Inside Civil Commitment: Competing Rights, Competing Interests

Adult Diagnostic & Treatment Center*
    Inmate Resident Committee
        Legal Subcommittee
            George C. Riley, Chairman
            Walter S. Bastecki, Jr.
            Courtney R. Bayer
            Gilbert T. Greenfield
            James J. Krivacska
            John W. Tate

Table of Contents

Executive Summary

Sex Offender Recidivism Rates vs. New Jersey Rates of Commitment
Flaws and Faults in SVPA Implementation
Commitment Costs and Recommended Improvements in SVPA Administration

Introduction and Statement of Purpose

Sex Offender Recidivism Rates

Recidivism Rate Assumptions and Operational Definitions
Recidivism Rates of Sex Offenders
Definitions of High Risk and High Risk Offender Incidence Rates

Recidivism v. Commitment – Irreconcilable Differences

Faults and Flaws

Costs of Commitment


HIP (High Impact Probation)
Depro Provera and SSRI Inhibitors
GPS (Global Positioning Satellite) Electronic Monitoring
SSOSA (Special Sex Offender Sentencing Alternative)
Regional Psychiatric Hospitals



Appendix A: Description of the MnSOST-R Scales

Appendix B: Comparative Analysis of SVP Laws — State by State

Components of Definitions of Sexually Violent Predators
Commitment Procedures
Confinement Rates / Release Conditions

Appendix C: Summary of New Jersey's SVPA Law

Definition of Sexually Violent Predator
Initial Screening Determination and Probable Cause Hearing
Commitment Hearing
Annual Review

Executive Summary

Since the enactment of the New Jersey Sexually Violent Predators Act (SVPA) in August of 1999, New Jersey has been consistently civilly committing soon-to-be-released inmates in numbers far in excess of expected rates of reoffending.  Ostensibly enacted to protect the public from the most dangerous sex offenders, the wide net cast by the state resulted, in 2000, in the commitment of 35% of the inmates about to be released from the Adult Diagnostic and Treatment Center (ADTC), the Department of Corrections facility that houses inmates determined by the courts to be compulsive and repetitive sex offenders.  While the SVPA was, in part, driven by public perception that sex offenders have the highest rates of reoffending of all criminals, the reality of the scientific research on sex offender recidivism as well as the state's own recidivism data, contrasts sharply with that public perception and the 35% commitment rate.

Sex Offender Recidivism Rates vs. New Jersey Rates of Commitment

The most comprehensive analysis of sex offender reoffense rates range from just under 8% to the mid-teens (the largest meta-analytic study conducted to date, encompassing 23,000+ sex offenders in 61 research studies, found a recidivism rate of 13.4% over a 5 year period, after release from prison).  Moreover, data collected at the ADTC records a recidivism rate of under 10%, spanning a 33 year history of over 2,200 discharged offenders, with the most recent state data showing a reoffense rate of less than 7%.  How did New Jersey come to the point that it is committing to the Special Treatment Unit (STU) at Kearny, 2-5 times as many sex offenders as will be expected to reoffend?  What questions does this disparity raise about the state's ability to reliably and validly distinguish the high risk from the low risk offender?  To answer that question, one must look to the legal precedents set by the U.S. Supreme Court, the procedures by which New Jersey implements the SVPA and the State’s use of actuarial scales of prediction.

Under the U.S. Supreme Court's decision in Kansas v. Hendricks (1997) and Kansas v. Crane (2002), states may constitutionally commit sex offenders who are deemed to have, because of a mental disorder, serious difficulty controlling their sexually violent behavior, creating a strong likelihood they will engage in acts of sexual violence in the foreseeable future.  In so holding, the Court also cautioned states that such efforts at commitment must be limited to a subset of offenders who, by virtue of their mental abnormality, are distinguishable from the typical criminal recidivist.

Psychological scales, called actuarial scales, have been developed to quantify the risk posed by a soon-to-be-released sex offender based on statistical analysis of the factors known to correlate with recidivism.  Though the predictive validity of the best of these scales, the MnSOST-R, only captures about 20% of the factors that distinguish reoffenders from non-reoffenders, the scales are still more reliable than clinical predictions of psychiatrists based on clinical judgment.  Moreover, the scales permit an estimate of the frequency of misclassifying an individual as a high risk offender (also known as the false positive rate).  With measures of weak predictive validity, like these scales, the risk of false positives is quite high.

New Jersey relies heavily on such scales, and by virtue of its present system for screening and committing sex offenders, has committed over 250 individuals, making New Jersey’s per capita commitment rate (in terms of prison population) the highest of any state.  The U.S. Supreme Court analysis and the scientific research on recidivism leads, inevitably, to the conclusion that SVP laws should be focused on that subgroup of high risk offenders that are relatively easy to distinguish from other offenders, especially in light of their statistical risk of reoffending within the first years of their release.  Such analysis has led the researchers of the MnSOST-R to recommend decision points and criteria for commitment which would yield the commitment of about 6% of those whose imminent discharge is anticipated.  The New Jersey rate of commitment of 35% in 2000 is far in excess of this recommended rate and the rate observed in other states with SVP laws.  At the state's rate of commitment, the MnSOST-R predicts the state will incorrectly commit 4 persons for every 3 it justifiably commits, an unacceptably high rate, well in excess of even the actual rate of reoffending for all sex offender types combined.

Flaws and Faults in SVPA Implementation

Several flaws in New Jersey's system of commitment may account for this discrepancy.  New Jersey employs screeners at the initial stages of the screening process who may have no education, experience or training in psychology in general or diagnosis and treatment of sex offenders in particular.  The qualifications, selection process, and oversight procedures for the members of these screening committees (Inmate Release Committees or IRCs) are not established.  Neither have any guidelines, procedures, rules, regulations, or standards governing the operation of the IRCs ever been promulgated, in violation of New Jersey's Administrative Procedures Act (NJSA 52B: 14B-1, et seq).  The absence of such procedures, standards or guidelines, may well render the entire decision making process for commitment, arbitrary, and capricious.

Furthermore, actuarial scales, especially the MnSOST-R, weigh heavily in the screening process.  Yet, the IRC and staff at ADTC have arbitrarily, and without any justification or rationale derived from empirical study or scientific investigation, lowered the criterion score on the MnSOST-R by which a recommendation for screening by the state psychiatrists is made, to well below that recommended by the MnSOST-R authors.

Subsequent to the IRC recommending an inmate for psychiatric screening, the state orders the psychiatrists to conduct the evaluation.  These psychiatrists are employed by a private firm subcontracted by the state to provide mental health treatment services and to conduct evaluations.  The state can, and does, order as many evaluations as it needs to get two clinical certificates signed, most often getting the second signature by the third evaluation.

Because the screening psychiatrists are employed by a private contractor, which has a financial interest in maintaining a state contract, the screenings are at risk of being influenced by the Attorney General's office and by their own, and their employer's, reluctance to be seen as soft on sex offenders.  Subsequent determinations by the court to find probable cause and to order the temporary commitment of the inmate are pro forma exercises at this point.  The outcome of the probable cause hearing is predetermined because, up to this point, the targeted inmate enjoys no constitutionally protected rights to due process; not even the right to assistance of counsel, which he is not afforded until after he has been temporarily committed to the STU.  Subsequent evaluations by the STU staff and a final decision to commit are almost inevitable, as virtually no one has been temporarily committed to Kearny and not ultimately found to be an SVP.  This result is predictable given the reluctance of Kearny Staff to sign-off on a recommendation to release a sex offender against the recommendation of two state psychiatrists who already found the person to be an SVP, and the obvious reluctance of a judge to make a finding contrary to the recommendation of multiple state mental health professionals.

The lack of procedural safeguards, such as the right to record the initial psychiatric screening interviews, or to offer competing expert evaluations at the probable cause hearing, along with either deliberate or unintentional inflation of the reliability of various actuarial scales, places screened individuals at high risk for unnecessary commitments; as does the lack of alternatives to STU placement which may result in evaluators recommending commitment because of the lack of less restrictive alternatives in which to treat the offender.

Commitment Costs and Recommended Improvements in SVPA Administration

Given the high costs of commitment, upwards of $85,000 per person, and a commitment population in excess of 250, as well as the legal costs of commitment hearings, evaluations, annual review hearings and appeals, the importance of reducing the likelihood of unnecessary commitments becomes apparent, at least from a fiscal perspective.

Several recommendations may serve the goal of limiting the commitment process to those few high risk offenders for whom the risk of reoffense is all but certain, while averting the unnecessary detention of scores of individuals for indeterminate periods of time, who are ready to return to society to lead productive lives.

