Wednesday, August 29, 2012

The Zone of Danger: Physical Danger vs. Emotional Danger, Dillon v. Legg (1968)

This bicyclist is in the Zone of Danger, but what about the guy
who is filming him from behind? Is he going to suffer PTSD?
The Zone of Danger. It sounds like a carnival ride. Or a knock-off of a popular 1960s television show. In actuality, it is a real legal concept, and it has a major effect on whether or not we are liable for someone else's injury.

The Zone of Danger is typically defined as the area where a person is in actual physical danger due to the negligent behavior of another person. For example, if your neighbor is building a shoddy addition to his house without a permit from the city, you are in the Zone of Danger if you happen to be walking through the area where the addition would fall were it to collapse. If you are across the street when it collapses, watching and laughing from a safe distance, you are not in the Zone of Danger, and the neighbor is not liable if you strain your back from laughing too hard.

Enter the case of Margery Dillon and David Legg. On September 27, 1964, David Legg ran over and killed two year old Erin Dillon. Cheryl Dillon, Erin's older sister, was next to Erin when Mr. Legg hit her. The mother, Margery Dillon, was over 10 feet away from the girls at the time of the accident.

This incident occurred in Sacramento, California, and the Superior Court of Sacramento County ruled Mr. Legg's driving was negligent. They further ruled Cheryl Dillon could recover for damages because she was in the zone of danger. She literally could have been killed by Mr. Legg's driving. She feared for her life and suffered emotional difficulties as a result of seeing her sister die.

However, the Court ruled Margery Dillon, the mother, was not entitled to recover for damages because she was not in the zone of danger. Although she suffered significant emotional distress because she witnessed one daughter die and another daughter almost die, she was never in danger of dying herself. As such, the Court decided Mr. Legg was not responsible for her emotional damages.

Ms. Dillon appealed her case to the California Supreme Court, which reversed the Superior Court's judgment in 1968. The Supreme Court held the Zone of Danger Doctrine was "improperly restricted to those exposed to physical injury." They extended the Zone of Danger Doctrine to include individuals who were exposed to emotional injury as well. In their majority opinion, the court quoted Prosser (1964): "When a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and will suffer serious shock," (p. 353).

It is important to remember this ruling applies only to California, although it was instrumental in helping change other state laws regarding negligence for emotional damages and the zone of danger. Currently, some states still have laws stating emotional damages are only recoverable if the person has also sustained physical injury. There are other states that are "zone of danger states," such as California. Still other states are considered "foreseeability" states, where a person can recover for emotional damages if it was reasonably foreseeable that emotional suffering was going to be a likely outcome of the negligent act.

Thanks for reading-- Max Wachtel, Ph.D.

Tuesday, August 28, 2012

My Interview With BBC News On The Aurora Shooting

Screenshot from BBC3's documentary The Batman Shootings
I was interviewed a few weeks ago for a BBC documentary on the Aurora Theatre Shooting. The documentary aired last week in the United Kingdom, and it is now available for viewing through BBC3's youtube channel.

Here is a link to the documentary: The Batman Shootings

Thanks for reading-- Max Wachtel, Ph.D.

Monday, August 27, 2012

HIV Is A Disability Under the Americans With Disabilities Act: Bragdon v. Abbott (1998)

Sidney Abbott, with her attorney, c. 1995
In 1994, Sidney Abbott was attempting to get a cavity filled. She scheduled an appointment with Dr. Randon Bragdon, a Bangor, Maine dentist. In the paperwork she completed prior to the dental work, she indicated she was infected with HIV, but was "asymptomatic." Dr. Bragdon referred Ms. Abbott to his written policy that he did not treat HIV+ patients in his clinic, but he would be willing to treat her if she admitted herself to a hospital. He reported she would bear the financial burden of the hospitalization.

