Black swan crash lands on Florida SVP program

Audit finds low recidivism, critiques reliance on inflated Static-99 risk estimates

Dan Montaldi’s words were prophetic.

Speaking to Salon magazine last year, the former director of Florida's civil commitment program for sex offenders called innovative rehabilitation programs "fragile flowers." The backlash from one bad deed that makes the news can bring an otherwise successful enterprise crashing down.

Montaldi was referring to a community reintegration program in Arizona that was derailed by the escape of a single prisoner in 2010.

But he could have been talking about Florida where, just a year after his Salon interview, the highly publicized rape and murder of an 8-year-old girl is sending shock waves through the treatment community. Cherish Perrywinkle was abducted from a Walmart, raped and murdered, allegedly by a registered sex offender who had twice been evaluated and found not to meet criteria for commitment as a sexually violent predator (SVP).

Montaldi resigned amidst a witch hunt climate generated by the killing and a simultaneous investigative series in the Sun Sentinel headlined "Sex Predators Unleashed." His sin was daring to mention the moral dilemma of locking up people because they might commit a crime in the future, when recidivism rates are very low. Republican lawmakers called his statements supportive of "monsters" and said it made their "skin crawl."

Montaldi's comments were contained in an email to colleagues in the Association for the Treatment of Sexual Abusers, in response to the alarmist newspaper series. He observed that, as a group, sex offenders were "statistically unlikely to reoffend." In other words, Cherish Perrywinkle’s murder was a statistical anomaly (also known as a black swan, or something that is so rare that it is impossible to predict or prevent). He went on to say that in a free society, the civil rights of even "society's most feared and despised members" are an important moral concern. A subscriber to the private listserv apparently leaked the email to the news media.

The Sun Sentinel series had also criticized the decline in the proportion of paroled offenders who were recommended for civil commitment under Montaldi's directorship. "Florida's referral rate is the lowest of 17 states with comparable sex-offender programs and at least three times lower than that of such large states as California, New York and Illinois," the newspaper reported.

Audit finds very low recidivism rates 

In the wake of the Sun Sentinel investigation, the Florida agency that oversees the Sexually Violent Predator Program has released a comprehensive review of the accuracy of the civil commitment selection process. Since Florida enacted its Sexually Violent Predator (SVP) law in 1999, more than 40,000 paroling sex offenders have been reviewed for possible commitment. A private corporation, GEO Care, LLC, runs the state’s 720-bed civil detention facility in Arcadia for the state's Department of Children and Families.


Three independent auditors -- well known psychologists Chris Carr, Anita Schlank and Karen C. Parker -- reviewed data from both a 2011 state analysis and an internal recidivism study conducted by the SVP program. They also reviewed data on 31,626 referrals obtained by the Sun Sentinel newspaper for its Aug. 18 expose.

All of the data converged upon an inescapable conclusion: Current assessment procedures are systematically overestimating the risk that a paroling offender will commit another sex offense.

In other words, Montaldi’s controversial email about recidivism rates was dead-on accurate.

First, the auditors examined recidivism data for a set of sex offenders who were determined to be extremely dangerous predators, but who were nonetheless released into a community diversion program instead of being detained.

"This study provided an opportunity to see if offenders who were recommended for commitment as sexually violent predators, actually behaved as expected when they were placed back into the community," they explained.

Of the 140 released offenders, only five were convicted of a new felony sex offense during a follow-up period of up to 10 years. Or, to put it another way, more than 96 percent did not reoffend. "This finding indicates that many individuals who were thought to be at high risk, were not," the report concluded.

Next, they analyzed internal data from the program itself. As of March 2013, 710 of the roughly 1,500 men referred for civil commitment were later released for one reason or another. Of those, only 5.7 percent went on to be convicted of a new sexually motivated crime.

Interestingly, this reconviction rate is not much different than that of a larger group of 1,200 sex offenders who were considered but rejected for civil commitment after a face-to-face evaluation. About 3 percent of those offenders incurred a new felony sex offense conviction after five to 10 years, with about 4 percent being reconvicted over a longer follow-up period of up to 14 years.

Logo on wall of sex offender hearing room in Salem, MA

"The recommended and the non-recommended groups differed by less than 2 percent in the percentage of offenders obtaining a new felony sex offense conviction after release," the investigators found. "Such a minor difference is surprising and indicates that the traditional approach to determining SVP status needs to be improved. There are too many false positives (someone determined to fit the SVP definition when he does not, or someone determined to be likely to re-offend but he is not)."

Overestimation of risk was especially prevalent for older offenders. Only one out of 94 offenders over the age of 60 was arrested on a new sex offense charge, and that charge was ultimately dismissed.

Finally, the auditors reanalyzed the data obtained by the Sun Sentinel newspaper via a public records request. Of this larger group of about 30,000 paroling offenders who were NOT recommended for civil commitment, less than 2 percent were convicted of a new sex offense.

What the public is most concerned about, naturally, is sex-related murders, such as that of young Cherish Perrywinkle. Fourteen of the tens of thousands of men not recommended for civil commitment had new convictions for sexual murders. This is a rate of 0.047, or less than five one-hundredths of 1 percent – the very definition of a black swan.

Static-99R producing epidemic of false positives

Determining which offender will reoffend is extremely difficult when base rates of sex offender recidivism are so low. However, the auditors identified an actuarial risk assessment tool, the widely used Static-99R, as a key factor in Florida’s epidemic of over-prediction. Florida mandates use of this tool in the risk assessment process.

Florida Civil Commitment Center

In 2009, government evaluators in Florida and elsewhere in the United States began a controversial practice of comparing some offenders to a select set of norms called "high risk." This practice dramatically inflates risk estimates, thereby alarming jurors in adversarial legal proceedings. The decision rules for using this comparison group are unclear and have not been empirically tested.

