Monday, May 30, 2011

Should social workers do juvenile competency evaluations?


California Judicial Council soliciting input through June 20 on forensic qualifications

Photo credit: Richard Ross
As many of you may know, California just enacted a cutting-edge law (W&I 709) requiring that developmental immaturity must be considered in determining a juvenile's competency to stand trial. Now, the state's Judicial Council is tasked with developing new Rules of Court (5.645) to help implement the law, including guidelines about who qualifies as an expert in juvenile competency proceedings.

The Council has issued a specific call for comments on whether the court should expand the list of accepted experts from psychologists and psychiatrists only, to include other professionals such as social workers.

The deadline to submit a written comment is June 20. Comments may be submitted via email, mail or fax.(Be sure to follow the instructions, available HERE.)

Currently, five California superior courts have adopted protocols regarding juvenile competency matters (available HERE). The Superior Courts of San Diego and Sacramento counties require the appointment of a psychologist or psychiatrist, while San Francisco County appoints a psychologist, and the Los Angeles and Santa Clara courts use an expert panel.

My thoughts

My concern with expanding the eligible professions is that, although there are many fine social workers in the field, their education and training does not prepare them to perform state-of-the-science assessments in this complex area. Social work programs do not provide the education and training in psychometric testing, statistics or differential diagnosis that is routine in psychology graduate programs. As I wrote in my formal comment to the Judicial Council:

Often, competency becomes an issue with children due to complex constellations of underlying deficits, such as neurological insults, neurodevelopmental impairments, psychiatric disturbances, intellectual or other cognitive limitations, and learning disabilities. In such cases, ferreting out what is going on requires the proper selection, administration, and interpretation of an ever-changing array of psychological tests and measures….

Because social work programs do not offer the extensive training in differential diagnosis that is standard in psychology and psychiatry training programs, social workers as a rule are not equipped to adequately sort through complex differential diagnostic issues and assess their functional impact on a juvenile’s competency to stand trial.

The other aspect of the proposal about which I expressed reservations was section (v), which would require evaluators to "be familiar with … treatment, training and programs for the attainment of competency available to children and adolescents in California."

In my opinion, this goes beyond the bounds of a typical forensic psychology evaluation, and may lead to unintended negative consequences. As I wrote to the Council:
In practice, this could require an evaluator to take on the onerous burden of ferreting out the available services in each jurisdiction in which he or she practices. The task of locating appropriate services for incompetent minors properly belongs to local probation officers, child welfare workers, regional centers, and others, not forensic evaluators….
Well-qualified evaluators are already reluctant to conduct court-ordered evaluations due to the pittance that most counties pay. Mandating additional burdens that do not exist for other types of forensic work could inadvertently contribute to poor practice by leaving only shoddy "drive-by" evaluators willing to take on these complex and time-consuming cases.

I encourage interested professionals to submit comments right away, as the deadline is looming. In the near future, the Council plans to seek public comment on other aspects of this new law, and I will try to provide you with advance notice on this blog.

Thursday, May 26, 2011

PCL-R inventor wringing his hands over forensic misuse

The first part of NPR's series on the psychopathy industry aired today and the transcript is now online (HERE), along with my sidebar essay on the cultural history of psychopathy (HERE). Most fascinating to me is recent efforts by Robert Hare, inventor of the popular Psychopathy Checklist-Revised (PCL-R), to distance himself from growing evidence of its misuse in forensic contexts:

Robert Dixon Jr.,
featured in the NPR story
While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab.

"I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society," Hare says. "It shouldn't work that way."

In fact, Hare says, he is so disturbed by some of what he has seen as he has traveled through America training psychologists in use of the PCL-R, that he sometimes has trouble focusing on the way his test could be affecting people's lives.

"I think about this periodically, and I probably try to suppress it," Hare says. "I do disassociate myself from it. I mean, if I thought about every potential use or misuse of the instrument, I probably wouldn't sleep at all."

"Alarming world of globe-trotting experts"

Hare goes even further in a series of interviews with journalist Jon Ronson, author of the new book, The Psychopath Test. Over late-night drinks at hotel bars, he tells the author that he is especially chagrined at the PCL-R’s use by poorly trained and biased evaluators in Sexually Violent Predator (SVP) cases in the United States:
“ ‘I tried to train some of the people who administer it. They were sitting around, twiddling their thumbs, rolling their eyes, doodling, cutting their fingernails – these were people who were going to use it.’

