorial is HERE. The Wall Street Journal editorial is HERE. And, for any of you who want to really immerse yourselves in the Comstock case, I recommend the Sex Crimes blog, which has an incredibly comprehensive page of resources on the case.

Haiti: How to Help

This is a bit off topic from forensic psychology, but with the latest estimates of casualties at 100,000 or more for our southern neighbor, we all need to do what we can to help. Unfortunately, as Sarah van Gelder over at Yes! magazine points out, the wrong kind of well-intended help can feed corruption, dependence on outsiders, and even exploitation.

With that in mind, I recommend that blog readers who want to contribute donations to the relief effort consider the following organizations, all of which were already in Haiti with proven track records of providing medical care and fostering self-reliance there:

• Doctors Without Borders, which had more than 800 medical personnel in Haiti when the quake hit, has already treated hundreds of people injured in the quake and is working to get more staff into the country. Doctors are setting up medical facilities in tents, since their own clinics there are severely damaged.

• Partners in Health has been providing medical care to the poor in Haiti since 1983. PIH's flagship project is located there, and the agency has a strong record of promoting self-reliance through medical education. PIH is coordinating 120 doctors and 500 nurses already on the ground, with more personnel and supplies slated to arrive soon.

• Oxfam's Latin America emergency response team is headquartered in Haiti, so they are well positioned to respond quickly. They have a strong track record of supporting local rebuilding rather than funneling money to outside contractors. Right now, Oxfam is focusing on water and sanitation (to prevent the outbreak of waterborne diseases), sending badly needed medical supplies, and erecting temporary shelters for the quarter-million or more displaced residents of the devastated capital city.

Click on any of the above links to go to the group's web site and provide critically needed financial support.

Hat tip, Maya Schenwar of TruthOut (which is providing
live blog coverage of the tragedy) and Sarah van Gelder of YES! magazine

Comstock transcript available online

Media pundits are pontificating wildly about the likely outcome in Comstock v. United States, which the U.S. Supreme Court heard today. It's being framed as an issue of states' rights: Does the federal government have the authority to usurp state rights by civilly committing sex offenders, or is that a power that accords to states alone? According to National Public Radio, "conservatives seemed to be split on the question, with Justice Antonin Scalia strongly opposed to the federal law, and Justice Samuel Alito appearing to endorse it, along with some of the court's liberals." As we await the court's ruling, you might want to review the transcript of the oral arguments yourself, and form your own impressions of what the justices were thinking. Isn't the Web amazing?

It's available HERE.

New resource: Master archive on "Flynn Effect"

The so-called "Flynn Effect" is a big deal these days in capital litigation circles. Named after the New Zealander who first noticed it, the effect refers to the gradual rise of the population's IQ scores over time. Raw IQ scores are going up about 9 points per generation, making test developers scramble to renorm their tests to keep the average IQ constant at 100.

As I posted about the other day, under the U.S. Supreme Court's Atkins ruling banning capital punishment for mentally retarded people, an IQ score can literally mean the difference between life and death. So debate over this Flynn Effect has been a big part of Atkins claims, with prosecutors and defense attorneys arguing over whether IQ scores should be "adjusted" up or down based on the year an IQ test was published, and courts ruling that this is indeed an important consideration.


In response, Kevin McGrew over at the Intellectual Competence and Death Penalty blog has just put together a master archive of the burgeoning Flynn Effect research literature. As McGrew explains it, the goal is to amass all of the relevant research "in one location for use by researchers, expert witnesses in such proceedings, psychologists who engage in intelligence testing, and lawyers and officers of the court." The project is supposed to be value-neutral, and McGrew promises to update the archives as new material becomes available.

It's quite a visually impressive undertaking, and well worth checking out (HERE are the instructions, and HERE is the cool visual display depicted above) if you're involved in this area of practice.

Atkins claims: Did Texas psychologist skew data for death?

Denkowski faces loss of license for role in capital appeals

The U.S. Supreme Court's Atkins decision triggered a wave of ferocious legal battles in the 35 death penalty states. Since 2002, an estimated 7 percent of condemned prisoners have filed Atkins claims on the basis of mental retardation, with about 40 percent succeeding. As of mid-2008, by one tally, at least 82 death sentences had been overturned on Atkins grounds.

At the center of these ongoing skirmishes are forensic psychologists, whose expert opinions about a condemned prisoner's IQ and real-world functioning can literally make the difference between life and death.

