Article: Two notable (and notably distinct) new capital punishment papers

Two notable (and notably distinct) new capital punishment papers
http://sentencing.typepad.com/sentencing_law_and_policy/2013/03/two-notable-and-notably-distinct-new-capital-punishment-papers.html

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Top-Ten Recent SSRN Downloads [feedly]

 
 

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Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 14700 Ham Sandwich Nation: Due Process When Everything is a Crime Glenn Harlan Reynolds, University of Tennessee College of Law, Date posted to database: January...

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"Sentencing Policy Adjudication and Empiricism" with a focus on federal child porn sentencing [feedly]

 
 

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"Sentencing Policy Adjudication and Empiricism" with a focus on federal child porn sentencing

The title of this post is drawn from the basic title of this notable new and timely article by Melissa Hamilton now on SSRN and just titled "Sentencing Policy Adjudication and Empiricism." Here is the abstract, which highlights why this piece is especially a must-read for anyone working on federal child porn cases:

Federal sentencing is in disarray with a raging debate pitting Congress, the United States Sentencing Commission, and the federal judiciary against each other. Ever since the Supreme Court rendered the federal guidelines as merely advisory in United States v. Booker, the rate of variances from guidelines' recommendations has increased. After the Supreme Court in Kimbrough v. United States ruled that a sentencing judge could reject the crack cocaine guideline for a policy dispute with a Commission guideline, the variance rate has risen further still. While Booker/Kimbrough permits the judiciary some discretionary authority, it is threatening to the Commission and the legitimacy of its guidelines.

The downward variance rate is at its most extreme with a very controversial crime: child pornography offending. The courts are in disagreement as to whether, as a matter of law, a sentencing judge has the authority to use a Kimbrough-type categorical rejection of the child pornography guideline. Through a comprehensive review of federal sentencing opinions, common policy objections to the child pornography guideline are identified. The guideline is viewed as not representing empirical study, being influenced by Congressional directives, recommending overly severe sentences, and resulting in both unwarranted similarities and unwarranted disparities. The issue has resulted in a circuit split. This article posits a three-way split with four circuit courts of appeal expressly approving a policy rejection to the child pornography guideline, four circuits explicitly repudiating a policy rejection, and three circuits opting for a more neutral position. A comprehensive review of case law indicates that the circuit split is related to unwarranted disparities in sentencing child pornography offenders nationwide. This assessment was then corroborated by empirical study.

The Sentencing Commission's dataset of fiscal year 2011 child pornography sentences were analyzed to explore what impacts policy rejections and the circuit split may have on actual sentences issued. Bivariate measures showed statistically significant correlations among relevant measures. The average mean sentence in pro-policy rejection circuits, for example, was significantly lower than in anti-policy rejection circuits. A multivariate logistic regression analysis was employed using downward variances as the dependent variable. Results showed that that several circuit differences existed after controlling for other relevant factors, and they were relatively consistent with the direction the circuit split might suggest.

The article concludes that the child pornography guideline suffers from a multitude of substantial flaws and deserves no deference. It also concludes that there are no constitutional impediments to preventing a district judge from categorically rejecting the child pornography guideline. Booker and its progeny stand for the proposition that there are no mandatory guidelines, even if a guideline is the result of Congressional directive.

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Journal Alert: J Am Acad Psychiatry Law Table of Contents for 1 March 2013; Vol. 41, No. 1

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JAAPL Online Table of Contents Alert

A new issue of Journal of the American Academy of Psychiatry and the Law Online is available online:

1 March 2013; Vol. 41, No. 1

The below Table of Contents is available online at: http://www.jaapl.org/content/vol41/issue1/index.dtl?etoc

---

Editorial

---

Coercion in Research: Are Prisoners the Only Vulnerable Population?

