Sex Crimes

Follow-up on Static-99 and Predicting Sex Offender Dangerousness

After my last post on the subject, Steve Erickson added some more thoughts that he added to his post.  Also, Karen Franklin commented briefly on Static-99 and added some insight about an interesting Louisiana case as well:

In a troubling ruling out of Louisiana, an appellate court OK'd expert witness testimony that a man was 81 percent likely to have molested a child based on his psychological test results.

Interpreting the defendant's scores on the Abel Assessment for Sexual Interest, clinical psychologist Maureen Brennan had testified that "there is an 81 percent chance that anyone with that pattern has at some point in their life been sexually inappropriate with a child" and that the defendant would falsely deny that fact.

After hearing that powerful testimony back in 2006, a jury deliberated only one hour before convicting schoolteacher Timothy Brannon of Beauregard Parish of all 12 counts against him....

Both the Abel instrument and the Rorschach are highly controversial in court. Abel has responded to criticisms by clarifying that the instrument is not intended to assist triers of fact to reach decisions about an individual's guilt or innocence. The Abel uses visual reaction times to sexual imagery to deduce individuals' relative sexual interests in different types of people.

Even more importantly, even when reliable and valid psychological tests are administered, the science is never strong enough to assign a mathematical probability of guilt.

I am a bit amazed that an expert was even willing to give such a precise prediction with such flimsy support.  It seems to me that courts let a lot more slide when a sex offender is involved (but it may just be that I have a bit of self-selection bias on the cases I read).

Erickson on STATIC-99

Steve Erickson at Crime & Consequences has a nice post in part responding to my post about the courtroom use of Static-99.  Here is the key part of his post regarding the predictive tool:

People may scoff at the simplicity of risk assessment measures such as the Static-99, but the truth is these instruments are reliable insofar as they measure known recidivism risk variables that time and time again show (or should have shown as with Duncan) that the best predictor of future behavior is past behavior. This inconvenient truth will bedevil our policy debates about sex offenders and helps explain why it is so difficult to generate public opinion to moderate our criminal justice system's approach to these offenders. We should avoid a "one size fits all" approach to the ever increasing defined population of sex offenders, but until those who advocate reform admit that in cases like Duncan and numerous others the system's best response would have been lifelong incapcitation early in his sadistic criminal career, the public opinion will only continue towards more punishment and retribution.

Despite the fact that Erickson is responding to my post, I don't disagree with his assessment at all.  He is much more versed than I regarding prediction tools.  And I believe generally in deferring to his expert opinion just as I think judges and juries should make their decisions regarding recidivism based upon expert opinion.  My problem concerns the use of STATIC-99 as evidence.  Putting a really rough diagnostic tool before a judge and jury virtually ensures they will mishandle it.  STATIC-99 is nothing like the MMPI or other more complete diagnostic tools.  It simply measures 10 basic characteristics that can be correlated to sex offender recidivism.  Some of those characteristics are seemingly benign history factors (length of prior relationships, having had a live-in relationship, etc.).  They are especially poor indicators with younger offenders (and for that reason STATIC-99 is not supposed to be used with offenders under age 18).  Psychiatrists and psychologists know the limitations of the tool or at least they should.  Judges and juries are not versed in the ins and outs of a tool like STATIC-99.  And for a judge to allow it to enter the courtroom as evidence strikes me as an idea likely to yield a very bad result.

Instead, I support an expert using STATIC-99, other diagnostic tools, review of an offenders history, and clinical evaluation.  Based upon that information, an expert testifies as to recidivism risk and explains how he or she reached that opinion.  However, some prosecutors have attempted to introduce STATIC-99 records directly into the record.  Similarly, STATIC-99 results have appeared in probation officer reports.  In such cases, the fact-finder gets very limited information that is almost always going to result in overprediction of recidivism.  The reliance on experts won't yield completely reliable results because our ability to predict future dangerousness is still very limited.  However, I think allowing competing experts to battle it out is a lot better than allowing diagnostic tools into the record.

