Justices Decline ‘Zoloft Defense’ Case
Ed Silverman over at Pharmalot notes that the Supreme Court denied cert. in the "Zoloft Defense" case, Pittman v. South Carolina.
April 14, 2008
April 08, 2008
Off Topic: Vytorin, Academia, and Antidepressants
Regular readers of this blog know of my interests about science, law, and policy. The Last Psychiatrist has two great posts (here and here) discussing the recent flap about the cholesterol drug Vytorin and the Enhance study (basics here).
Also off topic, but noteworthy: Ed Silverman at Pharmalot notes that two years after Health Canada warned about prescribing antidepressants to children, a new study reports that the number of children and teens who died by suicide increased 25 per cent after years of steady decline.
As mentioned before, there's been a lot of discussion -and spin- about the dangers associated with antidepressants use in children.
April 02, 2008
Trust Me: I'm a Brain Scan
Hot on the heals of a recent study that found that neuroscience jargon made unlikely scientific claims more believable, comes a new study, covered by the BPS Research Digest, that found that simply showing a picture of a brain scan made bogus science more convincing.
More to read at the site, plus a link to How to Lie with fMRI Statistics.
Also referenced at Neuroethics & Law Blog.
March 19, 2008
What's in a Name?
As mentioned previously, the idea that pedophilia is a mental illness on par with schizophrenia or other strongly biologically caused illnesses of the mind is weak. Yet that hasn't stopped many from suggesting otherwise. And when it comes to the civil commitment of sex offenders, the Supreme Court has concluded that a link between a mental abnormality and volitional control is necessary to justify commitment.
To establish whether someone is a sexual predator, courts almost always rely on psychological experts to ascertain whether the criteria are met. Even if states retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment, the experts must utilize behavioral science to arrive at their conclusions. After all, that's why the courts entertain behavioral experts in these matters instead of, say, automotive experts. Like most areas of science, behavioral science experts use tests to help them formulate their opinions; and in the area of sex offender assessments, the tests used vary widely and are applied in a variety of clinical and legal situations. But the sheer ease in which these same tests can confirm a mental abnormality in one case and suggest a high risk for recidivism among someone without mental illness in another says a lot about the strange marriage between behavioral science and criminal law.
March 12, 2008
What Neuroscience Cannot Tell Us About Humanity
That's the title of an intriguing essay by David Perks, who astutely observes:
Even a cursory glance at reviews of the field shows that neuroscience poses more questions than it answers. The Economist‘s review in 2006, although enthusiastic about the potential of neuroscience, is blunt about the long way the science has to go to make good on its claims. Current theories about the biological basis of consciousness certainly give pause for thought. According to Benjamin Libet at the University of California, San Francisco, the process within the brain which leads a subject to carry out a simple act occurs 0.3 seconds before the mind is conscious of it. In other words, we observe what our brain has already decided to do rather than consciously deciding upon a course of action. The far reaching implication is that ‘free will’ is simply an illusion, a trick our brain plays on us. As the Economist puts it, although Libet’s work is ‘almost laughably simple, it pokes a stick in a very deep pond’ (Economist 2006).
Continue reading "What Neuroscience Cannot Tell Us About Humanity" »
March 11, 2008
The Humanity and Culture of Crime and Punishment
Bill Stuntz over at Less Than the Least has an intriguing post about the relationship between culture, law, and punishment. He makes a number of good and interesting points about how culture shapes the law. He judiciously states:
A good deal of social science research suggests that people obey the law, when they do so, because the legal system seems fair and legitimate.
This is indeed true, but the implications are quite far-reaching and often at odds with the orthodoxy of what is considered the proper aim of crime, punishment, and responsibility.
The law in many respects is an emotional process. For all of the stoic statutes and dry regulations, how people relate to the law is governed mostly by their perceptions of justice and fairness. For the criminal code, legitimacy is strongest when the law is proportional to the behavior regulated. If we think about it, the common perception is that the criminal law is about regulating and punishing serious matters of the morally accepted code that we all share in common. Thus, the malice in se crimes such as murder and forcible rape are universally viewed as morally repugnant and deserving of the strongest punishments the law can dish out while crimes without malice suggest less punishment.
Continue reading "The Humanity and Culture of Crime and Punishment " »
March 05, 2008
MMPI in Today's WSJ
The front page of today's Wall Street Journal (subscription required) has a lengthy article about the most widely used personality test, the Minnesota Multiphasic Personality Inventory (MMPI). The focus of the story is about a specialty sub-scale developed by Dr. Paul Lees-Haley called the "fake-bad" scale which is used to detect malingering. While the focus of the WSJ piece is on the scale's increased use in personal injury lawsuits, it is also used in criminal matters as well.
It's safe to assume that much will be said by the professional mental health field in the coming days about this story. Among those comments will be the maxim that the MMPI is "just one piece of data" used in determining psychological states among litigants and defendants. This is surely true, but the reliance (perhaps even over-reliance) by some forensic psychologists on personality measures as lie detectors often gives these tests more weight than they deserve.
