Sexually Violent Predator Program Recidivism Study Preliminary Results

1. The following document presents preliminary data concerning recidivism rates of sex offenders civilly committed or reviewed for civil commitment under chapter 394, part V, Florida Statutes, and later released. The document also presents conclusions and interpretations of the preliminary data and purports to apply those conclusions and interpretations to risk assessments conducted by the Sexually Violent Predator Program. No part of this study has been published, submitted for publication, or in any way peer reviewed by qualified clinicians or researchers as to its methodology, conclusions, or interpretations. The conclusions and interpretations expressed in the following document are solely those of Daniel Montaldi, Ph.D., and not the Department of Children and Families, the Sexually Violent Predator Program, or any other Department staff who may be identified with the research as a result of their participation in compiling and processing data or collecting research literature as part of their responsibilities under section 394.931, Florida Statutes. The Department does not consider the statistical data or the conclusions and interpretations presented in this document to provide a basis for guiding clinical judgment in sex offender risk assessments, and expressly rejects any suggestion in this document that this research be applied in such manner.

2. Sexually Violent Predator Program Recidivism Study Preliminary Results Daniel F. Montaldi, Ph.D., Administrator Sandi Lewis, Ph.D., Senior Psychologist Janis Heffron, Ed.D., Senior Psychologist Sexually Violent Predator Program Florida Department of Children and Families

3. Slides 3 – 61 relate to legal/conceptual issues that give background to research data and explain how the SVP Program interpreted the research and became more selective in making recommendation decisions over the past year.

4. Involuntary Civil Commitment of Sexually Violent Predator Act Sexually Violent Predator (statutory definition): • Convicted of at least one sexually violent offense • Suffers from a mental abnormality or personality disorder • The abnormality makes the person likely to engage in sexual violence. • The person is likely if not confined.

5. Kansas v. Crane 2002 U.S. Supreme Court set out the following principles governing sex offender specific civil commitment: Applies to only a “narrow category” of dangerous criminal. Dangerousness alone is not enough. Lots of criminals are dangerously violent. Involuntary hospitalization is only for a relatively small number of persons who are “made” dangerous “beyond control” by virtue of impaired capacity for volitional self-control (“serious difficulty controlling behavior”).* *The Court allows for the possibility of emotional or other impairments qualifying as “serious difficulty” but does not state a definitive opinion on this. This is because the relevant impairment in the cases of Hendricks and Crane was considered to be volitional.

6. Crane and Hendricks • In Crane (2002) the U.S. Supreme Court clarified issues discussed in Kansas v. Hendricks (1997). • The Florida statute (1998) was crafted after Hendricks. • But it is basically consistent with Crane, as will be shown.

7. More Crane SVP eligible persons don’t have to be as impaired as ordinary commitment eligible patients; however, they must possess less capacity for self-restraint than the typical dangerous criminal. It is not enough that someone is simply unwilling to restrain himself, or is motivated to be violent (thoughts, urges). Both are true of any dangerous recidivist. Ordinary criminal volition and refusal to be deterred (by threat of legal sanction) does not distinguish a “narrow” category of dangerous criminal offender.

8. More Crane (2) Lots of criminals are unlikely to be deterred. Only a narrow category of impaired offender are lacking in ability (vs. lacking in willingness) to respond to deterrence incentives. Legally, mental disorder is any mental condition that does not fit the basic assumptions of deterrence logic. Deterrence policy assumes people can, if they choose, appreciate threat of sanction and use this as a reason to resist urges to do what would break the law. Thus, “mental abnormality” in an SVP context is not about attraction to doing harmful acts and the predictable tendency to do what one feels like doing.

9. More Crane (3) • Mental abnormality is about inability to use decision-making and “willpower” to resist attractions and consistently conform one’s behavior to law. • In sum, mental abnormality is about not being about to stop crime (relevant to a narrow group of offenders). • It is not about the attraction and tendency to do crimes (common among offenders).

10. Crane (4) • Taken in isolation, clinical diagnostic criteria for paraphilia and Antisocial Personality Disorder relate to attraction to a kind of criminal act and the tendency to act accordingly. • Clinical criteria for these disorders say nothing about inability or limited ability to resist attraction and not act accordingly (impaired control capacity). • There are clinical parallels for this, however. Criteria for OCD, Substance Dependence, and Pathological Gambling are examples. Multiple criteria for these disorders note symptoms related to impaired capacity for resisting urges and stopping.

