Jury deadlocks in gay panic trial

After a closely watched trial, a jury ultimately failed to agree on whether teenager Brandon McInerney should be punished for murder in the killing of classmate Larry King. The final vote was five for murder, and seven for the lesser crime of voluntary manslaughter.

The defense had played on gay panic, blaming 15-year-old King for being too provocative. Forensic psychologist Donald Hoagland, who spent 17 hours interviewing and testing McInerney, testified that when the cross-dressing victim said, “What’s up baby” to McInerney the day before the killing, it threw the 14-year-old into a fit of homicidal rage.

Hoagland further testified that when King said he was changing his name to Leticia, that triggered a dissociative state, causing McInerney not to realize what he was doing at the time of the shooting, according to the Ventura County Star.

The fatal flaw with that theory is that McInerney made advance plans to kill King. He acquired and loaded the gun, and announced his plan to several people the day beforehand, according to testimony during the eight-week trial. He shot King twice in the back of the head during a first-period class.

The only juror to speak to the media said that what really swayed the jury was not the gay panic defense, but the fact that the defendant was only 14 years old at the time of the 2008 crime. Prosecutors repeatedly rejected widespread pleas from the public -- including from a coalition of gay and lesbian groups -- to try the boy as a juvenile. He faced 51 years to life in prison if convicted in adult court.

Enough is enough, say the editors of the Star, which has provided excellent blow-by-blow coverage of the case since the outset; the prosecution needs to be reasonable:

That division among the jurors reflects the deep divide that also exists in the community at large regarding the appropriate way to punish a boy who committed an act of horrific violence that demands severe punishment, yet who had turned 14 just two weeks before the shooting, whose home life failed to provide the support and guidance that a child needs, and who was in a turbulent situation at school where there was equally little support evident.

The District Attorney's Office could refile murder charges against Brandon, but The Star believes the wisest course of action now is to take a sufficient amount of time for a good, hard look at the case that the prosecution presented and carefully consider what the jury's reactions revealed.

For starters, this trial showed it will be hard if not impossible to convince a jury that a sentence of 50 years to life in prison — which is mandatory for a first-degree murder conviction — represents justice in this criminal case, in which the defendant was prosecuted as an adult rather than in Juvenile Court.

Related blog posts:

Gay panic defense: Slain boy accused of provocation (August 10, 2011)

Don't ban gay panic defense (August 51, 2009)

What caused middle school tragedy? (June 10, 2008)

More on the McInerney antigay murder case (June 11, 2008)

Dangerous People: An international discourse

Dangerous People marks an important moment in risk discourse. Leading scholars from around the Western world join together to discuss the problematic science, ethics and morality underlying contemporary approaches to populations deemed high risk. These include not only sex offenders (the focus of this week's New York Times op-ed) but also suspected terrorists, illegal immigrants, violent youth, and the mentally ill.

Not surprisingly, contradictions over risk prediction play out even within the pages of this international and interdisciplinary work. Consider these offerings:

• Forensic psychologist David Cooke and statistician Christine Michie of Scotland issue their strongest warning yet about the fraud being perpetrated by proponents of “actuarial” risk prediction, whose illusion of scientific certainty camouflages predictions that are highly inaccurate and misleading:

At the heart of the matter is the fact that simple linear models cannot explain complex behavior…. Individuals are violent for different reasons: any one individual may be violent for different reasons on different occasions. This inherent complexity dooms simple-minded statistical prediction.... The only way to deal with this complexity is to think psychologically, not statistically.

• Lorraine Johnstone, another Scot, warns that the actuarials' inaccuracies are dangerously magnified with juvenile offenders, who present a "moving target" because they are still in the process of developing.

• Yet, on the other side of the fence, law professor Christopher Slobogin of the USA continues in his vociferous campaign for preventive detention of a litany of groups -- including the mentally ill, enemy combatants, violent juveniles and persons who spread communicable diseases -- based on these very same faulty statistical methods.

Meanwhile, legal scholars Eric Janus and John La Fond continue to shine a spotlight on the United States' costly experiment with civil detention of sex offenders.

Janus's intriguing theory is that the Sexually Violent Predator (SVP) laws are a tool of conservative ideologues to roll back feminist gains in the struggle against sexual violence and gender inequality. He advocates for a return to an empirically guided, public-health approach as the sanest way to combat sexual violence while also safeguarding tax dollars from waste.

"Predictably," agrees La Fond, "the American SVP experiment has been an abysmal and costly failure. Other countries should learn from our terrible mistakes."

Overviews of practices in other Western nations -- including Australia, England and Canada -- suggest that despite this warning, various U.S.-style detention schemes based on remote future risks are gaining traction internationally.

Several chapters in the volume, however, focus on a somewhat different model out of Scotland, the Order for Lifelong Restriction (OLR). This order, rendered at the time of initial sentencing, involves the imposition of an indeterminate sentence to be followed by lifelong supervision. To maximize consistency, risk assessors are accredited by a special Risk Management Authority. Although Scotland abides by the European Convention on Human Rights, which contains a guarantee against arbitrary detention, concerns have been raised about lengthy detention and lifelong sentences for juveniles. Additionally, as the volume editors point out, "it is too early to say whether the Scottish system has been successful in reducing violent and sexual recidivism."

On a somewhat different note, Jennifer Skeem, Jillian Peterson and Eric Silver challenge the widespread assumption that mental illness is a direct cause of criminality in mentally ill offenders. Rather, they say, many mentally ill people may engage in criminal behavior because they are poor, and therefore exposed to contextual risk factors for crime. We should stop regarding mental illness as a master status, they argue, in favor of a more nuanced approach to mentally ill offenders.

Many of the chapters in this timely collection -- edited by Australian legal scholars Bernadette McSherry and Patrick Keyzer -- will no doubt prove prophetic. The current state of fear-based hysteria, like all social movements, will wane in time. Politicians and the public will realize how costly and ineffective are many of the currently cherished practices and will reverse course. As the editors conclude:

What is clear from many of the chapters in this book is that schemes for imprisoning or detaining people for what they might do are costly, likely to contravene international human rights obligations, and have not proven to be effective in reducing crime, particularly sex offences. Detaining more and more people gives rise to the risk that detention regimes will collapse under the weight of numbers.

Yet in the short term, those who most need to hear this collective discourse -- including politicians, judges, prison officials, and even our very own misguided forensic practitioners -- are not listening. Isolated within a like-minded community, they are too busy searching for the magic potion that will make the world safe and appease a frightened public.