  1. The Department of Corrections should adopt guidelines/standards/procedures/
    rules and regulations governing the screening process, that utilizes empirically validated methods and criteria for assessing risk (including validated decision points on the MnSOST-R), and which ensure screeners are properly educated, trained and evaluated.
  2. To avoid bias and risk aversion inherent in using employees of a private contractor to the state to make potentially controversial decisions, a panel of medical experts should be selected, possibly by the New Jersey Board of Medical Examiners, after adoption by the Board of standards for evaluation of sex offenders for commitment and requisite qualifications of evaluators.  The panel's members would report directly to the courts, not the Attorney General's office, and would be appointed for fixed terms, with periodic review, evaluation and reappointment (or dismissal) by the Medical Board, based on a review of their adherence to approved standards of practice.
  3. All evaluations of inmates should be audio- or video-taped and a copy provided to the inmate's attorney, both to protect the rights of the inmate, and to protect the state against groundless false claims of misconduct by the screeners.
  4. All those subject to a commitment hearing should be afforded the right to a jury trial, who must find proof of the state's case for commitment beyond a reasonable doubt.  Given the inherent unreliability of psychological/psychiatric testimony and the potential for commitment of persons for periods of time in excess of their actual prison terms — potentially even for life — a standard of proof beyond the now used clear and convincing evidence standard is needed to ensure only the truly dangerous are incapacitated.  To avoid unnecessary temporary commitments and the preservation of evidence and the record, counsel for the inmate should be appointed when the inmate's case is referred to the Attorney General's office for screening.
  5. Less restrictive alternatives to STU should be available, so as to not only permit diversion of lower risk offenders from STU into the community with appropriate supports and supervision, but to permit greater flexibility in reintegrating those ready for discharge back into the community. These might include greater use of medications known to reduce levels of paraphilic expression, high intensity supervision in the community (similar to high impact probation programs used in other states), the use of GPS technology, and greater reliance on regional psychiatric hospitals to provide out-patient services in the community in which the offender is to live.


The social compact between society and the individual embodied in the Constitution presupposes a singular focus on process, on rational limits of state power, devoid of bias or prejudice borne of animosity or disdain society feels for any one person or group of individuals.  We are at our best when we celebrate the sanctity of our due process protections, and our respect for liberty.  We are at our worse when we allow fear, ignorance or misunderstanding to compromise that commitment at the expense of a segment of our society, irrespective of how we may feel towards them at any given moment.  The fear and loathing society feels with respect to sex offenders is understandable, especially given irrationally high assumed rates of recidivism and stereotypic characterizations of sex offenders in which most citizens have placed their faith.

This is not to diminish or in any way detract from the pain and suffering offenders may have heaped upon countless victims, nor does it excuse that behavior on a claim of mental or emotional incapacity.  It does, however, seek a rational and effective solution to a problem that has, in recent years, appeared intractable, and seeks to do so at a cost society can afford, financially, morally and constitutionally.

Inside Civil Commitment:
Competing Rights, Competing Interests

Introduction and Statement of Purpose

In the year 2000, 35% of the inmates scheduled to be released at the conclusion of their sentence from the Adult Diagnostic and Treatment Center (ADTC) in Avenel, NJ — the sex offender treatment unit of the NJ Department of Corrections — were instead committed to the Special Treatment Unit (STU) at Kearny, the civil commitment facility for sex offenders created subsequent to the passing of the Sexually Violent Predator Act of 1998.  “A small price to pay to keep society safe,” no doubt the reaction of most upon hearing of these statistics.  Nevertheless, it is fair to ask, “Is that a reasonable exercise of state power to protect society against the most dangerous of sex offenders?”  Or is it an admission on the part of the state of its inability to draw distinctions as to risk between classes of sex offenders?  Or, perhaps, is this an end run around constitutional prohibitions against locking up people for what they might do instead of what they have done; an end run designed to confine as many sex offenders as possible so as to protect decision makers from becoming scapegoats of public outrage the next time a released sex offender commits a sex crime?

Certainly, this is not the most burning question in the minds of the public today, nor one necessarily likely to generate much enthusiasm in light of the recent priest sex abuse scandal.  Besides, as conventional wisdom holds, since 80% of the sex offenders reoffend anyway — the highest reoffense rate of all criminals — isn’t it better to keep them locked up as long as possible, no matter how that might be accomplished?

But what if sex offenders don't have the highest recidivism rates of all released criminals?  What if the real rate of reoffense was among the lowest of all criminals?  What if the rate of reoffending in New Jersey was 6%, not 80%?  What if the assumptions underlying civil commitment laws were flawed?  Can the State afford financially, or can society afford morally, the arbitrary curtailment of the rights of scores of individuals who have met their obligation to society, often with a sense of self-loathing, unfulfilled debt, and remorse largely absent in non-sex crime ex-cons?  What if, in reality, we are committing 3 to 4 times as many individuals as is necessary to protect society?  What if the means by which civil commitment decisions are made is so arbitrary and capricious that more potentially productive individuals, who would never reoffend, are being committed than truly high risk offenders?

This paper looks at the process of civil commitment in New Jersey, its assumptions and effects, and asks the question, “Is society really being safeguarded, is its money being spent well, and can it justify the high commitment rate now occurring, constitutionally and morally?”  Its conclusion, that the process is drastically flawed, is offered not as an end in-and-of itself, but as the foundation for a set of recommendations to make the system fairer, safer and ultimately in society’s best interests.

It can hardly be contested that some sex offenders are so unable to control their behavior as to create an imminent risk of harming another person.  The state is as justified in incapacitating that person as it is in incapacitating a paranoid schizophrenic who is likely to harm another person if released from a psychiatric hospital.  But, while paranoid schizophrenia is well understood, easily defined and relatively easily diagnosed, the dynamics of sex offending are poorly delineated.  Accurate diagnosis and prediction is consequently very difficult.  The vague nature of diagnosis of sexually violent predators has made it an effective tool of the state to commit virtually anyone it wishes, in the name of public safety — including those it apparently did not deem mentally disordered enough, during their prison confinement, to provide any treatment services to.  Too often, it appears, the state only “discovers” the mental disorder by which one may be labeled a sexually violent predator, just in time to stop the inmate’s release.

The problem then becomes distinguishing the high-risk sex offender from the more typical, low-risk sex offender.  In New Jersey, at least, the state has made virtually no effort to make this distinction on any rational or scientific basis, resulting in perhaps the highest commitment rate in the country by a factor of 3 or more.  The result is the wholesale violation of the rights of a segment of society few feel any pity or sympathy for, a lack of sentiment that should raise red flags of concern at the potential miscarriage of justice and misuse of state power.

Sex Offender Recidivism Rates


The premise of sexually violent predator acts that were enacted in over a dozen states during the 1990s was that sex offenders, compared to non-sex offenders, were significantly more likely to reoffend when released from prison back into the community.  Propelled through legislative committees by chilling headlines of young children abducted, molested and murdered, sometimes by individuals with criminal histories of sexual offenses, these laws were legitimized and justified with seemingly authoritative references to statistics indicating that up to 80% of all released sex offenders reoffend, a statistic that has proven quite elusive to track down.

The actual scientific literature on recidivism of sex offenders paints a quite different picture, if analyzed cautiously and critically.  The most comprehensive review of the recidivism research over the last half-century was conducted by Hanson and Bussière1.  These researchers examined 61 research studies from across the world (although over two-thirds of the studies were conducted in the US and Canada) that included 23,393 sex offenders.  Commenting on the range of recidivism rates from that sample (which included a number of studies restricted to high risk sex offenders), Hanson and Bussière note “... even in studies with thorough records searches and long follow-up periods (15-20 years), the recidivism rates almost never exceeded 40%.” (p. 357).  So why is a reliable recidivism rate so difficult to come by?

Recidivism Rate Assumptions and Operational Definitions

The question plaguing prediction of sex reoffending behavior relates to the true recidivism rate and whether that rate varies in some predictable fashion among subclasses of sex offenders such that high-risk offenders can be identified.  Before answering that question, what is meant by recidivism must first be understood.  While most individuals might assume that recidivism means committing a new sex offense, many of the studies of sex offenders have utilized a much broader definition.  For example, general recidivism of released offenders may include technical violations of standard parole conditions (failing to report a change of address, leaving the state without permission, failing to register as a sex offender with local authorities within prescribed timeframes, substance use), violations of terms of community supervision (such as an offender frequenting high risk areas like playgrounds or arcades, or keeping pornography in the home), re-arrest and/or reconviction for non-sex related offenses (most commonly drug use), and re-arrest and/or reconviction for a sex related offense.

To illustrate, the State of Ohio recently published a 10-year follow-up study on sex offenders released in 19892.  While the overall recidivism rate of sex offenders over the 10-year period was 34%, that number includes the 14.3% of offenders who committed a new non-sexual offense, and the 8.7% who technically violated their supervision requirements in a manner unrelated to their sex offending behavior.  This leaves only an 11% rate of recidivism for sex-related new crimes (8%) and sex-related technical violations of supervision conditions (3%).

