Psychological Evaluation for the Courts, Second Edition
Gary B. Melton, John Petrila, Norman G. Poythress, and Christopher Slobogin
Welcome to the Updates page for Psychological Evaluation for the Courts, Second Edition. This page was last updated July, 2005.
If you would like more information on the book, including a summary, reviews, and a table of contents, please see the book's informational page.
Part I: General Considerations
Part II: The Criminal Process
Part III: Noncriminal Adjudications
Part IV: Children And Families
Part I. General Considerations
The United States Supreme Court has decided three cases relevant to Daubert analysis. In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Court held that the trial judge's decision with respect to admissibility of scientific evidence may be overturned on appeal only if it is an "abuse of discretion", a relatively relaxed standard of review that will normally leave the trial judge's decision intact. Joiner also makes clear that the judge is a "gatekeeper" with respect to scientific evidence; rather than allowing the jury to decide how much weight to give the testimony, the judge is to permit the jury to hear only that evidence that meets Daubert's test.
In United States v. Scheffer, 523 U.S. 303 (1998), the Court upheld a trial court's rejection of polygraph evidence presented by the defendant, on the ground that "[t]here is simply no consensus that polygraph evidence is reliable." However, the reasoning of the majority in Scheffer suggests that psychiatric evidence might be treated differently than polygraph evidence. First, the Court emphasized that polygraphs have an "aura of infallibility". Second, it pointed out that the sole focus of testimony by a polygraph expert is whether the witness is telling the truth, which has traditionally been a jury issue. Third, precluding polygraph evidence would simply bar testimony about credibility, not prevent the defendant from conveying "his version of the facts." Because psychiatric evidence is usually not perceived as "infallible" (see Neil Vidmar & Regina A. Schuller, Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP. PROBS. 133, 173 (1989)), is only tangentially directed toward credibility, and is designed to assist litigants in telling their story, its admissibility is not necessarily threatened by Scheffer, even when no "consensus" exists that it is "reliable".
In Kumho Tire, Inc. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court held that, in federal court, Daubert applies to "technical" and "specialized" knowledge as well as "scientific" knowledge, thus resolving the issue left open in Daubert. Noting that "[t]here is no clear line" between the three categories and that, in any event, all expert testimony should be "reliable", the Court held that regardless of the label attached to such it "the trial judge must determine whether the testimony has `a reliable basis in the knowledge and experience of [the relevant] discipline."
At the same time, Kumho Tire emphasized that the Daubert test is a flexible one. It stated that "we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence." Even more importantly for the future of psychological testimony under Daubert, the Court stated that testimony can be admissible as expert even though derived from "a set of observations based on extensive and specialized experience," rather than on scientific principles; the overall test under Daubert, the Court emphasized, is whether the expert has "sufficient specialized knowledge to assist jurors `in deciding the particular issues in the case.'"
For further discussion of the general issues raised by Daubert, Scheffer, and Kumho Tire, see Christopher Slobogin, Doubts About Daubert: Psychiatric Anecdata as a Case Study, 57 WASH. & LEE L. REV. 919 948 (2000). This article reports research indicating that, at least through 1999, Daubert had had little impact on the admissibility of testimony by mental health professionals.
In 2000, Congress and the Supreme Court amended Federal Rule of Evidence 702 as follows:
This amendment was meant to implement the injunction in Daubert and Kumho Tire that all expert testimony be assessed for its reliability and "fit" to the facts of the case. To date there is little evidence that this rule change has significantly affected the admissibility of clinical evidence in federal court, but over time it is likely to lead to restrictions and perhaps outright exclusion of testimony that the courts used to admit without question.
Chapter 3. The Nature And Method of Forensic Assessment
3.04 Specialized Forensic Assessment Instruments
Although it remains the case that there are few forensic evaluations for which professional organization (e.g., American Psychological Association, American Psychiatric Association) have promulgated and endorsed specific evaluation protocols, an excellent book by Heilbrun extensively summarizes important principles that most evaluators will find helpful in conceptualizing forensic assessments. Kirk Heilbrun, PRINCIPLES OF FORENSIC MENTAL HEALTH ASSESSMENT (2001).
A comprehensive update of Grisso's text on forensic assessment instruments is now available. Thomas Grisso, EVALUATING COMPETENCIES (2003).
A very promising measure for detecting feigned cognitive deficits was developed by Richard Frederick, Ph.D. Called the Validity Indicator Profile (VIP), it is marketed by National Computer Systems Inc, POB 1416, Minneapolis, MN 55440. Developmental research on the VIP suggests that its capacity to detect feigning (sensitivity and specificity indices) are equal to or greater than other measures of cognitive impairment presently available.
An additional reference for this section is: L.M. Etcoff & K.M. Kampfer, Practical Guidelines in the Use of Symptom Validity and Other Psychological Tests to Measure Malingering and Symptom Exaggeration in Traumatic Brain Injury Cases, 12 NEUROPSYCHOLOGY REVIEW 41 46 (1996).
In 2000, Federal Rule of Evidence 703 was amended to state that "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Although this change does not bar an expert from describing inadmissible information, its requirement that the probative value of the information substantially outweigh its prejudicial impact, if applied honestly, will often lead to its exclusion. If the judge excludes testimony about certain facts based on this rule, the clinician will have to determine whether he or she can adequately explain the opinion without the excluded information.
In Mitchell v. United States, 526 U.S. 314 (1999), the Court appeared to hold that a defendant may assert the right to remain silent at non capital sentencing proceedings. There a unanimous Court stated that "to maintain that sentencing proceedings are not part of `any criminal case' [the language in the Fifth Amendment which describes the scope of the privilege against self incrimination] is contrary to law and common sense" because "[w]here the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony." Five members of the Court also held that the sentencing court may not use a defendant's silence against him (except, perhaps, as a sign of lack of remorse). Thus, a convicted defendant may be able to avoid speaking about his crime, without penalty, not only at the sentencing hearing but also at any pre sentence interviews.
