'THE STRINGS IN THE BOOKS AIN'T PULLED AND PERSUADED': HOW THE USE OF IMPROPER STATISTICS AND UNVERIFIED DATA CORRUPTS THE JUDICIAL PROCESS IN SEX OFFENDER CASES.

• Author: Cucolo, Heather Ellis

CONTENTS INTRODUCTION I. HOW COURTS RELY ON INACCURATE STATISTICS II. ON SHAME AND HUMILIATION A. Shame B. Humiliation III. HOW THIS VIOLATES THERAPEUTIC JURISPRUDENCE CONCLUSION INTRODUCTION

We begin this Article by sharing something about our past legal practice careers, as we believe that is so relevant to the topic that we focus on in this Article. When Michael L. Perlin was a rookie Public Defender in Trenton, New Jersey, in the early 1970s, he regularly visited the Menlo Park Diagnostic Center where some of his clients--those who had been found, in the phrase used then, to be "repetitive and compulsive" sex offenders--were housed. (1) When Heather Ellis Cucolo was a rookie Public Defender in Newark, New Jersey, in the late 2000s, she regularly visited the Special Treatment Unit ("STU"), attached to the state prison in Avenel, New Jersey, where some of her clients--now classified as sexually violent predators--were housed. (2) When the two of us talked about our experiences during the latter years, we were stunned at the similarities that we found: almost no meaningful treatment of any sort, prison-like conditions, and a population comprised of a minority of people whom we agreed posed a significant danger to the community but a majority of whom had committed crimes involving no personal contact. (3)

As we discussed our experiences further, we both inevitably focused on the topic at the heart of this Article: the way that improper statistics and unverified data has contaminated the "debate" surrounding the post-conviction treatment of sex offenders--whether in Facebook discussions or in U.S. Supreme Court cases. We believe we have an absolute obligation to call out those who distort the evidence and create a false consciousness in this area, be they TV news pundits or Supreme Court justices. (4) We use the word "corrupts" in our title consciously because we believe that what has resulted is the corruption of the judicial process. (5) Our thesis is simple--an examination of a range of judicial decisions involving sexual offender determinations reveals that, frequently, courts rely improperly on inaccurate and underdeveloped statistics as well as unverified and outdated information. This reliance, too often, underlies rulings that subject the sex offender to significant sanctions and loss of liberty. Additionally, the continuation of the testimonial script that all sex offenders are high recidivists, dangerous, compulsive, and untreatable contributes to the anti-therapeutic effect of shaming and humiliation. (6) This narrative results in isolation, seclusion, and lack of dignity; also, it further trivializes the judicial process and violates the tenets of therapeutic jurisprudence. We will consider each of these, and we will look at all of this through the filter of the Supreme Court's decision in McKune v. Lile, (7) a case decided sixteen years ago that is now beginning to resurface in new, critical literature that has deconstructed the case's basic fallacy in ways that we hope will stay at the forefront of this debate for the coming years. (8)

We argue here that, in fact, the "strings in the book" are "pulled and persuaded" (9) so that judges do not have to deal with the reality to which they willfully blind themselves. (10) The premises of judges' decisions related to the assessment of who is a sexually violent predator are built on houses of cards that could and should crumble quickly if we dispassionately examine the underlying statistics and data. A recent article critiqued the teleological way that courts interpret biologically-based evidence in a range of criminal procedure cases so that they can end up with the result that, a priori, they want to reach. Indeed, "judges..., like the rest of us, are subject to an incessant media barrage of media hysteria on questions of whether sex offenders are likely to recidivate." (11) We believe that it is impossible to make sense of the law or the science in this volatile area of law and policy until we come to grips with this reality.

Part I of this Article considers how courts rely on inaccurate statistics when deciding whether a sex offender is likely to recidivate. (12) Part I also contrasts these inaccurate statistics with the accurate statistics and looks carefully at this misuse of statistics in the context of the McKune case and the denouement of that decision. Part II discusses how these errors have led to the inappropriate shaming and humiliation of persons enmeshed in the Sexually Violent Predator Act ("SVPA") commitment process. (13) Part II also explains how these errors have consequently trivialized the judicial process, noting, however, that there have been some recent cases that consider the underlying issues more seriously. Part III explores the meaning and significance of therapeutic jurisprudence in this context and seeks to expose how the errors in question violate all the precepts of therapeutic jurisprudence. We conclude with some modest suggestions for the courts and for litigators in this complex and difficult area of the law.

