Sex offender risk assessment and the law

Journal of Psychiatry and Law

Volumn 24, Issue 3, 1996, Pages 343-377

  Witt, Philip H ^a   Delrusso, Joseph ^a   Oppenheim, Jessica ^a   Ferguson, Glenn ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

CRIMINAL JUSTICE; ENVIRONMENTAL FACTOR; FAMILY VIOLENCE; HISTORY OF MEDICINE; HUMAN; HUMAN CELL; HUMAN TISSUE; JUVENILE DELINQUENCY; OFFENDER; PERSONALITY; PREDICTION; REVIEW; RISK ASSESSMENT; SEXUAL CRIME;

EID: 0030426601     PISSN: 00931853     EISSN: None     Source Type: Journal    
DOI: 10.1177/009318539602400302     Document Type: Review

References (146)

1. Associated Press, Belgians Demonstrate for Pedophiles' Victims, The Record of Bergen County, New Jersey, p. A-6, October 21, 1996.
2. Blacher, R. (1995). Historical perspective of the sex psychopath statute: From the revolutionary era to the present Federal Crime Bill, Mercer Law Review, 46, 889-920.
3. Id.
4. Id. p. 890.
5. Id.
6. Id. p. 892.
7. Id. p. 895.
8. Horwitz, A. (1995). Sexual psychopath legislation: Is there anywhere to go but backwards? University of Pittsburgh Law Review, 57, 35-78, at 38.
9. Id.
10. Id.
11. See Horwitz, supra note 8 at p. 41, where he outlines the legislative assumptions in passing "sexual psychopath" statutes: "It was assumed that many sex offenses were committed by an identifiable class . . . who shared some particular psychiatric diagnosis and who reoffended at a higher rate than other criminals. . . ."
12. Id. p. 41.
13. Id. p. 43. Additionally, these laws were criticized as being vague and incomprehensible. Some states responded to these criticisms by attempting to create "a concrete, functional set of criteria that would allow a more precise legal definition," as did New Jersey, for example, in 1949, when the Tappen Commission, appointed by the governor, recommended the New Jersey Sex Offender Act to the legislature. Witt, P.H. & Frank, M. (1988). Psychological evaluations under the New Jersey Sex Offender Act, New Jersey Trial Lawyer, 2, 37-43, at 37.
14. Id. p. 43. Additionally, these laws were criticized as being vague and incomprehensible. Some states responded to these criticisms by attempting to create "a concrete, functional set of criteria that would allow a more precise legal definition," as did New Jersey, for example, in 1949, when the Tappen Commission, appointed by the governor, recommended the New Jersey Sex Offender Act to the legislature. Witt, P.H. & Frank, M. (1988). Psychological evaluations under the New Jersey Sex Offender Act, New Jersey Trial Lawyer, 2, 37-43, at 37.
15. Horwitz, supra note 8 at p. 42.
16. Id. p. 78.
17. See Monahan, J. (1981). Predicting violent behavior: Assessment of clinical techniques (pp. 47-49). Beverly Hills: Sage; also Ennis, B.J. & Litwack, T.R. (1974). Psychiatry and the presumption of expertise: Flipping coins in the courtroom, California Law Review, 62, 693-737, at pp. 734-735.
18. See Monahan, J. (1981). Predicting violent behavior: Assessment of clinical techniques (pp. 47-49). Beverly Hills: Sage; also Ennis, B.J. & Litwack, T.R. (1974). Psychiatry and the presumption of expertise: Flipping coins in the courtroom, California Law Review, 62, 693-737, at pp. 734-735.
19. Horwitz, supra note 8 at pp. 46, 47.
20. Id. p. 47.
21. Id. p. 78. In California, several "treated" sex offenders committed brutal murders after release.
22. Id. p. 47.
23. For example, Monahan, supra note 16.
24. "The assessment of risk also is observed at every important point along the pathway, from the report of a crime by a victim to the final discharge of a convicted offender." Gottfredson, D.M. & Gottfredson, S.D. (1988). Stakes and risks in the prediction of violent criminal behavior, Violence and Victims, 3, 247-262, at p. 248.