Of course, if the defendant decides to tell his or her side of the story, either on his own or through an expert, then he would surrender this right to silence. Furthermore, if the possible consequence of speaking is something less than enhancement of a criminal sentence, then the Fifth Amendment often will not apply. In McKune v. Lile, 536 U.S. 24 (2002), the Court upheld a statute that conditioned a prisoner's entry into a sexual abuse treatment program on disclosure of all prior sexual offenses, including those not yet charged, even though refusal also resulted in curtailment of visitation rights, earnings, work opportunities, the ability to send money to family, canteen expenditures, and access to personal television, and even though in ability to get in the program increased the likelihood of transfer to a maximum security unit. The Court did not find these burdens on the right to silence to be constitutionally significant.
A final possible source of legal limitations on the evaluation process is the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which went into effect in 2000 (although "compliance dates" range from October 2002 to April, 2005, depending upon the issue). HIPAA is a congressional effort to standardize the collection, protection and transmission of health information, including psychiatric information. For present purposes, its most important provisions are those designed to protect the privacy of medical and psychiatric patients. Every covered person has several privacy "rights," including the right to receive a notice of the privacy rules adopted by entities that acquire their health information, the right to restrict certain uses and disclosures of personally identifiable information, the right to inspect and copy the information and amend it if necessary, and the right to receive a description of any disclosures made. These rights are extended not only to those persons who are treated but to those who receive "diagnostic . . . care" and "assessment . . . with respect to . . . mental condition or functional status," which presumably encompasses forensic evaluation.
However, there is no right to prevent disclosure of personal health information, or even to notice of it occurrence, when the disclosure is "required by law" and the disclosure complies with and is limited by the relevant requirements of the law. Furthermore, persons who are in prison, who are "confined to psychiatric institutions for correctional reasons and who are not allowed to leave," or who are "under a mandate from the criminal justice system" never have the right to receive notice of privacy rules, copy records, or receive an accounting of disclosures. Despite these various exceptions and various other provisions that appear to exempt many forensic programs, given the uncertainty of HIPAA's scope and its "required by law" provision, lawyers and mental health professionals involved in the disclosure and use of records and examination reports are well advised to include in court orders the specific laws that authorize such disclosure and use.
HIPAA can be found at 42 U.S.C. §§ 1320d et. seq. The implementing regulations are found at 45 C.F.R. §§ 164.100 et. seq.
4.04 Ethical Considerations in the Evaluation Process
Ethical guidelines discussed in this chapter have been limited previously to those promulgated by psychological and psychiatric organizations. The National Organization of Forensic Social Workers also promulgates guidelines for social workers that participate in forensic evaluations. Information from this organization may be obtained at the following website: http://www.nofsw.org.
An issue that has received increasing attention in the literature since the last edition of this book was published is the interstate practice of forensic psychology/psychiatry. Professional and ethical concerns are raised when a clinician licensed in one state is retained for consultation and expert testimony in another state where he or she is not licensed. For a good review of these issues, see Robert I. Simon & Daniel W. Shuman, Conducting Forensic Examinations on the Road: Are You Practicing Your Profession without a License?, 27 J. AM. ACAD. PSYCHIATRY LAW 75 (1999); Daniel W. Shuman et al., Interstate Forensic Psychology Consultations: A Call for Reform and Proposal of a Model Rule, 34 PROF. PSYCHOL. RESEARCH PRACTICE 233 (2003).
(d) Incompetent Defendants' Right to Refuse Medication
In Sell v. United States, 539 U.S. 166 (2003), the Supreme Court emphasized that even if medication is "medically appropriate," is the least intrusive mean of restoring competency, and does not infringe trial rights (such as the ability to communicate with the attorney and testify relevantly), situations in which the state is authorized to force medication on an individual simply to restore competency "may be rare." Rather, forcible medication is permissible only if a compelling state interest is thereby vindicated. At the same time, the Court recognized three situations where the government's interest in medication is or might be "compelling." First, Sell clearly permits forcible medication of any defendant who is dangerous to self or others, assuming the medication is necessary to reduce the dangerousness. Many incompetent defendants can justifiably be considered treatable under this exception. Second, Sell implied that any defendant who is incompetent to make treatment decisions can be forcibly medicated. This exception, if adopted, creates a huge loophole in the opinion, since most defendants who are incompetent to stand trial are also incompetent to make treatment decisions. Finally, the Court indicated that even a nondangerous defendant who is competent to make treatment decisions may be forcibly medicated to restore competency to stand trial when the charges are "serious." One or more of these exceptions is likely to apply in most cases. In the unusual case where none do, Sell apparently contemplates that the defendant be released, although there are also insinuations in the opinion that the state could detain the refusing individual unless and until consent is obtained, which raises serious due process concerns under Jackson v. Indiana [see 6.04(a)].
A new instrument for use in adjudicative competence measures has been published recently Richard Rogers, Chad E. Tillbrook, Kenneth W. Sewell, ECST R: EVALUATION OF COMPETENCY TO STAND TRIAL REVISED (2004), available through Psychological Assessment Resources, Inc. Research on the ECST R can be found in the following references: Richard Rogers et al., Recent Interview based Measures of Competency to Stand Trial: A Critical Review Augmented with Research Data,19 BEHAV. SCI. L. 503 (2001); Richard Rogers, et al., Assessing Dimensions of Competency to Stand Trial: Construct Validation of the ECST R, 10 ASSESSMENT 344 (2003).
(3) Findings of the MacArthur Field Study
Correction: In Table 6.5, the correlation of CAC:A with estimated VIQ is incorrect in the table. It should be .09 rather than .90.
The MacArthur Competence Assessment Tool Criminal Adjudication (MacCAT CA) is now commercially available for forensic evaluations. This instrument provides a quantitative index of capacity with respect to three discrete psycholegal abilities understanding, reasoning, and appreciation, which are conceptually related to the Dusky tasks of factual understanding of proceedings, consulting with/assisting counsel, and rational understanding of proceedings, respectively.
