Garrido to undergo competency evaluation

The attorney for Phillip Garrido, the man who gained worldwide infamy last year in the alleged abduction of Jaycee Dugard, has raised a doubt as to whether Garrido is competent to stand trial.

"This is a fundamental fairness issue," his attorney, Susan Gellman, a deputy public defender in El Dorado County, told a reporter for the San Francisco Chronicle. "What we're talking about here is whether or not a citizen is able to make a decision about his case. When someone wants to go to trial for crazy reasons, or not go to trial for crazy reasons, that person is not competent." She noted persistent trouble communicating with Garrido during her more than 20 meetings with him at the jail.

As I explained in my analysis of the case in the Guardian of UK last August, psychiatric issues -- including competency and perhaps insanity -- are sure to be prominent in this case due to Garrido's history of religious delusions. Through the wonders of the Internet, I wrote at the time, we can "travel back in time and enter his mind, via rambling blog posts about voices in his head, mind control, and religious delusions of himself as the savior." (Amazingly, his contemporaneous "Voices Revealed" blog is still online, for those of you who want to take a gander.)

At Friday's court hearing in El Dorado County, Judge Douglas Phimister commented that he had spotted strange behavior during his limited observations of the defendant in court. At times, he noted, "Garrido aggressively scribbled notes in a pad even though little was going on in court."

Demian Bulwa's San Francisco Chronicle account is HERE. My August 2009 analysis in the Guardian of UK, "Jaycee Dugard, transfixed by a monster," is HERE. My Sept. 3, 2009 followup post on the case, "Sex-Registry Flaws Stand Out," has more background and links.

Photo credit: Rich Pedroncelli, AP

Static redux: Sandgropers jumping off rickety ship

Inventors of actuarial tools to assess sex offender risk recently described their process as "somewhat like rebuilding a ship at sea, continually replacing one plank at a time when we sprang a leak."

But while they viewed this method "as a strength, not a problem," others might reasonably regard staying aboard such a ship as a sure-fire way to drown.

Among those jumping ship are the Western Australians. Courts in Australia's largest state are increasingly rebuffing the Static-99, the world's leading actuarial tool for assessing sex offender risk.

In the latest of a string of cases, Justice John McKechnie has rejected an attempt by the Director of Public Prosecutions to civilly commit a convicted sex offender based on the man's high Static score. In his ruling, the judge criticized the "uncritical acceptance" of actuarial risk tools, saying they do not take into account reductions in risk that can accrue from prison-based treatment programs.

The ruling in the case of Leslie Fred Free is part of a "national backlash" against the Static by courts as well as legal and psychological researchers, according to a news report at oneperth.com.au. The report quotes Bernadette McSherry, a law professor at Monash University who has been tracking cases in which Australian courts have rejected the Static-99.

Many question whether an instrument developed in North America is relevant or reliable for forensic use Down Under. In a 2007 decision, another Western Australian judge focused on the problem with applying the Static-99 to aboriginal offenders. Noted Judge Hasluck in the case of Robert Mangolamara, a young aboriginal man:

[T]he facts and assumptions underlying the assessment tools and related manuals have not been proved…. Moreover, [because] the tools were not devised for and do not necessarily take account of the social circumstances of indigenous Australians in remote communities, I harbour grave reservations as to whether a person of the respondent's background can be easily fitted within the categories of appraisal presently allowed for by the assessment tools.….

Sandgropers, as Western Australians are known, think of themselves as especially good-looking and intelligent. But even here in the less enlightened United States the mainstream forensic community is expressing growing skepticism about the science underlying the actuarials.

Forensic psychiatry journal issues scathing critique

The American Academy of Psychiatry and the Law has just published a scathing critique of the Static-99, saying it lacks each of two elements required for an accurate statistical method of calculating risk: representative samples and uniform measures of outcome.

The must-read article, "Alice in Actuarial-Land" (freely available online), provides a detailed overview of the dizzying changes in recommended norms and procedures for using and interpreting the Static family of instruments over the past decade.

