Systems failure or black swan?

New frame needed to stop "Memorial Crime Control" frenzy

It's the same thing again and again:

• A rare but horrific tragedy befalls a high-status victim, usually a child

• Media pundits point fingers and place blame

• A supposed flaw in the legal system is pinpointed

• Opportunistic politicians enact knee-jerk legislation to "fix" the "hole"

This process explains wave after wave of "memorial crime" laws, such as Jessica's Law, the AMBER Alerts, Three Strikes, and Megan's Law. Borne on a tide of moral panic, the symbolic laws are costly, have no impact on crime or public safety, and sometimes even backfire.

These laws are implictly driven by "Routine Activities" logic. Under the Routine Activities theory of crime, crime results from a convergence of: (1) motivated offenders, (2) available targets, and (3) the absence of a capable guardian. So, goes the theory, you can stop heinous behavior by reducing opportunity.

But this is an upside-down approach to rare events that are anything but routine, argue criminologists Timothy Griffin and B. Grant Stitt of the University of Nevada in an intriguing article in Critical Criminology. Far more logical and productive would be to interpet these events as statistical inevitabilities or -- as Nassim Nicholas Taleb calls them -- "Black Swans."

Good public policies and sensible lifestyle choices can minimize the risk of serious criminal victimization, but not absolutely. Unfortunately, current American public policies such as child protection legislation are driven not by the realization of this apparently simple truth, but by its denial….

If public officials could embrace the grim reality that a certain number of certain types of crimes are inevitable, it could move the public discourse away from a futile search for a misguided solution and toward a mindset of rational problem management. The policy implication of random activities theory is that public safety officials and the general public need to be prepared to accept the fact that, for some categories of crime, there are few if any "‘solutions’" beyond what we are currently doing, and that our visceral reaction to 'Black Swan crimes' in the form of memorial crime control legislation is futile and possibly self-defeating….

[T]he proper application of random activities theory, rather than resulting in a depressing resignation toward tragic crime, could actually ... be liberating. Random activities theory could be a powerful heuristic in the public discussion of crime control because it enables experts to identify and categorize a class of crime that have stubbornly resisted repeated public attempts at suppression. It is a rhetorical tool that can defuse at least some of the excessive attention lavished on unavoidable crimes and allow the public discourse to move toward the preponderance of crime which is more amenable to public policy remedy….

In times of inexplicable tragedy, people cannot be faulted for taking what solace they can in whatever beliefs and comforts they can muster, but these are the arenas of religion, philosophy, and personal reflection -- not the justice system. The history of memorial crime control in the United States shows that whatever catharsis it provides is always short-lived. There will always be one more "Black Swan crime" to fuel reactionary demands for legislative response, and the failed policy cycle continues….

The message might lack visceral appeal, but most people do have, at some level, an intuitive appreciation of "‘acts of God," "adversity," or just plain bad luck.

Unfortunately, while I am by nature an optimist, the brazen assault on rationality that is taking place in the United States at this moment in history may belie the authors' optimism in appeals to common sense. Citizens who cling en masse to superstition, stubbornly reject established science, and believe that our president is a Muslim are proving themselves fairly unamenable to sane discourse.

I still recommend the article.

The abstract of the article, "Random Activities Theory: The Case for 'Black Swan' Criminology," is HERE. Request a copy of the article from the authors by clicking HERE (for Timothy Griffin) or HERE (for B. Grant Stitt).

Hat tip: David Stubbins

Exciting new sex offender treatment model

Today, dear readers, is an exciting day. It marks the official release of a groundbreaking new book on sex offender treatment, one that may signal a pivotal turning point away from punitive practices toward a recognition of offenders' essential human dignity and the universality of crime desistance.

Scholars D. Richard Laws and Tony Ward have taken on a huge task in Desistance from Sex Offending: Alternatives to Throwing Away the Keys. They hope to bring mainstream criminological theories about crime desistance to an insular, risk-obsessed fringe of forensic psychology that has remained remarkably uninterested in the fact that offenders desist from crime, or the process through which that occurs.

