Footnotes / References
1 Dannye Holley, The Supreme Courts: Did September 11th Accelerate
Their Sanctioning the Constitutionality of Criminalizing Suspicions,
7 PIERCE L. REV. 39, 60 (2008).
2 Eric S. Janus & Robert A. Prentky, Sexual Predator Laws: A
Two-Decade Retrospective, 21 FED. SENT’G
REP. 90, 95 (2008).
3 ERIC S. JANUS, FAILURE TO PROTECT: AMERICA’S SEXUAL PREDATOR LAWS
AND THE RISE OF THE PREVENTIVE STATE 5 (2006).
4 Daniel F. Montaldi, The Logic of Sexually Violent Predator
Status in the United States of America, 2 SEXUAL OFFENDER TREATMENT
5 Robert A. Prentky et al., Sexually Violent Predators in the
Courtroom: Science on Trial, 12 PSYCHOL. PUB. POL’Y &
6 Id. at 358 (defining good science as referring to “the
faithful and rigorous adherence to the findings, limitations, and the
conclusions of published, peer-reviewed articles in scientific journals.
Bad science refers to the intentional or uninformed distortion,
misinterpretation, or selective reporting of findings from scientific
7 Technically, because the sex offender laws at issue in this paper
are not criminal in nature, the individuals are not criminal defendants,
but civil respondents in most cases. The term defendant is used herein
to more easily identify the individual to which an SVP law is applied.
8 See infra text accompanying notes 79-81.
9 Joseph L. Lester, Off to Elba! The Legitimacy of Sex Offender
Residence and Employment Restrictions, 40 AKRON L. REV. 339, 345
10 This is not the first time that a crackdown on sex offenders
through legislation has occurred.
In 1947, J. Edgar Hoover, then
director of the FBI, publicly declared that the
increasing" rate of sex crimes needed to "be placed under the
spotlight and its evils disclosed so that something may be done to
correct a situation that leaves maimed and murdered women lying in
isolated areas, which leaves violated children in a state of hysteria,
and which is a perpetual nightmare to the loved ones and friends of the
J. Edgar Hoover, How Safe is your Daughter? 144
AM. MAG. 32, 32 (1947)
(as quoted in Roxanne Lieb et al., Sexual
Predators and Social Policy, 23 CRIME & JUST. 43, 53 (1998)).
For a history of the origin of 20th century laws to detain sexual
psychopaths, see generally
|Tamara Rice Lave, Only Yesterday:
The Rise and Fall of Twentieth Century Sexual Psychopath Laws, 69
LA. L. REV. 549 (2009). |
The prior generation of sexual psychopath laws
differed from current civil commitment statutes in that the former
required rehabilitative treatment in a mental health facility in lieu of
| Dawn J. Post, Assessing Future Dangerousness
in Sexual Predators for Purposes of Indeterminate Civil Commitment,
21 HAMLINE J. PUB. L. & POL’Y 177, 185 (1999). |
Most of the former
laws were repealed in the 1970s when criminal justice policy initiatives
shifted from rehabilitation models. Id.
| Meaghan Kelly, Lock them Up – And Throw Away the Key: The
Preventive Detention of Sex Offenders in the United States and Germany,
39 GEO. J. INT’L L. 551, 553 (2008); |
| Wayne A. Logan, Sex Offender
Law and Policy: Criminal Justice Federalism and National Sex Offender
Policy, 6 OHIO ST. J. CRIM.
L. 51, 60 (2008).|
12 CENTER FOR SEXUAL OFFENDER MANAGEMENT, LEGISLATIVE TRENDS IN SEX
OFFENDER MANAGEMENT 1 (November 2008), http://www.csom.org/pubs/legislative_trends.pdf
| Lauri Crimaldi, Pols to Target Perv Law Loophole: Bills
Urge GPS, Parole for Life, BOSTON
HERALD, February 4, 2008, at 004 |
(describing 40 bills then before the state legislature to pass more
stringent restrictions on sex offenders and identifying specific cases
of harm by released sex offenders);
| Laura Mansnerus, On Politics:
Stoking “Moral Panic” on Sex Offenders, N.Y.
TIMES, May 29,
2005, at 2 |
(describing media hype over Medicare payments for Viagra for
sex offenders and how horror stories about pedophiles had an impact on
legislative calls for stricter sex offender laws, despite the existence
of other important pending issues).
14 CHRIS GREER, SEX CRIME AND THE MEDIA: SEX OFFENDING AND THE PRESS
IN A DIVIDED SOCIETY 186 (2003).
15 See, e.g.,
| Jimmy Ryce Involuntary Civil Commitment for
Sexually Violent Predators Treatment and Care Act, Fla. Stat. § 394.910
| Jacob Wetterling Crimes Against Children and Sexually Violent
Offender Registration Act, 42 U.S.C. § 14071 (West 2003); |
Law, N.J. Stat. Ann. § 2C:7-1-7-11 (West 2009). |
| See Michael
Vitiello, Punishing Sex Offenders: When Good Intentions Go Bad,
40 ARIZ. ST. L.J. 651, 676 (2008) |
(maintaining that sex offender
“[p]olicies are crafted in haste, often as symbolic gestures to honor
the crime victims whose suffering has inspired them”).
16 Lisa L. Sample & Colleen Kadleck, Sex Offender Laws:
Legislators’ Accounts of the Need for Policy, 19 CRIM. JUST.
POL’Y REV. 40, 59 (2008).
17 Id. at 51.
18 MICHAEL R. RAND, U.S. DEP’T. OF JUSTICE, CRIMINAL
2007 at 3 (December 2008).
19 Leonore M.J. Simon, The Myth of Sex Offender Specialization: An
Empirical Analysis, 23 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT
387, 397 (1997).
20 Janus, supra note 3, at 4.
21 Jill S. Levenson et al., 7 Public Perceptions about Sex
Offenders and Community Protection Policies, ANALYSES OF SOC. ISSUES
& PUB. POL’Y 137, 153-154 (2007).
| Janus & Prentky, supra note 2, at 90; |
| Erica Beecher-Monas
& Edgar Garcia-Rill, The Impact of Behavioral Genetics on the
Criminal Law: Genetic Predictions of Future Dangerousness: Is There a
Blueprint for Violence?, 69 L. & CONTEMP.
PROBS. 301, 317-318
|152 CONG. REC. H5723 (daily ed. July 25, 2006) |
(statement of Rep. Sensenbrenner) (referring to the growing problem of
online sexual predators)
|Janis Wolak et al., Online
“Predators” and their Victims: Myths, Realities, and Implications
for Prevention and Treatment, 63 AM.
PSYCHOL. 111, 112-13, 119
(reporting that public fears are erroneous as online predators
are usually open about their sexual interest, are rarely violent, and
prevention may be better served by teaching young people safe internet
24 As mandated by the Adam Walsh Child Protection and Notification
Act of 2006, the U.S. Department of Justice created the Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering, and
Tracking, whose mission is to “protect the public.” U.S. Department
of Justice, http://www.ojp.usdoj.gov/smart/about.htm.
| Lester, supra note 9, at 347-348; |
| John Douard, Sex
Offender as Scapegoat: The Monstrous Other Within, 53 N.Y.L. SCH. L.
REV. 31, 38-39 (2008).|
26 See, e.g.,
| Fla. Stat. ch. 775.21 (3)(A) |
offenders, sexual offenders who use physical violence, and sexual
offenders who prey on children are sexual predators who present an
extreme threat to the public safety. Sexual offenders are extremely
likely to use physical violence and to repeat their offenses, and most
sexual offenders commit many offenses, have many more victims than are
ever reported, and are prosecuted for only a fraction of their crimes.
This makes the cost of sexual offender victimization to society at
large, while incalculable, clearly exorbitant.”);
| 140 CONG. REC.
H5612, H5612 (daily ed. July 13, 1994) |
(statement of Rep. Dunn)
(campaigning on the Congressional floor for a registration and
notification bill and claiming that the rate of recidivism of sex
offenders is “astronomical. We know that.”);
| 152 CONG. REC. H5725
(daily ed. July 25, 2006) |
(statement of Rep. Foley) (referring to sexual
predators as a “growing and dangerous threat to our children”).
Representative Mark Foley, shortly after making this public statement,
was caught in a scandal for sending pornographic e-mails to teenage male
pages, and eventually resigned.
| Ellen Goodman, You Can’t Make this
Stuff Up: The Self-Proclaimed Party of Moral Values Can’t Keep its own
House in Order, PITT.
POST-GAZETTE, Oct. 6, 2006, at B-7.|
27 Other, though less common, laws include a ban on certain
employment, such as
| at a day care, Idaho CODE
ANN. § 18-8310(1) (2009); |
restrictions on working near specified locations, such as around
schools, Ala. Code § 15-20-33(a) (2009); |
| GPS monitoring,
| GA. CODE. ANN.
§ 42-1-12(B)(9) (2009), |
| LA. REV. STAT. ANN. § 560.4 (West 2009); and |
chemical castration, Matthew V. Daley, A Flaws Solution to the Sex
Offender Situation in the United States: The Legality of Chemical
Castration for Sex Offenders, 5 IND. HEALTH L.
REV. 87 (2008)
(citing statutes). |
28 K.S.A. § 59-29a02(a) (2008).
29 521 U.S. 346, 371 (1997).
30 Id. at 361-363.
31 United States v. Abregana, 574 F. Supp. 2d 1123, 1139-1140 (D.
32 K. GOOKIN, WASHINGTON STATE INSTITUTE FOR PUBLIC POLICY,
COMPARISONS OF STATE LAWS AUTHORIZING INVOLUNTARY COMMITMENT OF SEXUALLY VIOLENT PREDATORS:
2006 UPDATE, REVISED 1 (2007), http://www.wsipp.wa.gov/rptfiles/07-08-1101.pdf.
|Monica Davey & Abby Goodnough, Doubts Rise as
States Hold Sex Offenders after Prison, N.Y.
TIMES, Mar. 4, 2007, at
(reporting about 2,700 sex offenders subject to civil commitment).
33 Eric. S. Janus & Robert A. Prentky, Forensic Use of
Actuarial Risk Assessment with Sex Offenders: Accuracy, Admissibility
and Accountability, 40 AM. CRIM. L.
REV. 1443, 1447 (2003) (finding
5% of committed offenders released).