Much of the published recidivism data confabulates these different measures of recidivism.  However, for the purpose of supporting a civil commitment statute, the distinctions are important.  The U.S. Supreme Court in two decisions regarding the constitutionality of sexually violent predator (SVP) civil commitment laws3 made clear that the restriction inherent in the SVP laws — that they be applied only to those who are dangerous because they are likely to commit another sex crime — was critical to its constitutionality (along with other factors).  Thus, for the purpose of evaluating whether an individual should be committed under the SVPA, the critical issue is not whether they are likely to commit any type of crime, or likely to technically violate parole or supervision requirements, but whether they are likely to commit a new sex crime.  Consequently, the only true recidivism statistic that is relevant to the question of who to civilly commit, is rate of sexual reoffense4.

Much has also been made of the follow-up periods during which the studies track sex offenders.  With some studies conducting relatively short follow-up periods of 2-3 years, and others looking at reoffense rates over 10 to even 20 years, the rates obtained are obviously going to vary and, inevitably increase, as time goes on.  Thus, in the Ohio study, the recidivism rate for a new sexual offenses or sex-related, technical violations of parole, at the end of three years, was 8.4% but rose to 10% after 7 years, eventually reaching the 11% rate by the 10 year mark.  Most studies appear to use a 5-6 year follow-up period, a time period that appears reasonable in that most studies show that, of those who will reoffend, most will do so within 3 years of release.  Moreover, that period of time would appear to encompass the requirement of most SVP statutes and various court decisions — that the prediction of risk of reoffense must cover the reasonably foreseeable future.

So, what then, is the actual rate of sexual reoffending behavior for released sex offenders for the period of 5-6 years post-release, and are differences apparent for subtypes of sex offenders, and how do those rates compare with recidivism rates of the general population of prisoners released back into society?

Recidivism Rates of Sex Offenders

The most comprehensive review of recidivism studies ever conducted (Hanson and Bussière, 1998), found that the general rate of sex offense recidivism among all sex offenders, based on a 4-5 year follow-up, was 13.4% (based on a sample of 23,393 released offenders).  Rapists reoffended at higher rates (18.9%) than child molesters (12.7%).  Though the authors cautioned that the rates obtained were likely underestimates since not all sexual offenses are reported to authorities — a caution found in nearly all recidivism studies — the results obtained in these studies are, nevertheless, relevant for two reasons, inasmuch as the purpose of this analysis, and that required by the US Supreme Court in Hendricks, is to consider the relative risk posed by sex offenders compared to other released offenders.

First, recidivism studies of non-sexual offenders suffer from the same problem of underreporting of criminal behavior.  There is no evidence to suggest that underreporting of sexual crimes is any greater or less than that of burglaries, drug offenses, or other violent crimes (drug offenses are particularly susceptible to underreporting while many violent crimes might be reported, but the perpetrator never identified).  So, if both rates are assumed to be underestimates, the rate of sex crime reoffending to non-sex crime reoffending can still be considered.

Second, the rates of sex offenders committing new, non-sex related offenses is typically lower than the rate for non-sex offenders committing similar crimes.  This suggests that overall; the criminal behavior of sex offenders who have been released into the community is lower than that of the general population of criminals released into society.

Rates comparable to that reported by Hanson and Bussière (1998) have been reported in other meta-analytic studies using different methodologies, including some completed since the Hanson and Bussière review.5

In 1992, The New Jersey Department of Corrections published a follow-up study of outcomes on prisoners released from state institutions in 1984.  Using a three-year follow-up period, 62% of all offenders released from prison were rearrested, with an average of 2.6 arrests per offender, compared to just 8% of the released sex offenders committing a new sex crime once released into the community.  Subsequently, New Jersey published the results of a new recidivism study in which it found sex offenders released from ADTC between 1994 and 1997 were rearrested for a new sex crime at a rate of less than 7% (compared to a 53% rearrest rate for new offenses in the general NJ prison population).  Finally, data collected since 1967 at ADTC6 and compiled by the Education Department and Legal Subcommittee of ADTC Inmate Resident Committee identified the recidivism rates for varied periods that yielded an overall rate of 8.9% over a 33 year period, a rate comparable to the 8% rate reported in the 1992 DOC study and the more recent 6.7% rate from 1994-97 study (See Figure 1).

ADTC Recidivism Rates

Year1 Released Reoffended2 %
1967 +3 2272 202 8.9%
1980 +3 2023 176 8.7%
1985 +3 1872 141 7.5%
1990 +3 1550 104 6.7%
1995 +3 990 67 6.8%
1994-97+4 507 34 6.7%

Figure 1

1 Cumulative Rate of ADTC Inmates Released since this date.

2 Includes only those offenders released from ADTC who returned to ADTC, including those returned for technical parole violations.  Does not include those who may have reoffended but were either sentenced to state prison or served their sentence in County Jail.

3 Inmate Legal Subcommittee Collected Statistics

4 NJ DOC Statistics of rearrests for a new sex crime after release

The fact that recidivism rates for sex offenders fall in the single digits to mid-teens and is lower than that of most other released offenders, does not diminish the severity and tragic consequences emanating from even one instance of reoffending behavior.  And, as noted above, as all recidivism studies suffer from the problem of underreporting or inability to identify a perpetrator, the reported rates are, no doubt, underestimates.  Nevertheless, the published data cannot be used to support the view that sex offenders are disproportionately more likely to reoffend than other ex-convicts.  Nevertheless, as Hanson and Bussière note, while recidivism rates rarely exceeded 40%, some studies did obtain higher rates using high risk populations.  The question becomes then, how big is that high risk population and are they distinguishable from the lower risk sex offender.

Definitions of High Risk and High Risk Offender Incidence Rates

The United States Supreme Court limited who may be eligible for civil commitment under Sexually Violent Predator laws in Kansas v. Crane, to those who display a serious difficulty controlling their sexually violent behavior.  The New Jersey Supreme Court adopted the Crane decision in In re the Commitment of W.Z., 173 N.J. 109 (2002), and interpreted Crane as requiring, in the context of the New Jersey Sexually Violent Predator Act (SVPA), the state to prove, by clear and convincing evidence, that a sex offender was highly likely to reoffend, explicitly rejecting a more-likely-than-not standard.  In a related case, In re the Commitment of R.S., 173 N.J. 134 (2002) the Court further endorsed actuarial scales (see Appendix A for discussion of the MnSOST-R and actuarial scales) as the most reliable means of predicting recidivism, surpassing the predictive reliability of clinical judgments which the court found riddled with reliability problems.  Of the many scales available, it is undisputed that the results obtained from the MnSOST-R are the most reliable, and are the most valid predictors of recidivism for most types of sex offenders.  Notwithstanding those strengths, the difficulty predicting who will reoffend on a case-by-case basis, is highlighted by the fact that even the MnSOST-R is able to account for only a little over 20% of the variables that predict recidivism — 80% of the factors that cause reoffending thereby being unknown (the MnSOST-R’s predictive validity is relative low, in psychometric terms, with a correlation coefficient or r of .45 — See Appendix A for a description of the meaning of this statistic).

By the criteria set forth in W.Z. and R.S., commitment decisions will turn largely on MnSOST-R performance, except for cases of incest — the MnSOST-R norm sample did not include incest offenders, so their reoffense risk cannot be reliably assessed using the MnSOST-R.

The authors of the MnSOST-R approached predictions of risk from a statistical perspective (e.g., “How many people with a score of X reoffended in the 6 year follow-up period?”)  Not surprisingly, higher scores correlated positively with higher risk of reoffense.  The authors found a sharp increase in recidivism (and a plateau thereafter) with those who obtained an MnSOST-R score of 13 or higher.  The recidivism rate for this group was 88% or higher and captured 15% of those who would ultimately reoffend or about 6% of all released sex offenders.

At that score, one can expect, according to the MnSOST-R, a 12% false positive rate; that is, 12% of those committed would not have reoffended if they had been released back into society.  As one lowers the score used from 13, more offenders who would have reoffended will be committed.  However, inevitably, so too will the number of false positives — the erroneous commitment of individuals who will not reoffend — also rise proportionately.

In justifying the use of a cutoff score of 13 for commitment decisions, the authors sum up nicely the arguments for setting a high cutoff score.

