Assessing Sex Offenders: Problems and Pitfalls

Since the enactment of sexually violent person (SVP) commitment laws in the United States, controversy has surrounded the performance of offender risk assessments. Assessing Sex Offenders: Problems and Pitfalls is a recent addition to the debate. Authored by forensic psychologist Terrence W. Campbell, PhD, the book provides an overview of the various risk instruments and methods used to evaluate sex offenders. The author's objective is to assist attorneys who defend sex offenders facing SVP commitments. He fulfills this objective by describing the challenges in preparing a valid SVP risk assessment.

Campbell conveys his belief that SVP laws are fundamentally unfair to offenders, financially expensive to states, and bad public policy. He sharply criticizes the limitations of SVP commitment laws that do not require sex offenders to have a medically documented serious mental disorder or evidence of recent criminal wrongdoing before they are hospitalized. These same laws require sex offenders to complete prison terms before commitment, but do not compel the state to enact credible sex offender treatment programs.

SVP laws have proliferated in the aftermath of the U.S. Supreme Court decision Kansas v. Hendricks, 521 U.S. 346 (1997), when the Court held SVP laws to be constitutional and not subject to double-jeopardy claims, since their legislative intent was therapeutic, not punitive. The Supreme Court further delineated SVP commitment statutes in Kansas v. Crane, 534 U.S. 407 (2002), in which it ruled that the standard of dangerousness for individuals facing SVP commitment should be distinguishable from general criminal recidivism. In Crane, the Court also held that finding an offender incapable of controlling his or her behavior is not necessary for preventive detention; merely showing that an offender has serious difficulty in controlling his behavior is sufficient.

Campbell reports that by 2007, 17 states had enacted SVP laws. State definitions of the re-offense risk that activates commitment thresholds vary widely. For example, North Dakota incorporates a low-threshold definition of likely to re-offend. Other states, including Minnesota, utilize the more exacting standard of high probability of re-offending. SVP risk assessments admitted into evidence for civil commitment proceedings are subject to either Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), or Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), standards of evidentiary reliability. The author mentions that most states with SVP laws follow the less stringent Frye standard.

Financial costs to society are also reviewed. As of 2003, more than 2000 sex offenders had been civilly committed under SVP statutes at an annual cost of $70,000 to $150,000 per offender. By 2007, approximately 5 percent of all SVP committed offenders had been released into the community. The author opines that, given the low rate of offender release, SVP commitments are tantamount to life sentences for convicted sex offenders.

The book provides an extensive review of published research challenging the validity of SVP risk assessment instruments. Campbell contends that these tests have not been sufficiently validated and standardized under field conditions to be used in support of SVP commitments. He also proscribes the current set of static and dynamic risk factors used in SVP assessments, labeling them incomplete and poorly understood. He concludes that endemic problems with these actuarial instruments prohibit them from surviving either sufficient scientific scrutiny or full disclosure of their limitations, while creating the illusion for courts of precision and accuracy.

Campbell argues that evaluator bias and error are magnified when examiners under-report risk reduction factors and when evaluators are overconfident in forming clinical conclusions. These factors, along with low inter-rater reliability, further undermine the credibility of SVP evaluations.

The author calls into question the efficacy of sex offender treatment programs, suggesting that there is no present consensus on appropriate levels of offender treatment. He also states that sex offender treatment in a pre-release setting does not sufficiently prepare an offender for the stressors of the outside world. He impugns current sex offender treatment philosophy as myopic, opining that offenders are a heterogeneous group in need of more individualized treatment.

Although this book provides a broad review of scientific literature regarding sex offender risk evaluations, it provides little published data supporting SVP evaluation instruments or methodologies. In addition, the author incorrectly cites the landmark U.S. Supreme Court decision regarding SVP law as Hendricks v. Kansas, instead of Kansas v. Hendricks (521 U.S. 346 (1997)). While the author's work is a partisan approach to the contentious matter of SVP evaluations, his lucid analysis displays the potential shortcomings of SVP evaluations. This book will be a useful text, however, for any mental health expert testifying in SVP commitment cases.

• American Academy of Psychiatry and the Law