25. Cicchinelli, L. (1995). Risk assessment: Expectations and realities, The APSAC Advisor, 8, 3.
26. "In situations in which the child is removed, case workers must often determine whether and when the child should be returned. . . . [T]he assessment task is difficult because the case workers must predict events (e.g., physical assault) that may occur in the future." Milner, J.S. (1995). Physical child abuse assessment: Perpetrator evaluation, in J.C. Campbell (ed.), Assessing Dangerousness: Violence by Sexual Offenders, Batterers, and Child Abusers (pp. 41-67). Thousand Oaks, CA: Sage.
27. Cicchinelli, supra note 23, p. 3.
28. Schall v. Martin, 104 S.Ct. 2403, at p. 2411 (1984).
29. Id.
30. Id. p. 2403.
31. Id.; see also discussion in The Supreme Court (Nov. 1984). 1983 Term, Leading Cases, Pretrial Detention of Juveniles, Harvard Law Review, 98, 130-140.
32. State in the Interest of S.M., 211 N.J. Super. 675, at 683 (App. Div. 1986).
33. New Jersey Code of Juvenile Justice, 2A:4A-31 (1996).
34. Witt, P.H. (1990). Developmental factors in juvenile waiver evaluations, New Jersey Psychologist, 40, 7-8; Heilbrun, K., Bennett, W.S., Evans, J.H., Offutt, R.A., Reiff, H.J. & White, A.J. (1988). Assessing treatability in mentally disordered offenders: A conceptual and methodological note, Behavioral Sciences and the Law, 6, 479-486.
35. Witt, P.H. (1990). Developmental factors in juvenile waiver evaluations, New Jersey Psychologist, 40, 7-8; Heilbrun, K., Bennett, W.S., Evans, J.H., Offutt, R.A., Reiff, H.J. & White, A.J. (1988). Assessing treatability in mentally disordered offenders: A conceptual and methodological note, Behavioral Sciences and the Law, 6, 479-486.
36. Saunders, D.G. (1995). Prediction of wife assault, in Campbell (pp. 68-95), supra note 24.
37. Bergen County Commission on the Status of Women (1995). Women's Rights Law Reporter, 17, 79-92, at p. 80.
38. Domestic Violence Procedures Manual, revised Sept. 1994, issued under the authority of the Supreme Court of New Jersey and the Attorney General of the State of New Jersey.
39. American Jurisprudence 2d (1980). Sec. 9: Bail and Recognizance, 588, 589.
40. Harwin, M. (1993). Detaining for danger under the Bail Reform Act of 1984: Paradoxes of procedure and proof, Arizona Law Review, 35, 1091-1122.
41. Report of the United States Senate, No. 225, 98th Congress, 2nd Session, 3 (1984).
42. United States v. Salerno, 107 S.Ct. 2095, at 2104 (1987).
43. See the Sentencing Reform Act of 1984, 18 U.S.C. ss 3551-3673, 28 U.S.C. ss 991-998 (1994).
44. New Jersey Criminal Code, 2C:44-1 (1996).
45. State v. Roth, 95 N.J. 334 (1984).
46. 18 U.S.C.A. sec. 3575.
47. United States v. Williamson, 567 F.2d 610 (4th Cir. 1977).
48. Bochnewich, M.A. (1992). Prediction of dangerousness and Washington's sexually violent predator statutes, California Western Law Review, 29, 277-306, at p. 285.
49. Appelbaum, K.L. & Zaitchik, M.C. (1995). Mental health professionals play critical role in presentencing evaluations, Mental and Physical Disability Law Reporter, 19, 677-681.