… when making decisions about referral for commitment decisions, one wants to be very confident that the referred offenders are highly likely to reoffend because of the great cost of false positive classifications to both offenders and to society.  Incorrect referrals for commitment unnecessarily and inappropriately deny personal liberty to offenders who have discharged their sentences, create enormous expenses for society; and may contribute to an erosion of constitutionally guaranteed rights.  As a consequence, relatively high cut scores should be used in making such decisions to reduce the risk of false positive classification.  Given that states cannot commit a high proportion of sex offenders (to the best of our knowledge, not [sic] state commits more than 15% [the cited publication predates the full implementation of the SVPA statute in New Jersey]), the lower sensitivity associated with higher cut scores is not currently an issue.  Decision-makers only need to be able to identify a small percentage of high risk sex offenders with a high degree of certainty.  A cut score of 13 on the MnSOST-R could greatly aid such decisions.  Although only 16% of all sexual recidivists scored at or above this score, 88% of all sex offenders classified as high risk with this score did in fact reoffend.7

As the comparison of SVP laws in various states summarized in Appendix B shows, nationwide states are committing about 16% of those scheduled to be released, a percentage lower than New Jersey, even while higher that the MnSOST-R recommends.

Based, then, on the recommendation of the authors of the most reliable actuarial scale available today, and the practice of other states employing SVP statutes, a commitment rate between 5% and 10% would appear to define the approximate size of the population of released sex offenders who should be committed.  Thus, one might define high risk as that 5-10% of the population of released sex offenders for whom the likelihood of reoffending is better than 85%; a definition certainly consistent with the New Jersey Supreme Court requirement of a finding of highly likely to reoffend.8

Recidivism v. Commitment – Irreconcilable Differences

As noted earlier, recidivism rates for sex offenders committing new sex crimes subsequent to their release fall generally in the 8-20% range, given a follow-up period of about 4-5 years.  These statistics are particularly important since they correspond closely with the statutory guidelines for who should be committed as interpreted by various state and federal courts; specifically, that the person have a mental abnormality that creates a serious difficulty in the person’s ability to control his or her sexually violent behavior in the reasonably foreseeable future.  The 4-5 year time period sufficiently covers what any reasonable jurist would consider to be the “reasonably foreseeable future.”  By limiting recidivism rates to only sex crimes (rather than including non-sex related violations of parole or supervision conditions and non-sex crimes), the rates cover the type of behavior civil commitment statutes are designed to prevent.

Knowledge of the actual rates of recidivism creates two problems for proponents of SVPA laws.  First, the U.S. Supreme Court in Kansas v. Crane expressed concern about the fine line between the use of civil commitment to protect society from those who cannot control their sexually violent behavior and to treat such offenders, and the use of civil commitment as a “mechanism for retribution or general deterrence.”  In an attempt to brighten that line, the Court requires that the sexual predator who is the target of these laws must be distinguished from the general criminal population.

It is enough to say that there must be proof of serious difficulty in controlling behavior.  And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. [Kansas v. Crane, 122 U.S. ___, 122 S.Ct. at 870, 151 L.Ed.2d at 862]

With the recidivism rate of sex offenders ranging well below that of the general criminal population, it is apparent that that distinction may be more difficult to make than previously thought.  Moreover, it is not enough to simply differentiate sex offenders on measures of psychopathology, as Simon9 has estimated that between 40% and 60% of incarcerated criminals meet the DSM-IV-R criteria for antisocial personality disorder.  Since sex offenders reoffend at rates lower than the general prison population and even the most troubled sex offenders may be psychiatrically indistinguishable from their non-offender criminal counterpart, the task of isolating that subgroup of sex offenders who is sufficiently distinguishable from the rest of the criminal population, is riddled with constitutional booby traps.

The second consequence of this knowledge of actual recidivism is the inability to turn a blind eye on the fundamental irrationality of the current commitment procedures in New Jersey, procedures that must be evaluated in light of their results — that is, a commitment rate of 35% out of ADTC.10  Although statutorily, such individuals were only to be held for 20 days before a full hearing on their dangerousness and possible commitment was to be held, the vast majority of such individuals languished for months at Kearny before having their hearing held, and a very rare few were actually released by the hearing judge, who almost inevitably follows the recommendation of the staff of Kearney.

Thus, in the finally analysis, employing the false positive rate predicted by the MnSOST-R (using a cut score of 811) at least 57% of the inmates from ADTC who were committed12, should have been released to the community.  The absurdity of these numbers becomes apparent when one considers the recidivism rates.  If the SVPA is only supposed to confine those who are highly likely to commit another sex offense in the reasonably foreseeable future because of a serious difficulty controlling their sexually violent behavior, it is difficult to justify committing 35% of released offenders when 50 years of research suggests that only 10-20% will actually reoffend.  In fact, knowing that only 10-20% will reoffend, and given the poor predictive validity of the most sophisticated actuarial scales (endorsed in the SVPA commitment process by the NJ Supreme Court in IMO Commitment of R.S.), only a small portion of that 10-20% can be reasonably identified ahead of time with accuracy, which, of course, was the goal of the MnSOST-R as described earlier.

It is hard to escape the conclusion that a system unable to distinguish those at high risk for reoffense from those likely to never reoffend, a system that, in an attempt to capture those highly likely to reoffend, seeks to commit 2-4 times as many individuals as are likely to reoffend at all, is inherently arbitrary and capricious, especially when the false positive rates for the MnSOST-R are adjusted for a more realistic reoffense rate and one learns that for every 3 sex offenders correctly committed, 4 false positive commitments will have occurred (see Appendix A, Figure 1).

Notwithstanding the costs of confining large numbers of individuals who simply will not reoffend, is the violation of the fundamental principles of the U.S. Constitution, the concepts of fundamental fairness, and a belief inherent in the precepts governing American Jurisprudence, that once you have paid your debt to society, society can ask no more of you.

Faults and Flaws

The high rate of commitment in New Jersey, one substantially higher than can be justified by actual expected rates of recidivism, can be attributed in large part to a number of flaws in the screening and evaluation process by which candidates for civil commitment are considered.  As detailed in Appendix C, New Jersey’s SVPA statute requires the certification of two physicians (only one of whom must be a psychiatrist — in some cases, an osteopath has signed certificates for the state), presented to a judge who, on the basis of those certificates and on a petition from the Attorney General’s office, can order the temporary commitment of a soon to be released sex offender.  The temporary commitment hearing is essentially equivalent to a probable cause hearing, except with fewer safeguards.  The sex offender is not present, but more significantly neither is he represented by counsel.  The hearing is not open to the public, testimony is not received, and the sex offender has no opportunity to challenge the clinical certificates.  Not surprisingly, the state is virtually guaranteed success at these hearings.  The sex offender is then supposed to be confined at the STU for no more than a 20 day evaluation period.  But with most sex offenders reliant upon the public defender’s office for representation, and given the absolute need for an expert evaluation of the sex offender by a defense expert, the stay at Kearny almost inevitably exceeds 20 days, not infrequently lasting upwards of 6 months, before they are scheduled for a commitment hearing.

The problem for the sex offender is that once he is placed at the STU, the state experts almost never make a finding that the sex offender is not a high risk offender.  Inasmuch as the vast majority of commitment hearings result in a judicial determination in favor of the state, once an individual is screened and two clinical certificates are presented at the temporary commitment hearing, the fate of the sex offender is largely sealed.  Thus, the screening process is pivotal to a determination of need for civil commitment — indeed, is the critical juncture in the process — yet is the phase at which the fewest procedural safeguards exist.  Although designed to cast a wide net so as to capture a large pool of potential recidivists from which a comprehensive evaluation at the STU would winnow out the low risk offender who can be released, the reality is that anyone caught in the screening net has little chance of avoiding commitment.

What flaws, then, in the screening process, contribute to this state of affairs?  Several can be identified.

A.  The Use of Unqualified Screeners

The initial determination of who should be screened by state psychiatrists is left to the ADTC Inmate Release Committee (IRC).  The composition of the IRC varies but typically includes, as decision makers, administrators from the institution, members of custody staff (corrections officers), staff from the Department of Social Services (not Treatment Services), other middle level administrative assistants and support staff, and sometimes a representative from treatment staff (but not necessarily, and in fact infrequently, the inmate’s case manager).

As noted in the next subsection, no guidelines, rules, regulations or standards governing the process of qualifying and selecting IRC members, have been promulgated and published by the Department of Corrections in violation of the Administrative Procedures Act (N.J.S.A. 52B:14B-1 et seq).  The absence of such guidelines substantially increases the risk that unqualified individuals are making critical screening decisions, thus rendering the screening process arbitrary and capricious.