The authors, Shoba Sreenivasan, Linda Weinberger, Allen Frances, and Sarah Cusworth-Walker, illustrate the resultant problems through the hypothetical case of "Mr. X," a 62-year-old rapist.

• Using the original Static-99 norms, Mr. X's risk of sexually reoffending within 5 years of release falls somewhere between 9.1 percent and 39 percent. Qualitatively, in other words, he falls "somewhere between a low and a high risk."

• Using the norms provided with the revised Static-99R instrument, Mr. X's risk lies between 8.7 percent and 29.6 percent by 10 years. Again, "somewhere between low and high risk."
  

Although the case of Mr. X is hypothetical, the judge in the Western Australia case of Mr. Free commented on similar discrepancies between the risk assessments of two forensic psychologists who both relied upon the Static-99. Wrote Judge McKechnie in his insightful analysis:

Dr. [Tara] Yewer's conclusion that [Mr. Free's] risk of re-offending over a five year period is nearly 10 percent more than Ms. [Kirstin] Bouse's conclusion over the same time span is unexplained in the evidence. There is no reason on the evidence why I should reject Ms. Bouse's assessment of 'medium-high' risk or accept in preference Dr. Yewer's assessment of 'high' risk. This application highlights the limitations of STATIC-99.

Any judge who engages in sentencing offenders undertakes some prediction of risk as part of the sentencing process, and does so against a background of principle and experience which suggests that, for example, many young people mature and grow out of crime. Others forsake illicit substances and alcohol and the criminal lifestyle that accompanied them. For some, a period of imprisonment has an actual deterrent effect....

Uncritical acceptance of the STATIC-99 score also negates the whole purpose of [sex offender treatment]. If the programme, to which significant resources are given, has no effect on the risk that participants might then pose to the community, why does the Department of Corrective Services bother with it? … In the present case, I am unable to accept uncritically the risk assessment undertaken by coding the STATIC-99 score, because of earlier reports suggesting the possibility of effective treatment … coupled with the respondent's actual performance [in treatment].

Astonishingly, high-stakes forensic decisions such as criminal sentencing and civil commitment are being made based on such wildly disparate interpretations of data. Also, the authors of the Journal of the American Academy of Psychiatry and Law article point out, most of the data underlying the Static norms derive from master's or doctoral-level papers that were never published or subjected to the peer-review process:

Apart from the dizzying number of risk scores and qualifications, the validity of the risk scores themselves is dubious, given different definitions of recidivism in the norming samples, lack of clarity in statistical methods, and an overreliance on unpublished manuscripts and presentations to document methods….

The expression of risk in numerical form, whether it is a risk percentage, a d-statistic, or a receiver operating characteristic (ROC) or risk ratio, gives the trier of fact the impression of the precision of risk to a greater degree of accuracy than actually exists.

The serious nature of the sentencing decisions being made using these norms requires that these risk estimates are getting it right….

Although they purport to be empirically based, the current Static-99 and its newer iteration, the Static-99R, violate the basic tenets of evidence-based medicine that require reasoned, not mechanical, application of group findings to the individual.

Lead authors Sreenivasan and Weinberger are core faculty at the Institute of Psychiatry and Law of the University of Southern California. That's more than 10,000 miles from Western Australia. But perhaps they recently vacationed Down Under, and drank a bit of the Perth water.

If they sailed, I just hope they first checked the ship's safety record. Replacing planks at sea can be risky business. Especially if you hit a patch of rough weather.

Of related interest:

• McSherry, B.M. (2006). Sex, Drugs and Evil Souls: The Growing Reliance on Preventive Detention Regimes. Monash University Law Review.

• For readers interested in learning more about the Dangerous Sexual Offenders Act of Western Australia, as well as the rules of expert evidence admissibility more generally in Australia, I recommend the written decision in the 2007 case of Robert Anthony Mangolamara, available HERE.
  

Abuse rampant in California prisons

Mentally disabled prisoners in California are routinely beaten, robbed, sexually assaulted and deprived of food and sanitation. And in a "climate of indifference," prison officials have virtually ignored a 2001 court order mandating that they identify and protect these most vulnerable prisoners.

