Sexual Offense Recidivism

1. Sexual Offense Recidivism The Debate over Civil Commitment of Recidivist Sex Offenders

2. SCHALL V. MARTIN • NY Family Court Act provision allowed for detention of juveniles awaiting trial if judge determined there was a “serious risk” the juvenile would commit any crime before the return date. • Supreme Court holds that preventive detention serves a legitimate state objective. Protects society against future harms and the juveniles from harming themselves. • State objective outweighs the concern of restraining juveniles’ liberty. Juveniles are always in some sort of custody. • Juveniles are given special protection because they are emotionally under-developed. Society can then assume they will be more likely to reoffend. • Procedural protections given by the NY FCA satisfy the Due Process requirements. • Absent an express showing of the intent to punish, it will be upheld so long as there is a rational relationship between the legitimate state interest and the detention, and provided that it is not excessive in relation to the state interest involved.

3. Schall, cont’d • Under FCA, juvenile may be held up to 5 days without probable cause hearing. • The vast majority of juveniles detained under this provision have their petitions dismissed before adjudication or are released after adjudication. • Great opportunity for bias and capriciousness to enter the decisions. • Future dangerousness is difficult to predict, particularly upon limited information and time available during pretrial period. • Since the juveniles have not been convicted, the detention is more punitive in nature.

4. US V. SALERNO • Bail Reform Act of 1984 allowed preventive detention of dangerous person if he committed: • a crime of violence • a crime punishable by life imprisonment or death • a major drug offense • or a felony committed with two prior convictions. • Dangerous person was defined by the chronicity of criminal behavior, assaultive behavior, and by particular crimes that have been designated unique threats (such as drug offenses).

5. Salerno, cont’d • The provision was constitutional according to Supreme Court. It protected the legitimate state interest of protecting public safety. • Did not violate Due Process or Excessive Bail clauses of the Constitution. • Excessive bail provision was only to prevent excessive bail in cases where bail is appropriate. It does not guarantee bail in all cases. • Protecting public safety is a regulatory concern, not a punitive one. • Does not violate Due Process because provision is limited to extreme cases and limited in duration of detention. • Salerno did not challenge that the provision was unconstitutional as applied to him, only that it was facially unconstitutional.

6. KANSAS v. HENDRICKS • Defendant had long history of molesting children • Committed under Kansas Sexually Violent Predator Act • Required finding of a “mental abnormality” or “personality disorder” that rendered a person likely to engage in “predatory acts of sexual violence” • D’s uncurable pedophila qualified as mental abnormality • Hendricks challenged his commitment on grounds of: • Substantive due process • Double jeopardy • Ex post facto • Kansas Supreme Court overturned his civil commitment

7. KANSAS, cont’d • Supreme Court held that: • The definition of mental abnormality under the Act fulfilled substantive due process requirements • The act doesn’t establish criminal proceedings • Denial of physical liberty has been constitutionally upheld • Must show clearest proof of punitive purpose or effect • No retributive or deterrent effect • Because not punitive, required element for double jeopardy and ex post facto claims gone

8. KANSAS v. CRANE • Follow up case to Hendricks • Kansas Supreme Court had reversed Crane’s commitment, holding that the Hendricks decision required a finding that the defendant cannot control his dangerous behavior, even if the source of problems is behavioral rather than volitional, which trial court failed to do • Supreme Court held that: • Hendricks did not require this total or complete lack of control for commitment for constitutional commitment • However, Constitution does not permit commitment without any lack of control determination • It is enough to prove a serious difficulty in controlling behavior • To require a total lack of control would mean letting dangerous people back on the street • State can determine its own definition of mental abnormality

9. BAREFOOT V. ESTELLE • Barefoot was sentenced to death during the sentencing phase of his trial. • Prosecution presented two psychiatrists as expert witnesses who testified that Barefoot was likely to present a future danger. • Psychiatrists had never examined Barefoot, but based their conclusions on hypothetical situations posed by the prosecution. • APA filed an amicus brief stating that such evaluations of future dangerousness were incorrect 2/3 of the time.

