Sexual Offense
Recidivism
The Debate over Civil
Commitment of Recidivist Sex
Offenders
SCHALL V. MARTIN
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NY Family Court Act provision allowed for detention of juveniles awaiting
trial if judge determined there was a “serious risk” the juvenile would commit
any crime before the return date.
Supreme Court holds that preventive detention serves a legitimate state
objective. Protects society against future harms and the juveniles from
harming themselves.
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State objective outweighs the concern of restraining juveniles’ liberty.
Juveniles are always in some sort of custody.
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Juveniles are given special protection because they are emotionally underdeveloped. Society can then assume they will be more likely to reoffend.
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Procedural protections given by the NY FCA satisfy the Due Process
requirements.
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Absent an express showing of the intent to punish, it will be upheld so long
as there is a rational relationship between the legitimate state interest and
the detention, and provided that it is not excessive in relation to the state
interest involved.
Schall, cont’d
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Under FCA, juvenile may be held up to 5 days without
probable cause hearing.
The vast majority of juveniles detained under this
provision have their petitions dismissed before
adjudication or are released after adjudication.
Great opportunity for bias and capriciousness to enter
the decisions.
Future dangerousness is difficult to predict, particularly
upon limited information and time available during
pretrial period.
Since the juveniles have not been convicted, the
detention is more punitive in nature.
US V. SALERNO
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Bail Reform Act of 1984 allowed preventive
detention of dangerous person if he committed:
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a crime of violence
a crime punishable by life imprisonment or death
a major drug offense
or a felony committed with two prior convictions.
Dangerous person was defined by the chronicity of
criminal behavior, assaultive behavior, and by
particular crimes that have been designated unique
threats (such as drug offenses).
Salerno, cont’d
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The provision was constitutional according to Supreme Court. It
protected the legitimate state interest of protecting public safety.
Did not violate Due Process or Excessive Bail clauses of the
Constitution.
 Excessive bail provision was only to prevent excessive bail in
cases where bail is appropriate. It does not guarantee bail in all
cases.
 Protecting public safety is a regulatory concern, not a punitive
one.
 Does not violate Due Process because provision is limited to
extreme cases and limited in duration of detention.
Salerno did not challenge that the provision was unconstitutional
as applied to him, only that it was facially unconstitutional.
KANSAS v. HENDRICKS
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Defendant had long history of molesting children
Committed under Kansas Sexually Violent Predator Act
 Required finding of a “mental abnormality” or “personality
disorder” that rendered a person likely to engage in “predatory
acts of sexual violence”
 D’s uncurable pedophila qualified as mental abnormality
Hendricks challenged his commitment on grounds of:
 Substantive due process
 Double jeopardy
 Ex post facto
Kansas Supreme Court overturned his civil commitment
KANSAS, cont’d
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Supreme Court held that:
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The definition of mental abnormality under the Act
fulfilled substantive due process requirements
The act doesn’t establish criminal proceedings
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Denial of physical liberty has been constitutionally
upheld
Must show clearest proof of punitive purpose or effect
No retributive or deterrent effect
Because not punitive, required element for double
jeopardy and ex post facto claims gone
KANSAS v. CRANE
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Follow up case to Hendricks
Kansas Supreme Court had reversed Crane’s commitment,
holding that the Hendricks decision required a finding that the
defendant cannot control his dangerous behavior, even if the
source of problems is behavioral rather than volitional, which trial
court failed to do
Supreme Court held that:
 Hendricks did not require this total or complete lack of control for
commitment for constitutional commitment
 However, Constitution does not permit commitment without any
lack of control determination
 It is enough to prove a serious difficulty in controlling behavior
 To require a total lack of control would mean letting dangerous
people back on the street
 State can determine its own definition of mental abnormality
BAREFOOT V. ESTELLE
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Barefoot was sentenced to death during the
sentencing phase of his trial.
Prosecution presented two psychiatrists as expert
witnesses who testified that Barefoot was likely to
present a future danger.
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Psychiatrists had never examined Barefoot, but based their
conclusions on hypothetical situations posed by the
prosecution.
APA filed an amicus brief stating that such
evaluations of future dangerousness were incorrect
2/3 of the time.
