Archive for category Politics

“Facilitated Communication” for Autism — Today’s Snake Oil

I’m not going to stomp on any parent of a child with autism seeking out therapies to try to improve their child’s quality of life and long term prognosis.  Robin and I are right there with you.  But how many more devoted parents of autistic children are going to have their lives ruined because of the unjustified belief in “Facilitated Communication”?

This story is typical of several that have come out over the past few years.  An autistic girl “says” through her facilitator that her father is sexually abusing her.  CPS is notified by well-meaning school administrators, and the parents’ lives are systematically destroyed.  The father is jailed, their autistic children are taken away and placed in foster care.  Jobs are lost, reputations are destroyed.  And in the end, when someone actually thinks to perform an actual scientific test to determine whether Facilitated Communication is reliable enough to let the girl testify at trial, the results are pure gibberish:

On Jan. 28 and 29, 2008, Judge Marc Barron held a hearing to determine the accuracy of facilitated communication so that it could be used when Aislinn testified in the coming hearings and her father’s trial. Barron ordered that Scarsella leave the room when Aislinn was asked a question. After the question had been posed, Scarsella could return and facilitate Aislinn’s answer on the keyboard.“Do you have a brother or a sister?” Aislinn was asked.

“3FE65,” she answered.

Could she clarify that answer?

“7BQJVWTTT7YI.”

“What color is your sweater?”

“JIBHJIH.”

Belief is a stubborn thing. There were plenty of signs that Aislinn’s supposed accusations against her father were never valid. In early interviews with police she was unable to name her dog or her grandmother, facts Scarsella didn’t know.

With Aislinn’s FC being the only evidence that abuse had occurred, the charges were dropped. On Feb. 22, 2008, after 80 days in jail, Julian Wendrow was released.

The police said they still feared for the children.

The police said they still feared for the children.

The police said they still feared for the children, yet there was no reliable evidence whatsoever that these accusations had even a shred of truth to them.

Of course this is a sad story.  It’s all too easy to put myself in the position of the father here.  I have an autistic daughter, whose verbal communication is very limited.  Should the school district decide that FC was something to try with Katherine, and some facilitator with an axe to grind decided to make up allegations, I could be lying sprawled out on a urine-covered concrete jail floor just like this man was.  Just like that.

But the real tragedy isn’t that this situation happened.  At least the truth came out, the father is released, and that family can start to work on dealing with the added burdens our wardens of society just heaped on their heads.

No, the real tragedy is that people still buy that FC works for communication with autistic children.  Despite the fact that in simple, blind trials FC has never been shown to work worth a damn, people still believe in it.  These tests are completely simple, folks.  Just like tests disproving ESP, just like they demonstrated above, all you need to do is to ensure the facilitator doesn’t have the knowledge that the autistic person does.  If they don’t know it, they can’t make something up, whether it’s consciously or via some sort of unconscious Ouija board effect.

Take the facilitator out of the room.  Show something to the subject.  Bring them back in and ask them to facilitate a description of the object.  That’s all it takes! If the questions are answered correctly, maybe there’s something to it.  But they aren’t ever answered correctly with autistic children in properly controlled circumstances.  The fact that a man was jailed and arraigned for raping his daughter on the basis of a communication modality that can’t pass this simple test is absolutely insane!

Famed debunker James Randi discusses FC here, specifically referring to the recent claims that a man that was paralyzed in a coma for 23 years was actually conscious the whole time.  He includes links pointing out the fraud, but I think my favorite quote from the article is this (emphasis mine):

My tests of autistic children at the University of Wisconsin-Madison clearly showed that FC was simply a tragic farce.  My findings were totally ignored. The full account of this matter will be discussed in detail in my next book, A Magician in the Laboratory.

They invited  him in to investigate the validity of using FC with autistic children, but when his results didn’t support the theories, they ignored him.

