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.

Arson probe: "Revenge of the scientists"

Perhaps the single most compelling exemplar of problems with the U.S. death penalty is the case of Cameron Willingham of Texas. Willingham, whom I have blogged about before, was executed in 2004 for a house fire in which his three daughters perished. But, as it turned out, the fire may not have been arson after all.

An ongoing probe is fostering rebellion by scientists against pseudoscientific evidence in arson cases. Some are even calling for a re-examination of all arson convictions in Texas from the past 20 years, according to a report by Dave Mann of the Texas Observer, who has covered the case extensively.

PBS Frontline's has a new documentary on the case, "Death by Fire," which I recommend you keep an eye out for. (It's also available on DVD.) The PBS website has great background, online videos, and interactive links. PBS' Hari Sreenivasan has additional commentary and case-related links at his news blog.

Related blog posts:

• Will Texas arson case change death penalty debate? (Sept. 2, 2009)
• Arson: New frontier for exonerations? (July 2, 2008)
  

Is Good Lives only for sex offenders?

A reader asked:

How applicable is the Good Lives Model (book review HERE) to working with people who have transgressed in ways other than sex offending?

Answer:

The theory was not developed for sex offenders in particular. It is being adopted for use with sex offenders under the premise that their patterns of desistance from crime are similar to those of other criminal offenders. Many types of rehabilitation programs are turning to the Good Lives Model and other positive psychology approaches. By way of illustration, here is a testimonial from a Canadian psychologist who uses it with men who have engaged in family violence:

We have been using the Good Lives Model (GLM) in a family violence program for men who batter for the past year. The framework allows us to maintain all the traditional processes one might typically see in an offender program. It also supports the use of a variety of strategies pulled from narrative therapy, solution focused therapy, zen psychology, biofeedback, cognitive behavioural, learning theory, etc. while maintaining a cohesive theoretical perspective.

The GLM approach supports a stronger focus on offender engagement. We find that the men are more able to see what their role is in therapy. We have been conducting exit interview with clients as they complete the program. It is interesting to hear how the values embedded in the program are translated into their narratives. I rarely heard this kind of ownership of change from men when we were teaching a relapse prevention-style group.

I found that shifting to the GLM from a purely cognitive-behavioral, relapse prevention, risk-needs-responsivity approach allowed me to align my understanding of what constitutes good therapy from the effective counselling literature (i.e., the therapeutic engagement of the client). At times I have found the strict manualized approaches to treatment to be more "psycho-educational" than therapeutic.

Our population is largely non-convicted, self-referred men where drop out rates are typically very high. People are finishing this program. Our outcome measures suggest clients experience an increase in self-monitoring, emotional self-regulation, and cognitive flexibility, with reductions in perceived levels of anger and aggression.

I did relapse-prevention sex offender programming for many years and continue to integrate those materials and strategies into the current curriculum. We just get to add a lot more and have the theoretical underpinning to back up our efforts.

Thanks to Ann Marie Dewhurst, Ph.D. of Edmonton for giving me permission to post this example of the Good Lives Model in action.

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.

Charging youth as adults costly and unjust, study finds

Waiving youth into adult courts for prosecution is unscientific, racially biased, and may increase crime, according to a Maryland study released today by the Just Kids Partnership to End the Automatic Prosecution of Youth as Adults.

The researchers tracked 135 youths who were charged as adults in Baltimore. They found that more than two-thirds were ultimately sent back to the juvenile system or had their cases dismissed outright, but not before spending an average of five months in adult jail. Only 10 percent ended up in adult prison. African American youth were disproportionately likely to be transferred to adult court.

The study comes as Maryland weighs whether or not to spend more than $100 million on a new facility for youth awaiting trial in adult court.

Based on their findings, the researchers recommend reducing the prosecution of youths in adult courts, and instead providing teenagers with more treatment opportunities.

"Youth who go into the adult correction system are significantly more likely to commit further and more violent crime than their peers who are treated as juveniles," they state.

The Just Kids Partnership is a consortium consisting of the Public Justice Center, Community Law in Action and United Parents of Incarcerated Children and Youth.

The full report is available HERE. An executive summary is HERE. Additional background is available at the Just Kids Partnership website.

