Wednesday, March 8, 2017

Why Minnesota's New Sex Offender Sentencing Bills, HF 1572/SF 1895, Will Endanger Minnesota's Children

Sex Offender Facts

Before I begin, I would like to start with a brief review of three facts about sex offenders that the average person does not know:
  1. Most sex crimes are committed by people new to the criminal justice system
    1. 95% of new sex crimes are committed by first-time offenders, or those new to the criminal justice system. This comes from studying 21 years of arrest data in New York. The authors stated that an attempt to replicate the study would be extremely useful, but to my knowledge there has not been such an attempt, though the Minnesota Chapter of The Association for the Treatment of Sexual Abusers and the Center for Sex Offender Management cite the same statistic. If you know of a similar study, use the contact gadget on the right, and be sure to cite the study.
    2. This premise is supported by the low rates of recidivism among sex offenders (see following point): If convicted sex offenders do not typically commit sex crimes, then either A: Other offenders with different convictions or B: Those new to the criminal justice system (first-time offenders). The above study establishes that it is the second group, first-time offenders.
  2. Sex offender recidivism is low (really low)
    1. A wide variety of recidivism studies are available on the subject (for starters, see here: 45,398 offenders in 16 countries, 11.5%; here (MN: 7%), and here). 
    2. Studying recidivism is compounded by two major factors: Recidivism typically looks at those released from prison, not those on supervision (probation), and underreporting can skew findings in recidivism studies with no way to control for the different findings.
    3. A wider review of the literature shows that general recidivism (a sex offender that reoffends with any crime) is higher at around 30-40%, and sexual recidivism (a sex offender that reoffends with a sex crime) is lower at around 12%. In other words, when a sex offender reoffends, it is not usually with a sexual crime.
  3. Sex offender treatment works well
    1. For a very broad overview of the topic, see here or here. For a study aimed more at recidivism, see here
    2. Sex offender treatment is not geared to a one-size-fits-all approach, but is tailored to a specific offender's needs. Generally, juveniles and first-time offenders respond better to treatment than other offenders. 
For a more comprehensive look at the facts about sex offenders, see here (PDF from Center for Sex Offender Management, and Office of Justice Program of the United States Department of Justice). For a look at Minnesota ATSA's discussion on sex offender residency restrictions, which includes an overview of facts, see here.
With that having been said, let me introduce the new sentencing bills (here and here) and what its aims are.

The Bills: An Overview

For those of you who are unfamiliar with these topics, what they are essentially proposing can be summed up in three points:
  1. Eliminating the stays of adjudication (wipe criminal record pending successful completion of probation, record is invisible to public) and stays of imposition (felony drops to a misdemeanor upon successful completion of probation, record is visible the entire time but drops in severity).
  2. Establishing a mandatory minimum sentence for "child pornography" (child sexual abuse material) offenders: 6 months for first-time offender, 12 for someone with a prior same offense.
  3. Establishing lifetime supervision, either in the form of conditional release or probation.
The supposed goal of the bills is to improve public safety. I say supposed, because I believe these bills will do nothing of the sort and may in fact increase recidivism and ignore the bulk of the problem: First-time offenders. If the goal is public safety, the bill's contents should be policies that are effective, not policies that pander to public opinion.

Who Is Opposing These Bills?

I have confirmation that the Minnesota Chapter of The Association for the Treatment of Sexual Abusers (MN-ATSA) is fighting certain provisions of this bill, the Minnesota County Attorneys Association, as well as the Minnesota Coalition Against Sexual Assault. By contrast, three sexual abuse survivors and the Minnesota Sheriff's Association has voiced their support. Frankly, I trust the aforementioned groups because they actually see the results of sex crimes on both sides of the coin: Victims and sex offenders. The facts are with those opposing these bills.

Why Oppose Them: The State of Minnesota's Own Statutes

In case you are unaware, last year, the State of Minnesota passed a statute regarding the policy it has towards criminals. That statute reads:

"The legislature declares that it is the policy of the state of Minnesota to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship. The opportunity to secure employment or to pursue, practice, or engage in a meaningful and profitable trade, occupation, vocation, profession or business is essential to the rehabilitation and the resumption of the responsibilities of citizenship."
If the Public Safety Committee sees its current omnibus bill, HF 896, passed, they will add that, "The opportunity to secure housing is also essential to rehabilitation and the resumption of the responsibilities of citizenship."

