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April 12, 2010

"Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws"

The title of this post is the title of this notable new paper from Melissa Hamilton now appearing on SSRN. Here is the abstract:

This article argues that the new preventive law focus in sex offender laws is largely ineffective and too costly to personal liberty.  The application of sex offender laws involving civil commitment, sex offender registration, and residency restrictions is often based on an individualized analysis of future dangerousness, i.e., the risk the defendant will sexually recidivate. In assessing future dangerousness, experts and courts place heavy emphasis on the use of actuarial tools, basically checklists that mental health experts use to derive statistical estimates of risk.  This article provides substantiation that actuarial tools, while enjoying the imprimatur of science, suffer from significant empirical faults. 

Yet courts are largely abandoning their gatekeeping roles in accepting the experts’ testimony using actuarial tool predictions of risk without critical review as required by the Daubert and Frye evidentiary standards. The paper theorizes that this is likely a pragmatic strategy considering the current political and public thirst for retribution against sexual predators.  But, use of this empirically-challenged science exacerbates the practice of applying sex offender restrictions to inappropriately labeled individuals.  Finally, this article takes advantage of the interdisciplinary trend of engaging social science with the law on expert evidence.  More specifically, it offers an empirical assessment of future dangerousness opinions within the Daubert/Frye scientific evidence frameworks. The significance of the conclusion reached in this article is clear: if the law continues to rely upon suspect science that results in the wrong individuals being subject to liberty-infringing sex offender laws, then the drain on criminal justice resources will leave the truly dangerous offenders without sufficient supervision at the risk of public safety.

April 12, 2010 at 05:44 PM | Permalink


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123D does not require future forecasting. It looks backwards and solves the problem of innocence. Even if the defendant is innocent, he is still a bad guy who could learn twice before.

Posted by: Supremacy Claus | Apr 12, 2010 11:06:23 PM

A very interesting article. I'm pleased to see that the topic is finally receiving the academic attention it deserves, at least judging by the new articles you've been highlighting. At this rate, given the unique issues involved (SVP civil commitment, registries, residency restrictions, internet crimes, "sexting," etc.) this is practically a specialization unto itself, and merits law school courses on sex offender laws.

I'm surprised that the topic hasn't received more academic attention. When I did a paper on chemical and physical castration there weren't many studies or sources to sort through, nor much case law for that matter. Similarly the research on the receipt/possession sentencing disparity didn't bear much fruit. If there were reasons for the former's five year mandatory minimum it wasn't apparent from the legislative record.

Thanks for the tip on the article, Doug.

Posted by: Alec | Apr 13, 2010 10:15:05 AM

Have to wonder if all the grandstanding, hysterical, bureaucratic, expensive gyrations of recent years have improved kids' safety a jot over methods relied upon in previous decades (that's right, icky pervs predate the police-state generation currently in power).

Of course no politician or prosecutor ever built a career warning children to beware of strangers (or funny uncles or weird neighbors, etc.).

Posted by: John K | Apr 13, 2010 11:08:41 AM

And, I might add. If one were to take this a bit further, to the next level, you could apply all that is said in this introduction, and multiply it by the number or family members within the family unit which has an ex-offender within the family.

Once a person, say a father of 4, is branded and placed into the public humiliation forum of the National Sex Offender Registry, and all the weight of each and every law both old, new and yet to come falls directly upon the lives of each member of that family like a ton of bricks.

The children of ex offenders are ridiculed, picked on, talked about, made the brunt of cruel jokes, and in the end, cast out from all the peer groups which their schools offer. Outcasts, lepers of society at young ages. These children feel the full weight of the Criminal Justice System in America.

For the children. If it protects just one. That is a very good question. Does it protect just one while at the same time dooming whole families into banishment and shame?

Just as the silent scream of that little baby who is being ripped apart by the abortionist's tools cannot be heard... so too is the quiet agony which the children of a parent who has been branded a Sex Offender experience at the hands of our lawmakers.
When the constitution said No Ex Post Facto Laws.. it said it for a reason. These shortsighted politicians have no understanding of the Constitution. They only see that gold at the end of their political rainbow.

Posted by: Citizens for Change, America | Apr 14, 2010 3:43:56 AM

Thank you for addressing this issue in an academic manner. I agree with the assessment that internet downloads are easily accessible, free, and with a click of a mouse one can dowload hundreds of illegal images. I agree that using the internet today is different than setting up seedy meetings and obtaining materials of the past. My college age son viewed kiddie porn in college on his computer. Life will never be the same. His life as he knew it is essentially over for him (and his family). The mere term "sex offender" is a radioactive topic. Not many are in the position to clarify the complexity of issues involved. The majority of lawmakers and judges have too much at stake to consider true justice. The media thrives on misleading the public in not presenting the complex issues. However, when lawmakers, and judges'own kids and their friends "sextext" and send videos and images of themselves, considered downloading, producing, and receiving illegal images, they are quick to change laws and clarify. But, if a young person uses the internet and obtains the images their kids have produced and placed on the internet, they are quick to prosecute and brand him a sex offender for life. There is something just not legal about these laws. I do not know what can be done.

Posted by: Ann | Apr 16, 2010 10:34:46 AM

it's going to be ok ann between those on the registry and their family and friends that number is prob close to 7-8 MILLION individuals. sooner or later they will all get FED UP with the continued illegal after the fact punishment and then your going to get to watch the govt of the us go BOOM just like the old soviet union did once the people got pissed.

Posted by: rodsmith | Apr 16, 2010 1:06:41 PM


Not sure what you were trying to get across. Naivete is one of the biggest reasons politicians, SCOTUS and Wall Street get away with everything they do. Not to mention that most people have "It doesn't affect me syndrome" [Unless laws affect someone personally, they could care less how they affect someone else]. For that reason alone, you would never see anything of the sort.

Posted by: Huh? | May 3, 2010 10:36:30 PM

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