Barbara E. McDermott

J Am Acad Psychiatry Law 2013;41 8-13
http://www.jaapl.org/cgi/content/full/41/1/8

---

Biography

---

Doing It All: Reflections on Debra A. Pinals, MD, 39th President of AAPL

Thomas G. Gutheil

J Am Acad Psychiatry Law 2013;41 14-17
http://www.jaapl.org/cgi/content/full/41/1/14

---

Regular Article

---

Believing Doesn't Make It So: Forensic Education and the Search for Truth

Charles L. Scott

J Am Acad Psychiatry Law 2013;41 18-32
http://www.jaapl.org/cgi/content/abstract/41/1/18

Commentary: Forensic Education and the Quest for Truth

J. Richard Ciccone

J Am Acad Psychiatry Law 2013;41 33-37
http://www.jaapl.org/cgi/content/abstract/41/1/33

Locks, Keys, and Security of Mind: Psychodynamic Approaches to Forensic Psychiatry

Jessica Yakeley and Gwen Adshead

J Am Acad Psychiatry Law 2013;41 38-45
http://www.jaapl.org/cgi/content/abstract/41/1/38

Commentary: Forensic Psychotherapy

Victor A. Altshul

J Am Acad Psychiatry Law 2013;41 46-48
http://www.jaapl.org/cgi/content/abstract/41/1/46

A Longitudinal Study of Administrative Segregation

Maureen L. O'Keefe, Kelli J. Klebe, Jeffrey Metzner, Joel Dvoskin, Jamie Fellner, and Alysha Stucker

J Am Acad Psychiatry Law 2013;41 49-60
http://www.jaapl.org/cgi/content/abstract/41/1/49

Commentary: Toward an Improved Understanding of Administrative Segregation

Robert H. Berger, M. Paul Chaplin, and Robert L. Trestman

J Am Acad Psychiatry Law 2013;41 61-64
http://www.jaapl.org/cgi/content/abstract/41/1/61

Fathers for Change: A New Approach to Working With Fathers Who Perpetrate Intimate Partner Violence

Carla Smith Stover

J Am Acad Psychiatry Law 2013;41 65-71
http://www.jaapl.org/cgi/content/abstract/41/1/65

Dual Agency and Ethics Conflicts in Correctional Practice: Sources and Solutions

Ana Natasha Cervantes and Annette Hanson

J Am Acad Psychiatry Law 2013;41 72-78
http://www.jaapl.org/cgi/content/abstract/41/1/72

Combat-Related Posttraumatic Stress Disorder and Criminal Responsibility Determinations in the Post-Iraq Era: A Review and Case Report

Richard L. Frierson

J Am Acad Psychiatry Law 2013;41 79-84
http://www.jaapl.org/cgi/content/abstract/41/1/79

---

Analysis and Commentary

---

Competency to Stand Trial and Defendants Who Lack Insight Into Their Mental Illness

Andrew D. Reisner, Jennifer Piel, and Miller Makey, Jr

J Am Acad Psychiatry Law 2013;41 85-91
http://www.jaapl.org/cgi/content/abstract/41/1/85

Addiction Postulates and Legal Causation, or Who's in Charge, Person or Brain?

David L. Wallace

J Am Acad Psychiatry Law 2013;41 92-97
http://www.jaapl.org/cgi/content/abstract/41/1/92

Parental Alienation, DSM-5, and ICD-11: Response to Critics

William Bernet and Amy J. L. Baker

J Am Acad Psychiatry Law 2013;41 98-104
http://www.jaapl.org/cgi/content/abstract/41/1/98

The Ninth Circuit's Loughner Decision Neglected Medically Appropriate Treatment

Alan R. Felthous

J Am Acad Psychiatry Law 2013;41 105-113
http://www.jaapl.org/cgi/content/abstract/41/1/105

Limitations of Constitutional Protections in Jackson v. Indiana Pertaining to Charges With No Statute of Limitations

Liban Rodol, Martin F. Epson, and Joseph D. Bloom

J Am Acad Psychiatry Law 2013;41 114-120
http://www.jaapl.org/cgi/content/abstract/41/1/114

---

Legal Digest

---

Mentally Ill in Police Custody: Subjective Standard Denied

Tobias Wasser and Laurel Edwards

J Am Acad Psychiatry Law 2013;41 121-123
http://www.jaapl.org/cgi/content/full/41/1/121

Ready or Not? Expert Testimony in Competency Proceedings

John Bonetti and Victoria M. Dreisbach

J Am Acad Psychiatry Law 2013;41 123-125
http://www.jaapl.org/cgi/content/full/41/1/123

