Predicting Predicting DangerousnessDangerousness

Case Study: Sex OffendersCase Study: Sex Offenders

Colman Lynch Colman Lynch April 9, 2007April 9, 2007

Sex OffendersSex Offenders

Often seen as a distinct class of criminalOften seen as a distinct class of criminal Stephen J. Morse, “Uncontrollable Urges Stephen J. Morse, “Uncontrollable Urges

and Irrational People” – “Sexual predators and Irrational People” – “Sexual predators fall into the gap between criminal and civil fall into the gap between criminal and civil confinement” in that they are rational and confinement” in that they are rational and sane, and know “the applicable moral and sane, and know “the applicable moral and legal rules,” but cannot entirely control legal rules,” but cannot entirely control their actions. This has been used to justify their actions. This has been used to justify indefinite involuntary civil commitment as indefinite involuntary civil commitment as a preventive measure. a preventive measure.

Civil CommitmentCivil Commitment In 1990, Washington enacted its Sexually Violent Predator In 1990, Washington enacted its Sexually Violent Predator

statute – the first to allow for post-incarceration civil statute – the first to allow for post-incarceration civil commitment commitment

Inspired by events in the late 1980s where a mentally Inspired by events in the late 1980s where a mentally retarded man with a 25-year history of sex crimes raped retarded man with a 25-year history of sex crimes raped and stabbed a young boyand stabbed a young boy

Previously, it was an “either-or” situation: sex offenders Previously, it was an “either-or” situation: sex offenders would go to jail or to a civil treatment programwould go to jail or to a civil treatment program

The Washington law required confinement and treatment The Washington law required confinement and treatment for those convicted of “violent sexual crimes,” following the for those convicted of “violent sexual crimes,” following the completion of their criminal punishment, indefinitely.completion of their criminal punishment, indefinitely.

It only applied to those considered to have mental It only applied to those considered to have mental conditions that predisposed them to violent sexual crimes, conditions that predisposed them to violent sexual crimes, even after time spent in jail. even after time spent in jail.

Civil Commitment Laws Civil Commitment Laws SpreadSpread

In the early 1990s, several states In the early 1990s, several states followed Washington’s leadfollowed Washington’s lead

As in Washington, many of them As in Washington, many of them previously had civil commitment previously had civil commitment statutes requiring a “recent overt statutes requiring a “recent overt act” – so time spent in prison would act” – so time spent in prison would effectively insulate the offender from effectively insulate the offender from being committedbeing committed

General Criticism of Civil General Criticism of Civil Commitment LawsCommitment Laws

Preventive detention is not supported by previous Preventive detention is not supported by previous American lawAmerican law

A March 2007 series of New York Times articles A March 2007 series of New York Times articles described failed attempts at treatment, with described failed attempts at treatment, with “uncertified non-experts” testifying in the “uncertified non-experts” testifying in the hearings, and found release from civil hearings, and found release from civil commitment programs exceedingly rarecommitment programs exceedingly rare

Approximately 2700 men are currently in such Approximately 2700 men are currently in such programs, which cost four times more per inmate programs, which cost four times more per inmate than jailthan jail

250 have been released unconditionally, half of 250 have been released unconditionally, half of whom were considered not to have completed whom were considered not to have completed treatmenttreatment

Problems with Civil Problems with Civil Commitment Laws: Inaccurate Commitment Laws: Inaccurate

PredictionsPredictions Robert A. Prentky, et al. (2006): Because science is being used to Robert A. Prentky, et al. (2006): Because science is being used to

justify deprivation of liberty, we need to be absolutely sure it’s justify deprivation of liberty, we need to be absolutely sure it’s accurate. accurate. – Determinations of “mental abnormality” are difficult because there are Determinations of “mental abnormality” are difficult because there are

no “acute psychiatric symptoms tied closely to the predicted harm.”no “acute psychiatric symptoms tied closely to the predicted harm.” There are 4 recognized diagnoses that could support the “volitional There are 4 recognized diagnoses that could support the “volitional

impairment” standard: impulse control disorders, adult antisocial behavior, impairment” standard: impulse control disorders, adult antisocial behavior, mood disorders/ADHD, sexual disorders, and personality disorders. mood disorders/ADHD, sexual disorders, and personality disorders.

