SIST vs. Confinement: What’s an evaluator to do?

1. SIST vs. Confinement: What’s an evaluator to do? Erik N. Schlosser, Ph.D. NYSATSA Annual Conference May 5th, 2010

2. Learning Objectives • Identify the instruments most used by experts in Article 10 evaluations • Identify two factors used most by judges to inform decisions re: confinement • Become familiar with outcome totals of Article 10 cases in terms of SIST vs. Confinement

3. SOMTA Introduction: “An act to amend the mental hygiene law, the executive law, the correction law, the criminal procedure law, the family court act, the judiciary law, the penal law and the county law, in relation to the treatment, supervision, and civil commitment of sex offenders requiring continuing management and the criminal punishment of sex offenders”

4. The legislature finds as follows: (a) That recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public.

5. (b) That some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses. These offenders may require long-term specialized treatment modalities to address their risk to reoffend. They should receive such treatment while they are incarcerated as a result of the criminal process, and should continue to receive treatment when that incarceration comes to an end. In extreme cases, confinement of the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public from their recidivistic conduct.

6. (c) That for other sex offenders, it can be effective and appropriate to provide treatment in a regimen of strict and intensive outpatient supervision. Accordingly, civil commitment should be only one element in a range of responses to the need for treatment of sex offenders. The goal of a comprehensive system should be to protect the public, reduce recidivism, and ensure offenders have access to proper treatment.

7. (d) That some of the goals of civil commitment - protection of society, supervision of offenders, and management of their behavior – areappropriate goals of the criminal process as well. For some recidivisticsex offenders, appropriate criminal sentences, including long-term post-release supervision, may be the most appropriate way to achieve thosegoals.

8. (e) That the system for responding to recidivistic sex offenders withcivil measures must be designed for treatment and protection. It shouldbe based on the most accurate scientific understanding available, including the use of current, validated risk assessment instruments.Ideally, effective risk assessment should begin to occur prior tosentencing in the criminal process, and it should guide the process of civil commitment.

9. Decision in Article 10 case re: SIST vs. Confinement: “Thus, if released on SIST, the concern is whether [Respondent] is capable of realizing and understanding that compliance with all conditions is mandatory, not open to debate, and that any failure to fully and completely comply will not be subject to some attempted explanation or justification. Rather, only full and complete compliance will suffice. In other words, does he believe that he must work to avoid a repeat of his past conduct? Or stated yet another way, is he really in agreement that he has a real problem ("mental abnormality") that he must work hard to control?”

10. Karen Franklin, Ph.D. Sunday, October 4, 2009 SVP industry sneak peek: Problems in Actuaryland “You psychologists and attorneys working in the trenches of Sexually Violent Predator (SVP) litigation will be interested in the controversy over the Static-99 and its progeny, the Static-2002, that erupted at the annual conference of the Association for the Treatment of Sexual Abusers (ATSA) in Dallas.” http://forensicpsychologist.blogspot.com/search/label/civil%20commitment retrieved on 04/30/10

11. Three Questions: • What are evaluators using in Article 10 evaluations? • What are judges thinking about Article 10 cases including criteria for SIST/Confinement? • What’s the outcome of Article 10 cases in court?

12. Article 10 Expert Survey • Sent out email to ATSA and PSYLAW list services on 03/26/10 with link to surveymonkey website (41 Q’s inc. demographic info) • Sent to 9 NY state psychologists/psychiatrists known to perform Article 10 evaluations on 03/29/10 • 16 responses (compared to 41 responses to Jackson & Hess survey from evaluators in 12 states) • Jackson, R.L. & Hess, D. H. (2007) Evaluation for civil commitment of sex offenders: A survey of experts. Sex Abuse: A Journal of Research and Treatment, 19, 425-448.

