Legal Issues & Court Cases Affecting Sex Offenders & Truthful Recidivism

"Recidivism" a seeming simple word, someone did it once and now again! This is what most folks believe. However, recidivism is actually defined by the person, researcher, state, industry, agency or other entity that uses the word. While the essence of the definition is always retained (done again), how that entity calculates recidivism, includes or excludes groups of offenders, and other tricks to slant the statistic, really defines recidivism rates for them.

Basic Definitions
-The Beginning-

RECIDIVISM (Dictionary): a tendency to relapse into a previous condition or mode of behavior; especially : relapse into criminal behavior.

RECIDIVIST (Black's Law Dictionary): A habitual criminal; a criminal repeater. An incorrigible criminal. One who makes a trade of crime.

HABITUAL CRIMINAL (Black's Law Dictionary): A recidivist. A legal category created by statute in many states by which more severe penalties can be imposed on offenders who have multiple felony convictions. In general, habitual offender statutes (which differ from state to state) impose greater sentences on offenders for repeated crimes, with life imprisonment being imposed upon commission of several felonies.

The key to understanding a recidivism rate is to know what was used to calculate a rate or percentage. The most frequent way recivism rates are slanted is to only allow certain offenders to be included in a study, another way is to only include a certain number of offenders -usually small- and then say this is typical of all offenders.

The most egregious recidivism rates are those claimed to be 15-20-25 year studies of a small group of offenders applied to todays' offenders. Why are they so egregious because they usually begin 15-20-25 years ago when there was no known treatment and ignore that today there is treament that works for a majority of offenders and ignore the controls that are put on offenders today in prisons and in the community.

The point being, we can no longer assume we know precisely what the word recidivism means or what a recidivism rate represents, we need to know more about what it is made up of. Upon further examination of a reported high recidivism rate, we may find it is not really high, when we learn what it is composed of.

Lately recidivism has come into view because of the claimed "High Recidivism Rates" of sex offenders, of course the latest statistics are showing that sex offenders do not have a high rate of recidivism, but this is not what folks want to believe!

One very interesting fact is, the latest 2003 statistics published by BOTH the United States and Canadian governments, go to great lengths to explain how they have compiled their statistics, highly detailed, most likely because they realize there has been so much controversy and misconstruction of earlier published recidivism rates. The Canadian report mentioned this specifically.

The latest statistics, as of 12-3-2003 (and still latest in 11-2005), are shown in the sidebar below, there are links to allow you to print them if you wish. However, in essence they are showing that, what has been claimed, that "sex offenders have a high recidivism rate," is not true. We have also noticed, that those who have been relying upon that premise, are now ignoring these new statistics, because it shows they have been wrong. Many of the newer sex offender laws have been based upon this false premise.

Misconstruction of recidivism studies

Before we get into a deeper understanding of how things are done correctly lets look at one misconstruction which is so often used to slant an issue and gets folks to side with the speaker.

Here is an example of how one study is quoted, on Feb 14, 2005 in the article "Parole for life urged in sex crimes: Madigan pushes more monitoring" is this quote:

"Still, one study placed the rate of repeat offense within 25 years of conviction at 52 percent for child molesters and 39 percent for rapists."

Although the study title is not mentioned, it is, "Recidivism Rates Among Child Molesters and Rapists: A Methodological Analysis," Robert Prentky, Austin Lee, Raymond Knight and David Cerce (1997), published in Law and Human Behavior, 1997 December 21(6):635-659; a very controversial study. It is available for purchase from SpringerLink, copyrights prevent direct links.

A few of the reasons for controversy are: As with any study a study-group of offenders is needed, here they were chosen from already civilly committed offenders (Massachusetts' Treatment Center for Sexually Dangerous Persons (MTC) in Bridgewater, Mass.), each reportedly having approximately 2.5 - 3.6 prior sex crimes (pg 638). The study-group WAS NOT a cross section of all kinds of offenders!

The study is touted as being a 25-year study, one would think that meant the offenders were followed for 25 years, not so! What 25-years means is: ".... We used a data set on 265 rapists and child molesters who were discharged over a 25-year period. (pg 637) (1959 through 1985 pg 639) That means the offenders were released at differing points within the 25-year time span, each was in society (or at-risk to reoffend) a different length of time.

In fairness, the study goes on: "... The length of the at-risk period was sufficient to analyze the effect of follow-up duration on recidivism rates and to compare the rates of reoffense over time for the two subgroups of offenders." (pg 637) However, we don't know the exact at-risk period chosen. It is well known that offenders' toughest time is the first year in the community, 40% of failures occur during year-one (DoJ Stats above). However, each year thereafter, and into old age, the offenders' risk to reoffend goes down. (Hanson 2001) This at-risk analysis method fails to factor-in "offender's-age/disability" as to likelihood of reoffense. A healthy 35-year old and a 90-year old confined to bed, each being in society for the same period of time, would factor equal.

