Monday, April 24, 2017

The 2017 ATSA Adolescent Practice Guidelines

The ATSA Adolescent Practice Guidelines (APG) has finally been published!  The APG addresses the expected areas of best practices, but also offers progressive perspectives on many related issues.  To obtain a copy of the 85-page 2017 APG, please see the end of this blog.  

Sexual offending by teenagers, as a class, is materially different from adults.  The APG boldly addresses these differences, proficiently noting distinctions of adolescence, understanding youthful etiologies of sexual violations, and offering cogent recommendations for sound assessments and appropriate treatment.  Such discernments are essential for systemic integrity in managing responsible interventions and successful recovery for teenagers and their families

Tom Leversee and Jacque Page co-chaired the committee that developed the APG.  Because Tom was invited to co-author this blog and it would be unseemly for him to gush about the excellent product that was crafted by the APG team, Tom’s comments are deliberately separated from the discussion by SAJRT blogger, Jon Brandt.  Tom writes…
-------------------------
In addition to Tom and Jacque, the Adolescent Practice Guidelines were primarily authored by a committee that included Kevin Creeden, Elizabeth Letourneau, Sue Righthand, and Daniel Rothman. The revision and final approval process involved the ATSA Board and a response period for ATSA membership.  Maia Christopher provided her unwavering support, persistence, and guidance. 

The APG integrates a historical context, unique features of the adolescent population, empirical underpinnings, and foundational concerns.  The APG addresses interventions including Assessment, Treatment, Special Populations, and Policy considerations. 

A historical review of the treatment and supervision of those who have sexually offended reveals how policies and practices for adults gradually migrated into the juvenile system.  A survey of policies and practices in various jurisdictions, agencies, and individual practitioners would surely find that vestiges of adult models continue to impact the adolescent field.  The inclusion of a Policy section notes that the application of adult policies to adolescents is not only ineffective at reducing the low base rate for sexual recidivism, but comes with unintended consequences that can produce more harm than good. 

The APG seeks to further reverse this historical trend by offering an empirically grounded, caregiver-involved, developmentally appropriate approach for addressing abusive sexual behavior with adolescents.  This includes an emphasis on the social ecology in which adolescents reside and on the importance of therapeutic relationships.  Effective practices and policies reflect the heterogeneity that has been found in the research and the need for comprehensive assessments and individualized treatment plans.  Four fundamental aspects of effective public policy for adolescents are offered.

The enthusiastic response to the workshop on the APG that Jacque and I presented at the 2016 ATSA conference in Orlando suggests an excitement that goes beyond individual practitioners and programs.  Workshop participants spoke of a desire to utilize the APG to educate important participants, including probation and parole officers, human services caseworkers, attorneys, and judges.  Many have expressed the hope that the APG will not only be utilized to inform significant change in clinical practice and policy, but to inform legislation.  Meaningful change will require effective collaboration between a broad range of interdisciplinary stakeholders.
-------------------------
The APG sensibly expects assessments to be empirically informed, and logically expects treatment to be “assessment informed.”  The APG points to the Risk-Need-Responsivity model as the gold-standard for guiding assessments and treatment.   With a 3% base-rate for sexual recidivism, as a practical matter, nearly all juvenile offenders are at low risk for sexually reoffending.  Therefore, exploring Needs and Responsivity may be vastly more beneficial than diligently trying to micromanage Risk.  The APG correctly notes that general delinquency correlates with sexual offending and therefore certain dynamic risk factors may be valid targets for treatment.

With the backdrop of sexual safety, personal accountability, and social justice, the APG supports the principles of Good Lives, positive psychology, and building on protective factors.  It encourages a pro-social, holistic reconciliation of individual needs, aspirations, human agency, family involvement, and community support – a synergistic milieu within which young clients can recover and prosper.