34 Amber Leigh Bagley, An “Era of Human Zoning”: Banishing Sex
Offenders from Communities Through Residence and Work Restrictions,
57 EMORY L.J. 1347, 1348 (2008).
35 GA. CODE ANN. § 42-1-12(a)(16) (2009).
36 See Shawndra Jones, Setting Their Record Straight,
Granting Wrongly Branded Individuals Relief from Sex Offender
Registration, 41 COLUM. J.L. & SOC.
PROBS. 492, 496 (2008).
37 Some courts have overturned local regulations, though, that are
seen as pre-empted by state statute.
|Fross v. County
of Allegheny, No. 08-1405, 2009 U.S. Dist. LEXIS 24472, at *25 (D. Pa.
March 21, 2009); |
| People v. Oberlander, No. 02-354, slip op. at 11 (N.Y.
Sup. Ct. Jan. 22, 2009).|
38 See, e.g.,
| ALA. CODE § 15-20-26(a) (Lexis
| GA. CODE ANN. §42-1-15(a)-(b) (Supp. 2008); |
| KY. REV. STAT. ANN.
§17.545(1)(West Supp. 2008); |
| OKLA. STAT. ANN. tit. 57 § 590(A) (West.
| ARK. CODE ANN. § 5-14-128(a) (2006); |
| FLA. STAT. §947.1405(7)(a)(2)
| IOWA CODE § 692A.2A(1) (2007); |
| LA. REV. STAT. ANN. §§
14:91.1(A)(2) and |
| 15:560.1(3) (2009).|
40 See Lester, supra note 9, at 350-351 (listing
various laws and restrictions).
| Asmara Tekle-Johnson, In the Zone: Sex Offenders and the
Ten-Percent Solution, 94 IOWA L.
REV. 607, 621 (2009) |
of effectively banning sex offenders);
| Kari White, Where Will They
Go? Sex Offender Residency Restrictions as Modern Day Banishment, 59
CASEW. RES. L. REV. 161, 168-169 (2008) |
(showing maps whereby officials
highlighted the few areas remaining after factoring in the residency
42 See Lester, supra note 9, at 374-380 (listing
statutes with information about area and time spans).
43 The federal Sex Offender Registration and Notification Act of 2006
(SORNA) may change this.
SORNA would require states, under penalty of
losing certain funding, to follow a unitary system of sex offender
registration based not on individual assessments of future risk, but on
the type of offense of conviction.
Generic titles of offenses are
categorized into 3 levels and the time for registration is based on the
Still, there is reason to believe that the SORNA requirements
will not significantly overhaul the registration system and entirely
replace future dangerousness assessments.
requirements were originally intended to be substantially implemented by
states as of July 27, 2009 (or lose the funding).
But, within weeks of
the deadline, few states had acted to implement the regulations because
of its burden and cost and, with pressure, the Attorney General delayed
the deadline a year.
| Sen. Leahy Applauds Extension for State
Compliance with Sex Offender Registration and Notification Act, U.S.
FED NEWS, June 3, 2009.|
| Lester, supra note 9, at 381-384 |
(listing statutes with
| GA. CODE ANN. §42-1-15 (2008) |
violation with up to 30-year sentence).
45 Caleb Durling, Never Going Home: Does it Make us Safer? Does it
Make Sense?: Sex Offenders, Residency Restrictions, and Reforming Risk
Management Law, 97 J. Crim. L. & Criminology 317, 323 (2006).
46 Smith v. Doe, 538 U.S. 84, 105-106 (2003).
47 See e.g.,
|Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005); |
People v. LeRoy, 828 N.E.2d 769, 778-782 (Ill. App. Ct. 2005).|
48 Lindsay A. Wagner, Sex Offender Residency Restrictions: How
Common Sense Places Children at Risk, 1 DREXEL L.
REV. 175, 175
John A. Fennel, Punishment by Another Name:
The Inherent Overreaching in Sexually Dangerous Person Commitments, 35
N.E. J. ON CRIM. & CIV. CONFINEMENT 37, 62 (2009); Douard, supra note
25, at 37.
49 BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, AND
PUNISHING IN AN ACTUARIAL AGE 188 (2007).
50 Yoav Sapir, Against Prevention? A Response to Harcourt’s
Against Prediction on Actuarial and Clinical Predictions and the Faults
of Incapacitation, 33 LAW & SOC. INQUIRY 253, 260-261 (2008)
51 CSOM, RECIDIVISM OF SEX OFFENDERS 5 (May 2001), http://www.csom.org/pubs/recidsexof.pdf.
52 PATRICK A. LANGAN ET AL., U.S. DEP’T OF JUST., OFF. OF JUST.
PROGRAMS, RECIDIVISM OF SEX OFFENDERS RELEASED IN 1994, at 1
55 Id. at 2.
56 RHIANA KOHL ET AL., URBAN INST., MASSACHUSETTS RECIDIVISM STUDY: A
CLOSER LOOK AT RELEASES AND RETURNS TO PRISON 14 (2008), http://www.urban.org/UploadedPDF/411657_massachusetts_recidivism.pdf.
58 CSOM, supra note 51, at 1.
59 GENEVA ADKINS ET AL., IOWA DEP’T OF HUM. RIGHTS, THE IOWA SEX
OFFENDER REGISTRY AND RECIDIVISM 10 (2000)
(defining recidivism as reconviction or parole
violation with a sample of over 400 sex offenders released or
60 ROBERT BARNOSKI, WASH. STATE INST. FOR PUB. POL’Y, SEX OFFENDER
SENTENCING IN WASHINGTON STATE: SEX OFFENDER RISK LEVEL CLASSIFICATION
TOOL AND RECIDIVISM 2 (2006) (defining recidivism as reconviction for a
felony with a sample of almost 700 released sex offenders),
61 STATE OF OHIO, OFFICE OF CRIM. JUST. SERVICES, REPORT TO THE OHIO
CRIMINAL SENTENCING COMMISSION, SEX OFFENDERS 13-14 (2006) (defining
recidivism as being reincarcerated after release with an otherwise
62 Timothy Fortney et al., Myths and Facts about Sexual Offenders:
Implications for Treatment and Public Policy, 2 SEXUAL OFFENDER
TREATMENT 1 (2007).
State of Ohio, supra note
61, at 14
(admitting “It is a common misconception that sex offenders
have a high recidivism rate”).
63 Sex offense types where recidivism may vary include incest-only,
adult female rape, and non-contact offending.
64 Langan et al., supra note 52, at 1.
65 RAND, supra note 18, at 6.
66 HOWARD N. SNYDER, U.S. DEP’T OF JUST., SEXUAL ASSAULT OF YOUNG
CHILDREN AS REPORTED TO LAW ENFORCEMENT: VICTIM, INCIDENT, AND OFFENDER
CHARACTERISTICS 10 (2000).
68 RAND, supra note 18, at 6.
69 James Vess, Sex Offender Risk Assessment: Consideration of
Human Rights in Community Protection Legislation, 13 LEGAL &
CRIMINOLOGICAL PSYCHOL. 245, 246 (2008).
70 See, e.g., Jill S. Levenson & Leo P. Cotter, The
Effect of Megan’s Law on Sex Offender Reintegration, 21 J OF
CONTEMP. CRIM. JUST. 49, 61 (2005)
(reporting a study of the experience
of half of 180+ registered offenders reporting that the information in
the public registries was erroneous).
71 Amy L. Anderson & Lisa L. Sample, Public Awareness and
Action Resulting from Sex Offender Community Notification Laws, 19
CRIM. JUST. POL’Y REV. 371, 388 (2008).
72 Jeffrey C. Sandler et al., Does a Watched Pot Boil? A
Time-Series Analysis of New York State’s Sex Offender Registration and
Notification Law, 14 PSYCHOL. PUB. POL’Y &
L. 284, 297 (2008).
|Barnoski, supra note 63, at 2-3 |
level of risk classification of sex offenders and the existence of the
notification program had no impact on recidivism rates);
| JEFFREY T.
WALKER ET AL., ARK. CRIME INFO. CENTER, THE INFLUENCE OF SEX OFFENDER
REGISTRATION AND NOTIFICATION LAWS IN THE UNITED STATES 15 (2005) |
(finding no reduction in state rates of rapes after passage of sex
offender registry laws, suggesting no deterrent result), http://www.arkansas.gov/search/gsearch.php?profile=acic&cache=CEEr179SW8...
Adkins, supra note 62, at 10 |
(finding no statistically
significant difference between pre-registry and post-registry sex
offenders released in committing sex or non-sex offenses);
|Bob Edward Vásquez
et al., The Influence of Sex Offender Registration and Notification
Laws in the United States: A Time-Series Analysis, 54 CRIME &
DELINQ. 175, 188 (2008) |
(concluding overall there was no measurable or
consistent deterrent effect);
|Elizabeth J. Letourneau & Kevin S.
Armstrong, Recidivism Rates for Registered and Non-registered Juvenile
Sexual Offenders, 20 SEXUAL ABUSE: A J. OF RES. & TREATMENT 383,
400 (2008) |
(finding no differences in sexual re-offending in a matched
sample of registered and non-registered juvenile offenders);
DEP’T OF CORRECTIONS, RESIDENTIAL PROXIMITY AND SEX OFFENSE RECIDIVISM
IN MINNESOTA: APRIL 2007, at 24 (2007) |
(concluding after tracking 224
sex offenders released between 1990 and 2002 who were re-incarcerated for
a sex crime that “not one of the 224 offenses would likely have been
affected by residency restrictions"),
73 See Richard Tewksbury, Exile at Home: The Unintended
Collateral Consequences of Sex Offender Residency Restrictions, 42
HARV. C.R.-C.L. L. REV. 531, 532-537 (2007).
| Id. |
(citing empirical studies concerning repercussions of
registration and residency restrictions among various groups of
| Lester, supra note 9, at 359-362 |
created by and exacerbated by residency restrictions on sex offenders,
their families, communities, and police resources).
75 BARBARA K. SCHWARTZ & HENRY R. CELLINI, THE SEX OFFENDER: NEW
INSIGHTS, TREATMENT INNOVATIONS AND LEGAL DEVELOPMENTS (vol. II) xvii
76 Heather R. Hlavaka & Christopher Uggan, Does Stigmatizing
Sex Offenders Drive Down Reporting Rates? Perverse Effects and
Unintended Consequences, 35 N. KY. L.
REV. 347, 363 (2008).