Ms. Abbott sued Dr. Bragdon, claiming he violated her rights under the Americans With Disabilities Act (ADA). She argued Dr. Bragdon discriminated against her due to her HIV status.

A lower court sided with Ms. Abbott, and in 1998, the case made its way to the US Supreme Court. The Court agreed with the lower court, deciding HIV and AIDS were disabilities under the ADA. They ruled that "asymptomatic" HIV infection constituted a disability as well.

In the majority opinion, the Court wrote, "(1) the woman's HIV infection, even in the so-called asymptomatic phase, was a disability under 12102(2)(A), because the infection was an impairment which substantially limited the major life activity of reproduction; but (2) remand was necessary because, although there were reasons to doubt whether the dentist had advanced sufficient evidence on the question of risk to the health and safety of others, (a) the Court of Appeals, in determining as a matter of law that the woman's infection posed no direct threat to the dentist's health and safety, might have placed mistaken reliance on various items of evidence, and (b) the Supreme Court, in accepting the case for review, had declined to grant certiorari on the question whether the dentist had raised a genuine issue of fact for trial, with the result that the briefs and arguments presented to the Supreme Court did not concentrate on the question of sufficiency of evidence."

In plain English, the Court decided HIV infection was a disability because it limited Ms. Abbott's reproductive ability (a "major life activity"). But, the Court also decided the case must be remanded to a lower court to determine whether or not the dentist was truly at risk for contracting HIV through his treatment of the patient.

This case set the precedent for HIV and AIDS to be considered disabilities under the ADA, which limits a person's potential to be discriminated against based on those conditions. Interestingly, what we know about HIV and AIDS today is that an HIV+ woman who is asymptomatic is likely to be able to "reproduce" without transmitting HIV to her baby. Thus, asymptomatic HIV infection is probably no longer strictly an ADA disability the way Bragdon v. Abbott defines it. However, there is also strong, clear evidence that a doctor who takes reasonable precautions with all patients is not at risk for contracting HIV.

Thanks for reading-- Max Wachtel, Ph.D.

Friday, August 24, 2012

Twenty-Four Hours, Two Cities, Thirty People Shot

In the wake of the shootings that took place overnight in Chicago, leaving thirty people injured, and in New York City, leaving two people dead and nine injured, I have posted a poll on my Facebook page.

Does the US need to rethink its gun ownership laws? Please vote at this link and weigh in on the discussion.

Obviously, the cause of mass shootings is incredibly complicated. Changing one factor is not going to be enough. But, would limiting guns help reduce violence? Why? Why not? What else would be helpful?

I am hoping to have a respectful discussion. People on all sides have passionate views, but if you just wanting to add vitriol to the discussion, I would prefer you bow out. Please remember, there are hundreds, possibly thousands, of people whose lives have been directly affected by the violence in the last 24 hours--let's be respectful in our discussion of what happened and what could be done to avoid these tragedies in the future.

Thanks for reading-- Max Wachtel, Ph.D.

Wednesday, August 22, 2012

Is The Colorado Death Penalty Unconstitutional?

Where do you fall on the topic of the death penalty?
Two professors at the University of Denver Law School recently published a study making the argument that the death penalty in Colorado is unconstitutional. They argued the following:

1. The US Supreme Court has declared the death penalty is only constitutional if it is used as punishment in the most rare, heinous murders. Plain old first degree murder is not enough--the death penalty would violate a person's Eighth Amendment Rights (cruel and unusual punishment) in all but the most rare cases.

2. Colorado currently has 17 "aggravating factors" that could take a run-of-the-mill murder and make it death penalty eligible.

3. Colorado Court records on murder cases from the last decade indicate about 90% of murders in Colorado qualify for the death penalty.

4. If 90% of murders qualify for the death penalty, it makes no logical sense that only the most heinous of murders would be eligible for the death penalty. Thus, it is unconstitutional to have death penalty laws that apply to the vast majority of murders in the state.