A major norming study (8 states, 729 subjects) of the instrument was completed in 1998. The MacCAT CA was found to have excellent psychometric properties. Internal consistency (Cronbach's alpha) estimates range from .81 to .88 for the instrument's three component measures; interscorer reliability ranged from .75 to .90; and construct validity was supported by finding the expected negative correlations with psychoticism measures and positive correlations with measures of current cognitive (intellectual) functioning. The MacCAT CA measures also help discriminate between criterion competent and incompetent defendants over and above that achieved with demographic and clinical variables. See R.K. Otto, Poythress, N.G., Nicholson, R.A., Edens, J.F., Monahan, J., Bonnie, R.J., Hoge, S.K., & Eisenberg, M., Psychometric Properties of the MacArthur Competence Assessment Tool Criminal Adjudication, 10 PSYCHOL. ASSESS. 435 443 (1998). [The MacCAT CA is distributed by Psychological Assessment Resources (PAR), POB 998, Odessa, Fl 33556]
Chapter 7. Other Criminal Competencies
7.02 Competency to Consent to a Search or Seizure
For another study on competency to consent, see Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry into the "Consensual" Police Citizen Encounter (1999) (unpublished Ph.D. dissertation, Rutgers University) (described in Steven L. Chanenson, Get the Facts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches, 71 TENN. L. REV. 399, 451 455 (2004).
7.03 Competency to Confess
For new research relevant to competence to confess, see WELSH S. WHITE, MIRANDA'S WANING PROTECTIONS 190 95, 201 14 (2001); J. Viljoen et al., An Examination of the Relationship Between Competency to Stand Trial, Competency to Waive Interrogation Rights, and Psychopathology, 26 L. & HUM. BEHAV. 481 (2002). See also, WELSH S. WHITE, MIRANDA'S WANING PROTECTIONS 190 95, 201 14 (2001).
7.06 Competency to Refuse an Insanity Defense
For a review of cases concerning competency to raise an insanity defense, see Justine A. Dunlap, What's Competence Got to Do with It: The Right Not to Be Acquitted by Reason of Insanity, 50 OKLA. L.REV. 495 (1997).
The case of Ted Kaczynski (a.k.a. "The Unabomber") raised the issue of whether attorneys may, consistent with the ethical rules, force a defendant to assert an insanity defense. Kaczynski eventually pleaded guilty to four counts of capital murder in return for four life sentences. However, prior to the plea he had refused to permit his attorneys to assert any mental state defense, despite strong evidence that he suffered from schizophrenia. He also indicated he might fire his attorneys had the attorneys insisted on such a defense. Alternatively, the attorneys might have felt compelled to withdraw if he had insisted on arguing that his mail bombs were a "necessary" way of alerting the world to the dangers of technology.
The relevant ethical rules suggest that the lawyer obtain a guardian for the client when the lawyer "reasonably believes that the client cannot adequately act in the client's own interest." American Bar Association, Model Rules of Professional Conduct, Rule 1.14(b). Apparently this provision was drafted primarily with property dispositions, not death penalty cases, in mind. See commentary, paragraph . Further the rules state that the lawyer may withdraw if "a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent". Rule 1.16(b)(3).
Central to application of both of these rules is some conception of client competency. If the defendant is incompetent, the lawyer presumably should not withdraw and instead should seek advice, from a guardian or other person, as to the appropriate course of action. As noted in the text, the Supreme Court's decision in Godinez v. Moran suggests that if the client is competent to stand trial he or she is also competent to refuse an insanity defense. The waiver of an insanity defense must also be "intelligent", which at least requires that the defendant understand the consequences of the waiver. Kaczynski appeared to meet both tests, at least at a minimal level.
Another possibly relevant consideration in this kind of case
is whether raising the insanity defense is seen merely as a
tactical decision. If assertion of the defense could be
construed as a "means" of achieving an "objective of
representation" rather than an objective itself, the ethical
rules suggest that the lawyer's decision governs. Rule
1.2(a). But the more persuasive position is that the
decision to raise an insanity defense is a fundamental one.
If so, and assuming Kaczynski is competent under Moran,
Kaczynski's wishes with respect to the insanity defense
would have been dispositive under the current ethical
As of 2003, the full American Law Institute test was used in17 states, down from its peak of more than 25 states in the early 1980s. Some variation of the M'Naghten/cognitive impairment only test held sway in 23 states, with another five subscribing to M'Naghten plus the irresistible impulse test.. New Hampshire continued to use the "product" testand, as noted earlier, four states, Kansas, Idaho, Montana, and Utah, have abolished the defense, although expert testimony is still admissible on mens rea.
(c) A Closer Look at the Insanity Defense
See Genius v. State, 986 F.Supp. 668 (D.Mass. 1997)(person who kills under influence of voodoo does not necessarily have a "mental disease or defect" for purposes of the insanity defense).
(3) Cognitive Impairment
For an analysis of the "wrongfulness" component of the insanity defense, see Note, Conceptual Ambiguities in the Insanity Defense: State v. Wilson and the New "Wrongfulness" Standard, 30 CONN. L.REV. 1377 (1998).
8.03 Exculpatory and Mitigating Doctrines Other Than Insanity
Compare People v. Brodit, 72 Cal.Rptr.2d 154, 166 (Ct. App. 1998)(defendant may offer expert character testimony, based on standardized tests and personal interview, to the effect that his personality profile does not include a capacity for deviant behavior against children) to R.D. v. State, 706 So.2d 770 (Ala. Crim.App.1997)(admissibility of MMPI and results of penile plethysmograph not admissible to show a lack of deviate sexual personality.)
(e) Defenses Based on Intoxication
A number of states have eliminated the voluntary intoxication defense. Even in those states that retain it, the defense is seldom successful. Indeed, one commentary has concluded that "[i]ntoxication defenses are essentially unavailable as currently construed." Meghan Paulk Ingle, Law on the Rocks: The Intoxication Defenses are Being Eighty Sixed, 57 VAND. L. REV. 606, 631 (2002).