Wegner, Fuller, and Sparrow published a very interesting article tying FC to the “Clever Hans” effect, with a thorough (and damning) survey of scientific test results to date (the article was written in 2001):

The bright hope for FC was soon dimmed by research showing
that many facilitated responses originate with the facilitators themselves
(Felce, 1994; Jacobson, Mulick, & Schwartz, 1995). One
telling study delivered separate questions through headphones to
facilitators and clients, and the resulting answers were found to
match the questions given to the facilitators, not the clients
(Wheeler, Jacobson, Paglieri, & Schwartz, 1993). It turned out that
FC could not uncover facts unknown to the facilitator (Cabay,
1994; Siegel, 1995; Simpson & Myles, 1995). When clients were
given messages or shown objects with their facilitators absent, they
were not able to describe these items in subsequent FC (Crewes et
al., 1995; Hirshoren & Gregory, 1995; Klewe, 1993; Montee,
Miltenberger, & Wittrock, 1995; Regal, Rooney, & Wandas, 1994;
Szempruch & Jacobson, 1993). Although some proponents of FC
attest to its effectiveness even in the face of such evidence (e.g.,
Biklen & Cardinal, 1997), the overwhelming weight of research
indicates that FC consists largely of communication from the
facilitator (Twachtman-Cullen, 1998).

I don’t believe the facilitator in the case I described above acted with conscious malice.  I’m sure something was “facilitated” in the normal course of the daughter’s education that looked incriminating, and the “where there’s smoke there’s fire” effect took off from there.  Certainly the police still smell that smoke, even after it was proven there wasn’t any smoke in the first place.  It’s simply inexcusable that law enforcement personnel would accept what is effectively hearsay evidence without any determination as to the reliability of this communication.

People’s lives are in the balance, folks — people that already carry a heavier burden of duty and responsibility than you likely know.  Don’t let institutional stupidity and wishful thinking — heck, almost every cognitive fallacy in this list, really — drive these parents even further into the dirt.


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Jury Duty — It’s Over!

court-$4000900$300[1]Well, it’s over.  After two days of testimony, the defendant changed his plea to guilty, joining the 17 other defendants in this cocaine-conspiracy case.

I have to say that this was a fascinating experience; almost every aspect of it was interesting, although the way the information came in was often extremely boring.  On Thursday from 1:00 to 5:00 we listened to over 110 wiretapped phone conversations, many of which were in Spanish with a translated transcript, and almost all of which were filled with profanity and drug slang.

After the defendant changed his plea, the judge was kind enough to spend some time answering questions in the jury room with us, so we got a good overview of the way these trials usually go, the sentencing guidelines and requirements, and a lot of the other aspects of the case that we were unaware of from our vantage in the jury box.

One of the interesting things that came out was that I was an alternate, not an actual juror.  Assuming the trial had lasted two weeks as they had originally anticipated, I would have sat there for the whole thing, only to be told to go home without voting at the end.  Considering that, I’m even more happy to have gotten out of the experience early!

I wasn’t that excited about jury duty to start with, but I must say that now that it’s over I have a much greater appreciation for its role in the fabric of our society.  There’s something very hands-on and reassuring — very democratic — about a group of ordinary citizens being empowered to interpret the facts at trial to determine the guilt or innocence of the accused.  I’m sure that process can be abused or fall short of ideal, but it’s still a valuable method of binding us closer together as citizens.  I hope to serve on another jury someday!


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Jury Duty — Empaneled!

sleeping+jury[1]OK, so I was wrong.  I got picked (barely — I was the actual last juror called) to serve on a criminal trial jury for what they think will be a 7 to 8 day trial.  So effectively this week and next week are shot for work.  Obviously I can’t say anything about the actual case, but the whole process has been very interesting so far, if also somewhat boring.  There sure is a lot of downtime in court, particularly for the jury.

The judge is pretty sharp, though, and my fellow jurors seem like an interesting lot, so I’m looking forward to serving.  I’ll have more details after the case is done!


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Jury Duty

jury[1]So what could make the process of adjusting the family to a new baby even easier?  What’s the best gift for a dad that’s already taken time off work to be home, and needs to get back to the pile of stuff that’s accumulated in his absence?

That’s right folks, it’s jury duty!

In an amazing instance of Murphy’s Law, I got a summons for U.S. District Court effective starting this Friday and continuing on until December.  At any point during that time, I’m subject to being called up to Kansas City, Kansas to participate in jury selection and possible empanelment.

This is my first time being involved in the jury process.  From what I understand, I don’t think I’ll have much of a chance of actually being empaneled; the Harris Poll shows that with increasing education your chance of actually serving on a jury drops significantly.  This would seem to square with the anecdotal evidence of my peers, which has been that as soon as one or the other attorney learns that they have a postgraduate engineering degree they have no interest in having him or her on the jury.