The APG confidently weighs-in on many competing concerns and perplexing controversies. It also acknowledges that some complex issues cannot be resolved by science alone.  Therein lies the intersecting domains of clinical judgement and professional ethics.  Being mindful of the involuntary nature of clients, and the value of well-informed assessments, the APG discusses many concerns that are ethically tinged, including: being part of a team intervention, managing unprivileged communication, determining when an assessment or treatment are (not) indicated, acknowledging the limitations of forensic psychology, challenging unwarranted legal interventions or sanctions, avoiding unnecessary conditions or undue burdens on clients, promoting least-restrictive placements, and supporting least-intrusive methods.  The APG, with participation from the ATSA Board, recommends against the use of the polygraph and PPG for clients under 18.*

With an eye on standards for practitioners, the APG expects clinicians to be qualified and technically skilled.  But it also wants clinicians to recognize that the therapeutic relationship is not only central to inspiring motivation and hope for recovery, but that it might be a therapist’s greatest asset.  The APG bravely comments on how unwarranted social controls and misguided policies may interfere with rehabilitation efforts.  The final section suggests that engaged practitioners can help to inform colleagues, mediate public policies, and perhaps intercede on behalf of clients.  Public safety is a systemic concern, and many stakeholders participate in reducing recidivism, but the clinician may be uniquely positioned to not only guide clients through recovery but to advocate for their well-being.

Journal articles and text books are vital conveyances of knowledge that help to build a sound framework for practicing in our field, but best practices depend on the skilled, ethical applications of knowledge, experience, and the ‘professional self,’ uniquely applied to each client.  The 2017 Adolescent Practice Guidelines is a compendium of wisdom.  Potentially, it will help good practitioners become great clinicians, and interventions with adolescents will be more empirically rich and ethically sound.

Jon Brandt, MSW, LICSW
Tom Leversee, LCSW

*Note: these and other controversial areas of juvenile practices are topics for future SAJRT blogs.

The Adolescent Practice Guidelines is available free to ATSA members by logging into the Member’s Page.  When the APG is available for purchase by non-members, information will be posted here. 

Thursday, April 13, 2017

Risk and those who experience harm

A friend of one of the authors was a forensic psychologist in a European country and gave permission to share her story. The short version is that she was on her way to meet her son and took a shortcut through a park. There, she was raped by a stranger. It was a nasty assault that could have ended much worse due to a health condition. Thanks to her quick thinking and smartphone, her son helped the police to apprehend the person before he left the park. He apparently had a lengthy criminal record, including similar assaults. There is little question that he was a high-risk, high-velocity person in need of outside forces to stop him.

To hear her tell the story, it seems that the most devastating effects of this life-threatening experience actually occurred in its aftermath. The nature of the local police department, and her work at the intersection of law and psychology, meant that all of her colleagues had access to every detail of her experience, and were unafraid to express judgment about her circumstances. This serious breach of privacy was a primary motivator in her leaving her country and relocating elsewhere. Once resettled, her primary concerns for getting on with her life typically had more to do with her children and pets. Any lingering bitterness had more to do with the response from the legal system than the assault itself. It’s quite possible that the presence and actions of her son prevented years of more serious problems. 

On the other hand, a pioneer in the field of prevention (no longer active) used to publicly describe how her father molested her growing up, and the devastating after-effects that lasted across the rest of her life. She was a force of nature as she described how the only thing she ever wanted was for the abuse to end. As one might imagine, she had few places to go, and fewer people to whom she could turn to make her father stop. By all appearances, had her father come to the attention of the legal system, his risk would have been low in accordance with actuarial risk measures. For that matter, so would many famous people who have abused, including Jeffrey Dahmer, Jimmy Savile, and Jerry Sandusky; and yet the harm in their wake has been horrific. 

The narratives that we hear from people who have experienced sexual abuse reflects these experiences. Often we hear that they did not report as they felt that they would not be believed or that nothing would be done. Often, they believed that they type of abuse perpetrated, their relationship with the perpetrator or the context of the abuse [in their eyes or their beliefs around the perceptions others] mitigated the abuse. In some cases, people don’t report because they are afraid that it will lead someone to cause harm to the person who abused. All of this highlights the complexity in experiencing and living with sexual abuse, especially if the individuals involved are in close proximity to each other and therefore have to come into contact frequently; in that sense no risk is low risk to the victim, more a constant low-level trauma.

All too often, it seems that in our rush to improve risk classification, we also create an appearance of uncaring and benign neglect of the experiences of those who are abused. What is striking is how the harm of abuse was mitigated by family relationships in the first case and aggravated in the second. And yet from a purely risk-based perspective, the second case involved a lower-risk abuser.

This, in turn, creates terrible dilemmas. As the saying goes, bad cases can result in bad laws, and the authors certainly advocate for reserving the most intensive interventions who pose the highest risk. At the same time, however, our field creates risks of its own at those moments when we appear disconnected from the relational harm of trauma.

