Transcript Predicting Dangerousness

Predicting
Dangerousness
Case Study: Sex Offenders
Colman Lynch
April 9, 2007
Sex Offenders
Often seen as a distinct class of criminal
 Stephen J. Morse, “Uncontrollable Urges and
Irrational People” – “Sexual predators fall into
the gap between criminal and civil confinement”
in that they are rational and sane, and know
“the applicable moral and legal rules,” but
cannot entirely control their actions. This has
been used to justify indefinite involuntary civil
commitment as a preventive measure.

Civil Commitment





In 1990, Washington enacted its Sexually Violent Predator statute –
the first to allow for post-incarceration civil commitment
Inspired by events in the late 1980s where a mentally retarded man
with a 25-year history of sex crimes raped and stabbed a young boy
Previously, it was an “either-or” situation: sex offenders would go to
jail or to a civil treatment program
The Washington law required confinement and treatment for those
convicted of “violent sexual crimes,” following the completion of
their criminal punishment, indefinitely.
It only applied to those considered to have mental conditions that
predisposed them to violent sexual crimes, even after time spent in
jail.
Civil Commitment Laws Spread
In the early 1990s, several states followed
Washington’s lead
 As in Washington, many of them
previously had civil commitment statutes
requiring a “recent overt act” – so time
spent in prison would effectively insulate
the offender from being committed

General Criticism of Civil
Commitment Laws




Preventive detention is not supported by previous
American law
A March 2007 series of New York Times articles
described failed attempts at treatment, with “uncertified
non-experts” testifying in the hearings, and found
release from civil commitment programs exceedingly rare
Approximately 2700 men are currently in such programs,
which cost four times more per inmate than jail
250 have been released unconditionally, half of whom
were considered not to have completed treatment
Problems with Civil Commitment
Laws: Inaccurate Predictions

Robert A. Prentky, et al. (2006): Because science is being used to justify
deprivation of liberty, we need to be absolutely sure it’s accurate.
– Determinations of “mental abnormality” are difficult because there are no “acute
psychiatric symptoms tied closely to the predicted harm.”
 There are 4 recognized diagnoses that could support the “volitional impairment”
standard: impulse control disorders, adult antisocial behavior, mood disorders/ADHD,
sexual disorders, and personality disorders.
– Many of the individuals subject to such laws have been imprisoned for years;
changed conditions make such predictions more hazardous.
– For mental and physical reasons, criminal sexual behavior appears to decrease
with age. Civil commitment is mainly likely to come up with offenders old
enough to have been convicted several times.
– The effect that psychological treatment has on such behavior is unclear, and not
enough time has passed to determine their success. Two aspects of these
programs makes them less likely to succeed: their involuntary nature, and the
lack of clarity of their goals (rehabilitation, or incapacitation?).
– The individual nature of civil and criminal proceedings makes them inappropriate
for actuarial analysis – it isn’t fair to determine the base rate of failure where
N=1. There are also homogeneity issues.

Which is more problematic – false positives or false negatives?
Problems with Civil Commitment
Laws: The Inevitability Hypothesis




Civil commitment seems to rest on the idea that sexual predators are treatable, but if
untreated they will inevitably offend again
Prentky et al. (1997) found that estimates of recidivism varied wildly due to
inconsistency in the sample, in the definitions of offenses (arrest vs conviction; which
crimes are included) and inadequate study lengths.
Prentky found that rapists and child molesters remain at risk to reoffend for at least
15-20 years after imprisonment, and sometimes reoffended multiple times.
Sample & Brey (2003) did an ANOVA study to challenge two bases of recent sex
offender legislation – inevitability and the high percentage of sex offenders who had
committed other crimes.
–


Some states have included burglary and even possession of burglary tools in their sex
offender statutes.
They found that sex offenders do not reoffend at higher rates than other criminals
(recommitting the same offense, or committing any offense), and 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 within 5 years).
Therefore, the extension of civil commitment and the increase in other 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.
Problems with related laws:
Homogeneity?
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.
When Facts and Law Collide
Florida Housing Sex Offenders Under Bridge
-CNN Headline, Apr 6 2007
Constitutional Challenges
Kansas’s civil commitment law reached the
Supreme Court in two landmark cases
 It was challenged on due process, double
jeopardy, and ex post facto grounds

Kansas v. Hendricks (1997)
Leroy Hendricks had been convicted multiple
times for molesting children, over several
decades. He said he “couldn’t control the urge”
to do so “any time [he] got stressed out.
 Shortly before he was to be released from jail,
he was sentenced to civil commitment under
Kansas’s Sexually Violent Predators Act when he
was found to suffer from pedophilia.
 He challenged the confinement, and the Act, on
several constitutional grounds.

