Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws
Volume 83, No. 3, Spring 2011,
By Melissa Hamilton [PDF]

Arguably one of the most prolonged and contentious debates in legal history centers on the balance between protecting basic civil liberties as guaranteed by the Constitution and protecting the public from harm. Certainly the shadow of terrorist threats after the 9/11 attacks reignited this debate and has fueled public interest in changing the balance between security and liberty in favor of introducing a more preventive state. While tipping the scale in favor of using a preventive law model might initially serve to calm public fear, be it about terrorism or crime generally, such actions may ultimately reduce the freedoms of many citizens in the long-term. This is particularly true in the highly emotional area of predatory sex crimes.

In recent decades, federal, state, and local governments have become increasingly restrictive on the freedom and privacy of those labeled sexually violent predators (SVPs) for the purpose of preventing further sexual violence. The most commonly used tools to manage SVPs are involuntary commitments for mental treatment, sex offender registration, and residency restrictions (hereinafter “SVP laws”). In an effort to streamline the identification of sex offenders who pose a future danger and thereby might be subject to SVP laws, officials place substantive legal emphasis on psychosexual evaluations by individuals accepted as experts. These experts are generally mental health practitioners who offer opinion evidence about an individual’s likelihood of sexually reoffending, often using actuarial (statistical calculation of risk) assessments. While protecting the public from the damage that sexual violence causes is clearly an important goal, this Article critically analyzes whether future dangerousness assessments using actuarial tools are responsive to legal standards contained in SVP laws and whether courts, when confronted with such assessments, are adequately engaging in the gatekeeper role to accept only “good science” as per the evidentiary benchmarks of Daubert v. Merrell Dow Pharmaceuticals, Inc. and Frye v. United States.

In Part II, the dominant SVP laws are outlined and a discussion follows about how and why politicians and the public are enamored with the assumed need for these specialized laws. Statistical evidence is then provided that challenges whether public fears about SVPs are realistic and whether SVP laws serve their preventive goals.

Part III provides a brief review of the current law on the admissibility criteria for expert evidence, with the concomitant summary of Daubert- and Frye-based standards. Additionally, the role of mental health practitioners in providing expert evidence in court when future dangerousness is at issue is discussed.

Part IV summarizes two of the most common actuarial risk assessment tools used to identify and label sex offenders who will be subject to SVP laws. An explanatory analysis is then provided of the empirical validity of actuarial tools in predicting sexual offense recidivism. Assessing whether actuarial-based risk prediction is good science is of extreme importance today. Not only is the implementation of SVP laws growing costlier and more intrusive in scope, new evidence has emerged to significantly undermine the validity of applying these actuarial tests to U.S. offenders.

Part V offers a review of case law involving the role of the two actuarial assessment tools in SVP status cases, including an assessment of how courts have responded to Daubert- and Frye-based challenges to the instruments. Considering that the vast majority of courts decline such challenges, this Part explores how the actuarial assessments instrumentally impact legal decisions on future dangerousness. In addition, Part V analyzes evidence indicating that instances of experts engaging in adversarial bias and presenting empirically incorrect representations of actuarial predictions are all too common.

Finally, the Conclusion offers cautionary notes and suggestions for reevaluating SVP laws and actuarial assessments of future dangerousness. Specifically, this Article concludes that because of uncritical reliance upon actuarial assessments of future dangerousness, legal professionals have largely failed to grasp the significant empirical and practical limitations of these tests. Judges and lawyers participating in SVP cases must appreciate the serious challenges to the reliability and validity of actuarial assessments being presented as expert evidence. The potential that criminal justice practitioners use empirically questionable assessments to inform decisions on the SVP status of individual defendants poses significant negative impacts upon the public and upon defendants. SVP laws are very expensive and resource intensive for governmental institutions to implement, maintain, and enforce. Defendants also suffer a considerable infringement of their constitutionally-protected interests in liberty and privacy through measures (i.e., incarceration, public registration, and residency restrictions) which can render them labeled as sexually violent predators. Hence, if pseudoscience greatly impacts these decisions, the significant risk of false positives (giving a sexual predator label to a defendant not likely to reoffend) and false negatives (not giving a sexual predator status to a defendant highly likely to reoffend) undermines the preventive goals of SVP laws while rendering significant costs to the public and to individual defendants.

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