My Amazon review is HERE. If you appreciate this review, please go to Amazon and click "Yes" (this review was helpful). 

Trailblazing change in eyewitness ID rules

NJ ruling may reduce wrongful convictions; 

other jurisdictions likely to follow suit
x

As today's New York Times reports:

The New Jersey Supreme Court, acknowledging a “"troubling lack of reliability in eyewitness identifications," issued sweeping new rules on Wednesday making it easier for defendants to challenge such evidence in criminal cases.

The court said that whenever a defendant presents evidence that a witness's identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification. 

When such disputed evidence is admitted, the court said, the judge must give detailed explanations to jurors, even in the middle of a trial, on influences that could heighten the risk of misidentification. In the past, judges held hearings on such matters, but they were far more limited. 

The decision applies only in New Jersey, but is likely to have considerable impact nationally. The state's highest court has long been considered a trailblazer in criminal law, and New Jersey has already been a leader in establishing guidelines on how judges should handle such testimony.

Stuart J. Rabner, the court’s chief justice, wrote in a unanimous 134-page decision that the test for reliability of eyewitness testimony, as set out by the United States Supreme Court 34 years ago, should be revised.

The new rules come at a time of increased scrutiny of the eyewitness identification issue among lawyers, law enforcement officers and the scientific community. The opinion noted that task forces have been formed to recommend or put into effect new procedures to improve reliability. 

The State Supreme Court's ruling was seen as significant because it was based in part on an exhaustive study of the scientific research on eyewitness identification, led by a special master, a retired judge, who held hearings and led a review of the literature on the issue. The special master, Geoffrey Gaulkin, estimated that more than 2,000 studies related to the subject had been published since the Supreme Court’s original 1977 decision, the court noted. 

"Study after study revealed a troubling lack of reliability in eyewitness identifications," Chief Justice Rabner wrote. "From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. 

"Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country."

The decision listed more than a dozen factors that judges should consider in evaluating the reliability of a witness’s identification, including whether a weapon was visible during a crime of short duration, the amount of time the witness had to observe the event, how close the witness was to the suspect, whether the witness was under the influence of alcohol or drugs, whether the witness was identifying someone of a different race and the length of time that had elapsed between the crime and the identification.

The Times report continues HERE.

Hat tip: Jane

Steffan's Alerts #7: Neuromaging, juveniles, and perceptions of injustice

Click on a title to read the article abstract; click on a highlighted author's name to request the full article.

Perceptions of wrongful convictions by criminal justice personnel

In a new issue of Crime and Delinquency, Brad Smith and colleagues surveyed attitudes of criminal justice participants in Michigan. According to their findings, defense attorneys perceived that wrongful convictions occur more frequently than did police, prosecutors, and judges. Of the professionals surveyed, only defense attorneys viewed this concern as warranting reforms in the justice system.

How important are graduated sanctions in reducing recidivism?

In another article in Crime and Delinquency, Kristin Johnson and coauthors indicate that incorporating graduated sanctions into predictions of recidivism diminishes the predictive utility of waiver to adult court. Their results draw attention to the role of graduated sanctions and treatment programming for juvenile offenders.

What do mock jurors make of neuroimaging evidence?

N.J. Schweitzer and colleagues presented neuroscience-based testimony and neuroimagery to jury-eligible participants in mock court experiments. As reported in a new issue of Psychology, Public Policy, and the Law, participants rendered opinions on criminal culpability and sentencing. Neuroimagery, the authors reported, affected jurors' judgments no more than verbal testimony based on neuroscience.

Is the Adam Walsh Act working with juvenile offenders?

Also in Psychology, Public Policy, and the Law, Ashley Batastini and colleagues report that the Act’s classification system failed to predict sexual or nonsexual reoffending among a small sample of juveniles who were followed over a two-year period. In addition to their exploratory study, they discuss key concerns in the application of the Act to juveniles.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist based in Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

New York Times op-ed: "The last pariahs"

The chorus of dissent has been getting louder for a while now, but an anthropologist's cogent op-ed in the New York Times may increase mainstream attention to the problem of overly broad sex offender laws. The op-ed by Roger Lancaster is getting a lot of play on professional listservs. In case you missed it here's the conclusion:

Digital scarlet letters, electronic tethering and practices of banishment have relegated a growing number of people to the logic of "social death," a term introduced by the sociologist Orlando Patterson, in the context of slavery, to describe permanent dishonor and exclusion from the wider moral community. The creation of a pariah class of unemployable, uprooted criminal outcasts has drawn attention from human rights activists; even The Economist has decried our sex offender laws as harsh and ineffective.

This should worry us, in part because the techniques used for marking, shaming and controlling sex offenders have come to serve as models for laws and practices in other domains. Several states currently publish online listings of methamphetamine offenders, and other states are considering public registries for assorted crimes. Mimicking Megan’s Law, Florida maintains a Web site that gives the personal details (including photo, name, age, address, offenses and periods of incarceration) of all prisoners released from custody. Some other states post similar public listings of paroled or recently released ex-convicts. It goes without saying that such procedures cut against rehabilitation and reintegration.

Our sex offender laws are expansive, costly and ineffective -- guided by panic, not reason. It is time to change the conversation: to promote child welfare based on sound data rather than statistically anomalous horror stories, and in some cases to revisit outdated laws that do little to protect children. Little will have been gained if we trade a bloated prison system for sprawling forms of electronic surveillance that offload the costs of imprisonment onto offenders, their families and their communities.

The author, Roger N. Lancaster, is a professor of anthropology and director of the cultural studies program at George Mason University. He is the author of a new book from UC Press, Sex Panic and the Punitive State.

The full article is online HERE.

Collateral consequences of juvenile conviction

By the age of 17, Terence Hallinan had had several scrapes with the law, including a conviction for helping beat up three Coast Guardsmen in order to steal a case of beer. Yet he was able to put delinquency behind him, and become a successful attorney who served two terms as district attorney of San Francisco.

Such redemption stories were not so unusual back in his day. But today's world is much less forgiving of youthful indiscretions. A kid who gets into any type of legal trouble has a much harder time overcoming the stigma and going on to lead a productive life.

An astonishing two million juveniles are arrested each year in the United States. For many, their first priority is getting out of custody. They may be willing to plead guilty to a seemingly trivial crime, in order to accomplish this short-term goal. Little do they realize that pleading guilty to a crime may have long-lasting collateral consequences far worse than the initial punishment itself.

