Monday, December 31, 2007

Teen drug and alcohol use still declining

Drug and alcohol use among teens continues to decline from its high of about a decade ago. That's the good news announced by the U.S. Office of National Drug Control Policy just in time for the new year. The declines since 2001 are as follows, according to the annual survey conducted by the University of Michigan:

  • 15% drop in alcohol use (although it's still pretty high!)
  • 24% drop in overall use of illegal drugs
  • 25% drop in marijuana use
  • 33% drop in steroid use
  • 54% drop in Ecstasy
  • 64% drop in methamphetamine
  • 33% drop in cigarette smoking
On the other hand, prescription drug abuse continues to increase. Since 2002, Oxycontin use has increased 30% among teens; Vicodin use also remains high.

Here are a few colorful slides illustrating the trends; the complete report and slide show are available online.

Sunday, December 30, 2007

A plague in Coalinga

You may have heard about the epidemic of valley fever at Pleasant Valley State Prison in Coalinga, located in California's Central Valley. Today's news reported that more than 900 prisoners and 80 employees have been stricken.

The sometimes-lethal fungal infection is endemic to, and on the rise in, the American Southwest. Like something out of a body snatcher flick, the spores that cause it live in the soil, and are inhaled when the soil is disturbed.

"You don’t do stupid things like go out on windy days or dig in the dirt," the mayor of Coalinga was quoted as saying. (Eek!)

New construction is suspected in the alarming rise in cases at the prison, where 1 out of 10 prisoners now tests positive. News reports mention as a possible culprit an increase in custom-home construction in the out-of-the-way hamlet of Coalinga. But what the news reports aren't mentioning is the construction of a $400 million state hospital immediately adjacent to the prison. Coalinga State Hospital, built primarily to house the state's burgeoning population of civilly committed sex offenders, opened just two years ago, right before the peak in valley fever infections at the prison.

Coincidence? Hmm.

Whatever the cause of the plague, revelations of its ubiquity in Coalinga will likely add to the hospital's already massive problems in recruiting qualified professional staff.

See my previous posts on the Coalinga State Hospital woes here and here.

Saturday, December 29, 2007

Happy New Year, San Francisco Zoo

When I was a little girl, a friendly keeper at the San Francisco Zoo invited me into a cage and let me hold a koala bear. It was a thrilling moment. And one not likely to be repeated in today's climate of institutional fear over "deep-pocket" lawsuits.

Because the topic of my doctoral research and subsequent publications was public exhibitions of masculinity among young male humans, my antenna went up on Christmas when I heard about the tiger attack at the S.F. Zoo.

What caught my interest was the initial news report that the tiger attacked three young men who had been lingering by the tiger's cage after the zoo had closed - possibly ignoring other potential victims.

Another detail increased my professional interest. The two surviving victims, brothers age 23 and 19, were hostile and uncooperative with police. Think about it: If you were stalked and mauled by a rampaging tiger, why would you try to mislead and obstruct investigators?

A third revelation of note was that these brothers, Kulbir and Amritpal Dhaliwal, were awaiting trial for a recent display of alleged drunken aggression. In that Oct. 9 incident, police caught the brothers chasing two men; after their arrest they allegedly cursed police and kicked the police car's security partition. They are scheduled to appear in court in a couple of weeks on misdemeanor charges of public intoxication and resisting arrest.

Interestingly, it was the older of these belligerent brothers that Tatiana the tiger first attacked; the unfortunate Carlos Sousa Jr. was apparently killed when he intervened to save his friend.

While speculation persists about the victims' potential contribution to the attack, the media are focusing more on the height of the wall outside of the tiger grotto's moat. Is it built to the height of the recommended standards of the 21st century? Of course not. It is 67 years old. And in all those years, not one tiger has escaped. Indeed, experts say that around the world thousands of tigers are kept in enclosures of roughly the same height, and they don't escape.

As one wildlife expert commented, the ultimate explanation for Tatiana's attack is not the height of the wall, but the "stimulus" she was reacting to. "Tigers around the world are perfectly safe behind 10-foot or 12-foot walls," said Martine Colette, founder of a wildlife refuge in Southern California. "There had to have been a tremendous stimulus that made the tiger react the way she did."

In a state of extreme fear or anger, a tiger - like a human - is capable of extraordinary feats of strength that otherwise would not have been possible. Based on this, professor of medicine Mark Siegel commented, "It seems clear that Tatiana was provoked or taunted to such a state of anger or agitation that her hyper-drive took over."

If indeed the tiger was provoked, this would conform with a typical display of masculine aggression. These displays - which often take the form of sexual aggression or antigay harassment - serve the functions of proving masculinity, social bonding, and the celebration of male power. In these forms of participatory theater, the targets - whether they be women, gay men, or even, as in this case, a tiger - serve as interchangeable dramatic props. (See my article on this topic.)

While no avenue of investigation should be ignored, I hope the media and investigators will focus as much attention on the likely provocation as in Monday morning quarterbacking of the zoo's response. As a struggling public institution whose aim is to educate the public about wildlife conservation and endangered species, the S.F. Zoo can ill afford a deep-pocket verdict based on misplaced castigation.

Also see my update of Jan. 1, 2008.

Photo credit: Kurt Rogers, S.F. Chronicle

Monday, December 24, 2007

Prisoner reintegration: An ethical duty?

The Second Chance Act of 2007 (H.R. 1593) would authorize $340 million in programs to reintegrate prisoners to their communities. Passed by the U.S. House of Representatives and now pending in the Senate, the legislation could present new opportunities for psychologists and other mental health professionals interested in working with high-needs parolees. The upcoming issue of the Federal Sentencing Reporter focuses on re-entry issues. The introductory article, "The Second Chance Act and the Future of the Reentry Movement," is available online. Here is the abstract:

Recently passed by the House of Representatives with strong bipartisan support and currently awaiting action in the Senate, the If enacted, the SCA would represent a new milestone in the growing influence of the prisoner reentry movement, which has focused public attention on the daunting obstacles facing returning prisoners who seek to rebuild their lives as productive citizens. This essay, which introduces a forthcoming issue of the Federal Sentencing Reporter devoted to the SCA and the challenges of reentry, critiques aspects of the SCA, considers the implications of the reentry movement for sentencing, and argues that reentry-based reforms should not be conceptualized primarily as recidivism reduction measures, but as opportunities to fulfill ethical obligations to some of the most marginalized and disadvantaged members of society.
Hat tip to Sentencing Law & Policy.