Chapter 9. Sentencing
9.03 A Comparison of Rehabilitative and Retributive Sentencing
(a) The Role of Legal Decisionmakers
(3) The Court
In Booker v. United States, 125 S.Ct. 738 (2005), the Court struck down parts of the federal sentencing guidelines, following Blakely v. Washington,124 S.Ct. 2531 (2004), which declared a state determinate sentencing scheme unconstitutional. These cases held that a sentencing regime that requires the judge to enhance a sentence when he or she finds certain facts violates the right to a jury determination of the basis for punishment. On the other hand, the Court stated in Booker, a sentencing scheme that makes aggravating and mitigating factors "advisory" only does not infringe Sixth Amendment rights, because then the factors are not "elements" of the offense that a jury must find beyond a reasonable doubt, but rather merely sentencing considerations that a judge may use to fashion a sentence. Thus, the Court held, the federal sentencing guidelines are unconstitutional to the extent they bind the sentencing judge, but they can and should be considered by appellate courts as guidelines in determining whether judge imposed sentences are "reasonable;" in fact most sentences since Booker still appear to be based on them. If Booker and Blakely have any impact on clinical participation in the sentencing process, they are likely to increase it, because courts in determinate sentencing states might now be more willing to make "departures" up or down based on an increased array of factors. The decisions may also increase somewhat the likelihood that states will move back toward the "old" indeterminate sentencing approach, since these decisions appear to immunize that approach from Sixth Amendment challenge.
Every state now requires sex offenders to register with local authorities following their release from prison, with some states limiting registration requirements to "sexual predators" and others applying them to a broader group of offenders. Marissa Ceglian, Predators or Prey: Mandatory Listing of Non Predators on Predatory Offender Registries, 12 J. L. & POLICY 843, 845 n.4 (2004). Congress has also enacted a statute requiring all states to disseminate information about these offenders to the extent necessary to protect public safety, leaving up to the states how much information to disclose and the manner of doing so. 42 U.S.C. §14071(e).
Kansas v. Hendricks, 521 U.S. 346 (1997), only briefly mentioned in the text because it was handed down as the book went to press, is worth discussing in detail. The statute at issue in Hendricks, the Sexually Violent Predator Act, permits indefinite confinement of persons who, due to a "mental abnormality" or a "personality disorder," are likely to engage in "predatory acts of sexual violence." Kan. Stat. Ann. § 59 29 O1 et seq. (1994). A "mental abnormality" is defined as a "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." The Kansas Supreme Court invalidated the Act, holding that its pre commitment condition of a "mental abnormality" did not satisfy what the court perceived to be the "substantive" due process requirement that involuntary civil commitment must be predicated on a finding of "mental illness." The U.S. Supreme Court, construing the Kansas statute "to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control," disagreed. According to the Court, "[t]he precommitment requirement of a `mental abnormality' or `person ality disorder' is consistent with the requirements of . . . other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness."
If the Court's language is taken seriously, one can indeed argue that the Kansas statute does not expand commitment beyond its traditional conceptual boundaries. Long term preventive confinement of people with mental disorder has long been justified on the ground that some people are undeterrable, as opposed to merely undeterred, and that it is therefore not a violation of their autonomy to confine them before, rather than after, they have engaged in antisocial behavior. Note, Civil Commitment of the Mentally Ill: Developments of the Law, 87 HARV. L.REV. 1190, 130 (1974). The danger of Hendricks lies in the fact that its expansion of commitment to people with personality disorders could authorize long term, post sentence commitment of vast numbers of criminals (unless the proof of undeterrability required is akin to that available in Hendricks itself, where Hendricks admitted that his urge to molest children was so strong that only death could ensure he would no longer engage in such acts).
Another troubling aspect of Hendricks is the Court's conclusion that the confinement authorized by the Kansas statute is not "punishment" and therefore may be imposed after completion of sentence for the sex crime, despite the double jeopardy clause's prohibition of multiple punishments for the same offense. The Court reasoned that since the confinement was not meant to be incarceration for what Hendricks had done but rather incapacitation for what he might do, it was not punishment. The fact that no treatment might be provided during this incapacitation was irrelevant to the Court. The Court stated that "we have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others." It continued:
While in theory the state may have the authority to confine an untreatable, undeterrable person, see Lynch v. Baxley, 386 F.Supp. 378, 391 92 (M.D. Ala. 1974), in practice the potential for abusing that privilege is immense once it is decoupled from a requirement of serious mental illness.
Hendricks is important not just because of its treatment of special sex offender statutes but because of its implications for civil commitment, the insanity defense, and sentencing generally. If mental abnormality (as distinguished from mental illness) can form the basis for sex offender commitment, it presumably may form the basis for traditional civil commitment as well. Thus, for instance, persons with personality disorders that undermine control of antisocial behavior might be committable, counter to modern trends (see Chapter Ten). Further, if the rationale for permitting confinement of such people is because, to use Thomas' language in the above excerpt, they are "dangerously insane", then many persons with impulse disorders should probably be found insane, and the volitional prong to the insanity defense would be invigorated, again contrary to modern trends (see Chapter 8). Finally, Hendricks has cleared the way for enhanced "sentencing" regimes based solely on dangerousness. See, e.g., People v. Rodarte, 74 Cal.Rptr.2d 321 (Cal. App.2d Dist. 1998)(upholding commitment as a "mentally disordered offender" of a defendant who had finished his two year term for "terrorist threatening," based on the fact that while serving that sentence he wrote a city official calling her a fool and a liar and threatening to kill her, and signed the letter, "Love, Satan"). For further analysis of Hendricks, see Vol. 4, Issue 1/2 of PSYCHOLOGY, PUBLIC POLICY & LAW (1998); PROTECTING SOCEITY FROM SEXUALLY DANGEROUS OFFENDERS 27, 33 (Bruce J. Winick & John Q. LaFond eds., 2002)
In Atkins v. Virginia, 536 U.S. 304 (2003), the Court held that execution of people with mental retardation violates the Eighth Amendment's prohibition against cruel and unusual punishment. The Court based this decision both on a determination that a "national consensus" had been reached that people with mental retardation should not be executed, and on its own conclusion that, because of their cognitive and volitional deficits, people with retardation who kill are never as culpable or deterrable as the "average murderer" and therefore are not among the "worst of the worst" who should receive capital punishment. The Court reached a similar conclusion with respect to juveniles who commit murder before the age of 18, in Roper v. Simmons, 125 S.Ct. 1183 (2005).
