Karen Franklin, Ph.D.

Karen Franklin Ph.D.


Appellate Court Rejects Pop Psychology "Past as Prelude"

Federal judge had brushed off evidence of Native man's rehabilitation.

Posted Feb 12, 2014

In a strongly worded ruling, a federal appellate panel has ordered that a Native American man be freed from civil confinement due to evidence of his rehabilitation while in prison. Both a judge and an expert witness had downplayed this evidence, condemning the man as a future risk based on long-ago transgressions, the Fourth Circuit panel concluded.

Byron Neil Antone, a 41-year-old member of the Tohono O’odham Nation of Arizona, was intoxicated when he committed a series of sexual assaults during his early adulthood. Over the course of 14 years in prison, he remained sober, worked hard, and took other steps to rehabilitate himself.

In finding that he met criteria for civil commitment as a Sexually Dangerous Person (SDP), a federal judge had glossed over the evidence of Antone's rehabilitation, including positive testimony from two prison counselors. Likewise, a government evaluator testified that she placed little weight on Antone’s good prison conduct in determining whether he lacked “volitional control” over his sexual impulses.

The justices lambasted expert witness Amy Phenix’s reliance on Antone’s early adulthood misconduct as the best evidence of his future risk.

Expert's opinion "will not carry the day"

"Dr. Phenix explained that her decision to focus on pre-incarcerative acts stemmed from her belief that actions taken while in the outside world are more accurate predictors of future behavior upon release. That is, of course, her choice, but as it relates to our review of the evidentiary record, it will not carry the day. The district court should have at the very least explained why it found Dr. Phenix’s unadorned conclusion more persuasive than that of Dr. [Roy] Daum, who specifically critiqued the former’s technique because it did not allow for a respondent’s subsequent growth."

The justices pointed out that when sex offenders engage in negative conduct in prison, such behavior weighs heavily in predicting their future risk. They listed examples from recent federal cases, including one prisoner who collected pornography and another who showed ongoing sexual interest in children.

The justices lauded Antone’s efforts to rehabilitate himself while in prison, and said his accomplishments merited strong consideration in determining whether he will sexually reoffend due to a lack of volitional control if released.

"There is not much more that he could have done to demonstrate that he is in control of his volitional faculties and that such control is likely to persist after his release.... Since upholding the constitutionality of the [Adam] Walsh Act in 2010, we have disposed of more than a handful of [Sexually Dangerous Person] appeals involving the volitional impairment prong, but none of them involved a respondent who had demonstrated such positive behavior during the extended period of his incarceration.”

A federal magistrate who presided over Antone’s three-day evidentiary hearing had ordered the prisoner freed, but a judge subsequently overturned that verdict, prompting the appeal.

"Paraphilia Not Otherwise Specified" not present

Despite differing on Antone’s volitional control, both the magistrate and the judge agreed that Antone did not suffer from the sexual abnormality of “Paraphilia Not Otherwise Specified” that was diagnosed by Dr. Phenix and Butner prison Manuel Gutierrez.

Antone’s main problem, both agreed, was his substance abuse. The judge, but not the magistrate, also believed he suffered from Antisocial Personality Disorder.

The Fourth Circuit justices pointed out that large proportions of all prisoners have problems with substance abuse and antisociality. Thus, they held, “the Government has failed to distinguish Antone’s alleged volitional impairment from that of a ‘dangerous but typical recidivist’ ” as required under the U.S. Supreme Court's 2002 ruling in Kansas v. Crane upholding the civil commitment of especially dangerous sex offenders.

Treatment paradox acknowledged

The appellate justices also expressed sympathy with Antone’s dilemma in regard to sex offender treatment. Although early in his incarceration he had sought out treatment, he declined to engage in treatment while being held at a federal prison in Butner, North Carolina while his civil commitment petition was in process, citing the fact that any incriminating information he revealed would be used as ammunition against him.

“The district court made reference to the fact that Antone had not attended sex offender treatment. Antone had, however, repeatedly sought this treatment at the beginning of his incarceration to no avail. It is true that he was eventually offered sex offender treatment ... but this choice was effectively no choice at all.”

The Court cited Jeslyn A. Miller’s 2010 article, “Sex Offender Civil Commitment: The Treatment Paradox,” which explains that “[e]verything that an offender confesses during these multiple stages of treatment—including sexual fantasies, uncharged offenses, and gruesome details regarding sexual offenses" may be turned over to prosecutors. 

“Antone is currently attending sex offender therapy,” the justices noted. “One can only be encouraged by Antone’s commitment to self-improvement, rehabilitation, and recidivism prevention.”

The elephant in the courtroom, from my perspective, is the cluster of Native Americans being detained as Sexually Dangerous Persons at the federal detention facility in Butner, North Carolina because their crimes took place on Indian reservations.So, as I’ve mentioned here previously, we have the curious situation in which a cluster of Native Americans who committed rapes while intoxicated are locked up alongside preferential pedophiles and child pornography distributors.

Which raises the question of whether the stereotype of the drunken Indian—powerless to stop drinking and incapable of holding his liquor—may play into government evaluators' refusal to acknowledge the possibility of change in Native American prisoners like Antone who committed sexual offenses in their youths.

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The ruling in United States v. Byron Neil Antone is HERE.

My blog post on the pop psychology myth of "past behavior as the best predictor future behavior" is HERE.

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