Around the Web

The fallout from the Ohio AWA compliance law continues to grow.  As noted in the story yesterday, county public defender's office has filed 225 motions "asking judges to prevent sex offenders who were convicted before the beginning of the year from being saddled with the harsher penalties."  They plan to file more this week.  Other opponents of Ohio's implementation of the Adam Walsh Act argue that juveniles should not be listed because of their low recidivism rates.  Some point out that courts refuse to appoint lawyers for convicted sex offenders fighting the new law because they say it is a civil penalty, not a criminal one.

In New York, a former prosecutor is being accused of having sex with two teenage boys and keeping it a secret from her police chief husband.  The woman has been indicted on 35 counts alleging statutory rape, criminal sex acts, sex abuse and endangering children.

Congressman Bart Gordon (D-TN) is co-sponsoring legislation designed to "close a loophole" in the Adam Walsh Act.  The so-called loophole resulted in the release of the man who failed to register as a sex offender when he moved from Iowa to Missouri.

In Ohio, an 18-year-old male who lives with his parents is being required to move at least 1,000 feet away from any school. His mother said that the family intends to move so that her son is in compliance with the law.

Corrections Sentencing has an article about STATIC-99, discussing the same 7th circuit case which we mentioned yesterday.

More Evidence that Courtroom Use of STATIC-99 is a Joke

EvidenceProf Blog has a post about the use of Static-99 in a case before the 7th Circuit (link corrected thanks to Jim in the comments):

The Seventh Circuit was recently presented with STATIC-99 evidence in the case, United States v. McIlrath, 2008 WL 90084 (7th Cir. 2008). 31-year old  Christopher McIlrath was on an internet chat room and thought he was chatting with a 15 year-old girl.  He wrote her that he would travel to her state to have sex with her, but the "girl" was actually a detective conducting a sting, and he arrested McIrath upon his arrival.  McIlrath thereafter pleaded guilty to traveling across state lines to have sex with a minor and was sentenced to 46 months imprisonment.  This sentence came after the trial judge discounted forensic psychologist Eric Ostrov's use of STATIC-99 to determine that McIlrath's characteristics matched the characteristics of offenders 9 to 13 percent of whom were found to have repeated their offense.

McIrath subsequently appealed this sentence, claiming that he should have been sentenced just to home confinement.  The Seventh Circuit rejected his argument, first noting that the rules of evidence do not apply to sentencing hearings, meaning that it did not need to address whether STATIC-results are admissible.  The court also noted in passing that in several cases, such as In re Commitment of SImons, 821 N.E.2d 1184, 1192 (Ill. 2004), courts have found STATIC-99 results to be reliable enough to be admissible as expert evidence.  The Seventh CIrcuit, however, found that there are a plethora of problems with STATIC-99:

     -even its advocates only claim that it has "moderate predictive accuracy;"

     -estimates of recidivism are bound to be too low when one is dealing with underreported crimes such as sex offenses; and

     -STATIC-99 has too limited a number of potentially relevant characteristics.

The Seventh Circuit then found that McIlrath had not addressed these criticisms and held that "without any effort by the defendant's lawyer to establish the reliability of Dr. Ostrov's methodology -- or even to explain it -- the judge was entitled to discount his prediction."  Now, as noted, this was not a decision that addressed the admissibility of STATIC-99 results, and maybe McIrath's lawyer simply dropped the ball.  But it certainly seems like the Seventh Circuit was holding that STATIC-99 results are too unreliable to be admissible as expert evidence, and it should be interesting to see how courts in future cases deal with this evidence.

I think it is very positive that the Seventh Circuit addressed the shortcomings of the STATIC-99 tool in a case that it didn't necessarily have to.  There are other ways for prosecutors to introduce expert testimony about risks of recidivism without resorting to bad shortcuts like STATIC-99.

Around the Web

Corrections Sentencing has an update about a new report out of Utah which reveals that "the state's sex-offender treatment program significantly reduces recidivism but is hampered by funding limitations."

A 15-year-old boy in Missouri was sentenced to 60 years in prison for beating and sexually assaulting a girl when he was 13 and she was 6.  The boy is the youngest inmate ever housed in the St. Louis County jail.

A serial sex offender who has spent 37 years in jail for assaulting young girls across Britain attacked another teenage girl on a local bus.