The Court left to the states the definition of mental retardation for purposes of implementing Atkins. But it referenced both the American Association of Mental Retardation definition and the American Psychiatric Association definition of that condition in its opinion. Most states have adopted similar definitions (i.e., a significantly subaverage IQ an IQ somewhere below 70 to 75 with significant deficits in adaptive functioning). Alexis Krulish Dowling, Post-Atkins Problems with Enforcing the Supreme Court's Ban on Executing the Mentally Retarded, 33 SETON HALL. L. REV. 773, 789 93 (2003)
9.09 Violence Prediction and Risk Assessment
A recent meta-analysis of studies examining recidivism by mentally disordered offenders provides an excellent review of factors correlated with both general and violent recidivism. The most general conclusion from this meta-analysis is that largely the same factors that are most salient in non-mentally disorder offenders appear to be relevant with the mentally disordered population. Criminologic variables (e.g., delinquency, prior offending history) appear most strongly related to recidivism, while clinical variables (e.g., major mental illness; "insanity") are least predictive of recidivism. This review also demonstrated that risk evaluations based on a structured risk assessment measure were much more predictive of recidivism that were general, unstructured clinical evaluations -- adding further fuel to the debate on the superiority of actuarial methods over clinical ones. See J. Bonta, Law, M., & Hanson, K., The Prediction of Criminal and Violent Recidivism Among Mentally Disordered Offenders: A Meta-Analysis, 123 PSYCHOL. BULL. 123-142 (1998). Also of interest for those who inclined toward actuarial measures in risk assessment is the book describing the research leading to the development and validation of the Violence Risk Assessment Guide (VRAG); see Quinsey, V.L., Harris, G.T., Rice, M.E., & Cormier, C.A., VIOLENT OFFENDERS: APPRAISING AND MANAGING RISK (1998).
With respect to special sentencing issues, a number of excellent review papers addressing recidivism by sex offenders provide important reading and professional guidance for clinicians who may become involved in evaluations related to "sexual predator" preventive detention statutes. While many of the predictors of general recidivism (see above) are also associated with increased risk for sexual reoffending, some factors uniquely associated with sexual recidivism are also identified. For example, a number of reviews note that pedophiles who have targeted non-familial males as victims, and those who have high scores of deviant arousal on penile plethysmograph measures are among those at greatest risk. In addition to Hanson, R.K. & Bussiere, M.T., Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism, 66 J. CONSULT. & CLIN. PSYCHOL. 348-362 (1998), readers are referred to a special issue of PSYCHOLOGY, PUBLIC POLICY & LAW (1997, no. 3).
Part III. Noncriminal Adjudications
Two recent studies reach different conclusions regarding the impact of outpatient commitment. In the first, conducted in North Carolina, researchers concluded that individuals subject to extended outpatient commitment (more than six months), combined with enhanced community services, had fewer days of hospitalization and fewer hospital admissions than individuals either committed on an outpatient basis for shorter periods of time or who received enhanced services without being subject to outpatient commitment. However, this effect applied only to people diagnosed with psychotic disorders, and not to people diagnosed with affective disorders. Marvin Swartz et al., Can Involuntary Outpatient Commitment Reduce Hospital Recidivism?: Findings from a Randomized Trial with Severely Mentally Ill Individuals, 156 AM. J. PSYCHIATRY 1968 (1999).
In contrast, a study of outpatient commitment in New York City found that outpatient civil commitment had no discernible effect on treatment outcomes. In addition, the study found that procedural protections written into the outpatient commitment law were often ignored, and that when individuals were recommitted under the outpatient commitment statute there was often no hearing. Final Report: Research Study of the New York City Involuntary Outpatient Commitment Pilot Program. Policy Research Associates, Inc., Delmar New York (in press).
See also Marvin Swartz et al., Randomized Controlled Trial of Outpatient Commitment in North Carolina, 52 PSYCHIATRIC SERVICES 325 (2001); Virginia A. Hiday, Outpatient Commitment: The State of Empirical Research on Outcomes, 9 PSYCHOL. PUB. POL'Y & LAW 8, 23 (2003) (providing a summary of the research); Susan Stefan, New Research Continues to Challenge the Need for Outpatient Commitment, 31 N.E. J. CRIM. & CIV. CONFINEMENT 109 (2005) (arguing that the research fails to prove the efficacy of outpatient commitment).
Other alternatives to hospitalization have become increasingly popular, including mental health courts. See Annette Christy et al., Evaluating the Efficiency and Community Safety Goals of the Broward County Mental Health Court, 23 BEHAV. SCI. LAW 1 (2005); Eric Trupin & Henry Richards, Seattle's Mental Health Courts: Early Indicators of Effectiveness, 26 INT’L J. L. & PSYCHIATRY 33 (2003). These various alternatives have received a significant legal boost from the U.S. Supreme Court's decision in Olmstead v. Zimring, 527 U.S. 581 (1999).There the Court construed the American with Disabilities Act to require the states to place persons in community settings rather than institutions "when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities."
For a thorough discussion of civil commitment of minors, see G. Melton Et Al., NO PLACE TO GO: CIVIL COMMITMENT OF MINORS (1998).
