STUDIES—Junk Psychological Science Continues to Infect Death-Penalty Determinations

Courts are failing badly in keeping junk psychological science out of the courtroom in criminal cases, permitting the admission of psychological tests that have never been reviewed for reliability and others that have been found unreliable, a recent study reports. Among the problematic tests, another group of psychologists write, is a “psychopathy checklist” commonly used by prosecutors to argue that a defendant poses a future danger to society and should be sentenced to death.

The article, Psychological Assessments in Legal Contexts: Are Courts Keeping “Junk Science” Out of the Courtroom?, which was published February 15, 2020 in the Association of Psychological Science journal, Psychological Science in the Public Interest, looked at 364 psychological assessment tools psychologists reported having used in legal cases. It found that nearly a quarter of the tests were considered unreliable, one-third lacked general acceptance in the field of psychology, “and only about 40% ha[d] generally favorable reviews of their psychometric and technical properties.” Yet, the researchers wrote, legal challenges to the tests were raised in only 5.1% of the 876 state and federal cases reviewed in which the evidence was presented, and those challenges failed about two-thirds of the time.

“There’s a lot of stuff that looks like it’s junk and should be filtered out by the courts, but it’s not being filtered out,” said Arizona State University psychology professor Tess Neal, the lead author of the study.

One controversial psychological test, the Hare Psychopathy Checklist—Revised (PCL–R), came under fire in the American Psychological Association’s journal, Psychology, Public Policy, and Law. In a joint statement first published on-line on January 30, 2020, thirteen expert psychiatrists and psychologists wrote that while the test may have general usefulness in measuring psychopathy “as a construct,” it is “inappropriate [to use] the PCL–R to draw conclusions about an individual’s risk for committing serious violence in high-security custodial facilities.” Such conclusions are often critical in capital sentencing determinations in states such as Texas in which finding that a defendant poses a continuing threat to society is a prerequisite to imposing a death sentence.

The experts criticize the PCL–R as plagued by adversarial allegiance — mental health witnesses called by the prosecution will rate a defendant’s level of psychopathy higher than defense experts will during “evaluations of the same person, made around the same time, and even when made on the same information base.” They also say that “the association between PCL–R scores and serious institutional violence is negligible,” making the test unreliable as an indicator of whether a defendant will actually commit violence in prison. The PCL–R “cannot make predictions that an individual will engage in serious institutional violence with any reasonable degree of precision or accuracy,” they say, “and should not be used for this purpose in capital sentencing evaluations.”

Colorado District Attorneys Drop One Capital Prosecution, Continue a Second, After State Abolishes Death Penalty

After ignoring health risks posed by lengthy court proceedings during the coronavirus pandemic and facing criticism that a capital prosecution following the state’s abolition of capital punishment would amount to a politically partisan waste of taxpayer dollars, prosecutors in Adams County, Colorado have announced that they will drop the death penalty in a high-profile case involving the killing of a sheriff’s deputy.

On March 30, 2020, 17th Judicial District Attorney Dave Young filed papers in the trial court to withdraw pursuit of the death penalty against Dreion Dearing (pictured). Young blamed Colorado Governor Jared Polis for the prosecution’s choice to drop the death penalty, saying the Governor’s commutation of the death sentences of the three men on the state’s death row made continuing to seek the death penalty futile. “The People cannot overcome Governor Polis’ stated intent to forego any death sentence with a stroke of his pen,” Young’s pleading said.

Colorado’s death-penalty abolition law applies only to cases in which capital charges are brought after July 1, 2020, leaving open the possibility that prosecutors could still seek the death penalty in a small number of pending and future cases. In El Paso County, prosecutors are still seeking the death penalty against Marco Garcia-Bravo in a trial in which jury selection has been delayed until at least July 17. “Right now, nothing has changed” regarding the pursuit of the death penalty in that case, 4th Judicial District Attorney’s Office spokeswoman Lee Richards told the Colorado Springs Gazette.

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