At a time when we advocate person-first language for people who have abused, it’s vital that we have the same consideration for those who have been harmed. Not everyone who has experienced abuse wishes to be called a “survivor” or “victim”. Taking this further, however, the above vignettes who how important it is that all professionals communicate in a way that demonstrates respect for all who have experienced sexual abuse, without creating the appearance of being dismissive of harm or of overstating risk for future abuse. In the end, skills for demonstrating respect, understanding, and effective communication are intertwined.

David Prescott, LISCW, and Kieran McCartan, Ph.D.

Friday, March 31, 2017

“Othering” the Offender

The public often thinks of offenders, all offenders, in one-dimensional terms (For example, “once an offender, always an offender”). This happens despite clear evidence that people who commit sexual crimes are a diverse population in terms of offence, gender, age, socio-demographic background, cognitive ability and/or mental illness (to name a few factors from an extensive list). If “ordinary decent criminals” (an expression used by paramilitaries in Northern Ireland to discuss non-paramilitary offenders, but is often expanded to cover way is seen as the mainstream offender population) can be a diverse population, then perpetrators of sexual abuse also vary widely in their actions, who they harm, the behavior-chain pathway they follow, and their risk for causing further harm in the future. This makes those who perpetrate sexual harm a complex population to predict, catch, define, understand, work with and [re]integrate.

Of course, painting all who abuse with a broad brush of constant danger can soothe our minds, allow us to see them as very different from us; in effect, this thinking makes it easy for us to “other” them. If they are the problem, as opposed to us, then they need to change and the rest of the world needn’t concern itself about the conditions that contribute to abuse, or our responsibility to prevent it. Too often, it is just as accurate to say that a six-pack of beer and a very bad decision are all that separate many university students from causing harm and ending up on the sex offender registry; but is that a conversation that we are truly comfortable having, it’s easier to “other”. Again, just as some people are truly high-risk, many more are less so; it can be easier, as Tony Ward has observed, to view them as “moral strangers” than as “fellow travelers.”

One-dimensional thinking about people who abuse means that we do not think about them holistically or consider their inherent complexity as individuals and the impact that this has had on their life course in general and offending in particular. Indeed, we don’t have to think about their families and other loved ones. This reductionist approach can happen across the board with all offenders, but especially with sex offenders.

Why does this happen particularly with people who offend sexually? One reason may be that we do not want to see them as being the same as us; society would just as soon see them in a one-dimensional frame as “mad”, “bad” or “sick” because that would mean that they are different from us, that they are easy to understand, and that the solution is simple and straightforward. It can be unpleasant to take a more nuanced view: everyone is a sexual being in one way or another, and research has shown that many of us have more diversity in our sexual thoughts and fantasies than was believed in the past. Indeed, there can be a place for moving beyond “why did he do it” to “what prevents more of us from causing sexual harm to others”? Just like everyone else, all people who break the law, including those who abuse others, are multi-faceted and complex with numerous different aspects, lives, levels of community supports, and needs.

The reality that sexual harm happens in many ways highlights the complexity of the perpetrators, their relationship with their victims, their relationship to their offending behaviour and how they manage themselves. Just as abuse is complicated, so is its assessment and treatment. And herein lies the problem: Just when our field is at a point where our assessment and treatment processes have never been more informed by science and the ability of professionals to share resources and ideas across great distances, financial conditions have worsened, and we have fewer opportunities to put our research findings and expertise into actual practice. In many cases, programs are increasingly turning to one-size-fits-all approaches in order to cut costs. This in turn creates any number of dilemmas: For how long do professionals have to acquiesce to under-funding of programs or providing treatment based on ideological principles rather than science before public safety becomes compromised?


In thinking about perpetrators of sexual harm in a reductionist way we undermine their potential for rehabilitation and successful risk management; we need our responses to sex crimes to reflect the complexity of those who perpetrate it, from risk to protective factors, and the process that contribute to those factors. By focusing on the complexity that is inherent in sex offenders, and in all offenders actually, we are better able to support their rehabilitation and reintegration. We are also better able to maintain a dual focus on client beneficence and community safety.