Family Preservation Versus Child Wellbeing Under the Indian Child Welfare Act

Rebecca Weiss, Lindsay M. S. Oberleitner, and Caroline J. Easton

J Am Acad Psychiatry Law 2013;41 125-127
http://www.jaapl.org/cgi/content/full/41/1/125

Sleep Terrors and the Restriction of Expert Witness Testimony

Remy A. Sirken and Caren Teitelbaum

J Am Acad Psychiatry Law 2013;41 127-129
http://www.jaapl.org/cgi/content/full/41/1/127

Difficulties in Determining Competency and Appropriate Sentences for Defendants With Intellectual Impairments

Kendell L. Coker and Madelon V. Baranoski

J Am Acad Psychiatry Law 2013;41 129-132
http://www.jaapl.org/cgi/content/full/41/1/129

Special Considerations and Disposition for Persons With Intellectual Disabilities in the Criminal Justice System

Joseph Chien and Susan Parke

J Am Acad Psychiatry Law 2013;41 132-134
http://www.jaapl.org/cgi/content/full/41/1/132

Missouri Supreme Court Reverses Judgment on a Wrongful-Death Claim Following a Suicide

Dor Marie Arroyo-Carrero and Charles Dike

J Am Acad Psychiatry Law 2013;41 134-136
http://www.jaapl.org/cgi/content/full/41/1/134

Sexually Violent Predators Have a Right to Competent Counsel

David D. Vachon and Reena Kapoor

J Am Acad Psychiatry Law 2013;41 136-138
http://www.jaapl.org/cgi/content/full/41/1/136

Tort Reform Legislation: Connecticut Supreme Court Clarifies Standard for Negligence Action Against a Health Care Provider

Olumide O. Oluwabusi and Kevin V. Trueblood

J Am Acad Psychiatry Law 2013;41 138-140
http://www.jaapl.org/cgi/content/full/41/1/138

Too Dangerous to Be NGRI?

Taiye Ogundipe and Chandrika Shankar

J Am Acad Psychiatry Law 2013;41 140-142
http://www.jaapl.org/cgi/content/full/41/1/140

---

Books and Media

---

The Ugly Laws: Disability in Public

William J. Phelan, IV

J Am Acad Psychiatry Law 2013;41 143-144
http://www.jaapl.org/cgi/content/full/41/1/143

Violence Goes to College: An Authoritative Guide to Prevention and Intervention

Stewart S. Newman

J Am Acad Psychiatry Law 2013;41 144-145
http://www.jaapl.org/cgi/content/full/41/1/144

American Legal Injustice: Behind the Scenes With an Expert Witness

Howard H. Sokolov

J Am Acad Psychiatry Law 2013;41 145-146
http://www.jaapl.org/cgi/content/full/41/1/145

Women in Psychiatry: Personal Perspectives

Cheryl D. Wills

J Am Acad Psychiatry Law 2013;41 146-148
http://www.jaapl.org/cgi/content/full/41/1/146

The Intouchables: Who Defines Antisocial?

Kenneth J. Weiss and Samson Gurmu

J Am Acad Psychiatry Law 2013;41 148-152
http://www.jaapl.org/cgi/content/full/41/1/148

Hope Springs: A New Spring in Depicting Therapists and Treatment by Hollywood?

Mark S. Komrad

J Am Acad Psychiatry Law 2013;41 152-153
http://www.jaapl.org/cgi/content/full/41/1/152

---

Letters

---

Letters

Mary Hartshorn

J Am Acad Psychiatry Law 2013;41 154
http://www.jaapl.org/cgi/content/full/41/1/154

Letters

Adam Bayes and Matthew Large

J Am Acad Psychiatry Law 2013;41 154-155
http://www.jaapl.org/cgi/content/full/41/1/154-a

Letters

Anneliese A. Pontius

J Am Acad Psychiatry Law 2013;41 155-156
http://www.jaapl.org/cgi/content/full/41/1/155

Reply

Paul R. S. Burton, Dale E. McNiel, and Renée L. Binder

J Am Acad Psychiatry Law 2013;41 156-157
http://www.jaapl.org/cgi/content/full/41/1/156

Letters

Geoffrey Neimark and Matthew Hurford

J Am Acad Psychiatry Law 2013;41 157
http://www.jaapl.org/cgi/content/full/41/1/157

---

Competency to Stand Trial and Defendants Who Lack Insight Into Their Mental Illness

Link to abstract below.

http://www.jaapl.org/content/41/1/85.abstract?etoc

Research Byte: When Forensic Examiners Disagree: Bias, or Just Inaccuracy?

