Legal challenge may force changes to Minnesota civil commitment

Guest post by Jon Brandt, MSW, LICSW

It has been 16 years since the U.S. Supreme Court narrowly upheld the constitutionality of controversial preventive detention schemes for dangerous sex offenders. Now, with 20 U.S. states incarcerating many thousands of men at an annual cost of more than $500 million, Minnesota has become Ground Zero for a new round of legal challenges alleging that the state’s treatment program is a sham from which no one is ever released. In this guest post, Jon Brandt gives a first-person report on last week’s momentous federal hearing.

U.S. District Court Judge Donovan Frank

SAINT PAUL, MINNESOTA -- On December 18 at the Federal District Courthouse, Judge Donovan Frank heard motions in a federal lawsuit that promises to dramatically change the civil commitment landscape in Minnesota and, by extension, around the country.

The case began modestly two years ago as a pro se complaint by about a dozen detainees at the Minnesota Sex Offender Program (MSOP).* The Federal District Court for Minnesota determined the case had merit, appointed counsel, and in 2012 Judge Frank certified it as a class action.  At a hearing last Wednesday, Dan Gustafson, lead attorney for the plaintiffs, argued motions alleging that civil commitment as administered in Minnesota is unconstitutional. 

An inauspicious start

When the court convened there was a sparse audience that included a few families of MSOP clients, a handful of reporters, and several professional stakeholders. Conspicuously absent were any plaintiffs.   Perhaps there’s some irony in the fact that, in 20 years, not only has no one ever been fully discharged from MSOP, apparently all current clients are too dangerous for any of them to be shackled and accompanied by security personnel to a federal courtroom to hear arguments on the conditions of their own confinement. Given that courtrooms are designed to contain dangerous people, whether the decision to exclude clients was made by executive or judicial authorities, it seems like a missed opportunity to allow some representative plaintiffs to bear direct witness to the wheels of justice.   

The hearing had an inauspicious start for the 698 plaintiffs civilly detained 90 miles away – the audio feed via phone lines failed. So, after waiting 15 years for the courts to reconsider their plight, the plaintiffs missed the first hour of legal arguments.   When the audio connection was finally restored, Judge Frank assured wary plaintiffs that the technical problems were not deliberate, and personally took responsibility.
The hearing began with attorney Gustafson arguing for “declaratory judgment,” or a legal finding that the state’s civil commitment program is operating in an unconstitutional manner.   He cited case law that clients have a constitutional right to rehabilitation and claimed that the program breaches civil liberties and offers neither adequate rehabilitation nor acceptable living conditions.

No one ever released

Detainee at Moose Lake MSOP facility

The state’s attorney, Assistant Attorney General Nate Brennaman, countered that the program does provide appropriate treatment, that there is no constitutional right to treatment, and that the plaintiffs are basing their entire case on a single fact, “That no one has ever gotten out.”

Gustafson seemed amused that the defense was making his case. The fact that no one is released is strong evidence, he asserted. He pointed out that nearby states have far better track records. Wisconsin, with demographics nearly identical to Minnesota’s, has civilly committed only 351 people, and nearly half are now on either conditional or full release. Iowa has committed only about 103 people, and about 30 of those have been provisionally or fully released. He pointed out that treatment which was originally estimated to be completed in 32 months is now anticipated to last eight to nine years. Not a single one of the more than 700 individuals (including one female) who have been detained has ever completed the treatment program, and only one is on conditional release.

The plaintiff next argued for a court order mandating that each detainee be individually evaluated to determine whether he might safely be released to a “less restrictive alternative,” or LRA.

Judge Frank peppered the hearing with comments and questions that frequently interrupted attorneys on both legal teams, and also gave clues to his persuasion.   Noting that Justice Kennedy was the swing vote in the 5-4 ruling in Kansas v. Hendricks, he read a passage from Kennedy’s concurring opinion whereby Kennedy cautioned that “an improvident plea bargain” by the criminal justice system cannot be remedied by the civil commitment system, and that retribution is exclusively within the domain of criminal justice. Judge Frank also raised concerns about 18 infirmed clients (one who is 91) who require assisted living and questioned the “dangerousness” of such relatively incapacitated clients. He also questioned conditions of confinement that mimic prison. When the state’s attorney argued that conditions of criminal versus civil confinement had been decided by the US Supreme Court in the 1982 Youngberg v. Romeo case, Judge Frank interrupted with, “No, it wasn’t… but continue.”