The target-group was divided into rapists and child molesters based upon the age of the victim (pg 638), rather than, adult molesters and child molesters. In other parts of the study the "rapists" were compared to other studies which determined "rapist" based upon the actual acts, prejudicing many in this group and misleading any reader.

"Although the study period was fixed at 25-years, the actual exposure time varied considerably among the subjects depending on their discharge date." (pg 640) To compensate for this the researchers used the "Survival Analysis" method of calculation.

While it is true that method would tend to even things out, the study initially excluded a cross-section of all offenders, who are generally found in society, including, only those who were proven to be prior recidivists. This weighting strongly suggests that the study should never be used out of proper context, such as the basis for "Lifetime Parole" for all sex offenders.

Should anyone use this study out of context, then they have IGNORED the researchers' CLOSING WARNINGS (verbatim):

"We would like to conclude with two important caveats. The obvious, marked heterogencity of sexual offenders precludes automatic generalization of the rates [recidivism] reported here to other samples. ..." (pg 656) "The second caveat is that these findings should not be construed as evidence of the inefficacy of treatment. Although all of the men in our follow-up study were discharged from a prison treatment facility, the treatment services were not provided uniformly or systematically and did-not conform to a state-of-the-art model." (pg 657)

The state of Illinois passed the legislation based upon this misconstruction of the study.

Understanding & equating current (11-2005) recidivism studies

While these studies do not report the same recidivism rates, they are all very close to each other. However, that very fact tells us, there must be some very subtle differences in the calculations of each, and that is what we are going to highlight. Why there are differences in reported recidivism rates?

Current (2003-2005) Recidivism Studies

November 2003:Department of Justice: Recidivism of Sex Offenders Released from Prison in 1994 (DOJ-2003)

Department of Justice presents, for the first time, data on the rearrest, reconviction, and reimprisonment of 9,691 male sex offenders, including 4,295 child molesters, who were tracked for 3 years after their release from prisons in 15 States in 1994.

The 9,691 are two-thirds of all the male sex offenders released from prisons in the United States in 1994. The study represents the largest followup ever conducted of convicted sex offenders following discharge from prison and provides the most comprehensive assessment of their behavior after release.

June 2002:Department of Justice: Recidivism of Prisoners Released in 1994(DOJ-2002)

Reports on the rearrest, reconviction, and reincarceration of former inmates who were tracked for 3 years after their release from prisons in 15 States in 1994. The former inmates represent two-thirds of all prisoners released in the United States that year. The report includes prisoner demographic characteristics (gender, race, Hispanic origin, and age), criminal record, types of offenses for which they were imprisoned, the effects of length of stay in prison on likelihood of rearrest, and comparisons with a study of prisoners released in 1983.

June 2003:Solicitor General of Canada: Reconviction Rate of Federal Offenders Released in 1994-1997 (SGC-2003)

The recidivism of offenders is of interest to the public and an important indicator of the impact of criminal justice interventions. Measuring recidivism, however, is a complex matter. The various measures that are used have their advantages and disadvantages. The present study was conducted as part of the mandate of the Solicitor General Portfolio Corrections Statistics Committee to provide the general public and professionals basic statistical information on corrections and conditional release. In this study, recidivism was defined as any new conviction for an offence committed within two years of release from prison. The study samples included all releases (except for releases on temporary passes) from federal penitentiaries during the three fiscal years 1994/95, 1995/96 and 1996/97.

January 2004:Legal Issues & Court Cases Affecting Sex Offenders: Recidivism Statistics of Michigan Prisoners Paroled 1990-2000 (LICASSO-2004)

It is difficult to equate these studies, without knowing something about the -general focus- of the study and how they -grouped the offenders- in each study!

The DOJ-2002 and the SGC-2003 are general recidivism studies, no breakdowns by individual crime types. The DOJ-2003 is a specific crime type study related to sex offenders. The LICASSO-2004 report crosses all boundaries, meaning it covers all crime types individually, but only covers parolees.

So how do these studies measure recidivism? How have they grouped offenders to arrive at the different recidivism rates? As we look at that, we will mention exceptions about each grouping which cause results to be a little different if they occur.