Some Wise Words from Wisconsin

Corrections Sentencing highly recommends ("You won’t find a better presentation of sex offenders and the politics and realities of dealing with them") an interesting article from a Wisconsin paper.  Here is a taste:

"We're wasting resources on 85% to 90% of the people and neglecting to deal with the population we really do need to deal with," says state Rep. Mark Pocan (D-Madison). "We've shot-gunned sex offenders bad, because there's a strong public distaste for them, but we use that term so loosely, even when there's a very low chance that a person is a problem offender."
....
"If someone is not really a threat to society, and we know they're really not a threat to society, we're taking their life and screwing it up," says Pocan. "There's the politics of it and then there's the science of it, and the politics of it is off the chart right now. If you want to be tough on crime, you're tough on sex predators. You use sex predators to mean everybody, because you don't differentiate, because there is no intellectual thought put into what you're saying."

The whole article is worth a read.

New Developments in Sex Offender Law in Texas

And as with all criminal law news in Texas, the place to get further information is from Grits for Breakfast.  There have been two very interesting Dallas Morning News articles about sex offender laws.  Here is some of Grits's insightful followup to the two articles:

For these serious offenses, a typical reason given by the Board of Pardons and Parole for refusing to grant parole is "the nature of the crime." But maybe we're taking the wrong lesson from "the nature of the crime." Right now that phrase is typically invoked to describe the horror of the crime, the effect on the victim, and as an argument for maximizing punishment. Perhaps the nature of the crime might instead imply the need for certain treatment regimens before re-entering the population, or for restorative justice approaches that better respect victims' rights and real needs.

Indeed, Saturday's story focuses on the ironic truth that tougher laws may make things worse for victims, since they or their family may be less likely to report abuse if it means a 25 year minimum or a death sentence for a family member....

All of these concerns were raised when the legislation was being debated, but bill proponents wouldn't listen. In an odd twist, the sponsor of Texas' Jessica's Law, Rep. Debbie Riddle (R-Tomball) places any blame on the victims and their families - not ham-handed law-writing - if her new statute causes children to be abused more frequently.

It's nice to see the media focused on reasoned debate about sex offender policy.  Unfortunately, Texas lawmakers don't seem to be on the same page.  I won't go as far as Michael Connelly who in response to Grits's post noted: "you guys in TX need to stop letting your legislators eat lead paint and then get quoted."  But that may just be because my mom taught me not to say such things out loud.  Connelly also notes one area where Grits is overstating the argument about sex offender recidivism:

Only one little quibble, Grits. It’s true that most studies show that sex offenders have lower recidivism rates than other offenders, but here are some provisos. Their crimes are harder to detect, it depends on the type of sex offender we’re talking about (drunk one-timer v. sociopath, for example), and many of them recidivate not with new sex offenses but with non-sex crimes. There’s a lot of legislative lunacy done in the name of protecting kids from sex offenders all lumped into one big evil bag, but there are truly some heinous people out there, too, who need serious punishment because treatment doesn’t work on them, as the one offender above admits. That’s why a smart legislature would be funding researchers and treatment providers to get clear pictures of who truly are the low recidivists, who are amenable to treatment, and who can never be trusted.

I think that is exactly right.

GPS Tracks Locations not Activities

This is an obvious point, but one that is sometimes missed.  There are certainly times when knowing a location is important.  For example, if a convicted child molester is at an elementary school, then knowing that location is helpful to law enforcement.  Similarly, knowing a location after the fact can be used to find an offender who was at the scene of the crime (assuming the offender had not removed the GPS device).  However, for the most part, GPS is a small band-aid that gives the illusion of monitoring without really providing information about the activities of an offender.  And it looks like Nevada is figuring this out:

Twenty of Southern Nevada's sex offenders were outfitted last week with global positioning system tracking devices. An ankle bracelet, a satellite receiver box strapped to a belt and constant, if imperfect, surveillance. A blind tracking system that follows an offender's every move, but sees none of his actions.

The wireless bridle is an element of Senate Bill 471, which gave the Nevada Public Safety Department's parole and probation officers the ability to track certain sex offenders - generally, high risk offenders who have committed offenses against children younger than 14 - with real-time electronic monitoring.