5. The authors go on to make one other argument: Of the cases in the past decade that were eligible for the death penalty, prosecutors actually pursued the death penalty in only 1% of those cases. The authors argue this makes facing the death penalty in Colorado nearly random, which also adds to the unconstitutional nature of the law.

The professors wrote this report at the behest of a criminal defense attorney who is arguing on behalf of his client, an accused murderer. He is attempting to get the District Court Judge to strike down the death penalty in Colorado, declaring it unconstitutional. Regardless of how the judge rules on the case, it is likely that the US Supreme Court will eventually hear the case and make a decision about Colorado's law, which could have far-reaching implications for the other 49 states in the US.

In the short-term, the District Court's ruling may affect whether prosecutors in Arapahoe County, Colorado seek the death penalty for James Holmes, the man accused of murdering 12 people in Aurora last month at the Batman premier.

Here is an interesting link to a news story about this issue produced by Colorado Public Radio.

Thanks for reading-- Max Wachtel, Ph.D.

Monday, August 20, 2012

I Was The Victim of Crime This Weekend

The title is hyperbolic, but I truly was a crime victim this weekend. My wife and I took our kids to a local amusement park, and at some point in the morning, someone stole my wife's phone from her bag. When she first noticed it was missing, we wondered if she had accidentally left it in the car. We thought maybe she dropped it somewhere. But, she kept coming back to the same conclusion: she remembered putting it in her bag after we stopped for a snack, and it was no longer in her bag.

We assumed the phone was gone for good, but I thought it might be a good idea to send a text message to the presumed criminal mastermind. The text read, "Do you have a phone that doesn't belong to you? I would like it back please."

To my astonishment, I received a text message several hours later from my wife's phone. It explained that the current possessor of the phone had just bought it for $50, but that she wanted to give it back to us. She just wanted to be reimbursed for the money she paid for it. She also called me from my wife's phone and left me a voicemail, complete with her own cell phone number.

I assumed she was lying and that she was the one who took the phone in the first place. I also assumed she was monumentally stupid. But, when faced with the choice of standing on the side of principle, not paying her for our own property, and probably not getting the phone back versus paying $50 to avoid the expense of buying a new phone and dealing with potential identity theft issues, my wife and I quickly decided we were getting off cheap for only $50. After a quick text message exchange to arrange where to meet and a stop at an ATM, I paid the woman and got my wife's phone back.

Here is what I could have done: I could have taken a picture of the woman holding my wife's phone. I could have called the police and given them this woman's cell phone number. I could have brought her to justice--the phone is expensive enough that it might have qualified as felony theft. But, it was hot, it was late in the day, the whole family was tired and starving--my wife and I just wanted the phone back so we could go home.

Needless to say, I was in a very bad mood for the rest of the evening. I felt violated. I felt cheated. I couldn't shake the horrible feelings I had about meeting a person who was brazen enough to take someone else's property and then demand they pay her for it. Had I put my children in danger? Could I have been shot? All of these questions and emotions swirled in my mind.

Today, I feel much calmer about the incident. My only lingering regret is that we did not spray the phone thoroughly with Lysol, and I am wondering what weird sorts of ear diseases my wife has been exposed to.

Obviously, this was not a major violation. It may have been a felony, but it was not a big deal for me or my family. Nevertheless, I had a very strong, very negative reaction to it. I can only imagine how a person would respond after an assault, or a rape, or the murder of a loved one.

It makes me curious: Have you been a victim of a crime, big or small? What was your emotional reaction to it?

Thanks for reading this slightly unusual post from me. I'll be back to normal on Wednesday.

Max Wachtel, Ph.D.

Friday, August 17, 2012

Child Criminals Are Different From Adult Criminals

A recent picture of Julie Sanders, a 40 year-old
who was involved in a hate crime as a teenager

Recently, I have written several blog posts highlighting US Supreme Court decisions regarding juvenile offenders and life in prison without parole. Two of them are here and here.