50. Id.
51. Id.
52. N.J.S. 30:4-123.53.
53. Id.
54. Inciardi, J.A. (1993). Criminal justice, fourth edition, p. 655. New York: Harcourt Brace College Publishers.
55. Lejins, P.P. (1962). Parole prediction - An introductory statement, Crime and Delinquency, 8, 209-214.
56. Fisher, Senator D.M. (1996). Changing Pennsylvania's sentencing philosophy through the elimination of parole for violent offenders, Widener Journal of Public Law, 5, 269-296, at p. 283.
57. Gilmore, C.W. (1994). Treating sex offenders, Wisconsin Lawyer, 67, 21-57, at p. 21.
58. Id. p. 22.
59. In the Matter of D.C. New Jersey Supreme Court, Slip Opinion, p. 7 (1996).
60. N.J.S. 30:4-27.2m.
61. N.J.S. 30:4-27.21.
62. N.J.S. 30:4-27. 1b.
63. The earliest work consistently cited is Meehl, P.E. (1954). Clinical versus statistical prediction. Minneapolis: University of Minnesota Press.
64. Webster, C.D., Harris, G.T., Rice, M.E., Cormier, C. & Quinsey, V.L. (1994). The violence prediction scheme: Assessing dangerousness in high risk men. Toronto, Canada: University of Toronto Centre of Criminology.
65. Quinsey, V.L., Lalumiere, M.L., Rice, M.E. & Harris, G.T. (1995). Predicting sexual offenses. In J.C. Campbell (ed.) (pp. 114-137), supra note 24 at p. 116.
66. Hall, G.C.N. (1995). Sexual offender recidivism revisited: A metaanalysis of recent treatment studies, Journal of Clinical and Consulting Psychology, 63, 802-809.
67. Romero, J.J. & Williams, L.M. (1985). Recidivism among convicted sex offenders: A 10-year followup study, Federal Probation, 49, 58-64.
68. Furby, L., Weinrott, M.R. & Blackshaw, L. (1989). Sex offender recidivism: A review, Psychological Bulletin, 105, 3-30; see also discussion in Marshall, W.L. & Barbaree, H. (1990). Outcome of comprehensive cognitive-behavioral treatment programs, in W.I. Marshall, D.R. Laws & H.E. Barbaree (eds.), Handbook of sexual assault: Issues, theories and treatment of the offender (pp. 363-385). New York: Plenum Press.
69. Furby, L., Weinrott, M.R. & Blackshaw, L. (1989). Sex offender recidivism: A review, Psychological Bulletin, 105, 3-30; see also discussion in Marshall, W.L. & Barbaree, H. (1990). Outcome of comprehensive cognitive-behavioral treatment programs, in W.I. Marshall, D.R. Laws & H.E. Barbaree (eds.), Handbook of sexual assault: Issues, theories and treatment of the offender (pp. 363-385). New York: Plenum Press.
70. Cox, D.J. (1990). Exhibitionism: An overview, in D.J. Cox & R.J. Daitzman (eds.), Exhibitionism: Description, assessment and treatment (pp. 3-10), cited in Marshall & Barbaree, p. 373, id.
71. Quinsey et al., supra note 62.
72. Id.
73. Id.
74. Monahan, J. & Steadman, H.J. (1996). Violent storms and violent people: How meteorology can inform risk communication in mental health law, American Psychologist, 51, 931-938.
75. Assessing risk is probabilistic; there is no certainty. Mistakes will always be made, and any risk assessment system needs to explicitly consider the cost of false positive and false negative errors. That is, a risk assessment system that considers false negative errors costly will be triggered more easily, but at the price of yielding a higher number of false alarms (false positive errors). Conversely, a system that considers false positives costly will require a high level of certainty before being triggered, but only at the price of a higher number of misses (false negative errors). The weather warning system is an example of the first type of system in that false positives (false alarms) are considered less costly than false negatives (a violent weather event that catches a geographic area by surprise); the United States criminal court is an example of the latter system - i.e., a high level of proof is required to convict a defendant, in that some guilty parties are found not guilty (false negatives) so that the innocent are unlikely to be convicted (false positives).