“A Coalinga psychiatrist, Michael Freer, told the Los Angeles Times in 2007 that more than a third of Coalinga ‘individuals’ (as the inmates there are called) had been misdiagnosed as violent predators and would in fact pose no threat to the public if released. ‘They did their time, and suddenly they are picked up again and shipped off to a state hospital for essentially an indeterminate period of time,’ Freer said. ‘To get out they have to demonstrate that they are no longer a risk, which can be a very high standard. So, yeah, they do have grounds to be very upset.’

“In the executive bar, Bob Hare continued. He told me of an alarming world of globe-trotting experts, forensic psychologists, criminal profilers, traveling the planet armed with nothing much more than a Certificate of Attendance, just like the one I had. These people might have influence inside parole hearings, death penalty hearings, serial-killer incident rooms, and on and on. I think he saw his checklist as something pure – innocent as only science can be – but the humans who administered it as masses of weird prejudices and crazy dispositions.”

If Hare’s conscience is really bothering him, he could do more than try to distance himself from miscarriages of justice in interviews with journalists after the fact. He could stop training the legions of government SVP evaluators in the United States, and/or issue a policy statement about the misuse of his instrument in court.

Of course, that would mean a significant loss of revenue. Even Ronson, the author of The Psychopath Test, had to pay 400 pounds (media discount) to gain access to Hare at a 3-day PCL-R training course. And that didn’t include the cost of the 30-page manual, another 361 pounds.



My review of The Psychopath Test at Amazon:

The power to label is intoxicating. That’s what Jon Ronson found after taking a 3-day training that gave him license to diagnose people as psychopaths. Armed with a 40-item checklist, the journalist went gallivanting around the globe, sniffing out prospective psychopaths from convicted murderers to corporate job-slashers and Haitian war criminals. Ronson’s chronicle of his two-year quest for the elusive psychopath is at times whimsical, sometimes laugh-out-loud funny, and always riveting.
The review continues HERE. (As always, if you enjoy it, please click “yes.”)

Wednesday, May 25, 2011

NPR series on psychopathy in court

This Thursday and Friday, NPR is airing a 2-part series about the controversial use of psychopathy in court.

In Part I on All Things Considered, psychology and science reporter Alix Spiegel shows the profound negative consequences of psychopathy on the lives of those so designated. She profiles a California prisoner whose friends and family do not believe he is a psychopath, but who will likely never win parole due to that label.

Part II (on Friday) examines the history of the Psychopathy Checklist (PCL-R) and explores how it became so entrenched in the criminal justice system. Dan Murrie’s research questioning the reliability of the PCL in adversarial contexts is highlighted. Robert Hare also expresses concerns about the way his tool is being used in court, and the corrupting influences of the adversarial system.

The show will be complemented by an online debate, “Does the PCL-R test have value in the criminal justice system?” I am one of the featured experts on the panel, so I hope some of you will visit the website; I will provide a link just as soon as it goes live.

For those of you who would rather tune in once, the show is also airing as a single piece on Friday on the radio program This American Life, and you will be able to download the podcast there as well.


Part I of the 2-part series is HERE; the online debate is HERE.

Steffan's Alerts #5: Miranda warnings, child custody, and more

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


Marije Stoltenborgh and colleagues, in a new issue of Child Maltreatment, report the prevalence of childhood sexual abuse based on over 9 million subjects extracted from 217 publications from various countries.


Using hypothetical cases, Sanford Braver and colleagues examined judgments of various custody arrangements by jury-eligible citizens in Arizona. Reporting their findings in Psychology, Public Policy, and Law, the authors suggest that a significant gap exists between the judgments of the public and what occurs in the family law system.


In the same issue of Psychology, Public Policy, and Law, Richard Rogers and colleagues continue their research on defendants’ comprehension of Miranda warnings. Based on analyses of 416 pretrial defendants’ understanding of current Miranda terminology, the authors offer recommendations to simplify Miranda phrases so that persons with academic and cognitive limitations may more easily understand their rights at the time of interrogation.


Robin Wilson and colleagues examine the accuracy of four methods for assessing pedophilia and appraising risk of recidivism among a sample of 130 child sexual abusers. They report their findings in a new issue of Sexual Abuse: A Journal of Research and Treatment.


In a new issue of Child and Youth Services Review, Rebecca Yazzie analyzes the types of treatment programs available in the United States through a sample of 3,163 juvenile facilities. Compared to public facilities, private facilities appeared better equipped, with more mental health staff and treatment programs. Facilities that offer family counseling reported a lower incidence of suicide.

