Residency restrictions illegal, Calif judge rules

"Court is not a potted plant"

Breaking news from the Los Angeles Times:

Saying sex offenders are being forced to choose between prison and homelessness, a Los Angeles judge issued an opinion this week blocking enforcement of provisions a state law restricting how close those offenders can live from parks or schools.

Superior Court Judge Peter Espinoza issued the 10-page ruling after four registered sex offenders petitioned the court, arguing that the legislation known as Jessica's Law was unconstitutional.

He said the court had received about 650 habeas corpus petitions raising similar legal issues, and that hundreds more were being prepared....

"The court is not a 'potted plant' and need not sit idly by in the face of immediate, ongoing and significant violations of parolee constitutional rights," Espinoza wrote.

Proposition 83, which is better known as Jessica's Law and was overwhelmingly passed by state voters in 2006, imposes strict residency requirements on sex offenders, including requirements forbidding them from residing within 2,000 feet of any public or private school or park where children regularly gather….

"Rather than protecting public safety, it appears that the sharp rise in homelessness rates in sex offenders on active parole in Los Angeles County actually undermines public safety," wrote Espinoza, who is the supervising judge of the Los Angeles County criminal courts. "The evidence presented suggests that despite lay belief, a sex offender parolee's residential proximity to a school or park where children regularly gather does not bear on the parolee's likelihood to commit a sexual offense against a child." …

New report on parolee recidivism

Meanwhile, California's Department of Corrections has released a new report on recidivism among parolees.

The state's recidivism rates remain among the highest in the United States, the report found, with more than two-thirds of paroled prisoners back behind bars within three years. Younger men and those with shorter sentences had the highest rates.

Almost three in four new imprisonments were for parole violations rather than new crimes, emphasizing the need for alternatives to incarceration for technical violations.

The bright lining is in the recidivism rates of sex offenders, such as those in Los Angeles who cannot find a place to live.

Parolees flagged as sex offenders had lower recidivism rates than other prisoners. And only about 5 percent of those who were sent back to prison had committed a new sex crime. The broad majority were returned for parole violations or non-sexual crimes.

These low sexual recidivism rates are consistent with correctional data from elsewhere in the United States. Unfortunately, as the Los Angeles judge alluded to, thanks to a few rare but highly publicized cases (remember the "black swans"?), the public has not gotten this message.

Judge denies defense expert in capital case

Death penalty cases are expensive.

I spoke with a condemned man on San Quentin Prison's death row who had done the math: The money spent on his trial and appeals could have paid for a year of public education for all of the children in his home town.

The high cost is causing many prosecutors around the United States to think twice before seeking the ultimate penalty. In the Midwestern state of Indiana, for example, capital prosecutions are down in the wake of a state study showing the cost is 10 times more than if the government seeks a sentence of life without parole.

But one crusading prosecutor in Indiana has a more novel solution: Prevent the accused from mounting a defense.

"I feel very strongly about defense death penalty costs," said prosecutor Stan Levco of Vanderburgh County in objecting to a defense request to hire a psychologist.

Astoundingly, the trial judge agreed, and declined the defense request for a psychologist to assist in the defense of Jeffrey Weisheit. The defendant faces trial for murder and arson in the death of his girlfriend's two young daughters. Judge Daniel Moore approved the limited use of a psychologist, just through November, in order to help decide whether Weisheit should plead insane, according to the Evansville (Indiana) Courier and Press.

This puts the defense attorneys in a bind. The standard of practice in capital cases is to hire a team of experts to explore the defendant's life for evidence of mitigating circumstances that can then be presented to the jury. In fact, not to do so may violate a defendant's Constitutional right to effective representation, according to the 2003 case of Wiggins v. Smith.

Expert assistance is even more critical in cases like this one, in which the defendant's mental state may be at issue.

But the financial burden of the trial has been on the public's mind in these cash-strapped times. When a defendant is indigent, as most are, the state public defender pays half of the trial costs, and the other half comes directly from county coffers. According to the state analysis, the average death case in Indiana costs about $450,000; defense attorneys in this case estimate costs may run almost twice that average.

In June, the local paper even ran an opinion poll:

As a taxpayer, are you OK with seeking the death penalty for Jeffrey Weisheit if the estimated cost of approximately $800,000 is used in his defense?