A study of children admitted to residential treatment showed that those who entered through the child welfare system often did not have serious mental disorders or behavior problems, but they did have serious family dysfunction. John S. Lyons et al., Understanding the Mental Health Needs of Children and Adolescents in Residential Treatment, 29 PROF. PSYCHOL.: RESEARCH & PRAC. 582 (1998).
Chapter 11. Civil Competencies
A number of states, including Alaska, Idaho, Maine, and South Dakota, have added advanced directive provisions to their mental health statutes. These statutes, which may include a form for completing the "treatment preference" directive, seek to provide a way for individuals to express their wishes regarding medication while in a competent, lucid state. This in turn may obviate later, more formal adjudications if the individual, when ill, declines certain treatments: In theory, the declaration of treatment preferences should provide guidance to decision makers regarding this issue. These statutes are part of a larger trend toward attempting to find non-adversarial mechanisms for an individual to express preferences regarding treatment before a question regarding competency arises. At present, there is no research on the application of these directives in the context of mental illness.
The newer generation of "atypical" medications Clozaril, Risperdal, Zyprexa, Seroquel, Geodon, Abilify are less likely to be associated with serious side effects, especially tardive dyskinesia. However, these drugs have numerous negative effects as well, including potentially fatal agranulocytosis (Clozaril), akathisia, dystonia, and parkinsonism (Risperdal), dizziness and drowsiness (Clozaril, Risperdal, Zyprexa), diminished sexual desire (Risperdal), digestive problems (Clozaril, Seroquel, Geodon), weight gain and diabetes (Clozaril, Zyprexa), and anxiety, insomnia, rapid heart rate, or agitation (all).
(c) Research on Informed Consent
A clinical version of the MacArthur treatment competence measure is now commercially available for use in evaluating patients' capacities to consent to (or refuse) psychiatric treatment. It is available through Professional Resource Press, POB 15560, Sarasota, FL 34277-1560.
For an analysis of special problems of competence and voluntariness in research involving substance abusers and a description of current practices in that regard, see Barbara S. McCrady & Donald A. Bux, Ethical Issues in Informed Consent with Substance Abusers, 67 J. CONSULTING & CLIN. PSYCHOL. 186 (1999).
Chapter 13. Federal Antidiscrimination And Entitlement Laws
13.02 Americans with Disabilities Act
In Pennsylvania Department of Corrections v. Yeskey, 118 S.Ct. 1952 (1998), the U.S. Supreme Court held that the ADA applies to prisons.
In March, 1997 the EEOC issued enforcement guidelines defining the scope of mental impairments covered under the ADA. In general, the guidelines opt for broad coverage, including many personality disorders. They also make clear that a claimant's condition may be covered even if medication is effective in treating the condition, contrary to the holdings of some courts to the effect that if a disability is stabilized by medication it does not substantially limit a major life activity. See, e.g., Chandler v. City of Dallas, 2 F.2d 1385 (5th Cir. 1993, but see Harris v. H & W Contracting Co., 102 F.2d 516 (11th Cir. 1996)(presaging EEOC position). These guidelines are not legally binding, however. In the three months after they were issued, 32 of the 37 published mental disability decisions found in favor of the employer. Moreover, no judge had cited the guidelines in an opinion. Michael Higgins, No Sudden Impact: Courts Rejecting Mental Disability Claims Despite EEOC Guidelines Intended to Protect Mentally Ill, ABA JOURNAL 24 (Nov. 1997).
Relevant to the tension between the definition of "disability" and the requirement that the person be "qualified" for the job is a unanimous United States Supreme Court ruling that an individual found to have a total disability under the Social Security Disability Insurance program [see § 13.04] may pursue a claim that he or she is qualified to work under the Americans with Disabilities Act (Cleveland v. Policy Management Systems Corporation, 119 S.Ct. 1597 (1999)). The federal courts of appeal had split on this question, some holding that an individual disabled under the Social Security laws by definition was not qualified for a job under the ADA. The Supreme Court overturned these cases, holding that while there was a strong presumption that someone with a total disability under SSDI would not be otherwise qualified to work under the ADA's definition, the individual should have the opportunity to rebut that presumption. This ruling permits individuals to survive a summary judgment motion, and is consistent with other holdings under the ADA that individual claims must be adjudicated on the facts of the individual case.
(3) Reasonable Accommodation
The EEOC guidelines suggest that different working hours and reassignments to different tasks are, in general, reasonable accommodations. Recent research shows that these types of accommodations result in negligible cost. In one study, workers with mental and behavioral disorders represented only 7% of the population requesting accommodation and the costs of accommodations granted were minimal. Terry Carter, Unhappy to Oblige, ABA JOURNAL 36 (July, 1997)(summarizing studies).
Part IV. Children And Families
Current policy discussions in juvenile justice are complicated by the continuing elongation of the developmental period until financial, social, and psychological independence are achieved. As a result, the argument that juvenile respondents are easily distinguishable from adult defendants (most often, young adults) is increasingly difficult to maintain. See ON THE FRONTIER OF ADULTHOOD: THEORY, RESEARCH, AND PUBLIC POLICY (Frank F. Furstenberg et al. eds., 2005).
(e) The Shrinking of the Juvenile Court
For a detailed argument that juvenile justice reform has been largely driven by public misperceptions or relevant social facts, see FRANKLIN E. ZIMRING, AMERICAN YOUTH VIOLENCE (1998).
With the shrinking of juvenile court jurisdiction, questions about juveniles' competence to stand trial and to make decisions regarding their defense are being discussed increasingly frequently. See, e.g., Thomas Grisso, The Competence of Adolescents as Trial Defendants, 3 PSYCHOL., PUB. POL. & L. 3 (1997); Kirk Heilbrun et al., uvenile Competence to Stand Trial: Research Issues in Practice, 20 LAW & HUM. BEH. 573 (1996). For legal and psychological analyses of the applicability of criminal law issues and assumptions to juveniles, see YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE (Thomas Grisso & Robert G. Schwartz eds., 2000).