Desistance provides a superb, highly readable overview of the criminological literature on desistance, the age-crime curve, and offender reintegration research, focusing heavily on the seminal works of Sampson and Laub and Shadd Maruna. The authors propose the Good Lives Model as a theory that can bridge the looming chasm between desistance theory and forensic psychology practice with sex offenders.

The voices of dissent against the dominant, pathologizing discourse of deviance are growing louder. The publication of this trailblazing book is yet another in a series of signals that the reign of penal harm may be losing steam, creating opportunities for implementing progressive reforms.

Desistance is essential reading for clinicians, researchers, academicians, attorneys, and anyone interested in the application of contemporary social science theory on desistance to sex offender rehabilitation.

The timing is propitious, coinciding as it does with next week's annual conference of the Association for the Treatment of Sexual Abusers (ATSA) in Phoenix, Arizona. At least one conference seminar, by Pamela Yates, Ph.D., will focus on applying the Good Lives Model to sex offender treatment. If you are attending the conference, buy this book early before it sells out.

We can only hope that the spirit of reform embodied in Desistance truly catches on, rather than being coopted by the entrenched forces of risk management.

NOTE: I am writing more detailed and formal reviews of Desistance for publication, and will link to those as soon as they are available. Also see my online review at Amazon (and please, as always, remember to click on “yes” if you like the review).

Prominent forensic psychologist hired in Ford Hood massacre case

The defense team for Army psychiatrist Nidal Malik Hasan has retained prominent forensic psychologist Xavier Amador. The New York-based expert has been involved in several high-profile cases involving the military, including those of PFC Lynndie England (of Abu Ghraib infamy) and U.S. Army sergeant Hasan Akbar, who killed two fellow officers and wounded 14 soldiers in Kuwait in 2003. He was also a defense expert in the trial of would-be 9/11 hijacker Zacarias Moussaoui.

Amador's hiring came amid hints that Hasan might be resistant to defense efforts to develop evidence of possible mental issues, according to a report in yesterday's Dallas Morning News. The defense dismissed a previous forensic psychologist due to "irreconcilable differences."

The defense team has successfully delayed the military's efforts to have its own panel of psychiatric experts evaluate Hasan. The military's sanity board will evaluate Hasan to determine whether he had a severe mental illness at the time of the shooting, whether he knew right from wrong at the time of his alleged actions, and whether he is competent to stand trial.

Some experts say Hasan may resist any insanity defense due to his medical training and his desire to be seen as motivated by his faith, according to the in-depth report by Lee Hancock of the Dallas Morning News.

Hasan faces the death penalty in the shooting deaths of 13 people at Fort Hood. His Article 32 evidentiary hearing is set to begin Tuesday.

Military suicides skyrocketing

Meanwhile, in the wake of last November's massacre, stressful conditions continue unabated at sprawling Ford Hood in Texas. So far this year there have been 20 suspected suicides, out of at least 125 in the Army overall, according to a report in today's New York Times. The record level of mental breakdown among U.S. soldiers is being attributed to the longevity of combat deployment. Also, after nine years of war, the military is accepting less stable individuals and is increasingly short on qualified mental health personnel.

Critics say that even when service members are identified as severely depressed, they are often just prescribed medication rather than given meaningful help.

Today's New York Times article on military suicides is HERE.

Hat tip: Ken Pope

Rare juror speaks out after sexual predator trial

Civil commitment unfair, says law-and-order Floridian

Juror Number 6 is a conservative, law-and-order Republican. But she was appalled when she realized that in the United States, someone can be indefinitely detained not for what he has done, but for what he might do in the future.

Kathy Martin spoke to a news reporter after she and her five colleagues refused to civilly commit a convicted sex offender. Robert Richard Sanzone, age 34, had finished the prison term imposed in 2004 for having sex with one 15-year-old girl and trying to coax a second girl into sexual intimacies.

Martin said that she was struck by the similarities between the 2002 film Minority Report and Florida's Jimmy Ryce Act, under which sex offenders who are determined to still be a danger to society may be held indefinitely for so-called treatment.

"I didn't realize in America you could be given an indefinite sentence," the registered nurse told reporter Richard Prior of Florida's St. Augustine Record. “I'm not a bleeding-heart liberal, but I would like to think someone can't incarcerate me because they think I might do something."