Friday, December 21, 2007

California: Throw off your chains, ye wretched prisoners?

Two big stories out of California today:

In what would probably be the largest mass release in U.S. history, prison doors could swing open early for more than 22,000 prisoners. The governor's plan to release nonviolent offenders with less than 20 months to go on their sentences would ease prison overcrowding and save the state almost $800 million over the next couple of years with little risk to the public. California has the largest prison population in the nation, with 172,000 prisoners. The guards' union, a major influence in this prison-heavy state, will undoubtedly try to halt the move, which would cost more than 4,000 prison jobs. The full story is here.

In another development, officials admit they are removing GPS tracking devices from sex offenders who have completed parole, in violation of a state law that requires lifetime monitoring. That's because Jessica's Law, enacted by voters in 2006, doesn't specify who is responsible for the monitoring or who will pay the exorbitant costs. Nor does it penalize ex-offenders for removing the GPS devices.

Both state and local officials say they don't have the funds to monitor the offenders. "We don't know what it's going to cost, and the conservative estimates are hundreds of millions of dollars" as more offenders complete parole, said Nancy O'Malley, chief assistant district attorney in Alameda County.

The state's Sex Offender Management Board is pondering a solution. The full story is here.

Photo credit: Puff's Daddy's (Creative Commons license).

Thursday, December 20, 2007

Fascinating new twists in Tim Masters case

Expert witness psychologist cited FBI profiler who had rejected prosecution theory of case

The forensic psychology angles in Tim Masters' ongoing motion for a new trial in Fort Collins, Colorado are increasingly fascinating. Here are a few of the newest:

Roy Hazelwood, the pioneering FBI profiler, was hired as a police consultant but rejected the police theory of the case, which linked 15-year-old Masters to a 1987 sex-murder based on the boy's doodles. Police withheld this information from defense attorneys at Masters' 1999 trial, and Hazelwood was never called as a witness.

With Hazelwood giving a thumbs-down to the police theory, prominent forensic psychologist Reid Meloy became the prosecution's star witness. He did exactly what Hazelwood had cautioned against, connecting Masters to the killing based on a series of violent sketches. Ironically, Meloy cited Hazelwood's theories on profiling as a basis for his opinion.

In addition to the "scary doodles," as they have been dubbed by the media, Meloy theorized that the date linked the killing to Masters, because it was the anniversary of the date that Masters' mother had gone to a hospital. But the information now being turned over by prosecutors suggests that this theory was fed to Meloy by Fort Collins police.

No physical evidence has ever linked Masters to the crime. The newly revealed police notes reflect that authorities were suspicious of a suspected sex offender who lived nearby and later killed himself. Authorities destroyed evidence linking that man, eye surgeon Richard Hammond, to the murder, and did not provide his name to the defense.

The ongoing hearings are aimed at getting a new trial for Masters, who is serving a life sentence, and also getting sanctions against the original prosecutors, both of whom are now judges, for withholding evidence.

The moral for forensic psychologists: Carefully protect your neutrality and independence; never let partisans for one side or the other influence (or appear to influence) your theories or findings.

Note: A more recent post on this case is here.


For my earlier blog posts on this case, click HERE and/or HERE. A Denver Post video, "The Story of Tim Masters," shows details of Masters' police interrogations. The Pro Libertate blog has case analysis, graphics, and links. A blog dedicated to the case, Free Tim Masters Because, has a lengthy page devoted to the role of Dr. Meloy.

Other news coverage includes:
Undisclosed Masters evidence nags, Denver Post, Dec. 20, 2007Notes in Masters case wanted "profile" stricken, Denver Post, Dec. 18, 2007Attorneys: It was the doctor - Master’s defense says Hammond had all the makings of real killer, Reporter Herald (Loveland, CO), Dec. 18, 2007Testimony returns to subject of expert, Reporter Herald, Dec. 17, 2007

News roundup






Scot freed after 20 years

This story hasn't been getting much press in the United States, but it's been a topic of interest in Europe. Kenneth Richey of Scotland has spent 20 years on death row in Ohio, exhausting round after round of appeals for a crime he insists he didn't do. Finally, a plea bargain has been reached in which he will plead no contest to involuntary manslaughter and be home in time for Christmas.

Europeans had been outraged at the conditions of Richey's confinement, which are ho-hum here in the prison nation. Said one Scottish official who visited Richey:

"The reality of somebody who is kept locked up in a cell for 23 hours a day for 19 years is quite mind-blowing. It is a dreadful, inhumane and dehumanising system. If one man is off it, then remember there are hundreds [sic!] of people in America still enduring that dreadful situation."
The London Times has more.

Children electroshocked (roll over, Stanley Milgram)

A prankster has outdone experimental researcher Stanley Milgram by a long shot, telephoning a school for the severely disturbed and easily convincing school officials to shock pupils up to 77 times each!

The prank is highlighting the fact that the Massachusetts school, Judge Rotenberg Educational Center, routinely administers electroshock as punishment. The school is the only one in the United States that does so; the device's inhumanity is concealed by the clinical-sounding name of graduated electronic decelerator.

ABC News has the story here.

Wednesday, December 19, 2007

Are trial lawyers an endangered species?

The University of Pennsylvania Law Review has a special issue on the changing landscape of U.S. criminal law, especially in the federal system. With plea bargains the norm, trials – which bring the possibility of acquittal – are becoming rarer. The articles are in response to an earlier essay by law professor Ronald F. Wright entitled "Trial Distortion and the End of Innocence in Federal Criminal Justice."

This trend has direct relevance to the practice of forensic psychology. Without the truth-exploring forum of a trial, both trial lawyers and expert witnesses could go the way of the Siberian tiger. Our primary product becomes a written report that can aid the parties in their plea negotiations, by elucidating the nexus between an individual’s psychological dynamics or mental state and a specific legal issue (such as specific intent to commit a crime or risk to public safety).

The entire debate is available online.