That was the opinion a federal judge issued last week in refusing to lift the 9-year-old court order. U.S. District Judge Charles Breyer's ruling followed a 6-day trial. The judge cited one instance in which a mentally disabled prisoner lost 35 pounds in five months because his cellmate was stealing his food and guards only laughed at him when he requested their help.

Sacramento Bee series: Prisoner abuse widespread

The judicial ruling echoes a stellar investigative series by reporter Charles Piller of the Sacramento Bee, who obtained and analyzed thousands of pages of documents and interviewed dozens of insiders, including confidential sources. The resulting picture of the inside of California prisons is not pretty:

• Guards fabricating rule violations that extended the time of prisoners they didn't like, including prisoner activists

• Prisoners losing "good time" credits for breaking minor rules, such as stepping across a line on the concrete

• A rigged system in which nearly all prisoners charged with rule violations are found guilty, and appeals or complaints against guards are fruitless

• Light discipline even when officers severely injure or kill prisoners

In one case, an officer needlessly punched a prisoner in the head, broke his elbows, and then lied about it in reports. The penalty? A 12-day suspension.

"The degree of civilization in a society
can be judged by entering its prisons."

-- Fyodor Dostoyevsky (1860)

Undermining the appeals process, according to prisoners and former officers, is prisoners' fear of retaliation. Edgar Martinez, a former prisoner at High Desert, claimed that guards trampled his belongings and strip-searched him in a snow-covered yard. He said he watched guards provoke fights among inmates and tell others, "this [complaint] needs to go away or we're going to make your life a living hell." Afterward, Martinez said, he was too terrified to protest the mistreatment.

In a 2007 case, guards viciously beat several prisoners and denied them adequate medical treatment, yet not a single one filed a complaint, according to a former lieutenant named Gerald Edwards. Prisoners know that filing a complaint may lead to retaliation, including being shipped off to a different prison dominated by racial or ethnic enemies.

Behavior modification units a living hell

If routine conditions are bad, they are nothing compared to the cruelty, corruption and racism that Piller found when he investigated the so-called behavior modification units.

High Desert State Prison. Photo credit: Ben Kutchins, "Prison Town USA"

These are the units where recalcitrant prisoners, disproportionately African American, are subjected to "extreme isolation and deprivation -- long periods in a cell without education, social contact, TV or radio." A prisoner at the Salinas Valley unit went five months without exercise, sunlight or fresh air, according to his successful lawsuit. At the High Desert facility, prisoners described "hours-long strip-searches in a snow-covered exercise yard. They said correctional officers tried to provoke attacks between inmates, spread human excrement on cell doors and roughed up those who peacefully resisted mistreatment. One said guards contaminated prisoners' food with dirt and insects and starved those who complained.

Many of the prisoners' claims were backed by legal and administrative filings, and signed affidavits, which together depicted an environment of brutality, corruption and fear." As Edward Thomas, a former prisoner in the High Desert unit, described it, it was "like something that happens in a concentration camp."

"Black monkey unit": Abuse based on skin color

While about a third of California prisoners are black, blacks comprised a majority of prisoners subjected to the High Desert behavior unit. Guards referred to the unit as the "black monkey unit" and joked about how the "monkeys" are "always hanging around in there" -- a macabre reference to suicide attempts by prisoners of color.

"Guards seemed to view behavior modification as a license to make inmates as miserable as possible to compel obedience," Piller reported.

"Several inmates described an incident when staff left one inmate on the floor with rectal bleeding and refused to take him to get medical attention," according to the report of a group of state researchers. When guards arrived, "they said 'It's the f---ing n----- again, let him die.' And they left him there."

Their July 2007 visit to High Desert shook up the state researchers, said one, a sociologist who lectures at UC Davis and has more than 25 years of corrections research experience. Norm Skonovd said he had never seen a similar case. The researchers were allegedly chastised when they reported what they had seen, and were told to tone down and bury the prisoner allegations of abuse. Skonovd claims he suffered professional retaliation.

Correctional abuse: A cause of violence and recidivism?