11. Compare to Florida statute • Florida statute (394.912) is consistent with Hendricks (1997) and (later) Crane (2002): “Mental abnormality” means a mental condition affecting a person’s emotional or volitional capacity which predisposes the person to commit sexually violent offenses (emphasis added). • A mental condition affecting capacity is one that affects (adversely) a person’s power to control emotions and willful acts (to avoid crime). It does not simply influence emotions and choices (i.e. motivate crime).

12. Florida Statute • If the latter (feeling states, choices) were emphasized then any recidivist or dangerous person would have mental abnormality automatically. • This is because all dangerous recidivists feel inclined toward violence. Otherwise they would not repeat their crimes and they would not be dangerous.

13. Florida Statute (2) • A condition affecting capacity not only disposes the commitment eligible offender to act when an opportunity arises (true of a large number of opportunistic typical sex offenders)… • …it predisposes him ahead of time, such that he is highly prone to look for opportunities. • This is consistent with the emphasis lawmakers place on sexual predation (legislative findings and intent; 394.910). • Such proneness distinguishes a “small but extremely dangerous number” of predators from the average sex offender (394.910).

14. Florida Statute (3) • The connection between mental abnormality and dangerousness is therefore inherent or intrinsic. • The latter is logically implicit in the meaning of the former. • This is seen in the definition of “likely” in Florida statute (394.912):

15. Florida Statute (4) • “Likely to engage in acts of sexual violence” means the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others. • Any predisposition toward violence caused by impaired capacity to contain urges (“serious difficulty” – Crane) necessarily creates a highly dangerous propensity to act on those urges (and to search for victims to act against).

16. Florida Statute (5) • As statutory constructs, whenever “mental abnormality” is established, “likely” is automatically established. • This is because “likely” or “makes likely” (to be more accurate) is a conceptual feature of mental abnormality as a legal construct.

17. Florida Statute (6) • All of this is brought together in the definition of a sexually violent predator: • The SVP commitment eligible offender is someone suffering from a mental abnormality that makes the person likely to engage in acts of sexual violence (if not confined…).

18. Florida Statute (7) • “Makes” is the key term. Mental abnormality “makes” someone likely (dangerous) by virtue of impairing his ability not to be violent. • By definition, mental abnormality is any mental condition “making” unlawful (harmful) behavior likely, i.e. making someone dangerous “beyond control.”

19. Florida Statute (8) • According to the Supreme Court, only persons made likely to harm others may be involuntarily hospitalized to protect the public. • Only they have the requisite “mental abnormality.” • This renders “mental abnormality” the crucial element of SVP commitment eligibility.

20. Florida Statute (9) • In fact the definition of a sexually violent predator is formal statement of the importance of establishing the fact of mental abnormality (with its relevant feature for public safety – making sexual violence likely) to legitimate state action. • Florida’s definitions of “mental abnormality” and “likely” seem consistent with Supreme Court opinions.

21. Legislative Findings & Intent • What kind of offender did Florida lawmakers have in mind when they established the statute (394.910)? • Commitment eligible offenders are described as: • a “small…number” • “extremely dangerous” • “high” likelihood of sexual violence • “repeat acts” are highly likely • “predatory” and violent

22. Legislative Intent and SVP Definition How do legislative findings for purposes of targeting a population with a law relate to the definitions contained in that law? One view is that the definition of a sexually violent predator is a formal statement of criteria the state must establish to take a kind of action affecting a designated population. Legislative findings is where we find description of that population.

23. Legislative Intent (2) • On this view statements made in legislative findings are descriptive. • In contrast, definitions are prescriptive (criterial). They set standards. • So one does not look to the definition of a sexually violent predator (or the separate definitions of mental abnormality or likely) for an empirical description of a kind of sex offender. • On this view statutory definitions are not literal descriptions of clinical or statistical characteristics.

24. Legislative Intent (3) • In other words, on this view, we don’t use the definition of a sexually violent predator as a literal guide for identifying offenders who meet DSM criteria for paraphilia (clinically descriptive) and fall into a high risk actuarial category (statistically descriptive of a sample of offenders approximately similar to the offender).