If that is Minnesota's policy towards criminals, then one must ask the question: How does establishing the lifetime supervision of a certain kind of criminal encourage them to resume the responsibilities of their citizenship? Likewise, how does removing the incentive of stays of adjudication and imposition make it easier for sexual offenders to reintegrate into society? The bills that are currently under consideration are a violation of Minnesota's own policy towards criminals.

Why Oppose Them: The Problem With Focusing On Sex Offenders

In case you missed my critique of Kare 11's investigations that started this bill, I argued that the bill targets a group of people responsible for the fewest number of sex crimes: Sex offenders. I overviewed some of the numbers specific to Minnesota and the reports that the Minnesota Department of Corrections has issued concerning sex offenders, and some of the problems with their reports. In short, focusing on reacting to sex crimes, which is what this bill does, is only ever going to affect about 10% of the problem or less. 

Why Oppose Them: The Problem With Taking Away An Offender's Incentive To Remain Law-Abiding

What if you made a mistake so bad, you knew it would haunt you for the rest of your life? What if you were not familiar with the laws about your mistake, the facts, or an ability to get mental health help? For a sex offender, that is not a hypothetical question: That is reality. Now, what if, having made that mistake and been caught, you are told that if you mind your P's and Q's and do not make another mistake, that mistake will only haunt a limited part of your life?

Exactly. You will jump at it, right? "I learned my lesson, I will do whatever it takes to get that chance the judge is giving me!" is roughly going to be what most offenders react with. There will always be a small percentage that try to manipulate the system and commit other crimes, just as there will always be a small percentage of "career criminals" for whom a sex offense is just another felony under their belt. But the reality is, most sex offenders are not in either of those groups.

Politicians in the state of Minnesota want to take away that hope for sex offenders in the hopes that it will deter sex crimes. Victims want stricter sentencing because they believe the same. What both parties are unaware of are the facts around this issue, and it is the facts, not an emotional testimony, that will protect Minnesota's children. They want to look tough on crime, but what they are really doing is making it harder for a sex offender to move on once they have committed their crime. That puts them more at risk for mental health issues, as well as further crimes. It does not lead to a safer community.

Why Oppose Them: The Problem With Lifelong Supervision

The main problem with lifelong supervision is that for most sex offenders, it is completely unnecessary: It would be a waste of taxpayer money. Read, if you will, the statement of an expert that has not only treated victims of sex crimes and sex offenders, but has extensively researched sex offender typology:
  1. Recidivism rates are not uniform across all sex offenders. Risk of re-offending varies based on well-known factors and can be reliably predicted by widely used risk assessment tools such as the Static-99 and Static-99R, which are used to classify offenders into various risk levels.
  2. Once convicted, most sexual offenders are never re-convicted of another sexual offence.
  3. First-time sexual offenders are significantly less likely to sexually re-offend than are those with previous sexual convictions.
  4. Contrary to the popular notion that sexual offenders remain at risk of re-offending through their lifespan, the longer offenders remain offence-free in the community, the less likely they are to re-offend sexually. Eventually, they are less likely to re-offend than a non-sexual offender is to commit an “out of the blue” sexual offence.
    1. Offenders who are classified as low-risk by the Static-99R pose no more risk of recidivism than do [whiteout] individuals who have never been arrested for a sex-related offense but have been arrested for some other crime.
    2. After 10-14 years in the community without committing a sex offense, medium-risk offenders pose no more risk of recidivism than individuals who have never been arrested for a sex-related offense but have been arrested for some other crime.
    3. After 17 years without a new arrest for a sex-related offense, high risk offenders pose no more risk of committing a new sex offense than do individuals who have never been arrested for a sex-related offense but have been arrested for some other crime.
  5. Based on my research, my colleagues and I recommend that rather than considering all sexual offenders as continuous, lifelong threats, society will be better served when legislation and policies consider the cost/benefit break point after which resources are spent tracking and supervising low-risk sexual offenders are better re-directed toward the management of high-risk sexual offenders, crime prevention, and victim services.

It may be slightly difficult to understand the last paragraph, but they recommend that instead of viewing all sex offenders as lifelong risks to public safety (as HF 1572/SF 1895 does), it is better to look at the point at which the costs outweigh the benefits of supervising and tracking sex offenders, and to focus efforts on high-risk offenders, prevention, and services to victims. 

