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).