76. Id. pp. 935-936.
77. A third personality area of some predictive use is social competency. However, when one looks at the traditional measures of this construct, they clearly overlap with antisocial lifestyle variables and sexual fixation variables, and consequently will not be considered separately. For example, the three primary variables associated with lack of social competence are inability to maintain a long-term adult romantic relationship, job instability, and residential instability, all three of which could just as readily be associated with an impulsive, antisocial lifestyle. Inability to maintain a long-term adult romantic relationship is also a potential measure for sexual fixation, since some such individuals are more likely to pursue illegal sexual and romantic objects. At the very least, sex offenders without a committed adult relationship may have less access than married individuals to normal, legal expressions of sexuality. In any event, these factors are positively related to sex offender recidivism; see Abel, G., Mittleman, M., Becker, J., Rathner, J. & Roleau, J. (1988). Predicting child molesters' response to treatment, in R.A. Prentky & V.L. Quinsey (eds.), Human sexual aggression: Current perspectives (pp. 223-234). New York: New York Academy of Sciences; Barbaree, H.E. & Marshall, W.L. (1988). Deviant sexual arousal, offense history, and demographic variables as predictors of reoffense among child molesters, Behavioral Sciences and the Law, 6, 267-280; Maletsky, B.M. (1991). Treating the sex offender. Newbury Park, CA: Sage; Romero & Williams, supra note 64; McGrath, R.J. (1991). Sex-offender risk assessment and disposition planning: A review of empirical and clinical findings, International Journal of Offender Therapy and Comparative Criminology, 35, 328-350.
78. A third personality area of some predictive use is social competency. However, when one looks at the traditional measures of this construct, they clearly overlap with antisocial lifestyle variables and sexual fixation variables, and consequently will not be considered separately. For example, the three primary variables associated with lack of social competence are inability to maintain a long-term adult romantic relationship, job instability, and residential instability, all three of which could just as readily be associated with an impulsive, antisocial lifestyle. Inability to maintain a long-term adult romantic relationship is also a potential measure for sexual fixation, since some such individuals are more likely to pursue illegal sexual and romantic objects. At the very least, sex offenders without a committed adult relationship may have less access than married individuals to normal, legal expressions of sexuality. In any event, these factors are positively related to sex offender recidivism; see Abel, G., Mittleman, M., Becker, J., Rathner, J. & Roleau, J. (1988). Predicting child molesters' response to treatment, in R.A. Prentky & V.L. Quinsey (eds.), Human sexual aggression: Current perspectives (pp. 223-234). New York: New York Academy of Sciences; Barbaree, H.E. & Marshall, W.L. (1988). Deviant sexual arousal, offense history, and demographic variables as predictors of reoffense among child molesters, Behavioral Sciences and the Law, 6, 267-280; Maletsky, B.M. (1991). Treating the sex offender. Newbury Park, CA: Sage; Romero & Williams, supra note 64; McGrath, R.J. (1991). Sex-offender risk assessment and disposition planning: A review of empirical and clinical findings, International Journal of Offender Therapy and Comparative Criminology, 35, 328-350.
79. A third personality area of some predictive use is social competency. However, when one looks at the traditional measures of this construct, they clearly overlap with antisocial lifestyle variables and sexual fixation variables, and consequently will not be considered separately. For example, the three primary variables associated with lack of social competence are inability to maintain a long-term adult romantic relationship, job instability, and residential instability, all three of which could just as readily be associated with an impulsive, antisocial lifestyle. Inability to maintain a long-term adult romantic relationship is also a potential measure for sexual fixation, since some such individuals are more likely to pursue illegal sexual and romantic objects. At the very least, sex offenders without a committed adult relationship may have less access than married individuals to normal, legal expressions of sexuality. In any event, these factors are positively related to sex offender recidivism; see Abel, G., Mittleman, M., Becker, J., Rathner, J. & Roleau, J. (1988). Predicting child molesters' response to treatment, in R.A. Prentky & V.L. Quinsey (eds.), Human sexual aggression: Current perspectives (pp. 223-234). New York: New York Academy of Sciences; Barbaree, H.E. & Marshall, W.L. (1988). Deviant sexual arousal, offense history, and demographic variables as predictors of reoffense among child molesters, Behavioral Sciences and the Law, 6, 267-280; Maletsky, B.M. (1991). Treating the sex offender. Newbury Park, CA: Sage; Romero & Williams, supra note 64; McGrath, R.J. (1991). Sex-offender risk assessment and disposition planning: A review of empirical and clinical findings, International Journal of Offender Therapy and Comparative Criminology, 35, 328-350.