The recidivism rate of the Static-99R "high risk" comparison sample is several times higher than the actual recidivism rate of even the highest-risk offenders, the auditors noted. Thus, consistent with research findings from other states, they found that use of these high-risk norms is a major factor in the exaggeration of sex offender risk in Florida.

(It is certainly gratifying to see mainstream leadership in the civil commitment industry coming around to what people like me have been pointing out for years now.)

"The precision once thought to be present in using the Static-99 has diminished," the report states. "It seems apparent that less weight needs to be given to the Static-99R in sexually violent predator evaluations."

What goes around comes around

Due to the identified problems with actuarial tools, and the Static-99R in particular, the independent auditors are recommending that more weight be placed on clinical judgment. 

"It now appears that clinical judgment, guided by the broad and ever-expanding base of empirical data, may be superior to simply quoting 'rates,' which may lack sufficient application to the offenders being evaluated."

Ironically, the subjectivity of clinical judgment was the very practice that the actuarial tools were designed to alleviate. I have my doubts that clinical judgment will end up being all that reliable in adversarial proceedings, either. Perhaps the safest practice would be to "bet the base rate," or estimate risk based on local base rates of reoffending for similar offenders. This, however, would result in far fewer civil commitments.

Consistent with recent research, the auditors also recommended re-examining the practice of mandating lengthy treatment that can lead to demoralization and, in some cases, iatrogenic (or harmful) effects.

Although the detailed report may be helpful to forensic evaluators and the courts, it looks like Florida legislators aiming to appease a rattled public will ignore the findings and move in the opposite direction. Several are now advocating for new black swan legislation to be known as "Cherish’s Law."

As sex offender researcher and professor Jill Levenson noted in a commentary on the website of WLRN in Florida, such an approach is penny-wise but pound-foolish: 

“Every dollar spent on hastily passed sex offender policies is a dollar not spent on sexual assault victim services, child protection, and social programs designed to aid at-risk families…. We need to start thinking about early prevention and fund, not cut, social service programs for children and families. Today's perpetrators are often yesterday's victims."

* * * * *

Photo credit: Mike Stocker, Sun Sentinel

BREAKING NEWS: Montaldi has just been replaced as director of the civil commitment facility by Kristin Kanner, a longtime prosecutor from Broward County, Florida who headed that county's Sexually Violent Predator Unit for almost a decade. Not only does she have a JD in law from the Florida College of Law, but she holds undergraduate degrees in psychology and public policy from Duke. Word on the street is that she is an extremely competent and ethical person. It will be interesting to see how she will be treated by the media and politicians in the event that any black swan crash lands on the facility during her watch.

 * * * * *

The full report on the Florida SVP program is available HERE.  

Related post: 

Systems failure or black swan? New frame needed to stop "Memorial Crime Control" frenzy (Oct. 19, 2010)

SVP morass: Will psychologists "just say no"?

 Dr. Franklin,

          My understanding is that psychiatrists and the American Medical Association made a conscious, ethical decision to not get involved in the SVP [Sexually Violent Predator] morass. I am not sure why psychologists dove in. Smelling blood in the water, cash in bank accounts or trying to show up the "real doctors" has led to our participation in one of the largest, most expensive frauds put over on society, with the field of psychology becoming the laughingstock of real researchers. We are now participating in a system that systematically violates the Constitutional rights of individuals and uses the shoddiest of data to rationalize our position. Has there been any thought to a movement by psychologists or the APA to "just say no"?

-- Eugene Braaksma, Licensed Psychologist

What a timely question. Privately, many mainstream forensic psychologists agree with your assessment, and some have even gone public with their concerns. Most recently, two psychologists in the San Francisco Bay Area have gone so far as to echo your call for a professional boycott. But for several reasons, I think the major impetus for change will come not from within, but from larger systemic forces outside psychology.

Photo © Karen Franklin 2011

Calling for a boycott are forensic psychologists Paul Good and Jules Burstein. Writing in the American Journal of Forensic Psychology, they liken preemptive detention laws to a "modern-day witchhunt":

Psychologists testifying for the state in SVP civil commitment trials are using contrived mental disorders and the scientific veneer of actuarial formulae…. [The ‘predator’ paradigm] gives the public a false sense of security by concentrating vast sums of money on incarcerating a small group of sexually violent offenders, in place of a more useful public health approach to the problem of sexual violence. The consequences of this misguided effort include emphasizing incarceration over treatment, draining scarce resources from a multi-pronged approach to preventing sex crimes, demonizing sex offenders, and promoting the "slippery slope" of preventive detention…. Psychologists should put the public interest ahead of their guild interest and expose this mistake in social policy. One dramatic step would be to resign from state SVP panels.

"Full Employment for Psychologists Act"*

But, as this semi-facetious title by Charles Patrick Ewing suggests, two decades into these laws the sheer number of embedded psychologists makes a boycott impractical. These psychologists will not boycott a system that is making them "boatloads" of money, as one testified – up to a cool $1.5 million a year. As Ewing lays bare in Justice Perverted, the opportunity has proved irresistible for psychologists, many with little scientific sophistication or prior expertise in forensic psychology or sex offending:

In the short run the payoff, especially for some individual practitioners, has been great, but in the long run, the damage done to their professions and the people who would be served by them may prove to be much greater…. It is difficult to picture … psychologists who now earn their living developing checklists that purport to predict sex offender recidivism, doing evaluations and testifying in sex offender civil commitment trials, and/or training others who do so, encouraging state legislatures to put them out of work.

Photo © Karen Franklin 2011

Most of these psychologists are well intended. They believe they are doing righteous work to protect the public from dangerous predators. If they thought otherwise, cognitive dissonance would force them to quit the lucrative panels, as a minority of their colleagues have done. Their structural position of embeddedness creates blinders. When one is walking among the trees, one cannot see the forest. And there is an element of group-think. Surrounded by like-minded professionals, they mistake these colleagues' concordance for a consensus in the broader profession.