In an excellent overview of the juvenile justice system in the current issue of The Champion (published by the National Association of Criminal Defense Lawyers), Dr. Ashley Nellis, research analyst of The Sentencing Project, outlines some of these drastic consequences:

Zero Tolerance and Other School Push-out Policies

There is a public perception that African American and Latino students are quitting school in droves. But as explained on an episode of NPR’s Talk of the Nation last week, many of these students are actually the victims of  PUSH-OUT policies disproportionately targeting students of color. Zero Tolerance policies spearheaded by the federal government are forcing some youngsters out of school even if an arrest does not lead to a conviction.

Employment Barriers

Contrary to what many people believe, children processed through the juvenile  justice system do not automatically have their records destroyed (expunged) when they turn 18. Neither do juveniles transferred to the adult system. Having a criminal record creates sometimes insurmountable barriers to leading a successful life, by limiting options for housing, education and employment.

Eviction and Homelessness

Due to a law passed in 1996, under the Clinton administration, a juvenile conviction can lead to the eviction of an entire family from low-income housing. Youth re-entering their communities from out-of-home placement also struggle to achieve housing stability. This destabilization, naturally, increases risk for reoffending -- and the cycle continues.

Placement on a Sex Offender Registry

Despite their demonstrated lack of efficacy, and even their harmful effects, juvenile sex offender registries are gaining in popularity. In some states, children as young as nine are being placed on registries for childish misconduct or even consensual relations with other children. Ironically, children are the very people the laws were intended to protect, yet they are being disproportionately harmed by placement on registries.

After individuals have been added to the registry, they face strict limitations on where they can live, attend school, and work. Anytime registrants change residency they must notify the authorities and update their registration; failure to do so promptly can and frequently does result in incarceration…. Despite the law’s intent to make children and the community safer, it does the opposite. Young people face social stigma, branding as predators, housing bans, and exclusion from schools as a result of placement on the registry.

Dr. Nellis concludes with a series of recommendations to reduce the negative impact of collateral sanctions for juveniles, including:

• Reverse counterproductive school-based policies such as "zero tolerance" that disengage youth from school.
• Ensure expungement for juvenile records.
• Prohibit inclusion of juvenile records on national and state offender registries.
• Restrict non-relevant conviction questions from employment applications.
• Revise and expand reentry services and supports for youth. 

The full article, Addressing Collateral Consequences of Convictions for Young Offenders, can be downloaded HERE.

Hat tip: Bruce

At long last: New forensic specialty guidelines approved

After a 9-year revision process, the American Psychological Association has finally approved new Specialty Guidelines for Forensic Psychologists. The Guidelines will replace those established in 1991.

The Guidelines are intended for use not only by forensic psychologists, but by any psychologist when engaged in the practice of forensic psychology. Forensic psychology is defined as the application of any specialized psychological knowledge to a legal context, to assist in addressing legal, contractual, and administrative matters. The Guidelines are also meant to provide guidance on professional conduct to the legal system, and other organizations and professions.

Guidelines differ from standards, such as those in the APA’s Ethics Code, in that they are aspirational rather than mandatory. They are intended to facilitate the continued systematic development of the profession and facilitate a high level of practice by psychologists, rather than being intended to serve as a basis for disciplinary action or civil or criminal liability.

The revision committee, chaired by Randy Otto, included representatives of the American Psychology-Law Society (Division 41 of the APA) and the American Academy of Forensic Psychology. 

The Guidelines will be published shortly in the American Psychologist journal. In the meantime, a draft version is available HERE. I encourage all of you to read and learn its contents. Much of it will sound familiar to those with a working knowledge of the APA’s Ethical Principles of Psychologists and Code of Conduct. Although the Guidelines dance around some of the major controversies in our field, there is still plenty to be happy about. By way of whetting your appetite (hopefully), here is a random smattering:

2.05 Knowledge of the Scientific Foundation for Opinions and Testimony: Forensic practitioners seek to provide opinions and testimony that are sufficiently based upon adequate scientific foundation, and reliable and valid principles and methods that have been applied appropriately to the facts of the case. When providing opinions and testimony that are based on novel or emerging principles and methods, forensic practitioners seek to make known the status and limitations of these principles and methods.

2.08 Appreciation of Individual and Group Differences: Forensic practitioners strive to understand how factors associated with age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, socioeconomic status, or other relevant individual and cultural differences may affect and be related to the basis for people’s contact and involvement with the legal system.

6.03 Communication with Forensic Examinee: Forensic practitioners inform examinees about the nature and purpose of the examination, … including potential consequences of participation or non-participation, if known.

10.01 Focus on Legally Relevant Factors: Forensic practitioners are encouraged to consider the problems that may arise by using a clinical diagnosis in some forensic contexts, and consider and qualify their opinions and testimony appropriately.

11.04 Comprehensive and Accurate Presentation of Opinions in Reports and Testimony: Forensic practitioners are encouraged to limit discussion of background information that does not bear directly upon the legal purpose of the examination or consultation. Forensic practitioners avoid offering information that is irrelevant and that does not provide a substantial basis of support for their opinions, except when required by law.

Leonard Rubenstein, a senior scholar at the Center for Human Rights and Public Health of the Johns Hopkins Bloomberg School of Public Health, writes in a Huffington Post column that the new Guidelines will prevent psychologists from participating in abusive government interrogations as they did at Guantanamo. I think that's a stretch. These guidelines are not enforceable. And, like all such professional guidelines, they will be subject to diverse interpretations.

Pretrial civil detention of sex offenders unlawful, judge rules

A New York law mandating that sex offenders be confined while awaiting civil commitment trials is unconstitutional, a judge has ruled. But the ruling may not make much difference to most sex offenders whom the state wants to civilly detain, because they are waiving away their rights to a trial.

Supreme Court Justice Colleen Duffy ruled that New York's 2007 Sex Offender Management and Treatment Act is unconstitutional because it does not allow for any less restrictive remedy such as supervised release. Under the law, if a court finds probable cause that a convicted sex offender remains a danger, the individual must be confined until a civil trial, which can take a year or more.

Ironically, if the sex offender is ultimately found to suffer from a "mental abnormality" that renders him potentially dangerous to the public, the court then has the option of ordering intensive community supervision rather than involuntarily confinement in a mental institution.

In the case at hand, the judge noted that the state's Office of Mental Health had already determined that "Enrique T." would be a good candidate for strict, outpatient supervision rather than confinement. She ordered the immediate release of the detainee:

"Respondent is faced with a Morton's Fork -- he must either choose to enforce his right to a jury trial and continue to be detained for an unknown period of time in a psychiatric facility awaiting trial on this matter or surrender his right to trial and consent to a finding of mental abnormality so that he may be immediately released back to the community under [strict and intensive supervision and treatment]. Due process cannot countenance a statute that mandates such a choice."