With so much at stake, the pull toward partisanship is especially strong. In Texas, one psychologist who has testified in a whopping 29 cases -- nearly two-thirds of all Atkins appeals in that state -- now faces the loss of his license for alleged errors that systematically favored prosecutors.

George Denkowski skewed the administration and interpretation of test data to rule out mental retardation, according to an expose by investigative reporter Renée Feltz in the current issue of the Texas Observer. The state Board of Examiners of Psychologists has upheld a complaint against him, finding that he made "administration, scoring and mathematical errors" in three death penalty evaluations. The State Office of Administrative Hearings will hear his case Feb. 16.

The complaint was initiated by Jerome Brown, a forensic psychologist who had worked on opposite sides from Denkowski in five capital cases and was appalled by his technique of inflating obtained IQ and adaptive functioning scores through "estimation."

As Denkowski explained his method in the American Journal of Forensic Psychology, he uses a "composite methodology" to inflate the scores of "persons from the criminal socioculture," on the grounds that formal testing assesses "mainstream skills" that criminal offenders never learn.

In the case of Daniel Plata, a Mexican immigrant featured in the Observer expose, Denkowski used this clinical judgment technique to raise Plata's adaptive-behavior score from 61 to 71, and his IQ score from 70 to 77. (Antonin Llorente, a neuropsychologist who evaluated Plata in his native Spanish, reported Plata's IQ score as 65.)

Click on above image to see excerpt of
Denkowski's videotaped evaluation of Daniel Plata.

This subtly racist argument of cultural deficit seems to be becoming increasingly popular as a way to explain away the deficits of low-functioning Mexican immigrants in particular. I have encountered it in recent cases I have been involved in. Kevin McGrew, director of the Institute for Applied Psychometrics, offers a psychometric critique over at his Intellectual Competence and the Death Penalty blog, focusing on another Texas death case involving a Mexican immigrant.

After hearing all of the evidence in the Plata case, Federal District Court Judge Brock Kent Ellis issued a scathing critique of Denkowski's method, writing that all of his testimony "must be disregarded due to fatal errors." Plata’s sentence was commuted to life in prison.

Plata's lawyer, Kathryn Kase, told the Observer that all 17 appeals in which Denkowski opined against mental retardation should be re-heard:

"When you have junk science in a case, it’s like pouring poison into a punch bowl. You aren’t going to get the poison out. So you have to pour out the punch, clean the bowl, and start all over again."

In the case of one convict, Michael Richard, that suggestion comes too late. Richard has already been executed.

According to the Observer article, Denkowski originally opined that Richard was mentally retarded, with an IQ of 64 and an adaptive-behavior score of 57, well below the 70 cutoff. But he adjusted his scores after prosecutors showed him a list of books found in Richard's cell, concluding that Richard’s reading level suggested he was not retarded.

The defense psychologist, Jerome Brown, said when he asked Richard about these books -- one of which was written in German -- the prisoner said he used the books to sit on, since his death row cell lacked a chair.

Denkowski's unorthodox method has sparked outrage in the psychological community, including two rebuttals in the American Journal of Forensic Psychology (see resources below) and a pointed caution in the 2010 edition of the American Association on Intellectual and Developmental Disabilities’ diagnostic manual against use of his method.

Further resources:

Denkowski, George C. & Denkowski, Kathryn M. (2008). Adaptive behavior assessment of criminal defendants with a mental retardation claim, American Journal of Forensic Psychology, Volume 26, Issue 3, pp. 43-61.

Widaman, Keith F. & Siperstein, Gary N. (2009). Assessing adaptive behavior of criminal defendants in capital cases: A reconsideration, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 5-32 (response to Denkowski and Denkowski 2008)

Denkowski, George C. & Denkowski, Kathryn M. (2009). Adaptive behavior misconceptions about criminal defendants with a mental retardation claim: A response to Widaman and Siperstein, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 33-61

Olley, J. Gregory (2009) Challenges in implementing the Atkins decision, American Journal of Forensic Psychology, Volume 27, Issue 2, pp. 63-73 (response to Denkowski and Denkowski 2009)

Blume, John H., Johnson, Sheri Lynn, and Seeds, Christopher (2009), An Empirical Look at Atkins v. Virginia and Its Application in Capital Cases, Tennessee Law Review, Volume 76, p. 625

New findings on juvenile sex offending

Sexually Violent Predator laws have so colored our perceptions that we often ignore a more typical type of sex offender -- the kid next-door. Indeed, of known sex offenders against children, more than a third are other juveniles, according to a new study commissioned by the Justice Department.