Incarcerating a criminal, no matter the age, has numerous potential goals--to punish the individual, to offer solace to the victim or victim's family, to rehabilitate the offender, to protect the public from future crime. It is in these two last points--rehabilitating the criminal and protecting the public from future danger--where child offenders are largely different from adult offenders.

Children's brains and personalities are not as fully developed as adults'. When they commit crimes, there is a fairly good chance children can change. They can learn the error of their ways and can go on to live productive lives. In all but the rarest instances, these juvenile offenders will not pose a major ongoing threat to the public. Adults are different--many times it is difficult (but not impossible) to rehabilitate an adult offender.

Julie Sanders is a great example of a juvenile offender who was rehabilitated. When she was a teenager, she was involved in a hate crime as a member of a White Power group. Specifically, she was present during the murder of an Ethiopian man.

While incarcerated for her crime, she realized what she had done was horribly wrong, and at the age of 40, she is now working toward a degree in social work so she can work with kids who are at risk for joining hate groups.

What Ms. Sanders did decades ago is horrible. Unforgivable, even. She lives with that thought every day of her life. But, she made a fundamental change when she went from being an incorrigible youth to being a responsible adult, and she is actively working on making the world a better place. This is not a typical story line for an adult offender, but children are different. They deserve different punishment in the legal system.

Here is a link to a news story about Julie Sanders, including audio of her describing her transformation:

A Mother Tries To Atone For A Deadly Hate Crime

Thanks for reading-- Max Wachtel, Ph.D.

Wednesday, August 15, 2012

Psychologists Are Allowed To Make Predictions of Future Dangerousness: Barefoot v. Estelle (1983)

Due To The Testimony From Two Psychiatrists Willing To Say Anyone Is Highly Dangerous, Mental Health Professionals Are Now Allowed to Make Predictions of Future Violence

Mugshot of Thomas Barefoot from 1978
In the summer of 1978, Thomas Barefoot killed Carl Levin, a police officer from Bell County, Texas. He told one of his roommates he was going to commit a robbery after setting a fire to divert the attention of the police. On August 7, he set fire to a nightclub, and an eye witness stated he saw Mr. Barefoot approach Officer Levin from the bushes some hours later and shoot him at point blank range. Mr. Barefoot then went back to his house with a blood splattered shirt and told his roommates he needed to leave because he "wasted a cop."

Mr. Barefoot was arrested later that night at a bus station, still carrying the gun he used to commit the murder. In November of 1978, a Texas jury convicted him of murder and the same jury sentenced him to death.

Some of the crucial evidence the jury heard in deciding their sentence came from two psychiatrists, Dr. John Holbrook and Dr. James Grigson. Both psychiatrists had been hired by the prosecution to comment hypothetically on Mr. Barefoot's risk of acting out in a violent manner at some point in the future. Neither doctor had ever met or talked to Mr. Barefoot, but both claimed to be able to make reasonable predictions of future dangerousness based on their knowledge of psychology and their review of case files.

Both doctors testified it was highly likely that Mr. Barefoot would act in a violent manner in the future. They stated he was sociopathic and could not be treated for his condition. One went on to say that, on a scale of one to ten, Mr. Barefoot was "above a ten" in terms of his sociopathic problems and level of risk to the community.

Mr. Barefoot's attorneys appealed his sentence, arguing the psychiatrists were not competent to predict future dangerousness. They further argued that this incompetence violated the Eighth and Fourteenth Amendments (cruel and unusual punishment & due process). The case made its way to the US Supreme Court, which made its ruling in 1983.

The Court ruled it was not, in fact, unconstitutional for the psychiatrists' testimony to be used in the sentencing hearing. The Court held that "the factfinder" (i.e. the jury) was able to weigh the evidence provided by the psychiatrists and consider its "shortcomings" in a competent manner. It also held that answering hypothetical questions regarding a prediction of risk was fine, as it fit within the rules of evidence for expert witnesses to do so. The Court stated, "The [psychiatrist's] answers to the [hypothetical] questions were so positive as to be assertions of fact and not opinion."

