October 9, 2008

Challenge to juvenile sex offender risk prediction

Harsh federal law on shaky scientific ground

Did you know that each year, about 10,000 children will have to register as sex offenders for life?

That's part of the Sex Offender Registration and Notification Act, embedded in the Adam Walsh Child Protection and Safety Act passed by the U.S. Congress two years ago. Under SORNA, these arrested juveniles will be subject to warrantless searches for the rest of their lives, despite the fact that as kids they did not have the same types of due process rights that protect adults in criminal court.

SORNA marks a huge departure from past juvenile justice practices, which recognized that children are different, and that most juvenile crime is "adolescent-limited."

So, here's some food for thought:
  • What if it turns out that this new practice is not just extremely harsh, but paradoxically puts the public at heightened risk by impeding rehabilitation, and consigning kids who would otherwise move on with their lives to the status of permanent social pariahs?
  • And what if it turns out that the "scientific" methods the states use to determine which juveniles are at high risk for sexual reoffending are completely worthless?
Well, it looks like both of those things are true.

Prediction tools don't work

This month's Psychology, Public Policy, and Law published an important study showing that the systems in place to determine which juveniles are at high risk for recidivism simply don't do the job.

The researchers followed high-risk juvenile males for an average of about six years. They rated them on the highly touted Juvenile Sex Offender Assessment Protocol (J-SOAP-II) and the risk protocols developed by three states (Texas, New Jersey, and Wisconsin). Not only did the systems not work, but they were not even consistent with each other!

"This finding suggests that a juvenile's assessed level of risk may be more dependent on the state he lives in than on his actual recidivism risk," the authors concluded.

And SORNA's own tiered risk system fared even worse: Juveniles designated as high risk actually recidivated at lower rates than others.

In summary, the researchers concluded that the risk tools that have such important implications for the lives and futures of adolescents are both "nonscientific" and "arbitrary."

Treatment works

Although the efficacy of sex offender treatment among adults is contested, among adolescents the study findings were clear: Developmental factors play a big role in adolescent sexual behavior, and risk for reoffense can be reduced through high-quality treatment.

This is consistent with other recent research showing that even the most intractable offenders can be rehabilitated -- and at a cost far lower than the cost of punishment.

The authors concluded that SORNA as it applies to youth is not only misguided but is likely to do more harm than good:
"The legislation … is based on the assumption that juvenile sex offenders are on a singular trajectory to becoming adult sexual offenders. This assumption is not supported by these results, is inconsistent with the fundamental purpose of the juvenile court, and may actually impede the rehabilitation of youth."
Now, consider these facts:
  • Most juvenile sex offenders stop offending by early adulthood.
  • Among delinquents, just as many non-sex offenders as sex offenders go on to engage in adult sexual offending.
  • At least one in five adolescent males commits a sexual assault. (See Abbey, referenced below.)
What do these facts add up to?

The need for widescale prevention efforts, instead of ineffective stigmatization of a few unlucky individuals. (Funding for such efforts has dropped precipitously, probably not coincidentally to the rise of increasingly punitive sanctions; see Koss citation, below.)

Other challenges to SORNA

Meanwhile, other aspects of SORNA face challenges, and a few such challenges are headed for the U.S. Supreme Court. Specifically, legal challenges assert that SORNA exceeds federal rights by encroaching on state and local decision-making.

As summarized in the current issue of the American Bar Association journal, at least two courts have sided with critics and invalidated some or all of the registry law, and in a third case the new law has been put on hold until arguments are heard. (I reported on one of those cases, U.S. v. Waybright, back in August – the blog post with links is here.)

SORNA-style databases are already being extended to domestic violence offenders, and if they are upheld by the U.S. Supreme Court they are likely to extend even further. That is the conclusion of Wayne A. Logan, a law professor at Florida State University and author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.

So, warn your kids now: Don't ever get arrested. You may be publicly stigmatized - and perhaps even subject to warrantless searches - for the rest of your life.

For further information:

Caldwell, M.F., Ziemke, M.H., & Vitacco, M.J. (2008). An examination of the Sex Offender Registration and Notification Act as applied to juveniles: Evaluating the ability to predict sexual recidivism. Psychology, Public Policy, and Law, 14 (2). 89-114.

Abbey, A. (2005). Lessons learned and unanswered questions about sexual assault perpetration. Journal of Interpersonal Violence, 20 (1). 39-42.

Koss, M.P. (2005). Empirically enhanced reflections on 20 years of rape research. Journal of Interpersonal Violence, 20 (1). 100-107.

For further information on the juvenile registration requirements of SORNA, see the U.S. Department of Justice's online fact sheet; this month's Police Chief magazine also has a summary of SORNA that includes the juvenile provisions (online here). The full text of the Adam Walsh Child Protection and Safety Act is here.

The American Bar Association article, "The National Pulse: Crime Registries Under Fire -- Adam Walsh Act mandates sex offender lists, but some say it's unconstitutional," is available here.


C.U.T.R. "Clean Up the Registry" Ohio said...

Legislation concerning sex offenses need the advice of the 'experts'.
John Walsh is not an expert. The President of the United States is not an expert.
A Judge, Prosecuting Attorney, Senators, State Representatives, none, are experts.
It is time to clean up the registry to its true intent. Criminalizing our youth and young due to 'mistakes' or 'poor judgement' concerning a 'sex offense' has to stop.
It is time to 're-think', 're-consider' and 're-define' who is on the registry for 'what'!
Thank you for allowing me to post.
I have much to say on this issue!

Jacquelyn L. Horst

SOSVA said...

I would also add that these very same facts about "juvenile" offenders are also true about young adult offenders. Most research has focused on either juvenile offenders or more serious adult offenders. However, the same assessments that yield bogus results for juveniles are also flawed when used with many young (but adult) offenders who are assigned extra risk points for their age, lack of education and job experience, and not having been married or in a long-term relationship!

We need better methods for assessing risk in young people and they need to be OFF the registry!

The Anti Nazi said...

This is more evidence that sex offender registries are way over-reaching.
Less than 10% re-offend (source : Department Of Justice) and many on the registry, including thousands of juveniles, have NEVER committed rape before. They should not be lumped together with violent predators!
These unconstitutional laws need a serious overhaul.

Unknown said...

As one that works with juvenile sexual offenders, I have to agree the life time registry for them is not the way to go. Treatment for juveniles has been proven to be effective and in many cases helps the offender to go on to lead a normal non offending lifestyle. As for the assessments tool though, they only give a RISK level and do not actually say that someone will reoffend. One of the reasons for many of the juveniles to be at a high risk level is simply due to historical facts about themselves. With these facts not being able to change, the RISK is higher. As an example for risk, if a person takes something from a store without paying for it only one time, the risk is higher for them to do so again than it is for someone who has never stolen. It is not saying they will steal again, only that the risk is higher. This same logic is the logic that is behind the assessment tools used to show the risk of reoffending. Some of the tools are very out of date and most of them are based on the ones used for adults, but it is only giving a risk level, not saying the juvenile will offend again.

Marcus Den said...

One of the reasons for many of the juveniles to be at a high risk level is simply due to historical facts about themselves. It is time to think consider and define who is on the registry. Thanks for the informative post..