The Kansas Sexually Violent
Predator Act




The preamble referred to sex offenders who did not have “a mental
disease or defect” appropriate for normal civil confinement, but who
had “anti-social personality features… unamenable to existing”
treatment modalities.
60 days before his release, the individual is told of a hearing to
determine whether there is a basis to subject him to civil
commitment.
Following the hearing, a jury trial determines whether there is a
“mental abnormality or personality defect” predisposing the
individual to “engage in the predatory acts of sexual violence.”
During confinement, there is an annual review to determine
whether it should continue. The individual can also file a release
petition, or if they seem to have improved sufficiently, the Secretary
of Social and Rehabilitation Services can order their release.
Hendricks on Due Process



The Kansas State Supreme Court found that the “mental
abnormality” definition was too vague, and did not meet
the US Supreme Court’s requirement of a “mental
illness” finding to support civil commitment
The US Supreme Court held that the Act did not violate
substantive due process; its dual requirement of
dangerousness and an inability to control the
dangerousness was enough to support civil commitment.
The Court found the Act’s allowance of a jury trial
following the initial hearing, and the annual reviews
during confinement, to be sufficient procedure: the
individual could call witnesses, review the state’s
evidence, and be assisted by counsel.
Hendricks on Double Jeopardy
The Act was held not to violate double jeopardy
– it passes the “multiple punishments” and the
“same elements” tests.
 The Court found that the act was not enacted
with punitive intent, the act did not establish
criminal proceedings, it did not require a finding
of criminal liability or scienter, and the ensuing
commitment was neither punitive nor intended
to be a deterrent.
 The possible nonexistence of viable treatment
does not make the act punitive; incapacitation is
a valid goal of civil law.

Hendricks on Ex Post Facto Laws
The Supreme Court held that Kansas’s law did
not violate the ex post facto clause.
 As in the double jeopardy issue, the Court
essentially found Kansas’s Act not punitive. It
did not create a new crime after Hendricks’s
actions, and it did not deprive him of a
previously-available defense. Past conduct was
used for evidentiary purposes, but it was not the
sole criterion.
 Breyer dissented, because it provided
inadequate treatment, only after Hendricks had
served his jail term, and was therefore punitive.

Criticism of Hendricks




Stephen J. Morse: The detention allowed in Hendricks brings stigma
and a loss of liberty. Because of this, substantive due process
requires a strong, clear definition of what justifies such detention.
The Kansas act is based on a “mental abnormality,” which is not a
recognized scientific term and excessively vague. Hendricks
essentially required a loss of control over the individual’s actions,
and that is also not a proper standard – it implies that they are not
treatable, and therefore shouldn’t be punished.
Mental abnormality and nonresponsibility are required to justify such
civil commitment, and “causation…and predictability are not proxies”
for them. A “lack of rational capacity” should be the mental
standard – it’s more than “just another cause,” but less than
incurable insanity.
Morse argues that the criteria for criminal punishment and the
criteria for civil confinement should be mutually exclusive, but a sex
offender’s level of rationality is often unclear.
More Hendricks Criticism



Paul S. Appelbaum criticized the Hendricks decision for “taking the
easy way out” by avoiding an important policy question: how the
criminal justice system (and not psychiatrists) should deal with
repeat sex offenders.
As an amicus brief by the American Psychiatric Association noted,
pedophilia and other conditions included in the Kansas statute are
very different from the types of mental illness traditionally used to
support involuntary civil commitment.
Appelbaum notes several implications of Hendricks:
– It expands preventive civil commitment way beyond its traditional shortterm, pre-trial role.
– Many or most (non-sex) criminals suffer from some volitional incapacity;
Hendricks’s reasoning would include them.
– Given historical patterns, it is unlikely that treatment centers for sex
offenders will be well-staffed or well-funded; offenders are unlikely to
receive effective treatment.
Kansas v. Crane (2002)
Crane pleaded guilty to aggravated sexual
battery
 At his civil commitment hearing, it was
determined that he suffered from antisocial
personality disorder and exhibitionism
 He was ordered to civil commitment on a finding
that the Sexually Violent Predators Act did not
require an inability to control his dangerous
behavior
 The Kansas Supreme Court reversed, reading
Hendricks to require a finding of complete
inability to control such behavior

Crane’s holding




The Court did not require proof of the offender’s inability to control
their behavior, but it did require proof of “serious difficulty in
controlling behavior.” Given the nature and severity of the disorder,
there had to be a greater danger than that of a typical criminal
recidivist.
Because of Hendricks’s facts and context, they only considered
“volitional” mental abnormalities, not emotional or cognitive
abnormalities. There is some overlap between the categories.
As in Kennedy’s dissent in Hendricks, the court here said that civil
commitment should not be used as punishment or a deterrent, or to
avoid the defects in the criminal justice system.
Scalia dissented, saying that neither Hendricks nor the Act requires
“serious difficulty,” only proof of mental abnormality – “emotional or
volitional” - and a likelihood of future violent sexual behavior (the
Causal Link standard).
Crane on the role of science
Psychiatry is an “ever-advancing” science
which “informs but does not control” the
law.
 Because there are conflicting views within
the field, states have considerable leeway
in defining the required mental
abnormality or disorder.

Civil Commitment Laws Today: The New
York Sex Offender Management and
Treatment Act









On March 14, 2007, New York became the 20th state to have a civil commitment law
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 a jury trial
The experts, Attorney General, and a judge each in turn review medical, clinical, criminal and
institutional records, and actuarial risk assessments.
The offender receives counsel, an evidentiary statement, and records of the expert hearing. They
can request an evaluation by a psychiatric examiner, testify, call witnesses, and provide other
evidence.
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” following their
release.
Intensive supervision may include GPS tracking, polygraphs, prohibition from living in or entering
certain areas, and other conditions.
If committed, they have an annual review of their dangerousness and can petition for discharge,
possibly including an evidentiary hearing.
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 purpose of sexual
gratification.
The Act lengthens their parole periods, creates an Office of Sex Offender Management, and
mandates counseling during and after imprisonment