Kieran McCartan,PhD, and David Prescott, LICSW


Tuesday, March 14, 2017

Beware of Easy Answers: The perils of single studies

The ATSA listserv was recently immersed in a discussion about mixing various clients in treatment groups, including those who are higher risk with lower risk. The discussion arrived at a familiar place: the idea that treatment can actually elevate risk among those who are lower risk. There has been research suggesting that high-intensity interventions can sometimes increase risk among lower risk people in the criminal justice system (Smith, Goggin, & Gendreau, 2002), but the idea that treatment can make people worse is one that we should examine very seriously. Ours is a field in which we continue to ask questions about whether treatment works in reducing future sexual violence, and if so, how, with whom, with which methods, and with what kinds of therapists.

The discussion focused an influential paper by Brian Lovins, Christopher Lowenkamp, and Edward Latessa in 2009, which found that “low-risk sex offenders who successfully completed treatment were 27% more likely to be reincarcerated than sex offenders who did not receive halfway house services” (p. 353).

Although that finding appears at first to say that intensive sex-offender treatment of low-risk sex offenders caused an increase in sexual recidivism, we think it would be a mistake to draw that conclusion, both from the paper and in general application to practice.  Although this finding has apparently been put forward as an indication of treatment somehow increasing recidivism or sexual recidivism, it’s not clear that it’s treatment that accounts for the results.

Page 348 of the Lovins paper includes:

Recidivism was coded as incarceration for any new offense, return to incarceration for a technical violation, and any new arrests for a misdemeanor or felony offense. For the purpose of this study, incarceration for any new offense and return to incarceration for a technical violation were collapsed into a single measure of return to incarceration for any reason.

As we read this study, comparisons were made between people who were released from prison (a) directly into the community or (b) into halfway houses.  It seems important to note that:

1.     The two groups differed in terms of their living situation and level of supervision, not just intensity of treatment, and
2.     The recidivism variable was re-incarceration, not detected SEXUAL recidivism per se.

One has to wonder what other factors might have influenced release decisions that were not accounted for in the study? After all, the groups were not randomly assigned to their conditions and there is therefore no reason to think that they were equivalent.

Our reading of this study is that it might reflect different re-incarceration rates for returning citizens who are faced with different levels of community supervision (halfway house or not) rather than different intensity levels of sex-offender treatment. For example, on pages 347-348, the authors state:

The second sampling frame comprised parolees who were released directly to the community on discharge from the institution. Out of the original 3,273 offenders in the comparison group, 238 had a sexual crime as their instant offense. These comparison offenders may have been mandated to outpatient treatment in the community at release, but they did not receive the more intensive residential sex offender treatment.

This highlights the fact that neither of the comparison groups consisted specifically of untreated low-risk sex offenders. Further, page 348 of the Lovins et al. study states that:

Because there was no consistent measure of risk across programs and parole, the modified SFS (Note: this stands for Salient Factor Score; it is not a validated, stand-alone measure of recidivism risk for people who have sexually abused) was used to determine level of risk. The modified SFS includes the following risk factors: prior arrest, prior commitment, age at current offense, employed at arrest, history of community control violations, and history of drug use. The values for each variable are weighted and the total ranges from 0 to 10. Risk categories were developed based on the raw values. The modified SFS consists of four categories: low, low/moderate, moderate, and high.

As we understand this statement, not only is the study not reporting on differences in detected sexual recidivism, it is also the case that the “low risk offenders” are given that classification on the basis of something other than a commonly accepted assessment of their risk to sexually reoffend.

Taken together, there are good reasons not to consider this study as an indication that providing intensive sex-offender treatment to “low-risk” sex offenders causes an increase in (sexual) recidivism. To sum up our concerns about taking the Lovins et al. (2009) study as compelling evidence that low-risk people should not receive treatment:

·     Recidivism in this study refers to ANY re-incarceration, not specifically to a new sex crime, or even to a new crime at all.
·    None of the groups specifically consisted of people who did not receive sex-offender treatment. More specifically, it is a comparison of people who were or were not required to live in a halfway house after release from confinement.
·    Classification of “low risk” had very little or no relationship to what we would think of as “low risk” for sexual re-offense. Measures specifically developed and tested for this purpose were not used.
·    The number of people in the comparison group was 14, and in the “low-risk” “successful completion” group, even lower.  The actual differences in re-incarceration are likely around 3 of 14 for the comparison group, and perhaps 3 of 11 for the “successful completion” group.

We very definitely intend no disrespect to the authors, Brian Lovins, Christopher Lowenkamp, and Edward Latessa; this is an informative study. Quite the opposite: we want more studies to examine this question. For the moment, however, we are serious in our discouragement of professionals viewing this study as evidence that providing treatment to some released sex offenders causes an increase in (sexual) re-offending.