There could be many reasons for this, but I’m inclined to flatter myself by thinking that training in rational thought and scientific weighing of evidence is going to be disfavored by the party in the lawsuit that feels their case is weakest, and that they might be more likely to use a peremptory challenge to eliminate such people given a chance.  In any case, it’s an interesting effect.


“The Despotic Power”

The U.S. government has a power so potent and fearful that many 18th and 19th century jurists and political philosophers referred to it as “the despotic power.”

It was viewed as a sometimes-necessary but always-to-be-feared tool of governance. Its exercise was viewed with extreme suspicion and had to be extensively justified. Its judicious use was (and is) critical to urban development, the growth of railroads, canals, highways, pipelines, and utilities. It can allow public development to prevail over the unjustified obstruction of holdout landowners.

And it can easily destroy. It can destroy homes. It can destroy family businesses and farms. It can destroy cherished memories. And it can destroy family legacies that span generations.

It is a governmental power both implied and restricted in the 5th Amendment to the Constitution of the United States.

It is the power of eminent domain.

Eminent Domain Explained

When a government wishes to build a road from one place to another, it’s likely that the road will need to occupy at least some land that is privately-owned. The government may make an offer to purchase this land from the owners, and this offer may be accepted or not. If there is some leeway in the routing of the road, it may be possible to route around owners who do not wish to sell. If this would make the road infeasible to build or use, however, the government has the ability to seize the desired land without consent.

From a legal standpoint, this is because most owned property in the United States is held in “fee simple”. This means, roughly, that title to the property is established by authority of the local or county government and granted to the owner. The title is persistent; that is, it can be transferred to the owner’s heirs after death or sold to someone else given the mechanisms established for the sale of real property in that area.

But the fee simple title to property, being a construct of the state, is not absolute and can be forfeited in several ways. An obvious way is to fail to pay property taxes. The state can initiate proceedings to revoke title to the property in this case. Another way is through the power of eminent domain, wherein the government decides it needs the property and determines to take it whether the owner wants to sell or not.

Constitutional Safeguards and Early Attitudes

One of the principal reasons the Founders established the current Constitutional government was to protect and preserve private property from arbitrary seizure. Madison put it as bluntly as possible in Federalist 54:

Government is instituted no less for protection of the property, than of the persons, of individuals.

Madison’s views on the relationship between property and liberty were strongly influenced by the British libertarian John Locke, who wrote in his second treatise on government:

The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property…

This fundamental motivation — to protect American property from the whims and depredations of the British king and Parliament and thereby secure American liberty and a sovereign American government — gets short shrift from most treatments of history in school, which tend to instead focus on the surface rhetoric of the Stamp Act protests and the Boston Tea Party and go on to characterize the Revolution as a glorified tax revolt.

Rising from this desire to protect property rights, the Founders established specific protections for private property in the Bill of Rights. The 5th Amendment, in particular, reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Note that “due process” is required for any seizure of property. Seizure under color of eminent domain must be for “public use” and the seizure must be counterbalanced with “just compensation” for the value of the property seized. At first these rights applied to federal action only, but with the passage of the 14th Amendment state and local governments were constrained by these 5th Amendment protections as well.

The earliest Supreme Court decisions that reference the seizure of private property go out of their way to stress the terrible nature of eminent domain and the countervailing imperative to protect private property. In the case of Vanhorne’s Lessee v. Dorrance, in 1795, Justice Paterson wrote the following:

The despotic power, as it is aptly called by some writers, of taking private property, when state necessity requires, exists in every government; the existence of such power is necessary; government could not subsist without it; and if this be the case, it cannot be lodged any where with so much safety as with the Legislature. The presumption is, that they will not call it into exercise except in urgent cases, or cases of the first necessity. There is force in this reasoning. It is, however, difficult to form a case, in which the necessity of a state can be of such a nature, as to authorize or excuse the seizing of landed property belonging to one citizen, and giving it to another citizen. It is immaterial to the state, in which of its citizens the land is vested; but it is of primary importance, that, when vested, it should be secured, and the proprietor protected in the enjoyment of it. The constitution encircles, and renders it an holy thing.

Chief Justice Samuel Chase wrote, in Calder v. Bull, 1798:

…[a] law that takes property from A, and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.