– Many of the individuals subject to such laws have been imprisoned for Many of the individuals subject to such laws have been imprisoned for years; changed conditions make such predictions more hazardous.years; changed conditions make such predictions more hazardous.

– For mental and physical reasons, criminal sexual behavior appears to For mental and physical reasons, criminal sexual behavior appears to decrease with age. Civil commitment is mainly likely to come up with decrease with age. Civil commitment is mainly likely to come up with offenders old enough to have been convicted several times. offenders old enough to have been convicted several times.

– The effect that psychological treatment has on such behavior is The effect that psychological treatment has on such behavior is unclear, and not enough time has passed to determine their success. unclear, and not enough time has passed to determine their success. Two aspects of these programs makes them less likely to succeed: Two aspects of these programs makes them less likely to succeed: their involuntary nature, and the lack of clarity of their goals their involuntary nature, and the lack of clarity of their goals (rehabilitation, or incapacitation?). (rehabilitation, or incapacitation?).

– The individual nature of civil and criminal proceedings makes them The individual nature of civil and criminal proceedings makes them inappropriate for actuarial analysis – it isn’t fair to determine the base inappropriate for actuarial analysis – it isn’t fair to determine the base rate of failure where N=1. There are also homogeneity issues. rate of failure where N=1. There are also homogeneity issues.

Which is more problematic – false positives or false negatives? Which is more problematic – false positives or false negatives?

Problems with Civil Problems with Civil Commitment Laws: The Commitment Laws: The Inevitability HypothesisInevitability Hypothesis Civil commitment seems to rest on the idea that sexual predators are Civil commitment seems to rest on the idea that sexual predators are

treatable, but if untreated they will inevitably offend againtreatable, but if untreated they will inevitably offend again Prentky et al. (1997) found that estimates of recidivism varied wildly due to Prentky et al. (1997) found that estimates of recidivism varied wildly due to

inconsistency in the sample, in the definitions of offenses (arrest vs inconsistency in the sample, in the definitions of offenses (arrest vs conviction; which crimes are included) and inadequate study lengths. conviction; which crimes are included) and inadequate study lengths.

Prentky found that rapists and child molesters remain at risk to reoffend for Prentky found that rapists and child molesters remain at risk to reoffend for at least 15-20 years after imprisonment, and sometimes reoffended at least 15-20 years after imprisonment, and sometimes reoffended multiple times. multiple times.

Sample & Brey (2003) did an ANOVA study to challenge two bases of Sample & Brey (2003) did an ANOVA study to challenge two bases of recent sex offender legislation – inevitability and the high percentage of recent sex offender legislation – inevitability and the high percentage of sex offenders who had committed other crimes. sex offenders who had committed other crimes. – Some states have included burglary and even possession of burglary tools in Some states have included burglary and even possession of burglary tools in

their sex offender statutes. their sex offender statutes. They found that sex offenders do not reoffend at higher rates than other They found that sex offenders do not reoffend at higher rates than other

criminals (recommitting the same offense, or committing any offense), and criminals (recommitting the same offense, or committing any offense), and that certain other offenses (i.e., burglary) did not serve as “gateway” that certain other offenses (i.e., burglary) did not serve as “gateway” offenses to sexual crimes (2% of burglars went on to commit sex crimes offenses to sexual crimes (2% of burglars went on to commit sex crimes within 5 years). within 5 years).

Therefore, the extension of civil commitment and the increase in other Therefore, the extension of civil commitment and the increase in other penalties will have little or no effect on sexual victimization rates, it may penalties will have little or no effect on sexual victimization rates, it may amount to excess punishment, and it will increase costs to the state. amount to excess punishment, and it will increase costs to the state.

Problems with related laws: Problems with related laws: Homogeneity?Homogeneity?

In 1996, “Megan’s Law” required all states to make ALL sex offenders register and In 1996, “Megan’s Law” required all states to make ALL sex offenders register and notify authorities and the community every time they change residence. notify authorities and the community every time they change residence.

When Facts and Law CollideWhen Facts and Law CollideFlorida Housing Sex Offenders Under Bridge

-CNN Headline, Apr 6 2007

Constitutional ChallengesConstitutional Challenges

Kansas’s civil commitment law Kansas’s civil commitment law reached the Supreme Court in two reached the Supreme Court in two landmark caseslandmark cases

It was challenged on due process, It was challenged on due process, double jeopardy, and ex post facto double jeopardy, and ex post facto groundsgrounds

Kansas v. HendricksKansas v. Hendricks (1997) (1997) Leroy Hendricks had been convicted multiple Leroy Hendricks had been convicted multiple

times for molesting children, over several times for molesting children, over several decades. He said he “couldn’t control the decades. He said he “couldn’t control the urge” to do so “any time [he] got stressed urge” to do so “any time [he] got stressed out. out.