80. A third personality area of some predictive use is social competency. However, when one looks at the traditional measures of this construct, they clearly overlap with antisocial lifestyle variables and sexual fixation variables, and consequently will not be considered separately. For example, the three primary variables associated with lack of social competence are inability to maintain a long-term adult romantic relationship, job instability, and residential instability, all three of which could just as readily be associated with an impulsive, antisocial lifestyle. Inability to maintain a long-term adult romantic relationship is also a potential measure for sexual fixation, since some such individuals are more likely to pursue illegal sexual and romantic objects. At the very least, sex offenders without a committed adult relationship may have less access than married individuals to normal, legal expressions of sexuality. In any event, these factors are positively related to sex offender recidivism; see Abel, G., Mittleman, M., Becker, J., Rathner, J. & Roleau, J. (1988). Predicting child molesters' response to treatment, in R.A. Prentky & V.L. Quinsey (eds.), Human sexual aggression: Current perspectives (pp. 223-234). New York: New York Academy of Sciences; Barbaree, H.E. & Marshall, W.L. (1988). Deviant sexual arousal, offense history, and demographic variables as predictors of reoffense among child molesters, Behavioral Sciences and the Law, 6, 267-280; Maletsky, B.M. (1991). Treating the sex offender. Newbury Park, CA: Sage; Romero & Williams, supra note 64; McGrath, R.J. (1991). Sex-offender risk assessment and disposition planning: A review of empirical and clinical findings, International Journal of Offender Therapy and Comparative Criminology, 35, 328-350.
81. This relationship is particularly strong for child molesters and less strong for rapists. See Quinsey et al., supra note 62.
82. Barbaree & Marshall, supra note 73; McGrath, supra note 73; Quinsey et al., supra note 62.
83. Quinsey, V.L. & Earls, C.M. (1990). The modification of sexual preferences, in W.L. Marshall, D.R. Laws & H.E. Barbaree (eds.) (pp. 279-295), supra note 65.
84. Rice, M.E., Harris, G.T. & Quinsey, V.L. (1990). A follow-up of rapists assessed in a maximum security psychiatric facility, Journal of Interpersonal Violence, 5, 435-448; Rice, M. E., Quinsey, V.L. & Harris, G.T. (1991). Sexual recidivism among child molesters released from a maximum security psychiatric institution. Journal of Consulting and Clinical Psychology, 59, 381-386; Quinsey et al., supra note 62; Maletsky, supra note 73.
85. Rice, M.E., Harris, G.T. & Quinsey, V.L. (1990). A follow-up of rapists assessed in a maximum security psychiatric facility, Journal of Interpersonal Violence, 5, 435-448; Rice, M. E., Quinsey, V.L. & Harris, G.T. (1991). Sexual recidivism among child molesters released from a maximum security psychiatric institution. Journal of Consulting and Clinical Psychology, 59, 381-386; Quinsey et al., supra note 62; Maletsky, supra note 73.