Update: Ted Frank at Point of Law has some brief thoughts as well. While I agree with Ted that there is indeed some peer review research behind the scale, there are good reasons to be wary of bubble sheet forms that are proffered as measures of deception. It's not so much that these measures can't measure deception, rather they can be easily abused by experts who use them irresponsibly.
March 03, 2008
How Do We Define Addiction?
The current issue of the American Journal of Psychiatry has an editorial arguing for the inclusion of "internet addiction" in the forthcoming 5th edition of the Diagnostic and Statistical Manual for Mental Disorders. Jerald J. Block, M.D. states:
Internet addiction appears to be a common disorder that merits inclusion in DSM-V. Conceptually, the diagnosis is a compulsive-impulsive spectrum disorder that involves online and/or offline computer usage and consists of at least three subtypes: excessive gaming, sexual preoccupations, and e-mail/text messaging. All of the variants share the following four components: 1) excessive use, often associated with a loss of sense of time or a neglect of basic drives, 2) withdrawal, including feelings of anger, tension, and/or depression when the computer is inaccessible, 3) tolerance, including the need for better computer equipment, more software, or more hours of use, and 4) negative repercussions, including arguments, lying, poor achievement, social isolation, and fatigue.
Words like "variants", "drives", "withdrawal", and "tolerance" imbue a sense that this "disorder" is somehow akin to opioid or cocaine addiction. It's a slight of hand whereby problematic behaviors are transformed into medical illnesses in need of professional treatment. But what behavior is immune from such conceptualizations?
February 20, 2008
A "Free Spirit" Mitigation
From Fox News comes the story of 24 year old Allenna Ward convicted and sentenced for having sex with several of her high school students. According to the story, forensic psychiatrist Donna Schwartz-Watts offered this supposed characterization of Ward:
Schwartz-Watts said Ward is not a pedophile, but rather a childlike victim suffering from personality disorders and a repressed childhood. Schwartz-Watts said the minister's daughter lived a sheltered life but really was a "free spirit" who never got a chance to break away from her family.
If mental health testimony is based on science, then how does repression and free spirit come into play?
February 16, 2008
A Short Note on Antidepressants, Violence, and Kazmierczak
Ed Silverman at Pharmalot has this post on the emerging (albeit very preliminary) evidence that gunman Stephen Kazmierczak had stopped taking his psychiatric medication before the killings at Northern Illinois University. As ABC news reports, there's evidence that Kazmierczak had a history of mental illness, which seems to have included depression, violence, and self mutilating behaviors.
The comment thread of the Pharmalot post is particularly revealing in its predictability of responses from those who blame antidepressants for violent behavior among those with mental illness. Those critics, however, want it both ways: to blame antidepressants for violent behavior if someone takes them and to blame them as well if someone stops taking them and becomes violent due to the amorphous discontinuation syndrome purportedly associated with some of these medicines. But as mentioned previously, antidepressants have become a popular target by those who wish imbue the pharmaceutical industry with evil for their supposed malfeasance and deception rather than focusing on the simple fact that sometimes people engage in very violent conduct which itself imbues evil- and this seems to occur more often among those with mental illnesses.
This should hardly be surprising. For all rhetoric we've been told that those with mental illnesses are no more likely to become violent than anyone else, intuition dictates that when an illness robes people of their rationality - as it often does with mental illness - bad outcomes are to follow. It is true that most people with mental illnesses are not violent; but we're not taking about most people when we're discussing incidents like Kazmierczak or Kendra Webdale. Rather, what comes into focus when we examine cases like these is the inconvenient truth that untreated mental illnesses can be harbingers for tragedies from the personal to the infamously public.
February 12, 2008
Strange Bedfellows Call for Limiting Faretta
The "top side" amicus briefs have been filed in Indiana v. Edwards, No. 07-208. The briefs to date and other pertinent documents are available here. Along with the expected amici of CJLF, other states, and the federal government, we have some unusual players.
The case involves a defendant of marginal mental competence who moved under Faretta v. California, 422 U.S. 806 (1975), to reject counsel and represent himself. When the Court first granted certiorari, it occurred to me that this was one of those unusual cases where many defense lawyers might disagree with the position of the defendant in this case.
Continue reading "Strange Bedfellows Call for Limiting Faretta" »
February 07, 2008
The Ubiquity of Substance Abuse in the Calculus of Crime and Mental Illness
As mentioned previously, the recent National Institute of Mental Health's CATIE study suggested a link between schizophrenia and violence. That conclusion generated a lot of controversy from folks who assert that there is no link between mental illness and violence, touting the frequent mantra that those with mental illness are no more likely to become violent than the general population. Indeed, we should be careful not to needlessly contribute to the enduring stigma that burdens those with mental illness. Nonetheless, we shouldn't ignore the link between mental illness and crime simply because it makes some people uncomfortable or is at odds with the vested rhetoric of political correctness. Several recent studies in the journal Psychiatric Services shed some new light on the subject and are worth a few comments.