Judge Frank expressed concern that most of the clients at the MSOP were still in the first phase of treatment, and twice pointed to his understanding that treatment progress is not only slow but that some clients are apparently sent back to redo previous phases. He also seemed concerned that detainees get less treatment than sexual offenders incarcerated in state prisons. He pondered rhetorically, “How much treatment is enough,” and questioned how the “Youngberg standard” of professional judgment might determine completion of treatment.

Motion for federal oversight

Moose Lake

The plaintiffs’ third motion was for the appointment of a “special master” and federal supervision of both the facility and the system. A special master is an administrator who would oversee MSOP operations and implement federal court directives. The state’s attorney responded that clients are getting effective treatment at MSOP, that treatment is subject to quarterly reviews, which is more stringent than other states that only require annual reviews, that MSOP has filled most of its open clinical positions, and that there is nothing that a special master could do that isn’t either already being done, or that DHS couldn’t manage if so directed by the federal court.

If Judge Frank grants the first motion, finding conditions unconstitutional, the other two motions might be automatic -- MSOP could be put under federal supervision in a similar manner as the state of Washington from 1994 to 2007. 

Judge Frank confirmed that on December 6 he appointed four sex offender treatment experts to guide the proceedings, under Federal Court Rule 706 . The four experts are: 

• Mike Miner, Professor and Research Director of the Program in Human Sexuality at the University of Minnesota Medical School

• Naomi Freeman, who leads New York’s unit for Strict and Intensive Supervision and Treatment that manages civilly committed individuals outside of secure facilities

• Deborah McCulloch, director of Wisconsin’s sex offender civil commitment program, and 

• Robin Wilson, former clinical director at the Florida sex offender civil commitment program from 2006 to 2011, during which time there was a class action and settlement

Judge Frank seems to have exercised judicial restraint over the two years since the original complaint was filed. In an effort to prod state government, in 2012 he ordered the establishment of a special task force  to make recommendations to the state legislature. The Task Force held several hearings and collected relevant documents. It issued its first report in December 2012, with general recommendations for public-private partnerships to establish a statewide network of less restrictive alternatives. The report echoed critical findings by the Minnesota Office of the Legislative Auditor in 2011. Unfortunately the state legislature adjourned in May 2013 without enacting legislative changes. 

Events may force action

Wednesday’s motions, the critical reports, and two other events in 2013 will likely force Judge Frank to act soon. Last summer Dr. Grant Duwe, chief researcher for the Minnesota Department of Corrections, published research that challenges the government’s foundational claim that civil detainees are “highly likely” to reoffend. Duwe’s research indicates that most of the detainees are highly likely to NOT reoffend.   

Then, last month, Minnesota Governor Mark Dayton issued an executive order that continued the eight-year moratorium of his predecessor -- that there will be no further releases of clients from MSOP, except by court order. With this abdication of executive oversight, all three branches of the state government seem to be in perpetual paralysis. 

Minnesota’s government is managing the Sex Offender Civil Commitment program (SOCC)  like holding a wolf by the ears -- don’t want to hold on and afraid to let go.   Modest reforms that are in progress at MSOP are being sabotaged by systemic failures. Clinical staff have the impossible job of trying to maintain the integrity of endless treatment goals for clients trapped in a treatment paradox and have come to realize that the promise of rehabilitation is disingenuous.

Legal scholar Eric Janus

One of the highly principled critics of SOCC who is likely to be vindicated by imminent rulings from Judge Frank is Eric Janus. Janus is the President and Dean of the William Mitchell College of Law, and author of, “Failure to Protect; America’s Sexual Predator Laws and the Rise of the Preventive State” (Cornell University Press, 2006). Janus led an unsuccessful challenge to SOCC before the Minnesota Supreme Court in the 1990s. Since then, he has been warning that the SOCC, as public policy, is deceptively enticing, deeply flawed, and destined to overreach its stated intent. Janus was also a member of the Minnesota SOCC Task Force. 

Judge Frank indicated that he will accept a joint amicus brief from Janus and the ACLU, due Dec. 27, and will rule on the motions within 60 days.