Her decision follows a federal court decision earlier this year that came to the same conclusion, according to a report by John Caher in the New York Law Journal.

Sex offenders choosing not to fight commitment 

Unless these rulings result in complete scrapping of the state's civil commitment scheme, which is unlikely, it is unclear how many sex offenders whom the state seeks to detain will end up benefiting. For reasons that experts call "inexplicable," the majority of offenders are waiving their right to a jury trial, according to a separate report in the New York Law Journal. Reports John Caher:

Shortly after the Sex Offender Management and Treatment Act took effect in April 2007, authorities detected an unexpected and inexplicable phenomenon: Sex offenders targeted for civil confinement after serving their prison sentences were overwhelmingly waiving their right to a jury trial and consenting to confinement. Nearly 92 percent, 33 of 36, of the sex offenders civilly confined during the first year of the law's enactment had agreed to placement in a mental institution following release from prison. And while those numbers have tapered off in the last three years, a large portion of the sex offenders targeted for civil management continue to forego their right to a trial and consent to confinement, even though the most serious consequence of going to trial is confinement….

No one is sure why sex offenders are consenting to confinement and giving up their liberty when … they seemingly have nothing to lose. At trial after they have served a criminal sentence, the state has to prove by the high standard of clear and convincing evidence that the respondent suffers from a "mental abnormality" that predisposes him or her to commit sex crimes. A unanimous verdict is required, and if a unanimous verdict is not reached, the offender will likely go free since most have served the maximum sentence and are not on parole.

The success rate when offenders go to trial is fairly high, about 15 percent overall and more than 20 percent when they opt for a jury rather than a bench trial.

Theories offered by an assortment of experts and state officials to explain this unexpected trend include:

• Sex offenders believe that confinement is inevitable so choose to avoid the added humiliation and angst of trial.

• Sex offenders know they are dangerous and need help in order to not reoffend.

• Some offenders cannot find any doctor willing to testify on their behalf. 

• Some offenders are so marginalized and despised that they have no options for employment or housing in the community.

"A great deal of these folks have no social safety net," said defense attorney Thomas Callaghan. "Many of them are estranged from their families. Very few are married. They realize they can fight, but they really have no place to go."

Lesley M. DeLia, another legal services attorney, echoed this observation. She said some clients were initially eager to go to court, but balked as their trial date loomed closer:

"They know it is not a friendly world out there if they get out. They are scared about what life will be like ... and some of them just don't want to deal with it. There is no housing for them. They can't get jobs. Others are just so institutionalized they are afraid to go. We did have one fellow who said he knows he is not ready and does not want to get out and do it again."

"Kids-for-cash" judge gets 28-year prison term

Mother of a suicide victim confronts crooked judge

In what may be the longest federal prison sentence ever given in a U.S. political corruption case, a juvenile judge who earned millions of dollars by sending kids to private jails has received a 28-year sentence. A second judge, Michael Conahan, has not yet been sentenced.

As I blogged about in 2009 ("Evil lurked in Luzerne County"), Pennsylvania Judge Mark Ciaverella Jr. got kickbacks for sending children to the private lock-up. He even shut down the public juvenile hall so all minors would have to go to the new detention center. He sold children down the river for crimes as minor as writing a prank note or possessing drug paraphernalia.

Investigation of the so-called "kids for cash" scheme led to 4,000 juvenile convictions being overturned. Although 28 years sounds like a long time, if you do the math it's less than three days per juvenile case.

Gay panic defense: Slain boy accused of provocation

The closely watched murder trial of Brandon McInerney took an unfortunate turn this week, as a self-appointed expert testified that 15-year-old Larry King contributed to his own demise by flirting with his killer and by wearing makeup and women’s clothes, thereby disrupting the middle school where he was shot to death.

The witness, family therapist Stephen Irshay, said he contacted McInerney’s defense team to offer his assistance after reading about the case in the newspaper. He said he got involved because he didn't think the defendant would have shot King without provocation.

The nature of Irshay’s expertise is not clear from the trial coverage in the Ventura County Star. He is a licensed marriage and family therapist (MFT) who was just appointed as assistant director of an MFT program at an online school, Touro University Worldwide. Expert witnesses must have special knowledge or experience to offer -- based on their education, training or experience -- that is beyond the realm of common knowledge.

The use of the gay panic defense is no big surprise, because the case is no whodunit. In front of 25 to 30 eyewitnesses, McInerney shot King twice in the back of the head during a first-period class on Feb. 12, 2008. The day before, he had told several people of his plan, acquired a gun and loaded it.

Prosecutors allege that the killing was a hate crime, and that white supremacist ieology played a role. McInerney's attorneys deny this. Rather, they say McInerney -- who had just turned 14 -- was pushed to the emotional breaking point by King's sexual harassment of him.

“This is a very troubled young man pushed to the edge," defense attorney Scott Wippert told the jury during his opening statement. "He was pushed there by a young man who repeatedly targeted him with unwanted sexual advances."

Despite his youth, McInerney is being tried as an adult. He faces 51 years to life in prison if convicted. He turned down a plea bargain that would have netted him a 25-to-life sentence. For a teenager, I'm sure, either option sounds like an equal eternity.

Ironically, his prosecution as an adult came in spite of a lobbying campaign by a coalition of 27 sexual minority groups. "We call on prosecutors not to compound this tragedy with another wrong,” wrote the coalition. "We support the principles underlying our juvenile justice system that treat children differently than adults and provide greater hope and opportunity for rehabilitation." The letter cites research by the Centers for Disease Control and Prevention finding that children tried as adults are more likely to commit another crime than those tried as juveniles.

Does flirtation justify execution?

The gay panic defense plays on an antiquated cultural belief that a heterosexual male is justified in using violence to defend himself from flirtation by a gay man. In my own research with antigay hate crime perpetrators, I found that many noncriminal young men believed they had a right to physically assault gay men whom they perceived as flirting with them.

However, as some of the young women pointed out during my focus groups on antigay violence back in the mid-1990s, this logic is never used to justify a girl or woman violently attacking a flirtatious man.

In my research, I conceptualized antigay violence as existing on a continuum. At one end are verbal taunts that, sadly, remain socially acceptable among many adolescents. At the other end are severe acts of violence. These tend to be committed not necessarily by those with the most hostile attitudes toward gay people but, rather, by those with the most severe histories of violence or abuse.