25. Legislative Intent (3) • Instead, the expert looks for someone who fits the kind of sex offender lawmakers describe in their findings. This is the kind of person they intend the law to apply to. • Clinical and statistical concepts can assist, but they are not exhaustive. • For example, there is no clinical test or diagnosis for sexual predation (i.e. premeditated hunting for victims vs. opportunistic/impulsive offending). • There is no measure of “extreme” dangerousness in an individual case.

26. Legislative Intent (4) • Similarly, no statistical device exists for assessing “high” likelihood of continued “repeat acts” of sexual violence (in contrast to likelihood being equated with the percentage of offenders in a sample having at least one more sex charge/conviction after release). • This is especially true about assessing high likelihood even if the person is placed on supervised release (SVPs in Florida are likely if not confined).

27. Legislative Intent (5) • Finally, no test exists for what constitutes offending of such severity that anyone likely to continue such offending falls within a small but extremely dangerous number of exceptional sex offenders. • “Sexually violent offense” is defined very broadly in Florida. • Any sexually motivated criminal offense can potentially qualify, thus meeting the first element of the SVP definition.

28. Legislative Intent (6) • But this is to ensure that no offender is excluded from at least initial consideration simply by virtue of lacking a particular statutory criminal offense designation. • When discussed as a legislative finding, however, “violent” and “violence” are descriptive. • There is no clinical measure of degree of violence in sexual crime. • Integrating legislative description with statutory definitions requires judgment.

29. The More Common View • A different and more commonly accepted view interprets the SVP definition itself as a description. • In this (customary or traditional) view, legislative findings and purpose play no role in interpreting definitions. Those remarks only act as introduction to the SVP law).

30. Common View • The SVP definition gives the empirical features of a person we can identify (observe) with clinical & empirical methods. Legal context (findings/intent) is not needed to do this. • Some clinical judgment is needed but the emphasis is on minimizing it. Determinations should be (almost) objective. They should be scientific. • On this latter interpretation “mental abnormality” and “likely” are viewed as straightforwardly empirical despite the fact that statutory language (“predisposition”; “propensity”; “menace”) have no literal clinical or empirical (or statistical) parallel.

31. Common View (2) • The customary approach requires a kind of literalism in which the mental health professional simply substitutes clinical / empirical / statistical constructs for legal/normative concepts. • Mental abnormality becomes DSM clinical paraphilia and “likely” becomes a numerical likelihood based on an actuarial reconviction rate.

32. Common View (3) • The challenge with this approach is how literalism accounts for statutory language in the separate definitions of mental abnormality and likely. • Clinical criteria make no mention of capacity, predisposition, propensity, or menace. • And actuarial rates come from groups of offenders with different diagnoses and offense types, with no direct connection to any one offender’s control capacity, predisposition, or propensity.

33. Customary SVP Practice • During the years the offenders in the OPPAGA and SVPP study were recommended for commitment the common view was basically accepted. • Understandably the Static-99 (for most years, then the 99R) would have carried great weight in “likely” determinations.

34. Customary Practice (2) • It was also customary to interpret clinical criteria as sufficient conditions. If criteria were satisfied, even if minimally, a diagnosis was (often) assigned. • Paraphilia diagnoses could have been given from as few as two sex offenses 6 months apart. • These would usually be similar offenses, but if dissimilar, Paraphilia NOS was available.

35. Customary Practice (3) • Given that a high score on the Static will usually require at least two sex offenses, most offenders earning a high score would have automatically earned a paraphilia diagnosis (using mostly the same information). • Ditto for Antisocial Personality Disorder, which often functioned as simply a label for an extensive criminal record.

36. Customary Practice (4) • This means that the actuarial score and associated reconviction rate would have carried most if not quite all the weight in making an SVP determination. • The OPPAGA and SVPP studies are therefore (roughly) studies of how well the Static line of instruments isolates a group of offenders who would show a high sexual recidivism rate if released.

37. Risk • Actuarial assessment typically involves treating recidivism rates for groups of released offenders as risk indicators (absolute risk). • The idea is that a rate is an absolute probability or likelihood. • So the rate at which offenders become recidivists in observed samples indicates the probability of recidivism for offenders who are similar to those in the samples.

38. Risk (2) • The relevant rate is the percentage of released offenders in a group who are observed to have at least one more sex offense within some follow-up period. • More precisely, the relevant rate is a recidivist (not recidivism) rate, or rate at which offenders are observed to be post-release recidivists (with at least one offense).