The authors of this post are people who have read the extant research and overseen programs, and at times have come to many differing conclusions as to the future of our field. This is precisely why we need better research. In our view, a primary take-away is that professionals in our field should continue to humbly, even quietly, try to go about the work of doing no harm and making every effort to prevent and reduce the harm of sexual abuse.


Gregory DeClue, Ph.D., ABPP (forensic), and David S. Prescott, LICSW

Thursday, March 9, 2017

Using the Rock & Water method in the treatment of forensic psychiatric patients

 
This is linked to a previous blog entitled “Holland and Belgium Are Getting It Right: The 2017 ATSA-NL conference”. Kieran.

 
We are honored to write a blog about our work at the Van der Hoeven Kliniek, a forensic psychiatric hospital in Utrecht the Netherlands.

 On the 26th of January 2017 Kieran and Bill had a guided tour in our hospital. At the Sports department they were very interested in the Rock & Water method which Lonneke v/d Pol, Ernst Janzen and Erik Timmerman provide besides other sport lessons. After their visit they asked to write this blog and so we did.

The Rock & Water method has been implemented within this hospital in 2008. The workshops for patients focus on aggression regulation, learning how to set boundaries, and how to improve social skills. The focus is on becoming aware of their own behaviour and the impact of their behaviour on others in daily life.

 
The Rock & Water method

 
The Rock & Water method provides participants with skills for physical-social teaching with a focus on body awareness, emotional awareness and self-awareness. The concepts 'rock' and 'water' are being used as a metaphor to explicit different forms of communication.

By experiencing practice-focused physical exercises, it is easier to transfer these skills to situations in daily work or life. By creating moments of choice, the participants can learn to consciously make decisions and regain control over their behaviour in complicated situations, for instance, when it is needed to set boundaries without getting in an escalating conflict. Participants will learn to become aware of personal possibilities, qualities and responsibilities. The workshop focuses on social competence and inner strength. In daily life, individuals will have to be able to function as a rock (strong, immovable and with self-confidence) and as water (remaining in contact, flexible and connecting). The basics of the program include grounding and centring exercises, standing strong and rock and water attitude in physical and verbal communication. The power of this method is that by practicing and experiencing the different physical exercises, one can learn to regain control in their daily life at work, school or society.

Golden triangle:

 The golden triangle comprises of
                 -              Self-awareness
                 -              Body awareness                              
                 -              Emotional awareness

Applicability in daily clinical forensic psychiatric practice:

Since 2008, the Rock & Water program is being used with the Sports department. Just like the other sport activities, the program is part of the treatment program of the patient. When the method was implemented, it was immediately successful. All patients easily recognized the terms Rock and Water and the active part was appealing to them. These lessons are provided for individual patients or to small groups of maximum 6 patients.

For the TBS (disposal to be treated on behalf of the state implying mandatory treatment) patients with severe and complex psychopathology, we offer individualized programs in close collaboration with their psychotherapists or their supervisors. For patients with other judicial titles who are usually admitted for shorter-term , we provide series of 10 lessons supervised by a sports teacher together with a therapist. The workshop has multiple aims. Generally, the workshops focus on reduction of tension and emotion regulation, learning how to set boundaries and improving social skills.

After the implementation in 2008, the use of the method has expanded enormously. For the TBS patients the method is oftentimes mentioned as one of the indicated treatment activities and there is constructive deliberation between the trainers and psychotherapists in improving treatment of patients. For the patients with other juridical titles, the Rock & Water program is standardly adopted in the treatment plan. Both patients and staff members are very enthusiastic about the method. Patients indicate that “not just talking” works well for them and that they like to be able to put in their own perspective.

More and more, the program is being incorporated by patients in their early signal plans and relapse prevention plans. Multiple patients state that months or years later they still make use of the techniques and benefit from it. For us, this is a strong indication that the Rock & Water program is effective and suitable for forensic psychiatric patients.

Erik Timmerman (etimmerman@hoevenkliniek.nl) is sports teacher, staff trainer and coordinator of the Sports department in the Van der Hoevenkliniek. As advanced Rock & Water trainer he provides individual workshops and group workshop for patients, as well as for staff members.  He is owner of EighT – Opleidingen, Trainingen & Coaching in which he also predominantly works with the Rock & Water method.