Hat tip to the Concurring Opinions blog for alerting me to this debate. Photo credits: Amber Rhea, sign on old Suntrust building in downtown Decatur, Illinois; Zoo Stream, Siberian tiger (Creative Commons license).

Tuesday, December 18, 2007

News roundup






Eastern nations importing Western justice practices

I've seen several accounts lately of Asian countries importing Western criminal justice practices. In China, which has a continental (or inquisitorial) model like that used in most of Europe, the Canadian Bar Association is collaborating with Chinese lawyers to advance the adversarial practices used in Canada and the United States. The Lawyers Weekly of Canada has that story. Meanwhile, in Japan, courts are gearing up to implement what for the West is an old standard – jury duty. In preparation for the January 2009 launch date, a former New York Legal Aid attorney is training Japanese defense lawyers in how to address ordinary citizens in court. That story is one of a series of special reports on "Toyko Justice" at New York City's NY1 news service.

New DOJ report: Sexual victimization of prisoners

The U.S. Bureau of Justice Statistics has released findings from a national survey of more than 23,000 prisoners at 146 state and federal institutions. Overall, about 4.5% of prisoners report sexual victimization, more than half committed by staff. The special report, required under the Prison Rape Elimination Act, is available online, as is a summary press release.

$10 million law & neuroscience project

How should the courts respond to new brain-scanning techniques that have potentially far-reaching legal implications?

A $10 million, 3-year grant from the John D. and Catherine T. MacArthur Foundation is bringing scholars together to help answer this question by integrating neuroscience developments into the U.S. legal system.

The project will begin by synthesizing existing research and identifying gaps. Then, studies and conferences will be funded to fill those gaps. One end goal is an educational primer for judges, differentiating evidence-based techniques from those that lack scientific validity and should not be admitted in court.

More information is available at the project's website.

Monday, December 17, 2007

Utah court: OK to forcibly medicate accused kidnapper

One of two defendants in the highly publicized Elizabeth Smart kidnapping case in Utah can be forcibly medicated in an attempt to make her competent to stand trial, the Utah Supreme Court has ruled.

Wanda Eileen Barzee has been at the Utah State Hospital for more than three years without making any progress toward competency. Claiming she is the "mother of Zion" and receives messages from God through her television, she shuns treatment and refuses medication.

Friday's ruling upheld an opinion by a district court judge last year that administering antipsychotic medication would be in Barzee's best medical interest.

A key bone of contention is the expected efficacy of antipsychotic medications. State doctors claim that antipsychotic drugs have a 70% chance of making Barzee competent. Defense medical experts counter that the odds were closer to 20%.

Under Sell v. United States, for a defendant to be forcibly medicated to restore competency, a court must find that important government interests are at stake, involuntary medication will significantly further those interests by being "substantially likely" to restore the defendant's competency, the medication is substantially unlikely to have negative side effects, and the medication is medically appropriate.

Barzee and Brian David Mitchell are awaiting trial in the kidnapping and sexual assault of then-14-year-old Elizabeth in 2002. Police say Mitchell, a self-proclaimed prophet, planned to make Elizabeth one of his wives.

The Salt Lake City Tribune and the Deseret Morning News have coverage; the high court opinion is available online here.

Postscript: Judge Judith Atherton's 2005 competency decision in
codefendant Brian David Mitchell's case, a thoughtful analysis of competency as it pertains to religiosity, is online HERE.

Georgia high court backtracks on ruling overturning sex offender residency restrictions

As you may recall from my previous blog posts, last month the Georgia Supreme Court overturned that state's residency restrictions against sex offenders. The law bans registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate.

But in a press release issued last week, the high court announced a "substitute opinion" drastically limiting the scope of the ruling. The new language limits the ruling to homeowners only, and only to the extent that residency restrictions might cause a "taking of [their] property without just and adequate compensation."

The Atlanta Journal-Constitution has the story here. The original decision in Mann v. the Georgia Department of Corrections is here.

Hat tip to How Appealing.

Cautionary notes on last week's sentencing reforms

While some are heralding last week's federal sentencing reforms as the biggest civil rights development since Brown v. Board of Education back in 1954, others are less sanguine. The excellent Sentencing Law & Policy blog summarizes two cautionary opinion pieces, one by James Oliphant of the Chicago Tribune and the other by Adam Liptak of the New York Times.

Oliphant's piece, "New drug rules won't crack many jail doors," starts out:

When the U.S. Sentencing Commission last week reduced sentences for imprisoned crack cocaine offenders -- reversing years of policy that treated crack far differently from powder cocaine -- the Justice Department and police groups bitterly criticized the action, warning of a flood of criminals rushing out onto America's streets....

But many experts say the reality is not so dramatic. Fewer than 3,000 prisoners nationwide will be immediately eligible for the relief. All have already served considerable time. Each eligible prisoner will have to petition the court for freedom -- and the Justice Department can oppose those petitions. Few offenders with violent histories are likely to be released.
Adam Liptak's column, "Whittling Away, but Leaving a Gap," begins:
There was an avalanche of sentencing news last week. The Supreme Court gave trial judges more power to show mercy, the United States Sentencing Commission gave almost 20,000 prisoners doing time on crack cocaine charges a good shot at early release, and even President Bush commuted a crack sentence.

The net effect: tinkering. The United States justice system remains, by international standards at least, exceptionally punitive. And nothing that happened last week will change that.

Top criminologists take public policy stances

In a special "gala" issue of Criminology & Public Policy, 27 of the most influential criminologists alive take policy policy stances on issues ranging from juvenile curfews and the death penalty to sex offender residency restrictions and police gang units. The goal of each invited essay was to suggest that enough empirical evidence exists on the topic to support one specific recommendation, and to provide a summary of that evidence. Unfortunately, the essays are not available online, but I'm sure that if you are interested in a topic you can Google the author and obtain a reprint.