86. See review in McGrath, supra note 73; also Prentky, R.A., Knight, R.A. & Lee, A.F.S. (in press). Development and validation of a risk assessment scale for extrafamilial child molesters, Journal of Consulting and Clinical Psychology; Quinsey et al., supra note 62; Tracy, F., Donnelly, H., Morgenbesser, L. & Macdonald, D. (1983). Program evaluation: Recidivism research involving sex offenders, in J.G. Greer & I.R. Stuart (eds.), The sexual aggressor: Current perspectives on treatment (pp. 196-213). New York: Van Nostrand Reinhold; Romero & Williams, supra note 64; Maletsky, supra note 73; Prentky, R.A. & Knight, R.A. (1993). Age of onset of sexual assault: Criminal and life history correlates, in G.C.N. Hall, R. Hirschman, J.R. Graham & M.S. Zaragoza (eds.), Sexual Aggression: Issues in etiology, assessment, and treatment (pp. 43-62). Washington, DC: Taylor & Francis.
87. See review in McGrath, supra note 73; also Prentky, R.A., Knight, R.A. & Lee, A.F.S. (in press). Development and validation of a risk assessment scale for extrafamilial child molesters, Journal of Consulting and Clinical Psychology; Quinsey et al., supra note 62; Tracy, F., Donnelly, H., Morgenbesser, L. & Macdonald, D. (1983). Program evaluation: Recidivism research involving sex offenders, in J.G. Greer & I.R. Stuart (eds.), The sexual aggressor: Current perspectives on treatment (pp. 196-213). New York: Van Nostrand Reinhold; Romero & Williams, supra note 64; Maletsky, supra note 73; Prentky, R.A. & Knight, R.A. (1993). Age of onset of sexual assault: Criminal and life history correlates, in G.C.N. Hall, R. Hirschman, J.R. Graham & M.S. Zaragoza (eds.), Sexual Aggression: Issues in etiology, assessment, and treatment (pp. 43-62). Washington, DC: Taylor & Francis.
88. See review in McGrath, supra note 73; also Prentky, R.A., Knight, R.A. & Lee, A.F.S. (in press). Development and validation of a risk assessment scale for extrafamilial child molesters, Journal of Consulting and Clinical Psychology; Quinsey et al., supra note 62; Tracy, F., Donnelly, H., Morgenbesser, L. & Macdonald, D. (1983). Program evaluation: Recidivism research involving sex offenders, in J.G. Greer & I.R. Stuart (eds.), The sexual aggressor: Current perspectives on treatment (pp. 196-213). New York: Van Nostrand Reinhold; Romero & Williams, supra note 64; Maletsky, supra note 73; Prentky, R.A. & Knight, R.A. (1993). Age of onset of sexual assault: Criminal and life history correlates, in G.C.N. Hall, R. Hirschman, J.R. Graham & M.S. Zaragoza (eds.), Sexual Aggression: Issues in etiology, assessment, and treatment (pp. 43-62). Washington, DC: Taylor & Francis.
89. Romero & Williams, supra note 64; Prentky, et al., supra note 78.
90. Prentky, et al., supra note 78.
91. Barbaree, H.E. & Marshall, W.L. (1988). Deviant sexual arousal, offense history, and demographic variables as predictors of reoffense among child molesters, Behavior Science and the Law, 6, 267-280; however, this factor has not been consistently associated with recidivism; see Webster et al., supra note 61.
92. Id.
93. This use of non-professional staff becomes important later in our discussion of specific applications of risk assessment by the courts.
94. See McGrath, supra note 73, in which five of the six studies reviewed support this finding; also Rice, Quinsey & Harris, supra note 77.
95. Moreover, lack of a long-term, committed relationship would also be consistent with low social competency, a risk factor to be discussed later.
96. Cleckley, H. (1982). The mask of sanity (6th ed.). St. Louis, MO: C.V. Mosby.
97. Id.
98. American Psychiatric Association (1994). Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. Washington, DC: Author.
99. Gacono, C.B. & Hutton, H.E. (1994). Suggestions for the clinical and forensic use of the Hare Psychopathy Checklist-Revised, International Journal of Law and Psychiatry, 17, 303-317.