Reader feedback on latest actuarial article

I want to draw readers' attention to a reaction I received today from Brian Abbott, a psychologist and a leading expert on actuarial risk assessment of sex offenders. He has posted an insightful comment on last week's blog essay, "Static redux: Sandgropers jumping off rickety ship." Whereas I was sanguine in my commentary on a new article critiquing the Static-99 family of instruments ("Alice in Actuarial-Land" by Shoba Sreenivasan, Linda Weinberger, Allen Frances, and Sarah Cusworth-Walker), Dr. Abbott expressed dismay. He sees it as a bold and dangerous attempt to legitimize the pseudoscientific clinical-actuarial approach. As he points out, with actuarial instruments forecasting lower risks of sexual recidivism, government evaluators are finding it increasingly difficult to predict the high levels of danger required for civil commitment. They may thus resort to pseudoscientific logic to inflate sex offenders' risk scores. Dr. Abbott's comment is located HERE. I invite you all to share your comments as well.

Courts should admit if "emperor wears no clothes"

SVP evidence must meet legal admissibility standards,
cautions high court justice in Washington

The Supreme Court of Washington has made it easier for some civilly committed Sexually Violent Predators (SVP's) to challenge their detentions. In a 5-4 ruling, the high court struck down a state law restricting what types of evidence a sex offender may introduce to show he is no longer dangerous.

Under the invalidated law, an offender could only petition for release based on reduced risk due to either treatment or permanent physiological changes. An offender could not claim, for example, that he no longer met the legal criteria for civil commitment (having a mental disorder that made him more likely than not to reoffend sexually) based solely on advancing age or maturation, even though these factors are strongly associated with desistance.

Most intriguing was the concurring opinion of Justice Richard B. Sanders. The justice rebuked the trial judge for abdicating his role as gatekeeper to ensure that scientific evidence admitted in court is reliable and valid. The trial court accepted the testimony of the government experts without considering whether they were scientifically valid, while summarily dismissing the opinions of the lone defense expert, Sanders noted.

In his declaration for the defense, psychiatrist Lee Coleman had challenged the science underlying the prosecution witnesses' risk assessments, diagnoses, and opinions. In particular, he disputed the legitimacy of the makeshift diagnosis of "paraphilia, not otherwise specified," i.e., "sexual activity with non-consenting females" assigned to convicted rapist David McCuistion:

Dr. [Carole] DeMarco claims that 'Paraphilia Not Otherwise Specified (Nonconsent) is an accepted diagnosis among practitioners knowledgeable about sexual offenders.' I believe it would be more accurate to say that the only practitioners who use this label are those who perform SVP evaluations. But regardless of how many use it, the so-called 'diagnosis' is obviously nothing more than doublespeak for the crime of rape. If this is the best the evaluators are capable of doing … surely it means that the entire evaluation process is a sham created to fulfill legal and legislative agendas.

As a 'dynamic risk factor' (characteristics that could change over time, as opposed to the static nature of one's criminal past), she wrote that Mr. McCuistion 'continues to associate with individuals who have an antisocial attitude and engage in a high level of fault finding with SCC rules and policies indicating an antisocial lifestyle.' Given the universal recognition by SVP inmates that the evaluation and treatment program is based on a law that has no recognized basis in science or psychology, it is totally unacceptable to equate 'fault finding with SCC rules and policies' with risk of sexual re-offending.

Commented Justice Sanders:

The trial court accepted the State experts' testimony without considering whether they were valid under Frye [the evidence admissibility standard in Washington] but proceeded to reject Dr. Coleman’s testimony out of hand:

'Dr. Coleman’s report and conclusion are contrary to the conclusions reached by previous examiners of Mr. McCuistion, and is essentially a re-argument of the original finding that Mr. McCuistion is a sexually violent predator. That Dr. Coleman disagrees with past examiners and fact-finders does not, itself, make his opinion the correct one.'

And yet that doesn’t make his opinion wrong either….

Where a person is deprived of his or her freedom based upon opinion testimony lacking scientific credibility, reliability, and accepted methodology, courts must step forward and announce with the courage of a small child that the Emperor wears no clothes.

No clothes, huh? Is it possible that the times they are a-changin'?

The majority opinion, concurring opinion, and dissent (saying the administrative costs and burdens of this ruling are too high) are all available online. Dr. Coleman's declaration is attached as Appendix A to Justice Sanders' concurring opinion.

Mother California: Essential prison reading

Imagine serving 30 years in prison with no end in sight. Would you survive? Would you not just survive, but actually grow as a person?

