Happy Halloween!

For the past four years on this date, I have posted a column on Halloween and the sex offender bogeyman. I'm going to skip it this year, but you can check out my previous offerings by clicking on these links:

• 2007: Beware the Halloween bogeyman!
• 2008: Pendulum swing on Halloween hype? (an erroneous prediction)
• 2009: Halloween "security theater" endures
• 2010: Yet another year of (yawn) Halloween security theater

View from my walking path of San Francisco Bay and Golden Gate Bridge

By the way, there is an actual crime spike on Halloween; it's just not of a sexual variety. You may also be interested in an article at The Psychologist on "The Lure of Horror."

Collating these Halloween posts reminds me that I’ve been blogging for almost five years now. It's hard for me to believe this will be my 735th post! My increasingly large and diverse international subscriber base makes quitting unthinkable. But occasionally blogging must take a back seat to other things, including my forensic work, academic writing, non-professional activities, and even simply enjoying our glorious October weather (so much nicer than the record-breaking snow storm that just struck the East Coast!).

I did manage to find time to view and review three indie films, a diversion from the increasingly mindless Hollywood fare that is so hard to stomach. You can click on any of these links to read the full review. In order from most to least recommended, they are:

• Salt of This Sea (a Palestinian film I highly recommend)
• Incendies (a critically acclaimed film about the Lebanese conflict, which is worth seeing if you are into horror)
• Ballast (a film set in the Mississippi Delta that doesn’t live up to the hype)

When I don't get around to blogging, I often still find time to tweet forensic news, a much shorter and simpler task. Click on any of the below links to go to some of the interesting news articles I've tweeted about in the past couple of weeks (you can view my tweets in real-time at any time, on the upper-right side of my blog site):

• Juvenile curfews as prejudice: Great editorial on why we need more kids on the streets, not fewer (San Francisco Chronicle)
• Teenage brains: Nice feature in this month's National Geographic
• Obesity playing increasingly common role in child custody battles, as ex-spouses hurl accusations in court about their kids' nutrition and exercise (Wall Street Journal)
• Boy Scouts' "perversion files" of 5,000+ pedophiles; like Catholic Church, Scouts kept abuse secret (USA Today)
• Man who borrowed a cell phone to tell his family he was paroling gets extra 5 years in prison (Los Angeles Times)
• Gizmodo series: Life and technology in San Quentin (Be grateful for the things you take for granted!)
• The Invisible Man: How the sex offender registry results in social death (online article)
• Turning conventional wisdom on its head: A successful executive's struggles with severe mental disorder (New York Times)
• Food rationing in Texas prisons; weekend lunches eliminated (Grits for Breakfast blog)
• Book review: "A Plague of Prisons" – why U.S. incarceration boom is social catastrophe on scale of worst global epidemics
• Sybil Exposed: The extraordinary story behind the famous multiple personality case (New York Times book review)
• Topeka Kansas repeals local domestic violence law due to budget cuts; agencies won't accept new cases
• California governor approves bill speeding involuntary medication of incompetent defendants held in state hospitals (Los Angeles Times)

In closing, whatever you are up to today, I wish you a very happy Halloween. No tricks, just treats.

Study: Psychopathy score fails to predict sexual recidivism

Many forensic psychologists believe that psychopathy is a risk factor for sex offender recidivism. Not surprisingly, when forensic psychologists assign a sex offender a high score on a psychopathy test, it increases the risk of extreme legal sanctions such as civil commitment.

But a new study out of Texas found zero correlation between sexual recidivism and psychopathy, as measured by the widely used Psychopathy Checklist (PCL-R). If anything, sex offenders who were arrested for a new sexually violent offense tended to have lower scores on the PCL-R than those who were not rearrested!

Regular blog readers should be familiar with these researchers by now: Dan Murrie, Marcus Boccaccini and crew are the same scholars who informed us of the partisan allegiance phenomenon, in which evaluators working for the government tend to assign far higher PCL-R scores than do those working for the defense.

In their most recent study, they examined PCL-R scores from about 400 sex offenders in Texas who were released from prison and then tracked for anywhere from about two to seven years. They examined not just the total scores on the PCL-R, but also scores on the instrument's two factors, as well as four so-called facet scores. Not one of these seven PCL-R variables was a statistically significant predictor of whether a man would be arrested for a new sex crime.

“Overall, these predictive validity findings were striking because the PCL-R apparently failed to predict the type of outcome (i.e., sexually violent reoffense) for which it was administered in this context,” the authors noted.

Further, in cases in which the PCL-R was administered by more than one evaluator, the study found poor agreement between the two, even though both were working for the government. Consistent with prior research, interrater agreement was higher on Factor 2, which measures antisocial behavior and an impulsive lifestyle, than on Factor 1, which measures the vaguely operationalized personality and emotional dynamics thought to underlie psychopathy.

In an interesting twist, the researchers tried to determine whether some evaluators were more accurate than others at predicting recidivism through PCL-R scores. They identified four highly prolific evaluators; together, these three psychologists and one medical doctor had provided almost two-thirds of the PCL-R scores in the study. Although the PCL-R scores of three of these four evaluators were more likely than other evaluators' scores to correlate with a new arrest for a non-sexual crime, even these evaluators could not produce PCL-R scores that predicted sexual offense recidivism.

Despite the PCL-R’s lack of predictive validity, sex offenders with higher PCL-R scores were more likely than others to be recommended for civil commitment, indicating that the unreliable rating was far from harmless in forensic practice.

The study is: 

Murrie, D. C., Boccaccini, M. T., Caperton, J. and Rufino, K. Field Validity of the Psychopathy Checklist–Revised in Sex Offender Risk Assessment. Psychological Assessment. Click HERE to request a copy from the first author, at the Institute of Law, Psychiatry, and Public Policy.

Of related interest:

• NPR expert panel: Weighing the value of a test for psychopaths
• Psychopathy: A Rorschach test for psychologists? (blog post)

DSM-5 petition takes off like wildfire

I just checked back on the status of the petition by psychologists about the DSM-5 that I blogged about Sunday, and found that it's gaining momentum fast: 1,160 signatures as of this moment, and there will be a dozen more in the few minutes it takes me to upload this post!