13. Article 10 Judicial Survey • Sent out on 04/13/10 using email with link to survey monkey website (14 Q’s inc. demographic info) • Email addresses of judges outside of NY city potentially involved in Article 10 cases (98) • Sent to judges in Judicial Districts 1-9 • 3 stated no history of hearing Art 10 cases, 3 sent to non-judges leaving 92 potential responders • 5 responses (5.4%)

14. What’s the Outcome of Art 10 Cases?

15. Art 10 Case Outcomes3/10 DCJS Monthly Report

17. Art 10 Trials Completed: 111 • 96 in favor of state • 29 pending decision • 55 sentenced to confinement • 12 sentenced to SIST • 15 won by respondent (No MA)

18. Article 10 Settlements • Confinement: 67 • SIST: 64

19. SIST • 45 living in community on SIST as of 03/31/10 • # ever ordered on SIST: 82 • SIST Violation rate: 55%

20. ISSUES • Why still use Static 99 non-revised version? • Is there a better way of assessing volitional impairment besides respondent self-report?

21. Expert Survey additional responses re: assessment of volitional impairment • file reviews and historical information • Diagnostic interview, history and documents • Trying to understand the dynamics and precipitants of the offenses, assessing overall levels of impulsivity, pattern of the offenses, selection of victims, etc. • file information that suggests inability to control sexually deviant behavior and/or his self report • behavioral patterns established through file data and self-report • file review + interview (historical and present) • it is only the functional impairment issue that is most important to me. diagnosis is not destiny but how does the diagnosis (ses) impact the functioning counts to me. see intro section of dsm-iv-tr for use in forensic settings. • Barratt Impulsiveness Scale

22. State of NH v. Thomas Hurley April 23, 2010 Daubert hearing (pages 35-36 of decision) http://static99.org/pdfdocs/hurley-orderondaubert_nh.pdf

25. For Your Consideration “I realize that I'm generalizing here, but as is often the case when I generalize, I don't care.” Dave Barry

26. Mention limitations of findings or alternative points of view “The use of Paraphilia NOS as a diagnosis in civil commitment proceedings has been criticized by many (Zander 2005) and supported by some (DeClue 2006) with the editor of the DSM-IV task force suggesting caution and guidelines (First & Hanlon 2008). First & Hanlon stress that the diagnosis should not be based on behavior alone but on the basis of fantasies and thoughts along with the offending behavior, and that other conditions that might account for the sexually offending behavior be excluded.”

27. List sources of info used in report APPENDIX 2 • Articles/Publications Referenced in Evaluation • DeClue, Gregory. (2006). Paraphilia NOS (nonconsenting) and antisocial personality disorder. • The Journal of Psychiatry and Law, 34, 495-514. • First, Michael B., & Hanlon, Robert L. (2008) Use of DSM Paraphilia Diagnoses in Sexually • Violent Predator Commitment Cases. Journal of the American Academy of Psychiatry • and the Law, 36, 443-54. • Mercado, Cynthia Calkins., Schoop, Robert F., & Bornstein, Brian H. (2005). Evaluating sex • offenders under sexually violent predator laws: How might mental health professionals • conceptualize the notion of volitional impairment? Aggression and Violent Behavior, 10:3, pp. • 289-309. • Zander, T. (2005) Civil commitment without psychosis: The law’s reliance on the weakest links in • psychodiagnosis. Journal of Sexual Offender Civil Commitment, 1, 17-82.

28. If abstaining from actuarials… “The authors of the most widely used actuarial instrument, the STATIC-99 (which includes the STATIC-99R, STATIC-2002, and STATIC-2002R), have produced changes in the interpretive norms at least twice in the past two years, and continue to modify test items and norms due in large part to the reduction in sex offender recidivism rates in the past several years, the acknowledgment of the role of aging in the reduction of risk for sexual reoffending, and the attempt to account for wide variation in recidivism rates among research samples. While some argue that the use of the STATIC-99 family of tests is appropriate in the midst of these changes, it is this evaluator’s opinion that their use at this time is problematic at best, and runs the risk of introducing information that has a significant probability of requiring adjustment in the near future. While it is the nature of psychological testing to undergo periodic updates, the nature and scope of the recent changes in the norms of the STATIC-99 family of tests suggests that the authors are in the midst of an update requiring additional work, and since the old norms no longer apply, it is prudent to withhold use of these instruments until the author’s current research is completed, published, and replicated.”

29. Contact Info: Erik N. Schlosser, Ph. D.Colonial Building2 Fountain StreetSuite #110Clinton, NY 13323-1725phone: (315) 853-8080fax: (315) 853-8011enschlosser@verizon.net