B.   The Absence of Standards and Guidelines to Govern the Screening Process

The Administrative Procedures Act (APA) requires state agencies to promulgate, in accordance with state rule making procedures, guidelines, rules and standards by which state law will be implemented.  The NJ SVPA includes no provision for a screening process by a committee of DOC officials.  Yet such committees exist and make the critical initial decision that may ultimately lead to commitment.  No standards exist to establish the qualifications for those who will sit on the committee, who selects the members, or what, if any, training they receive to enable them to evaluate the psychiatric status and future potential risk of reoffense, of soon to be released offenders.  No criteria or standards exist to guide the decision making process, or to provide the factors upon which screening decisions should be based.  No guidelines exist to establish a quorum for the committee or how many “votes” are required to seek a psychiatric evaluation.  Ultimately, the use of unqualified, untrained, unlicensed individuals to review and evaluate inmate histories, including psychotherapeutic treatment reports, for the purpose of deciding who should be psychiatrically screened for commitment, renders the process fundamentally unfair.

CReduction in the MnSOST-R Cutoff Score for Commitment Recommendations from 13 to 8

Actuarial scales weigh heavily in the decision-making process the state psychiatrists use in determining who they recommend for temporary commitment.  In particular, given its higher reliability, the MnSOST-R is a favorite tool of the clinicians for all but incest offenders, especially in light of its recent endorsement by the State Supreme Court.  However, the state psychiatrists and IRC have chosen to use the MnSOST-R in a most unreliable manner, and against the recommended uses and purposes of it authors.  Rather than basing commitment decisions on obtained scores of 13 or higher, as recommended by Epperson, et al, screeners employ a lower cut score of 8, resulting in a substantially higher rate of inmates being subject to commitment (22% using a cut score of 8, compared to 6% using the cut score of 13 on the original MnSOST-R sample).  This near quadrupling of inmates considered for commitment increases the risk of a false positive from 12% to 30% (a 250% increase), while picking upon only 28% more true recidivists.13  No empirical support was provided to justify this deviation from the MnSOST-R recommended cut scores.  This deviation was made without considering the impact of differences in the ADTC population and the MnSOST-R sample, or ADTC’s lower recidivism rate (compared to the MnSOST-R sample), on the reliability and validity of the lower score.  The lack of documentation as to the effect of a lowered score on reliability and validity, renders any decision under that lower score unreliable, arbitrary and capricious.  Arguably, the sole purpose for lowering the score was to arbitrarily commit high numbers of sex offenders to the STU at Kearny, which leads to the next flaw in the process.

DBuilt-in Bias and Risk Aversion

In the 1988 Presidential Campaign, the Republican Campaign made much use of the fact that the Democratic administration of the then Governor of Massachusetts, Michael Dukakis, had paroled Willie Horton, a convicted murderer, who then subsequently, committed another murder.  Willie Horton became the poster child for a campaign against those who might be soft on crime.  Similar outrage gripped New Jersey and the rest of the country when Megan Kanka was found to have been raped and murdered by a released sex offender, albeit one who had maxed out his prison sentence.  Previously, a state official could claim impotence in the face of the impending release of a criminal the public might otherwise prefer remain incarcerated when that inmate’s sentence expires.  Now, however, the state has been given a new procedure to keep sex offenders off the street.  It’s not hard to imagine the aversion state officials feel to taking any risk that an offender they could have sought to commit, might take another victim.  Consequently, in the absence of any pressure to avoid committing inmates who will never reoffend, state officials are, predictably, inclined to err on the side of commitment.  When the individuals who must ultimately sign the clinical certificates are employees of a private contractor who has an obvious interest in ensuring contract renewal in subsequent years, the pressure to commit mounts even more.14

There is no attempt to insulate these individuals from either political or economic pressures associated with the decisions they must make.  It becomes even more difficult for any state official to recommend against commitment once the initial screening decision is made.  Imagine being the psychiatrist at Kearny who recommended against commitment (contrary to the two psychiatrists who signed the clinical certificates a couple of months earlier stating their opinion the offender was a sexually violent predator), who must now defend his decision, when the released inmate commits another crime.  The conservatism of the psychiatrists is not subject to correction by the judicial system as a judge would be just as reluctant to risk releasing an inmate who might subsequently reoffend, in the face of a negative psychiatric report.  The truth is, no one wants their name associated with release papers on the next sex offender who rapes and kills a child.  While that is understandable, the unintended result is the incapacitation of scores of sex offenders who have served their sentences, completed their treatment and who are ready to reintegrate successfully into society, without further manifestation of sexual deviancy.

E.  If At First You Don’t Succeed, Try, Try Again

The pressure against releasing sex offenders becomes evident in two abuses of the system regularly employed by the state and state evaluators.  The state must present two clinical certificates finding a sex offender to be a sexually violent predator to a judge in order to temporarily commit the offender pending a full commitment hearing.  So one would think that if the first psychiatrist screening the individual signs the clinical certificate but the second psychiatrist, also directly or indirectly, an employee of the state, declines to sign the certificate, concluding the inmate is not a sexually violent predator, that the process stops there.  After all, the state failed to obtain two clinical certificates.  Such an assumption underestimates the resolve of the state to commit individuals whenever possible, for while the statute requires two clinical certificates, it doesn’t specify a limit to how many attempts the state may make to get those two clinical certificates.  Failing to get the second certificate the first time, the state can, and regularly does, shop around to get a second clinical certificate signed, usually with success on the third try.

Equally disturbing is the manner in which actuarial scales are used to support a finding in favor of commitment.  While the MnSOST-R is the most objectively reliable of the actuarial scales available, it is not the only such scale.  The state also uses the Static 99, RRASOR and the Registrant Risk Assessment Scale (RRAS).  If the offender doesn’t reach the cut score of 8 on the MnSOST-R, the State will look at an offenders scores on these other scales to try and find one that yields a sufficiently high score to support a commitment recommendation.

The problems inherent in this approach are legion and patently obvious to any professional trained in psychometrics, as one would hope the state psychiatrists are.  The RRAS has never been subjected to any empirical validation, thus it has no known reliability or validity.  The Static 99 and RRASOR both have lower reliability and lower predictive validity than the MnSOST-R.  Frequently, state experts will argue that they obtained scores on multiple measures and then clinically evaluated the varied scores to determine if the sex offender is committable (see description of the use of these scales in the Appellate Court decision in R.S.).  The assumption of this approach is that if multiple measures yield similar results, one can assume increased confidence in the results obtained.  However, a fundamental principle of psychometrics is that when employing multiple measures of the same attribute with differing rates of reliability, the resulting reliability of the combined measures is never additive (one cannot raise the reliability of one measure with low reliability by adding another measure of low reliability).  Thus, when combining measures, the reliability of the overall decision-making process can never rise above the reliability of the best performing measure in the process.  So if a person scores below an 8 on the MnSOST-R but above the cut-off score on the Static 99, RRASOR and RRAS, one cannot determine that the person is committable with any more confidence than one can ascribe to the strongest of the remaining scales (which, of course, is less reliable and valid than the MnSOST-R which already rejected the offender as high risk).  In other words, the information from the Static 99, RRASOR and the RRAS scales add nothing to the reliability of the decision-making process.15  Notwithstanding this first year graduate school statistics level course information, screeners are not averse to recommending commitment for an inmate who’s MnSOST-R score is well below the cutoff but who’s Static 99 score is right at the cutoff score (the scoring range on the Static 99 is quite small (0-7), compared to the MnSOST-R range (–14 to 31), making the types of distinctions required even more difficult with the Static 99).

FAbsence of Procedural Safeguards

Because the screening process is, in legal terms, not a critical juncture in the commitment process (the final commitment hearing is considered the critical point at which constitutionally required procedural safeguard of due process must be in place), currently no procedural safeguards are provided to inmates.  But, as noted above, the determination of the screening process is highly predictive, if not causally related to the ultimate commitment decision.16  Moreover, much of the material used at the final commitment hearing is collected during the screening process and may bias subsequent evaluators.  This is especially true of the screening interviews conducted by state evaluators of inmates recommended for screening.  The state has consistently refused to permit audio or video recording of these interviews, to ensure the accuracy of the information obtained.  Frequently, days or weeks may go by before a screener commits the results of his interview to a report.  Details of the interview may be lost, statements misconstrued, or notes misread, leading to factually incorrect determinations.17  Given the political pressures noted before, there is even risk of deliberate falsification.18  The refusal to preserve a contemporaneous record of these interviews compromises an inmate’s ability to challenge the conclusions of the state psychiatrists and raises the specter of state collusion in the violation of inmate rights.

G.  Lack of Alternatives to STU

Not surprisingly, many inmates, subsequent to committing their offenses, lose the support of friends and family.  Upon release, they may have no stable environment to return to.  Stress associated with lack of stability, lack of employment, poor living conditions, etc. may correlate with heightened risk of reoffending.  Thus, state evaluators and IRCs are sometimes confronted with individuals who are marginal risks, but for whom no good placement options exist upon release.  So the inmate is recommended for commitment.  Others may have served relatively short sentences and, given limits on therapy available at ADTC, may not have had a sufficient opportunity to complete treatment.  While such an individual may not statistically be likely to reoffend, staff may feel the individual needs to complete treatment that cannot be adequately provided in the community.  Again, the only recourse currently available is commitment to the STU.