77 See Vitiello, supra note 15, at 685.
78 Amy Baron-Evans, Still Time to Rethink the Misguided Approach
of the Sex Offender Registration and Notification Act, 20 FED.
SENT’G REP. 357 (2008).
79 Gookin, supra note 32, at 1.
80 DAN GUNDERSON, CORRECTIONS OFFICIALS CRITICAL OF EXPANDED SEX
OFFENDER MONITORING (Minn. Public Radio broadcast Feb. 22, 2006)
(stating that Minnesota Department of Corrections officials estimate
that monitoring sex offenders "costs $20 per day for each
81 See CONG. BUDGET OFF., COST ESTIMATE: H.R. 4472 CHILDREN'S
SAFETY AND VIOLENT CRIME REDUCTION ACT OF 2005 (2006), http://www.cbo.gov/ftpdocs/70xx/doc7061/hr4472.pdf.
82 See also Janus, supra note 3, at 146-147
that while SVP laws serve an expressive message rejecting sexual
violence, by highlighting the most heinous sexual assaults by strangers
they also downplay the more common types of sexual violence).
83 CSOM, RECIDIVISM OF SEX OFFENDERS 4 (May 2001).
84 Some commentators have weighed the empirical flaws in actuarial
predictions against the ability of expert testimony to assist judges in
making future dangerousness assessment and have concluded that the
public health need to protect future victims justifies their use. Post, supra
note 10, at 244-245.
85 See, e.g., People v. Lopez, No. H029248, 2006
Cal.App.Unpub.LEXIS 11573, at *5 (Cal. Ct. App. Dec. 21, 2006).
general rule, the evidentiary ban on hearsay evidence is vitiated when
it comes to experts and the information they rely upon, at least to the
extent that experts in their particular field reasonable rely on that
type of evidence.
See, e.g., FRE 703.
86 N.J. Schweitzer & Michael J. Saks, The Gatekeeper Effect:
The Impact of Judges’ Admissibility Decisions on the Persuasiveness of
Expert Testimony, 15 PSYCHOL. PUB. POL’Y &
L. 1, 13 (2009)
(describing the result of the authors’ empirical study about the
influence a judge’s decision to admit expert testimony on potential
jurors’ acceptance of such testimony and concluding that if Daubert’s
intent was to limit junk science, it may have the opposite impact since
the study participants were more likely to value expert testimony if a
judge admitted it because they believed the judge independently acted
and competently verified the quality of the evidence provided by the
87 Social sciences are those that use scientific methods in the study
of humans as social creatures, such as sociology, anthropology,
psychology, criminology, political science, among others.
88 Laurens Walker & John Monahan, Social Frameworks: A New Use
of Social Science in Law, 73 VA. L.
REV. 559, 582-83 (1987)
(offering that recent uses of social science in law is uniquely about
permitting experts to use a theory of human behavior to provide a social
framework to assist the trier of fact in understanding the relevant
issues while disabusing them of any myths they may have).
89 JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES
AND MATERIALS 395 (6th ed. 2006).
90 Mark S. Brodin, Behavioral Science Evidence in the Age of
Daubert: Reflections of a Skeptic, 73 U. CIN. L.
REV. 867, 868-869
91 Andrew J. Taslitz, Myself Alone, Individualizing Justice
through Psychological Character Evidence, 52 MD. L.
REV. 1, 75
92 Alice B. Lustre, Post-Daubert Standards for Admissibility for
Scientific and Other Expert Evidence in State Cases, 90 A.L.R. 5TH
453, at *2 (2009).
93 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The Frye
expert offered evidence in the form of results from an early version
of a lie detector to show the defendant’s innocence. Id.
94 Andrew R. Stolfi, Why Illinois Should Abandon Frye’s General
Acceptance Standard for the Admission of Novel Scientific Evidence, 78
CHI-KENT L. REV. 861, 876 n.110 (2003).
95 Act of January 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926.
96 509 U.S. 579 (1993).
97 Id. at 587-88.
98 Id. at 590. Subsequently, in Kumho Tire Co. v. Carmichael,
the Court clarified that the same Daubert-led standards applied
to all expert testimony, including that based on skill or experience,
not just of the scientific variety. 526 U.S. 137, 151 (1999).
99 Daubert, 509 U.S. at 590 n. 9.
100 Id. at 597.
101 Id. at 593-94.
102 Id. at 601 (J. Rehnquist, dissenting).
103 Brodin, supra note 90, at 36.
104 Daubert, 509 U.S. at 592.
105 Janus & Prentky, supra note 33, at 1462.
106 James Aaron George, Offender Profiling and Expert Testimony:
Scientifically Valid or Glorified Results?, 61 VAND. L.
| Kumho Tire Co., 526 U.S. at 151. |
| Erica Beecher-Monas &
Edgar Garcia-Rill, Danger at the Edge of Chaos: Predicting Violent
Behavior in a Post-Daubert World, 24 CARDOZO L.
REV. 1845, 1854
108 Lustre, supra note 92, at 2
states have affirmatively adopted the Daubert or similar test for
use in their courts, or had previously abandoned Frye and had
developed a similar test; |
| Fifteen states and the District of Columbia
adhere to Frye; |
| Six states have not rejected Frye in toto
but apply the Daubert factors; and |
| four states developed their
109 See e.g., Donaldson v. Cent. Ill. Pub. Serv. Co.,
767 N.E.2d 314, 324 (Ill. 2002).
110 E.g., People v. Kelly, 549 P.2d 1240 (Cal. 1976).
111 Harris v. Cropmate Co., 706 N.E. 2d 55, 64-65 (Ill. 1999)
112 ANDRE A.MOENSSENS ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND
CRIMINAL CASES 12 (5th ed. 2007).
113 463 U.S. 880, 884 (1983).
114 Id. at 884 n.1.
115 Id. at 885.
116 Id. at 920 (Blackmunn, Brennan and Marshall, J.
The psychiatrist who testified in the case was Dr. Grigson,
nicknamed “Dr. Death,” who became infamous for the frequency of his
testifying for the prosecution in Texas death penalty sentencing trials
(testifying in over 150 death penalty cases before retiring) and for the
strength and eloquence of his testimony usually about the unlikelihood
of murderers being rehabilitated.
|Hugh Aynesworth, Texas “Dr.
Death” Retires after 167 Capital Case Trials: Felt Murderers Would
Kill Again, THE WASH. TIMES, Dec. 21, 2003, at A02. |
For example, in
the instant case, Dr. Grigson testified that there was a “one hundred
percent and absolute” risk that Barefoot would commit violent crimes
in the future.
| 463 U.S. at 919 (Blackmunn, Brennan and Marshall, J.
Despite not having ever examined Barefoot personally, given
hypothetical information matching Barefoot’s case facts, Dr. Grigson
declared such a person would be a highly dangerous sociopath who could
not be cured.
The jury sentenced Barefoot to death.
Grigson was later expelled by the APA for diagnosing mental illness
without personally assessing the individual and for his testifying that
he could predict with 100% accuracy the likelihood of violent
| Laura Bell, Groups Expel Psychiatrist Known for Murder
Cases: Witness Nicknamed Dr. Death says License to Practice Won’t be
Effected by Ethics Allegations, DALLASMORNING
NEWS, July 26, 1995,
117 Barefoot, 463 U.S. at 906.
118 Id. at 899.
There is some evidence that the majority may
be right here. In a mock-juror design, researchers concluded that
jurors’ were much more likely to question an expert’s testimony on
future dangerousness after it was subject to cross-examination or a
competing expert testified.
| Daniel A. Krauss & Bruce D. Sales, The
Effects of Clinical and Scientific Expert Testimony On Juror Decision
Making in Capital Sentencing, 7 PSYCHOL. PUB. POL’Y &
302 (2001). |
These researchers also found that the mock jurors’
assessment of the purported defendant’s future dangerousness increased
significantly after psychological expert testimony. Id. at
119 Barefoot, 463 U.S. at 901.
120 Id. at 935-936.
|Erica Beecher-Moss, The
Epistemology of Prediction: Future Dangerous Testimony and Intellectual
Due Process, 60 WASH. & LEE. L.
REV. 353, 361 (2003) (contending
that the Barefoot decision erroneously obviated the Daubert-led
evidentiary standards and has led to less truthful results as judges
after Barefoot largely without challenge admit in capital
sentencing trials a broad scope of expert testimony on future
dangerousness that is inherently unreliable); |
| Mitzi Dorland & Daniel
Krauss, The Danger of Dangerousness in Capital Sentencing:
Exacerbating the Problem of Arbitrary and Capricious Decision-making,
29 LAW & PSYCHOL. REV. 63, 102-103 (2005) |
(maintaining that expert
opinions on future dangerousness in capital cases is so unreliable that
it leads to arbitrary and capricious decisions).
121 Barefoot, 463 U.S. at 901 n.7.
122 Id. at 897-898.
123 Id. at 897.
124 Id. at 899.
125 The categorical approval of expert witness testimony on future
dangerousness in capital cases was cited with approval in Payne v.
Tennessee, 501 U.S. 808, 823 (1991)
(approving the prosecution’s use
of victim impact statement in the sentencing phase of a capital trial).
126 Beecher-Monas & Garcia-Rill, supra note 22, at
127 477 U.S. 399, 415 (1986) (citing Barefoot, 463 U.S. at
129 Id. at 399 n.3.
130 Ake v. Oklahoma, 470 U.S. 68, 85 (1985).
131 Id. at 84.
132 Erica Beecher-Monas & Edgar Garcia-Rill, Danger at the
Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World,
24 CARDOZO L. REV. 1845, 1857 (2003).
133 Prentky et al., supra note 5, at 371-372.
134 John Monahan, A Jurisprudence of Risk Assessment: Forecasting
Harm among Prisoners, Predators, and Patients, 92 VA. L.
135 Fennel, supra note 48, at 52.
136 JOHN MONAHAN ET AL., RETHINKING RISK ASSESSMENT: THE MACARTHUR
STUDY OF MENTAL DISORDER AND VIOLENCE 142 (2001).
137 Kevin S. Douglas & Jennifer L. Skeem, Violence Risk
Assessment: Getting Specific about Being Dynamic, 11 PSYCHOL. PUB.
POL’Y & L. 348, 352 (2005).