McInerney's case fits this model. The defendant was raised in a chaotic and violent household and subjected to physical and sexual abuse. His father, now deceased, used to beat him for fun, defense attorney Wippert told the jury. The father shot McInerney’s mother, then married her and put bullets in her Christmas stocking as a joke.

According to reports back in 2008, McInerney was one among many students at the Southern California middle school who routinely teased and taunted King.

Gwen Araujo Justice for Victims Act

The gay panic defense is especially effective in cases where the victim was transgender, due to widespread societal revulsion against gender nonconformity. Use of the defense by the killers of Gwen Aurajo, a transgender teen, led to a backlash in California in the mid-2000s. The state passed the Gwen Araujo Justice for Victims Act. This law allows for a special instruction to jurors, reminding them not to allow bias based on sexual orientation or gender identity to affect their deliberations. The prosecutor in the McInerney case, Maeve Fox, said she will ask that this instruction be read to the jury.

The jury instruction is brilliant. Rather than seeking to ban the gay panic defense outright, a strategy that might be unconstitutional and would only serve to drive it underground, it helps to shine a spotlight on the underlying biases that the defense promotes.

This strategy is more effective than an outright ban, says legal scholar Cynthia Lee in a lengthy and well-reasoned 2009 treatise in the UC Davis Law Review.

Suppression of gay panic claims, like suppression of bad speech, will not eliminate the underlying stereotypes and assumptions that make such claims persuasive. Open discussion and debate is a better way to combat those assumptions.

The law can and should play a role in mediating th[e] cultural dispute [over the status of homosexuality] – not by dictating what jurors can and cannot consider, but by making sure jurors are cognitively aware of what exactly is at stake when a gay person is the victim of fatal violence, and the person who killed him claims he did so in response to an unwanted sexual advance.

We won't have to wait long to hear whether the defense will help young McInerney or, more likely, backfire. The case is expected to go to the jury in about two weeks.

Related blog posts:

• What caused middle school tragedy? (June 10, 2008)
• More on the McInerney antigay murder case: Defense may use emerging science of adolescent brain development (June 11, 2008)
• Don’t ban Gay Panic Defense (Aug. 5, 2009)

The Ventura County Star has detailed trial coverage and a timeline of the drawn-out legal machinations.

Hat tip: John L.

Forensic conference in idyllic Queensland setting

Hell's Gate, Noosa coastline (Photo credit: Kathleen)

For the indigenous Gubbi Gubbi people of southern Queensland, the Noosa area was a mecca and gathering place. Being here, I can certainly see why. The site of Australia’s Forensic Psychology National Conference is an idyllic tropical rain forest alongside a gorgeous coastline.

Even aside from the spectacular locale, the conference so far has been rewarding beyond my wildest expectations. Conference organizers and delegates alike have been overwhelmingly friendly and welcoming. They strike me as a serious and thoughtful bunch, communicating a solid commitment to ethical professional practice. Both my keynote -- on the subterranean tensions between technocratic and humanistic visions for our field -- and my all-day training workshop on forensic diagnosis were very well received. 

The vast continent of Australia has only 331 psychologists who are registered with the national government as forensic specialists (under the nationalization scheme that just went into effect), and it seems that most of them are here. Also in attendance are several other Americans invited to give keynote talks and all-day training workshops, including forensic guru Tom Grisso, Les Morey (the developer of the Personality Assessment Inventory) and John Edens, a prominent forensic psychologist from Texas A&M.

Blogger with Paul Wilson and conference chair Gavan Palk

A highlight for me was to get a chance to meet Paul Wilson, an internationally renowned criminologist and human rights activist. Paul (here, we all go by first names and forego the hierarchical ribbons and badges sported by speakers and officers at the typical psychological conference in the USA) is a prolific scholar and practitioner. He has been involved in many high-profile forensic cases, including on the effects of solitary confinement and of the forced removal of indigenous Australians from their ancestral homes. His latest book is Erasing Iraq: The Human Cost of Carnage, which -- as the title implies -- details the cost in human suffering of the war.

Paul's keynote focused on the role of forensic psychologists in miscarriage of justice cases. He has significant personal experience in this area, including involvement in Australia’s most infamous case of wrongful conviction, the so-called “Dingo Case" (made into a Hollywood movie starring Meryl Streep). That was the case in which Lindy Chamberlain was convicted of murder after her infant daughter disappeared while the family was camping at the famous Ayer’s Rock. It wasn’t until six years later that the baby’s clothing was found in a nearby dingo lair, proving that the mother was telling the truth when she said she saw a dingo carry off her baby.

Blogger with a new friend

It hasn’t been all work for me here in Queensland. I took the opportunity to see a bit of the Sunshine State, visiting first Cairns in tropical north Queensland and then Brisbane, the state’s biggest city. In Cairns, we journeyed out to the Great Barrier Reef for a little snorkeling, and also took in the local wildlife. We were lucky enough to spy the reclusive platypus in a creek in the Atherton Tablelands, as well as the much more abundant and visible kangaroos.

Further south, Queensland’s major city of Brisbane looks to have recovered quite nicely from the catastrophic flooding last January. Just goes to show what's possible in a country with a more rational social policy and a decent economy.

Brisbane is an attractive, up-and-coming city with lots of cool neighborhoods. As soon as we arrived, we were lucky enough to stumble across a vibrant organic food fair. We got to nibble and sip oodles of lovely locally produced treats -- fresh produce, dairy products, meats, sauces and wines.

Swimming enclosure, St. Helena Prison

While in Brisbane, we also toured an old prison on St. Helena Island in the Moreton Bay. It reminded me a bit of McNeil Island in Washington, where I worked for a spell. Operational from the 1860s to the 1930s, St. Helena went through several phases. Sometimes, it housed the Queensland prison system’s troublemakers and the criminally insane. At other times, it was a model prison farm reserved for well-behaved prisoners. At the end, it held aged and infirm convicts. To discourage escape during the harsh old days, prison warders attracted sharks by dumping cow offal along the beaches. Prisoners who wanted to swim after a day of back-breaking labor in the fields, sugar mill or factory could do so only in a small offshore area enclosed by long poles. (See photo.) But during our visit to the ruins, the fearsome predators were long gone and the setting was serene and idyllic. Just us, the guide who ferried us across on a small boat, and a few wallabies, shorebirds, and grazing cattle belonging to the national park service.

