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.

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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. 

Putting the Cart Before the Horse: The Forensic Application of the SRA-FV

As the developers of actuarial instruments such as the Static-99R acknowledge that their original norms inflated the risk of re-offense for sex offenders, a brand-new method is cropping up to preserve those inflated risk estimates in sexually violent predator civil commitment trials. The method introduces a new instrument, the “SRA-FV,” in order to bootstrap special “high-risk” norms on the Static-99R. Curious about the scientific support for this novel approach, I asked forensic psychologist and statistics expert Brian Abbott to weigh in.

Guest post by Brian Abbott, PhD*

NEWS FLASH: Results from the first peer-reviewed study about the Structured Risk Assessment: Forensic Version (“SRA-FV”), published in Sexual Abuse: Journal of Research and Treatment (“SAJRT”), demonstrate the instrument is not all that it’s cracked up to be.

Promotional material for an SRA-FV training

For the past three years, the SRA-FV developer has promoted the instrument for clinical and forensic use despite the absence of peer-reviewed, published research supporting it validity, reliability, and generalizability. Accordingly, some clinicians who have attended SRA-FV trainings around the country routinely apply the SRA-FV in sexually violent predator risk assessments and testify about its results in court as if the instrument has been proven to measure what it intends to assess, has known error rates, retains validity when applied to other groups of sexual offenders, and produces trustworthy results.

Illustrating this rush to acceptance most starkly, within just three months of its informal release (February 2011) and with an absence of any peer-reviewed research, the state of California incredibly decided to adopt the SRA-FV as its statewide mandated dynamic risk measure for assessing sexual offenders in the criminal justice system. This decision was rescinded in September 2013, with the SRA-FV replaced with a similar instrument, the Stable-2007.

The SRA-FV consists of 10 items that purportedly measure “long-term vulnerabilities” associated with sexual recidivism risk. The items are distributed among three risk domains and are assessed using either standardized rating criteria devised by the developer or by scoring certain items on the Psychopathy Checklist-Revised (PCL-R). Scores on the SRA-FV range from zero to six. Some examples of the items from the instrument include: sexual interest in children, lack of emotionally intimate relationships with adults, callousness, and internal grievance thinking. Patients from the Massachusetts Treatment Center in Bridgewater, Massachusetts who were evaluated as sexually dangerous persons between 1959 and 1984 served as members of the SRA-FV construction group (unknown number) and validation sample (N = 418). It was released for use by Dr. David Thornton, a co-developer of the Static-99R, Static-2002R, and SRA-FV and research director at the SVP treatment program in Wisconsin, in December 2010 during training held in Atascadero, California. Since then, Dr. Thornton has held similar trainings around the nation where he asserts that the SRA-FV is valid for predicting sexual recidivism risk, achieves incremental validity over the Static-99R, and can be used to choose among Static-99R reference groups.

A primary focus of the trainings is a novel system in which the total score on the SRA-FV is used to select one Static-99R “reference group” among three available options. The developer describes the statistical modeling underlying this procedure, which he claims increases predictive validity and power over using the Static-99R alone. However, reliability data is not offered to support this claim. In the December 2010 training, several colleagues and I asked for the inter-rater agreement rate but Dr. Thornton refused to provide it.

I was astounded but not surprised when some government evaluators in California started to apply the SRA-FV in sexually violent predator risk assessments within 30 days after the December 2010 training. This trend blossomed in other jurisdictions with sexually violent predator civil confinement laws. Typically, government evaluators applied the SRA-FV to select Static-99R reference groups, invariably choosing to compare offenders with the “High Risk High Needs” sample with the highest re-offense rates. A minority of clinicians stated in reports and court testimony that the SRA-FV increased predictive accuracy over the Static-99R alone but they were unable to quantify this effect. The same clinicians have argued that the pending publication of the Thornton and Knight study was sufficient to justify its use in civil confinement risk assessments for sexually violent predators. They appeared to imply that the mere fact that a construction and validation study had been accepted for publication was an imprimatur that the instrument was reliable and valid for its intended purposes. Now that the research has been peer-reviewed and published, the results reflect that these government evaluators apparently put the proverbial cart before the horse.