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

Monday, May 23, 2011

California prisons 'cruel and unusual,' U.S. high court rules

In a historic decision, the Supreme Court of the United States has ruled that prison conditions in California are so bad that they violate the U.S. Constitution's ban on cruel and unusual punishment. Opining that the prison system produces "needless suffering and death" through its failure to deliver minimal medical and mental health care to serioiusly ill prisoners, the court ordered California to cut its massive prison population by more than 30,000 prisoners (still 137.5 percent over capacity) within the next two years. Rather than releasing prisoners outright, the state can ship them to other states or keep them in county jails. As Adam Liptak of the New York Times reports:


The majority opinion included photographs of inmates crowded into open gymnasium-style rooms and what Justice Kennedy described as 'telephone-booth-sized cages without toilets' used to house suicidal inmates. Suicide rates in the state's prisons, Justice Kennedy wrote, have been 80 percent higher than the national average. A lower court in the case said it was 'an uncontested fact' that 'an inmate in one of California’s prisons needlessly dies every six or seven days due to constitutional deficiencies.'

The court's ruling in Brown v. Plata is HERE.

Sunday, May 22, 2011

Wallowa Lake diagnostic training

Sculpture on Main Street of Joseph, Oregon
with Eagle Cap Wilderness Area in background
(K Franklin)


On the day that the world didn't end, I found it fitting to be literally at the end of the road, giving a training on controversies in psychiatric diagnosis. The setting was Oregon’s picturesque Wallowa Lake, where for 26 years the Eastern Oregon Psychological Association has sponsored an annual retreat.


The mental health professionals at the retreat were a bright and independent bunch whose practices take them across scenic mountainous terrain to far-flung rural communities, Indian reservations, jails and psychiatric facilities in eastern Oregon, Washington and Idaho.


Since Oregon has avoided the Sexually Violent Predator quagmire, the practitioners – as well as the psychologists from Eastern Oregon University in La Grande in attendance -- were both amused and appalled to learn about the pseudoscientific constructs of hebephilia and paraphilic coercive disorder for which the sex offender industry is lobbying. Other controversial diagnoses and proposed diagnoses covered in the daylong workshop included:
  • Posttraumatic Stress Disorder
  • Antisocial Personality Disorder and Psychopathy
  • Parental Alienation Syndrome
  • Attenuated Psychosis Syndrome
  • Mild Neurocognitive Disorder
  • Disruptive Mood Dysregulation Disorder
  • Premenstrual Dysphoric Disorder
  • Traumatic Grief Disorder
  • Gambling Disorder
Wallowa River as seen from Chief Joseph
Trail (K Franklin)
If you ever get a chance to attend this annual retreat, which is not well advertised but always takes place the weekend before Memorial Day Weekend, I recommend it highly. Not only is the crowd an enjoyable and intellectual one, but the setting is amazing. It's not for no reason that the Nez Perce consider sacred this valley butting up against the mountains of the Eagle Cap Wilderness Area.

The legendary Chief Joseph is buried on a glacial moraine overlooking the lake. The town named in his honor, Joseph, was a dying old ranching and mining community when it was discovered by artists who have reinvigorated the main drag, opening shuttered storefronts and installing amazing sculptures on every corner. Summer vacationers can now rub shoulders with cowboys and Indians in gourmet restaurants featuring local micro-brews and wines.

It's not an easy place to get to (one must catch a puddle jumper to Walla Walla, Washington or Pendleton, Oregon and then drive for several hours), but its breathtaking beauty and unique character make it well worth a visit.

Special thanks to David Starr, Dwight Mowry, Marianne Weaver, Terry Templeman, Charles Lyons, and Stephen and Beth Condon for all of your work and your kindness in arranging and facilitating this event.

Wednesday, May 18, 2011

The curious story of 'a reasonable degree of professional certainty'

I recently had a strange experience: An opposing attorney made a motion to exclude my report in a legal case, because I had not written that I held my expressed opinions "to a reasonable degree of psychological certainty." The attorney who had retained me was forced to scramble to obtain a written declaration from me, stating that I did indeed hold my opinions to this level of certitude. I typically do not include this magic phrase in reports, finding it rather obtuse and, frankly, pompous-sounding. So, when my colleague Dr. Worthen expressed knowledge about the phrase, I prevailed upon him to write this guest post. 

Guest post by Mark D. Worthen, Psy.D.*

Expert witnesses who testify based on their medical, psychological, or other scientific training and expertise, are often asked to express their opinions "to a reasonable degree of medical (or psychological or scientific) certainty." But what does this phrase mean and why is it used in legal proceedings?