Barefoot, Cont’d
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Supreme Court held that the 1/3 of such evaluations
are correct and it trusts the court and jury to be able
to sort out the reliable from the unreliable.
“Neither petitioner nor the Association suggests that
psychiatrists are always wrong with respect to future
dangerousness, only most of the time.”
Jury is asked to determine future dangerousness
during the sentencing phase to establish if a
defendant may receive the death penalty. If the
court may ask the lay jurors to make this
determination, psychiatrists can give their opinions.
SALDANO V. TEXAS
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Saldano shot his victim four times and claims he felt “nothing” at
the time of the killing. He shot him in the head to make sure he
was dead.
Jury found Saldano to be a future danger, based on such facts as
Saldano’s lack of remorse for the killing.
Prosecution presented 24 factors which it claimed were helpful in
determining future dangerousness, one of which was race.
Prosecution’s expert witness said Blacks and Hispanics were
over-represented in prison compared to their relative populations.
Rather than objecting, defense attorney argued that as an
Argentinean, Saldano was not technically Hispanic. Good move.
Court held that even though there was no objection, the cases
must be remanded. The Solicitor General of Texas admitted
error in this case.
New York State Bill for Civil
Commitment of S.O. Recidivists
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Intent of Bill
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There exists a small but potentially dangerous
group who commit sex offenses who suffer from
mental abnormalities that
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Make them likely to engage in repeat sexual offenses
Create serious difficulty for offenders to control their
unlawful sexual behavior and make it likely they will
commit future sex crimes
Indefinite treatment length
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Allows for possible lifetime confinement if necessary
NY Bill, Cont’d: Procedure
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Notice and Petition for Commitment
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Prior to release
Case review committee team makes recommendation as to whether or not
person is sexual predator
Attorney General then considers recommendation and files sexual predator
petition
Probable cause hearing to determine whether respondent is sexual predator
Trial
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Attorney General presents evidence and witnesses
Jury asked to determine whether AG has proved beyond a reasonable doubt
that respondent is a sexual predator
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Instructions to jury
Unanimous jury verdict required
Subsequent disposition hearing to determine whether respondent should be
either
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Confined in a secure facility
Subjected to regiment of strict and intensive supervision
N.Y. Bill, Cont’d: Review
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Subsequent Petition, Annual Exams and Petition for Discharge
 Annual right to petition court for discharge or for order to strict
and intensive supervision
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New evidentiary hearing held
 Burden of proof at hearing is upon the AG to show beyond a
reasonable doubt that person continues to be a sexual predator
 If petition not denied, may go to S & I supervision
Appeals
 Both parties may appeal as of right to an intermediate appellate
court
 Exception for determination made at probable cause hearing that
person is sexual predator
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Biannual for those already in S & I supervision
N.Y. Bill Cont’d: Treatment
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Sex offender management board
 Membership
 Identifies best practices in field of sex offender management and
develops system of evaluation, treatment and monitoring of sex
offenders
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Risk assessment
Procedure for evaluation of sex offenders
Treatment protocols
Research and analyze effectiveness of treatment
Treatment programs
 Consistent with professional standards
 Designed to
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enhance public safety
Reduce the risk of reoffense
NY Bill Cont’d: Issues Raised
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Whether procedure too closely mimics
criminal procedure for confinement to be nonpunitive
Resources necessary to carry out such a
substantial commitment on the part of the
state
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Diversion of state funds and enormous
expenditures
Overbroad inclusion of offense categories?