Shortly before he was to be released from Shortly before he was to be released from jail, he was sentenced to civil commitment jail, he was sentenced to civil commitment under Kansas’s Sexually Violent Predators under Kansas’s Sexually Violent Predators Act when he was found to suffer from Act when he was found to suffer from pedophilia. pedophilia.

He challenged the confinement, and the Act, He challenged the confinement, and the Act, on several constitutional grounds. on several constitutional grounds.

The Kansas Sexually Violent The Kansas Sexually Violent Predator ActPredator Act

The preamble referred to sex offenders who did not have “a The preamble referred to sex offenders who did not have “a mental disease or defect” appropriate for normal civil mental disease or defect” appropriate for normal civil confinement, but who had “anti-social personality confinement, but who had “anti-social personality features… unamenable to existing” treatment modalities. features… unamenable to existing” treatment modalities.

60 days before his release, the individual is told of a 60 days before his release, the individual is told of a hearing to determine whether there is a basis to subject hearing to determine whether there is a basis to subject him to civil commitment. him to civil commitment.

Following the hearing, a jury trial determines whether there Following the hearing, a jury trial determines whether there is a “mental abnormality or personality defect” is a “mental abnormality or personality defect” predisposing the individual to “engage in the predatory acts predisposing the individual to “engage in the predatory acts of sexual violence.” of sexual violence.”

During confinement, there is an annual review to determine During confinement, there is an annual review to determine whether it should continue. The individual can also file a whether it should continue. The individual can also file a release petition, or if they seem to have improved release petition, or if they seem to have improved sufficiently, the Secretary of Social and Rehabilitation sufficiently, the Secretary of Social and Rehabilitation Services can order their release.Services can order their release.

HendricksHendricks on Due Process on Due Process The Kansas State Supreme Court found that the The Kansas State Supreme Court found that the

“mental abnormality” definition was too vague, and “mental abnormality” definition was too vague, and did not meet the US Supreme Court’s requirement did not meet the US Supreme Court’s requirement of a “mental illness” finding to support civil of a “mental illness” finding to support civil commitmentcommitment

The US Supreme Court held that the Act did not The US Supreme Court held that the Act did not violate substantive due process; its dual violate substantive due process; its dual requirement of dangerousness and an inability to requirement of dangerousness and an inability to control the dangerousness was enough to support control the dangerousness was enough to support civil commitment. civil commitment.

The Court found the Act’s allowance of a jury trial The Court found the Act’s allowance of a jury trial following the initial hearing, and the annual reviews following the initial hearing, and the annual reviews during confinement, to be sufficient procedure: the during confinement, to be sufficient procedure: the individual could call witnesses, review the state’s individual could call witnesses, review the state’s evidence, and be assisted by counsel. evidence, and be assisted by counsel.

Hendricks Hendricks on Double on Double JeopardyJeopardy

The Act was held not to violate double The Act was held not to violate double jeopardy – it passes the “multiple jeopardy – it passes the “multiple punishments” and the “same elements” punishments” and the “same elements” tests. tests.

The Court found that the act was not enacted The Court found that the act was not enacted with punitive intent, the act did not establish with punitive intent, the act did not establish criminal proceedings, it did not require a criminal proceedings, it did not require a finding of criminal liability or scienter, and finding of criminal liability or scienter, and the ensuing commitment was neither the ensuing commitment was neither punitive nor intended to be a deterrent. punitive nor intended to be a deterrent.

The possible nonexistence of viable The possible nonexistence of viable treatment does not make the act punitive; treatment does not make the act punitive; incapacitation is a valid goal of civil law. incapacitation is a valid goal of civil law.

HendricksHendricks on Ex Post Facto on Ex Post Facto LawsLaws

The Supreme Court held that Kansas’s law The Supreme Court held that Kansas’s law did not violate the ex post facto clause. did not violate the ex post facto clause.

