Dilemmas in administering the death penalty

This article critiques ethical arguments against conducting forensic evaluations of capital defendants or condemned prisoners and against treating prisoners found incompetent for execution, and considers the impact of widespread professional abstention on the legal system. It concludes that arguments for abstention by forensic evaluators are grounded mainly in personal moral scruples against capital punishment, rather than in tenets of professional ethics, but that abstention would be ethically required if the evaluator's scruples preclude objectivity. It also concludes that treatment of incompetent prisoners known to want treatment is ethically permissible but that treatment for the sole purpose of readying the prisoner for execution is not.Editor's note: Adversary Forum is edited by Gary B. Melton. Stan Brodsky was asked to respond to Professor Bonnie's article, and Professor Bonnie was given an opportunity to reply.This article is based on a paper presented as the Keynote Address to the Annual Meeting of the     

死刑犯一般心理分析与监管对策要略

死刑复核权收归最高人民法院后，死刑犯在看守所的羁押时间延长，监管难度加大。保障死刑犯在看守所的监管安全，要准确分析其心理状态，加强教育转化和心理疏导工作，创新监管模式，改善传统控制手段，争取办案单位和社会力量的支持与配合。     

Karl Olivecrona on Judicial Law‐Making

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term “evaluation” in a sense that is broad enough to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false.     

The Consequences of Prisoners’ Micro‐Resistance

For more than twenty years, scholars have called for greater attention to the consequences of micro‐resistance to legality. Using archival data from Philadelphia's Eastern State Penitentiary (1829–1875), I examine the consequences of noncompliant prisoner behavior. I find that prisoners’ noncompliance often entailed substantial costs to prisoners, particularly in comparison to the substantial benefits of complying with the prison regime. Despite its cost to prisoners, noncompliance did not have a single set of uniformly negative consequences for the prison regime. In fact, some forms of noncompliance may have actually protected the prison's reputation. Prison administrators, external allies, and critics used episodes of noncompliance for their own goals and to reinforce their preexisting claims about the propriety of competing prison designs, yielding this variable significance of noncompliance. As this study illustrates, connecting prisoner misconduct to power dynamics in the broader field produces a fuller understanding of micro‐resistance's consequences.     

Domains of competency to stand trial

Attempts to improve the clinical rigor of competency to stand trial evaluations have resulted in the development of several psycholegal measures. Among the most widely used of these measures are the Competency Screening Test (CST), the Fitness Interview Test (FIT), and the Georgia Court Competency Test—Mississippi State Hospital Revision (GCCT-MSH). To examine the theoretical domains of the competency construct as assessed by these measures, a series of exploratory factor analyses were performed combining previously reported data on the FIT and GCCT-MSH with a new outpatient sample of 353 court referrals. For the CST, data from a previous sample were compared to the original validation study. Of the three measures, only the GCCT-MSH showed evidence of stable, independent factors. A comparison of the GCCT-MSH to theDusky standard suggested a need to further develop empirical measures to better represent underlying constructs related to the defendant-attorney relationship and defendant's participation in his or her defense.     

Same Difference: The “Dilemma of Difference” and the Incarceration of Transgender Prisoners

This article examines the “dilemma of difference” transgender prisoners pose and face within a sex‐segregated prison system organized around the pursuit of safety and security. Our analysis uses data from a study of the culture and experiences of transgender prisoners in four men's prisons. Using qualitative data from interviews with transgender prisoners, focus groups with prisoners, and focus groups with staff, our findings reveal a common contention that transgender prisoners are (according to staff) and should be (according to prisoners) treated like everyone else, despite their unique situations. This further demonstrates the stakes that this dilemma carries for the prison regime and transgender prisoners’ roles in challenging it without engaging in overt resistance—which carries high stakes for them. Accordingly, we elucidate how the rigidity of an institutional structure built on inherent contradictions can have the potential to complicate the achievement of institutional goals.     