The Argument For
Civil Commitment
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Results of studies on sexual offender recidivism
offer varying conclusions on whether recidivism
occurs at high or low rates
Many studies do conclude that the rate of sexual
crime recidivism is much higher than previously
thought
Even if the rates were low, debatable that factors
contributing to recidivism can be effectively treated
Civil commitment, therefore, is a necessary
alternative
The Prentky Study: Recidivism
Among Child Molesters & Rapists
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Problems endemic in previous recidivism
studies:
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Length of follow-up time
Definition of reoffense too narrowly constructed
Use of simple percentage underestimates rate of
recidivism
Solutions:
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Use longer observation period
Include all possible stages of reoffense
Use survival analysis and failure rates
Prentky, cont’d
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Uses rapists and child molesters from the Massachusetts
Treatment Center for Sexual Offenders
Breaks study down into three separate analyses
 Differences in failure rates among criminal offense categories
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Disposition of criminal offense
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Sexual
Nonsexual with victim
Nonsexual victimless
Parole violation
Arrest
Conviction
Reincarceration
Window of exposure time
Prentky, cont’d: Findings
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First analysis
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Rapists
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Second analysis
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Sexual – 26%, 39% FR, 4.55
years
Nonsexual – 33%, 49% FR
Victimless – 36%, 54% FR
Overall recidivism rate –
57%, 74% FR, 2.75 years
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Sexual – 32%, 52% FR, 3.64
years
Nonsexual – 14%, 23% FR
Victimless – 30%, 48% FR
Overall recidivism rate –
54%, 75% FR, 2.75 years
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Charged – 26%, 39% FR
Convicted – 15%, 24% FR
Imprisoned – 13%, 15% FR
Child molesters
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Child molesters
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Rapists
Charged – 32%, 52% FR
Convicted – 25%, 41% FR
Imprisoned – 23%, 37% FR
Third analysis
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Recidivism continues through
25th year after release
Pretnky, cont’d: Conclusions
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Both rapists and child molesters remain at
risk to reoffend long after discharge
Marked underestimation of recidivism
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When criterion are only conviction or
imprisonment
When calculating using simple proportion or
percentage
Risk to society sex offenders create comes
from both propensity to general crimes and
sexual crimes
Department of Justice
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Recidivism underreported
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Rates
Causes
Marshall and Barbaree report
Follow up periods in most studies not long enough
Low base rate problem that plagues sex offender
recidivism studies
Ways to correct these problems:
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Separate different sex offense categories in studies
Meta-analysis
Hanson and Bussiere MetaAnalysis
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Combine the results of 61 studies with a combined 28,972 sexual
offenders
Large pooled samples allow for
 High statistical power
 Testing of generalizability of findings across studies
Results:
 18.9% recidivism rate among rapists and 12.7% recidivism rate
among child molestors
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36.3% general recidivism rate, 46.2% for rapists and 36.9% for
child molesters
Ultimately contend that sexual recidivism rates are low
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Sexual offenses only
4-5 year period
Hanson study – Long Term
Recidivism of Child Molesters
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Also uses the long term study model to catch sexual
offenses after the typical 5 year study period
Used 3 groups in study
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Treatment group – child molesters in secure facility
treatment program
Control group 1 – child molesters in same maximum
security institution before treatment program offered
Control group 2 – child molesters not transferred to
treatment program but instead remained in maximum
security custody
Hanson, cont’d: Findings
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Among a total of 197 child molesters, 42%
rearrested for any kind of offense
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Follow up period ranged from 15-31 years
Recidivism rate was not significantly different
for treatment group than for either of the
control groups
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Personality measures vs. measures significant to
recidivism
Hanson, cont’d: Conclusions
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Child molesters are at risk for reoffending for many years
 Need to develop long-term strategies to address
Treatment does not appear to correct problem for at least some
significant portion of sexual offenders
Admits that use of reconviction only will cause underestimation of
recidivism in study
Significant proportion of child molesters do not reoffend
Biggest risk indicators:
 Never being married
 Previous sexual offenses
 Victim type
Rice study: Violence Risk
Appraisal Guide for C.M. and Rap.
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Actuarial predictor of recidivism
Using a group of 288 child molesters and rapists
found that:
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Rate of violent recidivism was high with 166, or 58% of
subjects committing another violent offense
Rate of sexual recidivism was 35% (101 out of 288)
Two factors most significant for recidivism:
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Psychopathy (more so for rapists)
Sexual deviance (more so for child molesters)
Non-personality disorders – less likely to be treatable
Yes to Civil Commitment
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Sexual offenses are widely recognized as drastically harmful to
society
And they occur at rates higher than commonly believed
 Sex offenses and general criminal offenses
Civil commitment a wise way to address the problem because:
 Although not all sex offenders will reoffend
 There is a certain subset of sex offenders who cannot be treated
for their deviance
 Procedures in place in N.Y. and other state civil commitment
statutes allow for identification of this subset and their
subsequent removal from society while they remain a danger
The Argument Against
Civil Commitment
HARRIS AND HANSON - CANADIAN
STUDY OF SEX OFFENDER RECIDIVISM
(2004)
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Different types of sexual offenders have
significantly different recidivism rates.