As in the double jeopardy issue, the Court As in the double jeopardy issue, the Court essentially found Kansas’s Act not punitive. essentially found Kansas’s Act not punitive. It did not create a new crime after It did not create a new crime after Hendricks’s actions, and it did not deprive Hendricks’s actions, and it did not deprive him of a previously-available defense. Past him of a previously-available defense. Past conduct was used for evidentiary purposes, conduct was used for evidentiary purposes, but it was not the sole criterion. but it was not the sole criterion.

Breyer dissented, because it provided Breyer dissented, because it provided inadequate treatment, only after Hendricks inadequate treatment, only after Hendricks had served his jail term, and was therefore had served his jail term, and was therefore punitive. punitive.

Criticism of Criticism of HendricksHendricks Stephen J. Morse: The detention allowed in Stephen J. Morse: The detention allowed in HendricksHendricks brings brings

stigma and a loss of liberty. Because of this, substantive due stigma and a loss of liberty. Because of this, substantive due process requires a strong, clear definition of what justifies process requires a strong, clear definition of what justifies such detention. such detention.

The Kansas act is based on a “mental abnormality,” which is The Kansas act is based on a “mental abnormality,” which is not a recognized scientific term and excessively vague. not a recognized scientific term and excessively vague. HendricksHendricks essentially required a loss of control over the essentially required a loss of control over the individual’s actions, and that is also not a proper standard – it individual’s actions, and that is also not a proper standard – it implies that they are not treatable, and therefore shouldn’t be implies that they are not treatable, and therefore shouldn’t be punished. punished.

Mental abnormality and nonresponsibility are required to Mental abnormality and nonresponsibility are required to justify such civil commitment, and “causation…and justify such civil commitment, and “causation…and predictability are not proxies” for them. A “lack of rational predictability are not proxies” for them. A “lack of rational capacity” should be the mental standard – it’s more than “just capacity” should be the mental standard – it’s more than “just another cause,” but less than incurable insanity. another cause,” but less than incurable insanity.

Morse argues that the criteria for criminal punishment and the Morse argues that the criteria for criminal punishment and the criteria for civil confinement should be mutually exclusive, but criteria for civil confinement should be mutually exclusive, but a sex offender’s level of rationality is often unclear. a sex offender’s level of rationality is often unclear.

More More HendricksHendricks Criticism Criticism Paul S. Appelbaum criticized the Paul S. Appelbaum criticized the HendricksHendricks decision for decision for

“taking the easy way out” by avoiding an important policy “taking the easy way out” by avoiding an important policy question: how the criminal justice system (and not question: how the criminal justice system (and not psychiatrists) should deal with repeat sex offenders. psychiatrists) should deal with repeat sex offenders.

As an amicus brief by the American Psychiatric Association As an amicus brief by the American Psychiatric Association noted, pedophilia and other conditions included in the noted, pedophilia and other conditions included in the Kansas statute are very different from the types of mental Kansas statute are very different from the types of mental illness traditionally used to support involuntary civil illness traditionally used to support involuntary civil commitment. commitment.

Appelbaum notes several implications of Appelbaum notes several implications of HendricksHendricks::– It expands preventive civil commitment way beyond its It expands preventive civil commitment way beyond its

traditional short-term, pre-trial role. traditional short-term, pre-trial role. – Many or most (non-sex) criminals suffer from some volitional Many or most (non-sex) criminals suffer from some volitional

incapacity; incapacity; HendricksHendricks’s reasoning would include them. ’s reasoning would include them. – Given historical patterns, it is unlikely that treatment centers Given historical patterns, it is unlikely that treatment centers

for sex offenders will be well-staffed or well-funded; offenders for sex offenders will be well-staffed or well-funded; offenders are unlikely to receive effective treatment. are unlikely to receive effective treatment.

Kansas v. CraneKansas v. Crane (2002) (2002) Crane pleaded guilty to aggravated sexual Crane pleaded guilty to aggravated sexual

batterybattery At his civil commitment hearing, it was At his civil commitment hearing, it was

determined that he suffered from antisocial determined that he suffered from antisocial personality disorder and exhibitionismpersonality disorder and exhibitionism

He was ordered to civil commitment on a He was ordered to civil commitment on a finding that the Sexually Violent Predators finding that the Sexually Violent Predators Act did not require an inability to control Act did not require an inability to control his dangerous behaviorhis dangerous behavior

The Kansas Supreme Court reversed, The Kansas Supreme Court reversed, reading reading HendricksHendricks to require a finding of to require a finding of complete inability to control such behaviorcomplete inability to control such behavior

CraneCrane’s holding’s holding The Court did not require proof of the offender’s inability to The Court did not require proof of the offender’s inability to

control their behavior, but it did require proof of “serious control their behavior, but it did require proof of “serious difficulty in controlling behavior.” Given the nature and difficulty in controlling behavior.” Given the nature and severity of the disorder, there had to be a greater danger severity of the disorder, there had to be a greater danger than that of a typical criminal recidivist. than that of a typical criminal recidivist.