More alarmingly, as psychiatrists Michael First and Allen Frances point out in the current issue of the Journal of the American Academy of Psychiatry and Law, these practitioners are being systematically mistrained as to proper diagnostic and risk assessment practices. Just last week, I heard about a government evaluator (annual earnings from SVP evaluations: $500,000) who testified in support of civilly detaining a rapist based upon a previously unknown mental disorder called "paraphilia not otherwise specified – attracted to power and control."

You can't make this stuff up. 

Even if psychology had the unified will to step into this minefield, I doubt that our field has the political clout to impact the industry in any significant way. Embedded psychologists are mere functionaries, interchangeable cogs in a machine, scoring checklists and regurgitating memorized formulas. Unless and until legislatures and courts recognize that these laws are not doing much (if anything) to reduce sexual violence or keep the public safe, the growing chorus of critical scholars in the fields of psychology, criminology and law will remain as tiny voices crying out in the wilderness.

Will the courts step up?

In a critical overview just published online in Psychiatry, Psychology and Law, a leading forensic scholar in Australia says the courts shoulder some of the responsibility for failing in their role as gatekeepers. If the courts were more rigorous, fatally flawed approaches to risk assessment would not predominate in sex offender cases, argues Ian Coyle of Bond University in Queensland.

At a minimum, Coyle suggests, the playing field should be leveled. In Australia, as elsewhere around the world, the government has vastly superior resources for expert witnesses than does the defense:

The theoretical equality of all before the law is thus subverted in practice by inequality of means.

Another barrier to justice is the complexity of the statistics and measurement theory invoked in these cases. Lacking advanced scientific training, it is hard for the average judge or attorney to make sense of the competing claims and accurately determine which are valid and which are not.

Making matters worse, even when individual judges educate themselves so that they can detect and reject pseudoscience, for example by rejecting the fictional diagnosis of "hebephilia" as a basis for civil commitment, higher courts often overturn their decisions. The disappointing truth is, judges are mere functionaries, too.

The coming crash

Photo © Karen Franklin 2011

In the end, I predict the system will ultimately crumble not due to principled opposition but by virtue of its own excesses. In the United States, as many states teeter on the edge of bankruptcy, it is hard to justify spending $1 billion per year or more to civilly detain a tiny handful of sex offenders at the expense of public schools, higher education, and even prisons.

It is a tricky business, because legislators and judges do not want to incur public wrath by appearing "soft" on sex offenders. Still, as citizens feel the effects of massive cutbacks in public services, I expect they will become less tolerant of government waste across the board.

The backlash is already starting. For example, last week in Minnesota a legislative auditor released a report slamming the sex offender civil commitment program as costly and ineffective:

Hundreds of sex offenders confined in state treatment facilities receive inadequate therapy from under-qualified staff at excessive cost, according to [the] report…. At the same time, many other offenders present such low risk to the public that they could safely be released to community group homes, saving taxpayers millions of dollars. And in what they describe as a public safety paradox, auditors found that some sex offenders are held indefinitely, even though they pose less risk than dangerous felons in state prisons who are being released back to the streets. Auditors called on state officials to replace this "all or nothing'' system and develop a plan for low-cost alternatives, while spending more on treatment of the most dangerous offenders.

California is following suit, with an audit of its SVP program due out in June. Psychologists may be especially interested in one particular task of the audit, to examine "the qualifications of staff or contractors who conduct the evaluations and determine if they are consistent with professional standards and laws and regulations."

Bottom line, the bough will come crashing down when the massive costs finally become too much for governments to bear, and when citizens figure out that SVP laws -- while symbolically appealing -- are a wasteful and ineffective approach to reducing sexual violence.

How will our misguided colleagues pay their mortgages and fund their children's college educations then? Hopefully they're putting some of those millions in the bank for a rainy day.

*from Justice Perverted 

Federal judge calls Minnesota civil commitment program “draconian”

State lawmakers remain in paralysis as judge threatens action

This is one in a series of on-the-ground reports from clinician Jon Brandt of Minnesota on the high-profile legal battle over the civil commitment of sex offenders in his state, a battle with potentially national repercussions. 

 

Guest post by Jon Brandt, MSW, LICSW*

Three weeks ago, a federal judge issued his long-awaited ruling in a civil rights case brought by civil detainees over the constitutionality of the Minnesota Sex Offender Program (MSOP). Although stopping short, for now, of declaring the program unconstitutional, the judge ordered new procedures to make release attainable for the 700 detainees. He warned that he may ultimately find the program to be unconstitutional if he determines that it is essentially punitive or if it confines men who are no longer dangerous. “The time for legislative action is now," wrote US District Judge Donovan Frank.

Now, in mid-March, with about eight weeks left in a short legislative session, Minnesota lawmakers are indicating that they are not likely to find bipartisan support to accomplish the reforms demanded by the federal court. If the state legislature adjourns without taking action, it seems likely that the US District Court will impose federal oversight.

Withholding "unconstitutional"

Fully aware that he is knee-deep in constitutional law and up to his neck in public antipathy, Judge Frank’s Feb. 20 ruling in Karsjens v. Jesson is a demonstration of judicial restraint. Judge Frank expressed several times in his 75-page decision that it is too early, in what will be protracted litigation, to rule on the constitutionality of any part of MSOP. However, his ruling leaves little doubt that he will hold the status quo to be an unconstitutional encroachment on civil liberties:

"[I]t appears that MSOP may very well be serving the constitutionally impermissible purposes of retribution and deterrence. … If, with the benefit of discovery, [the detainees] are able to demonstrate that the commitment statutes are systematically applied in such a way as to indefinitely commit individual class members who are no longer dangerous, or that MSOP is administered as a punitive system despite its statutory treatment purpose, Plaintiffs will likely prove up their claims."

Over the past two decades, more than 700 sexual offenders, deemed dangerous by state courts, have been sent to the program for treatment. Once there, detainees complain, disingenuous treatment and onerous program goals make release virtually impossible.