Why Oppose Them: Mandatory Minimum Sentences

They call it child pornography. I call it sex abuse material, because that is what it is. Those that are charged with sex abuse material crimes are typically low-risk sex offenders, who would do well on probation with a stay of imposition. Probation would require them to complete sex offender treatment as well as refraining from consuming any kind of sexual imagery or pornography. In larger counties, compliance is monitored by a computer program. They would also need to refrain from contact with children. Mandatory minimum sentences would again hinder these offenders' abilities to re-enter the community, and leave a larger gap between the time they are arrested and sentenced, and the time they are able to get sex offender treatment. That serves no real public safety purpose, it serves to vindictively punish people for committing a certain crime. As the bills are aimed to improve public safety, that must be their focus.

Sex Crime Is Not Simple

The unfortunate truth is that sex crime is vastly complex, and a wide variety of research has been conducted in each complex area within sexual crime. While the public may understand the issue simply as, "If someone poses a risk to the public they should be locked up!" the reality is not nearly that simple. Most sex offenders do not present enough of a risk to public safety, and many other types of offenders (property crime, financial crime, theft, etc.) have a much higher risk to public safety than sex offenders present. Attempting to take a one-size-fits-all approach to this issue will compound these complex issues, not solve them.

A Criminal Issue Or A Mental Health Issue?

Recently, there has been much talk in the academic field of child sexual abuse prevention about treating sex abuse as a public health issue. This idea is new to the public and to policy makers, but not new to researchers. The Center for Sex Offender Management has stated much the same thing, and last year, Elizabeth Letourneau gave a speech at TEDMED indicating that sexual abuse is a preventable public health issue. 

While victimizing people sexually is absolutely abhorrent and a criminal act, the issues that lead someone to commit that act are largely mental health issues with a wide variety of motivations and contributing factors. Those motivations and factors are just as complex as the realities of sex crime, if not more so: The same thing that motivates incest in one person does not motivate a juvenile to sexually abuse a younger child. Even the same kind of offense is motivated differently.

If we paid attention to the realities of sex crimes, who perpetrates them, and focused on preventing sex crime, a larger dent would be made in keeping the public safe than current methods of reacting to sex offenders will do. That is why I have formed some solutions, based on my nerd-like knowledge of this subject.

Alternative Solutions

I have already taken the liberty of contacting many state politicians about this same issue. The recommendations I made for them are, instead of passing HF 1572:
  1. Use stays of imposition and probation on adults that score as low-risk on Minnesota’s risk assessment criteria, and stays of adjudication on juvenile offenders. Incentivize sex offenders to remain law-abiding. Do not eliminate these stays.
  2. Assign risk level based on risk assessment, not on which statute was violated. If possible, use both the MN-SOST-3.1 and the Static-99R. While the MN-SOST-3.1 is reliable, more research has been done proving the reliability of the Static-99R. has more information including research. 
  3. Remove the requirement to register for low-risk offenders, and reserve that for moderate and high-risk offenders. If any low-risk offender commits a second sex crime, they must register, and if any moderate to high risk offender commits a second sex crime, they receive an automatic prison sentence appropriate to the circumstances, after which their name would be made public (notification). The money saved from taking this approach should be spent on prevention and education.
  4. Should any offender with at least two sexual crimes on their record reoffend again regardless of the offense type, it is an automatic life sentence in prison. Three strikes and they are done. That alone should serve to both control recidivism, and deter recidivists.
  5. More is needed in the way of educating children and communities about sexual issues and where they can go to get help. I believe Erin’s Law is just one step: We cannot stop with passing just Erin’s Law. These recommendations is covered in depth here.
I have made other recommendations before on this blog, and indeed in the critique of Kare 11's investigation. These recommendations are specific to Minnesota, while many of the recommendations in my critique are generalized to the rest of the United States. I believe that sex crimes can be stopped before they happen. Do you believe these are preventable crimes? If so, let your legislators know. If not, then study up on this subject. The articles and studies link on the right is a great place to start.

It is for the children, after all.



The Senate Public Safety Committee, and the conference committee, has chosen to delete HF 1572 from the Public Safety Omnibus Bill. For now, I am considering this a victory.

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