David Thornton and Raymond Knight penned an article that documents the construction and validation of the SRA-FV. The publication is a step in the right direction, but by no means do the results justify widespread application of the SRA-FV in sexual offender risk assessment in general or sexually violent predator proceedings in particular. Rather, the results of the study only apply to the group upon which the research was conducted and do not generalize to other groups of sexual offenders. Before discussing the limitations of the research, I would like to point out some encouraging results.

The SRA-FV did, as its developer claimed, account for more sources of sexual recidivism risk than the Static-99R alone. However, it remains unknown which of the SRA-FV’s ten items contribute to risk prediction. The study also found that the combination of the Static-99R and SRA-FV increased predictive power. This improved predictive accuracy, however, must be replicated to determine whether the combination of the two instruments will perform similarly in other groups of sexual offenders. This is especially important when considering that the SRA-FV was constructed and validated on individuals from the Bridgewater sample from Massachusetts who are not representative of contemporary groups of sexual offenders. Thornton and Knight concede this point when discussing how the management of sexual offenders through all levels of the criminal justice system in Massachusetts between 1959 and 1984 was remarkably lenient compared to contemporary times. Such historical artifacts likely compromise any reliable generalization from patients at Bridgewater to present-day sexual offenders.

Training materials presented four months before
State of California rescinded use of the SRA-FV

Probably the most crucial finding from the study is the SRA-FV’s poor inter-rater reliability. The authors categorize the 64 percent rate of agreement as “fair.” It is well known that inter-rater agreement in research studies is typically higher than in real-world applications. This has been addressed previously in this blog in regard to the PCL-R. A field reliability study of the SRA-FV among 19 government psychologists rating 69 sexually violent predators in Wisconsin (Sachsenmaier, Thornton, & Olson, 2011) found an inter-rater agreement rate of only 55 percent for the SRA-FV total score, which is considered as poor reliability. These data illustrate that 36 percent to 45 percent of an SRA-FV score constitutes error, raising serious concerns over the trustworthiness of the instrument. To their credit, Thornton and Knight acknowledge this as an issue and note that steps should be taken to increase reliable scoring. Nonetheless, the current inter-rater reliability falls far short of the 80 percent floor recommended for forensic practice (Heilbrun, 1992). Unless steps are taken to dramatically improve reliability, the claims that the SRA-FV increases predictive accuracy either alone or in combination with the Static-99R, and that it should be used to select Static-99R reference groups, are moot.

It is also important to note that, although Thornton and Knight confuse the terms validation and cross validation in their article, this study represents a validation methodology. Cross-validation is a process by which the statistical properties found in a validation sample (such as reliability, validity, and item correlations) are tested in a separate group to see whether they hold up. In contrast, Thornton and Knight first considered the available research data from a small number of individuals from the Bridgewater group to determine what items would be included in the SRA-FV. This group is referred to as the construction sample. The statistical properties of the newly conceived measure were studied on 418 Bridgewater patients who constitute the validation sample. The psychometric properties of the validation group have not been tested on other contemporary sexual offender groups. Absent such cross-validation studies, we simply have no confidence that the SRA-FV works at it has been designed for groups other than the sample upon which it was validated. To their credit, Thornton and Knight acknowledge this limitation and warn readers not to generalize the validation research to contemporary groups of sexual offenders.

The data on incremental predictive validity, while interesting, have little practical value at this point for two reasons. One, it is unknown whether the results will replicate in contemporary groups of sexual offenders. Two, no data are provided to quantify the increased predictive power. The study does not provide an experience table of probability estimates at each score on the Static-99R after taking into account the effect of the SRA-FV scores. It seems disingenuous, if not misleading, to inform the trier of fact that the combined measures increase predictive power but to fail to quantify the result and the associated error rate.

In my practice, I have seen the SRA-FV used most often to select among three Static-99R reference groups. Invariably, government evaluators in sexually violent predator risk assessments assign SRA-FV total scores consistent with the selection of the Static-99R High Risk High Needs reference group. Only the risk estimates associated with the highest Static-99R scores in this reference group are sufficient to support an opinion that an individual meets the statutory level of sexual dangerousness necessary to justify civil confinement. Government evaluators who have used the SRA-FV for this purpose cannot cite research demonstrating that the procedure works as intended or that it produces a reliable match to the group representing the individual being assessed. Unfortunately, Thornton and Knight are silent on this application of the SRA-FV.