Of the 461 people who voted, 78 percent said "YES." Two-thirds of these thought "there should be a cap on what public defenders can spend on defense.”

Public opinion is hard to ignore.

The prosecutor, meanwhile, says he is so concerned about defense expenses in death penalty cases that he has formed a special prosecutorial committee to study the issue. With such deep concern, it is interesting that he decided to seek the death penalty in the first place. After all, most such efforts are a waste of money. They add years to the process and do not ultimately result in an execution. Between 1990 and 2000, according to the Indiana study, only about one out of six capital prosecutions resulted in a death sentence, and only four of those has led to an actual execution. Indiana currently has 15 prisoners on death row, and six other capital cases pending.

Levco may care about the cost, but I'll bet he cares even more about winning. And he has found an innovative way to improve his odds.

It will be like shooting ducks in a barrel.

Yet another year of (yawn) Halloween security theater

Evidence and common sense no match for hype

For many, Halloween is a blast. Trick-or-treating, giving out candy, dressing up, perhaps even throwing a party.

But for many convicted sex offenders, it is the most dreaded night of the year. Group roundups, dusk-to-dawn curfews with the lights out, mandatory "no candy" signs on their doors and spot checks for compliance are among the various techniques of control ostensibly designed to protect the public.

Contary to the sex offender hysteria on All Hallows Eve, however, sex offenders are not out snatching and molesting children on Halloween. And they never have been.

Last year, a published study proved what most experts already knew: There is no Halloween spike in sex crimes against children.

"The wide net cast by Halloween laws places some degree of burden on law enforcement officers whose time would otherwise be allocated to addressing more probably dangerous events," noted Jill Levenson of Lynn University in Florida, one of the study's authors. Her research, published in the journal Sexual Abuse, examined crime trends over a 9-year period.

The researchers used data from the National Incident-Base Reporting System to examine crime trends in 30 U.S. states over a 9-year period. They found no increased rate of sexual abuse during the Halloween season. Also, the number of reported incidences did not rise or fall after police implemented current procedures.

Unfortunately, empirical evidence seems incapable of bringing common sense to bear. Probation officers and others continue to implement ridiculous roundups and other once-a-year restrictions on sex offenders, instead of focusing on the real threat to children, which I'll get to in a moment.

Around the nation this Halloween, parole and probation officers will continue to order convicted sex offenders not to answer their doors, decorate their porches, or wear costumes on Halloween. Sex offenders are being ordered to post "NO CANDY HERE" signs on their doors. Others must attend special Halloween "counseling sessions" or "movie nights" where they will be monitored (and, incidentally, protected from false accusations). The restrictions are so widespread and so varied that I no longer have the time or energy to catalog them as I have done on my professional blog in past years. (If you are interested, just do a Google news search for "Halloween sex offender roundup.")

This despite at least one federal court ruling that the restrictions were overly broad, and ridicule from late-night TV pundits of some of the sillier Halloween restrictions.

The farcical crackdowns are a prime example of what Scott Henson at Grits for Breakfast calls "security theater," that is, "hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives."

Why Halloween, we might ask? After all, most sex offenders target people they know, not children off the street. And the crackdowns on registered sex offenders miss the mark anyway, because the overwhelming majority of new sex offenses are committed by men who have never been caught for a past sex offense. Furthermore, registered sex offenders feel so branded and ostracized that most are ducking and hiding today.

But the scare feeds into a deep-rooted cultural fear of the bogeyman stranger. This fear is memorialized in the timeworn Halloween legend of tainted candy that has endured despite myriad attempts at correction. As Benjamin Radford of the Skeptical Enquirer pointed out about the persistence of that stranger-danger myth:

"Despite e-mail warnings, scary stories, and Ann Landers columns to the contrary, there have been only two confirmed cases of children being killed by poisoned Halloween candy, and in both cases the children were killed not in a random act by strangers but intentional murder by one of their parents."

The sad part of both myths is that children are taught a message of fear: Strangers, or even their own neighbors, might try to poison or molest them.

Oh, yes. What is the real danger facing children this Halloween?