The blaze of interest is especially remarkable because the petition was launched without any publicity at all, and has gained traction solely through word of mouth.

If you haven’t checked it out yet, I urge you to do so, and pass it along to others.

According to Allen Frances, chair of the DSM-IV task force and an outspoken critic of the current DSM-5 process, the American Psychiatric Association leadership is aware of the petition, but plans no formal response. Writing yesterday at the Psychiatric Times, he said:

They hope to ride out the storm of opposition mounting on all sides and dismiss it as the work of professional rivals or antipsychiatry malcontents. Characteristically, DSM-5 offers no rebuttal based on evidence. Instead, it stubbornly soldiers on in its promotion of radical diagnostic changes that are risky, untested, unsupported by a strong science base, and vigorously opposed by the field.

The really unexplainable paradox is the APA's systematic promotion of greater diagnostic inflation at a time when we are already so obviously plagued by diagnostic inflation, fad diagnoses, and false epidemics. Unless it comes to its senses, DSM-5 will promote greater drug use exactly when we have a public health problem caused by the inappropriately loose prescription of antipsychotics, antidepressants, antianxiety agents, pain medicines, and stimulants. The paradox is that, contrary to conspiracy theorists, the DSM-5 experts are not making their risky suggestions because of financial conflict of interest or the desire to line drug company pockets. They have the best of intentions, but are terminally naïve about how their suggestions will be misused....

Frances has another good commentary on the petition and its ramifications at his Psychology Today blog dedicated to the mounting crisis, DSM5 in Distress:

DSM 5 has lived in a world that seems to be hermetically sealed. Despite the obvious impossibility of many of its proposals, it shows no ability to self correct or learn from outside advice. The current drafts have changed almost not at all from their deeply flawed originals. The DSM 5 field trials ask the wrong questions and will make no contribution to the endgame.


But the DSM 5 deafness may finally be cured by a users' revolt. The APA budget depends heavily on the huge publishing profits that accrue from its DSM sales. APA has ignored the scientific, clinical, and public health reasons it should omit the most dangerous suggestions- but I suspect APA will be more sensitive to the looming risk of a boycott by users.

Again, I encourage you to join the movement now, by clicking on the link below and by spreading the word.

More on test administration issues in Twilight Rapist case

Alan Cohen, the attorney in the Billy Joe Harris case that I blogged about last week, wrote to clarify the unusual test administration procedures of psychiatrist Colin Ross, who testified for the defense. Because his letter (which he posted at my Psychology Today blog, Witness) is of general interest to forensic psychology, I re-post it here, along with my response:

Mr. Cohen wrote:

I found your article of interest and hope this will create a forum for further discussion on DID and its use in the courtroom setting.

The issue of my administering the examination to my client took on a sinister spin from the way it was interpreted by Dr. [Robert] Barden when in fact it was nothing more then my hand-carrying it to the jail and passing the sealed envelope into the hand of a deputy who then gave it to my client. The transaction took less then a minute. I remained in an attorney booth with my client who spent four hours answering the self-administered questions. When he completed the exam he placed the results in an envelope and sealed it. He then handed the envelope to a deputy who then gave it to me. That transaction took less then a minute.

I personally carried the test to the jail so that the contents would not be examined by either the sheriffs department or the prosecutors office since Mr. Harris was under extremely tight surveillance and the results of the test would/could form the basis of our defense. I could not jeopardize the results of the exam being compromised by falling into the "wrong hands."

* * * * *

Mr. Cohen,

Thanks for writing to clarify the circumstances of the test administration. I have seen other cases in which psychologists have had third parties administer psychological tests, or have even given prisoners tests to fill out in their spare time and return at their leisure. While the intermediary who delivers the test is not doing anything sinister, from the standpoint of professional ethics and practice there are several problems with such practices.

First and foremost, if a test is standardized -- that is, if it has norms to which an individual is being compared -- then such procedures violate the standardized administration and may invalidate the results.

Second, such procedures violate test security.

Third, they prevent the expert from ensuring the adequacy of testing conditions, or of observing the individual as he performs the tasks; observation by skilled examiners can be an important component of one's ultimate opinions. Relatedly, sitting with the test-taker allows the examiner to assess for adequate comprehension, and answer any questions that may come up.

When Dr. Barden testified that it was unethical for the attorney to administer the tests, he was likely referring to the Ethics Code for psychologists, as well as the Standards for Educational and Psychological Testing ("The Standards") promulgated by the American Educational Research Association, the American Psychological Association and the National Council on Measurement in Education.

As noted in the introduction to the Standards, which apply to everyone who administers, scores and interprets psychological or educational tests, regardless of whether they are a psychologist:

The improper use of tests can cause considerable harm to test takers and other parties affected by test-based decisions. The intent of the Standards is to promote the sound and ethical use of tests and to provide a basis for evaluating the quality of testing practices. 

Collectively, the Ethics Code and the Standards require that:

• Test administrators receive proper training (Ethics Code 9.07; Standards 12.8)
• Tests not be administered by unqualified persons (Ethics Code 9.07; Standards 12.8)
• Examinees receive proper informed consent (Ethics Code 9.03; Standards 12.10)
• Test data be kept confidential and secure (Ethics Code 9.04; Standards 12.11)
• Assessment techniques be protected from disclosure to the extent permitted by law (Ethics Code 9.11; Standards 12.11) 

Again, I appreciate your taking the time to write.

NOTE: After I posted this exchange, the testifying psychiatrist, Colin A. Ross, posted a comment at my Psychology Today blog. He provided more information about the screening tests for dissociation and why they were administered as they were. He also offered his opinion on the validity of Dissociative Identity Disorder. His comment can be viewed HERE. Please feel free to join in the discussion, either here or (preferably) at my Witness blog, where the conversation began.

Multiple personality excluded in Texas insanity case

A serial rapist’s attempt to claim insanity based on multiple personality disorder fell flat, as a judge ordered the expert's trial testimony stricken from the record as junk science.

