November 26, 2013

Greetings from Bismarck, North Dakota

Here on the northern edge of the Great Plains, the local folk, of hardy Norwegian and Swedish stock, are strolling around as if it's a balmy day. Not me. Breathing steam into the 14-degree (-10 Celsius) air, I’m bundled up in a parka, ear muffs and gloves and still feel like an iceberg!

I’m up here at the behest of the state Supreme Court, giving a training to the judges on psychiatric diagnosis in court.

North Dakota is a sparsely populated state with the lowest crime rate in the nation, and the judicial community is tight-knit. Ninety percent of the state’s judges – from trial judges to Supreme Court justices – were crowded into the hotel ballroom.

It was hard to distill a day-long training into just two hours, but fortunately the well-informed and inquisitive judges brought up some of the omitted topics in the question-and-answer period. They seemed especially intrigued to learn of the reliability issues plaguing DSM-5 diagnoses, and the research on adversarial allegiance and psychopathy by Murrie and Boccaccini’s crew down in Texas and Virginia.

In 1997, North Dakota’s legislature jumped on the bandwagon and enacted a sexually violent predator law (here called a Sexually Dangerous Individual, or SDI, law), ushering in the circus of experts battling over diagnoses and risk assessment techniques that we see in the other 40 percent of U.S. states with such laws. So, naturally, someone asked about hebephilia, which testifying experts had falsely assured them would be in the DSM-5.

That reminds me: I just testified as a pure expert in a Frye evidentiary hearing in Washington on whether hebephilia was a generally accepted construct in the relevant scientific community. The judge ruled against hebephilia, but allowed an even-more-suspect "Paraphilia Not Otherwise Specified" diagnosis that the evaluator candidly admitted he had made up for that specific case.

North Dakota, by the way, holds the distinction of being the only U.S. state that has not adopted either the Daubert or Frye standard for evidence admissibility. It has its own unique rule that is very liberal. Still, as anywhere, judges bear the burden of being the evidentiary gatekeepers.

Talking with the judges after my session gave me a greater appreciation for the difficulties they face. Politicians pass laws, many ill-conceived, and then judges get stuck having to figure out how to enforce them, as best they can.

November 17, 2013

Static-99 “norms du jour” get yet another makeover

It would be humorous if the real-world consequences were not so grave.

Every year, at a jam-packed session of the annual conference of the Association for the Treatment of Sexual Abusers (ATSA), the developers of the Static-99 family of actuarial risk assessment tools roll out yet a new methodology to replace the old. 

This year, they announced that they are scrapping two of three sets of "non-routine" comparison norms that they introduced at an ATSA conference just four years ago. Stay tuned, they told their rapt audience, for further instructions on how to choose between the two remaining sets of norms. 

To many, this might sound dry and technical. But in the courtroom trenches, sexually violent predator cases often hinge on an evaluator's choice of a comparison group. Should the offender be compared with the full population of convicted sex offenders? Or a subset labeled "high risk/needs" that offended at a rate more than 3.5 times higher than the more representative group (21 percent versus 6 percent after five years)? 

To illustrate, whereas only about 3 percent (4 out of 139) of the men over 70 in the combined Static-99R samples reoffended, invoking the high-risk norms would cause a septuagenarian's risk to skyrocket by 400 percent. It's not hard to see why such an inflated estimate might increase the odds of a judge or jury finding a former offender to be dangerous, and recommending indefinite detention. 

The first problem with this method is that the basis for choosing a comparison group is very vague, inviting bias on the part of forensic evaluators. Even more essentially, there is not a shred of empirical evidence that choosing the high-risk norms improves decision-making accuracy in sexually violent predator (SVP) cases.

That should come as no surprise. Not one of the six samples that were cobbled together post-hoc to create the high-risk norms included anyone who was civilly committed -- or considered for commitment -- under modern-day SVP laws, which now exist in 20 U.S. states. (Four samples are Canadian, one is Danish, and the only American one is an exceptionally high-risk, archaic and idiosyncratic sample from an infamous psychiatric facility in Bridgewater, Massachusetts.) 

A typical psychological test has a published manual that gives instructions on proper use and clearly describes its norms. In contrast, the Static-99, despite its high-stakes deployment, has no published manual. Its users must rely on a website, periodic conferences and training sessions, and word-of-mouth information. 