As I mentioned in my previous post on risk assessments, the error rate for predicting future acts of violence in 1983 was about 67%. Two-thirds of the time, psychiatrists were wrong. But, in the Barefoot case, Drs. Holbrook and Grigson were so convinced of Mr. Barefoot's future risk that the US Supreme Court considered their opinions to be "fact."

Thomas Barefoot was executed on October 30, 1984 by lethal injection. In his final statement, he asked forgiveness from Officer Levin's wife and stated the hope that she "drive the bitterness from her heart."

Dr. Grigson testified in hundreds of death penalty cases in his career. He earned the nickname "Dr. Death" for his willingness to testify against capital punishment defendants. Dr. Holbrook, who testified that Jack Ruby was not insane in another famous Texas murder case, also testified against defendants on numerous occasions.

In 1977, both psychiatrists testified at the sentencing hearing for Randall Dale Adams, also convicted of murder. They stated he was so dangerous he would definitely pose a risk to society unless he was executed. Mr. Adams was later exonerated because it was discovered he had been wrongfully convicted--he never actually killed anybody.

Thanks for reading-- Max Wachtel, Ph.D.

Monday, August 13, 2012

Risk Assessment: How Psychologists Predict Future Violent Behavior

Ironically, waiting until the last minute to conduct a
risk assessment may actually increase its accuracy.
Let me get this statement out of the way right at the start: psychologists are pretty bad at predicting the potential for violent behavior. I must also say this: we are a lot better at it than we used to be.

In 1983, the United States Supreme Court decided the landmark case of Barefoot v. Estelle. In this case, the court decided behavioral scientists could competently predict that a specific criminal would engage in future violent behavior "with an acceptable degree of reliability." What was that acceptable degree of reliability in 1983? About 33%.

33% of the time, behavioral scientists could accurately predict whether or not a specific criminal would be violent again. Two-thirds of the time, psychologists got it wrong.

Since that time, there have been huge improvements in the way risk assessments are conducted. Psychologists examine a number of different factors in the individual's life, weigh those factors based on how good (or bad) of a predictor each is on its own, add them all together, and come up with a risk level for the individual. The risk levels are "low," "medium," and "high." Not too shocking.

So what are these risk factors? Generally speaking, they fall into two different camps: static risk factors and dynamic risk factors.

Static risk factors are, as the name implies, pieces of information about a person that do not change over time. These are typically issues from the person's past, such as where he grew up, if he went through any type of abuse as a child, and if he was raised by both parents. There are also some static factors that deal with current information about the individual, such as age (which changes over time, but fairly slowly), and personality structure. We know from research that there are certain life circumstances that correlate highly with future violent acts. By examining these factors, it gives clinicians a reasonable idea of the potential level of risk a person poses.

By far, past violence is the best static predictor of future violence. On its own, it is still not great at predicting a future violent act (for example, a person who has murdered someone in the past is actually not all that likely to murder someone again in the future). But, when past violence is added to a host of other static factors, a clinician's predictive ability rises dramatically. In fact, at the present time, conducting a risk assessment using a static factors method can predict violence (or non-violence) about 65-70% of the time. Still not great, but much better than the 33% that the Barefoot v. Estelle Court thought was acceptable.

When dynamic risk factors are added to static factors, predictive ability rises dramatically. Dynamic factors are those that can change from day to day. Whether the person is in the midst of an acute psychosis or manic phase. If the person's partner just left him and took his kids away. Whether he is actively abusing methamphetamines. These are all factors that can change from day to day or month to month and can increase a person's risk level. But, there is a catch with dynamic factors: as you might imagine, they can change rapidly.