Continue reading "The Ubiquity of Substance Abuse in the Calculus of Crime and Mental Illness" »
January 24, 2008
The Horror of Our Failed Incapacitation Policies for Sex Offenders
It seems fashionable lately for many scholars to decry our criminal justice polices surrounding sex offenders. Indeed, classifying all sex offenses - from adolescents who take nude pictures of themselves to the worst sex abuse imaginable - seems unwise. Moreover, the civil commitment of sex offenders seems problematic and encompasses an ominous trend to attribute biological causes as the root problem for so many antisocial behaviors, including sexual deviancy. And it is true that the "science" surrounding much of the sex offender debate is a minefield of pitfalls and spurious links.
But those criticisms and limitations do not mean that sex offenders are a minor risk and that all of the retributive rhetoric about them is misplaced. As many forensic psychologists know, conducting a risk assessment evaluation on a convicted sex offender often entails a lengthy tread into the world of recidivism, failed treatment programs, and eternal denial on the part of the offender. A recent, albeit, extreme story regarding the tragic case of Dylan and Shasta Groene demonstrates why public sentiment is so starkly in favor of heavy penalties and restrictions against sex offenders.
Continue reading "The Horror of Our Failed Incapacitation Policies for Sex Offenders" »
January 16, 2008
Mandated Sex Offender Treatment in Colorado
The Colorado Supreme Court holds in Hernandez v. People:
Construing the applicable statutory provisions, the supreme court holds that treatment is not mandated in every case where a sex offender subsequently commits an offense of any kind. Where the recommendations of the sex offender evaluation and the facts of the subsequent case do not support treatment, a sentencing court is not required by section 16-11.7-105 to order treatment. On the other hand, when the sex offender evaluation and the facts of the case support it, the trial court must impose sex offender treatment as a condition of probation. Here, the trial court ordered Hernandez to complete sex offender treatment.
Defendants first crime in 1984 was attempted second degree assault which resulted when he forcibly inserted his fingers in a woman's vagina in a restroom at a bar. Nineteen years later, he was charged with possession of a schedule two controlled substance and introduction of contraband into a detention facility and ultimately plead to simple possession. After initially refusing to submit to a sex offender evaluation, on the advise of counsel, defendant complied resulting in a recommendation that he receive treatment. According to the opinion, the evaluator found the defendant's denial of guilt in both crimes as well as his scores on various sexual deviancy measures as supportive of the recommendation:
The evaluator rated Hernandez as being at high risk for a repeat sexual offense based upon his: (1) denying having sexually assaulted the previous victim; (2) taking no responsibility for possessing cocaine in his most recent offense; (3) exhibiting defensiveness throughout the evaluation process; (4) lacking victim empathy; (5) lacking motivation to engage in offense specific treatment; (6) having previously used coercive force against a female adult victim and registering arousal levels to a female adult and a female teen in a coercive sexual situation, in comparison to a consensual sexual male/female adult encounter, during the assessment; and (7) having a considerable substance abuse history.
One wonders how effective treatment will be for this recalcitrant offender.
December 19, 2007
Drugs and the Promise of Pharmaceuticals
Jonah Lehrer over at Frontal Cortex has a post (hat tip: Corrections Sentencing) that says in pertinent part:
What does this have to do with neuroscience? I think neuroscience is our last, best, and only hope of actually dealing with the drug problem. While addiction is an extremely complicated phenomenon, we now know that the brain utilizes a single chemical mechanism - the dopamine reward pathway - for everything from heroin to gambling to cigarettes. Of course, the molecular details differ in each context, but the general principle is the same. If science can find a way to selectively block the addictive properties of dopamine - without inducing a terrible range of side-effects - the societal payoff would be immense. Of course, nobody is sure that such a pharmaceutical is even possible, but even if scientists can engineer a mildly effective treatment that only works for specific substances, I think it would dramatically change the way we approach the War on Drugs.
This is an attractive and seductive idea. With all of the advances in neuroscience and addictions it's easy to believe that biological science will give us a cure for a phenomenon that is principally biochemically based. Yet it's also quite simplistic and ignores the graveyard of promising addiction treatments of the past that led us down the road of disappointment. The dopamine system is terribly complex. It is globally involved with brain function to the point of ubiquity. Thus, it is associated with a plethora of behaviors so that it is at least nominally linked to all of them. The idea that our understanding of a common dopamine pathway surrounding addictions is tantamount to a molecular key which unlocks the proverbial sobriety door belies the vast territory of the brain that remains a mystery. Our understanding is simply not that great; in many respects the field of neuroscience remains in its infancy. This is not to discount the discoveries of the field; indeed neuroscience has made tremendous discoveries about the brain that should be celebrated. Moreover, there are many promising novel pharmaceutically-based treatments for addictions deserving of our attention. But it's false hope to think that any of these current or foreseeable treatments will lead to a paradigm shift in how we deal with addictions. Ultimately, internal motivation is the key factor for long-term sobriety. For all of the methadone, buprenorphine, and varenicline, the divide between those who succeed and those who fail with sobriety lies mainly outside of biology and chemistry.