MEASURES OF RECIDIVISM:

DOJ-2002 and DOJ-2003:

REARREST: Someone claims a law has been broken so the police arrest a person. However, all of these folks may or may not be guilty, a person is innocent until proven guilty in the US. Also there are cases of mistaken identity, DNA issues, and a host of other possibilities. REARREST numbers will always cause the highest recidivism rates, and IF somone wants to make a point, they will quote these recidivism rates.

RECONVICTION (1): This includes everyone who has been convicted, had a trial (by judge, jury, or plea) and we must remember that, even within this group, there have been news articles showing a few folks who were later found not guilty of what they were convicted of, some even taken off death row and released from prison.

RESENTENCE TO PRISON: This represents only those who were convicted, resentenced and returned to prison, if a person was sentenced to jail time or probation, they are not included in this number.

RETURN TO PRISON WITH A NEW SENTENCE: While you would think this is true recidivism, there are still more you need to know. If a person has been resentenced to prison, then yes, s/he has committed another crime, but whether it is the same kind of crime or a new kind of crime is unknown at this point.

RETURN TO PRISON WITHOUT A NEW SENTENCE: This is a group that most folks do not understand. When a person is sent to prison at some point they are eligible for parole, and if paroled they are permitted to go back to society if they follow certain conditions of parole. Those conditions are, report to parole officer every xx days, go to therapy, stay away from ___, do not leave the county, no alcohol, no drugs, and many other things that are related to their particular crime or a condition they have. If a person breaks one or more of these conditions, which are not crimes per se, they can be returned to prison without a new sentence. Violations of this sort are called technical violations, and can cause the person to be sent back to prison.

Sex Offender Recidivism Study
-DOJ-2003 Points Worthy of Mention-

The DOJ-2003 Report is a "Offender Specific" report. Unique to this report was that statistics were generated several different ways, which clearly adds to its value. Most interesting is the groupings, by state penal codes: "All Offenders" -- "Rapists & Sexual Assaulters" -- "Child Molesters & Statutory Rapists" -- " which was derived from actual prison records.

Further, DOJ-2003 is the first report to recognize SUB-GROUPS (categories) of sex offenders, instead of painting all sex offenders alike. This report drew distinctions between rapists, sexual assaulters, child molesters, and statutory rapists; AND calculated recidivism rates for each sub-group. On a negative note you cannot cross-compare these sub-groups because many of the offenders are included in more than one sub-group. This is due to the way the states define their individual crimes and some missing information in individual files.

Unfortunately there was no breakdown of "Predatory Crimes" (even though they had the criminal records), crimes where the offender sought out a victim. While the term "rapist" infers "predatory" that is not always the case. Predatory acts go to the real dangerousness of the offender.

A major flaw in DOJ-2003 is, they compare "Sex Offenders to Non-Sex Offenders," which is akin to comparing apples and grapefruits expecting them to be equal or taste the same. This report never compared say, arsonists to non-arsonists, or car thieves to non-car thieves, or murders to non-murders, or prostitutes to non-prostitutes, or robbers to non-robbers, or drug convictions to non-drug convictions, or any other combination.

While comparing sex offenders to non-sex offenders SOUNDS GOOD, there is nothing to compare this percentage to, to see if it is higher or lower than other crime types. It appears this was the only way to get a high percentage of something, a way to make sex offenders look bad because all other analogies showed low percentages.

SGC-2003:

RECONVICTION (effectively): This standard was decided on by the Canadians because it is the most logical measure of recidivism. This report included only figures for parolees just like the LICASSO-2004 report.

LICASSO-2004:

RECONVICTION (effectively): This report is based on, the number of sex offenders paroled (1990-2000 [4,762]) and the number of them that came back to prison for a new crime; adjusted for technical violations. Technical violations are not included in these recidivism rates. However, it only includes figures based on actual parolees.

In summary, it is critical to know what group/s of offenders are included in a recidivism rate. Most often from what we have seen, the recidivism rates quoted are for those REARRESTED, this will cause the highest recidivism rate. Speakers tend to use these figures to enhance or support whatever theory they are making to their audience.

-Recidivism Means-
The Same -OR- Different Crime Type,
The Second Time?

So far recidivism has meant -another crime has been committed-. The real question is, was the new crime the same crime type as the prior crime type, or was it a new crime type? Remembering that, it is touted that sex offenders will commit the same crime type. i.e. another sex offense. Well, these statistics prove that theory is false!

NEW Sex Crimes: Only two of the above studies reviewed this point. DOJ-2003 [p2] said, 3.5% of those paroled were reconvicted for another sex crime. LICASSO-2004 [p1] shows 2.46% were reconvicted for another sex crime.