10. Barefoot, Cont’d • Supreme Court held that the 1/3 of such evaluations are correct and it trusts the court and jury to be able to sort out the reliable from the unreliable. • “Neither petitioner nor the Association suggests that psychiatrists are always wrong with respect to future dangerousness, only most of the time.” • Jury is asked to determine future dangerousness during the sentencing phase to establish if a defendant may receive the death penalty. If the court may ask the lay jurors to make this determination, psychiatrists can give their opinions.

11. SALDANO V. TEXAS • Saldano shot his victim four times and claims he felt “nothing” at the time of the killing. He shot him in the head to make sure he was dead. • Jury found Saldano to be a future danger, based on such facts as Saldano’s lack of remorse for the killing. • Prosecution presented 24 factors which it claimed were helpful in determining future dangerousness, one of which was race. • Prosecution’s expert witness said Blacks and Hispanics were over-represented in prison compared to their relative populations. • Rather than objecting, defense attorney argued that as an Argentinean, Saldano was not technically Hispanic. Good move. • Court held that even though there was no objection, the cases must be remanded. The Solicitor General of Texas admitted error in this case.

12. New York State Bill for Civil Commitment of S.O. Recidivists • Intent of Bill • There exists a small but potentially dangerous group who commit sex offenses who suffer from mental abnormalities that • Make them likely to engage in repeat sexual offenses • Create serious difficulty for offenders to control their unlawful sexual behavior and make it likely they will commit future sex crimes • Indefinite treatment length • Allows for possible lifetime confinement if necessary

13. NY Bill, Cont’d: Procedure • Notice and Petition for Commitment • Prior to release • Case review committee team makes recommendation as to whether or not person is sexual predator • Attorney General then considers recommendation and files sexual predator petition • Probable cause hearing to determine whether respondent is sexual predator • Trial • Attorney General presents evidence and witnesses • Jury asked to determine whether AG has proved beyond a reasonable doubt that respondent is a sexual predator • Instructions to jury • Unanimous jury verdict required • Subsequent disposition hearing to determine whether respondent should be either • Confined in a secure facility • Subjected to regiment of strict and intensive supervision

14. N.Y. Bill, Cont’d: Review • Subsequent Petition, Annual Exams and Petition for Discharge • Annual right to petition court for discharge or for order to strict and intensive supervision • Biannual for those already in S & I supervision • New evidentiary hearing held • Burden of proof at hearing is upon the AG to show beyond a reasonable doubt that person continues to be a sexual predator • If petition not denied, may go to S & I supervision • Appeals • Both parties may appeal as of right to an intermediate appellate court • Exception for determination made at probable cause hearing that person is sexual predator

15. N.Y. Bill Cont’d: Treatment • Sex offender management board • Membership • Identifies best practices in field of sex offender management and develops system of evaluation, treatment and monitoring of sex offenders • Risk assessment • Procedure for evaluation of sex offenders • Treatment protocols • Research and analyze effectiveness of treatment • Treatment programs • Consistent with professional standards • Designed to • enhance public safety • Reduce the risk of reoffense

16. NY Bill Cont’d: Issues Raised • Whether procedure too closely mimics criminal procedure for confinement to be non-punitive • Resources necessary to carry out such a substantial commitment on the part of the state • Diversion of state funds and enormous expenditures • Overbroad inclusion of offense categories?

17. The Argument For Civil Commitment • Results of studies on sexual offender recidivism offer varying conclusions on whether recidivism occurs at high or low rates • Many studies do conclude that the rate of sexual crime recidivism is much higher than previously thought • Even if the rates were low, debatable that factors contributing to recidivism can be effectively treated • Civil commitment, therefore, is a necessary alternative

18. The Prentky Study: Recidivism Among Child Molesters & Rapists • Problems endemic in previous recidivism studies: • Length of follow-up time • Definition of reoffense too narrowly constructed • Use of simple percentage underestimates rate of recidivism • Solutions: • Use longer observation period • Include all possible stages of reoffense • Use survival analysis and failure rates