The Nuances of Pittman v. South Carolina
Doug Berman highlights a potential case that might be granted cert by the Supreme Court involving a 30 year sentence for a teen who killed his grandparents when he was 12 years old. Ed Silverman adds an interesting twist to the case: apparently the convicted defendant, Christopher Pittman, was taking the antidepressant Zoloft at the time of the killings. There's been a lot of allegations that antidepressants have the propensity to cause suicides, particularly in children. Yet there's strong evidence against this notion (including an international study). The link between antidepressants and violence against others is even less compelling (View image)
Update: The Last Psychiatrist has this very good post about the misinterpretation of a study examining the perception of violence, kids, and mental illness:
I had thought the entire infrastructure of psychiatry rested on the very foundational idea that psychiatric disorders, especially depression, are responsible for increased risk of violence to the self. And these quotes are even more weird given that they come from Ohio and Indiana-- the two states responsible for over half the increase in female youth suicides in the whole country. You know, the increase that everyone is blaming on antidepressants.But words are lies, and you can use loose language like "violence" and "dangerous" and "youth" and "kids"-- bending its meaning to whatever you need it to mean at that moment-- to make any point you want. The actual arguments for this position can be be flipped when necessary (e.g. Nasrallah saying a school shooting isn't "evil" but "medical illness.") You can do this if you manipulate words, e.g. conflating school shooting and suicide to "violence," and then making "violence" mean what you need it to mean at that moment.
December 18, 2007
Teenagers and Risk
Jane Brody has this piece in the New York Times which discusses recent findings regarding how teenagers perceive and deal with risk:
Is it that teenagers think that they are immortal or invulnerable, immune to the hazards adults see so clearly? Or do they not appreciate the risks involved and need repeated reminders of the dangers inherent in activities like driving too fast, driving drunk, having unprotected sex, experimenting with drugs, binge drinking, jumping into unknown waters, you name it?None of the above, says Valerie F. Reyna, professor of human development and psychology at the New York State College of Human Ecology at Cornell. The facts are quite the opposite. Scientific studies have shown that adolescents are very well aware of their vulnerability and that they actually overestimate their risk of suffering negative effects from activities like drinking and unprotected sex.
That's funny, I thought the psychological community was in agreement that "the characteristics of adolescents" were "as a group, are not yet mature in ways that affect their decision-making." At least that was the position of the American Psychological Association when it came to the juvenille death penalty. Indeed, the APA stated in it's brief that during adolescence the "brain has not reached adult maturity, particularly in the frontal lobes, which control executive functions of the brain related to decision-making." What they failed to mention, however, is that the process of myelination (which is what the APA brief was alluding to) is not complete until around age 50.
A good reason why institutions like APA should not take such strong positions on issues like the juvenile death penalty is because the science is rarely as settled as they make it out to be. We have a lot yet to learn about the human brain and development. Yet, when science enters the legal and political arena it risks its credibility when later discoveries, like those mentioned in the Times article, undermine positions that were so strongly held in the past.
November 27, 2007
Photos, NPR Radio, and the Media
The Last Psychiatrist has posted "Which Is Worse: An Altered Photo of Reality, Or A Photo That Alters Reality?" which examines the use of doctored photos in the media and a special issue of the journal Applied Cognitive Psychology. Always entertaining, the anonymous Last Psychiatrist offers a jab at NPR listeners, the media, and the authority of news accounts. Worth a quick read.
November 15, 2007
Politics and Funding at NIH
Shelly Batts over at Retrospectacle has a post titled, Bush Vetoes NIH Budget And Open Access Bill that is highly critical of the Bush administration's funding of the National Institute of Mental Health. It may be good policy to generously fund NIH as Batts points out -- and I've been critical of some of the funding decisions NIH has made -- but there's more to the story than Batts discusses.
Critics have aptly noted that what gets funded at NIH raises important questions about the Institutes's mission and priorities. Moreover, what Batts doesn't fully discuss -- but her graph alludes to -- is the fact that between 1998-2003 the NIH budget doubled. That's impressive growth for a governmental agency by any measure. Furthermore, while Batts criticizes the Bush administration's spending of $43 billion on military intelligence, it is hardly surprising that the government would allot generous funds for this purpose in a post-9/11 world.
I am sympathetic to those who decry the decline in funding at NIH. After all, grant funded research is difficult enough with the endless bureaucracy entailed with it, the lack of job security, and difficulty in obtaining promotion. Spending money on science and health services research seems a wise investment as it often provides a direct benefit to the public as Batt's points out in her post. But honesty also demands that we acknowledge that few agencies can be expected to sustain the growth that NIH enjoyed in the distant past.
November 07, 2007
Call for Papers
For those who may be interested:
CALL FOR PAPERS
BEHAVIORAL SCIENCES AND THE LAW:
Special Issue on The Neuroscience of Decision Making and the Law
Behavioral Sciences and the Law announces a forthcoming special issue on the neuroscience of decision making and the law, to be co-edited by Steven K. Erickson, J.D., LL.M., Ph.D. and Alan R. Felthous, M.D., Manuscripts that address the following issues are especially welcome: Neuroscience and neuroimaging results of areas of moral judgment; the impact and limitations of such finings on legally relevant behavior; neuropsychiatric, neuropsychological and genetic disorders which impinge on intent and responsibility. Original research reports and forensically relevant literature reviews will be included.