References

-          Ykema, F., Het Rots & Water Perspectief – basisboek (2002)
www.rockandwaterprogram.com

 
-          Ykema, F., Hartman, D. and Imms, W. (2012) Bringing it Together, - Includes 22 case studies of Rock & Water in practice in various settings

 
-          Timmerman, E. (2012) WESOCO training, EighT – Opleidingen, Trainingen & Coaching. www.eight-trainingen.nl

 
-          Graaf I. de, Haas S. de, Zaagsma M. and Wijsen C. (2015) Trimbos-institute Utrecht, The Netherlands. Effects of Rock and Water: an intervention to prevent sexual Aggression. Journal of Sexual Aggression.

 

 

 

Wednesday, March 1, 2017

Considering the alternatives to traditional Child Sexual Abuser risk management: Prevention?

Risk management often involves a difficult balancing act between public protection, victim empathy, victim support as well as offender punishment, deterrence and rehabilitation; quite often one is achieved at the cost of others. This balancing act becomes compounded if you are dealing with a high profile offender population, like child sexual abusers and/or paedophiles, because you are dealing with many interested parties outside of the state-run criminal justice system who understandably want their voice heard and their opinions counted; which is appropriate and correct, however you factor into financial austerity, cuts in frontline services, an increase in reporting /recording crime, more people being sent to prison, more people being managed in the community and an increase in penal populism you can end up with the “perfect storm” of a crisis in risk management. Currently, in the UK, and in other western countries including Australia and USA, we are seeing this in regard to child sexual abuse with increasing offenders numbers of victims and offenders being identified and entering the system. The increase in reporting rates and therefore the identification of perpetrators, victims and the resulting finical impact of child sexual abuse is as a result of a number of distinct, but integrated factors, including;
Consequentially, how do we weather this storm? It is becoming more and more obvious that a change in tactics is needed; a balancing act of more effective/increased prosecutions, with more victim support, better risk management approaches and preventive strategies. Yesterday Chief Constable Simon Bailey, of the National Police Chiefs' Council, stated that the police cannot cope with the current influx of child sexual abuse investigations and that we have to look differently at how low-risk offenders are managed (BBC NEWS). While this may seem like a controversial statement on the outside it is not the first time that the police have said this regarding online sexual abuse and child sexual abuse imagery (Jon CarrNSPCCNational Crime AgencyJournal of Sexual Aggression Special edition 2). It is important to state that not all types of Child sexual Abusers are the same, not all pedophiles abuse and not all abusers are pedophiles; they are a diverse and individualistic group. We know that not all individuals who sexually abuse children, either through viewing imagery or a contact offence, are share same level of risk and that not all levels of risk get the same punitive and/or rehabilitative response from the state. In terms of low-risk offenders, who Simon Bailey was discussing, they will not receive a sex offender treatment programme or receive a full risk management plan or MAPPA (Multi-Agency Public Protection Arrangement) in the community. We are dealing with them differently in all other aspects so his argument is an extension of this. Additionally, in rethinking how we tackle low risk, and possibly medium risk, offenders it means that we can look to prevention as a viable means of intervention; can we identify these individuals earlier, through other means (i.e., through redirection from online sites [Stop it now], predictive analytics [current piece of research being carried out  with Avon and Somerset police, Bristol City Council and the University of Western England] or encouraging people who are concerned about their behavior to come forward and seek support [Safer Living Foundation; Circles South West]). Interestingly today the English government has decided to re-examine sex education and healthy relationships in primary and secondary schools (BBC 01/03/2017), which is a departure from their previous position (BBC 11/02/2016)
It seems obvious that an alternative to our past practice is needed (and even police officers are now saying this publicly), we need to recognizing that rethinking sex offender risk management is an not an act of acceptance of offending, offenders or their lifestyles as appropriate, but rather its recognition of practicality, resource management and effective engagement. The ultimate question is whether we want them to do it again or not? And assuming the answer is no, what effective action can we take?
Effective risk management must comprise deterrence, sufficient and effective treatment for victims/survivors and offenders and crucially primary prevention activity including sex and relationships education in all schools, advice and information for parents, professionals and communities as a whole to ensure full engagement and a promotion of the understanding that we all have a role to play in child and public protection.
Kieran McCartan, Ph.D, Jon Brown, MSc, & David Prescott, LICSW.