Martin said she and the other members of the 5-woman, 1-man jury were skeptical of the reliability of the Static-99 actuarial risk assessment tool.

She also expressed concern about civilly committing someone for having consensual sex with a teenager.

"This is supposed to be about violent sexual predators, and I kept waiting for the violence to come up. I kept waiting for one of the witnesses to say he threw (them) against the wall or pushed (them) to the ground or pulled a knife. When I realized that wasn't going to happen ... well, I listened politely to the closing argument, but by that time I'd made up my mind."

Florida's Jimmy Ryce Act was passed in 1998 after Juan Carlos Chavez raped, beat, dismembered, and murdered 9-year-old Jimmy Rye in 1995. Chavez is currently awaiting execution on Florida's death row. The Ryce Act parallels sexually violent predator civil commitment laws in 20 U.S. states.

The articulate juror said she understands why horrific crimes lead to new laws, but she doesn't like that knee-jerk practice.

"When a brutal case occurs, the public wants to do something. It makes us feel better that we passed a law. This law has unintended consequences that can come back and bite someone's behind. I think these laws are just feel-good measures."

Two psychologists, Amy Swan and Mary Anne Etheridge, testified in favor of civil ccommitment for Sanzone. Dr. Etheridge diagnosed Sanzone with "fetishism" -- in this case toward underwear -- as well as the ubiquitous antisocial personality disorder.

Psychologist Deborah Leporowski, the lone defense witness, disputed the prosecution psychologists' estimation of Sanzone's risk, and said many of his early problems could be attributed to teenage impulsivity and immaturity.

Sanzone will remain on special sex offender probation for many years, and will be banned from schools, playgrounds, or other places where children congregate.

Richard Prior's fascinating interview with juror Kathy Martin is HERE.

"Abandon ethics, all ye who enter here"

Special ethics exemption sought for SVP work

Concern is mounting among many in the fields of forensic psychology, forensic psychiatry, and law about ethical violations by some practitioners in the Sexually Violent Predator (SVP) arena. But instead of calling for greater adherence to ethical practice, some are floating a radically different idea: Abandon professional ethics altogether.

[A] good-faith, case-by-case, consequential ethics approach should be used that balances the greatest good for the greatest number without trampling unduly on individual rights and each citizen’s constitutionally protected liberty interests.

This "consequential" approach will eliminate bias and give the civil commitment process "ethical authenticity," contend Shoba Sreenivasan, Allen Frances, and Linda Weinberger in the current issue of the Journal of the American Academy of Psychiatry and the Law.

Sexually Violent Predator evaluations lend themselves to ethical slippage because of the laws' requirement that in order to be eligible for civil commitment, a convicted sex offender must suffer from a "mental abnormality" that makes him "likely" (interpreted in most states other than California to mean a risk of 51 percent or more) to commit another sexually violent offense.

These legal requirements create a slippery slope when an offender does not have a bona fide mental disorder and/or does not score high on risk assessment instruments, but the evaluator still believes the offender needs to be civilly committed to protect the public.

But this is no "puzzling ethics quandary." It's no different from such pulls in other forensic arenas. For example, a forensic practitioner might opine that:

• a young man who experienced a brief, drug-induced psychotic break meets the M'Naghten standard of insanity, because the prosecutor and the defense attorney have worked out a deal in which he won't have to go to prison

• a victim of an industrial accident meets the criteria for posttraumatic stress disorder because she needs counseling and the corporation has deep pockets

• a mother in a child custody dispute has "parental alienation syndrome" because she appears angry and vindictive toward her husband

Each of these evaluators is overstepping, and usurping the role of the trier of fact (the judge or jury). It is not the expert's job to decide whether Sexually Violent Predator laws are morally just. It is not our job to balance the goals of public protection with individual civil liberties. Those duties fall to courts, legislatures, and voters.

As I teach my students in Forensic Psychology 101, when we enter the courtroom our job is a simple one: To assist the trier of fact in understanding the psychological science of relevance to the case at hand. Nothing more, nothing less.

The authors complain that the courts have given us insufficient guidance in this task. But, welcome to the forensic world. Statutory and case law is often intentionally vague, to allow for unique situations or changing circumstances. The law's inherent vagueness about mental abnormality and risk does not create an ethics quandary, much less one that merits abandonment of our ethics codes.