It's one your mother always warned you about: Getting hit by a speeding car while crossing a dark street. Car accidents kill about 8,000 children every year in the United States. And children are more than twice as likely to be killed by a car while walking on Halloween night than at any other time of the year.

So this Halloween, show compassion toward a publicly identified sex offender. But please, children, don't get too friendly with cars.

Recommended reading:

Stranger danger and the decline of Halloween, Wall Street Journal opinion piece by Lenore Skenazy (author of Free Range Kids)

I can't believe that this is the fourth year in a row that I have posted a Halloween sex offender roundup. Prior posts:

2007: Beware the Halloween bogeyman!

2008: Pendulum swing on Halloween hype? (Oops! That one was just wishful thinking.)

2009: Halloween "security theater" endures

2010: Psychology Today blog post

Witness: My new blog at Psychology Today

has invited me to be a featured blogger at their website. The blog, "Witness," will feature posts oriented toward a more general readership. I hope you like the title; a friend came up with it for me. I've fired up the new blog with a couple of my most popular posts from this blog. One, "Delusional Campaign for a World without Risk," was selected for the "essential reading" section on the magazine's front page. Psychology Today offers a simple rss feed and other file-sharing software, so I am excited about the opportunity to increase my audience. I'll be adding more material as time allows, so feel free to check back there from time to time.

Europeans first to shoot down controversial paraphilia

Resounding 100-to-1 vote against "pedohebephilia"

I was impressed by the unanimity of opposition to the sexual paraphilias among forensic psychiatrists at their annual conference last week in Tucson, Arizona.

But as it turns out, the sex experts of Europe had the Americans beat, both in numbers and timing.

At last month's meeting of the International Association for the Treatment of Sexual Offenders (IATSO) in Oslo, Norway, the vote was approximately 100 to 1 against the controversial diagnosis of "pedohebephilia," according to two reliable sources. The lone dissenting voice was a member of the DSM-5 committee.

I hope the DSM revisers are listening. If not, they are going to end up the laughingstock of the world.

Richard Green, MD: "Hebephilia is a Mental Disorder?"

The vote at the IATSO conference, where European psychiatry is strongly represented, came after a talk by Richard Green, a prominent psychiatrist, sexologist, and professor at the Imperial College of London. Green served on the Gender Identity Disorders subcommittee for DSM-IV, and was a leading advocate for removing homosexuality from the DSM back in the 1970s. In a published critique of the hebephilia proposal, he pointed out the parallels:

The parody of science masquerading as democracy made a laughing stock of psychiatry and the APA when it held a popular vote by its membership on whether homosexuality should remain a mental disorder. Decreeing in a few years time that 19-year-olds who prefer sex with 14-year-olds (5 years their junior) have a mental disorder … will not enhance psychiatry’s scientific credibility.

He has also pointed out that the age of legal consent in several European countries falls within the range that the proposed disorder would make pathological for the older participant.

A separate audience poll at the IATSO conference on the proposed diagnosis of hypersexuality was more mixed, with about a third favoring the diagnosis, a third opposing it, and a third undecided, according to one of my sources.

NPR report on AAPL debate

Meanwhile, National Public Radio has reported on Saturday's AAPL vote against the paraphilias. Reporter Alix Spiegel blogged about it on NPR's health blog, "SHOTS," under the heading "Forensic Psychiatrists Don't Favor Some Proposed Sexual Diagnoses."

These negative votes will have no a direct impact on the DSM-5, now due out in 2013. In the case of the controversial sexual paraphilias, one Canadian research group is dominating the process and most of the upcoming field trials will be done at government detention facilities where insular opinion runs heavily in favor of the diagnoses.

Proponents of the paraphilia revisions are urging supporters to lobby the DSM committee. It seems that, as we have seen in the past, lobbyists may have an inordinate impact, overshadowing valid science.

But if the American Psychiatric Association kowtows to this special interest niche and ignores the broader consensus of psychiatrists and other mental health professionals around the world, this will certainly reduce the credibility of the manual in years to come.

UPDATE: My Psychiatric Times coverage of the debate, "Forensic Psychiatrists Vote No on Proposed Paraphilias," is online HERE.