Judge Frank’s ruling appears to vindicate widespread complaints over conditions of confinement and concerns of civil liberties violations. Noted the judge:

"Whether or not the system is constitutionally infirm, without prompt action on the part of the legislature and [the state Department of Human Services], MSOP’s reputation as one of the most draconian sex offender programs in existence will continue."

Right to treatment?

Detainee at Moose Lake detention facility in Minnesota

If the position of the detainees can be reduced to the maxim that “no one has ever gotten out,” perhaps the State’s (defendant’s) position can be oversimplified to, “MSOP clients have no constitutional right to treatment.”   Judge Frank begged to differ with this latter position, expressing that legitimate treatment is, by judicial precedent, one of the essential constitutional underpinnings of civil detention programs for sex offenders (as distinct from criminal punishment). Judge Frank more than hinted at an ultimate finding in support of the detainees’ position, saying:

"Given the prison-like conditions described by Plaintiffs, and the lack of treatment and essentially no-exit regime alleged in this case, it may well be that, with a fully developed record, the Court will find the totality of the MSOP system to be unacceptably and unconstitutionally punitive."

He noted that it would be unconstitutional, under existing U.S. Supreme Court rulings, to operate a civil commitment program under the guise of providing treatment, if this is just “a sham or mere pretext,” and the true purpose is to punish.

Landmark ruling

Judge Donovan Frank

In his ruling, Judge Frank issued a landmark change, effectively shifting the burden of proof on how clients exit civil detention. Prior to this ruling, in order to gain release, detainees had to clear several tall hurdles. They had to prove they had completed the treatment program, demonstrate their readiness for community re-entry, and get the green light for release from two review panels. Under that scheme, in 20 years only two of more than 700 men gained even a conditional release. Citing substantial case law and programs in other states, Judge Frank turned that process upside down:

“It is unquestionable that commitment, at the outset, must be justified by law. Similarly, … continued commitment must also be justified. A statute that -- as written, as applied, or as implemented -- renders discharge from a sex offender civil commitment program more onerous than admission to it, such that individuals who no longer meet commitment criteria remain confined, raises grave due process questions. In that regard, the Court expresses serious doubts as to the constitutionality of Minnesota’s sex offender commitment statutes and their implementation through MSOP.

“Today, the Court finds that it is constitutionally mandated that only individuals who constitute a “real, continuing, and serious danger to society” may continue to be civilly committed to MSOP. See Hendricks, 521 U.S. at 372 (Kennedy, J., concurring). If the evidence demonstrates that MSOP systematically continues to confine individuals who are not 'a real, continuing, and serious danger to society,' then such confinement will be held unconstitutional."

State government paralyzed

A powerful amicus brief filed jointly by law professor Eric Janus and the ACLU of Minnesota is highly critical of the Minnesota program. Laying out relevant case law, the Brief claims that all three branches of Minnesota’s government have abdicated responsibilities for ensuring the program’s tenuous promises. The Brief observes that after the Federal Court advised the State Legislature in 2012 that urgent changes were needed, the 2013 Legislature failed to act; by executive order, the last two Minnesota Governors put constitutionally questionable moratoriums on releases; and state appellate courts have repeatedly failed to correct program deficiencies. 

Citing “massive deprivations of liberties,” and accumulating evidence that civil detention is punitive in nature, the Brief refers to the Minnesota experiment as an “utter betrayal.” If -- as now appears likely -- another legislative session expires without lawmakers taking action, there is little doubt that the federal court will intervene, perhaps as it did in the State of Washington .

Change coming to MSOP

To reassure, it is not the intent of this legal challenge that dangerous individuals be released into the community. Reforming MSOP is clearly a forensic minefield and Judge Frank has been deliberate in navigating solutions. Drawing on a critical 2011 report from the Minnesota Office of the Legislative Auditor, he appointed experts to conduct an initial review of MSOP. He also ordered the state’s Department of Human Services to assemble a Task Force of prominent stakeholders to explore program challenges and make recommendations. The Task Force issued their first report in December 2012 and their second report in December 2013.

In December 2013, in anticipation of his ruling, Judge Frank wisely appointed a team of four nationally recognized experts (identified in this previous blog) to help credibly guide the process. He asked both parties to the lawsuit, and the experts themselves, to identify the tasks and goals to which the “dream team” should endeavor, and then, leaving no doubt that change is coming to MSOP, Judge Frank’s order exceeded the cumulative list, and established priorities.

In addition to a complete review of the MSOP program, Judge Frank indicated that all current detainees will be reevaluated by independent experts to determine whether they currently meet criteria for civil commitment and, if so, whether they could be treated in less restrictive settings. He ordered reevaluations to begin with those likely to be most eligible for a reduction in custody. He even threw a bone to the 100 or so discouraged (or obstinate) detainees who have withdrawn from treatment:

“It defies reason that individuals who are comatose or otherwise completely incapacitated would be considered so dangerous as to require continued confinement in a secure, prison-like facility. Moreover, an individual who refuses to participate in treatment, but is no longer dangerous, cannot constitutionally continue to be confined in such a facility. See Foucha, 504 U.S. at 77.”

Judge Frank directed his final admonition to state administrators and the Minnesota Legislature, which just convened its 2014 session, stating that the time for “substantial changes” is now:

“If the evidence requires it, the Court will act. But it is the Minnesota Legislature that is best equipped to develop policies and pass laws -- within the limits of the Constitution -- that both protect public safety and preserve the rights of the class. The time for legislative action is now. Time and again, professional assessments have identified grave deficiencies in the program. Regardless of the claims raised in this case, and irrespective of the Court’s ultimate rulings on any constitutional questions with which it is presented, the interests of justice require that substantial changes be made to Minnesota’s sex offender civil commitment scheme.

“The program’s systemic problems will only worsen as hundreds of additional detainees are driven into MSOP over the next few years. The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.”