138 Fennel, supra note 48, at 52.
139 Fred S. Berlin et al., The Use of Actuarial in Civil
Commitment Hearings to Predict the Likelihood of Future Sexual Violence,
15 SEXUAL ABUSE: J. OF RES. & TREATMENT 377, 378 (2003).
140 R. KARL HANSON, THE DEVELOPMENT OF A BRIEF ACTUARIAL RISK SCALE
FOR SEXUAL RECIDIVISM, 1997-04, at 14 (1997), http://ww2.ps-sp.gc.ca/publications/corrections/199704_e.pdf.
141 Id. at 16.
142 Id. at 4.
144 Id. at 18.
145 Id. at 14.
146 Id. at 6.
147 Since the samples included no scores of 6, the experience table
does not include separate risk estimates for it.
148 Id. at 16.
149 R. Karl Hanson, Leslie Helmus, & David Thornton, Predicting
Recidivism Amongst Sexual Offenders, 1 LAW& HUM. BEH.  (2009).
151 The authors indicated they chose this name to highlight the tool
was developed in 1999 and includes only static factors.
| Hanson &
Thornton, supra note 150, at 122. STATIC-2002 is a newer
instrument, in which the authors altered some of the original 10 factors
and added factors involving
| juvenile sex offending, |
| rate of sexual
| any young unrelated victims, |
| any community supervision
violation, and |
| years free prior to index crime. |
| Amy Phenix, Dennis Doren,
Leslie Helmus, R. Karl Hanson, & David Thornton, CODING RULES FOR
STATIC- 2002 4, http://www.static99.org/pdfdocs/static2002codingrules.pdf. |
However, STATIC-99 remains the most used actuarial tool in sexual
predator cases |
| (Leslie Helmus, R. Karl Hanson, & David Thornton, Reporting
STATIC-99 in Light of New Research on Recidivism Norms, 21 THE FORUM
38, 38 (2008)) and, indeed, |
| no cases available in LEXIS as of July 2009
included any reference to STATIC-2002.|
152 Harris et al., supra note 150, at 67.
154 Id. at 69.
156 These numbers are from the original STATIC-99 forms. The authors
recently (October 2008) updated the tables because of their recognition
that recidivism numbers have generally dropped so they adjusted the
|Helmus et al., supra note 151, at 38. |
the newer tables have been criticized for not being cross validated nor
Brian R. Abbott, Applicability of
the New STATIC-99 Experience Tables in Sexually Violent Predator Risk
Assessments, 4 SEXUAL OFFENDER TREATMENT (2009).
157 Harris et al., supra note 150, at 4.
158 Id. at 5.
160 Stephen D. Hart, Actuarial Risk Assessment: Commentary on
Berlin et al., 15 SEXUAL ABUSE: A J. OF RES. & TREATMENT 383,
161 Berlin, et al., supra note 139, at 381 (2003).
| Reinhard Eher et. al., Failure of STATIC-99 and SORAG to
Predict Relevant Reoffense Categories in Relevant Sexual Offender
Subtypes: A Prospective Study, 8 SEXUAL OFFENDER TREATMENT 1 (2008); |
Jan Looman, Comparison of Two Risk Assessment Instruments for Sexual
Offenders, 18 SEXUAL ABUSE: A J. OF RES. & TREATMENT 193 (2006); |
Grant T. Harris et al., A Multi-state Comparison of Actuarial Risk
Assessment of Sex Offenders, 15 PSYCHOL. ASSESSMENT 413, 416 (2003).|
163 Stephen D. Hart et al., 190 (supp. 49) Precision of Actuarial
Risk Assessment Instruments: Evaluating the “Margins of Error” of
Group v. Individual Predictions of Violence, 190 BRITISH J. OF
PSYCHIATRY s60, s60 (2007).
164 LEAM A. CRAIG ET AL., ASSESSING RISK IN SEX OFFENDERS: A
PRACTITIONER’S GUIDE 55 (2008).
165 Douglas & Skeem, supra note 137, at 348.
Douglas & Skeem, supra note 137, at 348;
Fabian, To Catch a Predator, and then Commit him for Life: Sexual
Offender Risk Assessment—Part Two, 33 CHAMPION 22, 37 (2009).
167 Rebecca L. Jackson & Derek T. Hess, Evaluation of Civil
Commitment for Sex Offenders, 19 Sexual Abuse 425, 434 (2007).
168 Janus & Prentky, supra note 33, at 1497.
169 Daniel C. Murrie et al., Rater (Dis)Agreement on Risk
Assessment Measures in Sexually Violent Predator Proceedings: Evidence
of Adversarial Allegiance in Forensic Evaluation, 15 PSYCHOL. PUB.
POL’Y & L. 19, 21 (2009).
| CAL. PEN. § 290.4(b) (2008) |
(presuming STATIC-99 for male
| VA. CODE ANN. § 37.2-900(B) (2009) |
score of 4 if the offense involved a young child or 5 otherwise;
alternatively permitting a clinical assessment if the state officials
believes no scientific actuarial instrument is available).
| Two Virginia
Supreme Court justices warned that this requirement will “encourage a
battle between expert witnesses with regard to whether an inmate
received ‘a correctly computed score’. |
| Miles v. Commonwealth, 274
Va. 1, 1-2 (2007) (concurring opinion).|
171 Prentky et al., supra note 5, at 371.
172 Prentky et al., supra note 5, at 360.
174 AM. ACAD. OF PSYCHIATRY & THE LAW, AMERICAN ACADEMY OF
PSYCHIATRY AND THE LAW ETHICS GUIDELINES FOR THE PRACTICE OF FORENSIC
PSYCHIATRY 3 (1993); AM. PSYCHIATRIC ASSOC., ETHICS PRIMER 69.
175 This article’s focus upon a social science does not mean that
there are not similar issues with experts in the hard sciences
| Michael J. Saks & David L. Faigman, Failed Forensics:
How Forensic Science Lost its Way and How it Might Find it, 4 ANN.
REV. OF L. & SOC. SCI. 149, 159 (2008).|
For instance, In the 2008
Annual Review of Law and Social Science, experts who have worked with
issues on science in the law for years summarized:
“It has been
suggested that over the decades, forensic examiners have been pressured
to make statements as extreme as they can get – 100 % certainty, zero
error rates, identification to the exclusion of all others in the world
– not because such statements grow out of science, but because they
serve the needs of those who use their work,”
meaning the government.
Further, these experts observe, judges tend to be inclined to permit the
evidence despite more current knowledge about the validity and
reliability of the evidence because of tradition and deferring to prior
Id. at 153.
176 Abbott, supra note 156, at .
180 Hart et al., supra note 163, at s62.
182 David DeMatteo & John F. Edens, The Role and Relevance of
the Psychopathy Checklist-Revised in Court: A Case Law Survey of U.S.
Courts (1991-2004), 12 PSYCHOL. PUB. POL’Y &
L. 214, 215
183 R. Karl Hanson & Monique T. Bussiere, Predicting Relapse:
A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. OF
CONSULTING & CLINICAL PSYCHOL. 348, 349 (1998).
184 Hanson & Thornton, supra note 150, at 126.
186 JACOB COHEN, STATISTICAL POWER ANALYSIS FOR THE BEHAVIORAL
SCIENCES (2nd ed. 1988).
187 See Berlin et al., supra note 139, at 379.
189 CHRISTOPHER SLOBOGIN, PROVING THE UNPROVABLE: THE ROLE OF LAW,
SCIENCE, AND SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS
190 Harris et al., supra 150, at 413.
191 Slobogin, supra note 189, at 107.
192 R. KARL HANSON & KELLY MORTON-BOURGON, DEP’T OF THE SOLIC.
GEN. OF CANADA, PREDICTORS OF SEXUAL RECIDIVISM: AN UPDATED META-ANALYSIS
193 R. KARL HANSON & KELLY MORTON-BOURGON, DEP’T OF THE SOLIC.
GEN. OF CANADA, THE ACCURACY OF RECIDIVISM RISK ASSESSMENTS FOR SEXUAL
OFFENDERS: A META-ANALYSIS 32 (2007).
195 Hanson & Thornton, supra note 150, at 126.
196 Howard E. Barbaree et al. Evaluating the Predictive Accuracy
of Six Risk Assessment Instruments for Adult Sex Offenders, 28 CRIM.
JUST. & BEH. 490, 516 (2001).
197 Fennel, supra note 48, at 54.
199 Hanson & Thornton, supra note 150, at 125.
200 Fennel, supra note 48, at 54.
201 Helmus, et al., supra note 151.
202 R. Karl Hanson & Kelly Morton-Bourgon, The Accuracy of
Recidivism Risk Assessments for Sexual Offenders: A Meta-Analysis of 118
Prediction Studies, 21 PSYCHOL. ASSESSMENT 1, 4 (2009).
203 Prentky et al., supra note 5, at 373.
204 Prentky et al., supra note 5, at 373-374.
| Eher et. al., supra note 162 |
(testing STATIC-99 on child
sexual abusers and rapists);
|Looman, supra note 162 |
variances of STATIC-99 on treated high risk offenders).
| See also
supra note 156 |
(citing additional studies showing subgroup
| R. Karl Hanson, Does STATIC-99 Predict Recidivism in
Older Sexual Offenders? 18 SEXUAL ABUSE 343 (2006) |
base-rate of 2% in 5 years for over age 60, compared to 15% for under
206 FBI, CRIME IN THE UNITED STATES: BY REGION, GEOGRAPHIC DIVISION,
AND STATE, 2006, 2007, (defining rape to include only forcible carnal knowledge of a female).
| Hanson & Morton-Bourgon, supra note 202, at 7. |
also Hanson, Helmus & Thornton, supra note 149 |
samples and finding the U.S.-based sample had the lowest ROC of .61
compared to samples in Canada and the U.K.).
208 Fennel, supra note 48, at 58
(maintaining that Canada’s
sexual assault rates are more than twice that of the U.S.).
209 Leam Craig et al., Limitations in Actuarial Risk Assessment of
Sexual Offenders: A Methodological Note, 6 BRITISH J. OF FORENSIC
PRACTICE 16, 18 (2004).
210 LEAM CRAIG ET AL., ASSESSING RISK IN SEXUAL OFFENDERS 41 (2007)
(providing formula for result).
211 Prentky et al., supra note 5, at 374.
212 Eher et al., supra note 162.
213 Peter R. Jones et al., Risk Classification and Juvenile
Dispositions: What is the Start of the Art?, 79 TEMPLE L.
REV. 461, 495 (2006).