For detailed reviews of standardized instruments that may be used in juvenile assessments, see MENTAL HEALTH SCREENING AND ASSESSMENT IN JUVENILE JUSTICE (Thomas Grisso et al. eds., 2005)
(b) The Scope of the Evaluation
For a detailed explication of multisystemic treatment, see SCOTT W. HENGGELER ET AL., MULTISYSTEMIC TREATMENT OF ANTISOCIAL BEHAVIOR IN CHILDREN AND ADOLESCENTS (1998). Recent research on multisystemic treatment has shown its effectiveness to be dependent on therapists' adherence to the principles underlying the approach. Scott W. Henggeler et al., Multisystemic Treatment with Violent and Chronic Juveniles and Their Families: The Role of Treatment Fidelity in Successful Dissemination, 65 J. CONSULTING & CLIN. PSYCHOL. 821 (1997).
A study of barriers to treatment of children with conduct disorders, after omitting the third of the sample who dropped out of treatment (a proportion somewhat lower than in child treatment research generally), made the following principal findings:
2. Barriers to involvement in treatment (e.g. practical constraints in attendance at treatment sessions) were also related to level of change, even when family, parent, and child well-being were held constant.
3. As the level of perceived barriers to participation in treatment increased among families, the amount of therapeutic change and the proportion of cases that made a marked change decreased.
4. Among children at risk for showing relatively little therapeutic change, based on socioeconomic disadvantage, parent psychopathology and stress, and child dysfunction, the perception of few barriers to treatment served as a protective factor (i.e., they attenuated risk).
For recent reviews of the application of multisystemic treatment principles in diverse community settings, see SCOTT W. HENGGELER ET AL., SERIOUS EMOTIONAL DISTURBANCE IN CHILDREN AND ADOLESCENTS: MULTISYSTEMIC THERAPY (2002); CYNTHIA CUPIT SWENSON ET AL., MULTISYSTEMIC THERAPY AND NEIGHBORHOOD PARTNERSHIPS: REDUCING ADOLESCENT VIOLENCE AND SUBSTANCE ABUSE (2005).
For a recent review of the state of the art in juvenile justice services, see PANEL ON JUVENILE CRIME: PREVENTION, TREATMENT, AND CONTROL, JUVENILE CRIME, JUVENILE JUSTICE (2001) (report of the National Academies of Science).
A study of inner-city African-American sixth graders showed that perceived support by extended family members eliminated the relationship between family stressors and child maladjustment. Kristen M. McCabe et al., Family Protective Factors Among Urban African American Youth, 28 J. CLIN. CHILD PSYCHOL. 137, 146 (1999). Parental use of corporal punishment was positively related to children's acting out behavior. Id. at 147.
On the other hand, parental demandingness was a protective factor:
(b) Peer Relations
A study of sixth- and seventh-grade students showed that those spending unsupervised time with peers (compared with those who spent time with parents) reported higher self-reported levels of aggression, delinquency, substance use, and susceptibility to peer pressure, and lower levels of parental monitoring. Adolescents who spent time alone were similar to those who spent their after-school hours with adults. Daniel J. Flannery et al., Who Are They With and What Are They Doing? Delinquent Behavior, Substance Use, and Early Adolescents' After-School Time, 69 Am. J. Orthopsychiatry 247 (1999).
Another study that looked at second- and third-grade teachers' perceptions of the quality of their relationships with students predicted peer-rated aggression two years later. Positive relationships with teachers had the greatest buffering effect on children whose mothers reported rejecting parenting histories. Echoing previous research on the reliability of teachers' and students' judgments, there was little agreement between teachers and students in their perceptions of relationship quality. Jan N. Hughes et al., Influence of the Teacher-Student Relationship on Childhood Conduct Problems: A Prospective Study, 28 J. CLIN. CHILD PSYCHOL. 173 (1999).
In part because of attention given to the personal histories of the juveniles involved in several highly publicized school shootings, there has been an enormous increase in attention given to bullying, especially within schools. See, e.g., BULLYING IN SCHOOLS: HOW SUCCESSFUL CAN INTERVENTIONS BE? (Peter K. Smith et al. eds., 2004). A federal bullying prevention campaign, which includes colorful materials for use by children themselves, is described at http://stopbullyingnow.hrsa.gov. Within that Web page, research summaries can be found in the section for adult readers.
Contextual variables heavily relate to perceptions of juveniles’ treatability and to the dispositions that they ultimately receive. The number of beds in juvenile correctional institutions and the average length of stay within them--in effect, whether there are places to put juveniles who are committed to training schools--are strongly related to changes in the rate of commitment. Gideon Fishman, Ira Schwartz, & Chang ming Hsieh, Commitment of Juveniles to Training Schools, 19 CHILDREN & YOUTH SERVS. REV. 633 (1997). Further, White youth are substantially more likely than ethnic minority youth to be treated within the specialty mental health system. Ann F. Garland & Bridgett A. Besinger, Racial/Ethnic Differences in Court Referred Pathways to Mental Health Services for Children in Foster Care, 19 CHILDREN & YOUTH SERVS. REV. 651 (1997). For detailed discussion of the ways that such social variables affect movement of young people among the various service systems, see generally GARY B. MELTON ET. AL., NO PLACE TO GO: CIVIL COMMITMENT OF MINORS (1998).
For a review of the links between juvenile delinquency and mental health problems, see THOMAS GRISSO, DOUBLE JEOPARDY: ADOLESCENT OFFENDERS WITH MENTAL DISORDERS (2004).
Chapter 15. Child Abuse And Neglect
15.01 The Nature of Abuse and Neglect Proceedings
For several commentaries on developments in child protection policy, see Symposium, Protecting Children from Abuse and Neglect, FUTURE OF CHILDREN, Spring, 1998.
(2) "Neighbors Helping Neighbors": The New Paradigm in Child Protection
For discussion of the programmatic significance of the new perspective, see TOWARD A CHILD CENTERED, NEIGHBORHOOD BASED CHILD PROTECTION SYSTEM (Gary B. Melton et al. eds., 2002).