Billy Joe Harris

Psychiatrist Colin Ross testified that Billy Joe Harris, the so-called "Twilight Rapist" who targeted elderly women, suffered from multiple personality disorder -- now known as dissociative identity disorder (DID) -- brought on by childhood abuse.

Ross, who runs the Colin A. Ross Institute that provides trainings on psychological trauma and dissociative identity disorder, testified that the condition’s presence in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association establishes it as a "real and valid disorder."

Ross testified that he gave the defendant three tests for DID. However, in a most unusual procedure, rather than personally administering the tests, he gave them to the defense attorney to administer. Thus, he has no way of knowing for sure who filled in the tests, or under what circumstances. 

Ross testified that the defendant's scores on a screening test, the Dissociative Experiences Scale, were so high that he questioned the test's validity. He also conceded that the defendant was "clearly telling stories that are not true" about other aspects of his life, for example falsely claiming to have served in Iraq when he was actually in Saudi Arabia. However, Ross testified that after getting a chance to talk personally with one of Harris's alters, "Bobby," he was convinced of Harris's claim of multiple personalities.

"I don't think he's faking the dissociative identity disorder," he testified. "I could be wrong."

The real culprit, David the Dog

The defendant, a former prison employee, also took the witness stand, "weaving tales of bestiality, aliens, transvestites and combat heroism," in the words of news reporter Sonny Long. Harris testified that he had three other personalities inside him, including a black Great Dane named David who committed the rapes.

A dramatic moment came during cross-examination, when prosecutor Bobby Bell asked to speak to the defendant's alter, also named Bobby. As Long described the scene:

Harris lowered his head momentarily, raised it back up, rolled his neck and declared in a deep voice to be "Bobby."

Several jurors stifled laughter during the subsequent give-and-take between Harris and Bell, according to Long's account in the Victoria Advocate.

But perhaps even more damaging to Harris's credibility was an audiotape played for the jury in which he talks to his girlfriend about having put on "a good show" in court one day. Earlier that day, he had fallen to the floor and twitched and shook until he was restrained. The girlfriend warned Harris that the telephone call was being recorded, to which Harris replied, "I know it."

Forensic psychologist Walter Quijano also testified for the defense. (If the name sounds familiar, he has been in the spotlight for using race as a risk factor in death penalty cases, as I recently blogged about.) He testified that when multiple personality popped up as an issue, he stepped back because that is not an area of expertise for him. However, he did testify that it is unusual for someone to begin a rape career so late in life. Harris is 54.

Mere presence in DSM doesn’t establish validity

After the defense rested, the prosecution called as a rebuttal witness a Minnesota psychologist and attorney who has made a crusade out of pushing so-called "junk science" out of the courts.

Robert Christopher Barden testified that dissociative identity disorder (aka multiple personality disorder) is a controversial condition looked upon with skepticism by the scientific mainstream. He cited several articles rejecting the condition as a viable diagnosis, despite its presence in the DSM.

"Because something is in the DSM doesn't mean it's reliable or should be allowed in a court of law," he testified, according to an article in the Victoria Advocate. "One of the ways to get junk science out of the legal system is you rely on the relevant scientific community. If something is controversial it means it's not generally acceptable."

Barden said the number of mental health professionals who tout dissociative identity disorder as viable are few and far between.

"There are a few pockets of people left who are doing this," he said. "The scientists I know condemn it to be the worst kind of junk science and dangerous to the public. Controversial and experimental theories should not be allowed to contaminate the legal system."

Concerning the tests given to Harris, Barden said, "There's no magic to these tests. It looks scientific. It looks professional, but when you get down into it, it's junk. It's unusual for a psychiatrist to interpret a psychological test and it's highly unethical for Mr. Cohen [the defense attorney] to give the tests."

After Barden’s testimony that the condition is not generally accepted by the scientific community, despite the fact that it is listed in the DSM, District Judge Skipper Koetter ordered Dr. Ross’s testimony on dissociative identity disorder stricken from the record.

Justice, Texas-style

In the end, the defendant’s overdramatization and courtroom theatrics likely did him in. During the trial, he trembled and twitched and sat in the courtroom with paper stuffed in his ears, which his attorney said was “to keep the voices from speaking to him."

The jury took only 10 minutes to convict Harris, and another 10 minutes later in the month to sentence him to life in prison.

After the verdict, Barden said in a press release that the outcome demonstrates “the power of science-law teams in protecting the legal system from junk science testimony."

Barden has been involved in hundreds of lawsuits, criminal prosecutions and licensure actions across the United States over the past two decades, targeting not only multiple personality disorder but also quack therapists in the repressed memory and rebirthing therapy movements.

Judge Koetter's ruling is not the last word, of course, as it is just one trial judge's opinion. Appellate courts in other states have ruled differently. For example, in the 1999 case of State v. Greene (139 Wn. 2d 64), the Washington Supreme Court held that dissociative identity disorder was a generally accepted diagnosis because it was listed in the DSM-IV, and therefore met the Frye test for admissibility. But the Court went on to say that the applicability of this diagnosis to the issue of criminal responsibility was problematic and that testimony about DID was not "helpful" to the jury. (The Trowbridge Foundation has more information on this case HERE.)

The battle lines over dissociative identity disorder have heated up in the dozen years since that ruling, so who knows how an appellate court might rule today.

For those interested in learning more about the controversy, I recommend the chapter "Dissociative Identity Disorder: Multiple Personalities, Multiple Controversies" by Scott Lilienfeld and Steven Jay Lynn, in their book, Science and Pseudoscience in Clinical Psychology.

California deals big blow to bogus paraphilia diagnoses

Government evaluators in California have been instructed to be more cautious in invoking ad hoc psychiatric diagnoses such as "paraphilia not otherwise specified-nonconsent" to justify the civil commitment of sex offenders.

In a report in today's Psychiatric Times, Allen Frances calls the move by California's Department of Mental Health a "giant step forward in ending the Paraphilia NOS fad."