Monday, February 27, 2017

Fate of MSOP Now Rests With the Supreme Court

In June, 2015, the US District Court for Minnesota determined that the 700+ clients at the Minnesota Sex Offender Program were being unconstitutionally confined.  In January, 2017, the US Court of Appeals for the Eighth Circuit said they’re not.   What explains the conflicting opinions?   A three-judge Appeals Panel said District Court Judge Donovan Frank did not apply the proper standard: to be unconstitutional, civil rights violations for SVPs must “shock the conscience.”  What’s wrong with the “shocks the conscience” standard?  If, until the Supreme Court intervened in 2008, executing sex offenders in the US didn’t “shock the conscience,” how can any lower court know where that bar is?

A Brief Recap. In December, 2011, 14 clients who had been civilly committed and incarcerated at MSOP, some for more than 20 years, filed a civil rights lawsuit in the US District Court for Minnesota.  The Federal Court determined the petition had merit, gave it class status, and from 2012 to 2015, Judge Frank carefully reviewed the sexual offender civil commitment (SOCC) scheme in Minnesota, examined MSOP (effectively, SOCC as applied), considered multiple independent reports, ordered the State to create a task force to make recommendations, appointed four (ATSA) experts to advise the Court, implored Minnesota political leadership to correct course, held a six-week evidentiary trial, and considered all the evidence before issuing his well-reasoned ruling.  Judge Frank found the SOCC Act in Minnesota unconstitutional for six reasons, and MSOP unconstitutional for six related reasons.  The State appealed to the Eighth Circuit.

The State Appealed.  In Appeal briefs, the State argued that plaintiffs failed to identify any specific clients who were improperly confined.   Attorneys for clients countered that the State doesn’t know which clients at MSOP currently meet criteria for confinement.  The State alleged judicial bias.  The Eighth Circuit said Judge Frank had not acted improperly.  The State raised three challenges to jurisdiction.  The Eighth Circuit rejected all of them.  The State argued that the District Court erred in applying the ‘strict scrutiny’ standard to the SOCC scheme in Minnesota, which therefore requires SOCC to be “narrowly tailored to achieve a compelling governmental interest.”  Therein lies the Eighth Circuit’s reversal.

The Eighth Circuit said that ‘strict scrutiny’ and ‘narrowly tailored’ is the standard “reserved for claims of infringement on ‘fundamental’ liberty interests...” but that the US Supreme Court (SCOTUS) “has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint,” and that therefore the proper standard is whether SOCC “bears a rational relationship to a legitimate government purpose.”  With deference to legislative intent and a state’s responsibility for public safety, the Eighth Circuit reversed all six of Judge Frank’s unconstitutional determinations related to Minnesota’s SOCC scheme.

The Eighth Circuit went on to examine how the State has implemented SOCC.   The Appellate Court held that the District Court should have determined whether actions violated a fundamental liberty interest AND whether those actions “shock the conscience:” actions by the State that were “egregious or outrageous,” or “inspired by malice or sadism rather than merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.”
  
In applying the “shocks the conscience” standard, the Court held that those attacking the implementation of SOCC laws have the burden to “negate every conceivable basis which might support it.”     The Appellate Court acknowledged that Minnesota State law entitles SVP clients to “competent medical care and treatment,” but that SCOTUS has not recognized “a broader due process right to appropriate or effective or reasonable treatment…” And finally, the Eighth Circuit reversed Judge Frank’s six remaining unconstitutional findings regarding SOCC “as applied,” saying those findings were really just “a criticism of the statutory scheme itself.”
 
Reconsideration.  As the last recourse before an appeal to SCOTUS, on January 31, 2017, the attorneys representing MSOP clients filed an “en banc” petition – a request for the full Eighth Circuit to reconsider the three-judge panel’s ruling.  Last week, without comment, the US Court of Appeals denied the plaintiffs’ petition for review.

Commentary.  After more than 20 years and about 750 clients, two clients have been unconditionally released by the Courts (over the objections of MSOP staff), and no clients have gained full discharge by completion of treatment.  Since the commencement of this federal lawsuit, about a half-dozen clients have been provisionally released from MSOP, but effectively that means endless treatment is replaced by endless supervision.