The lack of STU alternatives is also creating a problem as the STU at Kearny fills up.  In actuality, the rates of commitment to the STU may be dropping in recent months as the institution approaches capacity and few residents are being discharged.  The absence of less restrictive environment options for moving residents out of STU and gradually reintegrating them into their communities, may be resulting in longer periods of incapacitation at the STU than necessary.  Moreover, the lack of alternative settings may limit opportunities to gradually reintroduce individuals who may have spent decades in institutional settings, back into independent living situations.

Costs of Commitment

With New Jersey currently committing sex offenders about to be released from prison at a rate substantially higher than the recidivism rate, costs associated with the care and treatment of these false positive offenders is an appropriate area of concern.  With costs for commitment of sex offenders in New Jersey estimated at $85,000 per person19 (national commitment costs range from $70K to $110K, see Appendix B for comparison), the cost effectiveness of housing large numbers of offenders who would not reoffend if released, is hard to justify, especially in light of the alternatives (discussed below).  However, the costs are more than financial.  The cost for security, food, housing, capital construction and building maintenance and the like, are pretty much inescapable fixed costs.  Treatment programs, however, are more likely to be driven by budget considerations than optimal treatment planning.  As the number of residents increases, the therapist-resident relationship will inevitably go up as the state can neither afford, nor likely even find sufficiently qualified, experienced and trained therapists to provide the highly specialized sex offender treatment required by the SVPA.  Consequently, a diffusion of effort at providing sex offender treatment will be spread across a diverse body of residents, most of whom would not require inpatient treatment to prevent relapse.  Consequently, scarce therapeutic resources are denied to that subgroup, the population of residents who are at the highest risk for reoffense, who most need the intensive, specialized treatment.  The failure to provide such therapy to these high-risk individuals further prolongs their commitment, further exhausting the fixed costs of housing them.  Finally, the state is also committed to absorb the legal costs, not only of the state, but given their usual indigency status, of the inmates defending against commitment.  This includes the cost of representation by the Public Defender's Office (which is currently employing four attorneys to represent the over 200 inmates at STU), the costs of expert evaluations, private investigations, as needed, as well as the costs associated with the annual reviews of over 200 committees, and any appeals from commitment orders.


The following recommendations are intended to increase the reliability and validity of the civil commitment process in New Jersey to ensure that only truly dangerous sex offenders, that 6-10% group that are highly likely to reoffend, are committed for additional treatment, while the constitutional rights of the remaining 90-95% are protected.  To that end the following safeguards are proposed.

A.  Adoption of Guidelines/Standards/Rules/Regulations Governing the Screening Process

The New Jersey Department of Corrections should adopt, as per the Administrative Procedures Act, rules, regulations, guidelines and standards to govern the process of screening inmates for referral for psychiatric evaluation and for the psychiatric evaluation itself.  That rule adoption process should occur with public and professional input and include, at the least, a specification of the qualifications for those who will serve as screeners and evaluators, the criteria against which inmates are to be evaluated to determine the need for further screening, procedures for the conduct of a psychiatric evaluation including due process procedural safeguards, a procedure by which evaluation of the screening process can be implemented, and a process by which inmates might challenge the screening determination prior to the final commitment hearing.

B.  Specialized Training in Sex Offender Dynamics and Treatment for Screeners and Evaluators

Staff who are charged with the responsibility of making initial determinations of which soon-to-be-released inmates should be psychiatrically screened, must be qualified and trained in how to make those determinations.  It defies common sense that inmates would be treated by professional staff trained in sexual offender dynamics and treatment, yet have the effectiveness of that treatment evaluated by those with no knowledge, experience or training in psychology, let alone specialization in sex offender issues.

C.  Independent Doctor Evaluations

To minimize the political influence of the Attorney General’s office and County Prosecutors, and the risk aversion inherent in evaluations conducted by those who are financially dependant upon agencies with a vested interest in the outcome of those evaluations, a panel of independent psychiatrists should be appointed to conduct the psychiatric screenings.  The members of the panel could be recommended by the New Jersey Board of Medical Examiners (NJBME) for fixed terms.  Training in sex offender evaluation for reoffense risk assessment would be mandatory for members of the panel, and criteria established for evaluation of panel member’s performance.  Renewal of terms on the panel will be dependant upon evaluation of performance by the NJBME based on those criteria.

D.  Mandated Recording of all Evaluations

Inmates should be provided, at no cost, with the opportunity to have all evaluations conducted by state psychiatrists audio or video taped, with a copy provided to their attorney on request.  The recordings may be admissible as evidence in any subsequent commitment hearing that might ensue.  Such recordings would both protect the rights of the inmate by ensuring the accuracy of evaluations conducted as well as protect the state against frivolous claims of misrepresentation or distortion in reports.

E.  Jury Trials / Standard of Proof / Due Process Protections

As the comparison of state SVP laws in Appendix B indicates, 9 of 12 states with commitment laws, guarantee the sex offender a right to a jury trial on the issue of civil commitment.  First, jury trials eliminate the political pressure judges necessarily feel to commit sex offenders.  As juries are made up of anonymous members of the community, the risk of politically motivated commitment decisions is greatly lessened.  Furthermore, the ultimate issue in a civil commitment case is the weighing and balancing of the rights of the individual against the rights and safety of society.  Who better to engage in that balancing determination than the community — than the members of that society — themselves?  Experience from other states indicates that juries are quite capable of judging this balance, and do so fairly.  Contrary to fears initially expressed when civil commitment laws were first passed, juries are not automatically inclined to civilly commit sex offenders, but exercise their duty with great deliberation.

One of the arguments against jury trials, and in support of bench trials, is that by assigning certain judges to these cases, they become familiar with the issues involved in these specialized cases, thus making the commitment process more efficient and less time-consuming.  Leaving aside the question of whether it is ever appropriate to consider efficiency and time consumption against constitutional safeguards, there are jury mechanisms that can accomplish the same purpose.  For example, rather than the petit jury structure associated with criminal trials, a grand jury structure could be created whereby a group of citizens are sworn to civil commitment jury duty for a period of perhaps 3 months, during which time they would convene once a week to hear civil commitment cases.  They would receive training in the legal standards to be applied, as well as the scientific evidence that is typically employed in such hearings by a panel of experts selected jointly by the Trial Lawyer’s Association or Public Defender's Office and the Attorney General’s office (to ensure a balanced training).  Thus, pre-qualified, they would be in an excellent position to fairly weigh the competing claims of the state and the person it is seeking to commit.

Moreover, since the decision to civilly commit an individual can result in a confinement for a period of time in excess of their original criminal penalty, including possible lifetime confinement, the liberty interests are as great, if not greater, than in a criminal prosecution.  The inherent unreliability of psychological/psychiatric diagnosis and prediction, coupled with the actual, relatively low rates of recidivism, demand the highest standards of proof.  This has, again, been recognized by a majority of states, as 8 of 12 require a finding that the state prove that a person meets the criteria for a SVP beyond a reasonable doubt, the same standard applied in criminal prosecutions.  The heightened standard is especially important given that in a criminal prosecution, the beyond a reasonable doubt standard is applied to proofs of a crime that is alleged to have occurred.  Commitment decisions are made in the absence of any crime, meaning the quality of evidence in support of a finding is quite poor.

Finally, counsel should be appointed upon referral of an inmate to the Attorney General's office instead of after the probable cause hearing.  The person facing temporary commitment should have the right to present witnesses and have an attorney present to advance his interests at this critical juncture, including the presentation of expert reports in opposition to commitment.

F.  Establishment of Cut Scores that are Statistically Sound and Empirically Defensible

In the absence of an empirically documented justification for the use of the cut score of 8, the research recommended cut score of 13 should be restored as the standard for considering an inmate for possible commitment.  Procedures for the selection, administration and interpretation of actuarial scales should be established in accordance with the Administrative Procedures Act, that are grounded in the principles of science, and current scientific research, and that are consistent with the legal requirements for the admissibility of expert testimony in New Jersey Courts.

GLRE Recommendations

Given the high costs associated with confinement of sex offenders in civil commitment centers after they have served their term of incarceration (estimated at $85,000 per annum), the question can be asked if there are less costly approaches that are demanded either by fiscal responsibility or legal precedent.