Prisoners said the behavior modification units were so dreaded that they would act out so they would be placed in "the hole" instead. This, the researchers noted, could lead to more violence behind bars. Indeed, although the units were "sold to lawmakers as a way to reduce recidivism," their brutality would likely lead to more anger and, hence, more convicts returning to prison, the researchers theorized.

For you blog readers who aren’t from California, why should you care?

Because, like Milan is to the fashion industry, so California is a trendsetter for the global prison industry. You all know by now that the USA is the world's premiere Prison Nation, locking up 1 out of 100 residents. But if California were a country, we would rank seventh in the world -- behind the USA, China, Russia, and a handful of others. (That's by raw numbers. If you go by proportion of the population incarcerated, we fall further back; only one out of every 36 adult Californians is under correctional control, compared with a whopping one out of 13 adult Georgians. Hint: Maps showing rates of incarceration for U.S. states look eerily similar when juxtaposed with maps showing states' proportions of African Americans. Click on the links to see for yourself.)

I highly encourage all of you to read the Bee series (available HERE). Muckraking journalism is practically dead these days, with the daily news biz more and more resembling interchangeable strip malls along the highways -- corporate-owned, homogenized, and full of quick-and-dirty crime bytes. And the prison news beat is especially hard to cover, because access is so highly controlled and critical information subjected to censorship (as "Red Hog" reported in Committing Journalism).

I wonder how Dostoyevsky would have rated the civilization level of modern California.

Update: High court won't block Lewis execution

The U.S. Supreme Court has just refused to block the execution of Teresa Lewis, whom I blogged about Sept. 8, setting the stage for Virginia's first execution of a woman in nearly a century. Lewis is scheduled to die by injection Thursday for hiring two men to kill her husband and stepson for a quarter-million dollar insurance payout.

Two of the three women on the high court, Justices Ruth Bader Ginsburg and Sonia Sotomayor, voted to stop the execution. The court did not otherwise comment on its order Tuesday.

Lewis's supporters have argued that she does not deserve to die because she is borderline mentally retarded and was manipulated by a smarter conspirator. It is unfair, they say, that she was sentenced to death while the two triggermen received life sentences, writes Washington Post crime scene blogger Maria Blod.

A CBS video interview with Lewis is HERE. Reaction from Iran is HERE.

Science often disbelieved, study finds

How many times have you found yourself in court, being challenged on basic information that is virtually undisputed and noncontroversial among scientists? As it turns out, no matter how knowledgeable you are, or how great your credentials, judges or jurors may disbelieve the scientific evidence you are presenting if it does not match their social values.

That's no big surprise, given decades of social psychology research into cognitive dissonance. But a study funded by the National Science Foundation and scheduled for publication in the Journal of Risk Research sheds new light on why "scientific consensus" fails to persuade.

Study participants were much more likely to see a scientist with elite credentials as an "expert" on such culturally contested issues as global warming, gun control, and the risks of nuclear waste disposal if the expert's position matched the participant's own political leanings.

"These are all matters on which the National Academy of Sciences has issued 'expert consensus' reports," said lead author Dan Kahan, a law professor at Yale University. "Using the reports as a benchmark, no cultural group in our study was more likely than any other to be 'getting it right,' i.e., correctly identifying scientific consensus on these issues. They were all just as likely to report that 'most' scientists favor the position rejected by the National Academy of Sciences expert consensus report if the report reached a conclusion contrary to their own cultural predispositions."

The findings suggest that mere education alone will not increase people's willingness to accept scientific consensus as accurate, said co-author Donald Braman, a law professor at George Washington University. "To make sure people form unbiased perceptions of what scientists are discovering, it is necessary to use communication strategies that reduce the likelihood that citizens of diverse values will find scientific findings threatening to their cultural commitments."

Information sources more atomized

Unfortunately, trends in public consumption of news may make this task increasingly difficult. Although people are spending at least as much time as ever on the news, they are less likely to read the daily newspaper and more likely to get their information from television and online sources including, most recently, their telephones, according to an informative new survey by the Pew Research Center for the People and the Press. This decreases our common knowledge base and makes it easier for ideologically slanted information sources to influence public opinion.