With that rapid change comes great unpredictability. Psychologists cannot look into the future and know what a person's current life circumstances are going to be. Therefore, we cannot rely on dynamic risk factors to help us predict whether a person will act in a violent manner at some unknown point in the future. But, we do know there are a number of dynamic factors that can predict whether a person is going to engage in violence sometime in the next few days (or even the next few weeks, depending on the factors being assessed).

So, here is what we know so far about risk assessment:

1. Psychologists used to be absolutely terrible at predicting future violence. We used to get it wrong two out of three times.

2. We have improved dramatically in this arena. We can accurately predict future violence about 65-70% of the time.

3. We are still not all that great at it. We get it wrong about one in three times.

4. The best current method for assessing the risk of future violence is by examining an individual's static risk factors (Wording in a risk assessment report might look something like this: "Based on a review of Mr. Jones' static risk factors, he is at moderate to high risk for engaging in a violent act sometime within the next seven years").

5. In order to assess for the risk of violence in the short-term (days to weeks), a review of both static and dynamic risk factors is important.

Clearly, we need to get better at predicting violence. The methods we currently use are much better than they used to be, but there is still a lot of room for error. Recent events in Colorado and Wisconsin remind us of the dangers of not catching dangerous individuals before they act. On the flip side, it would be a travesty to take away an innocent person's rights because he may pose a danger at some unknown point in the next decade. I am encouraged by the progress that has been made since 1983, and psychologists are continuing to work hard to refine our approach to risk assessment in order to improve it beyond the 65-70% accuracy threshold. I am sure that, as research progresses, we will get better and better at assessing an individual's risk and protecting society from the its most dangerous citizens.

Thanks for reading-- Max Wachtel, Ph.D.

Wednesday, August 8, 2012

Does Publicizing Mass Murder Cause An Increase In Homicide?

Does one murder cause another murder?
This is a difficult question to answer. The most recent study examining whether or not there was an increase in homicide or suicide rates following a publicized mass murder is from 1989. In his study, Steven Stack from Auburn University examined data from 1968-1980. He looked specifically at mass murders that had been publicized in the media, and he then examined subsequent rates of homicide and suicide.

What he found was that publicized mass murders followed by suicide (i.e. a gunman shoots a bunch of people and then kills himself) led to a significant increase in the general suicide rate following the incident. However, the homicide rate was not affected by mass murder followed by suicide.

Dr. Stack also discovered that publicized mass murders that did not end in suicide showed no increase in subsequent homicide or suicide rates.

One might conclude from Dr. Stack's data that hyping mass murder in the news will not cause an increase in any type of lethal aggression.

But, the world has changed in the last 20 years. In 1989, the 24 news networks were just getting started, and traditional media only had a limited amount of time to discuss mass murders. The public was exposed to very little information about these murders for very little time.

Today's publicized mass murders and mass murder/suicides are a different story. The two recent killings in Aurora, Colorado and Oak Park, Wisconsin have generated a tremendous amount of news coverage. It is no longer enough to talk about the facts of the case. With hundreds of hours of time to fill, news agencies start speculating about motives, they hypothesize about the mind of the killer, and they interview anyone they can find. Social media picks up the ball and runs with it.

Basically, society is bombarded by information about the killings for weeks at a time. I first noticed this at the time of the Columbine murders, and it seems worse today. We then hear reports of "copycat killers" who shoot up their own schools or try to bring guns to their movie theaters. Is it even a coincidence that the mass murder in Wisconsin took place only a few weeks after the mass murder in Aurora? Was the Wisconsin shooter encouraged to act by the media hype surrounding the Aurora shooting?

There is only limited evidence that there is an increase in violence following a publicized mass murder. In a study from 2009, there was shown to be an increase in domestic violence in the days after news reports about domestic violence. In 1978, there was a study showing an increase in private airplane crashes after publicized mass murder. That is about as close as we can get right now to proving the media may be stoking the fires of aggression.