November 06, 2007
Childhood Mental Health and Adult Criminality
The current issue of the American Journal of Psychiatry has an interesting article form researchers at Duke University, titled "Childhood Psychiatric Disorders and Young Adult Crime: A Prospective, Population-Based Study." Briefly, the researchers followed several cohorts of adolescents for several years and examined the link between childhood mental illness, juvenile delinquency, and arrests for crimes as adults. As other studies have shown, there is a link between mental illness and criminal behavior, and the current study supported these findings:
Nearly half of the young adults with criminal record in our sample had a history of mental illness, as compared to with one in three male or one in four female young adults with no criminal history (p.1672).
But there are some caveats here worth noting.
Continue reading "Childhood Mental Health and Adult Criminality " »
November 03, 2007
DSM v. Freud
The Diagnostic and Statistical Manual of Mental Disorders (DSM) is an influential work that comes up in nearly every criminal case with a mental issue. In Saturday's Wall Street Journal, Paul McHugh of Johns Hopkins U. reviews Shyness: How Normal Behavior Became a Sickness, by Christopher Lane. McHugh credits Lane with a revealing look at how the DSM-III (1980) was prepared and how it was a reaction to Freudian psychoanalysis. "He is also right in observing that the [DSM] errs by designating [shyness and] other kinds of normal human variation as mental disorders and so exaggerates the incidence of mental illness." This is, in part, a product of the DSM's "field guide" approach to mental diagnosis, identifying mental disorders with checklists of characteristics similar to those used by birdwatchers to identify birds.
McHugh parts company with Lane on where to go next. He says that Lane, a professor of literature, not psychology, has a fondness for psychoanalysis and thinks the profession should return to it. Absurd, says McHugh. "Today, Freud is deader than Elvis. Nobody investigating psychiatric disorders is dancing to Freud's tunes." Overdiagnosis is a real problem and needs to be addressed, McHugh says, but not by going backward.
Of course, the DSM and its "field guide" approach identified by Lane and McHugh are not the only reasons for diagnosing normal human variation -- both variation between people and the ups and downs of one person's life -- as mental disorders. Here are a few others:
October 07, 2007
Recounting the Awful History of Recovered Memories
The recent issue of Scientific American Mind has an article by prominent psychologists Scott O. Lilienfeld and Kelly Lambert on the history of recovered memories used in psychotherapy. As Lillenfeld and Lambert allude to, the recovered memories movement was largely responsible for the genesis and explosive growth of the controversial diagnosis of multiple personality disorder during the 1980s. It is no coincidence that the specious multiple personality disorder and recovered memory movement both occurred during the daycare sexual abuse scandals of the 1980s which led to numerous people being falsely accused of worst possible crimes. Most reasonable people look back at these times and wonder how could such junk science so perniciously influence our legal system. Yet recovered memories and multiple personality disorder was heralded at the time by the various professional associations and academics as "science" and those who argued otherwise were labeled "deniers." Professors readily embraced media appearances suggesting that this new science was uncovering an ugly empirical truth about our society. Hindsight gives us the ability to laugh (and perhaps shed some tears) at this psuedoscience.
Continue reading "Recounting the Awful History of Recovered Memories " »
October 03, 2007
Suggestibility Tests
Psychology and Crime News has this post on the Gudjonsson Suggestibility Scales. I had not previously heard of this instrument, but it may be coming soon to a courtroom near you.
People who are high in IS [interrogative suggestibility] are more susceptible to making false confessions under interrogative pressure, in a police or military interrogation scenario, for instance. However, as the authors point out, some offenders might be motivated to appear suggestible or vulnerable even if they are not. For instance, if an offender wanted to retract a statement or confession, or “in circumstances where the successful demonstration of vulnerability may lead to a reduction in a fine or sentence or even to escaping a custodial sentence”.
The problem is explored in a forthcoming article: Julian Boon, Lynsey Gozna and Stephen Hall (in press). Detecting ‘faking bad’ on the Gudjonsson Suggestibility Scales. Personality and Individual Differences
September 11, 2007
An Oldie but a Goodie
The Last Psychiatrist has this great post titled "The Ten Biggest Mistakes Psychiatrists Make." It's over a year old and a bit technical, but has some fascinating insights into the problems facing modern psychiatry. While not having anything to do directly with criminal law, given the impact psychiatric thinking has with our legal system it is worth a read.
September 06, 2007
Character and Aggravating Factors
Professor Berman yesterday links to the recent 9th Circuit opinion in U.S. v. Mitchell, affirming the death penalty sentence for a defendant involved in a double murder. As the opinion notes, during the sentencing phase, Mitchell offered this mitigating evidence:
The defense presented as mitigating evidence the testimony of family members, friends, and teachers of Mitchell whom they portrayed as an excellent high school student with no disciplinary problems except for a brief suspension for possessing marijuana, who was an outstanding athlete with college football prospects, a leader both in student council and in sports, and respectful towards teachers. (p. 11560)
According to Wiggins v. Smith, defendants have a right to introduce psychologically mitigating evidence, including descriptions of child abuse, neglect, and other unfortunate social factors in determining the appropriateness of a death sentence. In Mitchell, of course, it's the opposite: Mitchell introduced evidence of his relatively uneventful childhood as proof of his good character. Considering Justice Steven's dissent in the recent case Schriro v. Landrigan suggesting that antisocial personality disorder is an "organic brain syndrome" akin to delirium or mental retardation one wonders what constitutes a psychologically relevant aggravating factor in death penalty cases.