214 See generally
|TOM JAGTENBERG, THE SOCIAL CONSTRUCTION OF
SCIENCE: A COMPARATIVE STUDY OF GOAL DIRECTION, RESEARCH EVOLUTION AND
LEGITIMATION (1983) (arguing that researchers do not merely find
knowledge in external ways, but that science is socially constructed
through the result of goal oriented action by the researchers and its
accreditation is also negotiated); |
| ERICA BEECHER- MONAS, EVALUATING
SCIENTIFIC EVIDENCE: AN INTERDISCIPLINARY FRAMEWORK FOR INTELLECTUAL DUE
PROCESS 38 (2007) (recognizing that “scientific paradigms are –
legal paradigms – socially constructed through a process of discussion
and consensus-building about theories, experimental methods,
instrumentation, and validation”).|
215 Richard Wollert, Low Base Rates Limit Expert Certainty when
Current Actuarials are used to Identify Sexually Violent Predators: An
Application of Bayes’s Theorem, 12 PSYCHOL. PUB. POL’Y &
56, 58 (2006).
216 Harris et al., supra note 150, at 416. See also Barbaree
et al. supra note 196, at 499 (reporting correlation coefficients
for inter-rate reliability of .94 for RRASOR and .90 for STATIC-99).
217 Murrie et al., supra note 169, at 39.
218 Id. at 40
(cautioning that these results are not
definitive to show litigant bias).
219 Douglas P. Boer, Ethical and Practical Concerns Regarding the
Current Status of Sex Offender Risk Assessment, 3 SEXUAL OFFENDER
TREATMENT 1 (2008).
220 Pamela R. Blair et al., Is There an Allegiance Effect for
Assessment Instruments? Actuarial Risk Assessment as an Exemplar, 13
CLINICAL PSYCHOL.-SCI. & PRAC. 346, 354 (2008).
221 Id. at 353.
222 Hanson & Morton-Bourgon, supra note 202, at 7.
223 Harris et al., supra note 150, at 3.
| Douglas Mossman, Another Look at Interpreting Risk Categories,
18 SEXUAL ABUSE: A J. OF RES. & TREATMENT 41, 60-61 (2006); |
Sreenivasan et al., Predicting the Likelihood of Future Sexual
Recidivism: Pilot Study Findings from a California Sex Offender Risk
Project and Cross Validation of STATIC-99, 35 J. OF AM. ACAD. OF
PSYCH. & L. 454, 466 (2007).|
225 U.S. v. Fields, 04-50393 (5th Cir. 2005), http://www.apa.org/psyclaw/us-v-fields.pdf,
226 AM. PSYCHIATRIC ASSOC., ASSESSING THE RISK OF VIOLENCE: POSITION
| Hart, supra note 160, at 387; |
|Wollert, supra note
215, at 72-73 |
(arguing that the current actuarial tests “are of
limited value” for civil commitment hearings in large part because of
their error rates, in particular for offenders other than young adults);
Scott I. Vrieze & William M. Grove, Predicting Sexual Recidivism,
32 LAW & HUMAN BEH. 266, 276 (2008); |
| Robert A. Prentky, Howard
Barbaree, Eric Janus, Barbara K. Schwartz & Martin P. Kafka, Sexually
Violent Predators in the Courtroom: Science on Trial, 12 PSYCHOL.
PUB. POL’Y & L. 357, 383 (2006); |
| Boer, supra note 219 |
(arguing that the only thing risk researchers agree upon is the general
description of types of risk assessments, such as clinical, actuarial,
and structured professional judgments).
228 Wollert, supra note 215, at 78.
| Charles P. Ewing, “Dr. Death” and the Case for an Ethical
Ban on Psychiatric and Psychological Predictions of Dangerousness in
Capital Sentencing Proceedings, 8 AM. J. L. &MED. 407, 418
| Boer, supra note 219; |
| JOHN MONAHAN, THE CLINICAL
PREDICTION OF VIOLENT BEHAVIOR 13-16 (1981) |
(contending that the extreme
deprivation of liberty that civil commitment causes raises the spectre
of ethical concerns for psychologists and psychiatrists participating in
the legal system);
| Prentky et al, supra note 5, at 383; |
| Hart et
al., supra note 180, at s64.|
230 Theodore Donaldson & Richard Wollert, A Mathematical Proof
and Example that Baye’s Theorem is Fundamental to Actuarial Estimates
of Sexual Recidivism Risk, 20 SEXUAL ABUSE: A J. OF RES. &
TREATMENT 206, 214 (2008).
|231 Berlin et al., supra note 139, at 382 |
(arguing it is
dangerous precedent to use group membership as a corollary to individual
| See also Reinhard Eher et. al., Failure of
STATIC-99 and SORAG to Predict Relevant Reoffense Categories in Relevant
Sexual Offender Subtypes: A Prospective Study, 8 SEXUAL OFFENDER
TREATMENT 1 (2008) |
(stating that even if the instruments are statically
confirmed as better than chance, their practical value in legal settings
should be questioned).
232 Janus & Prentky, supra note 2, at 90.
233 Beecher-Monas & Garcia-Rill, supra note 22, at 306.
| In re Stevens, 803 N.E.2d 1036, 1044-1045 (Ill. Ct. App. 2004) |
(ruling, in the alternative, even if a scientific principle, it is not
novel, has been generally accepted by professionals who assess future
dangerousness of sex offenders, and was subject to cross-examination);
People v. Therrian, 113 Cal.App.4th 609, 616 (2004); |
| In re Thorell, 72
P.3d 708, 755 (Wash. 2003); |
| In re Taylor, 134 P.3d 254 (Wash. App.
| State v. Fields, 35 P.3d 82, 88 (Ariz. 2001); |
| Wilson v. Phillips,
73 Cal.App.4th 250 (1999).|
| State v. Fields, 35 P.3d at 89. |
| See also People v. Miller,
2005 Cal.App.Unpub.LEXIS 3130, at *15 |
(stating that the expert’s
testimony about using RRASOR and STATIC-99 “did not carry a misleading
aura of infallibility”).
| People v. Castillo, 170 Cal.App.4th 1156, 1165 (2009) |
the state expert as “applying the scientifically validated
‘Static-99’ analysis to predict the likelihood that Castillo would
commit future sex offenses”);
| In re J.Z.M., 2008 N.J.Super.Unpub.LEXIS
1343, at *8 |
(describing STATIC-99 as a “well-validated actuarial
238 Garcetti v. Superior Court, 102 Cal. Rptr. 2d 214, 240 (2001).
| In re Simons, 821 N.E.2d 1184 (Ill. 2004); |
| Ortega-Mantilla v.
Florida, 898 So 2d 1164, 1168 (Fla. 2005); |
| In re Rudolph, 2004 Wash.App.Unpub.LEXIS 1203, at *4n.2; |
| Lee v. State, 854 So.2d 709, 712
(Fla. Ct. App. 2003); |
| In re R.S. 801 A.2d 219, 220 (N.J. 2002); |
| In re
Holtz, 653 N.W.2d 613, 619 (Iowa App. 2002); |
| In re Rosado, 2009 N.Y.
Misc. LEXIS 1741, at 56.|
240 In re J.P., 772 A.2d 54, 62 (N.J. App. Ct. 2001) (excluding
241 Ortega-Mantilla, 898 So.2d, at 1168.
242 In re Simons, 821 N.E.2d at 1192.
243 Id. at 1193.
244 Roeling v. State, 880 So.2d 1234 (Fla. App. 2004).
245 In re Simons, 821 N.E.2d at 1193.
247 2008 U.S.Dist.LEXIS 1387, 1387 (D. Mass. 2008)
solely upon precedent in In re Simons).
248 In re Goddard, 144 S.W.3d 848, 853 (Mo. Ct. App. 2004).
| In re Shearer, 2006 Iowa App.LEXIS 34, at *12; |
| In re Ashlock,
2002 Iowa App.LEXIS 1060, at *12.|
250 In re R.S., 773 A.2d 72, 90 (N.J. Super. 2001)
since Barefoot accepted the reliability of clinical judgment as
to future dangerousness, then actuarial evidence must also be
251 State v. Romley, 35 P.3d 82, 88 (Ct. App. Ariz. 2001)
(acknowledging state’s continued allegiance to Frye and denying
Frye applied to the evidence).
| In re Thorell, 72 P.3d 708, 755 (Wash. 2003); |
| People v. Litmon,
2002 Cal.App.Unpub.LEXIS 8195, at 56-57; |
| In re Hauge, 812 N.E.2d 571,
573 (Ill. App. 2004).|
| Orozco v. Ahlin, 2008 U.S.Dist.LEXIS 108797, at *51 (D. Cal.); |
re Field, 813 N.E.2d 319 (Ill. App. 2004).|
254 Clotfelter, 2002 WL 31116960, at *10 (Cal. App.).
255 In re P.F., 712 N.W.2d 610, 616 (N.D. 2006), aff’d, 744 N.W.2d
256 See Burton v. State, 884 So.2d 1112, 1118 (Fla. Ct. App.
(arguing that humans’ predictions about other human’s behavior
is likely novel and more care should be taken in defining the relevant
scientific community beyond the small set of professionals who profit
from the tests they proliferate).
257 Lee v. State, 845 So.2d 709, 717 (Fla. Ct. App. 2003) (concurring
258 In re Burton, 884 So 2d 1112, 1119-1120 (Fla. Ct. App. 2004).
259 In re Murrell, 215 S.W.3d at 117 (dissenting opinion).
| In re Anderson, 730 N.W.2d 570, 583-590 (N.D. 2007) (dissenting
(providing citations to peer reviewed studies and lamenting
about the uncritical use of the actuarial assessments which he argued
had become substitutes for judicial judgments);
| In re Murrell,
215 S.W.3d at 115.|
261 512 F.3d 421 (7th Cir. 2008).
262 Id. at 424.
264 Id. at 425 (citing Janus & Prentky).
265 In re Simons, 821 N.E.2d, at 1194.
266 Commonwealth v. Parks, 2005 Mass.Super.LEXIS 225, at *12.
| People v. Myers, 2005 Cal.App.Unpub.LEXIS 4872, at *10; |
| Black v.
Voss, 557 F.Supp.2d 1100, 1108 (D. Cal. 2008) (quoting lower court); |
Carmony v. Hunter, 2006 U.S.Dist.LEXIS 92099, at *51 (D. Cal. 2006).|
268 2006 R.I.Super.LEXIS 187.