In a recently published article, I tested the use of the SRA-FV for selecting Static-99R reference groups. In brief, Dr. Thornton used statistical modeling based solely on data from the Bridgewater sample to devise this model. The reference group selection method was not based on the actual scores of members from each of the three reference groups. Rather, it was hypothetical, presuming that members of a Static-99R reference group will exhibit a certain range of SRA-FV score that do not overlap with any of the other two reference groups. To the contrary, I found that the hypothetical SRA-FV reference group system did not work as designed, as the SRA-FV scores between reference groups overlapped by wide margins. In other words, the SRA-FV total score would likely be consistent with selecting two if not all three Static-99R reference groups. In light of these findings, it is incumbent upon the developer to provide research using actual subjects to prove that the SRA-FV total score is a valid method by which to select a single Static-99R reference group and that the procedure can be applied reliably. At this point, credible support does not exist for using the SRA-FV to select Static-99R reference groups.

The design, development, validation, and replication of psychological instruments is guided by the Standard for Educational and Psychological Testing (“SEPT” -- American Educational Research Association et al., 1999). When comparing the Thornton and Knight study to the framework provided by SEPT, it is apparent the SRA-FV is in the infancy stage of development. At best, the SRA-FV is a work in progress that needs substantially more research to improve its psychometric properties. Aside from its low reliability and inability to generalize the validation research to other groups of sexual offenders, other important statistical properties await examination, including but not limited to:

1. standard error of measurement
2. factor analysis of whether items within each of the three risk domains significantly load in their respective domains
3. the extent of the correlation between each SRA-FV item and sexual recidivism
4. which SRA-FV items add incremental validity beyond the Static-99R or may be redundant with it; and proving each item has construct validity. 

It is reasonable to conclude that at its current stage of development the use of the SRA-FV in forensic proceedings is premature and scientifically indefensible. In closing , in their eagerness to improve the accuracy of their risk assessments, clinicians relied upon Dr. Thornton’s claim in the absence of peer-reviewed research demonstrating that the SRA-FV achieved generally accepted levels of reliability and validity. The history of forensic evaluators deploying the SRA-FV before the publication of the construction and validation study raises significant ethical and legal questions:

• Should clinicians be accountable to vet the research presented in trainings by an instrument’s developer before applying a tool in forensic practice? 

• What responsibility do clinicians have to rectify testimony where they presented the SRA-FV as if the results were reliable and valid?

•  How many individuals have been civilly committed as sexually violent predators based on testimony that the findings from the SRA-FV were consistent with individuals meeting the legal threshold for sexual dangerousness, when the published data does not support this conclusion?

Answers to these questions and others go beyond the scope of this blog. However, in a recent appellate decision, a Washington Appeals Court questions the admissibility of the SRA-FV in the civil confinement trial of Steven Ritter. The appellate court determined that the application of the SRA-FV was critical to the government evaluator’s opinion that Mr. Ritter met the statutory threshold for sexual dangerousness. Since the SRA-FV is considered a novel scientific procedure, the appeals court reasoned that the trial court erred by not holding a defense-requested evidentiary hearing to decide whether the SRA-FV was admissible evidence for the jury to hear. The appeals court remanded the issue to the trial court to hold a Kelly-Frye hearing on the SRA-FV. Stay tuned!

References

Abbott, B.R. (2013). The Utility of Assessing “External Risk Factors” When Selecting Static-99R Reference Groups. Open Access Journal of Forensic Psychology, 5, 89-118.

American Educational Research Association, American Psychological Association and National Council on Measurement in Education. (1999). Standards for Educational and Psychological Testing. Washington, DC: American Educational Research Association.

Heilbrun, K. (1992). The role of psychological testing in forensic assessment. Law and Human Behavior, 16, 257-272. doi: 10.1007/BF01044769.

In Re the Detention of Steven Ritter. (2013, November). In the Appeals Court of the State of Washington, Division III. 

