Predicting Dangerousness

1. Predicting Dangerousness Case Study: Sex Offenders Colman Lynch April 9, 2007

2. Sex Offenders • Often seen as a distinct class of criminal • Stephen J. Morse, “Uncontrollable Urges and Irrational People” – “Sexual predators fall into the gap between criminal and civil confinement” in that they are rational and sane, and know “the applicable moral and legal rules,” but cannot entirely control their actions. This has been used to justify indefinite involuntary civil commitment as a preventive measure.

3. Civil Commitment • In 1990, Washington enacted its Sexually Violent Predator statute – the first to allow for post-incarceration civil commitment • Inspired by events in the late 1980s where a mentally retarded man with a 25-year history of sex crimes raped and stabbed a young boy • Previously, it was an “either-or” situation: sex offenders would go to jail or to a civil treatment program • The Washington law required confinement and treatment for those convicted of “violent sexual crimes,” following the completion of their criminal punishment, indefinitely. • It only applied to those considered to have mental conditions that predisposed them to violent sexual crimes, even after time spent in jail.

4. Civil Commitment Laws Spread • In the early 1990s, several states followed Washington’s lead • As in Washington, many of them previously had civil commitment statutes requiring a “recent overt act” – so time spent in prison would effectively insulate the offender from being committed

5. General Criticism of Civil Commitment Laws • Preventive detention is not supported by previous American law • A March 2007 series of New York Times articles described failed attempts at treatment, with “uncertified non-experts” testifying in the hearings, and found release from civil commitment programs exceedingly rare • Approximately 2700 men are currently in such programs, which cost four times more per inmate than jail • 250 have been released unconditionally, half of whom were considered not to have completed treatment

6. Problems with Civil Commitment Laws: Inaccurate Predictions • Robert A. Prentky, et al. (2006): Because science is being used to justify deprivation of liberty, we need to be absolutely sure it’s accurate. • Determinations of “mental abnormality” are difficult because there are no “acute psychiatric symptoms tied closely to the predicted harm.” • There are 4 recognized diagnoses that could support the “volitional impairment” standard: impulse control disorders, adult antisocial behavior, mood disorders/ADHD, sexual disorders, and personality disorders. • Many of the individuals subject to such laws have been imprisoned for years; changed conditions make such predictions more hazardous. • For mental and physical reasons, criminal sexual behavior appears to decrease with age. Civil commitment is mainly likely to come up with offenders old enough to have been convicted several times. • The effect that psychological treatment has on such behavior is unclear, and not enough time has passed to determine their success. Two aspects of these programs makes them less likely to succeed: their involuntary nature, and the lack of clarity of their goals (rehabilitation, or incapacitation?). • The individual nature of civil and criminal proceedings makes them inappropriate for actuarial analysis – it isn’t fair to determine the base rate of failure where N=1. There are also homogeneity issues. • Which is more problematic – false positives or false negatives?

7. Problems with Civil Commitment Laws: The Inevitability Hypothesis • Civil commitment seems to rest on the idea that sexual predators are treatable, but if untreated they will inevitably offend again • Prentky et al. (1997) found that estimates of recidivism varied wildly due to inconsistency in the sample, in the definitions of offenses (arrest vs conviction; which crimes are included) and inadequate study lengths. • Prentky found that rapists and child molesters remain at risk to reoffend for at least 15-20 years after imprisonment, and sometimes reoffended multiple times. • Sample & Brey (2003) did an ANOVA study to challenge two bases of recent sex offender legislation – inevitability and the high percentage of sex offenders who had committed other crimes. • Some states have included burglary and even possession of burglary tools in their sex offender statutes. • They found that sex offenders do not reoffend at higher rates than other criminals (recommitting the same offense, or committing any offense), and that certain other offenses (i.e., burglary) did not serve as “gateway” offenses to sexual crimes (2% of burglars went on to commit sex crimes within 5 years). • Therefore, the extension of civil commitment and the increase in other penalties will have little or no effect on sexual victimization rates, it may amount to excess punishment, and it will increase costs to the state.

8. Problems with related laws: Homogeneity? In 1996, “Megan’s Law” required all states to make ALL sex offenders register and notify authorities and the community every time they change residence.

9. When Facts and Law Collide Florida Housing Sex Offenders Under Bridge -CNN Headline, Apr 6 2007

10. Constitutional Challenges • Kansas’s civil commitment law reached the Supreme Court in two landmark cases • It was challenged on due process, double jeopardy, and ex post facto grounds

11. Kansas v. Hendricks (1997) • Leroy Hendricks had been convicted multiple times for molesting children, over several decades. He said he “couldn’t control the urge” to do so “any time [he] got stressed out. • Shortly before he was to be released from jail, he was sentenced to civil commitment under Kansas’s Sexually Violent Predators Act when he was found to suffer from pedophilia. • He challenged the confinement, and the Act, on several constitutional grounds.

12. The Kansas Sexually Violent Predator Act • The preamble referred to sex offenders who did not have “a mental disease or defect” appropriate for normal civil confinement, but who had “anti-social personality features… unamenable to existing” treatment modalities. • 60 days before his release, the individual is told of a hearing to determine whether there is a basis to subject him to civil commitment. • Following the hearing, a jury trial determines whether there is a “mental abnormality or personality defect” predisposing the individual to “engage in the predatory acts of sexual violence.” • During confinement, there is an annual review to determine whether it should continue. The individual can also file a release petition, or if they seem to have improved sufficiently, the Secretary of Social and Rehabilitation Services can order their release.