A systematic trial of this perspective is now being applied on a large scale in Greenville County, South Carolina. See Gary B. Melton, Treating Children Like People: A Framework for Research and Advocacy, __ J. CLIN. CHILD & ADOLESCENT PSYCHOL. ___ (forthcoming). For information on the strategies being used in the initiative, see http://www.clemson.edu/strongcommunities.
Researchers in Glasgow, Scotland, found male unemployment to account for two-thirds of the variance in child maltreatment rate. Bill Gillham, Unemployment Rates, Single Parent Density, and Indices of Child Poverty: Their Relationship to Different Categories of Child Abuse and Neglect, 22 CHILD ABUSE & NEGLECT 79 (1998).
See Leslie Doty Hollingsworth, Child Custody Loss Among Women with Persistent Severe Mental Illness, 28 SOC. WORK RESEARCH 199 (2004).
(e) Biologically Related Foster Parents
Young children account for a disproportionate number of children placed in foster care as a result of abuse or neglect. In a thoughtful analysis of policy changes that are needed to facilitate prompt permanent placements for young children, Barth has noted that economic disincentives are especially powerful obstacles to achievement of permanency for children in kinship care. Richard P. Barth, Permanent Placements for Young Children Placed in Foster Care: A Proposal for a Child Welfare Services Performance Standard, 19 CHILDREN & YOUTH SERVS. REV. 615, 619 22 (1997).
For a thoughtful cognitive-behavioral analysis of the functions that should be assessed in an evaluation on the question of possible termination of parental rights, see Sandra T. Azar et al., The Evaluation of Parental Fitness in Termination of Parental Rights Cases: A Functional-Contextual Perspective, 1 CLIN. CHILD & FAM. PSYCHOL. REV. 77 (1998). Azar and her colleagues warned, id. at 78:
See generally LOIS OBERLANDER CONDIE, PARENTING EVALUATIONS FOR THE COURT: CARE AND PROTECTION MATTERS (2003).
(b) Interviewing the Child
See generally Karen Saywitz & Lorinda Camparo, Interviewing Child Witnesses: A Developmental Perspective, 22 CHILD ABUSE & NEGLECT 825 (1998).
15.07 Adult Cases Related to Abuse and Neglect
(a) Elder Abuse
For a comprehensive review of the limited body of research on elder mistreatment, see ELDER MISTREATMENT: ABUSE, NEGLECT, AND EXPLOITATION IN AN AGING AMERICA (Richard J. Bonnie & R. B. Wallace eds., 2002) (report of the National Research Council).
Chapter 16. Child Custody in Divorce
16.01 The Scope of Clinicians' Involvement in Custody Disputes
Specialists in family law oppose mandating mental health assessments in custody disputes. They also apparently believe that such assessments typically do not contribute to better outcomes for children. Catherine M. Lee et al., Lawyers' Opinions Regarding Child Custody Mediation and Assessment Services: Implications for Psychological Practice, 29 PROF. PSYCHOL.: RESEARCH & PRAC. 115 (1998).
For other useful insights into this issue, see James N. Bow & Francella Quinnell, Critique of Child Custody Evaluations by the Legal Profession, 42 FAM. CT. REV. 115 (2004).
(c) The American Psychological Association Guidelines
For a recent review of factors mediating the effects of divorce on children, see E. Mavis Hetherington et al., What Matters? What Does Not? Five Perspectives on the Association Between Marital Transitions and Children's Adjustment, 53 AM. PSYCHOLOGIST 167 (1998). Pages 21-22.
Chapter 17. Education And Habilitation
17.03 The Structure of the IDEA
Perhaps the greatest controversy about the tenability of the limits of IDEA’s reach focuses on the exclusion of children who are "socially maladjusted." This issue was addressed in a special issue of PSYCHOL. IN THE SCHOOLS (Nov. 2004).
(3) Related Services
See generally Thomas E. Schacht, Evolving Legal Climate for School Mental Health Services Under the Individuals with Disabilities Education Act, 36 PSYCHOL. IN THE SCHOOLS 415 (1999).
(4) Least Restrictive Environment: Mainstreaming
The procedures under IDEA for resolution of conflicts between parents and schools provide for an opportunity to use clinical skills to build parents’ trust. See Howard Margolis, Mediation for Special Education Conflicts: An Opportunity to Improve Family School Relationships, 10 J. EDUC. & PSYCHOL. CONSULTATION 91 (1999).
(4) Disciplinary Procedures
See generally Cathy F. Telzrow, Interim Alternative Educational Settings: School District Implementation of IDEA 1997 Requirements, 24 EDUC. & TREATMENT OF CHILDREN 72 (2001).
IEP teams often lack the competencies needed for full implementation of IDEA’s provisions in regard to behavioral interventions. Carl R. Smith, Behavioral and Discipline Provisions of IDEA 97: Implicit Competencies Yet to Be Confirmed, 66 EXCEPTIONAL CHILDREN 403 (2000).
(a) Specific Skills to Assess
For a behaviorist approach to analysis of the skills to be assessed within the framework of IDEA, see Ethan S. Long et al., Functional Assessment in the Classroom: Ramifications of IDEA 1997, 23(2) BEHAV. THERAPIST 37 (2000).
For an analysis of the law’s preference for positive behavioral interventions and supports (PBS) in response to challenging behaviors of children with disabilities, see H. Rutherford Turnbull et al., IDEA Requirements for Use of PBS: Guidelines for Responsible Agencies, 3 J. POSITIVE BEHAV. INTERVENTIONS 11 (2001).
Excellent guidelines for forensic practice, particularly with respect to report writing, are found in KIRK HEILBRUN, GEOFFREY MARCZYK & DAVID DEMATTEO, FORENSIC MENTAL HEALTH ASSESSMENT: A CASEBOOK (2002). Numerous case reports, each of which illustrates an important principle in forensic assessment, are available as guidelines for forensic examiners.
18.03 Report Writing