How ‘Pseudoscience’ Turns Sex Offenders into Permanent Outlaws

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Photo by Becker1999 via Flickr

A New York Appeals court has rejected the notion that risk prediction under the state’s Sex Offender Registration Act (SORA) should have a scientific basis. According to the July 2017 decision in People v. Curry, courts must not only adhere to a risk assessment instrument (RAI) that has been repeatedly exposed as pseudo-scientific humbug, they may not even consider a scientifically validated instrument such as the Static-99.

It wasn’t the first time. For the 20 years since SORA was enacted, courts have used the RAI to classify individuals after they’ve completed their sentences for a designated “sex offense.” The classifications purport to show the person’s likelihood of committing another sex offense in the future.

Persons adjudicated as level 2 or 3 are thought to be very dangerous indeed, and must register with law enforcement for the rest of their lives.

Their photographs, addresses, and a description of the past offense are made publicly available online at the sex offender registry. They may legally be denied jobs and housing, including shelters. They may be evicted, fired or hounded from the neighborhood by civic-minded vigilantes such as Parents for Megan’s Law.

This looks an awful lot like advance punishment for a future crime, like the science fiction film “Minority Report.” It also looks like a second punishment for a past offense—a practice the Constitution frowns on in the Double Jeopardy Clause.

Not at all, say the courts. SORA isn’t punishment, but merely a regulatory measure to protect public safety. As one legislator put it, it’s like affixing warning labels to toxic substances.

In that case, you’d think everyone would be deeply concerned to make sure that the label is as accurate as possible. It hardly contributes to public safety to broadcast over the Internet that Mr. Jones might commit a sex offense at any minute, when in fact he presents no such risk.

But that’s not how courts think.

Risk level under SORA is determined through an adversarial hearing in criminal court where the prosecutor proffers the RAI and typically seeks the highest possible classification. The RAI is a chart, cobbled together by employees of the Department of Parole, that adds up points for factors such as whether the past offense involved contact over or under clothing, or whether the victim was under age eleven or over 62.

The more points, the higher the risk level.

Defense attorneys have repeatedly proffered peer-reviewed research and the uncontested expert testimony of psychologists specializing in sex offender recidivism showing that the RAI is based on the facile but discredited assumption that “if he did it before he’ll do it again.” The instrument takes no account of the scientific consensus that recidivism isn’t correlated to the perceived heinousness of the past offense.

The scientific articles cited by the RAI are not only outdated; they don’t remotely stand for the conclusions for which they’re cited. Although the RAI purports to be an objective scientific instrument, it uses its own idiosyncratic system of assigning and weighing points that’s heavily biased towards a finding of maximum risk.

We’ve proffered instruments such as the Static-99 and the SVR-20 which, unlike the RAI, have been tested and validated by mental health professionals. In contrast, nobody except New York judges and District Attorneys uses the RAI.

The judicial response ranges from numb indifference to sputtering indignation. The outstanding exception is Daniel Conviser, a trial judge in Manhattan, who issued a 100-page opinion in 2010 after hearing expert testimony. After analyzing the RAI in detail, he concluded that the instrument is so arbitrary that it violates due process. Unfortunately, his decision isn’t binding on other courts and has been ignored.

crystal ball

The crystal ball approach to risk assessment. Illustration by Squawk

It’s like a drug test that can’t tell the difference between coffee and cocaine.

Even courts that recognize that the RAI may not be “the optimal tool” initially reasoned that there’s no harm in using it because it’s “only a recommendation.” But the Court of Appeals subsequently held that the RAI is so “presumptively reliable” that courts are bound by its conclusions unless the defendant can somehow prove that it overestimates his future risk.

The obvious course, until now, was for the defendant to show that a scientifically tested and validated instrument such as Static-99 put him at a lower risk. No dice, says the Appellate Division. Why? Because although the Static-99 measures the probability of re-offending, it doesn’t say what offense the person will commit if he re-offends.

Which conveniently ignores that no matter what the RAI claims, it doesn’t accurately predict anything.

It’s hard to see how this implacable rejection of science squares with the notion that SORA isn’t punishment but merely a regulatory measure to protect public safety. So long as risk prediction is based on the perceived heinousness of the past crime, it’s nothing but punishment under an alias.

There are now over 40,000 New Yorkers on the sex offender registry, most of whom have been adjudicated as level 2 or 3 based on the RAI. Public safety isn’t served by creating a permanent, ever-growing underclass of people who will remain forever barred from normal civic life based on a pseudo-scientific instrument.

Appellate Squawk is the pseudonym of an appellate attorney in New York City, and the author of a satirical legal blog of that name. Readers’ comments are welcomed.