Of course defendants are entitled to present mitigating evidence during trial and sentencing. Such evidence should include salient psychological factors that could impinge on culpability. Yet the reduction of character evidence, psychologically speaking, into exclusively mitigating evidence seems the trend in our criminal justice system these days. This course follows the emergent and popular claim by many scholars that biology is destiny -- and that biology always seems to show a lack of choice by defendants to conform their behavior to the criminal code. Yet such claims should be viewed with a healthy dose of skepticism. As I discuss in this brief essay, history is a great teacher and history is replete with examples of scientific claims once viewed as promising and certain only to be viewed by future generations as downright foolish. Our legal traditions have always placed a great burden upon defendants wishing to exculpate or mitigate their guilt based on psychological factors alone since our system also cherishes individual choice and autonomy. But with choice and autonomy comes responsibility. Few predispositions, childhood histories, and other misfortunes should arguably negate that responsibility given the breathtaking implications such a course would have for our criminal code.
August 27, 2007
John Couey and Mental Retardation
The Last Psychiatrist has this short post on the death sentence for John Couey, the man convicted of kidnapping and killing Jessica Lunsford. This post follows up on a prior post from the Last Psychiatrist which aptly points out the many problems inherent in the Atkins v. Virgina case which prohibited the execution of the mentally retarded. Surely the execution of the mentally retarded is reprehensible; but the formulaic declaration that Atkins set forth is problematic and troubling; problematic for the reasons the Last Psychiatrist states and troubling because it removed an important moral question from the hands of the People, which are arguably in a better position to weigh the individual circumstances of each case.
Update: As the commentators correctly suggest, historically the prohibition of the death penalty against the mentally retarded was against the profoundly mentally retarded -- those akin to Blackstone's "wild beast" whose intellect was so impaired as to render them as "infants". See generally, Steven K. Erickson, Minding Moral Responsibility
August 23, 2007
Two New Papers That Look Interesting
Time constraints prevent me for commenting at length about these articles, but both look quite interesting (subscription required):
Swanson JW, Van Dorn RA, Swartz MS, Smith A, Elbogen EB, Monahan J. Alternative Pathways to Violence in Persons with Schizophrenia: The Role of Childhood Antisocial Behavior Problems. Law Hum Behav . 2007 Jun 30.
Abstract: Violence in schizophrenia patients may result from many factors besides the symptoms of schizophrenia. This study examined the relationship between childhood antisocial behavior and adult violence using data from the NIMH CATIE study. The prevalence of violence was higher among patients with a history of childhood conduct problems than among those without this history (28.2% vs. 14.6%; P < 0.001). In the conduct-problems group, violence was associated with current substance use at levels below diagnostic criteria. Positive psychotic symptoms were linked to violence only in the group without conduct problems. Findings suggest that violence among adults with schizophrenia may follow at least two distinct pathways—one associated with premorbid conditions, including antisocial conduct, and another associated with the acute psychopathology of schizophrenia.
Alter AL, Kernochan J, Darley JM. Transgression Wrongfulness Outweighs its Harmfulness as a Determinant of Sentence Severity. Law Hum Behav. 2007 August.
Abstract: When students suggest sentences for criminal offenders, do they rely more heavily on the harmfulness or on the wrongfulness of the offender's conduct? In Study 1, 116 Princeton University undergraduates rated the harmfulness and wrongfulness of, and suggested appropriate sentences for, a series of crimes. As expected, participants emphasized wrongfulness when choosing an appropriate criminal punishment. In Study 2, 33 Princeton undergraduates made similar ratings for violations of the University Honor Code, and rated their contempt for fabricated amendments to the Code that required sentencers to focus either only on harmfulness or only on wrongfulness. Again, sentences more closely reflected wrongfulness ratings, and participants were more contemptuous of the harmfulness-based proposal. We also consider the theoretical and practical implications of these findings for sentencing laws and policy.
August 16, 2007
Evolving Standards of Lunacy
Many death penalty proponents are quite skeptical of social scientists and this article (subscription required) in the current issue of Psychology, Public Policy, and the Law should add to that skepticism. The article, titled, Brain Imaging, Culpability, and the Juvenile Death Penalty by Jay D. Aronson of Carnegie Mellon University, at first blush, appears to offer a refreshing opposing view of the death penalty in a journal notorious for its bias on the death penalty issue (more on that in a moment). The abstract begins thusly:
In Roper v. Simmons (2005), the U.S. Supreme Court banned the death penalty for offenders under the age of 18 years. Central to Simmons’s defense was new brain imaging evidence suggesting that the regions of the brain responsible for decision making and impulse control are not as well developed in adolescents as in adults, thereby rendering adolescents less culpable for the crimes they commit. Although these images were not explicitly cited in the Court’s decision, they were hailed by anti-death penalty advocates as the wave of the future. However, legal advocates and scientists should be cautious in using cutting-edge neuroscience for criminal justice purposes for several reasons. First and foremost, no definitive link between brain structure and deviant behavior has been established. Furthermore, very little is known about the developmental threshold that separates juvenile decision-making ability from adultlike decision-making ability.