The new marching orders are likely to have national repercussions. California has a large cadre of sexually violent predator evaluators, many of whom moonlight in other states and in federal court as well.

As Frances reports, evaluators were summoned to a training workshop at which "they were explicitly instructed to adhere closely to the intent of DSM-IV and to desist from making idiosyncratic paraphilia diagnoses. The training made clear that a diagnosis of 'Paraphilia NOS nonconsent' would require affirmative supportive evidence that the rapist is sexually aroused specifically by raping rather than all the many very much more common situations in which rape is simply criminal."

Increasingly, government evaluators had been using so-called "NOS" diagnoses to justify civil commitment of men whose sex offenses were not driven by any recognized mental disorder. Because rape is a crime rather than a mental illness, it is not included as a diagnosis in any psychiatric manual. Similarly, evaluators have taken to labeling men who sexually assaulted post-pubertal minors but did not meet the diagnostic criteria for pedophilia with the ad hoc label of "paraphilia not otherwise specified-hebephilia."

Frances expressed optimism that California's policy change signals the beginning of the end for “paraphilia NOS” in court:

The misdiagnosis of rape as a mental disorder has been a forensic disaster,  allowing the widespread misuse of involuntary psychiatric hospitalization.... [T]he California DMH has only limited control over its errant state SVP evaluators, who by contract are entitled to exercise their individual 'clinical judgment' however mistaken and baseless it may be. 'Paraphilia NOS' will likely linger longer than it should. But the tide has clearly turned in California and California is likely to be a bellweather state; its return to proper diagnostic practice undoubtedly will spread across the country.

Blog readers may also be interested in Frances's commentary on a proposed change in the diagnostic criteria for Posttraumatic Stress Disorder (PTSD) in the upcoming DSM-5. The change could open the door for increased forensic misuse of this controversial diagnosis. Frances's report is HERE.

Combating the pull to overpredict violence

Like the moon's effect on tides, the pull to overpredict violence exerts a powerful influence, even on seasoned forensic evaluators who know its strength.

When directly informed that an event has a low base rate of occurrence -- for example, that a homicide offender has only a 1 in 100 likelihood of being arrested for another homicide -- both laypeople and professionals will markedly overpredict violence.

In an article in the Journal of the American Academy of Psychiatry and Law, eminent forensic psychologist Stanley Brodsky and postdoctoral fellow Sarah L. Miller analyze why this is so.

For one thing, the risk of underpredicting violence has more potential to negatively impact the evaluator. Bad publicity, public outrage, even civil litigation. Not to mention the harm committed by a high-risk individual who reoffends. 

Far safer to "err on the side of public safety," goes clinical lore. A claim of dangerousness is well nigh impossible to disprove. And especially in the context of civil commitment of sex offenders, the issue is not framed as punishment but, rather, as "an acceptable restriction of individual rights in the interest of public safety and rehabilitation." It's not as if these guys are sympathetic characters, with a constituency of supporters looking out for their rights.

Certain psychological mechanisms also contribute to bias in the direction of overpredicting risk. These include confirmation bias, or seeking information to support a preconceived conclusion, and illusory correlation, in which the evaluator assumes two things are related just because they co-occurred.

The purpose of Brodsky and Miller's well-argued review is to make evaluators more aware of the natural overprediction tendency, and to provide a checklist that evaluators can use to assess and correct their potential biases.

It's a great idea, although I am a bit skeptical that such a simple approach will make much of an impact in the adversarial arena.

The full article is available for free download HERE.

Russell Banks' new novel explores sex offender banishment

The Kid is all alone in the world, hiding in the shadows under the freeway, part of an ever-growing mass of exiles electronically shackled to a society that despises and shuns them.

But who are these modern-day lepers? And why are there so many of them? What if sex offending is a symptom of a malfunctioning society, and these men are just the canaries in the coal mine, carrying the burden of society' shame? What if the Internet is the snake in the Garden of Eden, and pornography is the forbidden fruit?

In Lost Memory of Skin, best-selling novelist Russell Banks explores the deeper ironies of a culture that condemns pedophiles even while turning its children into dehumanized sexual commodities. But on a deeper level, the novel is about the profound loneliness and alienation of the digital age, the inability of people to get beyond false facades to truly trust and connect with each other.

My review continues HERE.

(As always, if you appreciate the book review, please click "yes" at the Amazon site, to boost the placement of my Amazon reviews.)

Future orientation a major factor in juvenile competency

Photo credit: Richard Ross, Juvenile in Justice

Unlike adults, most children and adolescents who are found incompetent to stand trial are not psychotic. Rather, they have cognitive impairments. And, in a factor gaining greater attention from courts and legislatures, they are often immature.

Indeed, developmental maturity is so important that in California and some other states, juvenile competency evaluators are now required by law to assess for it.

That’s easier said than done. After all, what is immaturity, and how does it affect competency?

In a study just published in the Journal of the American Academy of Psychiatry and Law, four scholars state that one big chunk of maturity is future orientation, or the extent to which a youngster takes long-range consequences into account in making decisions. One reason that youngsters engage in risky behaviors, the theory goes, is because they are present-focused and lack a more mature perspective on the future.

Testing the influence of future orientation on competency, the researchers found that the well-established relationship between age and competency is moderated by a child's degree of future orientation.

Further, competency is particularly "fragile" in immature children. In other words, smaller deficits in cognitive abilities are more likely to influence competency in immature children as opposed to their more mature peers.

I recommend the full article, by Aaron Kivisto, Todd Moore, Paula Fite and Bruce Seidner. It is available for free online, HERE.

What does it take to prove innocence?

Thomas Haynesworth hugs his mother.
Photo: P. Kevin Morley, Richmond Times-Dispatch

One Sunday morning in February 1984, Thomas Haynesworth’s mother sent him to the Trio supermarket to pick up some bread and sweet potatoes. He never got there. Instead, he was stopped and questioned in connection with a recent rape. That began a 27-year odyssey through false accusation, arrest, prison and pain.

