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.
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.
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.
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.
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
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.
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
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).
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.
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.
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
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.
G. LRE 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
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.
Appendix A: Description of the MNSOST-R Scales
Appendix B: Comparative Analysis of SVP Laws — State by State
Appendix C: Summary of New Jersey's SVPA Law