In reserving a ruling of “unconstitutional,” Judge Frank has been shrewd in attempting to force Minnesota’s government leadership to the table.   If state leaders acknowledge the federal court directives, seize good research, understand the limits of forensic psychology, and muster the professional courage to marshal bold legislative initiatives, Minnesota could potentially develop a national model for the civil commitment of sex offenders. If not, Judge Frank has left little doubt that the US District Court for Minnesota will rebalance legitimate concerns of public safety, effective treatment, and civil liberties for those under civil commitment.

Either way, these proceedings are likely to contribute to the national debate about whether civil commitment can be effectively reconciled with sound public policy and constitutional law, or whether civil commitment schemes, now in place in 20 U.S. states, are fundamentally “preventive detention,” derived from “society’s opprobrium” of sexual offenders.

* * * * *

Judge Frank’s  ruling (HERE) is a compelling read for anyone interested in the civil commitment of sex offenders.

*Jon Brandt is a clinical social worker in Minnesota, for 35 years working in the prevention of sexual abuse. He provides evaluations, treatment, and supervision to sexual offenders, and professional consultation and training to colleagues. His previous post on this case, a report on the December 2013 federal court hearing, can be found HERE. To contact Mr. Brandt, click HERE. 

Blogger urges new paradigm for sex offenders

Clarence Opheim, sentenced to 4 years
in prison back in 1988

Among sex offenders in Minnesota, Clarence Opheim is a very important man. After 20 years of treatment, the 64-year-old pedophile will be the second person ever released from civil detention in the North Star State, which holds the dubious distinction of having the highest per capita civil commitment rate.

The other 639 detainees are pinning all their hopes on next month's provisional release. If Opheim can make it, maybe they can too. The only other guy who came out except in a body bag violated his release conditions and in 2003 was returned to detention, where he died at age 45 of a heart attack. [See comments section for more on him.]

The program has been under pressure to release someone; otherwise, it might be found Unconstitutional: The legal premise behind civilly detaining people for crimes that are only remote future possibilities is not that they will be locked up forever, but that they will be treated and then released.

Although some are cheering this as a major turning point in the civil commitment industry, one prominent Minnesota clinician says the celebration is premature: What we really need is a bold paradigm shift in which industry leaders reject civil commitment altogether.

Comparing the civil commitment of sex offenders to the interment of Japanese during World War II, Jon Brandt asks, “If hindsight is 20/20, when we look back at sex offender civil commitment many years in the future, will we be proud of the roles that we had today?"

Brandt, a social worker, directs a residential treatment program for adolescent boys. He is also an expert witness in juvenile proceedings and a frequent professional trainer and media commentator who has addressed the Minnesota legislature on child welfare issues.

In his guest post on the blog of the influential Association for the Treatment of Sexual Abusers (ATSA), Brandt says the industry may have painted itself into a corner through its timidity about releasing sex offenders back into the community:

The Moose Lake detention site

It is not just in everyone's interest that Mr. Opheim succeeds; it is imperative. Consider the alternative: If the second of only two discharges in MSOP [the Minnesota Sex Offender Program] history fails, for any reason, both failures will be seen as a malfunction of both MSOP and SOCC [sex offender civil commitment]. A second unsuccessful discharge is not only likely to have far-reaching consequences for sexual offender management in Minnesota; a seismic "thud" may well be heard at ATSA listening posts across the country. In addition, it would be hard for the courts to ignore.

SOCC in Minnesota may now be painted into a corner. In the interest of public safety we may have compromised Constitutional protections beyond integrity. Perhaps Ben Franklin's quote is apt, that "those who would give up essential liberty to purchase a little safety deserve neither liberty nor safety."

Brandt urges ATSA to take the lead in challenging civil commitment, based on the low rates of sex offender recidivism established through empirical research including a new survey in Connecticut that found that only 3.6 percent of parolees who had served a prison term for a sex crime were arrested and charged with a new sex crime:

We have very solid empirical evidence to challenge current misguided public policies. We need to get good research to the right folks. We need to infuse policy makers with the necessary information for bureaucracies to champion productive recommendations into meaningful change…. If we use our knowledge and expertise to educate the public, inform our colleagues, and persuade policymakers that best practices should emanate from good science, we might not have to settle for incremental changes. We can help create new paradigms….

If professionals who work with sexual offenders do not challenge the politics, misinformation, and misguided management of sex offender civil commitment, where is a more credible voice going to come from? In an area of public policy where reason is often eclipsed by emotion, ATSA members may be in the best position to know the research, understand competing principles, and advocate for sound rationales. If forensic psychology with sexual offenders is being dominated more by forensics than psychology, I would suggest that the tail might be wagging the dog.

I recommend reading the entire post, available HERE.

Risk screening worthless with juvenile sex offenders, study finds

Boys labeled as 'sexually violent predators' not more dangerous

Juveniles tagged for preventive detention due to their supposedly higher level of sexual violence risk are no more likely to sexually reoffend than adolescents who are not so branded, a new study has found.

Only about 12 percent of youths who were targeted for civil commitment as sexually violent predators (SVP's) but then freed went on to commit a new sex offense. That compares with about 17 percent of youths screened out as lower risk and tracked over the same five-year follow-up period.

Although the two groups had essentially similar rates of sexual and violent reoffending, overall criminal reoffending was almost twice as high among the youths who were NOT petitioned for civil commitment (66 percent versus 35 percent), further calling into question the judgment of the forensic evaluators.

Because of the youths' overall low rates of sexual recidivism, civil detention has no measurable impact on rates of sexual violence by youthful offenders, asserted study author Michael Caldwell, a psychology professor at the University of Wisconsin and an expert on juvenile sex offending.

The study, just published in the journal Sexual Abuse, is one in a growing corpus pointing to flaws in clinical prediction of risk.

It tracked about 200 juvenile delinquents eligible for civil commitment as Sexually Violent Persons (SVP's). The state where the study was conducted was not specified; at least eight of the 20 U.S. states with SVP laws permit civil detention of juveniles, and all allow commitment of adults based on offenses committed as a juvenile.