So begins yet another Kafkaesque story set in the United States, whose criminal justice system seems to have gone totally berserk. When I was traveling abroad this summer, overseas colleagues expressed amazement about practices they've heard about in our country -- juveniles sent to prison for life, young men placed on lifelong sex offender registries for consensual relationships with teen girlfriends, criminal prosecution of young children. Last week's execution of Troy Davis despite mounting doubts about his guilt is the latest case that has international observers scratching their heads.

But the Haynesworth case is unusual in that prosecutors and even a state attorney general are going to bat for the wrongfully convicted man, yet that still isn't enough to get him an exoneration. 

To recap the facts:

Haynesworth after his release. Photo credit: Morley

When he was 18, Haynesworth was arrested for five rapes in his neighborhood. He had no criminal record, but that didn't matter. He was prosecuted for four rapes, convicted of three, and sentenced to 84 years in prison.

Two years ago, a broad review of old cases in Virginia turned up a DNA match to a serial rapist who was already in prison for a string of rapes that occurred in that same neighborhood after Haynesworth's arrest.

Haynesworth was released this March, on his 46th birthday, and everyone thought his exoneration would follow swiftly.

But, no. 

Instead of apologizing to Haynesworth for robbing him of most of his adult life, what is the court doing? It's asking for more proof of innocence.

Only, there's a slight catch: The state has disposed of the DNA evidence from the other rapes, evidence that could conclusively clear his name.

"It seems paradoxical to demand 'conclusive' evidence from Haynesworth when the commonwealth has deprived him of the opportunity to produce such evidence," said the attorney general of Virginia, a staunch conservative who has even given Haynesworth a job in his office.

Meanwhile, as his bid for exoneration languishes on, Haynesworth must remain on the sex offender registry, with all of the stigma and restrictions that carries. He cannot move without permission, and he must even get approval to visit his nieces.

The trial penalty

This is yet the latest in a string of similar cases focusing public attention on the reliability problems plaguing eyewitness identification and, more broadly, on racial inequities in the administration of justice here in the Land of the Free.

But things are likely to get worse before they get better. That's because across the United States, legal changes have concentrated more and more power in the hands of prosecutors, who can now coerce defendants into pleading guilty by threatening much harsher penalties for those who insist on a trial.

As Richard Oppel reports in an in-depth analysis in the New York Times, prosecutors now wield more discretionary power than judges, and are using that power to punish defendants for exercising their right to a trial:

Threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.

Even defendants with winnable cases are opting to plead guilty because the stakes are so high if they lose. The ratio of guilty pleas to trials has nearly doubled in the past two decades, according to Bureau of Justice Statistics reported by Oppel. And the number of acquittals in federal cases has dropped even more dramatically, from one out of every 22 cases 30 years ago to only one out of 212 last year.

So if a young Haynesworth came along today and had the audacity to insist that he was innocent and wanted a trial, he would likely be punished with multiple life prison terms, rather than a mere 84 years.

We may never know how many Haynesworths are being sentenced every year based on faulty eyewitness identification and/or racially biased prosecution. 

New York Times reporter John Schwartz's only-in-America report on the Haynesworth case is HERE.

Richard Oppel's excellent report, Sentencing Shift Gives New Leverage to Prosecutors, is HERE.

Hat tip: J and B

Fiji travelogue: A different approach to murder

Guest post by Jules Burstein*

Three weeks ago while on a vacation in Fiji, I was on the third-largest island, Taveuni, walking in a light rain up a not-so-steep hill, when I encountered the following sign in front of what looked like a series of dormitories:

Fiji Correction Services

Taveuni Prison

Giving a Second Chance

 

I walked inside and explained to a secretary at the front desk that I was a forensic psychologist and was interested in learning something about the criminal justice and prison system in Fiji. She invited me to speak to the Director (Warden) who was just outside the main building and was quite receptive to having an exchange with me.

I was more than a little astonished to learn from him that on an island with 18,000 people there were only a dozen men serving time for murder. But more compelling than that was the Director informing me that all men convicted of murder are sentenced to 10 years.

At that point they are evaluated to see whether they have sufficient remorse for their offense, and have made constructive changes in their character so as to warrant release. If that is the case they are discharged from custody. If not, there are periodic reviews every two years to determine whether inmates are then suitable for release. Thus, all inmates are strongly motivated to effect positive changes while in custody in order to earn the right to be reintegrated into society.

I found it impressive (and sad) to consider that this progressive approach exists in a country that just obtained its independence from Great Britain 40 years ago, while we in America have prisons filled with thousands of men convicted of murder either sentenced to death or to life sentences with little chance of parole.

*Jules Burstein is a clinical and forensic psychologist in Berkeley, California.

Forensic trainings on the Eastern Seaboard

Oct. 2: Fun-filled training in New York

Stephen Morse

The New York State Psychological Association's Forensic Division is holding a one-day conference that some are billing as the best single-day conference this year. Keynote speaker Stephen J. Morse JD, PhD will open the day with a talk on “Folk Psychology: The Key to Legally Relevant Forensic Communication.” The day will end with a 2-hour moot court and then a wine social. Sandwiched in between are presentations by:

• William Barr, PhD on “Evaluating Competency: A Neuropsychological Perspective”
• Michael Perlin, JD on “ There Must be Some Way Out of Here: Why The Convention on the Rights of Persons with Disabilities is Potentially the Best Weapon in the Fight Against Sanism in Forensic Facilities”
• Joseph Plaud, PhD on “Psychological Assessment of Sexual Offenders: Where We’ve Been and Where We’re Going”
• David Martindale, PhD on “A Reviewer’s Take on Custody Evaluations”

Michael Perlin

The conference is being held at the Faculty House at Columbia University in New York City, which I am told is a great venue. The full conference program is HERE. Registration is HERE. Get it while it's hot.

Oct. 14: Risk management in the community

Well-known forensic psychologist Kirk Heilbrun of Drexel University is the featured presenter at this Forensic Mental Health Symposium sponsored by the Institute of Law, Psychiatry, and Public Policy at the University of Virginia. The event will be held at the Crowne Plaza Richmond West in Richmond, Virginia. More information is available at the ILPPP website. To register, click HERE.