It is ludicrous to think that the solution to problems in SVP practice is an anything-goes approach that essentially rests upon the good intentions of individual evaluators. Most of us probably do have good intentions. But self-serving blinders make it hard to be objective. That is precisely why professionals have established deontological, or rule-based, ethics standards (which the authors refer to as "normative ethics").

Indeed, these authors reveal their implicit bias through their choice of examples. Instead of focusing on the widespread exaggeration of risk or manufacturing of bogus psychiatric diagnoses, they condemn "long and confusing discussions of Bayes' theorem" and label as biased the evaluator who emphasizes limitations in our ability to accurately predict risk.

Actually, that is precisely our job. We are ethically obligated to present the limitations of our models, which are significant. To fail to do so is to succumb to what an Australian judge described as gross product enthusiasm:

Amongst the many factors which may lead an expert witness into error is a malady which, if encountered in a new car salesperson, might be described as gross product enthusiasm. Some witnesses seem to become so fervid about the potential of their chosen discipline that they lose sight of its limitations and are borne by their enthusiasm into making claims that could not be supported by more sober and objective assessment of the available evidence.*

As this judge implies, the testimony of expert witnesses should be given little weight when it amounts to confirmatory bias in disguise, resting on a paper-thin layer of exploratory or contradictory research that has not been peer reviewed, published, or replicated, and is of unknown reliability or validity.

I will say it once again: Our only role in court is to assist the trier of fact to accurately apply reliable and valid science to the case at hand. And that includes acknowledging the science's limitations.

Science in principle is distinguished from the law, religion, and politics by its allegiance to scientific inquiry, or the search for replicable cause-effect relationships. The ethics of our discipline therefore rely upon the principles of objectivity and transparency. In contrast, Sreenivasan et al’s ethics of "consequentialism" elevate expedience. This might be fine in the fields of law or religion. But, as a learned colleague said, "expedience is the bane of Science."

SVP trials pit David against Goliath. The dice are loaded against sex offenders facing civil commitment, due to the onerous nature of their past crimes, inequalities in legal resources, and even the very label of predator, which conjures a beastly monster. Condemning as "biased" efforts by the defense to point out the scientific weaknesses of the state's evidence would only increase this monumental power imbalance.

But that's no "puzzling ethics quandary." Any more than psychologists are faced with a puzzling ethics quandary when they decide to participate in government torture for the greater good.

Because we have professional rules, or ethics codes, the psychologists who allegedly tortured detainees at Guantanamo now await licensing board actions in their respective states of Ohio and New York.

That's the way it is, and the way it should remain.

Acknowledgment: In crafting this essay, I consulted with more than a dozen learned colleagues, who helped me to ponder these critical issues of ethics. Thanks to all of you, and a special thanks to Robert Halon, who gave the matter a great deal of thought. It’s a privilege to count such wise individuals among my professional colleagues.

Photo credit (Creative Commons license): Klearchos Kapoutsis, Baba Vida fortress, Bulgaria, the place of the hangings.

*R. v. Hiller, ACTSC 50, 25 (Australia, 2003), as cited in Psychological Science in the Courtroom, Consensus and Controversy, page 255.

BLOGGER RESPONSES:

Steve Erickson @ Crime & Consequences

Mark Bennett @ Defending People

Emma B. @ Psychology & Crime News (UK)

The Social Network debunks Facebook origin myth

With the box-office success of The Social Network, the whole world will know that Facebook emerged not from an attempt by a college kid to connect with his friends, as the origin myth has it, but from a misogynist online prank.

The title speaks to the profound irony underlying this almost accidental invention: The man who invented the world's largest and most successful social network is devoid of social intelligence.

The central plot device is flash-forwards to founder Mark Zuckerberg's testimony at a legal deposition. Despite the obvious distortion of how a deposition works, the device works to remind us of the movie's essential accuracy. And, indeed, it had better be accurate. As unflattering a portrayal as it gives, and as wealthy as Zuckerberg is, the filmmakers certainly ran a risk of being sued for slander if they made a misstep. This legal risk alone makes the producers heroic.

Movie review continues HERE.