PT J
AU Mossman, D
AF Mossman, Douglas
TI When Forensic Examiners Disagree: Bias, or Just Inaccuracy?
SO PSYCHOLOGY PUBLIC POLICY AND LAW
AB Previous investigators have suggested that bias might account for the
disparate rates at which examiners conclude that defendants are
competent to stand trial (CST). This article describes three computer
studies of how biases and imperfect accuracy might affect rates of
disagreement. Study 1 assumed that examiners could discriminate between
competent and incompetent accurately (effect size = 1.81, receiver
operating characteristic area = 0.90) and used computer simulation of
20,000 pairs of CST evaluations to determine how different judgment
thresholds (e. g., thresholds exemplifying biases toward opinions that
defendants were competent or incompetent) would elevate disagreement
rates above those expected through chance error alone. Studies 2 and 3
evaluated the assumptions of Study 1 using previously published data to
make inferences about examiner accuracy and threshold locations.
Imperfect accuracy alone would often explain much between-examiner
disagreement, even if examiners approached evaluations with distinct
biases. Results from Studies 2 and 3 suggested that assumptions used in
Study 1 were reasonable. Many instances of between-examiner disagreement
might be attributable to imperfect accuracy that expresses itself in
random errors, rather than to examiner biases that imply different
thresholds for judging defendants' competence.
PD FEB
PY 2013
VL 19
IS 1
BP 40
EP 55
ER