Nov. 4: Police custody and the interrogation of youth

Kirk Heilbrun

This Advanced Seminar in Juvenile Forensic Practice, also sponsored by the ILPPP, features several interesting speakers, including:

• Lawrence Fitch, Esq on The Rights of Juveniles in Delinquency Cases: Understanding the Principles of Miranda Waiver and the Admissibility of Confessions in Juvenile Court
• Dick Reppucci, PhD on Research on the Police Interrogation of Juveniles
• Gregg McCrary (FBI, Retired) on Controversial Juvenile Cases: Evidence, Testimony and Outcomes

The event will be held at the University of Virginia in Charlottesville. To register, click HERE.

Next semester, the ILPPP is planning an advanced workshop on evaluating sanity with Ira Packer, and a workshop on Motivational Interviewing with David Prescott. Check back with their website for updates on those, and more.

Texas capital case highlights racial bias in psychology

Is it fair to forecast future danger based on demographics?

Even as Troy Davis's execution tonight draws attention to Georgia's death penalty, Texas remains  the undisputed execution capital of the United States. And in Texas, psychologists are integral to the process because of the prerequisite of proving future danger.

Texas psychologist Walter Quijano

It is here that Texas psychologist Walter Quijano stepped in, testifying in more than 100 capital cases. And in case after case, called by both the prosecution and the defense, he testified that defendants on trial for their lives were especially dangerous if they happened to be African American or Latino.

Like Davis's execution, Quijano’s racially imbued risk assessments are also in the international spotlight, after the U.S. Supreme Court's grant of a 30-day reprieve from death for Duane E. Buck, a convicted double-murderer who had already eaten his last meal when he got the news.

To his credit, former Texas Attorney General John Cornyn agreed with defense attorneys that infusing race into criminal sentencing is unfair. When Quijano's testimony was called to his attention some time back, he red-flagged seven cases as meriting a new sentencing hearing. (The government now argues that Buck's case is different from the others for procedural reasons.)

Duane Buck

The "infusion of race as a factor for the jury to weigh in making its determination" violates a defendant's "constitutional right to be sentenced without regard to the color of his skin," the top prosecutor stated in reference to another of the seven cases. "Discrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice."

Quijano, a native of the Philippines, said in an interview with CNN correspondent Raju Chebium back in 2000 that his opinion about the dangerousness of Blacks and Latinos derives from the fact that they are overrepresented in prisons. "When you look at a problem, you have to consider all the factors that you identify and not ignore (selected ones) because of political reasons."

But using incarceration rates as evidence for violence risk is circular logic. It conveniently ignores other factors that contribute to the vastly disproportionate incarceration of non-white men. These include racial profiling, poverty, economic discrimination, and most of all the racial bias endemic within all stages of the criminal justice system.

Quijano's self-styled risk method is not the only instance in which psychologists use a demographic factor to elevate risk. But hopefully the Buck case will draw attention to the larger issues of fairness and social justice that the practice raises.

Free access to forensic articles

The Journal of Forensic Sciences, published by the American Academy of Forensic Sciences, is offering free access to select articles, including several of potential interest to this blog’s audience. Click on any of the below titles to read (and/or download) the full article.

The CSI Effect and the Canadian and the Australian Jury

By Janne A. Holmgren and Judith Fordham 

Abstract:  Television shows, such as CBS's CSI and its spin-offs CSI: Miami; CSI: Las Vegas; and CSI: New York, have sparked the imagination of thousands of viewers who want to become forensic scientists. The shows' fictional portrayals of crime scene investigations have prompted fears that jurors will demand DNA and other forensic evidence before they will convict, and have unrealistic expectations of that evidence. This has been dubbed the "CSI effect." This phenomenon was explored using results from a Canadian study based on 605 surveys of Canadian college students who would be considered jury-eligible and Australian quantitative and qualitative findings from a study that surveyed and interviewed real posttrial jurors. Information about the way jurors deal with forensic evidence in the context of other evidence and feedback about the way in which understanding such evidence could be increased were gained from both these studies. The comparison provides insights into the knowledge base of jurors, permitting adaptation of methods of presenting forensic information by lawyers and experts in court, based on evidence rather than folklore. While the Canadian juror data showed statistically significant findings that jurors are clearly influenced in their treatment of some forensic evidence by their television-viewing habits, reassuringly, no support was found in either study for the operation of a detrimental CSI effect as defined above. In the Australian study, in fact, support was found for the proposition that jurors assess forensic evidence in a balanced and thoughtful manner.

Understanding Juror Perceptions of Forensic Evidence: Investigating the Impact of Case Context on Perceptions of Forensic Evidence Strength

by Lisa L. Smith, Ray Bull and Robyn Holliday 

Abstract:  The most widely accepted model of juror decision making acknowledges the importance of both the case-specific information presented in the courtroom, as well as the prior general knowledge and beliefs held by each juror. The studies presented in this paper investigated whether mock jurors could differentiate between evidence of varying strengths in the absence of case information and then followed on to determine the influence that case context (and therefore the story model) has on judgments made about the strength of forensic DNA evidence. The results illustrated that mock jurors correctly identified various strengths of evidence when it was not presented with case information; however, the perceived strength of evidence was significantly inflated when presented in the context of a criminal case, particularly when the evidence was of a weak or ambiguous standard. These findings are discussed in relation to the story model, and the potential implications for real juries.

Forensic Identification Science Evidence Since Daubert: Part II—Judicial Reasoning in Decisions to Exclude Forensic Identification Evidence on Grounds of Reliability

by Mark Page, Jane Taylor and Matt Blenkin 

Abstract:  Many studies regarding the legal status of forensic science have relied on the U.S. Supreme Court's mandate in Daubert v. Merrell Dow Pharmaceuticals Inc., and its progeny in order to make subsequent recommendations or rebuttals. This paper focuses on a more pragmatic approach to analyzing forensic science’s immediate deficiencies by considering a qualitative analysis of actual judicial reasoning where forensic identification evidence has been excluded on reliability grounds since the Daubert precedent. Reliance on general acceptance is becoming insufficient as proof of the admissibility of forensic evidence. The citation of unfounded statistics, error rates and certainties, a failure to document the analytical process or follow standardized procedures, and the existence of observe bias represent some of the concerns that have lead to the exclusion or limitation of forensic identification evidence. Analysis of these reasons may serve to refocus forensic practitioners’ testimony, resources, and research toward rectifying shortfalls in these areas.