This is an important issue to consider: is today's 24/7 media coverage of mass murders making the problem worse? Just like we need to consider changes to our mental healthcare delivery system, our gun control laws, and a host of other issues, we need to think about whether the media might be able to do something differently to prevent future tragedies. 

Thanks for reading-- Max Wachtel, Ph.D.


Stack, S. (1989). The effect of publicized mass murders and murder-suicides on lethal violence, 1968–1980: A research note. Social Psychiatry, 24(4), 202-208.

Monday, August 6, 2012

The Wisconsin Shooting: Can We Blame Guns Yet?

My heart goes out to the community of Milwaukee, the entire state of Wisconsin, and the members of the Sikh Temple in Oak Creek. Having just experienced the horror of a senseless mass murder in Aurora, I understand your pain, and I wish you had not experienced what happened on Sunday. Even more, I know what pain lies ahead, and I am truly sorry.

Although information is still sketchy, the picture emerging of the shooter is one of hate, psychopathic tendencies, and willful ignorance. The question in my mind is whether someone could have predicted his level of risk to the community. I fear the nation's gun laws contributed to our inability to do so.

When psychologists think about the level of risk someone poses in the immediate future, we look at three main criteria, listed as follows:

1. Does the person have an identified victim? This could be a specific person, or it could be a group of people, such as worshipers at a temple or moviegoers.

2. Does the person have a plan and does he intend to act on it? If someone is filled with rage toward an identified person but has no plan to act on that rage, his level of risk is lower than a person who has come up with a plan to harm others.

3. Does the person have the means to carry out the plan? If someone wants to blow up a building but does not possess a bomb and does not have the intelligence to learn how to build a bomb, his risk level is relatively low. But, if a person has a plan to kill someone with the tire iron in his trunk, his risk level will skyrocket.

It is point number 3--means to carry out a plan--where our gun laws fail us. Despite what some may say, it is incredibly easy for almost any adult to get a gun legally. You can get a gun if you have been arrested before, you can get a gun if you have a severe mental illness, you can get a gun without a waiting period. All through legal means. You can buy guns designed for no other purpose than to kill living things quickly, accurately, and from a distance. Legally.

Almost any person who meets criteria numbers 1 and 2 can quickly and easily gain the means to carry out a horrific assault on others. Even a person who was less than honorably discharged from the military, who was known to belong to a hate group, and who had numerous prior arrests.

Please know I am a strong supporter of the US Constitution and the Bill of Rights. I understand we, as Americans, have the right to bear arms. But, there is a huge difference between a gun that holds six bullets and needs to be cocked between shots and a gun than holds hundreds of bullets and can fire 50 rounds per minute. The former, while still risky, poses much less of a threat in the hands of a murderer than the latter. And, I see nothing wrong with having red flags raised when someone buys 6000 rounds of ammunition online or when a known hate group member buys a gun. By addressing the means to carry out a deadly plan, we as a society can potentially reduce the risk toward others.

I also understand there are very smart people whose opinions on this matter differ from mine. I hope that our society is willing to engage in a civil debate over this issue in the coming months, although I am not going to hold my breath.

Thanks for reading-- Max Wachtel, Ph.D.

Sunday, August 5, 2012

Life Without Parole for Juveniles: Graham v. Florida (2010)

At the age of 16, Terrance Graham and two friends robbed a barbecue restaurant. During the commission of the crime, one of his friends assaulted the restaurant manager, causing injury but not death. He was charged as an adult in Florida, and he accepted a plea bargain for three years of probation.

While he was on probation, Mr. Graham was arrested again for breaking into a house. He denied involvement in the crime, but he acknowledged he violated the terms of his probation. The prosecutor recommended sentences of 30 years (for the robbery) and 15 years (for the home invasion). The defense attorney argued for 5 years. A presentence investigation report recommended 4 years.

The judge in Florida ignored all of recommendations and sentenced Mr. Graham to life in prison without parole.