Forensic Applications of the Miller Forensic Assessment of Symptoms Test (MFAST): Screening for Feigned Disorders in Competency to Stand Trial Evaluations

Forensic evaluations must systematically assess malingering and related response styles. In the criminal forensic domain, competency to stand trial evaluations are the most common referrals. Effective screens for feigned incompetency would be valuable assets for forensic evaluations. This study evaluates the effectiveness of the Miller Forensic Assessment of Symptoms Test (MFAST) as a screen for feigned incompetency. Using a simulation design, the MFAST was tested on jail and competency-restoration samples. Most notably, recommended MFAST cut score (6) was useful for the identification of feigning cases in competency evaluations. Recommendations for forensic practice, including the advantages and disadvantages of systematic screens, are discussed.     

Mobilizing the Law in China: "Informed Disenchantment" and the Development of Legal Consciousness

This article critically examines the development of legal consciousness among legal aid plaintiffs in Shanghai. It is based on 16 months of research at a large legal aid center and in‐depth interviews with 50 plaintiffs. Chinese legal aid plaintiffs come to the legal process with high expectations about the possibility of protecting their rights; however, they also have only a vague and imprecise knowledge of legal procedure and their actual codified rights. Through this process of legal mobilization, plaintiffs' legal consciousness changes in two separate dimensions: changes in one's feelings of efficacy and competency vis‐à‐vis the law, and changes in one's perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” In this study I observe positive changes in feelings of individual efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. The positive feelings of efficacy and voice provided by the legal process encourage labor dispute plaintiffs in the post‐dispute period to plan new lawsuits and to help friends and relatives with their legal problems. Disenchantment with the promises of the legal system does not lead to despondency, but to more critical, informed action. This study provides new evidence on the nature of China's developing legal system with a focus on the social response to the state‐led “rule of law” project.     

Quality of criminal responsibility reports submitted to the Hawaii judiciary

This paper is the third in a series of research reports on quality of forensic mental health evaluations submitted to the Hawaii judiciary. Previous studies examined quality of reports assessing competency to stand trial (CST) and post-acquittal conditional release, in felony defendants undergoing court-ordered examinations. Utilizing a 44-item quality coding instrument, this study examined quality of criminal responsibility reports in a sample of 150 forensic mental health evaluations conducted between 2006 and 2010 by court-appointed panels. Raters attained high levels of agreement in training and quality coding. Similar to the previous studies, overall quality of reports was mediocre, falling below the .80 quality criterion score for report elements, regardless of evaluator professional identification or employment status. Level of agreement between evaluators and judicial sanity determinations was “fair” using Cicchetti's (1994) standards for interpretation of intra-class correlations. Level of agreement was lower than previously published findings for CST reports and better than conditional release reports. Reasons for mediocre report quality and “fair” inter-rater agreement are discussed, including the fact that criminal responsibility evaluations are complex, retrospective in nature, and involve significant degrees of inference. In contrast to CST evaluations, assessment of criminal responsibility involves a mental state at the time of the offense evaluation. Threats to reliability in forensic reports are discussed. Suggestions for improvement of report quality are proffered, including standardization of procedures and report format and use of forensic assessment instruments.     

Criminal Punishment,Labor Market Outcomes,and Economic Inequality: Devah Pager's Marked: Race,Crime, and Finding Work in an Era of Mass Incarceration

A growing empirical literature examines the role of incarceration in labor market outcomes and economic inequality more broadly. Devah Pager's book, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (2007), offers compelling evidence that employment opportunities for former prisoners—especially black former prisoners—are bleak. I review Pager's methods and findings, place them in the context of previous work, and discuss the relation of race to a criminal record. I then explore several lines of related research that investigate the increasing reach of criminal punishment into various social realms. One goal of this essay is to draw research on economic inequality into the law and society literature.     