Additional free articles from the Journal of Forensic Sciences on a variety of forensic topics may be found HERE.

Violence risk in schizophrenics: Are forensic tools reliable predictors?

The high-profile cases of Jared Lee Loughner and Anders Behring Breivik have contributed to high public demand for accurate prediction of violence potential among the mentally ill. While the number of risk assessment tools designed for this purpose has exploded in the past two decades, no systematic review has been conducted to investigate how accurate these tools are for predicting risk in individuals with schizophrenia.

But never fear: Jay Singh of the University of Oxford and colleagues (whose recent meta-review questioned overbroad claims about the accuracy of actuarials in risk assessment) have stepped into the breach, this time examining whether existing tools have proven efficacy for this task.

Reporting in this month's special issue of Schizophrenia Bulletin on violence and schizophrenia, the authors state that despite the existence of at least 158 structured tools for predicting outpatient violence risk, only two studies have measured instruments' predictive validity in discharged patients diagnosed with schizophrenia.

Instead of reporting on instruments' accuracy for specific patient groups, most studies report predictive validity estimates for heterogeneous groups of psychiatric patients. This forces clinicians and the public to assume that these group-level data apply to any individual diagnostic group.This assumption turns out to be a problem, due in part to the large differences in base rates of violence in psychiatric patients. We know, for example, that individuals with substance abuse disorders are more prone to violence, in general, than those diagnosed with major depression.

Examining the psychometric and predictive features of 10 widely used tools for assessing risk in mentally disordered offenders and civil psychiatric patients, the authors found "little direct evidence to support the use of these risk assessment tools in schizophrenia, specifically."

Overall, schizophrenics have low base rates of violence, with an estimated prevalence of between 10 and 15 percent. As I've discussed here in the context of sex offenders, the rarer a behavior is, the harder it is to successfully predict, leading to erroneous predictions of high risk in people who are not truly dangerous. The authors quote another research finding that in order to prevent one stranger homicide by a schizophrenic, governments would need to detain a whopping 35,000 patients.

That sounds to me like a black swan problem.

As in their previous meta-meta-analysis, the authors critique the almost exclusive use of the area under the curve (AUC) statistic to validate risk assessment instruments. Proponents of the AUC like it because it measures predictive utility independent of the base rate of the behavior in question. But this is as much a weakness as a strength, leading to a false sense of confidence in our ability to accurately predict the risk of individuals in heterogeneous groups of patients:

"High" AUC values for heterogeneous groups of psychiatric patients may have led researchers, clinicians, and policymakers to believe that instruments perform well for all diagnostic groups. However, it is problematic to suggest that structured instruments would be able to identify high-risk individuals with the same accuracy in groups with higher and lower base rates of violence.

In another interesting finding, Singh and colleagues found that the item content of violence risk tools varies markedly, with many tools including unique factors not contained in other instruments. This is a problem, unless these items are truly correlated with risk.

The authors call for updated reviews of the risk and protective factors underlying violence in different psychiatric groups -- including, for example, executive dysfunction in schizophrenics -- before additional risk assessment tools are constructed.

The review is available by contacting Dr. Singh (click HERE), who shortly will be coming to America to accept a post with the Mental Health Law and Policy Department of the University of South Florida.

Related blog post: Violence risk meta-meta: Instrument choice does matter (June 19, 2011)

Brick wall blocking progress on sexual violence

Forty years after the women’s rights movement brought attention to the widespread nature of sexual violence, the overwhelming majority of offenses still go unreported. Even when a brave victim does come forward, prosecution is rare and conviction even rarer.

That unpleasant reality was the starting point for this week's international conference on sexual violence at Middlesex University in London. Delegates from around the world -- including from Europe, Turkey, Israel, Australia, Canada and the United States -- met to brainstorm next steps in the battle against this catastrophic pandemic.

The consensus among delegates seemed to be that the legal system -- despite the best of intentions of many within it -- is ill equipped to rectify the "justice gap" between sexual violence perpetrators and their victims.

The "brick wall" (in the words of criminologist Betsy Stanko of "the Met," London's Metropolitan Police) blocking progress is built of so-called "rape myths" that make women unwilling to come forward, and impede successful prosecution when they do.

Myth Number One is that only bad and/or crazy men rape. As I explored in my opening keynote address, the promotion of this fiction by a powerful sex offender treatment industry has had the paradoxical effect of making the everyday rapist and child molester even less recognizable than ever by jurors and judges.

Myth Number Two is that men cannot control their sexual impulses. The corollary of this is to blame women for rape: Why did she get drunk? Why did she go with him? Why did she act (or dress) that way? Women have internalized these messages and so - unlike, say, burglary victims -- feel deeply humiliated and ashamed when they are raped.

Conference organizers Jackie Gray, Miranda Horvath,
and Susan Hansen (Photo credit: The Times)

These myths are so universal in Western cultures that even feminist women working at a women's health clinic communicate them in private, informal conversation, according to new research by one of the conference's organizers, Susan Hansen of Middlesex University. (The other two organizers were Miranda Horvath and Jackie Gray.)

Compounding the problem is the fact that rapists tend to target vulnerable women who do not fit the profile of a virtuous victim, so do not make good witnesses. In the "vast majority" of London cases tracked by the Met, around 85 percent, victims were (1) seriously intoxicated at the time of their assault, (2) involved in an intimate relationship with the perpetrator, (3) mentally ill, and/or (4) minors, Stanko reported. These are not ideal victims, from the standpoint of successful prosecution.

What to do?