High-risk norms based on guesswork, say forensic psychologists

Now, two forensic psychologists have joined a growing chorus of mainstream practitioners cautioning against the use of the high-risk norms, unless and until research proves that they improve evaluators' accuracy in forecasting risk of sexual re-offense. 

"There is zero empirical research showing increased accuracy by switching to a non- representative group," note Gregory DeClue and Denis Zavodny in an article just published in the Open Access Journal of Forensic Psychology. "Unless and until such choices are found to increase the accuracy of risk assessments, forensic evaluators should use local norms (if available) or the FULLPOP* comparison group (considered roughly representative of all adjudicated sex offenders)."

The authors critiqued the growing practice of selecting the high-risk norms based on so-called "psychologically meaningful risk factors." The Static-99 developers’ recommendation for this clinical decision-making is based on mere guesswork or speculation that is contradicted by scientific evidence from at least five recent studies, they note.
"In theory, it is possible that a standardized procedure could be developed whereby evaluators would use a dynamic risk-assessment tool in addition to a static-factor tool such as the Static-99R. Next, it could be tested whether carefully trained evaluators in a controlled study, using that combination of tools, arrive at more accurate predictions…. A third step would be field studies to address the practical impact of using the combination procedure in actual cases. Even if well-trained evaluators could use the procedure effectively under controlled conditions, it would be important to explore whether allegiance or other social-psychological factors decrease the accuracy of risk assessments in forensic cases. At present, there is no research showing that incremental validity is added by using clinical judgment regarding ‘external psychologically meaningful risk factors’ to augment or facilitate a statistically based risk- assessment scheme."

Indeed, an empirical study last year of Static-99 risk predictions found that accuracy decreased when evaluators used clinical judgment to override actuarial scores.

"The ratings with overrides predicted recidivism in the wrong direction -- that is, clinical overrides of increased risk were actually associated with lower recidivism rates and vice versa,” wrote Jennifer Storey, Kelly Watt, Karla Jackson and Stephen Hart in an article in Sexual Abuse: Journal of Research and Treatment.

DeClue and Zavodny question the Static-99 developers' decision to report only 5-year recidivism data, rather than also include 10-year recidivism rates, for the full sample, even though such information is readily available. This decision may influence some evaluators to go to the high-risk norms, for which 10-year data are reported, as the reference group for an offender.

The absolute best practice, they note, is to compare an offender with the actual recidivism rates in the local jurisdiction. To facilitate this, they provide a chart of contemporary recidivism rates from several U.S. states, including California, Washington, Texas, Florida, Connecticut, New Jersey, Minnesota and South Carolina. Recidivism rates varied from a low of less than 1 percent, among supervised offenders in Texas, all the way up to 25% for a group of offenders in Washington. 

As I reported last month on the new research out of Florida, a growing body of research is establishing that detected recidivism is far lower than was originally reported by the Static-99 developers. I predict that the high-risk samples will eventually fall by the wayside, as have other unscientifically proven methods.

But even if this suspect procedure is discredited and abandoned by the actuarial gurus who originally introduced it, this will not provide automatic redress for those already detained under the debunked method.

There's got to be a saner way to protect the public from sexual predators.

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The articles are:

Forensic Use of the Static-99R: Part 3. Choosing a Comparison Group” (2013), Gregory DeClue and Denis Zavodny, Open Access Journal of Forensic Psychology available online (HERE)

“Utilization and implications of the Static-99 in practice” (2012), Jennifer Storey, Kelly Watt, Karla Jackson and Stephen Hart, Sexual Abuse: Journal of Research and Treatment, available by request from Stephen Hart (HERE)

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*NOTE: DeClue and Zavodny replaced the developer’s label of the full group as "routine" with the term FULLPOP, for full population, after hearing evaluators testify in court that they did not use the full norms because they did not consider the individual in question to be "a routine sex offender."

November 5, 2013

Static-99 developers embrace redemption

Sex offender risk plummets over time in community, new study reports

Criminals reform.

Violent criminals reform.

And now -- drum roll -- the authors of the most widely used actuarial tool for assessing sex offender recidivism are conceding that even sex offenders cross a "redemption threshold" over time, such that their risk of committing a new sexual crime may become "indistinguishable from the risk presented by non-sexual offenders."

Tracking a large group of 7,740 sexual offenders drawn from 21 different samples around the world, the researchers found that those who remain free in the community for five years or more after their release are at drastically reduced risk of committing a new sex offense.