The recommendations include:

IMPOSE AN IMMEDIATE MORATORIUM ON EXECUTIONS
JAMES R. ACKER

ABOLISH JUVENILE CURFEWS
KENNETH ADAMS

ABOLISH LIFETIME BANS FOR EX-FELONS

SHAWN D. BUSHWAY & GARY SWEETEN

ABANDON FELON DISENFRANCHISEMENT POLICIES

ROBERT D. CRUTCHFIELD

MAKE REHABILITATION CORRECTIONS' GUIDING PARADIGM

FRANCIS T. CULLEN

EXPAND THE USE OF POLICE GANG UNITS

SCOTT H. DECKER

END NATURAL LIFE SENTENCES FOR JUVENILES

JEFFREY FAGAN

MAKE POLICE OVERSIGHT INDEPENDENT AND TRANSPARENT

JACK R. GREENE

BAN THE BOX TO PROMOTE EX-OFFENDER EMPLOYMENT

JESSICA S. HENRY, JAMES B. JACOBS

TARGET JUVENILE NEEDS TO REDUCE DELINQUENCY

PETER R. JONES, BRIAN R. WYANT

COLLECT AND RELEASE DATA ON COERCIVE POLICE ACTIONS

ROBERT J. KANE

MANDATE THE ELECTRONIC RECORDING OF POLICE INTERROGATIONS

RICHARD A. LEO, KIMBERLY D. RICHMAN

IMPLEMENT AND USE COURT PERFORMANCE MEASURES

BRIAN J. OSTROM, ROGER A. HANSON

JUST SAY NO TO D.A.R.E.

DENNIS P. ROSENBAUM
(One of my personal favoritess; it's high time to abolish harmful "Just Say No" messages targeting children.)

TRANSFER THE UNIFORM CRIME REPORTING PROGRAM FROM THE FBI TO THE BUREAU OF JUSTICE STATISTICS
RICHARD ROSENFELD

USE PROBATION TO PREVENT MURDER
LAWRENCE W. SHERMAN
(This is a provocative essay on forecasting homicide.)

REVISE POLICIES MANDATING OFFENDER DNA COLLECTION

RALPH B. TAYLOR, JOHN S. GOLDKAMP, DORIS WEILAND, CLAIRISSA BREEN, R. MARIE GARCIA, LAWRENCE A. PRESLEY, BRIAN R. WYANT

ELIMINATE RESIDENCY RESTRICTIONS FOR SEX OFFENDERS
JEFFERY T. WALKER

PROTECT INDIVIDUAL PUNISHMENT DECISIONS FROM MANDATORY PENALTIES
FRANKLIN E. ZIMRING

Friday, December 14, 2007

Blanket ban on alcohol verboten, court rules

For those of you who are involved with parolees and probationers: How many times have you seen a blanket prohibition on alcohol consumption as a condition of someone's supervised release? Do you ever see the prohibition imposed on people who have no documented history of alcohol abuse, with random urinalyses to ensure compliance? I see it quite often.

Such blanket prohibitions will be a thing of the past if the courts follow the law as dictated today by the Ninth U.S. Circuit Court of Appeals.

Perhaps emboldened by the Supreme Court's dramatic rulings earlier this week on individualized sentencing (which some are calling as monumental to civil rights as was Brown v. Board of Education a half-century ago), the Ninth Circuit today extended the logic of individualized sentencing to alcohol bans.

The case of U.S. v. Betts involves white-collar criminal Marcus Betts, who accepted bribes to increase people's credit ratings while he worked for the TransUnion credit agency.

The judge imposed as a condition of his probation that he abstain from alcohol, despite acknowledging on the record that there was no evidence that Betts had a liquor problem.

Explaining its logic, the appellate court wrote:

"[There is nothing] wrong generally with supervised release conditions requiring abstention from alcohol. Many people commit crimes when they drink too much and such conditions are often necessary to protect the public and provide correctional treatment. We have upheld abstention conditions where there is some indication in the record of a problem of abuse…. But the decision has to be individualized, not a matter of policy application without regard to the individual defendant."
Those of you who read my blog regularly will recall that only three months ago, the Ninth Circuit held that parolees cannot be required to attend 12-step treatment programs. More on that ruling is here.

The Appellate Law & Practice and Sentencing Law & Policy blogs both have posts on today's ruling, which is also available online. An interesting Newsweek magazine story on the import of this week's U.S. Supreme Court's sentencing rulings is here.

Helping prisoners get disability funds

The U.S. Department of Justice's Office of Justice Programs has issued a report on correctional programs that help prisoners apply for federal disability payments so that their treatment services will not be interrupted upon their release from custody.

The report, "Helping Inmates Obtain Federal Disability Benefits," examines programs in Texas and New York state prisons and a county jail in Philadelphia. All three programs help severely ill offenders qualify and apply for federal benefits that, in turn, enable them to get necessary treatment in their local communities upon release.

The report provides practical information for mental health and medical staff in correctional settings as well as prison counselors, correctional administrators, and probation and parole officers.

It is available online.

Thursday, December 13, 2007

Exiles in the promised land

Sex offenders living as trolls under Miami bridge

The New Times of Miami has an amazing update on the exile colony of sex offenders living under the Julia Tuttle freeway in Miami (a community I blogged about back in April); there's a companion slide show that is worth checking out. The story begins like this:
Another one showed up last night. Around 10 — just before curfew — a car rolled in under the bridge and the newcomer got out with his wife. She hugged and kissed him goodbye, pulled the car out along the road, and disappeared into a sea of headlights. . . . Until last week, "Big Man" was serving a four-year sentence for cocaine possession. . . . He was looking forward to leaving prison and reuniting with his wife, until he got the news: Instead of going home, he'd be living under a bridge, a parole commission officer told him. That's because 23 years ago, when he was 19 years old, Big Man was charged with sexual assault on a minor. (He claims the victim was his girlfriend and that it was consensual.)
The story continues here. The companion slide show is here. Also see my September post on how this relates to the history of banishment in Western culture.

California Supreme Court to hear Jessica's Law challenge

In the wake of recent court rulings overturning residency restrictions for sex offenders in Georgia and in one Florida city, the California Supreme Court on Wednesday agreed to review the contentious topic as well.

I've blogged previously about this case, in which four registered sex offenders argue that it is irrational and illegal to apply residency restrictions to ex-convicts like themselves, whose sex crimes did not involve children. Three were convicted of rape and the fourth was convicted of indecent exposure.

Jessica's Law makes most urban areas off limits to sex offenders paroled from prison since the law's enactment on Nov. 7, 2006. Opponents say this is forcing ex-offenders to abandon their homes and families, and to choose between prison and homelessness.