9 thoughts on “How ‘Pseudoscience’ Turns Sex Offenders into Permanent Outlaws

  1. Pingback: SORA: The human cost of junk science | Appellate Squawk

  2. Okay, you’re part right. But the part about the Static-99/R confers a scientific respectability on those instruments which they do NOT deserve. They have been discredited and, most importantly, they are being used in ways which even the test’s developers say is wrong. Specifically, the two instruments, Static-99 and Static-99R (the newer version) are not meant and were never meant, to be used to show reoffense risk past the date of a prisoner’s release from custody. The tests are now being used to assess risk (by a number of states) of male offenders (and the tests are only for males) who have been outside of the system for decades, having discharged all of their responsibilities of prison and parole except for Registration. California has recently, and very foolishly, legislatively stipulated the Static-99R’s use to assess Registrants a risk score that will determine when, or if they can ever be relieved of the duty to register as sex offenders. This is a wholly inappropriate use of Static-99/R, an already deeply flawed instrument.

  3. Fair enough. The Static-99 manual expressly says that the evaluator should consider the amount of time the person has lived offense-free in the community, but it’s not surprising that courts ignore that. Our purpose here was only to protest the utterly bogus RAI and NY’s courts rejection of the very idea of considering scientific research in favor of hysterical moral judgments about the past offense. The bottom line is that the whole premise of SORA is unscientific and unconstitutional. There’s no risk assessment instrument accurate enough to justify stigmatizing people for life, and even if there were, the deal in modern America (as opposed to, say, ancient Babylon) is that once you finish your sentence, that’s it.

  4. First of all before somebody can be called a scientist they have to respect the scientific theory, which means that you take into account all the variables and make sure that your theory is 100% repeatable. The reason psychiatrists and psychologists are called pseudoscience is because they don’t take into account all the variables, it simply would be impossible to do that, because human beings have literally millions of variables from things in their past to things that will happen to them in their future. I’ve attempted to address these issues of pseudoscience in articles that I’ve written at

    • The truth of the matter is no one could care less what legitimate science says. In the view of the courts anyone who rapes a woman or molested a child has forfeited their right to fairness and equity under the law.

  5. The Static-99R is highly flawed. The Static “test” assumes that a person’s future can be predicted by 10 questions. None of the 10 questions take *current* age or offense-free years after release into account. In California, under the new “tiered” bill, the Static-99R — veiled under the name “SARATSO” — will soon be used to classify about 8,000 people as Tier 3 registrants. Tier 3 will be labeled a “sex offender” for life.

    However, the Static-99R was never intended and/or designed to predict a lifetime of recidivism. California’s unpublished study only examines the Static-99R for a five-year term. Further, Karl Hanson — the “developer” of the Static — isn’t even licensed to practice psychology in California. In fact, if I am not mistaken, Hanson isn’t licensed to practice anywhere in the United States.

    According to page 13 of the newest Static-99R Coding Rules, the Static-99R’s “risk” results are only valid for two years after a person has been released from custody. Thereafter, risk is “halved” for “for every five years the offender is
    in the community without a new sex offence.” As Mr. Kennerly said above, the “Static-99 and Static-99R (the newer version) are not meant and were never meant, to be used to show reoffense risk past the date of a prisoner’s release from custody.” Here it is, direct from the source:

    Source 1:

    Page 13: “Our research has found that, in general, for every five years the offender is in the community without a new sex offence, their risk for recidivism roughly halves (Hanson, Harris, Helmus, & Thornton, 2014). Consequently, we recommend that for offenders with two years or more sex offence free in the community since release from the index offence, the time they have been sex offence free in the community should be considered in the overall evaluation of risk. Static risk assessments estimate the likelihood of recidivism at the time of release and we expect they would be valid for approximately two years. For offenders released for longer than two years and who have remained sex offence free, consider their overall behaviour and factors external to Static-99R in your overall risk assessment.”

    Equally troubling, most of the “studies” that ostensibly validate the Static cite Static developer Karl Hanson’s own studies that boast of the Static’s ostensible credibility. Read the fine print and footnotes to see “Hanson” in nearly every study that boasts said credibility. A conflict-of-interest? (Amy Phenix, Yolanda Fernandez, Andrew J. R. Harris, Maaike Helmus, and David Thornton are the other five ‘developers.’ Phoenix, Fernandez, Harris, Helmus, and Thornton’s names also frequently show up as co-authors to validating ‘studies.’)

    Also, the Static was actually only designed to triage prison populations. David Thornton — one of the original developers — had actually said this in an article: “‘It was very much about the triage of prison populations,’ Thornton said. ‘It wasn’t really about the forensic assessment of individual offenders.'”