The legislation, like the GPS technology, has its critics. But critics of the monitoring system find themselves in an awkward position : Defending the rights of sex offenders doesn't make you popular.

The GPS devices are to ensure sex offenders obey a second element of the bill, which is that they never linger within 500 feet of a school, bus stop, video arcade, park, day-care facility, movie theater, etc. Anywhere, really, where children congregate. In the parlance of parole, these are "exclusionary zones." Wander too close, the little green dot goes red and alerts an officer. Same if the satellite l oses the device's signal or the offender fails to recharge the GPS unit when needed or tries to separate the ankle bracelet from the satellite box (so that someone else would be tracked)....

GPS isn't a silver bullet, and everybody knows it. Including the offenders.

Jake Goldenflame, a San Francisco resident convicted of incest with a juvenile 17 years ago, describes himself as "in recovery." Were he not committed to recovery, Goldenflame admits , if children knocked on his door to sell cookies, the GPS would never tell, and neither would he.

"All these things really do is say where you're supposed to be," Goldenflame said, "but not a thing about what you're doing there." 

HT: Corrections Sentencing

Are Pedophiles Wired Differently?

From the BBC:

Scientists say distinct differences in the brain activity of paedophiles have been found using scanning technology.

A Yale University team found activity in parts of paedophiles' brains were lower than in other volunteers when shown adult, erotic material.

The journal Biological Psychiatry said this was the first real-time evidence of differences in thought patterns.

A forensic psychologist from the UK said drug treatments for paedophilia might be possible.

There is increasing evidence that problems in certain areas of the brain may contribute to feelings of sexual attraction towards children.

In a few cases, patients with a brain tumour in a particular part of the brain have developed such feelings, only for them to go away when the tumour was removed.

I'm not sure that the last portion (about tumors) really has anything to do with the larger findings.  My understanding of the tumor cases was that they impaired frontal lobe function (which controls inhibition).  The stories were exceptional and Law & Order: SVU even made an episode with a female molester whose behavior was triggered by a tumor.  I'm just not sure how those cases tell us anything about general brain functioning.  The rest of the article, though, seems pretty interesting.

New Sex Offender Recidivism Study

Corrections Sentencing points to a new sex offender recidivism study in Tennessee.  Here is Connelly's summary:

New sex offender recidivism study coming out of TN, finding as most do that those offenders come back to the system less often than other offenders. Their long sentences may age them out and they do tend to get heavy supervision. Also may benefit from the rarer reporting of their crimes. Still, the consistency of the findings of these studies is impressive triangulation of the reality of the numbers.

This is from the news account about the study:

"It goes against normal public perspective because people believe they are always going to reoffend," said Tim Dempsey, chief executive officer of the nonprofit Chattanooga Endeavors, which seeks to help those released from prison transition back into society. "But if you're just looking at risk, sex offenders have always been in that lower-risk category."

For the study, the Tennessee Bureau of Investigation followed 1,116 male offenders for three years after their releases in 2001, according to TBI spokeswoman Kristin Helm. Half the offenders had been convicted of sex crimes and the other half nonsex crimes, Ms. Helm said.

Results were released in August, showing that 28 percent of the sex offenders were recommitted to the prison system, compared with 52 percent of other felons.

The sex offenders who were recommitted tended to remain on the streets longer before their next arrest, according to the study, which recorded statutory rapists, offenders who committed sexual battery and rapists as those with the highest rearrest rates.

Some skeptics wonder whether there are other factors affecting the reported dichotomy in repeat offense rates.

"They may offend less, or their victims may be less likely to report, as sex offenses are very difficult to prosecute," said Dr. Charlotte Boatwright, president of the Coalition of Domestic and Community Violence of Greater Chattanooga and coordinator of the Chattanooga Family Justice Alliance.

"Victims often feel that it is useless to report it, as their character is put on trial to distract from the case against the (perpetrator), and they are terribly revictimized in the process," Dr. Boatwright said. "Victims of sexual assault suffer the trauma for years, some for the remainder of their lives."

The study's findings echo results of two previous TBI recidivism studies, Ms. Helm said, one conducted in the early 1990s and a second in 1997.