Most sex offenders do not reoffend sexually.
The longer offenders remain offense-free, the
less likely they are to reoffend.
Harris and Hanson, cont’d
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4,724 offenders
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Broken into categories of rapists, girl victim child molesters,
boy victim child molesters, incest offenders, those with or
without a prior sexual offense, older offenders (50 or older
at release), and younger offenders.
Also provides recidivism estimates for sex offenders who
have been offense-free for 5, 10, and 15 years.
All were adult males, primarily white.
27.9% had a previous sex crime conviction and 9.4% had
more than one.
Some subdivisions defined recidivism for conviction only,
others included charges.
Harris and Hanson, cont’d
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Canadian Federal - Pacific Region
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Compared 401 offenders who had received
mandatory counseling with 1288 of those who
had not from the years 1976 and 1992.
Included charges in the recidivism rate.
Canadian Federal Recidivism Study
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Study of 316 offenders from 1983-1984.
Only conviction counted in recidivism rate.
Harris and Hanson, cont’d
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Canadian Federal 1991 to 1994 Releases
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Offenders were reviewed in 1991 while still
incarcerated.
Included charges.
Harris and Hanson, cont’d
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Millbrook Recidivism Study
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15-30 recidivism study of child molesters released
between 1958 and1974 from Millbrook
Correctional Center.
Treatment was provided for about half of the
offenders.
Only conviction counted.
Harris and Hanson, cont’d
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Institut Philippe Pinel (Montreal)
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Offenders at maximum security psychiatric facility between
1978 and 1993.
Long-term treatment was provided for all offenders.
Conviction only.
Alberta Hospital Edmonton - Phoenix Program
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Offenders treated at the hospital between 1987 and 1994.
Conviction only.
Harris and Hanson, cont’d
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California’s Sex Offender Treatment and
Evaluation Program
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Studied period of 1985 through 1995.
Used arrests.
Studied recidivism among treated offenders,
voluntary controls, treatment refusers, and a
general sample of sex offenders.
Harris and Hanson, cont’d
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Her Majesty’s Prison Service
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16 year follow-up of all sex offenders from Her
Majesty’s Prison Service in 1979.
Conviction only.
Harris and Hanson, cont’d
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Washington SSOSA
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SSOSA allows judges to sentence sex offenders
to community treatment instead. Applies to all
first-time offenders not charged with first or
second degree rape.
Compared those receiving SSOSA treatment and
those statutorily eligible who did not receive
SSOSA treatment.
Harris and Hanson, cont’d
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Manitoba Probation
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Offenders studied who were on probation
between 1997 and 1999.
Harris and Hanson: Results
SAMPLE AND BRAY
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Used criminal history information from 1990-1997
compiled by Illinois State Police.
Used arrest rates.
Did not differentiate among different types of sex
offenders based on relationship to victim.
34, 668 (1.20%) of crimes were sex crimes,
including:
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child pornography, exploitation of children, indecent
solicitation of a child, juvenile prostitution, criminal sexual
assault of adults and children, and ritual abuse of children.
Study also allowed for time offenders spent “off the
street” when reconvicted or rearrested.
Sample and Bray, cont’d
Sample and Bray, cont’d
US DEPT. OF JUSTICE
(1983-1994)
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Based on state criminal records and FBI files. Random samples of released
prisoners were tracked for 3 years.
Of the 272,111 persons released from prisons in 15 States in 1994, an
estimated 67.5% were rearrested for a felony or serious misdemeanor within 3
years, 46.9% were reconvicted, and 25.4% resentenced to prison for a new
crime.
Sex offenders were less likely than non-sex offenders to be rearrested for any
offense –– 43 percent of sex offenders versus 68 percent of non-sex offenders.
An estimated 24% of those serving time for rape and 19% of those serving time
for sexual assault had been on probation or parole at the time of the offense for
which they were in State prison in 1991.
Of the 9,691 male sex offenders released from prisons in 15 States in 1994,
5.3% were rearrested for a new sex crime within 3 years of release.
Of released sex offenders who allegedly committed another sex crime, 40%
perpetrated the new offense within a year or less from their prison discharge.