Before exploring what the phrase means, let's first examine why the phrase is used in courts of law. As it turns out, the "reasonable degree of medical certainty" phrase developed almost by accident and has no clear rationale for its almost universal use. After conducting exhaustive research, law professor Jeff L. Lewin traces the origins of the phrase to Chicago, Illinois sometime between 1915 and 1930 [1]. Professor Lewin notes:


While the phrase was generated by the efforts of Illinois attorneys to comply with legal doctrine, litigators in other states adopted this curious phrase through unreflective imitation of models provided in a best-selling manual on trial technique. The phrase was then incorporated into legal doctrine through the judiciary's uncritical acceptance of this attorney usage. The judicial response to the phrase thus exemplifies the generation of legal rules by chance instead of by deliberate judicial choice.

In addition to lacking a clear rationale for its usage, the "reasonable degree of medical certainty" phrase also lacks a consistent definition.

Many professionals who use the phrase in their testimony have their own understandings of the phrase's meaning. For example, some assume that the phrase means that there is a preponderance of the evidence in support of their opinion, or that their opinion is "more likely than not" to be correct. Other professionals require more evidence: They assume that the phrase means that they possess "clear and convincing" evidence for their opinion or even that their opinion is accurate "beyond a reasonable doubt." On the other hand, most testifying experts probably do not have a pre-determined definition for the phrase and utter it simply because they know it is expected.

Although the phrase is not routinely used in the practice of medicine, psychology, or other scientific disciplines (have you ever seen a journal article that concluded, "To a reasonable degree of psychological certainty" we found that X caused Y?), textbooks written to provide guidance to professionals who testify in legal proceedings have offered various definitions. For example, the authors of Effective Medical Testifying: A Handbook for Physicians assert that the phrase means "more likely than not", i.e., 51% probability or more.

Black's Law Dictionary defines the phrase similarly: “A standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought.”

However, courts have not always agreed with this definition. For example, the Superior Court of Pennsylvania in Griffen v. University of Pittsburgh ruled that a doctor who indicated that there was a 51% chance that a certain action caused an injury did not provide a sufficient basis for testifying to a reasonable degree of medical certainty. In declaring that 51% certainty was not certainty for the purposes of the law, the Court did not indicate what percentage of certainty is required.

In other cases, it seems that the courts don't care how confident an expert may be about his or her opinion. What matters is that they use the "magic phrase" during their testimony. For example, in a Missouri case:


... a medical doctor testified that he was ninety percent certain as to the causality of a condition. See Bertram v. Wunning, 385 S.W.2d 803, 807 (Mo. Ct. App. 1965), appeal after remand, 417 S.W.2d 120 (Mo. Ct. App. 1967). However, despite giving this high probability, he later retreated when asked to testify as to causation of the condition with “reasonable medical certainty.” In the end, notwithstanding the strong and “practically certain” testimony of the doctor, the Missouri court found the testimony to be insufficient because it lacked the “reasonable certainty” stamp of approval. [2]
Frustration with the inexactness of the phrase has led some to call for a clear-cut, agreed-upon definition.

The American Law Institute (ALI) declared, in its Restatement (Third) of Torts: Liability for Physical and Emotional Harm (§ 28, Comment e, 2010), that the phrase should be specifically defined to mean that an expert's opinion is "more likely than not" accurate. The ALI reasoned that the standard for "reasonable degree of medical certainty" should not exceed the standard of proof considered by juries in tort cases, i.e., a preponderance of the evidence.

Attorneys James M. Beck and Mark Herrmann argue that the ALI standard "dumbs down" expert witness testimony and that the reasons for the proposed changes are faulty in many respects. They argue that the use of "reasonable medical certainty" should be retained and that its meaning should come from the standards for decision-making commonly used in the expert's profession.

Attorney Nathan Schachtman also argues for continued use of the phrase:


Surely, however, the phrase is not semantically empty. “Certainty” has clear epistemic connotations and implications for the witness’s opinion, both in terms of his own state of mind, and in terms of the empirical support the witness has for his opinion in the form of reasonably relied upon data, and sound inferences to a reliable conclusion. Subjectively, the witness who utters the phrase acknowledges that he is not speculating and that he believes that his opinion satisfies professional standards for claims of knowledge. A witness who qualifies his opinion with these “magic words” communicates his willingness to put his professional reputation on the line, and to defend the opinion before his peers. Objectively, the phrase conveys the notion of reliable knowledge. To be sure, human beings may not enjoy “certainty” in their knowledge of empirical propositions, but the “reasonable” qualifier makes the entire phrase meaningful and important.
While the debate over the definition of the phrase and whether or not it should be used at all will no doubt continue, individual experts might rightly ask, "Well, what should I do if asked to give an opinion to a reasonable degree of professional certainty?"