Sounds promising? But once the reader delves into the details of the actual article, one realizes that this is just one more one-sided, uncritical, biased view of neuroscience and the law. Why? Let's count the ways:
July 27, 2007
Are Addictions Brain Diseases?
This article by psychiatrist and psychologist Sally Satel and Scott Lilienfeld in Slate magazine offers compelling arguments against the current trend to see addictions as brain diseases (hat tip: Mind Hacks). Much of the rhetoric about addictions as a disease has been motivated by the Director of the National Institute of Drug Abuse, Dr. Nora D. Volkow. Since addictions are currently not considered diseases in the traditional sense, health insurers often refuse or limit their coverage for substance abuse treatment. The effort by Dr. Volkow is a noble one in a certain sense since the cost of addictions literally and figuratively is enormous. Indeed, HBO recently aired a gripping documentary pretty much espousing the additions as a brain disease model. What is troubling, however, is that brain scans have been heavily implemented by the addictions-as-disease model proponents in an effort to convince the public that addictions are indeed caused by brain abnormalities indicative of disease pathology. But, of course, brain scans cannot tell us anything about causation and as the Satel and Lilienfeld article notes, there's much skepticism surrounding their use in addictions. This article by law professor Stephen Morse, also notes the difficulties in conceptualizing addictions as brain diseases. But this is hardly new, see also: Herbert Fingarette, Addiction and Criminal Responsibility, 84 YALE L. J. 413, 414-415 (1975) (sorry, no link).
July 23, 2007
Adolescence a Myth?
This post by David Bernstein at the Volokh Conspiracy reminded me of a new book that I'm currently reading, The Case Against Adolescence by Dr. Robert Epstein. Since I haven't finished the book I can't offer my opinion on the subject, but if Epstein's argument holds true, then perhaps our efforts of protecting young adults through the increasing maze of laws and regulations is unwise. Additionally, many of the arguments proffered by my fellow psychologists for the prohibition of the juvenile death penalty (and given credence by the Supreme Court in Roper v. Simmons) may be faulty. The immaturity that juveniles express about matters as serious as life and death could be a creation of our own modern culture or do not really exist at all. One thing that is likely true is that our understanding of childhood development is surely influenced by our cultural expectations and demands of how we want adolescents to behave. Immaturity may indeed call for more responsibility rather than less.
June 26, 2007
Mental Health and the Juvenile Justice System
The new issue of the Journal of the American Academy of Psychiatry and the Law is now available on-line and is freely available for the time being. There are two articles worth noting.
The first profiled here is a new paper examining the myth surrounding the notion of antipsychotic drugs as "mind controlling" agents. That paper has been published here.
The second paper by Thomas Grisso, Ph.D. from the University of Massachusetts Law-Psychiatry Program titled "Progress and Perils in the Juvenile Justice and Mental Health Movement" explores the ever-changing field that is the juvenile justice system.
Continue reading "Mental Health and the Juvenile Justice System" »
June 24, 2007
Are Brain Scans All the Rage?
This post from Psychology and Crime News links to this ABC Radio National story about the purported widespread use of brain scans in criminal cases. A quote from the MP3 file available at ABC (emphasis added):
‘But officer, my brain made me do it!’ Brain scans are becoming commonplace as evidence in US courts, in the bid to convict offenders or free them. But is the technology half-baked? Can we biologically categorize people as criminals - mad, bad and dangerous to know? Free will, privacy and personal responsibility are all up for grabs in the collision between science and the law.
There have been a number of stories lately suggesting that brain scans are frequently used in criminal cases. I'm a bit skeptical of these claims and would be interested to hear from readers if they've seen brain scans used in criminal (or civil) cases they've encountered.
June 23, 2007
The Dilemma of Being a Big Brother
Dr. Helen Smith has this post over at her blog, Dr. Helen, about the quandary that men face when they wish to volunteer for programs like Big Brother. As she suggests, many men are afraid to volunteer for fear of being accused of having an improper interest in other people's children. This is a very unfortunate sign of our times, since so many young boys need good male role models given the decline of active fatherhood in our society. In my experience as a law guardian and counsel in family court, many children -- especially young boys -- are desperately in need of their fathers to set the right examples. This includes how to be a proper gentleman and learning to treat women with respect. I suspect that much of the juvenile crimes that boys engage in (and adult crimes when they grow-up) could be tempered or reduced if more good men were available as role models for young boys. It's easy in these times of biological psychiatry to forget that environment plays a vital role in the development of children. While it is certainly understandable that our society is fearful of men who wish to be involved with other people's children, we must keep in mind that most of these men have good intentions and would not think of harming a child.
June 01, 2007
Is PTSD Real?