Texas Tribune - Bill Would Limit Execution of Intellectually Disabled

> http://www.texastribune.org/2013/03/06/bill-would-limit-execution-intellectually-disabled/
> March 6, 2013 | Texas Tribune
>
> Bill Would Limit Execution of Intellectually Disabled
> by Brandi Grissom
>
> Before Texas executed Marvin Wilson last year for the 1992 murder of Jerry Robert Williams in Beaumont, his case generated headlines, reminding the nation of a rather unique corner of death penalty law here.
>
> The standards used to determine whether a Texan convicted of murder is mentally fit to be executed are based in part on the fictional character Lennie from John Steinbeck's classic novel Of Mice and Men, a fact that enraged the author's son.
>
> "I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic," Thomas Steinbeck said, calling for a halt to Wilson's execution. "I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way."
>
> State Sen. Rodney Ellis, D-Houston, said Wilson's execution and other cases left him feeling embarrassed for his home state. "It's junk science. Its not a credible way of making a decision," he said.
>
> So Ellis filed Senate Bill 750, which would establish new — and, he argues, more scientific — standards to determine when a convicted Texan is too intellectually disabled to face the death penalty. The bill revives a decade-old fight with prosecutors, who argue that the current standards are adequate and that Ellis' proposal would make it too easy for defendants to make a case that they are mentally retarded and exempt from the death penalty.
>
> "Sen. Ellis' proposal creates two or three additional bites at the apple for a defendant to show he is mentally retarded, and it skews the process," said Shannon Edmonds, spokesman for the Texas District and County Attorneys Association.
>
> In 2001, Texas lawmakers approved a bill by then-state Rep. Juan "Chuy" Hinojosa, D-McAllen, now a state senator, that would have implemented new requirements for courts to have independent experts evaluate defendants to determine whether they were mentally retarded. Gov. Rick Perry vetoed the bill. In a proclamation with his veto, he argued that existing safeguards were effective in preventing the execution of the mentally disabled.
>
> The U.S. Supreme Court in 2002 ruled in Atkins v. Virginia that states could not execute the mentally disabled because it violates the constitutional ban on cruel and unusual punishment. But it allowed states to develop their own criteria for mental disabilities.
>
> Texas lawmakers, though, were unable to agree on criteria. Prosecutors wanted a standard in which jurors would decide during the penalty phase of a capital murder trial whether a defendant was too intellectually disabled to face execution, allowing them to consider the person's past crimes in the decision-making. Defense lawyers supported creating a process that allowed a judge to evaluate the defendant's mental fitness.
>
> "A legislative fix is always preferable to a judicial fix when the parties can come together and agree on a solution," Edmonds said. "The problem is that prosecutors and anti-death penalty advocates have never been able to agree on how to address this legislatively."
>
> In 2004, when Jose Garcia Briseño's case came before the Texas Court of Criminal Appeals, the nine judges were without legislative guidance and developed their own standards. Lawyers for Briseño, who is still on death row, argued that he was mentally retarded and should not face execution for the 1991 murder of a Dimmit County sheriff's deputy. The court rejected those arguments and in the process developed the so-called Briseño factors that are used now to determine whether Texas defendants are eligible for the death penalty.
>
> The Texas Court of Criminal Appeals invoked, in part, an evaluation of Lennie from Steinbeck's book, writing that "most Texas citizens would agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution. But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"
>
> The court's three-part definition requires the convicted inmate to have below average intellectual function, to lack adaptive behavior skills and to have had those problems prior to age 18.
>
> Lawyers for at least 90 Texas death row inmates have brought so-called Atkins claims before the courts, arguing that their clients' limited cognitive functioning exempted them from execution. Of those, 14 have been deemed mentally retarded and their sentences commuted to life in prison.
>
> Prosecutors stopped asking legislators to approve standards after the court adopted the Briseño standards, Edmonds said, because they wearied of the fight with defense lawyers and because they were mostly satisfied with court's solution.
>
> "I think Texas can continue under the current standard and remain in compliance with Supreme Court case law," Edmonds said.
>
> But defense lawyers say that Texas still puts mentally retarded defendants to death, flouting the Supreme Court's prohibition. They argue that Ellis' bill is a critical step to ensure that the courts rely on scientific evaluations of mental capacity and that the state doesn't violate the constitutional ban on cruel and unusual punishment.
>
> "Reliance on the Briseño factors is frankly something that has made the state the butt of much scientific criticism," said Kathryn Kase, director of the Texas Defender Service, which represents death row inmates.
>
> Ellis' bill would use the definition developed by the American Association on Intellectual Developmental Disabilities to determine whether a defendant is eligible for the death penalty. A key part of the standard set out in the proposal is that the defendant must have an IQ of 75 or below to be exempt from execution. Delaware, Idaho, Kentucky, Maryland, New Mexico, Nebraska, North Carolina, South Dakota, Tennessee and Washington use similar standards, but require an IQ of 70 or below for exemption.
>
> "The most appropriate thing for state statute is to be parallel to existing definitions that are existing professionally within the field," said Ed Polloway, dean of graduate studies at Virginia's Lynchburg College and a member of the AAIDD's death penalty task force. The task force is developing a guide for states to use to evaluate defendants for intellectual disabilities.
>
> "Our attempt is to stay as close to the science as possible," Polloway said.
>
> The AAIDD's definition of intellectual disability, he said, is used to determine state and federal aid for programs like Medicaid and special education placement in schools. The existing Texas death penalty standard, Polloway said, would allow for the execution of individuals who are considered intellectually disabled for the purposes of government programs.
>
> Ellis said basing decisions about who is fit for execution on established scientific research would save Texas money it would otherwise spend fighting inmates' appeals.
>
> "It will protect the rule of law and the integrity of our judicial system," he said.
>
>
>

James Flynn March 2012 APA Monitor Interview o the Flynn Effect

Interview of Dr. Flynn on the Flynn Effect can be read here.

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Research Byte: When Forensic Examiners Disagree: Bias, or Just Inaccuracy?

Title: When Forensic Examiners Disagree: Bias, or Just Inaccuracy?
Author(s): Mossman, Douglas
Source: PSYCHOLOGY PUBLIC POLICY AND LAW, 19 (1): 40-55 FEB 2013
IDS#: 085VS. ISSN: 1076-8971

Article: Revising the ICD Definition of Intellectual Disability: Implications and Recommendations

Revising the ICD Definition of Intellectual Disability: Implications and Recommendations
https://www2.gotomeeting.com/register/187978546