100. Hare, R.D. (1991). Manual for the Revised Psychopathy Checklist. Toronto: Multi-Health Systems, Inc.
101. Id.
102. Serin, R.C., Malcolm, P.B., Khanna, A. & Barbaree, H.E. (1994). Psychopathy and deviant arousal in incarcerated sexual offenders, Journal of Interpersonal Violence, 9, 3-11.
103. Id.
104. McGrath, supra note 73; Maletsky, supra note 73.
105. Webster et al., supra note 61.
106. Id.
107. McGrath, supra note 73.
108. Tracy et al., supra note 78.
109. Prentky, R.A., Knight, R.A., Lee, A.S. & Cerce, D.D. (1995). Predictive validity of lifestyle impulsivity for rapists. Criminal Justice and Behavior, 22, 106-128.
110. See, for example, Harris, P.M. (1995). Prison-based sex offender treatment programs in the post sexual psychopath era, Journal of Psychiatry and the Law, 23, 555-581; Furby, L. Weinrott, M.R. & Blackshaw, L. (1988). Sex offender recidivism: A Review, Psychological Bulletin, 105, 5-30.
111. See, for example, Harris, P.M. (1995). Prison-based sex offender treatment programs in the post sexual psychopath era, Journal of Psychiatry and the Law, 23, 555-581; Furby, L. Weinrott, M.R. & Blackshaw, L. (1988). Sex offender recidivism: A Review, Psychological Bulletin, 105, 5-30.
112. Abel, G.G., Osborne, C.A., Anthony, D. & Gardos, P. (1992). Current treatment of paraphiliacs, Annual Review of Sex Research, 3, 255-290; Marques, J.K., Day, D.M., Nelson, C. & West, M.A. (1994). Effects of cognitive-behavioral treatment on sex offender recidivism: Preliminary results of a longitudinal study, Criminal Justice and Behavior, 21, 28-54; Hall, supra note 63; Marshall, W.L., Jones, R., Ward, T., Johnson, R. & Barbaree, H.E. (1991). Treatment outcome with sex offenders, Clinical Psychology Review, 11, 465-486. One must bear in mind that whether a treatment protocol is effective depends, in part, on what the protocol is being compared with. Compared with perfect effectiveness, all treatments - mental health or otherwise - fall short.
113. Abel, G.G., Osborne, C.A., Anthony, D. & Gardos, P. (1992). Current treatment of paraphiliacs, Annual Review of Sex Research, 3, 255-290; Marques, J.K., Day, D.M., Nelson, C. & West, M.A. (1994). Effects of cognitive-behavioral treatment on sex offender recidivism: Preliminary results of a longitudinal study, Criminal Justice and Behavior, 21, 28-54; Hall, supra note 63; Marshall, W.L., Jones, R., Ward, T., Johnson, R. & Barbaree, H.E. (1991). Treatment outcome with sex offenders, Clinical Psychology Review, 11, 465-486. One must bear in mind that whether a treatment protocol is effective depends, in part, on what the protocol is being compared with. Compared with perfect effectiveness, all treatments - mental health or otherwise - fall short.
114. Abel, G.G., Osborne, C.A., Anthony, D. & Gardos, P. (1992). Current treatment of paraphiliacs, Annual Review of Sex Research, 3, 255-290; Marques, J.K., Day, D.M., Nelson, C. & West, M.A. (1994). Effects of cognitive-behavioral treatment on sex offender recidivism: Preliminary results of a longitudinal study, Criminal Justice and Behavior, 21, 28-54; Hall, supra note 63; Marshall, W.L., Jones, R., Ward, T., Johnson, R. & Barbaree, H.E. (1991). Treatment outcome with sex offenders, Clinical Psychology Review, 11, 465-486. One must bear in mind that whether a treatment protocol is effective depends, in part, on what the protocol is being compared with. Compared with perfect effectiveness, all treatments - mental health or otherwise - fall short.