As they approached the end of their confinement period, the incarcerated juveniles underwent a two-stage screening process. In the first phase, one of a pool of psychologists at the institution evaluated them to determine whether they had a mental disorder that made them "likely" to commit a future act of sexual violence. Just over one in every four boys was found to meet this criterion, thereby triggering a prosecutorial petition for civil commitment.

After the initial probable cause hearing but before the final civil commitment hearing, an evaluator from a different pool of psychologists conducted a second risk assessment. These  psychologists were also employed by the institution but were independent of the treatment team. Astonishingly, the second set of psychologists disagreed with the first in more than nine out of ten cases, screening out 50 of the remaining 54 youths. (Only four youths were civilly committed, and a judge overturned one of these commitments, so ultimately all but three boys from the initial group of 198 could be tracked in the community to see whether or not they actually reoffended.)

Evaluators typically did not rely on actuarial risk scales to reach their opinions, Caldwell noted, and their methods remained something of a mystery. Youths were more likely to be tagged for civil detention at the first stage if they were white, had multiple male victims, and had engaged in multiple instances of sexual misconduct in custody, Caldwell found.

However, no matter what method they used or which factors they considered, the psychologists likely would have had little success in predicting which youths would reoffend. Even "the most carefully developed and thoroughly studied" methods for predicting juvenile recidivism have shown very limited accuracy, Caldwell pointed out. This is mainly due to a combination of youths' rapid social maturation and their very low base rates of recidivism; it is quite hard to successfully predict a rare event.

Indeed, a recent meta-analysis revealed that none of the six most well-known and best-researched instruments for appraising risk among juvenile sex offenders showed consistently accurate results. Studies that did find significant predictive validity for an instrument were typically conducted by that instrument's authors rather than independent researchers, raising questions about their objectivity.

"Juveniles are still developing their personality, cognitions, and moral judgment, processes that reflect considerable plasticity," noted lead author Inge Hempel, a psychology graduate student in the Netherlands, and her colleagues. "There are still many possible developmental pathways, and no one knows what causes persistent sexual offending."

Caldwell agrees with Hempel and her colleagues that experts' inability to accurately predict which juveniles will commit future sex crimes calls into question the ethics of civil commitment.

"From the perspective of public policy, these results raise questions about whether SVP commitment laws, as written, should apply to juveniles adjudicated for sexual offenses," he wrote. "If SVP laws could be reliably applied to high risk juvenile offenders, the benefit of preventing a lifetime of potential victims makes for a compelling case. However, the task of identifying the small subgroup of juveniles adjudicated for sexual offenses who are likely to persist in sexual violence into adulthood is at least extremely difficult, and may be technically infeasible."

* * * * *

The articles are:

Michael Caldwell: Accuracy of Sexually Violent Person Assessments of Juveniles Adjudicated for Sexual Offenses, Sexual Abuse: A Journal of Research and Treatment. Request it from the author HERE.

Inge Hempel, Nicole Buck, Maaike Cima and Hjalmar van Marle: Review of Risk Assessment Instruments for Juvenile Sex Offenders: What is Next? International Journal of Offender Therapy and Comparative Criminology. Request it from the first author HERE.

Most civilly detained sex offenders would not reoffend, study finds

Other new research finds further flaws with actuarial methods in forensic practice

At least three out of every four men being indefinitely detained as Sexually Violent Predators in Minnesota would never commit another sex crime if they were released.

That’s the conclusion of a new study by the chief researcher for the Department of Corrections in Minnesota, the state with the highest per capita rate of preventive detention in the United States.

Using special statistical procedures and a new actuarial instrument called the MnSOST-3 that is better calibrated to current recidivism rates, Grant Duwe estimated that the recidivism rate for civilly committed sex offenders -- if released -- would be between about 5 and 16 percent over four years, and about 18 percent over their lifetimes. Only two of the 600 men detained since Minnesota's law was enacted have been released, making hollow the law's promise of rehabilitation after treatment.

Duwe -- a criminologist and author of a book on the history of mass murder in the United States -- downplays the troubling Constitutional implications of this finding, focusing instead on the SVP law’s exorbitant costs and weak public safety benefits. He notes that "Three Strikes" laws, enacted in some U.S. states during the same time period as SVP laws based on a similar theory of selective incapacitation of the worst of the worst, have also not had a significant impact on crime rates.

The problem for the field of forensic psychology is that forensic risk assessment procedures have astronomical rates of false positives, or over-predictions of danger, and it is difficult to determine which small proportion of those predicted to reoffend would actually do so.

Minnesota has taken the lead in civilly detaining men with sex crime convictions, despite the state's only middling crime rates. Unlike in most U.S. states with SVP laws, sex offenders referred for possible detention are not entitled to a jury trial and, once detained, do not have a right to periodic reviews. Detention also varies greatly by county, so geographic locale can make the difference between a lifetime behind bars and a chance to move on with life after prison.

Ironically, as noted by other researchers, by the time an offender has done enough bad deeds to be flagged for civil commitment, his offending trajectory is often on the decline. Like other criminals, sex offenders tend to age out of criminality by their 40s, making endless incarceration both pointless and wasteful.

The study, To what extent does civil commitment reduce sexual recidivism? Estimating the selective incapacitation effects in Minnesota, is forthcoming from the Journal of Criminal Justice. Contact the author (HERE) to request a copy. 

Other hot-off-the-press articles of related interest:

Risk Assessment in the Law: Legal Admissibility, Scientific Validity, and Some Disparities between Research and Practice 

Daniel A. Krauss and Nicholas Scurich, Behavioral Sciences and the Law

ABSTRACT: Risk assessment expert testimony remains an area of considerable concern within the U.S. legal system. Historically, controversy has surrounded the constitutionality of such testimony, while more recently, following the adoption of new evidentiary standards that focus on scientific validity, the admissibility of expert testimony has received greater scrutiny. Based on examples from recent appellate court cases involving sexual violent predator (SVP) hearings, we highlight difficulties that courts continue to face in evaluating this complex expert testimony. In each instance, we point to specific problems in courts’ reasoning that lead it to admit expert testimony of questionable scientific validity.We conclude by offering suggestions for how courts might more effectively evaluate the scientific validity of risk expert testimony and how mental health professionals might better communicate their expertise to the courts.