Psychiatrists vote no on controversial paraphilias

By an overwhelming majority, a group of seasoned forensic psychiatrists who work with sex offenders voted last night against three controversial new sexual disorders being proposed for the DSM-5.

The votes were 31-2, 31-2, and 29-2, respectively, against Paraphilic Coercive Disorder, Pedohebephilia, and Hypersexual Disorder. The votes came at the end of a debate at the annual meeting of the American Association of Psychiatry and Law (AAPL) in Tucson, Arizona.

The rejection is symbolic, but sends a strong message to the DSM-5 developers. One of the six debate panelists, Richard Krueger, is a member of the Paraphilias SubWorking Group. Two other panelists serve as advisors to the committee. In the audience were prominent forensic psychiatrists who took stances regarding similar proposals during previous revisions of the DSM.

The American Psychiatric Association, to which most forensic psychiatrists belong, publishes the influential Diagnostic and Statistical Manual of Mental Disorders, now in its fourth edition. But psychiatrists have not played a central a role in the 20-year-old sex offender civil commitment industry, which is lobbying for these new diagnoses. Much of the planned field testing will be done at civil commitment sites.

The debaters

Arguing for and against Hypersexual Disorder were two prominent psychiatrists with decades of experience in assessing sexual disorders. Richard Krueger, on the "pro" team, is a Columbia University professor and medical director of the Sexual Behavior Clinic at the New York State Psychiatric Institute. John Bradford, an advisor to the DSM-IV and past president of AAPL, is a Distinguished Fellow of the APA, last year earning its prestigious Isaac Ray Award. The University of Ottawa professor is founder and clinical director of the Sexual Behaviors Clinic in Ottawa. He expressed concern about how clinicians would determine how much sexual preoccupation is excessive, and voiced worry that homosexual men might be disproportionately given the label.

Two Wisconsin psychologists debated "Paraphilic Coercive Disorder," which would apply to rapists. Thomas Zander took the "con" position while David Thornton of the Sand Ridge Secure Detention Center for sexually violent predators was "pro." This is the third time that the American Psychiatric Association has considered such a diagnosis.

Tackling Pedohebephilia were two Northern Californians, forensic psychiatrist Douglas Tucker ("pro") and your faithful blogger ("con"). The controversial proposal would expand pedophilia from its current definition, in which the target of sexual attraction must be prepubescent, to young pubescents as old as 14.

The debate was organized by forensic psychiatrist Lynn Maskel, a clinical professor at the University of California-San Diego.

Clinical versus forensic utility?

The three-member "con" team focused on two main themes:

• All three proposed diagnoses lack a sufficient scientific basis.

• They are highly likely to be misused in the forensic context, the primary site for their application.

The "pro" debate team repeatedly insisted that these diagnoses are being proposed based on their scientific merit, not their utility to government evaluators in civil commitment cases. They said these new diagnoses are needed so people suffering with these conditions can get adequate treatment.

The clinical needs argument is a red herring. Clinicians are not turning away patients with problematic sexual behaviors because the proper billing code is missing from the Diagnostic and Statistical Manual of Mental Disorders. Rapists will not flock in for needed treatment when they hear that a Paraphilic Coercive Disorder label is now available for them.

The audience of forensic psychiatrists clearly did not buy the clinical justification. As more than one audience member asked the panel, If the rationale is strictly clinical, why are attorneys serving as advisors to the work group?

Back in 1986, the last time Paraphilic Coercive Disorder was proposed for the DSM, it was defeated in large part due to the opposition of forensic psychiatrists (not pesky feminists, as the historical revisionists would have it). Hopefully, history will repeat itself with respect to all three of these poorly conceptualized and dangerous proposals.

The debate was audiotaped, and will be available for purchase from AAPL. The texts of the proposed diagnoses can be viewed at the DSM-5 website. My resource page on Hebephilia is HERE. Thomas Zander’s article, Inventing Diagnosis for Civil Commitment of Rapists, is online HERE.

Photo: (L to R) John Bradford, Karen Franklin, Thomas Zander, David Thornton, Douglas Tucker, Richard Krueger. Photo credit: Luis Rosell.

UPDATE: My Psychiatric Times coverage of the debate, "Forensic Psychiatrists Vote No on Proposed Paraphilias," is online HERE.