115. Hall, supra note 63.
116. Marques et al., supra note 101; this finding has been replicated many times for substance abuse treatment programs, even mandatory programs. See studies cited in Leukefeld, C.G. & Tims, F.M. (eds.) (1988). Compulsory treatment of drug abuse: Research and clinical practice. Rockville, MD: National Institute on Drug Abuse.
117. Freeman-Longo, R.E., Bird, S., Stevenson, W.F. & Fiske, J.A. (1994). 1994 Nationwide survey of treatment programs and models serving abuse-reactive children and adolescents & adult sex offenders. Brandon, VT: Safer Society Press.
118. Marshall et al., supra note 101; Freeman-Longo et al., supra note 104.
119. Abel et al., supra note 73.
120. Marques et al., supra note 101.
121. Rice, Quinsey & Harris, supra note 77; Marques, J., Nelson, C., West, M.A. & Day, D.M. (1994). The relationship between treatment goals and recidivism among child molesters, Behavior Research and Therapy, 32, 577-588; Abel et al., supra note 73.
122. To a certain extent, it is not only the presence of psychopathy that causes difficulties in treatment - a well researched and well supported finding - but the presence of any personality disorder that impairs the offender's ability to gain from treatment. See Chaffin, M. (1994). Assessment and treatment of child sexual abusers, Journal of Interpersonal Violence, 9, 224-237; Rice, Quinsey & Harris, supra note 77. Among the various effects of treatment, knowledge of and ability to apply relapse-prevention strategies has been found to be among the most powerful predictors, with those offenders most skilled at identifying high-risk situations and at applying effective coping skills to manage such situations being less likely to relapse, suggesting that intellectually impaired offenders might be handicapped in benefiting from this aspect of treatment. See Marques et al., supra note 108.
123. See McGrath, supra note 73; Serin et al., supra note 92; Quinsey et al., supra note 62; Maletsky, B.M. (1993). Factors associated with success and failure in the behavioral and cognitive treatment of sexual offenders, Annals of Sex Research, 6, 241-258.
124. For example, Monahan, supra note 16.
125. See McGrath, supra note 73; Serin et al., supra note 92; Quinsey et al., supra note 62; Maletsky, supra note 110.
126. See, for example, Maletsky, supra note 110.
127. N.J.S.A. 2C:7-6.
128. This committee consisted of three licensed psychologists, five assistant county prosecutors, four deputy attorneys general, and three administrators from the New Jersey Department of Corrections.
129. Doe v. Poritz, 142 N.J. 1, at p. 39 (1995).
130. "Therefore the probability of reoffense on the part of moderate- or high-risk offenders is not the issue before the court, but rather the relatively greater risk of reoffense compared either to the low-risk class or the moderate-risk offender class." Id.
131. This approach is sometimes known as the "risk and stakes" approach, although the committee chose to use "risk" to refer to the combination of the two factors named by the committee: seriousness of offense and likelihood of offense. However, it is clear that the committee's approach, regardless of name, is within the current approach to risk assessment emphasizing inclusion of both these factors in determining the potential risk that an individual presents to the community. See Gottfredson, D.M., Gottfredson, S.D. & Conly, C.H. (1989). Stakes and risks: Incapacitative intent in sentencing decisions, Behavioral Sciences and the Law, 7, 91-106.
132. Registrant Risk Assessment Scale promulgated by the Attorney General of the State of New Jersey, August 31, 1995.
133. Those previously convicted offenders under the purview of the RCNL are those found to be repetitive-compulsive by the state's facility for making such a determination. Supra note 116, at 16.
134. Supra note 116, p. 1 dvp.
135. Supra note 116, p. 32 dvp.
136. 146 N.J. 71 (1996).
137. Id.
138. Id. p. 108.
139. _ N.J. _ (slip dec. 1996).
140. Id. p. 5.
141. Id. p. 16.
142. Id.
143. Id. pp. 18-20.
144. Id. pp. 21-22.
145. Id. p. 24.
146. Id. p. 26.