Citizens for Criminal Justice Reform – New Hampshire

Sex offender laws sail through legislatures on hysteria. Nine-year-old Jessica Lunsford was kidnapped from her Florida home in February, 2005, then raped and buried alive. Barely a month later sympathizers filed the draconian 82-page Jessica Lunsford Act in her honor. It passed unanimously in both chambers so fast Gov. Jeb Bush signed it May 2. 

The harshest sex offender code in America at the time carried a mandatory 25-year minimum sentence for any sex offense against a child under age 12, no matter the age of the perpetrator. Offenders older than 17 got life without parole. 

That crime and that law triggered a national media blitz. Bill O’Reilly of FOX urged viewers to push their governors for even tougher laws to protect kids. 

“This is literally a life-and-death battle to save our youngest and most vulnerable citizens from abuse, torture, and murder,” O’Reilly warned. “I hope you'll do your part.” 

New Hampshire and 16 other states had passed versions of Jessica’s Law within a year. That’s how sex offender laws get made. In a rush of rage and fear. It has been that way since 1692, when 21 citizens of Salem got the death penalty for consorting with Satan, the worst sex offender ever. 

Democratic Gov. John Lynch did his part in New Hampshire. The state already had a sex offender panic. An off-duty campaign aide to Republican Executive Councilor Raymond Burton had been arrested trying to pick up two teenage boys. He wanted sex with them, judging by the lubricant, beer, rope, blankets and knife the police found in his car. Every high level politician in the state was asking Burton to resign, as were several newspapers. He won re-election, but not by his usual landslide.

“People who prey on children are the most dangerous criminals in our state, targeting our most precious and vulnerable citizens,” Lynch testified an the election year to the New Hampshire Senate Judiciary Committee. “It is time for us to send a clear message in New Hampshire. If you prey on children, we will send you to prison, and we are going to keep you there for a long time.” 

Rep. Peter Batula, the prime House sponsor of the predator bill, said the state needed to keep from becoming “a haven for sexual predators to move over the borders.” 

According tom a verbatim transcript of the Senate bill hearing, Attorney General Kelley Ayotte told lawmakers about 17 repeat sex offenders who had gotten off lightly. She also said the sex offense recidivism rate for pedophiles is between 90 and 94 percent. 

“Offenders who sexually abuse children have a lifelong problem that is not amendable to treatment,” the chief prosecutor said. 

Ayotte took that recidivism figure from a dubious Canadian study published in 2004, “Lifetime Sex Offender Recidivism: A 25 year Follow-Up Study.” Canadian researcher Ron Langevin and his co-authors tracked 320 Canadian sex offenders for a quarter of a century, all of them referred to a single clinic for psychiatric evaluations between 1966 and 1974. The Langevin report used an unusual definition of a recidivist as someone who had committed two or more sex crimes in their lifetime, including crimes they did before release from incarceration. 

Langevin reported a 61.1 percent sex crime recidivism rate over all, including 51.1 percent for incest. The researchers also tabulated confessions the offenders made during counseling and any new arrests that failed to bring convictions. Adding these presumed crimes to actual convictions raised the sex crime recidivism rate to 88.3 percent in all, including 84.2 percent for incest.

Measured this way, molesters of young children outside their own family had a 94.1 percent sex crime recidivism over a quarter century. To this writer’s knowledge, that is by far the highest rate in any of the hundreds of existing sex offender recidivism studies. Sadly, this and similar reports underlie much of the widespread belief that all sex offenders are incurable and unrepentant. 

It hardly matters that other scientists have thoroughly debunked Langevin. Critics have noted that his research cohort was the worst of the worst offenders. In a rebuttal to Langevin, Canadian researcher Karl Hanson called the Langevin cohort a nonrandom sample chosen for evaluations in connection with major prosecutions, civil commitment proceedings or insanity defense cases. 

This subject group came under scrutiny in a different era than ours when sex offender treatment programs were rare and experimental. The ensuing revolution in child protection and sex abuse prosecution over half a century has swollen American prison populations of sex offenders by fifty- and a hundred-fold. The group incarcerated now is far less prone to recidivism than members of the Langevin study. 

Canadian researcher Cheryl Webster and colleagues have called the Langevin study so flawed it lacked any scientific integrity. In a scathing criticism entitled, “Results by Design: The Artefactual Construction of High Recidivism Rates for Sex Offenders,” Webster said more than half the individuals in the Langevin sample were already recidivists by his definition when they came to him for evaluations, thus ensuring at least a 50 percent recidivism rate. In the rest of the literature on criminology and in the popular press, recidivism means a new crime committed after release from prison. 