Currently, in New Jersey, there are no alternatives to civil commitment to the Special Treatment Unit at Kearney, once a judge has identified an individual as a sexually violent predator.  Consequently, Kearny currently houses a wide range of offenders from docile individuals, who have spent years in therapy at ADTC, to extremely violent, and highly antisocial personality types from regular state prisons who may have received no therapy at all during their incarceration.  However, in New Jersey, the SVPA statute precludes any other option other than commitment at Kearny.20

The U.S. Supreme Court in the Hendricks decision observed that alternatives to total confinement as the sole treatment option was one of the factors to consider in determining if the sexually violent predator civil commitment scheme of a particular state was constitutional.  Given that caution by the high court, the failure of the SVPA to provide for any alternative to the STU may, in fact, threaten that statutory scheme.  Notwithstanding potential constitutional problems, the case for alternatives to confinement at Kearny can be made on practical grounds as well.  Several exist, some could be implemented with little additional cost and others, while requiring an infrastructure not currently in place, have been successfully implemented in other jurisdictions and would be considerably less costly than maintaining a bed at Kearny.

HIP (High Impact Probation)

In the states that currently entertain the concept, High Impact Probation is another means of offering inmates an opportunity to be a viable part of the community while still paying the debt to society that must be considered.  This program allows an inmate to participate and work within the community, while supervised by the Probation Department.  This program also allows the inmate to re-establish ties to the community and pay his own way without being a drain on the community.

The components of the program include random urine screenings that can happen at any time, as well as a curfew that must be adhered to upon threat of immediate arrest.  In most cases, this involves the use of a monitoring device that is attached to the inmate’s ankle and monitors where the inmate is at all times of the day or night.  There are restrictions as to job location, distance from the home, and out-of-County or out-of-State travel.

A probation officer is usually assigned to the inmate and he must meet with this probation officer usually two to three times each week to determine exactly what progress has been accomplished as well as to determine if there are any violations that may have occurred in the home, on the job, or in the community at large.  This program is an alternative to continued or problematic incarceration for offenders, saving the state valuable funds that can be used for other more critical purposes.

Such programs could be implemented in modified form to supervise released offenders still considered to be at risk, so as to ensure successful reintegration into the community.

Depro Provera and SSRI Inhibitors

Serum testosterone levels have been implicated in sex offending behavior, not so much as a cause of sex offending behavior, but as inversely correlated with sexual acting out.  Depro Provera is an injectable drug that reduces serum testosterone levels to pre-pubertal levels in males (little research has been conducted on the effect of these drugs with females).  While research on the use of Depro Provera has often been inconclusive, much of the ambiguity in the research data can be attributed to problems in deciding who are appropriate candidates for the treatment and ancillary services provided during the treatment.

Selective Serotonin Reuptake Inhibitors (SSRIs), long used in the treatment of depression, have the acknowledged side affect of reducing sexual drive, which, while troublesome to someone who is depressed but functions normally sexually, may be exactly the desired effect on some sex offenders with heightened sexual compulsions.  Prozac has been successfully used for this purpose and has won many converts including Dr. Michael Kafka from a Massachusetts treatment program for sex offenders, who has obtained remarkable results with certain subclasses of offenders.21

Whether the drug of choice is Depro Provera or an SSRI, this cautionary comment is critical.  Careful selection of whom to choose as appropriate for a trial of Depro Provera or an SSRI is essential to its success.  For example, research suggests these drugs are less effective curbing the inappropriate sexual activities of rapists, but may be useful with certain groups of pedophiles and ephebophiles (one who is sexually attracted to male or female adolescents).

Second, the treatment must be accompanied by both monitoring of drug use (especially problematic with Depro Provera which involves painful intra-muscular injections) and the provision of supportive psychotherapy to adjust lifestyle patterns that support sexual acting out.  Employment of drug treatments would be optimal in combination with one or more of the other alternatives described here.

GPS (Global Positioning Satellite) Electronic Monitoring

Electronic monitoring of defendants on bail awaiting trial or sentencing is common in many jurisdictions.  Such monitoring can permit the restriction of a person to a fixed distance, for example, limiting them to their home and yard.  GPS devices can similarly monitor an individual’s movement.  Currently available technology can monitor the physical location of an individual within 5 feet at fixed intervals, say every 10 seconds.  Such monitoring has the added advantage of permitting programming that establishes areas in which the person is permitted, thus allowing someone to travel to work assignments, or conversely identify areas that are off bounds (playgrounds, school yards, etc.).  A supervising parole officer can review the travel pattern of the individual and can be automatically alerted when the individual has entered a prohibited zone.

An obvious shortcoming of such devices is that they do not permit monitoring of whom the individual comes into contact with in the permitted areas.  Arguably, a child molester might still find a way to get a child into his home, but community notification and awareness can greatly reduce the likelihood of this.  Obviously any failure in the community to adhere to the restrictions imposed would warrant a review as to whether continued maintenance on the program was appropriate or greater confinement was necessary.

Such devices could also be used for individuals committed to a treatment facility to monitor their movement into the community during periods of reintegration.  For example, though housed at a treatment facility, an individual may be permitted to go to work at a part-time job, or to spend a weekend at a family member’s home.  The GPS system is currently in use in the state of Illinois, under the direction of the Department of Corrections.

SSOSA (Special Sex Offender Sentencing Alternative)

Since 1984, Washington State has provided a community treatment sentence for certain sex offenders convicted for the first time.  This sentencing option, the Special Sex Offender Sentencing Alternative (SSOSA), allows judges to sentence certain sex offenders to community treatment, under supervision by the Department of Corrections.  To be eligible for SSOSA, offenders must meet three conditions: 1) a first time conviction for a felony sex offense; 2) a conviction other than a First or Second Degree Rape; 3) a sentence range, under the guidelines, not exceeding eight years.  SSOSA offenders are typically child molesters who are convicted for the first time.

Offenders receiving SSOSA are subject to crime-related prohibitions, such as restricted contact with minors.  In addition, the Judge may order the offender to spend up to six months in jail.  If the offender does not comply with treatment, or is believed to pose a public safety risk, the judge can revoke the suspended sentence and impose the prison term.

As with the HIP described above, a program such as SSOSA could be modified within the parameters of treatment alternatives for released sex offenders, within the current civil commitment law structure.

Regional Psychiatric Hospitals

There are approximately (23) Statewide treatment centers in New Jersey.  These treatment centers are located in counties from Cape May in southern Jersey to Sussex County in the north.  These treatment centers offer a wide range of services that are designed to give special needs to the particular patient in question.  The Department of Human Services under the Division of Mental Health and Hospitals manages these treatment centers.  Outpatient services could be coordinated within these Centers to provide out-patient treatment to sex offenders within their community.


It has been said that if we can't protect the integrity of the system, there is no system.  While sex offenders understandably elicit little sympathy or concern, the focus must always be on what the state is doing or trying to do, not on who they are doing it to.  Whenever the focus has been on the target of state efforts to suspend the rights and liberties of a particular group, the effort has usually been successful.  This has been true whether the targeted group was slaves, who suffered the indignity of the Dred Scott decision, American Indians who suffered the "benevolent" paternalism of government containment, confinement and suppression, Japanese Americans during World War II, suspect and sequestered simply because of their heritage, Communists, blacklisted, surveilled and even arrested because of their ideology, or today's Arab-Americans, for whom all constitutional protections evaporate upon the simple signing of an executive order declaring them an enemy combatant.

Each time, it has been left to a subsequent generation, separated from the passions of the moment by the passage of time and the clear vision of hindsight, to restore the focus on process, on what the government was trying to do, apart from whom it was targeting.  Each time, it is that subsequent generation that has cried foul and has reestablished bars to the abuse of state power to ensure the supremacy of considerations of process over passions invoked by individuals, groups, or isolated acts of degeneracy or immorality.

Each time, each generation, in the face of a new threat, forsakes this commitment to process, indulges its fears, and abandons its capacity to reason, to impartially and dispassionately weigh the merits of the arguments by which rational responses to each threat could be constructed.  Each time, each generation sacrifices a bit of itself, its dignity and its integrity.

It may be that only when any given generation recognizes first, for itself, the injustice it has wrought, rather than leaving that discovery to its progeny, that we will realize the democratic ideals embodied in our Constitution and made manifest by our actions as a nation and people.  The only real question is, will this be that generation.