Contact Dr. Krauss (HERE) for a copy of this very interesting and relevant article. The following two articles are freely available online:

The utility of assessing "external risk factors" when selecting Static-99R reference groups

Brian Abbott, Open Access Journal of Forensic Psychology

ABSTRACT: The Static-99 has been one of the most widely used sexual recidivism actuarial instruments. It has been nearly four years since the revised instrument, the Static-99R, has been released for use. Peer-reviewed literature has been published regarding the basis for changing the scoring system for the age-at-release item, the utility of relative risk data, and variability of sexual recidivism rate s across samples. Thus far, the peer-reviewed literature about the Static-99R has not adequately addressed the reliability and validity of the system to select among four possible actuarial samples (reference groups) from which to obtain score-wise observed and predicted sexual recidivism rates to apply to the individual being assessed. Rather, users have been relying upon the Static-99R developers to obtain this information through a website and workshops. This article provides a critical analysis of the reliability and validity of using the level of density of risk factors external to the Static-99R to select a single reference group among three options and discusses its implications in clinical and forensic practice. The use of alternate methods to select Static-99R reference groups is explored.

Calibration performance indicators for the Static-99R: 2013 update

Greg DeClue and Terence Campbell, Open Access Journal of Forensic Psychology

ABSTRACT: Providing comprehensive statistical descriptions of tool performance can help give researchers, clinicians, and policymakers a clearer picture of whether structured assessment instruments may be useful in practice. We report positive predictive value (PPV), negative predictive value (NPV), number needed to detain (NND), and number safely discharged (NSD), along with associated confidence intervals (CIs) for each value of the Static-99R, for one data set. Values reported herein apply to detected sexual recidivism during a 5-year fixed follow-up for the samples that the Static-99R developers consider to be roughly representative of all adjudicated sex offenders.

BLOGGER NOTE: I'm posting this research update while stranded at LAX en route to Brisbane, Australia, where I will be giving a series of seminars and trainings at Bond University before flying to Honolulu to give a full-day continuing education training at the American Psychological Association convention. (Registration for that is still open, I am told.) I'll try to blog as time allows, and I hope to see some of you at these venues.

Justice perverted: Sex offense law, psychology and public policy

 Oxford University Press has just released this provocative new title of likely interest to many of my readers. It's written by esteemed forensic psychologist and attorney Charles Patrick Ewing, a law professor at The State University of New York, University at Buffalo Law School.

Summary:

Over the past quarter century Congress, state legislatures and the courts have radically reshaped America's laws dealing with sex offenders in an effort to reduce the prevalence of sex offenses. Most convicted sex offenders must now register with the authorities, who then make information about them available to the public. Possession of child pornography has been made an extremely serious crime often punishable by prison sentences that dwarf those meted out to child molesters, rapists, robbers, and even killers. Federal law now imposes a minimum sentence of ten years in prison for those convicted of using the internet to attempt to lure minors for sex. And the federal government and 20 states have "sexually violent predator" laws that allow the indefinite civil commitment of convicted sex offenders to secure institutions for treatment after they have served their full criminal sentences.

All of these changes in sex offender law, as well as numerous others, have been based at least in part on input from psychology, psychiatry and the social sciences. Moreover, enforcement and administration of many of these laws relies to a large extent on the efforts of mental health professionals. However, many questions about this involvement remain largely unanswered:

• Are these laws supported by empirical evidence, or even by well-reasoned psychological theories? Do these laws actually work? 

• Are mental health professionals capable of reliably determining an offender's future behavior, and how best to manage it? 

• Are experts capable of providing effective treatment for sex offenders -- i.e., treatment that actually reduces the likelihood that an identified sex offender will re-offend?

Drawing on research from across the social and behavioral sciences, Dr. Ewing weighs the evidence for the spectrum of sex offense laws, to occasionally surprising results. A rational look at an intensely emotional subject, Justice Perverted is an essential book for anyone interested in the science behind public practice.

What others are saying:

Ewing …gives a lucid, objective analysis of the laws, easily separating myth from reality in this intensely emotional area.

-- Philip H. Witt, Ph.D., ABPP, President, American Academy of Forensic Psychology, co-author, Evaluation of Sexually Violent Predators

A remarkable, eye-opener of a book—Professor Ewing brings to this highly controversial subject his knowledge as both a law professor and as a practicing forensic mental health expert.

--Alan M. Goldstein, Ph.D., ABPP, Professor Emeritus, John Jay College of Criminal Justice

This book is a breath of fresh air. It debunks the media-driven frenzy of fear, hate mongering, and utterly irrational laws that do far more harm than good. Professor Ewing writes thoughtfully, carefully, and persuasively. This book should be read by all who care about—and think about—this topic.

 --Michael L. Perlin, Law Professor, Director of International Mental Disability Law Reform Project, New York Law School

 Ewing is a prolific author, and never disappoints. His other recent books, which I have reviewed, include:

• Trials of a Forensic Psychologist: A Casebook

• Insanity: Murder, Madness, and the Law

• Minds on Trial: Great Cases in Law and Psychology

Groundbreaking study of sex offender life courses

Challenge to actuarials: 4 distinct trajectories ID'd

Actuarial tools to predict offenders' future risk are all the rage. They provide a veneer of science in that on average their simple formulas work somewhat better than the flip of a coin. But a bit of sleight of hand is involved. They work only by lumping everyone together, making the vast differences among individuals with similar risk scores magically disappear. Thus, they say little about the risk of the specific offender standing in court awaiting judgment.