Webster added that the Langevin sample was much larger at first. His team removed any people from the study whose criminal records had been lost or automatically purged from the Canadian justice system after 15 years for lack of new crimes or charges. In effect, Langevin deleted the non-recidivists and steeply skewed the recidivism rate. 

In his answer to critics, Langevin warned against making claims about all sex offenders based on his sample. He also defended his definition of recidivism as one of many legitimate ways to measure it.

Getting back to Kelly Ayotte, she and her staff must have combed the literature on sex offending for weeks to find the single report with by far the highest sex crime recidivism rate in all the peer-reviewed journals. She only told lawmakers about Langevin, suppressing the contradictory evidence she much have known about. 

When Ayotte ran for U.S. Senate in 2010, she reminded voters of her tough-on-crime record. That message and a lot of out-of-state money won her the job. This spring she was the only New England member of Congress to vote against universal background checks for gun buyers. In a twisted way, her recent vote was entirely consistent with her past demagoguery. Both times she played the fear card. Carry a gun if you’re scared of terrorists. And lock up terrorist sex offenders for decades. 

Those promoting harsh sex offender laws also rely on a 1997 study led by Robert Prentky and others. His group looked at 136 rapists and 115 child molesters released from the Bridgewater sex offender civil commitment center in Massachusetts between 1959 and 1986. The sexual recidivism rates based on new sexual charges after release were 32 percent for molesters of kids and 25 percent for rapists of adults. 

But the length of time the men were free in the community varied widely. If all had been at large the full 25 years covered in the study, the authors estimated the sexual recidivism rates would have been 52 percent for molesters and 39 percent for rapists.

 This research dates from the same period as the Langevin findings. Prentky looked at a similar sample of men already adjudicated to be an acute risk to reoffend. The average rapist had 2.5 sex crimes on his record before the crime that sent him to Bridgewater. The child molesters averaged 3.6 sex offenses prior to the crime that triggered civil commitment. Using Langevin’s method, the recidivism rates for both groups would have been nearly 100 percent. 

The Prentky researchers concluded, to their credit: “The obvious, marked heterogeneity of sexual offenders precludes automatic generalization of the rates reported here to other samples.” 

Sex offender laws feed the rising backlash by branding all sex offenders as equally and intolerably dangerous. The Michigan public registry law promises to help the public know about sexual predators living near them “...who, by virtue of relatively high recidivism rates among such offenders and the devastating impact that sex crimes have on society, pose a serious threat to society.” 

The Federal Justice Department made the same argument before the U.S. Supreme Court in the landmark Alaska v John Doe case. In their amicus brief, the feds said sex offenders pose a huge threat because of their high recidivism rates and the injury they inflict on children. Based on that misinformation, the high court said the Alaska public registry is not an illegal retroactive punishment. 

New Hampshire State Sen. David Boutin sponsored a bill three years ago to encourage police departments to use active public notice when sex offenders are released into a neighborhood. He filed the legislation to please constituents already trying to drive a sex offender from Boutin’s home town. 

Joel Dutton, a man on the sex offender registry there, had recently been charged with a new sex crime. When Dutton made bail, his neighbors started a website against him with these and similar comments: 

"You show true restraint by not beating the tar out of this lowlife." Chris Johnson 

"I hope you guys get rid of the bastard. What a piece of crap." MTgirl 

"This is an incestuous family of whack-jobs and psychopaths, and it makes me feel good to know they are going down." Steve 

"Hang'em high and let the sun set on em. Only in a perfect world right? Ha, ha" Josh T 

Boutin echoed those feelings in Senate testimony for his legislation. 

"Late September of 2009 a convicted child sex offender heinously struck again and was charged with felonious sexual assault against a 7 year old Hooksett girl," Boutin told lawmakers. "Quick adoption of this bill and dissemination of notification guidelines to local law enforcement will go a long way towards preventing another sexual assault, with regrettable consequences for the victim, family and community, who all share in the burden of the pain." 

Boutin failed to say that the prosecutor had already dropped the case against Dutton for lack of evidence. A neighbor had accused Dutton of molesting his own niece, who was living with the defendant, his wife, and his brother in law. The bill died on the Senate floor, even in an election year. 

A growing body of research calls into question the wisdom of all this crusading. Karl Hanson, a corrections researcher for the Canadian Department of Public Safety, is a pioneer in the risk assessment of sex offenders. He has also co-authored numerous studies of sex offender recidivism, including several meta-analyses that followed large groups of offenders over many years.

One of his projects found a 13.4 percent sex offense recidivism rate after five years. Another reported 14.3 percent after six years. A third found 14 percent rate after five years, 20 percent after 10 years and 24 percent after 15 years. That is the highest credible recidivism rate I have seen. 