Because of Because of HendricksHendricks’s facts and context, they only ’s facts and context, they only considered “volitional” mental abnormalities, not emotional considered “volitional” mental abnormalities, not emotional or cognitive abnormalities. There is some overlap between or cognitive abnormalities. There is some overlap between the categories. the categories.

As in Kennedy’s dissent in As in Kennedy’s dissent in HendricksHendricks, the court here said , the court here said that civil commitment should not be used as punishment or that civil commitment should not be used as punishment or a deterrent, or to avoid the defects in the criminal justice a deterrent, or to avoid the defects in the criminal justice system.system.

Scalia dissented, saying that neither Scalia dissented, saying that neither HendricksHendricks nor the Act nor the Act requires “serious difficulty,” only proof of mental requires “serious difficulty,” only proof of mental abnormality – “emotional or volitional” - and a likelihood of abnormality – “emotional or volitional” - and a likelihood of future violent sexual behavior (the Causal Link standard). future violent sexual behavior (the Causal Link standard).

Crane Crane on the role of scienceon the role of science

Psychiatry is an “ever-advancing” Psychiatry is an “ever-advancing” science which “informs but does not science which “informs but does not control” the law. control” the law.

Because there are conflicting views Because there are conflicting views within the field, states have within the field, states have considerable leeway in defining the considerable leeway in defining the required mental abnormality or required mental abnormality or disorder. disorder.

Civil Commitment Laws Today: The Civil Commitment Laws Today: The New York Sex Offender Management New York Sex Offender Management

and Treatment Actand Treatment Act On March 14, 2007, New York became the 20On March 14, 2007, New York became the 20thth state to have a civil commitment law state to have a civil commitment law Before the end of their jail term, the offenders are examined by mental health Before the end of their jail term, the offenders are examined by mental health

experts; if they are found to be predisposed to committing sex offenses they receive experts; if they are found to be predisposed to committing sex offenses they receive a jury triala jury trial

The experts, Attorney General, and a judge each in turn review medical, clinical, The experts, Attorney General, and a judge each in turn review medical, clinical, criminal and institutional records, and actuarial risk assessments. criminal and institutional records, and actuarial risk assessments.

The offender receives counsel, an evidentiary statement, and records of the expert The offender receives counsel, an evidentiary statement, and records of the expert hearing. They can request an evaluation by a psychiatric examiner, testify, call hearing. They can request an evaluation by a psychiatric examiner, testify, call witnesses, and provide other evidence. witnesses, and provide other evidence.

If the jury unanimously finds that they need supervision, both sides can present more If the jury unanimously finds that they need supervision, both sides can present more evidence and the judge has the option of civil commitment or “intensive supervision” evidence and the judge has the option of civil commitment or “intensive supervision” following their release. following their release.

Intensive supervision may include GPS tracking, polygraphs, prohibition from living in Intensive supervision may include GPS tracking, polygraphs, prohibition from living in or entering certain areas, and other conditions. or entering certain areas, and other conditions.

If committed, they have an annual review of their dangerousness and can petition for If committed, they have an annual review of their dangerousness and can petition for discharge, possibly including an evidentiary hearing. discharge, possibly including an evidentiary hearing.

The Act includes rape, incest, and prostitution-related offenses; it also creates the The Act includes rape, incest, and prostitution-related offenses; it also creates the crime of “sexually motivated felony,” for crimes attempted or committed for the crime of “sexually motivated felony,” for crimes attempted or committed for the purpose of sexual gratification. purpose of sexual gratification.

The Act lengthens their parole periods, creates an Office of Sex Offender The Act lengthens their parole periods, creates an Office of Sex Offender Management, and mandates counseling during and after imprisonmentManagement, and mandates counseling during and after imprisonment