In response to the law, about half of those covered by it have declared themselves transients, claiming either that they are homeless or that they change residences frequently. Although self-identified transients must report to their parole officers each day, it becomes harder to monitor them and to provide them with necessary treatment.

"We could potentially be making the world more dangerous rather than less dangerous," said Gerry Blasingame, a therapist and former chair of the California Coalition on Sexual Offending.

Because of the potential danger in encouraging sex offenders to disappear, prosecutors in Iowa have been lobbying for the repeal of that state's similar residency restrictions law. "Most legislators know in their hearts that the law is no good and a waste of time, but they’re afraid of the politics of it," said a spokesman for the Iowa prosecutors' association.

"It defies common sense to argue that public safety is somehow served by forcing sex offender registrants into homelessness - to sleep in cars, in parks, near schools and on the streets - disconnected from their support networks," said Ernest Galvan, a lawyer for the four men contesting the California law, in recently filed court papers.

The San Francisco Chronicle has more coverage of the case (titled E.J. on Habeas Corpus, S156933) here. More on the problem of sex offenders declaring transiency is here. The Sentencing Law & Policy blog has additional coverage and links here.

Wednesday, December 12, 2007

Pay-to-stay jails critiqued

Have you heard of pay-to-stay jails? They're quietly appearing around the country, in communities with enough affluent scofflaws to support their existence. For a fee, criminals can stay in more comfortable lockups with better food, access to cell phones, and other cushy amenities.

The current issue of the Michigan Law Review's First Impressions series focuses on this latest example of the ever-increasing disparities between the rich and the poor in the U.S. criminal justice system. The thought-provoking articles – all available online - include:

Pay-to-Stay in California Jails and the Value of Systemic Self-Embarassment by Robert Weisberg, Stanford Law School

It Could Happen to "You": Pay-to-Stay Jail Upgrades by Kim Shayo Buchanan, USC Gould School of Law

The Dirty Little Secrets about Pay-to-Stay by Laurie L. Levenson, Director of Center for Ethical Advocacy at Loyola Law School Los Angeles and Mary Gordon

Government Entrepreneurship: How COP, Direct Supervision, and a Business Plan Helped Solve Santa Ana's Crime Problems by Police Chief Paul Walters, Santa Ana, California, and Russell Davis, Jail Administrator, Santa Ana

Why the County Jail Is Often a Better Choice by Shawn Chapman Holley, private practice attorney

A Virtuous State Would Not Assign Correctional Housing Based on Ability to Pay by Bradley W. Moore, JD Candidate, University of Michigan Law School

Tuesday, December 11, 2007

Confession to prison psychiatrist not confidential

The 9th Circuit Court of Appeals has issued a ruling with implications for forensic psychology, treatment in correctional settings, group therapy, psychotherapist-patient confidentiality, and correctional ethics more broadly.

The case goes way back to 1984, when 13-year-old Christy Ann Fornoff was sexually assaulted and smothered to death in Arizona. Physical evidence and suspicious circumstances linked Donald Beaty to the crime, and he was quickly arrested.

While awaiting trial, Beaty became depressed and went on a hunger strike. He was transferred to a psychiatric unit, where he agreed to participate in an experimental, coed therapy group. At one group session, a teenage girl confronted Beaty about his offense, and he became upset. Immediately after the group session, Beaty approached the prison psychiatrist who ran the group, George O'Connor. As O'Connor later recalled the conversation, Beaty said he was not a terrible person and that he had not meant to kill Ms. Fornoff.

Time went by. Beaty went to trial. The prosecution presented physical evidence linking him to the crime, but the jury hung 10-2 (for guilty). Meanwhile, O'Connor happened to be in court on another case. During some idle chitchat, he told a guard that Beaty had confessed to him. Through the grapevine, the prosecutor quickly heard this good news, and O'Connor was compelled to testify at Beaty's second trial. Not surprisingly, the verdict this time was guilty. Beaty was sentenced to death.

At issue in the capital habeas appeal was whether Beaty's statement to the psychiatrist was properly admitted, or whether it was protected as confidential. Beaty argued that he had signed a confidentiality agreement to participate in the group therapy and that he thought his conversation with the psychiatrist was confidential.

An appellate court disagreed. The confidentiality contract only applied to statements made while the group was in session, not to a private conversation immediately thereafter. The court also disagreed with Beaty that he was coerced into treatment. (This is relevant because a coerced confession to police may be excluded from evidence if it is shown that the suspect's independent will was overborne.)

The court distinguished Beaty's case from two earlier cases in which statements made to psychiatric clinicians in custodial settings were deemed protected from disclosure.

Case of Daniel Pens

In the first of these two cases, Daniel Pens was convicted of rape in 1981 and committed to a locked treatment program at Western State Hospital in Washington. The treating therapists assured Pens that information he revealed during his mandatory treatment would remain confidential and would not be disclosed to the courts. As part of his treatment, Pens confessed to additional rapes. After three years, the clinicians wrote a report to the court detailing Pens’ self-incriminating statements and concluding that he was too dangerous to be released.

In 1989, the Ninth Circuit ruled that Pens' admissions fell squarely within the Fifth Amendment privilege against self-incrimination, and could not be used against him in court. (The case is Pens v. Bail, 902 F.2d 1465.)

Case of "D.F."

The appellate court also distinguished the Beaty case from a far more fascinating case out of Wisconsin that is worthy reading for all mental health practitioners. In 1993, 12-year-old "D.F." of Wisconsin was charged with killing her two infant cousins. She was placed in a locked institution for troubled youths. Like many such programs, the program utilized a level system in which privileges and punishments were accorded based on participation in treatment. Patients who talked to clinicians and wrote in their journals could wear their own clothes, talk to other children, and move around freely.

Four months into her treatment, during a group therapy session, D.F. admitted killing her cousins. A staff member immediately reported the confession to Child Protective Services, which in turn notified the FBI. During a subsequent investigation, treatment staff secretly funneled information to the FBI while continuing to encourage DF to discuss her crimes in therapy.

At DF's trial, the judge suppressed the statements not on the basis of the privilege against self-incrimination (as in Beaty's case), but on the grounds of psychotherapist-patient privilege. The prosecution appealed to the district court.