Here are some suggestions:

1. Ask the attorney you're working with if he or she plans to use the phrase in his or her direct examination of you. If so, ensure that each of you understand what you mean by the phrase, so that you'll be ready in the event that opposing counsel or the court asks you to define what you mean by "reasonable professional certainty." It's unlikely that you will be asked to define the phrase but it's better to be prepared with an answer than to stumble and mumble.

2. Make sure that your definition comports with relevant case law in your jurisdiction. For example, in Pennsyvania, you would not want to say, "It means that it's more likely than not" (see above).

3. In terms of how to define the phrase, consider how your profession determines "reasonable certainty." For example, when do you consider an opinion certain enough to proceed with a given treatment (medicine or psychology) or to proceed with a certain construction plan (architecture or engineering)?

4. If you give a numerical representation of your confidence in your opinion, a savvy attorney might challenge you on your ability to determine your own level of confidence with accuracy, citing research on the overconfidence effect. Your best bet is to be familiar with this research and to err on the side of underestimating your confidence.

5. Better yet, avoid numerical representations of confidence and focus on the evidence for your opinion, rather than your confidence in your opinion. Think about it this way: Are jurors or judges more likely to be persuaded by explanation #1 or #2:
  • Explanation #1: " 'Reasonable degree of psychological certainty' means that I am 75% sure of my opinion." 
  • Explanation #2: " 'Reasonable degree of psychological certainty' means that I found clear and convincing evidence for my opinion."

6. Focusing on the evidence for your opinion is an important distinction because it redirects the trier of fact to the strenth of your argument, namely, the scientific methods and research evidence for your conclusions.

FOOTNOTES
 
1. The Genesis and Evolution of Legal Uncertainity About "Reasonable Medical Certainty," Maryland Law Review, 57, pp. 380-504, 1998.

2. From An Enigmatic Degree of Medical Certainty by Nelson Abbott and Landon Magnusson.

*Guest author Mark D. Worthen, Psy.D. is a clinical and forensic psychologist in Asheville, North Carolina. Visit him on the web at DrWorthen.net.

Saturday, May 14, 2011

Unusual saga: From prison warden to anti-execution activist

Ex-warden of hardscrabble San Quentin to direct abolitionist Death Penalty Focus
Jeanne Woodford is joining Death Penalty Focus, a nonprofit group that works to abolish the death penalty. She brings to the job her experience as the warden of San Quentin State Prison in the San Francisco Bay Area, where she oversaw four executions. (Photo credit: David Butow / Redux)
As the clock ticked past midnight and the death chamber phone refused to ring, San Quentin State Prison Warden Jeanne Woodford would calmly signal the executioners to inject a lethal dose of chemicals into the condemned man's veins.

Reared in a Roman Catholic family, she grew up believing that only God had the right to take a life. But four times in her 30-year career in California corrections, the soft-spoken mother of five carried out executions of notorious killers, remorseful and unrepentant alike.

Woodford resigned as director of the California Department of Corrections and Rehabilitation four years ago, dismayed over state authorities clinging to policies such as the death penalty that she had concluded are wasteful, discriminatory and fail to make the public safer.

Now, as the state tries to restart the execution machinery after a five-year legal hiatus, Woodford has crossed to the other side of the contentious debate over capital punishment. On Thursday, the abolitionist nonprofit Death Penalty Focus announced Woodford's appointment as executive director, a new role that will see her standing on the other side of the walls of San Quentin should any of the 713 death row inmates meet his or her end at the hands of the state.

"I never was in favor of the death penalty, but my experience at San Quentin allowed me to see it from all points of view. I had a duty to carry out, and I tried to do it with professionalism," Woodford, 56, said in explaining how she had to put her personal abhorrence of execution aside to do her job. "The death penalty serves no one. It doesn't serve the victims. It doesn't serve prevention. It's truly all about retribution."

Woodford says she sees an opportunity to get rid of the death penalty in the current quest for budgetary restraint. If the public can be educated about the true costs of capital punishment - at least $200 million a year, she says - as well as its potential for irreversible error, support for the ultimate penalty would wither, Woodford predicts. It is that prospect that has lured her from a brief retirement to the post with Death Penalty Focus from which she will lobby against the policy she once imposed.
Reform proposals ignored
After 26 years at San Quentin, Woodford was tapped by Gov. Arnold Schwarzenegger to serve as corrections director in 2004, a job she initially hoped would allow her to reform the system from inside. She wanted to close the revolving door of parole violators flooding the prisons for three-month terms, enough to compound overcrowding and soak up medical care but too short to get into rehabilitative programs.