1 Hanson, R. K. & Bussière, M. T. (1998). Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies. Journal of Consulting and Clinical Psychology, 66(2), p. 348-362.  [Back]
2 Bureau of Planning and Evaluation. (2001). Ten Year Recidivism Follow-up of 1989 Sex Offender Releases. Ohio: Ohio Department of Rehabilitation and Corrections (available at[Back]
3 Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane, 534 U.S. 407 (2002).  [Back]
4 Even that statistic is somewhat confabulated across studies as some studies count new arrests, while others count convictions, and still others count reincarceration.  [Back]
5 For example, Alexander’s meta-analytic study (Alexander, M. (1994). Sex Offender Treatment: A Response to Furby, et al. 1989 Quasi Meta-Analysis. Paper presented at the American Association for the Treatment of Sexual Abusers Conference, November 11, 1994) found an average recidivism rate for sex offenders of 18.5%, a percentage that drops to 10.9% among treated sex offenders. Moreover, Alexander found an interesting pattern of declining recidivism rates with an average recidivism rate of 8.4% when only studies published since 1980 are considered. Also, the 10-year study from Ohio noted earlier, showed that the recidivism rates for drug offenders (25%) and for violent offenders (30%) were considerably higher than for sex offenders.  [Back]
6 ADTC is the New Jersey Department of Corrections facility designated to treat adjudicated sex offenders who have been found by the courts to be repetitive and compulsive.  [Back]
7  Epperson, D. L., Kaul, J. D., Hesselton, D. (undated). Minnesota Sex Offender Screening Tool — Revised (MnSOST-R): Development, Performance, and Recommended Risk Level Cut Scores. St. Paul, MN: Minnesota Department of Corrections, p. 16-17.  [Back]
8 Actually, a strong argument can be made that even that 5-10% figure is too high.  The MnSOST-R sample, upon which the cut score of 13 and the 88% prediction accuracy rate depend, had an overall recidivism rate of 35%, considerably higher than that found by Hanson and Bussière noted earlier.  However, a higher recidivism rate was sought by Epperson, et al as they selected their norm sample.  To ensure enough recidivists in the sample to make statistical analysis of the 16 factors on the MnSOST-R feasible, as well as powerful enough to distinguish recidivists from non-recidivists, Epperson, et al purposely included a higher proportion of high risk offenders in the sample (Id. p. 6).  Moreover, as preliminary analysis showed the factors predictive of reoffense status to be markedly different for incest offenders, intrafamilial offenders were dropped from the sample.  The exclusion of a subsample of sex offenders who historically have very low reoffense rates (< 10%) has the converse effect of raising the overall recidivism rate for the sample that remains.  This is relevant because the base rate of reoffending affects the relative relationship of false positive to true positive classifications.  As the base rate drops, the rate of false positives increases while the corresponding rate of true positives decline.  With strong evidence that actual recidivism base rates are well below the 35% rate upon which the MnSOST-R cut scores are based (see Hanson and Bussière study, cited in Footnote 1), the false positive rate of 12% is highly likely to be an underestimate of the actual erroneous commitment rate, raising even greater concerns that a substantial majority of the civil committees currently housed at the STU in Kearny, don’t belong there.  See Appendix A for a statistical analysis of the effect of base rates on false positive predication rates.  [Back]
9 Simon, L. M. J. (1997). The myth of sex offender specialization. New England Journal on Criminal and Civil Confinement, 23(2), 387-403 and Simon, L.M.J. (2000). An examination of the assumptions of specialization, mental disorder, and dangerousness in sex offenders. Behavioral Sciences and the Law, 18(2-3), 275-308.  [Back]
10 Commitment rates for other state prisons were unavailable, although better than half of the STU population come from institutions other than ADTC.  It is also reasonable to assume that since such inmates have received no treatment for their sex offending behavior, the commitment rate is likely higher.  This, of course, raises the corollary question of why the state waits until the inmate has served his sentence to begin sex offender treatment, if not to simply extend his period of incapacitation.  [Back]
11 Although other factors affect this process, and some sex offenders with MnSOST-R scores greater than 8 have not been committed while others with scores under 8 have, the assumption here holds true for most, and consequently, the false positive prediction is reasonable, especially in light of the fact that no adjustment has been made for ADTC’s lower base rate of 6-9% recidivism compared to the MnSOST-R’s 35%.  [Back]
12 Sex offenders with scores of 8+ constitute 22% of the MnSOST-R sample.  Seventy percent of that 22% will actually commit another sex offense, based on a recidivism rate of 35%.  Thus, given 100 offenders, 22 can be expected to obtain an 8, of which 70%, or 15, will be accurately identified as committable, while the other 7 (or 30%) would be erroneously committed.  But New Jersey isn’t committing 22 out of 100 inmates, but rather 35 of 100, even while using the cut score of 8.  Thus, 20 of those 100 who are committed in New Jersey (the 35 minus 15) are erroneously being committed ( or 57% of the committed).  [Back]
13 Again, because New Jersey is committing inmates at a rate well in excess of what the MnSOST-R predicts (35% rather than the MnSOST-R’s 22%), the false positive rate will be much higher than the MnSOST-R predicts.  [Back]
14 The treatment staff at ADTC and the psychiatrists who conduct the screenings, are all employees of either Correctional Medical Services (CMS) or Public Safety Concepts (PSC) (with whom CMS has a sub-contractual relationship), under the privatization of medical and mental health services in DOC facilities initiated by Governor Whitman in the mid-1990’s.  [Back]
15 A rough analogy can be drawn to baseball batting averages.  If your team's best hitter is batting .330, and you add to your lineup a .250 hitter, a .233 hitter and a .160 hitter, your team's batting average doesn't rise to .973.  Rather, your team average can never exceed that of your best hitter.  In fact, it is substantially reduced by your weakest hitter.  Similarly in decision making, the reliability of the decision, if based on measures of varied reliability that are all measuring the same thing, is decreased by the measures of lower reliability, not enhanced by their presence.  [Back]
16 An argument can be made that liberty interests attach at the moment a decision to screen an inmate is made since even if he is ultimately not committed to STU, he is still subject to a 20 day to 6 month period of detention beyond his term of incarceration while he is being evaluated.  [Back]
17 Lamb, M., Orbach, Y., Sternberg, K., Hershkowitritz, I., and Horowitz, D. (2000). Accuracy of investigator's verbatim notes of their forensic interviews with alleged child abuse victims. Law and Human Behavior, 24, 699-708; Warren, A. R., & Woodall, C.E. (1999). The reliability of hearsay testimony: How well do interviewers recall their interviews with children? Psychology, Public Policy, and Law, 5, 355-371; Rosenthal, R. (2002). Suggestibility, reliability and the legal process. Developmental Review, 22, 334-369.  [Back]
18 In a case last year, an ADTC resident who had completed all treatment and was explicitly recommended as no longer in need of treatment, was nearing the end of his sentence.  Notwithstanding the staff recommendation he no longer needed treatment, he was screened and 2 of 3 state psychiatrists recommended him for commitment.  The sequence of events, as laid out in an affidavit to the U.S. District Court in N.J. as part of a lawsuit this inmate filed regarding this effort to commit him, attests to the probable intervention by the Attorney General’s office in an effort to get the inmate committed.  The report of one of the psychiatrists attributed statements to the inmate which were highly prejudicial to him, but which he vehemently denied ever making.  Subsequent to filing a suit in federal district court against the state, and apparent intervention on his behalf by staff at ADTC, the recommendation for commitment was ultimately withdrawn and the inmate was released to return home on his scheduled release date.  [Back]
19 Lieb, R. & Matson, S. (Sept. 1998). Sexual Predator Commitment Laws in the United States: 1998 Update. Olympia, Washington: Washington State Institute for Public Policy, p. 11.  [Back]
20  In Re Commitment of S.R., No. A-923-00 (App. Div. February 6, 2000) (unpublished decision) and In Re Commitment of R.W., No. A-1230-00 (App. Div. January 30, 2002) (unpublished opinion).  [Back]
21 Kafka, M. P. (1994). Sertraline pharmacotherapy for paraphilias and paraphilia-related disorders: An open trail. Annals of Clinical Psychiatry, 6, 189-195.  [Back]

Appendix A: Description of the MNSOST-R Scales

Appendix B: Comparative Analysis of SVP Laws — State by State

Components of Definitions of Sexually Violent Predators
Commitment Procedures
Confinement Rates / Release Conditions

Appendix C: Summary of New Jersey's SVPA Law

Definition of Sexually Violent Predator
Initial Screening Determination and Probable Cause Hearing
Commitment Hearing
Annual Review

* Adult Diagnostic & Treatment Center
8 Production Way
Avenel, New Jersey 07001

Authors’ Note: (May, 2003)

As this article was going to publication, additional recidivism data was obtained from the New Jersey Department of Corrections (DOC).  The DOC reported that of the 115 inmates released from A.D.T.C. in 1994, 6% were reconvicted of a new sex offense in the five year period following their release.  Of 123 inmates released from A.D.T.C. in 1995, 6.5% were reconvicted within a five year period.  The three year rearrest rate (as opposed to conviction) for a sex offense for 507 inmates released from A.D.T.C. between 1994 and 1997, was 6.7%.  These recidivism rates compare with a 53% rearrest and 41% reconviction rate for any new criminal offense for all those released from the general prison population for the three year period following their release between 1994 and 1997.

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