Indeed, the Pew researchers found ideology inextricably linked with people's choices of news sources. For example, here in the United States, Republicans, conservatives, and so-called "Tea Party" enthusiasts were much more likely than the general public to watch Fox News and listen to Rush Limbaugh. In contrast, the researchers found, supporters of gay rights make up large shares of regular readers of the New York Times and listeners at National Public Radio.

In an interesting analysis of the mainstreaming of extremism, alternative journalist Arun Gupta points out the ease with which political pundits for whom facts are irrelevant can indoctrinate the uninformed. A respondent committed to rational scientific inquiry becomes like a dog chasing its tail: In the time it takes to deconstruct one fraudulent news story, the pundits have concocted five more.

Top myths of popular psychology

For a great myth-busting tool, I recommend Scott Lilienfeld's latest, 50 great Myths of Popular Psychology. Lilienfeld and co-authors Steven Jay Lynn, John Ruscio, and the late Barry Beyerstein provide dozens of examples of entrenched popular beliefs that have been debunked by high-quality research, many relevant to forensic practice. A few examples:

• Human memory works like a tape recorder or video camera, and accurately records the events we have experienced

• Abstinence is the only effective treatment for problem drinking

• Criminal profiling helps solve crimes
  

(You'll remember that last one from my most recent post.)

Given the public's increasingly atomized sources of information, it behooves us to be knowledgeable about both ideological influences and common myths. What an expert witness might naively regard as established science may, after all, be subject to disbelief.

A blogger responds:

"Science, Believing Is Believing," Scott H. Greenfield, Esq. at Simple Justice

The featured research:

• "Cultural cognition of scientific consensus," by Dan M. Kahan, Hank Jenkins-Smith and Donald Braman, forthcoming in the Journal of Risk Research.

• Ideological news sources: Who watches and why, Pew Research Center for the People and the Press, September 12, 2010, full report available online and highly recommended
  

Forensic psych professor slams video game law

A forensic psychology professor and leading researcher of violence and video games has published an editorial in the Salt Lake City Tribune condemning attempts to restrict violent video games as a "waste of taxpayer money."

Christopher Ferguson, an associate professor at Texas A&M University, wants Utah's Attorney General to sign an amicus brief opposing California's Assembly Bill 1179. An appellate court struck down that law, but California has appealed to the U.S. Supreme Court, which is slated to hear the case this fall. The law would criminalize selling or renting video games deemed "violent" to consumers under age 18.

Ferguson claims it is "simply dishonest" to imply that research consistently links video games with violence:

First, there is no consistent research indicating that video games cause increased violence. Studies of video game effects return weak and mixed results. Many studies are limited by poor methodology, and some scholars do seem eager to promote negative links, oftentimes ignoring inconsistent data from their own results. The most recent Surgeon General’s report downplayed the influence of media violence, as did a recent Secret Service report on school shooters.

My own research, published in peer-reviewed journals in pediatrics, psychology and criminal justice, has found no links between violent video game playing and violent behavior. Other researchers, such as Cheryl Olson, Lawrence Kutner, Dmitri Williams, John Colwell, among others, have come to similar conclusions. Others, such as Patrick Markey, suggest that perhaps video game violence is like peanut butter, a harmless indulgence for the vast majority of children, but perhaps something to be avoided for a tiny minority of children, particularly those already disposed to pathological violent behavior.

Second, as video games have become more popular and more violent in the past two decades, violent crimes among both youth and adults have gone down to their lowest levels since the 1960s. Indeed, if there is a correlation between video game violence and violent crimes, it is in the opposite direction as that suggested by proponents of the California bill. I’m not saying video games have made the United States less violent; we don’t know that. However, the waves of youth violence some anti-game activists have feared simply never materialized….

My understanding is that California is experiencing difficult financial times and has cut valuable services to needy individuals, including many families and children. It is ironic that the state would claim to champion the welfare of children by throwing money at a video game bill that will help no one, yet cut basic health, education and support services to countless children.

Vending Times has additional coverage and background information HERE.

Sept. 21 postscript:

States Join Media Groups in Briefs Opposing California's Violent Video Game Ban, National Law Journal