1. HOW COURTS RELY ON INACCURATE STATISTICS

   Sex offender statutes and implementing court decisions are designed to isolate, restrict, and/or remove sexual offenders from society. (14) Strict monitoring and post-criminal sentence sanctions have been deemed necessary for two central reasons: (1) such individuals commit crimes that society has deemed to be the most heinous, (15) and (2) sex offenders have a high rate of recidivism and are highly likely to repeat offending behaviors. (16)

   There are two major sorts of legislative enactments designed to confine and restrict offenders--civil commitment laws and registration and notification laws. Both of these legal sanctions necessitate the use of expert testimony during court proceedings. (17) Expert predictions of future violence is "central to the ultimate question:... whether petitioners suffer from a mental abnormality or personality disorder" (18) that causes them to be predisposed to commit future crimes. (19) Importantly, the bases for these predictions have not gone unchallenged. In 2004, a Florida appellate judge wrote that "[w]e have 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." (20) Judicial opinions are constrained by the statutory language that requires expert testimony on the issue of dangerousness. (21)

   Thus, in responding to a challenge to admitted future dangerousness testimony, a Massachusetts trial judge has stated that courts must "respect [the] policy of [the] legislature with respect to the trustworthiness of psychiatric opinion evidence in cases involving sexually dangerous persons." (22) For a judge to make a ruling on the potential future risk of an individual, his or her ultimate decision is inevitably purely based on the subjective opinion of an expert witness, devoid of concrete answers and verifiable scientific conclusions. (23) And courts have erred on the side of caution, willing to easily accept an expert's determination of high risk. (24)

   This notion of a purported reality of high recidivism has been perpetuated by experts working in the field of sex offender assessment, court decisions supporting civil commitment of offenders after they have served a criminal sentence, and, most notably, the media. All three of these contributing factors are interconnected and have continuously built upon each other's misinformation and inaccurately perceived truths. (25)

   The media has focused significantly on the heinous and highly emotionally charged crimes of individuals such as Earl Shriner, whose crime precipitated the first new generation sex offender law, and Jesse Timmendequas, whose victim is the namesake of Megan's Law. (26) A writer of a New York Times op-ed column in 1993 concluded that "[t]here can be no dispute that monsters live among us. The only question is what to do with them once they become known to us." (27) As a result of the media's depiction of a one-dimensional "sex offender" in broadcast news and newspaper articles, (28) the general public has conceptualized what it believes to be the prototype of this "monstrous imminent evil"--a male who violently attacks young children who are strangers. (29) The common wisdom is that--per the television series, Law and Order: SVU--recidivism rates are near 100 percent for sex offenders. (30)

   The role of the media in the development of sex offender law is a base reflection of the power of fear in the creation of law and policy. By extrapolating from the scenario of the worst case, (31) we have created policies that reject valid and reliable statistics, reject science, and, instead, generate a body of statutes and court decisions based on inaccurate presumptions. For example, prior to the enactment of national sex crime registries and notification laws, there were no verifiable reports of any increase in sex crimes. (32) In fact, a federally funded study showed that a decline in sexual assault cases began before the enactment of sex offender reforms. This finding would seem to indicate that, since the pattern of decline began prior to the enactment of sex crime reforms, the laws themselves could not have affected the start of this downward pattern. (33)

   The judiciary is susceptible to the same moral panic as the press and the general public. The media-driven panic over sex offenders has directly influenced judicial decisions--at the trial, intermediate appellate, and Supreme Court levels--in this area of the law, especially in jurisdictions with elected judges. (34) The demonization of this population has helped create a "moral panic" (35) that has driven the passage of legislation. Yet, valid and reliable research has found this legislation to be counterproductive and engendering a more dangerous set of conditions (36) and judicial decisions--all reflecting the...