Sachsenmaier, S., Thornton, D., & Olson, G. (2011, November). Structured risk assessment forensic version (SRA-FV): Score distribution, inter-rater reliability, and margin of error in an SVP population. Presentation at the 30th Annual Research and Treatment Conference of the Association for the Treatment of Sexual Abusers, Toronto, Canada.

Thornton, D. & Knight, R.A. (2013). Construction and validation of the SRA-FV Need Assessment. Sexual Abuse: A Journal of Research and Treatment. Published online December 30, 2013. doi: 10.1177/ 1079063213511120. 

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*Brian R. Abbott is licensed psychologist in California and Washington who has evaluated and treated sexual offenders for more than 35 years. Among his areas of forensic expertise, Dr. Abbott has worked with sexually violent predators in various jurisdictions within the United States, where he performs psychological examinations, trains professionals, consults on psychological and legal issues, offers expert testimony, and publishes papers and peer-reviewed articles.

(c) Copyright 2013 - All rights reserved

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."

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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)

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.

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.

Miracle of the day: 80-year-old man recaptures long-lost youth

(Or: How committing a new sex crime can paradoxically LOWER risk on the Static-99R)

"How old is the offender?"

 Age is an essential variable in many forensic contexts. Older people are at lower risk for criminal recidivism. Antisocial behaviors, and even psychopathic character traits, diminish as criminals reach their 30s and 40s. Men who have committed sex offenses become at considerably lower risk for further such misconduct, due to a combination of decreased testosterone levels and the changes in thinking, health, and lifestyle that happen naturally with age.

Calculating a person's age would seem very straightforward, and certainly not something requiring a PhD: Just look up his date of birth, subtract that from today's date, and -- voila! Numerous published tests provide fill-in-the-blank boxes to make this calculation easy enough for a fourth-grader.

One forensic instrument, however, bucks this common-sense practice. The developers of the Static-99R, the most widely used tool for estimating the risk of future sexual recidivism, have given contradictory instructions on how to score its very first item: Offender age.

In a new paper, forensic evaluator Dean Cauley and PsyD graduate student Michelle Brownfield report that divergent field practices in the scoring of this item are producing vastly different risk estimates in legal cases -- estimates that in some cases defy all logic and common sense.

Take Fred. Fred is 80 years old, and facing possible civil commitment for the rapes of two women when he was 18 years old. He served 12 years in prison for those rapes. Released from prison at age 30, he committed several strings of bank robberies that landed him back in prison on six separate occasions.

At age 80 (and especially with his only known sex offenses committed at age 18), his risk for committing a new sex offense if released from custody is extremely low -- something on the order of 3 percent. But evaluators now have the option of using any of three separate approaches with Fred, with each approach producing quite distinct opinions and recommendations.

Procedure 1: Age is age (the old-fashioned method)

The first, and simplest, approach, is to list Fred's actual chronological age on Item 1 of the Static-99R. Using this approach, Fred gets a three-point reduction in risk for a total of one point, making his actuarial risk of committing a new sex offense around 3.8 percent.

Evaluators adopting this approach argue that advancing age mitigates risk, independent of any technicalities about when an offender was released from various periods of incarceration. These evaluators point to the Static-99R's coding manuals and workbook, along with recent publications, online seminars, and sworn testimony by members of the Static-99 Advisory Committee. Additionally, they point to a wealth of age-related literature from the fields of criminology and psychology to support their scoring.

Procedure 2: Reject the Static-99R as inappropriate

A second approach is not to use the Static-99R at all, because Fred's release from prison for his "index offenses" (the rapes) was far more than two years ago, making Fred unlike the members of the samples from which the Static-99R's risk levels were calculated. Evaluators adopting this approach point to publications by members of the Static-99 Advisory Committee, generally accepted testing standards and actuarial science test standards to support their choice to not use the test at all.

Procedure 3: The amazing elixir of youth

But there is a third approach. One that magically transports Fred back to his youth, back to the days when a career in bank robbing seemed so promising. (Bank robbery is no longer alluring; it is quietly fading away like the career of a blacksmith.) The last five decades of Fred's life fade away, and he becomes 30 again -- his age when he was last released from custody on a sex offense conviction.