My take is that the federal courts can no longer ignore repeated judicial admonishments; if the SOCC begins to look like retribution or prison in disguise, the courts will intervene. With precedence in the state of Washington, Judge Frank seems poised to put MSOP under federal supervision. Depending on the strength of any finding of “unconstitutional,” the ruling could have far-reaching implications that echo around the United States.    

Relevant legal cases:

*Karsjens, et al. v. MN Department of Human Services, et al., CV 11-3659 DWF/JJK

Foucha v. Louisiana, (90-5844), 504 U.S. 71 (1992).

Strutton v. Meade, (10–2029) 668 F.3d 549, US Court of Appeals for the Eighth Circuit (2012)

Youngberg v. Romeo, (80-1429) 457 U.S. 307 (1982)

Call v. Gomez, 535 N.W.2d 312, Supreme Court of Minnesota (1995)

Seling v. Young (99-1185) 531 U.S. 250 (2001)

Jon Brandt is a clinical social worker in Minnesota, for 35 years working in the prevention of sexual abuse. He has provided evaluations, treatment, and supervision to several hundred sexual offenders, and provided professional consultation and training to colleagues. He is a Clinical Member of the Association for the Treatment of Sexual Abusers (ATSA) and is a blogger for ATSA’s website, Sexual Abuse: A Journal of Research and Treatment.   In February 2012 his post, “Doubts about SVP Programs,” was re-blogged here.
 

The psychic perils of forensic practice

John Bradford burst into tears. Hitting the road for the four-hour trek back to his home in Ontario, Canada, he could not stop crying and shaking.

An internationally renowned forensic psychiatrist, Bradford had been working around-the-clock on the high-profile case of Canadian Air Force Colonel Russell Williams, a decorated military pilot and commander of the country's largest military airbase who had spent his spare time torturing and murdering women.

Bradford's breakdown took him by surprise. Like other forensic practitioners, he had spent decades sitting across the table from rapists, murderers and sexual sadists. He was adept at emotionally distancing himself from their twisted psyches and wretched deeds. But the gruesome video of two young women screaming and begging for their lives (unsuccessfully, as he knew) proved a tipping point.

Descending into a very dark place, he was eventually diagnosed with posttraumatic stress disorder. He underwent lengthy therapy and drug treatment. Although he has now returned to his forensic practice, he is more cautious about the types of cases he will take on.

The profile by reporter Chris Cobb in the Ottawa Citizen, documenting Bradford's three-year struggle with vicarious traumatization, came as a complete shock to me. It was just three years ago that I served with Bradford on a team debating three controversial paraphilias being proposed for the DSM-5. Bradford, an advisor to the DSM-IV, was past president of the American Academy of Psychiatry and Law (AAPL), which hosted the debate. He holds numerous other accolades. He is a professor at the University of Ottawa, founder and clinical director of the Sexual Behaviors Clinic in Ottawa, and a Distinguished Fellow of the American Psychiatric Association, earning its prestigious Isaac Ray Award.

 Williams' victims, Jessica Lloyd and Marie-France Comeau

If he could fall apart, I wondered, who couldn’t?

Bradford described for the reporter how his mental state gradually morphed from calm and collected to irritable and angry, as he worked long hours on the Williams case. At one point, being cross-examined by a defense attorney in another case, he got so irritated by the attorney’s repetitiousness that he almost blurted out, "Why don’t you shut the f-- up, you a—hole?' "

It was then that he realized he was losing control.

"I knew there was something wrong but there was a lot of denial on my part," the 66-year-old Bradford told Cobb. "And that’s why it didn’t work when I first went into treatment. I was pessimistic and depressed, but if you’re a psychiatrist and a tough forensic guy you think you can blow anything off, right? And that’s what I did."

I was struck by the courage it must have taken Bradford to reveal his vulnerabilities to the world. I hope that his personal story can help stimulate conversation on the emotional dangers of this work. If Bradford can crumble, so can anyone, no matter how experienced, competent, or externally cool. Being part of a culture in which weakness is taboo, and can even be professional suicide, makes honest disclosure and help-seeking all the more difficult.