For me, Australia has been well worth the long airplane ride to get here; I hope to come back again to see Sydney, Melbourne, and Western Australia and to visit with some of my newfound colleagues in Australia's wonderful community of forensic psychologists.

Crime after crime: Battered woman’s struggle for justice

Debbie Peagler was 15 when she met and fell in love with a charming young man named Oliver Wilson. Unfortunately for her, Wilson was a pimp and drug dealer who ferociously abused her over the next six years. He beat her with a bullwhip, prostituted her, forced her to perform oral sex in front of his friends, put hot ashes on her hands and made her eat his feces, according to witnesses. When she said she would leave, he threatened to kill her.

On May 27, 1982, she asked him to drive her to a park. Waiting in ambush were two friends of her mother, neighborhood gang members who killed him. The prosecution maintained that Peagler hired the men. Peagler claimed she never discussed killing Wilson.

Threatened with the death penalty, Peagler pled guilty to first-degree murder and went to prison. And there she would have remained for the rest of her life, if not for a little serendipity.

After California enacted a law in 2000 to ensure fair trials for battered women who killed their abusers, the California Habeas Project selected Peagler as someone who might be eligible for relief. A local law firm, Bingham McCutchen, agreed to take the case pro bono. Two rookie land-use attorneys, Joshua Safran and Nadia Costa, began collecting new evidence to substantiate Peagler’s abuse.

Peagler’s story had deep personal meaning for Safran. As a 9-year-old boy, he helplessly cried through the night as an abusive boyfriend pummeled his mother. Eventually, he and his mother escaped, and he learned to channel his simmering rage into legal advocacy.

Over the course of several years, the attorneys found long-lost witnesses, learned of allegedly perjured evidence, and got new statements from the men who had killed Wilson.

For her part, Peagley was a model prisoner. She had spent her decades behind bars tutoring illiterate women, leading a gospel choir, earning two college degrees, and participating in a battered women’s support group.

Eventually, the Los Angeles County district attorney’s office agreed that Peagley should have been convicted of voluntary manslaughter, which at the time carried a sentence of only two to six years. Prosecutors signed a statement agreeing to Peagley’s immediate release from prison.

But that happy ending was not to be. After a political backlash in his office, the district attorney reneged on the deal, and Peagley’s petition for release was denied. Meanwhile, the case took on a new urgency when Peagley was diagnosed with advanced lung cancer.

Costa and Safran continued to petition for Peagley’s release on numerous grounds: Her guilty plea was coerced, false evidence was introduced against her, and the original prosecution would have differed had there been expert testimony on battering.

Although the courts failed her, she was finally paroled from prison in August 2009, thanks in part to an international grassroots campaign. She currently lives in Carson, CA.

Sadly, Bay Area private investigator Bobby Buechler, who gathered exculpatory evidence and was involved in the crusade to free Peagley (and whom I happened to know), died unexpectedly shortly before her release.

Filmmaker Yoav Potash spent five years filming the story as it unfolded, both in and out of prison. CRIME AFTER CRIME is the award-winning documentary of this dramatic saga. The film is currently playing around the United States; check HERE for more information and to find a venue near you.

 
Hat tip: Martin

Tweeting the news

For those of you who aren't (yet) on Twitter, here are some of the news stories I’ve tweeted this week. Click on a story to go to the original piece. To subscribe to my Twitter feed, click HERE.

• Tunnel vision: How L.A. police relentlessly targeted wrong man in Dodgers Stadium assault; parolee/gang member didn't even like baseball 

(. . . a bit similar to how the initial blame for Oslo blasts fell on Muslims; L.A. suspect Giovanni Ramirez was lucky to have a top-notch lawyer)

• NPR: Violence at California mental hospitals: The new norm 

• NPR: Prisoners’ hunger strike puts focus on California prison conditions 

• California Watch: Prison audit finds 'high potential for fraud' 

• Texas study raises questions about impact of school discipline 

• Washington Post: Supreme Court ruling, rising police presence in schools spur Miranda concerns in interviewing children

Worldwide incarceration tops 10 million

Photo credit: Richard Ross, Architecture of Authority collection

More than 10.1 million people are held in penal institutions throughout the world according to the latest edition of the World Prison Population List (WPPL), published this week by the International Centre for Prison Studies in London. Rates vary considerably between different regions of the world, and between different parts of the same continent.

The United States' prison total constitutes a rate of 743 per 100,000 of the national population, making it pro rata by far the biggest user of prison in the world. The overall world prison population rate is 146 per 100,000.

The fact that there are now over ten million men, women and children in prisons around the world should be a matter of grave public concern. A small proportion of these are a threat to public safety and there is no question that they need to be detained. However, in many countries the majority of prisoners come from minority and marginalised groups, or are mentally ill, or are drug and alcohol abusers. Sending such people to prison is inappropriate, does not improve public safety and is very expensive. There are indications in a number of countries that current economic difficulties are at last forcing politicians and public commentators to acknowledge that prisons cannot continue to expand in the way they have done in recent years.

The WPPL provides up-to-date information on the global prison population based on official government data from 218 countries and territories.

The current report is HERE.

Sex offender roundup

So much being generated on the sex offender front that it's hard to keep up. Here, in no particular order, are just a few choice items:

The Atlantic: Overzealous sex offender laws harm public

As the tide begins to turn, The Atlantic magazine has joined the backlash, with a well-written and insightful piece by associate editor Conor Friedersdorf that begins like this:

On the Texas registry for sex offenders, Frank Rodriguez's crime is listed as "sexual assault of a child." If I lived in his neighborhood and had young children, I'd be frightened upon seeing that. Safe to assume that some of his neighbors discovered his status and became alarmed. Needlessly so, as it turns out. Delving into his story, journalist Abigail Pesta has discovered that Rodriguez was arrested for having sex with his high school girlfriend. He was 19. She was 15. They've now been happily married for years, and he has fathered four girls.

The anecdote is part of a larger story about America's sex offender registries and the people on them who don't belong there. It's a timely subject. This month, some state governments are racing to bring themselves into compliance with the Adam Walsh Child Protection and Safety Act in order to avoid losing federal funds. As a result, the sex offender dragnet may pull in even more people. Says Pesta, "Each of the 50 states now has at least one grassroots group dedicated to getting young people -- many high school age, but some under the age of 10 -- off the registry."

So perhaps the backlash will grow too.

The article continues HERE.

Juvenile registries harmful, study finds

Dovetailing nicely with the Atlantic piece, a leading researcher and national expert on sex offender policy has found that placing the names of juveniles on sex offender registries does nothing to make society safer, and has harmful unintended effects on youth and on juvenile case processing.