269 Id. at *3.
270 Id. at *2.
271 Id. at *8.
272 Id. at *8.
273 Id. at *9.
| ARIZ. REV. STAT. § 36-3701(b)(7) (2009);|
|CAL. W & I § 6600
| MASS. GEN. LAWS ch. 6, § 178C (2009); |
| PA. CONS. STAT. ANN. §
6403(a)(3) (2009); |
| S.C. CODE ANN. § 44-48-30(1)(b) (2008); |
| TEX. HEALTH
& SAFETY CODE ANN. § 841.003(a)(2) (2009); |
| VA. CODE ANN. 37.2-900
275 MO. REV. STAT. § 632.480(5) (2009).
| 275 ILL. COMP. STAT. ANN. § 207/15(b)(5). |
legislature changed its standard from “substantially probable” to
“likely.” 2003 Wisc. Act § 183, s2.|
277 MINN. STAT. § 253B.02(18)(b) (2008).
| IOWA CODE § 229A.2(4) (2008); |
|WISC. STAT. § 980.01(1m) (2008).|
| FLA. STAT. ANN. § 394.912(4) (2008); |
| KANSAS STAT. ANN. §
59-29a02(c) (2008); |
| NEB. REV. STAT. ANN. § 71-174.01(2) (2009); |
STAT. ANN. § 30:4-27.26 (2009). |
| With a slight variation, N.H. REV.
STAT. ANN. § 135-E:2(XI) (2009).|
280 Abbott, supra note 156, at .
281 Cooley v. Superior Court, 57 P.3d 654, 658 (2002).
282 Martin v. Reinstein, 987 P.2d 779, 800 (Ariz. App. 1999).
| Fennel, supra note 48, at 40. He cites
| RON SUSKIND, THE
ONE PERCENT DOCTRINE: DEEP INSIDE AMERICA’S PURSUIT OF ITS ENEMIES
SINCE 9/11 62 (2006) |
(referring to then Vice-President Dick Cheney’s
stance that preventive measures were justifiable if there were even a 1%
chance of a security threat) and
| George G. Woodsworth & Joseph B.
Kadane, Expert Testimony Supporting Post-Sentence Civil Incarceration
of Violent Sexual Offenders, 3 LAW, PROBABILITY & RISK 221, 226
| N.Y. CORRECT. LAW § 168-l (McKinney 2009); |
| MASS. GEN. LAWS ch.6
§ 178K(2) (2008); |
| MONT. CODE ANN. § 46-23-509 (2009); |
| OKLA. STAT ANN.
Tit. § 582.5 (West 2009).|
285 In re Ewoldt, 634 N.W.2d 622, 624 (Iowa 2001).
286 Id. See also In re Pierce, 748 N.W.2d 509, 513 (Iowa 2008)
(determining the state need not show immediate risk, so measures of
lifetime risk were acceptable).
| In re Murrell, 215 S.W.3d 96, 105 (Mo. 2007); |
| Beasley v. Molett,
95 S.W.3d 590, 600 (Tex. App. 2002).|
288 See also In re Wilson, 2007 Iowa App. LEXIS 1333, at *5.
289 In re K.S., 2008 N.J. SuperUnpub.LEXIS 627, at *10.
| People v. Therrian, 113 Cal.App.4th 609, 612 (2003); |
| In re
Wilson, 2007 Iowa App.LEXIS 1333, at *2; |
| In re Murrell, 215 S.W.3d 96,
109 (Mo. 2007); |
| People v. Deberry, 2008 Cal.App.Unpub.LEXIS 11, at
| In re Harless, 2007 Iowa App.LEXIS 66, at *6; |
| In re Rush, 2009
N.D. 102; |
| In re Lalor, 2003 WI App. 68, P13 ( 2003); |
| In re G.R.H., 758
N.W.2d 719, 723 (N.D. 2008).|
292 In re Taylor, 134 P.3d 254, 257 (Wash. Ct. App. 2006)
STATIC-99 score of 52% re-offense rate in 15 years).
293 Cooley, 58 P.3d at 659.
| State v. Twiggs, 2007 Ohio 1302, at *11 (Ohio Ct. App.) |
(acknowledging lower court’s belief that the STATIC-99 score was the
“most clear and convincing evidence” to establish sexual predator
status for registration);
| State v. Dyer, 2007 Ohio 4901, at *25 (Ohio
Ct. App.) |
(stating lower court was heavily influenced by state experts
agreeing on high STATIC-99 scores in registration case).
| State v.
Butler, 2006 Ohio 4492, at *9 (Ohio Ct. App.) |
(indicating that the
STATIC-99 52% risk “weighed heavily” in the lower court’s
determination of sexual predator status in registration case).
295 People v. Flores, 144 Cal.App.4th 625, 630 (2006).
| Garcetti, 102 Cal. Rptr. 2d at 228 |
(noting state expert
deriving a 52% score from STATIC-99 then adding 5 percentage points
based on other risk factors), rev’d by Cooley, 57 P.3d;
Commonwealth v. Cowen, 897 N.E.2d 586, 590n.3 (2008).|
| U.S. v. Shields, 597 F. Supp.2d 224, 236 (D.Mass. 2009); |
v. Stewart, 2003 Cal. App.Unpub.LEXIS 4207, at *8; |
| People v. Pacini,
2003 Cal.App.Unpub.LEXIS 325, at *34.|
298 People v. Langhorne, 2005 Cal.App.Unpub.LEXIS 11150, at *13 (
299 Hart et al., supra note 163, at s64.
300 Pentky et al, supra note 5, at 380.
301 Pedroza v. State, 773 So.2d 639, 641 n.3 (Fla. Ct. App. 2000).
302 Id. at 643.
| People v. Field, 813 N.E.2d 319, 322, 325 (Ill. Ct. App. 2004); |
People v. Avilla, 2008 Cal.App.Unpub.LEXIS 6125, at *23. |
| People v.
Wallace, 2006 Cal.App.Unpub.LEXIS 1039, at *5; |
| People v. Jackson, 2004
Cal.App.Unpub.LEXIS 2390; |
| In re Commitment of R.S., 339 N.J.Super. 507,
524 (2001). |
| See also People v. Taylor, 830 N.E.2d 855, 857 (Ill.
App. Ct. 2005) |
(citing state expert that RRASOR and STATIC-99 are each
“a reliable tool” and generally accepted, while defense expert
testified they are not generally accepted, but “young pioneering
efforts of novel science” and since not tested in diverse samples, not
304 In re R.S., 773 A.2d 72, 82 (N.J. Super. 2001)
(also implying the
use of them were an ethical problem).
305 People v. Stewart, 2003 Cal.App.Unpub.LEXIS 4207, at *9.
| U. S. v. Abregana, 574 F. Supp.2d 1145, 1155 (D. Hawaii) |
expert disagreeing with two defense experts with a 2 point gap in
STATIC-99 scores (state expert assigning a 5) and a one point gap in
RRASOR scores (state expert assigning a 4) because of a disagreement in
what to base as the index offense to factor in prior to Index offense);
In re Good, 745 N.W.2d 88, 88 (Wis. Ct. App. 2008) |
(experts differing on
STATIC-99 and RRASOR scores because of disagreement about whether to
count an act as a sexual violence).
| Kilgore v. Hurst, 64 Va.Cir. 376
(noting disagreements between state and defense experts on RRASOR
concerning whether to count a prison sex infraction and on STATIC-99 as
to the factor of not having lived with a partner for 2 years considering
his youth and incarceration);
| State v. McKee, 160 Cal.App.4th 1517, 1552
n.23-25 (2008) |
(using STATIC-99, state experts scoring a 3, defense
expert a 2);
| Sigman v. Rogers, 2008 U.S.Dist.LEXIS 71127, at *23 |
(summarizing trial judge’s review of the experts’ scoring on
STATIC-99 as being “either a four, a five, a six, or a seven,
depending how you read the directions for scoring,” with the state
arguing a minimum of six and the defense expert conceding as high as
307 People v. Rose, 2007 Cal.App.Unpub.LEXIS 10017, at *8.
308 People v. Torres, 98 Cal.App.4th 205, 209 (2002).
309 See, e.g., FRE 704.
| In re Stringer, 2006 Minn.App.Unpub.LEXIS 831, at *10; |
| State v.
Bieck, 2004 Ohio 3562, at *8 (Ct. App.).|
| In re Savala, 2004 Wash.App.LEXIS 1443, at *10; |
| State v. Mruk,
2006 Ohio 590, at *5 (Ct. App.).|
312 In re Rustman, 2006 Minn.App.Unpub.LEXIS 683, at *6.
313 In re Simons, 821 N.E.2d at 1188.
| People v. Johndrow, 2009 Cal.App.Unpub.LEXIS 1077, at *4-5 (2009) |
(indicating expert based the assessment of “high risk” on STATIC-99
and another actuarial instrument);
| In re L.X.B., 2009 N.J.Super.Unpub.LEXIS 1461, at *3 |
(noting state expert basing “high
risk” judgment on STATIC-99 score of 8);
|In re Simons, 821 N.E.2d
1184, 1187 (Ill. 2004) |
(based on multiple actuarial tests, including
| In re Taylor, 830 N.E.2d 855, 857-858 (Ill. App. 2005) |
(describing state experts stating that the actuarial results, including
RRASOR and STATIC-99 “indicated that [he] was likely to re-offend”).
315 State v. Carter, 2007 Ohio 2644, at 14 (Ohio Ct. App. 2007).
| People v. Pacini, 2003 Cal.App.Unpub.LEXIS 325, at *34; |
| People v.
Castillo, 170 Cal. App. 4th 1156 . 1165 (2009). |
| People v. Jackson, 2004 Cal.App.Unpub.LEXIS 2390, at *6; |
| Garcetti v. Superior Court, 85
Cal.App.4th 508, 523 |
(describing the STATIC-99 tables as establishing
the minimum risk for re-offending);
| In re Pierce, 748 N.W.2d 509, 513
(Iowa 2008) |
(state expert arguing the STATIC-99's 52% re-offense rate was
“conservative” since victims under-report).
| People v. Hernan, 2008 Cal.App.Unpub.LEXIS 7697; |
| Shields, 597
F.Supp.2d at 238-239; |
| People v. Allen, 44 Cal.4th 843, 853 (2008); |
Huftile v. Hunter, 2009 U.S.Dist.LEXIS 5311, at *16 (E.Dist. Cal.) |
(citing state expert referring to another expert as believing that the
STATIC-99 experience rates would double if charges were considered in
addition to convictions).