19. Prentky, cont’d • Uses rapists and child molesters from the Massachusetts Treatment Center for Sexual Offenders • Breaks study down into three separate analyses • Differences in failure rates among criminal offense categories • Sexual • Nonsexual with victim • Nonsexual victimless • Disposition of criminal offense • Parole violation • Arrest • Conviction • Reincarceration • Window of exposure time

20. First analysis Rapists Sexual – 26%, 39% FR, 4.55 years Nonsexual – 33%, 49% FR Victimless – 36%, 54% FR Overall recidivism rate – 57%, 74% FR, 2.75 years Child molesters Sexual – 32%, 52% FR, 3.64 years Nonsexual – 14%, 23% FR Victimless – 30%, 48% FR Overall recidivism rate – 54%, 75% FR, 2.75 years Second analysis Rapists Charged – 26%, 39% FR Convicted – 15%, 24% FR Imprisoned – 13%, 15% FR Child molesters Charged – 32%, 52% FR Convicted – 25%, 41% FR Imprisoned – 23%, 37% FR Third analysis Recidivism continues through 25th year after release Prentky, cont’d: Findings

21. Pretnky, cont’d: Conclusions • Both rapists and child molesters remain at risk to reoffend long after discharge • Marked underestimation of recidivism • When criterion are only conviction or imprisonment • When calculating using simple proportion or percentage • Risk to society sex offenders create comes from both propensity to general crimes and sexual crimes

22. Department of Justice • Recidivism underreported • Rates • Causes • Marshall and Barbaree report • Follow up periods in most studies not long enough • Low base rate problem that plagues sex offender recidivism studies • Ways to correct these problems: • Separate different sex offense categories in studies • Meta-analysis

23. Hanson and Bussiere Meta-Analysis • Combine the results of 61 studies with a combined 28,972 sexual offenders • Large pooled samples allow for • High statistical power • Testing of generalizability of findings across studies • Results: • 18.9% recidivism rate among rapists and 12.7% recidivism rate among child molestors • Sexual offenses only • 4-5 year period • 36.3% general recidivism rate, 46.2% for rapists and 36.9% for child molesters • Ultimately contend that sexual recidivism rates are low

24. Hanson study – Long Term Recidivism of Child Molesters • Also uses the long term study model to catch sexual offenses after the typical 5 year study period • Used 3 groups in study • Treatment group – child molesters in secure facility treatment program • Control group 1 – child molesters in same maximum security institution before treatment program offered • Control group 2 – child molesters not transferred to treatment program but instead remained in maximum security custody

25. Hanson, cont’d: Findings • Among a total of 197 child molesters, 42% rearrested for any kind of offense • Follow up period ranged from 15-31 years • Recidivism rate was not significantly different for treatment group than for either of the control groups • Personality measures vs. measures significant to recidivism

26. Hanson, cont’d: Conclusions • Child molesters are at risk for reoffending for many years • Need to develop long-term strategies to address • Treatment does not appear to correct problem for at least some significant portion of sexual offenders • Admits that use of reconviction only will cause underestimation of recidivism in study • Significant proportion of child molesters do not reoffend • Biggest risk indicators: • Never being married • Previous sexual offenses • Victim type

27. Rice study: Violence Risk Appraisal Guide for C.M. and Rap. • Actuarial predictor of recidivism • Using a group of 288 child molesters and rapists found that: • Rate of violent recidivism was high with 166, or 58% of subjects committing another violent offense • Rate of sexual recidivism was 35% (101 out of 288) • Two factors most significant for recidivism: • Psychopathy (more so for rapists) • Sexual deviance (more so for child molesters) • Non-personality disorders – less likely to be treatable

28. Yes to Civil Commitment • Sexual offenses are widely recognized as drastically harmful to society • And they occur at rates higher than commonly believed • Sex offenses and general criminal offenses • Civil commitment a wise way to address the problem because: • Although not all sex offenders will reoffend • There is a certain subset of sex offenders who cannot be treated for their deviance • Procedures in place in N.Y. and other state civil commitment statutes allow for identification of this subset and their subsequent removal from society while they remain a danger

29. The Argument Against Civil Commitment

30. HARRIS AND HANSON - CANADIAN STUDY OF SEX OFFENDER RECIDIVISM (2004) • Different types of sexual offenders have significantly different recidivism rates. • Most sex offenders do not reoffend sexually. • The longer offenders remain offense-free, the less likely they are to reoffend.