13. Hendricks on Due Process • The Kansas State Supreme Court found that the “mental abnormality” definition was too vague, and did not meet the US Supreme Court’s requirement of a “mental illness” finding to support civil commitment • The US Supreme Court held that the Act did not violate substantive due process; its dual requirement of dangerousness and an inability to control the dangerousness was enough to support civil commitment. • The Court found the Act’s allowance of a jury trial following the initial hearing, and the annual reviews during confinement, to be sufficient procedure: the individual could call witnesses, review the state’s evidence, and be assisted by counsel.

14. Hendricks on Double Jeopardy • The Act was held not to violate double jeopardy – it passes the “multiple punishments” and the “same elements” tests. • The Court found that the act was not enacted with punitive intent, the act did not establish criminal proceedings, it did not require a finding of criminal liability or scienter, and the ensuing commitment was neither punitive nor intended to be a deterrent. • The possible nonexistence of viable treatment does not make the act punitive; incapacitation is a valid goal of civil law.

15. Hendricks on Ex Post Facto Laws • The Supreme Court held that Kansas’s law did not violate the ex post facto clause. • As in the double jeopardy issue, the Court essentially found Kansas’s Act not punitive. It did not create a new crime after Hendricks’s actions, and it did not deprive him of a previously-available defense. Past conduct was used for evidentiary purposes, but it was not the sole criterion. • Breyer dissented, because it provided inadequate treatment, only after Hendricks had served his jail term, and was therefore punitive.

16. Criticism of Hendricks • Stephen J. Morse: The detention allowed in Hendricks brings stigma and a loss of liberty. Because of this, substantive due process requires a strong, clear definition of what justifies such detention. • The Kansas act is based on a “mental abnormality,” which is not a recognized scientific term and excessively vague. Hendricks essentially required a loss of control over the individual’s actions, and that is also not a proper standard – it implies that they are not treatable, and therefore shouldn’t be punished. • Mental abnormality and nonresponsibility are required to justify such civil commitment, and “causation…and predictability are not proxies” for them. A “lack of rational capacity” should be the mental standard – it’s more than “just another cause,” but less than incurable insanity. • Morse argues that the criteria for criminal punishment and the criteria for civil confinement should be mutually exclusive, but a sex offender’s level of rationality is often unclear.

17. More Hendricks Criticism • Paul S. Appelbaum criticized the Hendricks decision for “taking the easy way out” by avoiding an important policy question: how the criminal justice system (and not psychiatrists) should deal with repeat sex offenders. • As an amicus brief by the American Psychiatric Association noted, pedophilia and other conditions included in the Kansas statute are very different from the types of mental illness traditionally used to support involuntary civil commitment. • Appelbaum notes several implications of Hendricks: • It expands preventive civil commitment way beyond its traditional short-term, pre-trial role. • Many or most (non-sex) criminals suffer from some volitional incapacity; Hendricks’s reasoning would include them. • Given historical patterns, it is unlikely that treatment centers for sex offenders will be well-staffed or well-funded; offenders are unlikely to receive effective treatment.

18. Kansas v. Crane (2002) • Crane pleaded guilty to aggravated sexual battery • At his civil commitment hearing, it was determined that he suffered from antisocial personality disorder and exhibitionism • He was ordered to civil commitment on a finding that the Sexually Violent Predators Act did not require an inability to control his dangerous behavior • The Kansas Supreme Court reversed, reading Hendricks to require a finding of complete inability to control such behavior

19. Crane’s holding • The Court did not require proof of the offender’s inability to control their behavior, but it did require proof of “serious difficulty in controlling behavior.” Given the nature and severity of the disorder, there had to be a greater danger than that of a typical criminal recidivist. • Because of Hendricks’s facts and context, they only considered “volitional” mental abnormalities, not emotional or cognitive abnormalities. There is some overlap between the categories. • As in Kennedy’s dissent in Hendricks, the court here said that civil commitment should not be used as punishment or a deterrent, or to avoid the defects in the criminal justice system. • Scalia dissented, saying that neither Hendricks nor the Act requires “serious difficulty,” only proof of mental abnormality – “emotional or volitional” - and a likelihood of future violent sexual behavior (the Causal Link standard).

20. Crane on the role of science • Psychiatry is an “ever-advancing” science which “informs but does not control” the law. • Because there are conflicting views within the field, states have considerable leeway in defining the required mental abnormality or disorder.

21. Civil Commitment Laws Today: The New York Sex Offender Management and Treatment Act • On March 14, 2007, New York became the 20th state to have a civil commitment law • Before the end of their jail term, the offenders are examined by mental health experts; if they are found to be predisposed to committing sex offenses they receive a jury trial • The experts, Attorney General, and a judge each in turn review medical, clinical, criminal and institutional records, and actuarial risk assessments. • The offender receives counsel, an evidentiary statement, and records of the expert hearing. They can request an evaluation by a psychiatric examiner, testify, call witnesses, and provide other evidence. • If the jury unanimously finds that they need supervision, both sides can present more evidence and the judge has the option of civil commitment or “intensive supervision” following their release. • Intensive supervision may include GPS tracking, polygraphs, prohibition from living in or entering certain areas, and other conditions. • If committed, they have an annual review of their dangerousness and can petition for discharge, possibly including an evidentiary hearing. • The Act includes rape, incest, and prostitution-related offenses; it also creates the crime of “sexually motivated felony,” for crimes attempted or committed for the purpose of sexual gratification. • The Act lengthens their parole periods, creates an Office of Sex Offender Management, and mandates counseling during and after imprisonment