318 Hanson & Thornton, supra note 150, at .
319 In re Shearer, 2006 Iowa App.LEXIS 34, at *11 (2006).
320 In re Civ. Commitment of Luhmann, 2007 Minn.App.Unpub.LEXIS 890,
at *10 (2007)
(noting expert also testifying the defendant’s high
scores for likelihood of recidivism was supported by his socio-economic
| State v. McKee, 160 Cal.App.4th 1517, 1552 n.23 (2008). |
also In re Stokes, 745 N.W.2d 631, 633 (N.D. 2008) |
(while one state
expert used RRASOR and STATIC-99, other state expert declined to use
those tests arguing they would be “spuriously low” as applied to the
defendant as previous allegations that he tried to talk to adolescents
did not result in official charges).
322 People v. Langhorne, 2005 Cal.App.Unpub.LEXIS 11150, at 17.
| In re Burgess, 147 S.W.3d 822, 829 (Mo. App. 2004) |
finding the “more likely than not” standard met despite actuarial
results far less than 50% based on the defendant’s failure to
participate in treatment or assessment);
| People v. Clotfelter, 2002 WL
31116970, at 8 (Cal. App. 2002) |
(state expert, while admitting that
STATIC-99 had its “shortcomings” also stated she believed the
STATIC-99 instrument under-estimated the risk as to the defendant because
of the presence of other factors).
| State v. Garner, 2008 Ohio 1949; |
| State v. Vanek, 2007 Ohio 6194,
at 12; In re Hehn, 745 N.W.2d 631, 636 (N.D. 2008) |
previously made clear that we will not engage in a ‘contest over
percentage points’ when it comes to determining whether an individual
meets the requirements for civil commitment”);
| People v. Murphy, 2001 Cal.App.Unpub.LEXIS 2770, at *19 |
(despite state’s experts using RRASOR
and STATIC-99 to get risks of less than 50%, court ruled experts could
use additional factors when they opined they believed the risk to be
greater than 50%);
| State v. McKinniss, 795 N.E.2d 160, 163 (Ohio App.
(confirming a sexual predator designation despite a low risk from
| In re M.D., 757 N.W.2d 559, 562 (N.D. 2008) |
(declining to find
that low actuarial scores was dispositive).
325 In re J.R., 762 N.W.2d 305, 326 (Neb. 2009).
| State v. Johns, 2004 Ohio 5124, at *10 (App.). |
| Contra Commonwealth
v. Monroe, 2008 Mass. Super. LEXIS
480, at *23 |
(ruling in favor of the
defendant where the state’s expert conceded a 0 score on STATIC-99,
the court found the expert’s clinical assessment that the defendant
was likely to recidivate anyway was unsupported by objective evidence).
| Cooley, 58 P.3d at 660 |
(state expert “conceding” that
STATIC-99 had “only moderately reliable as an overall instrument,”
“but is the best we can come up with” and defense expert noting it
was “weak and inexact,” has no know base rate of recidivism,
overlapping predictors that might overestimate risk, and has not been
standardized to Hispanic population);
| Therrian, 113 Cal.App.4th
at 613 |
(state expert testifying the developers of STATIC-99 “never
said it was perfect” while defense expert calls it a work-in-progress
and its reliability unknown);
| People v. Taylor, 830 N.E.2d 855, 857
(Ill. App. Ct. 2005) |
(state expert stating that RRASOR and STATIC-99 are
each “a reliable tool”, while defense expert testifies they are
“young pioneering efforts of novel science” and since not tested in
diverse samples, not “settled science”);
| In re Traynoff, 831 N.E.2d
709, 714 (2005) |
(state expert noting that while STATIC-99 was a “work
in progress” it was strongly relied upon, while defense expert noted
there was controversy within the mental health field on using actuarial
tools and described them not as tests with manuals but as research
328 Shields, 597 F.Supp.2d at 238-239
on STATIC-99’s estimation whereby state expert concludes age is not a
protective factor in this case to believe the tool over-estimates the
defendant’s risk while the defense expert concludes the opposite).
329 People v. Thomas, 2002 Cal.App.Unpub.LEXIS 11548, 8.
| People v. Avila, 2008 Cal.App.Unpub.LEXIS 6125, at *23; |
| People v.
Rose, 2007 Cal.App. 10017, at 14-15; |
| People v. Rose, 2007 Cal.App.
10017, at *14-15 |
(defense expert testifying that STATIC-99 “only
accounts for roughly 11 percent of the reasons why someone sexually re-offends,” that STATIC-99 was mostly based on young adult samples of
child molesters in England and Canada);
| People v. Thomas, 2002 Cal.App.Unpub.LEXIS 11548, at *8 |
(citing defense expert clarifying that
the actuarial tools provided group data, not individual assessment, and
that STATIC-99 was based on a highly disturbed group thereby should be
331 People v. Hernan, 2008 Cal.App.Unpub.LEXIS 7697, at *7
expert testifying STATIC-99 may over-predict sexual recidivism for the
U.S. population by 3 or 4 times).
332 State v. Fowler, 694 N.W.2d 446, 451 (Ct. App. Wisc. 2005).
| People v. Vercolio, 843 N.E.2d 417, 420 (Ill. App. Ct. 2006); |
People v. Edmonton, 103 Cal.App.4th 557, 562 (2002).|
| In re Stevens, 803 N.E.2d 1036, 1043 (Ill. App. Ct. 2004); |
| In re
Sandry, 857 N.E.2d 295, 302 (Ill. Ct. App. 2006).|
| People v. Jackson, 2004 Cal.App.Unpub.LEXIS 2390, at *11-12 |
(defense expert criticizing STATIC-99 as having a wide margin for error,
is systemically biased because it fails to consider protective factors,
is biased against older offenders, and has not been validated on
| People v. Wolfenberger, 2003 Cal.App.Unpub.LEXIS
9850, at *12 |
(defense expert stating that STATIC-99 had not been
validated on that state’s population and RRASOR was “worthless”);
58 P.3d at 660 |
(defense expert stating has not been normed on
| People v. Flores, 144 Cal. App. 4th 625, 630 (2006) |
expert stating inapplicable as not normed on castrated men).
336 Pritchett v. Hunter, 2008 U.S.Dist.LEXIS 106899, at *12.
| Defendants have not succeeded in challenging the actuarial
instruments as not relevant since they are based on group data rather
than individual risk. |
|See, e.g., In re Murrell, 215 S.W.3d 96, 112 (Mo.
| Contra State v. Garner, 2008 Ohio 1949, at *45 |
precedence that STATIC-99 cannot provide an individualized assessment of
| In re Wilson, 2007 Iowa App.LEXIS 1333, at 5 |
(describing the actuarial instruments as comparing the defendant to “a
group of people with shared characteristics”);
| In re Murrell, 215
S.W.3d 96, 113 (Mo. 2007) |
(ruling that it was improper for the expert to
use the actuarial percentage as relating directly to the defendant’s
chance of re-offending, but that this was not dispositive as the defense
did not object).
339 People v. Hubbart, 88 Cal.App.4th 1202, 1214 (2001).
340 In re Taylor, 134 P.3d 254, 257 (Wash. Ct. App. 2006).
|In re Murrell, 215 S.W.3d 96, 111 (Mo. 2007) |
expert claiming the actuarial tool was “relevant to the risk of
recidivism for the individual as well as the test group”);
| People v.
Troglin, 2005 Cal.App.Unpub.LEXIS 9649, at *2 (2005)|
STATIC-99 as an “actuarial tool that estimates an individual's risk
for sexual re-offense”);
| People v. Suarez, 2008 Cal.App.Unpub.LEXIS
9144, at *5 |
(referring to expert describing STATIC-99 as measuring the
“likelihood that a person will engage in sexually violent behavior);
113 Cal.App.4th at 612 |
(describing “the total score of the [STATIC-99]
is a percentage chance of the defendant’s likelihood of being
convicted for a future sexual offense”).
341 In re Burton, 884 So.2d 1112, 1113 (Fla. Ct. App. 2004).
| Cooley v. Superior Court, 58 P.3d 654, 659 (Cal. 2002) |
of 6 on the STATIC-99 test put him in the ‘high risk’ category for
re-offense, with a 52 percent minimum risk of re-offense within 15
|Therrian, 113 Cal.App.4th at 612 |
the STATIC-99 total score being the “percentage chance of the
defendant’s likelihood of being convicted for a future sexual
| Helm v. Ahlin, 2009 U.S.Dist.LEXIS 41572, at *7 (D. Cal. 2009) |
(summarizing state expert’s testimony that the STATIC-99 “score
indicates [Petitioner] has "high risk" of re-offending”);
Garcetti v. Superior Court, 85 Cal.App.4th 508, 525 (2000) |
expert as testifying that after using the actuarial tools, the defendant
“comes out over [a] 50 percent’ recidivism risk”).
| People v. Zinlu,
2007 Cal.App.Unpub.LEXIS 8730, at *5 |
(stating the “STATIC-99 score
indicated that he had a 39 percent risk of re-offense in five years”);
People v. Tribble, 2004 Cal.App.Unpub.LEXIS 10133, at *5 |
that the STATIC-99 score translated to a risk of defendant re-offending);
In re Anderson, 730 N.W.2d 570, 581 (N.D. 2007) |
(describing RRASOR as
“used to determine that [he] will engage in future sexually predatory
343 In re N.H., 874 N.Y.S.2d 733, 740 (2008).
344 People v. Taylor, 830 N.E.2d 855, 857-858 (Ill. App. 2005).
345 State v. McKee, 160 Cal.App.4th 1517, 1552 n.23 (2008).
346 Harris et al., supra note 150.
| State v. Vanek, 2007 Ohio App.LEXIS 5433, at *7; |
| State v.
Ellison, 2002 Ohio 4024, at *5 (Ct. App.) |
(ruling that STATIC-99
evidence could “be at odds with Ohio’s statutory scheme” which
requires an individualized determination);
| In re Civil Commitment of K.S.,
2008 N.J.Super.Unpub.LEXIS 627, at* 9 (2008).|
348 People v. Field, 813 N.E.2d 319, 322 (2004).
The expert stated
that he used the Hanson & Bussiere meta-analysis, which he described
as itself an actuarial instrument, and concluded that the defendant
having 7 of the 22 identified correlates in the meta-analysis was
indicative of the defendant’s future dangerousness.
meta-analysis he cites is not intended as an instrument and, indeed, the
authors themselves describe that work as “a quantitative review of the
sexual offender recidivism literature.”