Confronting vicarious traumatization

Vicarious traumatization (also known as compassion fatigue, secondary trauma, or just plain burnout) has received some attention in professional circles in the past few years. There are books, journal articles, professional trainings, even websites.

The DSM-5 criteria for Posttraumatic Stress Disorder (PTSD) reflect this growing awareness. Criterion A, which lists the stressors that make one eligible for the diagnosis, now includes "experiencing repeated or extreme exposure to aversive details of the traumatic event(s)." To keep those who view disasters on TV from being diagnosed with PTSD, as happened after the 9/11 terrorist attack, the text clarifies that this applies to such people as "first responders collecting human remains or police officers repeatedly exposed to details of child abuse," and NOT to those exposed through the media, "unless this exposure is work related."

As this criterion implies, vicarious traumatization can strike not just forensic evaluators, but anyone who spends too much time rubbing up against trauma -- nurses, ambulance operators, child welfare workers, police, lawyers, judges, even jurors.

Studies on its incidence among forensic professionals are mixed. An unpublished survey by graduate student Julie Brovko and forensic psychologist William Foote of the University of New Mexico found low levels of vicarious traumatization among a convenience sample of 65 forensic psychologists. However, consistent with Bradford's case, more time in the field was correlated with more problems.

In contrast, a 2010 survey of 52 Australian clinicians providing treatment to convicted sex offenders found no evidence of compassion fatigue or burnout. The majority reported low stress and high levels of job satisfaction working with this challenging population. Ruth Hatcher and Sarah Noakes found that supervision and external social support helped clinicians avoid burnout.

One limitation of both of these studies is that they surveyed only those who remained active in the field. Anecdotal accounts suggest that some individuals leave forensic practice due to the emotional toll, which can produce feelings of estrangement, numbness, and hypervigilance.

An opposite danger?

Reflecting on Bradford's breakdown, I thought about the opposite tendency. Is it resilience that keeps other professionals from crumbling under the weight of witnessing constant perversion and misery? Or, might some be repressing their feelings in a manner that is not so healthy?

After all, to not be disturbed by graphic cruelty or stark oppression is in itself disturbing. Such psychic numbing whittles away at one's humanity.

In the memoir 12 Years a Slave (which I highly recommend), Solomon Northrup reflected on how the cruelty of slavery fostered casual violence not only toward slaves but also among white slaveholders. These men thought nothing of stabbing or shooting each other at the slightest provocation, the Southern "culture of honor" that remains with us today:

"Daily witnesses of human suffering -- listening to the agonizing screeches of the slave -- beholding him writhing beneath the merciless lash … it cannot otherwise be expected, than that they should become brutified and reckless of human life."

I've seen that phenomenon first-hand in institutions. Brutality breeds brutality, along with an indifference to brutality among institutionalized professionals that is equally troubling.

Mitigation?

Perhaps the first step in addressing the problem is for professionals to openly discuss the risk of professional burnout, vicarious traumatization, and psychic numbing. It’s very useful to have support and consultation groups where one can let one's guard down and be more vulnerable, debriefing after horrific case work with trusted colleagues.

Mindful meditation is so en vogue these days that I hesitate to join the bandwagon, but I do think it too can help reduce stress and emotional meltdowns.

Balance is also essential. Rest, relaxation, hobbies, exercise. It's not coincidental that Bradford broke down while working around-the-clock on a high-profile case. 

I'd be interested in others' thoughts on the emotional hazards of our work, and strategies or techniques for staying healthy.

Hat tip: Jeff Singer

Related resources:

• Brovko and Foote (2011), Vicarious Traumatization: Are forensic psychologists vulnerable to trauma exposure? (Presentation) 
• Culver, McKinney and Paradise (2011), Mental health professionals’ experiences of vicarious traumatization in Post-hurricane Katrina New Orleans, Journal of Loss and Trauma 16, 33-42 
• Harrison and Westwood (2009), Preventing vicarious traumatization of mental health therapists: Identifying protective practices, Psychotherapy Theory, Research, Practice, Training 46 (2), 203-219 
• Hatcher (2010), Working with sex offenders: The impact on Australian treatment providers, Psychology Crime and Law 16 (1-2) 
• Robertson, Davies and Nettleingham (2009), Vicarious traumatisation as a consequence of jury service, The Howard Journal 48 (1) 
• Tabor (2011), Vicarious traumatization: Concept analysis, Journal of Forensic Nursing 7, 203-208 
• Taylor and Furlonger, A Review of Vicarious Traumatisation and Supervision Among Australian Telephone and Online Counsellors, Australian Journal of Guidance and Counselling 21 (2), 225-235