As noted by long-time activist Liz Kelly, chair of the Child & Woman Abuse Studies Unit of London Metropolitan University, sexual violence exists on a continuum, from predatory leers, touches and verbal harassment -- to which virtually all women are subjected -- on up to illegal sexual assault. Direct confrontation of the male entitlement undergirding this entire spectrum of behaviors will be critical to meaningful progress against sexual violence, speaker after speaker emphasized.

In other words, delegates argued for reintroducing gender into the professional discourse. As Moira Carmody of the University of Western Sydney in Australia pointed out, gender-based analysis of sexual victimization is often perceived as too threatening. So it is replaced with gender-neutral discourse about interpersonal conflict, in which the gender of perpetrator and victim become interchangeable.

I had witnessed this dynamic in action the previous day, at the international consortium on multiple-perpetrator rape. As so frequently occurs in these types of professional gatherings, someone brought up the topic of female perpetrators, sidetracking discussion onto this tangential topic. I say tangential, because the reality is that group rape is an overwhelmingly male activity. Even on the exceedingly rare occasions in which women or girls are present, they are almost always auxiliaries, for example the wife of a sexual deviant, or a female gang member pressured to help her boyfriend procure a victim.

In addition to addressing the gender hierarchies and other power imbalances that facilitate victimization, we need to empower young people so that they perceive of themselves as active agents who have choices and practical tools for negotiating complex social situations.

Stieg Larsson, the author of the popular Millennium trilogy, did not feel this power when he was 15 years old. Thus, he did not intervene during a group camping trip, as three of his friends raped a 15-year-old girl. "Her screams were heartrending, but … his loyalty to his friends was too strong," writes longtime friend and biographer Kurdo Baksi. "He was too young, too insecure." Larsson struggled with guilt for the rest of his life, even naming the heroine of his novels after the rape victim, Lisbeth.

To empower young people in these types of situations, Carmody has developed an educational program that trains participants both in how to behave ethically in their own sexual encounters, and how to be "ethical bystanders." The curriculum, funded by the Australian government, has been successfully introduced with boys, girls, men and women from a variety of backgrounds, from rugby players to Maoris in New Zealand to gay men and lesbians.

New Zealand is using this ethical bystander approach in an innovative public health campaign to combat an expected rise in sexual assaults during the Rugby World Cup. An eight-minute video, "whoareyou," pushes the idea that everyone is responsibility for the safety of those around them.

A first step in primary prevention, then, is teaching and training young people to behave ethically toward each other.

On a larger level, we will need to directly challenge the rape myths undergirding an entire spectrum of intimate intrusions by men and boys against those with less social currency. Only then will victims feel empowered to step forward, and will judges and jurors be able to recognize and condemn the everyday offender who stands before them.

Knocking down that brick wall will be no small task.

Group rape getting long-overdue spotlight

Groups of men and boys have been raping lone, vulnerable girls and women since time immemorial. (Read Judges 19 in the Old Testament for one chilling account.) In fact, group rape is woven so tightly into the fabric of Western civilization that hardly anyone ever stops to think about it. Until now, that is.

When I did my first literature review of the topic back in 2003, for an article conceptualizing it as a theatrical production of hegemonic masculinity, I was astonished by the paucity of research. That is starting to change, thanks in large part to the tireless efforts of two prolific young scholars in the UK, Miranda Horvath of Middlesex University and Jessica Woodhams of the University of Birmingham.

Horvath and Woodhams secured funding from the British Psychological Society to put together an international consortium of researchers, academics and practitioners to further study the topic. We’re collaborating on an edited volume, which I’m pretty sure will be the first book in the history of the world on the topic of multiple-perpetrator rape. (It’s due out from Routledge in February 2013.)

I’m here in London giving a talk on the role of masculinity and culture in multiple-perpetrator rape, at the second of three research seminars. As I found in an analysis of international media coverage (which I will present in the upcoming book), Western societies display a cultural schizophrenia toward this phenomenon: Even as the public at large condemns group rape, contradictory messages permit and even reinforce it, fueling a cycle of masculine misconduct. 

London after the riots

Piccadilly Circus, 2011 (by K. Franklin)

London is a fitting backdrop for a seminar on group violence. Even as the city frenetically prepares to host the 2012 Olympics, it struggles to regain equilibrium in the wake of last month’s severe and economically costly rioting. 

Yesterday, I watched live BBC coverage of a government hearing into the police response to the rioting. Although the hearing covered a broad range of issues, Britain’s popular media latched onto a quote by Justice Secretary Ken Clarke, blaming the rioting on a "feral underclass." With coded racial language like that, it's no surprise that the rioting has led to increased racial prejudice and xenophobia among the British public, according to a just-released study. A greater number of respondents who felt that British society and culture were under threat are now expressing hostility toward Muslims, blacks and eastern Europeans.

London 2011 (K. Franklin)

Bolstering the racialized image in the public's mind is the much-ballyhooed statistic that three-quarters of those convicted of riot-related crimes had prior criminal records.  Of course, as the police were the first to admit during yesterday’s hearing, those with prior criminal histories were easiest to find, and so were rounded up after the riots. In other words, if you weren’t a known criminal you were less likely to get arrested, thereby producing a misleading statistic.

More broadly, why would anyone be surprised that members of an unemployed and disenfranchised underclass would be the first to rise up in protest over a police killing? Or that the have-nots would seize any opportunity to steal from the haves? Britain's confronting the problem today, but the rioting should serve as a wake-up call to every nation with severe economic and social disparities.

Ironically, by seizing upon the isolated quote and statistic, the popular media distorted what the justice secretary and other government leaders were saying. They were actually promoting the concept of rehabilitation. Calling the penal system "broken," the Secretary commented:

It's no good just punishing them. We're failing to make sure that those that are capable of being reformed are reformed and are actually sorting out their drugs, their drink, given a slightly more sensible approach to the values of society so that at least fewer of them will start causing trouble again the next time they have a chance.

Next up: Sexual violence conference

Stay tuned: Tomorrow I will be giving the opening keynote at a conference on sexual violence prevention, also here at Middlesex University in North London. Time allowing, I'll have more to report from my visit.