"It was an incredibly expensive bus ride to nowhere," she said of the vicious circle of petty offenses sending parolees back inside to reconnect with hardened criminals.

Her proposals for locating inmates in prisons closest to where their families lived went unheeded. Direly needed sentencing reform never happened, although, she says, the Legislature and governor are now drafting programs to cut the 70% recidivism rate, finally motivated by the need to trim the corrections budget.

"There are a lot of hard-working people in the corrections system who take the blame for so much that is out of their control," Woodford says of the frustration that led to her resignation. "They don't make the sentencing laws, but they are expected to carry them out."
The Los Angeles Times profile, by reporter Carol Williams, continues HERE.

Friday, May 13, 2011

Three Strikes and Civil Rights

Guest post by Bill Boyarsky*

The racism within the police-court-prison system is one of America’s most neglected evils, as is the impact it has on the poor African-American and Latino communities that are home for so many released convicts.

I’m wondering if I’ve already lost some of my readers. Who cares about criminals? Some of the journalists I met last week said they get the same reaction from their editors.


I joined them at a symposium sponsored by New York’s John Jay College of Criminal Justice’s Center on Media, Crime and Justice designed to encourage better reporting of this neglected field…. My fellow attendees were journalists working for newspapers, radio stations and online operations. Some were staff reporters, others freelancers….

The main topic was how to report the long and repetitive controversy over California’s three-strikes law, a draconian statute approved by the voters in 1994 after the horrible murder of 12-year-old Polly Klass by an ex-convict. The killer had been released from prison after serving eight years of a 16-year sentence for a series of armed robberies. Previously, he served six years in prison after he attempted a rape, brutally assaulted a woman in the course of a burglary, and tried to kidnap another woman at gunpoint.

The solution to this was based on a sports analogy, except, in this case, the third strike means you’re in—in prison for a long time and often for a small offense. The law imposes a mandatory sentence of 25 years to life for anyone convicted of a felony if that person has two previous felony convictions. The third-strikes sentence has been imposed for nonviolent offenses—such as stealing videos, golf clubs or even a pizza—permitted by the law to be raised to felony status.

The discussions ranged far beyond three-strikes. Through all the conversations, an underlying issue, to me, was racism.

Racism has always been a powerful force in the web of police, prosecutors, judges, prison guards and wardens who make up the criminal justice system.

But beginning in the 1980s the war on drugs made it worse, with repeated raids on poor African-American and Latino neighborhoods while the police and prosecutors generally ignored economically better-off whites using cocaine in the safety of their homes.

Connie Rice, a civil rights attorney who heads the Advancement Project, has long fought for racial justice by police, prosecutors and the courts, as well as in the schools and other institutions. She told the journalists the war on drugs was based on crime suppression in poor, minority areas. Police stop young men and arrest them when they suspect drug possession. Arrests add up over the years to a third strike.

The three-strikes prosecutions, said Erwin Chemerinsky, dean of the University of California Irvine School of Law, focus disproportionately on African-Americans and Latinos. Thirty-seven percent of such inmates are African-Americans and 33 percent are Latinos. These statistics are in line with national figures showing that African-Americans and Latinos outnumber whites in prison by a margin of almost 2-to-1.

Veteran activist Tom Hayden, an expert on gangs, talked about the lack of jobs confronting convicts when they leave prison. A one-striker, returned to the old neighborhood unemployed and without prospects, is just a crime away from being a two-striker and then committing the third. “Deindustrialization has eliminated jobs people took after prison,” he said.

The journalists’ challenge, said Connie Rice, is “to connect the dots,” to put all these elements into a coherent, compelling story.

That’s a big challenge, and journalism may not be up to it. At the end of the meeting, the hard facts of life in today’s media climate intruded. One reporter said her editors weren’t interested in the subject because they didn’t think the readers cared. Another was a court reporter who wanted to explore how the system works on the streets. But her beat includes two courthouses, separated by many miles in a sprawling county. I doubt whether she has much time for prowling the streets. A third reporter talked about the strains imposed on the remaining members of a staff hit by layoffs.

Add to those obstacles Internet editors’ demands for quick and numerous short stories that will produce more hits and page views.

Despite the challenges, I left the room tremendously impressed with the energy of the reporters. One said he had thought of 21 story ideas during the symposium.

The journalists are today’s civil rights reporters, engaged in a job as big and challenging, but much more unglamorous, than that of an earlier generation. During the civil rights movement, it was easy to get people worked up about an African-American kid barred from a school or a church burned down. Today, it is almost impossible to stimulate the interest of editors and audiences in a black or Latino ex-convict hoping for a fresh chance rather than a third strike.