In addition to masking differences between individuals, actuarial risk assessment tools such as the Static-99 and the MnSOST-R ignore changes within an individual over time. As offenders age, they tend to rack up more arrests, which are scored as historical risk factors that elevate risk. But paradoxically, as men reach their 40s their days of crime are numbered. Many actuarially minded evaluators show a remarkable ignorance of the robust criminological literature on desistance, viewing sex offenders through an insular and mechanistic lens of history as destiny.

In the first study to directly challenge these actuarial fallacies by examining the offending trajectories of adult sex offenders from early adolescence to adulthood, a group of Canadian criminologists has identified four distinct offending trajectories, and in the process found a couple of surprises.

The four trajectories, identified by Patrick Lussier of Simon Fraser University and his colleagues through a longitudinal, retrospective study of 250 convicted sex offenders in a federal prison, were -- in order from most to least prevalent:

• Very-low rate (56%): The most common trajectory involves a very low rate of offending over the time period examined, from ages 12 to 35. Most of these men were child molesters. Their offending appeared to be transitory and limited.

• Low-rate desistors (26%): This group followed the age-crime curve identified by criminologists such as Sampson and Laub and Moffitt for offenders in general. This trajectory takes off gradually in adolescence, peaks in young adulthood, and gradually declines in the mid-30s. Offenders begin with general criminal activity and escalate over time to more serious crimes, including sex offending. Paradoxically, sex offending begins just as their overall criminal activity is slowing down.

• Late bloomers (10%): This group is largely neglected in scientific literature about sex offending, according to the researchers. Rather than following the typical age-crime curve, late bloomers start their offending in adulthood, and gradually increase into their mid-30s. Like the low-rate desistors, this group progresses from nonsexual, nonviolent crimes to sex crimes. Many of these offenders sexually assault adolescent females.

• High-rate chronics (8%): This group somewhat matches that known to criminologists as the "life-course persistent" group. The smallest of the four groups, it is also the most criminally active. These offenders start out as juvenile delinquents and offend frequently as adults, with sex offenses as just one component of general criminality. Most of the sex offenders in this group raped adult women.

These findings have a notable implication for risk assessment with juveniles. Despite their highly divergent rates of crime and desistance, three out of the four groups are not distinguishable during adolescence. As Frank DiCataldo explains in his new book, Perversion of Youth, the smart gambler will place bets that any random juvenile sex offender will NOT go on to become a chronic sex offender as an adult.

Lussier and his colleagues are critical of the actuarial tools for failing to capture the desistance process:

Some individuals might be considered high-risk offenders when their criminal activity is actually in the desistance process. This might be particularly true for the low-rate desistors and the high-rate chronics. Others, such as the late-bloomers, might be underestimated by actuarial tools considering that their criminal involvement started later and did not accumulate the risk factors included in the actuarial tools, in spite of the fact that their offending is accelerating…. We are left wondering how current actuarial risk assessment tools can account for the diversity of offending trajectories of sex offenders and the dynamic aspect of their offending over [the] life course.

The researchers report that they will study the predictive validity of their model in a future study. They also recommend further studies to extend the age range past the mid-30s, to better understand the various trajectories over the entire life course.

The study is: "Criminal trajectories of adult sex offenders and the age effect: Examining the dynamic aspect of offending in adulthood," by Patrick Lussier, Stacy Tzoumakis, Jesse Cale, and Joanne Amirault, in the current issue of the International Criminal Justice Review.

Other newly published articles on the actuarial controversy:

Campbell, T.W., & DeClue, G. (2010). Flying Blind with Naked Factors: Problems and Pitfalls in Adjusted-Actuarial Sex-Offender Risk Assessment. Open Access Journal of Forensic Psychology. Available ONLINE.

ABSTRACT: Actuarial instruments are typically the centerpieces of evaluations pursuant to civil commitment statutes for sex offenders. Almost as frequently as they rely on actuarial instruments, evaluators adjust actuarial data via weighing additional variables that are (presumably) correlated with recidivism. Typically, however, such variables are only weakly related to reoffending. This article reviews many problems and pitfalls undermining Adjusted Actuarial Assessment (AAA) and reports data demonstrating how ill advised this procedure is. Publicly available data do not support a claim in a recent meta-analysis (Hanson and Morton-Bourgon, 2009, p. 7), "For all three measures, for all types of raters, and for all outcomes, the adjusted scores showed lower predictive accuracy than did the unadjusted actuarial scores." Based on available data, at its best, AAA neither increases nor decreases the accuracy of actuarial classification. At its worst, AAA dilutes actuarial accuracy.

Craig, L.A., & Beech, A.R. (2010). Towards a guide to best practice in conducting actuarial risk assessments with sex offenders. Aggression and Violent Behavior, 15, 278-293.

ABSTRACT: Assessing the risk of further offending behavior by adult sexual perpetrators is highly relevant and important to professionals involved in public protection. Although recent progress in assessing risk in sexual offenders has established validity of actuarial measures, there continues to be some debate about application of these instruments. Increasingly forensic practitioners are being requested to give expert witness evidence in formal settings where actuarial risk estimates are being examined. This is true in the Sexually Violent Predator (SVP) hearings in the United States and the Parole Board Hearings in the United Kingdom. It is important therefore for practitioners using actuarial scales in adversarial settings to have a thorough understanding of methodological limitations of the technology and possible errors and inaccuracies of reporting actuarial risk estimates in individual cases. The aim of this paper is to summarize strengths and weaknesses of actuarial risk data, and to contribute to developing guidance on best practice when using actuarial measures in adversarial settings. This paper is organized into six areas: (1) Actuarial scales in practice; (2) Understanding risk prediction concepts; (3) Factors known to affect actuarial estimates; (4) Can we use group data to assess risk in individual cases; (5) Choosing which actuarial risk measure to use; and (6) Reporting actuarial risk estimates. It is hoped this paper goes some way to establishing guidance on the best practice of actuarial scales and associated limitations.