School violence and criminology: Free article access

This month only, Routledge (publisher of multiple academic journals) is offering free access to a series of articles on school violence relevant to forensic psychology. Click on any of the articles below to access the content:

• “The Road to Hell Is Paved With Good Intentions”: A Historical, Theoretical, and Legal Analysis of Zero-Tolerance Weapons Policies in American Schools (In: Preventing School Failure: Alternative Education for Children and Youth)

• The Practice of Campus-Based Threat Assessment: An Overview (In: Journal of College Student Psychotherapy)

• The Prevalence of Stalking Among College Students: The Disparity Between Researcher- and Self-identified Victimization (In: Journal of American College Health)

• Releasing Their Stories: A Qualitative Study of Juvenile Justice-Involved Youth with Histories of Mental Health Issues and Violence (In: Journal of Forensic Social Work)

• Effects of “Safe School” Programs and Policies on the Social Climate for Sexual-Minority Youth: A Review of the Literature (In: Journal of LGBT Youth)

• Providing Anchors - Reclaiming Our Troubled Youth: Lessons for Leaders from a Study of 15 Targeted School Shooters (In: The Educational Forum)

•  The Relevance of the School Class as Social Unit for the Prevalence of Bullying and Victimization (In: European Journal of Developmental Psychology)

• Urban African American Youth Exposed to Community Violence: A School-Based Anxiety Preventive Intervention Efficacy Study (In: Journal of Prevention & Intervention in the Community)

• Young Offenders’ Perceptions of School: An Ecological Analysis (In: Psychiatry, Psychology and Law)

• The Impact of Bullying and Coping Strategies on the Psychological Distress of Young Offenders (In: Psychology, Crime & Law)

• ‘Stop It, That’s Enough’: Bystander Intervention and Its Relationship to School Connectedness and Shame Management (In: Vulnerable Children and Youth Studies)

The above is just a sampling. For a complete list of the articles, in the form of an interactive online PDF, click HERE.

Justice Quarterly virtual special issues

Wait, there's more!

In honor of its 30th anniversary, Justice Quarterly has put together a set of four virtual special issues, featuring highly cited scholarship from the archives:

• Thoughts on Seminal Theoretical Criminology 

• The Growth and Development of Correctional Research 

• A Generation of Policing Research

• 30 Years of Research on Court Processing

With all of this free content, hopefully there is something here for everyone.

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.

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.

* * * * *

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)

* * * * *

*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."

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).

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 Klüver-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.

* * * * *

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

Yet another year of (yawn) Halloween security theater

Evidence and common sense no match for hype

BACK BY POPULAR DEMAND, I am reposting my blog piece from 2011, one in an annual series. HAPPY HALLOWEEN! 

For many, Halloween is a blast. Trick-or-treating, giving out candy, dressing up, perhaps even throwing a party.

But for many convicted sex offenders, it is the most dreaded night of the year. Group roundups, dusk-to-dawn curfews with the lights out, mandatory "no candy" signs on their doors and spot checks for compliance are among the various techniques of control ostensibly designed to protect the public.

Contrary to the sex offender hysteria on All Hallows Eve, however, sex offenders are not out snatching and molesting children on Halloween. And they never have been.

Last year, a published study proved what most experts already knew: There is no Halloween spike in sex crimes against children.

"The wide net cast by Halloween laws places some degree of burden on law enforcement officers whose time would otherwise be allocated to addressing more probably dangerous events," noted Jill Levenson of Lynn University in Florida, one of the study's authors. Her research, published in the journal Sexual Abuse, examined crime trends over a 9-year period.

The researchers used data from the National Incident-Base Reporting System to examine crime trends in 30 U.S. states over a 9-year period. They found no increased rate of sexual abuse during the Halloween season. Also, the number of reported incidences did not rise or fall after police implemented current procedures.