*Originally posted at Truthdig. Re-posted with written permission from Bill Boyarsky. 

Bill Boyarsky is a lecturer in journalism at the University of Southern California’s Annenberg School for Communication and is vice president of the Los Angeles City Ethics Commission. A former city editor, columnist, bureau chief and political writer for the Los Angeles Times , he was a member of reporting teams that won three Pulitzer prizes. In 2010, the Los Angeles Press Club honored his political columns at Truthdig by naming him as Online Journalist of the Year.

Tuesday, May 10, 2011

Psychiatry rejects new rape disorder for DSM-5

Regular blog readers will be familiar with the heated battle over a controversial proposed mental condition of "Paraphilic Coercive Disorder" for rapists. Now, the American Psychiatric Association has issued its latest draft of the DSM-5 diagnostic manual, with the condition relegated to the appendix. The proposal was favored by psychologists working for the government in Sexually Violent Predator (SVP) civil commitment cases, as it would have made it far easier to testify that sex offenders are mentally ill. It had met with strong opposition from scientists, including premier rape researcher Raymond Knight of Brandeis University.

Among other outspoken opponents was psychiatrist Allen Frances, an emeritus professor from Duke University who chaired the DSM-IV Task Force. In blog posts soon to go live at the Psychiatric Times and Psychology Today, he cautions that the battle is not over: The current attempt to place the pseudoscientific condition into the appendix of the DSM 5 as a condition warranting further study is still a mistake.

"Important message"

Dr. Frances said the rejection should send a strong message to those involved in the SVP civil commitment industry:
Dr. Allen Frances
The evaluators, prosecutors, public defenders, judges, and juries must all recognize that the act of being a rapist almost always is an indication of criminality, not of mental disorder. This now makes four DSM's (DSM III, DSM IIIR, DSM IV, DSM 5) that have unanimously rejected the concept that rape is a mental illness. Rapists need to receive longer prison sentences, not psychiatric hospitalizations that are constitutionally quite questionable.

This DSM 5 rejection has huge consequences both for forensic psychiatry and for the legal system. If "coercive paraphilia" had been included as a mental disorder in DSM 5, rapists would be routinely subject to involuntary psychiatric commitment once their prison sentence had been completed. While such continued psychiatric incarceration makes sense from a public safety standpoint, misusing psychiatric diagnosis has grave risks that greatly outweigh the gain…. Preventive psychiatric detention is a slippery slope with possibly disastrous future consequences for both psychiatry and the law. If we ignore the civil rights of rapists today, we risk someday following the lead of other countries in abusing psychiatric commitment to punish political dissent and suppress individual difference.

This DSM 5 rejection of rape as mental disorder will hopefully call attention to, and further undercut, the widespread misuse in SVP hearings of the fake diagnosis "Paraphilia Not Otherwise Specified, nonconsent". Mental health evaluators working for the state have badly misread the DSM definition of Paraphilia and have misapplied it to rapists to facilitate their psychiatric incarceration. They have disregarded the fact that we deliberately excluded rape as an example of Paraphilia NOS in order to avoid such backdoor misuse. Not Otherwise Specified diagnoses are included in DSM only for clinical convenience and are inherently too idiosyncratic and unreliable to be used in consequential forensic proceedings.

Exclude coercive paraphilia from appendix

All along, promoters of this new diagnosis have conceded that this would be a tough sell, given its lack of scientific foundation. Indeed, they said publicly that they would consider it a victory if they could even get paraphilic coercive disorder included in the appendix of the upcoming diagnostic manual (due out in mid-2013), as a condition meriting further study. But as Dr. Frances points out, even that would be a major error:
The sexual disorders work group proposes placing "coercive paraphilia" in an appendix for disorders requiring further research. We created such an appendix for DSM IV. It was meant as a placement for proposed new mental disorders that were clearly not suitable for inclusion in the official body of the manual, but might nonetheless be of some interest to clinicians and researchers….

If "Coercive Paraphilia" were like the average rejected DSM suggestion, it would similarly make sense to park it in the appendix -- as has been suggested by the DSM 5 sexual disorders work group. This might facilitate the work of researchers and also provide some guidance to clinicians....

But "coercive paraphilia" is not the average rejected DSM diagnosis. It has been, and is continuing to be, badly misused to facilitate what amounts to an unconstitutional abuse of psychiatry. Whether naively or purposefully, many SVP evaluators continue to widely misapply the concept that rape signifies mental disorder and to inappropriately use NOS categories where they do not belong in forensic hearings.