Further, the Canadian study, SGC-2003 [p8] mentioned, "the sexual offence reconviction rate was very low (0.7% to 1.7%). New sexual offences resulting in a conviction were infrequent. Forty-nine inmates or 0.7% of the sample recidivated with a sexual offence in the 1994/95 cohort, 1.0 % (n = 36) in the 1995/96 cohort, and 1.7% (n = 61) in the 1996/97 cohort. "

NEW NON-Sex Crimes: The DOJ-2003 report [p2] says, 2,326 (24%) of the 9,691 were reconvicted for a new offense; new offense includes sex offenses and other crime types. That wording may be tricky, within the 2,326 are the 339 new sex offenses, therefore, actually 1,987 (20%) were reconvicted of a crime OTHER THAN a sex offense.

LICASSO-2004 shows that, 3.65% of those paroled were reconvicted of a non-sex offense. The reason for the major difference is, within the DOJ-2003 reconviction number are probationers, they are not in the LICASSO-2004 report. In summary, it is unlikely that a previously convicted sex offender will commit another sex offense.

--- Lets Conclude by Bringing Recidivism Into Perspective ---
with the actual Department of Justice statistics.

All these numbers and statistics tend to confuse folks and we recognize there are folks who will refuse to believe them at all. So, lets bring this into perspective. The June 2002: Department of Justice: Recidivism of Prisoners Released in 1994(DOJ-2002) mentioned something most folks have overlooked, and we quote:

"The fraction of all crimes that released prisoners accounted for: The study (DOJ-2002) cannot measure precisely what fraction of all crimes the former prisoners were responsible for during the 3 years following their release. The closest measure is the fraction of all arrests for the seven serious crimes (murder, rape, robbery, aggravated assault, burglary, larceny, and motor vehicle theft). The number of "arrests" is not the number of "arrest charges (meaning a person can be charged with multiple crimes)" but the number of different days on which a person was arrested.

In 13 states (because of missing data Florida and Illinois could not be in this analysis) from 1994 to 1997, -234,358- released prisoners accounted for -140,534- arrests (table 5). During the period in the 13 states, -2,994,868- adults were arrested for the 7 serious crimes according to the FBI.

Therefore, REARRESTS of the released prisoners were 4.7% of all arrests for serious crime from 1994-1997." (DOJ-2002 page 5)

So lets understand what this is saying, 95.3% of all serious crime was committed by who? New Criminals, not recidivists! Yes, we must acknowledge that, it is possible that some of those "new criminals" had records which go back many years. Like the study said, we cannot be precise!

However we do know this, that during that time period (1994-1997): 43% (4,163) of the 9,691 were REARRESTED, 24% (2,326) were RECONVICTED for non-sex offences (3), and, 3.5% (339) were RECONVICTED for a sex offense. (DOJ-2003[p2]). (2)

Finally, remember that 4.7% above, well what percentage of those folks are actually RECONVICTED sex offenders? 2,326 + 339 = 2,665 or .08898%. Therefore, RECONVICTION of the released sex offender prisoners was .08898% of all arrests for serious crime from 1994-1997. HIGH RECIDIVISM?????

Now that the truth is out, is there any wonder why legislators
and the media DO NOT WANT TO HEAR IT, ignoring these statistics?

Finally, legislators and the media focus on recidivist sex offenders
who represent .08898% of the arrests for crimes committed,
and ignore the remaining 99.91102% of other offenders?

WHY? -OR- do we all know why?

eAdvocate

END NOTES: (1) The United States studies did not adjust for a significant point about "RECONVICTION" numbers, which was noted by the Canadian study about -crimes charged following release from prison-

SGC-2003 [p7]: "Sometimes inmates released from prisons are charged with crimes that have occurred prior to release. New evidence may come to the attention of the police or crimes are committed while incarcerated or before the period of incarceration. Therefore, it is important in studies of recidivism to ensure that old crimes are not included in the measure of recidivism. To minimize this threat to our measure of reconviction, all convictions that occurred within 60 days of release were further investigated. Using OMS, cases were reviewed to verify whether the conviction recorded on the RCMP’s Criminal History record actually occurred after release from prison. For example, in the 1994/95 release cohort there was 324 cases of convictions recorded within 60 days of release. Of these cases, 4.6% involved crimes that occurred prior to release. Thus, these crimes were not counted as new reconvictions."

(2) The difference between REARRESTED and RECONVICTED (1,498) were either innocent, falsely charged, or technical violations of parole or probation, or some combination of these.

(3) Is this due to the effects of Megans' Laws? In that, the laws cause registered sex offenders to loose their jobs, homes, and even food at times, leaving them to only one alternative: return to crimes, but now, non-sex offenses?

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