Judge Frank expressed concern that, if not for this federal lawsuit, clients would languish at MSOP and wrote that “there is no meaningful relationship between the treatment program and an end to indefinite detention.”  The Eighth Circuit said that doesn’t matter - as long as clients were once judicially determined to be dangerous, and there are vehicles for redress, they can be confined indefinitely.  What if vehicles for redress are inadequate or a pretense for relief?  Does it seem disingenuous that the State can confine citizens indefinitely for treatment, and simultaneously argue that there is no constitutional right to treatment?  The Appellate Court went further, stating that the Constitution does not prevent “a State from civilly detaining those for whom no treatment is available.”  What if treatment is available, but no one can complete it?

Apparently, it isn’t troubling to the Eighth Circuit that the bar for release from MSOP is higher than the threshold into SOCC?  Or that the State agrees there are numerous clients at MSOP who don’t need secure confinement, and less restrictive alternatives are virtually non-existent.  It seems the Eighth Circuit is not concerned that for several years, two consecutive governors used executive orders to summarily deny any releases from MSOP.  Perhaps what is most troubling about the Eighth Circuit ruling is the degree to which the Court reasoned that bedrock civil rights are relative, not absolute.  Freedom from confinement is not a “fundamental liberty interest?”  Violations of civil rights for SVPs are only unconstitutional if such deprivations “shock the conscience?” When it comes to what the State can do to control ‘sex offenders,’ is it likely that there is any government action, in the public’s mind, that would “shock the conscience?”
 
Long before this federal lawsuit, law professor Rosalie Berger Levinson wrote that it is Time to Bury the Shocks the Conscience Test. The Minneapolis Star Tribune editorial board wrote, “This chilling legal principle could one day threaten liberties far beyond those of the 721 people in the Minnesota Sex Offender Program.”  In an op-ed piece about the ruling, Harvard Law Professor Noah Feldman wrote, “The Eighth Circuit panel’s decision is wrong,” pointing to a SCOTUS opinion by Justice Byron White that “freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”  Feldman noted that the specific liberty at stake was the “liberty interest under the Constitution in being freed from indefinite confinement in a mental facility.” 

States have an essential right and responsibility for public safety, but they also have a responsibility to protect civil rights for all citizens.  SVP programs have a dubious history, including human rights violations, pushing the limits of forensic psychology, a high tolerance for false positives, and inherent ethical dilemmas.   Perhaps most disconcerting, is the extent to which ‘sex offenders’ are becoming alienated from constitutional rights.  Driving the bus is a false presumption of dangerousness, the marginalization of sound research, and broad public support for sex offender banishment.

The Eighth Circuit ruled that SOCC in Minnesota is “facially constitutional because it is rationally related to Minnesota’s legitimate interests.”  By reversing Judge Frank’s highly principled ruling, the Eighth Circuit effectively held that it’s not a problem that the exits from MSOP are unabashedly blocked, even if the reasons are incontrovertibly political.  The Appellate Court wrote repeatedly in their opinion that the Supreme Court has not provided guidance on many of issues facing SOCC, and then simply ruled on the side of state’s rights.  In doing so, the Eighth Circuit ratified SVPs as a subclass of US citizens whose constitutional rights are far short of even prison inmates.
 
What’s Next?  Attorneys representing MSOP clients have 90 days to appeal to the US Supreme Court.  Even if the appeal is accepted, it might end up being just the latest in a long series of SCOTUS rulings that, through the selective application of empirical evidence, have downgraded the civil rights of Americans who have sexually offended.  But there is a reason to be hopeful – MSOP clients and other SVPs who are truly in recovery might have an ally at the Supreme Court.  Justice Anthony Kennedy was the swing vote in the 5-4 SCOTUS decision that upheld SOCC in 1997.  While Justice Kennedy, in his concurring opinion in Kansas v. Hendricks, agreed to SOCC in concept, he signaled that the judiciary must ensure SOCC, in practice, does not violate constitutional principles.  If the Supreme Court accepts the appeal, Judge Frank might be vindicated, a SCOTUS ruling would provide new guidance to SVP laws in the US, and MSOP clients may have a legitimate vehicle to gain release from SOCC.  Once again, only the courts stand between civil rights and government wrongs, and not all judges are created equal.

“…the Framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion.  If we in the judiciary do not have the authority, indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”
US Court of Appeals for the Sixth Circuit
Jon Brandt, MSW, LICSW

Special thanks to Eric Janus, Mitchell Hamline law professor, for guidance in understanding the Eighth Circuit appeal.