Hanson is well aware that recent American studies suggest even lower rates. One by Sarah Schelle of the Indiana Department of Corrections, entitled “Juvenile Recidivism, 2010,” said that only two of 71 juvenile sex offenders released in 2007 had committed a new sex offense within three years. That’s a 2.8 percent sex offense recidivism rate, although the sample size was small. The comparable rate for hundreds of adult sex offenders in Indiana the same year was 1.05 percent in the first three years after release. 

A report in July 2011 led by Mark Rubin of the University of Southern Maine’s Muskie School of Public Service tracked 900 sex offenders released from prison or probation in Maine between 2004 and 2008. Within three years after release, 3.8 percent had been convicted of a new sex crime. 

The study entitled “Sexual Assault Trends and Sex Offender Recidivism in Maine, 2010” can be found online by clicking here. Rubin told the Portland Press Herald the public still thinks sex offenders have high re-offense rates. “There’s really no data to support that theory,” he told the newspaper. 

A report in March 2012 by the State of Connecticut tracked 746 sex offenders for five years after release from prison in 2005. Only 3.6 percent had been charged with a new sex crime, 2.7 percent were convicted, and 1.7 percent had returned to prison for that new crime. The author of the report, Ivan Kuzyk, noted these low rates contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. “The real challenge for public agencies is to determine the level of risk which specific offenders pose (to) the public," Kuzyk said. Here is the full report. 

Other states and countries have recorded similar low rates: 1.2 percent after two years in Britain; 3 percent after 4.3 years in Iowa; 8 percent after a decade in Ohio; 5.3 percent after three years in a 15-state federal study; 3 percent after three years in Alaska; 4.7 percent after three years in Tennessee; 2 percent after three years in West Virginia; 3.38 percent after 10 years in California; 7.2 percent after 25 years in Utah; 2.3 percent after three years in Arizona; 3.8 percent after three years in Delaware; 2.4 percent after three years in Illinois; 1.8 percent after three years in New Mexico; 4 percent after three years in South Carolina. 

Hanson confirmed to me that the earliest Canadian and American sex offense recidivism studies found unusually high rates because the investigators looked only at high- and medium-risk populations. Most were repeat offenders to begin with. But Hanson questions some of the low numbers in the newest state recidivism reports. He said parolees in Iowa and Alaska can return to prison after a new sex offense without counting officially as re-offenders.

“I know that first-hand,” Hanson said. “The way they capture their data underestimates the recidivism. And not all repeat offenders go back to prison. They might go to jail or to a different state.” 

In an unlikely alliance, victim advocates have begun standing up for sex offenders in litigation and battles over legislation. Atty. Margie Slagle wrote an amicus brief representing the Cleveland and Texas rape crisis centers in the Williams v Ohio case. They intervened on the side of the victorious plaintiff, a sex offender challenging the public registry law before the Ohio Supreme Court as an ex post facto punishment. Below is a key passage from Slagle’s friend-of-the-court brief.

While protecting Ohioans from sex offenders is a compelling interest- and indeed, it is the core mission of the amici- none of the changes implemented as part of Ohio's AWA (The federal Adam Walsh registry Act) has been proven to achieve that goal. Research shows that the law's more burdensome requirements on law enforcement, the public, and sex offenders can cause higher levels of recidivism and thus pose increased danger to the community. More onerous sex offender registration and community notification laws threaten to harm the very people they are intended to protect and to undermine goals of community safety and treatment of offenders. These laws perpetuate myths and create a false sense of security. 

Research demonstrates that victimization can be reduced when sex offenders successfully reenter the community. These changes also put law enforcement agencies, already in budgetary crises, in the position of spending precious dollars on monitoring low risk individuals with a limited impact on public safety. Thus, any argument that Ohio's AWA is simply a remedial law designed to protect children and the public from sexual abuse and sex crimes is seriously flawed. Ohio's AWA is not based on empirical evidence or proven research, but on fear and misinformation. 

In an interview, Slagle said prosecutors and other officials pander for votes by playing the sex offender card. “The sad truth is we leave parents and children more vulnerable when lawmakers pass laws based on myth and not facts,” she told me.. “The public registry makes thing so difficult for them. Part of rehabilitation is getting them accepted back into the community.” 

Hanson said the research fails to support claims that the public sex offender registries deter sex crimes or prevent recidivism. “The recidivism rates before and after implementation of registries are essentially the same,” he explained. “When policies are going to affect other people, it is worth collecting data first.” 

Chris Dornin is a former New Hampshire State House reporter and the founder of Citizens for Criminal Justice Reform, www.ccjrnh.org. In the interest of full disclosure, he helped to kill Sen. Boutin’s active notification bill.