Most of these young offenders are not pedophiles or sexual deviants. Rather, they are sexual experimenters, date rapists, and boys who commit sexual assaults as part of a group. Risk of sexual acting out increases sharply as boys enter puberty, and plateaus at age 14, according to the study. The overwhelming majority of youths apprehended for sexual misconduct -- an estimated 85-95 percent -- have no further arrests for sex offenses.

This suggests that new federal rules placing juveniles on public sex offender registries are counterproductive, as the broad majority of youthful sex offenders will mature out of offending and should not be stigmatized for life. Rather, says study co-author David Finkelhor, director of the Crimes Against Children Research Center, early sex education is a key to preventing youthful sexual misconduct.

Even as U.S. states get set to implement the registration and reporting requirements of the Adam Walsh Protection and Safety Act this year, under penalty of losing grants if they do not comply, a subcommittee of the House Judiciary Committee is receiving testimony about problems with the registry.

"There are some very compelling cases that ... don't rise to the threshold of a predator and shouldn't be on the register," Republican Representative Tonya Schuitmaker of Michigan, a member of the committee, told the Michigan Herald-Palladium. "Unfortunately, they get lumped in with the predators."

The newspaper cited as an example the case of a 17-year-old boy who perfectly illustrates the juvenile study findings:

Since committing his offenses between the ages of 12-14, he has not had any further problems. He successfully completed probation and 200 hours of public service work and he excels in school, where he plays several sports. Yet, when he turns 18 his name will be placed on a registry that will stigmatize him until his 40s.

Gloria Gillespie, a sex offender therapist, told the newspaper that the boy's offenses were exploratory, and he is not a predator at risk of committing new offenses.

"Juvenile murderers get off at 21 and they're not on any list," she said. "What's the purpose of this?"

The juvenile study is available here; USA Today coverage is here. An excellent Herald-Palladium (Michigan) article on sex offender registries is here. Graphics credit: Adreson (Creative Commons license)

ON A RELATED NOTE: For a judicial analysis of the punitive and stigmatizing impact of the federal reporting law (SORNA), see the Maine Supreme Court opinion in Maine v. Letalien. Eric S. Letalien was 19 years old when he was convicted of sexually assaulting a 13-year-old girl. He was sentenced to prison and placed on a public registry for 15 years. Later, the law was amended, requiring him to register for life. He appealed, citing the negative impact on his ability to maintain employment and fulfill his roles as a husband and a father. In last month's decision, Maine's Supreme Court overturned the lifetime registration requirement in cases like Letalien's as unconstitutional on ex post facto grounds.

2009: Bad year for death penalty

The writing is on the wall: Death sentences are at an all-time low, more states are abolishing capital punishment altogether, and -- in what is being called a "tectonic shift" -- the American Law Institute announced it will wash its hands of the enterprise.

Adam Liptak, the New York Times' astute legal analyst, says that of all of last year's developments, the American Law Institute action is the most critical. The influential institute, comprised of 4,000 judges, lawyers and law professors, created the modern framework for the death penalty in its 1962 Model Penal Code. Its vote to abandon its capital punishment structure followed a study finding that the system was plagued with systemic problems, including racial disparities, risks of executing innocent people, and exorbitant costs.

A campaign to have the institute take a formal stance against the death penalty failed, Liptak said in yesterday's column. Instead, the institute voted to disavow the structure it had created "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."

Meanwhile, New Mexico last year joined 14 other states that have abolished the death penalty in favor of the option of life without the possibility of parole. And although the number of executions was up nationwide from the previous year (from 37 to 52), fewer new death sentences were imposed than in any year since the United States reinstated capital punishment in 1976.

That may reflect not only dwindling popular support for capital punishment, but also the high costs during these tough economic times. The ever-rational state of California, which bucked the national trend despite an especially acute economic crisis, is spending an estimated $137 million per year on the death enterprise not including an estimated $400 million for a new facility to house its 690 death row prisoners, Time magazine reported.

Summing up the current pendulum shift, Time noted: "Urgently important to fewer and fewer people, yet less and less compelling to the country at large, the death penalty keeps sputtering along, dwindling as the years go by."

Graphics credit: Finishing-school (Creative Commons license)
Double hat tips: Tim D. and Gretchen W.