Including "Coercive Paraphilia" in the DSM 5 appendix might confer some unintended and undeserved back-door legal legitimacy on a disavowed psychiatric construct. Little would be gained by such inclusion and the risks of promoting continued sloppy psychiatric diagnosis and questionable legal proceedings are simply not worth taking. The rejection of rape as grounds for mental disorder must be unequivocal in order to eliminate any possible ambiguity and harmful confusion. We did not include any reference to "coercive paraphilia" in DSM IV and it should not find its way in any form, however humble and unofficial, into DSM 5. 

If you agree that this pseudoscientific condition needs to be placed in the wastebasket once and for all, now is the time to speak up. The current public comment period ends June 15. While you’re at it, you might want to state your opposition to a couple of the other controversial proposals with potential for profound negative consequences in the forensic realm – pedohebephilia and hypersexuality.

Postscript: Thanks to the suggestion of an alert reader, I have added the direct links to the DSM-5 comments pages. You must register in order to submit a comment.

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Wednesday, May 4, 2011

Do convicted sex offenders lose their right against self-incrimination?

Guest report by Ken Blackstone*

The polygraph is used by the U.S. government and to some degree all U.S. states during the management and treatment of convicted sex offenders, both in prison and in the community. Arizona is no exception. Hundreds of offenders have filed appeals based on a concern that disclosures and opinions will result in further prosecution or be used to support their civil commitment as sexually violent predators (SVP’s). Almost all of these appeals have been denied, but Arizona is now the exception.

Yes, it is optional for an inmate to enroll in treatment that includes polygraph and yes, it is optional to participate in community treatment that includes polygraph, but the only other option is prison. In most jurisdictions, when an offender is sentenced to probation this “option” comes either as a court order at sentencing or as a subsequent probation condition that is introduced after sentencing. Arizona is now the exception.

In October 2009 in Yavapai County, Ryan Jacobsen pled guilty to three counts of Luring a Minor for Sexual Exploitation and was subsequently sentenced to probation. His probation conditions included: “Defendant shall submit to any program of psychological or physiological assessment at the direction of the Probation Officer, including but not limited to Abel testing and/or the polygraph and/or the penile plethysmograph, to assist in treatment, planning, and case monitoring.”

When he entered a treatment program, his treatment provider gave him a 15-page sexual history questionnaire to fill out before taking a sexual history polygraph test. Jacobsen declined to answer some questions he felt were incriminating and could be used against him. Jacobsen’s attorney approached the prosecution, but they declined to give him immunity for any crimes he might disclose.

Jacobsen then filed a motion to preclude the polygraph and the questionnaire. The Appeals Court ruled in favor of Jacobsen, holding that "a waiver of the privilege against self-incrimination may not be made a condition of probation." The state then petitioned the Arizona Supreme Court (Jacobsen v. Superior Court and State of Arizona, Supreme Ct. No. CV-10-0309-PR) and the defense filed an amicus brief on post-conviction sex offender polygraph.

That brief described the weaknesses of post-conviction sex offender testing and described the differences between forensic (single-issue) testing and utility (multiple issue) testing and the steps the state of Arizona should take to optimize its use of the polygraph:


The validity of the forensic examination has been scientifically proven while the utility test is without any scientific foundation. However, the utility test is popular in sex offender treatment and supervision for several reasons, the main one being that the polygraph instrument, even when used in a less than optimal fashion, will encourage respondents to make disclosures. Other reasons for popularity are convenience, the appearance of economy, and the appearance of 'covering more issues.' ... How disclosures actually relate to treatment success is unknown.

The Arizona Supreme Court accepted the brief and in April 2011 the state filed a motion to withdraw its petition for review. That motion was granted one day before oral arguments were scheduled to begin. This leaves the appellate opinion in place, making it illegal in Arizona to compel people to waive their privilege against self-incrimination as a condition of probation.

*Ken Blackstone is a forensic psychophysiologist and licensed polygraph examiner based in Atlanta. He is the author of the forthcoming book,  Polygraph, Sex Offenders, and the Court; What Professionals Should Know About Polygraph . . . and a Lot More, to be published in May by Emerson Books. To learn more about the book, email Mr. Blackstone or polygraphbook@gmail.com.

Tuesday, May 3, 2011

Video: Confessions of a BigPharma Rep

Click on this caption to view YouTube video

I spent 15 years in this industry. I was one of the best of the best. But … the industry has run amok. We are at a severe crossroads in this nation. We have got to take our power back.

 
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