The district court conducted an inquiry into the treatment center's operations. The court noted that treatment staff had close working relations with police agencies and, indeed, many acted as "law enforcement surrogates" in eliciting confessions from troubled teens. Warnings about the consequences of self-incrimination were minimal to non-existent. The district court upheld the suppression of DF's confession; the 7th Circuit Court of Appeals upheld that ruling in 1995. DF's treating clinicians, in the appellate court's view, were acting in the dual roles of prosecutor and healer. (The case is U.S. v. DF, 63F.3d 671.)

Harking back to Estelle v. Smith

In its decision in DF's case, the 7th Circuit went back to the landmark U.S. Supreme Court case of Estelle v. Smith (451 U.S. 454). To refresh your memory, that Texas case involved Ernest Benjamin Smith, who was sentenced to death for the armed robbery of a grocery store in which his accomplice fatally shot the clerk. Smith had the misfortune to have his competency evaluated by state psychiatrist Dr. James P. Grigson, who later earned the infamous nickname of "Dr. Death." At Smith's sentencing hearing, Grigson testified that Smith was "going to go ahead and commit other similar or same criminal acts if given the opportunity to do so." After hearing that ominous prediction, the jury voted for death.

In Estelle, the U.S. Supreme Court held that a court-appointed psychiatrist must give Miranda warnings before questioning a prisoner. In other words, it doesn't matter that the information-gatherer is a psychiatrist rather than a police interrogator. What matters is the purpose for which the information is being collected. Dr. Grigson, although not a government officer, was acting on the state's behalf.

The court's narrow ruling in Beaty is troubling, in that it may encourage prosecutors to seek incriminating information from clinicians working in custodial settings. The ethics of such disclosures remains a cloudy issue, with correctional clinicians holding a variety of views on when they are required or permitted to divulge information to authorities. At minimum, this line of case law should remind forensic practitioners of the need to provide a careful, Miranda-like warning to people we are evaluating, describing the lack of confidentiality and how the information they provide may be used. And certainly, Dr. O'Connor's casual disclosure of Beaty's confession to a guard – which set this case in motion – seems a breach of proper conduct.

Perhaps the best treatise on this topic is John Monahan's Who is the Client? The Ethics of Psychological Intervention in the Criminal Justice System. But that was written more than a quarter of a century ago, in 1980, and drastically needs updating in light of new case law and practice and the radical expansion of both the criminal justice system and the correctional treatment industry.

The case of Beaty v. Schriro, No. 05-99013, is available at the 9th Circuit's website.

Monday, December 10, 2007

"The Scary Doodles Case"

The tale of a teenage doodler,
a disputed confession,
and a forensic psychologist

One of the most interesting disputed conviction cases in the news these days is the case of Tim Masters in Colorado, which I first blogged about back in July. If you haven't read up on it yet, it's worth checking out.

The Rocky Mountain News is pulling no punches in calling for a new trial for Masters, who was only 15 when the murder in question occurred. The News' most recent editorial, entitled "In need of a new trial: Prosecution handicapped Tim Masters' original defense," begins like this:
The worst thing you can say about a legal system is that it railroads defendants - convicts and sentences them without allowing juries to hear the full story and without investigators pursuing equally viable suspects. That's why the case involving a Colorado prisoner named Timothy Lee Masters is so important - and why it is critical that he be granted a new trial.
For purposes of this blog, the case is intriguing because of the disputed confession (see my earlier post) and also because of the central role of J. Reid Meloy, a prominent forensic psychologist. Meloy "worked hand-in-glove with prosecutors," even reviewing the arrest warrant before it was served. The News editorial comments:
Forensic psychologist Meloy's analysis, so crucial to the prosecution's theory, at times has the tone of a pulp crime thriller. Portentous but debatable conclusions are scattered throughout, such as: 'Sexual homicides are often unconscious displaced matricides'; '[the victim] also resembled his deceased mother, which is of enormous psychological significance . . .' ; and, Masters 'knows the distinction between slicing and stabbing, terms that generally would not be distinguished by the lay person.'
Indeed, it was largely on the basis of Masters' violent doodles – and Meloy's interpretation of them – that the boy was convicted, legal observers say. Prosecutors "bombarded" jurors with blown-up images of the doodles, projected onto the wall of the courtroom.

The News article continues here.

My more recent posts on this case are here and here.

The Denver Post has additional coverage of the case and an online video, "Sketchy Evidence: The Story of Tim Masters." The Pro Libertate blog has case analysis, graphics, and links. And there's even a blog devoted solely to the case, Free Tim Masters Because, which has a lengthy page devoted to the role of Dr. Meloy. See further commentary on this topic at the Witness LA blog.

Sunday, December 9, 2007

Another forensic psychology sex scandal

A psychologist in North Dakota who conducted sex offender evaluations for the state has resigned over a self-admitted child pornography compulsion. Joseph Belanger had run the state's Sexually Dangerous Individual (SDI) civil commitment program. In that capacity, he evaluated sex offenders and testified in court that they were sexually dangerous and should remain hospitalized.

It was unknown what triggered the investigation against Dr. Belanger, but Homeland Security officials recently seized his home computer, according to the Forum newspaper in Fargo, ND.

Dr. Belanger, who worked for the state hospital for more than 20 years, was reportedly a protege of Dennis Doren, a prominent psychologist for the state in sex offender civil commitment proceedings (I've mentioned Doren previously here and here).

Belanger is at least the second forensic psychologist this year to be tarnished by accusations of sexual deviancy.

In July, prominent forensic psychologist Stuart Greenberg killed himself after being arrested on suspicion of voyeurism; he had allegedly secretly videotaped a woman in his office bathroom. Greenberg was known for his expertise in child custody evaluations, but he was also a consultant for the Archdiocese of Seattle in sex abuse cases.

A commonality in these cases in that both men allegedly used modern technology to further their deviant interests - Greenberg using a concealed video camera and Belanger using the Internet.

While reporting on this news, I hasten to point out that two men out of the countless forensic psychologists in the United States certainly doesn't represent a pattern. Rather, the similar scandals cropping up in other professions suggest that such cases may be more a sign of the times than a reflection on any particular line of work.