Mr. Graham appealed his conviction, arguing that sentencing a juvenile to life in prison without parole violates the Eighth Amendment's Cruel and Unusual Punishment clause. His argument was that juvenile's brains and personalities are not fully formed, and they have the ability to change and mature in ways that adults don't. The American Psychological Association weighed in on the U.S. Supreme Court Case, submitting an amicus brief bolstering Mr. Graham's argument.

The Court decided that punishments for crimes should be "graduated and proportional," and they ruled that a sentence of life in prison without parole for juveniles convicted of non-homicide crimes was, in fact, in violation of the Eighth Amendment. However, they upheld the sentence of life in prison without parole for juveniles involved in homicide crimes as constitutional. Their decision reversed the original court's sentence for Mr. Graham, and he needed to be resentenced.

At the time of his resentencing in 2012, Mr. Graham had been in prison for 8 years. After a three-day sentencing hearing, where the judge heard testimony from experts and prison officials that Mr. Graham had matured significantly in that time, the same judge who originally sentenced him to life without parole resentenced Mr. Graham to 25 years. He will be 42 when he is released.

Thanks for reading-- Max Wachtel, Ph.D.

Wednesday, August 1, 2012

Can A State Force Medication On Someone To Make Him Competent To Be Executed? Singleton v. Norris (2003)

Charles Singleton, executed in 2004 for the
murder of Mary Lou York in 1979
On June 1, 1979, Charles Singleton twice stabbed Mary Lou York, the owner of a grocery store in York, Arkansas, while she was working. Although she did not die instantly, she passed away hours later at a hospital due to excessive blood loss.

After he was convicted and sentenced to death, psychiatrists diagnosed Mr. Singleton with Schizophrenia and concluded he was only legally sane if he was medicated. The US Supreme Court already ruled that someone who is insane cannot be executed, as that would constitute cruel and unusual punishment (a violation of the Eighth Amendment).

Mr. Singleton took antipsychotic medication voluntarily for a period of time, but he eventually refused to continue with his medication regimen. His doctors determined he was a danger to himself and others in prison when unmedicated, and he was thus forced to take his medication by court order.

His attorneys appealed his death sentence, as they argued the only thing keeping him eligible for such a penalty was his forced antipsychotic medication. They further argued that because his medication would eventually get him killed, it was no longer in his best interest medically to continue taking it. And, if he stopped taking it, he would quickly decompensate and no longer be eligible for the death penalty. Mr. Singleton's attorneys argued there was precedent against executing an "artificially competent" individual.

Mr. Singleton's case made its way to an Appeals Court, which found that  "(1) as petitioner preferred to take the medication rather than remain in a psychotic state, and as he suffered no substantial side effects, the State's interest in carrying out the sentence outweighed petitioner's interest in avoiding medication; (2) petitioner's due process interests in life and liberty were foreclosed by the lawfully imposed death sentence and the procedures for imposing medication; and (3) the Eighth Amendment did not prohibit executing a prisoner who had become incompetent while on death row but who regained competency through appropriate medical care." 

His attorneys appealed to the US Supreme Court, which did not hear his case. Thus, the Appeals Court decision stood, and his stay of execution was vacated. Although his case made it to the Supreme Court for other reasons, Arkansas ended up executing Mr. Singleton on January 6, 2004.

Although this case opens the door for states to consider forcibly medicating individuals for the sole purpose of restoring them to competency to be executed, it did not answer the question of whether it is constitutional to do so. In Mr. Singleton's case, he admitted he felt better when he was taking his antipsychotic medication, and he was taking it voluntarily for a long period of time. Plus, his doctors determined he was a danger to himself and others when he was off of his medication, which was their rationale for asking the court to order forced medications--his psychiatrist was not asking the court to medication Mr. Singleton for the purposes of execution.

Thanks for reading-- Max Wachtel, Ph.D.


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