39. Risk (3) • This shouldn’t be confused with how much sexual crime occurs overall. • It is true that many crimes occur that are not detected. But many are committed by first time offenders (yet to be detected). • The issue for recidivism research is detecting the people who are already known to have offended in the past (known sex offenders) who go on to reoffend at least once more after release (making them post-release reoffenders). • If a reoffender is detected for one new offense then that is enough to indicate he is a reoffender even if other new offenses are not yet detected.

40. Risk (4) • Suppose the rate at which released offenders become reoffenders (i.e. percentage of reoffenders in a sample) does indicate the probability of becoming a reoffender (i.e. absolute risk for becoming a post-release recidivist). (Let’s suppose this for now.) • For commitment purposes we would then want to isolate that group of offenders with a high rate so that we could use the characteristics of those offenders to identify other offenders at “high risk” if released. • But what counts as a “high” rate? • Do actuarial instruments (Static in particular) succeed in narrowing down a statistical category where samples are showing “high” reoffender percentages?

41. Risk (5) • But what counts as a “high” rate? • Do actuarial instruments (Static in particular) succeed (statistically) in narrowing down a category where samples are showing “high” percentages of their members becoming post-release sexual reoffenders? • In other words, are there actuarial tables available listing rates from samples where a sizable portion (majority?) of the members of those samples have been observed to have new sex offenses? • Or if the follow-up time periods are 5-10 years (as opposed to 15-25 years or a lifetime), are the rates less but still representing a significant minority of the offenders in the sample?

42. What counts as “high”? • For the Static-99 “high” would have meant 52% for 15 years of release time; 45% for 10 yrs.; 39% for 5 yrs. (These are reconviction rates, not charges. They are also observed rates rather than estimated rates, which came later with the 99R and logistic regression analysis.) • This figure tips above 50%. If the customary interpretation of “likely” is used (i.e. likely = >50%) then the Static-99 provides a rate (for score 6+) that meets the “likely” standard, even without assumptions about the tool underestimating risk.

43. Some Issues • Some issues come up here that will also be relevant later concerning recidivism data… • Let’s look at them here first.

44. High (2) • In past years it was not uncommon for even offenders with moderate-high scores (lower sometimes) to be recommended for commitment based on clinical “adjustment” of actuarial findings or caveats about the Static underestimating risk. • When adjustment is done, the assumption is that the offender’s likelihood for becoming a reoffender is “really” higher than the actuarial rate listed for his score category.

45. High (3) • Statistically, “adjustment” logic implies that the offender belongs to a not yet formally identified category where if a normative sample of offenders like him were released, the percentage of reoffenderswould be significantly higher than the listed rate for his Static score. • Critics of adjustment say this makes the process speculative, defeating the purpose of actuarials.

46. High (4) • Adjusting actuarial findings is not the same thing as simply distinguishing dangerousness in an individual case from group-wise reoffender percentages. (Few critics take this approach but they could.) • There is nothing contradictory in saying that even in groups with low percentages of reoffenders (low statistical risk group-wise) some group members may be dangerous (as individuals). • Doing so does not require any adjustment, only the understanding that statistical group rates are not the same thing as reoffense potential in an individual case (or individualized likelihood).

47. High (5) • Doing so does not require any adjustment, only the understanding that statistical group rates are not the same thing as reoffense potential in an individual case (or individualized likelihood). • However doing this would require re-conceptualizing what actuarials do (and cannot do).

48. High (6) • Adjusting actuarials implies that group rates do indicate likelihoods of reoffending relevant in individual cases. • However, the adjuster thinks that the particular group rate is not accurate as a final risk figure for the offender whose relevant actuarial rate is being adjusted.

49. High (7) • The adjuster uses the actuarial group rate as a “base-line” likelihood estimate which is then moved up or down (usually up) by bringing in other risk factors. • This is in lieu of just saying the offender is not similar (or not similar enough) to the groups being distinguished by the actuarial tool. • In other words, the adjuster wants to use the actuarial instrument as a measure of absolute risk relevant to individual cases, but not admit that its findings fail to fit the case at hand.

50. High (8) • A different kind of speculation is implied by claims about “underestimating” risk. • The idea is (in part) that if the same group of offenders in the Static-99 sample had been followed more than 15 years (lifetime?) a higher percentage would have been observed to have a new conviction.