The new issue of the Carlat Report (subscription required) reviews a number of new studies suggesting major psychometric flaws in the construct of PTSD. From the first page:
A recent issue of the Journal of Anxiety Disorders (Vol. 21, 2007) focused on the troubling possibility that the PTSD (posttraumatic stress disorder) construct is not nearly as valid as has been assumed. The articles are both fascinating and provocative and are well worth reading.
These findings are troubling since PTSD is frequently cited by defendants for diminished capacity defenses and in civil claims ranging from disability claims to sexual harassment cases.
Mental Illness in Jails
As discussed here, there's a lot of problems with the clarion call of a mental illness crisis in our jails and prisons. That said, a new article in this month's issue of Psychiatric Services has a notable finding: 92% of jail inmates in the study with diagnosed severe mental illness were non-adherent with treatment before their arrest. Furthermore, of those 92%, 72% had a prior arrest for violent crime. This study adds to a growing body of research suggesting that a subgroup of people with mental illness are more violent when compared to the general population.
Memory and the Law
This post briefly discusses a new book about Elizabeth Loftus Do Justice and Let the Sky Fall: Elizabeth Loftus and Her Contributions to Science, Law, and Academic Freedom. Dr. Loftus was (and continues to be) the leading expert in the area of memory, recall, and legal issues. Her work has greatly influenced our science and law and anyone with an interest in these issues would enjoy reading, what looks to be, this fascinating book.
Related post: Memory and the Libby Trial.
May 29, 2007
Severe Mental Illness and the Criminal Justice System
As discussed here, the hotly contested topic of criminal behavior among those with mental illness has endured a long and winding path among researchers, advocacy groups, and policymakers. For many years the standard mantra was that those with mental illnesses were no more likely to be violent than people in the general population. New studies have challenged that idea. Likewise, as discussed here, the prevailing notion of a mental health crisis in our jails and prisons is also under scrutiny. Yet, there is little doubt that some people with severe mental illnesses cycle through our criminal justice system. The question many ask is why? With intensive services like Assertive Community Treatment in existence since the early 1960s, some have begun to question whether management of psychiatric symptoms is enough for prevention's sake. A new article (subscription required) published in this month's issue of Psychiatric Services provides a new conceptual framework for thinking about the mentally ill offender. While some ardently argue against notions of legal leverage for persons with severe mental illness who cycle through the criminal justice system, such leverage appears effective and, as author Lamberti points out, suggests other mechanisms are at play besides untreated psychiatric symptoms among this subpopulation.
May 14, 2007
Does Childhood Trauma Necessarily Equate with PTSD?
A new study in the journal Archives of General Psychiatry suggests that about 0.5% of children who were exposed to a traumatic event developed Post-Traumatic Stress Disorder later in life. While the study (like all studies) has its limitations, it suggests that the common notion that childhood trauma inevitably leads to adult PTSD may be in error. The Supreme Court has repeatedly held that childhood abuse must be weighed during sentencing phases of capital cases, presumably, under the notion that such abuse may affect culpability during adulthood.
May 11, 2007
Moral Judgement
Is morality a matter of cerebral wiring? Today's Wall Street Journal has an interesting piece by Robert Lee Hotz which discusses a "medical experiment conducted recently by neuroscientists at Harvard, Caltech and the University of Southern California (which) strongly suggests these impulsive convictions come not from conscious principles but from the brain trying to make its emotional judgment felt."
May 08, 2007
PLoS Does It Again
As mentioned previously here and here the group of journals collectively known as PLoS have published some controversial articles recently related to criminal law and science. Today, PloS Biology does it again with this article discussing the implications of modern neuroscience and the law. Time constraints prevent a detailed post today, but of particular note are the author's speculations that neuroscience findings question the existence of free will and their argument that neuroscience will revolutionize thinking about moral responsibility. These are popular claims these days, with many proponents offering colorful pictures of the brain as some sort of persuasive evidence that we're just products of the brain's biological outputs. And, of course, in some respects we are: all behavior is associated with some biological actions. Everyone has biological propensities of some sort; we do inhabit a biological body. But it's a far cry from saying that to suggesting that individuals cannot engage in free choice and rational decision making.
But that's just the beginning. The authors of the present study make several claims that simply don't deserve merit. For instance, they point to the use of fMRI as lie detectors but mostly neglect the mountain of empirical research that has demonstrated that fMRI's are not reliable and valid in measuring deception. Additionally, after discussing some findings suggesting a link between brain abnormalities and aggression, the authors next state that 25% of defendants examined for competency to stand trial are found mentally ill and cite this study (which is hardly epidemiological or representative). Of course, what the authors fail to mention is that the vast majority of incompetent defendants suffer from psychosis and not from minute defects of the frontal cortex or amygdala.
May 04, 2007
The Nexus Between Mental Illness and Violence
A common question posed to mental health researchers is whether people with mental illnesses are more violent than those in the general population. For years, the clarion call from advocacy groups was that the answer to this question was a flat "no". However, recent research is beginning to challenge that rather dogmatic view, and in so doing, has enveloped into a controversy. In particular,