Now Fred not only loses his three-point age reduction, but he gains a point for being between the ages of 18 and 34.9. A four point difference! The argument for this approach is that it most closely conforms to the scoring methods used on the underlying samples of sex offenders, who were scored based on their date of release from their index sexual offense. These evaluators can correctly point to information imparted at training seminars, advice given by some members of the Static-99R Advisory Committee, and sworn testimony by developers of the test itself. They can also point to an undated FAQ #27 on the Static-99 website to support their opinion.

Fred could rape someone to reduce his risk!

Back-dating age to the time of the last release from a sex offense-related incarceration allows for a very bizarre twist:

Let's say that after Fred was released from prison on his most recent robbery stint, back when he was a vigorous young man of 61, he committed another rape. Being 60 or over, Fred would now get the four-point reduction in risk to which his age entitles him. This would cut his risk by two-thirds -- from 11.4 percent (at a score of 5) all the way down to a mere 3.8 percent (at a score of 1)!

While such a scenario might seem far-fetched, it is not at all unusual for an offender to be released from prison at, say, age 58 or 59, but to not undergo a civil commitment trial for a couple of years, until age 60 or 61. Such an offender's score will vary by two points (out of a total of 12 maximum points) depending upon how the age item is scored. And, as Cauley and Brownfield describe, the members of the Static-99R development team have, at different times, given contradictory advice on how to score the age item.

By completely negating the very substantial body of research on age and crime, this technocratic method creates other very concerning -- and paradoxical -- implications, Cauley and Brownfield argue: As the risk estimate for a more persistent offender is lowered, the offender who does not reoffend is stuck with a risk score that is forever jacked up.

Back-dating an offender's age is also at odds with the research that generated the test itself, they say, because the offenders in the samples used to construct the Static-99R had finished serving their sentences on their index sexual offenses within two years of being studied. In other words, none of the offenders had been released many years earlier, and there was none of this curious time-travel business in regard to their ages. As the instrument's developers noted in a publication just last year, the Static-99 "was developed on, and intended for, sexual offenders with a current or recent sexual offense."

So, if you are evaluating an old geezer in the local pen and he tells you that he is only 30 years old, don't assume that he has a delusional belief that he has discovered the elixir of youth -- or that he's pulling your leg. He just might be reciting the age that he was just assigned by a technocratic Static-99R evaluator.

The paper, "Static-99R: Item #1 -- What is the Offender's Age? A lack of consensus leads to a defective actuarial," is available for download both HERE and HERE.

California high court upholds parolee confidentiality right

Two years ago, I reported on a California appellate opinion upholding the sacredness of patient-therapist confidentiality even for convicted felons who are mandated to treatment as a condition of parole. Today, the California Supreme Court upheld the gist of the ruling -- but with a proviso. Using strained logic, the court held that the breach of confidentiality was not so prejudicial as to merit overturning Ramiro Gonzales's civil commitment, as the Sixth District Court of Appeal had done.

Gonzales is a developmentally disabled man whose therapist turned over prejudicial therapy records to a prosecutor seeking to civilly detain him as a sexually violent predator (SVP). Forensic psychology experts Brian Abbott and Tim Derning testified for the defense; called by the prosecution were psychologists Thomas MacSpeiden and Jack Vognsen.

As I wrote two years ago, the ruling is good news for psychology ethics and should serve as a reminder that we are obligated to actively resist subpoenas requesting confidential records of therapy.

Today's California Supreme Court ruling is HERE. My prior post, with much more detail on the case, is HERE. The Sixth District Court of Appeal opinion from 2011, available HERE, provides a nice overview of both federal and California case law on confidentiality in forensic cases.

 

Hat tip: Adam Alban

Related blog posts:  

• Do sex offenders have right to confidential therapy? (Feb. 22, 2008)

• Confession to prison psychiatrist not confidential (Dec. 11, 2007)

• Treating therapist as police interrogator (Nov. 30, 2008)

• Abandon ethics, all ye who enter here: Special ethics exemption sought for SVP work (Oct. 6, 2010)