While serving a sentence of life without the possibility of parole ("the other death sentence") in California's massive prison system, Kenneth Hartman morphed from a violent killer, "a 19-year-old thug from the blasted wasteland of South Los Angeles' urban, post-industrial decay," to an award-winning author, philosopher, and prison reformer.

The subtitle of his autobiography is "A Story of Redemption Behind Bars." But Mother California tells a story much bigger than one man's personal odyssey. Through Hartman, we witness how three decades of irrational, tough-on-crime rhetoric has plunged California's prisons into an abyss of despair, violence, and criminal recidivism, all the while emptying the state's financial coffers.

Take Christmas. When Hartman first came to prison, in the early 1980s, the cellblocks were decked out in holiday lights, wreaths, and trees. Prisoners decorated their cells with holiday cards from loved ones, the Salvation Army donated candy and nuts, and, in the visiting room, "one of the old guys dressed up as Santa Claus for pictures with the kids and the young wives."

Within 15 years, holidays had been banished. Santa was gone, along with the decorations and treats. Every day resembled the last in its dreary monotony. "The walls are the same unadorned concrete every day of the year. My first Christmas at Tehachapi, one of the guards got on the public address system to tell us about the great meal he would soon be enjoying, the time he would be spending with his family. We didn't deserve to be with our families, he ranted, we were just where we belonged and have a hearty Merry fucking Christmas."

Watching helplessly as his beloved weight-training equipment is loaded onto the back of a flatbed truck, Hartman realizes "how far the advocates of punishment-for-the-sake-of-inflicting pain will go to turn the clock back" and erase the progressive reforms won by prisoners during the 1970s.

Hartman articulately chronicles the divergent impacts of this tough-on-crime politicking on daily life in prison. At Tehachapi, one of the newer prisons, guards are hyper-aggressive and controlling. At Lancaster, in contrast, the guards have ceded control, locking themselves in their control centers and allowing unchecked chaos and violence. The chapel becomes a crack house, the odors of marijuana and pruno (home-made liquor) fill the air, and almost everyone is high and destitute.

The golden triad

That is how Hartman, in one of his many philosophical essays on the prison system, labels the three proven ingredients to reducing criminal recidivism:

• Increased and enhanced visiting to build and maintain family ties
• Higher education
• Quality drug and alcohol treatment

Despite (or perhaps because of?) their effectiveness, the special-interest prison lobby has vigorously sabotaged all three, he writes:

In my 29 years, visiting has deteriorated from a slightly unpleasant experience to a hostile and traumatic acid bath that quite effectively destroys family ties.

Higher education is virtually nonexistent but for those few with the substantial resources needed to purchase it. In those rare cases where innovative ways have been found to bring education back into the prisons the special interest groups have mounted vicious campaigns to terminate the programs.

The opposition to drug and alcohol treatment, much more widely supported in the body politic, is subtler. Using the proven method of compulsory participation by the least amenable, those programs that are instituted are crippled in the normal chaos of prison.

All of this opposition stands behind the banner of protecting victims' rights, as if only the desire for revenge by past victims of crime matters, over even the potential losses of future victims.

The Honor Program

Determined to put his accumulated wisdom and principles into practice, Hartman worked with other prisoners and non-custody staff to design a special program at Lancaster Prison called the Honor Yard. Founded in 2000, the program provides a separate community for 600 men who have committed to living productive lives in which they give back to the community and make amends for past wrongdoings. They must commit to abstaining from gangs, violence, drugs, and racism.

In its first six years of operation, the Honor Program functioned without a single major violent incident, and saved the state millions of dollars. In the wake of its success, state Sen. Gloria Romero sponsored Senate Bill 299 to expand the program to other prisons. Gov. Arnold Schwarzegger, in his infinite wisdom, vetoed the bill.

Hartman's dream, according to a news article on the program, is to be able to live the remainder of his life in a violence-free environment where he can devote himself to his writing. One of his essays won a $10,000 writing prize, with the money going to his wife and daughter, conceived before California took away conjugal visit privileges from lifers. He is currently involved in a campaign to eliminate life sentences.

Instead of reading endless meaningless studies on psychopathy and such, we should spend more time in the real world, listening to articulate autodidacts like Hartman.

Kenneth Hartman's philosophical essays on prison are online HERE. More on the Honor Program, and efforts to save and expand it, is HERE. More on lifers in U.S. prisons is HERE.

If you enjoyed this review, I would appreciate your taking a quick moment to let me know by visiting my Amazon book review and click on "YES," this review was helpful.

Hat tip: Jules Burstein