31. Harris and Hanson, cont’d • 4,724 offenders • Broken into categories of rapists, girl victim child molesters, boy victim child molesters, incest offenders, those with or without a prior sexual offense, older offenders (50 or older at release), and younger offenders. • Also provides recidivism estimates for sex offenders who have been offense-free for 5, 10, and 15 years. • All were adult males, primarily white. • 27.9% had a previous sex crime conviction and 9.4% had more than one. • Some subdivisions defined recidivism for conviction only, others included charges.

32. Harris and Hanson, cont’d • Canadian Federal - Pacific Region • Compared 401 offenders who had received mandatory counseling with 1288 of those who had not from the years 1976 and 1992. • Included charges in the recidivism rate. • Canadian Federal Recidivism Study • Study of 316 offenders from 1983-1984. • Only conviction counted in recidivism rate.

33. Harris and Hanson, cont’d • Canadian Federal 1991 to 1994 Releases • Offenders were reviewed in 1991 while still incarcerated. • Included charges.

34. Harris and Hanson, cont’d • Millbrook Recidivism Study • 15-30 recidivism study of child molesters released between 1958 and1974 from Millbrook Correctional Center. • Treatment was provided for about half of the offenders. • Only conviction counted.

35. Harris and Hanson, cont’d • Institut Philippe Pinel (Montreal) • Offenders at maximum security psychiatric facility between 1978 and 1993. • Long-term treatment was provided for all offenders. • Conviction only. • Alberta Hospital Edmonton - Phoenix Program • Offenders treated at the hospital between 1987 and 1994. • Conviction only.

36. Harris and Hanson, cont’d • California’s Sex Offender Treatment and Evaluation Program • Studied period of 1985 through 1995. • Used arrests. • Studied recidivism among treated offenders, voluntary controls, treatment refusers, and a general sample of sex offenders.

37. Harris and Hanson, cont’d • Her Majesty’s Prison Service • 16 year follow-up of all sex offenders from Her Majesty’s Prison Service in 1979. • Conviction only.

38. Harris and Hanson, cont’d • Washington SSOSA • SSOSA allows judges to sentence sex offenders to community treatment instead. Applies to all first-time offenders not charged with first or second degree rape. • Compared those receiving SSOSA treatment and those statutorily eligible who did not receive SSOSA treatment.

39. Harris and Hanson, cont’d • Manitoba Probation • Offenders studied who were on probation between 1997 and 1999.

40. Harris and Hanson: Results

41. SAMPLE AND BRAY • Used criminal history information from 1990-1997 compiled by Illinois State Police. • Used arrest rates. • Did not differentiate among different types of sex offenders based on relationship to victim. • 34, 668 (1.20%) of crimes were sex crimes, including: • child pornography, exploitation of children, indecent solicitation of a child, juvenile prostitution, criminal sexual assault of adults and children, and ritual abuse of children. • Study also allowed for time offenders spent “off the street” when reconvicted or rearrested.

42. Sample and Bray, cont’d

43. Sample and Bray, cont’d

44. US DEPT. OF JUSTICE (1983-1994) • Based on state criminal records and FBI files. Random samples of released prisoners were tracked for 3 years. • Of the 272,111 persons released from prisons in 15 States in 1994, an estimated 67.5% were rearrested for a felony or serious misdemeanor within 3 years, 46.9% were reconvicted, and 25.4% resentenced to prison for a new crime. • Sex offenders were less likely than non-sex offenders to be rearrested for any offense –– 43 percent of sex offenders versus 68 percent of non-sex offenders. • An estimated 24% of those serving time for rape and 19% of those serving time for sexual assault had been on probation or parole at the time of the offense for which they were in State prison in 1991. • Of the 9,691 male sex offenders released from prisons in 15 States in 1994, 5.3% were rearrested for a new sex crime within 3 years of release. • Of released sex offenders who allegedly committed another sex crime, 40% perpetrated the new offense within a year or less from their prison discharge.