    Source 2:

    In a paper published in The Journal of the American Academy of Psychiatry and the Law, co-authored by the former DSM-IV Task Force Chairperson, four professors pointed out some of the many flaws to the Static-99R. The four professors state that “the current Static-99 and its newer iteration, the Static-99R, violate the basic tenets of evidence-based medicine” because the Static tests lack “sample representativeness and uniform measurement of outcome.” (It makes sense, since all crimes are lumped together into the Static’s samples.) The four professors specifically state:

    “Unlike other arenas in mental health that seek to address potential risk of harm (e.g., risk for suicide) where individual factors are weighted into the assessment, sexual recidivism risk seems to be stalled in ‘actuarial-land’ with the veneer of ‘quantification’ belied by shifting ‘norms.’ Although they purport to be empirically based, the current Static-99 and its newer iteration, the Static-99R, violate the basic tenets of evidence-based medicine that require reasoned, not mechanical, application of group findings to the individual. Two core elements must be present to apply an actuarial risk model to a specific individual: sample representativeness and uniform measurement of outcome. Both of these elements are lacking in Static-99 and Static-99R research reviews. Thus, a call for caution must be sounded when using these tools to make weighty decisions involving an individual’s liberty and the protection of public safety.”

    Source 3:

  6. I understand your point completely and absolutely agree that the hysterics are deeply antagonistic to science, the scientific method and to a rational understanding of human sexuality. The problem is that scientific test instruments which accurately assess risk probably do not exist. Instead, there is statistical data, acquired over time, some of it with diligence, which offers the best insights into the likelihood of future offending. However, developing public policy based on statistics, alone are a civil liberties nightmare. It’s a big conundrum for those who insist upon eliminating all risk from society and who cannot identify any level of risk that they find acceptable. Sex offender treatment, in its many variants, is highly questionable in its efficacy if efficacy can even be agreed upon. To suggest that a certain amount of assumed risk in preference to endless incarceration and marginalization is necessary in this age of zero-tolerance is, itself, seen as communing with the devil, I’m afraid.

    To me, it is clear that we are in the midst of confluences that are not conducive to liberty, such as elected judges and prosecutors, depraved lawmakers and an appallingly ignorant and indolent citizenry. I’m not seeing how justice can come of that. I admit to being afraid for my country.

    Thanks for your continued, excellent work!

  7. A major problem with victim advocates and prosecutors being involved in determining community risk is that a conflation of “heinousness of offense” and “risk of recidivism” is assumed and goes unchallenged. With respect to most sexual offenses, no discernible correlation exists between the type of sexual offense and the risk of recidivism. Nevertheless, judges, attorneys and most of the population simply assume that if someone did something very bad, they must be more likely to repeat the behavior. Such a conflation is bad science, bad logic, often results in a waste of resources, and perpetuates pointless harm to generally harmless people. It’s odd (and maybe worth highlighting) that when it comes to crimes like murder (very low recidivism) and illicit drug manufacturing (very high recidivism), the presumption of a correlation between the heinousness of the crime and recidivism risk is not an issue. It is especially troubling that this conflation, with respect to sexual offenders, is easily debunked through the State’s own published recidivism data. Yet these data sets are completely ignored by those purporting to advance justice, fairness and by those who are responsible for using limited public resources in a responsible way. Unfortunately, most people like to be told what and how to think, and conflations (though easily discredited) are an easy slip of logic. I’m not sure how that sort of laziness is best combated – especially when it serves politicians and the media so well.

    • Another thing your comment reminded me of is the fact that the Static-99 and Static-99R only claim to estimate “risk” of recidivism from time of release. Neither the Static-99 or newer 99R claim to estimate dangerousness. Again, the Static tests *do not* estimate someone’s danger; they merely claim to estimate recidivism. This is pertinent because all types of sex offenses are lumped together in the Static’s sample. Violent rapes and child molestation are on equal footing to voyeurism and exhibitionism in Karl Hanson’s Static-99 land. This fallacy is even more pronounced by reviewing the Coding Form, in which a “non-contact” offender actually earns a HIGHER score than violent offenders. Refer to risk factor seven:

      Other things to reiterate: Only “age at release” is factored; not current age. Also, whether someone “lived with a lover” (question two) is highly reflective of the 1970s sample in which the Static’s risk factors were determined from. Nowadays, people often delay starting a family until an older age. Same with the fact that per question 10, homosexuals are most definitely discriminated against by the Static-99R (“Any Male Victims”).

      The flaws to the Static-99 and newer 99R are endless. It’s insane that California, and its CASOMB, decided to double down on such a ridiculous scam. The fact that CASOMB veiled the Static-99R with the name “SARATSO tool” was perhaps done to keep the public from prying into the Static’s endless flaws.

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