Based on her research, Elizabeth Letourneau of the Medical University of South Carolina is calling for an end to notification requirements for juveniles.

A summary of her research is HERE.

California releases audit of SVP program

The State Auditor’s Office has issued its long-awaited report on the practical implementation of California’s civil commitment scheme for sex offenders. It isn’t as hard-hitting as I would have liked, but there are a few interesting tidbits.

One I found interesting was the statistic that out of all of the sex offenders who were NOT civilly committed and who were released into the community between 2005 and 2010, only ONE was later convicted for a new sexually violent offense. Talk about a low base rate!

The report also details the program’s meager bang for the buck. From 2005 to 2010, the state paid nearly $49 million in evaluation costs alone to a small group of privately contracted evaluators. Some of these psychologists earned upwards of $1 million per year. And for what return? Last year, the SVP program screened 6,575 prisoners for possible civil commitment. And guess how many were committed? THREE (much less than 1 percent)!

Just think about how much primary prevention work to reduce sexual violence all of those waste millions could have funded.  

The full report is online HERE.

More on the social costs of civil detention 

Unlike the California auditors, who seem to have bought into the promise of the Static-99 as an “actuarial” technique capable of predicting future behavior, law professor Tamara Rice Lave of the Miami School of Law has just published an article in New Criminal Law Review claiming that the Static has little utility in SVP determinations not only because it is inaccurate, but also because it does not link dangerousness to mental illness as U.S. laws require. Here is the abstract of her article, “Controlling Sexually Violent Predators: Continued Incarceration At What Cost?”

Sexually violent predator (SVP) laws are inherently suspicious because they continue to incarcerate people not because of what they have done, but because of what they might do. I focus on three major criticisms of the laws. First, I use recent recidivism data to challenge the core motivation for the SVP laws—that sex offenders are monsters who cannot control themselves. Second, I situate the laws theoretically as examples of what Feeley and Simon call the “new penology.” I argue that the SVP laws show the limited promise of the new penology—that we can use science to predict risk accurately—because the actuarial instruments used in SVP determinations make many mistakes. In making this argument, I focus particularly on the most commonly used such instrument, the Static-99. Finally, I argue that the Static-99 fails to meet the constitutional criteria laid out by the U.S. Supreme Court in Kansas v. Hendricks because it does not link an individual’s mental illness to his dangerousness.

Her full article is available online HERE.

Government SVP reports off target, says Allen Frances

Allen Frances, the chair of the DSM-IV Task Force, has been dabbling with SVP cases as an expert witness for the past year. After reviewing almost 100 cases, he is  – to put it mildly – under-impressed by the reports of government experts:

In not one case did the sexual offender qualify for anything remotely resembling a DSM-IV diagnosis of Paraphilia. And this is in an enriched sample of offenders who have been carefully screened and are presumed to have Paraphilia. Certainly state evaluators are wildly over-diagnosing Paraphilia and the courts are sanctioning unjust psychiatric incarceration based on their misguided opinions.

The evaluators all misinterpreted DSM-IV in just the same way. They routinely equate the act of committing a sex crime with having a mental disorder. Their reports gave remarkably detailed descriptions of the offender's criminal behavior, but provide little or no rationale or justification for a diagnoses of Paraphilia. The write-ups are all long and thorough -- but completely off point and generic. Although written by dozens of different evaluators, they have a rote quality and all repeated exactly the same mistakes.

His full post, at his “Couch in Crisis” blog at the Psychiatric Times, is HERE.

Is porn "driving men crazy"?

Last but not least, the prolific and insightful blogger Vaughan Bell deconstructs a CNN article by social crusader Naomi Wolf, who claims that pornography is “rewiring the male brain” and “causing [men] to have more difficulty controlling their impulses.”

According to her article, … “some men (and women) have a 'dopamine hole' – their brains’ reward systems are less efficient – making them more likely to become addicted to more extreme porn more easily.”

Wolf cites the function of dopamine to back up her argument and says this provides “an increasing body of scientific evidence” to support her ideas.

Porn is portrayed as a dangerous addictive drug that hooks naive users and leads them into sexual depravity and dysfunction. The trouble is, if this is true (which by the way, it isn’t, research suggests both males and females find porn generally enhances their sex lives, it does not effect emotional closeness and it is not linked to risky sexual behaviours) it would also be true for sex itself which relies on, unsurprisingly, a remarkably similar dopamine reward system.

Furthermore, Wolf relies on a cartoon character version of the reward system where dopamine squirts are represented as the brain’s pleasurable pats on the back....

The full post is HERE.

And after all of this if you're still in the mood for further browsing, I highly recommend the wide-ranging Mind Hacks blog; the topics are always fascinating (at least to me).

Historic hunger strike by Supermax prisoners continues

Gangs are bad, right? And prison gangs are worse?

Yet, when members of California prison gangs try to retire, California punishes them. They are shipping to a solitary housing unit (SHU) at Pelican Bay, one of the worst prisons in the state. They are locked in isolation cells for months or even years while being forced to undergo lengthy “debriefings” where they must snitch on other prisoners. Many become mentally ill.

The conditions of extreme isolation and deprivation are so severe that they violate the U.S. Constitution and international laws on torture, according to prisoners who on July 1 began a hunger strike in protest.

The prisoners were supported by up to 6,600 prisoners at 13 other prisons around the state. But even with some of the strikers reportedly nearing death this week, prison officials adamantly refuse to sit down at the table and negotiate. In fact, they are putting an evil spin on the strikers by claiming they are being coerced by prison gangs.

The prisoners' demands include an end to long-term solitary confinement, expansion of constructive activities and privileges (such as phone calls and the right to take one photo of themselves per year), and abolition of the prison’s gang debriefing policy.

One of the striking prisoners is Hugo Pinell, an African American organizer who has been imprisoned since 1971 for his role in the San Quentin uprising that led to George Jackson's death. Pinell has been at the Pelican Bay SHU for 20 years.

This is at least the third in a series of protests by U.S. prisoners in recent months. Last December, thousands of prisoners in Georgia used mobile phones to organize what has been called the largest prison labor strike in U.S. history, in at least six prisons across the state. Prisoners on death row in Ohio then went on a hunger strike and won some changes in their conditions, according to a lengthy report by Al Jazeera. 

Al Jazeera has more background on the strike (HERE). To get involved by contacting state officials or taking other supportive action, visit the blog of Prisoner Hunger Strike Solidarity.