The Slippery Slope of Abuse

Over the years, however, shifts in prevailing political philosophy have eroded away many of the inhibitions against the freer use of eminent domain. Both “public use” and “just compensation” have been redefined to greatly expand the number of cases where eminent domain can be used, to the point that the very abuse condemned by Justices Paterson and Chase in the quotes above — the use of eminent domain by the state to take private property from one citizen and give it to another — is now one of its most common uses. So-called “big-box” retailers, such as Wal-Mart, Costco, Target, Lowe’s, Best Buy, and Home Depot to name a few, routinely solicit communities to use eminent domain to provide property for them to build stores upon, often over the objections of the citizens of the community.

The “public use” rationale for these seizures is that the new businesses will increase the tax base of the community, fueling growth. A series of increasingly brazen recent state court decisions, culminating in the recent Kelo decision by the Supreme Court, has legitimized this rationale and cannot but serve to embolden corporate developers to aggressively pursue expansion plans with the power of eminent domain on their side. As Justices Thomas and O’Connor noted in their dissents, legitimizing property transfers with the sole rationale of increased tax revenue dilutes the words “public use” in the Takings Clause to the point of meaninglessness.

A mere desire for growth or additional tax revenue should never be sufficient to justify seizure of a citizen’s private property. To justify use of the eminent domain power, a government should be required to demonstrate a compelling need and a direct, public use.

“Just compensation” has also taken its share of abuse. As this excellent paper from the Cato Institute notes, court decisions have held that only actual confiscations of title trigger the requirement for just compensation. As the paper indicates:

That view enables government to extinguish nearly all uses through regulation—and hence to regulate nearly all value out of property—yet escape the compensation requirement because the all but empty title remains with the owner. And it would allow a government to take 90 percent of the value in year one, then come back a year later and take title for a dime on the dollar.

Since just compensation is generally pegged to an assessed market value, the identity of the assessor becomes relevant as well. There have been several cases where the developer who was to receive the seized property was involved in the assessment process. Several sites on the web, such as Eminent Domain Watch, Castle Coalition, and Coalition for Redevelopment Reform are serving as watchdogs on these abuses. The Freeman, an online magazine affiliated with the Foundation for Economic Education, has an essay entitled “The Blight of Eminent Domain” that details some of these cases of self-dealing and conflict of interest. Here’s one excerpt:

In one attempted use of eminent domain in Anaheim, the company doing the appraisal had a financial interest in the final project. Wouldn’t that be great if you could appraise a property that you wanted to buy?

Time for a Locke-Down on Eminent Domain Abuse

‘Tis a Mistake to think this Fault [tyranny] is proper only to Monarchies; other Forms of Government are liable to it, as well as that. For where-ever the Power that is put in any hands for the Government of the People, and the Preservation of their Properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the Arbitrary and Irregular Commands of those that have it: There it presently becomes Tyranny, whether those that thus use it are one or many. — John Locke

The Kelo decision has struck a resonant chord with many people because it lays bare the ugly truth about how eminent domain is applied and what its effects are on citizens like themselves. In few other places is it nakedly clear what an overwhelming power of oppression that corporate money can produce when coupled with governmental compulsion. The 80-year-old victim of this particular seizure is sympathetic. More than this, however, she is almost the archetype of the dutiful citizen; if it could happen to her, it could happen to anyone, and people know that in their bones and fear it.

There needs to be a strong, immediate reaction against the legitimization of eminent domain abuse and the true threat to private property rights that it represents. There appears to be some movement in certain municipalities and state legislatures (Texas is one) to expressly tighten up the requirements for use of seizure. State legislative action, up to and including amending state constitutions, is probably the best mechanism to redress this issue, but it won’t happen unless there is grassroots pressure from constituents to force the issue. Government is notoriously bad at limiting its power or growth unless there is a specific, strong pressure to do so. The backlash from the Kelo decision could provide that pressure if enough people act.

There are organizations that are already fighting this fight and have been since well before the Kelo decision. The Cato Institute (linked above) has dealt with this issue many times in the past. Institute for Justice, a libertarian public-interest law firm, has litigated many property-rights cases, including the Kelo case. They could always use additional help.

It should also be heartening to remember that this battle not only can be won, but has been won in the past, by the Founders. It can be won again.


Souter to Receive “Just Compensation” For Property Seizure Decision

We in the Midwest (and South, for that matter), are no strangers to the abuse of eminent domain. But now that the decision has been handed down from the Supreme Court of the United States that private property can be seized by governments for transfer to private developers, it looks like we are going to have some exalted company. Freestar Media is in the planning stages of a project for a hotel to be built on Supreme Court Justice David Souter’s property in Connecticut.


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