Assaults on prison officers: Interactional themes

Little is known of the circumstances surrounding prison inmates' assaults on correctional officers. To provide a foundation for understanding the meaning of these events, this exploratory study analyzes a sample of 694 official reports of assaultive incidents in a large state prison system over a one-year period. Results of a content analysis suggest that assaultive events occur in relation to a number of interactional themes—unexplained, officer's command, protest, search, inmates' fighting, movement, contraband, restraint, discipline, emotional instability, sexual, intoxication, and medical. The study's findings affirm that prisoners and officers must cooperate in order to negotiate each day with a minimum of disruption. When either party violates salient norms, mutually beneficial interaction patterns may break down and violent interactions may result. Officially reported assaults on staff members may be understood most clearly by considering the authority of officers, the autonomy of prisoners, and processes of social control enacted by prisoners and officers alike.     

Spheres of Consent

ABSTRACT

Literature about the vulnerability of female prisoners and the ineffectiveness of sexual assault reform laws is used to explain how the sexual abuse and exploitation of Hawaii's female prisoners became a chronic problem. It is argued that similar problems exist in other states and that the social status of inmate sexual assault victims is not an adequate explanation for an apparent lack of law enforcement. Recommendations for research, staff training, policy development, and political action are included.     

Breaking Bodies Into Pieces: Time,Torture and Bio-Power

This article is an attempt to comprehend the bureaucratic phenomenon of the deathwatch, the last 24 hours of a prisoner’s life, stressing the theoretical applications scholars can make to the study of docile bodies on death row. Because years of work are necessary to obtain obedience from condemned inmates, health care professionals lend more than an aura of legitimacy to the capital punishment process. As an integral part of the prison and capital punishment, they provide stability, reliability, and the means to achieve the goals of peaceful executions. The ultimate objective of utilizing health care professionals is the sanitization of penal practice and penal language to effect the complete absence of resistance from the condemned.     

Procedural justice at German courts as seen by defendants and juvenile prisoners

The article summarizes German research on procedural and distributive justice at criminal courts. The first German field studies addressing these topics are presented. Procedural justice characteristics like neutrality, courtesy, equal consideration of evidence, voice, and fairness of procedural rules are relevant for Germans. A study on juvenile prisoners shows no support for equity theory and some for the Group Value model. Lay assessors receive positive evaluations by juvenile prisoners.     

Conducting Veteran Dependency and Indemnity Compensation Exams: Establishing a Nexus Between Mental Health and Death

Forms of financial compensation have been paid to the beneficiaries of deceased service members since the Revolutionary War. In its current version, Dependency and Indemnity Compensation (DIC) is a tax-free monetary benefit paid to eligible survivors of veterans whose death resulted from a service-related disability. Mental health professionals are called upon to provide medico-legal opinions in DIC claims involving questions of whether a veteran’s service-connected mental illness contributed substantially to their death. The U.S. Department of Veterans Affairs (VA) does not currently employ training programs, competency standards, or best practice recommendations for these specialized evaluations. This article seeks to fill this gap and provide a resource for mental health professionals providing medical opinions in DIC claims.     

The Place for Custody Evaluations in Family Peacemaking

Custody evaluations can serve the dual purpose of providing neutral, objective information to the court while also contributing to the possibility of earlier settlement, which coincides with the therapeutic jurisprudence goal of more positive outcomes for children and families. Research suggests that most cases settle after custody evaluations. However, most of the literature is focused on the use of custody evaluations for litigation. Evaluators, attorneys, and mental health consultants can influence parents to focus more on children's needs and less on their conflict as they go through the evaluation process. This article urges family courts to develop processes and require professionals to learn skills needed for an interdisciplinary process to utilize evaluations in peacemaking.

Key Points for the Family Court Community:
• All custody evaluation processes should aim to reduce and/or shorten children's exposure to parental conflict.
• Evaluators, attorneys, and mental health professional consultants should use the evaluation process to influence parents to be more aware of their children's needs and less invested in their adversarial positions.
• Evaluators should learn to write and orally present information and state opinions with consideration of the parents themselves as consumers of the custody evaluation as well as the court.
• Attorneys and mental health professional consultants should help clients review the report, process their emotional reactions, and consider their options for settlement versus litigation in terms of emotional and financial costs to the family.
• Court processes should be developed to contain the time and cost of custody evaluations and provide dispute resolution after custody evaluations.