Related blog post:

• Supermax: Hell on earth ... or not so bad

Loughner case shines spotlight on forced meds practices

Under what circumstances may the U.S. government drug a captive against his will?

A round of high-profile court skirmishes over the forcible medication of attempted assassination suspect Jared Loughner may help resolve legal ambiguities on this issue.

Two decades ago, in the landmark case of Washington v. Harper, the U.S. Supreme Court ruled that convicted prisoners may be forcibly medicated without a judicial hearing, if prison officials deem them dangerous to themselves or others. All that is needed is an informal administrative hearing behind the walls, a proceeding that many liken to a kangaroo court.

But pretrial detainees – who are presumed innocent – have greater rights when it comes to forced medications to restore their competency to stand trial. In the 2003 case of U.S. v. Sell, the high court specified certain conditions that must be met before someone may be forced to take medications designed to render him or her trial competent:

The Constitution permits the Government involuntarily to administer antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.

Government "end run"?

In the Loughner case, defense attorneys accused the government of trying to make an end run around these legal requirements by claiming that Loughner was dangerous. The incidents of alleged dangerousness claimed by the government included cursing and throwing a plastic chair on March 14, spitting and lunging at his lawyer, Judy Clarke, on April 4, and throwing chairs in his cell on May 28.

All of these incidents took place at the prison hospital in Springfield, Missouri where Loughner was sent after being diagnosed with paranoid schizophrenia and determined to be incompetent to stand trial. Loughner’s attorneys said they were denied access to their client, and only found out after the fact that the prison had held a hearing on June 14 and unilaterally decided to forcibly administering antipsychotic medication. Loughner is taking the oral antipsychotic Risperidone under threat that if he refuses, he will be forcibly injected with the potent drug Haldol.

In an emergency motion filed June 24 seeking to force a halt to the medications, the defense team said three isolated instances of misconduct during five months in custody are hardly sufficient to show present dangerousness. They accused prison staff of administering the antipsychotic not to reduce Loughner’s danger, but to restore him to competency, in violation of Sell. They asked that the prison be ordered to use other means of reducing Loughner’s danger if necessary, such as restraints, isolation, or minor tranquilizing drugs.

Courts must remain mindful that the dangerousness rationale and its purported justifications don’t become muddled with the attempt to administer psychotropic medications for purposes of treatment and restoration of competency…. To permit the prison to make these treatment decisions without Sell’s guidance and protections not only jeopardizes a significant liberty interest, it jeopardizes a fair trial.

They cited the landmark case of Riggins v. Nevada. In that case, the U.S. Supreme Court held that a Nevada man was deprived of a fair trial by being forcibly medicated to keep him competent during trial. The medications interfered with the content of his testimony and his ability to follow proceedings and communicate with counsel; they also impacted his outward appearance such that he no longer appeared insane, despite the fact that he was claiming insanity at the time of his crime.

"I didn’t go to medical school"

A federal judge summarily denied the defense motion, saying he did not want to second-guess the prison clinicians.

"I defer to medical doctors," U.S. District Judge Larry A. Burns said at an emergency hearing requested by the defense. "I have no reason to disagree with doctors. I didn't go to medical school."

But because the issue of whether forced drugging is permissible is a legal issue, not a clinical one, this seems like improper deference.

Luckily, the 9th Circuit Court of Appeals had more sense, issuing an emergency order July 2 to halt the medications until the issue could be fully litigated.

The appellate court pointed to its 2005 ruling in of United States v. Rivera-Guerrero, holding that forced administration of medications to pretrial detainees is of “clear constitutional importance.” In that case, the 9th Circuit ruled that in federal cases that such orders are too important even to be issued by lower magistrate judges, as opposed to district court judges.

Should pretrial detainees get greater deference?

At a hearing before a three-judge panel on Thursday, the appellate justices focused on the distinction raised by Loughner’s defense team between forcibly medicating a convicted prisoner and medicating a pretrial detainee.

“Why should someone presumptively innocent not be treated with greater personal deference” than a convicted prisoner, asked Judge Alex Kozinski, chief judge of the 9th Circuit, according to the Wall Street Journal.

"Is the goal of rendering the defendant competent different from medicating him for dangerousness?” asked Judge Kim McLane Wardlaw, touching on another area of murkiness. "Are these different goals? How do you separate them out?"

Loughner’s attorneys argue that not only will their client's fair-trial rights be affected, but he could also suffer irreparable harm from the strong drugs because they alter the chemical balance in the brain and can have serious, even fatal, side effects.

With the immediate urgency out of the way, the appellate panel did not give a date for their ruling on the medication issue.

Where is this heading?

This skirmish holds the promise of clearing up confusion over when the government may forcibly drug a captive without a formal court hearing. But, no matter which way this skirmish ends, Loughner will likely never be released from custody. His case may take one of several directions.

One likely next step is that he will be granted a Sell hearing, as his attorneys seek. If so, it seems likely that forced medications will be authorized. After all, if ever there was a compelling government interest in seeing that a defendant goes to trial, it is here. The 22-year-old Arizona man faces 49 felony charges in a Jan. 8 shooting rampage that killed six people and wounded 13, including U.S. Representative Gabrielle Giffords.

If he is given antipsychotic medications, Loughner will most likely be rendered competent to stand trial, probably within a year. The standard for competency to stand trial requires only that a defendant have a factual and rational understanding of the proceedings and an ability to rationally assist his attorney in his own defense.

Once Loughner is found mentally competent, his attorneys will likely raise the defense of insanity. In order to be found insane, his mental disorder must have prevented him from knowing that his actions were wrong at the time he committed them. If he is found insane, he will be committed to a locked psychiatric hospital.

In contrast, if he is found guilty he faces the death penalty. However, there is a good chance that attorneys will negotiate a plea deal that spares his life. This is what happened in the case of Ted Kaczynski, the Unabomber. Such a resolution has the advantage of avoiding the internationally embarrassing spectacle of the U.S. government trying and executing someone who was floridly psychotic at the time of his crimes.

There is also the remote possibility that Loughner will not be restored to competency and so will never face trial. This could happen either if his attorneys succeed in fighting forced medications (a highly unlikely event), or in the event that medications do not work to restore his sanity. In either of these circumstances, prosecutors could seek to have him civilly committed to a psychiatric hospital.

Bottom line, he will never be released back into the community.

I have made the June 24 defense motion available HERE. My previous essay on the Loughner case, “The Arizona rampage: Analyzing the analyzers,” can be found HERE. My other prior coverage of legal wrangling in this case is HERE.