Unfortunately, empirical evidence seems incapable of bringing common sense to bear. Probation officers and others continue to implement ridiculous roundups and other once-a-year restrictions on sex offenders, instead of focusing on the real threat to children, which I'll get to in a moment.

Around the nation this Halloween, parole and probation officers will continue to order convicted sex offenders not to answer their doors, decorate their porches, or wear costumes on Halloween. Sex offenders are being ordered to post "NO CANDY HERE" signs on their doors. Others must attend special Halloween "counseling sessions" or "movie nights" where they will be monitored (and, incidentally, protected from false accusations). The restrictions are so widespread and so varied that I no longer have the time or energy to catalog them as I have done on my professional blog in past years. (If you are interested, just do a Google news search for "Halloween sex offender roundup.")

This despite at least one federal court ruling that the restrictions were overly broad, and ridicule from late-night TV pundits of some of the sillier Halloween restrictions.

The farcical crackdowns are a prime example of what Scott Henson at Grits for Breakfast calls "security theater," that is, "hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives."

Why Halloween, we might ask? After all, most sex offenders target people they know, not children off the street. And the crackdowns on registered sex offenders miss the mark anyway, because the overwhelming majority of new sex offenses are committed by men who have never been caught for a past sex offense. Furthermore, registered sex offenders feel so branded and ostracized that most are ducking and hiding today.

But the scare feeds into a deep-rooted cultural fear of the bogeyman stranger. This fear is memorialized in the timeworn Halloween legend of tainted candy that has endured despite myriad attempts at correction. As Benjamin Radford of the Skeptical Enquirer pointed out about the persistence of that stranger-danger myth:

"Despite e-mail warnings, scary stories, and Ann Landers columns to the contrary, there have been only two confirmed cases of children being killed by poisoned Halloween candy, and in both cases the children were killed not in a random act by strangers but intentional murder by one of their parents."

The sad part of both myths is that children are taught a message of fear: Strangers, or even their own neighbors, might try to poison or molest them.

Oh, yes. What is the real danger facing children this Halloween?

It's one your mother always warned you about: Getting hit by a speeding car while crossing a dark street. Car accidents kill about 8,000 children every year in the United States. And children are more than twice as likely to be killed by a car while walking on Halloween night than at any other time of the year.

So this Halloween, show compassion toward a publicly identified sex offender. But please, children, don't get too friendly with cars.

* * * * *

Recommended reading:

Sex offenders: Halloween's boogeyman: Registered abusers are being rounded up tonight to protect trick-or-treaters. How real is the threat, though? by Tracy Clark-Flory, Salon (this piece quotes yours truly)

Stranger danger and the decline of Halloween, Wall Street Journal opinion piece by Lenore Skenazy (author of Free Range Kids)

My prior Halloween posts include:

2007: Beware the Halloween bogeyman!

2008: Pendulum swing on Halloween hype? (Oops! That one was just wishful thinking.)

2009: Halloween "security theater" endures

2010: Psychology Today blog post

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.

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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)

Documentary explores town's polarization over transgender murder

Forensic psychologist key element in gay panic defense

For 20 minutes, Brandon McInerney sat patiently behind Larry King in their junior high school computer classroom. Then, the budding white supremacist pulled out a handgun and shot his transgender classmate twice in the back of the head. Larry died two days later, on Valentine's Day.

The 2008 murder polarized the community of Oxnard, California. The chasm widened during the highly publicized trial three years later, when a pair of private defense attorneys managed to turn the homicide into a reverse civil rights case for beleaguered heterosexuals and white people. With the help of a forensic psychologist, they were able to convince seven out of 12 jurors that Larry King had provoked his own death through his gender transgression. After the mistrial, several jurors became outspoken advocates for Brandon, wearing "Save Brandon" bracelets and raising money for his retrial.

Director Marta Cunningham

"He [Brandon] was solving a problem," explained juror Diane Michaels, an OR nurse. “Where are the civil rights of the one being taunted by another person who’s cross-dressing? He had no one he could turn to because the school was so pro-Larry King’s civil rights, but where was Brandon’s civil rights?"

"It was the high heels, the makeup, the behavior," agreed Karen McElhaney, a fellow juror and a surgical nurse, as the jurors bonded over wine and hors d'oeuvres at one of their homes.