What is relevant to the field, however, is that the revelations will likely cause scrutiny of cases in which the two men were involved as expert psychologists. This scrutiny is already occurring in Greenberg's case, with parents protesting unfavorable child custody court decisions that were based in part upon his opinions. In King County (Seattle), the presiding judge anticipated a flurry of legal challenges to cases in which Greenberg was a court-appointed evaluator. Although Greenberg's arrest would not be sufficient to reopen a case, a parent could argue bias if Greenberg's custody recommendations hinged on a parent's sexuality. I would anticipate similar challenges by civilly committed sex offenders evaluated or treated by Belanger in North Dakota.

As evidenced by the numerous venomous posts at the websites of Washington newspapers that covered the Greenberg case as well as websites devoted to parental rights in custody cases, these scandals also provide ready ammunition to critics of forensic psychology and expert witnesses more generally.

Thursday, December 6, 2007

New Report: Mentally ill in Florida's legal system

Florida's Supreme Court is tackling the massive problem of mental illness in the correctional and family court systems. In a new report, a mental health committee acknowledges that correctional facilities have become the largest providers of mental health services for the poor, and recommends ways to address this growing problem.

The report follows media exposes detailing the plight of the mentally ill trapped in Florida's legal system. Mentally ill people often end up homeless and with substance abuse problems, leading to a revolving door of incarceration for minor nuisance offenses. The report recommends reforms to link the mentally ill to services that will reduce recidivism, and to improve the handling of mentally ill individuals in the juvenile, foster care, and child protective systems.

The Council of State Governments Justice Center in New York chose Florida as one of seven states to address the national crisis of the mentally ill in the legal system. The 170-page report is supposed to be the first step in a major overhaul that will include additional training for members of the judiciary. The report's massive title gives a hint of the massiveness of the project: "Mental Health: Transforming Florida's Mental Health System: Constructing a Comprehensive and Competent Criminal Justice/Mental Health/Substance Abuse Treatment System: Strategies for Planning, Leadership, Financing, and Service Development."

The report is available online. The National Institute of Corrections has a number of related documents online on the crisis of mental illness and substance abuse in the U.S. criminal and family court systems.

Sex panic going hi-tech

When someone emailed me yesterday about Offendar, I thought it was a joke. Or maybe a typo. But, no. Some greedy techno-entrepreneurs have found another way (they hope) to capitalize on the current sex panic in the United States.

What is Offendar? It's a portable "personal threat detection system" that sounds an alarm whenever someone nearby is wearing an electronic ankle bracelet.

It's not in use yet. But a rabidly tough-on-crime lawmaker in Ohio invited the maker to demonstrate it yesterday before state lawmakers. Offendar LLC is hoping that the Ohio state senator Tim Grendell will help pass legislation requiring that the technology for the device be inserted into existing ankle bracelets.

I'm guessing that would be necessary because so many people other than sex offenders are required to wear ankle bracelets these days. It's a common method for courts to keep track of people out on bail for misdemeanor offenses such as drunk driving. Here in Contra Costa County, California, just about every teenager released from juvenile hall pending further court action has a bracelet secured to his or her ankle.

David Singleton, executive director of the Ohio Justice & Policy Center, said the idea plays on public fears while penalizing people who have already served time in prison for their crimes. "What are we trying to do, make it impossible for people to get on their feet again and be productive citizens?" Singleton said.

A spokeswoman for the Cleveland Rape Crisis Center concurred, pointing out that 9 in 10 sex crimes involve family members or other intimates of the victim. "This just plays on the great … stranger danger myth that’s not true," said Lindsay Fello-Sharpe.

If the hand-held alarm takes off, Offendar LLC hopes to expand the concept to "permanent and mobile perimeter alerts" around schools, zoos, shopping malls, carnivals, fairs, and sports events.

Offendar principal Jerry Pignolet said the device is meant to enable people to leave the presence of a sex offender. "It gives you an opportunity to gather your family, get in the car and lock the doors."

The current wave of vigilante attacks against convicted sex offenders makes me doubt that everyone would just duck and run.

Picture this: Some guy who's just had a fight with his girlfriend fuels up on alcohol and decides to take out his rage and hostility on the nearest bogeyman sex offender. When police find him standing over the dead body with a bloody bat, they tell him the bad news. The dead kid had a conviction for statutory rape because when he was 18 he had dated a girl who was 16. Oops!

Ohio newspapers, including the Cleveland Plain Dealer and the Columbus Dispatch, are covering the story. In the blogosphere, Sentencing Law & Policy has more.

Tuesday, December 4, 2007

Detection of feigned mental retardation

The Clinical Neuropsychologist has a new article on the problems in detecting feigned mental retardation. That issue is getting more attention these days in the wake of the U.S. Supreme Court ruling in Atkins v. Virginia, outlawing the execution of mentally retarded defendants. The British Psychological Society's Research Digest blog has more on the study, which is entitled "Identification of feigned mental retardation using the new generation of malingering detection instruments: Preliminary findings."

Top criminal justice stories today

Felony murder, juvenile recidivism,
racist sentencing, and prison evangelism

Wow! There is just so much to blog about today, and so little time!

Liptak on the felony murder rule

My favorite today is Adam Liptak's editorial on felony murder. As Liptak points out, only the United States still invokes this archaic construct in which someone can be punished equally for loaning their car or for committing the actual murder in which the car was used. Realizing the injustice of punishing someone for something that someone else did, a few brave states, including Hawaii, Kentucky and Michigan, have abolished the rule. Others continue to routinely use it, despite its unjust effects and its slim-to-nonexistent deterrent value.

Perhaps the New York Times editorial resonated for me today in particular because I was just involved in a case in which the prosecution is using the felony murder rule to seek a life sentence against a 15-year-old boy. The boy, who had no arrest history and was unarmed, was at the scene when two older youths committed a robbery in which a clerk was killed.

Liptak's editorial, "American Exception: Serving Life for Providing Car to Killers," is online here. Hat tip to the ever-helpful Jane for alerting me to it first.

Juveniles: Go to prison, become violent

Runner-up today is the report by the Centers for Disease Control and Prevention on juvenile recidivism. Transferring juveniles to the adult system and sending them to adult prisons makes them more criminal and more violent, the expert panel concluded.