Hanson & Bussiere, supra
note 183, at 349.
While Hanson and Bussiere discuss the various (far
more than 22) correlates with sexual recidivism, they also indicated
that “we do not recommend simply summing the items.” Id. at 358.
349 In re Sandry, 857 N.E.2d 295, 287, 302 (Ill. App. 2006).
B.W. v. State, 2009 Ind.App.LEXIS 967, at *7n.6
registration requirement with expert basing risk assessment in part on
STATIC-99 despite defendant being a juvenile).
350 In re Anderson, 730 N.W.2d 570, 582 (N.D. 2007).
| In re Stevens, 803 N.E.2d 1036, 1043 (Ill. Ct. App. 2004); |
| In re
Simons, 821 N.E.2d 1184, 1187 (Ill. 2004) |
(attributing such category to
the STATIC-99 “creators”).
352 In re Lieberman, 378 Ill.App.3d 585, 596 (2007).
353 An expert testified that a score of 4 on STATIC-99 translated to
“high risk” (In re Commitment of Fisher, 164 S.W.3d 637, 642 (Tex.
2005)), despite STATIC-99 classifying a 4 as “medium-high.”
354 Therrian, 113 Cal.App.4th at 613.
| In re Murrell, 215 S.W.3d 96, 109 (Mo. 2007) |
described STATIC-99 as “developed by looking at the characteristics of
approximately 4,000 sex offenders to see which characteristics they
possessed were associated with the likelihood of re-offense within 15
years, as defined by reconviction”);
| People v. Flores, 144 Cal.App.4th
625, 629 (2006) |
(stating the expert described STATIC-99 as being based
on data from 31,000 sex offenders);
| People v. Torres, 98 Cal.App.4th
205, 210 n.4 (2002) |
(indicating expert distinguished RRASOR and
STATIC-99 declaring that RRASOR was not developed using actual
recidivism statistics, but that STATIC-99 was);
| Shields, 597
F.Supp.2d at 237 |
(describing state expert as testifying that RRASOR’s
5-year rate of 49.8% was the observed rate while only the 10-year rates
| In re Simons, 821 N.E.2d 1184, 1187 (Ill. 2004) |
(describing state expert as testifying STATIC-99 was “based upon a
study of thousands of sex offenders from England, Canada, and the United
356 See also
|People v. Elam, 2003 Cal.App.Unpub. LEXIS
at *8 |
(stating that expert testified that defendant’s score was a “6
out of 6” on STATIC-99);
| Cooley, 57 P.3d at 659 |
expert as attributing to STATIC-99 a factor that considers “whether
the most recent sex offense involved the use of violence”).
| In re R.S.,
773 A.2d 72, 79 (N.J. Super. 2001) |
(state expert testifying that
STATIC-99 included a factor about substance abuse).
| Therrian, 113 Cal.App.4th at 612 |
(indicating the STATIC-99
experience table is the risk of conviction on a new sexual offense);
State v. Hornack, 2003 Ohio 426, at *8 (Ohio Ct. App.) |
state expert stating that STATIC-99 experience tables do not include
358 Black v. Voss, 557 F.Supp.2d 1100, 1106 (D. Cal. 2008)
expert testifying she used RRASOR but not STATIC-99 because the latter
measures risk for criminal offending and not sexual deviance).
| People v. Clotfelter, 2002 WL 31116970, at *7 (Cal. App. 2002) |
(noting state expert had previously scored the defendant with a 3 on the
STATIC-99, but in preparing for trial realized she could have added 2
more points because of evidence of prior sex offenses, which ended up
meaning a 13 percent recidivism rate rising to 40 percent);
| In re J.P.,
772 A.2d 54, 59 (N.J. App. Ct. 2001) |
(referring to state expert who
admitted scoring STATIC-99 incorrectly by double counting an offense);
Miles v. Commonwealth, 272 Va. 302, 308 (2006) |
(state conceded expert
incorrectly by assigning an additional point in RRASOR that was not
warranted by the number of prior convictions resulting in defendant’s
release from civil commitment as the statute specifically required a
minimum RRASOR score);
| Shelton v. Commonwealth, 645 S.E.2d 914, 915 (Va.
(state expert initially giving defendant a RRASOR score of 5, then
testifying at the probable cause hearing it was wrong and should be a 2,
but then at trial adjusting the score to 3);
| People v. Allen, 44 Cal.4th
843, 854 (2008) |
(state expert originally assigning a 6 on STATIC-99 and
later raising it to an 8 because of more information).
360 U. S. v. Abregana, 574 F.Supp.2d 1145, 1155 (D. Haw.)
expert disagreeing with two defense experts with a 2 point gap in
STATIC-99 scores (state expert assigning a 5) and a one point gap in
RRASOR scores (state expert assigning a 4) because of a disagreement in
what to base as the index offense to factor in prior to Index offense).
| Clotfelter, 2002 WL 31116970, at *7-9 |
disagreeing on which offense to classify as the index offense and on
what type of offense (here, a parole violation and a hospital rule
| People v. Stewart, 2003 Cal.App.Unpub.LEXIS 4207, at *7 |
(state experts giving a score of 3 vs. 5 on RRASOR and 5 vs. 6 on
| State v. Combs, 720 N.W.2d 684; 687, 689 (Wisc. Ct. App.
(four state experts giving scores of 2, 3, and 4 on RRASOR, and
from 4 to 8 on STATIC-99; one expert gave a “6/7/8” score,
explaining it depended on how he scored certain items).
| See also
re Simons, 821 N.E.2d 1184, 1188 (Ill. 2004); |
| Therrian, 113
Cal.App.4th at 612.|
362 2009 Cal.App.Unpub.LEXIS 1427, at *14.
| People v. Paredes, 2009 Cal. App.Unpub.LEXIS 3274, at *3; |
v. Lopez, 146 Cal.App.4th 1263, 1269 (2006) |
(state expert’s prediction
based solely on the instruments);
| People v. Edmonton, 103 Cal.App.4th
557, 561 (2002).|
| Barbaree et al., supra note 196; |
| Harris et al., supra note
150, at 3.|
365 Michael C. Seto, Is More Better? Combining Actuarial Risk
Scales to Predict Recidivism among Adult Sex Offenders, 17 PSYCHOL.
ASSESSMENT 156 (2005).
366 Id. at 165.
367 Howard E. Barbaree, et al., Different Actuarial Risk Measures
Produce Different Risk Rankings for Sexual Offenders, 18 SEXUAL
ABUSE: A J. OF RES. & TREATMENT 423 (2006).
368 Sigman v. Rogers, 2008 U.S.Dist.LEXIS 71127, at *44-45 (D. N.J.
| Fennel, supra note 48, at 61; |
| Simon, supra note 19,
370 Jennifer L. Mnookin, Idealizing Science and Demonizing
Experts: An Intellectual History of Expert Evidence, 52 VILL. L.
REV. 763, 793 (2007).
371 D. Michael Risinger, The Irrelevance, and Central Relevance,
of the Boundary Between Science and Non-Science in the Evaluation of
Expert Witness Reliability, 52 VILL. L.
REV. 679, 683 (2007).
372 George, supra note 106, at 252
(arguing that this places
the opposing attorney in a position of either having to challenge the
admissibility of the expert’s opinion based on reliability grounds or
submitting one’s own expert and then just challenging the weight of
the evidence offered by the original expert).
373 Nicole Yell, The California Sexually Violent Predator Act and
the Failure to Mentally Evaluate Sexually Violent Child Molesters,
33 GOLDEN GATE U.L. REV. 295, 297 (2003)
(arguing that the California
Sexually Violent Predator Act is not used often enough because the state
does not civilly commit a majority of its sexually violent predators
and, therefore, the statute does not protect children).
374 Janus & Prentky, supra note 33, at 1445-1446.
v. State, 884 So.2d 1112, 1120 (Fla. Ct. App. 2004) (concurring opinion)
(referring to the high error rate in actuarial tests for future
dangerousness and arguing that in the sexual predator arena,
embarked on the first steps into a new world, arguably a science fiction
world, in which judges and juries are asked to prevent crimes years
before they occur.”).
| Boer, supra note 219 |
(arguing that there is more concern
in the literature about which method of risk assessment is preferred
than what should be the focus of the debate, which includes whether
public safety is actually served and ethics in mental health attempts at
| Janus, supra note 3, at 6-7 |
the actuarial assessment debate is improperly focusing on the small
number of sex offenders who are at risk of being predators instead of
understanding and preventing the larger issue of sex crimes committed by
greater number of non-predator criminals, such as those engaged in
so-called acquaintance rape).
| Lester, supra note 9, at 372-373; |
| NATHAN JAMES ET AL.,
CIVIL COMMITMENT OF SEXUALLY DANGEROUS PERSONS 32-35 (2008); |
| Molly T.
Geissenhainer, The $ 62 Million Question: Is Virginia’s New Center
to House Sexually Violent Predators Money Well Spent?, 42 U. RICH.
L. REV. 1301, 1328-1333 (2008).|
377 Janus & Prentky, supra note 33, at 1459
that legislatures will continue to mandate risk assessments in sexual
predator laws and that judges will “undoubtedly continue to oblige
378 See ALAN D. GOLD, EXPERT EVIDENCE IN CRIMINAL LAW: THE
SCIENTIFIC APPROACH 17 (2003)
(contending that the frequency of junk
science being offered as credible in criminal cases means that judges
and lawyers must gain a scientific literacy to distinguish good science
| Post-Daubert, others have written general guides to
educate judges and lawyers on their scientific literacy. |
JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (2d ed.) (2000) |
(including chapters on
| a Reference Guide on Statistics (David H. Kaye
and David A. Freedman, 85) and |
| a Reference Guide on Multiple
|ERICA BEECHER-MONAS, EVALUATING SCIENTIFIC EVIDENCE: AN
INTERDISCIPLINARY FRAMEWORK FOR INTELLECTUAL DUE PROCESS (2007). |
paper offers specific questions to ascertain the level of expertise the
offered expert has in relation to the expert opinion at issue. |
| David M.
Godden and Douglas Walton, Argument from Expert Opinion as Legal
Evidence: Critical Questions and Admissibility Criteria of Expert
Testimony in the American Legal System, 19 RATIO JURIS 261, 277-279