Through such candid interviews with family members, teachers, students (including two eyewitnesses), attorneys and jurors, first-time film director Marta Cunningham explores the conflicting ideologies regarding both gender diversity and social tolerance that Larry King’s murder graphically exposed. Cunningham spent four years and collected 350 hours of footage for Valentine Road (the name of the street on which Larry is buried), a Sundance award-winner debuting on HBO. She hopes that schools will use the film as an educational tool to promote tolerance. 

Forensic psychologist blames the victim

This blog's readers will be especially interested in the role of the forensic psychologist, who helped sell the victim-blaming theme at trial. The testimony of Donald Hoagland gave the jurors an "expert" imprimatur on which to hang their hat.

 ABC News trial coverage featuring voice of 

forensic psychologist Donald Hoagland as he testifies

"What Larry was doing was an extreme form of bullying, an extreme form of sexual harassment," Donald Hoagland told the filmmaker. "Guys don’t hit on guys. Brandon was thinking he needed to get rid of Larry. He needed to save everyone from this scourge that had come upon this school."

At the trial, Hoagland testified that the cross-dressing victim's flirtation threw 14-year-old Brandon into a fit of homicidal rage. He testified that King's declaration that he was changing his name to Leticia triggered a dissociative state in which Brandon temporarily lost track of reality, according to the Ventura County Star.

The fatal flaw with that gay panic theory of the crime is that McInerney made advance plans to kill King. He announced his plan to several people the day beforehand, according to testimony during the eight-week trial, and also acquired and loaded the gun and brought it with him to school. He shot King twice in the back of the head during a first-period class.

Jurors who voted against a murder conviction said that Larry King's request to be called by a girl's name gave Brandon a "green light" to execute him. One juror even wrote to the judge after the trial to protest the "witch hunt" against the killer, citing the victim’s "long history of deviant behavior."

"They made a murder victim the cause of his own murder," marvels Detective Dan Swanson, a hate crime expert who testified at the trial.

Prosecutor Maeve Fox, who ultimately agreed to a plea deal of 21 years for Brandon, said the case exposed the deep layer of intolerance in society, an intolerance that is even carried into the jury box.

Unfortunately, the documentary gives short shrift to another central factor in community support for Brandon. A decision by the prosecutor's office to try the 14-year-old suspect as an adult led to widespread public opposition. Brandon faced 51 years to life in prison if convicted in adult court. A coalition of dozens of gay and lesbian groups even joined the chorus of pleas to try the boy as a juvenile.

Cunningham's direction is understated. Rather than hitting the viewer over the head with a message or point of view, she allows the characters to speak for themselves, interspersing their dialogue with artful sketches, news footage and school surveillance video. The resulting nuanced tale forces audience members to think for themselves about the moral implications of the tragedy.

Ultimately, Valentine Road is a sad and haunting story about two lost boys struggling for identity in a violent world. For the two boys were alike in many ways, both of them abused, neglected and lacking competent adult mentorship as they navigated the perilous journey to adulthood. Larry had been bullied since the third grade for his effeminacy; Brandon was dependent on a bullying father who physically abused him, while his methamphetamine-abusing mother was homeless. 

Yet for all its pathos the film also shines a ray of hope. Even as the defense team vigorously promoted a victim-blaming narrative, youths from the local community came together to honor Larry King and to use his death to promote a message of tolerance. One can only hope that the film will be shown far and wide, and will contribute to that worthy endeavor.

VALENTINE ROAD WILL AIR OCTOBER 24 ON HBO. IT IS ALSO AVAILABLE ON DEMAND. CLICK HERE FOR THE FULL SCHEDULE.

RELATED STORY: "The Hidden War Against Gay Teens," Alex Morris, Rolling Stone, Oct. 10, 2013

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My prior coverage of the case: 

• What caused middle school tragedy? 14-year-old Brandon McInerney to be arraigned Thursday (June 10, 2008) 
• More on the McInerney antigay murder case: Defense may use emerging science of adolescent brain development (June 11, 2008)  
• Gay panic defense: Slain boy accused of provocation (Aug. 10, 2011) 
• Jury deadlocks in gay panic trial (Sept. 2, 2011)  
• Gay panic defendant gets 21 years (Nov. 23, 2011) 

Hat tip: John Lewis