No, duh! Another government report concluding the obvious. But I'm hoping that the CDC imprimatur leads to change. The report goes hand in hand with a recent report by the Campaign for Youth Justice finding that youths detained in adult jails are more likely to be sexually victimized and to commit suicide. The two reports come as the U.S. Senate prepares to consider reauthorization of the Juvenile Justice and Delinquency Prevention Act.

The Washington Post has full coverage here. The Washington State Institute for Public Policy has additional research findings on juvenile recidivism. No surprise – for juveniles, TREATMENT WORKS. And incarceration doesn't. Listen up, legislators!

Loss for prison evangelism

Also in today's news, a federal appeals court has struck down an evangelical prison program that had milked the government of Iowa for $1.5 million. The InnerChange program, run by Chuck Colson's Prison Fellowship Ministries, afforded better housing and expedited access to parole resources to participating prisoners. Prisoners of other faiths were demeaned as "unsaved," "lost," "pagan" and "sinful.” The 8th U.S. Circuit Court of Appeals ruled that government support for the program violated the Constitutionally required separation of church and state.

Coverage is in the San Francisco Chronicle and at the Real Cost of Prisons blog. See also Slate magazine's 2000 story on the program's leader, Charles Colson: "How a Watergate crook became America's greatest Christian conservative."

Racial disparities in sentencing

And yet another study, this one on racial disparities in sentencing, by the Justice Policy Institute. Once again, the San Francisco Chronicle has a fine report, focusing on the enormous racial discrepancies in that fair city. And, once again, the reports are in. So, now let's get on to the public policy changes.

Monday, December 3, 2007

New police manual on sting operations

The U.S. Department of Justice's Office of Community Oriented Policing Services (COPS) publishes a series of empirically based manuals for police. The latest, Sting Operations, describes the pros and cons of such undercover operations, and explains the various deceptive techniques and how they can be adapted to different types of crimes.

The manual's conclusion:

"Sting operations can be expensive, are demanding on personnel, and generally offer limited relief from recurring crime and disorder problems. This is not to say that they should never be used. They may be beneficial when used in concert with other police responses known to provide long-term solutions to the problem, such as a tool to collect information that will help in mounting other preventative operations. Clearly, they do provide some attractive benefits to police departments, particularly by facilitating investigation, increasing arrests, and fostering a cooperative spirit between prosecutors and police, all of which result in favorable publicity. However, you need to assess these benefits against the negative ethical and legal problems associated with sting operations, especially the finding that in some cases they increase crime, and in the long term, with some exceptions, generally do not reduce it."
The 72-page manual is available online.

Sunday, December 2, 2007

Hot off the press: New child custody text

The Art and Science of Child Custody Evaluations

by Jonathan W. Gould and David A. Martindale

Back in the dark ages, a psychologist hired by one parent or the other in a child custody case could waltz into court and give a subjective clinical opinion about which parent was more fit and what would be in the children's best interests. Thankfully, that is no longer the case. Such a psychologist might be legally barred due to inadequate training or experience, or might face legal action by the other parent. Back in 1998 (with a revised edition published last year), Jonathan Gould wrote a really helpful manual called Conducting Scientifically Crafted Child Custody Evaluations. The guide was aimed at helping custody evaluators avoid the many pitfalls and landmines in this litigious subfield of forensic psychology. Now, he has teamed up with fellow expert David A. Martindale to bring us even more of the latest information and advice in this rapidly evolving area.

The authors focus both on the law and on the clinical practicalities. Clear and well-written chapters explore ethics and bias, child interviewing, child development research, assessing parents, child sexual abuse allegations, domestic violence, and child alienation. The authors carefully explain the primary legal standard in child custody work, "The Best Interests of the Child" standard. Of special use to the practitioner, the appendix contains sample letters and statements of understanding, all with permission to freely photocopy.

The overall messages here are ones worth repeating: Know the law, know the science, remain unbiased, and be humble. This updated reference book will be useful not only to child custody evaluators but also to attorneys and to students of forensic psychology.

Saturday, December 1, 2007

Study: Sentencing Children to Die in Prison

Test your knowledge:

1. How many nations sentence children to life in prison?

2. What states have the most people serving life for crimes committed before they reached adulthood?

3. What is the minimum age at which a child can be sentenced to life without parole?

4. Which children are most likely to receive life sentences?

ANSWERS ARE BELOW.





ANSWERS:

1. Just two - the United States and Israel. But Israel is in far distant second place, with only seven juveniles serving life as compared with 2,387 in the United States.


2. Pennsylvania is in first place, with 433; California is in second place, with 227.

3. Of the 44 states that permit life without parole for juveniles, 13 have no minimum age, and one sets the minimum at age 8.

4. More than half are first-time offenders. African Americans are 10 times more likely than white juveniles to be sentenced to life without parole. In California, the disparity is twice that – a 20:1 ratio.


These are some of the data from a new study, "Sentencing Children to Die in Prison," by the University of San Francisco's Center for Law and Global Justice. The study was highlighted in the Los Angeles Times on Nov. 19.

The racial disparity is very apparent to me in the cases that I've been involved in. Even when arrest rates are controlled, African American boys are far more likely than anyone else to be sentenced as adults. This is illustrated in the following graph, from California's Center on Crime and Juvenile Justice:


Yesterday's Ledger Dispatch (Amador County, California) has a long article on efforts in many states to undo the knee-jerk tough-on-juveniles statutes of the past decade. The article, "Prosecuting kids as adults: Some say laws too harsh, states taking second look," is available online. California, which you'll recall from the above quiz is #2 in the nation in locking up kids for life, is one of the states with reform legislation pending. The California Juvenile Life Without Parole Reform Act (SB 999) would allow people sentenced for juvenile crimes to apply for parole after serving 25 years. The measure is opposed by police and prosecutor associations.

California also has a pending challenge to the law as cruel and unusual punishment, barred by the Eighth Amendment to the U.S. Constitution. Antonio Nunez was 14 years old when he accepted a ride home from a 27-year-old man he had met at a party. On the way, the adult kidnapped another man. Although no one was injured in the 2003 incident, Nunez was convicted of kidnapping and attempted murder and is serving life without parole.

Juvies is a recent film chronicling the lives of a group of 12 California youngsters prosecuted as adults and sent to adult prisons.

 
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