The offenders identified as at the highest risk on the Static-99R saw their rates of reoffending fall the most, from 22 percent at the time of release to 8.6 percent after five years and only 4.2 percent after 10 years in the community. Based on their findings, the researchers say that risk factors such as number of prior offenses are time-dependent rather than truly static or never-changing.

"If high risk sexual offenders do not reoffend when given the opportunity to do so, then there is clear evidence that they are not as high risk as initially perceived," note authors R. Karl Hanson, Andrew J. R. Harris, Leslie Helmus and David Thornton in the article scheduled for publication in the Journal of Interpersonal Violence.

Quoting two of my favorite scholars -- criminologist Shadd Maruna and law professor/forensic psychologist Charles Ewing -- the authors challenge the notion that sex offenders represent a special case of perpetual danger. They question the need for lifelong monitoring and supervision.

"Even if certain subgroups of sexual offenders can be identified as high risk, they need not be high risk forever. Risk-relevant propensities could change based on fortunate life circumstances, life choices, aging, or deliberate interventions."

The time-free effect was similar across all subgroups examined, including those defined by age at release, treatment involvement, pre-selection into a "high risk/high need" category on the Static-99R, or victim type (adults, children, related children).

The authors recommend revising estimates of risk for individuals who do not reoffend after being free in the community for a certain period of time.

"Once given the opportunity to reoffend, the individuals who reoffend should be sorted into higher risk groups, and those who do not reoffend should be sorted into lower risk groups. This sorting process can result in drastic changes from the initial risk estimates."

The article is: "High Risk Sex Offenders May Not Be High Risk Forever." Copies may be requested from the first author, R. Karl Hanson (HERE).

November 2, 2013

RadioLab explores criminal culpability and the brain

Debate: Moral justice versus risk forecasting

After Kevin had brain surgery for his epilepsy, he developed an uncontrollable urge to download child pornography. If the surgery engendered Kl├╝ver-Bucy Syndrome, compromising his ability to control his impulses, should he be less morally culpable than another offender?

Blame is a fascinating episode of RadioLab that explores the debate over free will versus biology as destiny. Nita Farahany, professor of law and philosophy at Duke, is documenting an explosion in the use of brain science in court. But it's a slippery slope: Today, brain scanning technology only enables us to see the most obvious of physical defects, such as tumors. But one day, argues neuroscientist David Eagleman, we will be able to map the brain with sufficient focus to see that all behavior is a function of one perturbation or another.

Eagleman and guest Amy Phenix (of Static-99 fame) both think that instead of focusing on culpability, the criminal justice system should focus on risk of recidivism, as determined by statistical algorithms.

But hosts Jad and Robert express skepticism about this mechanistic approach to justice. They wonder whether a technocratic, risk-focused society is really one we want to live in.

The idea of turning legal decision-making over to a computer program is superficially alluring, promising to take prejudice and emotionality out of the equation. But the notion of scientific objectivity is illusory. Computer algorithms are nowhere near as value-neutral as their proponents claim. Implicit values are involved in choosing which factors to include in a model, humans introduce scoring bias (as I have reported previously in reference to the Static-99 and the PCL-R), and even supposedly neutral factors such as zip codes that are used in crime-forecasting software are coded markers of race and class. 

But that’s just on a technical level. On a more philosophical level, the notion that scores on various risk markers should determine an individual’s fate is not only unfair, punishing the person for acts not committed, but reflects a deeply pessimistic view of humanity. People are not just bundles of unthinking synapses. They are sentient beings, capable of change.

In addition, by placing the onus for future behavior entirely on the individual, the risk-factor-as-destiny approach conveniently removes society’s responsibility for mitigating the environmental causes of crime, and negates any hope of rehabilitation.

As discussed in an illuminating article on the Circles of Support and Accountability (or COSA) movement in Canada, former criminals face a catch-22 situation in which society refuses to reintegrate them, thereby elevating their risk of remaining alienated and ultimately reoffending. Yet when surrounded by friendship and support, former offenders are far less likely to reoffend, studies show.

The hour-long RadioLab episode  concludes with a segment on forgiveness, featuring the unlikely friendship that developed between an octogenarian and the criminal who sexually assaulted and strangled his daughter.

That provides a fitting ending. Because ultimately, as listener Molly G. from Maplewood, New Jersey, comments on the segment’s web page, justice is a moral and ethical construct. It’s not something that can, or should, be decided by scientists.

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The episode is highly recommended. (Click HERE to listen online or download the podcast.)